Once upon a time, Humpty Dumpty reminded Alice, in Lewis Carroll’s Through the Looking Glass:
“When I use a word,” Humpty Dumpty said in rather a scornful tone. “It means just what I choose it to mean – neither more or less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”
Readers of this blog, and others who follow Canadian politics and law, will know that there is some controversy surrounding the appointment, by the Prime Minister of Canada, of Mr. Justice Nadon, of the Federal Court of Appeal (FCA), to the Supreme Court of Canada to fill the vacant Quebec position. His eligibility has been challenged. The gist of the argument is that, as a member of the FCA, he is not a member of the Quebec Bar and, therefore, doesn’t satisfy the requirements of the Supreme Court Act.
This eligibility issue has nothing to do with whether Justice Nadon is otherwise qualified and the best choice, or even a better choice, for the position. Nothing I write here should be taken as any statement about those issues.
Readers of this blog and those others probably know that some member of the Conservative Party, or of the federal civil service, obtained opinions from leading scholars and jurists that the appointment of Justice Nadon is legal. Notwithstanding that, a challenge to that appointment is pending in the Federal Court. Here is a link to a Globe and Mail article about the controversy:”Justice Nadon steps aside from Supreme Court until legal challenge resolved“.
However, the party currently holding the majority of seats in Canada’s Parliament – or at least the person(s) who must be obeyed – have taken other steps in an attempt to remove the eligibility issue.
One step is not surprising and is entirely proper. The other should not have been, given the history of the party currently holding the majority in Parliament, and some will question its propriety even if that step is legal. “MacKay rewording Supreme Court Act while seeking court’s advice on legality of Nadon’s appointment”. “Is” and “ought” are not synonyms in politics.
In passing, “MacKay” is an odd way to spell the current Prime Minister’s name. While it is, I expect, formally true that Mr. MacKay, as Justice Minister, is the person whose name is on the submission to the SCC, and who is shown as the sponsor of the bill, one would think that an article in the newspaper, that purports to be Canada’s national paper, wouldn’t mistake the Justice Minster for the Prime Minister.
On the other hand, some readers of this blog, and others, will remember an agreement that Mr. MacKay signed while he was still the leader of a now-defunct ancestor of the party currently in power.
In any event, since this is a law magazine, not a political rant forum, I’ve provided a link to the proposed bill that will amend the Supreme Court Act as well as a link to the section of the bill. For those of you who haven’t seen read or heard about this, it’s
- Bill C-4
- A second act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures
- Short Title
- Economic Action Plan 2013 Act No. 2
Supreme Court Act amendmentDivision 19R.S., c. S-26
Supreme Court Act471. The Supreme Court Act is amended by adding the following after section 5:5.1 For greater certainty, for the purpose of section 5, a person may be appointed a judge if, at any time, they were a barrister or advocate of at least 10 years standing at the bar of a province.472. The Act is amended by adding the following after section 6:
6.1 For greater certainty, for the purpose of section 6, a judge is from among the advocates of the Province of Quebec if, at any time, they were an advocate of at least 10 years standing at the bar of that Province.
R.S., c. S-26
Loi sur la Cour suprême
471. La Loi sur la Cour suprême est modifiée par adjonction, après l’article 5, de ce qui suit :
5.1 Pour l’application de l’article 5, il demeure entendu que les juges peuvent être choisis parmi les personnes qui ont autrefois été inscrites comme avocat pendant au moins dix ans au barreau d’une province.
472. La même loi est modifiée par adjonction, après l’article 6, de ce qui suit:
6.1 Pour l’application de l’article 6, il demeure entendu que les juges peuvent être choisis parmi les personnes qui ont autrefois été inscrites comme avocat pendant au moins dix ans au barreau de la province de Québec.