In the Matter of Section 53 of the Supreme Court Act, R.S.C. 1985, c. S-26;, et al. (35586)

Posted on: 2021-12-30


Legislation - Interpretation - Constitutional law - Supreme Court of Canada - Appointment of judges - Reference

The Honourable Justice Marc Nadon was appointed to the Supreme Court of Canada on October 3, 2013, to fulfill the requirements of s. 6 of the Supreme Court Act which requires that three of the judges of this Court be drawn from the province of Quebec. He was sworn in on October 7, 2013. Prior to his appointment to the Supreme Court, Justice Nadon was a judge of the Federal Court of Appeal.

Third parties brought an application for judicial review in Federal Court challenging (i) Justice Nadon’s appointment on the basis that sections 5 and 6 of the Supreme Court Act do not permit the appointment of Federal Court or Federal Court of Appeal Judges to the Supreme Court of Canada, and (ii) Parliament’s ability to legislate with respect to the criteria set out at sections 5 and 6 of the Act. Pending the resolution of this challenge to his appointment, Justice Nadon announced that he would not to participate in matters before the Supreme Court of Canada.

On October 22, 2013, a bill was introduced in the House of Commons proposing to add two declaratory provisions to the Supreme Court Act so as to expressly permit the appointment to the Supreme Court of Canada of a person who currently is, or was at any time, a member of a provincial bar with at least 10 years standing. That same day, the Governor in Council referred two questions to the Court by way of Order in Council P.C. 2013-1105:

1. Can a person who was, at any time, an advocate of at least 10 years standing at the Barreau du Québec be appointed to the Supreme Court of Canada as a member of the Supreme Court from Quebec pursuant to sections 5 and 6 of the Supreme Court Act?

2. Can Parliament enact legislation that requires that a person be or has previously been a barrister or advocate of at least 10 years standing at the bar of a province as a condition of appointment as a judge of the Supreme Court of Canada or enact the annexed declaratory provisions as set out in clauses 471 and 472 of the Bill entitled Economic Action Plan 2013 Act, No.2?

The proceedings before the Federal Court were stayed pending the determination of the questions submitted to this Court.

Argued Date



Courts - Interpretation, Constitutional law.


(Canada) (Civil) (Reference)


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