“Of the western provinces, only Saskatchewan has not been represented this century,” the Conservative government led by Premier Scott Moe said in response to written questions from Law360 Canada.
The province pointed out that the last Supreme Court of Canada appointment Ottawa made from Saskatchewan was in 1962 — Justice Emmett Hall, who retired from the apex court in 1973.
Saskatchewan Justice Minister and Attorney General Bronwyn Eyre
The federal government is expected to consult about filling the vacancy with Saskatchewan’s Justice Minister and Attorney General Bronwyn Eyre and with the other attorneys general in the western/northern jurisdictions.
The Moe government said there was a significant gap left in June by the departure of Alberta’s Russell Brown from one of the two Supreme Court seats reserved for the West and North (the other seat is occupied by Justice Sheilah Martin of Alberta).
“Justice Russell Brown’s understanding of the Supreme Court of Canada’s role as guardian of the Constitution and the bedrock principle of federalism was of crucial importance,” the Saskatchewan government said. “We urge the federal government to appoint a justice from Saskatchewan who can bring renewed regional understanding to the bench and ensure a continued commitment to constitutional rigour, particularly as it relates to appropriate provincial autonomy within our federation.”
Eyre, who responded by email to Law360 Canada from outside the country, elaborated that “we’ve seen growing constitutional stealth in the form of regulations, policy and legislation by the federal government into exclusive provincial jurisdiction.”
She noted that s. 92A of the Constitution Act, 1867, which was added in 1982 at the insistence of Saskatchewan and Alberta and affirms the exclusive jurisdiction of provinces to make laws with respect to non-renewable natural resources, forestry resources and electrical energy, “was very deliberate and hard fought for” by then-premiers Allan Blakeney and Peter Lougheed.
“So that is very top of mind for Saskatchewan when it comes to this Supreme Court of Canada appointment, in terms of the issues and challenges that we’re facing,” Eyre explained. “The doctrine of interjurisdictional immunity has traditionally been interpreted in favour of the federal government, not the provinces. Even the trump card POGG [the Peace, Order, and Good Government power], as we saw in the carbon tax case, or the doctrine of federal paramountcy ... have all been employed as legal hammers on the provinces,” she remarked. “It’s time for a course correction.”
Geography remains an important consideration in who is next appointed to the Supreme Court, “but even more important than geography is, and will be, a Supreme Court justice who can bring renewed regional understanding to the bench and ensure commitment to the letter of the Constitution, particularly as it relates to appropriate provincial autonomy under the division of powers, because that really is what defines us as a country and as a federation,” Eyre noted.
The attorney general said the Saskatchewan government “is not currently advocating for any specific candidate.”
“We’re still considering how, and whether, to do that and the appropriate forum to advocate, not just for Saskatchewan, but for the best person,” she added. “We hope to see a justice with a deep understanding of what the division of powers really means within the Canadian federation.”
Saskatchewan’s long held desire to see one of its eminent jurists appointed to the top court is perhaps more acute than ever given recent clashes between the Trudeau and Moe governments over the legality of federal environmental regulations which Saskatchewan sees as incursions into provincial jurisdiction, including with respect to pollution, and Saskatchewan’s unsuccessful constitutional bid to strike down the federal carbon levy at the Supreme Court of Canada: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11.
Saskatchewan Court of Appeal Justice Georgina Jackson
Indeed, how many — if any — functionally bilingual and otherwise highly qualified Saskatchewan jurists actually applied for the post is not publicly known, given the secrecy of the Supreme Court appointment process. There is no doubt, however, that several Saskatchewan jurists would have met the eligibility criteria, including Saskatchewan Court of Appeal Justice Georgina Jackson, a respected bilingual judge with a national profile.
Another name circulating within the legal community is University of Saskatchewan College of Law professor Dwight Newman, who has been the Canada Research Chair in Indigenous Rights in Constitutional and International Law for the past decade.
Although there has not been an appointment to the Supreme Court of Canada from Saskatchewan since 1962, it should be noted that several Supreme Court appointees since then, including Chief Justice Brian Dickson of Manitoba and Justices Willard Estey and John Sopinka of Ontario, were born and/or raised in Saskatchewan.
Department of Justice spokesperson Aurora Chiu told Law360 Canada by email that once the (yet-to-be announced) members of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments have provided a short list of three to five candidates for the western vacancy to the prime minister, federal Justice Minister Arif Virani will consult with Chief Justice of Canada Richard Wagner, “relevant provincial and territorial attorneys general, including Saskatchewan’s, relevant Cabinet ministers, opposition justice critics, as well as members of both the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs.”
“Based on these consultations and the Minister of Justice’s recommendation, the prime minister will choose the nominee and publicly announce their name,” Chiu said. “The Minister of Justice and the Chairperson of the Advisory Board will then appear before the House of Commons Standing Committee on Justice and Human Rights to explain why the nominee was selected.”
Ottawa did not reply to questions about whether it is open or favourable to Saskatchewan’s urging that the prime minister appoint a jurist from Saskatchewan “who can bring renewed regional understanding to the bench and ensure a continued commitment to constitutional rigour, particularly as it relates to appropriate provincial autonomy within our federation.”
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