Faced with an unprecedented challenge to the legitimacy of the latest appointment to Supreme Court, Justice Minister Peter MacKay is rewriting the law that governs such choices.
At the same time, Mr MacKay says he is also asking the country's highest court to determine whether the appointment of Justice Marc Nadon is legal under the Supreme Court Act.
Justice Nadon was chosen from the Federal Court of Appeal, and the law is unclear on whether judges from that court qualify for the Supreme Court. He was sworn in last month, but stepped aside before hearing a case because of a legal challenge. Toronto lawyer Rocco Galati argues that, under the Supreme Court Act, a judge from the Federal Court's trial or appeal divisions is not eligible to be on the top court.
Quebec announced it intends to challenge the appointment, too, because Judge Nadon has not lived in the province for several years.
The court has been hearing cases this fall with eight judges rather than the full complement of nine. That opens the possibility of a tie.
The situation could continue for several months, or perhaps more than a year. Meanwhile, the court has just two judges in action from Quebec, one less than the minimum number guaranteed in the Supreme Court Act.
Mr. MacKay's request that the court determine if the appointment is permitted is an attempt to speed matters. He also will add "declaratory provisions" to the Supreme Court Act to say expressly that any lawyer with 10 years standing at the bar of their province, and specifically Quebec, is eligible for appointment to the Supreme Court. The new wording is in a budget implementation bill tabled in the House on Tuesday.
"Our government will defend the eligibility of long-standing members of the bar in all provinces and territories to sit on the highest court in Canada," Mr. MacKay said. He did not indicate precisely what question or questions he will ask the Supreme Court.
Adam Dodek, a constitutional expert at the University of Ottawa, said once the new wording becomes law, Justice Nadon could decide to hear cases immediately. But he said he is surprised because "usually you seek a reference [to the Supreme Court] in advance of legislative action, not at the same time."
Osgoode Hall law professor Jamie Cameron called it "unseemly for the government to amend the legislation, apparently, to influence the court's decision."
Mr. Galati called the new wording a "cynical end-run around the rule of law. The fact that they're amending it now just confirms my reading that they couldn't appoint Federal Court judges before."
He also said the government needs to ask the court whether a constitutional amendment is necessary, which is much harder to achieve. He said the Constitution Act requires an amendment when a change is made to the Supreme Court's composition. If that question is not put to the Supreme Court, he said he will continue his challenge of the appointment in Federal Court.
The Supreme Court seems virtually certain to agree to hear the reference case, and the government could ask the court to expedite the hearing. In 2008, the court granted leave to appeal in a case involving BCE Inc. on June 2, heard the case on June 17 and decided it on June 20.
Emmett Macfarlane, a political scientist at the University of Waterloo, said the new wording for the Supreme Court Act is meant to tell the court "that this is Parliament's interpretation" of the law.
He called the controversy over the appointment of Justice Nadon "completely avoidable," and said the government clearly anticipated it, as shown when it asked retired Supreme Court judges Ian Binnie and Louise Charron, and constitutional scholar Peter Hogg, for an opinion on the appointment of judges from the Federal Court to the Supreme Court. All agreed the Supreme Court Act permits it. "They could have waited, and amended the Supreme Court Act," before making the appointment, Prof. Macfarlane said.
Three judges, including current Justice Marshall Rothstein, were previously appointed from the Federal Court of Appeal.