The media was abuzz last week over the Chief Justice and Prime Minister’s interactions with respect to the Justice Nadon appointment issue.
The controversy is taking away from what I think should be the bigger issue.
Quebec has a constitutional right to have three appointed members of the Supreme Court of Canada. That is the undisputed effect of the Supreme Court’s decision in Reference re Supreme Court Act, ss. 5 and 6. Yet despite this constitutional right, there has now been a vacancy in Quebec’s representation on the Court for over eight months.
The unexpected twists from the Nadon appointment undoubtedly took the government by surprise, but the Supreme Court’s decision in respect of Justice Nadon’s appointment was released almost two months ago. There is still no news on who Quebec’s third judge on the Supreme Court of Canada will be.
Having one member of the Court missing undoubtedly affects the operation of the Court itself. To avoid split decisions, only seven judges will usually sit on any particular appeal. In close cases (4-3 decisions), the Court’s composition could conceivably affect the result. Would the case have been differently decided if the Court had sat nine instead of seven? Would deliberations have been different? Would the reasons be different? What if the Court had split 4-4 in the result in Reference re Senate Reform?
It is high time for Quebec’s new judge to be appointed to the Supreme Court of Canada.