It’s a solution, but it may not be a good idea.
A distinction must be made between two things: challenging the appointment of a particular judge is not the same as challenging the legislation that would amend this requirement for appointment through ordinary legislation.
Challenging the appointment of a particular judge—as we saw once in the Nadon case—has been circumvented. The process has been sped up a great deal. Otherwise, it would have had to escalate from the lower court to the Court of Appeal up to the Supreme Court. It would have taken a tremendous amount of time. In that case, the ambiguity of the Supreme Court Act was raised, and the court was asked to provide an opinion on the issue by reference.
Is it a good idea to make a reference? I do not know what the Supreme Court thinks. Clearly, I cannot read the judges’ minds. In my view, a reference to the Supreme Court on matters affecting the Supreme Court puts the Supreme Court in an uncomfortable position.