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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 ...

Early last summer, Supreme Court Chief Justice Beverley McLachlin sat down with five federal politicians at the stately court building on Wellington Street, just down the road from Parliament.

The Supreme Court selection panel – three Conservative MPs, a New Democrat MP and a Liberal MP – had come bearing a list of six candidates to replace Justice Morris Fish of Quebec, who was nearing 75 and about to retire.

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That list, crafted by the Prime Minister’s Office and the Justice Department, was so troubling to Chief Justice McLachlin that she phoned Justice Minister Peter MacKay and took initial steps toward contacting the Prime Minister. These attempts to raise potential eligibility issues would later trigger an unprecedented public dispute between the Prime Minister and the Chief Justice, a coda to the ultimately failed appointment of Justice Marc Nadon.

Until now, the list of six candidates has been a closely held secret. But The Globe and Mail has obtained both that list, and the short list ultimately chosen by the selection panel. The names on those lists not only shed light on Justice Nadon’s appointment but the larger political machinations behind it – and its fallout. A judge rejected. A court short-handed. A Prime Minister’s public accusation of impropriety by a Chief Justice.

The lists also show how the government, though aware of the risks, worked the selection process to find a more conservative judge than it believed was available in Quebec. The province’s top judges and lawyers were largely ignored for a job reserved by law for Quebec candidates because of the province’s unique civil code. Four of the six judges put forward were from the Federal Court in Ottawa, even though it wasn’t clear judges from that court were eligible. Adding salt to Quebec’s wound, one of those judges had been publicly rebuked by an appeal court for copying from government briefs.

Choosing a Supreme Court judge is a constitutional prerogative of the Prime Minister. In the Federal Court, Mr. Harper found a source of candidates closer to his political heart – and he courted the danger of a long and messy challenge to his selection. Even now, as the court’s vacancy drags into its 10th month, he leaves a star candidate to languish on his short list – a list of only one eligible judge.

To peer behind the curtain of the appointment process, The Globe spoke to more than a dozen leading members of the Canadian and Quebec legal communities and government officials over the past several weeks. All of them talked on condition of anonymity. Neither Chief Justice McLachlin nor anyone associated with the Supreme Court provided information to The Globe for this story.

Although Mr. MacKay has described the process as the most open and inclusive ever for the Supreme Court, The Globe’s reporting reveals that the all-party selection panel presented a veneer of neutrality, and behind that veneer the government was free to pursue its political goals.

‘Let’s broaden the scope’

Staffers in the PMO were optimistic when the process began. Less than a year earlier, with another Quebec spot on the top court to fill, Mr. Harper had chosen Justice Richard Wagner of the Quebec Court of Appeal. He was conservative-minded and had an excellent reputation in the legal world. The appointment was widely applauded.

“Everyone was quite confident that the success of the Richard Wagner appointment would be repeated,” a source familiar with the process said.

But the prospects in Quebec for another conservative judge were few, the source said, and the Prime Minister wanted to find someone who would be in sync with his tough take on crime and his view of the restrained role of judges.

“Let’s look elsewhere, let’s broaden the scope,” was the prevailing attitude, the source said.

The Prime Minister knew the legal risks. “The PCO would have said, ‘Oh, we have a problem,’” the source said. The Privy Council Office is the nerve centre of the Canadian bureaucracy, and advises the Prime Minister on Supreme Court appointments.

Another source said two candidates from the Federal Court had been on the list in 2012, but neither made the short list. A year later, there were four, making it a certainty that at least one would be on the short list of three. No Federal Court judge had ever been chosen for one of the Supreme Court’s three Quebec seats. The Supreme Court Act governing those appointments does not expressly say they are eligible.

“If I see a list like that,” a veteran Quebec litigator said when told of the six names by The Globe, “I conclude the Prime Minister absolutely wants to have someone from the Federal Court.”

That was the list the Chief Justice saw. When she phoned the Justice Minister, it would not have been to lobby against the appointment of Marc Nadon, as some Conservative MPs have accused her of doing. There were four names of questionable eligibility on that list, not just one.

The five members of the selection panel received the list in early summer. Then they did their homework. Each of the candidates supplied them with five rulings. There were also legal analyses given to the panel by the Office of the Commissioner for Federal Judicial Affairs.

Two judges on the list were heavyweight candidates from the Quebec Court of Appeal. Justice Marie-France Bich had been a law professor for 20 years before spending 10 years on Quebec’s top court. She is known for writing powerful judgments with an academic bent. (She was on the previous short list but for personal reasons declared herself temporarily unavailable.) She is difficult to pigeonhole as a liberal or conservative. She is the consensus pick of the Quebec legal community.

The second was Justice Pierre Dalphond, a Mr. Everything in Quebec law, considered commercial-minded but with a black mark against him – he’d spent five years in executive positions in the federal Liberal Party more than 20 years earlier.

Three candidates were from the Federal Court of Appeal.

Justice Nadon had been semi-retired for two years and specialized in maritime law – hardly a pressing need on the Supreme Court, according to court watchers who said a criminal law expert would be more helpful. But he was known to be outspoken in his conservative views. He was the only Canadian judge who found Canada blameless in the Omar Khadr affair involving an al-Qaeda member imprisoned since his teens by the United States. Twelve other judges on three Canadian courts had excoriated the Canadian government.

A second candidate was Justice Johanne Trudel. If she had made any controversial rulings in her seven years on the Federal Court of Appeal, they had escaped notice.

A third was Justice Robert Mainville, who as a lawyer had represented native groups such as the James Bay Cree for 25 years, and had written books on aboriginal law.

A fourth, Michel Shore, was from the Federal Court’s trial division. In late 2011, rejecting a man’s claim to a religious right to smoke cannabis, he copied 144 of 152 paragraphs in his judgment from the federal government’s written argument – without attribution. In a separate case, he copied 62 of 66 paragraphs “almost verbatim” from a federal brief. The Federal Court of Appeal warned Justice Shore that the copying must stop.

Why was Justice Shore on the list for the Supreme Court? Two possible reasons: His track record of deference to government sent a message to the Quebec legal community about the kinds of judges this government favours. Also, according to legal observers, his name was easy to cut.

‘Jesus – come on’

Nearly everything about the selection panel is secret, except the names of its members, all of whom sign an oath of confidentiality.

“It is so confidential that they make you return every bit of information you have about the people, about the schedule,” said New Democrat MP Françoise Boivin, a member of the panel who spoke in broad terms about the process. “Everything is given through a thumb drive with password protection that has to be returned.”

They are not all lawyers. The Conservatives are Jacques Gourde, a farmer from Quebec; Shelly Glover, a former Winnipeg police officer who became Heritage Minister during the process; and Robert Goguen, a New Brunswick lawyer. (The three Gs, they have been dubbed by Ms. Boivin, the only Quebec lawyer on the panel.) The fifth member, Liberal Dominic LeBlanc is, like Mr. Goguen, a New Brunswick lawyer. He is also a senior member of his party; the previous time, former Liberal leader Stéphane Dion represented the party.

The selection panel rode a train together to Montreal, where they met with 10 luminaries of Quebec’s legal community at the Loews Vogue Hotel. The rock band Kiss was staying there, too. (Gene Simmons, with his mop of black hair, was hard to miss in the lobby.)

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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