Ted Morton taught constitutional law at the University of Calgary for 35 years served as minister of Finance and Energy in the Alberta government
Heads up, Albertans! On Wednesday, the Quebec National Assembly unanimously adopted a resolution demanding that Ottawa transfer the appointment of Quebec provincial superior court judges to the Quebec government.
When announcements like this come out less than a week before the next federal elections, pay attention. Is it going to be one more example of French-kissing-a movie we’ve all seen too many times before: one group of Quebeckers bargaining with another group of Quebecers about Canada’s future? With the rest of us sitting on the sidelines?
It need not be. One thing needs to be made perfectly clear asap: Whatever new concession Quebec receives, Alberta does too. This need not be confrontational. The Quebec Minister of Justice declared that he intends “to initiate negotiations with Ottawa.”
Premier Smith recently declared that she intends to work more cooperatively with Quebec to defend against unwarranted federal intrusions into provincial policy jurisdictions. Why not start with this reform? And there’s no need to limit it to just Alberta and Quebec. Why not all ten provinces?
Canada and India are the only two English-speaking federations in which state/provincial judges are appointed by the federal government. Both practices are outdated relics of 19th century British imperial rule, reflecting the centralist biases of 19th century British colonialism and distrust of local governments. This practice has no place in modern 21st century federal states like Canada.
But don’t stop with Alberta and Quebec. The two premiers should consult with other provinces to gain their support for a constitutional amendment that transfers the power to the provinces to appoint their own superior court judges.
They would quickly find allies. Ask yourself: What provincial party would want to campaign against appointing their own Court of Appeal and Court of King's Bench judges.
Quebec is moving towards establishing its own provincial constitution. Premier Smith has indicated a similar interest for Alberta. The Quebec Justice Minister gave this as one of his reasons for demanding the appointment of Quebec Court of Appeal judges be given back to Quebec. He said it would be “normal” for Quebec to participate in the selection of judges “who will be called upon to review the constitutionality of Quebec laws.” And he’s right. Why go through the time and effort to develop a provincial constitution, if its meaning will ultimately depend on federally appointed judges?
A constitution does not speak for itself. In practice, it means what the judges say it means. The ideological lense — the historical and regional perspective — through which a judge understands federal divisions of powers and Charter rights shapes their interpretation of those rights. The problem with the status quo is that the judges of the provincial courts of King's Bench and courts of appeal are all appointed by the federal government — which more often than not means a Liberal Party government.
The usual partisans of judicial policy-making — the Court Party — will be quick to denounce such a reform. They will denounce it as an attack on minority rights and DEI — diversity, equity and inclusion.
But wait! Each province is a minority. First and foremost, Quebec, with its unique ethnic and linguistic history. But every province is a minority. Every province has its own unique histories, self-understandings and hopes for its future. That’s why we are a federal and not a unitary state.
Courts whose judges were appointed by our ten different provincial governments would be courts that are both more diverse ideologically and more respectful of decentralized, provincial policy autonomy. It would create a court that would be less inclined to hand down “one size fits all/Ottawa knows best” rulings.
Respecting provincial policies is a form of protecting minority rights.
Carney has already announced that he is completely opposed to this reform. No surprise there. The Liberals support the Court Party, and the Court Party supports the Liberals. To my knowledge, Poilievre and the Conservatives have not yet weighed in.
In Quebec, all three parties in the National Assembly — including the Liberals — supported this reform. How about Alberta? Where is Nenshi and his NDP?
The Quebec initiative represents both a risk and an opportunity for Alberta and Western Canada. Now is the time to seize the latter and minimize the former.
Ted Morton taught constitutional law at the University of Calgary for 35 years and is now an executive fellow at the School of Public Policy. He also served as minister of Finance and Energy in the Alberta government. His most recent book is Alberta Strong and Free.
