Eligibility to sit on the Supreme Court of Canada

Mr. Justice Nadon, a member of the Federal Court of Appeal, was named -- and indeed has been sworn in -- as a judge of the Supreme Court of Canada. But a challenge has been launched to his appointment. And until the challenge is resolved, Justice Nadon will not sit as a member of the Supreme Court. The applicant in the case is a Toronto lawyer, Rocco Galati. You can read his Notice of Application to the Federal Court here (via Trevor Guy).

Will the challenge succeed? I think the ultimate question here is a close one. There is a good argument that Federal Court of Appeal judges are not eligible for appointment to the three seats reserved for judges from the province of Quebec.
Here are the relevant provisions of the Supreme Court Act:

5. 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.

6. 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.

When announcing Justice Nadon's appointment, the federal government took the unusual step of releasing an opinion commissioned from former Supreme Court Justice Ian Binnie.

Binnie responded to the argument that s. 5 prevents the nomination of judges from the federal courts on the basis that they are neither "judge[s] of a superior court" nor advocates currently practicing at the bar.

His response to this question is persuasive. There is no requirement of current bar membership. Section 5 does not prevent the federal government from naming to the Supreme Court judges from the Federal Court.

Yet is seems to me that the meaning of s. 6 is the crux of the matter. The most natural reading of the two sections in my view is that lawyers with 10 years' experience are eligible for appointment (s. 5). But in the case of judges from Quebec, there is the additional requirement (s. 6) that the appointee be either a member of the Superior Court or Court of Appeal or an active practitioner. Otherwise, what function does s. 6 serve?

A purposive approach underpins this conclusion. The most obvious inference is that the object of s. 6 is to ensure that the Quebec judges on the Supreme Court have current knowledge of Quebec's Civil Code. The Supreme Court can hear cases from Quebec. When it does so, it needs judges who are familiar with civil law. Judges from the common-law provinces usually will not be. Accordingly, it makes perfect sense to have additional requirements for judges from Quebec: that they either be sitting judges or active practitioners (who, even if they are not specialists in private law, have nonetheless a professional obligation to keep abreast of civil-law developments).

In the Federal Court and Federal Court of Appeal, however, questions of civil law do not arise with anything like the frequency they do in the courts of Quebec. Common sense suggests that this is the reason those courts are not listed in s. 6. Ordinarily, the inclusion of some courts should suggest the exclusion of others which are not listed. This suggestion is underpinned by the apparent purpose of s. 6. It will be interesting to see if there is any legislative history which sheds light on Parliament's purpose.

Given the relatively modest number of civil-law cases heard by the Supreme Court, s. 6 is a silly law. The Supreme Court hears many more public law cases than private law cases and public law is the bread and butter of the federal courts. To echo Binnie's pragmatic conclusion, someone like Justice Nadon is eminently qualified by his work on the federal courts for the job of Supreme Court justice and his previous experience in practice qualifies him as an "advocate[] of [the] province".

Maintaining s. 6 does not serve an obvious contemporary purpose. Yet that is a matter for Parliament to resolve (which, really, it ought to have done before nominating Justice Nadon).

Before Galati gets any judges to answer the substantive question about Justice Nadon's eligibility, he will have to jump a couple of hurdles. He will have to demonstrate that he has standing and that the decision to appoint Justice Nadon is justiciable.

I think he should get over these hurdles. Galati does not have a personal stake in the case, but on balance he satisfies the criteria for public interest standing: (1) there is a serious justiciable issue involving the interpretation of the Supreme Court Act; (2) he has a serious or genuine interest in the case and is not a mere busybody; and (3) there are no other reasonable and effective means of bringing the matter before a court (indeed, the very short period between the announcement of Justice Nadon's appointment and his appearance before a committee of parliamentarians made it difficult to raise a serious argument before the political branches). We can argue the toss on a few of these, perhaps, but given the Supreme Court's "flexible, discretionary and purposive approach to public interest standing" it is difficult to conclude that Galati does not have standing.

Justiciability might be trickier.  Of interest here is a series of cases on the Kyoto protocol, the most recent of which dismissed a challenge to an executive decision to withdraw from the treaty: Turp v. Canada (Attorney General), 2012 FC 893. I may discuss these cases -- in which various challenges to the federal government's failure to implement Kyoto were dismissed without consideration of their merits -- in more detail in a later post.

But they seem to me to be distinguishable. The power to nominate judges is probably best described as prerogative in nature. However, it has been hedged in by statute. Sections 5 and 6 provide conditions which are clear and ought to be respected. The question here is one of statutory interpretation and there would be no justification not to reach the merits of Galati's case.

Given the weakness of the standing and justiciability arguments, the federal government would be well advised to request an advisory opinion from the Supreme Court itself. Binnie's pragmatic conclusion might well attract the support of a majority of his former colleagues. If there is no reference, however, the case could take many, many months to resolve.

UPDATE: Links fixed. Some grammar too.