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Reference re Supreme Court Act, ss. 5 and 6

Following the challenge to the legality of the appointment of Justice Marc Nadon, a Federal Court of Appeal judge, as one of the Québec judges on the Supreme Court of Canada, the federal government asked the Supreme Court, in a reference issued on October 22, 2013, to rule on two questions related to the appointment that was being challenged. The first question to be addressed was whether or not the Prime Minister could appoint a former lawyer as one of the Québec judges on the Supreme Court of Canada. The second question to be addressed was whether or not the Parliament of Canada has the authority to legislate the eligibility requirements for the appointment of Supreme Court judges as set out in the Supreme Court Act, either to modify these requirements or to adopt declaratory provisions regarding their interpretation.

This second question made express reference to the declaratory provisions targeting sections 5 and 6 of the Supreme Court Act and tabled before the Parliament of Canada on the same date of October 22, 2013.

Therefore, the Supreme Court had to rule on two separate issues, that is, the interpretation of the eligibility requirements for appointment currently in force, and the constitutional jurisdiction to modify these conditions. Several interveners participated in this reference, including the Attorneys General of Québec and Ontario.

The Court handed down its opinion on March 21, 2014: The majority of judges (six out of seven) concluded that the appointment of Justice Nadon was void ab initio, as the latter did not meet the eligibility requirements for appointment set out in section 6 of the Supreme Court Act, which stipulates that those appointed shall be a judge of the Superior Court of Québec or the Appeal Court of Québec, or a member of the Barreau du Québec at the time of their appointment. It concluded that this interpretation reflected the will of parliamentarians, dating back to 1875 when the Supreme Court was created, to provide a special regime for Québec due to its civil law tradition and distinct social values, with the purpose of promoting the legitimacy of the Court to Quebecers.

As pertains to the second question, the Court unanimously concluded that Québec’s representation on the Supreme Court was protected under section 41 of the Constitution Act, 1982 and that the province of Québec therefore has veto power over this issue. The majority of judges also concluded that any significant amendment to the eligibility requirements for appointment required unanimity and that other essential characteristics of the Court could only be amended through the 7/50 formula (under section 42 of the Constitution Act, 1982). Therefore, the unilateral amendment of section 6 of the Supreme Court Act previously tabled before the Parliament of Canada and finally adopted on December 12, 2013, was ruled unconstitutional.

To consult the Supreme Court’s opinion:

The following link opens in another window. Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21.

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