Justice Nadon, Canadian constitutionalism and cherry blossoms

There is more to the Supreme Court’s rejection of Justice Nadon than a crude politics. But the politics is so compelling, well nigh prurient, that it is tempting to overlook the legal arguments themselves, or to consider that this was a case with ‘no right answer’. This is absolutely not so.

Justice Nadon was appointed to the Supreme Court of Canada to one of the three places on that Court reserved for judges from Quebec. Prior to his appointment, he was a judge on the Federal Court of Appeal. Long ago, he practiced law in Quebec for many years. Knowing that questions about this appointment were brewing, the government sought to amend the key provisions of the Supreme Court Act using the omnibus budget legislation passed last fall.

After Toronto immigration lawyer Rocco Galati challenged Nadon’s appointment, the government stepped into the fray directly by asking the Supreme Court itself to use its ‘reference’ jurisdiction to answer two questions. The first: can a Federal Court of Appeal judge and former Quebec lawyer represent Quebec on the Supreme Court; the second: can the government amend Supreme Court of Canada appointment rules with ordinary acts of Parliament.

As we all now know, the Court answered ‘NO’ to both of these questions.

But it is important that we also understand why. In both cases, the why answers boil down to the rule of law, each one in a different way.

Let’s start with the second question because it is easier and the answer is more richly textured and more compelling. The Supreme Court has now ruled that provisions relating to its ‘composition’ (which has been left undefined) can only be amended with the unanimous support of all provinces and Parliament. That’s an enormously high threshold. This formula has never been used in Canada.

In coming to this conclusion, the majority judges canvassed the history of the Supreme Court and concluded that each major step in the evolution of the Canadian state has made the Supreme Court more important. Essentially, this comes down to constitutionalism in a federal system. If a federal system is going to work, an independent arbiter is needed to settle disputes between orders of government, and to counter majoritarian impulses.

A similar argument can be made about ‘democracy’ and about ‘rights’. Both of these key principles are malleable, open to both interpretation and abuse. Any system that enshrines them needs an arbiter to protect them. That arbiter needs to be beyond reach of the government of the day.

Of course one could say that the Court’s decision looks self-serving, but on this question, there really was no other answer. A court whose core rules can be amended by ordinary legislation (let’s just pretend it was not a budget omnibus) lacks the capacity to protect the constitution and the rule of law. That is, lacks the capacity to do the hard things, without which the capacity to do the easy things just does not matter that much.

The first question, whether a Federal Court of Appeal judge can take up one of the Quebec seats, was in many ways much harder to answer. In this case, the Court’s answer was twofold. The first part of the answer relied on literalism: the Supreme Court Act does not allow this so the answer is no. But, to its great credit, the Court did not stop here. Literalism often does not carry the day, and often for very good reasons.

The second part of the answer came down to having some understanding of the historical comprise that formed Canada, and the evolution of Quebec’s place in Canada. Reading the rules without an eye to history can get you to ‘no’. Reading the rules with an eye to this history enriches that ‘no’ with a resilience means this decision will be taught in Canadian law schools for decades to come. Maybe longer.

None of this is about a battle between the Supreme Court and the government, let alone the personalities currently occupying roles in those institutions.

The nub of Justice Moldaver’s dissent on this first question was that the government could comply with the letter of the law by quickly returning Justice Nadon to a Quebec court (or he could himself return to the bar), and he could then be appointed pretty much immediately, and that idea was so silly that the law should be read to make this unnecessary. This is, in fact, a very good point and serves to emphasize that in its answer to the first question the majority has taken a literalist position that needs the historical read to immunize it from criticism of putting form over substance.

This is why the first answer is about the rule of law: when the tough questions come, the letter of the law matters. Here the Court has stuck with the letter of the law. And found justification in our constitutional fibre for doing so.

I set these two questions as an assignment for my first year law students in December last year. They made for a perfect first year assignment, engaging the big ideas of our system of governance and providing an ideal setting for exploring the rule of law and the role of courts.

Almost every student predicted accurately how the second question would be answered. (Remember, it’s the easier question.). On the first question, the students split equally. Most of my predominantly Western Canadian first year class did not find much place in their analysis for an understanding of Quebec’s unique history in Canada. Consequently, for many of them, the literal reading lost out to pragmatism the Justice Moldaver embraced.

The ruling in this case is a victory for constitutionalism. A victory for the rule of law over expediency. And a victory for a vision of Canada that it is easy to forget out here under the cherry blossoms that have replaced the February crocuses.

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