Article content continued

The board is supposed to propose a shortlist of three to five candidates, which is reviewed by various luminaries including the Chief Justice, the attorneys general of the provinces from which the candidates hail, “relevant cabinet ministers,” opposition justice critics, as well as the appropriate Commons and Senate committees, before being put to the prime minister — who can ignore them all if he wishes.

In the case of appointments from Quebec a quite different process will now apply. The advisory board will be drawn up not from across Canada, but almost entirely from Quebec; two of them will indeed represent the government of Quebec. The board’s recommendations will, after consultations held exclusively in Quebec, be passed to the premier, who will then forward his choice from among them to the prime minister.

This sort of thing is not supposed to be kosher, constitutionally speaking

Meanwhile, the same list of candidates will be put through the federal consultation process described above, though you can guess how much weight it will have. And in theory the prime minister remains free to ignore them all. But who’s kidding whom? The prime minister who rejects the nominee of the premier of Quebec will be bold indeed; the prime minister who picks someone not on the shortlist drawn up by the Quebec government and provincial legal establishment will be suicidal.

So this will effectively provincialize a key federal power. Quebec already enjoys a special status when it comes to the Supreme Court, being the only province with a guarantee of a fixed number (three) of seats on the court by the Constitution, rather than by convention. (Most, of course, don’t even get that. Question: who was the last Supreme Court judge to be appointed from Saskatchewan? Answer: Emmett Hall — in 1962.)