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Supreme Court situation exposes flaws

By: David Haas

  |  Posted: Wednesday, Apr 16, 2014 06:00 am

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The attempt to appoint Marc Nadon to the Supreme Court of Canada ignored obvious difficulties with his eligibility flowing from the wording of the Supreme Court Act. To be appointed to one of the three Quebec positions on the court he had to be “from among the advocates of that Province.”

That clearly implies present status, particularly when the general provision applicable to other provinces is worded “is or has been” a lawyer. Nadon was a member of the Quebec Bar for nearly 20 years, but ceased being one when he was appointed to the Federal Court in 1992. Status as a lawyer comes from membership in the professional governing body for the province. A lawyer who becomes a judge loses that membership, ceases to be a lawyer. The Supreme Court of Canada ruled Nadon did not meet the requirement.

A former judge can apply for reinstatement as a lawyer. At the Supreme Court of Canada the single dissenting opinion favouring Nadon’s appointment thought there was “no practical sense” in the idea that Nadon could lose his eligibility when he became a judge yet regain it by becoming a member of the bar for just a day.

But there is no automatic right to reinstatement – it is a decision for the professional body. Nadon could have resigned from the Federal Court of Appeal and sought re-admission to the Quebec Bar. It would then have been open to that body to decline to admit him – perhaps on the ground that he was too long removed from Quebec’s legal system, a consideration seemingly inherent in the provision restricting appointment to current Quebec lawyers.

After Nadon’s appointment had been announced, the government sought to cure the problem of his eligibility by an amendment to the Supreme Court Act. This manoeuvre clumsily avoided a clear constitutional provision that any change in the provisions for the Supreme Court’s composition requires a constitutional amendment. The Supreme Court punted the change.

Another questionable aspect of Nadon’s nomination was that, two-and-a-half years earlier, he had gone on supernumerary status with the Federal Court of Appeal. Instead of participating fully in the court’s case load, a supernumerary judge performs such special judicial duties as may be assigned by the chief justice. Under questioning by a parliamentary committee, Nadon acknowledged a lighter workload might result – which in reality is the idea. The Supreme Court of Canada does not have a supernumerary system but does have a notoriously heavy workload. There is an obvious question whether someone who had already opted for what is often referred to as a judicial semi-retirement should have been considered for a far more arduous court position.

That aspect of the Nadon case spotlights a wider, more troublesome issue. A supernumerary judge continues to enjoy an unreduced salary (presently $288,100 annually) for performing reduced duties. Some form of daily pro rata system or other reduced payment scheme should be considered.

Writer David Haas is a long-term St. Albert resident.


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