In a long-awaited decision from the Supreme Court of Canada, six justices of the top court have confirmed Justice Marc Nadon’s ineligibility to sit as the ninth justice of the SCC, concluding that Prime Minister Harper’s appointment was unconstitutional (paras 1 to 107). Three of the six justices were appointed by Harper themselves.
Justice Michael Moldaver dissented (paras 108 to 154). Justice Marshall Rothstein recused himself from the decision (speculation is that he identified a conflict of interest.)
The full judgment of Reference Re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 can be read here.
An article from the CBC stated:
“The court ruled that its composition is constitutionally protected, and Parliament’s attempt to change the Supreme Court Act through a budget bill is unconstitutional,” and “Changes to the court’s makeup require a constitutional amendment with the unanimous consent of the provinces, the court says.”
Québec judges require the knowledge of the civil law code, different from the common law administered in other Canadian jurisdictions.
Rocco Galati, a Toronto-based lawyer, challenged the Prime Minister’s appointment because Justice Nadon came from the Federal Court of Appeal, rather than a court of Québec, and therefore was unqualified to fill one of three seats from the province of Québec.
 In our view, the answer to this question is no: a current judge of the Federal Court of Appeal is not eligible for appointment under s. 6 as a person who may be appointed “from among the advocates of that Province”. This language requires that, at the time of appointment, the appointee be a current member of the Québec bar with at least 10 years standing.
An interview with University of Ottawa Faculty of Law professor Adam Dodek featured interesting discussion, including:
Q. Can you elaborate on what part of the language struck you as especially firm?
A. In many ways this is a declaration of independence by the Supreme Court of Canada. So by going beyond the first question of the statutory language of whether a Federal Court judge qualifies for appointment and into the second question on the constitutional issues, for the court to say that it is constitutionally entrenched through a number of provisions, went beyond what was minimally necessary for the case.
Q. So this is a landmark ruling about where the court fits in the structure of our government.
A. Very much. It is an instant landmark ruling, a classic ruling. And remember, we expect the Senate reference later this year. Together with the Senate reference, these two decisions will be the most important decisions since the [court's 1998] secession reference.
Q. Is there anything in the Nadon ruling that foreshadows what we should expect the court to say about the government’s desire to press ahead with Senate reform, instituting a sort of election of senators and imposing a limit on how long future senators serve?
A. I think the judges were very, very careful not to say anything that would relate or tip their hand on what they will ultimately decide on the Senate.
Q. Some will look for a sort of hidden partisan political struggle between the Supreme Court and Prime Minister Stephen Harper. But I notice that of the six judges who ruled against the Prime Minister on Nadon, three were appointed by him to the top court.
A. I think in many ways the decision shows the independence of the Supreme Court and the independence of individual judges on the court. You know, I think Justice Moldaver’s dissent shows his independence of thought and has nothing to do with the fact that he’s a Harper appointee.
Q. Is it possible that Justice Nadon, having been rejected because he’s not a current member of the Quebec bar, could join it and be reappointed?
A. I don’t know Justice Nadon at all. I think the government has done him a great disservice through this whole process. I don’t know if he would want to continue to go through that.
The unprecedented decision will have widespread implications for the SCC’s ongoing Senate Reference deliberations.