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“Canada” on the Supreme Court in 2016

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“Canada” on the Supreme Court in 2016 DRAFT | CPSA 2017 Please don’t cite without permission Competing Diversities: Representing “Canada” on the Supreme Court in 2016 Erin Crandall | Acadia University Robert Schertzer | University of Toronto The Supreme Court oF Canada’s (SCC) inFluence on politics and public policy – from deciding human rights cases to adjudicating Federal-provincial disputes – has long placed it in the spotlight oF political actors and watchers alike. Seeing the Court as activist or restrained, as siding with the Federal government or as balanced in its Federalism case law, as anti-democratic or the guardian oF the constitution, are all hallmarks oF the debate about its place in Canadian politics. Underpinning these debates is an often-critical focus on the justices’ themselves, the process by which they are selected, and the virtually unFettered power Prime Ministers have had in appointing individuals to the bench. In August 2016, Prime Minister Justin Trudeau clearly established his position within this debate by announcing a new way to choose SCC justices. Along with promoting more transparency and accountability in the process, the key elements oF Trudeau’s proposed reForms were to ensure that all future justices were functionally bilingual and that they represent the diversity of Canada (see Trudeau 2016b). In line with these new objectives, one oF the First things Trudeau highlighted in his announcement was a willingness to break with the convention of regional representation on the bench and move toward an open application process. With the upcoming retirement of Nova Scotia Justice Thomas Cromwell in September 2016, questions immediately emerged as to whether the government would deviate from the tradition of having one of the nine justices on the SCC come from Atlantic Canada. After considerable public debate on this point, the Federal government ultimately appointed a justice From NewFoundland and Labrador, Malcolm Rowe. This initial proposal, related public debate and outcome exposed an important tension and set of questions about the judicial selection process in Canada. Why has regional representation proved to be so durable? How does it compete with other Forms of representation? Why did regional affiliation take precedence in this instance over an eXplicit desire to shift away from the convention? To answer these questions, this paper explores the historical role oF the SCC in Canada’s Federal politics, the evolution of its appointment process (in a comparative perspective), and the reasons for the persistence of regional diversity as a key criterion For the selection oF judges. Through this analysis, the paper reFlects on the tension between regional and other Forms of representation, and what the new selection process tells us about the current federal government’s vision oF federalism and the Court’s role. This analysis also helps us engage with important questions about evaluating the SCC as one oF Canada’s key Federal institutions, and to consider how the recent reForms to the selection process may impact the eFFectiveness and legitimacy oF the institution. Our argument is that the idea oF regional representation in Federal institutions – as one of the fundamental narratives of Canadian Federalism – has a structuring power over decisions of institutional design. The SCC is not only the highest court oF the land; it is also a federal 1 DRAFT | CPSA 2017 Please don’t cite without permission institution. Accordingly, reForming the Court engages longstanding and powerFul ideas about the very nature oF Federalism in Canada. In this instance, changing the appointment process – with an explicit Focus on the representative role of the institution – brought to the fore competing ideas on the nature oF Canadian Federalism. One perspective, promoted by the Federal government, Framed the Court as a key national institution that represents a bilingual, diverse pan-Canadian community. The other perspective, promoted by those arguing For the regional representation convention, Framed the Court as a mechanism to protect regional and provincial interests in national-level decision-making. The outcome, whereby the federal government reformed elements oF the appointment process (notably, requiring functional bilingualism) but maintained the regional aFFiliation convention, shows the power oF these ideas. In short: the idea oF regional aFFiliation For justices, which has gained institutional expression through a long- established convention, shaped the ability of the federal government to radically break from past precedent in reForming the selection process For SCC justices. A brieF note on the theoretical approach of this paper is warranted. The argument here builds on a neo-institutionalist position stressing the importance oF ideas in explaining institutional dynamics (for an overview, see Beland and Cox 2010; Lecours 2005). When assessing the quality and prospects For reforming political institutions, and understanding why particular outcomes come about, it is critical to pay attention to the role ideas play in shaping political dynamics. From this perspective, we can point to multiple Factors shaping institutional dynamics – rational actor calculations, historical legacies and underlying sociological characteristics (Olsen and March 1984; Lecours 2005); however, underpinning and cutting across these factors is the importance oF ideas: helping to constitute actor preFerences, inForming early institutional design choices and providing escape valves allowing change, and reflecting/shaping perceptions of society (see Schmidt 2010). The value oF applying a broader “constructivist institutionalism” in this paper is that it draws attention to how background ideas can shape the perception of institutional design proposals as legitimate (see Hay 2008). Focusing on ideas, and particularly how they interact with institutions, allows us to account for the compleX set of factors that can inFluence institutional dynamics and outcomes (Beland and Lecours 2016, 684; Parsons 2007). The SCC as a Federal Institution There are several powerFul ideas that shape the discussion on SCC reform. When we Focus on the appointment process in particular, there are key Frames For thinking about the Court as a legal and political institution that begin to deFine the parameters oF legitimate reForms and designs. There are ideas about the judicial role more broadly, Focused on whether changes to the appointment process will protect or endanger the independence of the institution as a court of law, or whether they will promote more activist or restrained decision-making (for a discussion of these elements of the judicial role in Canada, see MacFarlane 2013). Some oF these considerations also engage ideas about the democratic pedigree of courts in liberal democracies, notably whether the appointment process promotes accountability, transparency and descriptive/substantive representation on the bench, issues that have gained increasingly importance over time in Canada (Crandall 2013b, chap. 3). These varying Frames related to the legal role of the Supreme Court also intersect with competing ideas on the nature oF the Federation and the SCC’s place in that system. Like other political institutions at the Federal level (e.g., the legislature, Senate, Cabinet, bureaucracy), the SCC is one oF the key institutional components oF the Federal system oF government. 2 DRAFT | CPSA 2017 Please don’t cite without permission Accordingly, the diFFerent ideas about the nature of that system influence perceptions of the ideal and appropriate role For the Court, and how particular reform proposals fit within these frames. The main perspectives on the nature oF Canadian Federalism are clearly identiFiable, in both theory and practice (Schertzer 2016b, 47–58; Rocher and Smith 2003). For the purposes oF this paper, it is sufFicient to note the general split between the view oF the Federation as primarily a pan-Canadian community and seeing it as the sum of its regional/provincial parts. For the First view, the core idea is that the Federation is, and should be, a centralized order with a strong federal government that represents a bilingual, multicultural pan-Canadian nation. For the second view, the key is that the Federal system is, and should be, a decentralized order that respects the importance of regional and provincial differences (either through an equal recognition oF their status, or recognizing the distinctiveness of particular jurisdictions, notably Quebec and Indigenous communities). These competing understandings oF the nature oF the Federation inForm related ideas about how the Court – as a Federal institution – should Fit into the system. From the pan-Canadian perspective, Federal institutions are seen principally as Forums to represent the aggregate interests oF the national community. From the regionalist view, Federal institutions are legitimate to the eXtent they reflect and protect the particular interests of the different regions and provinces oF Canada in national-level decision-making. More to the point, these competing ideas play an important structuring role in the debate about how to reForm judicial selection procedures. How SCC justices are selected directly engages perceptions oF their independence and representative role, either as agents oF the Federal government or protectors oF regional/provincial interests. While there is questionable evidence that regional afFiliation actually afFects the decision-making oF SCC justices, the perceptions oF justices as
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