Alright, this is a bit of a cheat. But it occurs to me that I haven’t posted a publication here in ages! Just the nature of the beast: I have three pieces in the works. One is a book review of Louis Seidman’s On Constitutional Disobedience coming out in Osgoode Hall Law Journal. The second is a chapter in a forthcoming collection on constitutional amendment, edited by Emmett MacFarlane.
The third is a new paper provisionally titled “The Shadow of Absurdity and the Call of Right Answers: Reflections on the Supreme Court Act Reference.” I’ve completed a draft which I’ll be presenting tomorrow at Osgoode’s Constitutional Cases Conference in Toronto (one of my fave conferences of the year). It needs a bit more cooking time, so I won’t be posting a publicly accessible version for another month or two. In the meantime, here is the current introduction. Of course, this is subject to change during my (generally interminable) drafting process.
“It has been over a year since the Reference re the Supreme Court Act. In a 6-1 opinion, the Supreme Court of Canada advised that the appointment of Federal Court of Appeal Justice Marc Nadon was void ab initio. Many viewed the Prime Minister’s choice of Justice Nadon as curious, but under ordinary circumstances it would have occasioned at most a few raised eyebrows and media intimations of “court-packing”. But the circumstances in 2013-2014 were far from ordinary – indeed, they created one of the most extraordinary spectacles ever to engulf the Court.
The Nadon saga was a “perfect storm” of law and politics. It had numerous constitutive elements. One such element was the lack of sustained consideration in the Constitution Act, 1867 of the role and composition of the Supreme Court. Another was the dearth of prior interpretation of sections 5 and 6 of the Supreme Court Act. Other elements included the largely unfettered Executive discretion over the appointment of justices, affected only marginally by greater calls for transparency and legislative input; and the current government’s suspicion of the Court both generally and with particular respect to its constitutional review function.
In this paper, with the benefit of a year’s reflection, I discuss the lessons that be drawn from the Reference. The Reference highlights a problem that arises when the Court must adjudicate a matter that, in a special sense, seems to challenge its ability to remain impartial. In the Reference, the Court was asked to pronounce upon one of its own members. One might describe such a problem, loosely, as one of reflexivity. It is also present, though to a much lesser degree, where the Court must decide issues that implicate it as an institution or constitutional actor. The Reference posed such an issue, in that the Court had to pronounce on the meaning of Part V of the Constitution Act, 1867.
The Reference occasioned heated debate. Such discourse is common result any high-profile Court ruling, but both during and after the Reference it rose to a level, and involved actors, that is worthy of comment. The Supreme Court’s interpretation of the “Quebec rule” has been characterized as absurd, as avoiding obvious conundrums, and as denigrating the Federal Court of Canada. In some quarters, the Court’s interpretation of Part V of the Constitution Act, 1867 has been received with equal skepticism. My take on the Quebec rule is well known. I have articulated it in an article co-authored with Professor Michael Plaxton, in numerous interviews, and in presentations before committees of the Canadian House of Commons and Senate. In my opinion, the Court was right to conclude that section 6 presented a statutory bar to appointing a Federal Court judge. I am less persuaded by the Court’s interpretation of Part V, for reasons I shall briefly discuss in part IV. The Court’s interpretation follows a general pattern of accommodating to a high degree the unwritten constitutional principle of federalism. Nonetheless, it will prove to be a very difficult barrier to future reform.
In this paper, I defend the Quebec rule against a number of criticisms. My goal, as well, is to explore how the reaction to the Court’s opinion correlates with the degree to which it matters that the Court reaches a decision that people can accept as correct, that it has provided the “right answer”. In so doing, I consider the functions served by the Court’s adjudication of highly divisive issues, including the implications of a divided decision. And I consider whether an expectation of right answers is legitimately heightened when the Court exercises its reference jurisdiction.”