‘Not only must justice be done; it must also be seen to be done.’
That time-honoured judicial adage has taken on a new meaning in Atlantic Canada when it comes to the composition of provincial Supreme Courts.
In an open letter to Canada’s justice minister Oct. 25, a group representing Atlantic trial lawyers called on Ottawa to follow its new diversity and merit-based process to ensure transparency and fairness with judicial appointments.
For example, since new criteria was announced last year, three of the five judicial appointments made in Nova Scotia, New Brunswick and Prince Edward Island came from the same area of private practice – insurance defence – and from the same regional law firm – Stewart McKelvey.
At the time of the letter, four of the six federally appointed Supreme Court and Court of Appeal judges on P.E.I. are former members of this same regional firm. Two more P.E.I. justices were added Oct. 27 and one was from that same firm. The vacant position of chief justice was filled as well, by a sitting judge with nine months experience on the bench – also from Stewart McKelvey.
Lawyers are calling foul. Brian Hebert, president of the Halifax-based Atlantic Trial Lawyers Association, argues that since judges play a fundamental role ensuring public confidence in our legal system, diversity of gender and race on the bench is important, but so is legal experience and perspective.
One senior Charlottetown lawyer said the appointments are the talk of the P.E.I. legal community. No one is critical of the individuals, but many are concerned that the two P.E.I. chief justices and five of eight judges are from Stewart McKelvey. That firm also gets much of the legal work from both levels of government, perhaps because past presidents of the provincial Liberal and Progressive Conservative parties work at Stewart McKelvey. Current Charlottetown MP Sean Casey and former MP Shawn Murphy were from that firm.
Criticism isn’t just coming from the legal community. Last month, a letter writer suggested the P.E.I. bench is so biased from political patronage appointments that Ottawa should fill any vacancies with candidates from outside the province to improve the impartially of the court.
The lack of diversity on court benches resulted in a public plea from an Atlantic Mi’kmaq chief who said a more balanced judiciary is critical. The chief says the courts must reflect a variety of perspectives from society, and it is time that the perspective of the Indigenous Mi’kmaq is available to the courts. For a justice system to be truly just, it must be representative of the diversity of the population it serves.
Many in the Atlantic legal community question the fairness involved in the selection of judges, a process itself shrouded in mystery. The federal government should follow its new rules and criteria a little more diligently. Ottawa might score points for its appointments to the Supreme Court of Canada, but it is getting a failing grade for selections to Atlantic supreme court benches.