Changing the rules of the game, but pretending otherwise

Changing the rules of the game, but pretending otherwise
Sometimes after dinner, my two-year old daughter asks for a snack. We will offer her a choice: a cookie or applesauce. One night she may choose the cookie, and the next night she may choose the applesauce. But, you can bet that no matter which one she chooses, once she is done, she asks for the other snack too. I try to tell her that this is asking for too much, but, more often than not, she wins.

Last week, federal Justice Minister Peter MacKay announced the debate about the government’s recent appointment to the Supreme Court of Canada would be addressed with two actions: a reference asking the Supreme Court to resolve the issue, and the introduction of declaratory provisions in the legislation governing the composition of Canada’s highest court.

While the reference is appropriate and necessary, introducing the declaratory provisions simultaneously raises concerns. Is the government really asking the Supreme Court for its opinion, or is it telling the Supreme Court what its opinion must be?

Justice Nadon’s appointment sparks controversy

The recent appointment by the Harper government of Justice Marc Nadon to the Supreme Court has raised questions about the appointment’s legality. Nadon, a judge of the Federal Court of Appeal, was appointed as one of three jurists that the law requires comes from Quebec.

The debate about his appointment revolves around whether a provision in the Supreme Court Act — the legislation that defines the composition of the Supreme Court — requires that Quebec appointees either be a judge of the Quebec Superior Court or Quebec Court of Appeal, or a current member of the Quebec bar who has been practising for at least 10 years.

While Nadon was a member of the Quebec Bar earlier in his career, once he became a judge, he was no longer able to maintain this membership. As a judge of the Federal Court of Appeal, Nadon was not a judge of either of the Quebec Courts referenced in the Supreme Court Act.

The Harper government obtained a legal opinion by former Supreme Court of Canada justice Ian Binnie. His opinion was that Nadon’s appointment was legal because he had been a member of the Quebec bar for 10 years in the past — current membership was not required.

However, some disagreed. One of those individuals was Toronto lawyer Rocco Galati, who initiated a challenge to Nadon’s appointment. The Quebec government recently announced it was joining this challenge.

The government reacts

Ongoing doubt about the legality of a particular individual’s appointment to Canada’s highest court is not a good thing for our justice system. Nadon announced he would step aside until the challenge to his appointment was resolved. Something had to be done to determine whether Nadon could take his seat.

It could take months, or more, for the Galati challenge to make its way through the courts, including all avenues of appeal. Certainly, had this challenge made its way through the system, the Harper government would argue that the appointment of Nadon was always authorized.

But, the government decided it would not wait this process out. Last week, MacKay also announced he would initiate a reference to the Supreme Court of Canada. This is a procedure not often used, and allows the government to go directly to the highest court to seek an opinion — in this case, whether a judge of the Federal Court of Appeal may be appointed to the Supreme Court as part of its Quebec complement.

The move, which was anticipated by various legal commentators, seems like a sensible way to get a speedy resolution to this controversy.

However, the government did not stop there. Interestingly, MacKay also announced the government would introduce declaratory provisions into the Supreme Court Act, “clarifying — without making changes to the existing law — that individuals with at least 10 years with [the] Quebec bar at any time during their career, are eligible to sit on the Supreme Court of Canada as a Quebec member.”

Government amends the legislation

If the government is so certain the law as currently written permits this appointment, why would any “clarification” be necessary?

Maybe there is a hint in a case released by the Supreme Court of Canada just a month ago, Régie des rentes du Québec v. Canada Bread Co. Ltd. In this case, the question was what weight should be given to declaratory legislation when a court is required to interpret a statute? Sometimes, a statute is capable of more than one meaning. Parties will argue about which meaning should be adopted, and the courts will decide. Sometimes, though, the government has a specific meaning in mind and does not want to leave it to the courts. In those instances, the government can pass declaratory legislation.

In Canada Bread, the Supreme Court dealt with the level of respect courts must accord to declaratory legislation. The SCC was clear: When a court is faced with declaratory legislation, it is “obligated” to interpret the overall statute in the manner dictated by the legislature. In other words, when Parliament is that clear about its intent, the courts must defer.

A ‘clarification’ — really?

Here, the government had the option of sending a clean reference to the Supreme Court that would have asked for an interpretation of the Supreme Court Act that was in force at the time Nadon was appointed. Or, the government could have admitted that perhaps the legislation was less than clear, and it was putting the new declaratory provisions before the Supreme Court for confirmation that it would permit Nadon’s appointment.

However, the government did neither of these things. Rather, it is adding some words to the Supreme Court Act and acting like they mean nothing. In effect, it is changing the rules part way through the game and pretending the new rules were always in force. According to Canada Bread, this “clarification” must now be given prominence in the interpretation the Supreme Court will provide when it ultimately decides the reference.

I would expect this was precisely the government’s intention. But, then, is the government really talking out of both sides of its mouth? On the one hand, asking the Supreme Court for its opinion, but, on the other hand, introducing new legislative language to tell the Supreme Court what its opinion must be?

Having its cookie . . .

I suspect the government has adamantly affirmed it is “not changing the law” because it knows to do that may create a constitutional quagmire. If the new declaratory provisions have an effect and they change the rules about who can be appointed to the Supreme Court as a judge from Quebec, there is a serious argument they cannot be adopted without unanimous consent from all the provinces. That is because changes to “the composition of the Supreme Court of Canada” arguably require a constitutional amendment.

Regardless of where one lands on this issue, I doubt unilateral federal changes to the rules governing who can sit on the Supreme Court will survive without a fight

In the end, my guess is the federal government introduced the declaratory provisions in the hopes of tipping the balance in its favour for its reference to the Supreme Court about Nadon’s appointment. However, its attempt at “clarity” may prove to have muddied the constitutional waters.

If the federal government wants the declaratory provisions to mean something for the purpose of determining the legality of Nadon’s appointment — but to mean nothing for the purpose of triggering the need for a constitutional amendment — they may be asking for too much. You can’t have your cookie and applesauce, too.

Ryan Teschner is a member of Heenan Blaikie’s Litigation group in Toronto with a litigation and advocacy practice that emphasizes administrative, regulatory and constitutional law matters, including appellate litigation and judicial review. This article first appeared on the firm’s Standardless Review blog.

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