Sometime in the next few weeks, a judge or lawyer in the Atlantic provinces will get a phone call that will forever change his—or her—life, and perhaps even the destiny of the nation. The caller will be Prime Minister Jean Chrétien with the offer of an appointment to the Supreme Court of Canada as the successor to retiring Justice Gérard La Forest. The invitation and the acceptance will be a formality; because prime ministers dislike being turned down, aides will already have obtained the candidate’s agreement to serve. (Judicial lore is rich in stories about candidates who agreed to serve and then never got called.)
To replace La Forest, a native of New Brunswick, Chrétien could pick any judge or lawyer in the country who has been a member of the bar for at least 10 years. But one of the Supreme Court’s nine judges has always been from the Atlantic provinces, and the Prime Minister is unlikely to break with that tradition, which essentially guarantees the West two judgeships and Ontario three. Quebec is entitled to three by law.
However, says University of Ottawa law professor Ed Ratushny, who served as an adviser on judicial appointments to three successive justice ministers in the 1970s, “I don’t think they’ll necessarily go for a New Brunswicker. They’ll do a quick scan of Newfoundland and Prince Edward Island and if there’s no one there, they’ll probably go to Nova Scotia.” Nor, added Ratushny, would Chrétien feel bound to choose a francophone—“being bilingual is kind of a low-level requirement and besides, most of the recent appointees have been willing to undergo language immersion." In Ottawa's eyes, some legal sources said, the most important challenge—as the court tries to decide whether Quebec has the unilateral right to declare itself a sovereign state—is to find someone with the 71-year-old La Forest’s grasp of constitutional law. Others say La Forest’s resignation gives Chrétien an opportunity to add a woman to a court that now has only two.
There is no shortage of proposed nominees, both male and female. Marilyn Pilkington, dean of York University’s Osgoode Hall Law School, said Constance Glube, chief justice of the Nova Scotia Supreme Court trial division, “is a very effective jurist and has been the leader of the Nova Scotia legal community.” The Prime Minister, she added, “would do well to consider the scholarship with which she approaches the most difficult legal issues.” Dean Dawn A. Russell of the Dalhousie University faculty of law in Halifax said Justice Ronald Pugsley of the Nova Scotia Court of Appeal had been “one of the leading trial lawyers in Eastern Canada” before going to the bench. Her choices among women candidates: Nova Scotia appellate judges Nancy Bateman and Elizabeth Roscoe. In St. John’s, judges Derek Green and Leo Barry of the Newfoundland Supreme Court trial division and Justice Margaret Cameron of the province’s Court of Appeal were widely mentioned.
Anne La Forest, one of the retiring jurist’s five daughters and dean of law at the University of New Brunswick, said the selection should be made not on the basis of gender or language but of quality. “Some say that because of the referendum case it should really be a francophone,” she said. “But you don’t choose a judge for the next 25 years based on one case.”
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