Preserving regional representation on the SCC: but what about diversity?

Assuming all goes smoothly, Justice Malcolm Rowe will become Newfoundland and Labrador’s first Supreme Court judge within the next few weeks.

This milestone is worth applauding. So is the preservation of regional representation on the Supreme Court. But – and there’s always a ‘but’ with judicial appointments – what about diversity?

Because of that nagging question, there’s something unsettled about this appointment. Justice Rowe, it must be stated, is yet “another white male,” when the Supreme Court already has four of them. #SCCsowhite is a hashtag for a reason.

Would I have liked to see a woman nominated, to give the Court a majority of women judges? Of course. I would have been even more thrilled if the PM had chosen the court’s first indigenous jurist, or the first SCC judge of colour, or the first openly queer Supreme Court justice. (And unlike the Globe and Mail editorial board, I don’t see “demographic variety” and competence as either/or criteria – there were surely qualified candidates who weren’t white men, and their diverse backgrounds would have only enhanced their competence.)

My relief about maintaining regional diversity was, then, mixed with disappointment about not advancing demographic diversity. (With a nod to Leonid Sirota for the helpful “regional diversity” and “demographic diversity” terminology.) To quote my original post on the revamped appointments process: “The essential goal of enhancing diversity on the Supreme Court can work in tandem with the need to preserve regional representation.”

I thought we could have both this time. And we certainly can, with future appointments. To this end, it’s imperative, first, that the federal government appoint more diverse candidates to superior and appeal courts across Canada. And second, that lawyers, politicians, and academics figure out how a permanent seat for an indigenous judge can be created on the Supreme Court.

None of this critique is meant to question Justice Rowe’s excellent credentials, or his extremely interesting (at least to me) background in the worlds of politics and law. Which is why he should be evaluated for who he is, and not just who he’s not. What does he bring to the bench?

As mentioned, Justice Rowe will be the only judge on the court from Atlantic Canada, and the first SCC judge ever appointed from Newfoundland and Labrador. To state the obvious, his home province has a rich and complex history, a stunning landscape, a unique culture, and the kindest people.

Provincial identity matters, especially in a federation, and one where federalism is a fundamental constitutional principle. (On this point, see the Quebec Secession Reference, where the Supreme Court actually linked the principle of federalism to diversity.)

At the risk of perpetuating fishing-related stereotypes about Atlantic Canada, it’s undeniable that this region imbues residents with a deep connection to the ocean and its resources. (Issues related to fishing do, of course, end up before the Supreme Court – for a prime example, note the court’s monumental Marshall decision from 1999, which confirmed a Mi’kmaq treaty right to fish.)

It’s no different for Justice Rowe.

The first line of his bio says he was born “to parents from small fishing communities,” Seldom and Lamaline. Much of Justice Rowe’s pre-judicial career was devoted to fisheries issues, as detailed in his candidate questionnaire, where he wrote: “From my time in practice, the work that was of greatest significance related to resolution of disputes with France and with the European Union (EU) concerning Atlantic fisheries.”

Justice Rowe’s background is obviously steeped in issues fundamental to the Atlantic region, and I want his regional and provincial identities to inform his judging, together with his deep and varied knowledge of the law.

However, regional diversity was only a necessary, not a sufficient, part of this appointment. There remains the unfulfilled goal of increasing the court’s demographic diversity.

Justice Rowe’s answer to the inquiry on the questionnaire about his “insight into the variety and diversity of Canadians and their unique perspectives” addressed both regional diversity (his perspective as a Newfoundlander) and demographic diversity. On the latter, Justice Rowe’s response focused on his volunteer work with Action Canada, a leadership development program for young Canadians, and how it has exposed him to Canadians from diverse backgrounds.

That was laudable work, and it’s refreshing that Justice Rowe did not give up on community involvement when he became a judge. But talking about what it’s like to be an indigenous person or a gay man or a francophone or a young woman in Canada is not the same as actually living those experiences. I hope Justice Rowe’s obvious empathy will allow him to bridge that gap as best he can, while recognizing his privileged position. And I hope the MPs participating in the Q&A session on October 25 will ask him just how he’ll do that.

I know I was not the only one who experienced a mix of relief and disappointment when Justice Rowe’s appointment was announced. He is not a perfect choice for what the Supreme Court of Canada needs in 2016. But he may bring a breath of fresh (salt) air to Ottawa, preserving the constitutional balance of the Court and leaving the door open for another first for the Court, next time around.