Another day and another defeat for the Government of Canada. This time, a six-to-one majority of the Court has ruled that the Prime Minister’s attempt to appoint Mr. Justice Marc Nadon, a supernumerary justice of the Federal Court of Appeal who, prior to his appointment to the Federal Court, had been an advocate of the Province of Quebec for more than 10 years, was not constitutional and his swearing in was void. Moreover, the Government’s attempt to amend the Supreme Court Act was found to be unconstitutional.
The majority noted that, in addition to having to comply with the general requirement set out by s. 5 of the Act, namely, that the appointee be or have been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province, appointments for its “Quebec” members had to also meet the prerequisite conditions set down by s. 6. Section 6 of the Act stipulates that at least three of its members “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”. The majority ruled that, in order to comply with s. 6’s conditions, the proposed appointee had to meet the requirements at the time of his or her appointment.
The majority stated that the reasons for coming to this conclusion were four-fold (para. 18):
We come to this conclusion for four main reasons. First, the plain meaning of s. 6 has remained consistent since the original version of that provision was enacted in 1875, and it has always excluded former advocates. Second, this interpretation gives effect to important differences in the wording of ss. 5 and 6. Third, this interpretation of s. 6 advances its dual purpose of ensuring that the Court has civil law expertise and that Quebec’s legal traditions and social values are represented on the Court and that Quebec’s confidence in the Court be maintained. Finally, this interpretation is consistent with the broader scheme of the Supreme Court Act for the appointment of ad hoc judges.
The Government’s attempt to introduce an amendment to the Act through its omnibus legislation (Economic Action Plan 2013 Act, No. 2, cl. 472), namely, a new s. 6.1 of the Act was also found to be unconstitutional. Section 6.1 would have amended the requirement outlined by s. 6 of the Act. It provided:
6.1 For greater certainty, for the purpose of section 6, a judge is from among the advocates of the Province of Quebec if, at any time, they were an advocate of at least 10 years standing at the bar of that Province.
In order to do so, Parliament would have to proceed through the amending formula of the Constitution Act, 1982 and engage the unanimous support of the legislature of each province (paras. 104 and 105):
[104] Changes to the composition of the Supreme Court must comply with s. 41(d) of the Constitution Act, 1982. Sections 4(1), 5 and 6 of the Supreme Court Act codify the composition of and eligibility requirements for appointment to the Supreme Court of Canada as they existed in 1982. Of particular relevance is s. 6, which reflects the Court’s bijural character and represents the key to the historic bargain that created the Court in the first place. As we discussed above, the guarantee that one third of the Court’s judges would be chosen from Quebec ensured that civil law expertise and that Quebec’s legal traditions would be represented on the Court and that the confidence of Quebec in the Court would be enhanced.
[105] Both the general eligibility requirements for appointment and the specific eligibility requirements for appointment from Quebec are aspects of the composition of the Court. It follows that any substantive change in relation to those eligibility requirements is an amendment to the Constitution in relation to the composition of
the Supreme Court of Canada and triggers the application of Part V of the Constitution Act, 1982. Any change to the eligibility requirements for appointment to the three Quebec positions on the Court codified in s. 6 therefore requires the unanimous consent of Parliament and the 10 provinces.
This case is one in an increasingly long line of decisions where the tension between the Court and the Federal government over constitutional requirements is palpable. In a future post, I will review some of these cases and discuss the lengths to which the Court appears to be willing to go to defend the Constitution.
Until then, I remain,
Constitutionally yours
Arthur Grant
Constitutionally Canadian 