Judges who could replace retiring Supreme Court Justice Cromwell

[Justice Thomas Cromwell laughs as he listens to speakers during a ceremony officially welcoming him to the Supreme Court of Canada in Ottawa on Feb. 16, 2009. THE CANADIAN PRESS/Adrian Wyld]

Legal experts will be closely watching the appointment of the next Supreme Court of Canada justice, now that Thomas Cromwell has announced his retirement, set for Sept. 1.

The formalities appointing the next judge to sit in the country’s highest court is currently an open question with no real answers. While the constitution states that federally appointed judges are chosen by the Queen on the advice of cabinet, there is no formal strategy in place.

While transparency in the process was once a priority, that hasn’t been the case in recent years.

In 2004, then-Liberal justice minister Irwin Cotler formed a committee to help filter the long list of candidates, which would ultimately be chosen by the prime minister. A year later, Cotler formed a parliamentary hearing where he addressed his choice to the court.

When Stephen Harper came to power in 2006, he introduced the procedure of putting the newly appointed judge in front of a televised hearing of parliamentarians. However, that along with the committee hearing, was eventually scrapped.

Some of the most recent government appointments to the high court were done behind closed doors. However, the new Trudeau government has vowed to take a more transparent approach. In his mandate letter to Justice Minister Jody Wilson-Raybould, Prime Minister Justin Trudeau wrote that a top priority would be to “engage all parties in the House of Commons to ensure that the process of appointing Supreme Court Justices is transparent, inclusive and accountable to Canadians.”

He also stated that consultations “should be undertaken with all relevant stakeholders and those appointed to the Supreme Court should be functionally bilingual.”

While it’s not required as a matter of law, there’s been a tradition that the Supreme Court includes at least one member from an Atlantic province. Since Justice Cromwell is from Nova Scotia, there’s a strong chance the next appointment will be a representative from the Maritimes or Newfoundland and Labrador, which has never had a judge sit on the Supreme Court.

Before Cromwell was appointed in 2008, names for candidates to fill the role included judges Margaret Cameron, Leo Barry and Derek Green, all from Newfoundland and Labrador. Cameron sat as the judge on the Newfoundland breast cancer inquiry that made headlines, while Green is the chief justice of the Supreme Court of Newfoundland and Labrador.

Christopher Dunn, a professor of political science at Memorial University of Newfoundland, says Cameron and Barry are approaching retirement age, though both would make strong candidates.

“Of the three that were mentioned in 2008, Green would be the only one who would be just under the wire,” he told Yahoo Canada News.

Some legal experts wonder if the bilingual mandate will be limiting for the East Coast.

“The East Coast is thick with talented lawyers, including on the various courts,” says Kim Brooks of the Schulich School of Law at Dalhousie University. “We have long-standing French-language and bilingual communities, so the prime minister’s previously expressed commitment to bilingualism should not be a barrier. But it will result in the exclusion of some outstanding possible candidates.”