The Conservative government is refusing to close the door to reappointing Justice Marc Nadon to the Supreme Court of Canada, a move that would pit the government against the country's top judges.
On Friday, the Supreme Court resoundingly rejected Prime Minister Stephen Harper's choice of the 64-year-old, semi-retired judge for one of its three Quebec seats. Mr. Harper had asked the court for an advisory opinion after the appointment was challenged in October, first by Toronto lawyer Rocco Galati, and then by the Quebec National Assembly.
The Supreme Court ruled 6-1 that he is not eligible because he lacks current standing before the Quebec bar, or membership on a senior Quebec court, as required by the Supreme Court Act. The principle of special rules for Quebec appointments is so important it has the protection of the Canadian Constitution, and cannot be changed without unanimous consent, the court said.
In two statements since then, one from the Prime Minister's Office on Friday, and one from the parliamentary secretary to the Justice Minister on Sunday, the government suggested that finding a quick way to make Justice Nadon eligible for the Supreme Court is a possibility.
"I think all the options are on the table. The Prime Minister will be looking at those," MP Bob Dechert said on Global TV's The West Block when asked about the possibility of trying to get the 64-year-old judge appointed to the Supreme Court through other means.
Those other means could include appointing him to the Quebec Superior Court through an Order in Council, which would probably take just one day, and then appointing him to the Supreme Court the next day, legal experts say. "They're into a real combat of the two branches at that point," Peter Russell, a leading authority on the court whose writing was cited in the majority ruling, said in an interview. "It isn't just the so-called liberal judges; it's a majority of judges that they would be trying to beat down."
However, Justice Nadon may be feeling chastened – or even "humiliated and embarrassed," as retired judge John Gomery, a former colleague, suggested over the weekend – and may not wish to be put through another fight.
"This isn't really up to politicians," Paul Daly, a law professor at the University of Montreal, said in an interview. "It's up to Justice Nadon. He has a great job at the Federal Court of Appeal. He has a choice between seeing out his career there or continuing the circus that this may become." Justice Nadon is not commenting publicly, said his lawyer, Reynold Langlois.
The nearest precedent occurred in the 1930s when U.S. president Franklin Delano Roosevelt publicly threatened to expand the U.S. Supreme Court to 15 judges, after that court struck down some of his New Deal legislation, he said. "Roosevelt had his whole legislative program at stake. What's at stake for Harper here is just saving his face."
Paul Slansky, a Toronto lawyer who alongside Mr. Galati also challenged the appointment of Justice Nadon, said in an interview he expects they would contest any attempt to reappoint him. Such a challenge would likely drag on for years in the courts, and the government is unlikely to have the "stomach" to try to expedite matters by asking the Supreme Court once again for an advisory opinion, Prof. Daly said.
Even if Justice Nadon makes it onto the Supreme Court without a legal challenge, a lawyer could seek to have that court rule that he is ineligible to hear a case. "Would the PM risk the Supreme Court having to deal with a challenge to Justice Nadon's entitlement to sit in the very first case to which he was assigned?" asked McGill University professor emeritus Roderick Macdonald.
"And when faced with such a situation, I think the SCC might well decide that sections 5 and 6 [which set out qualifications for judges in the Supreme Court Act] are meant to reflect basic constitutional values about the nature of the Supreme Court, and that to treat them as nothing more than technical barriers is to mistake the nature of a constitution."
The nine-member court has been shorthanded for seven months, its longest period since the Charter of Rights and Freedoms came into effect in 1982. Mr. Dechert also said the governments want to have a full complement on the Supreme Court as soon as possible.
A dispute over Justice Nadon's reappointment would play out during a Quebec election in which separation is a pivotal issue. Any attempt to circumvent the court's ruling "will add fuel to the fire of the Quebec election," Prof. Daly said. "I can't see how that's in the interest of Mr. Harper, who cares about a strong and united Canada."