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.