Justice Marc Nadon's appointment to the Supreme Court defies the spirit of a law meant to reassure Quebeckers that judges chosen from their province would understand its civil code, two law professors write.
Prime Minister Stephen Harper appointed the 64-year-old judge to one of three Quebec spots on the nine-member court. But the law that reserves those three places says the judges must be from a Quebec superior court, or among the province's advocates. Justice Nadon was on the Federal Court of Appeal.
Carissima Mathen of the University of Ottawa and Michael Plaxton of the University of Saskatchewan say next month's unprecedented hearing at the Supreme Court on Justice Nadon's appointment should be no slam dunk for Mr. Harper.
When the Prime Minister announced the appointment, he published a legal opinion from retired Supreme Court judge Ian Binnie affirming that federal court judges from Quebec qualify for the country's top court. But Ms. Mathen and Mr. Plaxton challenge Mr. Binnie's arguments head-on.
"It seems strange … not to ask why the Quebec requirement was imposed in the first place," they write in the online journal Constitutional Forum, published by the University of Alberta's Centre for Constitutional Studies. "Yet Binnie does not ask that question."
Their article also shows why the stakes are much higher than whether Justice Nadon qualifies: The rules appointing Quebec judges are rooted in the basic compromises of Confederation, and in the expansion of the court to nine judges from seven in 1949. (Quebec's separatist government is challenging Justice Nadon's appointment.)
"The Supreme Court of Canada, from the moment of its birth, was a controversial institution – particularly among French Canadians," Ms. Mathen and Mr. Plaxton write. The law did not directly call for civil law expertise because the Canadian government, including John A. Macdonald, the first prime minister, wished to "paper over issues of expertise, which might stir up further controversy and call into question the legitimacy of the Court."
The federal government, in its written argument filed with the court, agrees that the law's purpose was to ensure civil-code expertise, but said achieving it does not require appointees to be current members of the Quebec bar.
If Ottawa is right, political scientist Peter Russell of Toronto said, judges who may not have looked at the Quebec civil code for a long time, perhaps since university, would "have the potential to overturn decisions by jurists whose everyday life in the law is in Quebec."
The case is "going to be close," Mr. Russell, an expert in the Supreme Court's history, said in an interview.
Mr. Binnie set out the case of a hypothetical judge whose background is similar to that of Justice Nadon. Such an individual is clearly better qualified after his years on the bench, he wrote, "yet the objection to the appointment of Federal Court judges attributes to Parliament the view that Federal Court experience is a detriment not an asset."
But Ms. Mathen and Mr. Plaxton say Mr. Binnie "highlights certain purposes while ignoring others," such as the intention "to protect the authority and legitimacy of the Court in the eyes of Quebec citizens, advocates and jurists."
They add: "The text matters. It has independent force of its own."
The court has been sitting with eight members since Toronto lawyer Rocco Galati filed a complaint about the appointment in October, because Justice Nadon stepped aside.