The Nadon Affair Led to a Dramatic Change in Canada’s Constitutional Landscape

Canada came close to a constitutional crisis in 2014 when the government – that is, the majority of Parliament, exercising its legislative powers, together with the Prime Minister and other Cabinet members, exercising their executive powers – had a direct and public dispute with the Supreme Court of Canada, which of course wields judicial powers. The highest levels of the Canadian government institutions were pitted against each other in a manner that had never happened before. What came out of this affair, like tectonic plates falling into a new configuration after a jolting collision, was a new balance of power between these institutions. Remarkably, this new balance of power is radically different from what had existed before, so much so that it might be considered the final chapter of the Canadian constitutional reforms that took place starting from around the constitutional “patriation” of 1982.

“Patriation” refers to the groundbreaking event when the authority to amend the Constitution was transferred to Canada from the United Kingdom and thereby Canada became a truly sovereign state, instead of a colony or dominion of the United Kingdom. Specifically, on March 29, 1982, the United Kingdom proclaimed the Canada Act 1982 and, on April 17, 1982, Queen Elizabeth II signed the Proclamation of the Constitution Act, 1982.

Justices of the Supreme Court of Canada are appointed by the federal government. The abovementioned direct and public dispute arose when the government sought to appoint Marc Nadon, a semi-retired judge of the Federal Court of Appeal, to the Supreme Court of Canada as a justice. In particular, Nadon was intended to be among the three justices of the Supreme Court required by law to hold certain connections to Quebec’s judiciary or bar, which is a rule allowing Quebec special privileges in recognition of its unique civil law tradition (let’s call it the “Quebec nexus rule”). It was unclear whether Nadon satisfied the technical requirements of the Quebec nexus rule, which ultimately turned on whether those connections to Quebec’s judiciary or bar must have existed at the time of the appointment. Nadon was only formerly a member of the Quebec bar and, being a Federal Court of Appeal judge, he was obviously not a Quebec provincial court judge.

The government believed that Nadon satisfied the Quebec nexus rule, although it recognized that there may be room for disagreement. So, the government (1) passed into law provisions intended to clarify the Quebec nexus rule, which was included as part of an otherwise unrelated bill, (2) carried out the swearing in of Justice Nadon and (3) submitted a reference to the Supreme Court for an opinion on whether Nadon’s appointment was legally valid.

The Supreme Court of Canada issued an opinion (seven justices affirming, one justice dissenting and Nadon abstaining) that Nadon’s appointment was not valid because it violated the Quebec nexus rule and the government’s attempt to remedy the violation by passing the abovementioned law was invalid because it was unconstitutional. The Supreme Court held that certain features of the Supreme Court could not be changed by an act of Parliament because they were already entrenched as part of the Constitution.

The opinion completely caught the government by surprise and the Supreme Court’s view on its constitutional entrenchment was a radical departure from what many considered, prior to the opinion, considered to be the status of the Supreme Court under the Constitution.

Prior to the opinion, many people who study the Constitution believed what is called the “empty vessels” theory of the Supreme Court of Canada. This theory looks to Section 52 of the Constitution Act 1982, where the “Constitution of Canada” is defined. Notably, the Constitution is defined as a collection of legal documents. Using that definition, if one were to check all the legal documents comprising of the Constitution, one would find that none of them establish the Supreme Court of Canada or defines its jurisdiction or other features. Instead, under the Constitution Act 1867, Parliament was empowered (but not required) to establish a “General Court of Appeal for Canada”.

At the time, the Privy Council of the United Kingdom acted as the final court of appeal for cases in Canadian courts, so the Supreme Court of Canada (which Parliament created by passing the Supreme and Exchequer Courts Act) was merely a court of appeal in Canada before cases are heard by the Privy Council. This arrangement continued until 1949. Remarkably, the inclusion of this Act (as amended) as part of the Constitution was considered and discussed by federal and provincial government leaders in the run up to the 1982 “patriation” but ultimately it was decided against.

Given the above facts, the “empty vessels” theory provides that this Act (as amended) is an ordinary act of Parliament without any constitutional status. It may be amended by Parliament alone, rather than having to go through a constitutional amendment procedure. Therefore, Section 42 of the Constitution Act, which curiously provides that the “Supreme Court of Canada” is one of the matters subject to the constitutional amendment procedure of Section 38(1), refers to a topic that does not even exist in the Constitution. Rather, Section 42 means that, in the future, if the Supreme Court were to become part of the Constitution (through a constitutional amendment of course), then any amendment to the Supreme Court is subject to the constitutional amendment procedure of Section 38(1). That is to say, Section 42 creates an “empty vessel” into which the substance of the Supreme Court may be poured by a future constitutional amendment.

Indeed, attempts to amend the Constitution after 1982 have involved discussions about formally including the Supreme Court (and features thereof, such as regional representation) as part of the Constitution. However, those attempts (Meech Lake and Charlottetown Accords) failed to gain the votes necessary to pass.

The constitutional status of the Supreme Court under the “empty vessel” theory can be contrasted with the status of the United States Supreme Court under the U.S. Constitution. Article 3 of the U.S. Constitution provides that the judicial power of the United States shall be vested in a Supreme Court. That is to say, the U.S. federal legislative and executive institutions (Congress and President) must come with a matching peer-level federal judicial institution (Supreme Court) instead of a hypothetical arrangement where there are only state-level courts. So, Congress cannot abolish the U.S. Supreme Court by an act of Congress, any more than it can abolish the office of the President.

As mentioned above, in the Nadon reference, the Supreme Court of Canada held that certain features of the Supreme Court could not be changed by an act of Parliament because they were already entrenched as part of the Constitution. It did not hold that the Supreme and Exchequer Courts Act (as amended) was one of the legal documents comprising the Constitution but rather it described a view where the Constitution does not solely comprise of a set of legal documents (those listed in Section 52) and the rules stipulated by the Constitution are not limited only to the rules included in those legal documents. Instead, the Canadian Constitution includes content not found in any legal document – these include certain features of the Supreme Court. As for the question of how one might know what those unwritten rules are, the Supreme Court basically said that the institution of the Supreme Court (as it currently exists) is an essential part of democracy and by this we know they are part of the unwritten Constitution. The exact quote is: “The existence of an impartial and authoritative judicial arbiter is a necessary corollary of the enactment of the supremacy clause.” Moreover, the Supreme Court held that Parliament now has a duty to “maintain” and “protect” the Supreme Court.

One consequence of the Nadon reference is that, whereas it was once considered possible to reform the Supreme Court composition (to formulate regional representation for example) by Parliament alone, now any major changes would require a constitutional amendment. The institution is now entrenched as it existed at that point in time (2014).

Moreover, with respect to which features of the Supreme Court are constitutional and which are not, since their exact scope is ill-defined, in the future, Parliament will be hesitant to make any legislative changes to the Supreme Court Act.

The idea that the institution of the Supreme Court (as it currently exists) is an essential part of democracy is dubious. Again, we can draw a comparison with the United States. Clearly, under the “empty vessel” theory, the constitutional status of the Canadian Supreme Court is less than the U.S. Supreme Court, since it does not have an independent existence under the Canadian Constitution (before the empty vessel is filled), unlike Article 3 of the U.S. Constitution. It is conceivable that having an independent constitutional status is preferable to merely being a creation of Parliament when it comes to democratic governance. However, by issuing the opinion in the Nadon reference, the Supreme Court of Canada seems to have dispensed medicine that is worse than the illness because the entrenched features are overinclusive.

Consider that much of the jurisdiction of the U.S. Supreme Court only exists because of Congressional authorization. The U.S. Supreme Court, under Article 3, has original jurisdiction over certain matters and appellate jurisdiction over certain other matter. According to U.S. Supreme Court interpretation, original jurisdiction matters do not require Congress to pass any law for the U.S. Supreme Court to exercise jurisdiction over them. On the other hand, appellate jurisdiction matters do require Congress to pass a law authorizing the U.S. Supreme Court to exercise jurisdiction. In other words, Congress theoretically could strip the U.S. Supreme Court of its appellate jurisdiction, leaving it with merely its original jurisdiction (which, according to Article 3, only includes very infrequent matters like disputes between two or more states). This is akin to the “empty vessel” theory, where Parliament theoretically could abolish the Canadian Supreme Court. Therefore, even under the “empty vessel” theory, there is not a major difference between the Canadian Supreme Court and U.S. Supreme Court. Both countries’ institutions must coordinate with other branches of government to function optimally.

Through the Nadon reference, the Canadian Supreme Court judicially refuted the “empty vessel” theory and elevated its constitutional status to be much higher than the U.S. Supreme Court. Not only is it not merely a creation of Parliament anymore, but its existing jurisdiction is also entrenched.

Unlike the extremely limited original jurisdiction of the U.S. Supreme Court, the Canadian Supreme Court has jurisdiction over all judicial matters in Canada, including in each and every province. This is quite different from the United States, which has not only federal law but also the laws of the 50 states, where the state courts have the final say on issues of state law (not the U.S. Supreme Court). In other words, the jurisdiction of the Canadian Supreme Court is equivalent to what would happen if we took the highest courts of the 50 states and combined them into the U.S. Supreme Court.

In summary, the Canadian Supreme Court, in the Nadon reference, pulled itself up by the bootstraps on a doubtful “democracy” theory, opened up the possibility of ethereal constitutional rules not found in any legal document (which makes future constitutional decisions more about the policy views of the justices instead of the literal text and meaning of the Constitution) and scuttled the possibility of future Supreme Court composition reforms. To be fair, the government’s appointment of Nadon was opposed by Quebec and, if the Supreme Court found the appointment valid, it may have come under criticism as well or even inflame separatist tensions. Nonetheless, it is doubtful whether undermining both constitutionalism and democracy in this brute force fashion was necessary.

After the opinion was issued, the government under Prime Minister Stephen Harper decided to accept it. To satisfy the technical rules, the government could have simply appointed Nadon to a superior court of Quebec and then soon after appointed him to the Supreme Court of Canada. Alternatively, Parliament could have even passed an act ostensibly to void the Supreme Court judgment. It is a settled legal principle that no one can delegate more authority than one already has. Under the “empty vessel” theory, the Supreme Court has no more authority to proscribe a future Parliament amendment to the Supreme Court Act than a particular session of Parliament (at a particular point in time) has the authority to do so with respect to future sessions of Parliament. Of course, doing that would really pull Canada into a constitutional crisis. Instead, the government decided to let go of this political hot potato. In the end, Quebec’s opposition to the Nadon appointment led to the government acceptance of the Supreme Court’s questionable elevation of its own constitutional status. The era of seeking political support to make constitutional amendments (e.g., Meech Lake and Charlottetown Accords) is over and the future will be intentional appointments of Supreme Court justices who will discover unwritten constitutional rules in an ethereal, policy-driven manner (i.e., politicization of the Court).

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