Next stop: Senate reference

The Supreme Court of Canada has deemed Justice Marc Nadon inadmissible to sit as one of Quebec’s three Justices on the Supreme Court of Canada, staking a firm claim to their constitutional role in Canada.

The majority of the court, with Justice Michael Moldaver dissenting and Justice Marshall Rothstein sitting the case out, found that the Supreme Court of Canada Act expressly forbids Nadon’s appointment.

The court sided with the arguments set out by the Government of Quebec in a narrow reading of the Act. It found the language in section 6 — that Quebec appointments to the Supreme Court of Canada must be “from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province,” or that they must be an “advocate of at least 10 years standing at the bar of that Province” — effectively limits the ability of Federal Court judges to sit on the bench on behalf of the province.

Nadon was not a member of the Quebec bar at the time of his appointment (though he is a former member of more than 10 years’ standing).

The majority reasoned that this reading of section 6 has the “dual purpose of ensuring that the Court has civil law expertise and that Quebec’s legal traditions and social values are represented on the Court and that Quebec’s confidence in the Court be maintained.”

The ruling surprised more than a few. “They are rejecting an appointment by the prime minister to their own institution,” says Emmett Macfarlane, an assistant professor of political science at the University of Waterloo.  “ I think there was reason to suspect that they may find a way to get out of this without absolutely slamming the door in the government’s face,” he told National.

In his terse dissent of the majority opinion, Moldaver wrote that “to suggest that Quebec wanted to render ineligible former advocates of at least 10 years standing at the Quebec bar is to rewrite history.”

Macfarlane says that Moldaver’s dissent is “notable.”

Paul Daly, an assistant professor of law at the University of Montreal, says the “arguments of absurdity” regarding the seeming arbitrariness of barring federal judges from the top court did not cut it. He says that recognizing the narrow eligibility question is fundamental to Quebec’s place on the bench. “It is a hugely significant day for Canada, and for the protection of Quebec’s distinct character by the institutions of the Canadian Constitution,” says Daly.

The second question — whether Parliament can unilaterally pass declaratory legislation to clarify or amend the language of eligibility in the Act — holds even broader implications, as it stands to codify and protect the Court’s inherent constitutionality.

The Government of Canada maintained that it is well within its power to enhance the language of its own legislation.

“We disagree,” the Court wrote. “Parliament cannot unilaterally change the composition of the Supreme Court of Canada. Essential features of the Court are constitutionally protected under Part V of the Constitution Act, 1982.”

It maintained that Ottawa’s efforts to clarify Section 6.1 went against the spirit of the Act. It said if Parliament wants to clarify the eligibility requirements, it can do so under the amendment process laid out in Section 41 of the Constitution Act — and it can get consent from all the provinces. However, it did find that the effort to clarify Section 5.1 of the Act did not need to go through such a process, as it was already self-evident and therefore moot.

That logic bodes poorly for the federal government’s arguments in the Senate reference question, where Ottawa is hoping it will find that many essential features of the upper chamber can be changed without constitutional amendment.

Assuming the Court sticks to the same logic, says Macfarlane, “I don’t see the government winning on any of the points in the Senate.”

According to Daly, the decision offers no crystal ball for the Senate reference, but it definitely suggests that the high court won’t be overly generous on the government’s ability to make unilateral reform. “They don’t go all-out,” he says. “I think they’re waiting for the Senate reference to give the definitive overview on how to interpret part 5 of the 1982 Constitution. So it’s still open, I think.”

The reasoning in the majority’s decision is that, through the evolution of Canadian federalism, the Supreme Court shifted away from being an appendage of Parliament and the provincial courts, and toward a fundamentally separate body aimed at the creation of jurisprudence.

“As a result of these developments, the Supreme Court emerged as a constitutionally essential institution engaging both federal and provincial interests. Increasingly, those concerned with constitutional reform accepted that future reforms would have to recognize the Supreme Court’s position within the architecture of the Constitution,” they wrote.

“It’s the court’s place in the constitution that they’re defining, here,” says Macfarlane.

The Attorney General made the case that, because of the failures to adopt both the Meech Lake and Charlottetown Accords, the constitutionality of the Court cannot be formally recognized and that the references to the Supreme Court within the Constitution are merely, as the Supreme Court decision notes,  “’empty vessels’ to be filled only when the Court becomes expressly entrenched in the text of the Constitution.”

The court flatly rejected the argument. “The Supreme Court of Canada is a foundational premise of the Constitution,” the majority wrote.

With the Court’s decision on Friday, Nadon remains a supernumerary judge of the Federal Court of Appeal.