Supreme Court nominee Malcolm Rowe grilled on French, diversity and Aboriginal rights

Prime Minister Justin Trudeau’s pick for the Supreme Court, Newfoundlander Malcolm Rowe, on Tuesday stared down members of the House and Senate justice committees, who peppered him with questions about his fluency in French, his background as an Atlantic Canadian of European descent, and his vision for the top court.

Rowe, who began his opening remarks in French, earned praise from a number of committee members — including Bloc Québécois interim leader Rheal Fortin — for his relative fluency in the language of Molière, and the quality of his accent.

But Rowe also fielded questions about the government’s decision to appoint a white man to the court, after Justice Minister Jody Wilson-Raybould promised the next appointment would represent the “diversity” of Canada.

Independent Liberal Senator Mobina Jaffer, the first South Asian woman to practise law in Canada, congratulated Rowe on his appointment but said the country is evolving and regional representation cannot take precedent over diversity on the bench.

“Today 20 per cent of Canadians are people of colour, however not even one Supreme Court justice represents their reality. This is not acceptable, this is 2016,” Jaffer said.

“There is no one representing their realities. How will you represent all Canadians in the highest court of our country?”​

Rowe said he was a “function of his own experience,” but that he has long sought to understand the circumstances of all new Canadians. He pointed to his work with the non-profit leadership organization Action Canada, where he spent time mentoring young Canadians from disparate backgrounds.

“All I can do personally is to seek to bring the understanding that I’ve gained from speaking with others, from understanding their circumstances, to bear as best I can. The composition of the court is not in my hands, it’s in the hands of others. I will be mindful, sensitive and aware, and I [won’t] disappear into an ivory tower.”

Jaffer pleaded with Rowe to represent the young men and women from minority backgrounds in Toronto, and Surrey, when making decisions. “I will give you my deepest commitment to seek to do so always,” Rowe said.

Historic appointment

The prime minister launched a new Supreme Court justice selection process this summer, appointing a group of lawyers and legal scholars to sort through applications for the bench.

The group, led by former prime minister Kim Campbell, drew up a list of five possible candidates and Trudeau ultimately picked Rowe, a justice who sits on Newfoundland and Labrador’s Court of Appeal. Rowe said in his application for the position that he is functionally bilingual.

Prior to his appointment, Rowe worked as a senior bureaucrat and secretary to the provincial cabinet under Liberal Premier Brian Tobin.

The appointment is historic in that Newfoundland and Labrador has never had a representative on the Supreme Court since it joined Confederation in 1949.

Trudeau’s pick also neutralized criticism that the new nationwide appointment process would put an end to the convention of designating a seat on the top court for an Atlantic Canadian.

In his application, Rowe said he sees an active role for the top court in crafting laws, rather than simply interpreting them.

“The Supreme Court is not, primarily, a court of correction. Rather, the role of the court is to make definitive statements of the law, which are then applied by trial judges and courts of appeal. Thus, the Supreme Court judges ordinarily make law, rather than simply applying it,” he wrote.

That contention is likely to face scrutiny from some members of the committee.