Thursday, October 24, 2013

As we discussed when we reported that Marc Nadon had been nominated to be the newest Justice on the Supreme Court of Canada, there existed a constitutional question regarding whether a judge on the Federal Court of Appeal was eligible for the Supreme Court.

Marc Nadon, Portrait (prematurely?) on the Supreme Court of Canada website

It's a complex issue, especially for those not steeped in Canadian constitutional law, but luckily Canadian ConLawProfs Michael Plaxton and Carissima Mathen have made available on ssrn their excellent paper,

They set out the facts at the beginning of their discussion:

On 30 September 2013, the Prime Minister announced the nomination of Marc Nadon, a Federal Court of Appeal judge, to fill the seat vacated by Supreme Court Justice Morris Fish. The announcement was accompanied an unusual supporting document – an opinion by a former Supreme Court Justice, The Honourable Ian Binnie. Asked whether the Supreme Court Act permits the appointment of Federal Court judges, Binnie wrote a brief memorandum arguing that it does – a conclusion endorsed by another former Supreme Court Justice, Louise Charron, and Professor Peter Hogg. After Nadon was sworn in, a Toronto lawyer launched proceedings in Federal Court to contest the appointment. This prompted Nadon to decline to participate in court hearings until the issue is resolved. On October 22, in apparent response to these events, the federal government announced that it would introduce a “declaratory” change to the Supreme Court Act. It would also seek an advisory opinion from the Supreme Court of Canada as to whether Federal Court judges are qualified for appointment.

The Supreme Court of Canada action is now docketed here.

Section 5 of the Supreme Court Act states: “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.” Section 6 provides: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province.” Mr Justice Nadon was, at the time of his nomination, neither a judge of a Quebec superior court nor a current member of the practicing bar. It is therefore not clear that he is “among the advocates” of Quebec within the meaning of section 6.

As Plaxton and Mathen describe the "apparent interpretive problem raised by Justice Nadon’s appointment,"

Ultimately, they conclude that the argument in favor of Nadon's eligibility privileges section 5 over section 6, with its purpose "to protect the authority and legitimacy of the Court in the eyes of Quebec citizens, advocates and jurists."

This controversy over eligiblity has certainly eclipsed the earlier concerns regarding Nadon's appointment contributing to the lack of gender balance and representation on the Court.

https://lawprofessors.typepad.com/conlaw/2013/10/not-so-fast-nadon-the-supreme-court-of-canadas-would-be-justice-on-hold.html