Prime Minister Justin Trudeau and Quebec Justice Minister Sonia LeBel have announced the creation of a special appointment process for Quebec judges on the Supreme Court.
It is the first time since the court was established in 1875 that a province has had its own appointment process. Quebec is the only province that by law has three seats reserved for it, a reflection of its separate, civil legal code. By convention, three seats are for Ontario, two for the West and one for Atlantic Canada.
The process will be in place for the replacement of Justice Clément Gascon of Montreal, who announced his retirement last month, effective Sept. 15. The federal Liberals are looking to fill the vacancy before an election just five months away.
The independent advisory board that drafts a shortlist of three to five names for the PM’s consideration will now be drawn mostly from Quebec, and will include two members (one of whom is a non-lawyer) named by the Quebec government.
And the Quebec justice minister will have the unprecedented opportunity to make a recommendation to the prime minister – non-binding – on the next Quebec judge. The recommendation is to come from the panel’s shortlist.
The country’s top court has long been derided in Quebec as a Tower of Pisa – leaning in one direction only, towards Ottawa. But while the move may strengthen the court’s perceived legitimacy in Quebec and shield it from criticism by nationalists, it may open the federal government to complaints of special treatment.
Saskatchewan Justice Minister Don Morgan was critical for just that reason.
“It’s just one more example of the federal government making a special deal with Quebec that isn’t available to the other provinces,” he said in an e-mail to The Globe and Mail.
“If the federal government were prepared to make similar arrangements with other provinces, we would support that. I would note that there has not been a Saskatchewan judge appointed to the Supreme Court since 1973.”
Ms. LeBel, who is also the province’s Minister Responsible for Canadian Relations, called the memorandum of understanding announced on Wednesday a historic moment. She said that for the first time, the Quebec government will take a direct role in the appointment of a Supreme Court judge. Mr. Trudeau said on his website that he is confident only the most exceptional individuals will be recommended.
Initial reaction from Quebec legal observers was supportive on Wednesday.
“I would say it’s a decent compromise,” Jean-François Gaudreault-DesBiens, a law professor at the University of Montreal, said in an interview.
Traditionally, he said, Quebec has demanded that it directly appoint judges to the three Quebec seats. That, he said, doesn’t make sense, because judges do not “represent” a province or government, for reasons of judicial independence.
Many nationalists, he said, and Quebec premiers of nationalist leanings, have invoked premier Maurice Duplessis’s line about the Supreme Court being a Tower of Pisa. That came after the court found ways in the 1950s to invalidate his government’s laws limiting religious freedom and other fundamental rights.
“In terms of the legitimacy of Supreme Court decisions in Quebec, it can only be good,” he said.
McGill University law dean Robert Leckey said there is already an asymmetry around the court, because Quebec is the only province with legislatively reserved seats. He called the move consistent with a Supreme Court ruling setting out the importance of a deep understanding of Quebec on that court, in a case involving prime minister Stephen Harper’s failed appointment of Justice Marc Nadon in 2013.
“It doesn’t seem to me to raise any problems,” he said. “It’s clearly politically attractive to many in Quebec. It shows a sensitivity to Quebec that differentiates the current government’s approach radically from what happened in Stephen Harper’s day.”
Joanna Baron, executive director of the Calgary-based Canadian Constitution Foundation, said a future government would be free to modify the Quebec-only process.
She said she supports the new process and cited Mr. Harper’s appointment of Justice Nadon reflecting “an alienation of the province from the process. I think to the extent there’s more active consultation with members of the Quebec legal community, it’s very constructive.”
Federal Conservative justice critic Lisa Raitt said the process looks attractive, but she said no process should be allowed to get underway until an investigation is held into a leak of information related to the candidacy in the last appointment process of Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench.
NDP justice critic Tracey Ramsey applauded the new process. “We see it as a way for Quebec to remain distinct and have a say in the who will be serving” in the Quebec spots on the Supreme Court.
The eight-member independent panel, like the previous seven-member panels created by the current government for its two Supreme Court appointments thus far, will be chaired by former prime minister Kim Campbell.