What struck me most about the Supreme Court of Canada’s Nadon decision was the simplicity of the underlying issues. “How should s. 5 and s. 6 of the Supreme Court of Canada Act be interpreted?” These questions go to basic issues of statutory interpretation involving the very composition of the Court. Yet the issue prompted a diversity of views from intelligent people – six on behalf of the majority, versus possibly four others (if the legal opinions of former Justices Ian Binnie and Louise Charron and scholar Peter Hogg are included together with Justice Moldaver’s dissent).
The only questions the Supreme Court was asked to decide involved pure issues of statutory interpretation. At the risk of oversimplifying the analysis, this is how I saw the differences between the majority and the dissent.
In its approach to statutory interpretation, the majority engaged in a broad canvassing of many different factors, ranging from the plain meaning, differences in wording, and the legislative purpose. All of this was fed with references to legislative debates, the history of the Court itself, even recent constitutional debates. The majority’s analysis is a rich and deep exercise in statutory interpretation.
The dissent addressed these factors too. But for Justice Moldaver, the real kicker was the absurdity inherent in the majority’s decision. It meant that Justice Nadon could be appointed to the Quebec bar for one day only, and thus qualify under the majority’s test. For Justice Moldaver, the “practical sense” of the decision drove his conclusion: “It makes no practical sense,” he concluded.
The majority very pointedly decided not to deal with the absurdity criticized by Justice Moldaver – because it was not a question the Court was asked to decide. Adding to the intrigue, this absurdity was the second of two questions about which Ian Binnie, a former Justice of the Court, was asked to give an opinion to the Department of Justice. Louise Charron, another former Justice of the Supreme Court, also said “there is no question” that she agreed with the answer and Peter Hogg said that he was in “complete agreement” with Ian Binnie’s conclusion. If the “one day” issue comes before the Supreme Court, how will those strongly-held opinions stack up?
Some media reports suggest the government is not ruling out renaming Justice Nadon to the Supreme Court. Regardless of one’s stance on the issue, there can be no doubt that there would be great legal risk if Harper stuck with the Nadon appointment by taking the “appointment to the Quebec Superior Court for a day” route. Statutory interpretation is undoubtedly a rich and diverse exercise that can lead to vastly different results, depending on one’s perspective. Practical sense matters for some. Overall context matters more for others. The first two questions the government asked in the Nadon reference were squarely decided against it. Some tea leaves strewn through the majority’s reasons (citing the importance of “civil law training and experience on the Court” and to the need to ensure “the legitimacy of the Supreme Court as a general court of appeal for Canada”) suggest the Court might well indeed decide a one day appointment is not enough. Is the Prime Minister willing to roll the statutory interpretation dice one more time? I know I wouldn’t risk my political capital.