Marc Nadon cannot take his seat on the Supreme Court of Canada, the court's justices said Friday, in an unprecedented move that blocks Prime Minister Stephen Harper's latest appointment to the top court.
In a six-to-one decision, a majority of justices on the top court ruled that Nadon doesn't qualify to join them on the court.
The court ruled that its composition is constitutionally protected, and Parliament's attempt to change the Supreme Court Act through a budget bill is unconstitutional.
The government introduced changes in last December's budget bill in an effort to make Nadon eligible as a former member of the Quebec bar — as opposed to a current member. The court says that section is void because the government does not have the power to make such amendments unilaterally.
Changes to the court's makeup require a constitutional amendment with the unanimous consent of the provinces, the court says.
Nadon's appointment to the country's top court is declared void retroactively, and he is deemed to have never been sworn in.
Implications for Senate reference
"Today's judgment will be of great importance, especially in constitutional matters," said Sébastien Grammond, who represented two groups of retired Quebec judges in the case. "First and foremost because it makes important statements as to how the Constitution of Canada can be amended."
The decision may also provide insight into how the court will rule on the Senate reference, Grammond suggested, which includes the question of whether Parliament can reform the Senate without reopening the Constitution.
"It will take months and years perhaps to understand" all the implications of the decision, he said.
Special category
Toronto lawyer Rocco Galati had challenged Harper's appointment of Nadon. Galati argued he didn't qualify for one of the court's three Quebec seats, because he came from the Federal Court and not from a Quebec court.
Quebec judges are a special category because of the province's unique civil legal code, different from the common-law code in the rest of the country.
Harper referred the question to the court and Nadon stepped aside until the matter could be decided.
Justice Michael Moldaver was the only dissenter from today's ruling.
Justice Marshall Rothstein, also appointed from the Federal Court, recused himself. Rothstein is from Manitoba and remains on the Supreme Court because the rules governing Quebec appointments are different. They impose additional requirements, the Supreme Court says, which Nadon does not meet.
The court is silent on whether Nadon could be appointed from another province, or whether he could simply re-join the Quebec bar , where he began his career, and then be properly named.
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