Université Laval law professor Patrick Taillon uses a decidedly Canadian analogy to explain why he thinks Quebec should be an equal partner with Ottawa in the selection of the three Supreme Court justices that the Constitution of Canada guarantees la belle province.
Université Laval law professor Patrick Taillon uses a decidedly Canadian analogy to explain why he thinks Quebec should be an equal partner with Ottawa in the selection of the three Supreme Court justices that the Constitution of Canada guarantees la belle province.
“Under the current process, it’s like one hockey team having the right to choose the referees for every game of every series in the playoffs,” says Taillon, who teaches constitutional law. “It’s patently unfair. And considering Quebec’s unique character, it is crucial to ensure that the judges who will make decisions on language rights and constitutional matters that impact all Canadians have the highest levels of independence and legitimacy.”
Taillon is not alone in his thinking. Since April, when Supreme Court Justice Clément Gascon unexpectedly announced his resignation from Canada’s top court, the always-prickly issue of how replacements are picked from the country’s only province with both a francophone majority and a juridical legal system based on French-heritage civil law is again making headlines in Quebec legal circles.
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“I think [Taillon’s hockey analogy] is quite right,” says Benôit Pelletier, a professor in the civil law section at the University of Ottawa who was a prominent cabinet minister from 1998 to 2008 in former Quebec Premier Jean Charest’s Liberal. “The current selection process is unfair under the concept of federalism, which is based on the theoretical equality of both sides.”
Under the current SCC selection process, which became entirely Canadian in the late 1940s under then-Liberal prime minister Louis St. Laurent, all nine justices are appointed by the governor general on advice exclusively from the federal cabinet and the prime minister.
For decades, however, successive Quebec governments have lobbied for input into the selection of the three justices who must come from their province.
According to Taillon, an agreement was reached in the Meech Lake Accord for a new consultation mechanism in which Quebec would submit a list of names that Ottawa would choose from.
“The goal was to put a little federalism into the nomination process by making it harder to make ideological choices,” says Taillon.
“But the idea died along with all the other proposed constitutional amendments in the agreement.”
Pelletier says he revived the notion while serving as intergovernmental affairs minister under Charest. He notably pushed fellow Liberal and federal attorney general and justice minister Irwin Cotler to make an administrative agreement in which both Quebec and Ottawa would submit a list of 10 names and prioritize the judges whose names appeared on both lists.
“If there were no matches, the exercise would be repeated until a sufficient number of names were generated,” says Pelletier. “It would be quite easy to do. And there is no need for a constitutional amendment per se.”
Though Pelletier’s plan did not prevail, the federal government did change the process in 2006 by adding an interview phase. Dubbed the Independent Advisory Board for Supreme Court of Canada Judicial Appointments, the ad hoc committee is currently chaired by former federal Tory justice minister and Canada’s only female prime minister, Kim Campbell.
After that change came the controversy over the appointment of Canadian Federal Court of Appeal Judge Marc Nadon to replace Justice Morris Fish, a Quebec judge who retired from the SCC in 2013.
The naming of Nadon, who had served on the federal court for more than a decade, led to howls of protests from Quebec lawyers and a constitutional challenge.
Though sworn in in October 2013, Nadon refused to hear cases until that legal challenge was heard by his new court colleagues. They struck down his appointment in a March 2014 ruling. That decision led to the appointment of the now-departing Gascon, who was widely acclaimed.
In 2016, Prime Minister Justin Trudeau added a new political wrinkle to the process with a controversial revision allowing any lawyer or judge who fits “specified criteria” to apply for a seat on the SCC through the Office of the Commissioner for Federal Judicial Affairs Canada.
In a blog written shortly after Justice Malcolm Rowe from the Supreme Court of Newfoundland and Labrador (Court of Appeal) was appointed to the SCC in late 2016 under the new selection process, University of Sherbrooke assistant law professor Maxime St-Hilaire condemned the changes as a threat to the court’s impartiality.
“Leaving aside the question of whether (the new process may be) an unconstitutional constitutional amendment, observers of Canadian constitutional law and justice must bear in mind that courts endowed with the jurisdiction to answer reference questions may give advisory opinions on that part of the Constitution that was meant to be purely political, and which is principally composed of constitutional conventions,” wrote St-Hilaire. “Its lack of guaranteeing the preservation of regional representation (and) the ‘functional bilingualism’ requirement has also been questioned, and was called unfair by leading aboriginal voices.”
The new process came under fire again in 2019 after the Canadian Press and other news agencies reported claims by former justice minister and attorney general Jody Wilson-Raybould that both she and Campbell’s advisory body had picked Manitoba Court of Queen’s Bench Chief Justice Glenn Joyal to replace former Chief Justice Beverley McLachlin in late 2017.
Wilson-Raybould reportedly suggested that Joyal was too conservative for the PMO’s liking. Instead, Alberta Court of Appeal Judge Sheilah Martin got the nod.
Other news stories linked to the ongoing SNC-Lavalin controversy have also reported that the PMO is using a private party database called Liberalist to vet candidates for judicial appointments.
For Taillon, the politicization of the SCC nomination process is “a real problem” due to the power wielded by the judiciary since the passage of the Constitution Act and its accompanying Canadian Charter of Rights and Freedoms in 1982.
“Judicial power on the most important issues in Canada is much bigger now,” says Taillon. “That power depends and relies on independence and legitimacy, and much of that comes from the way we appoint judges.”
With a new SCC appointment looming — and a federal election planned for the fall — both Taillon and St-Hilaire are calling on the new Coalition Avenir Québec government to pressure Ottawa for a role in the selection process.
Those appeals have apparently been heard. In an email to Canadian Lawyer, a spokeswoman for Quebec Justice Minister Sonia LeBel says her office is “working actively” to be heard. “We are engaged in ongoing dialogue with the federal government and the discussions are good and constructive,” says Nicky Cayer.