The Supreme Court’s decision in the Nadon Reference is a triumph for the Supreme Court of Canada and a stunning defeat for the government of Stephen Harper. The Harper government looked to the Court to bail it out of a jam and the Supreme Court refused. Instead, the Court demonstrated and declared its constitutional independence and made it more likely that appointments to the high court will be more carefully vetted through a more open appointments process.
For most of its existence, the Supreme Court of Canada was an institution that did not even deserve its name. Until 1949, it wasn’t even the highest court for Canadians – the Judicial Committee of the Privy Council was. The Supreme Court did not really start to come of age until the enactment of the Canadian Charter of Rights and Freedoms in 1982.
Well into the 1960s, the federal government would often call on individual justices to do various jobs for it: to serve as commissioners of inquiry; as delegates to conferences; etc. At times, the federal government treated the Supreme Court as an errand boy. In the Nadon Reference, Chief Justice Beverly McLachlin and the Supremes showed that they are nobody’s errand boy.
The Court demonstrated its independence from government in having the moxie to invalidate the Prime Minister’s appointment of Justice Nadon. But the Court also declared its constitutional independence, holding that the Supreme Court is now protected under the Constitution and cannot be changed except through formal constitutional amendment. The “composition of the court” – which includes the existence of the Court itself as well as the requirement that three judges must come from the Quebec Court of Appeal, the Quebec Superior Court or existing members of the Quebec bar – can only be changed by unanimous agreement of the federal government and all of the provinces. It is safe to say that is highly unlikely in the foreseeable future.
Justice Nadon will never sit on a Supreme Court case. He should never have been put through this. The government should have brought the reference prior to appointing him or even announcing his name publicly. The reference has exposed the deep and vast flaws in the government’s appointment process to the Supreme Court. It was supposed to bring transparency and accountability but instead it has brought opaqueness and obfuscation. All of the political parties are responsible for participating in a process that could so utterly fail in such basic vetting function that it required the Supreme Court to adjudicate the validity of the appointment.
Not only is the decision the end of the road for Mr. Nadon’s Supreme Court career, it should also be the end of the Harper government’s defective appointment process.
Adam Dodek is Vice-Dean Research and Associate Professor at the University of Ottawa’s Faculty of Law (Common Law Section). He is a founding member of the Faculty’s Public Law Group and the author of the book The Canadian Constitution.