Much controversy has continued regarding Justice Marc Nadon’s proposed appointment to the Supreme Court of Canada, and ongoing Federal Court challenge. The Canadian government’s recent announcement that it will introduce declaratory provisions to the Supreme Court Act has heightened this controversy.
The provisions proposed would not pose changes to the law, but rather, in the eyes of the Conservative government, would help clarify eligibility to sit on the Supreme Court as a member from the province of Québec as “individuals with at least 10 years with [the] Québec bar at any time during their career.”
On October 22, 2013, Honourable Peter MacKay, Minister of Justice and Attorney General of Canada, stated in a Department of Justice press release:
“Our Government will defend the eligibility of longstanding members of the bar in all provinces and territories to sit on the highest court in Canada,” and further:
“Longstanding members of the Québec bar should be, and are under the law, treated the same as lawyers in other provinces and territories in Canada.”
The announcement remains steeped in controversy for several reasons:
(1) Given that the Supreme Court itself has now been tasked with interpreting the Supreme Court Act;
(2) Declaratory provisions are not stand-alone legislative proposals, but rather embedded in a second bill to implement the budget bill from March 21, 2013; and
(3) A Federal Court challenge remains ongoing, since Toronto-based lawyer Rocco Galati questioned Nadon’s eligibility for the top court.
In a recent interview with University of Ottawa law professor Adam Dodek it has been suggested that this issue “solves one problem and creates another,” in that the process does not allow for vigorous and substantive debate. Of course that dialogue is an important element of proactive and responsible democratic institutions.
The 321-page budget implementation bill can be accessed here.
Another interesting piece of the puzzle is that the Supreme Court has been recently sitting as a panel of eight. This is of course unusual and has several significant legal implications. Paul Daly, Assistant Professor in the Faculté de Droit, Université de Montréal acknowledges current Québec bar membership is not required for Nadon’s appointment and Section 5 of the Supreme Court Act does not prevent appointments of Supreme Court justices from the Federal Court. Section 6 of the Act is more complicated, however.
Section 6 of the Act requires an appointee to be actively practising, or have served as a member of the Superior Court or Court of Appeal in Québec. Daly theorizes through a purposive lens that a solid foundational understanding of Québec’s Civil Code, preferably a current understanding, is important. This is because cases before the Supreme Court can be heard from Québec’s jurisdiction, compared to predominantly common law interpretations of laws and procedures outside the province.
Other points of interest Daly raised include:
(a) Questions of civil law are not raised as frequently within the Federal Court and Federal Court of Appeal, which may explain the omission of these courts from Section 6 of the Act;
(b) The legislative history of Parliament’s purpose, as well as modern-day needs for Section 6, remains unclear and, frankly, should have been addressed by Parliament before Marc Nadon’s nomination;
(c) Lawyers and judges practicing in court systems or private practices familiar with Québec’s Civil Code are more familiar, and presumably more qualified, to assess arguments within this jurisdiction; and
(d) Despite the Section 6 provision within the Act, very few cases of a civil law nature are heard at the Supreme Court.
Daly is hopeful Toronto-based lawyer Galati will overcome procedural challenges for public standing because:
“(1) there is a serious justiciable issue involving the interpretation of the Supreme Court Act; (2) he has a serious or genuine interest in the case and is not a mere busybody; and (3) there are no other reasonable and effective means of bringing the matter before a court (indeed, the very short period between the announcement of Justice Nadon’s appointment and his appearance before a committee of parliamentarians made it difficult to raise a serious argument before the political branches).”
This process is complex, ongoing, and could take several months. One positive aspect is the great depth of debate that has been created from such diverse standpoints, including: provincial and federal courts, law professors and academics, members of private practice, government, political organizations and parties, and of course the public arena. What challenges do you see next? Stay tuned!