Alberta Premier Danielle Smith.AMBER BRACKEN/The Canadian Press
By inserting a foolhardy threat as a starting point of the conversation, Alberta Premier Danielle Smith guaranteed her letter to Prime Minister Mark Carney asking for more provincial collaboration in federal judicial appointments would be a non-starter.
If Canada has learned anything during the past year, it’s that threats drive partners apart. Use leverage in a negotiation? Of course. But a gun to the head? No.
And the strange thing about Ms. Smith’s letter is that the gun is to her own head, or at least that of her province. The threat, unnecessary, unbecoming, and nonsensical, is this: Unless the Prime Minister accepts her proposal to set up a new federal-provincial committee that would assist in filling judicial vacancies on the province’s two highest courts, the province will not provide support funding for new judicial positions.
No doubt this is political posturing. The Premier seems to want to be seen threatening Ottawa. Stoking resentment may be good politics. But a threat, even a preposterously silly threat, more water pistol than gun, tends to take over a conversation and knocks any actual ideas aside. No wonder federal Justice Minister Sean Fraser promptly, publicly, dismissed the idea. The Premier all but invited him to do so.
Danielle Smith calls on Mark Carney to give Alberta more say in selection of judges
About that silly threat: it is the federal government that pays the salaries of judges on federally appointed courts such as the top trial and appeal courts of the provinces. So when the Premier is talking about support funding, she means administrative help, furniture, cellphones and the like.
And does the Premier really intend the threat as a means of letting judicial vacancies go unfilled? The province spent years lobbying, successfully, to have Ottawa add more positions to superior courts in Alberta. The more judges, the better the chance of reducing court wait times. Leaving spots open (whether new spots only or existing vacancies, the letter isn’t clear) wouldn’t help the courts function well.
Some of the ideas were good ones and deserved discussion. For instance, Ms. Smith proposes a screening committee of four, with two non-partisan legal experts appointed by Alberta and two by the federal government. There is merit in that suggestion. But she goes too far when she says that committee would recommend candidates to both the provincial and federal justice ministers, who would make the picks together. The Constitution Act gives sole authority to the federal government over appointments to the superior courts of the provinces.
The current system involves 17 screening committees of seven people across Canada. The one in Alberta, like every other one, has a member nominated by its law society and a member nominated by its attorney-general. The ultimate decision to appoint is the federal cabinet’s.
Justice Minister Fraser rebuffs Smith’s call for more say over judicial appointments
We note that for Quebec, in 2019, the federal government agreed to set up a process to screen candidates for the Supreme Court of Canada, an independent advisory board whose members were drawn mostly from that province. Quebec is the only province that by law has seats (three) reserved for it on the country’s top court, so there was some logic to it. Nevertheless, the agreement showed how co-operative or flexible federalism can evolve, at the screening level.
Ms. Smith says her proposal would strengthen confidence and promote national unity within Alberta. She also says appointments must reflect Alberta’s “distinct legal traditions,” which she does not spell out. Is she referring to her government’s use of the Constitution’s notwithstanding clause to shield four laws from court challenge, for instance when transgender issues are involved? The federal government might wonder whether the traditions she speaks of are Alberta’s legal ones, or her own political ones.
The Premier’s futile threat shouldn’t defeat for all time judicial reform. For instance, she makes a reasonable point when she questions the requirement that new judges on the Supreme Court of Canada be functionally bilingual in English and French. The requirement, in our view, puts the definition of merit into too small a box, and is unfair to potential Indigenous candidates, in particular. The last appointment from the West turned up only two candidates meritorious enough and bilingual enough to make the shortlist. By the way, the winning candidate, Justice Mary Moreau, is from Alberta.
Threatening not to pay for a judge’s support costs doesn’t change the Constitution. But it is a good way to end a conversation before it starts.