Re­gional rep­re­sen­ta­tion must be main­tained

The Compass - - EDITORIAL -

The fed­eral gov­ern­ment’s re­cent in­ti­ma­tions that it may break with con­ven­tion by ap­point­ing the next Supreme Court jus­tice from out­side At­lantic Canada raises the spec­tre of a le­gal chal­lenge. On Thurs­day, Aug. 11, the fed­eral min­is­ter of Jus­tice ap­peared be­fore a spe­cial ses­sion of the House of Com­mons Stand­ing Com­mit­tee on Jus­tice and Hu­man Rights study­ing the newly an­nounced process for Supreme Court nom­i­na­tions. Un­der this new process, mem­bers of the newly minted In­de­pen­dent Ad­vi­sory Board for Supreme Court of Canada Ju­di­cial Ap­point­ments will be tasked with pro­vid­ing a short­list of three to five “qual­i­fied and func­tion­ally bilin­gual can­di­dates” el­i­gi­ble to fill the va­cancy pre­cip­i­tated by the Sept. 1st re­tire­ment of Jus­tice Thomas Cromwell of Nova Sco­tia.

While the gov­ern­ment has right­fully stated that all the can­di­dates must be func­tion­ally bilin­gual, doubts have been raised as to the gov­ern­ment’s in­ten­tion to re­spect the long­stand­ing con­ven­tion of re­gional rep­re­sen­ta­tion at the top court. These doubts arose re­cently with the min­is­ter’s dec­la­ra­tion that the next Supreme Court jus­tice might not nec­es­sar­ily be from At­lantic Canada. On. Aug. 22, the prime min­is­ter him­self raised this pos­si­bil­ity.

With the ex­cep­tion of the re­quire­ment that three jus­tices be from Québec, the Supreme Court Act is silent with re­gards to re­gional rep­re­sen­ta­tion. How­ever, re­gional rep­re­sen­ta­tion has been a de­ter­min­ing fac­tor in Supreme Court ap­point­ments since its cre­ation in 1870. Fur­ther, since 1949 - the year the court was ex­panded to its cur­rent nine mem­bers, with only one ex­cep­tion, Canada’s top court has com­prised three jus­tices from Que­bec, three from On­tario, and one from each of At­lantic Canada, the Prairies and Bri­tish Columbia. As such, the nom­i­na­tion of a can­di­date, no mat­ter how mer­i­to­ri­ous, who is not from one of the At­lantic prov­inces would break with the long-stand­ing con­ven­tion that at least one seat be held by a ju­rist from the At­lantic prov­inces.

Such a de­par­ture from con­ven­tion would de­prive the court of an im­por­tant and nec­es­sary re­gional per­spec­tive. The nom­i­na­tion of a judge who is not from At­lantic Canada could also be chal­lenged on con­sti­tu­tional grounds. In the Ref­er­ence re Supreme Court Act, re­solv­ing the saga of the ap­point­ment of Jus­tice Marc Nadon, it was found that a mod­i­fi­ca­tion to the com­po­si­tion of the court, or any es­sen­tial fea­ture, would re­quire a con­sti­tu­tional amend­ment. Such a mod­i­fi­ca­tion would re­quire the con­sent of Par­lia­ment and seven prov­inces rep­re­sent­ing 50 per cent of the Cana­dian pop­u­la­tion.

The Supreme Court is the fi­nal ap­peals court in Canada and ex­er­cises a uni­fy­ing ju­ris- dic­tion over the Su­pe­rior Courts al­low­ing it to ad­ju­di­cate cases from all over the coun­try. The court is a fed­eral and bi­ju­ral in­sti­tu­tion - the prod­uct of his­toric com­pro­mise which con­tin­ues to this day via con­sti­tu­tional con­ven­tions, no­tably with re­spect to re­gional rep­re­sen­ta­tion. It would be prob­lem­atic to dis­re­gard the re­sults of this his­toric com­pro­mise struck when es­tab­lish­ing the court. While such re­quire­ments may have evolved from con­ven­tion, they are es­sen­tial char­ac­ter­is­tics nec­es­sary for the ful­fil­ment of the court’s role. These es­sen­tial char­ac­ter­is­tics do not nec­es­sar­ily need to be writ­ten to en­joy con­sti­tu­tional sta­tus.

Un­doubt­edly, there is a press­ing need for greater di­ver­sity amongst ju­di­cial ap­pointees who bet­ter re­flect the de­mo­graphic com­po­si­tion of Canada. The large num­ber of va­can­cies, re­cently ref­er­enced by Chief Jus­tice Beverley McLach­lin, pro­vides such an op­por­tu­nity to nominate qual­i­fied can­di­dates. How­ever, it is nec­es­sary first and fore­most to re­spect the con­sti­tu­tional re­quire­ments and nominate a qual­i­fied ju­rist from the At­lantic prov­inces.

The cur­rent gov­ern­ment says it is dif­fer­ent than the pre­vi­ous gov­ern­ment and that it will re­spect the Con­sti­tu­tion and the courts. Cer­tainly, the re­spect of this con­sti­tu­tional re­quire­ment would be a step in the right di­rec­tion and lend cre­dence to their word. It would also help to avoid an un­nec­es­sary rep­e­ti­tion of the ju­di­cial bat­tle sur­round­ing the ap­point­ment of Jus­tice Nadon to the Supreme Court, which would neg­a­tively af­fect the gov­ern­ment and the courts, no mat­ter the out­come.

Mark Power, New­found­land and Labrador and New Brunswick bars Fer­nand de Varennes, dean of law, Univer­sité de Monc­ton Marc-An­dré Roy, On­tario bar Mar­ion Sandi­lands, On­tario bar Kienan Webb, law stu­dent, Ot­tawa

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