Nadon Cannot Sit, Supreme Court Rules

In a six to one jointly written decision (Moldaver, J. in dissent), the Supreme Court of Canada has answered the questions In the Matter of a Reference by the Governor in Council concerning sections 5 and 6 of the Supreme Court Act, R.S.C. 1985, c. S-26, as set out in Order in Council P.C. 2013-1105 dated October 22, 2013 2014 SCC 21 as follows:

1. Can a person who was, at any time, an advocate of at least 10 years standing at the Barreau du Québec be appointed to the Supreme Court of Canada as a member of the Supreme Court from Quebec pursuant to sections 5 and 6 of the Supreme Court Act?

“[4] In our view, the answer to this question is no: a current judge of the Federal Court of Appeal is not eligible for appointment under s. 6 as a person who may be appointed “from among the advocates of that Province”. This language requires that, at the time of appointment, the appointee be a current member of the Quebec bar with at least 10 years standing.

2. Can Parliament enact legislation that requires that a person be or has previously been a barrister or advocate of at least 10 years standing at the bar of a province as a condition of appointment as a judge of the Supreme Court of Canada or enact the annexed declaratory provisions as set out in clauses 471 and 472 of the Bill entitled Economic Action Plan 2013 Act, No. 2?

[5] On the question of whether Parliament can enact legislation purporting to declare a binding interpretation of s. 6 and thereby permit the appointment of a former member of the bar to one of the Quebec positions on the Court, our view is that the answer is also no. 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 theConstitution 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.

The conclusion is that, in the words of the majority:

[6] The practical effect is that the appointment of Justice Nadon and his swearing-in as a judge of the Court were void ab initio. He remains a supernumerary judge of the Federal Court of Appeal.


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  1. On the third hand (Niven and Pournelle fans will understand):

    [71] We note in passing that the reference questions do not ask whether a judge of the Federal Court or Federal Court of Appeal who was a former advocate of at least 10 years standing at the Quebec bar could rejoin the Quebec bar for a day in order to be eligible for appointment to this Court under s. 6. We therefore do not decide this issue.

  2. The commentariat’s reactions have been instant: <<La défaite est complète et totale pour le gouvernement conservateur.>> The Globe calls it “a stunning blow”.

    One has to feel a twinge of sorrow for the judge who has ended up as a political football, and who is destined to be a footnote like Clement Haynsworth or G. Harrold Carswell.

    There is a faint chance that a Prime Minister determined to appoint Justice Nadon could use the precedent of Justice Le Dain, who despite being a Quebec trained civil lawyer was appointed to an “Ontario seat” – he was preceded by Chief Justice Brian Dickson and succeeded by Justice Cory. Le Dain was a Federal Court Justice at the time of the appointment.

    His appointment – and Justices Iacobucci and Rothstein, after him – show that there’s nothing wrong with appointments from the Federal Court.

    And while she has other things on her mind, M. Marois couldn’t quite remember what’s his name:

    Dans un quiz que La Presse avait fait passer aux quatre chefs politiques en campagne électorale, Pauline Marois n’avait pas été capable de se souvenir du nom de M. Nadon.

  3. The Globe and Mail article for which Simon C provided a link states:

    Justice Moldaver, who dissented, said the majority’s ruling allows for the absurd result that Justice Nadon could qualify by joining the Quebec bar for one day. In fact, though, a spokesman for the Quebec Bar Association said that membership in the bar requires 30 hours of continuing education every two years in programs recognized by the bar.

  4. The majority:

    [71] We note in passing that the reference questions do not ask whether a judge of the Federal Court or Federal Court of Appeal who was a former advocate of at least 10 years standing at the Quebec bar could rejoin the Quebec bar for a day in order to be eligible for appointment to this Court under s. 6. We therefore do not decide this issue.

    Justice Moldaver has a nice zinger:

    I find it difficult to believe that the people of Quebec would somehow have more confidence in this candidate on Friday than they had on Thursday.

  5. If I were a cynical person I might suspect that this is one of the more pointed and cynical opinions that the SCC has delivered, there being, such a person might argue, a sharp irony in the hoisting of Mr. Harper the judicial conservative by a very literal reading of the statute. No judge “making law” here.

  6. There is a certain inevitable tension in this being a reference [a procedure that our American readers would find inexplicable] which thrusts the court into issues which were largely political, and which it would never have chosen. It cannot easily duck references.

    And this political question involves the merits of why candidates are selected for that very institution.

    Jeffrey Simpson’s remarks
    this morning look prophetic.

    And for Slaw readers here is Adam Dodek’s take in tomorrow’s Globe.

  7. m. diane kindree

    Thanks to this historical SCC decision (and Mr. Roco Galati) our Constitution as a “living tree”, with a few broken branches, has been preserved. It is clear that the roots of the tree are firmly attached to the concept of co-operative federalism. This is true whether you are discussing a national securities regulator, changes to the Supreme Court Act, proposed Senate reform, or reform of the selection/vetting process of appointments to our highest courts. I am very interested to see what lies ahead in the case of Edgar Schmidt v Canada (AG)? Meanwhile, we have a flawed SCC appointment process which is less than a fraction of the success that it could have been. What are we going to do about it? IF Mr. Harper asked me this question I would say, “We need a strong Chairperson to head up a committee of representatives from across Canada to reform this process.” Who would I like to see appointed as the Chairperson? Adam Dodek. IF Mr. Harper were to call him, I hope he would accept the position.

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