What Is Going On? Is the federal government in the process of giving away its judicial appointment powers?

The Alberta government’s demand to be involved in the appointment of judges to Alberta’s Court of King’s Bench and Court of Appeal in the name of protecting Alberta’s alleged “distinct legal traditions — and threat not to “provide … funding to support any new judicial positions in the province” if its demand is not met — made the news last week. It provoked loud opposition, from the Canadian Bar Association for instance, and was rejected by the federal Justice Minister. Quite rightly, too, as I’ll explain below. But now one has to wonder if the federal government’s firmness in the face of the Alberta temper tantrum is matched by comparable firmness in the face of a similar tantrum from Quebec.

If this story has made the news at all, I have missed it, and apparently I am not the only one, but here’s what Quebec’s Justice Minister, Simon Jolin-Barrette, said yesterday to the Commitee on Institutions, which is currently considering Bill 1, a legislative package that includes a “Quebec Constitution” and various other innovations intended to empower the Quebec government at the expense both of individuals and minorities in the province and of the federal government. Discussing appointments to the province’s Superior Court and Court of Appeal with my friend Dr Lise Brun, he claimed:

We have negotiations with the federal Justice Minister in relation to this, and it is the first time that the federal government has recognized a duty to negotiate following the adoption of a constitutional resolution by a member of the Canadian federation.

(The exchange starts at about 10:00)

The negotiations, he further said, are going well, and Bill 1 is, according to him, helping strengthen Quebec’s position.

If any of this is true, it’s a big fucking deal. Federal control of appointments to superior courts (as well as the Supreme Court of Canada), federal power that was a key element of the Canadian federal bargain as it has stood for 160 years. That bargain was a good one, too, because Canada’s history has borne out Madison’s prediction that a broader political community would be more moderate and less subject to the pernicious influence of faction and overheated popular mood that smaller and more local political communities. The record of extremist or outright wacky governments in Quebec and Alberta, both historically (under William Aberhart and Maurice Duplessis) and currently, is of course, and not incidentally, the foremost illustration of this. That the judges of the courts that are mainly responsible for interpreting the Constitution of Canada, and applying federal as well as provincial law are appointed without the input — let alone the veto — of local extremists is an important safeguard of national unity, and indeed of sanity.

A formalized — indeed, possibly constitutionalized, though I don’t think the Minister’s statements necessarily entailed this — provincial role in appointments to the Superior Courts would undermine this safeguard if not destroy altogether, depending on the form it takes. That is of course so in relation to Quebec no less, and arguably more, than Alberta. François Legault, let alone a likely separatist successor, should not not be empowered to seed the courts with judges who reject the principles of the Canadian Charter of Rights and Freedoms, as Quebec’s current government does, or indeed the country’s existence. If the federal government is actually considering this, that is a disgrace that must be brought to light and debated, instead of being carried out in the dark with no discussion — and ended a.s.a.p.

If. I do not particularly trust Mr. Jolin-Barrette. I find it rather amazing that this sort of news — constitutional negotiations between Quebec and the federal government! — would be dropped, this casually, by way of a diversion in a select committee hearing, as the Minister was trying to take Dr Brun off her message, which was, like that of many others, my own included — post on this to come — sharply critical of Bill 1. What is the nature of the negotiations that are taking place, if any are? What exactly is on the table, if anything? Does the federal government really want to make a deal with a thoroughly unpopular provincial government that will be not only out of office but, quite conceivably, wiped out of the legislature in nine months? Is it really so stupid as to give Quebec something it is, at the same time, denying Alberta? I am making no assumptions about what the answers to any of these questions may be, but I hope that any journalists who might read this posts and are in a position to pursue them take them up. It’s all good and well to be elbows up in the face of a novel foreign threat to Canada’s existence, but we also have a long history of domestic destructiveness, and the federal government needs to be just as prepared to stand up to it.