Monday 17 March 2014

The Nadon Reference: the 16 (?) Possible Outcomes

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!


  1. Paul, I think I developed a brain tumour while reading this. Let's just wait until Friday... but if I was a betting man, I would go with one of the variants of #2.

  2. 2(b) contradicts stare decisis and blencoe vs b.c. Human right commission para 35.

    I like 5.

  3. Leaning with 3(a), but will wait to re-watch the full hearing before giving my final prediction.

  4. I'm going with 1, because in my mind, they wouldn't answer the constitutional questions here before doing it in the Senate Reference (many of the questions about the exhaustiveness of ss. 41/42, the meaning of "Constitution of Canada" in the amendment provisions, and the interplay of 41, 42, and 44 being the same in both).

    Then again, who says that they have to decide the Senate Reference first? Still, if they have already worked through all these questions, why not release the Senate reference?

    Just guessing.

  5. Paul, what about deciding Q2 in the affirmative (within Parl's power and constitutional) and on the basis of the decl provisions' retroactive effect, declining to answer Q1?

  6. Yes, I didn't really do a good job explaining Option 2. Your formulation is more what I was trying to get at! Though I suppose there may be a slight variation in which they also address the historical materials (perhaps citing yourself and Michael Plaxton!).