PARLIAMENTARY REPORT
CANADA
The appointment of Mr Justice Marc Nadon (pictured) to the Supreme Court of Canada has raised some concerns
Court bench until the matter is resolved, meaning that he was not on the panel of judges that heard the request from the government for an advisory opinion with respect to Senate reform.
Legislation
The government introduced an ambitious legislative agenda before Parliament, most of it reinstated from the previous session. The House of Commons adopted a government- sponsored motion allowing the government to reinstate Bills from the previous session at their last completed stage. Such a motion is usually adopted at the beginning of the second and subsequent sessions of a Parliament to accelerate the adoption of government Bills. In the House of Commons, Private Members’ Bills are automatically reinstated from session to session of the same Parliament. In the Senate, there is no rule or practice for the reinstatement of Bills already examined in the previous session. While many legislative
Prime Minister Harper about how much he knew about Mr Wright’s reimbursement of Senator Duffy’s expenses.
Appointment to the Supreme Court challenged before Courts
In October 2013, the government announced the appointment of Mr Justice Marc Nadon to the Supreme Court of Canada to replace Mr Justice Morris Fish, who had reached the mandatory retirement age of 75. Mr Nadon practiced in a private law firm in Montreal, Quebec, where he specialized in maritime law and transportation law (mostly fields of federal law). He was appointed to the Federal Court in 1993 and to the Federal Court of Appeal in 2001. He also served on the Martial Appeal Court of Canada and the Competition Tribunal. Despite his impressive
résumé, the appointment of Mr Nadon raised some concerns. By law, there are nine judges of the Supreme Court, and three of them must be appointed for the Province of Québec because of its distinct civil law regime. His appointment was questioned because his expertise and judicial experience are in fields of federal law rather than in Québec civil law. A more serious concern was raised as to the legality of his appointment as a representative of the Province of Québec. The Supreme Court Act states that the judges for the Province of Québec must be appointed from the Superior Court or Court of Appeal of that province or must have 10 years’ experience as a member of the Québec Bar. Mr Nadon’s position as a federal judge does not qualify him as a judge for the Province of Québec and the Act is unclear as to whether appointees
350 | The Parliamentarian | 2013: Issue Four
must be a current member of the Québec Bar or whether 10 years’ of previous experience is sufficient.
Anticipating that the issue might arise, the government made public a legal opinion from Mr Ian Binnie, former Justice of the Supreme Court, to the effect that the appointment was in conformity with the Supreme Court Act. This opinion did not convince Mr Rocco Galati, a lawyer from Toronto, who filed a court application to quash the appointment. To address these concerns, when the government tabled omnibus legislation to implement the budget, it included declaratory provisions confirming the legality of Mr Nadon’s appointment. It also sought an opinion from the Supreme Court of Canada itself with respect to his eligibility. Meanwhile, Mr Nadon will not serve on the Supreme
proposals in the new session were reinstated from the previous session, the government followed its practice of introducing an omnibus Bill to implement its budgetary policy. The practice has been to introduce an omnibus Bill in the spring (one such was adopted in June 2013) and another in the fall. Bill C 4 (A Second Act to Implement Certain Provisions of the Budget tabled in Parliament on March 21, 2013 and other measures), proposes various income tax measures and enacts, amends or repeals various Acts of Parliament, including the Public Service Employment Act, the Mackenzie Gas Project Act, and, as mentioned above, the Supreme Court Act. The Bill was passed by the House of Commons on 9 December. It was passed by the Senate and received Royal Assent on 12 December 2013.
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