Reference re Supreme Court Act, ss. 5 and 6
| Reference Re Supreme Court Act, ss 5 and 6 | |
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| Hearing: 15 January 2014 Judgment: 21 March 2014 |
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| Full case name | In the Matter of a Reference by the Governor in Council concerning sections 5 and 6 of the Supreme Court Act, R.S.C. 1985, c. S-26, as set out in Order in Council P.C. 2013-1105 dated October 22, 2013 |
| Citations | 2014 SCC 21 (LEXUM), 2014 SCC 21 (CanLII) |
| Docket No. | 35586 |
| Holding | |
| Only current members of the superior courts of Quebec or current members of the Bar of Quebec with at least ten years' standing may be appointed to the Quebec seats on the Supreme Court. An amendment to the Supreme Court Act to permit appointments of former members of the Bar of Quebec is unconstitutional. | |
| Court Membership | |
| Chief Justice | McLachlin C.J. |
| Puisne Justices | LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. |
| Reasons given | |
| Majority | McLachlin C.J., LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ. |
| Dissent | Moldaver J. |
| Rothstein J. took no part in the consideration or decision of the case. | |
Reference Re Supreme Court Act, ss 5 and 6 is a decision of the Supreme Court of Canada concerning the eligibility of members of the Quebec courts and the Quebec Bar to be appointed to the three seats on the Supreme Court reserved for Quebec. The case also considers the constitutional status of the Supreme Court, holding that the Court has been constitutionally entrenched by the Constitution Act, 1982, and that the composition of the Court, including eligibility for appointment, can only be amended by a unanimous constitutional amendment, consented to by the federal government and all ten provinces (though if any more provinces are formed, those provinces must also accept the amendment requiring unanimity.)
The case arose when the federal government appointed Justice Marc Nadon to the position of puisne justice of the Supreme Court of Canada, on October 3, 2013. At the time of the appointment, Justice Nadon was a supernumerary judge of the Federal Court of Appeal, having served on the Federal Courts for over twenty years. Justice Nadon had been a member of the Quebec Bar before his appointment.
Ontario lawyer Rocco Galati challenged the appointment in the Federal Court of Canada, arguing that Justice Nadon was not eligible to be appointed, as he was neither a member of one of the superior courts of Quebec, nor a current member of the Bar of Quebec. The Government of Quebec also questioned the appointment.
In response, the federal Parliament passed an amendment to the Supreme Court Act which declared that the requirement that an appointee be a member of the Quebec bar also included former members of the Bar. The federal government then referred the issue to the Supreme Court as a reference question under the Supreme Court Act. The federal government argued that the requirement that Quebec judges be appointed from among the bar of Quebec included former members of the bar.
When the Supreme Court was created in 1875, it was composed of six judges, two of whom were required to be appointed from the superior courts of Quebec or from the Bar of Quebec, in order to ensure representation of Quebec's civil law jurisdiction on the Court. When the Court was expanded to nine judges in 1949, the number of Quebec judges was increased to three. This provision continues to apply under the Supreme Court Act.
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