October was not a very good month for Justice Marc Nadon, the newest appointee to the Supreme Court of Canada. He never did manage to take his seat on the court. But November, if anything, has started off on a worse note.
He was told to stay away from his office at the Supreme Court building on Ottawa’s Wellington Street, not to go to the court building and not to talk to any of his prospective new colleagues on the court. And the Supreme Court has very publicly posted those directions to Justice Nadon on its website.
It was the latest in a series of events without precedent in the court’s 138-year history that have befallen Justice Nadon, a 64-year-old who in September was plucked from semi-retirement by Prime Minister Stephen Harper to serve on the country’s highest court.
Justice Nadon was appointed from the Federal Court of Appeal, and it is unclear whether any of the three spots reserved for Quebec judges can be filled from that court. After a court challenge by Toronto lawyer Rocco Galati, and a complaint from Quebec’s separatist government, the Canadian government referred the matter to Justice Nadon’s eight fellow judges, asking them to rule on the legality of his appointment.
The court “is trying to steer through uncharted waters in having to deal with a reference [case] that directly affects one of its members,” said Adam Dodek, a law professor at the University of Ottawa.
“When a judge has a ‘stake’ in a legal matter, it is expected that he will recuse himself from the case, as Justice Nadon has done. What is unusual is the extent to which the Court has gone to create a cordon sanitaire between itself and Justice Nadon and how public it has been about the steps it has taken.”
Ottawa lawyer Eugene Meehan, a former executive legal officer with the Supreme Court, said the court is emphasizing the legal principle that justice must not only be done, it must be seen to be done. “This is that principle on steroids. The Court is exercising an overabundance of caution, but caution nevertheless.”
At the direction of the Supreme Court, the court’s deputy registrar, Mary McFadyen, wrote to the federal and provincial governments on November 1 to say the court has taken steps to ensure its members are strictly impartial for the Nadon reference case. (A reference case is one in which the Canadian government asks the Supreme Court for an advisory opinion on a major legal issue.)
In her letter, Ms. McFadyen outlines the measures taken to ensure that the judges will not have any conflicts of interest.
“As questions concerning the legality of Justice Nadon’s appointment are pending before the Court, it has adopted the following measures to ensure that justice is both done and is seen to be done in an independent and impartial manner: 1. Justice Nadon will not have contact with the members of the Court. 2. Justice Nadon will continue not to participate in the work of the Court. 3. Justice Nadon will not occupy his office or attend at the Court.”
She went on to say that the court “confirms that none of its members has discussed the merits of the challenge or the Reference with Justice Nadon.”
Quebec has told the Supreme Court it will send lawyers to Ottawa to argue that the appointment is illegal. The province’s National Assembly passed a unanimous resolution late last month saying the appointment should have come from a list of qualified candidates supplied by the province. Mr. Galati also says he intends to seek intervenor status so that he can object to the appointment.
Justice Minister Peter MacKay has said he will fight for the right of members of the Quebec bar with 10 years standing to serve on the Supreme Court. Before making the appointment, he obtained an opinion from retired Supreme Court justice Ian Binnie that judges from the Federal Court can qualify to serve as Quebec members on the Supreme Court.