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Digest of the Week — The Nadon Reference


Reference re Supreme Court Act, R.S.C. 1985 (Canada) |  (WestlawNext Canada)
2014 CarswellNat 640 |  (Westlaw Canada)
Supreme Court of Canada

Judges and courts | Appointment, removal, disqualification and discipline of judges and other court officers | Appointment | Constitutional jurisdiction to appoint

Supreme Court of Canada — Puisne judges from province of Québec — Pursuant to s. 5 of Supreme Court Act, "[a]ny person . . . who is or has been a judge of a superior court of any of the Provinces of Canada, or a barrister or advocate of a least ten years' standing at the bar of any of the said Provinces" — Section 6 of that Act reads "[t]hree at least of the judges of the court shall be appointed from among the judges of the Court of Queen's Bench, or of the Superior Court, or the barristers or advocates of the province of Québec" — Governor-in-Council appointed Justice of Federal Court of Appeal, formerly member of bar of Québec of 10 years' standing, to Québec vacancy on Supreme Court of Canada — Governor-in-Council then directed Reference to Supreme Court of Canada, asking "Can a person who was, at any time, an advocate of at least 10 years standing at the Barreau du Québec be appointed to the Supreme Court of Canada as a member of the Supreme Court from Québec pursuant to sections 5 and 6 of the Supreme Court Act?" — Question answered in negative — Act was product of constitutional compromise concerning essential character of Québec civil-law traditions — Given use of more restrictive language of s. 6 of Act, Parliament must have had more restrictive intent — Accordingly only active members of Québec bar or judges of superior courts of Québec are eligible for appointment pursuant to s. 6 of Act, and justices of Federal Court are not eligible for appointment from Québec.

Constitutional law | Amendment of Constitution of Canada

Required in order to alter qualifications for appointment of puisne judges of Supreme Court of Canada from province of Québec — Pursuant to s. 6 of Supreme Court Act, only active members of Québec bar or judges of superior courts of Québec are eligible for appointment as pusine judges of Supreme Court of Canada from Québec — Parliament purported to enact legislation which would expressly entitle former members of Québec bar or former judges of superior courts of Québec to be appointed — Governor-in-Council then directed Reference to Supreme Court of Canada, asking "Can Parliament enact legislation that requires that a person be or has previously been a barrister or advocate of at least 10 years standing at the bar of a province as a condition of appointment as a judge of the Supreme Court of Canada [from Québec]"? — Question answered in negative — In s. 101 of Constitution Act, 1867, Parliament was granted sweeping powers over "the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada", including appointment procedures — Enactment of Constitution Act, 1982 and particularly Part V thereof formally recognized and enshrined constitutional status of Supreme Court of Canada, abridging Parliament's s. 101 Constitution Act, 1867 power — In order to safeguard that status, any Act of Parliament unilaterally altering qualifications for appointment to court was ultra vires Parliament, as amendment to Constitution of Canada including consent of all provincial legislatures was required.

In 1875, Parliament first enacted the Supreme Court Act, and by that Act caused the creation of the Supreme Court of Canada. Pursuant to s. 4 of the Act, puisne justices of the court were to be appointed from among "persons who are, or have been, respectively, Judges of one of the said Superior Courts [in any of the Provinces], or who are Barristers or Advocates of at least ten years' standing at the Bar of one of the said Provinces . . . two of whom at least shall be taken from among the Judges of the Superior Court or Court of Queen's Bench, or the Barristers or Advocates of the Province of Québec".

In 1886, the Act was amended to permit, in s. 4(2), "[a]ny person . . . who is or has been a judge of a superior court of any of the Provinces of Canada, or a barrister or advocate of a least ten years' standing at the bar of any of the said Provinces", to be appointed as a puisne judge. Section 4(3) of the Act was at the same time amended to read "Two at least of the judges of the court shall be appointed from among the judges of the Court of Queen's Bench, or of the Superior Court, or the barristers or advocates of the province of Québec".

The language of the Act as amended in 1886 remained the same in respect of appointments, although as of 2013 the section numbering of what was in 1886 s. 4(2) was s. 5 of the Act, and what was in 1886 s. 4(3) was s. 6. In 1949, the Act was amended to increase the numbers of judges of the court, and inter alia the minimum number of judges from Québec was raised to three.

In 2013, a vacancy was created in the complement of Québec judges of the Supreme Court of Canada. The Governor-in-Council, with the advice and consent of Parliament, appointed the Hon. Marc Nadon, supernumerary Justice of Appeal sitting in the Federal Court of Appeal, to fill the vacancy. Mr. Justice Nadon was a former member of the Bar of Québec for over 10 years.

A senior member of the Bar of Ontario and the Crown in Right of the province of Québec objected to the appointment of Mr. Justice Nadon to the Supreme Court of Canada, alleging that the appointment did not satisfy the requirements for Québec judges contained in s. 6 of the Act. In response, Parliament purported to cause the Act to be amended, inter alia, including a new s. 6.1. That section would read "For greater certainty, for the purpose of s. 6, a judge is from among the advocates of the Province of Québec if, at any time, they were an advocate of at least 10 years standing at the bar of that Province".

The Governor-in-Council then directed a Reference to the Supreme Court of Canada, asking two questions. Question One read "Can a person who was, at any time, an advocate of at least 10 years standing at the Barreau du Québec be appointed to the Supreme Court of Canada as a member of the Supreme Court from Québec pursuant to sections 5 and 6 of the Supreme Court Act?" Question Two read "Can Parliament enact legislation that requires that a person be or has previously been a barrister or advocate of at least 10 years standing at the bar of a province as a condition of appointment as a judge of the Supreme Court of Canada or enact the annexed declaratory provisions as set out in clauses 471 and 472 of the Bill entitled Economic Action Plan 2013 Act, No. 2?" The above-referenced clauses contained, inter alia, the proposed s. 6.1 of the Act.

Held: Question One was answered in the negative. Question Two was answered in the affirmative with respect to the appointment of judges from provinces other than Québec, and in the negative with respect to the appointment of judges from Québec.

Per McLachlin C.J.C. and LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ.: Both the initial 1875 enactment of the Supreme Court Act and its 1886 amendments were the product of constitutional compromise between founding nations in a federation. While the Supreme Court of Canada was conceived as a statutory court, the laws governing its establishment cannot be divorced from the constitutional context in which they were drafted and first amended.

Section 6 of the Act as it now reads expressly restricts, both in clear language and by silence, persons eligible for appointment as puisne judges from Québec to members of two categories, "the judges of the Court of Queen's Bench, or of the Superior Court, or the barristers or advocates of the province of Québec". Section 6 is different than s. 5, which permits the appointment of persons having membership in four categories as puisne judges of the Supreme Court of Canada generally: s. 6 is more restrictive, and by ordinary rules of statutory interpretation more restrictive language must be taken as expressing a more restrictive intent. Had Parliament in its wisdom, during the period of post-Confederation constitutional compromise, intended that the same rules apply to appointments both within and without the province of Québec, it would have said so.

The purpose of the restrictive categories of persons eligible for appointment to the court from Québec is to ensure not just that the court include persons intimately familiar with and knowledgeable in Québec's civil law tradition, but that persons from Québec see that this is the case, in order to uphold public confidence in the rule of law and Canada's federal society. As a result, Question One must be answered in the negative: justices in the Federal Court of Canada, including the Federal Court of Appeal, who are not also active members of the bar of Québec, are not eligible for appointment as puisne judges of the Supreme Court of Canada.

In respect of Question Two, at the time of Confederation Parliament was given, in s. 101 of what is in Canada known as the Constitution Act, 1867, very broad powers over "the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada". Parliament exercised that constitutional power, albeit in the atmosphere of constitutional compromise described above, when it in 1875 enacted and in 1886 amended the Act. On its face, the constitutional power given Parliament in s. 101 of the Constitution Act, 1867 was almost unfettered in respect of appointment powers, presumably either "Constitution" or "Organization". However, an intervening event occurred which subjected Parliament's power to constitutional oversight by the court itself. That event was the enactment of what in Canada in known as the Constitution Act, 1982.

In Part V of the Constitution Act, 1982, what had evolved over the years into a distinct constitutional status for the court was recognized in a manner which, for the purpose of the present case, deprived Parliament of the power to unilaterally alter the basic composition of the court. The law concerning appointments of puisne judges from Québec is a fundamental element of that basis composition. Accordingly, any Act of Parliament purporting to unilaterally do what the proposed 2013 amendments to the Act would do is ultra vires Parliament: in order to make the changes contemplated by the proposed amendments, the Constitution of Canada must be amended in the manner prescribed by the Constitution Act, 1982. In respect of Part V, that would require the unanimous consent of Parliament and of the legislatures of each province. Question Two is accordingly properly answered in the negative with respect to the appointment of puisne judges from Québec. Given the language of s. 5 of the Act, as no statutory bar exists to the appointment of former members of a provincial bar generally, Question Two is properly answered in the affirmative with respect to judges from outside of Québec.

Per Moldaver J. (dissenting): Question One should be answered in the affirmative, with the result that Question Two need not be considered. Question One should be answered in the affirmative because the ordinary rules of statutory interpretation, contrary to the unknown rule applied by the majority in the present case, ss. 5 and 6 of the Supreme Court Act ought properly to be read conjunctively. That is to say, s. 5 of the Act states that current and former superior court judges and current and former members of provincial bars having 10 years' standing, are eligible to be appointed as puisne judges of the Supreme Court of Canada, and s. 6 states that, given the qualifications of a person pursuant to s. 5, three members of the court must be from Québec. That is to say that of the nine members of the court, three must be drawn from the superior courts of Québec or from the Québec bar. Simply put, Parliament never intended that a smaller set of Québec lawyers be eligible for appointment, Parliament rather only intended to protect Québec and its civil-law traditions by guaranteeing that a certain number of appointees be from Québec. Nothing stands to be gained from depriving former lawyers and judges of 10 years' standing from Québec from appointment to the court if similarly-situated lawyers and judges from elsewhere in Canada would not be so discriminated against, and Parliament simply could not have intended that discriminatory result. Accordingly Question One should be answered in the affirmative, and Question Two left unanswered as unnecessary.

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