Purposive Interpretation, Quebec, and the Supreme Court Act

Abstract

On 30 September 2013, the Prime Minister announced the nomination of Marc Nadon, a Federal Court of Appeal judge, to fill the seat vacated by Supreme Court Justice Morris Fish. The announcement was accompanied an unusual supporting document: an opinion by a former Supreme Court Justice, The Honourable Ian Binnie. Asked whether the Supreme Court Act permits the appointment of Federal Court judges, Binnie wrote a brief memorandum arguing that it does – a conclusion endorsed by another former Supreme Court Justice, Louise Charron, and Professor Peter Hogg.

In this brief paper, we examine Binnie's approach to the interpretation of ss. 5 and 6 of the Supreme Court Act. Though his interpretation of s. 5 is sound, we are less sure of his approach to s. 6. The text and legislative history of s. 6 suggest that there may well be a statutory barrier to Nadon's appointment. We also take the opportunity to reflect on purposive interpretation generally.

Keywords: statutory interpretation, Nadon, Binnie, Supreme Court of Canada, purposive interpretation