The Power of Perspectives

The Canadian Bar Association

Kim Covert

Working the convention: Regional representation on the SCC, please

July 13 2017 13 July 2017

Chief Justice Beverley McLachlin’s announcement in June that she will be retiring at the end of 2017 means the government will soon start the process to fill her seat on the Supreme Court. Once again, the CBA is asking the government make an appointment based on merit, ensuring that the court reflects the full diversity of Canada’s regions, legal systems and population.

McLachlin’s seat on the court is one of the two traditionally held by Western Canada. The jury is out, however, on whether that seat should go to a jurist from British Columbia, which is where the Alberta-born McLachlin was a sitting judge before her appointment to the Supreme Court, or to any of the four provinces west of Ontario.

Last year when Justice Cromwell’s departure from the SCC left the traditional Atlantic seat empty, Prime Minister Justin Trudeau announced a new, transparent appointment process for SCC judges, and opened up the field to “any Canadian lawyer or judge who fits the criteria.”

At that time the CBA wrote to Trudeau and to Justice Minister Jody Wilson-Raybould asking that the government respect the traditional divisions of the court into one seat from Atlantic Canada, three from Ontario and two from Western Canada. The Supreme Court Act dictates three Quebec seats. Cromwell’s seat was eventually filled by Justice Malcolm Rowe, the first-ever member of the high court from Newfoundland and Labrador.

In June, President René Basque wrote to Trudeau and Wilson-Raybould to reiterate the CBA’s request that the government uphold the convention of regional representation as a core element of diversity, though he acknowledged that “west” may be in flux – not only is there a question of whether British Columbia gets its own seat, it is also unclear how the territories fit in this system.

The CBA strongly believes appointments to the court should be based on merit, and sees merit as a three-pronged package: the first prong is knowledge of the law and experience; the second is personal attributes like high moral character and empathy; and the third is diversity of perspective, including regional perspective.

 “The CBA welcomes an accessible and transparent judicial selection process that genuinely encourages qualified candidates who reflect the full diversity of our population and our legal systems, while respecting the framework of the convention of regional representation.”

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