Roundup: Don’t take conventions to court

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A group of East Coast lawyers has decided to launch a court challenge about the possibility that the government might appoint a new Supreme Court justice that is not from Atlantic Canada, and my head is already hitting the desk because while you can conceivably argue that the regional composition of the court may very well be a constitutional convention, by that very same argument, a constitutional convention is non-justiciable, so you can’t actually take it to court.

https://twitter.com/emmmacfarlane/status/777960468979785729

https://twitter.com/emmmacfarlane/status/777960878251581441

So, to recap, until an appointment is actually made, the whole quixotic venture is premature. Constitutional conventions are politically enforceable but not legally, in part because we don’t actually want people to constantly take the government to court when they lose at politics (which already happens too much – and it’s almost as bad as writing to the Queen when you lose at politics). There was a court case not too long ago when Democracy Watch took the government to court because Stephen Harper went to the Governor General to call an early election despite the (useless) fixed-election date legislation having been enacted, and the courts dismissed it because prerogative powers are constitutional conventions (and while unwritten, are nevertheless still part of our constitutional framework).

And don’t get me wrong – I do think there is a very good case that the regional composition is a constitutional convention because it reflects the federalist principle that is necessary to give its decisions the political legitimacy necessary to be the arbiter of jurisdictional disputes in this country, and that is a pretty big consideration. But the courts are probably not the best place to solve this issue. Having the Atlantic premiers write the Justice Minister to warn her about breaching the convention is probably a better course of action, as would having backbench Liberal MPs from the region expressing their displeasure (though, for all we know, they may already be doing so behind closed doors in the caucus room). And a public campaign that lays out this argument (as opposed to just one centred around it being unfair or about maligning the political correctness of trying to find a new justice that better reflects certain diversity characteristics) wouldn’t hurt either. But this group of lawyers should know better than to try and make a non-justiciable issue justiciable.

Good reads:

  • At the UN General Assembly, Justin Trudeau and John McCallum made a concerted effort to push back against anti-refugee sentiments, while McCallum said that 13 other countries are interested in a sponsorship system like ours.
  • While Conservatives have been howling about planned CPP increases, it will take 40 years for those changes to roll out.
  • The former Chief Statistician explains his resignation around the problems with Shared Services Canada, while SSC shows no signs of achieving their goals.
  • Judy Foote said there was no going back when the switchover to the Phoenix pay system happened. The Auditor General will examine that debacle, unsurprisingly.
  • The federal government is threatening to cut Quebec healthcare transfers so long as they charge user fees for services covered under the Canada Health Act.
  • As expected, the Conservatives launched a privilege complaint, arguing that Jane Philpott misled them when she said she hadn’t rented any limos.
  • Hunter Tootoo is apparently trying to get back into the Liberal caucus, but we’ll see if that ever happens at this point.
  • Here’s a look at which MPs have been named and shamed by the Speaker, not that it says very much other than this is a Speaker willing to do so.
  • Michael Petrou has a long read about Canada’s re-engaging with Iran, and what it means for those Canadians languishing in jails there.
  • Colby Cosh reminds us about how felony murder came to be struck from the books in Canada.
  • Stephen Gordon looks at the research on employment disincentives with minimum wage increases, and some of the unintended adverse effects.

Odds and ends:

Here’s an interview with Chief Justice Beverley McLachlan about her remaining years on the Court.

The nomination race in Stephen Harper’s old riding is starting to take shape.

When it comes time to move the House of Commons to the West Block, the Speaker’s chair won’t be going with it because it’s too big to move.