|| That the House call on the government to respect the custom of regional representation when making appointments to the Supreme Court of Canada and, in particular, when replacing the retiring Justice Thomas Cromwell, who is Atlantic Canada’s representative on the Supreme Court.
He said: Mr. Speaker, I am pleased and honoured to split my time with the hon. member for .
I cannot really start this without saying how moved I was by the comments concerning the member for . He has done an outstanding job. I have been very proud to serve in Parliament with him, and I was particularly moved by his speech. I would hope that people who study the history of the House of Commons will include his speech today as one of the great moments in the history of this chamber.
I am rising today in defence of the people of Atlantic Canada in regard to the 's questioning of the constitutional convention of appointing a representative from Atlantic Canada to the Supreme Court of Canada. I am speaking on behalf of Atlantic Canada, but indeed I believe everyone across this country has a stake in the constitutional convention that makes up the Supreme Court of Canada. If one is from western Canada, I am sure it would be as completely unacceptable if the Prime Minister started questioning whether we should have a seat on the Supreme Court of Canada. I believe that would be the case.
It was fascinating for me recently to look up the information on file concerning my great-great-grandfather, Alexander Campbell. He served with distinction as the member of the Legislative Assembly of Nova Scotia for Inverness County. While they did not have Hansard for many, many years in the way we now have it, they were transcribing people's exact words and would do a summation of what a member of the Legislative Assembly said, and they would publish that. I was fascinated to see, among other things, that he questioned whether Cape Breton was getting ignored or was getting its fair share from Ottawa. I thought to myself how unhappy and how ironic it is today that we are talking about Atlantic Canada being ignored and not being properly treated.
This has been a constitutional convention for over 140 years and is something that has worked well and is only appropriate. This is a vital part of this country. It has always been since this country's creation. There are 2.3 million Atlantic Canadians, and to say that they will now not have that constitutional convention of having a representative on the Supreme Court of Canada is not acceptable.
I am hoping that we in the Conservative Party will not be alone in challenging this. I have had people say to me, “You just have to understand, the Liberals do not like anything about our system. They don't like our electoral system, our voting system; they don't like the composition of the Supreme Court of Canada”. Well that is not good enough. There is nothing wrong with the wonderful systems that we have developed in this country, and what we have done with the Supreme Court of Canada is something we should be very proud of.
It is certainly my hope, as members will note from the drafting of the motion, that it will not be seen as partisan, or angry, or unreasonable. I am hoping that along with us in the Conservative Party, some of the 31 members of Parliament from Atlantic Canada will stand and say the same thing. Okay, the does not like it, but it is the right thing to do. Certainly I have heard a deafening silence, quite frankly, and certainly it is my hope that we will hear from some of the four Liberal premiers in Atlantic Canada. A week ago, I heard from the opposition leaders from the Progressive Conservative Party in Atlantic Canada, who were unanimous in thinking it would be a great idea for us to continue this constitutional convention, that it would be the fair thing to do.
It is not just us in the Conservative Party who think this is a great idea. There is a groundswell of support for supporting the existing constitutional convention. I would like to bring attention to others who have come forward.
One judge, apparently from Atlantic Canada, speaking on condition of anonymity, which I can understand, said:
|| Universally people feel that it’s a slap in the face. It’s looking at leaving Atlantic Canada out, and there’s really no need for doing it.
René J. Basque from the Canadian Bar Association said:
|| We would like to see the highest court continue to represent all regions of Canada. Representation of regions, legal systems and population all bring the range of knowledge and perspectives that inform the law.
A letter from the Canadian Bar Association states:
|| Our highest court must continue to represent all regions of Canada, including Atlantic Canada. Consequently, we urge you to amend the mandate of the Advisory Board outlined in your August 4, 2016 letter, to ensure that the Atlantic Canada vacancy is filled by a meritorious candidate from that region. We also urge you to honour regional representation in filling future vacancies on Canada’s highest court.
There is no problem with appointing qualified judges from Atlantic Canada. I had the great honour of being the longest-serving justice minister, certainly in my lifetime. I was involved with hundreds of appointments. There are outstanding individuals in Atlantic Canada who could do this.
That is all I am asking. This is all my colleagues in the Conservative Party are asking. Let us do the right thing.
We want to reach out to others. Quite frankly, there is a lawsuit by Atlantic Canadian lawyers who are taking this matter to court, because they say, quite correctly, that this is a violation of a constitutional convention. There is no question that it is. I have been very clear that, yes, it would be a violation of a constitutional convention, but I also believe it is the right and appropriate thing to do to have all areas of this country represented on the Supreme Court of Canada. It is not just the constitutional issue; it is the right thing to do.
There are many things that the government and the do not like. They do not like the electoral system in Canada. There are all kinds of things they do not like about the tremendous successes we have had in this country.
However, one of the successes that I think they should leave is the success of the composition of the Supreme Court of Canada. Again, I would say to those 31 members of Parliament from Atlantic Canada, please step forward and have a look at the wording of this motion. This is not overly partisan. There should be no problem with this. Step up, step forward for Atlantic Canada. I believe the people of Atlantic Canada will thank them for doing that. Their constituents will thank them for doing it, because they know it is the right thing to do.
Mr. Speaker, I rise today in strong support of the motion to call upon the and the government to appoint an Atlantic Canadian to fill the vacancy caused by Justice Cromwell.
Since the Supreme Court was established in 1875, every government has respected Atlantic-Canadian representation on the court, every government until the current government.
The fact that the government has opened the door to shutting out Atlantic Canada from the Supreme Court is objectionable, on multiple grounds. It demonstrates a total disrespect for Atlantic Canada and Atlantic Canadians, not to mention the dozens of high-calibre jurists and lawyers who are eminently qualified to fill the vacancy of Justice Cromwell.
It also shows a total disrespect for regional representation, which has been a staple of the institutional development of the Supreme Court, and, indeed, which has been a staple, more broadly, of the institutional development of Canada. It totally disregards a constitutional convention guaranteeing Atlantic-Canadian representation on the Supreme Court as well.
It was not more than two years ago that the Supreme Court, in the Nadon decision, held that Parliament did not have the unilateral authority to change the composition of a court.
Today, it is not Parliament that is seeking to unilaterally change the composition of a court; it is the executive branch. It is the government that seeks to unilaterally overturn the composition of this court by shutting out Atlantic Canada.
A little more than a month ago, the appeared before the justice committee. I asked her, in the face of the Nadon decision, exactly what authority, exactly what jurisdiction did the government have to unilaterally change the composition of a court. With the greatest of respect to the Minister of Justice, I did not receive a clear answer, and since that time I have yet to hear a clear answer from the her, or from anyone on that side of the House, on that important question. I suspect the reason I have not heard a clear answer is that there is a strong legal argument to be made that the government does not have the authority to unilaterally overturn the composition and change the composition of a court by shutting out Atlantic Canada.
What would the implications be if the decided that he would appoint someone other than an Atlantic-Canadian to fill the seat of Justice Cromwell? Obviously, Atlantic Canada would be shut out of the Supreme Court for the first time in 141 years. What is more, Atlantic Canada would be singled out as a region. It would be singled out because it would be the only region on the Supreme Court without representation. In light of the constitutional convention, there would be serious legal questions that would immediately arise, calling into question the constitutionality of such an appointment.
It is therefore no wonder that the Liberal appointment process has been widely critiqued by lawyers and academics right across Canada, from the Canadian Bar Association, from the Atlantic Provinces Trial Lawyers Association, and on and on.
However, who has not raised any objection and been collectively silent on the issue of Atlantic Canadian representation on the Supreme Court? They are the 32 Liberal MPs from Atlantic Canada. There has been not a word, not a peep, from the 32 Liberal MPs from Atlantic Canada; not a word, not a peep from the ; not a word, not a peep from the minister responsible for ACOA, the minister for Atlantic Canada. Where is he from? The minister responsible for Atlantic Canada is from Mississauga. I guess the memo never got to the that Mississauga is in Ontario and not in Atlantic Canada. Nonetheless the minister for Atlantic Canada from Mississauga, Ontario has said not a word in support of Atlantic Canadian representation on the Supreme Court.
What do we have? We have 32 Liberal MPs from Atlantic Canada who have been MIA, missing in action, when it comes to standing up against a constitutionally questionable appointment process. They are missing in action when it comes to standing up for 141 years of Atlantic Canadian representation on the Supreme Court. They are missing in action when it comes to standing up for the eminently qualified jurists and lawyers who hail from Atlantic Canada. Above all else, they are missing in action when it comes to fulfilling the core responsibility that they were entrusted by the people of Canada to do in this place, and that is to stand up for Atlantic Canada.
Over the nearly one year that I have been here, I have had the opportunity to become acquainted with a number of members from Atlantic Canada. I genuinely believe they are here to do what is right and to do their very best to represent their constituents and their region. That is why it is so sad and so disappointing that on this critical issue they have been missing in action.
However, this opposition motion provides those 32 Liberal members an opportunity to join us in the Conservative Party to stand up for Atlantic Canada. They have a choice. They can stand up for Atlantic Canadian representation or they can stand behind the 's constitutionally questionable, objectionable appointment process to shut out Atlantic Canada. The choice is clear. It will be interesting to see which choice they make.
Mr. Speaker, it is indeed my great pleasure to rise to speak to the motion regarding the process for selecting the next justice of the Supreme Court of Canada.
The motion rightly highlights the importance of the custom of regional representation. It is a custom that has served the court and our country well, and one that I wish to address with care. Before speaking to the issue of regional representation directly, I wish to situate the motion within the Government of Canada's new process for the Supreme Court of Canada appointments.
Canadians are extremely fortunate to have been served by judges of the highest distinction and ability since the time the court was established. Our Supreme Court is recognized nationally and internationally for its legal excellence and competence. Its decisions are cited by other supreme courts all over the world who look to Canada for leadership in the protection and promotion of rights and freedoms.
I would like to take a moment to recognize the extraordinary quality of the members of the Supreme Court, past and present. The justices of the court have each distinguished themselves in their judicial function, and it is a testament to the great ability of our legal profession that so many have done so with such distinction. The decisions of the Supreme Court interpret our Constitution, affirm our individual and collective rights, and highlight our responsibilities.
The selection process we have established is intended to ensure that the Supreme Court's proud tradition of excellence continues. By enhancing the credibility of the appointment process, we bolster Canadians' confidence in this essential institution.
While appointments to the Supreme Court of Canada have been of exceptional quality, the process itself has been open to criticism due to the lack of transparency and accountability. Canadians deserve an open and rigorous appointments process, which will enhance public confidence in our highest court. The Government of Canada is therefore extremely proud to have put in place a new appointments process for the Supreme Court that is open, inclusive, and accountable to Canadians.
Our new process achieves transparency in a number of ways, including providing detailed public information on the steps to be taken and the criteria that will be used to assess candidates. The identity of those making the assessments has also been made public.
Making the process and the criteria for decision making publicly known ensures that decision-makers can be held to account. To further bolster accountability, the chair of the advisory board and I will appear before Parliament to discuss the selection process and explain the government's choice of nominee.
The government's process has achieved an unprecedented level of transparency and inclusiveness by allowing any qualified Canadian lawyer or judge to submit their candidacy through an open application process. The body charged with identifying a short list of exceptional candidates is also inclusive in nature.
As hon. members are aware, the heart of our new process is the seven-member Independent Advisory Board on Supreme Court of Canada Judicial Appointments. The advisory board includes a retired judge nominated by the Canadian Judicial Council; two lawyers, one nominated by the Canadian Bar Association and the other by the Federation of Law Societies of Canada; and a legal scholar nominated by the Council of Canadian Law Deans. The other three members, including two non-lawyers, have been nominated by me as Minister of Justice.
The composition of the advisory board was designed to ensure that the candidates would be assessed by a non-partisan, independent body, and to ensure that the board includes the depth of experience, expertise, and diversity necessary to effectively apply the assessment criteria. In this regard, representation from the judiciary and the legal community provides critical input into assessing the professional qualifications of candidates. The lay members, who are prominent and well-respected Canadians, ensure a broader perspective and help bring the diversity of views to the board's deliberations. We have carefully selected members with a view to ensuring gender balance, diversity, including linguistic diversity, and regional balance in the committee's composition.
It is important to emphasize that board members do not participate to represent particular interests of constituencies. Rather, their role is to bring their diverse backgrounds and viewpoints to bear in identifying the best candidates.
The critical task of the advisory board is to provide the with non-binding recommendations of three to five qualified candidates and functionally bilingual candidates for consideration and that must include candidates from Atlantic Canada.
The period for applications closed on August 24 and since that date the advisory board has been evaluating the candidates in accordance with the published set of criteria, which relate to skills, experience, and the qualities candidates need to excel in our final court of appeal. The criteria also relate to the institutional needs of the Supreme Court.
More specifically, candidates will be assessed based on the following personal skills and experience: demonstrated superior knowledge of the law; superior analytical skills; ability to resolve complex legal problems; awareness of and ability to synthesize information about the social context in which legal disputes arise; clarity of thought, particularly as demonstrated through written submissions; ability to work under significant time pressures requiring diligent review of voluminous materials in any area of the law; and a commitment to public service.
Applicants will also be assessed based on the following personal qualities: an irreproachable personal and professional integrity; respect and consideration of others; the ability to appreciate a diversity of views, perspectives, and life experiences, including those relating to groups historically disadvantaged by Canadian society; moral courage; discretion; and open-mindedness.
Finally, in carrying out their assessments the advisory board will consider the following institutional needs of the court: ensuring a reasonable balance between public and private law expertise, bearing in mind the historical patterns of distribution between those areas in Supreme Court appeals; expertise in any specific subject matter that regularly features in appeals and is currently under-represented on the court; and ensuring that members of the Supreme Court are reasonably reflective of the diversity of Canadian society.
The government is confident that the application of these assessment criteria will lead to the identification of outstanding candidates for our highest court.
As noted, the advisory board is tasked with identifying three to five highly qualified, functionally bilingual candidates from among this pool of applicants, a list that must include candidates from Atlantic Canada. It will then be for the , supported by me as Minister of Justice, to select a nominee from this list.
Our government takes this responsibility very seriously. It will be done following consultations on the short list with the chief justice of Canada, relevant provincial and territorial attorneys general, cabinet ministers, opposition justice critics, as well as members of the House of Commons Standing Committee on Justice and Human Rights, and the Senate Standing Committee on Legal and Constitutional Affairs.
Once the has chosen the nominee, I will appear before the House of Commons Standing Committee on Justice and Human Rights with the chairperson of the advisory board to explain how the chosen nominee meets the statutory requirements and the criteria.
Further to the committee hearing, the nominee will also take part in a moderated question and answer session with members of the House of Commons Standing Committee on Justice and Human Rights, the Senate Standing Committee on Legal and Constitutional Affairs, and representatives from the Bloc Québecois and the Green Party. Our government believes that this process will set a high standard for accountability and serve to enhance Canadians' confidence in our justice system.
With the government's new process for Supreme Court appointments now in view, I turn to the important issue raised by the hon. member for regarding the custom of regional representation. I thank the hon. member for allowing me to address this important aspect of our new open and transparent process for Supreme Court of Canada appointments.
The motion calls on the government to respect the custom of regional representation when making appointments to the Supreme Court of Canada and makes special reference to the vacancy left by the retirement of Justice Thomas Cromwell.
I wish to speak in favour of the motion. Regional representation of the court has been front of mind throughout our efforts to create a new process for Supreme Court appointments. In the 's letter to the members of the independent advisory board, he tasked the board with considering the custom of regional representation as an important factor to be taken into account in formulating recommendations. The Prime Minister further ensured that this custom would be reflected in the short list prepared by the board in directing that the short list include candidates from Atlantic Canada.
In articulating the factors that will influence the board's deliberation and in directing the short list of names to include candidates from Atlantic Canada, the has affirmed our government's commitment to the custom of regional representation. Our commitment to representation on the court is real. It is a commitment to Canada's regions, but it is also a commitment to Canada's great diversity.
As our so rightly says, diversity is Canada's strength. It is not a challenge to be overcome, or a difficulty to be tolerated. Our diversity is a source of strength for us as a country. We believe that diversity in all its richness is also the strength for the Supreme Court and the judiciary generally. It is a belief that is shared by the hon. chief justice of Canada when she says:
|| Diversity within the judiciary is important for two reasons. First, like understanding social context, diversity on the bench is a useful way to bring different and important points of view and perspectives to judging. Second, a diverse bench that reflects the society it serves enhances public confidence in the justice system.
A Supreme Court that is not regionally representative will not be a diverse court. It is therefore for good reason that the custom of regional representation has developed and has been respected throughout the court's history. However, it would be a mistake to assume that this custom lacks flexibility or requires too rigid an application.
The custom's flexibility, as was mentioned earlier in the House, was manifest between 1979 and 1982 when Justice Spence from Ontario retired and was replaced in 1979 by Justice McIntyre from British Columbia. During the three years, the court was not served by the customary two, but by three justices from western Canada.
In 1982, Justice Martland of Alberta retired. He was replaced by a justice from Ontario. She was the first female justice appointed to our highest court. Her name will be well known to many, if not everyone, in the House. She is Bertha Wilson. Her appointment, which distinguished the court in so many of its great decisions, was made possible in part due to flexibility in the application of the custom of regional representation. Indeed, this precedent speaks to a more general truth.
The custom of regional representation requires some flexibility. Without flexibility, Canada's three territories will forever be without representation on our country's highest court. Too rigid an application of the custom would deny our great territories their opportunity to be represented on the courts. Without flexibility, western Canada would never have had three members on the court. Without flexibility, Atlantic Canada will never secure more than one member on our highest court. Without flexibility, we would blind ourselves to the great mobility of Canadians who practise law in different provinces and call more than one region of our great country home.
For example, Justice Bertha Wilson was called to the bar in Nova Scotia before practising in Ontario and being appointed as a judge of that province. To offer another example, Justice Thomas Cromwell was born in Kingston and practised and taught law in Ontario before moving to Nova Scotia and being appointed a judge of that province.
These experiences by Justice Cromwell and Justice Wilson and by so many other lawyers and justices across our regions' many jurisdictions enrich perspectives and contributions to the law. We must not be tempted to discount them by too quickly and too simply classifying Canadians into one or another region and denying their allegiances to another of our great regions. We must not be tempted to lose sight of the flexibility in the custom of regional representation.
In speaking in favour of this motion, I highlight the government's commitment to a Supreme Court that is representatives of Canada's regions and Canada's great diversity. I am confident that with this new, open, and transparent process for Supreme Court appointments, Atlantic Canadians, and indeed all Canadians, will see themselves reflected in this essential and esteemed national institution.
As a member of this House and as a Canadian, I look forward to the news of the 's ultimate decision and to the opportunity to hear directly from the candidate. It is incredibly exciting to be part of a process to appoint the next Supreme Court of Canada justice.
Mr. Speaker, the questions that Canadians are wrestling with today are about the kind of Supreme Court we want, and how we get there.
Are we satisfied with the various systems of executive appointments that have been used in recent decades, or is it time for a more open, inclusive, and lasting reform? Is the tradition of regional quotas working adequately today, or should it be considered alongside other values to make the court better reflect the makeup of this great land?
These questions should not be used to divide Canadians. Each of us and our friends and colleagues will answer them differently. Canadians in Atlantic Canada are right to be concerned about regional representation on the court. Of course, all of the Atlantic provinces cannot be lumped together. As a whole, the four Atlantic provinces have supplied three chief justices to our highest court, yet we have never had a justice from Newfoundland and Labrador, nor has there been a judge from Prince Edward Island since 1924.
The tradition of regional quotas on our highest court is silent about how to ensure fair representation amongst the Atlantic provinces, just as it does not guarantee balance between each of the western provinces. At any given moment, the court lacks representation from several western and Atlantic provinces, and there is no mechanism to ensure that these inequalities are evened out over time.
Not surprisingly, therefore, some Canadians wonder whether the system of strict regional quotas is actually fulfilling the principle of regional representation. There is broad agreement in this chamber and across the country that our highest court must mirror the Canadians it serves.
If we accept this principle, then we must acknowledge that regional representation is not the only principle at stake today. We must equally acknowledge the shameful fact that representation of minorities is now and has always been lacking entirely for our indigenous peoples and other Canadian visible minorities. We must recognize that while we celebrate the increased representation of women on our Supreme Court, women are still far from equally represented in our judiciary.
The question is not whether or not our Supreme Court ought to represent all Canadians and every part of this country. It is how do we build a system that ensures that representation for years to come?
Sadly, the motion before us fails to offer a solution. Instead, it seems to seek to divide us.
Nonetheless, we will be voting in favour of this motion. It includes two parts. The first is a general statement of respect for the custom of regional representation. Of course, we agree entirely with that proposition. Regional representation, as has been said, must continue to be a vital part of the fabric of appointments. However, the second part suggests that somehow Justice Cromwell is simply “Atlantic Canada’s representative” on our highest court. This is a narrow and atrophied view that shortchanges what Justice Cromwell has brought to the bench.
Peter Hogg wrote this on the issue of regional representation:
|| The nature of the judicial function, as understood in Canada and other countries in which the judiciary is independent, does not allow a judge to "represent" the region from which he was appointed in any direct sense, and certainly does not allow the judge to favour the arguments of persons or governments from that region.
It is vitally important that our court as an institution can, when considering a case from a particular region, understand that region's distinctive characteristics.
In order to understand how we got here, it is important to remind ourselves of a little history. The Supreme Court was established neither at Confederation nor by the Constitution Act, 1867. Although the Constitution Act did allow for the creation of a general court of appeal, that did not happen for another eight years. Until 1875, our final court of appeal was the United Kingdom's.
When a Canadian Supreme Court was created, it was established merely by a federal statute. That ordinary act of Parliament governs the court's jurisdiction and composition.
What was that composition?
At first, the court was comprised of only six judges and its statute required that at least two of those came from Quebec. In 1927, a seventh judge was added; and in 1949, two more. With that latest addition, the number of Quebec judges rose to the current composition of three.
The current pattern of regional representation--three justices from Quebec, three from Ontario, two from four western provinces, and one from the four Atlantic provinces--is in fact a quite recent practice, dating only from 1949. The existing arrangement has operated for some 67 years, but it is key to note that it has not operated in an automatic, lockstep fashion. For example, as the minister pointed out in her remarks, in 1978, Justice Spence of Ontario retired and was replaced by Justice McIntyre of British Columbia, not Ontario. Four years later, a justice from Alberta retired and was replaced by another from Ontario, Madam Justice Bertha Wilson, thus restoring, over time, the customary balance.
My point is that this is not a straitjacket; this is a convention that has been operated successfully, but not in an automatic fashion.
Similarly, the practice of alternating the chief justiceships between French-speaking and English-speaking justices, which has generally been followed since 1944, has also not operated continuously. It was not followed from 1984 to 1990, for example.
These two traditions served important roles of regional and linguistic representation, but they are neither particularly longstanding, nor constant in their application. Each furthers the true goal of a representative court, but not in a cookie-cutter fashion.
The convention of regional representation has helped avoid the worst inequities between our regions, but it has not resulted in fair representation for every province. As I said, it is a sad reality that there has never been a justice from Newfoundland and Labrador, and it has been almost a century since justices from Prince Edward Island have been on our Supreme Court.
Moreover, neither has the convention of alternating chief justiceships ensured fair linguistic representation, because, despite receiving submissions in both official languages, justices are not yet required by the Supreme Court Act itself to be bilingual. Many Canadians would be surprised to learn this. After all, a proposal to fix this was passed by the House of Commons as far back as 2010. Unfortunately, Parliament was gridlocked by Conservatives and it never became law.
However, I must salute the hard work of my colleague, the member for , who is carrying the torch on this vital reform.
This is about ensuring that future governments respect the basic principle of equal access to justice. That is what inspired our former colleague from Acadie—Bathurst , Yvon Godin, to fight for this bill in past Parliaments.
I am grateful to the member for for all his hard work and dedication to see that this goal is achieved this year.
In part, we have had to rely upon traditions and continual reforms because the statute that established the court and defined its composition simply imposes two requirements: first, that the nominee be either a judge of the superior court of a province, or a lawyer of 10 years' standing at the bar of that province; and, second, that at least three of the nine judges come from the civil law jurisdiction of Quebec.
Many Canadians feel that such an abbreviated statute does not capture the range of values that should inform appointments to our highest court. Canadians want jurists of the highest calibre. They want a judge and a court that represents all regions and understands our differing cultural and legal traditions, including, I hope, indigenous customary law. They want a court that mirrors the diversity of contemporary Canada. They want a court that offers equal access to justice to every Canadian, regardless in which official language they choose to make their case.
That is why it is so important to move beyond the secretive appointment processes used by past governments, Liberal and Conservative alike, and develop, finally, an open, transparent, merit-based appointment process that will stand the test of time. Sadly, the motion before us does not propose a solution to that problem.
Canadians have many different understandings of what makes a good jurist and a diverse court. How do we consider gender, race, ethnicity, age, sexual orientation, religion, and culture when we seek a representative court?
Just as there were many who resisted the idea of increasing appointments of women to our courts, some will argue that continuing our progress toward representative courts and diversity is just ticking a box and somehow comes at the expense of merit. However, to presume that the principles of merit and diversity are somehow in conflict is to do a disservice to the many great legal minds we find in Canada from all backgrounds. It ignores the value that diverse personal experience brings to the bench.
Canadians know that for courts to tackle the most pressing issues of law today they must understand our distinct regions, but they also need to understand much more. They need to bring the experience of racialized minorities to the justice system and the language and culture from which aboriginal treaties arose.
For those who would stand in the way of that progress, we have a simple message: In the 21st century, we expect our courts to be as diverse as our communities. That is not a lower standard. It is a higher standard.
We must remember that the gaps to be closed through these appointments are not narrow. For many Canadians, there is still a yawning chasm between their representation in our communities and their representation in our courts.
Women have made great strides toward equal representation in recent decades but still make up just one-third of Canadian judges. In our courts and in this chamber, we have a great deal of work to do to achieve equality.
In other areas, the gaps are even wider. A survey conducted this year of Canada's 2,160 lower court judges found that only 3% were racial minorities, and just 1% were aboriginal. In Ontario, where criminal courts struggle with an overrepresentation of black and indigenous defendants, and where child welfare cases in particular require sensitivity to cultural differences, just 24 of 334 judges identified as ethnic minorities.
In Saskatchewan, indigenous residents are under-represented in the courts by a factor of 10. All across the country, indigenous people are under-represented in our courts but overrepresented in our jails. In Canada today, that should be a call to action.
The question is this: How do we close the gaps and ensure that the Supreme Court of Canada accurately reflects and represents all Canadians in all parts of this great land? Canadians will answer that question in different ways. However, what is clear is that abandoning the project of developing a lasting, open, and transparent nomination process and returning to the days of secret selection will not accomplish the goal of fair representation.
It is also clear that the additional quotas have not succeeded in delivering fair representation for all provinces. Today there is neither equal representation for all provinces nor a fair balance among the western provinces or the Atlantic provinces.
What is perhaps clearest of all is that Canadians will not take any lessons from the record of the Conservative Party when it comes to the Supreme Court. That is the party that backpedalled on its promise of transparency, circumvented its own appointment process, ran roughshod over constitutional requirements, and in the Nadon fiasco, impugned the integrity of Canada's chief justice. That is not the basis for any model we should be looking to.
Our Supreme Court will not be strengthened by pitting Canadians against each other, nor can we simplify the problem of a representative court to simply a question of geography. Atlantic Canadians are not just residents of a region, they are also indigenous Canadians. They are Canadians from different ethnic minorities. They are Canadians from the LGBTQ community. They all expect a court that respects and understands their experiences.
Let me be clear. Atlantic Canadians deserve fair representation on our Supreme Court, and right now they deserve a straight answer from the Liberals on how the government will ensure it through the appointments process they have constructed. The Liberals should not be slamming the door on the wealth of excellent jurists in Atlantic Canada, nor can they abandon the principle of regional representation. Therefore, I am heartened by their support of this motion in recognition of that overarching value, one of many key values, as we go about support for our Supreme Court.
In conclusion, let us all commit to respecting regional representation as a key principle in balancing the composition of our court. Although it has never been a statutory requirement, let alone a constitutional one, it must be respected in the composition of the court.
That requirement, that convention, that custom, that tradition, has been honoured, but not, in our history, through a lockstep, automatic process where it is someone's turn. Rather, over time, our court has faithfully reflected the regional composition of our country, except to the extent that among western and Atlantic provinces there have been difficulties that I think still deserve greater attention.
Canadians are no longer content with the secretive process of the last Conservative government.
To the current government, let me say this. Do not consider only how the court has looked in the past. Think about how it ought to look in the future. It is time for the bench to include judges who are among our finest jurists across Canada and who also happen to be indigenous or from ethnic minorities or who identify as other than heterosexual.
This is much bigger than geography. This is about all the values needed to build a truly representative and modern Supreme Court for all Canadians, one that is wiser together than the sum of its parts.
Mr. Speaker, never let it be said that I cannot create a buzz in the room.
I was pleased to be the fisheries critic for the last year, during which I had the opportunity to interact with Atlantic Canadian fishers in different sectors. Just last week, the official opposition caucus took the opportunity to meet in Halifax to reconnect and re-engage with Atlantic Canadians, as the leader of the party has been doing. I believe she has made six visits to the region since she was elected as interim leader.
Having spoken with Atlantic Canadians, they definitely feel they are being taken for granted by the government. They feel they are being taken for granted by the very members of Parliament who they sent to Ottawa to speak up for them. An example is on the northern shrimp quota allocation, the LIFO system, which was rigged in favour of one province. All but one panel member was from Newfoundland and Labrador. All but one meeting was held in Newfoundland and Labrador and other regions that wanted a change to the northern quota system.
The minister accepted that recommendation and it cost the fishermen of Nova Scotia and New Brunswick tens of millions of dollars with the decision to take away their fishing quota. What did the member for say to the fishermen who had lost millions of dollars because of that decision? She said nothing. She has been silent, even though she campaigned on keeping the last in, first out system. Since that time, she has said nothing.
I was also in P.E.I. and met with fishermen in Charlottetown, LaVie, Morell, and O'Leary. What did they say? They said that the government had changed the lobster carapace size, something that Gail Shea never let happen in her entire time as a member of Parliament. She stood up for the fishers in Prince Edward Island. Now she is gone.
There are four Liberal MPs in that region. What have they said to protect lobster fishermen in P.E.I.? They have said nothing. The new member for has said nothing. The has said nothing. The member for has said nothing. Fishermen are getting no representation from their members of Parliament because they are too afraid to speak out.
The speaks for the Liberal Party of Canada in Atlantic Canada, not the members who were sent here to represent those constituents. The lobster fishermen I met with in O'Leary said that it seemed the , the member for Cardigan, has lost his voice. Members in the Conservative Party, be they from British Columbia, Ontario, or across the rest of the country, will speak up for Atlantic Canadians if no one on that side will.
Today the danced around whether she would actually insist that the next appointment to the Supreme Court be an Atlantic Canadian. The Liberals have said that they are insisting they be on the short list. That is not what we are asking for today. That is not what Atlantic Canadians are demanding. They are demanding that they continue to have the representation they have had on the Supreme Court for the last 140 years.
I want to quote another article, this time from The Guardian in Charlottetown, P.E.I. Gerard Mitchell, former chief justice of the Supreme Court in Prince Edward Island, stated:
|| Dear Prime Minister: I am writing to you to ask that you please revise your new policy on appointment of judges to the Supreme Court of Canada. The revision should affirm the well-established convention of filling vacancies with judges from the same region of the country as their predecessor.
|| Merit and ensuring the maintenance of regional perspectives on the court should be the litmus test for appointment. Bilingualism is certainly an asset, but it never has been, and never should be, an absolute requirement for appointment to the Supreme Court of Canada. The highest court in the land needs well-qualified judges, whether bilingual or not, from all the regions of Canada to bring to bear their perspectives on the great legal issues of the day.
|| Regional representation on the judicial branch of our government is an important aspect of our Canadian democracy. The pan-Canadian composition of the Court adds to the legitimacy of it’s Decision-making authority. The new policy, if unaltered, could someday result in all nine judges coming from one or two parts of the country.
We need to stand up for the people of Atlantic Canada. We in the official opposition will do it, even if the Liberal members of Parliament have chosen not to.
Mr. Speaker, it is an honour for me to follow my good friend from British Columbia who, in his last number of months in Parliament, has been a strong advocate for Atlantic Canada.
In his role as fisheries critic for the Conservative Party, he has brought attention to a range of issues, which shows that if someone is a parliamentarian with knowledge and passion, that person can represent all Canadians and, indeed, a region on the other side of the country that has not received such representation despite having 32 members of Parliament.
Every single member of Parliament from Atlantic Canada is a Liberal. I am going to highlight some of the hypocrisy that some of those members are demonstrating with their lack of commitment to equality for Atlantic Canada in one of our key institutions, particularly the , who regularly feigned outrage in the last Parliament if one touched the Supreme Court Act. He now describes the longstanding constitutional convention to have an Atlantic Canadian jurist on the top court as just a custom. Before, he had expressed it as a requirement of our diversity as a country.
It is profoundly disappointing. I do like a lot of the members from Atlantic Canada. As someone who has spent a lot of time there myself, I know they are well-intended. However, it is about time that they start to speak up to their and their to correct this major omission and start showing that there is more than just a silence of the lambs in Atlantic Canada.
I am passionate about this, as members can tell, because I am a product of the outstanding legal system and legal education system in Atlantic Canada, in my case, Dalhousie University. Dalhousie Law School, now known as the Schulich School of Law, is the oldest law school in the British Commonwealth, founded in 1883. In fact, the graduates from the early classes at Dalhousie Law School in Halifax became the deans of most of the early law schools across the country, including in Alberta.
Alberta still has a tradition of sending a number of great young minds to Halifax for law school, starting with many people like Joe Lougheed, son of former premier Peter Lougheed, and my friend, Luke Day.
That mix at Dalhousie, one of the finest schools, produces great legal minds. It is the law school for Newfoundland and Labrador. There is a special admission provision.
Between Dalhousie and the University of New Brunswick, they have some of the best legal education in the country. From the early days of our country, those lawyers, those judicial minds, have forged Canadian law here in Parliament, in legislatures, and at the Supreme Court of Canada.
For the to just wave that aside is rather insulting. For someone who claims that diversity is a fundamental tenet of his government, geographic diversity and the tradition of an Atlantic Canada seat to secure that geographic diversity seem like an afterthought.
Atlantic Canada's first justice, William Johnstone Ritchie, a Nova Scotia-trained barrister who became the chief justice of New Brunswick and was an appointment from New Brunswick, was appointed to the Supreme Court of Canada by Alexander Mackenzie, the first Liberal Prime Minister.
Let us—including the 32 members from Atlantic Canada—study the history. It was Sir John A. Macdonald, when he returned to office as a Conservative, who made Ritchie the first Atlantic Canadian chief justice of the Supreme Court of Canada. Some of that early jurisprudence is still referenced today.
These are important traditions in our country. To think that they can be so callously swept aside, even when the entire Atlantic Canadian region is represented by the government party, is astonishing. I would ask them to think about that. They could visit the grave of Justice Ritchie at Beechwood Cemetery here in Ottawa, which is emblematic of the significance of the Supreme Court to this country.
Sir Robert Borden, a Nova Scotia-trained lawyer and my favourite Prime Minister of this country, who held the country together through the challenges of the great war, started the Canadian Bar Association.
Atlantic Canada blazed the trail for common law jurisprudence and our legal education and judicial structure in Canada. There is no question about it. It punched well above its weight since the earliest days of Confederation. In fact, Joseph Howe, the father of representative government, granted to Nova Scotia the first stand-alone representative government of a British colony at that time. In Howe's tradition, I would ask the 32 members from Atlantic Canada to start speaking up, because they are not living up to the ideals of the men and women who have come before them.
Most recently, I had the honour of meeting Constance Glube, who just passed away this February. She was another Dalhousie law grad and the first female chief justice of a superior court in Canada.
I could go on, but it is disappointing that I have to give this primer to the , because she, and particularly her parliamentary secretary, should not disregard this important tradition and convention as easily as they are doing.
I will show the hypocrisy from the last Parliament. The MP for , who is a lawyer like me, and who practised for a time at the same firm, said this in February 2014:
|| I say that because the Supreme Court of Canada Act is also a piece of legislation that should be considered of the utmost importance given how the Supreme Court influences all our institutions.
That is when he was complaining about changes to a private member's bill.
We have no bill before this House. We have the 's decision on a whim to erase a century of history, yet the MP for seems quite fine with that. At least with a private member's bill, we had debate in this chamber. We had to bring this debate here through an opposition day motion.
The member for Charlottetown then went on to say in that same debate:
|| In normal times, when matters regarding the appointment of a Supreme Court justice arise, we would be assured that the process would unfold in a manner that was inclusive and meaningful. Canadians also expect matters related to the Supreme Court to be treated in a non-political way, and we expect appointments to be made to ensure a proper linguistic, gender, and regional balance as part of the process.
That was the MP for , who is taking part in this debate today, who now calls this just a custom, that there was a custom to have a judge once in a while from Atlantic Canada. I would ask him to stand up. It is time for a couple of them to do so, including the , another graduate of the Atlantic Canadian legal education system.
In June 2015, the member for also complained that there was an amendment to the Supreme Court Act in the budget implementation bill, and he feigned quite a bit of outrage at the time about that.
We do not even have legislation before this chamber. The feels that he can do what he wants, and so far the 32 members from Atlantic Canada are allowing him to govern that way. Nothing highlights it better than a legal action brought by the trial lawyers of Atlantic Canada, stating that the 's conduct constitutes an amendment to the Constitution of Canada. What the Liberals are doing is, in the view of leading Atlantic Canadian trial lawyers, unconstitutional. Where is the member for on this? This legal action was filed on September 19. Specifically they cite paragraph 41(d) of the Constitution Act, on the composition of the Supreme Court of Canada.
As an essential feature of our constitution directly and through convention, the Supreme Court has had for over a century Atlantic Canadian representation. Justice Cromwell, a distinguished jurist, was just the most recent example of that in the long line that goes back to Chief Justice Ritchie. It concerns me that among the photo ops and press conferences he has had, the feels that not only can he disregard a century of constitutional convention, but that he can also disregard the profound and leading impact of Atlantic Canada in our modern judicial system, and claim that he is doing this with diversity in mind.
Diversity is as much in our regional differences and our viewpoints that come from our lived experience in these regions. That is why it is a convention. It is just one seat. To take that away from the part of Canada that gave us our modern common law is atrocious, and now is the time for the 32 members from Atlantic Canada, led by the MP for , to show some backbone and say no to this .
Mr. Speaker, I will be sharing my time with the hon. member for .
It is an honour for me to speak to the motion today, in part because of the way in which the Supreme Court of Canada has touched my life. I had the privilege of being a clerk at the Supreme Court of Canada in 1989-90 for Mr. Justice Peter deCarteret Cory. It was one of the formative years of my life. Justice Cory's picture remains hung in my office, and he remains a daily example of what it means to be an ethical human being. Every day I think about the way in which Mr. Justice Cory treated me, my co-clerks, other judges, and the counsel in front of him. Imperfectly, I try to aspire to be as good as he is.
The motion today, and it is an important point, is about a long-standing custom that we have respected in Canada since around 1949. In more formal terms, it is that the composition of the Supreme Court of Canada be composed in a certain way, including one judge from Atlantic Canada. It is important to note that it is a custom, not a convention, and we have departed from that custom in the past.
Let me say that I speak, as well, as a former law professor at McGill University, where I taught for 20 years, and also as someone who has not only seen the inside workings of the Supreme Court as a clerk and seen the way judges struggle with legal interpretation, but I have also argued before the Supreme Court and prepared documents for pleadings at the Supreme Court, both oral and written.
I would also like to point out to my friends across the way that I spent my first professional year teaching at the University of New Brunswick. It was a wonderful year. It was the first year of my married life, and it was a wonderful experience for me to be teaching, thinking, and reflecting about law in Atlantic Canada with Atlantic Canadians, particularly, as my students.
The important point here is diversity and, with diversity, the idea that there will be additional perspectives added to the Supreme Court.
Yes, to date, Canada has been blessed with linguistic and cultural diversity. We have a statute in place stipulating that three of the justices must come from Quebec, which is very important to respecting Quebec's civil law tradition and the right to submit arguments and receive rulings in French in Supreme Court cases.
For this reason, bilingualism is a critical requirement. Let me defend the passive bilingualism that our government is putting forward. It is de facto and de jure what we have done at McGill over the past 20 years.
I have worked with counsel preparing for cases. I have seen counsel plead. I have seen the debates over each and every word that goes into both oral and written pleadings. I have never heard a top-quality advocate, and I have interacted with many of them, say that the language they are choosing for their oral or written pleadings is not important. Therefore, forcing those arguments to go through a translator after so much thought has been put into them is unfair. It is unjust to the clients and the lawyers who are putting forward those cases. Therefore, with respect to oral and written pleadings, it is a necessary precondition that judges at the Supreme Court of Canada be able to understand the nuance of the language in its original language without the benefit of translation.
I disagree with the hon. member across the way who previously said that they ought to be able to ask questions as well. Yes, that would be desirable but it is the understanding of written and oral pleadings and the understanding of all of the work that goes into each and every word, time-limited and page-limited arguments in front of the Supreme Court, that makes the functional bilingualism requirement an absolute necessity for fairness in this country.
I would like to move on to the principle of regional representation. It is true that, according to custom, since at least 1949, one justice comes from the maritime provinces.
However, we have departed from this tradition. In 1978, then-prime minister Pierre Elliott Trudeau appointed Justice McIntyre from British Columbia to the Supreme Court of Canada, even though it was Ontario's pick. It was only four years later, when Mr. Justice Ronald Martland from Alberta stepped down, that Ontario got its third seat back in the form of the appointment of Justice Bertha Wilson.
There is not a good argument, although I know there is a legal argument that has been advanced in certain quarters that this has crystallized in some way into hard and fast law. I think the better legal argument is that we have had no such crystallization and that while this is a custom and it is a custom to be respected and it is a custom that our government is committed to respecting, there is still some flexibility for us to depart from that custom where circumstances require.
I would say, in my experience with the court and teaching law over the past 20 years, that gender diversity, which we have already tried to achieve at the Supreme Court of Canada, has been fundamental to the progress of law in Canada. The impact of Bertha Wilson, Claire L'Heureux-Dubé, Beverley McLachlin, Louise Arbour, Rosalie Abella, and Suzanne Côté has been capital in the way in which we have reconceived a number of different doctrines in public law, private law, and criminal law. Think of reproductive rights, think of the Criminal Code, and also private law, where the fact that we have had this diversity has made us a better country and has made our laws more just.
The glaring absences right now are an aboriginal person on the Supreme Court of Canada and a person of colour on the Supreme Court of Canada.
Let us reflect upon the impact of including these perspectives, and I am not saying representation. It is not representation. It is bringing perspectives in because everyone we expect on the Supreme Court will be a jurist who decides cases based upon the merits. However, in bringing their perspectives to the court, we will get fuller understandings and more just decisions. We need as a country, as a government, to recognize that the evolution of Canadian society is such that these absent perspectives on the Supreme Court of Canada has a negative impact upon the very concept of justice in our country. We owe it to our citizens to hear these perspectives. We owe it to our citizens to enshrine, to some extent, the principle of getting these perspectives into various positions of power, including the Supreme Court of Canada where they can be elaborated.
I will not speak to the process. Other colleagues have spoken to the process. However, we are trying to get a transparent, open process back into the appointment process of Supreme Court judges.
Is there a value in regional diversity? Yes, there is. We recognize that Atlantic Canada has had a seat on the Supreme Court of Canada for many years and that this is a custom which we ought to respect, all other things being equal.
However, let me say that there are other competing values of diversity, including gender diversity, including cultural diversity, including linguistic diversity, which also have to be in some way represented on the court in order for us to ensure just decisions.
One of my other mentors was Roderick Macdonald, long-standing professor and dean at McGill who was also the chair of the Law Commission of Canada. He wrote a fundamental report on residential schools in Canada that had an impact on the Truth and Reconciliation Commission. What Dean Macdonald used to say was, “Who bears the burden of justification?”
We will have a group of candidates, three to five, that the selection committee will put before the House. Our government will gladly bear the burden of justification should in fact we feel we have to depart from the custom of Atlantic representation. That being said, we fully support the motion that this is an important value and this custom ought to be respected where possible.
Mr. Speaker, I must admit that I have been very touched by all the praise that our colleagues in the opposition benches have been heaping upon people from the Maritimes, their abilities and their potential. Not that long ago, however, their outgoing leader said to anyone who would listen that those same people, whom the opposition members are praising so highly here today, have long had a culture of defeat. I am pleasantly surprised by this sudden change in attitude in my opposition colleagues.
Getting back to today's motion, I would like to thank the hon. member for for his motion on this issue, as well as the House for the opportunity to address it.
It is clear that the people of Atlantic Canada and other regions of the country strongly believe that the tradition of regional representation on the Supreme Court of Canada, the highest court in the land, must be maintained.
As hon. members know, the Supreme Court is an essential aspect of Canada's constitutional structure. The Supreme Court, the final court of appeal for all legal matters, including those that are constitutional in nature, plays a decisive role with regard to upholding human rights and the rule of law.
The Supreme Court has ruled on a wide range of important legal and social issues in our country, from medical assistance in dying, to marriage equality and the Crown's duty to consult and accommodate first nations.
How we select Supreme Court justices is therefore of utmost importance to all Canadians. That is why last August, our government announced a new Supreme Court of Canada appointment process that is open, transparent, and accountable. Under this process, an independent, non-partisan advisory panel was formed and was tasked to put forward the candidacy of qualified, high-calibre jurists who are functionally bilingual and representative of the diversity of our great country.
Former prime minister Kim Campbell presides over this advisory panel made up of seven members who have ties to every corner of the country. Four of them were selected through independent professional agencies, and the panel also includes non-jurists. The advisory panel will review the candidacies and will present a short list of three to five people to the for his consideration.
When the Prime Minister announced the new Supreme Court appointment process in August, many people were surprised to learn that the jurist selected to replace Justice Richard Cromwell would be chosen from a list of candidates who are not exclusively from one of the Atlantic provinces. I can see why people may be surprised, since this contravenes the practice that has been used to date.
However, sometimes traditional practices need to be reconsidered, and we believe it is time to do just that and see where it will lead us.
We are aware of how important the composition of the Supreme Court is and that some parts of the process are established by legislation. For example, under the Supreme Court Act, at least three of the judges must be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province. That is not simply a matter of geography, but a consequence of the nature of Canada's justice system, which is based on two legal traditions.
As many of my colleagues know, Quebec's legal system is based on the civil law tradition, whereas that of most of the other provinces is based on the British model of common law.
The appointment to the Supreme Court of three justices from the list of Quebec's great legal minds seeks to ensure that the highest court in the land is equipped with people who understand the traditions of that legal system, not just representatives of a particular province.
In addition to this critical distinction in the law, there are other important elements that need to be considered and that go far beyond geographical considerations.
The first woman to be appointed to the Supreme Court was the Hon. Bertha Wilson in 1982. Since then, many other women have been appointed. It is now an accepted practice to strike a balance in gender representation among justices of the Supreme Court. However, other groups that have always been under-represented have not managed to make such significant advances.
The government is determined to have the Supreme Court of Canada reflect the diversity of Canadian society.
By allowing people across the country to apply under the new process, we hope, to some extent, to see this vast diversity reflected in the selection of the judges who will sit on Canada's highest court for many years. We believe that the Supreme Court will benefit not only from their vast legal knowledge and experience, but also from their life experience.
For example, Canada is proud to have an increasing number of talented indigenous jurists, including judges, lawyers, and scholars. Furthermore, our country has many jurists who are people of colour, people with disabilities, members of LGBTQ communities, or people who do not fit the traditional mould of a Supreme Court justice.
Canadians of all communities are invited to encourage exceptional jurists to apply for the position of Supreme Court of Canada justice. The appointment process that we have established responds in part to the concerns expressed about previous processes. The open nature of the process is unprecedented and addresses some of these concerns.
Some of the country's greatest legal minds have sat on the Supreme Court bench since its inception, and for good reason.
As the said, we will uphold that tradition. We will even strengthen it with an open, transparent, non-partisan process for selecting Supreme Court justices.
The process will ensure that people of the highest distinction and greatest ability to represent Canadian society are appointed to the highest court in the land. Our government has put in place a new standard process that will result in greater diversity among the Canadian judges and lawyers who become part of that tradition regardless of where they come from or what region of Canada they call home.
Legal minds who better represent the diversity we have in this country will have the opportunity to take on some of the most important responsibilities there as they contribute to the legal and social framework that guides our country's evolution.
I am proud of this process and what it represents. I am proud that candidates from Atlantic Canada, high-calibre people who can compete with their colleagues across the country, were evaluated by the independent appointments advisory board. I have every reason to believe that some of them will be on the short list of three to five candidates given to the .
We look forward to finding out what this new selection process for our new Supreme Court of Canada justices means for us and for Canada.
Mr. Speaker, I wish to advise that I am going to be sharing my time with the member for .
It gives me great pleasure to rise today. Like many in the House, I have roots in Atlantic Canada. My grandfather and grandmother came from Atlantic Canada. I still have family there. It really gave me great pleasure to go back to Atlantic Canada last week with all of my colleagues as we fanned out to meet Atlantic Canadians and to reconnect with them. What was interesting was that, as I travelled to areas of Nova Scotia and Cape Breton and in some cases travelled beyond where I was supposed to go—there is a long story of getting lost in Atlantic Canada—it gave me a great opportunity, as it did my colleagues, to meet many Atlantic Canadians.
One of the things I heard consistently as I met those great people of Atlantic Canada was that they voted Liberal but they did not vote for this. When I asked them, it was debt and deficit situations and there was significant concern around the Supreme Court and the representation on the Supreme Court for Atlantic Canadians because, quite frankly, they are feeling betrayed. I am going to point out a bit later some of those prominent Atlantic Canadians who are feeling betrayed by the Liberal Party and the 32 MPs who were elected to represent them. That is why it gives me great pride to stand up here today, not only on behalf of family and friends, but as a caucus of members who truly care about Atlantic Canada.
I want to address something that the member for talked about just prior to my rising in this House. He talked about the transparency of the system as it relates to the advisory board. He talked about the advisory board itself, the composition and the hon. members. No one on this side is doubting the composition of the hon. members of the advisory board. However, we have heard throughout the discussions today with respect to the mandate letter, and it is important to understand that there is one part of the mandate letter that is really lacking on the issue of transparency and on the issue of accountability. There is a sentence in the mandate letter that says that the advisory board will provide the Prime Minister with non-binding, merit-based recommendations of three to five qualified and functionally bilingual candidates for consideration.
Dare I say, out of respect for the members of the advisory board, that the farcical nature of what this advisory board may come up with is that the power to appoint a Supreme Court justice lies in the hands of the ? Members of the opposite side can say all day that it is an open and transparent system. However, in fact that non-binding aspect of that mandate letter certainly opens it up for political discretion and, as a result, may lead to a member not being appointed from Atlantic Canada as has been the 141-year custom of this country.
That also leads to the question of what else they would be willing to break. What other long-standing constitutions and customs of this country would the Liberals be willing to break? That will certainly be seen as this decision for the appointment of the Supreme Court justice comes up.
As I said earlier, as our party is doing today, I want to be the voice of Atlantic Canadians and tell this House what they are saying about this process and speak for those Atlantic Canadians, who are not being spoken for by the 32 members of this House.
The Canadian Bar Association president, Janet Fuhrer, said:
|| The Canadian Bar Association firmly believes that appointments to the Supreme Court of Canada should be based on merit, ensuring that our judiciary reflects the full diversity of our regions, legal systems and population.
Where are the voices of the 32 members of Atlantic Canada on this? They are silent.
In Charlottetown's The Guardian on August 22, Alex Whalen, who is a columnist, wrote:
|| There is no need for improvements in the process to come at the cost of a voice for Atlantic Canada. While admittedly different than the regional interests that parliamentarians represent, top judges should come from across the country so as to bring a proper understanding of regional context to their position and judgments. A key facet of the court is to rule on matters of national implication. The view from the high court cannot be truly national while excluding an entire region of the country.
Where are the voices of the 32 members of the Liberal caucus?
Mr. Todd Doherty: Silent, muzzled.
Mr. John Brassard: They are silent, Mr. Speaker.
The Atlantic Provinces Trial Lawyers Association's Mr. Ray Wagner, in Halifax's The Chronicle Herald, on September 20, just the other day, said that the convention, in place for 141 years, should not be changed without invoking the Constitution’s amending formula because the Supreme Court of Canada has already made a similar ruling regarding proposed changes to the Senate.
Where are the voices of those 32 Liberal MPs from Atlantic Canada on this issue?
An hon. member: Nowhere.
Mrs. Cathy McLeod: Muzzled.
Mr. John Brassard: They are silent, Mr. Speaker.
Probably the most damning response to the government's plan on this issue comes from an editorial in The Telegram in St. John's. The headline is, “Resistance isn't futile on Supreme Court snub”, and goes on to state:
|| Decisions by the Supreme Court are no less important. Members of the court must include the best minds and abilities from each region. The PM’s idea of diversity differs from time-honoured convention. Diversity means recognizing regions.
Where are the voices of the 32 Liberal MPs from Atlantic Canada on this issue?
Some hon. members: Muzzled.
Mr. John Brassard: Mr. Speaker, the reason I am bringing this up is that I want to bring the voices of Atlantic Canadians to the House, as we are doing on this side today.
A headline in The Globe and Mail on September 20 reads, “Lawyers call on PM to pick Atlantic judge”, and further states:
|| The Atlantic Provinces Trial Lawyers Association applied to Nova Scotia Supreme Court on Monday for a declaration that the “Prime Minister’s proposed departure from the constitutional convention of regional representation on the Supreme Court of Canada” requires a constitutional amendment and the unanimous consent of all provinces....
|| But does the tradition of regional representation amount to a constitutional convention? “Oh yes, definitely,” Peter Russell, a political science professor emeritus at the University of Toronto, told The Globe. “An important part of our Constitution is to have the highest court in the land which interprets the Constitution have legitimacy in the various regions of Canada.”
Where are the 32 voices of the Liberal MPs' Atlantic caucus?
Some hon. members: Silent.
Mr. John Brassard: They are silent, Mr. Speaker.
Finally, editorialist Kelly McParland of the National Post said what I think is the most condemning. Again speaking on behalf of Atlantic Canadians, she stated:
|| No government has so fervently professed its devotion to “inclusion”—gender, ethnicity, identity, what have you—yet it dismissed more than a century of practice, shrugged off regional expectations and reduced the Maritimes to second-class status with a casual shrug and nary a peep of reproof.
Where are the 32 members of the Atlantic Liberal caucus?
Some hon. members: Silent.
Mr. John Brassard: They are silent, Mr. Speaker.
On behalf of my family and on behalf of the many families who still live in the Atlantic provinces, the people we want to have a voice, Conservatives are standing up today for them, to make sure that the nomination to the Supreme Court maintains that 141-year constitutional convention and the representation on the Supreme Court for all Atlantic Canadians. That is why we are here today.
Mr. Speaker, I, too, believe that I am the voice of the people of Atlantic Canada, where I lived between the ages of two and 11. Acadia is still very much a part of me, and that is why I absolutely had to speak about it today.
Right in the middle of summer, the arrogantly and unabashedly announced that he intended to change the historic process for appointing Supreme Court justices that has been in place since 1875.
More than any other, this government announcement has has made me dislike the political party that currently governs our great country. Yes, like many Canadians, I am outraged by such actions and attitudes that show the true arrogance of this government.
I am saddened by this unsettling desire, so brazenly expressed by the , to radically alter our constitutional customs, the very customs that have informed government policy for so long in Canada.
If this Liberal government decides to change the constitutional convention for choosing Supreme Court justices without first obtaining the consent of all parliamentarians in the House, it will be going too far. Therefore, and I am choosing my words carefully, this government's actions in the past few months make me fear the worst for the federal unity of this great country.
The is not just interfering in provincial jurisdictions whenever he feels like it, but also interfering in his own areas of jurisdiction by planning to make sweeping changes without even consulting the opposition parties or the public. This is nothing short of anti-democratic. There are other examples of this.
First, the plans to change Canada's nearly 150-year-old voting system without holding a referendum to do so. It is no secret that he and his acolytes are doing this for partisan reasons and to protect their political interests as well.
Then, this same shamelessly suggested just this morning that he wanted to put an end to a 141-year-old constitutional convention. I am talking about the constitutional convention whereby a Prime Minister selects and appoints a judge to the Supreme Court when a seat becomes vacant while ensuring that the new appointee comes from a region similar to that of the person who occupied the vacant seat.
The purpose of this constitutional convention is to guarantee that the decisions rendered by the highest court in the country reflect the regional differences in our federation. Must I remind the political party before me that Canada has five distinct regions and that those regions are legally recognized?
The fact is that Jean Chrétien's Liberal government passed a law that provides for and gives each of the regions of Canada a quasi-constitutional right of veto. Accordingly, the Atlantic provinces, and their region as a whole, do have a say when it comes to the Constitution Act of 1982.
What is more, the British North America Act guarantees the Atlantic provinces fair and effective representation in the House of Commons. For example, New Brunswick is guaranteed 10 seats. The same is true in the Senate, where it is guaranteed just as many seats. Under the same convention, each of the Atlantic provinces holds at least one seat on the Council of Ministers.
How can our friends opposite justify threatening, out of the blue, to reduce to nil the Atlantic provinces' presence in the highest court of the country? If the government moves forward with this new approach, will it do the same to Quebec, the national stronghold of French Canadians? That does not make any sense.
I invite the government to think about this: can the Supreme Court of Canada really render fair and informed decisions on cases affecting the Atlantic provinces without any representation from that region?
Justice for Atlantic Canadians means treating them as equals. It seems the Liberals could not care less about the regions even though every one of them includes distinct communities that want Supreme Court decisions to reflect their values, goals and ideas about the world.
For the to suggest, if only in passing, we defy the convention whereby one seat on the Supreme Court of Canada's bench is reserved for Atlantic Canada is offensive to many legal experts and associations, including Janet Fuhrer, a past president of the Canadian Bar Association, and Ann Whiteway Brown, president of the New Brunswick branch of the Canadian Bar Association.
Echoing this sentiment are the Law Society of New Brunswick, the Atlantic Provinces Trial Lawyers Association, and the Société nationale de l'Acadie, which advocates on behalf of Acadians worldwide.
Disregarding this constitutional convention is tantamount to stripping four out of ten provinces of their voice in the highest court in the land.
Must I also remind members that the Atlantic provinces have a large pool of extremely qualified legal professionals who come from every region and background and who are perfectly bilingual? More importantly, these are candidates who have a vast knowledge of the Atlantic provinces' legal systems and issues. Is there anyone in this House, or elsewhere, who would dispute that?
Even more importantly, there are a few significant constitutional cases on the horizon that could have major repercussions on the Atlantic provinces. Consider, for example, the case referred to the Nova Scotia Court of Appeal regarding the elimination of protected Acadian ridings. Hearings on this are currently under way.
Is the really thinking about having judges from other regions rule on a case that deals with how Acadians are represented, when Acadians have been fighting for their survival on this continent for generations?
Is that really what our friends across the aisle want? Do the Liberals from Atlantic Canada really want to muzzle New Brunswick and Nova Scotia, two founding provinces of this great country?
The change that the wants to make to how judges are lawfully appointed to the Supreme Court is essentially a total and complete reversal of this country's established constitutional practices. How shameful and how arrogant.
It would seem the son is following in his father's footsteps. Do hon. members not see what is happening? Just like his father before him, the wants to alter the constitutional order of our country.
Fear not, however, because we in the Conservative Party are not buying it. We not only see what this is doing, but we also see know full well that behind this change in convention is a much greater ideological design.
There is an underlying desire to profoundly change Canadian constitutional arrangements and replace them with a post-materialist world view that is a departure from our constitutional traditions.
In this world view, the main objective is to eliminate from our government institutions, in this case the Supreme Court, the historical and traditional community characteristics that have defined Canada since day one by replacing them with individual and associational characteristics.
In other words, the obviously wants to eliminate the political predominance of certain constituencies in the Canadian constitutional order, at the Supreme Court in particular. He wants to promote a new political predominance, that of associational groups that bring together individuals who share individual rights rather than constituent rights.
Although that may be commendable in some ways, it is a major change because the is ensuring that the very essence of political representativeness and the concept of diversity within the judiciary is changed. The wants a representativeness based on a concept of individual diversity and fragmented by idiosyncratic characteristics.
In light of this potential change, Canadians across the country, including those from Atlantic Canada, must protest and call on the to answer for this. The cannot act unilaterally in this case and must involve all the players concerned.
Mr. Speaker, before I begin, I would like to point out that I do plan to share my time with the hon. member for who is sitting just to my right.
It is always an honour to rise to speak in the House on any issue that has the importance to get to the floor, but today I am particularly excited because I have the opportunity to speak to an issue with which I am not only familiar but that I care about. It inspired me to get involved in politics in the first place and it impacts a region that I care about more than any other place on planet earth, and that is Atlantic Canada.
Today we are debating a motion in the House involving the appointment of Supreme Court justices, namely the custom to appoint a Supreme Court judge to fill a vacancy that was left after the retirement of a judge from that same region.
This whole debate arises out of the new process that the Liberal government introduced to introduce an open and transparent process that is independent from the executive and non-partisan in that it has a former Progressive Conservative prime minister, and that is different, chairing the committee that is overseeing this whole operation. This is the kind of process that the International Commission of Jurists implored the previous government to introduce when it came to the appointment of Supreme Court justices.
If we set aside just for the moment, but I will come back to it, the importance of regional diversity on the court, this process would be stellar. There would be no questions, and I expect it would not even be controversial enough to make it to the House because it would get universal support. However, on the issue of regional diversity, it is important, and I am supporting the motion for this reason. It is about federalism.
Federalism is part of the constitutional fabric that makes Canada the country that it is. As discussed by the Supreme Court of Canada, an institution I deeply respect, they described it as a political tool that promotes diversity within our country and enhances national unity at the same time.
In the Nadon reference, which I will come back to again in a moment, the Supreme Court flagged that it is not just sections 5 and 6 of the Supreme Court Act that make regional representation in government important, it is also about the understanding of legal traditions and social norms. We could supplant Nova Scotia's name or Quebec's and the argument would remain the same. I do support regional diversity on the court, and I hope Atlantic Canada is represented on the court. This idea that 32 Atlantic Canada MPs are silent while we are actively speaking out like this in the House of Commons is laughable and false.
What I really have to get to here, and this is the grand take-away from my remarks, is that given the messenger, it is hard to take this criticism seriously when we had 10 years of a Conservative government that sought to undermine the integrity of the Supreme Court of Canada, the justice system in Canada, and indeed to diminish Atlantic Canada as a region in our federation.
I mentioned the Nadon reference previously. That case revolved around the attempted unconstitutional appointment of a Supreme Court justice. In that case, what made it worse was that on the back end of the decision, the Conservative executive, the Prime Minister's Office, was involved in a spat with the chief justice of the Supreme Court of Canada. She is a tremendous jurist who we are lucky to have in this institution. Instead of abiding by a decision that they disagreed with, which would have been the mature thing to do, the Conservatives launched an adolescent spat to try to undermine the integrity of the most pre-eminent legal institution in our country. They should be ashamed of themselves.
In addition to the Conservatives' disrespect for the Supreme Court of Canada, their attitude toward justice in Canada boggles my mind. What they sought to do was spend millions of Canadian taxpayers' dollars to defend charter violations time and time again, which makes it hard to take criticism legitimately from the opposite side on how we are dealing with the Supreme Court of Canada.
When it came to assisted dying legislation, the Conservatives sought to ensure that the legislation the Supreme Court required would not get passed. When it came to protecting vulnerable people such as drug addicts and sex workers, they sought to introduce criminal legislation that would make these people less safe. The Supreme Court of Canada said no, they were not allowed to do that. When it came to their attempts at Senate reform, the Supreme Court said they were doing it wrong again.
When it came to trying to deny full access to aboriginal title to our indigenous population in western Canada, the Tsilhqot’in case, the Supreme Court said no. When it came to a ban on medicinal marijuana, on the basis that marijuana cannot be a medicine that patients use, the Supreme Court said no. When it came to introducing mandatory minimum sentences, the opposition, when they were in government, took the attitude that they were better positioned as legislators in Ottawa than a jurist sitting on the ground with the accused before them and access to a full body of evidence. I cannot understand it, and again the Supreme Court said no, that is not allowed.
It is not just the Supreme Court that the Conservatives attacked, it was the justice system from top to bottom. We need to look no further than their attempts to, again, spending taxpayer dollars, refuse the integration of Omar Khadr into Canadian society. When it came to the case of Ron Smith, they got tied up in litigation that was based around the refusal to ask diplomatic services to protect a Canadian who was on death row in another country.
I apologize in advance if I get emotional about the next one because it strikes home with me. The Conservatives spent $1.4 million Canadian taxpayer dollars to deny health care benefits to refugees. I am particularly emotional about this one given the experience that my community has had in welcoming refugees to rural Nova Scotia on the eastern shore in Pictou County and in Antigonish.
I feel compelled to draw attention to one example who have now become my friends, the Hadhad family in Antigonish. They ran a chocolate factory in Damascus that employed 30 people and in a week, they lost everything, a lifetime's worth of work, to the war. When they landed in Nova Scotia with nothing but the goodwill of the community to welcome them, they started from scratch. However, they said that if they had to start from scratch they would start that day and they started making chocolate in the basement of the home the community found for them. When they were on their feet, they decided they wanted to give back and when the wildfires broke out in Fort McMurray, they donated a month's worth of profits to the relief efforts in Fort McMurray.
These are not only the kind of people we should be welcoming as newcomers to Canada, but we should be aspiring to be as Canadians. While we welcomed them to our shores, the Conservatives now in opposition spent $1.4 million seeking to deny them access to a full range of healthcare benefits and it was disgraceful.
Continuing on the theme that it is hard to take this criticism legitimately, there is a latent narrative the Conservatives are trying to push in the motion that Atlantic Canada is not being effectively represented despite the fact that there are 32 strong Liberal MPs. I find it ironic that the Conservative Atlantic MPs have been silent on this. Perhaps it is because there are none, because they do not speak to issues that matter to Atlantic Canadians.
Since the election we have been focused on growth in Atlantic Canada. We are constantly advocating for the rights of Atlantic Canadians and investment in the region. Just this summer when the visited New Glasgow and 4,200 people came out to see him, we had announcements of $190 million in infrastructure, $75 million in affordable housing, and $50 million in small craft harbours. These investments create work in the short term, but lay the framework for economic growth in the long term and that is what matters to Atlantic Canadians.
What excites me most is that these are not one-off investments. These are part of a strategy that was announced in July called the Atlantic growth strategy and this strategy was not something that we campaigned on. It was not in our budget. It was a plan that was formed in direct response to the feedback of 32 Liberal MPs working with the government to ensure that the interests of our region are represented in the priorities of the government, and we are having success. This plan focuses on immigration, innovation, infrastructure, trade, and tourism. These are the priorities of the Atlantic caucus that have made it into federal policy and will help Atlantic Canada grow.
It was difficult, 10 years of watching Conservatives diminish my region economically by revamping EI. Their plan for Atlantic Canada was to encourage young people to move to Alberta. The kinds of investments we are making are going to allow young people and families to stay in our region. I cannot stand here and listen to criticism either about the role of the Supreme Court of Canada or members' supposed defence of Atlantic Canada after the record they had in government. I am very pleased to stand here knowing in my heart of hearts that we have been standing up for the rights of Atlantic Canadians, acting on their behalf. I will continue to act as an advocate within our caucus and in public for my region because that is the job I was elected to do.
Mr. Speaker, I am pleased to be here today with many of my colleagues from the Atlantic caucus, all 32 of us. Many of us have been here this morning, and those of us who were not were busy doing work for their constituents and parliamentary affairs throughout Parliament, and so they were working hard for their constituents.
I am pleased to be rising in the House to speak on the opposition motion moved by the member for , which does deal with regional representation on the Supreme Court and in particular Atlantic Canada.
The Supreme Court of Canada affects all Canadians from coast to coast to coast. Thus, a rigorous appointment process is of the utmost importance to ensure that Canadians of all walks of life can be represented in this important institution.
Our government has committed to an open, transparent, accountable process to appoint jurists of the highest calibre who are functionally bilingual and representative of the diversity of our great country. I would like to take a moment to discuss what exactly this will mean for the constituents of my riding of the Long Range Mountains in Newfoundland and Labrador.
My constituents voted for change, clearly. That change means a functional, effective, and representative government that respects the institutions of our country and our regional diversity. Atlantic Canada's representation on the Supreme Court bench is just one example of the new tone that Newfoundland and Labrador can expect from this government. Our position on the motion, presented by the , is one that I am proud to take to my constituents and Canadians everywhere.
When appointing Supreme Court justices, the former Conservative government used an opaque, outdated process that desperately needed overhaul. Canadians had limited information about the nominees, and the criteria for their selection was unclear. We heard the frustration that Canadians felt with the way the former government operated.
We listened to Canadians, we heard their concerns, and we campaigned on a platform of open and transparent government. In this case, that means when we are selecting justices for the Supreme Court, our government will make public the members of the independent advisory board, the assessment criteria, the questionnaire that all applicants must answer, and certain answers provided to the questionnaire by the 's eventual nominee.
Not only that, but the and the chair of the advisory board will appear before Parliament to discuss the selection process. A number of members of Parliament and senators from all parties will also have the opportunity to take part in a question and answer session with the eventual nominee before he or she joins the bench. That means members of Parliament can truly represent their constituents in this process of utmost importance to our region.
My home town in Newfoundland and Labrador has its own unique issues, as does all of Atlantic Canada. I have one of the largest ridings in the country. My riding of the Long Range Mountains starts at the southwest coast of the island, taking in the little communities of Grey River and Channel-Port aux Basques. It then runs along the Great Northern Peninsula to St. Lunaire-Griquet.
When I mention the size of my riding, it is not just as a geography lesson for the members across the aisle about a region of the country they forgot in their time in power, but it is also to give folks a sense of the scale of the region.
It takes about nine hours to drive the 700 kilometres to Channel-Port aux Basques, and if I go to the areas on the south, it is a six-hour boat ride. With all due respect, some members from other parts of the country may not realize the sheer size of Atlantic Canada. While this is only an example, it highlights the desire and importance of having somebody on the bench who can understand the unique challenges and issues that come up when dealing with court cases at the Supreme Court.
The regional perspective is crucial and so important when it comes to future members of the bench. As I said earlier, the Supreme Court has a direct effect on every part of the country, but there are very few areas of the country where federal government decisions can have such an impact on people's daily lives. People from Atlantic Canada understand that reality.
One of the largest industries is the fishery in my riding. Because of that, when I speak with my constituents, as I did on wharves all summer, one thing is always clear to them, the decisions made by the Department of Fisheries and Oceans.
I raise this because I find it interesting that the members opposite have suddenly developed an interest in Atlantic Canada. They suddenly decided that Atlantic Canada is important to them. I find it ironic that this recognition was missing for 10 years while they were in government. It was clear that they did not understand or recognize the importance of the Long Range Mountains.
I look forward to concluding my remarks after question period.