After sitting in limbo for months, Prime Minister Stephen Harper’s latest appointee to the Supreme Court of Canada, Justice Marc Nadon, will learn on Friday whether his prospective new colleagues deem him legally qualified for the job.
Justice Nadon, the first supernumerary (semi-retired) judge chosen for the Supreme Court, was tabbed in late September to fill one of the three Quebec seats, and sworn in a few days later. But he never heard a single case, because his appointment was quickly challenged in Federal Court by Toronto lawyer Rocco Galati, and then unanimously criticized by a Quebec National Assembly. He immediately stepped aside, and the federal government asked the Supreme Court whether the appointment was legal.
The court later announced publicly that Mr. Nadon would not be permitted inside the Supreme Court building on Wellington Street until the case was decided. It was just one of many unprecedented elements in a case unlike any other in the court’s 139-year history.
Justice Nadon, 64, had sat on the Federal Court of Appeal for the past decade, but the Supreme Court Act does not expressly include that court among the qualifications for appointment from Quebec. (His original specialty was maritime law, in two decades of practice based in Quebec.) The federal government argues that the intention of the law is to appoint the best and the brightest, but the province of Quebec says the real purpose is to ensure that the Supreme Court’s Quebec judges have current knowledge of the civil code, which covers matters such as family and property law.
The ruling will have national-unity implications, at a time when Quebec is in the middle of a fraught election campaign. If the court rules that Federal Court judges are not legally qualified, it must also decide whether the federal government can rewrite the law without seeking provincial consent.
As a result, the case will be seen in Quebec “as a test of Harper’s brand of centralized federalism,” said Hugo Cyr, who teaches law at the University of Quebec at Montreal.
Carissima Mathen, a University of Ottawa law professor, said the case will be “tremendously exciting because the case has morphed beyond the initial question about statutory interpretation, to Quebec’s place in our legal system and to questions about constitutional amendments. It has the potential to be one of the most important decisions from the Supreme Court this year, and in the last several years.”
It also has implications for Mr. Harper’s ability to choose the kinds of judges he wishes for the court. Justice Nadon tends to be deferential to legislators. The court has been sitting with just eight members since the appointment in late September, meaning a larger workload for each judge and the possibility of tie votes.