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Marc Nadon: This is the first time in its 139-year history that the Supreme Court wad asked to judge the qualifications of a prospective member. (Sean Kilpatrick/THE CANADIAN PRESS)
Marc Nadon: This is the first time in its 139-year history that the Supreme Court wad asked to judge the qualifications of a prospective member. (Sean Kilpatrick/THE CANADIAN PRESS)

The secret short list that provoked the rift between Chief Justice and PMO Add to ...

One by one, the wise old heads of the Quebec legal world trooped into the Vogue. Michel Robert, the province’s former chief justice. Gérald R. Tremblay, a former president of the Federation of Law Societies of Canada.

The province’s top judges spoke their piece, too. Chief Justice Nicole Duval Hesler of the Quebec Court of Appeal and Chief Justice François Rolland of the Quebec Superior Court were not pleased, sources said. They are proud of their courts, and were not happy the Federal Court produced more candidates than theirs had. They told the panel they were concerned about the eligibility issue.

Then the panel members deliberated. In 2012, the selection panel had been unanimous. Not this time. In the end, the unranked short list of three they gave the Prime Minister was Justice Nadon, Justice Trudel and Justice Bich.

The Globe showed the list to senior Quebec lawyers who were not involved in the process. They expressed astonishment at learning that four of the initial six were from the Federal Court.

“Jesus – come on,” one said.

“Oh Lord,” another said, then began to laugh. But later this senior lawyer described the exclusion of most of the cream of the province’s legal community as “a blow in our faces, a disavowal of the Quebec bench.”

An empty seat

Even within the PMO, the selection process is kept close to the vest. It is managed by the deputy chief of staff, and discussed only with the chief of staff and the Prime Minister. The Justice Department provides advice and consultation during the appointment process, but the choice rests with the Prime Minister.

Justice Nadon’s conservative attributes were made clear to Mr. Harper. “The memo to the Prime Minister would have said: On the list he is the closest to our policies,” a source said.

On Sept. 30, when Mr. Harper announced Justice Nadon as his pick, he released a legal opinion – from retired Supreme Court justice Ian Binnie – asserting that Federal Court judges were eligible. Soon after, a Toronto lawyer, Rocco Galati, filed a court challenge; Justice Nadon stepped aside temporarily; and the Quebec National Assembly unanimously denounced the appointment. Finally, the Harper government asked the Supreme Court to rule on the eligibility.

In March, the court ruled 6-1 that Federal Court judges cannot sit in any of its three Quebec seats.

For nine months, Canada’s most influential court has been short one judge – a judge from the only province with a constitutionally protected right to have three on the court. Meanwhile, Mr. Harper accused Chief Justice McLachlin of trying to engage him in an inappropriate conversation about a case. The confidentiality of the process allowed Mr. Harper to assert that a hidden act of wrongdoing had occurred, even as that same confidentiality prevented the Chief Justice from fully explaining her actions.

Today, Mr. Harper is stuck. He can’t name Justice Trudel. And he apparently doesn’t want Justice Bich.

The Prime Minister has the constitutional prerogative to choose the person he wants for the court. But the question is whether the process offers a pretense of neutrality – a curtain to hide the politics from view. Neither Ms. Boivin nor Mr. LeBlanc can fully debate the value of the process, because of their oaths of confidentiality. But Ms. Boivin did say this: “I am tortured on what to do the next time.”

And at the end of it all, Justice Nadon finds himself back on the Federal Court of Appeal, trying to put the ordeal behind him.

“He’s one of the nicest men in the world, the nicest, kindest, most honest person you can ever hope to meet,” said a senior Quebec lawyer. “Nobody in Quebec would have put his name at the level of the Supreme Court. He’s been sacrificed. It’s profoundly terrible – a perfectly honest, happy man and this happens to him.”

Editor's note: A previous version of this article incorrectly said McGill University law dean Daniel Jutras was consulted by the Supreme Court selection panel. He was not.

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