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Announced last week, it was described in most news reports — where it was reported at all — as a “deal.” The government of Quebec would be given, for the first time, a formal say in the appointment of Supreme Court justices from the province, a prerogative hitherto reserved exclusively to the prime minister of Canada.
And in return? What would Quebec give up, or Ottawa gain, from this “deal”? The same as in most such deals between the federal government and the provinces, Quebec in particular: nothing. No concessions to federal authority, either in this field or another. Not so much as a thank you note. Federalism is all about give and take, of course; it’s just that it seems it’s always the feds that give and the provinces that take.
Prime ministers are well advised to consult widely on any Supreme Court appointment, no matter which province the appointee is from, as generally they have. The Trudeau government had previously gone so far as to codify the process in the form of a seven-person advisory board for each appointment — four drawn from the Canadian legal community, three selected by the federal government.
The board is supposed to propose a shortlist of three to five candidates, which is reviewed by various luminaries including the Chief Justice, the attorneys general of the provinces from which the candidates hail, “relevant cabinet ministers,” opposition justice critics, as well as the appropriate Commons and Senate committees, before being put to the prime minister — who can ignore them all if he wishes.
In the case of appointments from Quebec a quite different process will now apply. The advisory board will be drawn up not from across Canada, but almost entirely from Quebec; two of them will indeed represent the government of Quebec. The board’s recommendations will, after consultations held exclusively in Quebec, be passed to the premier, who will then forward his choice from among them to the prime minister.
This sort of thing is not supposed to be kosher, constitutionally speaking
Meanwhile, the same list of candidates will be put through the federal consultation process described above, though you can guess how much weight it will have. And in theory the prime minister remains free to ignore them all. But who’s kidding whom? The prime minister who rejects the nominee of the premier of Quebec will be bold indeed; the prime minister who picks someone not on the shortlist drawn up by the Quebec government and provincial legal establishment will be suicidal.
So this will effectively provincialize a key federal power. Quebec already enjoys a special status when it comes to the Supreme Court, being the only province with a guarantee of a fixed number (three) of seats on the court by the Constitution, rather than by convention. (Most, of course, don’t even get that. Question: who was the last Supreme Court judge to be appointed from Saskatchewan? Answer: Emmett Hall — in 1962.)
But now Quebec will also control how these are appointed; again, uniquely. This isn’t a formal constitutional amendment, nor is this the same as the proposal contained in the Meech Lake Accord, which would have explicitly required the prime minister to pick from provincial lists, and not only in Quebec but across the country. But, realistically, it’s the next thing to it.
Indeed, under the terms of the memorandum of understanding between the two governments, the feds will be pretty much hogtied. The process applies not only to the current appointment, needed to replace Justice Clement Gascon, but to all future appointments. And while the agreement can be altered “with the written consent of the participants,” if the two are unable to agree on an amendment, “the arrangement will continue to apply.” (Not that any future federal government is likely to try. The Conservatives are currently proposing to hand the government of Quebec control of federal taxes.)
It would seem particularly strange to be entrusting the appointment of Supreme Court judges, and therefore the interpretation of the Constitution, to the government of Quebec.
This sort of thing is not supposed to be kosher, constitutionally speaking. When the Harper government proposed to subject the prime minister’s choice of Senators to non-binding consultative elections, the Supreme Court got very exercised about the effect this would have on the constitutional “architecture.” Will the Supremes be similarly vexed by this latest attempt to achieve indirectly what the Constitution prohibits directly? Don’t bet on it.
It would seem particularly strange to be entrusting the appointment of Supreme Court judges, and therefore the interpretation of the Constitution, to the government of Quebec, which historically has shown the least use for it. Over the years governments of all parties in the province have pretended that the province was “left out” of the 1982 Constitution, or indeed that the Constitution did not apply with regard to the province’s supposedly inalienable right to secede.
The current government of Quebec under Premier Francois Legault is proceeding with legislation whose effect would be to ban members of certain religious minorities from employment in much of the public service. Most legal authorities would say this is a flagrant violation of the Charter of Rights, but no doubt the Legault government could find members of the Quebec bar who would look more favourably on it. And it is this government, at this moment, to whose appointees we are to entrust the Charter?
Yes, of course: the province has a distinct legal tradition, the civil code and all that. But the federal government is quite able to take that into account on its own, without taking instructions from the premier. Or if it must make such a concession to provincial rights, it could at least get something in return!
Copyright Postmedia Network Inc., 2019
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