Skip to main content
The Globe and Mail
Support Quality Journalism.
The Globe and Mail
First Access to Latest
Investment News
Collection of curated
e-books and guides
Inform your decisions via
Globe Investor Tools
per week
for first 24 weeks

Enjoy unlimited digital access
Enjoy Unlimited Digital Access
Get full access to
Just $1.99 per week for the first 24 weeks
Just $1.99 per week for the first 24 weeks
var select={root:".js-sub-pencil",control:".js-sub-pencil-control",open:"o-sub-pencil--open",closed:"o-sub-pencil--closed"},dom={},allowExpand=!0;function pencilInit(o){var e=arguments.length>1&&void 0!==arguments[1]&&arguments[1];select.root=o,dom.root=document.querySelector(select.root),dom.root&&(dom.control=document.querySelector(select.control),dom.control.addEventListener("click",onToggleClicked),setPanelState(e),window.addEventListener("scroll",onWindowScroll),dom.root.removeAttribute("hidden"))}function isPanelOpen(){return dom.root.classList.contains(}function setPanelState(o){dom.root.classList[o?"add":"remove"](,dom.root.classList[o?"remove":"add"](select.closed),dom.control.setAttribute("aria-expanded",o)}function onToggleClicked(){var l=!isPanelOpen();setPanelState(l)}function onWindowScroll(){window.requestAnimationFrame(function() {var l=isPanelOpen(),n=0===(document.body.scrollTop||document.documentElement.scrollTop);n||l||!allowExpand?n&&l&&(allowExpand=!0,setPanelState(!1)):(allowExpand=!1,setPanelState(!0))});}pencilInit(".js-sub-pencil",!1); // via darwin-bg var slideIndex = 0; carousel(); function carousel() { var i; var x = document.getElementsByClassName("subs_valueprop"); for (i = 0; i < x.length; i++) { x[i].style.display = "none"; } slideIndex++; if (slideIndex> x.length) { slideIndex = 1; } x[slideIndex - 1].style.display = "block"; setTimeout(carousel, 2500); } //

David McLaughlin has been a deputy minister in the New Brunswick government and a Conservative chief of staff.


For as long as there has been a Supreme Court of Canada there has been a justice from the Atlantic provinces. Prime Minister Justin Trudeau may be about to change that.

Story continues below advertisement

The new appointments process for Supreme Court justices announced this week casts doubt that retiring Justice Thomas Cromwell from Nova Scotia will be replaced by a judge from the same region. Indeed, the new process explicitly encourages a new national advisory panel to seek applicants from across the country – "any qualified judge" in the words of Mr. Trudeau.

This is an unprecedented departure from established, historical practice. That practice says of the nine justices, three come from Ontario, two from Western Canada, one from Atlantic Canada and three from Quebec (reflecting the civil code legal tradition of that province; that number is enshrined in the Supreme Court Act).

The laudable goals of the new process are to ensure diversity on the court as well as to ensure that new justices are bilingual (which can reasonably be considered a necessary skill to hear, read, and write cases in either official language). Equally, there is no justice of indigenous descent or a visible minority on the bench despite the obvious makeup of the country.

Mr. Trudeau says this new process will be "open and transparent," requiring him to select a new justice only from names vetted by an independent advisory committee operating quasi-publicly. After the debacle brought on by former prime minister Stephen Harper of the 2013 appointment of Justice Marc Nadon (rejected as unqualified by the top court itself), there is undoubtedly merit in a less-secretive process.

But Mr. Trudeau was less than open and transparent in confirming that he is unilaterally amending the convention that each region of the country has a seat on the country's top court. In fact, he never mentioned it at all. It was left to his Justice Minister to confirm that this could occur.

JUSTIN TRUDEAU: Why Canada has a new way to choose Supreme Court judges

GLOBE EDITORIAL: How to judge who's the right Supreme Court judge

Story continues below advertisement

Canada has no founding constitutional document advocating "a more perfect union" as in the United States. We began as an evolutionary country, not a revolutionary one. The original Confederation bargain sought compromise and accommodation to bridge differences and interests for the sake of creating a new country. That bargain – an essential feature of our federalism – involved recognizing regions, provinces, and languages in our institutional construct.

That found formal expression in the division of powers in the original British North America Act between the central and provincial governments. It found informal expression of the apportionment of judges on the Supreme Court. Mr. Trudeau proposes to tamper with that.

The requirement that the Atlantic provinces have a guaranteed Supreme Court seat is a clear matter of convention, custom, practice, and tradition. How do we know? Because it has been the case since Canada existed. It is not an explicit legal obligation. A convention, with higher legal consequence, is not a custom, which may simply be a long-standing practice or tradition. A convention is not sacrosanct. Political actors can change it. That is how societies evolve.

Under the failed 1992 Charlottetown accord, the federal government would have been required to name judges from lists submitted by provinces and territories. This was a contemporary recognition of what might be termed the "regionalization" requirement of Supreme Court representation. It hewed closely to the original precepts of Confederation. The accord also called for formal consultation by provinces and territories with aboriginal peoples in the preparation of such lists.

Mr. Trudeau's process inserts a more explicit "diversification" requirement for Supreme Court representation. The court should mirror Canadian society more visibly and directly as it pronounces on law that affects people.

This is all to the good. Except when it is not. This new process contemplates a clear tradeoff between historic convention and contemporary correctness. Since this convention is well known and established, there is no question that Mr. Trudeau is being deliberate, if not exactly forthright, about his intentions.

Story continues below advertisement

Justice Cromwell has not yet been replaced. Another judge from Atlantic Canada may yet be named. But this is no longer guaranteed. And that should exercise residents and governments in those four provinces.

To channel an earlier Trudeau, if one part of Canada is to be short-changed on the highest court in the land, it should be with a bang not a whimper.

Your Globe

Build your personal news feed

  1. Follow topics and authors relevant to your reading interests.
  2. Check your Following feed daily, and never miss an article. Access your Following feed from your account menu at the top right corner of every page.

Follow topics related to this article:

View more suggestions in Following Read more about following topics and authors
Report an error Editorial code of conduct
Due to technical reasons, we have temporarily removed commenting from our articles. We hope to have this fixed soon. Thank you for your patience. If you are looking to give feedback on our new site, please send it along to If you want to write a letter to the editor, please forward to

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff.

We aim to create a safe and valuable space for discussion and debate. That means:

  • Treat others as you wish to be treated
  • Criticize ideas, not people
  • Stay on topic
  • Avoid the use of toxic and offensive language
  • Flag bad behaviour

If you do not see your comment posted immediately, it is being reviewed by the moderation team and may appear shortly, generally within an hour.

We aim to have all comments reviewed in a timely manner.

Comments that violate our community guidelines will not be posted.

UPDATED: Read our community guidelines here

Discussion loading ...

To view this site properly, enable cookies in your browser. Read our privacy policy to learn more.
How to enable cookies