Supreme Court sits without Justice O'Bonsawin, its sole Indigenous judge, on major federalism and environmental policy case

It's not a good look for the Court

Hearings started yesterday on the federal Impact Assessment Act, which a majority of the Alberta Court of Appeal deemed an unconstitutional intrusion into provincial authority to approve new energy projects.

Normally in a major case like this, the Supreme Court would sit with a full panel of nine. But with Justice Brown on leave due to an investigation into allegations of improper behaviour at a Arizona resort, the Chief Justice had a choice: sit with eight judges or seven? The former risks a tie vote and thus ‘indecisive’ outcome (technically speaking, a tie vote would mean the Alberta Court of Appeal judgment stands - and normally that would be fine, but in the context of a reference case theoretically a government could choose to disregard such an outcome, and a tie vote might give it incentive to do so).

Chief Justice Wagner chose to sit with seven. In some respects, this was the ‘safe’ choice, not only to avoid a tie but also because it conforms to general practice of sitting with an odd number.

The problem, however, is that in the context of a highly controversial division of powers dispute, the choice also risks politicization. We know who sits on the bench matters. Justice Brown himself is regarded as a strong voice for provincial authority. His absence is therefore seen as significant. The optics here is that leaving someone out risks changing the potential outcome. Moreover, the judge sitting this out is Justice O’Bonsawin, the Court’s first and only Indigenous justice. It may be that there was a discussion and she agreed to sit out. It may be that Wagner chose her because she is the most junior puisne justice. Regardless, in a case involving environmental regulation and with implications for the use of land, it is perhaps not a great look.

The better course of action, in my view, would have been to sit the full eight. Having eight judges involved in a decision is hardly unprecedented (indeed, the Court is allowing eight votes to stand in cases for which Brown was present at hearing but did not take part in the judgment - its usual practice when a judge becomes ill or unexpectedly leaves the Court).

Moreover, a tie vote would not create some sort of rule of law problem. Courts and governments have consistently treated reference opinions as every bit as authoritative as regular cases, and so if the federal government decided a tie vote here gave it leeway to pretend the IAA remained ‘good law’ it would be the one playing with fire.

As Allan Hutchinson recently wrote, this problem highlight the degree to which constitutional law is inherently political. There’s a very good reason the Court evolved in the Charter era to routinely hear major cases with all nine judges: deciding which judge(s) to leave out can impact the outcome (prior to the Charter, and especially prior to 1975 when the Court had far less control over its docket and routinely heard cases that were not of national importance, the Court would much more routinely sit in panels of 5 or 7). Canadians should be hearing what the full slate of (available) judges has to say on issues of national importance.