The Conservative government is vowing to fill a Quebec vacancy on the Supreme Court of Canada in weeks, but confusion remains over how the process will unfold after Prime Minister Stephen Harper’s first choice for the bench was rejected.
“It would certainly be my hope we would do this before the summer,” Justice Minister Peter MacKay told reporters after appearing before the House of Commons justice committee.
The Conservative government’s pick for the job, Justice Marc Nadon, was prevented from taking his place on the bench after the Supreme Court ruled 6-1 in a challenge to the appointment that the Federal Court of Appeal judge was not eligible under strict criteria that apply to nominees for seats allocated to Quebec.
Mr. Nadon was plucked from a three-person shortlist, and sources told The Globe and Mail Mr. Harper could very well pick a candidate from the remaining judges on that list.
Mr. Harper could also start the process from scratch. For Mr. Nadon’s nomination, extensive consultations were held involving the Quebec legal community, its chief justices, the Canadian Bar Association and Quebec’s justice minister. An all-party selection committee then winnowed a list of five to eight names down to an unranked shortlist of three, from which Mr. Harper picked Justice Nadon. It took months – and then Justice Nadon’s nomination was challenged by Toronto lawyer Rocco Galati.
But sources said the need to fill the void may mean not restarting the process but just appointing someone. “When there’s an urgency, you simply have to appoint,” a source said.
Naming Supreme Court judges is the prime minister’s prerogative, subject only to eligibility rules and conventions about drawing people to represent Canada’s regions. Also, the Supreme Court Act says three judges must be from Quebec. Mr. Harper, who has appointed five of the eight judges on the court, introduced a new, consultative selection process in 2006 with the appointment of Justice Marshall Rothstein.
The court has been operating below full strength since the resignation last August of Morris Fish, meaning a larger workload for the eight judges and Quebec being denied its full complement of three judges on the court on key national cases such as proposed Senate reforms.
Mr. Harper has said publicly the government will respect the court’s decision. Paul Slansky, a colleague of Mr. Galati, said the two would file a court challenge only if Mr. Harper tries to reappoint Justice Nadon. Mr. Slansky was also involved in the original challenge.
Mr. MacKay also fuelled the intrigue over a news report that the Prime Minister’s Office advised Justice Nadon to resign from the Federal Court and join the Quebec bar in an effort to clinch his nomination for the Supreme Court.
Liberal MP Sean Casey asked the Justice Minister about the story. Rather than throwing cold water on the idea, he replied: “That was not a request that was made by me. … I can tell you that is not something I personally encouraged him to do.”
Mr. MacKay, who took his current post in mid-July last year, said the effort to fill the Supreme Court vacancy had begun long before he appeared on the scene. “This process … was already well under way,” he told Mr. Casey.
On Wednesday, Global News cited unnamed sources who said the PMO warned Justice Nadon about a possible problem with appointing him to the Quebec seat. The report said the warning came after Chief Justice Beverley McLachlin contacted Mr. MacKay to note a potential issue with nominating a Federal Court judge for a Quebec seat.
Reached by The Globe on Wednesday, Mr. Nadon declined to say whether he received a warning about his eligibility from the Prime Minister’s Office. “I have no comments. I’d rather not say anything,” he said.
With a report from Kim Mackrael