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Approximately one month after the sudden passing of US Supreme Court Justice Antonin Scalia rocked the US political landscape, the newly-elected Canadian government will soon face a challenge of its own in replacing a Canadian Supreme Court titan in just a few months’ time.? On March 22, 2016, Executive Legal Officer Gib Van Ert released the following statement on behalf of the Supreme Court of Canada (“SCC”):

The Right Honourable Beverley McLachlin, Chief Justice of Canada, announced today that Justice Thomas A. Cromwell has written to the Minister of Justice, the Honourable Jody Wilson-Raybould, M.P., to inform her that he will retire from the Supreme Court of Canada effective September 1, 2016.??

Shortly after this announcement was made, a friend pointed out that my prediction would not come to be – indeed, Justice Thomas Cromwell was my pick to replace Beverley McLachlin as Chief Justice upon her retirement in 2018.? Nevertheless, his track record speaks for itself, and his replacement will certainly have big shoes to fill.

The Judicial Legacy of Justice Thomas Cromwell

Born in Kingston Ontario, the young Thomas Cromwell earned degrees in Music and in Law from Queens University, an ARCT Diploma from the Royal Conservatory of Music, and a Bachelor of Civil Law from Oxford University.? After spending time teaching at both the University of Toronto and Dalhousie University, Justice Cromwell served as Executive Legal Officer to then-Chief Justice Antonio Lamer between 1992 and 1995, before going on to serve in the judiciary himself.? In 1997, he was appointed by former Prime Minister Jean Chretien directly to the Nova Scotia Court of Appeal despite not having had any prior experience as a trial judge (although he had previously served as a labour arbitrator and adjudicator in Nova Scotia).

After more than ten years of service as a provincial appeal judge, Justice Cromwell was elevated to the SCC in 2008 by former Prime Minister Stephen Harper, where he went on to play a significant and active role on the bench, and championing access to justice in civil courts (see, for example, his unanimous reasons for judgment in Canada (Attorney General) v Downtown East Side Sex Workers United Against Violence Society, [2012] 2 SCR 524).? Although his academic interest was in civil procedure, he will be remembered for his versatility, having authoring leading judgments across various areas of law – for instance, in recognizing the duty of good faith as an organizing principle in contract law in Bhasin v Hrynew, [2014] 3 SCR 494.? His acumen in criminal and constitutional law was also on display in several important judgments, including R v Ferron, [2014] 3 SCR 621, and in Canada (Prime Minister) v Khadr, [2010] 1 SCR 44.

Recognizing his influence on Canadian jurisprudence, the Chief Justice said the following about the departing Justice Cromwell:

Justice Cromwell’s contributions to the Court and the country are unsurpassed. In his time at the Court, his colleagues have always benefited from his wisdom, his rigour and his friendship. Outside the Court, Justice Cromwell’s tireless efforts to increase access to justice will continue to benefit Canadians long after his retirement from the bench. We will miss him greatly.

Justice Cromwell’s departure will be a significant loss for a court that has benefitted from the clarity in his reasoning, and his progressive attitude towards law reform.? As put by his former Dalhousie Law colleague Professor Philip Girard, he “was a lawyer’s lawyer, a professor’s professor, and is a judge’s judge.”

But what does this mean?

Given his eligibility to sit as a judge on Canada’s highest court until 2027, Justice Cromwell’s early retirement has come as a surprise to many in the legal community.? Indeed, Prime Minister Justin Trudeau’s first SCC appointment was expected to take place in 2018, when Chief Justice Beverley McLachlin reaches retirement age.? Justice Cromwell’s early retirement means that the SCC’s “Trudeau years” will begin several months sooner – and the search for his replacement will certainly begin shortly.

Puisne Judges are appointed to the SCC by the Governor in Council, on the recommendation of the Prime Minister and the federal Minister of Justice.? There are very few constraints on who may be appointed; the Supreme Court Act, RSC 1985, c S-26 (i.e. the statute governing appointments to the SCC) requires only that the candidate must have been either a judge of a superior court of a province or a barrister of at least ten years’ standing at the bar of a province, and that three of the nine judges must be selected from the Province of Quebec.? Conventionally, the remaining six are also distributed along provincial lines; three judges represent Ontario, two represent Western Canada, and one represents Atlantic Canada.

Justice Cromwell’s retirement therefore frees up that solitary Atlantic Canada seat, meaning that his replacement will almost certainly hail from either New Brunswick, Nova Scotia, Prince Edward Island (“PEI”), or Newfoundland and Labrador (“NL”).? To date, five judges were selected from Nova Scotia, six from New Brunswick, and only one from PEI.? No SCC judge has been appointed from NL (largely due to the fact that it only joined the confederation in 1949).? Could the next justice appointed to the SCC finally be a representative of the newest member of the confederation?

Likely not.? In his party’s campaign platform, Prime Minister Trudeau promised to “ensure that all those appointed to the Supreme Court are functionally bilingual” – a point echoed in his mandate to Justice Minister Jody Wilson-Raybould shortly after his election as Prime Minister. ? The Globe and Mail recently reported, however, that there are no judges sitting on NL’s appeals court who are functionally bilingual, according to a 2011 study. ? (Although much has changed in the Canadian judiciary over the past five years, the composition of the Court of Appeal of NL has not, with no new appointments since 2010.)

On a related note, Prime Minister Trudeau heavily criticized his predecessor’s SCC appointment process, vowing to “restore dignity and respect to the relationship between government and the Supreme Court… to ensure that the process of appointing Supreme Court Justices is transparent, inclusive and accountable to Canadians.”? More specifically, in his mandate to the Minister of Justice, he explicitly recognized the need for “transparent, merit-based appointments, to help ensure gender parity and that Indigenous Canadians and minority groups are better reflected in positions of leadership” (emphasis added). ? At present, the bench is comprised of five men (including Justice Cromwell), and four women.? Moreover, no judge of Indigenous ancestry has ever occupied a seat on the SCC bench.? This newest vacancy can therefore be an opportunity for Prime Minister Trudeau to inject a novel perspective into Canada’s top court.

Finally, it is important to note this government’s emphasis on consultation in the process of appointing SCC judges – including with “the provinces, provincial law societies, provincial appellate and superior courts, and the Chief Justice of the Supreme Court” during its 2015 election campaign.? A robust consultative approach was at play in former Prime Minister Harper’s appointment of Justice Marshall Rothstein, who was “interviewed publically by a parliamentary committee before he was formally appointed” (Peter Hogg, Constitutional Law of Canada, at 8-8).? Although this procedure was not followed in several subsequent appointments, the Trudeau government appears keen on rekindling this practice, and integrating various public perspectives into the selection process traditionally placed in the hands of the executive.

With just over five months left before Justice Cromwell vacates his prestigious spot on the bench, the Feds have only a short time to act on their election promises in finding a worthy replacement to sit on Canada’s highest court.? What will ensue remains to be seen, but until then, we can expect a fair deal of speculation as to who that replacement might be – the very first SCC appointment in the “Trudeau years” – round two.

Retirement from Canada’s Highest Court: A Historical Look

Looking at the expected retirement dates for the current SCC judges, few expected Prime Minister Trudeau to have had to replace anyone other than Chief Justice McLachlin in his first term.? The next judge whose tenure is set to expire is Justice Rosalie Abella in 2021 – one year after the (expected) conclusion of Prime Minister Trudeau’s (first?) term.

Nevertheless, early retirement from the SCC is by no means uncommon.? Out of the 23 retired judges since Brian Dickson was appointed Chief Justice in 1984, only eight retired at or within one year of the mandatory retirement age of 75.? By contrast, 15 (excluding outgoing Justice Cromwell) opted for an early departure from the SCC – even as early as age 59, in the case of Justice Marie Deschamps, who went on to hold positions at the Université of Sherbrooke and McGill University.? The other two – Justices Julien Chouinard and John Sopinka – sadly passed away while on the bench.? The average retirement age sits at about 68, with the median being 70.

Presently, seven of the current nine judges were former Prime Minister Harper-appointees, with five among them aged 60 or younger.? Indeed, the average age of SCC judges is approximately 61 years old – a full seven years younger than the US Supreme Court, which has a present average age of around 68.? Nevertheless, the fairly common trend of early retirement may give an increased opportunity for this government (and those subsequent) to influence the selection and appointment of judges on Canada’s highest court.

How can we expect soon-to-be-retired Justice Cromwell to spend his time after his tenure on the SCC comes to an end?? Looking at recent trends, we can almost certainly expect him to remain active in the legal profession.? Might he take up a position with a Canadian law school – as which was the case with recent retired Justices Louis LeBel or Marshall Rothstein? Might he re-enter private practice, like retired Justices Morris Fish and Ian Binnie?? Might he be commissioned to lead a public inquiry, à-la Justices Frank Iacobucci or Marie Deschamps?? Or might he take advantage of retirement, and enjoy some much needed rest and relaxation, as did Justice Louise Charron?? The options seem endless for one who occupied such a prestigious post, and at the tender age of 63, there is a lot that remains to be achieved for one who has already achieved so much.

Conclusion

Commenting on his impending retirement, Justice Cromwell had the following to say:

Being a judge is both a great privilege and an onerous responsibility. I will always be grateful for the opportunity that I have been given to serve Canada in this capacity. As my time as a judge draws to a close, I believe more firmly than ever that an independent and effective judiciary is a cornerstone of democracy.

Canada is indebted to Justice Thomas Cromwell for his tireless service on the SCC, and for a total of 19 years’ worth of clear and well-reasoned judgments. ? For the next little while, we can expect to see Justice Cromwell’s name appearing on SCC judgments – at least until around this time next year – given that the Judges Act, RSC 1985, c J-1, s 41.1(1) permits outgoing justices to continue to participate in judgments for up to six months with respect to cases heard prior to retirement.

Starting now, however, the search for his replacement is on.

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