Mr. Speaker, I appreciate the opportunity to speak on an issue that has caught my attention since the first announcement was made in the heat of this year's summer.
I grew up in Cape Breton Island. I went to law school. I am very proud to come from the same street as the Chief Justice of the Supreme Court of Nova Scotia, Michael MacDonald. Why I am proud of that is because it showed me growing up that people could do whatever they put their mind to. That was a very important principle for me.
Having the knowledge that a Supreme Court Justice was possibility from Atlantic Canada, as a lawyer, was very personal to me and very important. I can recall that when I would be reading law at Osgoode Hall, I would be looking to see what the various justices from the Atlantic provinces would say, because oftentimes it reflected what I thought and what I felt.
The ironic part was that it really did not have to do with whether they were Scottish, and I was Scottish, or if they were a man and I was a woman. What really came through was the geographic sensibilities associated with the thought process in taking decisions. We are, at the end of the day, nothing but a product of the environment in which we are brought up. Indeed, geography is incredibly important. When we think of it, every member in the House self-identifies as being from a certain geography. I am the member from Milton. Some would say I am the member from Cape Breton, sometimes. I am not, that goes to the members opposite who were here earlier.
Geography has been an incredibly important part of our country. As members have probably heard from many of the members already on our side here today, the reality is that this was reflected in the bargain for Confederation. That was the precept upon which we came together. Indeed, as an Atlantic Canadian, I do not know if we got a great bargain. We only got one out of the total, instead of asking for more at the table.
Today we find ourselves in a situation where we are being told that we do not even get that one. After 140-some years we are not guaranteed that position. I do believe it is a guarantee. I believe that was a term that was a precedent condition, a condition precedent for us joining Confederation and continuing along.
Throughout the history of the Atlantic provinces, specifically Nova Scotia and Cape Breton, we often say that the best times we had was when we first joined Confederation. We were at the height. We were the fishers, we had the forestry, and we were the ones who made the money and riches. The minute we became part of Confederation, perhaps we did not do as well, and perhaps that is the situation we find ourselves in today.
I have a more precise dissertation and a disagreement with the process being put forward. The process is important, because what I understood from the Minister of Justice this morning was that the reason why we were in the situation today regarding no geographic confirmation for Atlantic Canada was because we had come up with a new process.
The Liberals said that they had an election promise for transparency, inclusiveness, and accountability, and I accept that. That is what they ran on, and those are good principles to ensure we get the right jurist to sit on the Supreme Court bench.
However, to utilize the example and the excuse that there is a process that has been set out which may not yield a jurist from Atlantic Canada is not an excuse for not doing it. It is kind of like we heard in question period today. Just because the rules are there that allow us to do something, does not necessarily mean that thou shalt do it. However, it is reversed. The rules are in place and thou shalt do it.
From what I understand, the process is that the Minister of Justice has set up an advisory committee that will develop a short list. We know the mandate is that the jurist must be fluently bilingual and reflect diversity in the country. The end result is that this long-standing convention of geographical representation has been deemed non-necessary. I do not think that is a proper outcome of the process that has been put in. The Liberals could very well have made it mandatory within their process to ensure that this precept was respected in the advisory committee.
Our motion today would restore the notion that having a qualified jurist from the Atlantic provinces would be a constitutional requirement and should respect it as such.
I want to thank the official opposition House leader for reminding me that I am actually splitting my time today with the member for Sherwood Park—Fort Saskatchewan. That is why she is doing such a good job in her new role. Quite frankly, I will take up everybody's time here to talk about Cape Breton and Atlantic Canada, which are so dear to my heart.
Let me talk about what Peter Hogg said with respect to the notion of setting up an advisory committee process. As many may know, Peter Hogg is an incredible jurist who I have the utmost respect for and indeed he is the foremost person who understands constitutional law in our country. When he talks in terms of what the appointment process is and where we should go in that process, he says the following with respect to an advisory committee at the end of his dissertation.
He basically has two objections to an advisory committee process. The reason why he has an objection in the first case is that when we create one of these smaller kinds of advisory committees, we end up with a situation where the advisory committee is so insular, it is afraid to go outside and find someone who may be a little controversial. He recognizes there have been some controversial appointments to the Supreme Court in the past. Specifically he cites a particular one where was decided to appoint someone of the Jewish faith to the Supreme Court of Canada who may not have come out of a closed advisory committee. Indeed, I agree with Professor Hogg that this problem can happen when we utilize an advisory committee.
The reality is that we may not end up with a process as robust. Indeed, I believe the Minister of Justice indicated that the Prime Minister would choose from the list provided by this advisory committee. Therefore, in a sense we are handing this over to seven individuals, who are probably all fine individuals, and I do not in the least indicate that I do not have confidence in their abilities. However, in that kind of group-think we may end with a result that does not yield the best jurists.
That is in general. I believe we cannot hide behind the notion that this advisory committee will make all of the decisions. Some discretion has to be left for the Prime Minister to make the choice of nominating and indeed appointing and approving a Supreme Court candidate. The flip side of that is ministers in his government cannot hide behind an advisory committee and say that it is the one that chose the individual, because he should have, and he has, the ability to retain it all.
One part of the mandate that was mentioned already was that the individual to be appointed must be fluently bilingual. Indeed today Senator Murray Sinclair and Chief Perry Bellegarde expressed their concerns about the mandate, much like I am expressing my concern today about the fact that it is excluded. In the definition of inclusivity is the notion of geographical designation.
Mr. Allan Hutchinson is a professor. I had the pleasure of being in one of his classes a long time ago. This is what he said with respect to Supreme Court appointments. I find it telling and I find it important. He said this far before the notion of the Prime Minister determining that no longer did we have to cite and abide by this constitutional rule. He said:
...the prime minister both nominates and approves a candidate.... While he might well seek input from others, the only formal constraint is that of geographical representation—three from Quebec, one from Eastern Canada, three from Ontario and two from the West.
This is what the highest jurist in the land and the highest level of legal theory in the land is saying, that it is definitely a part of the Constitution. It is mandatory to seek out and include geographical representation, that an advisory committee is flawed in the beginning and that we need to ensure we leave some room to pick bold candidates who actually will bring that court to where it needs to be.
At the end of the day, judges are the arbiters of what is reasonable in a free and democratic society. As the Charter of Rights and Freedoms phrases it, the appointment of these judges and the validation of the process should also be reasonable and it should be democratic. Neither is true in the process that the minister has put forward today.
