Philip Slayton's latest book is How to Be Good: The Struggle Between Law and Ethics.
Prime Minister Justin Trudeau checked three of four important political boxes when he appointed Justice Sheilah Martin earlier this week to fill the Supreme Court of Canada vacancy created by the impending retirement of Chief Justice Beverley McLachlin. Justice Martin was a safe but uninspiring choice; a triple, but hardly a home run.
Female? Check. It would have been politically dangerous to replace a female justice with a man. At least half the country would have been aggrieved. And it would fly in the face of the Prime Minister's famous feminism. To do that, less than two years before an election? Not likely.
From Western Canada? Check. It was politically expedient to replace a Western judge (Beverley McLachlin is from British Columbia) with another Westerner. Failure to do so would have ruffled a lot of feathers on the far side of the Manitoba/Saskatchewan border. A weak historical convention requires that three Supreme Court judges come from Ontario, two from the Western provinces and one from Atlantic Canada (the Supreme Court Act requires that three justices come from Quebec). Justice Martin, although born and raised in Montreal, has been a judge of the Alberta Court of Appeal and has been "Alberta-based" for many years.
Bilingual? Check. We are officially told that Justice Martin is bilingual. For a long time there was a debate about whether Supreme Court judges needed to be proficient in both official languages. Some used to argue that it was better to have a really good unilingual judge than a mediocre bilingual one. Mercifully, that silly debate is over, and every sensible person agrees that a Supreme Court judge must really speak French (it's about French, of course, not English). Although, notice how this requirement can easily clash with the geographic imperative. How many Newfoundland lawyers speak fluent French?
So far, so good. A bilingual woman from the West. But there was a fourth box. Indigenous person? No check mark there. That's a surprise and a disappointment. A lot of people expected that the new Governor-General, appointed this past summer, would be an Indigenous person. It was time, past time, many Canadians thought. The symbolism would be powerful. It didn't happen. The next highly visible federal appointment was to the Supreme Court, which deals with many difficult issues affecting Indigenous peoples. It was time, past time, many Canadians thought, to appoint an Indigenous person to the Court, particularly given disappointment over the governor-generalship. Qualified candidates were available. It didn't happen. Why not?
The problem is the checklist approach to Supreme Court appointments, an approach that stifles initiative and imagination. If the Prime Minister couldn't find a bilingual Indigenous woman from Western Canada whom he liked, why didn't he appoint a male justice, or someone not from the West, in order to put the first Indigenous justice on the Supreme Court of Canada, and thus serve the greater good? Was he too persuaded by political expediency, too attracted to the easy choice?
Once upon a time, appointments to the Supreme Court were a lot simpler. Once, it was perfectly all right to be a unilingual white male (the first female justice was not appointed to the Court until 1982). It helped a lot to be a stalwart supporter of the political party in power. In the old days, no one gave a moment's thought to Indigenous representation in the judiciary. Of course, geography mattered: You had to be from the right region.
Things are obviously much better now. The new politics is better than the old politics. We care about the gender composition of the Court. We accept that judges should be bilingual. Indigenous representation has become a compelling issue. We still worry about regional representation far too much. These are worthy concerns (apart from geography). But these concerns have turned into a checklist that traps us.
In our system, the Prime Minister can pick just about anyone he likes to fill a Supreme Court vacancy (there is some advisory window dressing, but that's all it is: window dressing). The Prime Minister can do whatever he wants. Some criticize his great executive power and compare our situation unfavourably to that of other countries, Britain for example. It's odd that Justin Trudeau hasn't used his freedom to appoint with a dash of daring.
Soon, another shoe will drop. Shortly, a new chief justice will be appointed. The safe, conventional choice would be the senior Quebec judge, Richard Wagner. A much more interesting choice would be Justice Rosalie Abella. Who will the Prime Minister pick? Will he take the easy way out? Or will he surprise us, the way his father did in 1973, when he appointed Bora Laskin to the top job?