1. The Supreme Court of Canada was not established at Confederation. The Judicial Committee of the Privy Council in Great Britain served as the final Court of Appeal from all British Colonies at that time, and that right of appeal continued after Confederation. The Constitution Act, 1867, section 101 authorized the federal Parliament "to provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada". The Court was established by an Act of Parliament in 1878. Having been created by statute, it was within the power of Parliament to make changes to the Court by an ordinary federal statute. Using this legislative power, Parliament abolished appeals to the Privy Council in 1949. In 1975, Parliament imposed a general requirement of leave to appeal that gave the Court substantial control over its docket (subject to some significant exceptions). At least up until 1982, Parliament, if it had chosen to do so, could have unilaterally abolished the Supreme Court of Canada by ordinary statute.
2. The dependence of the Supreme Court of Canada on a federal statute for its existence, jurisdiction and composition has been the subject of concern among constitutional experts for many years. The Supreme Court of Canada occupies a central role in our national life. In recent years, the Court's decisions in disputes between the federal and provincial governments have been of tremendous significance for Canada, with the Court performing the role of "umpire" in Confederation. During the 1970's, the Court made a number of important and controversial rulings relating to the division of powers, including decisions on provincial power to impose taxes with respect to their natural resources and on the federal government's antiinflation legislation of the 1970's.
3. During the turmoil of the late 1970's and early 1980's at the time when the federal government was pushing the pace of constitution reform, the Supreme Court's decisions in the Senate Reference, the Patriation Reference and the Quebec Veto Reference played a critical role in our constitutional evolution.
4. It became increasingly anomalous that so important a federal institution should be subject to the exclusive legislative authority of one of the major litigants before it, namely, the federal government. Accordingly, in 1982, after much discussion about the Court's constitutional status, the Supreme Court of Canada was "entrenched" in the Constitution of Canada by sections 41(d) and 42(1)(d) of the Constitution Act, 1982. That is to say, the status of the Supreme Court was for the first time reflected in the Constitution of Canada and certain aspects of the Supreme Court were immunized from unilateral legislative change by the Parliament of Canada.
5. Section 41(d) of the Constitution Act, 1982 requires the unanimous consent of the House of Commons and the Senate and the legislative assembly of each province for changes to the "composition" of the Supreme Court. Section 42(1)(d) sets out that any changes to the Supreme Court other than its "composition" are to be accomplished by the seven provinces--fifty per cent amending formula. Commentators dealing with these parts of the amending formula have characterized them as ambiguous. For one thing, it is difficult to determine the precise meaning of the word "composition". The Court's actual existence was, in the view of some critics, still dependent on the Supreme Court Act, which is simply an Act of Parliament.
6. Section 6 of the Constitution Amendment, 1987, if adopted, would result in the following constitutional "changes" to the Supreme Court of Canada.
First, the Supreme Court would be continued as the general court of appeal for Canada.
Second, the Constitution, for the first time, would recognize the makeup of the Court, consisting of a chief justice and eight other justices with at least three judges coming from Quebec.
Third, the Constitution Amendment, 1987 would entrench the appointment process (so that it could not be altered except by a constitutional amendment), and would give the provinces a constitutional voice in the appointment process.
Fourth, when a vacancy occurs on the Supreme Court, it must be filled from the lists supplied by the provinces.
Fifth, the qualifications for appointment, the tenure of the justices and the process for fixing the salaries of the Supreme Court justices would be entrenched.
Sixth, constitutional amendments in relation to the Supreme Court of Canada would require the unanimous approval of the provinces and of the House of Commons and the Senate.
7. The Task Force on Canadian Unity in its report, "A Future Together", stated that "the existence and independence of the judiciary at both the central and the provincial orders of government should be recognized as a fundamental principle of Canadian federalism and be entrenched in the Constitution".
8. The sections of the 1987 Constitutional Accord which would entrench the Supreme Court in the Constitution have been widely welcomed. It should be noted, however, that section 101E(1) provides that nothing is section 101A "shall be construed as abrogating or derogating from the powers of the Parliament of Canada to make laws under section 101 [of the Constitution Act, 1867]". As Parliament would retain the legislative powers it enjoys under section 101 of the Constitution Act, 1867, the framers of the amendment must have intended that there will continue to be some aspects of the Supreme Court that Parliament can change without resort to a constitutional amendment. It can be assumed that such powers will invariably be exercised in close consultation with the Supreme Court as is now the case. Retention of some legislative authority on the part of Parliament will enable necessary changes to be made in the practice and procedure of the Court from time to time and will ensure that changes concerning a housekeeping matter, which need not involve the elaborate procedural exercise of a constitutional amendment, can be easily achieved.
9. It should be noted in passing that entrenchment of the Supreme Court could give rise to some problems of legal interpretation. New section 101 A(1), for example, provides that "[t]he court existing under the name of the Supreme Court of Canada is hereby continued as the general court of appeal for Canada". It is unclear, for example, whether this provision would preclude Parliament from enacting legislation to abolish all appeals as of right (as is now proposed in Bill C53), whether it would preclude Parliament from making the court officially bilingual (as is now proposed in Bill C225), whether Parliament could alter the Supreme Court Act to change the qualifications of those appearing before the Supreme Court, or whether the Supreme Court's power to enact rules of procedure would be affected. It has been suggested that section 101 A(1) entrenches all existing features of the Court; the better view, it appears, is that the section only entrenches those aspects that the Supreme Court itself regards as fundamental to its role as the final court of appeal.
10. Although the Governor General at present legally has an unfettered discretion in the appointment of qualified men and women to be judges of the Supreme Court, since the 1970's the governments of the day have, with some exceptions, followed the practice of consulting with other groups, such as the Canadian Bar Association, before exercising this appointment power.
11. Since 1949, a pattern of regional representation has been maintained under which three judges come from Quebec as required by statute, while by informal custom, there is a rough allocation (that is varied from time to time) of three judges from Ontario, two from the western provinces and one from the Atlantic provinces.
12. The Constitutional Amendment, 1987 would affect the process of making appointments to the Supreme Court of Canada in two ways:
(b) proposed section 101C would entrench an appointment procedure that would include a role for the provinces in the appointment of judges to the highest court in the land.
Before considering each of these proposals in detail, these changes should be put into historical perspective.
(a) The Quebec requirement
13. The Joint Committee heard no criticism of entrenchment of the requirement three of the Court's judges come from Quebec. This was recognized as a necessity g the fact that Quebec, with its civil law system, is unique in Canada. Many believed that, in order for the Supreme Court to fulfil its role as the general court of appeal for Canada, Quebec representation among the judges of the Supreme Court is a necessity. Others commented that Quebec representation was consistent with the Constitution's recognition of Quebec as a "distinct society" within Canada and would ensure that the Quebec perspective was represented on the Court in constitutional cases.
14. However, some witnesses and some of the briefs were critical of the fact that only Quebec was guaranteed representation on the Court. Some suggested that the Constitution should guarantee regional representation; others criticized the fact that representation was not guaranteed for women, for the aboriginal peoples or other minorities.
(b) Provincial role in the appointment of judges to the Supreme Court of Canada
15. The most controversial change introduced in relation to the Supreme Court of Canada by the Accord is the method by which future court vacancies will be filled. When a vacancy occurs the government of each province is to have the opportunity to submit names of persons who are members of the bar of that province and are otherwise qualified to sit on the Court to the Minister of Justice for Canada. The Governor Council would be required to make the appointment from the names on the provincial lists. Only persons on the list submitted by the government of Quebec could be appointed to fill vacancies on the Court in relation to the province of Quebec. Vacancies created by the death or resignation of judges from elsewhere in Canada could be filled from any of the provincial lists. It need not be filled from the list of the province or territory of origin of the former incumbent.
16. The proposed amendments have given rise to 4 major criticisms:
(ii) Considerable criticism was directed at the process envisaged by the Constitution Amendment, 1987. The focus of this criticism was the possibility of a deadlock in the appointment process. For example, the federal government might find the persons whose names have been submitted unacceptable, and a deadlock would ensue, with the Court having to function at less than full capacity at a time when the demands of their role in Charter adjudication in particular has become more and more onerous The problem would be most acute, it has been suggested, in the case of Quebec appointments for the federal government would have only one provincial list of names from which to choose. In the case of nonQuebec appointments, the federal government would at least be able to choose from among the names of persons submitted by any one of the provinces other than Quebec. This discretion would likely encourage other provinces to put forth attractive nominees so as to increase the chance that one of that province's nominees would be selected. Neither the federal nor the provincial governments, it is said, would want to risk criticism of using the appointment process to the nation's highest court for political purposes.
(iii) Some witnesses criticized the appointment proposals on the basis that it would operate unfairly against the possible appointment to the Supreme Court of qualified lawyers and judges from the Yukon and the Northwest Territories. While the 1987 Constitutional Accord does not exclude appointment to the Supreme Court of Canada of a person who is a member of the bar of the territories or a judge in the territories, the territorial governments do not, under the Accord, have the right to submit lists of persons qualified to be members of the Supreme Court to the federal Minister of Justice.
(iv) Some witnesses complained that the proposals respecting the appointment process no more guaranteed excellence on the bench than does the present process of unilateral federal appointments to the Supreme Court of Canada. The proposal is viewed by many, such as the Canada West Foundation, as merely spreading patronage possibilities from the federal level to the provincial level.
We propose to examine each of these criticisms in turn.
(i) Provincial input
17. For many years, attempts have been made to find a formula for appointing judges that would structurally involve participation of the provinces. Some witnesses considered such participation to be a necessary feature in a federation. Since the Victoria Charter of 1971 numerous proposals have been suggested, including mandatory consultation with the provinces by the federal authorities; ratification of appointments proposed by the federal government by a reformed Second Chamber or House of the Federation; alternate federal and provincial lists; or lists provided by the provinces with a double veto (which is in fact the proposal that is contained in the 1987 Constitutional Accord).
18. We believe that a provincial bias among newly appointed judges is no more likely than a federal bias among the present judges of the Supreme Court of Canada. Legal scholars who have examined the issue whether the Court has displayed a federal bias in its constitutional decisions have been unable to substantiate any such bias. Indeed, recent constitutional jurisprudence would, if anything, suggest a provincial bias. This is particularly evident in the Court's recent approach to the paramountcy doctrine, i.e. the Court has refused to declare inoperative provincial laws which are arguably repugnant to federal laws except in the limited circumstances where obedience to one law would result in a breach of the other.
19. Some witnesses also commented that the advent of the Canadian Charter of Rights and Freedoms has reduced the number of division of powers cases heard by the Court and increased the number of cases concerning individual rights. A provincial or national bias--assuming that any such bias exists--is largely irrelevant to deciding Charter cases.
(ii) Federalprovincial deadlock
20. It is evident that a deadlock in the appointment process is a possibility, particularly in the case of Quebec appointments. However, once it is decided that provincial input in the appointment process is desirable, if the input is to be of significance, the risk of deadlock must be accepted. Obviously, if the provinces are to play only a consultative role, a deadlock cannot arise: the federal government could simply "go through the motions" and then appoint any individual that it desired. If the provinces are to have a real say in the appointment process, the possibility of disagreements between the two levels of government must be countenanced. Maître Robert Décary, a barrister of many years standing, told the Joint Committee:
...one must not examine a constitution by looking at all the obstacles in its interpretation, or whether it will be taken to extremes. I do not cross bridges before I come to them. If we begin to wonder what will happen, there will be no end to it. Each provision would be looked at and we would be wondering what would happen if the Governor General did not accede to the Prime Minister's request to dissolve the House. There are a great many "ifs" but, in practice, they do not arise. Our democratic system, with its public opinion, its public pressures, is such that it is unthinkable that governments could not agree on the selection of judges within a reasonable period of time.
21. The possibility of a deliberate deadlock could be envisaged, as Professor Ramsay Cook speculated, if a separatist government were in future to be elected in Québec and were to put forward candidates with strong antifederalist views. Such candidates would likely be rejected by the federal government. Without any mechanism to break a deadlock, the Supreme Court would have to operate with less than a full complement of Quebec judges. Among other matters, this could create severe difficulties in the disposition of civil law cases from Quebec.
22. Professor Beaudoin drew our attention to the procedure in the United States where Supreme Court judges are nominated by the President but must be confirmed by the Senate (representing the states). There is no procedure to "break" a deadlock yet, according to Professor Beaudoin, the procedure has worked satisfactorily.
In the United States, they have a double veto. The fact that the Senate rejected 20 presidential nominees did not really create any insurmountable problems. Two elected people usually manage to reach an agreement.
23. Some witnesses referred to possible "neutral" procedures for breaking a deadlock in the appointment process, should such a problem occur. For example, under the Victoria Charter, if a vacancy occurred in the Supreme Court of Canada, the Attorney General of Canada would have been obliged to consult the Attorney General of the relevant province when he considered a possible nomination. No such vacancy could be filled until both Attorneys General were in agreement, or until a nominating council recommended an appointee. The nominating council was to be established by both Attorneys General. The Attorney General of Canada would then submit to the nominating council the names of three candidates who had been submitted to and rejected by the provincial Attorney General. The nominating council's recommend as to who should fill a vacancy on the Supreme Court of Canada would be binding on the government of Canada. As to this possibility Professor Beaudoin told us:
Some might say that we could have a college, like the one in Victoria. This is a good solution. But is it the best? It is a matter of opinion. But in this case, in the end, the arbitrator that has the final word is a nonelected person. Is it not preferable that a judge be appointed by people that the province or the entire country trust!
24. Also in 1986, the Canadian Bar Association adopted the report of a committee chaired by E. Neil McKelvey, Q.C., which recommended a wide consultative process to precede the appointment of Supreme Court of Canada judges. An Advisory Committee on Federal Judicial Appointments in each province and territory would be established to advise the Minister of Justice of Canada. The Committee would be composed of a representative of the Minister of Justice of Canada, the Attorney General of the jurisdiction in question, the Chief Justice of the jurisdiction, a representative of the Canadian Bar Association and the bar of the jurisdiction, and two representatives of the public chosen by members of the committee. This committee would make its recommendations to the Minister of Justice, and while this would be an advisory body only, the Minister would be expected to make each appointment from the list supplied, or failing agreement, to ask the committee for further recommendations.
25. Another method that could be used on a shortterm basis, should a deadlock occur, would be for the Chief Justice of Canada to invoke section 30 of the Supreme Court Act. Under this section, the Chief Justice has the authority to appoint ad hoc judges "where at any time there is not a quorum" of permanent judges available to sit. The ad hoc judge may be taken from either the Federal Court or be a judge of a provincial superior court.
26. However, each of the procedures to break a deadlock that has been proposed to date suffers from the same frailty, that is to say, the tiebreakers proposed have been unelected officials. This flies in the face of the principle that all members of the judiciary, and particularly the judges of the Supreme Court of Canada, should be appointed by persons responsible to the electorate. The advent of the Canadian Charter of Rights and Freedoms has, in our view, added weight to this principle. Given the types of decision that the Supreme Court of Canada must now make because of the Charter, the need for electoral responsibility has, if anything, been heightened.
27. Moreover, some witnesses have argued that the introduction of a tiebreaking formula, in the context of the present proposal, would likely be selfdefeating. A tie-breaking formula would, it is said, tend to discourage negotiations and compromise on the part of the governments involved in the appointment process. The very possibility of a deadlock is likely to discourage deadlock, whereas the existence of some tie-breaking formula is more likely to encourage, rather than discourage, deadlocks.
(iii) Appointments from the territories
28. Although qualified lawyers and judges from the territories can in theory be included on provincial lists, provincial governments are more likely to nominate candidates closer to home, with whose abilities they may be more familiar. For all practical purposes it would likely be difficult for someone from the territories to be appointed to the Supreme Court of Canada under the present proposals.
Senator Lowell Murray indicated that the territorial governments were not given a role to play because they lack provincial status. This observation, while true, does not address the apparent disadvantage inflicted on qualified individuals(not governments) who happen to reside in the territories.
29. Maître Robert Décary qualified his support for the 1987 Accord on this point:
I think an amendment should be made to that part of the agreement, to make sure, that lawyers and judges from the Territories... who already can be appointed to the court but who cannot make it to the lists is somehow illogical. We should find a way to allow the authorities of the Territories to put their names on a list when a judge is picked.
Maître Yves Fortier expressed the same reservation:
...I deplore, for example, the fact that the Yukon and the Northwest Territories are not granted the right to propose candidates for the Supreme Court of Canada and the Senate. A simple oversight? Would that have been a stumbling block? I do not know.
30. The only practical way to have qualified northerners considered for appointment the Supreme Court bench is by having their names submitted for consideration by the territorial governments. Therefore, the proposed procedure should be amended by the First Ministers at the first opportunity.
(iv) Quality of Supreme Court appointments
31. Some witnesses suggested that the new procedure would do nothing to guarantee excellence on the bench. Of course, the proposed appointment process no more encourages or discourages excellence in Supreme Court appointments than the present appointment process. There is nothing in the proposals to preclude either the federal government or the various provincial governments from devising procedures to ensure excellence. Maître Yves Fortier, Q.C., a former President of the Canadian Bar Association, said that provincial participation in nominating Supreme Court would not prejudice the quality of appointments:
Senator Nurgitz:... in this country we have a tradition of men and women who had taken on appointments to the Supreme Court that has been absolutely outstanding would you not agree?
Mr. Fortier: It is absolutely outstanding, I agree with you, and there is no reason to believe that because another equal partner in Confederation is going to have a say in the appointment of judges in later days this tradition of excellence is not going to be duplicated. With the greatest of respect to those who have said otherwise, I think to say the opposite is pure hogwash.
..., I question whether in any instance the final short list--and I am not privy to these matters, but I have a crystal ball just like we all do--would have been different in Ottawa from what it would have been different in the relevant provincial capital.
The cream rises to the top, whether you are looking at the cream with provincial eyes or with federal eyes.
32. The Joint Committee is of the view that the proposals for amendment relating to the Supreme Court of Canada are workable. However, we have a continuing concern with respect to the exclusion, for all practical purposes, of qualified candidates from the territories for appointment to the Supreme Court. As already discussed, while appointment from among members of the territorial bench or bar is constitutionally possible, such appointments are politically unlikely. We recognize that the territories are not provinces, but we do not believe that the territories' present status should deprive individuals who choose to work or serve in the North, of a real opportunity to be appointed to the Supreme Court of Canada.
33. We recommend that consideration be given by the First Ministers at a later constitutional conference to a further amendment to enable the territorial governments to submit the names of qualified persons for appointment to the Supreme Court and that the federal government be empowered to appoint such persons to a nonQuebec vacancy on the Court.
William F. Maton