Soon – perhaps within the coming days or weeks– the Prime Minister will name a new Supreme Court Justice to replace retired Justice Marie Deschamps. As set out in the Supreme Court Act, this judge must come from Quebec because section 6 of that act provides that "[a]t least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province." However, it is not completely clear who qualifies as "a Quebec judge" for the Supreme Court beyond being a member of the Barreau du Quebec or a judge of a court in Quebec (a judge of the Federal Court or Federal Court of Appeal would apparently not qualify as judges are no longer members of the bar — but that is another issue…).
How "provincial" does a potential Supreme Court judge need to be in order to qualify for the Quebec seat (or the Ontario seat, the Western seat, etc.)?
This problem has been created or rather it has arisen because of mobility within the Canadian legal profession. It is now possible to be a member of and actively practice in multiple jurisdictions. For example, lawyer Guy Pratte has been rumoured as a candidate for the Supreme Court, both for this and future Quebec vacancies and for past Ontario vacancies. Mr. Pratte would clearly qualify for an appointment from either province because according to his firm webpage, he was called to the bar in Ontario in 1984 and the Quebec bar in 2002.
The Supreme Court Act requires that "[a]ny 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."
So what happens if an Ontario lawyer with more than 10 years experience qualifies for (the notoriously difficult) Quebec bar in 2012? Would they be eligible for appointment from Quebec to replace Justices Fish or Lebel in 2013 or 2014, respectively?
Legally, I think such a hybrid Ontario-Quebec lawyer would be eligible for appointment under the Supreme Court Act. Politically, whether such a person would be considered a "Quebec lawyer" is another matter.
In an age of increasing interprovincial and national practice of law, we are likely to see more lawyers frequently practicing in multiple jurisdictions. They are precisely the type of "national lawyers" who are likely to attract attention as potential Supreme Court of Canada appointees.
However, the old paradigm of regional appointments which is firmly entrenched in our constitutional culture clashes with those changes in the practice of law.
That clash between old and new paradigms is likely to grow in the future and exert increased pressure on our system of regionally-based appointments to our country's highest court.