Calkins Currently: Supreme Court of Canada appointment process will lead to Western alienation

On August 2, 2016 the federal government announced its plan to reform the way justices are appointed to the Supreme Court.

On August 2, 2016 the federal government announced its plan to reform the way justices are appointed to the Supreme Court. Prime Minister, Justin Trudeau, stated that the new appointment process will be ‘open, transparent and will set a higher standard for accountability’. However, it seems that the Trudeau government made this decision in the absence of forethought.

Under the new appointment process, an “independent and non-partisan advisory board”, chaired by former Prime Minister Kim Campbell, will recommend candidates for the Supreme Court.

The seven member Advisory Board will consist of: three members nominated by the Minister of Justice, made up of at least two non-lawyers; two practicing members of the bar nominated by the Canadian Bar Association and the Federation of Law Societies of Canada, respectively; a legal scholar nominated by the Canadian Council of Law Deans; and a retired superior court judge nominated by the Canadian Judicial Council.

The Advisory Board has until September 23, 2016 to submit, “a list of three to five qualified and functionally bilingual candidates that includes candidates from Atlantic Canada”, for consideration by the PM.

Under the Supreme Court Act, bilingualism is not a mandatory requirement for appointment to Canada’s highest court. Comprehension of both official languages is just one of the criteria considered by judicial advisory committees when assessing candidates. Supreme Court judges are exempted from having to understand proceedings equally well in English and French without the use of an interpreter. Furthermore, Canadians are already able to communicate with the Supreme Court in both English and French, and simultaneous translation is available in certain circumstances.

The decision to include bilingualism as a determinative criterion appears to have been made without knowing how many Canadian lawyers, coast to coast to coast, would qualify under the new criteria. Currently, the majority of provincial law societies do not collect or track the French language proficiency of their bar. Equally, Statistics Canada does not collect language data by occupation: i.e. number of legal professionals and proportion of the population reporting French by selected language characteristic.

According to the 2011 Census 30.1 per cent of Canadians reported being able to conduct a conversation in French. Compared to the national figure, the proportion of people who reported being able to conduct a conversation in French in Alberta was only 6.6 per cent; in B.C. it was 6.9 per cent; in Saskatchewan it was 4.6 per cent; and in Manitoba it was 8.8 per cent. Additionally, the data shows that over the last 30 years French proficiency in Canada has been in steady decline.

If functional bilingualism becomes a determinative criterion for appointment to the Supreme Court qualified candidates may be wrongfully passed over. This could very well lead to Western alienation on the bench. Western alienation has been a cornerstone of Liberal policy going back to the days of Trudeau Sr. and ensures that Western values are excluded from the national dialogue.

In March of this year, Justice Cromwell, of Nova Scotia, announced he will be retiring from the Supreme Court effective September 1st, 2016. According to several news reports the Government has been trying to find a replacement from Atlantic Canada but hasn’t been able to find a candidate that is bilingual and checks the diversity box. While my Conservative Caucus colleagues and I where in Halifax earlier this week we heard loud and clear from Atlantic Canadians they are not happy with the Prime Ministers new process.

In his Mandate letter to the Chair, the Prime Minister sets out the criteria that should guide the Board in making its selections. For one, the appointment process seems to do away with the long standing convention of regional representation. The Prime Minister asks the Advisory Board to “consider” the custom of regional representation on the Court as just one of the factors to be considered.

The Supreme Court Act, imposes very few constraints on who can be appointed to the SCC; it requires that candidates have either been a judge of a superior court of a province or a barrister with at least ten years of call to the bar of a province, and that three of the nine judges must be selected from the Province of Quebec. According to convention, the remaining six are to be distributed along provincial lines; three judges from Ontario, two from Western Canada, and one from Atlantic Canada.

By subordinating the regional requirement that has guided the Supreme Court selection process since it was established, regional diversity has been relegated to a secondary consideration. As a result, this new process may very well result in Atlantic Canada losing its designated seat on the Supreme Court.

In fact, according to a CBC news article, Justin Trudeau is reported to have said that “he would be OK with the country’s top court having no judge coming from east of Quebec”. If he is willing to turn his back on the Atlantic Provinces, which overwhelmingly supported the Liberals in the last election, how long do you think it will be before the Mr. Trudeau turns his back on the West?

Furthermore, in evaluating candidates, the Prime Minister’s letter advises that the qualifications contained in the Supreme Court Act should serve as a guide supplemented by a list of additional “assessment criteria”, enclosed by the PM. Candidates will now be evaluated according to a secret list of “assessment criteria” drawn up by the Prime Minister’s office.

This list has not been made available to the Canadian public. The letter goes on to state that all information about the candidates and the Advisory Board’s deliberations and proceedings is to be kept confidential both during and after the selection process has concluded. This is not at all in line with a process characterized as open and transparent.

Canadians should be troubled by these changes. In the next two years Trudeau will have the opportunity to fill two seats on the bench: Justice Cromwell from Atlantic Canada and Chief Justice McLachlin from B.C. who reaches retirement age in 2018. Instead of selecting candidates based on their professional competence, candidates who may not fit some the government’s other, less essential, criteria for sitting on Canada’s top court, the Government has gone ahead and re-written the rules so that it can get the person it wants not the person who is most qualified to deal with legal the complexities that come before our country’s top Court.

Any new appointment process for the Supreme Court should be based on legal knowledge and respect Convention. Canadians deserve an open, transparent judicial appointment process. Unfortunately the Trudeau’s appointment process is anything but open and transparent.

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