The Nadon Reference: The Supreme Court Re-enshrines Its Bijural Identity | By Stéphane Erickson

The Reference on sections 5 and 6 of the Supreme Court Act – now commonly referred to as the “Nadon Reference” – sent a strong and clear message to the Harper government. In fact, the message was more of a wake-up call, or a harsh reminder of sorts. There are three main points which I wish to speak to: bijuralism’s constitutional protections, historical context and pragmatic implications.

Bijuralism at the Supreme Court is protected by the Constitution. Not only does Canada have two official languages, it also has two legal systems. While the former may not (yet) enjoy fully recognized constitutional protections at the High Court, the latter now does. The bijural character of the Court, with six justices trained in the common law tradition and three highly specialized judges in Québec’s civil law practice, cannot be toyed with by Parliament alone. Although there is a certain encounter and exchange of ideas between the two legal systems, they are fundamentally distinct in nature. Their respective history, mindset, philosophy, and understanding of the law differ at many levels. Such a rich and multifaceted perspective on the law is unique to the Supreme Court, and thus allows it to apply its expertise in common law, civil law or bijurally. The Supreme Court in its Reference clearly reiterated this, and chose to interpret the law in such a way to ensure the protection of bijuralism’s authenticity and actual reality at the Court.

Historical compromise gives context and is binding. Canada’s institutions were born from historical compromise, which gave birth to the country’s democratic, constitutional, federal, bilingual – and bijural – character. The Supreme Court’s genesis was no different. Indeed, Québec was promised a significant presence on the Supreme Court, not to protect its language (a common mistake), but to ensure the understanding and appreciation of its legal heritage. Perhaps one of the greatest and most noteworthy passages of the Reference goes as follows: “The underlying purpose of s. 6 is to enshrine the historical compromise that led to the creation of the Court by narrowing the eligibility for the Quebec seats. Its function is to limit the Governor in Council’s otherwise broad discretion to appoint judges, in order to ensure expertise in civil law and that Quebec’s legal traditions and social values are reflected in the judges on the Supreme Court, and to enhance the confidence of the people of Quebec in the Court.” The Court makes sacred its historical context of promise and good faith to aid and justify its cause in the constitutionalization of its bijural personality.

Pragmatism is not an excuse. Many critics have slammed the Supreme Court ruling, mainly due to pragmatic issues. Because Federal Court justices are not eligible for Supreme Court judgeships under Section 6 of the Supreme Court Act, some opine that the Federal Court would become a “graveyard” for Québécois judges. Others believe that it is simply “unfair” for Federal Court judges not to be eligible for a Supreme Court nomination.

The Supreme Court’s decision is controversial. That said, what the Supreme Court has done is reaffirm its nature as a bijural body. It appreciates the historical and social context, as it often does when dealing with constitutional compromise giving birth to Canada’s institutions. Yes, this means that certain practical issues come into play. However, pragmatic implications cannot excuse the government’s disregard for bijuralism, in its most authentic sense as per the Act, in spite of its political roots. Interestingly, the Court has taken a similar approach to institutional bilingualism and French language minority rights – where administrative obstacles cannot save their neglect or apathy. Over and over again, the duality of Canada’s legal and linguistic fabric is put to the test in the name of practicality, money and resources. But such an approach to bijuralism or bilingualism cannot stand. Hence, the consequence of this Reference will undoubtedly force the government to pay more careful attention in its selection process in order to ensure bijuralism on the Court in accordance with the law.

In light of what University of Ottawa Faculty of Law professor Mendes has described as the “Nadon debacle,” it would appear that the government’s disregard or misunderstanding of Canada’s legal protections for bijuralism has now been clarified and corrected.

It will be interesting to see how this rather unusual and at times unpredictable government will choose to act, see it as the bijural composition of the Court is no longer up for interpretation – or for puppet play.

Stéphane Erickson holds a Bilingual Bachelor of Commerce degree from the University of Alberta and is currently a J.D. and LL.L. candidate in the Programme de droit canadien at the University of Ottawa Faculty of Law. He is also a recipient of the Baxter and Alma Ricard Scholarship for his dedication to the development and furtherance of Canada’s Francophonie outside Québec.

Photo credit: Bob on Flickr

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