The Washington Post

Canada’s Supreme Court has rejected its new member. Here’s how this changes Canada’s constitutional debate

Canada’s Prime Minister Stephen Harper, right, walks with President Obama during the North American Leaders Summit in Toluca, Mexico, on Feb. 19. (Sean Kilpatrick/ Canadian Press via AP )

On Oct. 3, Prime Minister Stephen Harper appointed Federal Court of Appeal Judge Marc Nadon to the Supreme Court of Canada (SCC). In the Canadian system, the prime minister has wide discretion in choosing Supreme Court judges (Parliament has no advise-and-consent function), so the process of filling a vacant seat is normally a fairly straightforward affair.

Not this time. On Friday, in a stunning 6-to-1 decision, the SCC announced that Justice Nadon was ineligible to serve on the court and that his appointment was void. How is it that Canada’s final court of appeal was left to assess and ultimately reject one of its own members? It’s an extraordinary case, one that is a product of Quebec’s unique representational guarantees, as well as the longstanding constitutional ambiguity that surrounds the SCC itself.

The reason for Justice Nadon’s disqualification has to do with the question of who qualifies as a SCC judge from Quebec. The composition of the SCC is unique in that three of its nine members must come from Quebec (pursuant to s. 6 of the Supreme Court Act). This is a consequence of the bi-jural nature of Canada’s legal system: Unlike the rest of Canada, which practices common law, Quebec has a civil law system. By mandating that a third of the bench be staffed with Quebec judges, it ensures that the court is prepared to hear any case that comes before it, regardless of the legal system it originated in.

Nadon was appointed to replace Justice Morris Fish as one of the three Quebec judges. Almost immediately, though, questions were raised about whether Nadon, who at the time was a supernumerary (semi-retired) judge serving in the Federal Court located in Ontario, could be considered a Quebec judge. While he had been a member of the Quebec bar in the past, his membership had lapsed some 20 years ago. It was an open question, therefore, whether he met the provincial criteria stipulated in the Supreme Court Act.

Anticipating precisely this issue, the Harper government circulated a legal opinion from a former Supreme Court Justice, affirming that anyone with ten years standing at the Quebec bar, even if not currently a member, could be appointed as a Quebec judge of the SCC – a standard Nadon met. However, on Oct. 7 — the same day that Nadon was sworn in as a SCC judge — an Ontario lawyer filed a legal challenge to the appointment. Faced with an inevitable legal showdown and mounting condemnation from Quebec, the Harper government took two actions:

1. It preemptively amended the Supreme Court Act to render Nadon eligible.

2. It referred the matter to the SCC to receive final clarification on who qualifies as a Quebec judge.

The SCC was tasked with answering two questions.  First, it was asked to clarify whether a person with 10 years standing at the Quebec bar, but who was not currently a member, could be appointed to the SCC as a Quebec judge. After considering the matter, the Court said no. According to the six-member majority, Quebec judges must either be from the Quebec Court of Appeal, the Superior Court, or be a current member of the Quebec bar. By the majority’s understanding, the pool of eligible Quebec candidates is limited in order to “ensure expertise in civil law and that Quebec’s legal traditions and social values are reflected in the judges on the Supreme Court, and to enhance the confidence of the people of Quebec in the Court” (para. 59). As a judge of the Federal Court of Appeal, Nadon did not meet these qualifications and was therefore ineligible to serve.

The second question put before the court was whether the federal government had the authority to amend the eligibility requirements for who can sit as a judge on the SCC. A bit of background: To those unfamiliar with Canada’s constitutional history, it likely seems bizarre that there would be any uncertainty over something so fundamental as amending the constitution. To make a very long story short, when the SCC was founded in 1875, it was created by federal statute, not constitutional law. The Constitution Act of 1982 makes mention of the SCC in the amending formulae — and indeed stipulates that any changes to the SCC’s “composition” requires the unanimous agreement of the federal government and provinces — but nowhere else. The entire question of the SCC’s constitutional status was left somewhat up in the air, with some voices, including the federal government, arguing that the court was not entrenched in the constitution and could therefore be amended by a simple act of Parliament.

In its response Friday, the SCC completely repudiated this argument. According to the judges, the SCC is a “foundational premise of the Constitution” and that its essential features are constitutionally protected. Consequently, the federal government can only change the eligibility requirements of the SCC’s judges with the unanimous consent of the provinces.

In the near term, the majority’s response means that the Supreme Court remains one judge short of a full bench. The government also faces the rather embarrassing task of selecting a new nominee. In the longer term, though, Nadon’s failed appointment will have an important effect on the Canadian political landscape. First, in clarifying its own constitutional status, the SCC has ended decades of scholarly speculation and has served to further assert its own independence. It has also made clear that any substantive changes to the court will require a constitutional amendment – a prospect that recent Canadian governments, including the current one, have actively sought to avoid.

Second, the uncertainty as to why Nadon was selected over so many other clearly qualified and eligible Quebec candidates has brought renewed attention to the court’s much maligned appointments process. Despite recent informal reforms that were intended to bring greater transparency to the selection process, Supreme Court appointments are still largely made in the proverbial smoke-filled room. We simply do not know very much about how these judges are chosen, except that the final say-so ultimately resides with the prime minister. The Nadon case shines a bright light on this controversial feature of the Canadian judiciary.

Finally, the entire Nadon affair has important consequences for Quebec politics. The province is currently in the midst of a closely fought election campaign, pitting the governing Parti Québécois (PQ) against a resurgent Liberal Party. The PQ draws a great deal of its support from Quebec sovereigntists, and a different decision in the Nadon case would almost certainly have been touted as proof that the province’s interests cannot be adequately protected while still part of Canada. The SCC’s decision yesterday helps to diffuse that particular controversy and refocuses the race on other issues.

Altogether, the Nadon case is likely to be remembered as one of the most important of recent decades for Canada.  It sets forth clear criteria for selecting Quebec judges, affirms the importance of Canada’s bi-jural legal system, and unambiguously grounds the Supreme Court in the constitution.

Erin Crandall is a postdoctoral fellow in the political studies department at Queen’s University. Her current research focuses on whether the system of judicial appointment affects the representation of women on Canada’s courts.

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