Author:MacKay, A. Wayne
Position:Response to article by Peter H. Russell in this issue, p. 3 - Forum: Issues in Administrative and Constitutional Law

The appointment of Supreme Court Justice Rowe was significant in a multitude of ways. The Ivan C. Rand Memorial Lecture of 2016, delivered by Professor Peter H. Russell, highlighted many procedural changes that have increased transparency in the process of appointing Supreme Court justices. (1) The Trudeau government has made important additions to the process. This was especially apparent in the implementation of the Advisory Board for Supreme Court Appointments ("the Advisory Board"), a nominating body officially dedicated to the processing of nominations, as well as actively seeking nominees. The formalization of a recognizable body that has a mandate to find candidates is an improvement from the previous process, which involved components such as publicly-broadcasted meetings with the federal legislature and already chosen candidates. It was, at the very least, educational. However, more enriching opportunities have developed and the mystery surrounding the emergence of these nominees has diminished.

The selection process that resulted in the appointment of Justice Rowe evoked a newfound uncertainty within Canadian society about regional representation in the Supreme Court of Canada. There was a concern that the Atlantic provinces would have no representation. It was known that there were Atlantic Region nominees but there was a sense of anxiety that this representation would be removed to focus on other aspects of diversity. The removal of this representation in the Supreme Court would have been very contentious as the Atlantic region has its own challenges and familiarity with those challenges is important. Those who live in the Atlantic region may otherwise lose confidence that their interests are being considered at all.

It is fortunate that Prime Minister Trudeau, after some public uncertainty, appointed a Supreme Court justice from the Atlantic region. It is especially fortunate that Justice Rowe is well-versed in socioeconomic issues and the specific difficulties faced by Aboriginal peoples in the Atlantic Region. In his application, Justice Rowe conveyed two interesting considerations. (2) His application described his experience of watching Newfoundland and Labrador become a more unified part of Canada and more prosperous--a stark contrast to the poor and fractured Newfoundland and Labrador he had seen in his earlier life. He also mentioned that through his previous experience he had become familiar with the challenges faced by the First Nations and Inuit in Labrador. These are two challenges that are unique to Newfoundland and Labrador and would certainly be an asset in the Supreme Court of Canada.

There was a strong movement to bring Aboriginal representation to the Supreme Court by appointing an Aboriginal Justice. Professor Russell stated that: "It would be very difficult to find a well-qualified, bilingual, Aboriginal jurist in Atlantic Canada." (3) Whether or not that is the case, it still brings up a significant issue: not necessarily that of being unable to find an individual with these qualities, but rather that our country needs these three qualities represented and the best compromise would be to find them in one individual. It is problematic that one must be chosen over the other if these ideal elements cannot be found in a single individual. It may seem unlikely to find a qualified candidate that can champion both regional representation and diversity existing in the Atlantic region but that difficulty makes finding a qualified candidate from the region more pressing. Although it was stated by Professor Russell that an individual who meets the stated criteria would be hard to find, it is necessary to at least attempt to seek those individuals and even more important to consider what they represent.

A loss of representation in the Atlantic region in the wake of an abandoned convention because of changing needs for proper representation would also bring up concerns about diversity. The region would additionally face an abandonment of the representation of the even more underrepresented minorities within the region--those who were considered unlikely to be found. The mutual exclusivity of diversity and regional representation is deleterious. To search solely for one or the other fails to address intersectionality. Regional representation is not valuable for the...

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