Does Chief Justice McLachlin’s successor have to be from Quebec?

Canadian political discourse is often plagued by historical amnesia. Nowhere is this more obvious than in the public discourse surrounding the appointment of the next Chief Justice of the Supreme Court of Canada.

Last month, Chief Justice Beverley McLachlin announced that she would be leaving the court in December, following a distinguished tenure at the helm. Commentary on the appointment of her successor has clung to the received wisdom that her successor must be appointed from Quebec.

This requirement is said to derive from a tradition, or an even a constitutional convention, that Canada’s top legal job rotates between a civil law French Canadian judge from Quebec and a common law judge from the Rest of Canada. Indeed, the Barreau de Montréal has penned a letter to the prime minister, calling on him to honour this tradition in choosing the next chief justice.

The case for Quebec representation on the court is obvious. The Supreme Court hears cases in both English and French and in both the common law and civil law traditions. From a functional perspective, it makes sense for the institution to be led by a judge from Quebec.

There is also symbolic value in maintaining the legitimacy of the Supreme Court as an institution that sits atop both the common law and civil law systems. These considerations underlie the requirement that three of the nine judges on the court be from Quebec. In the Nadon reference, the Supreme Court ruled that proper representation of Quebec was a matter of constitutional significance.

But there are also drawbacks to clinging to a strict rotation.

The pool of suitable candidates is small to begin with. In choosing a chief justice, a candidate must possess tremendous legal skill and administrative ability. There is also powerful symbolism in the person who holds the office. Further constraints on the prime minister’s choice could undermine other forms of representation, such as gender and racial diversity.

A strict rotation requirement would preclude the possibility of appointing Canada’s first Indigenous chief justice. It would also limit the possibility of bold choices, such as George W. Bush’s elevation of John Roberts directly to the role of Chief Justice of the United States.

Given these potential drawbacks, you would think the historical case for a rotating chief justiceship must be pretty strong. The thing is, there is little to no historical evidence to support it.

Throughout most of the history of the Supreme Court (with a few exceptions), the chief justiceship was passed on to the most senior sitting judge on the court. From 1875-1944, there was only one French Canadian chief justice, HenriElzéar Taschereau (1902-1906).

From 1944-1973, the position of chief justice did alternate Quebec Francophone and Rest of Canada Anglophone. But as Philip Girard, a legal historian at Osgoode Hall Law School has observed, this may simply have been a coincidence: each of the chief justices during this period also happened to be the most senior judge on the bench.

Bora Laskin’s appointment to the chief justiceship by Pierre Trudeau in1973 was controversial at the time precisely because of his lack of seniority (he was the second most junior judge on the court).

Since breaking with the seniority tradition in 1973, the appointees have been anglophone (Laskin), anglophone (Brian Dickson), French Canadian (Antonio Lamer) and anglophone (Beverley McLachlin). This is very thin gruel for a constitutional convention.

Popular wisdom on this point may be so well entrenched that there would be a political cost to departing from it when Prime Minister Trudeau chooses the next chief justice.

And perhaps the time has come to move toward a convention of rotating of the chief justice spot. But that decision should be based on a considered weighing of the pros and cons of such a policy on its merits, not treated as a foregone conclusion based on a phantom tradition that never was.

Throughout most of the history of the Supreme Court (with a few exceptions), the chief justiceship was passed on to the most senior sitting judge on the court