‘Tricky’ to predict who will replace Justice Rothstein

The announcement last week by Justice Marshall Rothstein that he is retiring means that Prime Minister Stephen Harper has an opportunity to appoint his eighth judge to the Supreme Court of Canada.

Justice Marshall RothsteinRothstein, who is stepping down Aug. 31, practised law in Manitoba and served on the Federal Court and Federal Court of Appeal for 14 years, before he was Harper’s first appointment to the top court.

The speculation on who the prime minister will name next, depends in large part on whether he will follow convention and appoint a candidate from Saskatchewan.

The Supreme Court Act requires that three of its members be from Quebec. The long-standing convention is that of the other six judges, one is from Atlantic Canada, three from Ontario, and two from western Canada, of which one is usually from British Columbia.

The other appointment has normally been on a rotating basis from Alberta, Manitoba, and Saskatchewan. Willard Estey, William McIntyre, and Brian Dickson all had personal ties to Saskatchewan, but they served on courts in other provinces.

The last time a judge from a Saskatchewan court was named to the Supreme Court was in 1962, when prime minister John Diefenbaker appointed Emmett Hall. Since that time there have been two appointments to the Supreme Court from Manitoba and two from Alberta.

If the next appointment does come from Saskatchewan, two of the potential judicial candidates include Chief Justice of Saskatchewan Robert Richards and Appeal Court Justice Georgina Jackson.

Richards was named chief justice in 2013 after nine years on the Court of Appeal bench. He also previously worked both in private practice and for the provincial government.

Jackson, an appellate judge since 1991, is fluently bilingual and a specialist in judicial ethics and judicial education.

Michelle Ouellette, a partner at McKercher LLP in Saskatoon and a senior member of the province’s legal community, says there are a number of qualified candidates in Saskatchewan.

“It is noticeable, that it has been such a long time,” since Saskatchewan was represented on the Supreme Court, she says. “It is not about taking turns. It is about the importance of the court being representative of the country in all respects.”

There is no requirement for the prime minister to follow tradition and some legal experts say it is outdated

 “I don’t know how strong the convention is, but in my view it is antiquated and ought to be discarded,” says Steven Penney, a criminal law professor at the University of Alberta, who began his legal career clerking at the Supreme Court.

“While regional representation might be one consideration, among many, in the appointments decision, it should not be paramount. For non-Quebec appointments, judges from all provinces should be considered,” says Penney.

He adds the current convention does not serve Alberta well, since it has almost 12 per cent of Canada’s population, yet only four per cent (one-third of the single spot for the Prairies) of representation on the Supreme Court.

If the next choice comes from Harper’s adopted home province of Alberta, one of the potential candidates is Frans Slatter, a respected judge on its Court of Appeal.

However, another more recent appointment to the Alberta Court of Appeal may be more in line with the prime minister’s view of the role of the judiciary.

Justice Russell Brown was appointed to the Court of Appeal last year after just 13 months on the Court of Queen’s Bench.

The former associate dean at the University of Alberta law school is also a past member of the advisory council of the Justice Centre for Constitutional Freedoms. The right-of-centre legal organization is headed by John Carpay, an unsuccessful candidate for the Wildrose party in the last Alberta election.

A past endorsement from Brown is included on the organization’s web site.

“Current events remind us that the notion of limited government, particularly as it pertains to freedom of conscience and freedom of expression, can never be taken for granted in Canada,” wrote Brown, who suggested Carpay’s organization would become one of the country’s “most important” watchdog.

“Current events remind us that the notion of limited government, particularly as it pertains to freedom of conscience and freedom of expression, can never be taken for granted in Canada,” wrote Brown, who suggested Carpay’s organization would become of the country’s “most important” watchdog.

Michael Plaxton, a law professor at the University of Saskatchewan, says the fact the decision will be announced not long before a federal election campaign must also be considered.

“One would think that this would constrain the government somewhat, but it may also be treated as an opportunity to make a ‘statement.’ That makes this appointment a tricky one to predict,” says Plaxton.

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