A practicing lawyer wrote this column anonymously out of fear of disciplinary action or retaliation from their law society.I’ve been a lawyer for about 30 years. In this profession, there are many actors — the good majority of whom have fervent opinions and aren’t afraid to share them. We are advocates, and none of this is anything new nor is there anything wrong about that. It’s what we do.That said, in my entire time in practice, I’ve never heard a buzz in the bar as significant as the reaction to the February 3 statement by Premier Danielle Smith and Justice Minister Mickey Amery calling for a reform of the federal judicial appointment process. This has included even a statement by the Courts and some Law Societies — the latter of which few lawyers dare even to criticize for fear of reprisal.The Left has an uncanny ability to cry “sky is falling” about anything they don’t like — so let’s set that aside for a few minutes and take an objective look at exactly what the Premier and Justice Minister said and the potential implications.Relax bilingualism requirements of federally-appointed judges in Alberta and in Western CanadaSince 2016 (notably, when Justin Trudeau was prime minister), there has been a requirement that justices who are appointed to the Supreme Court have a “functional understanding” of both English and French. Smith and Amery said that “Alberta is also calling on the federal government to relax bilingualism requirements for federal judicial appointments that do not reflect Canada’s broader linguistic diversity in Western Canada and alienates Albertans and Western Canadians alike.”Let’s take a step back for a minute here. Quebec already gets three judges on the Supreme Court’s total of 9, which is well above the 21% of Quebec’s share of the country’s population. These justices presumably speak French already and are trained in Quebec’s civil law code. Conversely, Western Canada gets two seats — fewer than Quebec, even though more people live in Western Canada (about 32% of the country) than in “la belle province.”.A more interesting statistic is that the percentage of French-speaking people in Western Canada ranges from just 1% to 3%, and I can tell you I maybe know one or two lawyers who speak French fluently enough to run a trial in it. This requirement severely limits the talent pool from which Supreme Court justices can be chosen — or is this perhaps the true goal of this policy, so that the federal Liberals can better pick and choose justices who will fit their political mould?More role for provinces in judicial selectionFor the non-lawyer readers, under the Canadian constitution, the responsibility for “justice” is federal, but the “administration of justice” falls to the provinces. Insofar as judicial appointments are concerned, this is interpreted to mean that the provinces appoint lower court judges, and the feds appoint justices anywhere else — the Court of King’s Bench (Alberta’s trial court), the Court of Appeal, the Supreme Court, as well as the Federal Court, Federal Court of Appeal, Tax Court, and Supreme Court.Smith and Amery said that “Provinces deserve to have a say in judicial appointments, such as in Quebec, where there is a highly collaborative process when making appointments.” They go on to say that “a specific board is formed that includes two members appointed by the federal government and two appointed by Quebec.”The Quebec process frankly doesn’t seem like a bad idea — including local decision-making with the federal government. Be that as it may, can someone please tell me why this process should be any different in any other province? (Hint: there is no justifiable reason: there’s no case to be made as to why a similar process can’t be followed in Alberta and elsewhere.) In its response, the Canadian Bar Association — a voluntary membership organization — states that “Alberta already has a strong voice in this process” and in doing so misses this mark entirely, ignoring the preferential treatment of other provinces. The CBA’s claim that the current judicial advisory committees are “non-partisan” is completely untrue — the federal committees are packed with — you guessed it — federal appointees (three members) with the Alberta Minister of Justice of Alberta only having one appointee — and of course, the federal Minister of Justice getting the final say, by way of order in council (without any further confirmation process). One position is even by the CBA itself — leaving one to question if the CBA stands in a conflict of interest in advocating to maintain the status quo..Threats to withhold funding from the judiciaryEasily the most controversial of the statements involved a threat to withhold funding to the judiciary if Alberta’s requests were not met. I’ll be honest — I might have held back on this one — but let’s consider how often the federal government threatens to withhold transfer payments to the provinces unless compliance is effected with their demands? Interesting that the detractors to Smith and Amery’s statement never complain about the feds taking such actions.The most obvious example is the Canada Health Act — while health is a provincial responsibility under the constitution, the federal government has often threatened — and made good on it — to withhold funding to provinces that don’t comply with the federal legislation. So this begs the question: if the feds can do this, why is it any different when the provinces play the same game? (Psst: it’s not.)Ever since the advent of Trudeau Sr.’s Charter of Rights in 1982, courts have had an ever-increasing role in our democracy. It follows that the selection of justices is far more important today than in the past. Judges, once appointed, can sit until age 75, and these appointments should not be taken lightly.Any democracy involves a robust exchange of ideas on all sides of the spectrum. Calling Smith and Amery out for having this conversation is their right, but both our Premier and Justice Minister are onto something in starting this dialogue.A practicing lawyer wrote this column anonymously out of fear of disciplinary action or retaliation from their law society.
