Prorogation, the SCC, and Justice Thomas Cromwell

On September 5, 2008, Prime Minister Stephen Harper nominated Mr. Justice Thomas Cromwell from the Nova Scotia Court of Appeal to the Supreme Court of Canada. But that was all before the government’s controversial fiscal update on November 27, followed by the opposition parties’ December 1 written agreement to form a coalition and finally, the Governor General’s decision on December 4 to prorogue (suspend) Parliament until January. For those who have not been following the economic/political/national unity crisis, there is an excellent chronology here. Justice Cromwell’s appointment has been covered extensively by TheCourt.ca, however this post focuses exclusively on the aspects of the nomination effected by the current political situation.

A recent article in The Globe and Mail has called into question the status of Justice Cromwell’s SCC nomination in light of recent political turmoil. University of Toronto Faculty of Law Professor Lorne Sossin commented in the article “If the coalition becomes the new government, certainly nothing binds it to abide by a decision of the previous government to nominate Tom Cromwell.” The thinking is, a new Liberal-NDP coalition supported by the Bloc Québécois would appoint its own nominee instead of completing Justice Cromwell’s nomination process. The fate of Justice Cromwell’s nomination could depend on both the new process and old politics.

The Process

The past 5 years has seen the emergence of a new process for selecting Supreme Court nominees, a cardinal element of which is input from all party committees. Justice Cromwell has yet to appear before any committee. Moreover, it is not likely that his nomination to the Supreme Court will be a high priority for Parliament when it returns from prorogation in January. In a recent post, Diana Younes outlined the Supreme Court of Canada Appointment Process for TheCourt.ca:

The Supreme Court Act leaves much of the appointment process to the discretion of the appointing Cabinet. It merely provides that the nine justices be appointed by the Governor in Council and that three must come from Quebec. The Act also stipulates that the nominee must be either a judge of a superior court or a barrister or advocate with at least 10 years standing at the bar of a province. By convention, Ontario is entitled to be represented by three judges, Western Canada by two and Atlantic Canada by one. Convention also has it that the Prime Minister makes the final choice and appointment.

Former Prime Minister Paul Martin, at the recommendation of law teachers and bar associations, approved a process in 2004 by which potential SCC nominees were reviewed by a special parliamentary committees. There was some controversy surrounding the independence of government representatives of the four member committee struck to vet candidates before Justice Cromwell’s appointment. When Prime Minister Stephen Harper appointed Justice Marshall Rothstein in 2006, an additional Ad Hoc committee chaired by Professor Peter Hogg was able to question but not veto Justice Rothstein’s appointment.

An interesting footnote is that SCC Justices are by convention appointed by the Governor General after consultation with the Prime Minister. One might speculate that Governor General Michaëlle Jean would be less than pleased with a rushed SCC appointment by Prime Minister Harper after she indulged his request for prorogation in the face of a confidence vote.

The Politics

The uncertainty surrounded the political and nomination process stands in contrast to the consensus which has developed around the Justice Cromwell nomination. Before the nomination, Dalhousie Law Professor Phillip Gerrard offered his opinion of Justice Cromwell: “During [Cromwell’s] decade on the Nova Scotia Court of Appeal he has produced judgments in many areas of law which are models of clarity, reasoning, and just results.”

Newfoundland and Labrador have the dubious distinction of being the only province without a past or present SCC Justice. Perhaps the coalition, which collectively holds all 7 seats on the Rock, are in a position to bypass the Cromwell nomination and instead appoint a judge from Newfoundland. It is no secret that Premier Danny Williams was displeased with Cromwell’s nomination and detests the Harper Conservative government since he launched an “Anyone But Conservative” campaign during the 2008 federal election.

But before a street party is planned down George Street in St. John’s to celebrate their first SCC Justice, one must keep in mind the “silent partner” in the coalition. The Liberal-NDP coalition depends on the support from the Bloc Québécois. Professor Sossin believes this raises the importance that the nominee be fluently bilingual “in contrast to some of [the] Newfoundland and other candidates. It would be rather hard for a coalition supported by the Bloc to go for anyone who didn’t meet that bilingualism requirement.” He goes on to say it would only be appropriate for a new coalition government to bypass the appointment if it was made for purely ideological reasons, but this was not the case for Justice Cromwell’s nomination.

Conclusion

In conclusion, it appears the ongoing political situation in Ottawa will likely delay but not extinguish Justice Cromwell’s nomination to the SCC. It would be only too fitting if one of Justice Cromwell’s initial hearings would be a reference from cabinet under s. 53 of the Supreme Court Act, RSC 1985, c S-26, regarding the exercise of powers during the prorogation saga.