Alberta judge chosen for top court
Speculation grows on who will be chief
• Alberta judge Sheilah Martin was named as Canada’s newest Supreme Court justice Wednesday, putting an end to months of speculation over who would replace 28-year veteran Beverley McLachlin on the bench.
But McLachlin’s retirement, set to take effect Dec. 15, brings up another pressing question: who will Prime Minister Justin Trudeau appoint as the court’s new leader, now that the longest-serving chief justice in Canadian history (McLachlin has been in the role since 2000) is stepping down?
Chief justices are not only the public face of the court, they also decide who writes the decisions — meaning they have significant influence on how the law is actually crafted. Depending on their personality, they can also play a key role in building consensus on controversial cases, and they often take the lead in writing those decisions.
As always when it comes to representation on the Supreme Court, there is an element of politics at play. On one hand, the chief justice position traditionally goes to the justice with the most seniority, which in this case would be Ontario’s Rosalie Abella, who was appointed in 2004.
But there’s also a tradition of the chief justice position alternating between a Quebec and non-Quebec justice — not only due to language considerations, but also so that it alternates between specialists in common law and civil law (Quebec is the only province with a civil code system).
Viewed through that lens, given McLachlin was from British Columbia, the chief justice position would seem likely to go to Richard Wagner, the longest-serving Supreme Court justice from Quebec. It could also go to Clément Gascon or Suzanne Côté, who were appointed shortly after Wagner. All three were appointed by Stephen Harper.
There is dispute over how entrenched any of these traditions really are. Historians have pointed out that it was only for a few decades after the Second World War that the chief justice position alternated between Quebec and non-Quebec justices. Others point out that the civil law system is already well represented by the requirement of having three Quebec justices on the bench.
And there’s another factor to consider, which is that Abella is 71 years old, just a few years away from mandatory retirement at 75. Some have said it hurts the institution to have such quick turnover in the leadership.
But Peter H. Russell, who’s been studying and writing about the Supreme Court for decades, says he would be surprised if Abella isn’t selected.
“She is so congenial, and her whole career focused on social equality as a lawyer and an equity commissioner and then a judge, that fits so well with Mr. Trudeau’s agenda,” he said.
Russell said appointing Abella now would still allow for a Quebec chief justice in a few years when she retires, and he argued that her short term as leader would not destabilize the court.
“We’ve had short chief justiceships before, and I agree they haven’t been the most successful. However, Abella has been at the court for so long, she has the respect of her colleagues and I don’t think she has to make any great changes in the way the court conducts its business ... I think she’d be a fine leader.”
David Schneiderman, a University of Toronto law professor who has coauthored studies on how Supreme Court decisions are received in Quebec, said there are strong political reasons for Trudeau to choose a Quebec-based justice — particularly with Bill 62, the province’s “anti-veil” legislation, heading for a constitutional battle that will almost certainly reach the country’s top court.
“There’s every reason to expect him to stick with the expectation that he will appoint as chief justice a Quebec-based judge,” he said. “He has every political incentive, forget about conventions and practices, to not disrupt expectations ... The court is going to get embroiled in the Bill 62 debate. So who better to have as chief justice in that context?”
Politicians in Quebec, meanwhile, have already been on record as saying they hope to see the next chief justice be from their province.
The Prime Minister’s Office has been consulting outside advisers on the decision, and says the appointment will be announced by “midDecember.”