This latest legal issue decided by the Supreme Court, which could easily be called Canada v. Stephen Harper, rapidly rose to the Supreme Court of Canada (in a matter of months) and was heard and decided by the court quickly.
All too often are Canadians finding themselves relying on the courts to uphold Canadians Constitutional (the “Charter“) rights that the Harper government is attempting to erode through their omnibus bills. At the same time, the same government attempts to handcuff the judges ability to dispense justice and exercise judicial discretion, depending on the type of case they are hearing (ie – mandatory sentencing).
It isn’t the Senate which is calling the Harper government on their laws (this is understandable given that the present Senate is controlled by Harper appointees – he is on record stating that he is opposed to appointments to the Senate; although since he took power nine (9) years ago, he has appointed 59 Senators, many of them who ran as Conservative candidates and lost) it is the courts.
The courts understand that they must defend themselves against any abuses directed at them. They must also uphold the Charter against any actions of any government that would either undermine or erode Canadian’s rights under that Charter.
The Harper government’s behaviour creates an environment where courts are working overtime to ensure that laws that have normally been passed in haste, do not tread on the Charter rights of Canadians or the discretion normally afforded to the courts.
This latest challenge to the Supreme Court of Canada is unprecendented. It forces the Court to rule on itself, and the legitimacy of a Harper appointee to the Supreme Court in 2013, Marc Nadon.
The question put to the courts, asks who may or may not be appointed to Quebec’s three (3) positions on the Court’s bench. Harper knew it was going to be a problem when he picked Marc Nadon and doubted his eligibility when he made the decision.
When Harper made the announcement of his latest appointment, Marc Nadon, on September 30, 2013 he knew there would be backlash and he decided that his decision was worth testing in the Supreme Court. He even went as far as constructing a Bill, Bill C-4, Economic Action Plan 2013 Act, No. 2 ( Clauses 471 and 472 of Bill C-4 proposed to amend the Supreme Court Act by adding ss. 5.1 and 6.1.) introducing it in the House of Commons on October 22, 2013, less than a month after the appointment).
Clauses 471 & 472 of Bill C-4 were subsequently passed and received Royal Assent on December 12, 2013. Harper thought that the new s. 6.1 would make it abundantly clear that a former member of the Quebec bar was now eligible for appointment under s. 6 and that this would assist Harper, as this was Marc Nadon’s exact situation.
He introduced Bill C-4 because he knew his decision stood a good chance of being thrown out by the Supreme Court and decided to roll the dice. He rolled the dice, at the expense of Canadians and Quebeccers and he lost.
The Court’s answer to Harper’s decision was as follows:
“On the question of whether Parliament can enact legislation purporting to declare a binding interpretation of s. 6 and thereby permit the appointment of a former member of the bar to one of the Quebec positions on the Court, our view is that the answer is also no. The eligibility requirements set out in s. 6 relate to the composition of the Court and are, therefore, constitutionally protected. Under s. 41(d) of the Constitution Act, 1982, any amendment in relation to the composition of the Supreme Court of Canada may only be made by proclamation issued by the Governor General under the Great Seal of Canada authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province.”
The Supreme Court of Canada’s decision found the Chief Justices defending the Supreme Court, defending Quebec and the processes and practices that defines it (stretching back to 1875), the autonomy of Canadian Provinces, the Constitution (the “Charter“) and provided guidance for any future government that would want to make any changes that may involve the Constitution.
Harper has repeatedly called for changes to the Senate, before/after he was elected and during the last nine years since he took power. He wanted elected Senators, as is done in the Province of Alberta, his base and the base of all federal conservatives. He wanted an elected senate, until he realized that he could appoint Conservatives to the senate, which he has now done on 59 separate occasions (including Mike Duffy, Patrick Brazeau and Pamela Wallin). He promised to overhaul the Senate, but took no action.
Now the Supreme Court of Canada has confirmed that if any future government (it won’t be Harper, as he has had nine years now and has done nothing) wants to change the Senate, which involves the Charter, the decision has to be confirmed by Parliment and the Provinces.
The Supreme Court of Canada’s decision:
In the Matter of Section 53 of the Supreme Court Act, R.S.C. 1985, c. S-26;, et al.
Judgment on the appeal rendered, CJ LeB Abe Cro Mo Ka Wa, The Reference by the Governor in Council concerning ss. 5 and 6 of the Supreme Court Act was heard on January 15, 2014. The reference questions are answered as follows: (1) Can a person who was, at any time, an advocate of at least 10 years standing at the Barreau du Québec be appointed to the Supreme Court of Canada as a member of the Supreme Court from Quebec pursuant to sections 5 and 6 of the Supreme Court Act? Answer: No. Moldaver J., dissenting, would answer yes. (2) Can Parliament enact legislation that requires that a person be or has previously been a barrister or advocate of at least 10 years standing at the bar of a province as a condition of appointment as a judge of the Supreme Court of Canada or enact the annexed declaratory provisions as set out in clauses 471 and 472 of the Bill entitled Economic Action Plan 2013 Act, No. 2? Answer: With respect to the three seats reserved for Quebec on the Court, the answer is no. With respect to the declaratory provision set out in clause 472, the answer is no. With respect to clause 471, the answer is yes. Moldaver J., dissenting, would find it unnecessary to answer this question. Consequently, the appointment of Justice Nadon and his swearing-in as a judge of the Court were void ab initio. He remains a supernumerary judge of the Federal Court of Appeal. , Reference.
Section 53 of the Supreme Court Act
Referring certain questions for opinion
(a) the interpretation of the Constitution Acts;
(b) the constitutionality or interpretation of any federal or provincial legislation;
(c) the appellate jurisdiction respecting educational matters, by the Constitution Act, 1867, or by any other Act or law vested in the Governor in Council; or
(d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised.
Marginal note: Constitution of Court
Marginal note: Appointment of judges
(2) The judges shall be appointed by the Governor in Council by letters patent under the Great Seal.
- R.S., c. S-19, s. 4.
Marginal note: Who may be appointed judges
- R.S., c. S-19, s. 5.
Marginal note: For greater certainty
- 2013, c. 40, s. 471.
Marginal note: Three judges from Quebec
- R.S., c. S-19, s. 6;
- 1974-75-76, c. 19, s. 2.
Marginal note:For greater certainty
6.1 For greater certainty, for the purpose of section 6, a judge is from among the advocates of the Province of Quebec if, at any time, they were an advocate of at least 10 years standing at the bar of that Province.