Justice Marc Nadon listens to opening remarks as he appears before a parliamentary committee following his nomination to the Supreme Court of Canada Wednesday October 2, 2013 on Parliament Hill in Ottawa.Adrian Wyld/The Canadian Press
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Several judges of the Supreme Court of Canada have expressed skepticism about the legality of Prime Minister Stephen Harper's latest appointment to that court, Justice Marc Nadon.
The Supreme Court is being asked to consider his appointment during a hearing Wednesday – the first of its kind in the Supreme Court's 139-year history – in a case that puts the court in the unusual position of having to rule on whether an appointee can join its ranks. The court has been sitting with at most eight members since Justice Nadon stepped aside in October shortly after being sworn in, when Toronto lawyer Rocco Galati challenged his appointment in Federal Court.
At stake is whether Prime Minister Stephen Harper will be able to put his choice on to the court. Justice Nadon tends to favour judicial restraint, and in one case, supported the Canadian government's treatment of teenage terrorist Omar Khadr, then incarcerated at a U.S. naval prison at Guantanamo Bay, Cuba. All 12 other judges who heard the case in Canadian courts, including the Supreme Court, said Canada had severely abused Mr. Khadr's rights. Even apart from the legal challenge, the choice of the 64-year-old supernumerary (semi-retired) judge, a specialist in maritime law, has been the most criticized of Mr. Harper's six appointments to the country's most influential court.
The hearing on the legality of Mr. Nadon's appointment also raises questions of national unity in determining the required qualifications of Quebec judges.
Justice Nadon was a judge on the Federal Court of Appeal, and Section 6 of the Supreme Court Act, which sets out the qualifications for the three Quebec judges on the country's highest court, leaves out judges from the Federal Court. On Wednesday, Chief Justice Beverley McLachlin asked federal lawyer René LeBlanc why that is, and he replied that Section 6 must be read together with Section 5, which expressly permits those who have been a member of a provincial bar.
But some judges seemed dissatisfied with the response.
Justice Rosie Abella of Ontario asked whether it was Parliament's intent "to have the same conditions of appointment throughout Canada."
"That's correct," Mr. LeBlanc replied.
Justice Abella demurred. "When we look at the historical facts, we can see that's not correct," she said. "And that's why there are two sections."
Justice Richard Wagner of Quebec persistently challenged the Canadian government. "Don't you think the more fundamental issue is to go behind the intent, behind the compromise" between English and French Canada, in trying to ensure the Supreme Court has an adequate number of civil code experts, he asked.
The province of Quebec opposes the appointment, arguing that judges on the Supreme Court need current knowledge of the province's civil code, which governs civil rights, family law and relationships between people, and which no other province has.
Mr. LeBlanc replied that former chief justice Antonio Lamer of Quebec was a criminal lawyer with little background in Quebec's civil code. He said Parliament's intent was to allow a prime minister wide latitude to pick qualified jurists for the court.
Justice Abella asked Mr. LeBlanc what his evidence is that Parliament did not intend to treat judges from Quebec differently than judges from the rest of Canada. He said the evidence can be found in Parliament's 1875 debates, at the time the court was created. But Justice Wagner and Chief Justice McLachlin asked about changes to the law since then that left Federal Court judges out.
The federal government argues that the key qualification is 10 years experience as a lawyer, and that current membership in the Quebec bar is not required. A legal opinion from retired Supreme Court Judge Ian Binnie obtained by the Canadian government and publicly released when Justice Nadon was appointed said it would be absurd to argue otherwise.
Justice Nadon has been publicly told by the Supreme Court not to use his office or come to the court building until the matter is settled.