Nova Scotia senators say Atlantic Canada must keep Supreme Court seat

Four Nova Scotia senators have sent Prime Minister Justin Trudeau an open letter calling on him to ensure Atlantic Canada holds onto a seat on the Supreme Court of Canada. 

Senators James Cowan, Jane Cordy, Terry Mercer and Wilfred Moore said losing that seat "has the potential to undermine the relationship between Atlantic Canada and our federal government."

Atlantic Canada has long been guaranteed one seat on the court, but in August Trudeau announced the application process to become a Supreme Court justice will be open so that any qualified bilingual Canadian lawyer or judge can apply.

All four senators associate themselves with the Liberal Party, although Trudeau expelled all of the Liberal senators in 2014. 

Politics vs. public policy

A jurist spot opened when Nova Scotia Supreme Court Justice Thomas Cromwell retired last month. There's no guarantee his replacement will be from the East Coast. 

"Changing the nomination process to include candidates from across the country for a Supreme Court seat which by 141 years of custom should be Atlantic Canadian, looks to be more a political act than sound public policy," the senators wrote.

They said as it's a federal institution, it needs to represent the whole country.

"To abandon that compromise is to turn one's back on the basic premise on which this country was built," they wrote. 

Last week, members of Parliament from all parties voted unanimously in favour of an opposition motion calling on the government to "respect the custom of regional representation" when making appointments to the country's top court. 

The senators said that was encouraging, but they want a guarantee from the prime minister. 

'Accepted norm' for 141 years

Here's the full letter:

Dear Prime Minister,

As senators representing Nova Scotia, we write to you today of a major concern which we feel has the potential to undermine the relationship between Atlantic Canadians and our federal government.

Since the creation of our Supreme Court in 1875, it has been accepted practice that Atlantic Canada has been represented on the bench by one Supreme Court Justice. This custom, while not set in the Supreme Court Act or Constitution, must be respected by virtue of having been the accepted norm for 141 years.

The Supreme Court of Canada is not just the highest court in the land; it has also been described as the "guardian of the constitution."  As that guardian the Supreme Court must represent the regions in its deliberations — it is a federal institution and therefore must reflect regional interests. The House of Commons, the Senate, Cabinet, and the judiciary all reflect regional interests in the spirit of the compromise which led to Confederation. To abandon that compromise is to turn one's back on the basic premise on which this country was built.

Changing the nomination process to include candidates from across the country for a Supreme Court seat which, by 141 years of custom, should be Atlantic Canadian, looks to be more a political act than sound public policy.

The unanimous vote in the House of Commons on Tuesday, September 27, on the Opposition motion calling on the government to respect the custom of regional representation seemed an encouraging development. However, the Minister of Justice maintains there is no guarantee of an Atlantic Canadian Justice despite this motion. We find this discouraging.

Having experienced the Nadon debacle created by the previous Conservative government, it is quite obvious that the next appointee, if from Atlantic Canada or not, will find the legitimacy of his/her nomination questioned. This places both the successful candidate and the Supreme Court itself in an unfortunate situation. Indeed legal action has already been taken, provinces have expressed their opposition, and it is not hard to imagine this process becoming even more acrimonious.

For the past decade, we witnessed the actions of a government which preferred to move unilaterally on issues which previously would have required consultation with the provinces. Senate reform, the Health Care Accord, and the retirement age are just some of the many examples of issues which abused the relationship between the federal and provincial governments. These actions were all unnecessary and represented an unwillingness to undertake consultations and discussions with the provinces in order to improve the functioning of our confederation.

Frankly, prime minister, it is difficult to square the campaign promises made by our Liberal party in the last election, which ensured Canadians of a new and cooperative relationship between the federal and provincial governments, and this current situation.

While we understand the desire for an open and transparent process for Supreme Court nominees, the attempt to "set aside" the regional custom does nothing to promote those desired goals. We urge you to restore confidence in the process and restore the regional representation custom. To do otherwise would be a disservice to Atlantic Canada and the people who so wholeheartedly supported you in the last election.

Thank you for your attention to this matter.

The Honourable Jane Cordy

The Honourable James Cowan, Q.C., LL. D

The Honourable Terry Mercer, LL. D

The Honourable Wilfred P. Moore, Q.C., LL. D