And What if the Nadon Reference Never Happened? A (Fanciful) Thought Experiment

As you probably know by now, the Supreme Court of Canada ruled on Friday that federal court judges are not eligible for appointment to its three 'Quebec seats': Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. Although retrospective legislation was introduced after the appointment of Justice Marc Nadon to the Court, the legislation was ultra vires Parliament. It was a change to the "composition" of the Court, something that can now be effected only by a constitutional amendment pursuant to Part V of the Constitution Act, 1982.

Regular readers will not have been as surprised as some. The Court's analytical framework mapped my submissions to the Senate Committee on Legal and Constitutional Affairs. There, I hedged my bets on the constitutional question, but I identified strong textual, purposive and intentionalist grounds for the Court's conclusion. Much more could have been said by the Court in support of its decision on the constitutional question but it was unquestionably on solid ground. On the interpretive issue, opinion has long been closely divided. Again, there was ample support for the Court's preferred view.

On one of the Sunday talk shows, a spokesman for the federal government raised the possibility that Justice Nadon might be appointed by some other means. As I (and others) explained to the Globe and Mail, there is very little chance of that happening. I submitted an explanatory op-ed which is more expansive, but I have no idea when or where it will appear.

A more interesting question to ponder is what would have happened had the initial challenge to Justice Nadon's appointment proceeded through Federal Court. For want of expertise I park the question of whether Rocco Galati would have been successful in his claim that solicitor-client privilege was waived by the selective publication of positive opinions on the legality of the appointment. It seems to me a solid tactical reason for the course taken, as does the need for a relatively swift resolution of a controversy that has left the Supreme Court a judge short during two terms.

I noted at the outset that Galati's challenge had significant merit. Galati had standing, the issue was justiciable and he had a strong argument on the interpretation of section 6 of the Supreme Court Act.

What was less clear, as Finn Makela noted in a comment, was whether the reviewing court would have to defer to the federal government.

There would have been strong arguments for deference. Though hedged in by statute, the power to name Supreme Court judges is plainly a discretionary one and may be based in part on broad considerations of policy, factors which trigger deference in the Court's current analytical framework.  Moreover, even though the government did not necessarily set out its interpretation of the Supreme Court Act, its preferred view was "implied" in its conclusion that Justice Nadon was eligible; and a court may have had to defer to the interpretation advanced in litigation in response to Galati's challenge.

As against this, the case might have been one which fell in the narrow category of "constitutional" questions reserved to the courts. As we now know, the "composition" of the Supreme Court of Canada is protected from "substantive change" (para. 105). Galati would have argued that what is impermissible by legislation is also impermissible by executive action. I agree, but the 'correctness' categories are narrow enough that the courts might nonetheless have felt bound to defer to the federal government's interpretation, especially since this sort of problem has never really been authoritatively resolved in Canada.

If deference were due, the federal government should in my view have won the case. On my view, recently set out in "Unreasonable Interpretations of Law", Galati would have had to identify a fatal flaw in the reasoning advanced by the federal government. This would have been very difficult. The expert opinion published in support of the appointment was unreasonable because it ignored section 6 of the Supreme Court Act, which was the key provision, but the federal government's ultimate litigating position advanced a plausible interpretation of the relevant statutory provisions. It is easy to disagree with the federal government's position but difficult to say that it was unreasonable. (I digress to say that I completely disagree with deferring in this sort of situation, but that is an argument for another day!).

Granted, Canadian courts have not adopted the view I set out in "Unreasonable Interpretations of Law". They have tended to defer less on questions of statutory interpretation. Nonetheless, even supporters of the Court's decision on Friday acknowledge that the interpretive question was "close", surely close enough that deference to the federal government would have tipped the scales decisively in favour of Justice Nadon.

Of course, this thought experiment is fanciful. The federal government really had no option but to refer the matter to the Supreme Court of Canada for authoritative resolution. I think it did the right thing in doing so. The thought experiment is nonetheless interesting. And in light of the result a deferential approach could well have given, it provides food for thought about the appropriateness of deference, especially on questions that touch fundamental constitutional values.

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.

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.