Quebec's separatist government will appear before the Supreme Court of Canada early next year to explain why it feels Prime Minister Stephen Harper's newest appointment to that court, Justice Marc Nadon, should be disallowed.
Justice Nadon, who spent the first 20 years of his career as a lawyer with a Quebec firm, was appointed after his subsequent 20 years on the Federal Court's trial and appeal divisions. The Supreme Court Act, which sets aside three of the court's nine spots for judges from Quebec, does not spell out that appointees may come directly from the Federal Court. Even so, three previous judges, including current Justice Marshall Rothstein, have been appointed from the Federal Court of Appeal.
On Tuesday, the Quebec National Assembly condemned the appointment of Justice Nadon in a unanimous resolution, saying that Mr. Harper should have appointed a judge from a list of qualified candidates supplied by the province.
Robert Leckey, a McGill University law professor, said Quebec's objection has "many layers." On one hand, changing the composition of the Supreme Court requires a constitutional amendment – if an appointment from the Federal Court is viewed as a change. On the other hand, "the idea that Justice Nadon is insufficiently Québécois to represent Quebec is very disturbing." Some government members have expressed a concern that Justice Nadon has not lived in Quebec for a long time.
Prof. Leckey added that he views Quebec's objection to the appointment "as part of the long confrontation we're going through between Quebec and Ottawa on every political issue," including Senate reform.
Ottawa has recently proposed a change to the Supreme Court Act to clarify that Federal Court judges qualify for appointment, and has referred the issue to the Supreme Court. Quebec argues that a constitutional amendment is needed to change the rules, and that such an amendment requires that province's consent.
The hearing on the Nadon reference case is set for Jan. 15. The two reference questions posed by the federal government are whether a person who at any time has had 10 years standing before the Quebec bar can be appointed to a Quebec spot on the Supreme Court, and whether Parliament can enact a law setting out that qualification of 10 years standing.
Quebec did not participate directly in Canada's best-known reference case, on the rules for that province's secession; the court appointed a Quebec lawyer to argue the provincial government's case. In that 1998 case, a sovereigntist government said the decision should rest solely in the province's hands. In the Nadon reference case, it does not dispute that the decision on the legality of the appointment lies in the Supreme Court's hands.