Paul Daly has posted an interesting argument on his blog, Administrative Law Matters, relating to the legality — or perhaps correctness — of Prime Minister Harper's appointment of Federal Cour of Appeal Justice Nadon to the Supreme Court. As everyone will likely know, the governing provisions are ss.5 and 6 of the Supreme Court Act, which read as follows:
5. Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.
6. At least three of the judges shall 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.
Unlike former SCC Justice Binnie, who focused in his commissioned analysis principally on s.5, Daly looks at s.6 and particularly at its legislative history. He quotes what he regards as Binnie's best argument re s.6 and then suggests that it's not in accord with the legislative history as recorded in the 1875 Debates, when the precursor to the current act was passed.
An amendment was introduced by Mr. LaFlamme and subsequently adopted by the House to form part of our s.6. Daly quotes the relevant passage from the Debates in French, the version he has at hand (which is itself a translation of the original speech in English). I've managed to find the 1875 Debates online and have transcribed the passage Daly quoted in English (pp. 970, 971 in the English version):
Mr. LaFlamme moved that this Bill be not now read a third time, but that it be referred back to Committee of the Whole to be amended by adding the following words after the word "court" on the 18th line of the fourth section of the said Bill:—"Two of whom at least shall be taken from the Judegs of the Superior Court of Court of Queen's Bench, or from amongst the Barristers or Advocates of the Province of Quebec." He said this motion was merely to carry out the idea which he had expressed the other night—that he believed under the peculiar circumstances in whihc the Province of Quebec was situated, and its special system of laws, of which the Judges from the other Provinces who might be selected for this court would be entirely ignorant—it was essential in order to arrive at a good and sound interpretation of the laws of that Province, that two of these Judges, at least, should be selected from the bar of Lower Canada. . . . [C]onsequently he believed and in fact was perfectly satisfied that no member in this House, and no man in the country, would doubt it, that Judges selected from the bar of the Province of Québec would be as comptent to administer justice as those selected from the bar of any other Province. It struck him that as their training and education was more in the sense of equity than of common law jurisdiction their appointment would be no disadvantage, but rather an advantage to this court. He believed this amendment, owing to the peculiar position in which Québec stood would meet with no objection from any hon. member in this House.
Read Daly's argument in full. I offer his summary here, but he has a lot more to say that is worthwhile.
In sum, the legislative history confirms:
1. That is now s. 6 was designed to respond to the special position of Québec;
2. That the language in s. 6 was designed to serve the exclusionary purpose of narrowing the potential pool of candidates; and
3. That the Exchequer Court (the forerunner to the modern federal courts) was excluded from the list of enumerated courts from which Québec judges could be appointed.