Regional Representation on the Supreme Court: Did Harper snub Newfoundland?

While the choice of Justice Thomas Cromwell to succeed retired Justice Michel Bastarache on the Supreme Court of Canada (“SCC”) has been universally hailed, Stephen Harper’s abandonment of the vetting process has been the subject of intense scrutiny. On Monday TheCourt.ca contributor Rebecca Ross examined Harper’s decision to bypass the ad hoc parliamentary selection committee and argued that the Prime Minister has risked politicizing the selection process. The criticism continued this weekend as various news outlets quoted harsh words from Newfoundland’s Justice Minister Jerome Kennedy, who expressed his chagrin that Harper overlooked his province once again in choosing someone to fill vacancy on the SCC. Newfoundland remains the only province that has never produced a SCC justice.

Kennedy characterized the Prime Minister’s decision to abandon the selection committee process as “an example of Harper flexing his political muscle and saying to the people of Newfoundland and Labrador that this is what happens to you because of your premier,” making reference to the frosty relations between Harper and Newfoundland Premier Danny Williams. The Globe and Mail also quoted Kennedy as saying, “Stephen Harper continues to treat [Newfoundland] with disdain and disrespect… the constitutional convention is such that this was our turn. But he, in effect, is saying that we don’t have qualified candidates.”

However, for Kennedy to say that it was Newfoundland’s “turn” to provide a SCC justice by way of constitutional convention is misleading. It suggests that there is a kind of rotation between the Maritime provinces, when this is not the case; otherwise, a SCC vacancy would have been filled by a Newfoundlander years ago. The tradition on the SCC has been to have one justice from the Maritime provinces, but three of the last four incumbents have been from New Brunswick, demonstrating that there has never been a practice of provinces taking turns to fill the seat.

More importantly, regional representation on the SCC is not a constitutional convention per se, but rather a loose tradition springing from historical habit. The only required regional representation, as provided by the Supreme Court Act, RSC 1985, c S-26, is to have three of the nine judges appointed from Quebec, the justification of which is to ensure that the Court has justices well-versed in that province’s civil law system. Apart from Quebec, only political common sense and adherence to past practices have perpetuated the pattern of there being three justices from Ontario, two from the Western provinces and one from the Maritimes. Evidence that this distribution is not a rule, but is instead up to the discretion of the executive, came in 1978 when British Colombia’s Justice McIntyre was selected to replace Justice Spence from Ontario, thereby disrupting the usual regional makeup of the Court.

It is unfortunate that Harper chose to snub the parliamentary advisory panel, especially given his criticism of previous governments for not having a more transparent selection process. But the choice of a SCC justice has always been within his office’s purview by powers granted by the Constitution, and he was never under an obligation to choose a nominee from Newfoundland or even the Maritimes. Although Newfoundland doubtlessly has many worthy candidates to fill the vacancy (some of whom were named by Philip Girard in a TheCourt.ca post last April) and Harper effectively denied them the chance to be vetted by the advisory panel, Kennedy’s vocal and virulent objections to what has happened is puzzling.

He implies that Harper bypassed vetting any judges from Newfoundland as a way of punishing the people of Newfoundland and Labrador for their popular support of Danny Williams. However, Newfoundlanders has nothing to gain from having one of their own chosen to sit on the SCC, other than provincial pride. While a judge drawn from a certain province does, as Peter Hogg writes, bring to the Court “an understanding of [that] region’s distinctive legal, social and economic character,” having greater regional representation on the Court has no significant effect on decision-making. A judge cannot represent the interests of her regional origins any more than she can represent her socio-economic background.

Kennedy is understandably miffed that the esteemed judges of Newfoundland were not given formal consideration, but his vitriol is overstated. Harper may have a myriad of reasons (political or otherwise) for choosing Cromwell so hastily and without the help of a non-partisan advisory panel, but I am skeptical as to whether spiting the people of Newfoundland and Labrador was one of them.