The Tenth Justice

Judicial Appointments, Marc Nadon, and the Supreme Court Act Reference

By Carissima Mathen and Michael Plaxton

SERIES: Landmark Cases in Canadian Law

UBC Press

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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 raged: as a federal court judge, was Marc Nadon eligible for one of the three seats traditionally reserved for Quebec? Then, in 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.

This is a compelling and comprehensive book that will captivate law students and legal scholars, as well as others interested in law, politics, and the courts.

RELATED TOPICS: Law, Law & Politics, Law & the Courts

Deft, compelling, and illuminating, The Tenth Justice provides a definitive account of what is surely the strangest case so far in the twenty-first century. Eric M. Adams, professor of law, University of Alberta

An intriguing detective story. Gillian Calder, associate professor of law, University of Victoria

Carissima Mathen is a professor of law at the University of Ottawa and a former director of litigation for the Women’s Legal Education and Action Fund (LEAF). She is the author of Courts Without Cases: The Law and Politics of Advisory Opinions, the first legal monograph on the reference function of Canadian courts, and the recipient of numerous awards including the Law Society Medal (Law Society of Ontario) and the University of Ottawa Excellence in Media Relations Award. Michael Plaxton is a professor of law at the University of Saskatchewan. His teaching and research focuses on criminal law, evidence, philosophy of law, statutory interpretation, and constitutional theory. He is the author of Implied Consent and Sexual Assault: Intimate Relationships, Autonomy, and Voice, and Sovereignty, Restraint, and Guidance: Canadian Criminal Law in the 21st Century.

Introduction

1 What’s So Bad About Marc Nadon?

2 The Prime Minister’s Prerogative

3 Memos

4 Asking and Telling

5 The Legal Showdown

6 The Opinion and Its Critics

7 The Aftermath

8 Judicial Appointments Law

9 A Court Frozen in Amber

Conclusion

Appendix