Filling McLachlin's seat: What does tradition tell us?

By Justin Ling June 13, 201713 June 2017

Filling McLachlin's seat: What does tradition tell us?


With Chief Justice Beverley McLachlin retiring, the Trudeau government will have to search for a replacement in that role for the first time in 17 years. The Prime Minister will also have the opportunity to fill her seat.

The big question that will be debated in legal circles in the coming weeks and months is, who will fill her shoes?

Chief Justice McLachlin has been heralded as a consensus-builder on the top court over a nearly two-decade stretch where the court has crafted whole new approaches to the Charter of Rights and Freedoms, breathed new life into ancestral rights for Indigenous peoples and reinforced centuries-old treaties signed with the Crown, and pronounced itself on an array of controversial topics from gay marriage to medical marijuana, assisted dying, and sex work.

"Ever the collaborative jurist, she is known for finding consensus on the court and fostering cordial and collaborative relationships with the profession," CBA President René Basque said in a recent statement following the announcement of her retirement.

Her legacy will be a hard one to match.

And the prime minister is going to have a tough job picking one from the current contingent of justices to fill her role as head of the country.

Emmett Macfarlane, assistant professor of political science at the University of Waterloo and author of Governing from the Bench, says “there aren’t really strong, hard, and fast rules” around picking a chief justice.

Prime ministers past have tended to chose the most senior judge to fill the role, and there is a recent tradition of alternation between judges from Quebec, and those from the rest of Canada.

But those conventions — more like “quasi-conventions,” Macfarlane says — can be broken, and though it may “raise eyebrows,” Prime Minister Justin Trudeau has some leeway to get creative in his choice.

Should he stick with convention, he’ll have his pick between Rosalie Abella, the most senior judge; and Richard Wagner, the most senior member from Quebec.

Abella, however, is just five years from her mandatory retirement age of 75 — which doesn’t bode well for stability on the court. And it would mark only the second time since the end of World War II that a prime minister hasn’t followed an English Canadian chief justice with a Quebec one. (Manitoba's Justice Brian Dickson followed Ontario's Bora Laskin. Pierre Elliott nominated both in the 1970s/1980s).

“Trudeau risks inflaming Quebec sensitivities if he ignores that precedent,” he says, pointing to grumblings that arose when Trudeau considered appointing a non-Atlantic Canadian judge to replace Nova Scotia Justice Thomas Cromwell.

The only other prime minister since 1945 to not follow that convention, says Anglin, was Trudeau’s father, who named Brian Dickson of Manitoba after Bora Laskin died in office in 1984. (The senior Trudeau also broke convention by elevating Justice Laskin to the top job after just three years on the court).

But given that Trudeau and Justice Minister Jody Wilson-Raybould have made it an objective to improve diversity on the bench — both in terms of race, gender, and Indigenous status — and in Canada’s legal system, we could see it happen again.

To that end, Trudeau could opt for Justice Suzanne Côté, and break the seniority rule; or pick Justice Andromache Karakatsanis, and risk offending Quebec; or he could elevate his new appointee to the top role immediately. All of the options would surely draw some degree of controversy.

“If I were betting, I would probably bet on Wagner,” says Macfarlane.

A new justice

The other interesting question is will be who will fill McLachlin seat.

“I do have a very strong impression that this Prime Minister wants to appoint the country’s first indigenous justice,” notes Macfarlane — a move that Trudeau was obviously considering when he had the opportunity to fill the last open seat.

The last vacancy, however, exposed the reality that some parts of the country have relatively few Indigenous judges.

Trudeau also has to consider a court without McLachlin that would be lacking in depth when it comes to criminal justice.

Anglin also notes that there is some division amongst Western lawyers as to whether McLachlin is technically a “Western” justice, or whether her seat belongs to British Columbia. “Unsurprisingly, BC thinks it's a BC seat and the other three provinces think it's a Western seat,” he notes.

Should Trudeau opt to look at the Prairies — specifically, Saskatchewan, who has not had a judge on the top court since 1973 — there is one name that both Macfarlane and Anglin bring up (and it’s likely a name that will be on many lips in the months to come): Mary Ellen Turpel-Lafond.

Turpel-Lafond, herself a status Indian of Cree descent, had been touted as a possible commissioner to head up the inquiry into missing and murdered Indigenous women. She has previously served as an administrative judge on the Saskatchewan provincial court, was appointed as the Representative for Children and Youth for the B.C. legislature, and worked as a lawyer. Placing her on the top court would give it a different level of experience on Indigenous issues, but it wouldn’t do much to bolster its depth on criminal law.

Anglin notes that Western Canada does have a variety of good options: Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench and Richard Chartier, Chief Justice of the province’s Appeal Court.

“The Supreme Court needs another justice with deep trial court and criminal law experience,” Anglin says. “Currently only Moldaver has that important specialty, and he is 69.”

Joyal, in particular, “fits that bill,” says Anglin. And it helps that he’s Franco-Manitoban.

Trudeau has some time to mull over the options, as McLachlin’s retirement isn’t set to occur until the end of 2017.

Correction:  An earlier version stated that naming a chief justice outside of Quebec would mark the first time since the end of World War II that a prime minister hasn’t followed an English Canadian chief justice with a Quebec one. We regret the error.

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Baldurdasche 6/14/2017 9:19:55 AM

'Tradition' says that her replacement should be a female - with fairly extensive experience in, preferably, constitutional law.

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