The Shadow of Absurdity and the Challenge of Easy Cases: Looking Back on the Supreme Court Act Reference

(2015) 71 Supreme Court Law Review 161

Ottawa Faculty of Law Working Paper No. 2016-03

32 Pages Posted: 23 Dec 2015 Last revised: 4 May 2016

See all articles by Carissima Mathen

Carissima Mathen

University of Ottawa - Common Law Section

Date Written: May 2016

Abstract

In a 2014 advisory opinion, the Supreme Court of Canada found that the appointment of its newest member, Marc Nadon, was void ab initio. It concluded, as well, that the Court's existence is now protected, under the Constitution of Canada, against ordinary legislative change.

By virtually any measure, the Supreme Court Act Reference was an exceptional constitutional moment. This article reviews what made it so. It situates the proceedings within what is fairly described as a perfect storm of law and politics. It describes three specific dilemmas the court confronted in having to pronounce on the status of one of its own.

The 6-1 opinion declaring that Justice Nadon's appointment was void was met with much skepticism. The article considers, and rejects, two of the most common criticisms of the majority’s reasoning: that it rests on absurd premises, and that it has led to undesirable consequences.

Finally, the article considers the reaction to the Reference more generally. The Canadian Supreme Court routinely issues controversial decisions. Even so, the response to the Reference was unusually intense. Discussing how particular events can shape and amplify the expectation that the Court will provide a “right answer”, the article offers three reasons that the Reference provoked the reaction that it did.

Keywords: constitutional law, judicial appointments, statutory interpretation, Supreme Court of Canada, law and politics

Suggested Citation

Mathen, Carissima, The Shadow of Absurdity and the Challenge of Easy Cases: Looking Back on the Supreme Court Act Reference (May 2016). (2015) 71 Supreme Court Law Review 161, Ottawa Faculty of Law Working Paper No. 2016-03, Available at SSRN: https://ssrn.com/abstract=2706686

Carissima Mathen (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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