(An edited version of this post, originally published here, is now located on Re-View From the Bench.)
Jeffrey Simpson in the Globe and Mail hit the nail on the head. He wrote: “The Harper government figured it would teach the Supreme Court justices a lesson by appointing Marc Nadon to their midst. Instead, the justices taught the Harper government a bunch of lessons. Among these lessons: Don’t play politics with the judiciary. Don’t play fast and loose with the law. Pick the best qualified, not the average. Understand the Constitution.” Chantel Hébert in the Toronto Star wrote: “This is one of those occasions when a bad day for the current government of Canada is a good day for federalism.” Christie Blatchford in the National Post, under the headline “Egregious meddling in what should be PM’s choice for top court,” fumed that “it is a disgraceful decision,” while her colleague John Ivison, in the same edition, wrote that “There’s no disguising the whole appointment process has been a cock-up… “
The Supreme Court decided 6:1 against the government; of whom three in the majority were appointees to the court by Prime Minister Harper. As is customary when litigants disagree about the correct interpretation of legal provisions, they considered the wording of the statute, its history and its purpose. Then the majority released their decision as one voice, to emphasize its importance. So what did the Supreme Court majority decide?
1) That Justice Nadon, the Harper government’s choice to fill one of three seats on the court reserved for Quebec judges, was not eligible for the position.
2) Having worked for the past 20 years in Ottawa, he was not a current member of the Quebec bar, nor of the high courts of Quebec, as required by s.6 of the Supreme Court of Canada Act.
3) That particular section, passed in 1875, and not changed since, “narrows the pool of eligible candidates” from the general requirements in s.5.
4) It does so for two basic reasons: a) to ensure civil law expertise and the representation of Quebec’s legal traditions and social values on the Court and b) to enhance the confidence of Quebec in the Court.
5) The federal government’s unilateral amendment to the Supreme Court of Canada Act declaring that former members of the Quebec bar or higher courts are eligible for appointment to the Supreme Court is beyond the powers of the federal government acting alone.
6) Changes to the Supreme Court and to its composition are subject to constitutional amending procedures requiring the unanimous consent of Parliament and the provincial legislatures.
I agree with Chantal Hébert and the other pundits who applaud this decision as a great day for Canadian federalism. Quebec, in the midst of a tightly contested provincial election, can have no complaint when their own position on the issue was so completely affirmed by the Supremes. Separatists will be frustrated; but they are never happy when the Canadian federation shows that it serves Quebec interests well. There are those across Canada who may ask: “Why does Quebec get distinctive treatment on this issue?” They do, because their codified civil law is different from the common law applicable to the rest of Canada and, when the country was first formed, the fathers of confederation agreed to preserve that law in Quebec. That bargain recognized the distinctive nature of the French Canadian legal culture; it is a foundation principle upon which Canada was created and evolved to the official bilingual state we enjoy today.
True conservatives, and everyone else, across Canada should be equally pleased. The Supreme Court of Canada has confirmed its own status as one of the basic constitutional institutions of the nation, and insisted that its integrity must be respected. This is an essential precondition to protect the freedoms fundamental to our society. Those who complain that “the court has interfered with the supremacy of Parliament” do not seem to appreciate that it is a primary function of the court, and particularly the Supreme Court, to rule on the validity of state action. That’s what they do frequently. That’s what they were asked to do this time. That is their role. The Court is only doing their job. One of their jobs is to keep the government accountable. Accountable to the constitution which is the fundamental law of the land. You and I and everyone else who values the rule of law in this country should be thankful for that. No one is above the law, not even the Prime Minister and his majority in Parliament.
Everyone agrees that the process by which Justices are appointed to the Supreme Court of Canada needs updating. That is a subject for another day. Suffice it to say that, in the Nadon case, the federal government didn’t even follow the prevailing practice. Although Mr. Justice Fish gave six months notice of his retirement, the government waited until the very last minute to choose his successor. When they did, they ignored the pool of outstanding candidates obviously available and chose someone almost unknown, semi-retired, with limited legal jurisprudence to his credit, and whose only apparent claim was his obvious support for their own ideological perspective. With little time to know his record, his appearance before the Parliamentary Committee to review his appointment was perfunctory to say the least. The government knew, furthermore, that by choosing Justice Nadon, who was not a current member of the Quebec bar, or the Quebec higher courts, they were flirting with the s.6 statutory qualifications. When there was an immediate challenge to the appointment (from Toronto lawyer Rocco Galati, and then from the Quebec government itself), the government referred the matter directly to the Supreme Court for an expedited decision. The federal government also passed legislation to amend the Supreme Court Act and asserting that their view of the provisions prevailed. Did Parliament think that, by passing such a law to apply retroactively, they could dictate how the Supreme Court must decide?
One can sympathize with the embarrassment this has caused Justice Nadon. The actions of the Harper government, however, were unprecedented. They called for a firm response. They got it… as Jeffrey Simpson said: a resounding “No.” Three cheers for the Supreme Court of Canada. Anyone who wants to read the Supreme Court decision for themselves can find it on the court webpage.