Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University.According to Alberta Premier Danielle Smith, the process for appointing judges in Canada is flawed. She’s not wrong. She wants a new process, presumably to appoint judges who respect conservative principles. But her policy proposals won’t work. Canada is broken. Earnest conservatives think it’s a policy problem.Smith made her demands in a January 23 letter to Prime Minister Mark Carney. She wrote that Alberta should have a say on who sits on the province’s highest courts and the Supreme Court of Canada. She wants a new body to assess candidates and a new process to approve them, to give Alberta “meaningful engagement and collaboration.” And she promised to withhold provincial funding for new judicial appointments in Alberta until the demands are met, which she has acknowledged is a “negotiating position.”Alberta is Canada's most politically conservative province. Thirteen of 14 judges on the Court of Appeal were appointed either by Justin Trudeau or Mark Carney. Federal Justice Minister Sean Fraser has already dismissed Smith’s ideas. That’s no surprise. What government would surrender constitutional control over the courts? Under section 96 of the Constitution Act 1867 (formerly the British North America Act), the Governor General appoints judges to Canada’s superior courts, including the highest courts in each province. The Governor General acts on the advice of the prime minister and the federal cabinet. In effect, the prime minister appoints the judges. Why does the Constitution give this power to the feds? The BNA Act is a hodgepodge. On one hand, it creates two coequal levels of government, federal and provincial, each sovereign inside its own jurisdiction. The federal government is not the parent. The provinces are not the children. In fact, the provinces arguably have the more important powers, including over “property and civil rights,” health, education, natural resources, employment, and — ironically — the administration of justice..But on the other hand, the BNA Act is also a federalist document. It creates a powerful central authority. Federal power is the default power over any matter not explicitly allocated to the provinces, for the “Peace, Order, and good Government” of the country. Where federal and provincial laws conflict, the federal law prevails. The federal cabinet can invalidate provincial legislation, a power not used since 1943. And the prime minister appoints judges to the superior courts in each province.Amending section 96 of the Constitution would be next to impossible. Seven provinces with at least half the population would have to sign on, as well as Parliament itself. But the Constitution is just half of it. The judicial appointments process is political, at least in the broad sense of the term. Yet the Liberals are not appointing political hacks or lawyers out of step with the mainstream. The legal profession is predominantly progressive in its politics. Law societies have embraced social justice and "diversity, equity, and inclusion" (DEI). Law schools are steeped in critical race theory and indigenization. The Canadian Bar Association is woke. No surprise that the judiciary in Canada has become progressive in its worldview and judicial philosophy. At his first press conference in 2018 as the Chief Justice of the Supreme Court of Canada, Justice Richard Wagner agreed that his court was “the most progressive in the world,” with a leadership role to play in promoting (progressive) moral values. In the Canadian legal firmament, it is conservative lawyers and judges who are out of step. They believe in judicial restraint, in the text of the Constitution, in blind justice, in individual responsibility, in private property, and other principles once thought to characterize the Canadian legal tradition. The legal ground has shifted beneath their feet. Canadian conservative governments tend to reflect conservative values only relative to the extreme nanny-statism of their competitors. And have themselves appointed judges with progressive world views. For instance, Stephen Harper appointed Wagner to the Supreme Court in 2012. .In November, Smith and Carney agreed to a Memorandum of Understanding (MOU) for a pipeline to the West Coast. But the MOU creates no legally binding commitments. No federal legislative changes have been made. The feds still exercise constitutional jurisdiction. Federal policy still rules. Critics say the pipeline will never be built.Last May, I listened to a Conservative Party strategist give a talk on the federal election. He was sorry to lose, of course, but he was happy with the numbers. He said that 41% of the vote was the high-water mark for the federal Conservatives in the modern era. But wait, I thought, the high-water mark? That means Conservatives do not represent a majority in any scenario. It means they can never win unless the left splits the vote. Governments, courts, and public institutions in Canada are progressive and socialist. Apparently, most of its people are, too. Conservatives, whether philosophical or partisan, refuse to accept a bitter lesson. Most Canadians do not hold conservative values. Most do not vote for federal Conservative parties. Canada has a flawed constitution that Conservatives cannot change. Progressive courts reflect the nation. If Danielle Smith truly wants Albertans to determine who sits on Alberta’s courts, she will have to get on board the independence train. Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University.
