Regional representation must be maintained
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