The Liberal government is being urged to appoint the next Supreme Court justice from Western Canada, and not to let the search for a minority appointee trump the tradition of regional representation on the country's most powerful court.
The government opened the appointment process last summer to applicants from the entire country, in what legal observers said was an attempt to make the Supreme Court more diverse. (It is now five white males and four white females. Two are Jewish, one has Greek heritage and one has an Italian background.)
But with a new spot coming open next December, when Chief Justice Beverley McLachlin retires, the chair of the Commons justice committee said that the government's wide-open approach amounted to a form of exclusion.
Regional representation is "not something that should be secondary," Anthony Housefather, a Montreal Liberal MP who heads the Commons justice committee, told The Globe on Tuesday.
The questionnaire that applicants must fill out reflects a search for "people of different language groups, different cultures, different colours, to make all Canadians feel that they're part of the court," he said. In the same way, "the regionality of Canada is also a part of what distinguishes different Canadians. Not having someone from the Atlantic provinces is not something that would make Atlantic Canadians feel part of the court."
A spokesman for Justice Minister Jody Wilson-Raybould said she will respond later this week to a recommendation from the justice committee that it stress the importance of regional representation in Supreme Court appointments.
By law, the court must have three judges from Quebec, in recognition of that province's unique civil code. But outside Quebec, the convention of representation from across Canada has no binding legal force. It is a tradition or a custom that Western Canada has two judges on the court. Currently, one is from Alberta – Justice Russell Brown. The other, Chief Justice McLachlin, born and raised in Alberta, was appointed from British Columbia, where she had been a judge and a law professor.
"Conventions are ethical rules about the proper use of legal powers," Peter Russell, a political science professor emeritus at the University of Toronto, said in an interview.
"And like a lot of ethical rules, they're not watertight, they're not like traffic regulations. They're not precise. And whether or not you go with them has a lot to do with politics. They're an attempt to use the powers the way you think people in the country want the powers used. But they're not written in stone."
The government revamped the appointment process after the retirement of Justice Thomas Cromwell of Nova Scotia. It created a self-nomination process in which anyone, anywhere in the country, could apply for the opening, as long as they had been a lawyer for 10 years and met other qualifications. It also created an independent advisory board to review the applications and create a shortlist of candidates from which the prime minister would pick his nominee. Regional representation was mentioned as a factor to consider, but nothing more. Atlantic Canada is not deep in qualified minority candidates, and the government reduced the pool even further by insisting on functional bilingualism, which is tested by a federal agency.
The dropping of the regional convention led to a storm of protest from within the government's Atlantic caucus, and the Atlantic Provinces Trial Lawyers Association filed a legal challenge. The Commons ultimately voted 270-0 to ask the government to respect regional representation, and Mr. Trudeau voted in favour of it.
There was talk at the time that the government had approached Mary Ellen Turpel-Lafond, who has an Indigenous background. Those who know her, including judges who had worked alongside her in Saskatchewan, told The Globe that the Harvard-trained lawyer and judge, who spent 10 years as British Columbia's Representative of Children and Youth, would be a natural for the court.
But Ms. Turpel-Lafond told The Globe then that she would not take an appointment where she was not wanted, and she said no one in Atlantic Canada had reached out to her and encouraged her to stand for the position.
The Globe attempted to contact Ms. Turpel-Lafond through an intermediary on Tuesday. The intermediary reported back that she was not available to talk.