Supreme Court’s Nadon ruling flawed
Wrong decision exposes problems with court’s appointment process
Reacting to last Friday’s 6-1 decision by the Supreme Court ruling Judge Marc Nadon in eligible to join them, the Harper government claimed to be “genuinely surprised” at the result. It shouldn’t have been—not because the Court was right, but because this is just the sort of flaky decision the court is capable of.
Strictly speaking, the court was not asked to rule on Judge Nadon’s appointment, per se, but rather on the broader question of eligibility it raised. Is it sufficient, that is, for a judge to have been a member of the bar in the past, as in Judge Nadon’s case, or must he be one at the time of his appointment?
Section 5 of the Supreme Court Act would seem quite straightforward on this point. “Any person,” it reads, “may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least 10 years standing at the bar of a province.” Is or has been. Seems clear enough, right?
But then Section 6 adds a wrinkle to this general eligibility criterion. “At least three of the judges,” it stipulates, “shall be appointed 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.” Again, clear enough: at least three judges must be from Quebec.
The purpose is equally clear: to ensure the court has a certain number of judges with knowledge of the province’s distinctive civil law system. Or rather, that was what it was about, until the court’s majority started in on it. In those two words in Sec. 6, “from among,” the majority found an exception to the general eligibility rule in Sec. 5: While in every other province both current and former judges or advocates are eligible, in Quebec they must be active currently.
A section reserving three of the judges for Quebec was thus converted to the altogether different purpose of excluding a whole category of jurists from Quebec. Of course, it’s possible to read “from among the advocates of that province” to mean “from among the current advocates.” But if that was Parliament’s intent, you’d think it would have said so, not hidden it in the text for six future judges to discover.
It’s especially implausible when the passage is seen in context, reading Sec. 5 and Sec. 6 together. Sec. 5, after all, speaks of “any person,” not “any person outside Quebec.” It says “a province,” without specification: not “a province, other than Quebec.” Indeed, as Judge Michael Moldaver notes in his dissent, the principle of “currency,” applied in isolation, leads to an absurdity: to be appointed as a judge from Quebec, it would be enough to have practised law in the province for a single day. That’s obviously not on: the majority agrees the 10-year minimum should apply. And where does it get that idea? From Sec. 5 — the same section that allows “has beens” on the Court. “With respect,” Judge Moldaver writes, “this amounts to cherry-picking. Choosing from Sec. 5 only those aspects of it that are convenient — and jettisoning those that are not — is a principle of statutory interpretation heretofore unknown.”
Unsupported either by statute or logic, the majority’s interpretation cannot even appeal to the legislative record. While the principle of reserving a number of the judges to Quebec was part of the original legislative bargain that created the court, and while the majority correctly quotes a raft of sources on how critical this was, not only to its proper functioning but to its perceived legitimacy in the province, it provides no similar citations in support of the claim that appointments to the court from Quebec are and always have been restricted to current members of the bar or bench, or were ever intended to be. It doesn’t because it can’t: as Judge Moldaver notes, “there is nothing in the historical debates that suggests any such thing.”
In other words, the court made it up, as it so often does. To compound the offence, it then forbade the federal government from passing legislation clarifying that both current or former bar members were eligible, on the grounds this would amount to amending the court’s composition, as entrenched in the Constitution — “amending,” that is, its own freshly minted interpretation of it. I’m not ordinarily one to cry “judicial activism,” but this surely fits the description.
But, as I say, what else did the Harper government expect? It knew the appointment would be controversial, and that Judge Nadon’s credentials would be challenged: that’s why it commissioned opinions from former Supreme Court judges Ian Binnie and Louise Charron, as well as the constitutional scholar Peter Hogg, all of whom vouched for his eligibility. In which case, why do it? It would be one thing if it was some world-beating legal superstar, but for Judge Nadon — a semi-retired maritime law specialist? The willingness of the prime minister to risk such a debacle, for such an undistinguished choice, is another mark against his judgment. That his government refuses to rule out reappointing Judge Nadon — perhaps after sitting for a day on the Quebec Superior Court — is sheer lunacy.
Judge Nadon should not have been put in this position. The court should not have been put in this position. The country should not have been put in this position. If ever there were an argument for a more robust process of legislative review of such appointments, this is it. As with other recent controversies — the Senate scandals come to mind — this isn’t just a matter of Stephen Harper’s judgment, but of a system that trusts so much to one person’s discretion.