Montreal Gazette

Harper was right to accept the Nadon court ruling

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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.

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