Nova Scotia

Legal scholars debate loss of regional seat at Supreme Court of Canada

Naomi Mettalic says regional representation is antiquated, and it's time to prioritize ethnic diversity on the bench. Wayne MacKay says it's unfair, and possibly illegal, not to have a seat dedicated to Atlantic Canada.

Is regional representation antiquated or essential?

Two legal scholars based in Halifax have opposing views about Prime Minister Justin Trudeau's decision to scrap regional representation in favour of ethnic diversity when selecting new Supreme Court justices.

Traditionally, the federal government appoints one judge from Atlantic Canada, two from the West, three from Ontario and three from Quebec.

Justice Thomas Cromwell, a Nova Scotian and the only justice from Atlantic Canada, will retire from the bench in September, but the prime minister has said there is no guarantee his seat will stay in the region.

Instead, the government has appointed a new non-partisan advisory board, led by former prime minister Kim Campbell, who will develop a short list of potential judges who are bilingual and representative of the diversity of the country.

Dalhousie University law professor Wayne MacKay said "while I totally applaud the reasons that they're pursuing in terms of diversity, I don't think the first casualty should be Atlantic Canada representation.," he said on CBC's Information Morning

"It's important for Atlantic Canada to have a voice in all important decision-making bodies."

Regionalism antiquated

Naomi Metallic, also with the Schulich School of Law at Dalhousie University, said she's less bothered by the change. 

"It seems to me that the convention on regional representation is a bit antiquated," she said.

"I think perhaps it was a proxy for diversity at a time when, really, regionalism was the only heading of diversity — when most lawyers and jurists were white, male," she said. 

"We're in 2016 and I think it's time to consider more indicators of diversity," Metallic said.

Questioning legality

MacKay wondered if other jurisdictions would be prepared to lose their seats on the top bench. "Are we OK with a Supreme Court of Canada that has nine Quebec justices on it?"

He also wondered whether the changes were legal. "It's not 100 per cent clear," MacKay said.

Conventions may be important politically, he said, but they aren't legally enforceable. However, that's complicated by the Constitution Act, which states that any change in the composition of the Supreme Court of Canada requires unanimous provincial consent, he said.

Value in diversity

Metallic said there's no denying the value of more diversity on the bench. "It's just important to have people who come from a wide variety of social backgrounds, who can bring different perspectives," she said. 

Besides, an emphasis on diversity doesn't necessarily preclude an Atlantic Canadian selection, Metallic said.

MacKay agreed, and when asked to make a recommendation to the prime minister he said, "my answer's easy: appoint a diverse Atlantic Canadian."

With files from CBC's Information Morning