The federal government’s new selection process for Supreme Court of Canada justices means that Atlantic Canada will lose its assured seat on the court.
This decision violates a long-standing constitutional convention: to gain the consent of the members of Confederation, the provinces. It favours one form of diversity (bilingualism, for example) over others and could exclude the Atlantic region from representation.
There are elements that may prove beneficial: A more diverse bench could lead to improvements in decision-making. More robust parliamentary scrutiny, similar to the American model, is welcome. While the final say will remain with the prime minister, an arms-length committee to shortlist candidates brings rigour to the process.
These changes aim for a more open process but they cannot come at the cost of regional balance.
Regional representation has been a staple of institutional development since the founding of the Dominion, including on the Supreme Court since its inception in 1875. Traditionally, the West got two seats in the court, Ontario and Quebec three each and Atlantic Canada one.
This 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 longest-serving members of the bench in the last century. Justice Gerard LaForest of Grand Falls, N.B., took part in many landmark decisions 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 and Labrador has reportedly been passed over because no candidate is sufficiently bilingual.
Regional considerations abound in the makeup of all key political institutions – the House of Commons, the Senate, the judiciary and the federal cabinet — because that spirit animated Confederation. Two-thirds of Supreme Court seats already go to Quebec and Ontario; it would be unjust to afford those provinces any additional seats. Canada is a bargain that includes all provinces.
Unlike Quebec’s guarantee of three seats on the court, Atlantic Canada’s expectation of one is not enshrined in written law. But while it is true that conventions don’t carry the directness and simplicity of a statutory clause, they still form a basis of legitimate constitutional reasoning, even for the court itself.
For example, the court ruled in 2014 that Federal Court of Appeal Justice Marc Nadon was not eligible to sit on the high bench. Their basis for interpreting eligibility within Section 6 of the Supreme Court Act was the convention of naming Quebec appointees directly from Quebec courts. Thus, his appointment was ultimately blocked because of a constitutional convention.
It is hard to square the deference for convention in the Nadon decision with the disregard for convention here. Long-standing conventions can be given the weight of Constitution itself, triggering amendment requirements. Many conventions have been given special weight in legal considerations. So an Atlantic court challenge to this new process is likely.
Improvements in the process need not come at the cost of a voice for Atlantic Canada. While admittedly different than the regional interests of parliamentarians, top judges should come from across the country to bring regional context to their 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.
Many of Atlantic Canada’s 32 members of Parliament carry substantial voices within the governing party, including in cabinet. So do the four Atlantic premiers. They must resist relinquishing an Atlantic regional seat on the bench.
Alex Whalen is a graduate of Dalhousie’s Schulich School of Law.