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.
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.
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.
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.