A new twist in the Marc Nadon affair

And then the mess got messier

Chris Wattie/Reuters

Chris Wattie/Reuters

Within this compendium of Conservative complaint about the meanies at the Supreme Court is an interesting little revelation about the Harper government’s attempt to appoint Marc Nadon to the Supreme Court. Turns out that the Chief Justice told the Justice Minister and the Prime Minister’s chief of staff that there might be issues with attempting to fill one of Quebec’s spots on the Court with a federal court judge.

Here is the full statement from the Court.

The Chief Justice did not lobby the government against the appointment of Justice Nadon. She was consulted by the Parliamentary committee regarding the government’s short list of candidates and provided her views on the needs of the Court.

The question concerning the eligibility of a federal court judge for appointment to the Supreme Court under the Supreme Court Act was well-known within judicial and legal circles. Because of the institutional impact on the Court, the Chief Justice advised the Minister of Justice, Mr. MacKay, of the potential issue before the government named its candidate for appointment to the Court. Her office had also advised the Prime Minister’s Chief of Staff, Mr. Novak. The Chief Justice did not express any views on the merits of the issue.

This statement doesn’t indicate what, if anything, the Chief Justice told the committee of MPs that was charged with coming up witha  short list of candidates, but you can add this to a saga that already includes questions and innuendo about the process by which Supreme Court judges are selected.

Meanwhile, the Court has now been short-handed for eight months, since Morris Fish’s retirement on August 31, 2013. And Liberal MP Irwin Cotler continues to be unimpressed.

As the vacancy left by Justice Fish remains, it is hard to see how Quebec’s distinct legal traditions and social values are adequately represented on the court. Accordingly, the government should announce its plan to nominate a successor with all deliberate speed. Regrettably, the government has said little about prospective steps, and even refused at first to rule out the reappointment of Justice Nadon by other means.

It seems evident that the court will finish its spring term having sat an entire year without a full complement of judges from Quebec. This is not unimportant, considering the court’s recent study and ruling Friday on the Senate reference, and recent work on other issues tied directly to the question of Quebec representation in Ottawa. Indeed, the court functions best with a full bench, and it is the government’s responsibility to ensure vacancies are not prolonged…

In summary, Quebec remains under-represented on the nation’s highest tribunal and, as far as has publicly been revealed, no plan exists to remedy this situation. The government needs to indicate whether it will seek the opinion and input of Quebec’s new justice minister and other requisite Quebec officials, by what process it will seek to fill this vacancy, and most importantly, when?