OTTAWA - The federal Conservative government faced months of questions over its failure to name an eligible judge for the empty Quebec seat on the Supreme Court of Canada.
That was rectified with the elevation Tuesday of Clément Gascon from the Quebec Court of Appeal.
But in Ontario’s and in particular, Toronto’s, legal community, an equally intriguing question mark lingers over why the top judicial job in Canada’s most populous province has gone unfilled for six months.
Warren Winkler, chief justice of Ontario’s Court of Appeal, retired last December when he hit mandatory retirement age of 75. There was ample notice Winkler was leaving. He raised it when he opened the fall court session last September, and flagged it again in the court’s 2013 annual report.
At that time, according to the report, it was “anticipated” that a new chief justice — who has a public role as the province’s head judge as well as hearing actual appeals — would be appointed “early in 2014.”
Many expected an announcement was imminent in January, and many thought it would be Justice Gloria Epstein, who sits on the appeal bench,
Some now suspect the delay has to do with the ill health and sudden death in April of Jim Flaherty, the senior GTA minister in Prime Minister Stephen Harper’s government and a former attorney general in Ontario who kept a strong hand in federal judicial appointments in this province. There was even gossip in some legal circles that Flaherty himself might have welcomed that appointment. But a senior Conservative government source laughed off that suggestion while refusing to discuss the swirl of rumours.
The delay may well be a function of the fact that Peter MacKay, the federal justice minister, and his judicial affairs officials were distracted by the legal challenge to, and ultimate defeat of, the government’s appointment of Marc Nadon, which the Supreme Court invalidated.
Or the delay may have something to do with the fact that Ontario’s top court has undergone, as Winkler called it, “an unprecedented period of change” and the job of figuring out who might be both up to the job and acceptable to the Conservative government is a lot more complicated with all the rookies on the appeal court.
Winkler left the job with “mixed emotions” given the high rate of turnover — more than half the full complement of 22 had been replaced — but wrote in his final report he was confident the institution was in “capable hands.”
In his six years as chief justice, the federal Conservatives named or elevated 13 judges to the Court of Appeal, with 10 of those appointments made in just the past two years.
In the six months he’s been gone, Ontario’s top court has not been rudderless.
Alexandra Hoy was named associate chief justice in December 2012, replacing the now retired Dennis O’Connor, and is handling the lead administrative functions. Indeed, hers and Epstein’s name repeatedly surface as two of the obvious contenders for the job.
Still, many wonder what’s taking so long.
“It’s undesirable governance to have no chief justice,” says criminal lawyer Frank Addario. “Every chief justice has an agenda for access to justice or court reform, and that’s just on hold when the government neglects the need to fill the office.”
Addario says the government’s “refusal to appoint one is a way to reiterate the low value the government puts on judges and their office.”
Winkler, he said, pushed to reduce backlogs in Ontario courts to speed people’s access to justice, especially in areas of family law, and sought innovations in dispute resolution for civil cases. “It’s kind of a bully pulpit so people use it to champion causes.”
Addario was unaware of any consultations for the new chief judge, adding, “It’s not a transparent process. If the process were transparent, there’d be a timeline.”
Rosemary Cairns-Way, associate professor at University of Ottawa’s law school, says there are judges on Ontario’s court who would be wonderful chiefs and boost the visibility of diversity, if not outright numbers, on the bench — but she believes diversity is not a factor the federal Conservative government weighs.
In an emailed reply to the Star, Cairns-Way said Justice Harry LaForme “is the most senior aboriginal judge in the country.”
“His appointment as chief (justice of Ontario) would certainly make a significant statement about the government’s commitment to appointing indigenous judges. Additionally, Michael Tulloch, who was elevated to the Court of Appeal in 2012 is the first black judge to be appointed to the Court of Appeal. His elevation would also make a strong statement . . . but he is a relatively recent appointee.”
A source in Toronto’s legal community who spoke on condition he not be identified said one scenario that has garnered much speculation is that the Conservative government might turn to Supreme Court of Canada Justice Andromache Karakatsanis to lead the top Ontario court, leading to an Ontario opening on the highest court. That would pave the way to name Tulloch as the first black judge to the Supreme Court of Canada, “an excellent play, politically.”
Cairns-Way told a symposium in Ottawa last week that she looked at 107 federal judicial appointments between April 2012 and May 2014, of which she said 90 were white. She could not reach a conclusion on the racial background of 16 and just one was a “racialized person.” By combining her data and information in a report in the Globe and Mail two years ago, she said she concluded just three of 191 federal judicial appointments in the past five years across Canada were non-white judges.
She calls it a “pattern of deliberate disregard” of diversity on the bench under Harper.
MacKay’s office refused to discuss with the Star the vacancy, the timeline or the process used to select a new chief justice. “An appointment will be made in due course,” was the terse one-line answer emailed by MacKay’s press secretary Paloma Aguilar, who refused a request to speak by phone.