Supreme Court quarantines contested nominee Marc Nadon from rest of bench


OTTAWA – Prime Minister Stephen Harper’s latest choice for the Supreme Court of Canada has been quarantined from the rest of the bench while it hears a legal challenge to his appointment.

The Supreme Court has filed a letter with Canada’s attorneys general stating that Marc Nadon is not permitted to have contact with the other eight justices on Canada’s top court.

He cannot work on cases, and is not allowed to visit his new office or even the court house.

Nadon, a semi-retired Federal Court judge, was appointed by Harper last month to fill one of the three Quebec seats on the nine-member Supreme Court.

However a Toronto lawyer has taken the highly unusual step of mounting a legal challenge, arguing the Ottawa-based Nadon does not meet the bench and residency requirements for a Quebec representative on the high court.

The Quebec government has also contested the appointment, and the Harper government responded with its own reference to the court seeking guidance.

The Canadian Press reported last week that Nadon has been given an office in the Supreme Court building just down the street from Parliament Hill, and that the reference on his appointment was causing some discomfort within the court.

The court refused to comment for the story on whether Nadon had an office or had taken up residence.

But the following day, new rules of engagement were filed on the court docket “to ensure that the members of the Court are able to deliberate on questions referred to the Court in a manner free from any conflict of interest.”

In short, Nadon is to steer well clear of the Supreme Court building and its denizens until the challenges to his appointment are resolved.

“Justice Nadon will not occupy his office or attend at the Court,” stated the court correspondence, dated Nov. 1.

“The Court confirms that none of its members has discussed the merit of the (legal) challenge or the reference with Justice Nadon.”

Interveners in the government’s reference have until Jan. 3, 2014 to submit their arguments, and a hearing is scheduled for the middle of January.

Nadon, 64, has spent the last two decades on various federal courts and tribunals, leading critics to argue he will not be familiar enough with Quebec’s civil code to serve as one of the province’s three guaranteed representatives on the high court.

The Conservative government argues that a Federal Court judge, even a supernumerary like Nadon who only carried half a caseload, is perfectly qualified to serve.

Two retired Supreme Court justices and at least one constitutional expert have endorsed the government’s view. However the fact the Conservatives sought out those opinions in advance suggest the government knew Nadon’s appointment would be controversial.

And the government tried to hedge its bet, after the appointment, by rewriting a section of the Supreme Court Act in its latest omnibus budget bill to make it explicit that someone in Nadon’s circumstances is qualified.

“This is what is called a declaratory provision which is meant simply to clarify what we believe is the proper interpretation of the existing act,” Justice Minister Peter MacKay said Oct. 22 as the government introduced a 300-plus page budget bill.

That same day the government asked the Supreme Court to weigh in on the constitutionality of Nadon’s appointment.

“It is such a mess,” said NDP justice critic Francoise Boivin.

“It’s so sad. You have nothing but respect for that institution. None of this is their fault.”

Nadon is Harper’s sixth appointee to the top bench and the first that has caused any significant degree of controversy.

Note to readers: This a corrected story. An earlier version incorrectly attributed the Nadon quarantine measures to the Attorney General of Canada, rather than the court itself.


Supreme Court quarantines contested nominee Marc Nadon from rest of bench

  1. In the meantime Harper has been appointing unsuitable people to other positions…the Senate, the AG, his office……..

  2. 1. The Binnie opinion is pretty good. Its overall point – vividly illustrated by making a comparison with former Justice Arbour – is compellingly stated: a former member of the bar, eligible for appointment to the Supreme Court of Canada, who is then appointed to a post outside of Quebec that makes him or her even more qualified, should not then become ineligible. The Court has a choice between ruling that an extra phrase in the French version dictates an absurd outcome until the law is amended, or ruling that the English version should prevail.
    2. A lot of the criticism of whether he is technically eligible for appointment, and of whether the ambiguity could have been better managed administratively, gets mixed up with whether Nadon is best choice to represent Quebec. That’s unfortunate. The sloppy criticism does a disservice to the institution and is shortsighted.
    The argument that he has forgotten everything he ever knew about civil law, or that each Quebec SCC representative must be an expert in the Civil Code, ignores the nature of the Supreme Court. Where one party has a wrongheaded read of the law, the superior court is there to correct things. Where there is a goof or an omission or oversight by the superior court, the appellate court gets to act. That’s typically where things stop. But when there are nearly equally legitimate competing interpretations of the law, that require careful consideration of what the law should be in the broadest context, the Supreme Court may hear the case, if it so chooses. Prior experience as a judge and as an appellate judge is hence highly relevant experience, even if it has not been steeped in recent Civil Code subject matter.

    • Matt there are legions of more eminently qualified candidates . Harper chose him because of the favorable dissent supporting Harper’s policies. Unfortunately they use the same criteria for appointment of Senators Politics should have no role to play in appointments ..

      • yeah the bit about whether he was the best choice struck me as odd because no-one is saying that. That, and I don’t think the idea of absurd is quite as blunt as what is necessaryw hen the law talks about avoiding absurdity.

        • Right. Noone is saying he is the best choice. Including me. I don’t understand your second sentence.

      • Sure. You’ve just proven my point. I don’t say he’s the best choice and actually didn’t discuss that at all. I have no view because I’m unfamiliar with all but one of the current Quebec Court of Appeal justices, and only a couple of the leading litigators.
        My point, and what I said, is that people wrongly mix the following two arguments together: (1) is Nadon eligible under the Supreme Court of Canada Act? (the issue before the Court) and (2) is Nadon the best choice among eligible candidates? (Harper can appoint anyone all he wants who is eligible under the Supreme Court of Canada Act and whose name survives the long list/short list nomination process)
        Critics wrongly argue that the issue of eligibility before the Court should be decided based on relative merit.

  3. I wonder if Nadon is starting to wish he’d just stayed in semi-retirement in the Federal Court, where he could continue to regale courthouse staff with stories about how he was once drafted by the Detroit Red Wings.

    As things stand now, he’s just another on the growing list of Con fellow travelers who’ve been injured in the trainwreck of Harper’s headstrong tactics.