Back in February, I wrote a post on the problem with Marc Nadon’s appointment to the Supreme Court of Canada. Friday, March 21st, the Supreme Court of Canada issued their ruling on the Reference Case posed to it by the Governor in Council (essentially, the prime minister and the Cabinet).
Marc Nadon’s appointment to the Supreme Court has been deemed unconstitutional, and his appointment to this country’s highest bench has been declared void.
In a 6-1 decision (one justice abstained from the case for potential conflict of interest reasons and the other seat was to be Nadon’s ), the Court ruled on the two questions posed to it by the Governor In Council (that is to say the federal Cabinet):
- 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 Quebec pursuant to sections 5 and 6 of the Supreme Court Act?
- 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? 
In both cases, the Court’s answer was no. But, you may be asking why the Supreme Court ruled this way. There are two main reasons for their decision.
The first point is pretty straight forward; the second one may require some explanation as to why Parliament can’t change the Court on its own because it is unconstitutional.
While the Supreme Court Act (the Act hereafter) is federal legislation and the federal parliament can make amendments to the Act for the general maintenance of the Court , the composition of the Court (that is the configuration) or changes to the number of justices or abolishing the Court requires the consent of both Houses of Parliament (the House of Commons and the Senate), but also all of the provinces as set out by section 41(d) of the Constitution Act, 1982 .
Overall, the Constitution can only be amended with the consent of both Houses of Parliament and at least 7/10 provinces making up 50% of the population of Canada through the general amending formula (There are actually five amending procedures ). However, there are specific clauses that require the unanimous consent of the provinces. As noted above, this is the case with the items listed section 41, which includes the composition of the Court, which is reaffirmed by the Court’s ruling on the Nadon issue.
The Court in its decision states: ”The Court’s constitutional status initially arose from the Court’s historical evolution into an institution whose continued existence and functioning engaged the interests of both Parliament and the provinces,” and,
The fact that the composition of the Supreme Court of Canada was singled out for special protection in s. 41(d) is unsurprising, since the Court’s composition has been long recognized as crucial to its ability to function effectively and with sufficient institutional legitimacy as the final court of appeal for Canada .
So, the constitutional clauses which require the unanimous consent of the provinces are those where the provinces have interests and because cases which have been heard by provincial courts can be appealed to the Supreme Court of Canada, the input of the provinces is required in the make up of the Court to protect provincial interests. This is particularly true of Quebec given its Civil Code- a number of justices from Quebec are required on the Court to ensure that Quebec’s Civil Code is also considered in decisions. To have a truly “federal” court system- that is, one that respects federalism in so far the Court has a role in “adjudicating disputes over federalism” – the Court’s make up must have provincial consent.
What this means for the federal government and Marc Nadon
Well, Marc Nadon remains a supernumerary (semi-retired) judge on the Federal Court of Appeal, but his appointment is void. The prime minister is said to be considering his options, which could include appointing Justice Nadon to the Quebec Superior Court, then nominating and appointing him again to the Supreme Court.
Implications for Quebec Election
Interestingly, there was some concern that a ruling allowing the appointment would have major implications on the provincial election in Quebec. Given that the Quebec government was against the appointment because Justice Nadon was not a member of the Quebec bar or a judge in a Quebec court, the Parti Quebecois (PQ) government believed the appointment to be illegitimate. The PQ could have used the ruling to their advantage, playing to the idea that Quebeckers are not respected by the “Rest Of Canada“ (the ROC). That the SCC decided that the appointment was invalid took this chip away from the PQ.
Implications for Senate Reference
This case has interesting implications for the Senate Reference currently before the Court as well: if the government and the federal parliament cannot change the composition of the Supreme Court because of Part V, section 41 of the Constitution Act, 1982, that such an action is deemed ultra vires (outside the authority) of its authority, then it stands to reason that the Senate Reference may see a similar ruling, particularly given the provincial interests that lie with the representative functions of the Upper Chamber.
The Supreme Court Ruling is available here: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13544/index.do
The Canadian Press, 5 Things to Take Away from the ruling: http://www.nationalnewswatch.com/2014/03/21/five-things-to-take-away-from-nadon-ruling/#.Uy-Jedytgds
Author of Governing from the Bench: The Supreme Court of Canada and the Judicial Role, and University of Waterloo professor, Emmett Macfarlane’s editorial in Maclean’s: http://www.macleans.ca/politics/the-supreme-courts-remarkable-rejection-of-marc-nadon
CBC compiled some interesting tweets following the ruling: http://www.cbc.ca/news/politics/marc-nadon-decision-twitter-reacts-to-supreme-court-ruling-1.2581564
1. CBC News.ca “Marc Nadon appointment rejected by Supreme Court” Accessed: Friday, May 21, 2014 http://www.cbc.ca/news/politics/marc-nadon-appointment-rejected-by-supreme-court-1.2581388
2. Reference re Supreme Court Act, ss. 5 and 6,  S.C.R. 21 at para 7
3.Ibid at para 101
4.Ibid at para 91; Constitution Act, 1982, Part V, ss. 41(d)
5.Hogg, Peter W. Constitutional Law of Canada, Student Edition. Toronto: Carswell, 2006. p.77
6.S.C.R. 21 at para 93
7.Ibid, at para 83