In the federal omnibus budget released last fall Marc Nadon was appointed to the Supreme Court of Canada. Today, we learned from the Supreme Court of Canada (SCC) that, due to the Canadian Constitution, that appointment will not stand. What could the one have to do with the other I hear you ask? Let’s explore!
The Constitution of Canada (which is actually not one document, but several, but we will just use it as a group noun)* is often referred to as the “highest law” in the land. As such, it has quite a few roles. The one that matters for today is the role it plays a form of “umbrella” legislation that governs all governmental actors and actions in Canada. What does that mean? Well, in a nutshell, everything that any government in Canada does (be it federal, provincial or municipal government), must not contradict what the Constitution says. One of the actions a government can take is passing laws, such as a budget. As a result, everything in that budget has to be in line with everything in the Constitution.
According to the SCC the appointment of Marc Nadon, which was in that budget, contradicted the Constitution. How?
Let’s start with looking at the make-up of the 9-judge court. Due to the nature of the creation of the country, SCC position have always been divided in such a way as to address the concern for representation from all regions and legal systems: 3 from Québec, 3 from Ontario, 2 from the West, 1 from the East. The empty position, in this case, was one of the seats from Québec. As a result, the appointment process had to follow the rules from appointments from Québec.
The Supreme Court Act (SCA, which is a federal law) tells us what that appointment process is. Specifically, sections 5 and 6 state that Québec appointees must either come from the Québec Superior Court, the Québec Court of Appeal, or must be a current member of the Québec bar (and must have been so for at least 10 years).
Here’s where the problems start. At the time of his appointment, Marc Nadon was no longer a member the Québec bar: he used to be, but he’s not anymore. Similarly, he was not a judge from the Québec Superior Court, or the Québec Court of Appeal (he was on the Federal Court of Appeal – which is completely different).
To try to address Naton’s apparent ineligibility, the budget included an amendment to the SCA that would allow “former” members of the Québec bar to be appointed .
So why did that not suffice? And what does that have to do with the Constitution?
Well, by putting all of this in the budget, the federal government was acting on its own. In other words, it was acting “unilaterally”. Often, when passing laws, this is not a problem. However, it was here, as the essential make-up of the SCC is protected by the Constitution Act 1982 (CA 1982). Specifically, section 41(d) of CA 1982 requires that any changes to the composition of the SCC must receive unanimous consent from both the Parliament of Canada and the legislatures of all of the provinces. In this case, the parliament was on board, but none of the provinces had given their official approval.
Oh that Constitution… it’s everywhere!
As an aside, the story may not yet be complete. At paragraph 71 of its decision, the SCC said:
“We note in passing that the reference questions do not ask whether a judge of the Federal Court or Federal Court of Appeal who was a former advocate of at least 10 years standing at the Québec bar could rejoin the Québec bar for a day in order to be eligible for appointment to this Court under Sec. 6. We therefore do not decide this issue.”
Anyone want to take bets on happens next?
* For example: the Constitution Act 1867, the Constitution Act 1982, and a few others.