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The Thomas Cromwell Pages – 10 Things He Will Bring to the Court

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  1. Familiarity with the Role of the Court — While Mr. Justice Cromwell is not the first judicial appointment to have his career move from law clerk to the Supreme Court of Canada to Justice of the Supreme Court of Canada ((Justice Arbour was the first)) he served as executive officer to the Supreme Court of Canada during Chief Justice Lamer’s time. Accordingly, he has, more than most judges, a keen understanding of the institutional role and challenges of the court ((as well as a keen understanding of the need for collegiality if some of the commentators on the strained interpersonal relations among the Lamer court contain any truth)).

  2. A Passion for Court Reform — Unusually, Justice Cromwell has had an involvement with court reform dating back virtually his entire career. He was the Research Director and Project Manager for the Canadian Bar Association (CBA) Task Force on Court Reform ((The Task Force was created in 1989 to study various issues relating to court reform in Canada, and in particular the usefulness of establishing a single criminal court and a single civil court.)). In 1995 Justice Cromwell ((as he had not yet become)) was asked by the CBA’s Systems of Civil Justice Task Force to contribute a paper on “Dispute Resolution in the 21st Century”. The Systems of Civil Justice Task Force Report (August 1996) to their “Civil Justice: Reform for the 21st Century” conference held in February 1996 ((The role of this Task Force was to “inquire into the state of the civil justice system on a national basis and to develop strategies and mechanisms to facilitate modernization of the justice system so that it is better able to meet the current and future needs of Canadians” (from the Forward to the Systems of Civil Justice Task Force Report).)). In the autumn of 1996 the national Implementation Committee was formed to carry out these recommendations and Professor Cromwell sat as a Chair of this committee until he was appointed to the Nova Scotia Court of Appeal in August 1997. ((One of the recommendations made was the establishment of an independent organization to encourage participation from all groups involved in civil justice reform and to facilitate the exchange of information and experience in civil justice reform. ))

  3. A Practical Approach to Legal Reasoning — for Slaw readers the key place to look is the book that Cromwell and Mac Austin wrote back in 1996 on the Preparation of Factums. This book, together with his 2008 collection on Written Advocacy, should be required reading for all litigators.

  4. Comparativist. — While not a comparative law scholar in the mould of Justice L’Heureux-Dubé, Justice Cromwell’s judgments show a keen understanding of comparative law. His writings include participation in the 1994 national Judicial Institute study on comparative federalism and judicial review, reprinted in the 1995 South Carolina Law Review.

  5. Law Reformer — Not since Chief Justice Lamer ((Founding Vice-Chair and then Chair of the first Canadian Commission)) have we had a male judge on the court who has worked in law reform ((Justice Abella chaired the Ontario Commission)). Justice Cromwell served through most of this decade on the Nova Scotia Law Reform Commission. He was on the Management of Litigation Working Group of the Civil Procedure Rules Revision Project One can expect that this work will shape his understanding of the nature of legal change.

  6. Music — While Justice Abella plays a mean piano (Sondheim anyone?), Justice Cromwell will be the first judge who not merely is an Associate of the Royal Conservatory of Music , but whose first degree was in Music. There is an entire Slaw posting remaining to be done into the intersection of law, music and ethics.

  7. A Dark Blue Justice — Thanks to Angela Swan and Simon Chester, Oxford is much better represented in the ranks of Slaw than Cambridge is. Justice Cromwell’s time at Exeter College Oxford and his BCL degree means that Oxford is again represented on the court beside Justice Binnie, a Cambridge Graduate. Justice Cromwell follows in the footsteps of Justices Nolan, Ritchie, Martland, Chouinard, Beetz, and LaForest, all with Oxford connections.

  8. An Enthusiastic Teacher — Although Laskin C.J.C. was, at one time, president of the Canadian Association of Law Teachers, Cromwell J. followed in his footsteps. Indeed, it’s fair to say that while many of the current justices have spells as law teachers, Justice Cromwell follows more closely the models of Justices Arbour, Iacobucci and Bastarache, as those who spent the bulk of their pre-judicial careers as a full time faculty member. Elizabeth May’s tribute shows how well regarded he was as a teacher at Dalhousie. Simon Chester and Justice Cromwell once were co-instructors at the Advocates’ Society/Osgoode Hall Law School Advanced Written Advocacy Workshop. This shows his continued dedication to teaching.

  9. Courteous but Firm — Counsel should know that he is a fair but firm judge. Vicki Schmolka in a CBA piece reports that he said: “We render judgments; we don’t have to be judgmental about counsel behaviour. It’s wrong to take out our impatience on counsel.” But as Justice Cromwell also observed in one case, Campbell v. Turner-Lienaux:

    In my view, a judge presiding in an interlocutory proceeding has the duty to provide a just result according to law after a fair hearing. It is not the judge’s duty to sit sphinx-like in the face of unduly protracted applications or repetitive and unnecessary cross-examination. To paraphrase Lord Roskill in Ashmore v. Corp. of Lloyd’s, [1992] 2 All E.R. 486 (H.L.) at 488, litigants are only entitled to so much of a judge’s time as is necessary for the proper determination of the relevant issues. They are not entitled to the uncontrolled use of the judge’s time. The rights of the opponent and of other litigants waiting their turn for the Court’s time must be considered.

  10. The Bottom Line — Our colleagues at the Court, and specifically Justice Cromwell’s Dalhousie colleague, Professor Girard, said it best:

    “He was a lawyer’s lawyer, a professor’s professor, and is a judge’s judge.”

Simon Chester