The Power of Perspectives

The Canadian Bar Association

After Nadon: Now what?

June 3 2014 3 June 2014

The Supreme Court of Canada’s surprising decision in the Nadon case didn’t simply decide the fate of one supernumerary judge from the Federal Court of Appeal: it also clarified the top court’s specific role in the Constitution. And according to academics who gathered last week in Ottawa to parse the decision, the Court’s answer will reverberate for years to come.

The federal government opened up a can of worms in the Nadon Reference when it asked the Court whether Parliament could enact legislation to change sections five and six of the Supreme Court Act which govern general eligibility requirements.

The problem, as Prof. Paul Daly of the University of Montreal points out, was that Part V of the Constitution Act, 1982 protects the Supreme Court of Canada from changes to its composition. And the federal government’s move arguably raised questions of whether changing the eligibility criteria fell within federal parliamentary authority or whether a constitutional amendment was required.

The Attorney-General had argued that Parliament has the power under the Constitution Act, 1867 to unilaterally amend the eligibility criteria under sections 5 and 6.  The Court begged to differ. The Constitution Act, 1982, it said, reflects the understanding that the Court’s essential features – its independence and its jurisdiction as the final general court of appeal, including in matters of constitutional interpretation – are protected under the Constitution. Parliament is responsible for maintaining  the essence of what enables the Court to perform its role and can enact amendments for the continued maintenance of the Court, but it cannot unilaterally modify its composition or other essential features.

Changes to the Supreme Court and its composition are subject to constitutional amending procedures, the Court held. This means:

  • Any change to its composition can only be made under the procedure in s. 41(d) which requires the unanimous consent of Parliament and the provinces; 
  • Changes to eligibility requirements are an amendment to the Constitution with respect to the Court’s composition and triggers the application of Part V;
  • Changes to its other essential features only can be made under s. 42(1)(d) which requires the consent of at least seven provinces representing half the population of all provinces.

Unfortunately, as Prof. Jamie Cameron of Osgoode Hall Law School observed, this effectively puts reform of the court appointment process in the “constitutional deep freeze.”

It appears, she added, that sections 5 and 6 cannot be changed by statutory amendment because the issue of the court appointment process – which is badly in need of reform – is subject to the Constitution and the unanimous amending formula. This could have implications for proposals, for example, to create access for historically disadvantaged groups.

Other observations made during the symposium:

On politics and the Supreme Court:

Prof. Adam Dodek of University of Ottawa, said the Nadon case drew the top court into the political realm in a way they’ve never been in history: “You can criticize the judgment, but if you’re the government, you do not attack the integrity of a Supreme Court of Canada justice because you are attacking the institution of the Court. That is dangerous,” he said.

What motivated the PMO to act as it did?

Harper wants to get out the vote for the next election by saying judges are blocking the government from getting the judges it wants, suggests Sean Fine of The Globe and Mail. “That’s what politics is like today,” he told the conference. “Government is losing things that are very important to them and frustration is spilling out.” (Despite recent political setbacks, the government in fact wins more cases than it loses at the Supreme Court, Dodek pointed out: Harper has won 75 to 80 per cent of constitutional cases brought to the top court.)

How has the Supreme Court come out of the Nadon affair?

Smelling like roses, says Prof. David Schneiderman of the University of Toronto. “Harper comes out looking paranoid and mean. People like the Court; journalists like the Court. They’re much nicer than politicians; they’re funnier and they’re smarter.”

What about Justice Marc Nadon?

Everybody agreed he doesn’t deserve this role in history. Described as collegial, moderate and knowledgeable by Gilles Letourneau, formerly of the Federal Court of Appeal, “he did not in any way deserve the treatment he’s been given so far.”






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