The Nadon Decision and the Wonderful Elasticity of Language

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.


  1. Among the difficulties in this case was that either interpretation could lead to absurd results.

    While the view supported by Ian Binnie’s opinion and Moldaver J.’s dissent focus on the absurdity of going to the high court just one day after rejoining the Barreau du Québec, a different absurdity was pointed out by Professors Michael Plaxton and Carissima Mathen , in an article cited by the majority, a point raised by the Attorney General of Québed in oral argument:

    One possible question raised by Binnie’s analysis is whether, on his interpretation of the Act, it would be open to the Prime Minister to appoint someone who had, to modify his example, practiced from 1970 to 1985 and then pursued an altogether different line of work. If section 5 only imposes a “10 years of practice” requirement, then it would not exclude such a person.

    The majority was also influenced by the fact that the statute clearly excludes appointing Federal Court judges to sit as ad hoc members of the Supreme Court when it hears Québec cases — the majority’s interpretation therefore reconciles two different but similar provisions, rather than leaving them at odds.

    What is striking about the majority’s judgment is precisely the fact that it seeks to give the statute coherent meaning, rather than driving to a given result.

  2. The absurdity of appointing someone with dated experience is less than the absurdity of requiring a one day appointment as a means of ensuring legitimacy. There is no relationship between the requirement and the purpose it is ostensibly designed to serve. Whether dated experience would qualify was not assessed by the court either.

    The suggestion that the desire to avoid civil law majorities expressed the ad hoc rules should be carried over into an interpretation that it is only current membership at the time of appointment (or in the case of lawyers, even uninterrupted ten years membership) that ensures that the representatives will be seen as legitimate is laughable.

    I want legitimacy in my judges. That they took a sabbatical does not scare me.

    And the constitutional argument is suspect also. If an intermediary court were to be established between the superior and court appeal in Quebec, would it require unanimity of all governments to allow judges of that court to be appointed? What possible purpose could that serve? Surely there are aspects of the criteria that do not require higher protection than most of the constitution itself.

  3. The Supreme Court’s decision does not say “it is only current membership at the time of appointment” that matters: it imports the 10-year membership requirement from the general eligibility rules into the particular rules for the three seats for Québec, but adds that the 10-year membership must be current, unless the appointee is a Québec Superior Court judge. As for the constitutional reasons provided, they only relate to the Supreme Court of Canada itself.

  4. See comment above: “What is striking about the majority’s judgment is precisely the fact that it seeks to give the statute coherent meaning, rather than driving to a given result.”

    That’s rich. It is one of the most tendentious, result-oriented set of reasons ever to come from the SCC. Where did they find the “Quebec values” stuff? They ignored the record, which showed that the Federal Courts system has to have judges expert in the civil law. They ignored the Federal Courts Act, which requires that a certain complement of judges come from Quebec, the same provision the SCC has. If judges on the FCA, for example, are suffused in “Quebec values” and thus eligible on that Court because of that provision, why are they disqualified from appointment to the SCC with the same provision. And where do they reply to Moldaver J.? He replies to them.

    All these questions were ignored.

  5. Schreuer in “Unjustified Enrichment in International Law” (22 Am. J. Comp. L. 281 (1974)) may offer a solution by way thinking analogically:

    “In many cases this method of balancing the economic interests of ‘litigants will produce useful and satisfactory results. However, it must be borne in mind that, with international law in its present state of development, restitution for unjustified enrichment can be considered hardly more than a decision-technique to be applied once the basic policy decisions have been made, and not a normative principle or general rule from which specific “correct” decisions can be logically derived. Most of the task of specifying its precise range of application by determining the types of situation in which restitution is to take place, is yet awaiting international practice. Only after these essential details have been elaborated and clarified, will it be possible to regard it as a coherent precept capable of guiding an international decision-maker.”