What Does the Disqualification of Marc Nadon Mean for Criminal Law?

July 27th, 2020

The legal and political worlds were set abuzz late last week with the release of the much-anticipated decision of the Supreme Court of Canada in the case officially called Reference Re Supreme Court Act ss. 5 and 6, but known to most as the Nadon Reference.  The case required the Court to consider the validity of the federal government’s appointment of the Honourable Marc Nadon to the country’s highest court.

Justice Nadon was, at the time, a semi-retired judge of the Federal Court of Appeal, and the government appointed him to replace the retiring criminal justice giant Morris Fish, who retired from the Court in the summer of 2013.  The Supreme Court of Canada is composed of nine justices, of whom three are traditionally appointed from either the Quebec legal profession or the Quebec Courts.  At the time of his appointment, Nadon, J. was neither a member of the Quebec legal profession (a lawyer), nor of Quebec’s courts.  This was the focus of the challenge.

The challenge was started by a prominent Toronto immigration lawyer who, ironically enough, went to the Federal Court (one step below the very Court from which Nadon, J. was appointed), seeking an Order preventing the appointment.  The argument was that even though Nadon, J. had been a Quebec lawyer for many years before going to the Federal Court, he could not go to the Supreme Court of Canada from the Federal Court system if he were to go as a Quebec appointment.

There has been much speculation as to why the government appointed Nadon, J. in the first place.  According to many, he was not only not on the short list, but was not even on the “long list” of those generally expected to get the nod.  There is a consensus among many, however, that it was Nadon, J.’s spirited dissent supporting the federal government’s refusal to repatriate Canadian Al Qaeda  member Omar Khadr to Canada from Guantanamo Bay that caught the government’s favour.

It cannot be forgotten that this government has supported tightened and toughened criminal justice laws relating not only to drugs, but also to firearms, and of course international terrorism.  Perhaps the Prime Minister felt that Nadon, J. would bring deference to government, and not challenge, in his opinions at the high court. Whatever the various motivations, the case was watched carefully, and by many.  Some were interested in the politics and what it means for the Court.  Others were interested in the law.

The Court’s decision, shared by six of the seven judges who heard the case, was that the appointment was invalid.  It was not just because the government had gone about the process in the technically problematic fashion of appointing someone who did not meet the eligibility criteria on the face of the Supreme Court Act.  If that were the only reason, then without doubt, the government could just change the Supreme Court Act and try again.  What matters about the case is that the Court recognized that the spirit of the law requiring that Quebec appointments come from a pool of either Quebec judges or Quebec lawyers means something.

Canada is a country of numerous legal systems.  Some call it inter-normativity.  Others describe it as multiple legal streams flowing into one “legal river”.  The Court held that the integrity of one of the most important streams, the civil law, as well as the legitimacy of the Court in the eyes of many in the country’s most populous province, Quebec, required that the government follow the basic expectation that the Quebec contingent on the Court be from Quebec, in terms of legal tradition and not just last name.

So, what does this mean for the criminal law?  We cannot know yet what will be the “ins and outs” for future challenges to, say, antiterrorism laws, or whether the the next appointment will be any less deferential than this one may have been.  What strikes me, however, is two things.  First, the Court struck a blow for judicial independence.  It is the Court’s place to interpret law, and when the government tries to change the fundamental law of the nation – the Constitution – without going through the peculiar super-majorities that that requires, the Court has shown it will stand up and draw the line.  For criminal accused, who are typically the most feared and least supported, this is an extremely important – even vital – attribute of the legal system.  Indeed, the golden thread of the criminal law, which is the presumption of innocence, depends for its very breath, on a judiciary that is not afraid to stand up to the state.

The second observation is this: unlike in many titanic constitutional struggles over the years, this case was not a battle of the federal government versus a huge corporation or against a competing provincial government.  This was not even the Crown versus an accused in the well-understood forum of the criminal trial.

What this was, was a creative and fearless lawyer who thought something was wrong, and he stood up to fight it.  Had he not done so, Nadon, J. would be a Justice of Canada’s highest Court.  This writer does not know what that would have meant and what his legacy would have been, but knows that what happened means at least this: our legal system still not only allows, but creates great open space for, creative, courageous and independent lawyers to bring truth to power, and to win. 

As a result, the Nadon Reference means, to me at least, that the Courts and the legal profession are both independent.  Hear hear.

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