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 long standing, 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 Drummond, 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 Drummond 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.
