27 September 2015

#57 Civil What?

Another aspect of the Supreme Court of Canada that is often misunderstood outside Québec is the requirement that three of the nine justices come from the Bar or the courts of Québec. This is not the language question, as discussed in yesterday’s post. No, this is about the system of Civil Law that is in force in Québec.

The rest of Canada operates under Common Law, derived from the legal tradition of England, but The British decided in 1763, after defeating the French, that Québec would be better integrated into the British North American colonies if it were allowed to carry on the continental tradition of the Civil Law. (I say continental, but you should know that Scotland, too, is a Civil Law jurisdiction, so the British knew that the accommodation could be made.)

So then the Prime Minister proceeded to appoint to the Supreme Court, to one of the vacant Québec seats, Mr, Justice Marc Nadon, of the Federal Court of Appeal. The problem began with not having consulted the Québec Bar, the Canadian Bar or the Chief Justices of the Québec Court of Appeal and the Québec Superior Court (these are federally-appointed judges). It continued with the Prime Minister picking a fight with the Chief Justice of the Supreme Court of Canada when she tried to offer advice prior to the appointment (more about this tomorrow).

In the end, the Supreme Court declared the appointment unconstitutional because Mr. Justice Nadon was not a current member of the Québec Bar or of one of the two Québec courts that he should have been to qualify. The vote having been six to one, it is certain that some of the justices Mr. Harper appointed himself were on the side of the majority. Oopsie!

Back to the drawing board on a matter that might have run more smoothly if only the rules and the customs had been followed.

Further reading here

“But he came from there”
you can hear him say. But that
was too long ago

No comments: