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The nomination of Justice Marc Nadon from the Federal Court of Appeal to the Supreme Court raises a serious constitutional issue. Far from being anecdotal, this nomination contradicts both the text and the spirit of the Canadian Constitution which, since 1982, protects the Supreme Court of Canada as the highest judicial institution in general, and the composition of that Court in particular (in accordance with sections 41 d) and 42d) of the Constitution Act 1982. Much more than an awkward nomination, the Nadon controversy puts directly in question the weight of Quebec's civil law within the Supreme Court, and by extension, the binary nature of the Canadian legal system. This matter is important, because as with Senate reform and the changes to royal succession (two other issues before the courts), the federal government is unilaterally proceeding with changes to the constitution and to the rules that are protected by a procedure which requires the consent of the provinces.

After having tried to prevent an anticipated controversy by the production of a legal opinion written by a former member of the Supreme Court and after having seen the nomination of Justice Nadon challenged in court by two lawyers from Toronto, the federal government has decided to refer the matter directly to the Supreme Court. Furthermore, the federal government has presented on the sly to Parliament a change to the Supreme Court Act (SCA), which seeks to impose its interpretation of the constitutional requirements in relation to the nomination of the three judges from Quebec. But, according to section 41 of the Constitution Act, the federal Parliament cannot, without the consent of each province, change the composition of the Supreme Court of Canada.

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In a unanimous motion, the National Assembly of Quebec has rightly denounced the nomination of Justice Nadon to the Supreme Court and has asked for the right to take part in the nomination process of the three Quebec judges of the Supreme Court.

The nomination of Justice Nadon, the request for an opinion from the honorable Ian Binnie, a former member of the Supreme Court of Canada, as well as the changes to the SCA are in fact illegal attempts to go around the requirements of section 6 of the SCA. This section sets specific requirements for the nomination of three judges from Quebec. It requires that the three Quebec judges be chosen from among members of the Superior Court or of the Court of Appeal of Quebec – the general courts responsible for the application of Quebec civil law – or among lawyers who are currently members of the Bar of Quebec and have been for the last 10 years. Since he has not been a member of the Bar of Quebec for decades, and he is not a resident of Quebec, Justice Nadon unfortunately does not fit into any of those categories.

Much more than simple formalities, these requirements are essential characteristics of the composition of the Supreme Court of Canada. These guarantees go back to the Quebec Act of 1774 and constitute one of the essential aspects of the recognised distinctive character of Quebec. They are derived from both the binational and bifocal nature of the Canadian legal system and their purpose is to preserve the specific identity and the integrity of the Quebec civil law system. The recent recognition of the Quebec nation by the House of Commons confirms that these guarantees necessarily have a cultural dimension, since civil law is a major element of the culture of the Quebec nation.

Otherwise, it would be too easy to bypass the constitutional protection of civil law by naming to the highest Canadian court jurists, such as Justice Nadon, who have long since ended their practice of Quebec civil law. These jurists have lost daily contact particularly with the application of the Civil Code of Quebec and of laws adopted by Quebec's National Assembly, as well as with the safeguard of the principles and the internal logic of civil law. By its very nature, the jurisdiction of the Federal Court is strictly limited to federal law and its judges are rarely exposed to civil law, and if so, to a limited or marginal extent.

Justice Nadon was named to the Federal Court in 1993, which is before the new Civil Code came into effect. He has therefore never practiced as a lawyer under the Civil Code of Quebec. Afterwards, as a member of the Federal Court, he had no contact with large parts of the Civil Code which have a direct bearing on the functioning of Quebec society, such as civil rights law, property law, the law of sureties, the law of succession, family law, etc. In these circumstances, the ties between Justice Nadon and Quebec law, as well as his ties with Quebec, have been too remote for too long to make it possible to consider that the spirit of section 6 of the SCA, which benefits from the constitutional protection of section 41, has been respected in his case.

This nomination is also an embarrassment for the Canadian judicial system, particularly for the judges of the Supreme Court. Indeed they are the ones who will soon have to rule on the delicate matter of irregularities surrounding the nomination process of one of their own, and this by criticizing the opinion written at the request of the federal government by a former member of the court, the honorable Ian Binnie. On the simple level of appearances, this Ping-Pong game between the federal government, the Supreme Court and a former member of that same Court about the nomination of one of its members has something Kafkaesque about it. The more cynical observers will see nothing to increase the confidence of the public in the judicial nomination process and the administration of justice.

Finally, it is hard to see how the Supreme Court can preserve in this case the appearance of impartiality as defined by its own rigorous precedents, while deciding on the constitutionality of the nomination of one of its members, who has been sworn in and is said to have already an office within the walls of this central institution of the Canadian State.

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André Joli-Cœur is a constitutional lawyer. He acted as amicus curia in the Quebec Secession Reference in which the question of Quebec's accession to sovereignty was addressed by the Supreme Court; André Binette is a constitutional lawyer and former co-chairman to the Nunavik Commission. He was a member of the legal team of the Quebec Secession Reference; Patrick Taillon is a professor of constitutional law at Laval University; Étienne Dubreuil is a partner at D.S. Welch Bussières.