The Problem with the Nadon Appointment

Along with senators, cabinet ministers, and really, the governor general, the prime minister acting on behalf of the government also appoints judges to various levels of the judicial system through the Governor In Council process (which we will get into at another time). The most important of these judicial appointments are the ones to the Supreme Court of Canada, the highest court of the land, the final court of appeal and the interpreter of the Constitution.

By why all the fuss with this appointment? What makes this one any different than previous appointments? That is what we will be talking about in this post.

Governed by the Supreme Court Act, the Supreme Court is made up of a Chief Justice (Currently, the Right Honourable Beverly McLaughlin) and 8 puisne (that is to say junior or associate judges to the Chief) justices. The Court was established in 1875, but was not the final court of appeal until 1949. (Prior to that time, cases heard by the Supreme Court could be appealed to the Judicial Committee of the Privy Council, in Britain. But that is for another time).

The Act reserves three of the seats are reserved for Quebec judges (traditionally, three judges come from Ontario, two from western Canada and one from Atlantic Canada). This is because Quebec’s legal system – based on civil law – is different from the rest of Canada, which practices common law.

Briefly, Quebec’s civil law is based on the French Civil Code under which Quebec’s society was governed when the French colonized the new world. The British allowed Quebec to keep it’s laws (and its Catholic religion) via the Quebec Act, 1774 [1] In civil law, all its principles are codified or written down, updated consistently, all procedures, appropriate punishments are listed. Judges in this system work with in the written legal framework to arrive at decisions and punishment. So judicial decisions do not concern legislators (Members of the National Assembly) when creating new legislation. [2].  In common law, on the other hand, the opposite is true. It is based on case law, or “judge-made” law- the decisions of the judges not only influence future legislation – particularly criminal law – and future cases are guided by precedence, or past practice as set by judges who have made decisions in similar cases [3]. So, the government is required by law to appoint justices to the Court who practice Quebec civil law. And herein lies the problem.

Justice Morris Fish retired from the Court, and held one of the Quebec seats. Enter Justice Marc Nadon, a judge who had been sitting on the Federal Court of Appeal.  Justice Nadon was already in semi-retirement (Supreme Court judges must retire at 75 years of age), and was born, practiced law for ten years, but as of his appointment, has not been a member of the Quebec bar, and taught law in Quebec [4].  The Harper government nominated, then appointed him to the Court. But there have been challenges to Nadon’s appointment, which is where the problem begins: Rocco Galati, a Toronto lawyer formally made the challenge because he believes it violates the law about selecting Quebec judges for the Court; the Quebec government has also indicated that it will contest the appointment on the same grounds. There are a couple of points of contestation here.

  1. Can judges on the Federal Court  (either the trial division or the appeals division) be appointed to the Supreme Court?
  2. Does “Any person may be appointed a judge who is or has 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,” mean any lawyer or judge who has ever practiced law for 10 years regardless of where they are practicing/presiding now? Or does it refer to lawyers or judges who are currently practicing/presiding in the province?

For Galati and the Government of Quebec, Nadon does not meet the qualifications because he has not been practicing or presiding over a civil law court and that being a member of the Federal Court excludes him from consideration.

The situation has certainly brought some bad press for the Harper government. If you are asking yourself, why didn’t Parliament do anything to stop or at least question the appointment. Well that’s another issue itself.

Mr. Nadon testified in front of a multi-party committee (as other judicial appointments have done) in an effort to bring transparency and accountability to the process. This process is meant to resemble the US Congressional nomination hearings but is no where near close to doing so, particularly because the Canadian version of the committee does not have the same power to question and investigate a nominee and cannot stop the appointment. Parliament can do very little when the power to appoint is at the discretion of the prime minister. Moreover, the government, in an attempt to change the interpretation of the act, pushed through an amendment to the Supreme Court Act, in its omnibus (or large, combined) bill which passed easily last fall with the Conservative majority government.  So, the act now says that a nominee from the province would have to have been a member of the bar for at least 10 years at any point in time.

It is now up to the Supreme Court of Canada itself to determine the legality of their colleague’s appointment. Nadon has excused himself from the Court until a decision has been reached.

Sources:
1. Brown Foulds, Nancy. “Quebec Act.” The Canadian Encyclopedia. Historica Canada, 18 Aug 2013. Web. 28 January 2014. <Brown Foulds, Nancy. The Canadian Encyclopedia, “Quebec Act.” Last modified August 12, 2013. Accessed February 1, 2014. http://www.thecanadianencyclopedia.com/en/article/quebec-act/.&gt;.
2. “The Common Law and Civil Law Traditions.” The Robbins Collection School of Law. University of California at Berkeley. Web. 27 Jan 2014. <https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html&gt;.
3. Ibid.
4. “The Honourable Mr. Justice March Nadon.” Supreme Court of Canada. Supreme Court of Canada, 3 Oct 2013. Web. 27 Jan 2014. <http://www.scc-csc.gc.ca/court-cour/judges-juges/bio-eng.aspx?id=marc-nadon&gt;.

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