By Richard Forbes.
Opening the Globe and Mail last week, readers might have been startled over their morning coffee to find an op-ed from their prime minister – a rare treat these days. It’s been years since a prime minister’s words have graced the centre fold of a newspaper and the message he had in store for us, like any good announcement, told us a story, a new future for Canadian jurisprudence – and it’s a story worth believing in.
Starting immediately, Trudeau writes, the Supreme Court will be subject to a democratic revitalization. The long awaited details of his new process for selecting supreme court justices had finally arrived; we soon learnt the nomination of Supreme Court justices would no longer be a smoky backroom affair, but rather, nominees would be allowed to self-nominate and the nominees, the short list for those under active consideration, would be composed by an independent advisory board rather than the Prime Minister’s Office (PMO). That board will sit seven members that includes reputable judges, lawyers and legal scholars, chaired by none other than a former prime minister, Kim Campbell.
This process received some well deserved praise for rolling back the PMO’s role in deciding court nominees. As a matter of transparency and non-partisanship, pushing the nomination of justices out of the backroom and into the capable minds of independent experts is a step forward for Canada and a significant departure from the poisonous partisanship of American politics we’ve seen south of the border where politics has virtually transformed the Supreme Court into a wrestling match. The nomination of justices has become a partisan ritual there; the credibility of justices and their rulings is as limited as the faith between Democrats and Republicans.
And that’s what makes this a difficult column to write because as much as the announcement was impressive, it wasn’t perfect and it isn’t undeserving of rebuke.
Last Tuesday, you see, the PMO confirmed that the new process meant that it was no longer guaranteed that Atlantic Canada would have a seat on the Supreme Court. “Applications are being accepted from across Canada,” the PMO writes, “in order to allow for a selection process that ensures outstanding individuals are considered for appointment to the Supreme Court of Canada.”
But the justice who is retiring, Justice Thomas Cromwell, is from Nova Scotia, he’s Atlantic Canada’s justice on the bench. Traditionally, the Supreme Court is made of three justices from Ontario, three from Quebec, one from BC, one from the prairies, and one from the Atlantic provinces (typically the Maritimes. Sorry Newfoundland.) Not replacing Cromwell with another justice from the Atlantic provinces would leave Atlantic Canada effectively unrepresented on the Supreme Court for the first time in the one hundred forty years of the court’s history – and the reasons for leaving one region of the country unrepresented in its highest court haven’t been particularly convincing to say the least.
Sure, sure you say, but ‘the prime minister’s new criteria requires all nominees be bilingual.’ Hah! Take that Monsieur…. le… le… Blogueur! Stuff it! Which would be a lovely excuse for not nominating a justice from Atlantic Canada if there weren’t some very qualified nominees for the Supreme Court from Atlantic Canada that were bilingual, like jurists, Michael MacDonald, Ernest Drapeau and Marc Richard – the former from Nova Scotia, the latter two, Acadians from New Brunswick.
No, the requirement for bilingualism for Supreme Court justices in Trudeau’s new nomination policy may be severely limiting with regards to who can be nominated from Atlantic Canada, but it is not an excuse to not choose an Atlantic nominee to replace an Atlantic justice. Not when there’s sufficient depth on the bench with the language necessary skills to choose a bilingual justice from out east.
Granted, the PMO’s mandate letter for the advisory board stresses the importance of regional representation on the Supreme Court: “consider the custom of regional representation on the Court as being one of the factors to be taken into consideration,” they write, adding that the short list of nominees should include candidates from Atlantic Canada. But it still doesn’t change the fact that the Prime Minister’s Office has decided bilingualism is mandatory, supporting “the Government of Canada’s intent to achieve a Supreme Court of Canada that is gender-balanced” is a must, but having a representative of somewhere east of the Saint Lawrence would be eh, nice.
A truly gender-balanced court isn’t even possible – and the prime minister ought to know that, given his number, as we’ve been told, is nine. Nine. It’s a physical impossibility for a court of nine to be split perfectly even. Just because the government intends to do something, doesn’t make it possible. The rules of arithmetic won’t be rewritten because the prime minister decides to prioritize language and gender over regionalism, and even if the prime minister’s nomination process could be fulfilled, it’s not like there aren’t female, bilingual justices from the Atlantic provinces (see justices, Jolène Richard, Lucie LaVigne, Laura Mennie – the latter from Newfoundland.)
And that latter point is what makes this identity politics on the part of the PMO so detestable, it’s turned the debate surrounding the nomination of justices into a values debate – bilingualism versus federalism, feminism versus federalism – it’s forced us to consider what’s more important to us. But this shouldn’t be a contest of values. Gender equality, federalism and bilingualism are all equal considerations and all equal requisites; the constitutional and social fabric of Canada is rooted in equality and national unity – and a failure to respect that in the nomination of its highest court is not a notion that should even be entertained. By saying one priority is negotiable but the others aren’t, the PMO has pushed us to debate the worthiness of the priorities against each other as if they’re incompatible, when they aren’t. Nor should they be. Dropping one factor of representation to meet another isn’t the way we advance equality or national unity.
Perhaps this is the government’s attempt to arrange a new system, where the seat is shared, switching back and forth, between the Atlantic provinces and the territories; that might be a system worth supporting, but until a better justification for dropping the guarantee of regional representation is given than what we’d heard (which isn’t much), there’s still four provinces in need of an apology and a retraction from Ottawa.
It’s simply disrespectful to the Atlantic provinces to suggest their place in the Supreme Court is no longer guaranteed, not when that’s the only region of Canada that the prime minister would dare suggest might not deserve a Supreme Court justice. Is he going to tell Quebec, ‘I’m not sure you need three justices…’? How’ll about Ontario? And does BC really need a seat? Of course he wouldn’t say that. It would be outrageous. The Atlantic provinces are ‘small’ – that’s the only reason why Trudeau and his office would dare suggest they don’t deserve representation, but that kind of thinking doesn’t respect the constitutional status of the Atlantic provinces as provinces; it doesn’t respect their history in Canada and it certainly doesn’t respect the customs and conventions of the Supreme Court of Canada.
The independent advisory board have been instructed to submit a list of three to five candidates to replace Justice Cromwell by September 23 2016.
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