On Friday, the Supreme Court of Canada will hand down its decision in the "Nadon reference". For further background -- and my take on the key issues -- you can download my submissions to the Senate Committee on Legal and Constitutional Affairs. Two posts by Michael Plaxton -- here and here -- also provide a good overview.
Recall that the controversy is about the three seats on the Court that must be filled by judges from the province of Quebec, where the civil law is the law of the land. Recall also that the federal government asked the Court two questions: (1) can judges of the federal courts be appointed to the 'Quebec seats'? (2) can Parliament enact declaratory legislation which makes clear that judges of the federal courts can be appointed to the 'Quebec seats'?
Parliament passed the declaratory legislation before the Court heard the referencec. Declaratory legislation has retrospective effect and is binding on all courts. The controversy arose because Justice Nadon's appointment was challenged in Federal Court, a challenge that has been stayed pending the outcome of the reference.
Predicting court rulings is always hazardous, but let me lay out the various scenarios for this one. I count 16. If I have missed any, please let me know and I will add them ASAP. Bear in mind that they pre-suppose a pretty good grasp of the issues!
1. The Court answers "Yes" to question (1) and does not answer question (2). This is the response the federal government is looking for. It depends on the Court agreeing that s. 6 of the Supreme Court Act always allowed for the appointment of federal court judges to the Quebec seats, thus making the declaratory provisions irrelevant (although this is tricky because the declaratory legislation has been passed and arguably cannot be ignored).
2. The Court answers "Yes" to question (1) in light of the declaratory legislation, on the basis that the declaratory legislation cannot be ignored, and is constitutional because:
2. (a) Declaratory legislation can never effect a constitutional amendment (an unlikely scenario).
2. (b) The Court is not entrenched in the Constitution and until it is, the federal Parliament has a free hand (perhaps with an exception which prohibits the outright abolition of the Court).
2. (c) It does not change the "composition" of the Court either because (i) "composition" does not refer to the sources from which judges can be drawn (but to something else, such as the number of judges) or (ii) because "composition" protects the principle that at least three judges shall be trained in the civil law tradition, which is the case with federal court judges who were trained as civil lawyers, and is thus compatible with the declaratory legislation.
3. The Court answers "No" to question (1) and concludes that the declaratory legislation is unconstitutional because:
3. (a) Sections 5 and 6 of the Supreme Court Act have constitutional status and cannot be amended by the federal Parliament acting alone.
3. (b) The principle that the civil law tradition has constitutional status and any change to it requires a constitutional amendment.
3. (c) The sources from which the Quebec seats can be filled have constitutional status and cannot be changed without a constitutional amendment.
3. (d) Even if this is not a change to the "composition" of the Court it is nevertheless a change to the institution that requires a constitutional amendment (under the general rather than the unanimity formula).
4. The Court answers "Yes" to question (1) but also concludes that the declaratory legislation is unconstitutional (for one of 3. (a), (b), (c) or (d)).
5. The Court refuses to answer either question (an unlikely scenario) because:
5. (a) Passing declaratory legislation and asking the Court a reference question simultaneously breaches the principle of judicial independence.
5. (b) Asking a reference question while litigation is pending is inappropriate.
5. (c) The factual record is inadequately developed.
If you want to place wagers, do so in the comment section!