On ‘politicizing’ the Marc Nadon mess

If the references of the prime minister and justice minister regarding consultation are to the public ad hoc hearing wherein Justice Nadon faced questions from parliamentarians — on which I sat — there is no issue of unanimity — there were no votes nor should there be. If the suggestion is somehow that those with concerns should use that hearing to voice them — after the nominee has already been announced by the justice minister — the unacceptable resulting politicization would tarnish the court’s excellent reputation and the justice minister himself cautioned against this at the hearing’s outset.

Here is what Peter MacKay told the ad hoc committee just before Marc Nadon began testifying.

Finally, I want to remind all of you that the eminent member of the Canadian judiciary who has been invited here today and is with us will be responding to your questions in a manner that reflects the independence and impartiality of our judicial system. This means that some questions may not be answered fully or at all, which is within his right and, again, at his discretion.

To lay out some of the basic ground rules, I remind you that any question that raises an issue of law that might potentially come before the Supreme Court of Canada, as well as any question on matters of government or public policy, would not be viewed as appropriate.

Consistent with our very Canadian approach to these matters, I would add to the list that all questions of a personal nature, that is to say, questions that delve into Mr. Nadon’s personal life and do not relate to his professional life or experience, would not be appropriate. However, despite this caveat, I understand that Mr. Justice Nadon is an avid golfer, so you may wish to question him about his handicap, the state of his game, or distance off the tee. Those questions would be within the purview of his discretion to answer. That may depend on the type of season that he’s had this summer.

Justice Jean-Louis Baudouin then advised the committee as follows.

Since the process of appearing before the House of Commons was introduced, certain rules have been defined, and they must be followed. I believe we should stay away from the American model, which more closely resembles an aggressive cross-examination than a conversation or dialogue. Therefore, it is not appropriate to ask the candidate about pending matters, whether before the Supreme Court or other courts, or to ask him his personal opinion on highly controversial issues. Asking him to explain or, worse still, justify some of the decisions he has rendered during his career should also be avoided. Lastly, questions of a very personal nature—except, perhaps, about golf—such as those about his personal life, are clearly not acceptable. On the contrary, questions about his legal experience are.

What should you do, then? You could—and I would even say should—sound out the Honourable Marc Nadon about how he perceives his role, what contribution he intends to make to the court, what he thinks about the role and evolution of the law and where his motivation comes from.

Do those grounds rules leave some room to question whether the justice meets the qualifications of the Supreme Court Act? Would it have been accepted as perfectly fine if Mr. Cotler or some other member of the committee had said, Oh by the way, I’m actually not entirely sure Mr. Nadon meets the requirements? I suppose those are things that should be clarified for future reference (though presumably this situation is unlikely to occur again).

I’ve asked the Prime Minister’s Office to explain Mr. Harper’s comments, but have not heard back. If nothing else, the government will have to offer Mr. Cotler’s order paper questions some kind of response.

As it is, what was already a hot mess, is now somehow messier.