The Tenth Justice: Judicial Appointments, Marc Nadon, and the Supreme Court Act Reference.

• Author: Cameron, Jamie

THE "TENTH" JUSTICE (1)

Appointments to the Supreme Court of Canada are a prerogative of the prime minister, constrained only by minimal, threshold criteria of eligibility found in the Supreme Court Act (SCA). (2) When Prime Minister Harper appointed a journeyperson, supernumerary member of the Federal Court of Appeal to one of Quebec's three positions on the Court, those criteria provided collateral grounds to attack an appointment that was perceived as lacking in merit. At the time, there was abundant speculation that Prime Minister Harper named Justice Nadon in the hope that he would support the government's positions and perhaps weaken the Court's authority.

The spectacle began after Marc Nadon was appointed to the Supreme Court on October 2, 2013 and sworn in a few days later on October 7. While his modest reputation as a jurist led to complaints that Nadon was not well qualified, the appointment proved vulnerable on legal grounds. The question under the SCA was whether Quebec's appointments to the Court were open only to current judges (i.e. of the Superior Court or Court of Appeal) and members of the Barreau du Quebec. That was salient because Justice Nadon was a former member of the Quebec bar, having left in 1993 to serve on the Federal Court, Trial Division before being appointed to the Federal Court of Appeal in 2001.

Amid a rising crisis, the Harper government inserted a corrective amendment to the SCA in an omnibus bill and referred two questions to the Supreme Court. (3) While Justice Rothstein's recusal left seven members of the Court deciding the legality of a colleague's appointment, Justice Nadon was excused from duties, prohibited from having contact with the other judges, and banished from the Supreme Court building. (4) On March 21, 2014, with Justice Moldaver dissenting, the Court held that former members of the Quebec judiciary and bar are not eligible for appointment to the Supreme Court. (5) In addition, the Court held that the rules for Supreme Court appointment are subject to Part V of the Constitution Act, 1982 and subsection 4i(d)'s requirement of unanimity between the federal government and provinces. (6)

The Reference re Supreme Court Act (Reference) meant that Justice Nadon's appointment was void ab initio--or non-existent--and to this day the Supreme Court's website neither acknowledges nor recognizes that Marc Nadon was ever a member of the Court. (7) After a fashion, he is the "tenth justice" of the Court because the order-in-council appointing him was never revoked, and, as he has joked, he may still be a Supreme Court judge "in law." (8) Meanwhile, in May 2014 the prime minister and minister of justice's accusations against then-Chief Justice McLachlin--accusing her of interfering with the appointment process--placed an ugly asterisk on the process. (9)

Scholarship spotlighting landmark Supreme Court decisions and pivotal moments of institutional history is invaluable. The Tenth Justice is an outgrowth of the authors' earlier work and Professor Mathen's appearance at the House Standing...