Putting a BNA stamp on the High Court
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by L. IAN MacDONALD
National Post, Friday, April 18, 2008
When Marshall Rothstein appeared before the Commons justice committee in regard to his nomination to the Supreme Court in 2006, he said "the first thing we learned in law school was the division of powers."
You could almost hear the cheering from the Prime Minister's Office that day. As Stephen Harper's first appointee to the high court, Rothstein represented a break from the propensity of his Liberal predecessors to name judges more focused on interpreting individual rights under the 1982 Charter of Rights and Freedoms than the division of powers under the British North America Act, now the Constitution Act of 1867.
Rosalie Abella of Ontario and Morris Fish of Quebec, appointed by Paul Martin and Jean Chretien respectively, are noted civil libertarians and decidedly Charter judges. Rothstein, from Manitoba, is a BNA judge, steeped, as he said, in the division of powers between Ottawa and the provinces in Section 91 and 92 of the Constitution.
Harper may well have thought Roth-stein's appointment would be his only opportunity to make a statement about the Supreme Court, striking more of a balance between its modern Charter propensities and historical BNA traditions: In the normal course of events, given compulsory retirement at age 75, the next vacancy on the Court wasn't expected until in 2014.
But then last week, quite unexpectedly, Harper was given a second Supreme Court seat to fill, with the surprise resignation of Michel Bastarache of New Brunswick, who turns 60 later this year and wouldn't have reached the mandatory retirement age until 2023.
Now the PM gets to make a second statement. Harper is a classical federalist, sharply focused on the division of powers. As he said in a February interview in Policy Options magazine: "I think nothing can replace governments … taking care of their own areas of responsibility. [A] long-standing critique I've had of federal governments has been that they were really good at intervening and interfering in provincial jurisdiction, not real good at managing their own responsibilities."
You can be sure he's looking for a BNA judge, not a Charter-centric one, from the appellate courts of the four Atlantic provinces (Bastarache is vacating the Atlantic seat on the nine-member court, while there are three each from Quebec and Ontario, and two from the West). That narrows the search quite considerably. And make no mistake: While such a search will be nominally conducted by Justice Minister Rob Nicholson, it will in truth be run by the PM's chief of staff, Ian Brodie, himself a political science professor who has written extensively about the clash between the Charter and BNA perspectives. (In government, Brodie has discovered that every bill drafted by the justice department comes with a rider called "Charter considerations.")
As a courtesy, the justice minister will consult the provincial attorneys general of the four Atlantic provinces, asking them for their top picks. The Canadian Bar Association will have a view, too. "For the Supreme Court," says a former senior official closely involved with high court appointments, "there are two things to remember. It's exclusively the Prime Minister's choice. And the same names are on everyone's list."
Already, one name is emerging at the top of a pretty short list: Joseph Robertson of the New Brunswick Court of Appeal. He would be the third consecutive N.B. appointment following Bastarache and Gerald LaForest, but he's widely regarded as the best judge in Atlantic Canada, and is definitely seen to be of the BNA school. A former law professor at University of New Brunswick, he was appointed to the Federal Court of Appeal by Brian Mulroney in 1992 and to the New Brunswick appeal court by Jean Chretien in 2000. They still taught the division of powers in law school 20 years ago, and the subject dominates a lot of what they do on the Federal Appeal Court.
Plus, he's only 58, and would be there for 17 years.
Other names on the list include Thomas Cromwell of the Nova Scotia Appeal Court, and Margaret Cameron of the Newfoundland Appeal Court, who has been chairing the breast cancer test inquiry for the provincial government.
For Harper, this is an unexpected opportunity to bring the court somewhat back in line with its BNA origins.