The Supreme Court of Canada, that country’s equivalent to Australia’s High Court, held a hearing this week on the interpretation of its own constituting statute, the Supreme Court Act. Or, to be more precise, some of its judges held that hearing. One of its judges, Nadon J, who was sworn in to the national court last October, did not sit – and, indeed, has never sat – because it is the legality of his appointment that his remaining colleagues must determine. One newspaper has likened the hearing to a tribal council on television’s Survivor.

The legal issue for decision is the statutory qualifications for appointment to the national court. In Australia, the relevant provision is s. 7 of the High Court of Australia Act 1979:

A person shall not be appointed as a Justice unless:

(a) he or she is or has been a Judge of a court created by the Parliament or of a court of a State or Territory; or

(b) he or she has been enrolled as a barrister or solicitor, as a barrister and solicitor, or as a legal practitioner, of the High Court or of the Supreme Court of a State or Territory for not less than 5 years.

Canada’s equivalent provision is similar:

Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.

The crucial difference is that the Australian provision specifically includes a judge of a court created by the national parliament (including Australia’s Federal Court, from which four of the Court’s seven current judges were appointed.) Canada’s provision does not.The remainder of the Court will decide whether or not that legislative gap rules out appointments to the national court from Canada’s Federal Court of Appeal (where Nadon J previously sat), even where (as with Nadon J), the federal judge had a pre-judicial career as provincial barrister or advocate of at least ten years.

It is possible that Australia’s High Court may one day also be required to adjudicate on its own appointment process (for example if, as occurred with former Canadian Supreme Court judge Louise Arbour, an Australian judge is appointed directly from a position on an international tribunal.) However, several factors make the dispute over Nadon J especially excruciating for the Canadian court. One is the Canadian government’s decision to commission and publish a legal opinion supporting the appointment from a former Supreme Court judge (including the legality of multi-step process of retirement, resumption of advocacy and appointment, which Binnie J labelled undignified.) A second is that the case is being heard after Canada’s parliament passed a bill to retrospectively ‘clarify’ the law to permit appointees directly from the federal court, a step whose constitutionality has been questioned and may also need to be determined by the Supreme Court. A third is that the argument against Nadon J’s appointment also implicates the appointment of another sitting justice, Rothstein J (the current government’s first appointment in 2006), who was also previously on the Federal Court of Appeal and who has recused himself from the hearing on Nadon J. (The recusal is actually a blessing in disguise, as it removes the possibility of an evenly-divided decision. In contrast to Australia, Canada’s top court -which has been operating with an even-numbered bench since October thanks to Nadon J’s non-involvement – has no statutory rule governing tied votes.)

Although there have been four other federal court judges appointed to Canada’s Supreme Court in the past, the challenge to Nadon J’s appointment is unprecedented. The difference this time is politics. One issue is tension over Canada’s current conservative government and its approach to judicial appointments, particularly in light of claims that Nadon J has a conservative judicial style.  A second issue is Nadon J’s own suitability for such a significant appointment, given his age (64), his previous supernumerary (part-time) status in the federal court, his gender (maintaining the national court’s two-third male skew), his narrow expertise (maritime law)  and even (in one of a number of quintessential Canadian touches to the dispute) the accuracy of his claims (to a parliamentary committee considering his appointment) about his youth hockey career. A third, very Canadian, issue is that Nadon J is one of three designated Quebecois judges on the national court, which is relevant because Quebec argues that a separate provision (especially its French version) requires that such judges be appointed directly from a Quebec court or the Quebec bar in order to ensure that the judges understand that province’s civil code. Canada lacks Australia’s requirement that the national government consult with components of the federation over appointments to the national court.

In Canada, as in Australia, the ultimate problem is a court deciding its own membership. The Canadian Supreme Court has sought to allay concerns about bias by issuing a public statement explaining that Nadon J has not contacted any of the other judges, has not entered the court premises and has not discussed his appointment with any of the judges. However, that measure will not prevent the worst-case scenario. Unlike in Survivor, this tribal council can choose not to banish anyone from the island. If that decision is not unanimous, then it may create internal tensions within the court once Nadon J returns and, more importantly, if it is a close call, it would inevitably lead to careful scrutiny of later decisions of the court where the judge whose appointment was disputed wields a casting vote.