Was Justice Cromwell Appointed to the SCC or Not?

The process for replacing Justice Michel Bastarache for what is widely regarded as the Court’s “Atlantic” spot, has been contentious. Initially, a Supreme Court Selection Panel made up of two MPs from the government and one from each of the opposition parties was to come up with a shortlist. However, the Opposition objected to the government’s nominees being cabinet ministers and, according to the government, refused to “consider substantive business”. The Prime Minister unilaterally nominated Justice Thomas Cromwell of the Nova Scotia Court of Appeal, subject to questioning before another ad hoc committee after the federal election.

Harper’s actions are a bit constitutionally presumptuous – if the appointment is conditional on Justice Cromwell’s appearance before the ad hoc committee, then it has not been made. But if it has not been made, then Harper can only “announce” that Justice Cromwell will be the one on the assumption he will be Prime Minister after October 14 – an assumption one would think a politician facing the electorate should be cautious about.

As I write, a few days into the 2008 election campaign, it remains to be seen whether any of this will be an election issue. Newfoundland and Labrador’s Justice Minister has angrily announced that Harper treated his province with “disrespect” by not considering a judge from his province – suggesting a punitive motive arising out of Harper’s conflict with Premier Danny Williams. Ideological, as opposed to regionalist, attacks seem less likely, since Justice Cromwell is widely-respected within the liberal legal elite, and was appointed a Court of Appeal judge by Jean Chrétien.