SCC rules against Nadon appointment

The Supreme Court of Canada today, in a historic decision, rejected the appointment of Justice Marc Nadon to the Supreme Court of Canada bench.

The sweeping 6-1 ruling (with Justice Michael Moldaver from Ontario dissenting) reinforces literal requirements under the Supreme Court Act for the three sitting judges reserved for Quebec

“A judge of the Federal Court or Federal Court of Appeal is ineligible for appointment to the Supreme Court of Canada under s. 6 of the Act. … persons appointed to the three Quebec seats under s. 6 must be current members of the Barreau du Québec, the Quebec Court of Appeal or the Superior Court of Quebec,” said the decision in Reference re Supreme Court Act, ss. 5 and 6.

Despite his decades of experience a Quebec litigator, Nadon, a semi-retired Federal Court of Canada judge, simply did not meet these requirements.

“By specifying that three judges shall be appointed ‘from among’ the judges and advocates (i.e. members) of the identified institutions, s. 6 impliedly excludes former members of those institutions and imposes a requirement of current membership.”

A loophole might allow Justice Nadon to resign his judgeship and return to the Quebec bar for a day in order to be eligible for appointment, but the court said it was not asked whether this would be allowed and “[w]e therefore do not decide this issue.” The government declined to say whether it would try that route.

The ruling is an embarrassment for the government, which appointed Nadon in October. Prior to Nadon’s appointment, the government got a legal opinion  from former SCC justice Ian Binnie, whose view was supported by both Louise Charron, another former SCC judge and and constitutional law expert Peter Hogg.

"We are genuinely surprised by today's decision," Harper spokesman Stephen Lecce said. "Prior to Justice Nadon's appointment, the Department of Justice received legal advice from a former Supreme Court justice, which was reviewed and supported by another former Supreme Court justice as well as a leading constitutional scholar.

"None of them saw any merit in the position taken by the court."

Nadon was named to the court on Oct. 3, 2013 to replace justice Morris Fish. He was sworn in on Oct. 7 but has never sat as a judge on the court. That same day, Toronto constitutional lawyer Rocco Galati launched his legal challenge. The separatist Quebec government also sent lawyers to argue against the appointment.

Allan Hutchinson, a professor at Osgoode Hall Law School, calls it a “brave decision”: “After all, these same judges swore in Nadon months ago, and now they’re saying it’s not a valid appointment. There’s something a little bizarre about that, when they say, ‘Yes, you’re in. Actually, now that we’ve thought about it, you’re out.’”

Hutchinson says the ruling makes clear that the composition of the Supreme Court is a constitutional matter, and the federal government can’t unilaterally alter those requirements, which it tried to do with by adding some clauses to "clarify" the act into last October's budget bill, Bill C-4.

“They’re not saying you can’t appoint Nadon. They’re saying you have to amend the Constitution appropriately — then you can appoint him. . . . It has to be done as a constitutional amendment requiring appropriate consent from the provinces.”

As the ruling states, “While Parliament has the authority to enact amendments necessary for the continued maintenance of the Court, it cannot unilaterally modify the composition or other essential features of the Court.

“Part V of the Constitution Act, 1982 expressly makes changes to the Supreme Court and to its composition subject to constitutional amending procedures.  Changes to the composition of the Court, including its abolition, can only be made under the procedure provided for in s. 41(d) and therefore require the unanimous consent of Parliament and the provincial legislatures.”

Adam Dodek, a professor at the University of Ottawa’s Faculty of Law, says the decision demonstrates the utter failure of the appointment process.

“The Minister of Justice identified on August 2013 that there was an ambiguity in the Supreme Court Act as to whether a Federal Court judge was eligible for appointment,” he says. “They should have brought the reference before appointing a judge from the Federal Court of Appeal. They should have clarified a law they knew to be unclear before proceeding with the appointment.”

The decision means the court will have to continue operating one judge short of its nine-member capacity for a while longer.

No matter who the next appointment will be, and there will be two from Quebec this year as Justice Louis LeBel is set to retire, this decision shows the current appointment process “is completely broken,” says Dodek.

“The government system of appointment, which is supposed to be about transparency and accountability for appointments, completely failed in both respects. And not only is the government to blame for that, but the other two parties are also to blame for that, because they participated in this. And an appointment process that leads to an appointment that, where as a result of that process, leads to a legal challenge that ultimately has to be determined by the Supreme Court shows that that appointment process is completely broken. It utterly failed, and that has nothing to do with Justice Nadon’s qualities or qualifications as a jurist.”

With files from Reuters.

Story completely updated 12:35 pm.
Update 2 pm.: Reaction from the government

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