Appointments to the Supreme Court of Canada
Alessandra Taco
100958271
Laws2501 A
Nov. 17 2014
Prof. Nick A. Milanovic
On Sept. 30, 2013, Prime Minister Stephen Harper announced the nomination of Justice Marc Nadon to the Supreme Court of Canada.1 The process to appoint Justice Nadon to the Supreme Court of Canada began after Justice Morris Fish submitted his resignation from the court, with the effective date of August 31, 2014.2 On October 7, 2013, Justice Nadon was sworn in as a judge of the Supreme Court of Canada, replacing Justice Fish.3 That same day, lawyer Rocco Galati challenged Justice Nadon’s appointment at the Federal Court.4 On March 21, 2014 the Supreme Court of Canada stated that the appointment of justice Nadon was not constitutional.5 The Supreme Court arrived to that decision after examining sections 5 and 6 of the Supreme Court Act, which specified the qualifications for Supreme Court judges. Based on sections 5 and 6, as the court determined Justice Nadon did not meet the Qualifications to be a Supreme Court judge.6 Furthermore, the Supreme Court also demonstrated that Parliament does not have the legal right to change the Supreme Court’s Composition7, just as it had tried to do to make Justice Nadon eligible to become a Supreme Court judge. The Supreme Court addressed two questions in this case, and a detailed examination of the two questions demonstrates conclusively that a sitting judge of the Federal Court of Appeal is not qualified for appointment to the Supreme Court as a Quebec member.8
The first issue examined by the Supreme Court was the following:
Can a person who was, at any time, an advocate of at least 10 years standing at the Barreau du Québec be appointed to the Supreme Court of Canada as a member of the Supreme Court from Quebec pursuant to sections 5 and 6 of the Supreme Court Act?

The Supreme Court ruling that Justice Nadon’s appointment was not constitutional was the correct interpretation of the law. Section 6 of the Supreme Court Act states that “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”.9 This section clearly states that nominees must be current members of the Court of Appeal or the Superior Court of the province of Quebec.10 At the time of his appointment, Justice Marc Nadon was a justice of the Federal Court of Appeal, a Federal Court, making him ineligible to be considered a member of the Quebec Bar.11 Prior to his appointment as a justice in the Federal Courts, Justice Nadon had served for over twenty years in the Quebec Courts. From 1974 to 1993 Justice Nadon practiced law in Quebec.12 While Section 5 stipulates that an appointed judge needs to have at least ten years of experience as a practicing lawyer in a Canadian province13, section 6 clearly specifies that for the three judges appointed from Quebec, this standing at the bar must be current.14 Section 6, uses the words “from among” the judges and advocates to clarify the need for current standing.15 Justice Nadon was not a member of the Court of Appeal or the Superior Court of the Province of Quebec when he was appointed to the Supreme Court. Justice Nadon was a supernumerary judge with the Federal Court of Appeal.16 Section 5 of the Supreme Court Act gives general eligibility guidelines for appointments, while section 6 narrows down this eligibility guidelines for justices of Quebec such as Nadon.17 If s. 5 had been examined alone, without s. 6, then the Supreme Court ruling would have not been correct. Section 5.1 states that a former “judge who is or has been a judge of the superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.”18 Justice Nadon had more than twenty years of experience at the Bar of Quebec19
Justice Nadon was appointed to the Canadian Federal court trial division in 1993 and was a justice of the