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The Tenth Justice: Judicial Appointments, Marc Nadon, and the Supreme Court Act Reference
The process by which Supreme Court judges are appointed is traditionally a quiet affair, but this certainly wasn’t the case when Prime Minister Stephen Harper selected Justice Marc Nadon for appointment to Canada’s highest court. Here, for the first time, is the complete story of “the Nadon Reference” – one of the strangest sagas in Canadian legal history.
Following the Prime Minister's announcement, controversy swirled and debate as a federal court judge, was Marc Nadon eligible for one of the three seats traditionally reserved for Quebec? Then, on 21 March 2014, the Supreme Court of Canada broke new ground in statutory interpretation and consitutional law by releasing the Reference re Supreme Court Act, ss 5 and 6. In The Tenth Justice, Carissima Mathen and Michael Plaxton set out the history of judicial appointments, the legal and political context that gave rise to the Reference re Supreme Court, and the impact that the decision has had on legal and constitutional debate in Canada.
With detailed historical and legal analysis, including never-before-published interviews, The Tenth Justice explains how the Nadon Reference came to be a case at all, the issues at stake, and its legacy.
Following the Prime Minister's announcement, controversy swirled and debate as a federal court judge, was Marc Nadon eligible for one of the three seats traditionally reserved for Quebec? Then, on 21 March 2014, the Supreme Court of Canada broke new ground in statutory interpretation and consitutional law by releasing the Reference re Supreme Court Act, ss 5 and 6. In The Tenth Justice, Carissima Mathen and Michael Plaxton set out the history of judicial appointments, the legal and political context that gave rise to the Reference re Supreme Court, and the impact that the decision has had on legal and constitutional debate in Canada.
With detailed historical and legal analysis, including never-before-published interviews, The Tenth Justice explains how the Nadon Reference came to be a case at all, the issues at stake, and its legacy.
- GenresLaw
205 pages, Paperback
Published July 24, 2020
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April 29, 2025
As Canada prepares for some turbulent times south of the border, it would be remiss not to talk about some of the political fallout within our own borders as well. An election was called and occurred on April 28, 2025—another Minority Government— and I had done some Election Prep for Canada, as I have done for US presidential elections in years past. Canada had a prime minister who resigned due to some really poor polling numbers and a salivating Leader of the Opposition wanting to topple the tower right away for his own benefit. This entire prep and post-analysis experience could be extra fun, as there are whispers from high in Washington that the election could be the last for Canada as a sovereign country before we become the 51st state. Let’s see where this reading journey takes us!
As I continue looking into important and impactful legal cases that have arisen in Canada, I could not ignore this short tome by Carissima Mathen and Michael Plaxton. Exploring an intriguing issue that seeks to explain Supreme Court of Canada nominees, the authors delve into the constitutional aspects of the Supreme Court Act and its interpretation by a government with preconceived notions about the type of Justice it wanted on the bench. Mathen and Plaxton deliver a stunning analysis and explore the dramatic nature of what happens when politics meets the constitution, with a peppering of the Supreme Court deciding on a reference opinion sent by the Harper Government to explore the parameters of the Act that defines the Court.
While the nomination process to the Supreme Court of Canada usually passes without much fanfare, Prime Minister Stephen Harper’s selection of Marc Nadon in 2013 raised both eyebrows and concerns. Some felt Nadon might not have been a judicial heavyweight and could show inherent independence from the Conservative Government’s views. However, the primary concern regarding the appointment came from the Supreme Court Act and two of its sections that define a nominee’s appointability. Carissima Mathen and Michael Plaxton deliver a great deal of backstory about Nadon as a judge, as well as how he would fit into section 5 and 6 of the Supreme Court Act.
Part of the book explores early sentiments by former Supreme Court Justices about Nadon’s ability to be nominated, even with restrictions in the Act. At issue is Nadon’s ability to sit as one of Quebec’s three seats, since he had been a Justice for the Federal Court of Canada, thereby suspending his Quebec Bar ties. While early memos showed that Harper’s plan to nominate Nadon seemed paved with success, it was only when things became official that an immediate challenge of the constitutionality of the choice arose. This soon led to a Supreme Court reference on the matter, but that’s not all. In an effort to direct the decision by the Court, the Harper Government passed an omnibus budget bill that added subsections to the Supreme Court Act, directing how the law should be read and thereby putting Nadon’s nomination and the Court’s decision in the bag... or so it would seem.
The hearing for Reference re Supreme Court Act took place in 2014 and had a number of actors chiming in from all sides. The authors deliver great summaries of the written and oral arguments, as well as the Justices’ queries and media speculation on the topic at hand. Parsing through interpretations, while fun for some, can be mind-numbing or painful for others. The arguments came across as sound, though the Supreme Court did not agree with many of them, handing down a decision in the Reference that baffled some and rose the ire for many others, not the least of which the Harper Government.
The last portion of the book seeks to synthesise the entire argument and put it into some context. While Marc Nadon refused to engage in any other means to get onto the Supreme Court after losing the Reference, there were clarifications as to the rules under the Supreme Court Act and the constitutional protection the Court was afforded by history, rather than the Fathers of Confederation at the time. At the heart of the matter was that Prime Minister Harper created the mess that came to pass and knowingly walked into it. He was aware of the judicial quagmire, pushed Marc Nadon’s appointment forward, and then tried to create amendments to the troubling Act of Parliament to direct its interpretation while submitting a Reference to ask for clarification. The authors pull no punches here and this shameful action does not go without notice by the attentive reader.
I have read all the books in the ‘Landmark Cases in Canadian Law’ series to date, published by UBC Press. While many have been detailed and quite engaging, this piece by Carissima Mathen and Michael Plaxton was easily the most legally intense as a whole. I love constitutional arguments and legal proceedings, as well as anything to do with Parliament, so to mash them all together proved to be one of the most enjoyable experiences for me. The authors presented the situation well and offered stunningly detailed historical and legal analysis to give the reader everything they needed to better understand the situation before them. Chapters were filled with great citations from legal experts and briefs, as well as memos from legal minds that could surely shape things found herein. Perhaps the best part of the entire experience was the number of citations from interviews, seeking direct knowledge and opinions of experts, even former Supreme Court Justices. This added depth to the book and the flow of the arguments presented. I will surely want to read more about the Nadon Affair—which I remember in passing when it took place—as well as publications from both Mathen and Plaxton on other matters. I highly encourage anyone with an interest in the Supreme Court of Canada and constitutional reference matters to find and read this brief tome as you will not be disappointed.
Kudos, Madam Mathen and Mr. Plaxton, for a great read and highly educational experience.
Like/hate the review? An ever-growing collection of others appears at:
http://pecheyponderings.wordpress.com/
As I continue looking into important and impactful legal cases that have arisen in Canada, I could not ignore this short tome by Carissima Mathen and Michael Plaxton. Exploring an intriguing issue that seeks to explain Supreme Court of Canada nominees, the authors delve into the constitutional aspects of the Supreme Court Act and its interpretation by a government with preconceived notions about the type of Justice it wanted on the bench. Mathen and Plaxton deliver a stunning analysis and explore the dramatic nature of what happens when politics meets the constitution, with a peppering of the Supreme Court deciding on a reference opinion sent by the Harper Government to explore the parameters of the Act that defines the Court.
While the nomination process to the Supreme Court of Canada usually passes without much fanfare, Prime Minister Stephen Harper’s selection of Marc Nadon in 2013 raised both eyebrows and concerns. Some felt Nadon might not have been a judicial heavyweight and could show inherent independence from the Conservative Government’s views. However, the primary concern regarding the appointment came from the Supreme Court Act and two of its sections that define a nominee’s appointability. Carissima Mathen and Michael Plaxton deliver a great deal of backstory about Nadon as a judge, as well as how he would fit into section 5 and 6 of the Supreme Court Act.
Part of the book explores early sentiments by former Supreme Court Justices about Nadon’s ability to be nominated, even with restrictions in the Act. At issue is Nadon’s ability to sit as one of Quebec’s three seats, since he had been a Justice for the Federal Court of Canada, thereby suspending his Quebec Bar ties. While early memos showed that Harper’s plan to nominate Nadon seemed paved with success, it was only when things became official that an immediate challenge of the constitutionality of the choice arose. This soon led to a Supreme Court reference on the matter, but that’s not all. In an effort to direct the decision by the Court, the Harper Government passed an omnibus budget bill that added subsections to the Supreme Court Act, directing how the law should be read and thereby putting Nadon’s nomination and the Court’s decision in the bag... or so it would seem.
The hearing for Reference re Supreme Court Act took place in 2014 and had a number of actors chiming in from all sides. The authors deliver great summaries of the written and oral arguments, as well as the Justices’ queries and media speculation on the topic at hand. Parsing through interpretations, while fun for some, can be mind-numbing or painful for others. The arguments came across as sound, though the Supreme Court did not agree with many of them, handing down a decision in the Reference that baffled some and rose the ire for many others, not the least of which the Harper Government.
The last portion of the book seeks to synthesise the entire argument and put it into some context. While Marc Nadon refused to engage in any other means to get onto the Supreme Court after losing the Reference, there were clarifications as to the rules under the Supreme Court Act and the constitutional protection the Court was afforded by history, rather than the Fathers of Confederation at the time. At the heart of the matter was that Prime Minister Harper created the mess that came to pass and knowingly walked into it. He was aware of the judicial quagmire, pushed Marc Nadon’s appointment forward, and then tried to create amendments to the troubling Act of Parliament to direct its interpretation while submitting a Reference to ask for clarification. The authors pull no punches here and this shameful action does not go without notice by the attentive reader.
I have read all the books in the ‘Landmark Cases in Canadian Law’ series to date, published by UBC Press. While many have been detailed and quite engaging, this piece by Carissima Mathen and Michael Plaxton was easily the most legally intense as a whole. I love constitutional arguments and legal proceedings, as well as anything to do with Parliament, so to mash them all together proved to be one of the most enjoyable experiences for me. The authors presented the situation well and offered stunningly detailed historical and legal analysis to give the reader everything they needed to better understand the situation before them. Chapters were filled with great citations from legal experts and briefs, as well as memos from legal minds that could surely shape things found herein. Perhaps the best part of the entire experience was the number of citations from interviews, seeking direct knowledge and opinions of experts, even former Supreme Court Justices. This added depth to the book and the flow of the arguments presented. I will surely want to read more about the Nadon Affair—which I remember in passing when it took place—as well as publications from both Mathen and Plaxton on other matters. I highly encourage anyone with an interest in the Supreme Court of Canada and constitutional reference matters to find and read this brief tome as you will not be disappointed.
Kudos, Madam Mathen and Mr. Plaxton, for a great read and highly educational experience.
Like/hate the review? An ever-growing collection of others appears at:
http://pecheyponderings.wordpress.com/
Displaying 1 of 1 review