Marc Nadon ruling: Supreme Court defends itself and the provinces

The Supreme Court of Canada may not have wanted to be put in a position of ruling on itself, but since the government asked — the high court used the opportunity to clear up some things.

In rejecting Prime Minister Stephen Harper's appointee, the court asserted its independence

On Friday the Supreme Court of Canada rejected Prime Minister Stephen Harper's latest appointee to the court. (CBC)

Well, since you asked…

As one intervener put it, the Supreme Court was put in an "uncomfortable position," by having to rule on itself.

But since the government asked, the justices of the high court answered in a way that will likely mean they won't be put in an "uncomfortable position" again for quite some time.

Friday's decision on who may or may not be considered for one of Quebec's three positions on the court's bench was remarkable for many reasons beyond simply refusing the government's hand-picked choice for one of the spots.

Fundamental characteristics of the court

The court has now enshrined in law that its fundamental characteristics cannot be changed on a whimsy by the government of the day and also that recognizing Quebec's distinct character (certainly when it comes to law) is vital.

"It consecrates the constitutional nature of the court," says constitutional lawyer Julius Grey.

The court worried that if it had allowed the government to change the eligibility rules for Supreme Court justices, "It would mean that the court would have less protection than at any other point in its history since the abolition of appeals to the Privy Council."

The notwithstanding clause is unaffected, the principle of "supremacy of Parliament" remains intact — but the court is attempting to ensure its role and independent voice in our democracy remains intact.

Provincial unanimity

The best way to do that? Make sure any proposed changes are so self-evident, and so well discussed, that every provincial legislature signs off on them.

"The judiciary has ceased to be something in the hands of the federal government and it has become an independent arbiter," adds Grey, "which, therefore, has to be treated as a constitutional player and cannot be subjected to sudden modifications."

The involvement of the provinces was also a key aspect of the court's other main message in this decision: Quebec's distinct legal system must not only be recognized and included, but be seen to be recognized and included.

"Requiring the appointment of current members of civil law institutions was intended to ensure not only that those judges were qualified to represent Quebec on the court," the judges said, "but that they were perceived by Quebecers as being so qualified."

Include, not assimilate

This goes back to Confederation; the efforts to include Quebec — not assimilate it — meant giving it room to maintain its culture and traditions. The court says these compromises would be "undermined" by failing to recognize Quebec's legal system.

"Its (the eligibility requirements) function is to limit the Governor in Council's otherwise broad discretion to appoint judges," the justices wrote, "in order to ensure expertise in civil law and that Quebec’s legal traditions and social values are reflected in the judges on the Supreme Court, and to enhance the confidence of the people of Quebec in the Court."

Before anyone can start hollering about "activist judges" and "judge-made-laws," the court points out that the special considerations for judges from Quebec go back to 1875 — and have never changed.

That's significant, the court points out, because it is Parliament that wrote the rules and parliamentarians that have tinkered with them for well over a century — but evidently decided the rules were fine.

Until sometime last fall, when Prime Minister Stephen Harper announced Marc Nadon's nomination.


James Fitz-Morris

Parliament Hill

James Fitz-Morris covered federal politics in CBC's Parliament Hill bureau from 2006 to February, 2016.