By Richard Forbes.

MP Rob Nicholson’s opposition motion may have backfired yesterday, spectacularly so even. The Conservative submitted a motion to the House to goad the Liberals over their Supreme Court nomination. It reads:

That the House call on the government to respect the custom of regional representation when making appointments to the Supreme Court of Canada and, in particular, when replacing the retiring Justice Thomas Cromwell, who is Atlantic Canada’s representative on the Supreme Court.

Opposition motions are typically an opportunity for the opposition to force the government to vote against a seemingly reasonable proposition because said government has tied itself in knots to commit to something only awkwardly defensible.

But there’s only one problem: the Liberals didn’t take the bait this time. Rather, the Liberals, including Prime Minister Justin Trudeau, voted for the motion, which means the motion was carried unanimously, 270-0 (since the NDP also supported the motion.)

In that sense, it’s a serious miscalculation on the part of the Tories, who’ve spent the past few weeks in and out of the House of Commons accusing the government of insulting Atlantic Canadians. Now it looks as though that focus was all for naught: the Liberals intend to replace Justice Cromwell with another justice from Atlantic Canada.

For the Conservatives, it means they’ve wasted a lot of their national attention in op-eds and earned media, talking about an issue that was never actually an issue for a seat that was never really in jeopardy. Perhaps, the opportunity to drive a wedge between the Trudeau Liberals and the Atlantic provinces (where the Liberals won big last fall) was too tempting for the opposition, who’ve spent an overwhelming amount of their time calling the Liberals out for something they hadn’t committed to doing yet.

The Supreme Court of Canada building, where the new justice will work alongside the remaining eight justices. (Photo: Sean Kilpatrick.)

This ‘crisis’ of sorts began with the prime minister’s suggestion in a Globe and Mail op-ed in August that the new Supreme Court justice might not hail from Atlantic Canada. Regional representation has been a longstanding feature of the Supreme Court; traditionally, at least one sitting justice has represented the Atlantic provinces (usually from New Brunswick.) At times, that expectation has frustrated the government’s own efforts to improve minority representation and bilingualism on the nation’s top bench given the limited pool of senior Atlantic justices.

However, Trudeau’s own instructions to the independent advisory board were clear: although regional representation was just one factor worth considering, at least one of the nominees selected still ought to be from Atlantic Canada.

By voting for the opposition’s motion yesterday, Trudeau and the rest of the government have all but confirmed that the new Supreme Court justice has been chosen and whoever they are, they’re almost surely from Atlantic Canada. After all, it would carry too great of a risk to Trudeau’s administration to have supported such a motion before his nominee was selected and their status in Atlantic Canada was assured.

The independent advisory board was tasked with the decision of selecting 3-5 ‘qualified and functionally bilingual candidates that includes candidates from Atlantic Canada’ by September 23, which means provided that board didn’t reach its conclusions earlier than expected the government has decided its nominee in the span of only four days.

Meeting those conditions nevertheless will be a difficult challenge. It’ll be interesting to see who it is that’s ultimately nominated.

Justice Lucie LaVigne, especially, stands as a distinct possibility. LaVigne, described by the Globe and Mail as ‘well respected,’ has served in New Brunswick’s superior trial court, the New Brunswick Court of Queen’s Bench, after her appointment in 2001 by then Prime Minister Jean Chrétien. Bilingual, LaVinge is a member of the l’Association des Juristes d’ Expression Française du Nouveau Brunswick; she’s also presided over a local women’s shelter and has been, according to the province’s news release, a ‘strong advocate for women, education and continued professional development in the legal profession.’

To his credit, Rob Nicholson, whose motion was adopted unanimously, suggests it was ultimately he and other backbenchers that held the government to the mark, adding ‘I think [this vote] means [Trudeau] should be looking at making an Atlantic Canada appointment, because that’s the will of the people.’ In light of that, the Atlantic provinces can rest easy tonight: thanks in part to the backbenchers and critics of the world, their time-honoured seat on the bench appears to be safe for another generation.


Richard Forbes studied Political Science and Philosophy at the University of Waterloo. Winner of the Peter Woolstencroft Prize in Canadian Politics (2015).

When asked (usually by confused old women) what ‘one does exactly’ with said degree, he laughs and politely declines to answer. A perfect night for him involves a cup of Lady Grey, writing and a re-run of Yes Minister.

Twitter: @richardjforbes


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