Yesterday, the Supreme Court has delivered its opinion concerning the legality and constitutionality of the appointment (and swearing in by the Court!) of Justice Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. By a 6-1 majority, it finds that Justice Nadon’s appointment was not authorized by s. 6 of the Supreme Court Act, and that the enactment by Parliament of a purportedly “declaratory” provision which (retrospectively) authorized it was unconstitutional, because any change to the criteria of eligibility to the Supreme Court provided the Supreme Court Act is a constitutional amendment requiring the unanimous consent of the provinces under par. 41(d) of the Constitution Act, 1982. In this post, I will summarize the decision (at terrible length, I am afraid), and comment on it in the next one.
The first issue for the Court to address was whether s. 6 of the Supreme Court Act authorizes the appointment of a person who was, at some point in the past, but is no longer, a member of the Québec Bar, and is not a judge of either Québec’s Superior Court or the province’s Court of Appeal ― for example because, like Justice Nadon, that person resigned his or her bar membership to become a judge of one of the federal courts. In the majority’s view, the history, the “plain meaning” and the purpose of s. 6 prevent the appointment of such a person.
With respect to history, the appointment criteria of the original version of the Supreme Court Act allowed the appointment of former judges, but not former lawyers. That was specifically changed in the provision which eventually became s. 5 of the current Act, which applies to the appointment of all judges, but not in the narrower provision applicable to judges from Québec, which is now s. 6, which still bears the stamp of the initial exclusion of former lawyers. Former lawyers who become federal court judges can thus be appointed to the Supreme Court under s. 5 ― but to one if its Québec seats under s. 6.
Regarding the “plain meaning” of s. 6, the Court’s majority points out that, unlike s. 5, this provision does not contain wording suggesting that past membership in Québec’s bar or judiciary is sufficient for eligibility to the Supreme Court. S. 5 speaks of persons who “[are] or ha[ve] been” lawyers or judges; s. 6 merely says that appointees must be chosen “from among” Québec judges or lawyers. For the majority, this difference is decisive:
the words “from among the judges” and “parmi les juges” do not mean “from among the former judges” and “parmi les anciens juges”, and the words “from among the advocates” and “parmi les avocats” do not mean “from among the former advocates” and “parmi les anciens avocats” (par. 41).
As for the purpose of s. 6, the majority finds that it
is to ensure not only civil law training and experience on the Court, but also to ensure that Quebec’s distinct legal traditions and social values are represented on the Court, thereby enhancing the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights (par 49).
The majority points out that, without the assurance that the setting aside of seats for Québec provides, the Supreme Court would never have been created. The requirement of current, and not merely past, membership in “civil law institutions” (i.e. Québec’s bench or bar) “was intended to ensure not only that those judges were qualified to represent Quebec on the Court, but that they were perceived by Quebecers as being so qualified” (par. 56). To be sure, the way in which Parliament chose to implement this purpose may be imperfect; it may exclude some people who are, in reality, qualified to bring their knowledge of the civil law and of Québec’s legal tradition to the Court. But ― as Carissima Mathen and Michael Plaxton, whose paper the opinion refers to (and whom I congratulate!), argued ― Parliament chose a reasonable way of implementing this purpose, and the Court must give effect to its will.
Having concluded that the appointment of Justice Nadon to the Supreme Court was not authorized by s. 6 of the Supreme Court Act, the majority must then consider the constitutionality of a provision added to the Act, s. 6.1, which purported to authorize the appointment of former, as well as current, members of the Québec bar. Paragraph 41(d) of the Constitution Act, 1982, requires the consent of Parliament and of all the provincial legislatures to any amendments “to the Constitution of Canada in relation to … the composition of the Supreme Court” ― but does not define what “composition” means; nor does the Schedule to the Constitution Act, 1982, list the Supreme Court Act, or any of its provisions, in the list of the enactments which the “Constitution of Canada includes.” Due to these omissions, the federal government argued that 6.1 did not change any rule that was actually part of the constitution.
The majority rejects this position. After reviewing at some length the evolution of the Supreme Court’s role in the Canadian constitutional system, of which it has become the final independent arbiter, it concludes that this role requires the “composition” of the Court, mentioned in par. 41(d), as well as its “essential features” (par. 94), mentioned in par. 42(1)(d) of the Constitution Act, 1982, ― but not the entire Supreme Court Act ― to be protected from unilateral amendment by Parliament. “Composition,” it asserts, refers to the number of judges “and eligibility requirements for appointment to the Supreme Court of Canada as they existed in 1982” (par. 91). Accepting that the relevant provisions of the Supreme Court Act are not part of “the constitution of Canada” would lead to the conclusion that the references to the Court in the Constitution Act, 1982, were meant to entrench the federal power of unilateral amendment, which the provinces cannot have intended. Thus s. 6.1 of the Supreme Court Act is, in reality, a constitutional amendment, and lacking the requisite provincial support is of no effect. Justice Nadon’s appointment was void ab initio.
Justice Moldaver, dissenting, is of the view that “[s]ections 5 and 6 [of the Supreme Court Act] are inextricably linked — and that is the key to appreciating that the minimum eligibility requirements of s. 5 apply equally to the Quebec appointees referred to in s. 6″ (par. 121). Reading the 10-year bar membership requirement, but not the possibility of appointing former bar members, both of which are only found in s. 5 into s. 6 is “cherry-picking” (par. 124). The words of s. 6 itself contain no requirement of current bar or bench membership.
As for the purpose of s. 6, Justice Moldaver argues that it “is, and always has been, to ensure that a specified number of this Court’s judges are trained in civil law and represent Quebec” (par. 145). The purpose of protecting Québec’s “social values,” which the majority invokes, has no basis in the Supreme Court Act. In any case, there is no evidence that Quebecers’ confidence in the Supreme Court’s ability to protect their unique legal system would be undermined by the appointment of former, rather than current, Québec lawyers ― who, after all, include the judges of Québec’s provincial court, as well as judges of the federal courts who occupy seats specifically reserved for Québec-trained judges:
[w]hy such persons, otherwise eligible for appointment to this court by virtue of their 10 years standing at the bar, would suddenly become unacceptable to the people of Quebec on the day of their elevation to the bench escapes me (par. 147).
Justice Moldaver also rejects the argument that Parliament’s establishment of the requirement of current bench or bar membership is a reasonable, albeit imperfect, way of realizing its objective:
when interpreting a statute to determine what the relevant criteria are — i.e. what Parliament intended them to be — absurd results are to be avoided (par. 148; emphasis in the original).
This, in Justice Moldaver’s view, is the case with s. 6. Justice Moldaver points out that s. 6 not only excludes people who would make perfectly qualified Supreme Court judges, but also allows the appointment of people who would not be. A person can maintain his or her Québec bar membership merely by paying the fees and completing some continuing education work. The fact that a person with “only the most tenuous link to the practice of civil law in Quebec” (par. 150) can be appointed pursuant to s. 6 makes it
implausible … that anyone would view current membership at the Quebec bar as the sine qua non that assures Quebec’s confidence in appointments to this Court. Likewise, it is equally implausible that being a past member of the Quebec bar could singlehandedly undermine this confidence (par. 151).
Furthermore, the requirement of a current bar membership could be satisfied by re-joining the bar for a day ― which goes to show just how hollow it is.
As for the constitutional issue, Justice Moldaver does not need to address it, since in his view the new s. 6.1 of the Supreme Court Act is redundant. He says, nevertheless, that the setting aside of three seats on the Supreme Court is part of its constitutionally protected “composition.” He does not, however, pronounce on what else that term might embrace, pointing out that it seems strange that “any and all changes to the eligibility requirements” (par. 115) would require unanimity,
whereas an amendment that affected other features of the Court, including its role as a general court of appeal for Canada and its independence, could be achieved … using the 7-50 formula (par. 115).
In the result, Justice Nadon’s appointment is void. Whether this is the last we, and the Supreme Court, have heard of him is an open question. The majority’s opinion does not exclude the stratagem of his resigning judicial office and rejoining the Québec bar for a day, so as to be re-appointed as a current member of the bar, still less the possibility of his temporary appointment to Québec’s superior court and re-appointment to the Supreme Court from there. Be that as it may, I think that the majority’s opinion is very weak. I will explain why shortly.
Double Aspect 
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