The Supreme Court has never had a case like it in its 139-year history. On Friday, the court will rule on whether Prime Minister Stephen Harper’s latest appointee to that court, Justice Marc Nadon of Quebec, has the legal qualifications for the job.
The case has a slew of unusual elements, including a semi-retired judge barely known outside the Federal Court of Appeal, where he sat for the past 10 years, and not widely deemed a judge of the first rank – and for whom Mr. Harper was willing to risk a long, dragged-out battle on the appointment.
But if its unique flavour has the country’s legal community at the edge of its seats, it is just one part of the story. This is a case of great moment. Saying yes to the government’s appointment would be to say no to Quebec’s view, expressed not only by the separatist Parti Québécois but by a unanimous National Assembly, that there are special rules for the appointment of the court’s three Quebec judges – rules that go to the heart of the compromise between French and English Canada. A yes to Justice Nadon would give ammunition to the PQ during a hotly contested election in which the issue of sovereignty is always lurking.
And if the court says no to Justice Nadon, who stepped aside in October without hearing a single case once his appointment was challenged, it confronts the government in a way it never has before. “I suppose the court would say it’s not a big clash, we’re performing our normal role as interpreter of the law and Constitution, and you’re not complying with your own rules,” Wayne MacKay, who teaches law at Dalhousie University, said in an interview. “That’s the legal answer. In real terms, it’s a pretty clear showdown between the government exercising its judicial appointing power and the court refusing to accept that appointment,” Mr. MacKay said.
The Supreme Court Act sets out the qualifications for appointment. For the three Quebec judges, it doesn’t expressly include judges on the Federal Court. Quebec and some academics outside that province say that’s because Parliament sought to reassure skeptics that the court would be steeped in current knowledge of the civil code. Ottawa says Justice Nadon’s years on the Federal Court (which included 10 years on its trial division, for a total of 20) deepened his qualifications. But Mr. Harper foresaw that a dispute was possible – no Federal Court judge had ever been named to one of the Quebec spots – and when he announced the appointment, he went so far as to release a legal opinion from a retired Supreme Court judge, Ian Binnie of Ontario, that it was legal.
If the court says yes to Justice Nadon (unanimously or with its two currently sitting Quebec judges disagreeing), separatist Premier Pauline Marois would not simply discuss the case in terms of legal niceties, McGill University law professor Robert Leckey said.
“She would have to say that the majority of the judges allowed Harper’s choice of someone who is unable to represent Quebec. To really push that out into public discourse, she would have to say some quite unpleasant things about Nadon. We’ll see if she goes there.”
If the court says that Justice Nadon is not qualified and, further, that the government cannot simply rewrite the appointments law without provincial consent, Mr. Harper would have little choice but to accept it and find another appointee, observers say. It is the government that asked the court for an “advisory opinion” (in what is known as a reference case), and “implicit in the whole process is that you abide by the opinion of the court,” Prof. Leckey said. “If he turned his back [on the ruling], that would be a huge insult to the court. People would feel the rule of law was threatened.”