Reference ReSupreme Court Act, ss. 5 and 6, 2014 SCC 21 is a decision of the Supreme Court of Canada concerning the eligibility of members of the Quebec courts and the Quebec Bar to be appointed to the three seats on the Supreme Court reserved for Quebec. The case also considers the constitutional status of the Supreme Court, holding that the Court has been constitutionally entrenched by the Constitution Act, 1982, and that the composition of the Court, including eligibility for appointment, can only be amended by unanimous consent of the House of Commons, Senate and all provincial legislative assemblies.[2]
In the Matter of a Reference by the Governor in Council concerning sections 5 and 6 of the Supreme Court Act, R.S.C. 1985, c. S-26, as set out in Order in Council P.C. 2013-1105 dated October 22, 2013
Only current members of the superior courts of Quebec or current members of the Bar of Quebec with at least ten years' standing may be appointed to the Quebec seats on the Supreme Court. An amendment to the Supreme Court Act to permit appointments of former members of the Bar of Quebec is unconstitutional.
Court membership
Chief Justice
McLachlin CJ
Puisne Justices
LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ
Reasons given
Majority
McLachlin CJ and LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ
Dissent
Moldaver J
Rothstein J took no part in the consideration or decision of the case.
The case arose when the federal government appointed Justice Marc Nadon to the position of puisne justice of the Supreme Court of Canada, on October 3, 2013.[3] At the time of the appointment, Justice Nadon was a supernumerary judge of the Federal Court of Appeal, having served on the federal courts for over 20 years. Justice Nadon had been a member of the Quebec Bar prior to his appointment.
Ontario lawyer Rocco Galati challenged the appointment in the Federal Court of Canada, arguing that Justice Nadon was not eligible to be appointed, as he was neither a member of one of the superior courts of Quebec, nor a current member of the Bar of Quebec. The Quebec government also questioned the appointment.
In response, the federal Parliament passed an amendment to the Supreme Court Act, which declared that the requirement that an appointee be a member of the Quebec bar also included former members of the Bar.[4] The federal government then referred the issue to the Supreme Court as a reference question under the Supreme Court Act.[5] The federal government argued that the requirement that Quebec judges be appointed from among the bar of Quebec included former members of the bar.
The Supreme Court Act and the Quebec Seats on the Courtedit
When the Supreme Court was created in 1875, it was composed of six judges, two of whom were required to be appointed from the superior courts of Quebec or from the Bar of Quebec,[6] in order to ensure representation of Quebec's civil law jurisdiction on the Court. When the Court was expanded to nine judges in 1949, the number of Quebec judges was increased to three.[7] This provision continues to apply under the Supreme Court Act.[8]
Section 5 of the Act holds that, in general, Court appointees must either have been members of a provincial superior court, or must have at least ten years' standing at a provincial bar. Section 6 then provides a particular rule for Quebec, requiring that the three judges from Quebec must be appointed from either the superior courts of Quebec, or "among the advocates of that province." The general rule in section 5 clearly included former members of the bars of the provinces as eligible to be appointed. The issue was whether the wording of section 6 restricted that general rule to current members of the bar of Quebec for the Quebec seats on the Court.
Decision of the Courtedit
The Supreme Court ruled, by a 6–1 decision,[3] that only current members of the Quebec superior courts and current members of the bar of Quebec are eligible to be appointed to the Quebec seats on the Supreme Court.
Majority decisionedit
The majority decision was attributed to all six of the judges in the majority, rather than to a single judge. The Court held that the amendment to the Supreme Court Act was not simply declaratory of the previous law but an actual change to the composition of the Court, and was therefore ultra vires federal Parliament. A change to the composition of the Court can only be made by a unanimous constitutional amendment under s. 41 of the Constitution Act, 1982. The appointment of Justice Nadon was therefore void ab initio. He remained a supernumerary judge of the Federal Court of Appeal.
Dissent by Justice Moldaveredit
Justice Moldaver dissented. He argued that section 5 and section 6 of the Supreme Court Act had to be read together, and that the requirement in section 6 that Quebec appointees be from "among the advocates of that province" included former members of the Quebec bar, the same as for appointments from the other provinces under section 5.
Recusal by Justice Rothsteinedit
Justice Rothstein did not participate in the decision. He had been appointed from the Federal Court of Appeal, leading to the possibility that his right to be appointed might be called into question. However, since he had previously been a member of the bar of Manitoba, the decision did not leave his appointment in doubt, since he qualified under the general appointee principle set out in section 5 of the Supreme Court Act.
Referencesedit
^SCC Case Information - Docket 35586 Supreme Court of Canada
^Constitution Act, 1982, s. 41(d); Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
^ abMathen, Carissima (March 21, 2014). "The Nadon ruling hits like an earthquake". Ottawa Citizen. Postmedia Network. Retrieved March 22, 2014.
^Supreme Court Act, ss. 5.1, 6.1, as enacted by the Economic Action Plan 2013 Act, No. 2, SC 2013, c. 40, ss. 471, 472.
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This article relies excessively on references to primary sources Please improve this article by adding secondary or tertiary sources Find sources Reference Re Supreme Court Act ss 5 and 6 news newspapers books scholar JSTOR March 2014 Learn how and when to remove this template message Reference Re Supreme Court Act ss 5 and 6 2014 SCC 21 is a decision of the Supreme Court of Canada concerning the eligibility of members of the Quebec courts and the Quebec Bar to be appointed to the three seats on the Supreme Court reserved for Quebec The case also considers the constitutional status of the Supreme Court holding that the Court has been constitutionally entrenched by the Constitution Act 1982 and that the composition of the Court including eligibility for appointment can only be amended by unanimous consent of the House of Commons Senate and all provincial legislative assemblies 2 Reference Re Supreme Court Act ss 5 and 6Supreme Court of CanadaHearing 15 January 2014 Judgment 21 March 2014Full case nameIn the Matter of a Reference by the Governor in Council concerning sections 5 and 6 of the Supreme Court Act R S C 1985 c S 26 as set out in Order in Council P C 2013 1105 dated October 22 2013Citations2014 SCC 21 LEXUM 2014 SCC 21 CanLII Docket No 35586 1 HoldingOnly current members of the superior courts of Quebec or current members of the Bar of Quebec with at least ten years standing may be appointed to the Quebec seats on the Supreme Court An amendment to the Supreme Court Act to permit appointments of former members of the Bar of Quebec is unconstitutional Court membershipChief JusticeMcLachlin CJPuisne JusticesLeBel Abella Rothstein Cromwell Moldaver Karakatsanis and Wagner JJReasons givenMajorityMcLachlin CJ and LeBel Abella Cromwell Karakatsanis and Wagner JJDissentMoldaver JRothstein J took no part in the consideration or decision of the case Laws appliedSupreme Court Act ss 5 and 6 Contents 1 Background 2 The Supreme Court Act and the Quebec Seats on the Court 3 Decision of the Court 3 1 Majority decision 3 2 Dissent by Justice Moldaver 3 3 Recusal by Justice Rothstein 4 References 5 External linksBackground editThe case arose when the federal government appointed Justice Marc Nadon to the position of puisne justice of the Supreme Court of Canada on October 3 2013 3 At the time of the appointment Justice Nadon was a supernumerary judge of the Federal Court of Appeal having served on the federal courts for over 20 years Justice Nadon had been a member of the Quebec Bar prior to his appointment Ontario lawyer Rocco Galati challenged the appointment in the Federal Court of Canada arguing that Justice Nadon was not eligible to be appointed as he was neither a member of one of the superior courts of Quebec nor a current member of the Bar of Quebec The Quebec government also questioned the appointment In response the federal Parliament passed an amendment to the Supreme Court Act which declared that the requirement that an appointee be a member of the Quebec bar also included former members of the Bar 4 The federal government then referred the issue to the Supreme Court as a reference question under the Supreme Court Act 5 The federal government argued that the requirement that Quebec judges be appointed from among the bar of Quebec included former members of the bar The Supreme Court Act and the Quebec Seats on the Court editWhen the Supreme Court was created in 1875 it was composed of six judges two of whom were required to be appointed from the superior courts of Quebec or from the Bar of Quebec 6 in order to ensure representation of Quebec s civil law jurisdiction on the Court When the Court was expanded to nine judges in 1949 the number of Quebec judges was increased to three 7 This provision continues to apply under the Supreme Court Act 8 Section 5 of the Act holds that in general Court appointees must either have been members of a provincial superior court or must have at least ten years standing at a provincial bar Section 6 then provides a particular rule for Quebec requiring that the three judges from Quebec must be appointed from either the superior courts of Quebec or among the advocates of that province The general rule in section 5 clearly included former members of the bars of the provinces as eligible to be appointed The issue was whether the wording of section 6 restricted that general rule to current members of the bar of Quebec for the Quebec seats on the Court Decision of the Court editThe Supreme Court ruled by a 6 1 decision 3 that only current members of the Quebec superior courts and current members of the bar of Quebec are eligible to be appointed to the Quebec seats on the Supreme Court Majority decision edit The majority decision was attributed to all six of the judges in the majority rather than to a single judge The Court held that the amendment to the Supreme Court Act was not simply declaratory of the previous law but an actual change to the composition of the Court and was therefore ultra vires federal Parliament A change to the composition of the Court can only be made by a unanimous constitutional amendment under s 41 of the Constitution Act 1982 The appointment of Justice Nadon was therefore void ab initio He remained a supernumerary judge of the Federal Court of Appeal Dissent by Justice Moldaver edit Justice Moldaver dissented He argued that section 5 and section 6 of the Supreme Court Act had to be read together and that the requirement in section 6 that Quebec appointees be from among the advocates of that province included former members of the Quebec bar the same as for appointments from the other provinces under section 5 Recusal by Justice Rothstein edit Justice Rothstein did not participate in the decision He had been appointed from the Federal Court of Appeal leading to the possibility that his right to be appointed might be called into question However since he had previously been a member of the bar of Manitoba the decision did not leave his appointment in doubt since he qualified under the general appointee principle set out in section 5 of the Supreme Court Act References edit SCC Case Information Docket 35586 Supreme Court of Canada Constitution Act 1982 s 41 d Schedule B to the Canada Act 1982 U K 1982 c 11 a b Mathen Carissima March 21 2014 The Nadon ruling hits like an earthquake Ottawa Citizen Postmedia Network Retrieved March 22 2014 Supreme Court Act ss 5 1 6 1 as enacted by the Economic Action Plan 2013 Act No 2 SC 2013 c 40 ss 471 472 Supreme Court Act s 53 Supreme and Exchequer Court Act SC 1875 c 11 s 4 Act to amend the Supreme Court Act SC 1949 2nd Sess c 37 ss 1 3 Supreme Court Act s 6 External links editReference re Supreme Court Act ss 5 and 6 Supreme Court Act RSC 1985 c S 26 Retrieved from https en wikipedia org w index php title Reference Re Supreme Court Act ss 5 and 6 amp oldid 1048631777, wikipedia, wiki, book, books, library,
