Puzzling out the PM’s court pick
Head scratcher: Second- rate nominee chosen for obscure reasons
There is a theory, among the dwindling number of scholars still devoted to the “chess master” theory of Stephen Harper, that he deliberately appointed the most poxy hacks and bagmen he could find to the Senate, precisely to make the case for Senate reform. Perhaps there is a similar theory to explain the appointment of Marc Nadon to the Supreme Court.
Nadon is by all accounts a good man and I’m sure a fine judge. But his appointment was in trouble the minute it was made, as the prime minister must have known. Yet he pressed on, plunging not only the appointee but the court into the deepening farce of the past three months: the legal challenges from a Toronto lawyer and the government of Quebec, disputing his eligibility, as a member of the Federal Court of Appeal, to represent Quebec on the court; the “quarantining” of the new appointee by the court, pending resolution of the case, even barring him from entering the Supreme Court building; the hurried insertion, somewhere in the omnibus budget bill, of legislation “clarifying” the eligibility issue; and now this week’s unprecedented hearing, after which Nadon’s prospective colleagues must decide whether he is fit to join them.
And yet the legal question, while dispositive — he is either eligible or he is not — seems to me the least of the marks against him. The Court will decide, but to find in his favour would not require a particularly tortured reading either of Section 5 of the Supreme Court Act (“Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least 10 years standing at the bar of a province”) or of Section 6, which directs that three of the nine judges be 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.” Mr. Nadon is not and never has been a judge in the Quebec Superior Court, but he most certainly has practised law in that province, as a partner with Fasken Martineau Walker in Montreal for nearly two decades.
At any rate, that was the considered opinion of two former Supreme Court judges, Ian Binnie and Louise Charron, and of the constitutional scholar Peter Hogg, all of whom were consulted prior to the appointment. But to say that he is legally eligible does not answer the question of whether he was the best or even an appropriate choice for the job.
To stay with the Quebec angle, while he would be familiar with the province’s civil code — the ostensible reason for the Quebec quota — he last practised law there 20 years ago. It’s fair to ask whether his knowledge of the province’s distinctive legal system would have kept pace with that of someone who had been immersed in it the whole time.
That’s not the only measure, of course: He is a judge not just for Quebec but for all of Canada. But it is hard to see what compensating advantages Nadon brings. No legal expert that I am aware of considers Nadon to be among even the first rank of jurists from Quebec, except in the relatively narrow field of maritime law. I haven’t seen anyone question his competence, either. But: Distinguished? Influential? Authoritative? Add to that his age ( 64) and semi- retired status, and you have what in legal terms is called a head- scratcher.
What seems to have closed the deal, so far as anyone can explain it, was rather a vague sense in the Prime Minister’s Office that he was ideologically simpatico, apparently largely on the strength of one ruling: his dissent in the case of Omar Khadr, the convicted terrorist/ child soldier ( depending on your point of view), in which he sided with the government’s position that it was not obliged under the Charter to seek his return from the United States.
What you have here, in other words, is an example of affirmative action for right- wingers. The prime minister wanted a conservative on the court — so that, rather than merit, became the criterion. The effect is to make hypocrites of just about everyone. Conservatives who might hitherto have objected to demands that the job should have gone to a woman, rather than simply the best person, now have no leg to stand on. But liberals who, whenever these sorts of controversies arise, sigh that “qualified” doesn’t necessarily have to mean “best qualified,” are in no less uncomfortable a position. Because this is the result, when acceptable takes the place of first- rate: a sour feeling that the public interest has not been well served.
Obviously these things have an element of subjectivity to them. But while it would be hard to name a single “best” jurist in Quebec, you could probably gather consensus on a top four or five. No one would begrudge a prime minister the right to choose a judge whose legal philosophy was broadly in line with his own, provided the nominee was clearly among the very best the legal system had to offer. But the sense in this case is rather of having reached well past them.
And, this being Canada, there was no one to tell him no. Or at any rate, no one did, until it was too late. The government says it compiled a longlist of candidates in consultation with, inter alia, “the Attorney General of Québec, the Chief Justice of Québec, the Chief Justice of the Québec Superior Court, the Chief Justice of the Federal Court of Appeal, ( and) the Chief Justice of the Federal Court,” from which a panel of MPs, a majority of them Conservative, drew three.
That process clearly failed here, as did the usual ludicrously polite post-appointment “vetting” by an ad hoc parliamentary committee. Hmmm. Can it be … that the “chess” school is right? Is this Harper’s clever way of forcing the issue of reform of the Supreme Court selection process? Well played, prime minister.