The Supreme Court as a window on federalism (again)

So, the Supreme Court of Canada has ruled on the constitutional validity of the appointment of Mr. Justice Nadon.  In essence, the majority took the position that to be appointed to the Court from Quebec a person must be a current member of the Quebec Bar or a sitting judge in Quebec.  Marc Nadon was neither at the time of his appointment so he was deemed to be ineligible.


Source: Canadian Press Archive/ La Presse

In their decision the majority wrote that the legislation creating the Supreme Court requires that three judges be from Quebec (Section 6).  The go on to argue that: “The purpose of s. 6 is to ensure not only civil law training and experience on the Court, but also to ensure that Quebec’s distinct legal traditions and social values are represented on the Court, thereby enhancing the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights.”

In an analysis of the Nadon decision University of Montreal law professor Jean Leclair goes a bit further and argues that: “Bref, une compétence technique en droit civil ne suffit pas pour bien représenter le Québec. La légitimité de la Cour suprême, déjà l’objet d’une démonisation au Québec, requiert du candidat qu’il puisse se réclamer d’une appartenance étroite et contemporaine à l’univers québécois.”

In a highly critical review of the decision, Andrew Coyne disagrees with the reasoning of the majority, but concludes that “If ever there were an argument for a more robust process of legislative review of such appointments, this is it”.

I agree.

But legislative review of appointments need not, and indeed should not, be limited to the House of Commons.  As I suggested a few weeks ago on this blog, I wrote “Had the Harper government been required to publicly and formally consult with the Quebec government, it is almost certain that the person nominated would not have been so controversial with the risk of undermining the legitimacy of future decisions by the Supreme Court of Canada.”

A fulsome discussion of the merits of a provincial role in nominations to the Supreme Court of Canada is unlikely in the near term.  But it is plausible to imagine a Liberal government in Ottawa and a Liberal government in Quebec City.  It is also plausible to imagine that a new federal government will want to improve on the current flawed process of naming judges to the highest court in the land.  In anticipation, best perhaps to read up on both the Meech Lake Accord and on the general matter of how we name judges to the Supreme Court of Canada.



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