PM’s Supreme Court appointment rejected
Harper’s will again thwarted by the courts
The Background
By law, Quebec gets three of the nine Supreme Court of Canada seats to ensure that one-third of the bench is well-versed with that province’s civil law and culture.
Last October, Prime Minister Stephen Harper appointed Marc Nadon, a Federal Court of Canada judge, to fill a vacant Quebec seat on the bench.
Toronto lawyer Rocco Galati challenged the appointment, arguing Nadon didn’t meet the qualifications because he came from the Federal Court rather than a Quebec court.
The government of Quebec also challenged his appointment.
Justice Minister Peter MacKay then announced he would launch a formal reference to the Supreme Court on the subject of such appointments.
At the same time, the Conservative government tabled an omnibus budget bill that included a section to amend the Supreme Court Act specifically to allow Federal Court judges from Quebec to serve on the highest court.
The Ruling
In a landmark 6-1 judgment Friday, the Supreme Court nullified Nadon’s appointment on the grounds he didn’t meet the eligibility criteria laid out in the Supreme Court Act. The ruling said the language of the Supreme Court Act “requires that, at the time of appointment, the appointee be a current member of the Quebec bar with at least 10 years standing.”
The court also rejected as unconstitutional the attempt to retroactively amend the law.
The Fallout
This is the latest in a string of constitutional decisions from the top court that have not gone the government’s way. The others involved supervised injection sites, the country’s prostitution laws and a decision Thursday that struck down a Harper government law on day parole.
For Nadon, it could be a blow to his finances as well as his pride. During the challenge to his appointment, he didn’t hear any cases, but still drew a salary of about $351,700 a year. On Friday, the court’s registrar said it would have to determine if Nadon is required to repay what he earned — an estimated $146,500.
What Happens Now
Harper is under pressure to quickly appoint a new Quebec judge. However, the government appeared to be caught flat-footed by the ruling. “We are genuinely surprised by today’s decision,” Harper spokesman Stephen Lecce said in a statement.
He said a committee of opposition MPs had not objected during the selection process. The Justice Department had consulted experts before making the appointment, Lecce said.
Specifically, the government paid retired Supreme Court judge Ian Binnie $7,463.65 to write an opinion that was then approved by another former Supreme, Louise Charron, who was paid $4,325 for her efforts and Osgoode Hall professor emeritus Peter Hogg, who earned $1,045.25.
“We will review the details of the decision and our options going forward,” Lecce said.
The Reaction
Toronto lawyer Rocco Galati: “I just regret the fact the government can make a subversive mess of our Constitution and it’s got to be private citizens like me — at my own expense, this has cost me a lot of money, my own time, energy and money; I’m not getting any of that back — to clean up what?
“To clean up the mess of the subversive government that doesn’t want to respect the Constitution. …
“If I hadn’t brought the challenge, Justice Nadon would be deciding cases as we speak.” NDP justice critic Françoise Boivin: “I feel for Justice Nadon this morning. He is in no way responsible for anything that is happening now.” Parti Québécois Leader Pauline Marois: “Mr. Harper erred in naming Justice Nadon. It proves that Quebec has to constantly fight. … We defended our point of view and we won.” Liberal Leader Justin Trudeau: “I think the prime minister completely botched the process and that’s very serious.” Government House leader Peter Van Loan: “The consequence of this decision from the court is that Quebecers actually have fewer options to make it to the Supreme Court of Canada than other Canadians …. Now, a judge or lawyer from Quebec is going to have to think twice about accepting an appointment, for example, to the Federal Court of Appeal, because they are … disqualifying themselves from sitting on the Supreme Court.”
There was a slapstick quality to the Supreme Court’s rejection Friday of Stephen Harper’s nominee for the Supreme Court of Canada.
Other prime ministers have faced difficult decisions when the stakes were higher, but none have ended up looking, as this prime minister does today, like a man who has just stepped on a rake.
This looks to be a preventable embarrassment, and, like a number of other recent legal decisions, it raises questions about whether the government is listening to its lawyers.
In a 6-1 ruling, the court told the prime minister that Marc Nadon, his nominee for the top court, is not eligible to sit thereon.
The ruling is uppermost of a growing pile of cases where judges have told the prime minister that he can’t do things he wants to do.
The federal Justice Department — with an annual budget of $662 million and a staff of 4,588 — is the largest law firm in Canada, but it is either not giving good advice to the government or the government is not listening to the advice it is getting.
That may be because the Tories have promoted people who will give them the kind of advice they want, or more specifically, not give them the kind of advice they don’t want.
It is hard to know, because legal advice to the government is covered by solicitor-client privilege, and it’s not the kind of thing governments tell the truth about.
“We ought to have known that this was dumb because our lawyers advised us against it,” is something no government will ever say.
Here’s what Stephen Lecce, spokesman for the prime minister, said Friday: “We are genuinely surprised by today’s decision. Prior to Justice Nadon’s appointment, the Department of Justice received legal advice from a former Supreme Court justice, which was reviewed and supported by another former Supreme Court justice as well as a leading constitutional scholar. None of them saw any merit in the position taken by the Court.”
We don’t know, and likely never shall, what the government’s own lawyers advised, but they may have warned of troubles, because there must have been a reason for the government to commission a legal opinion from former Supreme Court Justice Ian Binnie.
The Supreme Court Act states that “at least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.”
That was negotiated with some difficulty in 1875. Quebec was nervous about letting English judges muck around with Quebec’s separate legal system, so the law set aside seats for Quebec lawyers.
Nadon was once a Quebec lawyer, but he has been sitting on federal courts since 1994. Binnie saw no problem appointing a federal judge who had been a Quebec lawyer.
Until now, Harper’s nominations to the top court appear to have been selected for their legal expertise, not politics.
Nadon, though, seems to have come to the government’s attention when he sided with the government in a split decision concerning terrorist/child soldier Omar Khadr, a special interest of Howard Anglin, the prime minister’s senior legal affairs adviser.
After Nadon was nominated, though, Toronto lawyer Rocco Galati challenged the appointment. Quebec joined in and the government referred the question to the Supreme Court. It also quietly amended the Supreme Court Act, sneaking a couple paragraphs into a budget implementation bill.
On Friday, the court ruled that “a current judge of the Federal Court of Appeal is not eligible for appointment.”
Sorry, prime minister. No Nadon.
How will the government react? Harper has had his will repeatedly thwarted by the courts, and he doesn’t seem to react positively to thwarting.
His government has fired or denounced a number of watchdogs, the better to keep the rest of them in line.
He can’t fire judges, though, and the bench has emerged as the biggest challenge to his authority.
On Thursday, the Supreme Court ruled that a 2011 tough-on-crime parole eligibility law is unconstitutional. Courts have overturned mandatory minimums for gun crimes, rejected a government attempt to shut down a safe injection facility and thrown out prostitution laws.
They seem likely to reject the government’s Senate reform plans as unconstitutional, and may open the door to assisted suicide.
Some of these rulings are a delayed reaction to a legislative agenda that appears to be based on values (and populist political appeal) rather than the best evidence, or the likelihood that a given law can withstand a constitutional challenge.
Former justice department lawyer Edgar Schmidt launched a lawsuit last January, claiming that the government was preventing its senior legal servants from properly applying constitutional checks to its laws.
If Schmidt is right, the government is wasting a lot of time and money pushing ahead with laws it ought to know the courts will strike down.
If that’s the case, then, like a man who leaves a rake lying around where he might step on it, Harper has nobody to blame but himself.