Canadian Lawyer

8 J U N E / J U LY 2 0 1 9 w w w . c a n a d i a n l a w y e r m a g . c o m R E G I O N A L W R A P Q U E B E C LAWYERS WANT PROVINCE INVOLVED IN SCC JUDGE NOMINATIONS U niversité Laval law professor Patrick Taillon uses a decided- ly Canadian analogy to explain why Quebec should be an equal partner with Ottawa in the selection of the three Supreme Court justices that the Constitution guarantees la belle province. "Under the current process, it's like one hockey team having the right to choose the referees for every game of every series in the playoffs," says Taillon, who teaches constitutional law. "It's patently unfair. And considering Quebec's unique character, it is crucial to ensure that the judges who will make decisions on language rights and constitutional matters that impact all Canadians have the highest levels of independence and legitimacy." Taillon is not alone in his thinking. Since April, when Supreme Court Justice Clément Gascon announced his resignation from Canada's top court, the always-prickly issue of how replacements are picked from the country's only province with both a fran- cophone majority and a juridical legal system based on French- heritage civil law is again making headlines in Quebec legal circles. "I think [Taillon's hockey analogy] is quite right," says Benôit Pelletier, a professor in the civil law section at the University of Ottawa, who was a prominent cabinet minister from 1998 to 2008 in former Quebec premier Jean Charest's government. "The cur- rent selection process is unfair under the concept of federalism, which is based on the theoretical equality of both sides." Under the SCC selection process, which became entirely Cana- dian in the late 1940s under then-prime minister Louis St. Laurent, all nine justices are appointed by the governor general on advice exclusively from the federal cabinet and the prime minister. For decades, however, successive Quebec governments have lobbied for input into the selection of the three justices who must come from their province. Taillon says an agreement was reached in the Meech Lake Accord for a new consultation mechanism in which Quebec would submit a list of names from which Ottawa would choose. "The goal was to put a little federalism into the nomination process by making it harder to make ideological choices. But the idea died along with all the other proposed consti- tutional amendments in the agreement." Pelletier says he revived the notion while serving as intergov- ernmental affairs minister under Charest. He pushed fellow Liberal and federal attorney general and justice minister Irwin Cotler to make an administrative agreement in which both Quebec and Ottawa would submit a list of 10 names and prioritize the judges whose names appeared on both lists. "If there were no matches, the exercise would be repeated until a sufficient number of names were generated," says Pelletier. "It would be quite easy to do. And there is no need for a constitutional amendment per se." Though his plan did not prevail, the federal government did change the process in 2006 by adding an interview phase. Dubbed the Independent Advisory Board for Supreme Court of Canada Judicial Appointments, the committee is chaired by Kim Campbell, former justice minister and Canada's only female prime minister. After that came the controversy over the appointment of Fed- eral Court of Appeal Judge Marc Nadon to replace Justice Morris Fish, a Quebec judge who retired from the SCC in 2013. The naming of Nadon, who had served on the federal court for more than a decade, led to howls of protests from Quebec lawyers and a constitutional challenge. Sworn in in October 2013, Nadon refused to hear cases until that legal challenge was heard by his new court colleagues. They struck down his appointment in a March 2014 ruling. That deci- sion led to the appointment of Gascon, who was widely acclaimed. In 2016, Prime Minister Justin Trudeau added a new politi- "Under the current process, it's like one hockey team having the right to choose the referees for every game of every series in the playoffs." Patrick Taillon, Université Laval 2019-20 TOP 10 O N TA R I O R E G I O N A L F I R M Right-sized Thinking® • 1-800-323-3781 • pallettvalo.com Your Authority For: Business Law • Commercial Litigation • Commercial Real Estate Construction • Insolvency & Corporate Restructuring Employment & Labour • Wills, Estates & Trusts No Matter the Size or Type of Case, We Can Handle It From the complex to the simple; our range of expertise enables us to handle whatever size or type of legal issue you may have. We are committed to providing forward-thinking, flexible legal counsel while maintaining client service excellence. That's what we like to call Right-sized Thinking®. ntitled-3 1 2019-05-30 2:58 PM

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