12/11/2013 05:21 EST | Updated 02/10/2014 05:59 EST

Why Marc Nadon Was Not Fairly Appointed to the Supreme Court

The controversy over Marc Nadon's appointment to the Supreme Court of Canada reached an important milestone late last month, when the Attorney General of Canada filed its written argument for the upcoming Reference. Unsurprisingly, it says that the Supreme Court Act, properly interpreted, permits Nadon's elevation to the Court.

The AG's reasoning essentially tracks that of ex-Supreme Court Justice Ian Binnie, whose opinion was relied upon by Prime Minister Harper in the first place. In an article that has been making the rounds, Professor Carissima Mathen and I took issue with Binnie's argument, broadly claiming that it was somewhat too quick. Since it has raised its head again -- albeit with a few cosmetic changes -- it is timely to (re-)consider why there is room for doubt.

(The AG also makes a number of points about the constitutionality of changing the Act, but I am going to reserve judgment on that for now.)

The problem lies in s. 6 of the Supreme Court Act. It states: "At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province."

Nadon has been tapped on the shoulder to fill one of these three Quebec slots. But he's not a judge of the Quebec Court of Appeal or a Quebec Superior Court (at least as those terms are usually understood), and he's not a current member of the bar of Quebec. Nadon is a supernumerary judge on the Federal Court of Appeal, and he had to give up his membership in the bar when he became a judge. So if s. 6 requires a judge to be drawn from current advocates, Nadon is out of luck.

No problem, says the AG. On its reading, s. 6 requires only that a judge have once been an advocate. If that's right, then Nadon is eligible.

Why think that "advocates" could mean something other than "current advocates"? First and foremost, the AG relies on the fact that we need to read s. 6 in light of s. 5. That section says: "Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province."

It would be weird, says the AG, if six judges on the Supreme Court could be drawn from current or past members of the bar, but the three Quebec judges could be drawn only from current bar members. Why restrict the talent pool for Quebec judges, but not everyone else?

It's only a weird result, though, if we think that s. 5 and s. 6 are designed to achieve exactly the same result. Everyone agrees that s. 5 is designed simply to ensure that Supreme Court of Canada judges have expertise in the law. (This seems desirable.)

The AG wants to emphasize that s. 6 has a similar aim: it is supposed to ensure that at least three members of the Court have expertise in Quebec civil law. And one can have expertise in civil law without being a current member of the Quebec bar.

But hold on. If Parliament just wanted to guarantee expertise in Quebec civil law, why didn't it just say so? Why say that three judges must be drawn from a Quebec court or from its advocates in the first place? After all, a law professor in British Columbia may, depending on what she researches, have at least as much expertise as, say, a criminal lawyer practicing in Montreal. Yet it is the criminal lawyer, and not the professor, who is eligible under s. 6.

The AG assumes that s. 6 is only designed to guarantee expertise in Quebec civil law. It is no good pretending, though, that the Supreme Court enjoyed the sort of respect it has now. In 1874, there was a great deal of concern among members of the Quebec public and bar that an unqualified and ill-equipped Court would be reviewing the decisions of Quebec courts stocked with civil law experts.

At the time, it would have been hopelessly naïve to suppose that Quebecois lawyers would simply take Parliament's word that Supreme Court judges had the requisite expertise. They would want special assurance. And one way of instilling confidence was to require three members of the Court to be drawn from the current ranks of the Quebec bench and bar - from the people with whom judges and lawyers worked every day.

If you think that s. 6 was designed not just to guarantee civil law expertise, but also to provide assurance of that expertise to Quebec lawyers and judges, you will be more inclined to reject the AG's reading of the section.

The AG's argument is flawed in another sense. The AG insists that ss. 5 and 6 must be read together. No one to my knowledge disagrees. No one, for example, argues that a person with less than 10 years membership in the Quebec bar is eligible under s. 6. It is one thing, though, to say that s. 6 cannot be wider than s. 5; it is quite another to say that it cannot be narrower. The latter reading is perfectly consistent with s. 5, and recognizes the perceived value (at least in 1874) of providing assurance to the Quebec public and bar.

Finally, the AG makes a (frankly, silly) argument that the sort of interpretation Professor Mathen and I propose rules out the appointment of Federal Court judges. Of course it doesn't. It rules out only the appointment of Federal Court judges insofar as they are to fill one of the three Quebec slots.

The other 6 openings, governed exclusively by s. 5, can in principle be filled entirely by Federal Court judges. Indeed, they can be filled entirely by Federal Court judges who were, like Nadon, members of the bar of Quebec. Thus, Mr. Justice Le Dain was a perfectly eligible candidate for the Supreme Court, even though he had been a member of the Quebec bar and was appointed out of the Federal Court, because there were three other judges from Quebec on the Court at the time of his appointment.

So there it is. There is nothing inherently unreasonable in the AG's conclusion that s. 6 permits Nadon's appointment. But it's a closer call than they let on.