L'Affaire Nadon: a Note on Justice Rothstein's Recusal

A few weeks ago I appeared before the Senate Standing Committee on Legal and Constitutional Affairs about the proposed modifications to the Supreme Court Act. You can watch the hearing here (warning, quicker to stream than to download). I prepared lengthy written submissions, which you can download here.

These modifications are, of course, the subject of a reference to the Supreme Court of Canada itself, which will be heard on January 15. The most interesting recent news is that Justice Rothstein has recused himself. This is unsurprising. Justice Rothstein was appointed from the Federal Court of Appeal. The reference specifically asks the Court to opine on whether such an appointment [EDIT: to one of the "Québec seats"] would have been lawful. If he had taken part in the reference, Justice Rothstein may have had to opine on the legality of his own appointment [EDIT: especially because Parliament proposes to clarify both sections 5 and 6 of the Supreme Court Act]. Moreover, several of his former colleagues are intervening in the reference [EDIT: and he is a former colleague of Justice Nadon]. Helpfully, Justice Rothstein's sensible decision also ensures that the reference will not result in a tie (although this is a case in which, for institutional reasons, the Court is likely to speak with one voice).

Although Justice Rothstein recused himself about a month ago, the decision was only made public yesterday. Matters seem to have been brought to a head by an argument made by Rocco Galati, one of the interveners, last week. On Galati's motion to intervene, he requested (it seems) that Justice Rothstein recuse himself from the motion. The Chief Justice heard the motions and responded that Galati's request was moot. As we now know, it was moot because Justice Rothstein has recused himself entirely, as the Chief Justice informed the parties to the case yesterday.

This information is only available due to the Court's willingness to make available on its website the dockets of all pending cases. It also publishes the written submissions of all parties to pending cases. And of course it streams and archives its oral hearings. Its website is an excellent resource for which the Court should be commended.

Here is the summary of the written submissions I made to the Senate committee:

The Committee has been asked to consider sections 471 and 472 of Bill C-4, which modify the Supreme Court Act. It has been asked to consider them in the midst of an important controversy. In late September, 2013, Prime Minister Harper nominated the Honourable Justice Marc Nadon, then a member of the Federal Court of Appeal, to replace the retiring Morris J. Fish as a member of the Supreme Court of Canada. After Justice Nadon was sworn in, but before he could take an active part in proceedings before the Court, a challenge was launched to the legality of his nomination. Mr. Rocco Galati, a Toronto lawyer, contended amongst other things that Justice Nadon was not eligible for elevation to one of the three seats on the Court reserved for jurists from Québec. Justice Nadon stepped aside pending the resolution of the challenge to his nomination.

Subsequently, the federal government took two steps. It proposed modifications to the Supreme Court Act as part of Bill C-4. And it referred two questions to the Court for the decision: whether federal court judges can be appointed to the Court pursuant; and whether Parliament can enact declaratory provisions to end the ongoing uncertainty about the validity of Justice Nadon’s appointment and to confirm for the future that judges from the federal courts can be elevated to the Court.

In my written submissions, I propose to address three issues: (1) Can a member of the Federal Court or Federal Court of Appeal be appointed to one of the three Québec seats on the Supreme Court of Canada in accordance with the provisions of the Supreme Court Act? (2) Do the provisions of Bill C-4 alter the existing law? (3) Do the provisions of Bill C-4 require a constitutional amendment?

A brief summary of my answers is as follows: (1) No: The most natural reading of the English and French versions of ss. 5 and 6 of the Supreme Court Act is that sitting or former judges and lawyers with 10 years’ experience are eligible for appointment (s. 5), but that in the case of the three seats on the Supreme Court of Canada reserved for Québec there is an additional requirement that the appointee be a current judge or practitioner from the province (s. 6).

A purposive approach underpins this conclusion. The most obvious inference is that the object of s. 6 is to ensure that the Québec judges on the Court have current knowledge of Québec’s Civil Code. This is confirmed by the legislative history leading to the adoption of s. 6 and its subsequent evolution. The purpose of ensuring familiarity with civil law underpinned the policy choice to list the Québec courts and Québec bar as the sole sources from which the Québec seats on the Court could be filled.

(2) Yes: Parliament may enact declaratory provisions to cure doubts or mistaken interpretations of existing law by declaring the law’s ‘true meaning’ not only for the future but also for the past. A court faced with the question will have to take the declaratory provisions into account and will likely conclude that the proposed ss. 5.1 and 6.1 serve to put the appointment of Justice Nadon beyond all doubt. Whether the deployment of Parliament’s powers in the judicial domain is desirable is a separate question.

(3) Maybe: It remains to be seen what approach the Supreme Court of Canada will take to the interpretation of the amending formulas set out in Part V of the Constitution Act, 1982. There is scope for it to take an approach which would protect core provisions of the Supreme Court Act from unilateral amendment by Parliament. The Court may well conclude that a change to s. 6 of the Supreme Court Act constitutes a change to the “composition of the Supreme Court of Canada” and requires a constitutional amendment. There is accordingly a risk that s. 6.1, declaratory or not, is beyond the powers of Parliament because alterations to s. 6 of the Supreme Court Act can be accomplished only by a constitutional amendment. Equally, however, the Court may conclude that the Supreme Court Act can be amended by Parliament.

A useful counterbalance to the arguments made in my written submissions is the Attorney General's factum, which can be downloaded from the Supreme Court's website.

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.

More on section 6 of the Supreme Court Act: Legislative History and Purpose

I have posted already on the controversy surrounding the nomination of Nadon J.A., a judge of the Federal Court of Appeal, to the Supreme Court of Canada. The question is whether he meets the criteria imposed by ss. 5 and 6 of the Supreme Court Act. Some have been dismissive of the case mounted by Toronto lawyer Rocco Galati, but the argument that Nadon J.A. runs afoul of ss. 5 and 6 is being taken seriously in Québec and seems (to me at least) to be plausible. It is all the more so in light of the legislative history I have consulted and which I will describe in this post.