Members of the Supreme Court of Canada wait for a group photo following a welcoming ceremony for Judge Mahmud Jamal at the Supreme Court of Canada on Oct. 28, 2021 in Ottawa.Adrian Wyld/The Canadian Press
Less than a week remains for jurists to apply for the empty spot on Canada’s Supreme Court, and Western provinces are keen to have their region, or at least their regional interests, represented.
British Columbia, Alberta, Saskatchewan and Manitoba are each vying for someone from their legal communities to fill the vacancy left by Russell Brown, who resigned in mid-June amid allegations that he drunkenly harassed women earlier in the year. Mr. Brown denies the allegations.
If tradition holds true, his replacement will come from the West. Of the nine Supreme Court judges, two typically come from the West, three come from Ontario and one comes from Atlantic Canada. The three others are mandated by law to come from Quebec.
Both of the most recent Western Canada picks, Mr. Brown and still-sitting Justice Sheilah Martin, were from Alberta. Although there’s no rule dictating that appointments should rotate between provinces, the expectation among many is that it’s someone else’s turn.
Current and former attorney-generals of B.C. feel especially strongly that their voice is being left out.
“To have B.C. be a spectator in the Supreme Court of Canada, as the third largest province, is just simply not acceptable,” said Andrew Petter, a former attorney-general and former law dean of the University of Victoria. He argued that B.C. has a distinct enough economy – with its forestry and mining sectors and access to the Pacific Ocean – and a large enough population to deserve its own spot on the bench.
The province hasn’t had a face on the Supreme Court since 2017, when Beverley McLachlin retired. Four British Columbians have sat on the bench in total.
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Current Attorney-General Niki Sharma and former attorney-general Brian Smith said they also believe B.C. should be treated as its own region. Ms. Sharma pointed to the experience jurists in the province have handling constitutional issues and Indigenous rights, while Mr. Smith argued that someone who lives on the coast has a perspective distinct from that of the Prairie provinces.
Of course, members of the Supreme Court are not meant to represent the province they come from, but rather Canada at large.
Mr. Smith said more important to him than having a B.C. jurist appointed is having someone who will choose provincial rights over federal power.
“If we get some token Western representative put on this court that ticks off a whole bunch of boxes and is just a rubber stamp for federal centralization, we might as well have somebody from Timbuktu.”
It’s a sentiment shared by Saskatchewan’s Attorney-General, Bronwyn Eyre, who voiced concerns around “constitutional stealth” by the federal government.
“Geography is important, but it is about the best candidate. And from our perspective, it’s very important that that person brings that renewed regional understanding to the bench.”
Saskatchewan hasn’t had one of its residents on the Supreme Court since 1973, when Emmett Matthew Hall retired. He’s one of three Saskatchewanians to have served.
“I think there’s been a sense of Saskatchewan being overlooked,” said Senator Brent Cotter, a former law dean at the University of Saskatchewan. He said that it’s part of the job of a Supreme Court judge to put aside any personal interests, such as their region of origin, but that it can also be important for a province’s residents to feel seen by someone who knows their area.
“It gives people confidence in the country if people from various regions appear to be leading the country at its highest levels.”
Tanya Keller, a long-time Winnipeg-based lawyer, said having the new judge from Manitoba would similarly bring a sense of pride to that province’s residents.
“It would be seen as recognizing the legal talent and expertise within our province.”
She noted that each province works with various forms of legislation, which could inform how a jurist tackles issues. For instance, she said, B.C. courts are far more liberal than Manitoba courts when it comes to allowing variations to a deceased person’s will.
Generally speaking, Ms. Keller said she’d like to see a continued increase in diversity on the bench.
The last time a Manitoba-based judge held a seat on the Supreme Court was Marshall Rothstein from 2006 to 2015. Four Manitobans have sat on the court.
Those in Alberta’s legal community know the new pick is less likely to come from there, given the convention of rotating between provinces.
Ian Holloway, the law dean at the University of Calgary, said he believes judges should be chosen based solely on who is the most qualified, not where they come from, but added he knows the tradition of switching between regions will probably be at play. He said more important than where a person is from is whether they have the ability to understand Canada fully from their particular perspective.
Regional representation is the job of elected officials, Mr. Holloway said, while it is up to judges to know all of Canada through and through.
Six jurists from Alberta have been elevated to the Supreme Court in history.
Prospective candidates have until July 21 to throw their hat into the ring. From there, a non-partisan panel will decide on a short list to present to Prime Minister Justin Trudeau. He is expected to make his decision this summer, before the court begins hearing cases in the fall.