Supreme Court: What’s at stake in the case of Marc Nadon

And who should care? ‘Canadians who care about their country should,’ constitutional expert says


OTTAWA – A constitutional battle will be engaged today over whether the government is free to change the rules for the top court in the land.

It didn’t start out that way, but last fall’s unremarkable appointment of Federal Court of Appeal Judge Marc Nadon to the Supreme Court of Canada has opened up a legal can of worms.

Seven interveners are taking part, including the federal and Quebec governments, an association of provincial court judges and a number of constitutional experts.

The repercussions could extend far beyond the employment future of Nadon, Prime Minister Stephen Harper’s sixth appointment to the nine-member Supreme Court bench.

Among the scenarios presented in court factums are a Quebec separatist movement reinvigorated by Ottawa’s court manoeuvres and a Supreme Court stacked with partisan appointees by the government of the day.

“Canadians who care about their country should” care about the case, constitutional expert Peter Russell said in an interview.

“The Supreme Court is called upon all the time to make extremely important decisions about the Constitution of Canada that limits and defines the powers of our governments.”

Not since the Supreme Court was created by an act of Parliament in 1875 has there ever been a hearing quite like today’s.

Nadon, 64 and semi-retired before he was plucked from obscurity last September, faces a constitutional challenge because he may not meet the criteria to sit as one of the three Quebec-based judges that are required on the nine-member bench.

Part of the case involves a parsing of the French and English language of the appointments section of the act, which differ slightly.

The government “absolutely knew this was an issue,” said Adam Dodek, a constitutional law professor at the University of Ottawa.

Justice Minister Peter MacKay sought a legal opinion from retired Supreme Court judge Ian Binnie to buttress Nadon’s appointment even before it was announced.

The government subsequently used an omnibus budget bill to redraft the Supreme Court Act language to “clarify” that Nadon was in fact eligible.

But by then a constitutional lawyer and the Quebec attorney general had signalled their intention to challenge the appointment’s legality.

“The court has been put in this awkward position by the government,” said Dodek.

The court had to issue a public notice stating that Nadon, already sworn in as Harper’s sixth Supreme Court appointee, had been told stay away from case files and off the court premises until the legal questions are resolved.

What may be at stake is whether Parliament can rewrite the rules for appointing Supreme Court justices as it sees fit.

That’s the angle taken by the Constitutional Rights Centre and lawyer Rocco Galati, who together launched the initial challenge.

The rights centre argues in a factum, for instance, that the government could conceivably redraft the rules so that “only card-carrying Conservatives” are eligible for appointment.

Galati and the centre believe the 1982 patriation of the Constitution “constitutionalized” the Supreme Court’s appointment rules and only a constitutional amendment can alter them.

The government argues that a narrow interpretation of the Supreme Court Act could effectively bar any Federal Court judge from being appointed to the top bench, effectively making an already small pool of qualified jurists even smaller.

The Canadian Association of Provincial Court Judges makes a similar case, and extends the diversity argument to the lower courts as well.

The hearing is expected to wrap up by mid-afternoon, but it could take weeks or months before the court issues its response to the government reference on what rules apply to Quebec appointments to the bench.


Supreme Court: What’s at stake in the case of Marc Nadon

  1. Much of our political system depends, not on written rules or procedures, but on our elected representatives “doing the right thing” by their constituents in the appointment of members of the judiciary, law enforcement, various boards, ceremonial positions (Lt and GG), up to and including the Senate.
    Unlike our neighbours to the south who’s penchant for electing many of these officials has resulted in often disastrous outcomes because of campaign money and pandering to a vocal minority, the appointments process is deemed to optimize the selection of the best candidate to fill the bill from a peer suggested list presuming the candidate has been vetted as to suitability for the position. Our political betters then choose their person based on similar criteria and all is well with the world.
    But is it?
    Joseph Stalin once said “It’s not the voters who count but who counts the votes”. What happens when the selection process goes off the rails and the overwhelming criteria becomes the candidate that either mirrors the political will of the chooser or indicates a willingness to be stooge? The Senate appointment process has long been a travesty of the original intent. Many board and commission appointments have been co-opted into an ideological nightmare, many quasi-governmental positions use loyalty as the benchmark for competency and now the judiciary?
    Can we no longer trust the judgement of our leaders to do the right thing? Am I being a Pollyanna in thinking that this is something new?
    Jesus, Mary and Joseph, is there anything that the current government can’t politicize? Frankly, it has come to the point where I don’t trust the judgement of our leadership to act in the best interests of ALL their constituents. I’d rather some independent judge deciding something on the factual merits than having to consider whether or not it displeases his/her owner.

    • Except you missed that this wasn’t a politically loaded appointment at all. No serious person is arguing that Nadon will be a stooge, or that Harper is trying to stack the bench with conservatives (some are arguing that, but they can’t be taken seriously, since that’s not what has happened over six appointments). His appointments, including Nadon, have all been moderates. He has fastidiously avoided appointing progressives and right wingers alike, selecting moderates who are committed to the Charter, but who have demonstrated a reluctance to see the court’s influence expand into areas that traditionally belong to the elected legislatures. Even after the appointment of Nadon was challenged on the basis of a legal technicality, it still did not become politicized. The challenge will be heard by the courts; ultimately the legality of the appointment will be decided by judges, not by politicians.

      • Not everyone feels that way about Nadon. I have a suspicion( for what it’s worth) that Harper is becoming impatient in this area; too many cases have gone against him. Nadon, while no radical, has a history that fits the profile. Harper is finally showing his hand in this area.

        • All his appointments thus far had a history of being reluctant to expand the court into areas traditionally belonging to elected bodies. That seems to be his overriding criteria for appointing them. Nadon’s profile is similar to nearly all the other appointments in that regard.

          • Well, there was that little matter of Khadr and the charter…but i guess we’ll let that go eh. Even SC judges make mistakes on occasion.

      • I wasn’t particularly commenting on whether or not Nadon is suitable to fill the position. What I was commenting on was the argument, as typified by these quotes, that the present system of appointments may well be radically altered by our present excuse for a government:
        ” What may be at stake is whether Parliament can rewrite the rules for appointing Supreme Court justices as it sees fit.” and “The rights centre argues in a factum, for instance, that the government could conceivably redraft the rules so that “only card-carrying Conservatives” are eligible for appointment.”

    • Well thought out and said!

  2. Our constitution and charter of rights are deliberately written in a fashion to deceive the people. They are written to give the illusion of equality while allowing governemtn to define cast class based on race, origin and other discriminations by preferences.

    Yep, Canada couldn’t even get immutable equality in services, taxation and law correct. Even third world countries get this one right.

  3. The Meech and Charlottetown accords included amendments to clarify these requirements, so it was understood at the time that these requirements needed clarification that would receive the consent of 10 legislatures, etc.. Can parliament or the court do what was deemed twenty years ago to require the consent of ten provinces…? Can the passage of time alone remove the requirement for the consent of the provinces to bring on these clarifications? I would think not. But I’m glad there are judges around to sort out this mess.