Monthly Archives: February 2014

Who sits on the Supreme Court as a window on the decline of federalism

Supreme Court of Canada building (Source: Creative Commons)

Supreme Court of Canada building (Source: Creative Commons)

Who should sit on the highest court in the land and by what process should these people be chosen?  For some, these may be somewhat esoteric questions.  Yet given the enormous power and influence of the courts, particularly in a country like Canada where the Charter of Rights and Freedoms leads to legal challenges of a wide range of government decisions, these who and how questions are actually very important.

Recently these questions were front and centre as the Supreme Court of Canada heard arguments on the constitutionality of the appointment of Marc Nadon to the same Supreme Court.  As Andrew Coyne and others have pointed out, the very fact that the Court has been asked to rule on the constitutional merits of the Nadon appointment is awkward, to say the least.

With one exception, I will leave it to others to debate the question of “who” and whether Marc Nadon is an appropriate choice.  Suffice to say that many were surprised by his appointment and he was not on the short list of those who handicap nominations to the Supreme Court.  The exception that I am interested in is the widely accepted idea that three judges on the highest court “should be from the province of Quebec”.  I put this characteristic in quotation marks because what it means is subject to interpretation.

The Supreme Court Act provides in Section 6 that “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province”.  Why?  Much of the commentary on the controversy around the Nadon appointment emphasize the fact that at least part of the rationale for this section is that it is critical that the Supreme Court of Canada have expertise in the Quebec civil code which addresses “all of the basic provisions that govern life in society, namely the relationships among citizens and the relationships between people and property”, including for example, family and property law.

quebec flagHowever, I think there are other reasons why at least three of the judges must be from Quebec.  While it is not specified in legislation there is a very strong constitutional convention in Canada that, taken together, the nine judges of the Supreme Court of Canada should “represent” all of the “regions” of Canada.  I put quotation marks around the notions of representation and regions because there is some debate as to what these terms mean.  For the moment suffice to say that all would agree that when it comes to regional representation on the Supreme Court of Canada, Quebec is a region unto itself.  Moreover, in most of Canada and especially in Ontario where most of our pundits live and work, the view seems to be that when we say that a judge on the court represents a given province or region we are not saying that they are to be delegates and seek to defend and advance the interests of their province or region.  Rather, the convention provides for representation in a narrower sense.  We want judges from across Canada so that the Supreme Court has represented on it, the geographical diversity of Canada.  In Quebec, however, there are those who believe that the judges from Quebec should be able to defend the interests of Quebec, assuming that a province can be said to have a discernable and coherent “interest”.

However, all of this is preliminary to my main concern which is “how” judges are appointed.  Simply put these are decisions of the Prime MInister and the Minister of Justice.  Prime Minister Harper has introduced a slight innovation whereby after the decision has been made, but before it is finalized, the candidate appears before an ad hoc committee of the House of Commons and relatively benign questions are asked.  We learn relatively little.

More importantly, the process does little to address the role of justice of the high court as representatives of regions.  All we have is the assurance of the Prime MInister and the Minister of Justice that the candidate will be able to serve as an able representative of the region she or he is from.  Again, they are not asked to be delegates, only to enjoy a degree of legitimacy as someone who understands “their” region.  Alas, Mr. Justice Nadon has not been deemed an able or particularly legitimate representative of Quebec.  While much of the commentary has focused on his ability to understand and judge civil law cases, my concern is linked but broader.  For me, the legitimacy of the Supreme Court of Canada lies in the extent to which citizens believe that court judgements will be fair.  And in Canada, a country with real and often sharp disagreements over region and language and culture, this legitimacy is defined by more than sheer intellectual or legal competence.

If the Supreme Court of Canada rules that Mr. Justice Nadon’s appointment is, in fact, constitutional, that is not the same thing as saying that it will deemed legitimate.  At some point the Court, of which Mr. Nadon is a member, may well be asked to rule on a regionally or linguistically divisive issue.  The judgement may well not enjoy the support and legitimacy in Quebec, precisely because of the controversy surrounding the appointment of Justice Nadon.

Source: McCord Museum

Source: McCord Museum

It does not have to be this way.  In the not so distant past Canada was on the cusp of amending the procedure by which members of the Supreme Court of Canada are appointed.  Precisely to to reflect the regional and linguistic diversity of Canada, both the Meech Lake and Charlottetown accords included provisions to give provincial governments a role in appointments to the high court.  Had the Harper government been required to publicly and formally consult with the Quebec government, it is almost certain that the person nominated would not have been so controversial with the risk of undermining the legitimacy of future decisions by the Supreme Court of Canada.

Changes to the process of appointing judges to the Supreme Court of Canada do not require constitutional amendments.  A future Prime Minister could quite easily announce that she or he would formally and publicly consult with the provinces before making appointments to the Court.  Of course, this would reflect a different and older conception of what Canada is about.  But the prospect of a victory by the Parti Québécois in the next Quebec election is a reminder that Canada and its constitution are yes, about rights, but they are also about regional and linguistic diversity and the federalism instituted to reflect this reality.