Don’t Rebuild It

I wrote yesterday about the uncertain constitutionality of the federal government’s outsourcing of the choice of potential nominees for the Supreme Court to the government of Québec (or any other province). The government’s reliance on such a process is, according to the Globe’s Sean Fine, who broke the story yesterday, not intended to create a precedent. But of course the provincial government would like it to become one. And today, André Pratte has an op-ed in the Globe arguing to that it should. Remarkably enough, Mr. Pratte seems to have no qualms about the extra-constitutional introduction of a fundamental change to the process of Supreme Court appointments. He writes that

[c]onstitutional deals reached in Victoria (1971), Meech Lake (1987) and Charlottetown (1992) all contained provisions to give the provinces a substantial role in the selection of Supreme Court justices. That part of those federal-provincial agreements was not controversial; it just made sense. A constitutional agreement is not needed to achieve better balance. All that’s required is that the federal government decide that the process currently being followed in the aftermath of the Nadon imbroglio will be the rule from now on. (Paragraph break removed)

As I explained in my last post, this may or may not be so. But even if Mr. Pratte is right that a constitutional amendment is not necessary to make the new appointments process permanent, I believe that he is wrong to advocate for it. In his view,

Ottawa’s absolute discretion in choosing members of the Supreme Court has long been considered a flaw in Canada’s federal system. Peter Hogg, the country’s foremost expert on constitutional law, summarizes the argument in this way:

The court serves as the ‘umpire of federalism’ and it is inappropriate that the judges should be selected by only one of the contending levels of government.

Mr. Pratte adds that if the new process becomes permanent,

the damage done to the Supreme Court by [the Prime Minister’s] recent words and deeds will be repaired. Better still, the legitimacy and credibility of the court will be heightened, especially in Quebec.

This argument does not follow. To the extent that the Prime Minister has succeeded at damaging the Supreme Court (and it is not at all clear to me that he has), the words and deeds by which he did so ― the failed nomination of Justice Nadon and the government’s subsequent criticism of Chief Justice McLachlin ― had nothing at all to do with the “flaw in Canada’s federal system” which the new appointments process will supposedly rectify. Had the government appointed a judge of the Québec Court of Appeal instead of Justice Nadon, the alleged damage would not have happened, despite the appointment being “flawed,” in Mr. Pratte’s sense.

Yet how much of a flaw is it really that the federal government appoints judges unilaterally? In practice, the Supreme Court’s recent blockbuster decisions ― the one concerning the eligibility of Justice Nadon and that in the Senate Reform Reference ―, as well as Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837, which declared a proposed federal securities regulator unconstitutional belie any claim that the Supreme Court is biased in favour of the federal government.

And even at the level of theory, there is a good argument to be made for unilateral federal appointments. Canadian history has borne out James Madison’s famous argument in Federalist No. 10 that small polities are more vulnerable to “faction” and the tyranny of the majority than larger ones. Our federal governments have tended to be more moderate than provincial ones, and less susceptible to takeovers by ideological entrepreneurs from outside the Canadian mainstream, whether the Social Credit of Alberta or the separatists of Québec. Foreseeing this, the framers of the Constitution Act, 1867 gave the power of appointing judges of provincial superior courts to the federal rather than the provincial governments. It stands to reason that the judges of the Supreme Court, whose decisions have effect not only in one province, but throughout Canada, should a fortiori be appointed by the government more likely to be moderate and representative of the diversity of the views of the country ― that is to say, by the federal government.

Québec’s case is illustrative. The federal government presumably is comfortable with, or at least not very worried about, outsourcing the selection of potential Supreme Court judges to a relatively friendly, federalist government. Would it have felt the same way if the Parti Québécois ― not only separatist, but also committed to the infamous “Charter of Québec Values” (which the federal government had vowed to fight in court!) had won the recent provincial election? And how would Mr. Pratte ― who, to his great credit, was among the leaders of the fight against that shameful “Charter” ― have felt about its proponents picking the names of the judges who would have had the last word on its constitutionality?

The power to appoint Supreme Court judges belongs to the federal government, and it alone, for good reason. Taking up the Court’s architectural metaphor, the constitutional edifice built in 1867 (and 1875, when the Court was created, and then 1982 when it was, so it says, constitutionally entrenched) has weathered some great storms, and given us all shelter and comfort. It is in no danger of crumbling. Do not try to rebuild it.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading. View all posts by Leonid Sirota