A new appointment to the Supreme Court of Canada: congratulations (and some unintended consequences)

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Sheilah Martin named by Prime Minister Trudeau to the SCC

Today, the Prime Minister announced that his pick for the next justice of the Supreme Court of Canada is Sheilah Martin, currently a member of the Alberta Court of Appeal. If approved, Justice Martin will replace retiring Chief Justice Beverly McLachlin. It is hard to argue with Justice Martin’s credentials. Fluently bilingual. Schooled in both the common law and civil law traditions. Over twenty-two years of being a judge. A former dean of the University of Calgary Law School. Her appointment will ensure that the Court’s female judges remain four of the nine justices. She is eminently qualified to serve on the Court and we should all join in congratulating Justice Martin on having been selected by the Prime Minister for this most significant role.

That being said, I want to underscore two major consequences of the appointment of a non-indigenous judge from Alberta.

Indigenous people’s continued exclusion from the central institutions

By appointing a non-indigenous jurist, the Prime Minister has continued the practice of not ensuring a representative from the third order of government of Canada, the Indigenous peoples. Following the decision of Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, it has become clear that s. 35 of the Constitution Act, 1982 has now entrenched a third order of government within federation, namely, the self-governing First Nations of Canada (see my post of June 29, 2014.

Exactly how these Indigenous nations fit into our constitutional fabric is not entirely clear. But one thing is clear to me and that is the need to ensure that these Indigenous nations gain structural representation in our central institutions: see my blog posts of January 24, 2016 and July 14, 2017. The Supreme Court of Canada is one of Canada’s most important central institutions. The failure to address the need for representation of Canada’s Indigenous nations within this key central institution, the highest court in the land that sets precedents on all matters affecting the country, including the Indigenous peoples and their relationship with the Canadian federation cannot continue.

A further reduction of British Columbia’s representation in Canada’s central institutions

British Columbia, Canada’s third largest province, is a distinct region. The practice of so many Ottawa-centric governments is to look at the Pacific province as just another province from the West. It is not. British Columbia’s topography, economy, history and demographics all deviate sharply from those of the three Prairie provinces. This fact was ultimately recognized by the Parliament of Canada in 1996 when it passed the Act respecting constitutional amendments, SC 1996, c. 1. The Act is remarkably short but recognizes British Columbia as a necessary participant in any constitutional amendment:

Consent to constitutional amendments

1 (1) No Minister of the Crown shall propose a motion for a resolution to authorize an amendment to the Constitution of Canada, other than an amendment in respect of which the legislative assembly of a province may exercise a veto under section 41 or 43 of the Constitution Act, 1982 or may express its dissent under subsection 38(3) of that Act, unless the amendment has first been consented to by a majority of the provinces that includes

(a) Ontario;

(b) Quebec;

(c) British Columbia;

(d) two or more of the Atlantic provinces that have, according to the then latest general census, combined populations of at least fifty per cent of the population of all the Atlantic provinces; and

(e) two or more of the Prairie provinces that have, according to the then latest general census, combined populations of at least fifty per cent of the population of all the Prairie provinces.


(2) In this section,

Atlantic provinces means the provinces of Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland and Labrador; (provinces de l’Atlantique)

Prairie provinces means the provinces of Manitoba, Saskatchewan and Alberta. (provinces des Prairies)

The reason for this legislative restriction to Parliament’s discretion to approve of a constitutional amendment was the modern realization that British Columbia was distinct and important enough to constitute its own region within Canada and that no general constitutional amendment could proceed unless British Columbia participated in its approval.

Of course, the Supreme Court of Canada pronounces on all kinds of constitutional matters and its pronouncements can and do alter the constitutional landscape. Now, without a British Columbian judge on that bench, constitutional determinations will be made that may well adversely affect British Columbia. So, for instance, is it too hard to imagine a challenge to the Kinder Morgan pipeline wending its way to the Supreme Court of Canada and the Court allowing that pipeline to proceed on a five:four split vote with the two Alberta judges voting with the majority?

With British Columbia already being the least represented province in our central institutions (the lowest number of MP’s per capita, the lowest number of Senators per capita), its now exclusion from a single vote in the Supreme Court of Canada may spawn many issues in the not-too-distant future.

As I said earlier, no one can argue with Madam Justice Martin’s qualifications to serve on the highest court. But I take issue with how this central institution (along with our other central institutions) is being structured. Like the Senate,.. indeed like the House of Commons…, the Supreme Court of Canada is in need of structural reform.

I remain

Constitutionally yours,

Arthur Grant

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