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Lawyers: SCC should rule on top court post

Thursday, October 06, 2016 @ 8:00 PM | By Cristin Schmitz

The unresolved legal debate over whether scrapping the convention of regional representation in Supreme Court of Canada appointments is unconstitutional merits a reference to the Supreme Court by government, lawyers say.

On Sept. 27 the Liberals joined the other parties in Parliament to unanimously endorse an opposition motion urging the government to respect the “custom” of regional representation in Supreme Court appointments — which a government spokesperson indicated means that the candidates shortlisted for the current vacancy will include a jurist(s) from Atlantic Canada. However, despite rumours of an impending settlement, at press time the government was still slated to appear in Nova Scotia Supreme Court Oct. 5 to defend a groundbreaking Sept. 19 application from the Atlantic Provinces Trial Lawyers Association (APTLA) for a declaration that Prime Minister Justin Trudeau’s “proposed departure from the constitutional convention of regional representation on the Supreme Court” — by appointing a judge from outside Atlantic Canada to replace retired Justice Thomas Cromwell of Nova Scotia — would run afoul of s. 41(d) of the Constitution Act 1982, which requires unanimous consent from Parliament and provincial legislatures to any changes to the Supreme Court’s “composition.”

Short of a settlement or other satisfactory early resolution of the court challenge, APTLA’s counsel, Raymond Wagner of Halifax told The Lawyers Weekly the group of personal injury litigators would prefer to see the federal government or a province follow the advice of some constitutional experts by directly referring the far-reaching issue to the Supreme Court. “That would make a lot of sense as opposed to toiling through the…trial division and the Court of Appeal and ultimately to the Supreme Court of Canada — that we could have the Supreme Court opine upon this and the chaos that this is creating could be eradicated.”

At press time, Ottawa had yet to announce who it will appoint to what had been regarded as Atlantic Canada’s seat on the nine-member court by virtue of a 141-year-old practice of allocating one seat to those four provinces, two to the four Western provinces and three seats to Ontario (at least three seats are reserved by law to Quebec).

A reference to the Supreme Court would be salutary, even if an Atlantic Canadian fills the Cromwell vacancy, given the Trudeau government’s professed willingness to depart from the regional representation convention, and lingering uncertainty in the wake of the Reference re Supreme Court Act, ss. 5 and 6 (Nadon Reference) 2014 SCC 21, about what amounts to a change in the court’s “composition” — thus requiring a constitutional amendment, advised University of Ottawa constitutional law professor Sébastien Grammond.

Grammond believes, for example, that federal legislation mandating all future Supreme Court appointees be functionally bilingual — proposed by the NDP — would not amount to a change to the court’s “composition” requiring unanimous provincial consent under s. 41(d) of the Constitution Act 1982.

But others are apt to disagree and probably would challenge such an enactment in court, Grammond said. “And my point is that the federal government, to ensure some degree of clarity about all those issues, should bring a reference to the Supreme Court and say: ‘We want to know if Parliament can enact a bilingualism requirement. We want to know if the prime minister is bound, in any way, to this tradition of regional representation.’ And perhaps: ‘We want to know if Parliament can enact legislation outlining a process for the appointment of Supreme Court judges.’ ”

As occurred during the Nadon litigation, constitutional lawyers contacted by The Lawyers Weekly disagreed sharply over the merits of the latest court challenge to Ottawa’s handling of an appointment to the Supreme Court.

In its application, APTLA cites the wording of Part V of the Constitution Act 1982 and the organizing principle of federalism, as well as recent Supreme Court decisions on Quebec secession, Senate reform and the Nadon case, as supporting the group’s assertion that departing from the constitutional convention of regional representation “changes the architecture of the court and disregards the fundamental role of federalism underlying both the interpretation of the Constitution and the formation of the court itself as an institution within the federal scheme. It is an amendment to the Constitution of Canada in relation to the composition of the Supreme Court of Canada and thereby invokes the unanimous consent amending procedure.”

Constitutional scholar Peter Hogg of Toronto’s Blakes said the case is arguable in the wake of the Nadon Reference, where a six-judge majority described their court as “a constitutionally essential institution” and a “foundational premise of the Constitution” whose composition and “essential features” cannot be substantively changed, except by constitutional amendment. “I think we’ve always thought of the regional understandings as being conventions that are not enforceable in the courts,” Hogg observed. “But in the recent…Nadon case the court seemed very eager to make a lot of things that I didn’t think were constitutional rules into constitutional rules. And so I certainly don’t dismiss the idea of the [APTLA] proceeding out of hand, and I think that it is important to preserve the regional representation [because] the Atlantic provinces would be upset if the judge came from somewhere else.”

Toronto litigator Rocco Galati, whose constitutional challenge led to the top court declaring Federal Court of Appeal Justice Marc Nadon ineligible for appointment to the Supreme Court’s Quebec seats two years ago, said jettisoning the regional representation convention violates the Constitution in several ways. “I think [APTLA] is on firm ground when it says that the regional representation convention is part of the ‘composition’ of the Supreme Court. However, even if the Supreme Court decided not, there are other equally strong grounds,” he asserted.

Galati pointed, for example, to s. 42(d) of the constitutional amending formula, which states that for matters “in relation to” the Supreme Court of Canada, Parliament must obtain the consent of at least seven provinces with at least 50 per cent of the nation’s population. “So certainly if [regional representation] is not part of the core composition, it’s still a matter ‘in relation to’ the Supreme Court,” Galati remarked.

University of Ottawa constitutional law professor Carissima Mathen called APTLA’s challenge “a tough sell. The court might be persuaded to recognize the existence of a regional convention [for Supreme Court appointments], but the whole point of conventions is that they are separate from law,” she noted. “If so, it’s becomes tricky to argue that the only route to change them is through formal amendment of the written Constitution. That would fossilize existing conventions in a way that seems inconsistent with their essentially political character.”

Yet it would be “awkward” to replace Cromwell with a non-Atlantic jurist, Mathen said by e-mail. “There might be a reprise of the Nadon situation, where the new judge does not take up the position [on the court], and the matter is fast-tracked to the court as a reference.”

“We know that we have an uphill battle,” Wagner acknowledged. “But it’s a struggle that we willingly take. What people may not realize in the rest of the country is that Atlantic Canada has connections to, and feels very strongly connected to, the confederation, and its participation in the major institutions of confederation and of government, which includes the Supreme Court of Canada. If we lose the seat, and no longer there is a reserved seat for an Atlantic Canadian, then we feel that we will be lost as matters proceed on in that we’re a small population base, and we’ll be swallowed up and…marginalized. And we already feel that at times we’re ignored. And this is something that connects us to the very, very fundamental and important institutions of this country.”

Wagner stressed APTLA supports the aim of a more diverse Supreme Court — which was the Trudeau government’s professed justification for its initial willingness (at least before the court challenge) to scrap the regional representation convention. “We’re totally, 100 per cent behind diversity. If there is an indigenous person in Atlantic Canada who qualifies we’d love to see them on the court. We are not against anybody — we are only for Atlantic Canadian participation in the Supreme Court of Canada.”