Newfoundlander named to top court’s bench
APPOINTMENT: PM able to quench regional anger by selecting Rowe, the first justice from Atlantic Canada
OTTAWA — The naming of Newfoundlander Malcolm Rowe to the Supreme Court of Canada justice ushers in a contemporary and open era in its occult appointment process while maintaining its 141-year custom of regional representation.
The move by Prime Minister Justin Trudeau extinguishes Atlantic Canada’s anger and resentment at the feared loss of its traditional seat on the country’s top court. Rowe is the first Newfoundlander, born four years after the province entered Confederation, and a man who has deeply immersed himself in visiting and understanding other parts of the country.
“Since being appointed to the bench (in 1999), he has made a remarkable contribution to the area of sentencing law,” Trudeau said in a statement Monday. “Justice Rowe’s deep knowledge of criminal, constitutional, and public law has made him an ideal candidate to sit on Canada’s highest court.”
The PM did not mention his hope to diversify the court by adding a justice who was female, indigenous or from a visible minority.
Rowe, 63, specializes in maritime law, an esoteric area that only surfaces before the court a few times a decade. But he has extensive experience as a criminal trial judge and an appellate judge.
And therein may lie the first whiff of controversy.
Provincial appellate courts, which overturn and correct lower court decisions, are the closest working judicial bodies to the Supreme Court of Canada. But the Supreme Court is not, primarily, a court of correction, Rowe wrote in his now-public application for the job to replace retiring Nova Scotia justice Thomas Cromwell.
“Rather, the role of the court is to make definitive statements of the law which are then applied by trial judges and courts of appeal,” he said. “Through the leave to appeal process, the court chooses areas of the law in which it wishes to make a definitive statement. Thus, the Supreme Court judges ordinarily make law, rather than simply applying it.”
Some conservative critics will no doubt view that statement as more evidence of an “activist” Supreme Court bent on usurping parliamentary authority. In recent years, it has ruled against the Harper Conservatives on medical assistance in dying, mandatory-minimum sentencing, prostitution laws, Senate abolition/ terms limits and more.
Lorne Sossin, dean of Osgoode Hall Law School, Rowe’s alma matter, says Trudeau missed the opportunity to make the court more reflective of Canada today. Still, appointing the first justice from Newfoundland and Labrador is long overdue and significant.
“It leaves more work to do to achieve a court that reflects Canada’s makeup but also will allay the growing tension around the possibility of moving beyond the customs around regional representation on the SCC,” he said.
“It leaves more work to do to achieve a court that reflects Canada’s makeup.” — Lorne Sossin, Osgoode Hall Law School