Canada: Principles Heretofore Unknown

Last Updated: April 11 2014
Article by Stephen Mulrain

On March 21, 2014, the Supreme Court of Canada released its decision on the eligibility of Justice Marc Nadon, a supernumary justice of the Federal Court of Appeal and a former Advocate of 10 years seniority in Quebec, to be appointed as one of its members in a seat designated for a judge from Quebec. A majority of 6 judges found that Justice Nadon was not eligible for appointment under Section 6 of the Supreme Court Act, while Justice Moldaver, writing in dissent, found that he was.

The decision turned on the interpretation of Sections 5 and 6 of the Act, which read as follows:

5. [Who may be appointed judges] Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.

6. [Three judges from Quebec] At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.

The majority begins its judgment by noting that the case raises issues that, on their face, appear only to involve statutory interpretation, but in fact engage fundamental issues about the Court's place in Canada's Constitutional order.

The fundamental disagreement between the majority and Justice Moldaver's interpretation is whether the word "among" in Section 6 refers to qualified persons from Section 5, or connotes a currency requirement for qualification of judges appointed under that section. The majority determined that, while Section 6 should be read in conjunction with Section 5 in order to determine which advocates in Quebec are eligible for appointment, but not so as to make former advocates eligible. This "cherry-picking" is a principle of statutory interpretation "hitherto unknown" in Canadian law, as it was characterized by Justice Moldaver in his dissenting opinion.

The interpretation favoured by the majority also has the adverse effect of creating an ambiguity in the law by raising the question of whether an advocate of 10 years seniority who was no longer practicing in Quebec could simply rejoin the bar in that province and thus render him or herself eligible for appointment. The majority refused to answer this question, as the issue of this ambiguity had not been raised in the constitutional reference. The logical inconsistency of this ambiguity indicates the extent to which the majority has shaped its interpretation of the Act to achieve its outcome. The refusal of the majority to address this issue belies the difficulty of explaining the inconsistency, and suggests that the majority can find no principled basis for it.

The majority decision in this reference can be seen as part of a continuing development within the Supreme Court of Canada's jurisprudence wherein the Court is establishing itself as a separate head of power in the Canadian system of government. This was further reinforced by the majority's ruling that an amendment clarifying eligibility for appointment under Section 6 would require unanimous consent of the provinces. With respect, this departure from the traditions of constitutional monarchy in Canada is to be lamented. This decision further chips away at the supremacy of Parliament and the prerogatives of the Crown. As Justice Moldaver points out, the majority has strayed into a political question rather than implementing the law on a plain reading of the statute. One cannot help but wonder at the motives of the majority in reaching this contorted conclusion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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