When it came time for Prime Minister Harper to fill the vacancy on the Supreme Court of Canada left open by the departure of Mr. Justice Fish (who I had the honour of appearing before on his last day sitting as a justice of the high court), the Liberals and the NDP joined forces with the Conservatives last October to welcome Mr. Justice Marc Nadon to the prestigious Ottawa bench.
In accordance with the Constitution he would sit as one of three judges representing the Province of Quebec, an appointment that was constitutionally vetted by two former Supreme Court of Canada judges and Canada’s leading constitutional scholar.
Unfortunately for Justice Nadon, on the day he was appointed, Toronto lawyer Rocco Galati, took the unprecedented step of applying to oust him, suggesting that as a Federal Court of Appeal judge and a former member of the Quebec bar for 20 years, he was not qualified for the appointment.
Apparently Mr. Galati and Justice Nadon shared some history together during the Omar Khadr terrorist trial, a decision that went against Mr. Kadhr.
In a 6-1 decision last Friday, the Supreme Court ruled that Justice Nadon’s appointment was “void ab initio” meaning it was invalid from the outset.
How did this happen and where do we go from here? Let me explain.
Sections 5 and 6 of the Supreme Court Act set out the terms for the appointment of Supreme Court justices.
Section 5 says that current and former judges of any Superior Court in Canada or current or former lawyers with ten years experience are eligible for appointment.
Section 6 reads: “At least 3 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.”
You will see that the language is problematic, as section 6 does not stipulate that Quebec lawyers or advocates must have ten years experience. As absurd as it seems, section 6 would permit a government to appoint a lawyer with only one year or less at the Quebec bar. As well, section 6 does not clearly identify whether former lawyers from Quebec are eligible as they are in every other Province in Canada.
What to do, what to do? The Supreme Court of Canada relying on principles of statutory interpretation agreed that for section 6 to make sense it had to be read together with section 5 and accordingly, they imported the requirement of ten years into section 6. So far, so good.
However, they declined to link the section 5 stipulation that the appointment of lawyers was not restricted to current lawyers, but also included lawyers who had previously practiced for ten years in Quebec.
Why would there be a difference depending on your Province of practice? The majority opined that it was not enough that Quebec was constitutionally entitled to three judges, while British Columbia and Alberta have to share one judge, but that Quebec’s legal traditions and social values required that appointees who are lawyers must be current members of the Quebec bar.
Query why section 5 must be read with section 6 when it comes to a lawyer’s time at the Quebec bar, but not read with section 6 with respect to former lawyers of the Quebec bar? A cynic, like me, would say that the learned Justices decided on the outcome and then interpreted the law to accommodate their views.
As a lone voice in the wilderness, dissenting judge, Mr. Justice Moldaver apparently agrees, pointing out that a lawyer can join the Quebec bar after paying the required dues and taking 30 hours of legal education over a two-year period, not an insurmountable task. Those who wish to qualify for the Quebec bar don’t even have to live in Quebec or practice law in Quebec, in fact, it appears that a day at the Quebec bar would guarantee eligibility for an appointment to the Supreme Court of Canada.
As for the vitriolic coming from Harper naysayers, their knives are flailing as they take their potshots. Some suggest that Mr. Justice Nadon was never qualified intellectually; that he was nothing more than a part-time (supernumerary) judge, as if that is a shameful position; that our highest Court has delivered a fatal blow to the Conservative government; and that a defiant Supreme Court has stopped Harper from “stacking” the court with Conservative hacks, an assertion that is not borne out by his previous five appointments.
Are we forgetting that the Liberals and NDP also supported Nadon’s appointment? I think so.
I predict that Justice Nadon’s “ride” is over, after all who would put themselves in a position to be drawn and quartered more than once?
Lawdiva aka Georgialee Lang