Law Times - Newsmakers

14 December 2015 AFTER THE UNPRECEDENTED challenge of the appointment of Justice Marc Nadon to the Supreme Court of Canada the year before, it seemed 2015 would be quieter on that front. But as the judicial vacancies piled up, the past year saw a large number of judicial appointments across Canada with more than a few of them sparking controversy. The federal government's choice to appoint Justice Grant Huscroft, a law professor at Western University in London, Ont., to the Ontario Court of Appeal in late December 2014 came under scrutiny at the beginning of 2015. In a rare move, the government appointed Huscroft to the appeal court after a nearly 25-year career as an academic in Canada and New Zealand. Questions arose over whether mem- bers of the bar who haven't practised law for some time are eligible to sit on the bench. The federal Judges Act requirement that appointees to a superior court be a "barrister or advocate of at least ten years standing" at the bar of a province excludes professors or other members of the bar who don't practise law, argued Rocco Galati, a lawyer who had previously succeeded in challenging the appointment of Nadon to the Supreme Court of Canada. "It is reserved for people who are barristers. Otherwise, why would you need a 10-year rule? That is in place for the lawyer to get experience," Galati told Law Times in January. But the kerfuffle over Huscroft's appointment was just the beginning of what many saw as questionable judicial choices throughout the year. Soon, another controversy bubbled up over the government's decision to move Federal Court Justice Robert Mainville to a Quebec court. To add to the fuss, the Globe and Mail reported that it had obtained a secret list of six judges for Supreme Court vacancies the prime minister's office had drafted two years ear- lier. Mainville was one of the six. Despite a challenge to Mainville's appointment to the Quebec Court of Appeal, the Supreme Court unanimously decided it was within the government's constitutional powers to put him there. Then in the summer, the federal government appointed Jus- tice Bradley Miller to the Ontario Court of Appeal after only six months on the Superior Court bench. Miller, a former law professor at Western University, had been vocal about what he saw in Canada as an attack on those who reject same-sex marriage. "The formal effect of the judicial decisions (and subsequent legislation) establishing same-sex civil marriage in Canada was simply that persons of the same-sex could now have the govern- ment recognize their relationships as marriages. But the legal and cultural effect was much broader," Miller wrote in a 2012 essay. "What transpired was the adoption of a new orthodoxy: that same-sex relationships are, in every way, the equivalent of tradi- tional marriage, and that same-sex marriage must therefore be treated identically to traditional marriage in law and public life." A short time later, former prime minister Stephen Harper appointed Justice Russell Brown of the Alberta Court of Appeal to the Supreme Court of Canada to replace justice Marshall Rothstein. His appointment also raised eyebrows due to his connection to a conservative legal group, the Justice Centre for Constitutional Freedoms, and his past political writings. But in August, SCC Chief Justice Beverley McLachlin said she had no concerns about Brown's past political writings. "I'm not surprised that someone who is engaged . . . will have expressed such views and I have no concerns about that," said McLachlin. Suspicions of political connections and lack of experience weren't the only causes of contention around judicial appoint- ments in 2015. When the federal government appointed a large number of judges to Ontario courts in late December 2014, out- rage over the lack of female appointees spilled into 2015 and continued throughout the year. When Legal Feeds reported on the 22 judicial appointments under a headline that declared it was "raining judges in Ontario," lawyers took to social media to quickly note it was mostly "rain- ing male judges." Going into 2016 with a new Liberal government, one lawyer says he's hoping for a new and more transparent judicial appointment system. "I think there has to be a new process, a more open process," says criminal lawyer Bill Trudell, who says Ottawa should adopt Ontario's judicial appointment protocols. "There's nothing wrong with appointing someone who sup- ports your party if they qualify in every category," he adds. Trudell also says the Liberals should strive for a bench as diverse as their cabinet. "I think the same approach should be addressed in appointing judges," he says. top stories Controversies over judicial appointments linger Questions raised over qualifications, diversity as calls for reform intensify BY YAMRI TADDESE The selection of Justice Russell Brown for the Supreme Court bench was among the more controversial judicial appointments this year. CHRIS WATTIE/REUTERS

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