Debates of Sept. 22nd, 2016

Opposition Motion--Appointments to the Supreme Court

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Mr. Speaker, I went to junior high in Charlottetown, P.E.I., so I am very glad to hear the conversation in the chamber today about the importance of Atlantic Canada. I am finding it a little rich, though, I must say, to hear my Conservative colleagues lecture us about Supreme Court appointments when there was, in the last couple of years, their backtracking on their promises and integrity, their not following very clear constitutional requirements, and their public attempts to undermine the integrity and reputation of the Chief Justice of the Supreme Court, a woman we hold in very high esteem across the rest of the country.

I do not feel that there are lessons to be learned from the Conservatives on how to appoint to the Supreme Court, so I invite my colleague, the member for Victoria, to describe more completely, as he is our justice critic, how to actually get diversity and high-quality appointments to our Supreme Court in Canada.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, I thank my colleague for her question and for reminding us about the shameful record of judicial appointments of the last government. The thought that Mr. Justice Nadon could be declared ineligible by our highest court, the fact that Mr. Harper would go on to publicly assail the integrity of Chief Justice Beverley McLachlin, turning an institutional dispute into a personal battle, another first in Canada, is a shocking legacy.

To the question of how we can fix it, we should make sure that all perspectives are brought to bear. We should privilege regional representation as one for which we have a proud history, but we should not use that as a straitjacket. We should ensure that other values are brought to the table.

I think we all agree that talented jurists in Atlantic Canada will rise, shall rise, and have always risen to the occasion, but we should be broader in our perspective. Have we ever had a judge from the north? Have we ever had a visible minority? Why is it that Prince Edward Island has not had a justice on the Supreme Court since 1924? Why is it that Newfoundland and Labrador has been shut out since it joined the Canadian family?

We need to do better. We can do better, and I am confident that we will.

[Sean Casey, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I cannot help but chime in at the mention of Sir Louis Henry Davies, the judge of the Supreme Court of Canada for whom our courthouse is named.

I would like to continue our conversation on the bilingualism of judges and the point the member for Victoria made in response to my last question.

When discussing the definition of functional bilingualism and whether it is an open question as to whether a judge who is functionally bilingual can actually speak the language, the definition actually contained in the policy brought forward by the Prime Minister is that a judge should be able to understand written and oral presentations from counsel without the need for simultaneous translation.

Surely the member would concede that someone whose level of comprehension is good enough that the person is able to understand legal arguments in written and oral form is most likely also to have the capacity to speak. That is not a big leap.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, I have been in the Supreme Court on more than one occasion, and I can say that the real action is when the questioning starts. It is not reading the factum. It is not being able to understand what counsel says. It is being able to pose the question that goes to the heart of the matter and ask that counsel what exactly their case is about. Functional bilingualism in some capacities may well entail what my friend has said, but in other capacities, particularly that capacity, I am surprised to think that the functional bilingualism requirement the government apparently is working on in developing assessment criteria would not include that critical ability to pose questions.

[Jenny Kwan, NDP, Vancouver East, BC]

Mr. Speaker, I thank my colleague, the member for Victoria, for his very thoughtful contribution to this debate. He mentioned the need for diversity in representation that reflects the faces of communities today across the country and in particular representation from the indigenous community. I am particularly interested in these points, and I wonder if the member could expand on how the government can actually achieve these important goals.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, the ability to understand indigenous customs has been noted over and over again as critical if we are to move forward with indigenous communities and understanding their law. That customary law, for example, is currently being studied by the University of Victoria. That has to be part of the makeup directly or indirectly in our Supreme Court. We have to start understanding that we have not just linguistic duality, but we have indigenous and non-indigenous legal traditions in our country as well.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Mr. Speaker, it is always a pleasure to rise in the House to speak on behalf of the people of Chilliwack—Hope and to engage in this debate today, especially when we talk about the need for the government to respect Atlantic Canada and the tradition and the convention that has been in place for over 140 years, which ensures that one of the Supreme Court justices is from the Atlantic Canada region.

I not only want to talk today about the issue of the Supreme Court and its representative from Atlantic Canada, but I also want to talk about the shocking tendency that we have seen already in just under one year for the Liberal government to take Atlantic Canada for granted.

I will be splitting my time with the member for Durham, Mr. Speaker.

Atlantic Canadians are very passionate about this issue. They have spoken loudly and clearly. They expect that the convention will be respected, that they will continue to have a voice on the Supreme Court when Justice Cromwell retires.

I am from British Columbia and we are speaking about this. However, the people of Atlantic Canada are speaking about it loudly and clearly. The Atlantic Provinces Trial Lawyers Association says that it is taking the extraordinary measure of seeking a court order in Nova Scotia Supreme Court that would require the federal government to amend the Constitution if it wants to drop regional representation as constitutional convention. The Minister of Justice's musings in the summer and the refusal to confirm that the next justice would be from Atlantic Canada could provoke a constitutional crisis. The Atlantic Provinces Trial Lawyers Association has gone down that road.

The Cape Breton Post in an editorial entitled, “We don’t lack diversity”, takes great offence to the idea that no one can be found in Atlantic Canada who can meet the other targets that the government has set. It said:

[The Prime Minister] has said he wants to ensure the top court reflects the diversity of the country. And that’s fine. We know it’s 2016. But we argue that he would have no trouble finding diversity in Atlantic Canada’s population and that there are surely multiple candidates from many different backgrounds in our region worth considering for an appointment. One can’t help but wonder whether or not the Prime Minister, seeing every seat in the Atlantic provinces go Liberal in the last election, is taking the allegiance of the region for granted.

That is exactly what we have seen from the Liberal members of Parliament from Atlantic Canada. They are taking that region for granted. The Prime Minister is taking that region for granted. There are several examples of that, not only with this Supreme Court issue. How about having a minister of the Atlantic Canada Opportunities Agency from Mississauga? There are 32 Liberal members, some of them in cabinet, none of them responsible for economic development in the Atlantic region. They were not good enough to do the job and instead someone from Toronto had to do it. What did we hear from the 32 Liberal MPs from Atlantic Canada when that happened? We heard nothing.

[Erin O'Toole, Conservative, Durham, ON]

What about Sean Casey?

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Nothing. Buzz all.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

There are other issues. I had the honour for the last year up until recently of being the fisheries critic for the official opposition—

[Some hon. members]

Oh, oh!

[The Assistant Deputy Speaker, Liberal, Anthony Rota]

I am enjoying the speech of the the hon. member for Chilliwack—Hope, but I have to interrupt him for a moment because I am getting buzz from all sides across the hall and from behind the hon. member. I want to remind hon. members to show a little respect and let the hon. member fo Chilliwack—Hope give his discourse. Thank you.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

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 South Shore—St. Margarets 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 Egmont has said nothing. The Minister of Agriculture has said nothing. The member for Malpeque has said nothing. Fishermen are getting no representation from their members of Parliament because they are too afraid to speak out.

The Prime Minister 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 Minister of Agriculture, 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 Minister of Justice 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.

[Sean Casey, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I would like to thank the Conservative Party for bringing forward this motion, which we support. It talks about the custom of regional representation. It is indeed one that is very important, one that we support, and one that we are upholding through the new process.

I do take exception, however, to the attempt by my friend opposite to try to drive a wedge within the caucus and the allegations that Atlantic Canadian members of Parliament are not standing up for their region.

He spoke fondly about the work of Gail Shea, but his distance between Prince Edward Island and British Columbia may have missed the fact that one of Gail Shea's legacies is pitting Prince Edward Islanders against one another with the EI zones.

He took a shot at the the Minister of Innovation, the minister for ACOA. Atlantic Canada has done significantly better under this minister than we ever saw under the Conservatives: $237 million in the Halifax regional municipality alone; agreements with provincial governments of more than $176 million on 51 infrastructure projects. I have been pretty busy with funding announcements in Prince Edward Island as well.

The question I have for the member is this. The process that we have announced will allow for Atlantic Canadian lawyers and judges to compete in a national competition. Does the member want to repeat and perpetuate the myth of a culture of defeat or does he think Atlantic Canadian lawyers and judges are up to the job of competing against everyone in Canada for this seat on the Supreme Court?

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Mr. Speaker, I am glad to hear that the member for Charlottetown is celebrating the fact that the ACOA minister is from Mississauga. If he is proud of that, I guess he can sell that at home. However, we certainly think the ACOA minister should be from Atlantic Canada.

As far as Gail Shea goes, she never allowed the P.E.I. lobster carapace size to be changed to the detriment of P.E.I. fishers. I was told by the fishermen I met with that the member for Cardigan, now the Minister of Agriculture, used to thump on the desk and say the he would never let it happen as long as he was there, or question how the the Conservatives even consider it. Of course it never happened. Now that the Liberals have changed it to the disadvantage of P.E.I. lobster fishermen, there is not a word from anyone on Prince Edward Island.

As for the idea of a defeatist culture, it is defeatist to think that there are not enough judges and lawyers in Atlantic Canada to fill the entire selection list for the Supreme Court position. This has been a convention for 141 years, and the Liberals are now saying to let Atlantic Canadians compete for a position on the court. We are saying that they should be guaranteed that position. That has been a convention. No prime minister before has ever considered backing away from Atlantic Canada in the way the current Prime Minister has. Once again, we are hearing nothing from Liberal MPs in the region because they are taking the support of Atlantic Canadians for granted. If they will not stand up for them, we will.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Mr. Speaker, is my colleague hearing what I am hearing today? Back in August, the Prime Minister's office confirmed that there was no guarantee the Cromwell seat would go to someone from the region. In fact, the statement from the office said that applicants were being accepted from across Canada, not just from Atlantic Canada, in order to allow a selection process that would ensure outstanding individuals would be considered for appointment to the Supreme Court of Canada. Today, we hear the Liberals say that they agree the government should respect the custom of regional representation for making appointments.

Are they trying to have it both ways? What is my hon. colleague hearing? Is this the PMO speaking? Have the people in the PMO changed their mind? Was the Prime Minister wrong? Do the members across the way know what they are doing?

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Mr. Speaker, there is only one voice, obviously, for the Liberal Party of Canada and that is the Prime Minister's Office.

The Prime Minister's Office decided that this seat on the court may not go to Atlantic Canada, and maybe today he is going to let the Liberal members vote a certain way.

Between August and now, the Prime Minister's Office has made it clear that they will speak for this caucus, that Atlantic Canadian MPs will remain silent, and when the Prime Minister wants to hear their opinion, he will give it to them.

[Erin O'Toole, Conservative, Durham, ON]

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 parliamentary secretary to the Minister of Justice, 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 Prime Minister and their Minister of Justice 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 Prime Minister 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 Minister of Justice, 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 Charlottetown, 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 Prime Minister's decision on a whim to erase a century of history, yet the MP for Charlottetown 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 Charlottetown, 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 Minister of Fisheries, another graduate of the Atlantic Canadian legal education system.

In June 2015, the member for Charlottetown 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 Prime Minister 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 Prime Minister'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 Charlottetown 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 Prime Minister 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 Charlottetown, to show some backbone and say no to this Prime Minister.

[David Lametti, Liberal, Parliamentary Secretary to the Minister of International Trade]

Mr. Speaker, I am curious about the member's interchanging use of the words “custom” and “convention”. Perhaps he could elucidate for us the difference between those two words.

[Erin O'Toole, Conservative, Durham, ON]

Mr. Speaker, had I had time to do a little more research, I would have checked to see if the school of law at McGill, where I know my friend taught for many years, had as its early dean a Dalhousie graduate. I would go out on a limb to say I think McGill was one of the later law schools to adopt the case law approach trailblazed at Dalhousie. Dalhousie followed the Harvard tradition, so it really goes back that far.

As the member well knows, our constitution is both written and by convention, and that convention is reinforced the longer the practice is maintained. In this case, I would suggest, and I hope he would agree with me, that in terms of constitutional convention, that also fits with the spirit of paragraph 41(d) of the Constitution Act, 1982. This is probably one of our oldest and most profound constitutional conventions.

I highlighted the word “custom” because in the last Parliament the MP for Charlottetown found that the diversity of having the Atlantic Canadian justice on the Supreme Court of Canada was fundamental. Now he seems to be backing away from that. For someone who is a well-spoken and thoughtful MP, trained in the legal system by Atlantic Canada, he should now stand up for it.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Mr. Speaker, I do not profess to be an expert in the legal system, but I listened intently to the interventions throughout the morning. Language such as “open and transparent” and “high quality” have been used by members of the government and, indeed, by our colleagues from the NDP, who have tended to cast doubt on the quality of the applicants or the Supreme Court justices, or the process that we have had previously.

My hon. colleague just said that perhaps the quality or talent of the jurists that we might find in Atlantic Canada might be in question. Is he indeed hearing the same when listening to the interventions from our hon. colleagues from across the way?

[Erin O'Toole, Conservative, Durham, ON]

Mr. Speaker, I would like to thank my friend from Cariboo—Prince George, particularly after I visited that part of the country this year. They are passionate people, represented by a passionate advocate. That is why he is concerned about this as a B.C. MP, as are some of my other B.C. colleagues with me here today. We are apparently more concerned than the 32 Atlantic MPs, because I do not see them speaking much, other than the MP for Charlottetown who is under strict orders from the Minister of Justice not to stray from the script.

He raised a good point. The legal action, asking for an order from the court declaring the Prime Minister's conduct unconstitutional, is from the Atlantic Provinces Trial Lawyers Association. He asked me if there were an impression that this callous act by the Prime Minister was causing a negative impression in Nova Scotia. Well, a legal action suggesting that it is unconstitutional by the men and women who make their livelihood advocating and defending people in our courts is a pretty good indication that they feel it is an affront.

I would suggest that the parliamentary secretary, the MP for Charlottetown, is likely still called to the bar there. He should talk to some of his colleagues.

[David Lametti, Liberal, Parliamentary Secretary to the Minister of International Trade]

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.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, I listened to the debate all morning and to be quite frank, the Liberal position is getting very confusing.

In August, the Liberals talked about having applications from across the country. I think they probably heard from Atlantic Canada fairly loud and clear that they have some significant concerns, in terms of the convention of having representation from Atlantic Canada.

Today, we are hearing they are going to support our motion, but then we hear a lot of words around that being only part of diversity. In the motion it is pretty clear to me that the short list should be all Atlantic Canadians and there should be an Atlantic Canadian who is chosen from that short list. Would the member confirm that indeed is the case when they support the motion?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Mr. Speaker, in answering that question, I would like to refer to a question that I posed to my hon. friend just a moment ago.

The motion today talks about custom. Custom can be departed from under a variety of different circumstances. We are not talking about a convention here that has crystalized into a legally binding norm. That is not the case.

Therefore, yes, we would like Atlantic representation to be one of the criteria that is looked at by the committee. It will certainly be a primordial criterion upon which the ultimate decision is based as to a choice of a Supreme Court justice. There will, in all likelihood, be a large number of strong Atlantic Canadian candidates for the Supreme Court, but we are talking about custom here. We are not talking about convention. Therefore, there is still the possibility, based on merit and these other considerations, that perhaps the best candidate for the job may not come from Atlantic Canada this time.