Atlantic Canada could lose seat

New selection process excludes this region, upends constitutional convention and an important principle of federalism

The federal government has announced a new selection process for Justices of the Supreme Court of Canada. This series of reforms is the latest adjustment to a procedure that many previous governments have revised. And while the process may well bring improvements, a very concerning detail has emerged from the announcement: Atlantic Canada will lose its assured seat on the top court.

This decision is objectionable on multiple grounds. It violates a long-standing constitutional convention. The violation is committed without the consent of members of confederation, the provinces. It favours one form of diversity over others, and it excludes our region of the country from representation.

Regional representation has been a staple of institutional development in Canada since the founding of the Dominion, including on the Supreme Court since its inception in 1875. Traditionally, the West received two seats in the Court, Ontario and Quebec three each, and Atlantic Canada one. Thus, the announced change would upend constitutional convention and an important principle of federalism.

The East Coast has long upheld its end of the bargain by producing strong jurists for the position. Retiring Justice Thomas Cromwell of Nova Scotia has an excellent reputation as a lawyer, professor and judge. Justice Roland Ritchie of Halifax was among the longestserving members of the bench in the last century. Justice Gerard LaForest of Grand Falls, New Brunswick, took part in many of the landmark decisions that came down in the years following the entrenchment of the Charter of Rights and Freedoms. There should be no questions of competence in the conversation about regional balance.

The putative reason for making the selection process countrywide is to ensure a more diverse court by opening the position to more candidates. Diversity may be a worthy goal, but one form may come at the expense of another. A diversity that excludes the voice of Atlantic Canada is not diversity at all. Moreover, the sudden requirement to make bilingualism a qualification risks making the high court less diverse, since the pool of eligible candidates will shrink. Newfoundland & Labrador has reportedly been passed over entirely because no candidate is sufficiently bilingual.

Regional considerations abound in the makeup of all key political institutions — i.e. the House of Commons, the Senate, the judiciary and the federal cabinet — because of the spirit of regional compromise that animated Confederation. Two-thirds of the seats in the Supreme Court already go to Quebec and Ontario; it would be unjust to afford those provinces any additional seats. Confederation is a bargain that includes all provinces.

There is no need for improvements in the process to come at the cost of a voice for Atlantic Canada. While admittedly different than the regional interests that parliamentarians represent, top judges should come from across the country so as to bring a proper understanding of regional context to their position and judgments. A key facet of the court is to rule on matters of national implication. The view from the high court cannot be truly national while excluding an entire region of the country.

Many of Atlantic Canada’s 32 Members of Parliament carry substantial voices within the governing party, including at the level of cabinet. So do the four Atlantic premiers. It is incumbent upon them to resist relinquishing an Atlantic regional seat on the bench.