You think it’s easy to make Supreme Court appointments?

New revelations and lingering questions about the Nadon appointment



The hot mess of the Marc Nadon appointment persists.

On Friday, the Globe’s Sean Fine revealed new details of the failed appointment—that four federal court judges were on the original list of six candidates, that one of the candidates had been caught copying from a government brief in writing two judgments (a fact that could complicate the suggestion, from anonymous Conservatives, that Chief Justice Beverley McLachlin had explicitly lobbied against Mr. Nadon) and that the Prime Minister doesn’t want to appoint Justice Marie-France Bich, who is the consensus choice of Quebec’s legal community.

And so at Question Period this afternoon, the NDP made the matter its top priority.

Thomas Mulcair was particularly interested in this idea that the Prime Minister’s account of events has somehow changed. Whether or not the Prime Minister’s story has changed, the government is left arguing two ideas: that the Prime Minister didn’t speak to the Chief Justice because the eligibility of a Federal Court judge from Quebec was an issue that could come before the courts (“My position was there was an issue I was aware of that I thought it likely to come before the court”), but that every opinion the government had indicated that Marc Nadon was eligible (“All opinions we received indicated that Federal Court judges were eligible for appointment to the Supreme Court”).

Essentially then, the government seems to be saying that it knew appointing Mr. Nadon was a gamble, but it was really quite sure that it was going to win that bet.

Otherwise, the government has one other defence: the opposition was involved.

Attacked by the NDP’s Francoise Boivin this afternoon about the process that resulted in Mr. Nadon’s nomination, Justice Minister Peter MacKay made various references to Ms. Boivin’s involvement in the process—Ms. Boivin was the NDP representative on the five-member selection panel that took the government’s list of six candidates and produced a short list for the government to consider.

She would know that we did have a process that involved consultation with La Barreau de Québec. She was part of the consultation with respect to the formation of a list…

The honourable member, who was part of the process in fact, called Mr. Justice Nadon a very able jurist, she said he was a great judge, so it is a bit rich for her to stand up now and somehow leave the impression she was not supportive of the name going forward…

Mr. Speaker, I would invite the hon. member to look deep inside herself and ask herself about that process and its fairness because, might I remind her and the House, she was a part of it.

Ms. Boivin did praise Mr. Nadon when his nomination was announced, but we have no idea what opinion, if any, she offered during the selection process. The work of the selection panel is (supposed to be) entirely confidential. We don’t know how the members of the selection committee voted on the short list it recommended (the Conservatives hold a majority on the committee so conceivably a list could go forward without opposition support). We don’t know what, if any, advice the committee received on the appointment of a Federal Court judge for one of Quebec’s Supreme Court seats. We don’t know anything about which judges were recommended by the Quebec government, the Quebec bar or anyone else who was consulted. We don’t know what was said about the three judges who were put forward for the Prime Minister to choose from.

We only really know that three Conservative MPs, one NDP MP and one Liberal MP were involved in somehow choosing that short list.

If Ms. Boivin had any misgivings about Mr. Nadon’s eligibility, should she have said so as soon as his nomination was announced? I think, in hindsight, I’d say yes.

As it is, the process to select Mr. Nadon is the stuff of riddle and innuendo, while the government is refusing to clarify how the process will work going forward. (Ms. Boivin offered one cryptic remark today. After the minister had referenced the “consultation” that took place, the NDP critic said, “consulting is one thing, listening to the consultation results is another.”) Should the opposition bother to participate again if the process follows the procedure of previous appointments? Does the opposition’s participation, otherwise shrouded in secrecy, simply serve to absolve the Prime Minister of complete accountability for the appointment?

On that note, here is Adam Dodek, arguing ultimately for a new selection process that, crucially I think, provides for greater openness.

To begin, the government should publish a detailed protocol, a Guide to Appointment of Supreme Court Justices which would set out the qualifications, consultation to be followed, procedure for evaluation, etc.

A revamped advisory committee would then operate in a more open and transparent fashion and produce a report on their work. This committee should not be confined to the list of names given to them by the Minister of Justice. They should be able to consider any candidate that meets the published criteria for appointment.

The public hearings with nominees should continue, but only if the Minister of Justice also appears to answer questions about the process and about why the particular nominee was selected.

It’s possibly unlikely that there will ever again be anything like the remarkable mess that this has become, but in demonstrating how badly something can go, it might be cause to reevaluate.

See previously: The hot mess of the Marc Nadon appointment, A new twist in the Marc Nadon affair, The Prime Minister’s Office vs. The Chief Justice, The Prime Minister’s Office vs. The Chief Justice, Part II, Did Beverley McLachlin do anything wrong? Did the Prime Minister? and The unappointment of Marc Nadon as slapstick


You think it’s easy to make Supreme Court appointments?

  1. Of course its note easy to make Supreme Court appointments.

    First road block is a byzantine Ottawa, bloated, dysfunctional political and legal system. So complex and non-value added, you can’t get anything done.

    Second issue is Quebec corruption is so widespread finding a honest and qualified unbiased judge is difficult. As the mafia says, “…we have police, prosecutors, judges and politicians in our pocket…”.

    Hey, no politicians, no mayors, no union deal makers, no mafia leaders, no bribe takers/makers in jail tonight says it all.

  2. It would be much easier if the Harper Regime wasn’t hell bent on finding judges who were as contemptuous of Canada’s judicial system, Constitution and Charter of Rights and Freedoms as they are and if Harper and MacKay weren’t so willing to gamble on getting away with skirting the Constitution by ignoring the eligibility rules.

  3. We were told it would be easier and better, with the NEW government.

    Not that long ago, the appointment process involved a committee of deans from law faculties, representatives of the bar, members of the public and, in a minority on that committee, members of the house of commons with no party having more MPs than the other parties. The minister of justice would provide a list of eight candidates and the committee’s job was to present a short list to the PM.

    This was denounced as too political a process, and too cumbersome. We needed a new way, from the New government. So now we have this process, which involves separate consultations with the SC, the Bar, and a committee of five politicians, three of which are members of the ruling party, to prepare a short list to submit to the PM.

    It may be easier, but it sure looks more political than ever!

  4. “On that note, here is Adam Dodek, arguing ultimately for a new selection process…”

    And for as long as the Conservative Party of Canada is in charge, we will be forever running after them, proposing new rules to prevent the latest abuse of power from happening again.

    The problem is that the Conservatives have no respect for Canadian democracy, Parliament or the people. Our system is based on convention, honour and duty rather than a million hard-and-fast rules. This party will never stop exploiting Canada’s loose rules and we can’t put enough rules in place to prevent it.

    The only solution is to throw these shameless, cynical power mongers out of office and keep them out forever.

  5. This is a dead horse your flogging, Mr. Wherry. Each new posting you make reveals more chefs responsible for the spoiled broth of the Nadon appointment (latest being Ms. Boivin), yet the tone of your posts assert it is only Harper who bears any blame. You also seem not to find it ironic that the vitriol and ridicule concerning this botched appointment is directed towards the first PM who has tried to make the process more transparent. I have no doubt, of course, that if Harper now decides to abandon this SCC appointment process in favour of that of his Liberal predecessors, the vitriol and ridicule will be redoubled.

    I’d urge the half dozen of so Canadians who remain engaged with this issue but are relying on Mr. Wherry’s postings to inform themselves to read the actual majority SCC reasons. Doing so should make clear why the SCC CJ decided to break with the tradition of letting her judgments speak for themselves because that one most certainly wasn’t her best.

    • “…the first PM who has tried to make the process more transparent.”

      Bah Dum Chiiiing!

    • Ahhh, so the CJ acted without any outside force triggering it then. Curious, I seem to recall the PMO claiming she had acted inappropriately (which when you claim the PM refused to accept a call from her that she never made because accept said call would have been inappropriate is the same thing as calling it so directly) being the initial reason she released her own press statement to begin with. Pesky thing context and long term memory for supporters of the Harper government are, aren’t they. The level of disrespect and contempt Harper has shown towards Canadian institutions of long standing as PM is extensive, but few could have more long term damaging effects then the attempts he has made in trying to redesign our legal structures without actually like following the damn legal process required to do so. It takes more than simply being elected to do these things, I know in our political system a majority PM has powers near dictatorial by nature (comes from having a merged executive and legislative power structure there) but the third tripod, the judicial still retains its own independence and in some ways even more importantly cannot act outside the precedents already established in our legal body nor can they interpret new legislation that does not conform to established precedent as acceptable. Harper cannot dictate to the Supeme Court the outcome he desires and claim he has the power because he is elected and they are not, because that is not how our system of governance is designed to operate, in no small part to prevent the tyranny of the majority from running rampant over everyone else.

      The thing Harper appears most afraid of is the freedom that allowed him to rise to power despite being at such odds politically speaking with the vast majority of the nation in terms of his core beliefs regarding government (and he is and always has been, the fact that he finally managed to con enough people into thinking he had changed does not alter that basic truth) in our political system can be used by others, including his most hated foes the Liberals, to recover power and undo so much of what he has done. So he seeks to remove the last check on his powers, the Court, while he still has this majority government power, because he knows that if he does not manage to do that then most of his most extreme changes will in the end fail the test of Constitutional legality, but since the process is a slow one he clearly has hoped he could remake the Court into a tool friendly to his partisan views, and the Nadon selection and process was his clearest attempt yet at trying to game this outcome. He clearly wants his own Antonin Scalia and/or Clarence Thomas on our Supreme Court by the time his most profound legislation reaches their level in the inevitable court challenges being brought to so much of it.

      The fight he picked with the Chief Justice was only the icing on this already putrid mess of a process he concocted, and to call it a more transparent process and imply it is a superior one to what came before it only underscores either your ignorance or your deceit, because if you truly believe this you are either unable to perceive reality or are lying about it, possibly to yourself first, but still lying to us as well, or worse yet you know better but are more concerned with being a cheerleader for a leader/party than you are for the more basic concept of the nation and its institutions themselves. One of the things that has become lost from our political dialogue in the past decade is the notion of citizenry being responsible and informed voters whose first consideration should always to view a government ANY government with suspicion and distrust on whatever they tell us, because if one thing above all else has been proven true for democracies is that all governments distort, lie, and act in their own perceived best interests unless forced not to by the active scrutiny of the citizens themselves. Democracy does not happen in a vacuum, and power always corrupts no matter what the flavour of the political powers involved. When we stop remembering that and treasuring that then we get the evils of dictatorship and oligarchy and plutocracy and such, what we don’t have is democracy. Nor do we have the rule of law and most importantly equal treatment under that rule of law for all with none being above it. Without those things we are not a free and open society, we are fools living in tyranny too literally sheepish to know better, and sir, you are clearly acting as one of those sheep or worse, apologists/guard dogs for those corrupt shepherds who see us only for what value they can maximize out of us regardless of our own considerations and concerns.

      The process by which we create our guardians of the law aka Justices of the Supreme Court of Canada is one of the most important responsibilities a sitting PM has, and to corrupt the process the way Harper clearly has is to dump excrement all over those responsibilities, his honour (such as it is), and the citizenry of this nation.

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