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Supreme Court Rejects Harper Appointee

  • May 16, 2014
  • Clayton Rice, Q.C.

On September 30, 2013, the Prime Minister announced the nomination of Mr. Justice Marc Nadon, a supernumerary judge of the Federal Court of Appeal, to the Supreme Court of Canada. On October 3, 2013, by Order in Council, Justice Nadon was named a judge of the court, replacing Justice Morris Fish as one of the three judges appointed from Quebec under s. 6 of the Supreme Court Act. He was sworn in on October 7, 2013. That same day, the appointment was challenged by an application in the Federal Court of Canada. On October 22, 2013, the Governor General in Council referred two questions to the Supreme Court. For the first time in its 139 year history the court was asked for an opinion whether an appointee met the requirements of the Act.

On March 21, 2014, the court released its opinion indexed as Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. In answer to the narrow question whether Justice Nadon was eligible for appointment because he had previously been a member of the Quebec bar the court concluded – no. Chief Justice Beverley McLachlin, who wrote the 6-1 majority opinion, held that under s. 6 of the Act the appointee must be a current member of the Quebec bar with at least 10 years standing at the time of appointment.

Chief Justice McLachlin also held that any change to the composition of the court could only be done by constitutional amendment, at para. 5: “The eligibility requirements set out in s. 6 relate to the composition of the Court and are, therefore, constitutionally protected. Under s. 41(d) of the Constitution Act, 1982, any amendment in relation to the composition of the Supreme Court of Canada may only be made by proclamation issued by the Governor General under the Great Seal of Canada authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province.”

In reaching this conclusion the majority reaffirmed the historical compromise that led to the creation of the Supreme Court. Just as the protection of minority language, religion and education rights were central to Confederation, the protection of Quebec interests by a minimum number of Quebec judges was central to the creation of the Supreme Court. The Chief Justice held that s. 6 of the Act protects both the functioning and the legitimacy of the Supreme Court as a general court of appeal for Canada, at para. 49: “The purpose of s. 6 is to ensure not only civil law training and experience on the Court, but also to ensure that Quebec’s distinct legal traditions and social values are represented on the Court, thereby enhancing the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights.”

Further, at para. 56, the majority emphasized that the appointment of current members of civil law institutions, “…was intended to ensure not only that those judges were qualified to represent Quebec on the Court, but that they were perceived by Quebecers as being so qualified.”

It has been said that Canada is a notoriously difficult country to govern. One of the things that holds our cultural and regional diversity together is the glue of our constitutional beliefs. The Constitution of Canada is one of the oldest working constitutions in the world. That glue binds us as men and women, family to family, urban and rural, province and territory, as one nation. By this reaffirmation of the distinct legal traditions and social values of Quebec, the Supreme Court may not have made us easier to govern. But that’s not what the constitution does. The constitution explains to us why we are hard to govern. If it was easy, well, we wouldn’t need it.

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