Mr. Speaker, I will be sharing my time with the hon. member for Madawaska—Restigouche.
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.