OTTAWA – There are a number of qualified Quebec candidates who could be appointed to the Supreme Court of Canada, Justice Minister Peter MacKay said Monday.
But three days after the country’s top court rejected Prime Minister Stephen Harper’s latest appointee to the bench, the Conservative government is ignoring opposition demands that Justice Marc Nadon formally be ruled out of the running.
The Supreme Court found last week that Nadon, a semi-retired Federal Court of Appeal judge, did not meet the specific eligibility requirements for a Quebec seat on the bench that are laid out in the Supreme Court Act.
And it said the government needs a constitutional amendment to change the criteria for judges on the top court.
“We’ll examine the decision from the Supreme Court as we continue to move forward to appoint and see that the Supreme Court has a full complement of judges,” MacKay told the House of Commons on Monday as Parliament returned from a two-week break.
Under questioning from the Bloc Quebecois, MacKay allowed — speaking in French — that filling the Quebec vacancy on the top court is “absolutely necessary under the Constitution and for its fundamental functions.”
“And we have many qualified people for this job,” he said.
Harper, travelling in Europe, has yet to be asked about Nadon’s unprecedented rejection by the Canadian reporters travelling with him.
The Prime Minister’s Office issued a statement last Friday expressing the government’s surprise and questioning the top court’s assessment, based on an opinion the government commissioned from a former Supreme Court justice.
“We will review the details of the decision and our options going forward,” said the statement.
MacKay didn’t deviate far from the official line Monday even as he was asked repeatedly in the House whether Nadon is now out of contention.
And that leaves an opening for Opposition concern that the government may attempt to push Nadon onto the court by other means.
NDP Leader Tom Mulcair set the tone even before the daily question period began, telling a news conference: “I’ve learned with Stephen Harper that he doesn’t take correction easily.”
When the government originally sought a legal opinion last summer on Nadon’s eligibility, it asked retired Supreme Court judge Ian Binnie two questions: whether Nadon was eligible as a Federal Court judge and, if he was not, whether he could simply be readmitted to the Quebec bar for a day to become eligible.
Binnie opined that Nadon was eligible for appointment as a member of the Federal Court of Appeal, then declined to answer the second question.
Binnie wrote that “any hypothesis that requires of a person who starts the week as a Federal Court judge to rejoin the Quebec bar mid-week for a day or two in order to ‘qualify’ for appointment to the Supreme Court by the end of the week makes no sense.”
“Such a two-step expedient,” Binnie added, “is neither required nor compatible with the dignity of the office being filled, in my opinion.”
Even if the government and Nadon attempted to go that route, there are multiple timelines and adjudication periods for joining the Quebec bar. These include a period of up to 45 days when certain parties can object to an application, a 60-day response period and then a 90-day decision period — a process that could chew up another half-year.
Nadon has not responded to interview requests so it is not clear whether he would even consent to such a process.
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