Why did Harper wade into the Marc Nadon controversy?

From the Maclean’s archives: The real question beneath the Supreme Court legal dispute


Chris Wattie/Reuters

In a landmark decision sure to send out political shockwaves, especially in the Quebec provincial election, the Supreme Court of Canada Friday morning blocked Prime Minister Stephen Harper’s appointment of Marc Nadon to the country’s top court. The eligibility of Nadon, a 64-year-old semi-retired federal court judge, had been challenged. This story from early this year probed the key question: Why would Harper risk trying to appoint Nadon in the first place?

Until a few months ago, Stephen Harper had an unblemished record for naming judges to the Supreme Court of Canada without sparking any serious controversy. Of the nine seats on the country’s top court, the Prime Minister filled five, as judges retired between 2006 and 2012, and the legal community mostly nodded approvingly at his choices. Some law professors, predictably, detected a rightward shift after years of Liberal picks, but the credentials of Harper’s selections were hard to dispute. Then came his appointment last fall of Justice Marc Nadon. The initial reaction among veteran court-watchers was frank surprise: The partly retired Federal Court of Appeal judge, 64, a specialist in maritime law, of all things, hadn’t made it onto anybody’s short list for the Quebec vacancy.

Except the one that counted. But Harper had done more than elevate a relatively obscure judge. The Supreme Court’s three Quebec members must, by law, be appointed from the province’s court of appeal or superior court, or come “from among the advocates of that province,” meaning lawyers who work in Quebec. The federal government argues that, having practised law in Montreal for two decades before joining the federal court in 1993, Nadon still fits the bill as a Quebec advocate. The Quebec government, however, challenged that interpretation. Arguments in the clash were to be heard this week in the Supreme Court, which has been put in the unprecedented position of having to rule on who gets to crack its own rarefied lineup.

Beneath the legal dispute over Nadon’s eligibility, though, lies the more politically fraught mystery of why Harper waded into this controversy in the first place. What was it about this particular judge that attracted the admiring attention of Conservative insiders? The most intriguing possibility, often noted by lawyers commenting on Nadon’s otherwise low-key history on the bench, was his dissenting opinion in a 2009 federal appeal court ruling on Omar Khadr, the Canadian then being held in the U.S. military detention centre in Guantánamo Bay. In that split decision, two judges ruled that Canadian government officials had violated Khadr’s rights by interviewing him at the base and sharing what he said with American authorities, and that Ottawa should press for Khadr to be sent home to Canada. Nadon disagreed, essentially advising the courts to stay out of foreign policy. “Whether Canada should seek Mr. Khadr’s repatriation at the present is a matter best left to the executive,” he wrote.

There can be little doubt that Nadon’s conservative restraint must have gone over well with the Harper government. But would that single dissent—no matter how noteworthy—have been enough to vault him into contention, among better-known Quebec judges who also appear ideologically acceptable to Conservatives? The process for vetting Supreme Court candidates is so opaque that no outsider can say for sure what factors weighed heavily. What shouldn’t be overlooked, however, is that during the period when Nadon was being considered and finally chosen, the Prime Minister had a new top legal aide—a key adviser who happens to have been, before joining Harper’s political staff, among the most outspoken opponents of anyone sympathetic with Khadr’s plight.

Howard Anglin joined the Prime Minister’s Office last spring with the title “senior adviser, legal affairs and policy,” after a stint as chief of staff to then-citizenship and immigration minister Jason Kenney. But Anglin was still an associate with the Washington law firm Wiley Rein when, on May 27, 2008, he testified in Ottawa on his own behalf before a parliamentary subcommittee looking into the Khadr case. He told the MPs that the controversial U.S. military commissions convened to try accused terrorists held at Guantánamo Bay were allowed under international law, rejecting the claims of those who said they violated the Geneva Conventions. As well, Anglin said Khadr could legally be charged and tried under the U.S. military process, even though he was only 15 when he was captured by U.S. forces in 2002 in Afghanistan after a firefight in which he allegedly killed an American soldier.

His staunch position before the subcommittee prompted a derisive reaction from some opposition MPs. “There is probably no country in the history of this world more committed to the preservation of individual liberty than the United States of America,” Anglin said, then added, “I hear sniggers on that point, and I can address them, I can address them.” By then, he was steeped in the legal arguments surrounding the Guantanamo detainees as few other Canadian legal experts. He was was one of four lawyers at his Washington firm who worked on a brief filed with the U.S. Supreme Court in 2007, supporting then-president George W. Bush’s policies that severely limited the rights of the detainees. Wiley Rein submitted that brief on behalf of three conservative groups—the Foundation for Defense of Democracies, the Center for Security Policy and the Committee on the Present Danger—in a landmark case known as Boumediene v. Bush.

The U.S. Supreme Court ultimately decided against Bush in the case, ruling in 2008 that the Guantánamo prisoners had the right to challenge their detentions in an American federal court. The Wiley Rein brief that Anglin helped prepare had contended that the prisoners had no such right. In a news release, the firm broadly stated that “the court should not second-guess the considered judgment of the political branches in the exercise of their respective constitutional powers.” It was a deferential stance in much the same spirit as Nadon’s 2009 dissent on Khadr.

Gauging Anglin’s influence in Nadon’s selection is a matter of conjecture. The secretive formal process started with the federal government consulting with the Quebec government, the chief justice of Quebec, and the chief justices of the Federal Court and Federal Court of Appeal, as well as the Canadian and Quebec bar associations. A long list of candidates drawn up by officials working for the Prime Minister and justice minister was then handed over to a panel of five MPs, three from the governing Tories and one each from the NDP and Liberals. Those MPs then winnowed the list down to an unranked group of three candidates, from which the Prime Minister made his final choice.

The MPs are sworn to secrecy about their deliberations. How they arrived at the three names on the short list is not disclosed. But, after controversy erupted over Nadon’s eligibility, the New Democrats seemed anxious to distance themselves from him. On Oct. 28, a Bloc Québécois MP asserted in the House that the NDP and Liberal MPs on the selection committee must have approved of Nadon as one of the top three candidates. NDP MP Françoise Boivin wouldn’t let that stand. “We had to sign confidentiality orders,” Boivin said, “so we cannot disclose how the vote was held, and we certainly cannot assume that one or the other party voted in favour of the appointment of Mr. Nadon, just because his name was selected.”

That leaves open the possibility that Nadon was mainly, or even only, supported by the three Conservatives on the MPs’ committee. The influence on them of the PMO’s preferences, including Anglin’s input, could have been decisive. Harper’s press secretary declined to answer any questions about Anglin’s role. Whoever championed Nadon, the Prime Minister might well have been receptive to the case for a different sort of judge. After all, despite his five previous appointments to the Supreme Court, he’s lost a string of high-profile cases there, including the ruling last month that ordered his government to reform prostitution laws within a year. Before that, the Conservatives lost their bids to create a national securities regulator and to shut down Vancouver’s supervised injection site for drug addicts.

Ironically, the fact that Harper hasn’t prevailed on such prominent cases is often cited by experts as evidence that the judges he’s put on the court are admirably independent. University of Waterloo political science professor Emmett Macfarlane, author of Governing from the Bench: The Supreme Court of Canada and the Judicial Role, calls them “moderate centrists.” On the other hand, he describes Nadon as a “very unique and odd choice.” And no matter how the court rules on his eligibility, those sitting judges must now worry about “the perception of the court’s legitimacy as an institution,” Macfarlane says. (Nadon was sworn in on Oct. 7, but isn’t hearing cases while his eligibility is decided.)

University of Ottawa law professor Adam Dodek says a far-too-rushed process left the court in this awkward position. Nadon’s nomination was announced on Sept. 30. Two days later, he testified before a hastily briefed parliamentary committee and, the following day, his appointment was finalized by Harper. “The rapidity of it shows that it’s not meant to be a serious vetting,” Dodek says. The serious part, as it’s turned out, has come later.


Why did Harper wade into the Marc Nadon controversy?

  1. The process may be opaque, but are the requirements opaque? According to Radio-Canada Marshall Rothstein chose not to be present at yesterday’s hearing because he too was appointed from the federal court and may not meet the requirements.

    • The requirements are different for the Quebec seats because of the civil law system in Quebec, which is different from the common law system the rest of Canada uses. Rothstein was not appointed to represent Quebec, so this would not have posed an issue for him. If Radio-Canada said such a thing, it was incorrect.

      • While s 6 of the Supreme Court Act applies to Quebec judges, section 5 applies to Rothstein and reads:
        5. Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.

        Rothstein was never a member of a superior court of a province. He practised and taught law before moving to the federal court. The SCC judges present asked Ottawa’s lawyer Rene LeBlanc a number of questions on the federal government’s position, that it would be absurd to exclude Federal Court judges from nominations to the SCC, and it is evidently not Mr. Rothstein’s place to participate in this exchange, or pass judgment on this issue.

        I don’t know if RadCan is right on the reason why Rothstein chose not to be present in court, but I think that is likely the reason.

      • So Mr. Nadon has completely forgotten the legal practice in the province he was born, educated, trained, and practiced for two decades in? All because he spent time on the Federal Court in Ottawa (so faaaaaaaaar away from Quebec too). This challenge is ridiculous, time-wasting, and will eventually fail.

        • No, but that is not the point. The point is that there are requirements contained in the law, and whether or not that a candidate should meet them or if the law is just a worthless piece of paper that governments are under no obligation to abide by.

          • Thank you for that; a perfect summary of Harper’s view of his powers.

  2. Vetting? Ah yes, we must drastically move the goalposts, and erase history in order to find “scandal” under any rock the left leaning media lifts.
    We do not have an American system of “vetting” – hearings and such, when a judge is appointed. The PM picks the court like all other governments have in the past. A liberal government prorogues, over and over again no less, and the chattering class explains that is just “the system”. Harper does it and its a threat to democracy. Liberals hand pick judges and pluck them on the bench – again, “the system”. With Harper? Another scandal to be sure.
    Lather, rinse, repeat.

    • The air must be bad inside the bubble.

    • Could you tone done the violins just a bit? Folks trying to inform themselves here you know.

    • The “left leaning media” didn’t pick this issue or put it before the Supreme Court. It was a member of the legal community and the government of Quebec who challenged the appointment. Don’t shoot the messengers, my friend.

      • Exactly, it was a Toronto lawyer and someone in Quebec who made this an issue. The media’s been spinning this story as if it were somehow all Harper’s fault, when it’s not.

        Why was this not an issue when Justice Marshall Rothstein was appointed, who was also promoted from the Federal court?

        • A Toronto lawyer and “someone in Quebec” aren’t the “left-leaning media”.

          • It’s the left-leaning media that’s reporting on this case as if it’s entirely of Harper’s making, and as if it’s somehow destroys the court’s credibility.

          • It’s an appointment of an “outlier”, in terms of credentials, experience, perhaps even eligibility. It’s not just the media who are speculating on this appointment. Eyebrows are up in the the legal community and the Quebec government is challenging it. The media would be remiss if they failed to report on it and analyze its significance.

            Harper knew this appointment would be controversial. It’s getting the attention it merits. Period. Enough with the simplistic leftist media conspiracy crap.

          • Should the left-media be silenced? Aren’t they allowed to report on whatever they want? Should affairs of the Supreme Court of Canada be kept away from the knowledge of Canadian citizens. Come on Rick.

          • Harper moved to discourse so far right Pravda would be considered, left in Canada.

        • Because the eligibility requirements are different for Quebec judges. Rothstein’s eligibility is unrelated to Nadon’s, as the latter was appointed to represent the civil law system of Quebec, a system he hasn’t practiced in for 20 years.

          • The eligibility requirements for all judges include, but not exclusively include, being a member of a superior provincial court – see section 5 of the act. Rothstein was never a member of a superior provincial court. As this requirement is now being questioned by the government in front of the Supreme Court, Rothstein is not in a position to hear the arguments or pass judgment.
            The 1982 constitution states that an agreement between the 10 provincial assemblies and the two houses of parliament is required to change the composition of the court. The 1987 Meech and the 1992 Charlottetown accords both included provisions that would have made federal court judges admissible for nominations to the SCC.
            If it was deemed by those who participated in the 1987 and 1992 accords (some were also participants in the drafting of the 1982 constitution), that a constitutional amendment was needed to change the nomination requirements , what has happened in the interim to make it possible for the federal parliament to act alone on this?

          • If it was deemed by those who participated in the 1987 and 1992 accords (some were also participants in the drafting of the 1982 constitution), that a constitutional amendment was needed to change the nomination requirements , what has happened in the interim to make it possible for the federal parliament to act alone on this?

            It may not be possible. We have to wait and see what the Court says, and even then they might not address the issue of whether the eligibility requirements can be changed unilaterally, especially if they deem Nadon eligible to sit (thereby, for this particular case, making an amendment to the requirements moot).

            What’s happened in the time since the Meech and Charlottetown Accords is that 20 years have passed, and the people discussing Nadon’s appointment today are, by and large, different people from the people who drafted the Accords. Have you seen anything to suggest that any of the people responsible for Meech or Charlottetown have changed their minds?

        • Why was this not an issue when Justice Marshall Rothstein was appointed?

          Rothstein wasn’t appointed as a Quebec member of the Court.

          • It was not an issue because the government did not make it an issue like it did in the case of Nadon when it sought and made public the opinion of a former SCC judge, Binnie, at the time of the nomination.

          • How would the government have “made an issue” of whether or not a judge appointed to one of the non-Quebec seats satisfied the eligibility requirements for the Quebec seats? Isn’t saying that the government never made an issue of whether or not Rothstein was eligible to sit as a Quebec Justice rather like saying that the government never made an issue of whether or not Pamela Wallen was eligible to sit as a Senator for PEI?

          • Have you read the Binnie opinion that was made public at the same time as the Nadon nomination?


            Non-Quebec judges must also satisfy requirements, like come from a superior court of a province or have been a member of the bar of a province. Binnie’s opinion is one that supports the government’s position, but is the opinion of Binnie the only one that has value in this country? Making such an opinion public at the same time as the nomination is, as far as I know, unprecedented. It was meant to put the spotlight on flaws in the Supreme Court Act, and it does specifically mention Rothstein, as well as Arbour and Iaccobucci.
            Those flaws in the SCC Act were addressed in Meech and Charlottetown, but as you know, the accords did not make it into law. The sections in Meech would have given Federal Court judges access to SCC nomination.
            The federal government is adopting the position that while these eligibility requirements for appointment to the SCC were deemed to require constitutional agreement to be amended twenty years ago, this could now be done by the federal parliament alone.

        • Federal Court is based in common law. Quebec court system is based in the civil law. Appointing a federal court judge from Quebec means he is a judge in the common law, and the purpose of mandating 3 appointments from Quebec is to ensure there are 3 judges versed in the civil law.

          • That’s a little bit simplistic. The Federal Court of Canada’s jurisdiction is over certain enumerated matters which specifically fall within federal jurisdiction — e.g., immigration, admiralty, telecommunications. It’s a bit of misnomer to call it “common law”.

          • I don’t think you understand what “common law” means.

        • Actually no, it was the federal government that brought all this to our attention when they sought the advice of Binnie BEFORE announcing the nomination of Nadon. Read the Binnie opinion, online… Binnie even provides his opinion on Rothstein and that he was never a member of a superior court judge, and not the first one, adding the examples of Arbour and Iaccobucci .

          So why don’t you use the same nasty little name-calling for Harper and his group? Are you strictly a partisan or are you capable of forming an opinion independently of political influences?

        • The requirements are different for Quebec justices and Rothstein is a Manitoba judge. The Supreme Court Act specifies that the 3 Quebec judges on the bench must be appointed from the Quebec Superior Courts, Court of Appeal or the Quebec Bar. Obviously the Federal court is none of these.

        • Nadon hasn’t practiced law in Quebec in 20 years, and similarly hasn’t been a member of the Quebec Bar in over a decade. He may well be eligible nonetheless, but do you really suppose that the Government of Quebec would have just sat idly by while a Quebec seat on the Supreme Court was filled by a semi-retired judge who’s had little to no connection with the province of Quebec since 1993 were it not for some lawyer in Toronto?

          They may not have gotten to the courthouse first, but I can’t imagine that the Quebec government challenging this appointment (as they are now doing) was anything but inevitable.

    • Hi Biff. I see you are still having trouble sticking to the topic in favour of paranoid conspiracy theories

  3. Why indeed? Given the CRAP philosophy of “never apologize, never explain” we’ll never find out.

  4. And Nadon is some super specialized “Maritime Law” freak? Go the Canlii database, select the FCA then type “Nadon”. The first 25 hits produce not a single maritime law case. He’s presided over hundreds of varying decisions. He’s literally seen it all from the bench. Exclusively maritime law? How about almost never a maritime law case.
    Once again the Ottawa elite feel the cold shoulder that one of “theirs” wasn’t selected and so the whispering of inadequacies ensue, with the Ottawa media are more than willing to parrot them without scrutiny in their desperate search for another attack on Harper.
    A shameful display.

    • I love the notion that anyone in the gallery had ever heard of Moldaver, Karakatsanis, Rothstein, Wagner, Fish, or 90 previous justices before their appointment. Our buddies! Our homeboyz!

      Here’s the shameful display we put on the last time a notorious Liberal elite type was named to the Court.


      • The shameful part was that “somebody” described both Garneau and Dryden as charismatic.

      • Of course you don’t. The media really don’t know much about anything. A journalism degree isn’t the some total of all degrees combined. Quite the opposite. Thus I described the media as “parroting” without scrutiny. The key ingredient in deciding to amplify the naysayers is the angle to attack Harper.
        This isn’t the dreaded pooping puffin Paul. It’s not THAT dastardly.

        Thou doth protest too much.

        • When you have the mindset of the nail, I guess everybody in the media looks like a hammer.

    • There are very few maritime law cases, period. It wouldn’t have to make up a very large portion of his collection of decisions for him to be recognized as an expert on it, as there are likely a good many FC judges who went their whole careers without ever hearing a maritime law case. I don’t think anyone used the word “exclusively” – other than you.

      • No he said “a specialist in Maritime Law, of all things”. Yes of all things this is what he specializes in. It’s a clear attempt to marginalize. And the record is clear, that whatever his dablings in maritime law are, he has a reams of experience in other areas. It’s irrelevant and shouldn’t have been raised, but was raised to diminish him. No mention of his hundreds of decisions in other areas. The reader is left with a clearly false impression.

        • It is an area of law where expertise will seldom be called upon. And while he’s a decent judge, he hasn’t otherwise done anything to distinguish himself. There are other judges with more distinguished records in areas where the SCC will more likely be called upon to render decisions, so it’s not “clearly false”. And of course there’s the whole civil law thing – the reason for the three guaranteed seats to Quebec is because of the need to have judges familiar with the civil law system of Quebec; someone who hasn’t practiced in that area of law in two decades is going to be rather rusty, leaving the court with, at best, 2.5 representatives.

  5. No one can say for certain of course, but to me there’s no doubt the Khadr case was sufficient for harper to approve the appointment. Aside from political science-y, ideological difference, you would have to go a long way back in history to find a PM with less legal knowledge who ever apponited a SCC judge. It’s not that he isn’t intelligent but its not his area, any more than he would be an ace at picking the best research chemist or nurse or engineer. So when they tell him “well this guy gave us a result we liked against Khadr”, he’s more likely than many to just latch on to that and say “ok, we go with him.”

  6. “On the other hand, he describes Nadon as a “very unique and odd choice.”
    And no matter how the court rules on his eligibility, those sitting
    judges must now worry about “the perception of the court’s legitimacy as
    an institution,”

    Depressingly this is classic Harper. He tried the reasonable centrist moves until he realizes the courts are becoming a major impediment to his agenda. His response…process is for losers, time to tug the carpet his way.[ this from a guy who broke world records for whingeing about Liberal interference in the courts. But Harper doesn’t do irony either]

    The truly depressing part is it might work. No need to sway the court your way if they insist on not coming. As with the census, Rs & D et al., he just needs to undermine the viability of the institution, create a niggling doubt that will last a long long time after he’s gone. Whether we get a PM Mulcair or Trudeau at some point, they will have to live with yet another tainted institution that had served well up until SH thought it didn’t anymore.
    This will be Harper’s legacy among those who measure such things; a guy who ultimately only respects process until it matters to him. To wreck or seriously nobble it if he can’t own it. A guy who knows the only way to truly win as he defines it, is to make sure he leaves behind a legacy of divided and tainted liberal institutions.

    • I find the last two words of your post interesting.

      • Small l liberal. You have a problem with that?

  7. Why was Justice Marshall Rothstein’s appointment never challenged? He too served on the Federal Court before being appointed to the SCOC. Or is this just one of those things where being from Quebec makes the whole process “special”?

    • In a word, Yes.

      • That’s constitutionancy stuff. Rick doesn’t do that.

        • My, thanks for your excellent contribution to an honest, legitimate question. Maybe I shouldn’t ask questions pertaining to the article at hand and should just flood the comments section with childish insults, as you do, constantly.

          • You bring out the worst in me…NotRick.

          • Sure, blame the victim.

          • ROFL…

          • Or you could pay attention to what people are saying.

      • In a word, no. The Rothstein’s appointment was not challenged because it was not spectacularly brought to the public’s attention that he may not strictly meet the requirements contained in the Act.
        In the case of Nadon however, the government made public the Binnie opinion at the same time as it announced the appointment. Was it supposed to go unnoticed?

        • How exactly does Rothstein “not strictly meet the requirements”?

          • In the same way as Nadon – Rothstein was not a member of the bar at the time of his appointment because he had been a federal court judge for more than a decade, and he was never a member of a superior court of a province, the requirement contained in section 5., pertaining to the requirement for the selection of judges coming from provinces other than QC (Quebec judges are covered in s.6). Indeed, the law passed by parliament this fall changed the wording for both sections 5 and 6 – if it were concerned only about Nadon, there would have been no need to change section 5 .

            Rothstein would not be the first either, as Arbour and Iaccobuci are also cited in Binnie’s opinion. Binnie concludes that the nominations are/were valid, but Binnie is one opinion, and the opinion that the federal government has provided on the same day it announced the nomination of Nadon.

            It was the federal government who chose to divulge this information to counter any claims that could be made against it. The Toronto lawyer, the QC government et al read it and felt that two wrongs (or more) don’t make a right and that it is not up to the federal parliament alone to fix this.

            I have no idea how this will finish, but to to claim that this was started by the left-wing press or the whining Quebeckers, or whatever, is a lot of hateful bs. It came about because the federal government made this an issue.

    • Remember that Gallati started the process – the QC joined in later. And Rothstein was not in court yesterday.

    • Yes, Quebec is special here. In the rest of Canada, and at the Federal Court, there is a common law system. Quebec uses the French civil law system. The Act is designed to ensure that there are judges on the SCC from that system, as it’s quite different. Nadon has been using the common law system in the Federal Court for the past 20 years, making him at best an odd, and at worst a highly inappropriate appointment for a civil law judge.

      • Based on what? I haven’t ridden a bike in 15 years…now I don’t know how to ride one anymore?

        • If you needed a up-to-date licence to drive a bike and didn’t have one you would be riding a bike illegally.

        • A more apt comparison would be to ask you to do the math problems you did in high school 20 years later.

    • Now that you have had a chance to display your nasty little attitude towards Quebec, take a moment to consider that had the federal government not used your and my money to pay and to make public the opinion of former SCC judge Binnie on these problems maybe nobody would have noticed.

  8. I read Anglin’s submission on Omar Khadr and am flabbergasted that a Supreme Court nomination may have been influenced by a lawyer who proposes that we needn’t be concerned about the depredations of Guantanamo Bay because the country in charge of the human rights violations isn’t usually a human rights violator but was fighting an “asymmetrical” war.

    Apart from the moral contortion required to consider that view, the practical problem with his argument is that every other human rights abuser from Colombia to Syria can also claim some sort of similar exigency, some asymmetry in suppressing indigenous protests or unions or religious groups.

    American exceptionalism has been let loose in the Langevin Block!

  9. http://fullcomment.nationalpost.com/2014/01/15/andrew-coyne-was-nadons-head-scratcher-appointment-to-supreme-court-a-master-play-by-stephen-harper/

    Coyne’s take is a bit more subtle and nuanced then mine[ bastard] but he generally arrives at the same spot, sorta. Andrew does make the point that a PM has the right to appoint someone who leans his way ideologically[ i don’t quite know what to make of that. Pet did for instance put Lamer in, and he was a lynch pin of Trudeau’s agenda for a more activist court] but he rightly concludes that ought to coincide with selecting the best available jurist – which Nadon clearly isn’t. But there’s another distinction between pet and Harper; partisan Liberal that he was he never stooped to putting someone less qualified up to bat at the SCoC.

    Pretty sure AC concludes on a rousing note of sarcasm.

    • Coyne writes “The Court will decide, but to find in his favour would not require a particularly tortured reading either of Section 5 of the Supreme Court Act”.

      I wish he had better explained to his readers why then the government felt it had to amend the SCC law in his budget bill to clarify this.

      • Good point. A strangely convenient move that.

  10. I can buy the Khadr argument, and Harper’s willingness to politicize to the extreme every appointment he makes. In fact, his record on appointments is abysmal, and will be one of the biggest stains on his legacy. He has utterly failed in his duty as Prime Minister to bring the very best people to serve Canadians.

    However, the maritime law aspect in this appointment intrigues me.

    What has maritime law to do with the oil industry, which seems to inform just about every move made by the Conservative government? Well, if the Northern Gateway pipeline is pushed through, as seems most likely, the biggest challenges it is likely to face in the courts are not only the the land route through First Nations traditional lands, but also the sea route through the inland passage, with its threat of major environmental damage in the event of an oil tanker disaster.

    Is it possible the PMO is planning some move to limit the liability of oil companies by introducing amendments to maritime law, and M. Nadon is placed on the Supreme Court to defend the government’s position?

    • Yes, it’s all part of an evil conspiracy.

  11. Why not have each party nominate 1 and reigning party can nominate one or two. Then let the people VOTE.

    Oh wait, we are a ruse of democracy.

    • Judges do not exist to be popular, or to make popular decisions. Electing judges leads to tyranny of the majority, which is precisely what the judicial branch is designed to curtail.

    • Electing judges is a TERRIBLE idea.

  12. I don’t understand why this appointment is deemed ‘unusual’ when throughout our history the PM has had the power to choose…which one should expect will slant towards those who share the sitting PM’s ideology. Seems normal to me.

    Who is best qualified is simply an opinion, and the PM’s opinion is what matters. Some comments in this thread claim Nadon ‘clearly isn’t the best choice’…but isn’t that just an opinion?

    In 100 word or less, what is the problem here?

    I apologize in advance…have not researched this to any real degree. More curious than concerned.

    • Ideology doesn’t even need to come into it. It looks to be the issue is what constitutes a judge that meets the Quebec requirements, which are soemwhat unique because it’s provincial laws follow a different system than the other provinces.

      • Ok…but what I’m reading goes way beyond a simple technical admissibility question. If that’s all it is then the SC will decide yes or no and that’s it. Nothing to debate there.

        • Well the supreme court will decide yes or no either way. It’s possible some of the issues being raised are related to the appointments process but aren’t at issue in the current proceedings, OR I’ve interpreted the issue too narrowly – either is possible since it’s not like I’ve read the pleadings.

        • Well, there’s also the fact that he’s semi-retired and – while not a bad judge – is not one of the stand-out judges that the legal community would have expected to be short-listed.

    • I think convention would dictate that you would first get the experts to decide who should be on the short list, then there are presumably no “wrong” choices and the PM would probably look to ideology.

      The speculation is that the PMO consulted principally with one “expert” , Anglin who was principally concerned with ideology first, talent second. Then 3 trained seals performed on the selection committee… choice is confirmed.

    • Frankly, it’s unusual because there are usually front-runners for this type of appointment, judges who have distinguished themselves and are noted by the legal community. Most law professors, for example, would be able to rattle off some candidates and their notable decisions. Nadon wasn’t on anybody’s list. He has made very few influential or oft-cited decisions.

      Although the PM has the right to appoint anyone who meets the requirements, this particular decision took the legal community by surprise. That’s unusual.

      • That is, of course, completely aside from the issue of his actual eligibility under the Act.

      • This is unusual because at the same time the government was announcing the nomination of Nadon it was making public a legal opinion from former SCC judge Binnie on the problems of this, and past nominations. This was noted in every paper, and by everybody, as being a very unusual step. Binnie is a respected opinion, but he is not the only one in this country whose opinion is worthy of respect.

        Correction: accompanying a nomination with a legal opinion is not an unusual step it is an unprecedented step.

    • Andrew Coyne’s article (“Nadon Supreme Court appointment looks so dodgy it must be some clever Harper ruse“) argues in part that “the legal question, while dispositive — he is either eligible or he is not — seems to me the least of the marks against him.” So, that would be a good piece to check out.

      ETA: To give you a sense of how much Coyne thinks this isn’t really about the eligibility issue, he begins one paragraph this way: “What you have here, in other words, is an example of affirmative action for right-wingers”.

      • I still don’t see why then the federal government felt it had to amend the SC act in its budget.

        • Hardly seems like a budget line item. Unless they had to bribe the selection committee (joking, Rick! Don’t blow a gasket).

          • The list of things in Tory budget bills that have nothing to do with the budget is as long as my arm combined with the length of the arms of 9 other people.

          • Hardly seems like a line in The Economic Action Plan 2013 Act, No.2 either.

        • I wouldn’t go assuming that the government thinks too much about anything it crams into one of those omnibus bills. I think it comes down to nothing more than that they’re trying to set a record for most pages over the fewest bills by any government in the history of creation.

          Seriously though, might they not be simply hedging their bets in case the Court rules that the appointment violates the statute but not the Constitution?

          I rarely understand anything this government does vis a vis the Supreme Court though. Like how they tabled their Senate reform bill, trumpeted it, then ignored it for two years, and THEN put a reference before the Supreme Court to ask if they could actually do any of the things they had in the bill. I mean, wtf?

    • The PM chooses, but can only do so within the boundaries set by the Supreme Court Act, which at sections 5 and 6 defines who can be appointed. Section 6 specifically deals with Quebec judges.

      • Yes, even the PM has to respect the law!

  13. “The Supreme Court’s three Quebec members must, by law, be appointed from the province’s court of appeal or superior court, or come “-
    ,” meaning lawyers who work in Quebec.”
    If he was called to the Barreau as they call it there and is still a member in good standing with “Le Barreau” then I can’t see how Marc Nadon doesn’t fit the bill as a “advocate of the province of Quebec”? I mean I don’t know how without further instruction one can further limit this definition to exclude him? Rocco Galati the Toronto lawyer (and yes left-wing advocate if you actually research the bugger) states himself “that only judges from Quebec’s appeals or superior courts, or lawyers who have been members of Quebec’s bar for at least 10 years, can be appointed to the Supreme Court.” Marc Nadon was admitted to the Barreau in 1974 and practiced law until 1993 at the firm of Faskin Martineau prior to becoming a federal judge. Unless he is no longer a member of Le Barreau then Rocco is wasting everybody’s time. He himself should be questioned as to what kind of lawyer he actually is to be so triffling and misinformed while making a general nuisance of himself. Now this explanation “meaning lawyers who work in Quebec.” does NOT reflect section 6 of the Supreme Court Act which clearly states “the advocates of that Province”. Section 6 says nothing abut “work” but rather advocates which in this context means Quebec lawyers. I’m sure a lawyer who is an Alberta call but who for some reason works in Montreal would NOT fit the bill whereas Marc Nadon IS a Quebec lawyer and has worked in Quebec as a lawyer for 20 years prior to being named to the federal bench.

    • Nadon has not been a member of the QC bar for at least ten years.

      • Sure but section 6 of the Supreme Court Act doesn’t say that he has to be “current” just an “advocate of that province”. He’s still a Quebec lawyer seeing how the difference is merely “administrative” in nature, the pith and substance of this legislation speaks to his training as a Quebec lawyer which he has.

    • You cannot be a judge and a member of the bar at the same time, The day you become a judge you are no longer a member of the Bar, hence the interpretation problem. Nadon is neither a current lawyer of QC nor is he a judge of the Quebec Court of Appeal or Superiour Court.

      • The legislation doesn’t say that he has to be a “current” advocate from the province of Quebec, rather merely an “advocate” from the province which is what he is. He’s still for the purposes of the plain reading of the legislation a Quebec lawyer which is what section 6 of the Supreme Court Act is saying. It does not at all talk about currency which allows for situations like his. Remember a fair number of Quebec lawyers also end up working for the federal government in Ottawa. The legislation is hinting at one’s training and or employment history or present commensurate with his training.

        • That is a matter of opinion. The legislation, before the government changed it in October, in my opinion, meant one had to be a current member of the bar.
          If I were to write: Loraine has been happily married for forty years, would you think that Loraine is no longer married, or happy?

        • It does not use the word “current” but if you read section 6 in conjuction with section 5, you have to wonder why is there language reffering to the past in section 5 (“who is or has been”) and none in section 6 ? Was the intent to only allow current members of the bar in the case of Quebec judges ?

          • The language in section 6 doesn’t exclude the past due to the fact that it omits the word “current”. I think the drafters of the legislation purposely left out the word “current” so as not to hamstring a future PM who may be limited in his choice of “Quebec Advocates” for whatever reason. For example he may be forced to pick a retired judge who’s credentials are expired only because the pickings are slim and he might be forced to pick someone with lesser qualifications. The point here is that nominees to the SCC should be at the discretion of the government to some degree and the process should allow the government to be able to select the best possible person they can find within the degree o limitations placed on it.

      • Then that would put Rothstein in the same place as Nadon, no? Rothstein was never a member of a superior court of a province, as is required for all judges outside of QC (s5). He practiced and taught law, then moved on to the Federal Court.

        • Well section 5 language uses the phrase “who is or has been”. Something section 6 does not.

  14. Maybe it’s time to examine a greater travesty….why does Quebec get 1/3 of the judges guaranteed in perpetuity when it only has about 20 – 25% of the population (and falling fast)?

    • Indeed, maybe that is what it’s all about. Can we change the constitution by a simple act of parliament, without any input from the provincial governments?

    • Why is PEI allowed to be a province (with all the privileges that it entails under our constitution) when its population is the size of a Toronto neighborhood ? I guess that’s what living in a federation is all about. Look at the US senate for example, every state gets 2 senators, regardless of population.

    • Hardly a travesty. Quebec has a different legal system than the rest of Canada. An SCC case needs a minimum of 3 judges to hear it. Hence the requirement for 3 judges knowledgeable in the civil law system.

  15. You know, if our prime minister cannot or will not follow the rules, how and why does he expect the rest of us to “follow the rules”?

    Making rules up as you go are the signs of a sociopath1

  16. Irresponsible journalism at its worst and gradual devolution of democracy!

    Dear John Geddes,

    Are you serious? Are you for real?

    I’ll start with how you end your piece. If the serious part, as it turned out, and as you state, came after Harper’s appointment of Justice Nadon to the Supreme Court, why are you not stating the facts?

    The challenge to Justice Nadon’s appointment was not initiated by Québec, as you state, but by Constitutional lawyer Rocco Galati. See SCC’s own summary on its website. “Third parties” refers to Galati and the Constitutional Centre bringing an application to the Federal Court just hours after Justice Nadon was sworn in.

    The Quebec attorney general’s factum, for the reference on Nadon’s eligibility heard last Wednesday by the Supreme Court, also clearly states the sequence of events.

    Why is that important?

    Mr. Galati and The Constitutional Centre sounded the alarm. That’s when Quebec realized there was something wrong with Nadon’t appointment and subsequently intervened in the Supreme Court Reference. Due to Mr. Galati’s challenge Supreme Court Justice Marshall Rothstein recused himself from the reference hearing. Justice Rothstein served on the Federal Court of Appeal before being appointed to the Supreme Court. Just like Nadon.

    It’s also important to understand what took place after Mr. Galati issued a challenge. Justice Nadon, to his credit, chose not to sit on the SCC bench until the issue was decided. Meanwhile the federal government quickly passed a backdoor legislation – a unilateral rewording – amendment – of a section of the Supreme Court Act that would permit Nadon to sit on the country’s highest court. With Quebec “on board” and the pressure mounting the federal government finally asked the Supreme Court something it should have asked before appointing Nadon to the Supreme Court and before trying to pass legislation that would impose Nadon on the SCC bench.

    The federal government had two main questions for the Supreme Court reference. In addition to Nadon’s eligibility the other equally important question was whether the federal government has the legal authority to introduce legislation that would change the composition of the Supreme Court without a constitutional amendment – as required by law.

    It is the first time in 139 years, since the Supreme Court was created by an act of Parliament in 1875, that there has been a hearing or challenge like this one. Now the country’s highest court is left with having to address some very serious issues.

    1) interpretation of section 5 and 6 of The Supreme Court Act.

    2) the rule of law – the fact that the Federal Government places itself ABOVE the law of the land (constitution), while expecting others to adhere to it. Meech Lake and Charletown – independent of not having been passed – nevertheless stressed that a Nadon or Marshall Rothstein scenario (federal court judges being appointed to the SCC) could not take place under the present constitution and would require constitutional amendment. Something like 18 prime ministers (as in two PM and the others premiers) in the two accords combined agreed on this.

    3) the balance and protection of federalism which is constitutionally protected… and can be guaranteed only if sitting provincial superior court judges or active lawyers are appointed to the SCC and not judges from the Federal Court (which is essentially the Federal Gov’t’s court in Ottawa). All Federal Court judges LIVE in Ottawa disconnected from the daily business of what happens in Canada’s provincial courts. As Mr. Galati stated publicly recently: “It’s about the constitutional requirements to maintain the federalism that was brokered between the provinces and the federal government.”

    4) whether the federal government can use the Supreme Court of Canada to do its bidding at will by passing backdoor bills that would directly affect the composition and business of the SCC.

    5) whether the Supreme Court is partially or wholly constitutionalized since 1982 specifically in reference to its composition, and if so, all changes to its composition would require a constitutional amendment (including the appointment of Federal Court judges to the SCC bench that are presently ineligible under the Supreme Court Act).

    Nowhere have I seen any intervener, in any factum, at The Supreme Court hearing, or in the press, state that Justice Nadon’s ineligibility was due to his lack of credentials. That he does not come from the Quebec superior court, but the Federal Court of Appeal (essentially the federal government’s court), and was not a practicing lawyer in Québec at the time of his appointment to the SCC may in fact constitute a lack of credentials specific to the Quebec’s civil code and rustiness with Quebec’s legal and social environment. But no one has questioned his qualities as a judge.

    If Mr. Galati had not brought an application to the Federal Court, Nadon would now be sitting on the SCC bench and you, the Quebec Attorney General’s office, most Canadians and so-called constitutional experts, would not have noticed and would have been oblivious to the serious implications such an appointment would have on the country’s highest court, a court that is the people’s highest appeal court, a court that should be totally independent from the executive and not its servant. The only people not oblivious to what the backdoor appointment meant, in fact and in reality, are those who drafted the backdoor legislation to “validate” the appointment before asking the Supreme Court for a reference.


    Tony Nardi

  17. Doesn’t anyone care that we could have an demonstratably anti-civil rights person as a judge on the Supreme Court. Maybe the legal minds who have commented here might take a minute to reflect on the comments by some of Harper’s followers that the Civil Rights Charter needs to be overcome (eg sectarian schooling, abortion, women’s rights etc etc). Is this where we follow the uber-leader?

    • I am pretty sure Harper cares – for all the wrong reasons.

  18. Here’s section 5 of the Supreme Court Act:

    5. Any person may be appointed a judge
    who is or has been a judge of a superior court of a province or a barrister or
    advocate of at least ten years standing at the bar of a province.

    The misinterpretation of section 5 in the Supreme Court Act stems from the fact that “has been” has been used colloquially (in slang) as a noun, as in “he is a ‘has-been’” and, in this case, misinterpreted by some to mean WAS, something that took place in the past.

    “Has been” does not mean WAS.

    You cannot construct a sentence in the English language and use “has been” to mean something that has existed ONLY in the past. In fact “has been” denotes that which has started in the past up to the present time. “Has been” creates a connection between then and now:

    Junk food WAS my favourite food. (strictly in the past)
    Junk food HAS BEEN my favourite food. (still existing in the present)
    My college application WAS accepted (describes the past. The application was accepted before, we don’t know what happened to it since)
    My college application HAS BEEN accepted (describes the present (accepted) connected to the past (college application).

    What is clear is that the distinction between “was” and “has been” was clear to Canada’s Attorney General. Instead of submitting a (reference) question to the Supreme Court, the
    Federal Government chose instead to unilaterally – and without constitutional
    amendment – amend (through the backdoor) sections 5 and 6 of the Supreme Court
    Act to allow Nadon’s appointment. Specifically, the wording in sections 5 and 6 were changed to “if at any time, they were” thereby suggesting that “has been” meant “has previously been”.

    Thus, on October, 22nd, 2013, in response to Mr. Galati’s challenge, the
    Federal Government unilaterally amended the Supreme Court Act, without
    constitutional amendment, and the following was passed by Parliament:

    The Supreme Court Act is amended by adding the following after section

    For greater certainty, for the purpose of section 5, a person may be appointed
    a judge if, at any time, they were a barrister or advocate of
    at least 10 years standing at the bar of a province.

    The Act is amended by adding the following after section 6:

    For greater certainty, for the purpose of section 6, a judge is from among the
    advocates of the Province of Quebec if, at any time, they were an advocate of
    at least 10 years standing at the bar of that Province.

    During Meech Lake and The Charlottetown accords 16 premiers and two prime ministers stated and confirmed that to change or amend the composition of the Supreme Court, or wording of the Supreme Court Act, which is what Harper has done with his backdoor bill,
    requires a constitutional amendment.

    The legal minds that have commented here should be concerned about the rule of law,
    and the democratic process, and how it applies to everyone. It was the same with the judges’ case where 14 deputy judges from the federal court and federal tax court were sitting on the bench illegally, in violation of the constitution, past mandatory retirement, and had been for years, deciding on major cases (and finally removed from the bench as a result of a Mr. Galati application that won at the Federal Court of Appeal).

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