B.C. now shut out of Canada's highest court: Does it matter?

With the retirement of Chief Justice Beverly McLachlin, the Supreme Court of Canada now comprises three judges from Quebec, three from Ontario, one from Newfoundland and two from Alberta.

B.C. should be considered a distinct region from the rest of the western provinces, say critics

Beverley McLachlin was the only justice from B.C. before her retirement. (Fred Chartrand/Canadian Press)

British Columbia no longer has a voice in the judicial chambers of the Supreme Court of Canada, prompting some to call for reform to guarantee there is at least one justice from the province.

With the retirement of Chief Justice Beverly McLachlin earlier this month, the court now comprises three judges from Quebec, three from Ontario, one from Newfoundland and two from Alberta.

The NDP's justice critic, Murray Rankin, said it is unacceptable that B.C. should be shut out.

"British Columbia will not have anybody on the Supreme Court for many, many years to come and that is a problem for many people at the bar [lawyers and judges] in my province," said Rankin, who represents the constituency of Victoria.

Distinctly B.C.

Rankin said B.C.'s unique issues involving First Nations and conflict over resource use make the province different from the Prairies even though it is considered part of the West.

"I think we have come to the time in our history as a country that one of those nine jurists be from British Columbia," he said.

Sheilah Martin will take the seat previously held by outgoing Chief Justice Beverley McLachlin on the Supreme Court of Canada.

With the most recent appointment of Justice Sheilah Martin of Alberta in November, convention dictates there will not be anyone named from the West until either she or Justice Richard Brown, also of Alberta, step down from the court.  

Quebec is the only province with guaranteed representation on the Supreme Court; it has three seats, in recognition of the province's use of the Civil Code.

Traditionally, Ontario is given three seats, the West is given two and Atlantic Canada one.   

Undermine confidence

The composition of Canada's top court is scrutinized carefully by those in the legal community as the justices have a critical and powerful role in shaping the country's legal landscape.

The Supreme Court of Canada now comprises three judges from Quebec, three from Ontario, one from Newfoundland and two from Alberta. (Sean Kilpatrick/Canadian Press)

Vancouver lawyer Art Grant, who writes a blog on constitutional issues, argues that the lack of a B.C. appointee on the court could undermine confidence in its decisions.

"What Canada loses is that perspective from B.C., but what Canada loses also is the ability to say the court is sufficiently regionally diverse that it recognizes all the important regions and aspects of Canada," Grant said.  

In his blog, Grant imagines a court challenge to the controversial Kinder Morgan pipeline in B.C., suggesting a potential problem if the Court allowed the project to go ahead on a 5-4 split vote with two Alberta judges voting with the majority.

Minister defends choice

Not everyone sees a problem with the lack of a B.C. justice.

In a written statement, Justice Minister Jody Wilson-Raybould — also from B.C. — defended the choice of an Alberta judge.

"The choice of nominee involved weighing various factors and deciding who, among a group of outstanding candidates, was the best fit given the Supreme Court's needs at this time."

Minister of Justice and Attorney General Jody Wilson-Raybould says Sheilah Martin was the best fit for the empty seat. (Adrian Wyld/Canadian Press)

B.C. Attorney General David Eby said he is more interested in having an Indigenous justice on the Supreme Court than having a British Columbian.

"I've heard a lot of concerns about whether the appointment was from B.C. or Alberta but from my perspective, it's time for someone who comes from Canada's first peoples to be on the top court," Eby said, adding there are lawyers who can take on the role.

"The fear I have is if you do a strictly geographical analysis you might be not be able to appoint the best person at the most appropriate time," he said.

Eby also pointed to the fact that Justice Russell Brown, appointed from Alberta in 2015, was born, raised and educated in the law in B.C., moving to Alberta in 2004.  Eby said that is enough to ensure B.C.'s concerns are known and understood.

'The court is a national one'

Former B.C. attorney general Brian Smith was blunt in downplaying fears the province will pay a legal price in missing out on a formal appointment.

"I don't care," Smith said. "The court is a national one."

Smith rejected Art Grant's contention that a law passed by Parliament just over 20 years ago formally recognizing that Ontario, Quebec and B.C. must consent to any constitutional amendment before it becomes law is an implicit recognition of B.C.s critical place in Confederation.

Murray Rankin is the NDP's justice critic. (Adrian Wyld/Canadian Press)

Smith said that is not an argument for a permanent seat, nor for adding additional seats as Grant also suggested.  

As for Rankin, the NDP MP, he may be tilting at legal windmills with a suggestion that the next vacancy from Ontario be given to B.C..  

Given the disparity in populations — Ontario has 13.6 million people; B.C., 4.6 million — it isn't easy to see the prime minister ignoring Canada's most populous province.

B.C. judges appointed to the Supreme Court of Canada

  • Sir Lyman Duff: Appointed September 27, 1906.  Elevated to Chief Justice March 17, 1933.  Served on the court until 1944.
  • Charles Locke: Appointed June 3, 1947.  Served until September 16, 1962.
  • William McIntyre: Appointed January 1, 1979.  Served until Febuary 15, 1989
  • Beverly McLachlin: Appointed March 30, 1989.  Elevated to Chief Justice January 7, 2000.  Served until December 15, 2017

About the Author

Laura Lynch

Correspondent

CBC Radio correspondent Laura Lynch has reported from many parts of the world, most recently Europe and the Middle East. She has also worked as the CBC's Washington correspondent and as a parliamentary reporter in Ottawa. She is based in Vancouver.