Who should care about Marc Nadon?

‘Canadians who care about their country,’ says Peter MacKay

Marc Nadon. (Adrian Wyld/CP)

OTTAWA – Canada’s justice minister says all federal judges should be eligible for nomination to the country’s highest court, no matter which province they’re from.

Peter MacKay made the comments as the Supreme Court of Canada heard arguments today in a constitutional challenge of the federal government’s decision to name Marc Nadon to the nine-judge panel.

The appointment of Nadon, a semi-retired Federal Court of Appeal judge, was called into question almost immediately after Prime Minister Stephen Harper appointed him to the bench.

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

MacKay says he expects the high court to make the right decision about Nadon’s appointment.

He says it would be unfair to exclude some Quebec judges from consideration for appointment to the court while judges from other provinces don’t face similar challenges.

“Federal court judges who come from the province of Quebec should enjoy the same rights and priveleges for consideration for Supreme Court appointment as every other provinces,” MacKay said.

“This is a fundamental issue of fairness…. There’s really nothing more critical to the administration of justice than the perception, the reality of fairness.”

Seven interveners are taking part in the hearing, 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, Harper’s sixth appointment to the Supreme Court.

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.

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 Canadian Association of Provincial Court Judges makes an argument similar to the federal government, saying a narrow interpretation of the law could unfairly exclude some Quebec judges from consideration for appointment to the Supreme Court.

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.




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Who should care about Marc Nadon?

  1. Harper and the right appointment are two things observably incompatible. Not that Nadon isn’t of good character, he was drafted by the Red Wings you know. This is a partisan appointment in the tradition of Harper’s contempt for Canada. I’m glad, like most Canadians, that this has been no cake walk for an increasingly deviant King Harper and his gang.

    • See, the whole reason Harper appointed Nadon is because he’s not an activist judge. In other words, he’s NOT partisan. But the partisans who can’t stand the idea of an SCOC judge not re-writing laws on their own whims can’t stand the idea, so they’re challenging the appointment.

      • This is not occuring. Rather, in most instances people are angry about, judges are following a centuries old tradition of common law and fleshing out a Charter which is not activist or left wing but IS a robust document forming part of our constitution.

        • In Rick’s world NOT partisan is just his kinda partisan. Which it goes without saying is superior to any other kind of partisan.

          • Do you actually know what the word partisan means? Because you seem to lob it around like it means “not left-wing”, or as though it’s some insult.

            You, neuroticdog, and GFMD are some of the most partisan posters here, myself included. I don’t see why you constantly try to deny what’s plainly obvious to any rational observer though.

          • I’ve lost count of the times i’ve prefaced my comment by pointing out i’m a partisan Liberal. The dif between us is i try and criticize my party if i think they have it wrong. the dog and GFMD also make an effort, it’s possible to have a reasonable debate with them. You on the other hand make no effort to criticize this govt or hold them to account. You’re the very definition of blindly loyal and mindlessly partisan. You’d look completely in place honking with most of the other seals on the govt side of the House. Go ahead, see if you can find one poster who knows you [other than FV] who will validate your bizarre claim to being a rational partisan.

          • I don’t hide my partisanship either. But I’ve criticized the government plenty of times. Just yesterday I said they shouldn’t be spending the crazy amounts of money on advertising that they are.

            But of course that was in response to someone who was claiming that it was criminal of the current government to do so, but was unable to get themselves to admit that what this government is doing with advertising is no different than previous governments.

            The difference however is that you feel obliged to criticize everything the current government does, and can’t acknowledge a single good thing they’ve done.

            I fully support the fact that the Liberals support Keystone XL and (generally) the oilsands, it’s just plain good policy. But you tie yourself into knots trying to criticize the government for supporting KXL, while at the same time supporting Trudeau for doing the exact same thing.

            Stephen Harper could personally find the cure for cancer tomorrow, and you, GFMD, and neuroticdog would be here complaining about how Stephen Harper is destroying good paying jobs in the medical industry.

            There’s partisanship, and then there’s Harper Derangement Syndrome.

          • I noticed that one yesterday too. i’d bet dollars to donuts it was the first one in a very long time.
            As for my critique of the Harper position on keystone – its simple, they have sold it incompetently. Which exactly what JT said in his speech in Calgary to the oil guys. I’m still waiting to hear your…well done JT.
            The spectacle of you trying to portray yourself as a balanced tory partisan is truly hilarious. I’m sure you’ve given 90% of the people who blog here a good belly laugh. All you need to do now is tell me you almost voted Liberal one time, but you got better.

      • “Activist” judge defined: any judge with whose decisions neo-cons disagree.

      • More likely Nadon is a Scottish Rite Free Mason.

      • No. Seriously, No.
        They are challenging the appointment on sound legal grounds. They mahy not win, but they have an actual legal argument to make.
        The nonsense about “activist judges” is a conservative fiction. There is no national conspiracy involving hundreds of judges to screw Stephen Harper.

    • Are you even aware that Nadon was short-listed by a committee consisting of 1 member from each party? Both the NDP and the Liberals also thought that Nadon would be a fine SCOC judge.

      • And are you aware that those MP’s sign an oath of confidentiality and therefore there is no way to know whether the liberal and NDP members of that committee agreed with their conservative counterparts on this guy?

  2. I have a better idea. Set some minimum credentals and accomplishments basics they must achieve in their career before being a superior court judge.

    Then let the people elect them. After all, we pretend to be a democracy, lets have more of it.

    Or allow each party to nominate one and the power party nominates 2. And lobby bribery isn’t allowed, each gets $2M to advertise, then the people vote and they are to use their tax IDs. If you don’t file, you can’t vote.

    In any case, the terms should also be limited to 4 years and incumbent can run for say 2 terms. No more buddy back room deals.

    • No. The rule of law depends on being independent of the masses. Our rights suspercede popular opinion.

  3. “This is a fundamental issue of fairness,” so says Peter MacKay. Well Peter, who said life was fair? And was it fair when you sold out David Orchard? Get a grip.

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