The Supreme Court follies

At least this fussing over legalities is good for a laugh

A government tries to appoint a federal court judge to the Supreme Court to fill one of the three spots reserved on the Court for Quebec jurists. This might not seem like the most promising set-up to a joke or the most intriguing premise to a comedy—it at least lacks the obvious hilarity of a duck walking into a bar—but the funniest things often result from the most unfunny of situations. It’s all in how the characters play the events.

In the case of our aforementioned situation of a government attempting to fill a Supreme Court seat, hilarity ensued. And, amazingly, it continues to ensue, the ultimate joke being that it shouldn’t be this hard. Or this funny.

In the latest telling, the government has proceeded, after finally filling the spot it tried, and failed, to fill with the appointment of Marc Nadon and with another Quebec vacancy on the Supreme Court looming, to appoint a federal court judge, Robert Mainville, to the Quebec Court of Appeal. This move was immediately pointed to as a potential attempt to get around the rule that had ultimately scuppered Nadon’s appointment—keeping it mind it was previously reported that the Prime Minister’s Office had suggested to Nadon that he resign from the federal court and rejoin the Quebec bar to get around the stipulation in question, and noting that Mainville’s name is reported to have been among the government’s candidates for the spot that briefly went to Nadon.

When the House convened on Monday, the opposition parties demanded an explanation. The Justice Minister gave them one—and then tried to insist that he hadn’t.

Accused by NDP Leader Thomas Mulcair of attempting to subvert the Supreme Court’s ruling on Nadon’s eligibility, Peter MacKay first ignored such concerns, and then enthused that Mainville’s “wealth of legal knowledge will be welcome at the Supreme Court and will be of significant benefit to the Quebec Court of Appeal.”

And so, suddenly—welcome at the Supreme Court?—it seemed Mainville was indeed bound for the high court. Except that, when Liberal justice critic Sean Casey later stood and read MacKay’s comments back to him, the Justice Minister pleaded that “the Superior Court of Quebec is a Supreme Court in the province,” the minister seeming to conflate the Quebec Court of Appeal with the Superior Court of Quebec. (The Quebec Court of Appeal might be the highest court in Quebec, but the Quebec Court of Appeal and Superior Court of Quebec are separate bodies, appeals of the latter going to the former.)

Ahead to yesterday, where the opposition demanded further explanation, and the government tried to insist that whatever others supposed and whatever the Justice Minister said, this was nothing to do with the Supreme Court.

“Mr. Speaker, we are not talking about a matter of the Supreme Court of Canada,” Stephen Harper explained en francais, next repeating part of the confusion of yesterday with an assertion that Mainville was being transferred to the Superior Court of Quebec (which the House translator then relayed as the “Supreme Court of Quebec”).

The Justice Minister then duly repeated, no fewer than four times, that whatever he’d been heard to say yesterday, it was not what he’d meant. “As was already indicated, yesterday’s comments had nothing to do with the Supreme Court of Canada,” MacKay reassured.

Indeed, the government insisted, there is no current vacancy on the Court (which is true until the end of November), nor is there any process in place to fill that vacancy (which is, itself, a point of mystery and controversy). And, for that matter, the government says it will respect both the letter and the spirit of the Court’s decision on Nadon.

Later yesterday, MacKay’s office wrote to the Globe and Mail to explain that Mainville’s transfer was “for personal and professional reasons that obviously have nothing to do with an upcoming vacancy at the Supreme Court of Canada.” So perhaps Mainville is not bound for the Supreme Court after all. And perhaps, if he does end up there some day, the government can claim that it hadn’t occurred to them to appoint him until the opposition started suggesting that that was precisely the plan. That would at least be a good punchline.

In the meantime, this “Who’s on what bench?” sketch might merely be a bit of fun—a perfect capper to a perfectly slapstick affair.

But if Mainville’s appointment has nothing to do with the Supreme Court, the government’s legislation periodically is. And on Friday, the Court ruled that police cannot obtain an individual’s telecom data without a warrant—seeming to complicate matters for two pieces of legislation the government is currently advancing through Parliament. So it was on Tuesday that the government’s chosen privacy commissioner declared that at least one facet of the government’s new laws—a provision that would grant immunity to any company that volunteers data to police—had been rendered “essentially meaningless.” And so it was that MacKay stood in the House and declared that “the Supreme Court’s decision actually confirms what the government has said all along, that Bill C-13’s proposals regarding voluntary disclosures do not provide legal authority for access to information without a warrant.” Press gallery observers were duly mystified, and the Halifax Chronicle-Herald reports that Casey’s response to MacKay’s comments consisted of several seconds of laughter.

So perhaps whoever ends up sitting on the Supreme Court will have another piece of legislation to review—preceded or quickly followed by the government’s prostitution bill and whatever else can be found to quibble with. But if we should have to endure so much fussing over legalities, it should at least be good for a few laughs.