The Court has spoken: the Nadon decision

The Supreme Court of Canada has handed the Harper government a setback over his attempt to have Marc Nadon appointed to that same court: Supreme Court says non to Nadon; federal government 'genuinely surprised'.

By rejecting Justice Marc Nadon, Harper's sixth and most recent pick for the nine-member bench, the remaining Supremes laid down constitutional markers that could proscribe the government's future plans for Senate reform, electoral changes and the appointment of judges.

Not only was Nadon, a semi-retired Federal Court of Appeal justice, found to not have the proper qualifications laid out in the Supreme Court Act for a Quebec nominee to the top bench, but the government's efforts to rewrite the rules were thwarted.

The government does not have the authority to amend the Act, wrote six of seven judges, saying "the unanimous consent of Parliament and all provincial legislatures is required for amendments to the Constitution relating to the 'composition of the Supreme Court.'"

Unlike its American counterpart, the Constitution Act, 1867, originally titled the British North America Act, did not establish a supreme court for Canada. Section 101 of that act went only so far as to authorize the federal government to establish a "General Court of Appeal for Canada." Even when a Supreme Court was established eight years later, it was not technically supreme at all, since it was still possible to appeal its decisions to the Judicial Committee of the Privy Council in London, in effect the highest court of appeal in the British Empire. It became supreme in reality only in 1949, when all appeals to the JCPC were abolished, under the authority granted to Parliament by the Statute of Westminster of 1931. Even then the last JCPC decision relevant to Canada was handed down as late as 1959, because the appeal at issue was initiated more than ten years earlier.

Andrew Coyne believes the Nadon decision was a bad one based on a strained reading of the Supreme Court Act, which requires that three of the nine justices be appointed from the bar of Québec, because of that province's unique civil code which is based on the Roman law rather than the English common law. I will not comment on that particular angle, as I am more interested in what the court's decision does to the Supreme Court Act itself. According to the text of the decision:

The Supreme Court Act was enacted in 1875 as an ordinary statute under the authority of s. 101 of the Constitution Act, 1867 (S.C. 1875, c.11). However, as we explain below, Parliament’s authority to amend the Act is now limited by the Constitution. 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.

Canada's constitution is not embodied in a single document, as in the United States. In general, there can be said to be four sources of our constitution. First and most obvious are our Constitution Acts, 1867 to 1982, which are entrenched documents protected by more than one amending formula necessitating a qualified majority or, in some cases, unanimity to change. Second are so-called organic statutes, ordinary acts of Parliament whose subject matter is of a constitutional nature. These would include the Supreme Court Act, the Canadian Bill of Rights and the Canada Elections Act. The third source can be found in court decisions made under these acts, and the fourth in the unwritten conventions crucial to the functioning of parliamentary government in a Westminster-style political system.

As mentioned above, the Constitution Act, 1982, makes provision for amending our Constitution Acts. In general, amendment requires the approval of both chambers of Parliament and the provincial legislatures of at least seven provinces containing at least 50 percent of Canada's population. However, some matters, including "the composition of the Supreme Court of Canada" (41[d]), require unanimous approval by the two federal parliamentary chambers and all ten provincial legislatures.

Not knowing the history of judicial interpretation of this section, I cannot say whether this current reference decision represents something new, but what stands out for me is that it appears to elevate the Supreme Court Act to the status of an entrenched constitution act rather than a mere organic statute on a par with other statutes. On the other hand, if the unanimity requirement applies only to "the composition of the Supreme Court of Canada," then perhaps only that part of the Supreme Court Act that touches on that issue can be said to have entrenched status.

Better legal minds than mine may already have weighed in on this issue. I've not researched it myself, and I probably will not be doing so in the near future, but I thought I would at least raise it here to see what sort of response, if any, it might elicit.