A majority of Canada’s Supreme Court today ruled that:
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.
‘[T]he Court’ the Court referred to, was, of course, the very Court that made that ruling. If the dissent of Moldaver J had prevailed, Nadon J would now be (and would have been for months) a fellow member of the Court that just ruled him ineligible for membership. The background to the decision is described here. ‘Justice’ Nadon was ruled ineligible because the majority interpreted a provision governing the appointment of the Court’s three required Quebec representative as requiring that the appointees either be current Quebec judges or current members of the Quebec bar. Judge Nadon was (and remains) neither, being a federal judge. However, an earlier appointment from the federal court, Rothstein J’s, was held to be valid by a unanimous court (not counting Rothstein J, who recused himself), on the basis that former bar membership was sufficient for non-Quebec appointments.
So, what happens now? The Court ruled that hastily enacted legislation allowing former bar members to be appointed was invalid, because the Constitution required the unanimous consent of Canada’s provinces to changes to the Court’s ‘composition’. However, the Court observed:
We note in passing that the reference questions do not ask whether a judge of the Federal Court or Federal Court of Appeal who was a former advocate of at least 10 years standing at the Quebec bar could rejoin the Quebec bar for a day in order to be eligible for appointment to this Court under s. 6. We therefore do not decide this issue.
This option was previously labeled ‘neither required nor compatible with the dignity of the office’ by a former Supreme Court judge. Only the latter observation now (arguably) stands. Justice Moldaver’s dissent used this scenario to ridicule the majority ruling:
Any interpretation of s. 6 that requires a former advocate of at least 10 years standing at the Quebec bar, or a former judge of the Quebec Court of Appeal or Superior Court, to rejoin the Quebec bar for a day in order to be eligible for appointment to this Court makes no practical sense. Respectfully, I find it difficult to believe that the people of Quebec would somehow have more confidence in this candidate on Friday than they had on Thursday.
However, the Quebec Bar Association reportedly disagreed, noting that bar membership ‘requires 30 hours of continuing education every two years in programs recognized by the bar.’ If Nadon J takes this option, he may need to spend that Thursday attending a refresher class, for instance on the latest Supreme Court of Canada judgments.
The (non-constitutional) provision governing the composition of Australia’s High Court states:
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.
Unlike Canada’s provision, this clearly covers appointments from the Federal Court of Australia. However, unlike Canada’s provision (which included someone who ‘is or has been’ a member of the bar), it is arguably less clear whether or not the Australian provision covers people who aren’t (and never were) judges and were, but are no longer, ‘enrolled’. The issue is whether someone in that position ‘has been enrolled’. Given that continued enrolment (as opposed to the ability to lawfully practice) requires neither fees nor continuing education, and that removal only seems to arise because of misconduct, this issue is unlikely to arise in practice.