The revelation that four of six people listed as candidates to fill a Quebec vacancy on the Supreme Court of Canada turn out to have been ineligible for the job is catastrophic for Prime Minister Stephen Harper. It leaves the impression that Mr. Harper was spoiling for a fight with the high court, and was willing to manipulate the appointment process in a manner guaranteed to cause controversy. It also refutes his suggestion that Chief Justice Beverley McLachlin's attempt to contact him last year regarding potential problems with the candidates list was somehow inappropriate. And it risks damaging Quebeckers' confidence in the Supreme Court. It ranks as one of Mr. Harper's most imprudent acts since taking office.
The names of the six candidates, chosen by the Prime Minister's Office and the Justice Department, were revealed last week by The Globe and Mail. Four were sitting Federal Court judges, making it a mathematical inevitability that at least one would end up on the short list of three names from which Mr. Harper would choose his nominee. But under the Supreme Court Act, Quebec appointees who are sitting judges are supposed to come from the Quebec Superior Court or the Quebec Court of Appeal – a rule since confirmed by the Supreme Court.
It was upon seeing the troubling long list, in July, 2013, that Chief Justice McLachlin phoned Justice Minister Peter MacKay and attempted to contact the PMO. A year later, Mr. Harper played this as the Chief Justice overstepping her bounds and interfering with the nomination of Marc Nadon, his ineligible choice for the vacancy. It is now evident that her concern was a general – and eminently valid – one regarding the eligibility of four out of six candidates.
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Mr. Harper courted controversy and subsequently tried to hang it on the head of the Chief Justice – a blatant act of disrespect. He has also left Quebeckers feeling miffed: The presence of three Quebec judges is designed to ensure an expertise in Quebec's Civil Code on the Supreme Court. The perception left is that the Prime Minister is less interested in selecting the best possible Quebec jurist than he is in bending a vital Canadian precept in order to seat his preferred candidate.
With the announcement last week that another Quebec seat will soon be vacant, Mr. Harper now has two critical seats to fill. His original short list includes the eligible and well-regarded Justice Marie-France Bich of the Quebec Court of Appeal. How to repair the damage and make up for lost time? Nominate her immediately.