Canadian Lawyer

16 J U L Y 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m Not so fast, Justice Wagner! The conventions I mention have not always been respected. For example, in Decem- ber 1973, I confidently and publicly predicted in a newspaper column that Justice Ronald Martland, the senior non-Quebec judge, would replace the retiring chief justice, Quebecker Gérald Fauteux. After all, that was the way it was supposed to work. The day after my prediction, prime minister Pierre Trudeau appointed Bora Laskin as chief justice. Oops! And then, in 1984, Laskin was succeeded not by someone from Quebec but by Brian Dickson from Manitoba. Today, the conventions are clear- ly dead. Not even the conservative and hidebound legal profession puts any store in them anymore. Until his unexpected resignation announcement earlier this year (by the way, what was that all about?), the smart money was on the highly respected Justice Thom- as Cromwell to succeed McLachlin. It didn't seem to bother anyone that he was an anglophone common law lawyer from Nova Scotia rather than a franco- phone civil law judge from Quebec. Cromwell will soon be gone. Of the other eight sitting judges, who could step into McLachlin's shoes? For rea- sons of politics and tradition, one might think a Quebec judge — Wagner, Clément Gascon, or Suzanne Côté — would have an inside track, but none of these is a plausible choice. Nor are justices Michael Moldaver, Androm- ache Karakatsanis, or Russell Brown. The most compelling candidate among the sitting judges, by virtue of experi- ence, intellect, and personality, is Rosa- lie Abella, but, regrettably, most would regard her, at age 70, as too old for the job (I don't agree). So what's a prime minister to do? When, sometime soon, Prime Minis- ter Justin Trudeau fills the Cromwell vacancy, I think he will borrow from his father's playbook and appoint a chief justice in waiting. When Laskin was made chief justice in 1973, he had only been on the Supreme Court for three years and was the second-most junior judge. Pierre Trudeau, no slave to con- vention, liked what he saw after looking Laskin over for two or three years. The Cromwell vacancy gives his son a similar chance to vet a potential chief. s I write this, the next chief justice of Canada sits somewhere, unaware of his or her impending eminence. The incumbent, Beverley McLachlin, turns 75, the mandatory retirement age, on Sept. 7, 2018. Who will replace her? Possibly you. If it's not you, who will it be? Once upon a time, speculation about the next chief justice seemed straightforward enough. Although there were no formal rules, various conventions were thought to apply. The chief justice should be someone who was already a judge of the Supreme Court. The job should alternate between a francophone from Que- bec and an anglophone from elsewhere in Canada. The chief justice should be the most senior judge in the relevant category. If these conventions were to be applied in 2018, it's easy to figure out who will succeed Beverley McLachlin. Justice Richard Wagner, step right up. T O P C O U RT TA L E S O P I N I O N @philipslayton SCOTT PAGE It's a good bet when Justin Trudeau fi lls the Cromwell vacancy he will borrow from his father's playbook and appoint a chief justice in waiting. By Philip Slayton Who will be the next chief justice? A

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