Supreme Court candidates short-list a substantial revision of Canadian federalism

The simple act of the Prime Minister consulting a short-list of Quebec candidates for the Supreme Court of Canada is flawed public policy and unconstitutional.

While it might seem logical to have, ‘Quebec pick Quebec judges’, it in fact a substantial revision of Canadian federalism.

The agreement between the federal and provincial governments is in fact a radical proposal to have a province choose, recommend or short-list potential SCC (Supreme Court of Canada) judges. First, it is a subversion of democratic principles by subtly incorporating a key and controversial aspect of the Meech Lake and Charlottetown Accords, which were rejected by Canadians. Second, it constitutes a substantial intrusion by a province into a core federal power. Third, it also encapsulates dangerous pandering to Quebec nationalism and specificity in the worst possible and asymmetrical way: Quebec would have rights that no other province or region has. Fourth, Quebec has no right as an entity of public law to act within this jurisdiction of power. Fifth, the SCC and the federal government that choses them represent all Canadians, including Quebecers, and the province of Quebec should not be choosing or recommending one-third of SCC judges which interprets “the law” for all Canadians at all levels of private and public life. Civil law representation is critical, but needs to be chosen by the PM who represents all Canadians. In point of law, and in fact under constitutionally-entrenched provisions, the power to appoint SCC judges is a power exclusively belonging to the Government of Canada.

This proposal is prima facie unconstitutional.

Under constitutionally-entrenched provisions, the power to appoint Supreme Court judges is a power exclusively belonging to the Government of Canada. This cannot be changed without a constitutional amendment, one enacted under s. 41(d) of the Constitution Act, 1982, with the consent of the Senate and House of Commons and the

unanimous consent of the provinces.

To quote the recent ‘Nadon’ case: “...Parliament... cannot unilaterally modify the composition or other essential features of the Court.” The composition of the SCC is explicitly mentioned in the amending formula of CA 1982, “of which Quebec’s representation on the Court is an integral part.” The selection process, no matter how informally changed, is an essential feature and would lead necessarily to modifications of the SCC’S composition. Additionally, the failure of Meech and Charlottetown which would have entrenched Quebec’s right to submit SCC candidates failed and recognized this modification requires a constitutional amendment.

The province of Quebec, while it does have a statutory and constitutionally entrenched right to having three SCC judges selected from its judiciary, does not have the right to choose or recommend the justices themselves. Even though the PM does not have to select from the short-list, this is a change in the selection process for SCC judges which requires a constitutional amendment under CA 1982. The selection process cannot be changed by simple legislation or administrative practice. The province of Quebec, as an entity of public law, has no right to determine one-third of the bench for all Canadians.

The recent Senate reference, in regards to constitutional modifications provides some insight into constitutional interpretation and modifications to selection processes,

“argument that introducing consultative elections does not constitute an amendment to the Constitution privileges form over substance. It reduces the notion of constitutional amendment to a matter of whether or not the letter of the constitutional text is modified. This narrow approach is inconsistent with the broad and purposive manner in which the Constitution is understood and interpreted...”

As well, such a move compromises unwritten rules of Canada’s constitution, such as federalism, democracy and constitutionalism. Perceptions of the independence of ‘Quebec nominated’ judges vs. the others could be questioned. This intrusion into federal power could have far-reaching effects on public policy going forward which is deeply concerning: a radical re-envisioning of the PM’S prerogative to choose SCC judges, provincial intrusion into a core federal power that would unfairly effect all Canadians, entrench contradictory asymmetrical federalism and Quebec nationalism, and all this is done without consent or transparency.

Not to mention, a flawed incorporation of bilingualism into the process: the committee must be able to work in French, but all members must be functionally bilingual. This is a perverse application and understanding of bilingualism for a federally mandated entity. Instead of mandating institutional bilingualism with freedom of choice to use and communicate in the official language of their choice, this imposes a literal ‘lingua franca’ on the committee and mandates personal linguistic skills. And, of course, this is a misunderstanding of Quebec’s legal system, where official bilingualism mandates laws, regulations and courts function with equality in English and in French at the provincial level.

According to Prof. Stephen Scott, Emeritus Constitutional Professor at Mcgill University, there is a long history of federal consultations on judicial appointments, varying over periods of time and with different governments, and this is acceptable and can be constructive so long as no person or group, and in particular no other government, is allowed to dictate or assume a dominant position in regards to a particular appointment. Even less acceptable would be allowing a practice to develop along these lines, or to create an expectation of entitlement on the part of any provincial government.

It is unacceptable in terms of constitutional principle and public policy to subvert the constitutional rules by any practice which goes beyond a fair consultation, or which allows any provincial government an equal or dominant role alongside the Government of Canada in SCC appointments. An undertaking by the federal Government to appoint someone from a provincial short-list, or to appoint a single name provided by a province, or a de-facto practice where appointments are made in this fashion, is subversive of the Constitution and of the public interest.