Fallout from the Nadon decision

Attacks by the prime minister and minister of justice on the integrity of the chief justice drew condemnation from the legal community, write Paul Daly and Carissima Mathen.

The challenge to Prime Minister Stephen Harper’s nomination of Marc Nadon to the Supreme Court of Canada began as a question about a rarely-discussed statute, became a momentous question of legal principle and is now a constitutional conflagration of the first order.

Section 5 of the Supreme Court Act sets out the basic criteria for appointment: only lawyers of at least 10 years’ standing are eligible. Section 6 reserves three seats for jurists from Quebec, learned in the civil law tradition.

In determining that only current members of the Quebec bar, Superior Court or Court of Appeal qualify, the Supreme Court turned its gaze to “the historic bargain that gave birth to the Court in 1875.” A need to preserve Quebec’s distinct civil law tradition — and the confidence of Quebecers in the court — underpinned the policy choice to restrict the pool of eligible candidates. Nadon, a distinguished member of the Federal Court of Appeal, was thus ineligible.

Shortly after the federal government referred the matter to the court, Parliament passed declaratory legislation which aimed to retrospectively validate Nadon’s appointment. Yet the Constitution protects the “composition of the Supreme Court” from unilateral alteration by the federal authorities.

Facing this issue, the court plunged into deep waters. Leading commentators had suggested that the Supreme Court has no constitutional status — that it could be altered, or even abolished, by Parliament acting alone.

Perhaps unsurprisingly, the court balked at this suggestion, concluding that its “essential features” cannot be changed without substantial provincial consent. Moreover, any modifications to its “eligibility requirements” require the unanimous agreement of Parliament and the provinces. The Quebec seats must be filled by current Quebec judges or lawyers, until Que-

Most serious of all is the decision’s political fallout, almost entirely created by the federal executive.

bec and the other provinces agree otherwise. There is some irony in the fact that Quebec’s interests were robustly protected by an institution and document whose legitimacy many Quebecers decry or deny.

The court’s momentous decision is not without consequences. The prime minister has said judges from Quebec are now in a second class, and that talented jurists will be dissuaded from joining the federal court. This is not only completely speculative, it casts such jurists in an unappealing light. If the prime minister’s concerns about recruitment prove to be justified, perhaps he will push for much-needed reform of the federal courts — for example, permitting judges to remain in their home provinces.

More serious are the potential constraints on reforms which, some argue, will help the court better reflect the changing face of Canadian society. Institutionalizing bilingualism, gender equality and guaranteed representation for ethnic minorities may now require constitutional negotiations.

Most serious of all is the decision’s political fallout, almost entirely created by the federal executive. First by anonymous leaks to the press and subsequently in statements to the House of Commons, the prime minister and the minister of justice have suggested that the Chief Justice of Canada acted improperly in flagging a potential issue with Section 6. These attacks on the integrity of the chief justice have provoked waves of condemnation from the Canadian legal community. If anything positive can be drawn from this sordid affair, it lies in the possibility that the judicial appointment process will be thoroughly overhauled to avoid a repeat of l’affaire Nadon.

In collaboration with the Public Law Group at the University of Ottawa, we have assembled some of Canada’s leading lawyers and commentators to unpack the decision and its aftermath in a free, interactive, day-long symposium on May 28.

All are welcome to join this vitally important constitutional discussion.