When he announced that he was putting into place a new appointment process for vacancies on the Supreme Court of Canada, Justin Trudeau never made any mention of the fact that the pending vacancies on the current bench is coming from Atlantic Canada's traditional seat, nor did he and Justice Minister Jody Wilson-Raybould make any assurances that this was one of their important considerations when it comes to finding a new justice. That omission is a problem that they seem intent on ignoring.
There is a lot to complain about when it comes to this new independent selection panel process, some more legitimate than others. Complaints of secrecy ignore the history of selections, and that the prime minister does the appointing ignores the fact that we live in a system of responsible government. Likewise, people praising up and down that this is the most non-partisan process ever should also give their heads a shake because partisan judges has not really been a problem in this country. We have no Antonin Scalias in this country, and even judges that appear on the outset to have particular left-or-right-leaning biases tend to moderate to fit the culture of the Supreme Court. A move toward the more American institution it is not, and lest we forget that Stephen Harper appointed seven of the nine justices on the current court with no ill-effect particularly given how often they would rebuke his policies, because the judicial culture in this country is not a partisan one.
That the process closely mirrors the one that this government put into place for Senate vacancies is more troublesome, particularly given the focus that it puts on self-nominations. Formerly, the bulk of the consultation was done with law societies across the country, but there seems to be far less emphasis on this in the new process. One gets that they are trying to broaden their scope in order to get more diversity on the bench, but as with the Senate process, I see little benefit and more detriment to the self-nomination process that they have insisted upon including. One only has to look at the pair of narcissistic clowns that Power & Politics interviewed as Senate hopefuls a couple of weeks ago to show why this tends to be a very bad idea, unless the point of self-nominations is to automatically eliminate those individuals for their outsized egos. I have spoken to several of our current Supreme Court of Canada justices, and the common thing I've found is that none of them ever expected to be nominated, and that lends a certain humbleness to them.
The complaint that this process is ad hoc and not put into legislation, as Thomas Mulcair so tartly suggested at the special justice committee meeting last week, is another one about this process that has no grounds. Where this is especially a problematic suggestion is that Mulcair and the NDP have been pressing for years to have bilingualism made a legislative requirement for all Supreme Court justices, never mind the fact that changing the selection criteria for the Court in legislation would require a constitutional amendment that requires the unanimous consent of the provinces to enact. The Court spelled this out in the Nadon Reference decision, and yet the NDP remains precious about this bill they've failed to adopt for several parliaments in a row. As well, trying to legislate restrictions on the Crown prerogatives of a government, like this would be, causes more problems than it solves. While it doesn't bind future prime ministers to this process or selection criteria, that is not a bad thing, because our system should have enough flexibility to adapt.
And now we come to the biggest complaint of all, which is the loss of regional representation on the bench. Part of the problem with the way that this has been spoken of to date is two-fold that it's seen as "representation" in a vague and fuzzy sense of the word, more akin to a point of view (kind of like how no two people have the same definition of what "representation" is supposed to mean when it comes to the job of an MP), and the other is this assumption that because the Liberals currently have a lock on the region both federally and provincially, that it somehow given them a free pass from criticism, as though all criticism happens out in the open.
What we should be complaining about is not that there is a loss of Atlantic representation, but that this move is a violation of the federalist principle that has been built into our constitutional order, which the Supreme Court itself has repeatedly stressed and reinforced time and again, particularly when it comes to jurisprudence about constitutional amendments. Federalism matters in our constitution, both written and unwritten, and losing that in the Supreme Court in order to satisfy a desire for other demographic diversity particularly the desire for a bilingual Indigenous woman to fill that position (if everyone had their druthers), seems capricious given that finding one from Atlantic Canada seems like a slim chance. But why federalism matters more than other demography on the Supreme Court is because it is the place where the country needs to turn to in order to resolve jurisdictional disputes in an impartial manner. The allocation of seats three from Ontario, three from Quebec, two from the West and one from Atlantic Canada (Quebec's three seats are legislated because they have a civil code rather than common law in that province) has been that reflection of federalism, and that it is convention should not make it less important than a legislated allocation. After all, our entire system of responsible government is bound by convention. Yet the government diminishes this by calling a "custom" to justify their decision.
An Atlantic seat should not be a "nice to have," but an essential feature. We are a federation, and our top court needs to reflect that principle, regardless of its other demographic challenges.
