Dalton Burger, Nicole DoyleProfessors, Durham College

What’s Hot in the Law 2014

Dalton Burger LL.M., LL.B., B.Soc. ScBarrister and Solicitor

Nicole Doyle B.A., M.L.I.S

Law in the News

• Government Agencies Seek Telecom User Data at “Jaw Dropping” Rates (Toronto Star)

• Restaurants warn of closures in wake of temporary foreign workers ban (Globe and Mail)

• Phoney Clinic Fraudster Jailed 18 Months (Toronto Star)• Party leaders dial back ambitions on Senate reform

(Globe and Mail)• Harper government weighs NAFTA challenge of delays

in Keystone XL decision (National Post)

Researching Further Information

• The Supreme Court of Canada website includes a wealth of information about each SCC case.

• Let’s look at what’s there for this case.

Summary

• The Honourable Justice Marc Nadon was appointed to the Supreme Court of Canada on October 3, 2013, to fulfill the requirements of s. 6 of the Supreme Court Act which requires that three of the judges of this Court be drawn from the province of Quebec. He was sworn in on October 7, 2013. Prior to his appointment to the Supreme Court, Justice Nadon was a judge of the Federal Court of Appeal.

SummaryThird parties brought an application for judicial review in Federal Court

challenging:(i) Justice Nadon’s appointment on the basis that sections 5 and 6 of the

Supreme Court Act do not permit the appointment of Federal Court or Federal Court of Appeal Judges to the Supreme Court of Canada, and

(ii) Parliament’s ability to legislate with respect to the criteria set out at sections 5 and 6 of the Act. Pending the resolution of this challenge to his appointment, Justice Nadon announced that he would not participate in matters before the Supreme Court of Canada.

Summary

• On October 22, 2013, a bill was introduced in the House of Commons proposing to add two declaratory provisions to the Supreme Court Act so as to expressly permit the appointment to the Supreme Court of Canada of a person who currently is, or was at any time, a member of a provincial bar with at least 10 years standing.

Let’s Find…

• Supreme Court Act, sections 5 and 6• Bill introduced to amend this act– Economic Action Plan 2013, Act No. 2

Finding Canadian Statutes (Acts)

• Use CanLII– Free website that aggregates statutes, regulations

and court/tribunal decisions from all jurisdictions in Canada

Finding Canadian Bills

• To find bills, we need to use the websites of the parliament/legislature

• Need to be careful of the date of the bill since bill numbers are “recycled”

• For federal bills, we use the website called “LEGISinfo”

LEGISinfo

• Collaborative effort between the Senate, the House of Commons and the Library of Parliament

• Contains information about federal bills in progress as well as historical bills

• There are a variety of navigation options and links to a wealth of information about each bill

SummaryAlso on October 22, 2013, the Governor in Council referred two

questions to the Court by way of Order in Council P.C. 2013-1105:

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?

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?

How are SCC Judges Appointed?• Constitutional Authority for creation of Supreme Court of Canada in

1867

– 101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.

• Supreme Court Act (SCA) introduced in 1875

– Act of Parliament, but Constitutional authority– unwritten Constitution and referred to in amending formula

• s. 5 and 6 of the SCA

Supreme Court of Canada - Appointment Process

• Governor General appoints based on recommendation from Prime Minister (unwritten Constitutional convention)

• 3 from Quebec, 3 from Ontario, 2 from the West, and 1 from East

• in 2006, Parliamentary hearings added to process to involve Parliament, but PM maintains final say

Supreme Court of CanadaCurrent Judges

• Court is made up of 9 judges– The Right Honourable Chief Justice Beverley McLachlin, P.C. – The Honourable Mr. Justice Louis LeBel – The Honourable Justice Rosalie Silberman Abella – The Honourable Mr. Justice Marshall Rothstein – The Honourable Mr. Justice Thomas Albert Cromwell – The Honourable Mr. Justice Michael J. Moldaver – The Honourable Madam Justice Andromache Karakatsanis – The Honourable Mr. Justice Richard Wagner – Mr. Justice Fish retired in 2013 leaving a vacancy for which

Marc Nadon was nominated

Argument of Government of Canada• "18. The cardinal rule is that a statutory provision should never be read in

isolation. When sections 5 and 6 are read together and in light of their context and purpose, they provide that a person with at least ten years standing at the Barreau du Québec may be appointed a judge of the Court, regardless of whether he or she is a current member of the bar of that province."

• "42. A review of the legislative debates reveals that the purpose for the requirement that a person have at least ten years standing at the bar of a province is to ensure that all individuals appointed to the Court have the knowledge and practical experience necessary to discharge the functions of a judge. There is no indication in the legislative record that eligibility was contingent on present, as opposed to past, membership in a provincial bar.“

• "107. There is no legal impediment to Parliament continuing to exercise its legislative authority under section 101 of the 1867 Act to prescribe conditions of appointment concerning past or present membership at the bar of a province. The declaratory provisions set out in clauses 471 and 472 of Bill C-4 –Economic Action Plan Act 2013, No. 2 are intended to clarify the conditions which have been applied since at least 1886 "

Argument of Galati

• 12. Section 41(d) that unanimity is required to change the "composition of the Supreme Court of Canada ." This immediately raises the question of what is meant by the word "composition."

• 6. Ss. 5 and 6 must be read in context of "affecting" the composition of the Supreme Court and therefore any change would require 10 provinces and the Parliament to agree to a Constitutional Amendment

Webcast

• Oral Arguments on January 15, 2014http://scc-csc-gc.insinc.com/en/clip.php?url=c/486/1938/201401150501wv150en,001Content-Type:%20text/html;%20charset=ISO-8859-1

Decision/Significance

• "A judge of the Federal Court of Federal Court of Appeal is ineligible for appointment to the SCC“

• "The plain meaning of s. 6 has remained consistent since the original version of that provision was enacted in 1875, and it has always excluded former advocates“

• "Parliament is now required to maintain the essence of what enables the Supreme Court to perform its current role. While Parliament has the authority to enact amendments necessary for the continued maintenance of the court, it cannot unilaterally modify the composition or other essential features of the court.”

Applying This Same Process to Other Issues in the News

Digitization of Photographs

• It depends– Copyright, Privacy legislation– Status of the University – public/private?– Policies when photos were collected/taken– Ownership of IP in photos– Risk management

• Refer to policies of other archives• Seek legal opinion

Thank you!

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