The Supreme Court has dealt a stunning blow to Prime Minister Stephen Harper, ruling that his latest appointee to that court, Justice Marc Nadon of Quebec, is not legally qualified for the job.
The court ruled 6-1 that the purpose of the special appointment rules for Quebec judges is “to ensure civil law expertise and the representation of Quebec’s legal traditions and social values on the Court, and to enhance the confidence of Quebec in the Court.” Justice Michael Moldaver of Ontario dissented.
It was the first time in its 139-year history the court had been asked to judge the qualifications of a prospective member. By law, three spots on the court are reserved for Quebec judges. The Supreme Court Act does not directly say that a judge from the Federal Court can be appointed to fill a Quebec spot, and Justice Nadon had been a member of the Federal Court’s trial and appeal divisions for the past 20 years. Before that he was a lawyer for 20 years specializing in maritime law, mostly based in Montreal.
The separatist Parti Québécois government sent lawyers to the court in January to argue that Federal Court judges lack current knowledge of the province’s legal environment and civil code (which covers matters such as family and property law). Ottawa argued that the Prime Minister needs wide latitude to find the best and brightest candidates for the bench. Mr. Harper’s defeat has the effect of denying the PQ ammunition in the current election: If the ruling had gone the other way, the PQ could have argued that the Supreme Court doesn’t understand or reflect the province’s special status within Canada.
Justice Moldaver, who dissented, said the majority’s ruling allows for the absurd result that Justice Nadon could qualify by joining the Quebec bar for one day. In fact, though, a spokesman for the Quebec Bar Association said that membership in the bar requires 30 hours of continuing education every two years in programs recognized by the bar.
In a statement, the Prime Minister’s Office said it was “genuinely surprised” by the ruling, and will review its options.
Paul Daly, who teaches administrative law at the University of Montreal, called the ruling “a huge day for the Canadian federation. This is a ringing declaration from the Supreme Court of Canada on the importance of Quebec’s distinct character and how important it is to protect it.” That declaration is especially important during Quebec’s election campaign, where separation is at issue.
He urged Mr. Harper to move quickly to appoint the next judge on his shortlist from Quebec. “It is important the separatists aren’t given any more ammunition by a delay in naming a replacement.”
Errol Mendes, a law professor at the University of Ottawa, called the ruling “a slap in the face to the PM who sought to stack the Court with a clearly unsuitable candidate.” He also said it was a criticism of the way the Prime Minister treated the question of national unity.
William Trudell, a Toronto lawyer, said the ruling made him proud to be a member of the legal profession. "Mr Harper is not above the law, and cannot shape it or ignore proper processes to fit his political agenda. True ‘law’ and especially ‘order’ has been protected by the Supreme Court of this remarkable country.”
Why Mr. Harper chose Justice Nadon in spite of the legal risks has never been clear. The 64-year-old was the first supernumerary (semi-retired) judge named to the Supreme Court. The legal community did not see him as a leading light. He was little known outside the Federal Court.
His most noteworthy ruling came in the war-crimes case of Omar Khadr, a member of al-Qaeda who was captured at 15 in Afghanistan and held at the U.S. naval base in Guantanamo Bay, Cuba, for eight years. Canadian officials travelled to the base, interviewed the teenager without giving him access to counsel and passed on the fruits of those interrogations to the prosecution at a time he was facing a maximum of life in prison. Of 13 judges in three Canadian courts who heard the case, only Justice Nadon refused to criticize Canada. The Supreme Court excoriated the Canadian government — unanimously.
Justice Nadon has not heard a single Supreme Court case. Shortly after his appointment, Toronto lawyer Rocco Galati challenged it in Federal Court. Quebec followed with a unanimous resolution in the National Assembly opposing the appointment. Mr. Harper then asked the court to give an advisory opinion on its legality. The court declared publicly that it had told Justice Nadon he had to stay away from the building until the case was concluded. It was all unprecedented, and left the legal community transfixed.
The court has been operating with just eight judges since the retirement of Justice Morris Fish in August, meaning a larger workload for each judge and the prospect of tie votes. The court expedited the hearing at Ottawa’s request, and produced its ruling in just two months.