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The Honourable Mr. Justice Richard Wagner’s Appointment to the Supreme Court of Canada

Cameron Jefferies

The Hon. Mr. Justice Richard Wagner was appointed as a Justice of the Supreme Court of Canada by the Governor General on October 5, 2012 after having been nominated by Prime Minister Harper three days previous. Justice Wagner replaces the Hon. Madam Justice Marie Deschamps, who recently resigned from the Supreme Court. This selection represents an appointment of one of the three Justices that must be from Quebec, pursuant to the Supreme Court Act.

Justice Wagner graduated from the University of Ottawa in 1979, was called to the Quebec bar in 1980, and spent 25 years practicing with the law firm Lavery in Montreal where he had a distinguished career focused on commercial litigation. Justice Wagner was appointed to the Superior Court of Quebec in 2004 and was elevated to the Quebec Court of Appeal in 2011 (see Department of Justice, “Supreme Court of Canada Nominee Appears Before Ad Hoc Committee of Parliamentarians” (23 October 2012)).

Regarding the selection process, a few aspects deserve consideration. First, the process employed generally accords with the reformed selection process endorsed by PM Harper. Qualified individuals were sought by Canada’s Minister of Justice and Attorney General through consultation with Quebec’s Attorney General, the legal community, and also by way of public input. The resulting list of candidates was reviewed by a Supreme Court Selection Panel composed of Government and Opposition MPs, which then produced an un-ranked short-list of three candidates (See Prime Minister of Canada Stephen Harper, “Statement by the Prime Minister of Canada on the Retirement of Justice Marie Deschamps” (18 May 2012)). Having nominated Justice Wagner from this list, the final step had Justice Wagner appear before an ad hoc Parliamentary Committee (that also represents the Government Caucus and each Opposition Caucus) on October 4 to answer questions regarding his qualifications and nominations. This appointment, taken together with last year’s appointments, signals a return to the use of the ad hoc Parliamentary Committee questioning process after it was ignored during the appointment of Justice Cromwell.

The use of the ad hoc Parliamentary Committee is a notable feature of the selection process for more reasons than its application and non-application in recent years. This public questioning, despite being moderated, has the potential to infringe upon judicial independence if nominees are asked to indicate how they would decide a certain controversial issue if it came before the court or to defend previous decisions made while sitting on a different court (See generally Kent Roach, “Supreme Court of Canada Appointments and Judicial Independence” (2004) 48 Crim L Q 397-399; Mackeigan v Hickman, [1989] 2 SCR 796). The questions asked at this public hearing were fairly tame and ranged from sentencing principles, the relationship between Parliament and the courts with respect to the Charter, to aboriginal rights and international law (see Department of Justice, “Supreme Court of Canada Nominee Appears Before Ad Hoc Committee of Parliamentarians” (23 October 2012)).

Another point of interest is that PM Harper will not have to defend this appointment from a languages perspective. Unlike the unilingual appointments of Justice Rothstein (2006) and Justice Moldaver (2011), Justice Wagner is bilingual. Nonetheless, the argument remains that bilingualism should be a legislated requirement that will inevitably be the subject of further speculation and proposed statutory amendment.

Gender equality on the Supreme Court was a live issue during this process. With this appointment, the Supreme Court of Canada has 6 male justices and 3 female justices. As noted by NDP MP Ms. Boivin during the public hearing, “…my message is for the minister; you still have two other justices to appoint, so don’t forget about women” (ibid). Law professor Kathy Lahey (Queen’s University) notes that to date, only 8 of the 70 Supreme Court of Canada appointments have been women, and that the recent appointment potentially “reduces the diversity and equity reflected in the court, and sends the message that the wisdom and expertise of women lawyers and judges is still not valued equally with that of men in 21st-century Canada” (see Janet Bagnall, “A Supreme Court Setback for Women” (4 October 2012), Montreal Gazette at paras 4-5). Law professor Elizabeth Sheehy (University of Ottawa) correctly suggests that there is no disparity between the qualifications of male and female candidates, and that this appointment follows a trend of female underrepresentation by the federal government (ibid at para 8).

The considerations and points of interests discussed above will play out again as Justice Fish and Justice Lebel will both reach the mandatory age of retirement before the next federal election.