Monday, 5 December 2016


The ceremony in Ottawa to officially welcome Mr. Justice Malcolm Rowe to the Supreme Court of Canada (SCC) was one of those pivotal moments in a country’s institutional evolution when unanimity prevailed that the right choice had been made and for the right reasons.

Justice Rowe was appointed by the Prime Minister after an exhaustive screening process headed by former Prime Minister Kim Campbell. It was the first time the process had been used to assess the suitability of potential jurists to the country’s highest court.

The vacancy occurred as a result of the retirement of Justice Thomas Cromwell of Nova Scotia. Many, and not just those within the legal community, felt that convention required that his replacement come from one of the Atlantic Provinces. Residents of this province naturally felt that, after 67 years in Confederation, it was time for a nomination from Newfoundland and Labrador.

Underscoring its importance is the fact that the SCC is not just the final arbiter in matters judicial. It is a bastion of the Canadian constitution and plays a critical role in clarifying and affirming clear distinctions in the division of federal and provincial powers.

The Court settles politically tricky, even divisive, issues of public policy involving rights given protection under the Charter of Rights important matters all to which the federal government and Parliament often can’t quite muster the courage or (stated with less sanguinity) the broad support to resolve.

In this context, the SCC is an institution in which people in every part of the country, large and small, want to feel that they are not just observers, but that their perspectives and their values influence the creation of laws having an important policy component.   

While conventions have their place including the convention requiring regional representation the Court earns unfettered respect internationally, as well as in Canada. That is because appointments are awarded on the basis of legal scholarship and an earnest regard for our cultural diversity and for the rights of aboriginal peoples, in addition to their intellectual strength and independence. And not to be diminished is a candidate's ability to reflect the linguistic duality of the country. 

Justice Rowe had faced a very high bar; it seems the crimson robe had fit him perfectly.

Not surprisingly, the SCC Ceremony was a “high-toned” occasion attended by, among other notables, senior Judges and members of the legal community from this province, Justice Rowe’s family, and friends this blogger falling into the latter category.

The “Welcoming Ceremony” heard some finely crafted speeches given by the Chief Justice, the Federal Minister of Justice and others members of the Canadian Bar, from Newfoundland and Labrador’s Minister of Justice and Public Safety, Andrew Parsons, as well as from the President of the Law Society of Newfoundland and Labrador, Barry Fleming.

Our Justice Minister’s eloquence and humour was duly noted including the comment that, as a young lawyer, he had always hoped for the opportunity to appear before the Supreme Court of Canada, implying he had not expected it to occur so quickly.

As one would expect, the speeches contained an effusion of praise for Justice Rowe, but also a recognition of his family’s rural roots and especially of his parents both emblematic of a time in this society when the decision to forgo late schooling was essential to a family’s survival even if it was a life-altering choice.

But, mostly, the speeches recognized that the Selection Committee had found in the accomplished Justice an uncommon intellectual, whose passion for public policy and the law is underpinned by a capacity for clear analysis and the courage to articulate and to defend the opinions he shares.

They noted his long career as a public servant in the Canadian Foreign Service, as an advisor to the Federal Government on the law of the sea, as a Clerk of the Executive Council in this province, and of his years on the Bench as both a Trial Judge and a Judge on the Court of Appeals.

Several speakers noted his mentorship role with Action Canada, an agency designed to enhance the leadership skills of a select group of Canada’s best and brightest, and develop in them a broad understanding of public policy issues and choices.

A common theme was that the Supreme Court and thus Canada had claimed one of the country’s finest legal minds.

As I listened to the well-earned praise of those who had assessed Justice Rowe’s distinguished career, especially his remarkable contribution to Canadian jurisprudence and to the public policy arena, I had two quite distinctly different thoughts.

The first was that his enormous personal achievement is also shared by Newfoundlanders and Labradorians. A crowd on the periphery, far too often we think of ourselves as being on the outside of Confederation looking in. Judge Rowe’s appointment serves as a reminder that we suffer more from self-doubt than due to any deficit of power, ingenuity, or talent.

The second thought was far more prescient. Images came to mind of the many times we had hiked the East Coast Trail, and kayaked the bays along the Southern Shore, White Bay, Fogo Island, across St. Mary’s Bay, and others. I had relied upon his superior skill set and diligence for preparation. For some reason, I realized I had not actually congratulated him on his appointment. I merely said: ‘I guess I've lost a paddling partner.’ I shall fix that omission right now.

Congratulations, Malcolm!


  1. Wonderful. One of those individuals I will bring to the attention of my kids as they explore whats achievable.

  2. I share your view that Justice Rowe is highly qualified. But law and justice is two different things.
    As I scanned the newsworthy items yesterday I was pleased at the news of the Native American victory in North Dakota, and became aware of it on CBC before CNN broadcast the story. The US Army Corps has announced that they will not give permits for the continuation of the oil pipeline on its present path.The protest started in April, with a few Indians riding on horseback to the Standing Rock area. At risk from a oil spill is the waters of one of the worlds great rivers. Native American women has been at the forefront of this struggle, which has seen them subjected to the fire of rubber bullets and water cannon and 400 or more arrested. Representatives from tribes across the USA and Canada has joined their cause, as well as environmentalists concerned about global warming. Minor protests, in support, have taken place internationally, and the cause not much different from that at Muskrat Falls. Last week seemed to indicate a pending climax when the army corps announced that by today the protest camp must be evacuated, claiming that the winter weather was a risk to their safety. The protesters were not discouraged, and were preparing for harsh weather, as cold temperatures and snow had already arrived. Then a most unusual event occurred. USA military veterans,including US Marines, some of them Native American, announced that they would support the protesters. A call for 500 resulted in 2000 volunteers in a few hours, and hundreds arrived by yesterday. They were to be unarmed, but act as a buffer between the police and the peaceful protesters. What a display of courage, and by peaceful means. Yet it is correctly viewed as winning the battle but not the war. Forgive me if I feel a sense of historical injustice against aboriginal peoples, for which the courts are late to provide remedies. I hope that in Canada, Justice Rowe will promote justice for all, and that more justice can also come from the lower courts, where too often injustice starts. But, congratulation, Mr Rowe. Surprised two valued members of our province had taken up the Inuit means of water transportation, the kayak.
    Winston Adams

  3. Congratulations to Mac the knife aka Malcolm Axe and welcome to the most political court in the land, the Ontario/Quebec Supreme Court of Canada.
    When I first saw the red suits on TV news recently I thought they were auditioning for the Ottawa area Santa Claus job this year.

  4. Meanwhile, back to Muskrat Falls and the North Spur.
    I found the Independent Engineers Review, (posted on Vision 2041 blog Sunday night) a shocking report. Shocking to me,who, not an expert in this field, yet having some understanding of dam design and construction (who as an engineer in training, worked on dam construction on the Upper Churchill doing soil compaction testing, and some work related to grouting of cracks in bedrock to prevent leakage of water).
    Startling is the fact that the Independeant Engineer in their July 2016 report(since saviour Stan came on board, predicted as likely that there would be serious leaks in the cofferdam, due to inadequate procedures to prevent this. And that there are more issues with quick clay that are not properly addressed or properly recorded.
    Then a posting on Vision 2041 of engineers Jim Gordons concerns as a result of that report, and Gordons apparent calling again for an Expert Panel to address the concerns, including possibly revised downstream slopes to meet a 1.3 safety factor.
    Today I read about more debate in the House about the North Spur that occurred yesterday, one blaming the other, and An editorial and letters to the editor , at the Telegram , about the North Spur.
    For me, way back (on Uncle Gnarley), I assumed that the marine quick clay was a serious issue,combined with records that water leaking in the North Spur from wells dug there 30 years ago, would likely require a very low slope grade required for the downstream, at a very high cost.
    This recent data seems to point in that direction, or at the very least, the necessity of a more transparent engineering assessment of the work done so far and the risks of failure, and an expectation of more additional high costs. Another reason to put MF on ice , it seems. Now we may expect damage from river ice flows that cannot be prevented. And reliability of transmission is not yet started! I look forward to another update from Jim Gordon on Uncle Gnarley.
    Winston Adams

  5. The so called "coffer dam" issue looks more and more like Mount Polley. A catastrophic earth dam failure through flawed engineering, management oversight, governance, etc. Are any of such causes present at Muskrat?

  6. With the continuing "comedy of errors" being played out at MF with dire financial consequences to the people of NL, why are the Government and Nalcor still pursuing this unrelentlessly.
    Starting with the idiotic concept(Williams),the idiotic sanctioning(Dunderdale) and the idiotic pursuit to completion (Nalcor),no one is being held accountable (except for Ed Martin who was paid a handsome sum to keep his mouth shut and dissappear)
    Cost overruns and imcompetance have resulted in where we are today.
    Normally in the business world if a project is "signed off on" it would be at the agreed price with any overruns absorbed by the contractor. Yet this project looks like a cost-plus contract and a major make-work project with a bottomless pit of cash to which I am paying for and will continue to pay for because there is no one with the balls to put their foot down and say enough is enough.
    If we needed the power in the first place, why could not the transmission line to CF be "the project" instead of Danny's egomaniacal MF concept to give him the satisfaction that Quebec won't "get one over" on him. With the transmission line only, we could have availed of recall power now if needed, and all the power we would ever need in 2041.
    There continues to be no information whatsoever from the Government and/or Nalcor and its "full speed ahead" regardless of the financial consequences.
    I said before and I still say, W5 and/or The Fifth Estate would get to the bottom of this and let the chips fall where they may and there would be people held accountable. We won't get our money back but we would get some sort of satisfaction in that the "idiots" involved from start to finish would be brought to their knees.
    For God's sake,someone do something. I'd rather pay off $7B than $15-20B. Pursuing this insane project is not in anyone's interest but Nalcor's and the various Contractors. They are the ones who are keeping their pockets full.