For Ottawa and Regina, the dispute began as a relatively minor irritant, but it has now blown into a full-scale constitutional confrontation. When the Progressive Conservatives took power in Saskatchewan in May, 1982, the government began rebelling against Ottawa’s right to appoint provincial high court judges unilaterally. The conflict simmered without resolution for more than a year. Then, last month, federal Justice Minister Mark MacGuigan enraged the Saskatchewan government by making two court appointments without consulting the province. In swift retaliation, Saskatchewan Justice Minister Gary Lane declared that he will prevent Ottawa
from making any more superior court appointments by abolishing all vacant positions until the federal government agrees to consult the province. Lane indeed has the constitutional power to decide the size of each provincial court, but by limiting their size he also threatens to allow a huge backlog of cases to build up. Declared Saskatoon lawyer Robert McKercher, president of the Canadian Bar Association: “What Mr. Lane is doing is reducing the size of the court, and with an expanding population, increased litigation and the impact of the federal Charter of Rights and Freedoms, there is a greater workload for the courts. As a result, the system suffers.”
The Ottawa-Regina dispute is directed primarily at appointments to the Queen’s Bench Court, which hears both civil and criminal cases, and the Saskatchewan Court of Appeal. It began on May 11, 1982, three days after the Tories had defeated the NDP government and Lane became responsible for the administration of justice in the province. The NDP had increased the number of appeal court positions from five to seven in 1981, but by last spring the two new openings still had not been filled. Lane charged that the federal government was about to fill the positions, and he simply abolished them. As well, he maintained that even with the extra judgeships the lack of consultation had also irritated the NDP. He noted that in 1981 Roy Romanow, attorney general at the time, learned about the appointment of a new chief justice of the Court of Appeal from a radio news broadcast. “We have hoped for the past year and a half that there would be some discussions, but it just has not happened,” said Lane.
The latest incident in the long-running fight began when Judge Ray MacDonald retired from the Court of Appeal. Last month MacGuigan named Queen’s Court Judge William Vancise to take his place, and he appointed Regina lawyer Ian McLellan to fill Vancise’s post. “That all happened without consultation, and I have heard that the Liberals have been encouraging judges to go supernumerary [into semiretirement] so that they can plug the bench before the next provincial election,” declared Lane.
For his part, MacGuigan denied the charges. But he acknowledged that he did not consult Lang on the latest changes. “He has made it impossible to consult,” declared MacGuigan. “If the [proposed candidates] did not meet with his approval, then apparently he would just eliminate the positions.” At the same time, MacGuigan defended the
current system of selecting judges, contending that it does, in fact, provide for consultation. He said that Ottawa only appoints lawyers whom the Canadian Bar Association considers to be qualified to serve on the bench. Added MacGuigan: “Beyond the CBA, we consult widely with members of the provincial bar, provincial attorneys general and we also get lots of unsolicited advice from the public.”
But that process is clearly inadequate in the view of the Saskatchewan government. On Nov. 21 the provincial cabinet passed an order-in-council decreeing that when places on the two superior courts become vacant because of retirement the province will simply abolish the positions. The order dismayed both CBA President McKercher and members of the Law Society of Saskatchewan. The society oversees lawyers’ activities in the province and it has been pleading for more courts in Saskatchewan for the past two years. “Frankly, we are disappointed that our resolution has been ignored and the court reduced again,” declared Ted Zarzeczny, one of the 18 benchers who direct the affairs of the law society. And his concern is reflected in the province’s crowded court dockets. The five-member Court of Appeal, for one, has 613 cases waiting for which hearing dates have not even been set, compared to a backlog of 452 cases at the beginning of the year. And the Court of Queen’s Bench has filled its calender until next spring.
Still, neither minister has given any indication of being willing to compromise. Declared MacGuigan: “The ball is in Mr. Lane’s court.” For his part, Lane says that he is determined to expose an irritation that has existed for years. “I want this resolved,” he said. “I do not deny the federal minister’s right to appoint superior court judges, but, because the lines of responsibility get blurred from time to time, I believe there has to be consultation.” Neither MacGuigan nor Lane has acknowledged the role that politics plays in a dispute between a federal Liberal and a provincial Tory. Lane himself was once a Liberal, serving as an executive assistant to the provincial attorney general from 1969 to 1971 in Ross Thatcher’s Liberal administration. Thatcher’s government also experienced poor relations with Ottawa, because the federal wing of the party bypassed many Saskatchewan Liberals during national election campaigns. As a result, Lane became a Tory in 1976 after serving as a Liberal MLA for five years. Lane has never been comfortable with federal Liberals. Because of that bitterness, the legal dispute will almost certainly continue well into 1984.
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