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The Main Courtroom at the Supreme Court of Canada is pictured in Ottawa, on Nov. 28, 2022.Sean Kilpatrick/The Canadian Press

Supreme Court Chief Justice Richard Wagner has a choice to make heading into a major federalism case next week: sit with eight judges and risk a tie, or designate a judge to sit out, which could influence the result.

The Chief Justice faces this quandary because the nine-member court is short one judge, after a physical altercation in an Arizona hotel involving Justice Russell Brown. Chief Justice Wagner placed the 57-year-old on paid leave after the Canadian Judicial Council, a disciplinary body, informed him it had received a complaint about the incident.

The federalism case, which will be heard on Tuesday and Wednesday, focuses on a 2019 environmental law that gives Ottawa the authority to regulate industrial projects with effects that go beyond provincial borders, such as the production of greenhouse gases that warm the planet.

The Alberta government calls that federal law, known as the Impact Assessment Act, an intrusion into virtually every sector of the province’s economy. The Alberta Court of Appeal said the law is an existential threat to Canada, and ruled 4-1 that it violated the 1867 Constitution, which sets out the responsibilities of Ottawa and the provinces. The federal government appealed that decision to the Supreme Court.

The question of whether to sit with seven judges or eight is no mere technicality. If the fear of a tie leads the court to go ahead with seven judges, the choice of whom to leave out could tilt the ultimate judgment.

“Attention will be paid to who is taken off the bench – an unfortunate outcome in that the legitimacy of the court depends, in part at least, on the appearance of not stacking the court one way or the other,” said Margot Young, a law professor at the University of British Columbia’s Allard School of Law.

She was among four legal observers interviewed by The Globe and Mail who favoured sitting with eight judges. Two others favoured seven.

“It is better to risk a hung court and a 4-4 tie than look political,” said Peter Russell, an author and professor emeritus of political science at the University of Toronto.

Witness to altercation involving Justice Russell Brown says he followed her to hotel room

James Phillips, a University of Toronto law professor and editor-in-chief of the Osgoode Society for Canadian Legal History, said seven judges would avoid a tie and achieve finality in the case.

“My guess is that Wagner will choose a judge that he’s almost certain will go with the federal government,” he added. Prof. Phillips views that as a fair approach, because the absent Justice Brown was universally expected to have been on the other side.

Either way, how the court resolves the question has consequences for the legacy of the Chief Justice, the court itself – and the country.

“It’s a legally very significant case, but obviously the political reverberations are huge, too, at a moment of great tension between the Alberta government and the federal government,” Osgoode Hall law professor Bruce Ryder said. (He favours seven.)

Major constitutional cases are usually heard by the full court, but the court is permitted to sit as few as five members. In cases where the court chooses not to use its full bench, the chief justice picks who sits, but the process by which he does so is opaque. Retired Supreme Court judge John Major, who served on the court from 1992 to 2005, said the chief justice’s authority is far from absolute.

All judges have the right to sit on any and all cases, he told The Globe. When he was a judge, then-chief justice Antonio Lamer told him that the chief justice dealt with administration of the court, “but in the legal work there was no difference. You could write on what you want and you could sit on what you want.”

The judges are not at the mercy of the chief justice’s assignments, but in practice they tend not to voice objections when the chief justice leaves them off a panel hearing a case. “It works the other way: ‘How do I get off?’” Mr. Major said. “You don’t see people fighting to get on.”

The court reflects regional diversity. By law, Quebec has three judges; by tradition, Ontario has three, Western Canada two and Atlantic Canada one.

To exclude a Quebec judge from a case involving questions of provincial autonomy would be especially fraught. “You can’t exclude one Quebec judge when there are only three,” said Daniel Turp, a University of Montreal law professor, who favours eight.

In 2019, when the Supreme Court upheld Ottawa’s authority to impose a carbon tax on the provinces, by a count of 6-3, Justice Brown dissented. With him absent, leaving off either of the other two dissenters – Justice Malcolm Rowe of Newfoundland and Labrador, and Justice Suzanne Côté of Quebec – would play very badly in Alberta.

To leave off the lone remaining Alberta judge, Justice Sheilah Martin, is an obvious non-starter for an Alberta case. So the choice would likely come down to one of the three Ontario judges – though probably not Justice Michelle O’Bonsawin, the court’s first Indigenous judge.

There is a recent precedent for using eight judges in a major constitutional case. In a 2013 hearing on prime minister Stephen Harper’s proposed overhaul of the Senate, the court sat with eight under Chief Justice Wagner’s predecessor, Beverley McLachlin. (A ninth judge had been rejected as legally unqualified, and the court had just eight members for nearly a year.) They rejected the overhaul 8-0 in 2014.

Usually, a tie vote would mean the result at the lower court stands. But this is a reference case – Alberta asked for a legal opinion from the appeal court – and so the ruling is advisory only. In the Canadian tradition, governments accept those rulings. But the Alberta ruling’s persuasive value in Ottawa would be uncertain.

Jamie Cameron, an Osgoode Hall law professor emeritus, said that in the United States the Supreme Court sits with eight if one member cannot participate. Leaving a member off “risks being seen as a political attempt to manipulate the result.” She, too, favours eight.