It seems the Supreme Court has gone out of its way not to oblige the Prime Minister, and this must be maddening for him. I do not agree with the Supremes in the case of the eligibility of Judge Nadon, and I am glad that at least one Supreme Court Justice, Mr. Moldaver, agrees with my interpretation of the Supreme Court Act.
Nevertheless, I have a malicious suggestion for an aggrieved Harper. It is simple and legal. Do not nominate a replacement from Quebec, or any province for that matter, for as long as it takes to get his point across to the Supreme Court. Just let their numbers dwindle. The workload will be more burdensome. Madame Justice Beverley MacLachlan may find it increasingly attractive to retire. Harper can always go through the motions of vetting names for the the Supreme Court, and he will be plausibly defended if he does so. But do nothing Mr. Harper. Nothing at all. Do not react, but do not appoint anyone for a while.
My reading of the judgment of the majority in the Nadon reference (In the Matter of a Reference by the Governor in Council concerning sections 5 and 6 of the Supreme Court Act, R.S.C. 1985, c. S-26) does not reveal any overt malice of wrongheaded judges wilfully misinterpreting the statute. The matter concerned the interpretation of sections 5 and 6 of the Supreme Court Act.
The statute was very recently amended, after Nadon’s nomination, to read as follows:
6.1 For greater certainty, for the purpose of section 6, a judge is from among the advocates of the Province of Quebec if, at any time, they were an advocate of at least 10 years standing at the bar of that Province.
Prior to the nomination of Mr. Justice Nadon, sections 5.1 and 6.1 did not exist.
The decision of the Supremes makes any change to the composition of the Court to be a matter beyond the competence of the federal government alone, and it would require unanimous consent of the provinces.
Sections 5 and 6 of the Supreme Court Act reflect an essential feature of the Supreme Court of Canada — its composition — which is constitutionally protected under Part V of the Constitution Act, 1982.
at paragraph 40 of the decision:
Section 6 does not displace the general requirements under s. 5 that apply to all appointments to the Supreme Court. Rather, it makes additional specifications in respect of the three judges from Quebec. One of these is that they must currently be a member of the Quebec bar.
I did not think that a nominee had to be a current member of the Quebec Bar in an earlier opinion, and I do not think this is the right decision on the fine point of interpreting sections 5 and 6. But it is clearly an interpretation that a number of reasonable judges came to, and they get to make the decisions, not me.
It gets worse for civilist judges from Quebec appointed to the federal courts. At paragraph 60 they say:
Nevertheless, s. 6 makes clear that judges of the federal courts are not, by virtue of being judges of those courts, eligible for appointment to the Quebec seats on this Court. The question is not whether civilist members of the federal courts would make excellent judges of the Supreme Court of Canada, but whether they are eligible for appointment under s. 6 on the basis of being former rather than current advocates of the Province of Quebec. We conclude that they are not.
Judge Muldaver was of my view: that imposing the requirement that the Quebec appointee must be a current member of the Bar of Quebec was not a part of section 6. At paragraph 117:
The currency requirement is not supported by the text of s. 6, its context, its legislative history, or its underlying object. Nor is such a requirement supported by the scheme of the Supreme Court Act. In short, currency has never been a requirement under s. 6 and, in my view, any attempt to impose it must be rejected.