On Friday, March 21, the Supreme Court of Canada issued a stunning opinion in the six-month saga of stalled appointee Marc Nadon. Nadon, a Quebecer who served on the Federal Court of Appeal, was the Prime Minister’s choice to succeed retired Justice Morris Fish. This was the first time that a judge who was neither serving on a Quebec superior or appellate court, nor a current member of the Quebec bar, had been appointed under section 6 of the Supreme Court Act (which reserves three seats for candidates from that province). On the day he was sworn in (October 7), Nadon’s candidacy was challenged by Toronto lawyer Rocco Galati in federal court. In response, the federal government initiated a reference to the Supreme Court of Canada. The government sought clarification of the current meaning of sections 5 and 6 of the Supreme Court Act. It also sought confirmation that its retroactive amendment of the Act (achieved by appending two clauses to the Budget Implementation Bill in December, 2013) was permissible.
By a 6-1 vote (Justice Moldaver dissenting), the Supreme Court ruled that the Supreme Court Act requires that appointees under section 6 be either judges from Quebec courts or current members of its bar. That was staggering enough. But the Court went on to hold that the government’s attempted fix of the situation was prohibited under the Constitution, because of the Court’s gradual evolution to a central player in our constitutional order, and the inclusion of its “composition” in the unanimity formula prescribed by section 41(d) of the Constitution Act 1982.
The Court largely accepted the interpretative argument offered by Michael Plaxton and me in an article published in Constitutional Forum. In paragraphs 46-60 the Court basically tracks our argument, citing to us in para 58.
Needless to say, Friday was a bit of a whirl. Below, some links to preserve the day:
Reference re Supreme Court Act, ss 5 and 6
My op-ed in the Ottawa Citizen
The article that started it all