Sequesters, Quarantines, or Common Sense?

There are important legal questions about the ability of the Canadian federal government to appoint members of the Federal Court and Federal Court of Appeal to the three Québec seats on the Supreme Court of Canada. I discuss some of these in this podcast with the McGill Law Journal.

These questions will be answered by the Court in a reference made to them by the federal government. I think the questions are serious -- especially in light of the legislative history -- and were not dispelled by the opinion provided by former justice Ian Binnie at the time that Mr. Justice Nadon was announced as the government's latest nominee.

In particular, in order to conclude that section 6 of the Supreme Court Act permits the appointment of federal court judges, the Court would have to explain (at the very least):

• Why this precise provision was the subject of a proposed constitutional amendment (a new s. 101B(2)) as part of the Meech Lake accord?
• How this reading is consistent with the purpose of section 6 (as underpinned by the pertinent and quite voluminous legislative history)? 
• Why the Constitution Act, 1867 is so concerned to make special provision (in s. 98) for judges from Québec?
• And how section 6 can be construed to allow the appointment of federal court judges when another provision of the Supreme Court Act limits ad hoc appointments of Québec judges to members of the Superior Court and Court of Appeal, but allows ad hoc appointments of other judges from the federal courts?

These are important questions (on which my view is that the best reading of s. 6 is that federal court judges are excluded: I may put my thoughts together in a paper, although I would not be the first to do so).

But one is liable to get sidetracked by relatively trivial issues. One is whether Justice Nadon lived in the province of Québec. This has precisely nothing to do with the question of statutory interpretation at issue.

A more recent one is whether Justice Nadon has been "quarantined", as sensationalist headlines announce, by the Court, and whether it is improper that he has an office in the building.

This language is most unfortunate and evidences a misunderstanding of the situation. Justice Nadon has been sworn in as a member of the Court. Of his own volition, he stood aside temporarily. It is entirely unsurprising that he has an office. Naturally, he does not participate in case conferences and the like. Certainly he does not discuss his own case with colleagues.

This sort of situation is not quite unprecedented. The House of Lords had to address an allegation that one of its members, Lord Hoffman, had an impermissible interest in the Pinochet litigation. They addressed it, indeed, finding that Lord Hoffman's involvement created a reasonable apprehension of bias. Life went on. Lord Hoffman is one of the most distinguished recent members of the House of Lords. Doubtless he did not discuss his own case with his colleagues. Withdrawing entirely from the business of the court, however, would have been inappropriate in the circumstances.

The Court has taken a very protective view of the integrity of the institution in setting out restrictions on contact between its eight other members and Justice Nadon. These restrictions remove any trace of a reasonable apprehension of bias that might taint the reference decision. In truth, they probably go further than is strictly necessary in the circumstances. As Eugene Meehan has said, this is the principle that justice should not only be done but be seen to be done "on steroids". Indeed, the likelihood of sensationalism on the part of the media may have led the Court to act so cautiously. This, I think, is a pity.

The risk is that these silly controversies and alarmist headlines will distract attention from the important issues about the special position of Québec's legal system, the nomination process and Canada's procedure for constitutional amendment.

UPDATE: Added a link to the podcast I did with the McGill Law Journal.