When will Saskatchewan get to send a judge to the Supreme Court?

When Gordon Wyant met federal justice minister Peter McKay in 2015 to discuss an upcoming Supreme Court appointment, Wyant, who was Saskatchewan’s justice minister, did not explicitly say it was his province’s turn to have a judge on the top court.

But it was on his mind.

“My argument wasn’t that it was our turn, even though that was the undertones of the conversation, but we had the best guy in western Canada to be appointed to the Supreme Court,” Wyant said in a recent interview.

“Justice Russell Brown [from Alberta] was appointed. Fair enough. But I do think it is really time for the government to consider an appointment from Saskatchewan.”

Last month, Ottawa opened up the self-nomination process for the vacancy left by the May 30 retirement of Justice Sheila Martin. The seat must be filled by a candidate from western or northern Canada. An advisory board will short-list candidates for Prime Minister Mark Carney to consider.

Saskatchewan has not had a judge on the Supreme Court since Emmett Hall, who was appointed by Prime Minister John Diefenbaker in 1962 and retired in 1973.

Two justices since — Willard Estey (1977-88) and John Sopinka (1988-97) — were born in the province, but spent their legal careers in other provinces and aren’t considered Saskatchewan jurists.

In addition to regional representation, appointments also consider gender and race to strike a balance on the nine-member bench.

Wyant, who is back to practising law at McKercher LLP in Saskatoon after a career in city and provincial politics, said regional representation still matters.

“Everyone that goes to the court takes with them their experiences, their relationships, and that’s what regional representation is all about,” Wyant said.

“So any judge that gets appointed from Western Canada would have relationships in Western Canada and perspectives from Western Canada.”

Given a rise in western alienation, regional representation should still be considered for appointees so people across Canada feel represented by the court, said Colton Fehr, an assistant professor in the College of Law at the University of Saskatchewan.

“If those cultures and values are not represented or even seem to be represented on the Supreme Court, then it can further that sort of alienation,” Fehr said in an interview.

“It also can start to impact the perceived legitimacy of the Supreme Court. If we start saying, ‘The West doesn’t need any Supreme Court justices, let’s just substitute them with people from Ontario,’ this will likely create, whether correctly or not, some animosity.”

The current Saskatchewan justice minister and attorney general, Tim McLeod, wrote to his federal counterpart Sean Fraser in March, urging him to appoint a jurist from Saskatchewan.

The five-decade gap in appointments “risks undermining the regional balance that Canadians expect from a truly national institution,” McLeod wrote.

“Saskatchewan’s legal community has historically made outsized contributions to matters of national legal importance, with deep grounding in common law principles shaped by our rural, northern, Indigenous, and resource-based communities, all of which form a significant part of our federation,” McLeod said in an emailed statement to CBC News.

In 2015, Wyant thought Saskatchewan had a good candidate in Robert Richards, who was chief justice of the Saskatchewan Court of Appeal at the time. But he retired in 2023. So who else could be considered?

The Federation of Sovereign Indigenous Nations, at its recent spring assembly, proposed a resolution endorsing Saskatchewan federal judge Paul Favel as its preferred candidate. Favel is a member of Poundmaker Cree Nation and was appointed to the federal court in 2017.

CBC could not confirm whether the resolution passed, but it’s hard to imagine the FSIN would propose endorsing Favel if it wasn’t sure he intended to put his name forward.

The FSIN did not respond to a request for comment.

Wyant declined to reveal what he knows about potential candidates.

“There’s a number of names that I am aware have put their names forward, all of whom would be excellent additions to the Supreme Court,” Wyant said.

Favel declined CBC’s interview request, according to an emailed statement from the Federal Court office.

One hitch in a Saskatchewan nomination is the requirement that Supreme Court judges be functionally bilingual.

“One of the comments that I had made to Minister McKay at the time and to subsequent ministers is that it does have the disadvantage for Saskatchewan and some Western Canadian jurists who aren’t functionally bilingual who would be very, very good appointments to the Supreme Court,” Wyant said.

In his statement, McLeod said bilingualism is “an asset and should be viewed favourably when considering candidates” but also pointed out that “the heads of other branches of government” don’t have the same requirement.

“It would be concerning if an increasingly rigid application of this requirement, introduced only in 2016, began to narrow the pool of highly qualified jurists from Western Canada and disadvantage regions that are already underrepresented on the Court,” McLeod swrote.

The Supreme Court of Canada nomination window closes April 27.