On Sept. 30, 2013, Prime Minister Stephen Harper nominated Justice Marc Nadon, a supernumerary judge (effectively, a half-time or less appointment) of the Federal Court of Appeal, to replace retiring Supreme Court Justice Morris Fish. Nadon appeared before an ad hoc parliamentary committee to be questioned by an all-party panel of 12 MPs and was formally sworn in as a Supreme Court justice on Oct. 7.
Nadon was appointed to fill one of the three 鈥淨uebec鈥� seats on the nine-justice court and, almost immediately, some queried whether he was eligible to serve. The federal government took the unprecedented step of obtaining three separate legal opinions from two former Supreme Court justices and a prominent constitutional law professor, each of which confirmed Nadon鈥檚 eligibility for appointment.
After an application was filed in the Federal Court to nullify the appointment, the Harper government referred the question of his eligibility to the Supreme Court. In the interim, Nadon was not permitted to assume his judicial duties at the high court; indeed, he was prohibited from entering his office at the courthouse or speaking with any of his judicial colleagues.
On March 21, a divided Supreme Court (and the current iteration of the court appears to be the most deeply divided in the past several decades) held 6-1 that Nadon鈥檚 appointment and subsequent swearing in were 鈥渧oid ab initio鈥� (that is, invalid from the outset) and that he 鈥渞emains a supernumerary judge of the Federal Court of Appeal.鈥�
Nadon鈥檚 appointment was controversial from the outset. Some complained that appointing another white male justice (five of the current eight justices fit that bill) did nothing to enhance the diversity of the court. Others argued that a part-time judge would not be able to handle the heavy workload of a full-time Supreme Court justice. Still others suggested his nomination reflected a desire by the Harper government to further politicize the court by making it a more conservative, pro-government institution.
While no one seriously suggested that Nadon鈥檚 experience as a lawyer, law teacher and judge made him unsuitable for appointment to the highest court, some asserted he was ineligible to hold one of the three Quebec seats on the court. He was born in Quebec, primarily educated in the French language, practised law in Quebec for nearly two decades (save for a two-year stint in his firm鈥檚 London, U.K., office) and later sat on both the Federal Court and the Federal Court of Appeal as one of the legislatively mandated Quebec appointees. Yet it was asserted he was ineligible by reason of Section 6 of the Supreme Court Act.
In general, an appointee to the highest court must be either a current or former judge of a provincial superior trial or appellate court, or a current or former lawyer with 鈥渁t least 10 years standing at the bar.鈥�
But three justices must meet additional criteria: they must be appointed 鈥渇rom among the judges鈥� of Quebec鈥檚 superior trial and appellate courts 鈥渙r from among the advocates of [Quebec].鈥�
Since Nadon was a member of the Federal Court of Appeal, not a superior Quebec trial or appellate court, he was only eligible for appointment if he were 鈥渁mong the advocates of [Quebec].鈥�
The majority of the Supreme Court ruled he did not meet this requirement. But right or wrong (and, for my part, the dissenting opinion confirming Nadon鈥檚 eligibility makes considerably more sense than the majority judgment), the high court has clearly rejected the appointment.
Is this the end of the matter? Perhaps not. The gaping loophole in the court鈥檚 decision lies in the fact that Nadon could take up membership in the Quebec bar (a simple administrative act involving some paperwork, proof of completion of 30 hours of continuing legal education and payment of a fee) and seemingly become immediately eligible for appointment.
The Harper government has in recent years suffered some stunning defeats at the Supreme Court and one has to wonder whether it will simply accept this latest salvo or, as Justice Minister Peter MacKay hinted, do an end run around the court鈥檚 decision and re-appoint Nadon.
Kenneth Thornicroft is professor of business law and employment relations at the University of Victoria鈥檚 Peter B. Gustavson School of Business.
