Weighing Senate reform without three Quebec judges ignores province’s rights, minister says

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The country's top court is disregarding Quebec's constitutional rights by hearing a government reference on Senate reform while the appointment of a third judge from the province is still in question, Quebec's Intergovernmental Affairs Minister says.

Alexandre Cloutier said he views the reference, which the Supreme Court will hear next week, as one of the most significant cases the court has addressed in recent years and one that should be heard by a full slate of Quebec judges. The province's National Assembly passed a motion last week calling for all three Quebec judges on the court to be present for cases that are important to the province.

"If this guarantee does not allow us to have three judges on the bench at a time when it counts the most, then we have to question what it really means," Mr. Cloutier said in an interview on Thursday. "It certainly affects Quebec's constitutional right to have three judges on the bench."

The Supreme Court Act requires three of the court's nine judges to be from Quebec, but does not specify that all must be at every hearing. The act requires a minimum of five judges for quorum.

The federal government appointed Justice Marc Nadon to the third Quebec seat earlier this year, but he has stepped aside until his colleagues rule on whether a Quebec judge can be appointed to the Supreme Court from the Federal Court of Appeal.

There is precedent for hearing cases of national significance without all three Quebec judges. When the court ruled on Senate reform in 1979, one of the three Quebec justices was not present. (The ruling did not explain that judge's absence).

Mr. Cloutier acknowledged that the court has made decisions in the past on cases that were important to the province without all three Quebec judges. But he said, "this is a bad way to proceed, because Quebec has the right to three judges and we insist on having them."

Adam Dodek, a law professor at the University of Ottawa, said nothing in the Constitution outlines a right for all three Quebec judges to sit on every case.

"The power to determine how many judges sit on a case and which judges sit on a case is a power that lies completely with the Chief Justice," he said. "It would infringe judicial independence for any party or any government authority to attempt to tell the Chief Justice how many judges or who she should choose to sit on a particular case."

A spokeswoman for Justice Minister Peter MacKay said he was not available to comment on Thursday. Earlier this week, the minister said he believes Justice Nadon's appointment is legitimate and said the timing of Supreme Court hearings is a matter for the court to decide.

Last month, the Quebec Court of Appeal found the federal government's plans to reform the Senate unconstitutional. The court used the 1979 decision by the Supreme Court to come to its decision, meaning the Supreme Court would have to overturn that precedent to back the government's bid for reform.

Paul Daly, who teaches law at the Université de Montréal, said all of the pertinent arguments in the Senate reform case will be made by the provinces or the intervenors. And he pointed out that one of two amicus curiae – friends of the court – in the Senate reform case is Daniel Jutras, a law professor at McGill University in Montreal. "Quebec will have the chance to make its case and make its arguments," Prof. Daly said.

With a report from Sean Fine in Toronto