Canadian Supreme Court Rejects Its Newest Member

Guest post by Professor Sarah Harding

While ISCOTUS is dedicated to matters that relate to the highest court in the U.S., a recent decision of the Supreme Court of Canada is worthy of a few passing remarks. Last Friday the Supreme Court of Canada, in a rare advisory opinion, held that the most recent appointment to its own Bench was not qualified as a Quebec appointee. The appointee, the Honourable Marc Nadon, a semi-retired judge on Canada’s Federal Court of Appeal (a court of specialized, limited jurisdiction, similar to the Federal Circuit Court and focused exclusively on federal law), according to the Supreme Court, lacked sufficient connection to Quebec.

First, some quick background is in order. The status of the Supreme Court of Canada under the Canadian Constitution has been a matter of significant debate. The nation’s first constitutional document, the British North America Act 1867, merely granted the power to Parliament to create a “Court of General Appeal for Canada.” There is no other reference to the Court. Pursuant to that mandate, Parliament passed the Supreme Court Act in 1875. The Supreme Court Act provides that three of the nine judges of the Supreme Court of Canada must be appointed “from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” Finally, under the Constitution Act 1982, changes to the “composition of the Supreme Court” require unanimous consent of all the Provinces and the two Houses of Parliament.

The problem with Justice Nadon’s appointment to fill a Quebec position on the Court was that he was neither a judge of the Court of Appeal or Superior Court of Quebec nor was he a member of the Quebec Bar at the time of his appointment. He was a member of the Quebec Bar almost 20 years ago. His hasty appointment by Prime Minister Harper back in the fall – the Prime Minister announced the nomination on Sept. 30th and he was sworn in as a member of the Court on the morning of Oct. 7th - immediately sparked a constitutional challenge by a Toronto lawyer. Soon thereafter, the Government of Quebec joined in the chorus of objections. In an attempt to settle the matter expeditiously, the Government referred the matter to the Supreme Court under the Supreme Court Act reference procedure. Two questions were put to the court: 1. Can a person who was at any time a member of the Quebec Bar for at least 10 years qualify as being “from among the advocates of that Province”?; 2. If the answer to the first question is no, can Parliament enact legislation to make a person eligible to one of the three Quebec seats on the Court?

The second question applied directly to legislation passed by Parliament in December, hastily amending the Supreme Court Act to ensure that a member of the Quebec Bar be defined as including former members of the Bar.

In a 6-1 unsigned ruling, the Court decided that Justice Nadon did not qualify to sit on the court as a Quebec appointee – that, of course, doesn’t mean that he wouldn’t have qualified as an appointee from a different region in Canada - and that the Court’s composition is constitutionally protected. Any attempt by Parliament to change the qualification rules through an amendment to the Supreme Court Act was unconstitutional.

While the decision turned on a range of technical interpretive arguments, the real heart of the matter and the Court’s decision is Quebec’s representation on the Court. At no other time in the history of the Court has there been a Quebec appointee who was neither a sitting Quebec judge nor a current member of the Quebec Bar. According to the Court these limitations on Quebec appointments are important: they ensure “that the Court has civil law expertise … that Quebec’s legal traditions and social values are represented on the Court and that Quebec’s confidence in the Court be maintained.” As Quebec heads into another provincial election with rumblings of yet another referendum on secession, these matters are as important as ever.

Aside from the decision, one can’t but help but wonder what’s behind all this for the Harper government. Why did he appoint someone who anyone could have predicted would present a challenge to the rules, forcing Parliament to pass hasty retroactive amendments to the Supreme Court Act, and the Court into the awkward, unprecedented position of having to decide on the qualifications of its own members? It’s possible that this is just bumbling incompetence on the part of the Harper Government, or a more complicated plan to force Constitutional reform. But the most likely explanation, and certainly the favorite of the Canadian press, is that Harper simply liked Nadon’s deferential decisions, in particular his solo dissent in the Omar Khadr case. The Federal Court of Appeal decision in Khadr, eventually affirmed in most respects by a unanimous Supreme Court, ordered the repatriation of Canadian child terrorist Omar Khadr from Guantanamo. In his dissent Justice Nadon argued that it was the court’s duty to stay out of government’s way. In general, Nadon’s appointment seems to be part of Harper’s strategy to make courts more deferential to government and wary of protections under the Charter of Rights. To many, the appointment seemed blatantly political in a process that has been surprisingly apolitical in the past.

The spot has now been vacant for nearly a year, leaving only 8 justices on the Court. One can only hope Prime Minister Harper pays more attention to judicial qualifications and less to his ideological vision for the Canadian judiciary in his next nomination.