12 August 2016

The Supreme Court of Canada #nlpoli

When the Church Lady shows up,  you know your comment on the Internet has hit the mark.

The term comes from the self-righteous character made famous by Dana Carvey on Saturday Night Live and if there was a male equivalent, your humble e-scribbler would happily use it.  Church Lady comments are the ones where the person avoids the sharply-pointed substance of what you said in favour of scolding you for the way you said it.

Your humble e-scribbler scored two Church Lady responses on Twitter this week from two different on two different topics.


The one to start this post was about an opinion column by CBC's Peter Cowan about the federal government's decision to change the way it will solicit nominees for a vacancy on the Supreme Court.  There are three things about Cowan's column worth noting.

First,  in the broad category of media trends, CBC has taken to publishing these opinion pieces lately.  They've also be labelling them "analysis."  More often than not, they are not analysis.  They are not detailed assessments based on expertise, facts, and knowledge.  This is part of a larger, long-standing trend to turn journalists into experts on subjects that often have little direct knowledge of.

Like politics.

The approach does a disservice to the audience since they can wind up being badly misinformed or misled about both the subject and the journalist.

The approach also does a disservice to the journalist who is made into something he or she isn't.  They can get tainted for having a subjective bias when they don't deserve to be. Or they can get sucked into displaying a subjective bias as part of the business of having an opinion which can then impair their ability to do the rapportage part of their job.

Second,  the Cowan piece appeared as the banner post the day after a far bigger story - the one about Muskrat Falls - broke in local media.  In itself, the way that story broke was a stark reminder of the extent to which local media ignores news affecting the province that occurs beyond its own borders, unless it appears the Globe and Mail. Then you have to consider that every media outlet in town played the story down - down the line-up,  down in its implications - rather than give it the prominence it deserved.

Third, and most important for our purposes here, the entire premise of the Cowan piece was that Atlantic Canada was getting rogered out of its entitlement to "representation" on the Supreme Court of Canada and that this was because we';d elected Liberals to the federal parliament, with no other parties being represented.

CBC changed the original headline on the thing.  The current version reads "Ottawa stripped Atlantic Canada of inclusion on Supreme Court with barely a peep."  The original version used "representation" instead of inclusion.  The new version is still just wrong as a matter of fact and has an even worse implication.

On Facebook, Cowan headlined the link this way:
The impact of putting all our chips on Liberal [red], it's left no opposition to Trudeau in Atlantic Canada
That's the subhead on the column online.

Just to tie off the Church Lady thing,  some guy retweeted the link to Cowan's piece and your humble e-scribbler said that the fellow offered a bullshit comment on a bullshit piece with a bullshit premise.

And frankly, it is bullshit to suggest - as Cowan quite clearly does - that decisions by the Supreme Court of Canada are and ought to be influenced by province of origin of the justices,  that seats on the court are to be held by representatives of the provinces, and that, in this instance,  we are all staying silent because there are no Conservative or New Democratic members of parliament from Atlantic Canada.

Civics 101:  The three branches of government in Canada are the executive (the Government, as such), the legislative, and the judicial.  of these, the role of the courts is of an impartial mediator in disputes among parties.  This is no different in the case of the Supreme Court of Canada.

The Constitution Act, 1867 allows the federal parliament to establish a supreme court for Canada  and the Supreme Court Act establishes among other things, the qualifications a person must have to be appointed to the court.  The SCC as it currently exists is the result of a series of changes made in the second half of the 20th century.  These established the size of the court (nine members) and established the practice of appointing individuals based on merit as lawyers and judges rather than affiliation with the political party in power in Ottawa.

The Supreme Court Act says that any "person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province."  The Act also says that for "greater certainty, ..., a person may be appointed a judge if, at any time, they were a barrister or advocate of at least 10 years standing at the bar of a province."

That's it.  There is no allowance for any other qualification.  There are three judges from Quebec but this is simply a reflection of the fact that the court must hear appeals from Quebec,  where the civil code is the form of law for non-criminal matters.  For the provinces where the common law prevails,  all judges are the same because the legal system is the same.

What has happened in practice is that successive Prime Ministers have added other criteria as they have made appointments. These include sex: we now have four female supreme court justices who are female.  Prime Ministers have also taken to appointing judges on an arbitrary regional basis. That's where Cowan gets the idea that Atlantic Canada was entitled to a seat on the court or that, as a result, Atlantic Canadians are now somehow excluded from the court.

The idea that we are excluded is ridiculous, on the face of it, unless you know nothing of how courts work.  That hasn't stopped a host of people in Newfoundland and Labrador from making a big deal out of the fact there hasn't been a judge from this province appointed to the Supreme Court of Canada. proponents of the idea are usually also partial to the so-called "nationalist' point of view which holds that Confederation has harmed the province.

These people claim, among other things, that the offshore cases or cases related to Churchill Falls would have gone differently if there'd been someone on the SCC from Harbour le Cou or, more likely, from Sin Jawns. What these folks ignore is that in many of these instances the Supreme Court of Newfoundland and Labrador ruled the same way the Supreme Court of Canada did. Where the courts disagreed, the basis of the disagreement was on how the law should be interpreted, on what the words mean, not on the basis of some great and entirely imaginary national - i.e. racial - competition.

As for the position of lawyers in Newfoundland and Labrador,  we should be interested in the issue of judicial appointments solely as a matter of individual and professional fairness.  The same rules should apply to all lawyers equally across the country.  Local lawyers were, in fact, put at a disadvantage by the regional approach since it was married to a preference for lawyers with academic experience. Thus, the Atlantic justices came from the provinces with law schools.  Before now,  lawyers from this province would have had to undertake a significant change in their professional careers to secure a place at one of the two three* law schools in Atlantic Canada in order to stand a chance for consideration - let alone appointment for the one seat that had been allotted to the entire region for reasons that had nothing to do with fairness, equity or any other worthwhile value or principle.

The preference shown in federal appointments for bilingual judges is entirely appropriate given that we live in a bilingual country.  In a fair competition,  judges and lawyers from this province would be as likely to succeed as Newfoundlanders and Labradorians have succeeded disproportionately in other fields.

As for the lack of a public outcry,  Cowan's argument doesn't seem to hold up.  For one thing, he offers no evidence that it is true.  There are all sorts of people with editorial positions,  all sorts of provincial politicians, and wannabe politicians, not to mention ordinary citizens all of whom are capable of voicing an opinion.  There is absolutely no reason to believe that any of them are silent simply because of the results of the last election.

They are likely silent because they do not see that the potential for having someone from this province appointed to the Supreme Court of Canada is worth their time and attention.  They have other things to worry about.  Like how they will pay for an enormous hydro-electric project that cannot produce enough hydro-electricity to meet the commitments made by a crowd of notorious "nationalists" to have our resources benefit others, firstly and foremostly.  With things like that on their mind,  the sort of stuff that makes Ryan Cleary yell at bus shelters in Airport Heights hardly seems worth a mention.


Spot the Anglo Update:  Dalhousie,  UNB,  and Universite de Moncton.