Reference Re Supreme Court Act: Atlantic Canada and Regional Considerations in Supreme Court of Canada Appointments
Ian A McIsaac*
1. Introduction tions about the constitutional nature of regional appointments to the Supreme Court of Canada.5 In August 2016, Prime Minister Trudeau intro- duced a new Supreme Court of Canada (“SCC”) In the Nadon Reference, the majority found appointment process to help fi nd a replace- that the Court’s composition under section ment for Justice Th omas Cromwell. Th is pro- 41(d) of the Constitution Act, 1982 was codifi ed cess involved the creation of an independent by sections 4(1), 5, and 6 of the Supreme Court and non-partisan panel to identify a short list of Act (SCA). Th ese sections deal with the number candidates for the Prime Minister to consider. of judges on the court, the minimum eligibility Th e Prime Minister’s instructions made clear requirements, and the protection of Quebec’s that the panel could consider candidates from representation at the Court. Importantly, the across the country, and not just Atlantic Can- Court seemed to suggest that this codifi cation ada, in replacing Justice Cromwell.1 Th is seemed was exhaustive, meaning that the regional com- to refl ect the Prime Minister’s goal to make an position of the Court may not be protected. If this appointment that increased the Court’s diver- is the limit of constitutional protection in mak- sity, such as appointing Canada’s fi rst Indigenous ing judicial appointments, it does not provide Supreme Court judge. Th e Panel’s report noted adequate legal protection for the core principles several other self-identifi ed groups representing that called for the Court’s entrenchment in the the diversity of the applicants, including Eth- fi rst place. For example, the appointment powers nic/Cultural, Visible Minority, Disabilities, and under the Supreme Court Act could actually be LGBTQ2.2 Yet, many Atlantic Canadians were used to undermine the federal and bijural nature alarmed that their “region” might not be repre- of the Court, by appointing an entire panel of sented at the Court, and one lawyers group fi led civil law judges or judges appointed from one a constitutional challenge in the Nova Scotia region or province. A constitutional requirement Supreme Court before the appointment was even for regional appointments may fi ll the gap in this made.3 Ultimately, the Prime Minister selected protection for the Court as a federal and bijural Justice Malcolm Rowe of the Newfoundland and institution. Of course, any such protection would Labrador Court of Appeal, a judge who has been have to comply with the plain language of the viewed favourably by Atlantic Canadians.4 And, Supreme Court Act and the majority’s decision in while the Atlantic lawyers group withdrew their the Nadon Reference. Namely, the Court’s compo- application on Justice Rowe’s appointment, their sition clearly allows for deviations from the cur- application nonetheless raises interesting ques- rent regional composition by permitting more
Constitutional Forum constitutionnel 9 than three judges to be appointed from Quebec. Court judges.”9 Conversely, the purpose of Sec- Th is paper therefore advances the theory that tion 6 is to refl ect the historical compromise that each non-Quebec “region”, as they are currently gained Quebec’s acceptance for a national plan: recognized, might need at least one appointee “[the framers] saw the two seats (one third) for each in order to ensure the Court has function- Quebec judges as a means of ensuring not only ing and legitimacy as a federal and bijural insti- the functioning, but also the legitimacy of the tution. Th is theory has the added benefi t of pro- Supreme Court as a federal and bijural institu- viding the Governor-in-Council with fl exibility tion.”10 Th e majority also describes section 6 as in making appointments that meet other roles of having a “twofold purpose,” which is: the Court, such as adjudicating on Charter rights and aboriginal law. (i) ensuring civil law expertise and the representation of Quebec’s legal traditions and social values on the Court, and (ii) 2. Supreme Court Act: Statute enhancing the confi dence of Quebec in the Court. Requiring the appointment of current and Reference members of civil law institutions was intended to ensure not only that those judges were Appointments to the Supreme Court are gov- qualifi ed to represent Quebec on the Court, erned by sections 4-6 of the Supreme Court but that they were perceived by Quebecers as 6 Act. Section 4 allows the Governor in Council being so qualifi ed.11 to appoint judges to the Court, and the Court is composed of a chief justice and eight puisne Th us, the majority concluded that the purpose of judges. Section 5 creates four groups of eligible section 6 is to: appointees: [L]imit the Governor in Council’s otherwise (1) current judges of a superior court of a broad discretion to appoint judges, in order to province, including courts of appeal, ensure expertise in civil law and that Quebec’s legal traditions and social values are refl ected (2) former judges of such a court, in the judges on the Supreme Court, and to enhance the confi dence of the people of (3) current barristers or advocates of at least Quebec in the Court.12 ten years’ standing at the bar of a province, and Given the government’s attempt to amend (4) former barristers or advocates of at least ten years’ standing.7 these appointment criteria to ensure Justice Nadon’s appointment, the majority was also Section 6 mandates that “at least three of the nine required to consider section 41(d) of the Con- judges shall be appointed from among the judges stitution Act 1982 (CA 1982) and the SCC’s sta- of the Court of Appeal or of the Superior Court tus under the Constitution of Canada. While of the Province of Quebec or from among the the Supreme Court Act is not found in the list advocates of that Province.” Th e majority in Ref- of instruments that comprise the Constitution erence Re Supreme Court Act interpreted these of Canada, the majority determined that the sections to mean that the three Quebec appoin- Court’s evolution into an essential institution tees must be active at the bar or bench of the necessitated its incorporation into the Consti- province and meet the seniority requirement set tution of Canada. Canada has always required out in section 5.8 a fi nal appellate court and this role was per- formed at confederation by the Judicial Com- Th e majority also considered the purpose of mittee of the Privy Council [“JCPC”]. As noted these sections in the Nadon Reference. Th e pur- by the majority: “Inherent in a federal system pose of section 5 is to “ensure that appointees to is the need for an impartial arbiter of jurisdic- the Court have adequate legal experience” and tional disputes over the boundaries of federal to “articulate the minimum general eligibility and provincial powers… . Th at impartial arbiter requirements for the appointment of all Supreme is the judiciary, charged with “control[ling] the
10 Volume 26, Number 1, 2017 limits of the respective sovereignties.”13 Th is role Court’s composition has been long recognized gradually shift ed to the SCC, and the process was as crucial to its ability to function eff ectively completed when appeals to the JCPC were abol- and with suffi cient institutional legitimacy ished in 1949.14 Besides acting as the fi nal arbiter as the fi nal court of appeal for Canada. As on federalism, the Court also played an essential explained above, the central bargain that led role by unifying provincial jurisprudence.15 Th e to the creation of the Supreme Court in the fi rst place was the guarantee that a signifi cant Court’s unifying role allowed the common law proportion of the judges would be drawn and the civil law to evolve together, while pro- from institutions linked to Quebec civil 16 tecting the distinct character of each system. law and culture. Th e objective of ensuring Th e SCC was therefore essential to the function- representation from Quebec’s distinct juridical ing of the law within each province, and “to the tradition remains no less compelling today, development of a unifi ed and coherent Canadian and implicates the competence, legitimacy, and legal system.”17 integrity of the Court.25
While the Court had become “constitution- Th e majority thus concluded: ally essential” by at least 1949, the patriation of Sections 4(1), 5 and 6 of the Supreme Court the Constitution in 1982 “confi rmed” the Court’s 18 Act codify the composition of and eligibility status within the constitutional “architecture.” requirements for appointment to the Supreme Th e Court’s confi rmation came, in part, because Court of Canada as they existed in 1982. Of of Canada’s shift from parliamentary to consti- particular relevance is s. 6, which refl ects the tutional supremacy.19 As stated by the majority: Court’s bijural character and represents the key “the existence of an impartial and authoritative to the historic bargain that created the Court judicial arbiter is a necessary corollary of the in the fi rst place. As we discussed above, the enactment of the supremacy clause. Th e judi- guarantee that one third of the Court’s judges ciary became the ‘guardian of the constitution’”.20 would be chosen from Quebec ensured that Th e confi rmation of the Court’s constitutional civil law expertise and that Quebec’s legal status in the CA 1982 meant that the essential traditions would be represented on the Court features of the Court would be protected as part and that the confi dence of Quebec in the Court would be enhanced. of the Constitution of Canada going forward.21 Both the general eligibility requirements What were included as essential features? Th e for appointment and the specifi c eligibility Court left its criteria open, but did explain that requirements for appointment from Quebec the Court’s composition was one “essential fea- are aspects of the composition of the Court.26 ture” that was singled out for special protection under section 41(d) of the CA 1982.22 Th is meant that any changes to the composition would need 3. Regional Representation the approval of Parliament and all the provinces. Th e majority found that the Court’s “composi- It is unlikely that there is a legal rule mandating tion” was codifi ed by sections 4(1), 5, and 6 of the the current regional composition of the SCC. SCA. Th e codifi cation also implied the Court’s Simply put, the plain language of the SCA does not require three Ontario, three Quebec, two continued existence, as abolition would certainly 27 alter this composition.23 Th e framers’ intention in Western, and one Atlantic appointed judges. protecting the Court’s composition was not only All that is required by the text is for an appointee to make it diffi cult to alter the Court’s composi- to be a barrister with ten years’ standing at a pro- tion, but also to affi rm the special constitutional vincial bar to be qualifi ed to sit as a SCC judge, status of Quebec’s judicial representation.24 As with the further requirement that at least three of stated by the majority: the judges are to be appointed from among the judges or advocates of Quebec. What is more, the Th e fact that the composition of the Supreme use of “at least” in section 6 of the SCA actually Court of Canada was singled out for special suggests the opposite to a legal rule for the cur- protection in s. 41(d) is unsurprising, since the rent regional composition, as it allows for more
Constitutional Forum constitutionnel 11 than three judges to be appointed from Quebec’s from Quebec; two have usually been appointed bench or bar. from Ontario and one judge is usually appointed from the bench of British Columbia. Similarly, the majority’s purposive interpre- Th e prairie provinces were not then developed tation of the SCA in the Nadon Reference does as they are to-day, and up to the present there not require the current regional composition to has not been a judge from either the bar or the 32 be entrenched. As noted, the purpose of section bench of any of those provinces.. 5 is to “ensure that appointees to the Court have Th is focus is further illustrated by the 1949 adequate legal experience” and to “articulate the debates on the various milestone changes to the minimum general eligibility requirements for 28 Court, including increasing the numbers to nine the appointment of all Supreme Court judges.” judges and abolishing appeals to the JCPC. Here, Section 5 also gives the Governor-in-Council 29 Justice Minister Garson explained why regional “broad discretion to appoint judges.” Th e pur- representation should not be incorporated into pose of section 6 is to “ensure not only civil law the legislation: training and experience on the Court, but also to ensure that Quebec’s distinct legal traditions I would not want anything I have said today to and social values are represented on the Court, leave the impression that we regard it as a federal thereby enhancing the confi dence of the people court representing localities. Th e intention is of Quebec in the Supreme Court as the fi nal that we shall endeavour to get men of the very arbiter of their rights.”30 In other words, section 6 best legal ability in Canada to sit on this court, “protects both the functioning and the legiti- having regard to the fact that when it becomes macy of the Supreme Court as a general court of a court of last resort for this country it will be 31 exercising a type of jurisdiction considerably appeal for Canada.” Th e purpose of these sec- diff erent from and much more onerous than tions is to ensure that appointees have the req- that which it has exercised heretofore, when uisite legal skill and while properly accounting it was merely a court through which appeal for Quebec and civil law; these sections are not went on their way to the court of last resort, the about protecting the current regional composi- judicial committee of the privy council. tion of the Court. Th is being so, I believe there is a good deal of Th e parliamentary debates surrounding merit in the suggestion of the hon. member that key structural changes to the Court refl ect this it should be a federal court, and that the chief interpretation of sections 5 and 6 of the SCA. object should be to secure the very best talent For example, when the Court was increased to available. Of course, if we can achieve that seven judges in 1927, Justice Minister Lapointe object and at the same time give representation to as many parts of Canada as possible, I am emphasized the importance of merit in making sure the hon. member would agree with me appointments: that the second objective is a desirable one so long as it can be attained without sacrifi cing While geographical conditions should not the fi rst. be considered in the appointment of judges, because the best possible men should be … appointed to the Supreme Court of Canada, there is one exception, namely that two judges So far as representation of Quebec is concerned, will always be members of the bench or bar as I have already indicated, it is not in any of Quebec, familiar with the civil law and sense a geographical representation, but rather procedure of that province. Apart from that one necessitated by the fact that unlike other there is no geographical condition mentioned countries, we have in one of our larger and in the act. I must say, however, that since the more thickly populated provinces a civil code, creation of the court such considerations which is a system of law quite distinct from the have been taken into account in making common law. In making the Supreme Court appointments; there is one judge usually of Canada the court of last resort we have to supposed to be a member of the bar or bench make adequate provision to hear appeals from of one of the maritime provinces; two come all parts of Canada, including Quebec.33
12 Volume 26, Number 1, 2017 When asked about the qualifi cation that “at ous gap in the constitutional protection for some least” three judges come from the bench or bar of of the essential features of the Court. Quebec, Minister Garson maintained that it was to ensure that the government could still appoint For example, regarding the Court’s bijural a high caliber appointment from Quebec, even if nature, nothing under the SCA prevents the Gov- there were already three judges from that prov- ernor in Council from appointing nine civil law ince on the bench: judges, so long as the judges meet the minimum eligibility requirements when they are appointed. If we said three, period, or three without A court of this composition would clearly not be adding the words “at least” that would indicate a bijural institution. Likewise, the SCA could also a geographical representation in a sense. In be used to undermine the Court’s functioning or that way we could not, where the ability of legitimacy as a federal institution. As noted by a particular man was an issue, add to that the majority, it is essential for the Court to act as number … . an impartial arbiter in jurisdictional matters and also in exercising its unifying jurisdiction over I do not want the impression to be left from provincial jurisprudence. Regarding the Court’s what I have said that it is a settled policy, that the government will invoke this power to appoint role as an impartial arbiter, the apposite ques- more than three judges from Quebec. It simply tion may be whether a province or region would means that if some time later an extraordinary feel a reasonable apprehension of bias when hav- case … , when there is a man the best qualifi ed ing their jurisdictional issues determined by the in Canada to fi ll a vacant appointment, he Court.37 While it is diffi cult to imagine the Court could be appointed if he should happen to live ever actually being biased against a province or in Quebec.34 region, the Nadon Reference makes clear that the legitimacy of the Court is just as important Th erefore, the Court’s interpretation of the as the Court actually carrying out a fair hearing. SCA along with the historical parliamentary Th e Atlantic trial lawyers group certainly felt that debates suggest that the current regional com- an Atlantic appointed judge was important in position of the Court is not entrenched. Th is upholding the region’s confi dence in the Court.38 possibility is reinforced by the fact that, for the Th e SCA appointment powers also raises further purposes of s. 41(d) of the CA 1982, the Court’s questions about what constitutional mechanism composition seems to be exhaustively codifi ed assures the Court’s functioning as a federal insti- by sections 4(1), 5, and 6 of the SCA.35 While tution. Th at is to say, if Atlantic Canada can be any discussion of wider regional requirements in excluded at the Court, what protects the other the Nadon Reference would have ultimately been regions? Indeed, as Justice Moldaver points out obiter dictum, it is noteworthy that the major- in dissent in the Nadon Reference, the SCA could ity made no eff ort to leave the Court’s compo- even be used to undermine Quebec’s representa- sition as an open list, unlike their discussion tion, by appointing judges who only have a tenu- of the Court’s essential features under section ous connection to that province.39 42(1) (d).36 If section 41(d) is indeed an exhaustive defi - However, if the composition is exhaustively nition, it is arguable that the federal and bijural codifi ed, then the broad appointment powers characteristics of the Court are protected by a under the SCA could be used to undermine the constitutional convention or norm. Th e prob- very principles that the composition is meant to lem with this assertion, however, is that there are protect; namely, the functioning and legitimacy no legal remedies for breaching a convention or of the Court as a federal and bijural institution. norm, and this particular norm seems like thin In turn, a Court that is not functional or legiti- protection for the Court given its place within mate in these characteristics would have trouble Canada’s constitutional architecture.40 If this is fulfi lling its role within the constitutional archi- the case, then it means that the protection of the tecture. In short, there appears to be a fairly seri- Court as a federal and bijural institution rests
Constitutional Forum constitutionnel 13 largely in the hands of federal politicians.41 It is two provinces. Th e federal nature of the Court also arguable that the constitutional principle of must take into account the possibility that more judicial independence ensures that the Court has than three judges may be appointed from Que- the ability and legitimacy to fulfi l its constitu- bec’s bench or bar. Th erefore, the answer may be tional role as described under the Nadon Refer- that while regional representation is an essential ence. While judicial independence is important, feature of the Court, it only requires that each there are still gaps in the legal protection for the non-Quebec region have at least one appointee.43 Court’s role, as judicial independence does not Th e upshot of this approach is that it mandates mandate bijural expertise and does not assure participation at the SCC for all regions and pro- proper development of provincial civil law. vides a base level of three common law judges, Finally, judicial independence would not neces- but remains fl exible enough to appoint the best sarily make the Court legitimate in the eyes of a candidates for the position, including candidates region or province that was pointedly excluded that fi ll special needs of the Court. from representation on the Court. Under this theory, the possibility of the com- Th is gap in the Court’s legal protection position being exhaustively defi ned is not prob- might be fi lled by a constitutional requirement lematic, because Section 42(1)(d) is the better for regional appointments, provided the require- fi t to begin with. Regional representation is by ment is suffi ciently fl exible to meet sections nature a regional right, not a provincial right, and 4(1), 5, and 6 of the SCA. Regional representa- the “7/50” amending formula only requires the tion can support the functioning and legitimacy input of regions, and not every single province. of the Court as a federal and bijural institution One way to consider this is that protection under by ensuring that the common law is represented section 42(1)(d) would prevent any change to at the Court and by ensuring that judges are not Atlantic Canada’s representation without some appointed exclusively from one part of the coun- support from that region. Conversely, it would try. Some form of regional representation is also be improper to protect regional representation crucial in facilitating the Court’s role in unifying under 41(d), because one Atlantic province could provincial jurisprudence, by ensuring diversity derail an attempt to amend this requirement, in of knowledge and experience from amongst the spite of not being entitled to an appointee. Finally, common law provinces. the theory that each region is entitled to at least one appointee on the Court refl ects the balancing Th at being said, it is important to consider required between the various relevant constitu- what aspects of regional representation might be tional principles. For example, this theory sup- constitutionally protected. If the goal is to pro- ports the federalism principle by ensuring that tect the bijural nature of the Court, it is note- the various regions of the country are represented worthy that three judges are capable of provid- at all times at the SCC, but it also gives the Gover- ing the Court with functioning and legitimacy nor-in-Council the fl exibility it needs in order to for civil law. While it is diffi cult to say how much make appointments that ensure that the principle common law representation is needed to ensure of minority protection is also upheld. Notably the the functioning and legitimacy of the Court for principle of minority protection includes the pro- common law, presumably it is no less than three tection of aboriginal rights and peoples.44 Giving judges as well. In terms of the Court as a federal proper weight to both individual and regional institution, it is noteworthy that the majority in diversity properly refl ects the principles of feder- the Nadon Reference seems to approve the cur- alism and protection of minorities in the consti- rent composition as providing functioning and tution, and would support the Court’s function- legitimacy, in spite of Ontario and Quebec having ing and legitimacy when dealing with individual 2/3rds of the appointments and the remaining Charter rights and aboriginal law. eight provinces having only 1/3 of the appoint- ments.42 Th is acceptance clearly permits a fairly While it is easy enough to say that each signifi cant concentration of appointments in “region” is entitled to a Supreme Court appoin-
14 Volume 26, Number 1, 2017 tee, there are numerous problems with entrench- preclude other goals, such as having indigenous ing such a rule. First, it is somewhat presump- representation or increasing other types of diver- tuous to assume that a “region” like Atlantic sity. Indeed, while it is not directly addressed in Canada is a homogenous unit. Th ere are many the Nadon Reference, the Court’s role in relation diff erences between Atlantic provinces and the to individual and aboriginal rights since at least people who inhabit them. Th e same can be said 1982 is surely just as important as its role in decid- for the other SCC ‘regions’ in Canada. It is also ing jurisdictional issues. Restricting the regional diffi cult to determine which individuals are requirement to one judicial appointee per region actually qualifi ed to represent a region. Quebec’s allows for fl exibility in meeting these other goals situation is clear: at least three judges must be while protecting the other core responsibilities appointed from the province, and appointments of the Court. Th us, it is important to remember must be made from among the current judges or that while regional representation supports the advocates of that province with ten years’ stand- Court’s functioning and legitimacy as a federal ing. Establishing an Atlantic province is clear and bijural nature, these are not the only relevant enough, but determining personal eligibility is aspects of the Court and any constitutional rules less so. Th e best that can be said is that the SCA regarding appointments should refl ect this real- requires a person to have ten years’ standing at ity. a provincial bar to be qualifi ed for appointment, and referring to a singular province might pro- vide suffi cient direction for making a “regional appointment.” For example, only a person with ten years’ experience at an Atlantic bar would Endnotes qualify a person to be appointed from that * Ian McIsaac, BA, JD, is a sole practitioner region. But, whatever certainty such an interpre- working in Truro, Nova Scotia and is the tation would give, it would be fairly meaningless Nova Scotia chair for the Canadian Barristers without a currency requirement similar to that Association Constitutional and Human Rights of Quebec.45 Law section. Th e author thanks the editorial staff at the Constitutional Forum for their assistance in preparing this article, along with Myrna Gillis, QC, Dennis James, QC, Kelly McMillan, and 4. Conclusion Danielle Dorn Kouwenberg for reviewing earlier draft s. Th e author very humbly dedicates this Regional representation is probably required to article to the late Professor Dianne Pothier, who fi ll the gaps left by the codifi cation of the Court’s undoubtedly would have provided a much more composition. Th e codifi cation allows too much illuminating view on the topic. latitude in making SCC appointments and could 1 “Independent Advisory Board for Supreme Court be used to undermine the bijural and federal of Canada Judicial Appointments from Prime aspects of that institution. For example, the exclu- Minister Justin Trudeau” (4 August 2016), Offi ce sion of Atlantic Canada from the Court could eas- of the Prime Minister, online:
Constitutional Forum constitutionnel 15 online:
16 Volume 26, Number 1, 2017 40 For constitutional conventions, see: Reference bilingual” candidates in light of the majority’s re Questions Concerning Amendment of the treatment of substantive changes to the eligibility Constitution, [1981] 1 SCR 753, 125 DLR (3d) requirements in the Nadon Reference at para 106. 1. For a more specifi c discussion on the SCC, Namely, did the process fail to place the correct Atlantic Canada, and constitutional architecture, weight on the correct criteria, and thereby exclude see Jennifer Taylor, “Th e Atlantic Seat: Part candidates from consideration? But see Sébastien of Canada’s Constitutional Architecture?” Grammond regarding bilingualism at the SCC: CBA National Magazine (5 August 2016), “Can Parliament enact a requirement that Supreme online:
Constitutional Forum constitutionnel 17 18 Volume 26, Number 1, 2017