Harper was right to accept the Nadon court ruling
Prime Minister Stephen Harper has done right by giving up on getting Justice Marc Nadon a seat on the Supreme Court after he was ruled ineligible by a majority of the sitting judges on the country’s highest bench.
The court ruled for the first time ever against a nominee’s eligibility, saying that Nadon’s credentials are not up to constitutional snuff. By a 6-1 margin, the justices who heard the challenge to his appointment held that Nadon, who is a judge on the Federal Court of Appeal, did not meet the special requirements for a Quebec appointee.
There are special requirements for holders of the three Supreme Court of Canada seats reserved for Quebec judges. They are required to be selected from among judges of the Quebec Court of Appeal or Superior Court, or from among Quebec lawyers.
The purpose of the stipulation is to have judges on the nine-member high court practised in Quebec’s distinct civil-law system, as opposed to the rest of Canada’s common law. Federal Court judges were deliberately excluded on grounds that they deal strictly with cases stemming from federal law that are unaffected by civil-law considerations.
Nadon’s appointment last October was swiftly challenged, first by Ontario constitutional lawyer Rocco Galati and subsequently by Quebec’s Parti Québécois government, acting with the unanimous backing of the National Assembly.
As such, the ruling against Nadon was felicitous for the federalist cause in this province, and more particularly that of the Liberal party in the current election campaign. It has allowed Liberal Leader Philippe Couillard to call it a splendid example of a federal institu- tion standing up for Quebec’s interests, and it has negated the long-standing sovereignist jibe that the high court is like the Tower of Pisa in that it leans only one way — away from Quebec.
Nevertheless, some have contended — including the dissenting judge in the case, Michael Moldaver — that the court erred by insisting that a lawyer from Quebec named to the high court must be currently practising, when this is not explicitly stated in the Supreme Court Act.
The government maintains that it had opinions from two former Supreme Court justices, who certified Nadon’s qualifications as kosher in that he was authorized to practise law in the province, if not currently practising.
There had been talk of the government doing an end-run around the court ruling by appointing Nadon to the Quebec Superior Court for a day or so and then elevating him to the Supreme Court. This after the government had previously failed to validate the appointment by slipping an amendment to the high-court act into an omnibus bill, to add Federal Court judges to the eligibility list, a manoeuvre that was also ruled unconstitutional.
Why the government would even have contemplated going to such lengths on Nadon’s behalf is mystifying, other than as an example of its own stubbornness. Critics maintain that Nadon’s attraction was his government-friendly leanings more than his judicial acumen, and that he was on nobody’s short list, other than the government’s, as a potential nominee.
By finally dropping Nadon, Harper has helped his own credibility and denied the PQ a leg up in this crucial election. He should now choose a nominee from among the many eminent Quebec jurists whose qualifications are beyond question.