In mid-January I did a blog post about a reference case that was before the Supreme Court of Canada about the constitutional propriety of Prime Minister Stephen Harper attempting to fill a vacancy on the court to represent the province of Quebec with an appointee (Federal Justice Marc Nadon) who had only tenuous legal ties to the province.
The Supreme Court delivered its decision today, and in what media are referring to as a stinging rebuke of the Harper government, the court ruled by a six to one margin that Nadon’s appointment did not pass constitutional muster.
Nadon’s appointment had been criticized on a number of different grounds. First, his area of specialty is maritime law, which is not an area where the court typically hears many cases. Second, he’s had an undistinguished career as a jurist, and had previously opted for semi-retirement as a supernumerary judge, which raised doubts about his ability to handle the heavy work load as a Supreme Court judge.
But the biggest objection was that since he had spent most of his legal career at the Federal Court level, he lacked a sufficiently nuanced understanding of jurisprudence in Quebec civil law, which differs from the tradition of English common law in the rest of Canada, to effectively represent Quebec on the court. That’s one of the main reasons Quebec is allotted three seats on the nine-member court, so that its distinct legal tradition, and by extension its culture, is reflected in the court’s deliberations. Typically, appointees from Quebec come from the province’s pool of superior court judges or practicing lawyers.
The Harper government has already tried a couple of backdoor moves to circumvent the conventions for Supreme Court appointments from Quebec, and it does have an avenue or two open to resurrect Nadon’s candidacy such as having him rejoin the Quebec bar for a single day and then be appointed to the court. That move would go over like a lead balloon in Quebec and the Canadian legal community at large, so hopefully it won’t come to that.
You can read more on the decision, and the implications it may have for another reference case before the court on Senate reform, in this CBC report.
