Prime Minister Stephen Harper's newest choice for the Supreme Court of Canada ran into a wall of skepticism at a hearing into the federal government's interpretation of the law governing appointments.
In a case with no precedent in the Supreme Court's 139-year history, seven judges were put in the extraordinary position of having to judge a prospective new member, Justice Marc Nadon, a 64-year-old judge with a conservative bent.
Justice Nadon was a member of the Federal Court of Appeal for the past 20 years, and the Supreme Court Act does not directly say Federal Court judges are eligible to fill one of the three spots reserved for Quebec on the top court. If the court rules Justice Nadon ineligible, the government argues it could unilaterally change the law; but the judges questioned whether such a change would require a constitutional amendment and provincial consent.
The case is an important moment not only for the court, which has been working without a ninth judge for several months, but for Mr. Harper, whose choice could foster a constitutional dispute in Quebec that he could not have wanted, and at a time when the province has a separatist government.
Ottawa argues it would be absurd to exclude the experience of Federal Court judges. Quebec, which is intervening in the case, says the appointment is illegal because the three judges from that province need a current link to the province's civil code, which includes family and property law.
Justice Richard Wagner of Quebec persistently challenged the Canadian government on its arguments about sentence structure in the law that he appeared to see as narrow and legalistic. "Don't you think the more fundamental issue is to go behind the intent, behind the compromise" that was made in the act to ensure the Supreme Court has an adequate number of judges who are experts on Quebec's civil code, he asked.
He wasn't alone. "Where is the evidence that Parliament intended to treat all judges the same way?" Justice Rosalie Abella asked government lawyer René LeBlanc.
When Mr. LeBlanc said the evidence lay in Parliament's 1875 debates, which created the Supreme Court long before the Federal Court existed, Chief Justice Beverley McLachlin asked why the government had not made the law clearer subsequently.
The federal government is seeking an advisory opinion from the court on the legality of the appointment after Toronto lawyer Rocco Galati filed a legal challenge in October and Justice Nadon stepped aside temporarily.
"What started out as a plain vanilla administrative law challenge to Justice Nadon's appointment has transformed into a possibly momentous question of constitutional principle," University of Montreal law professor Paul Daly said.
What to do next may not be an easy matter for Mr. Harper; his choice of the semi-retired Justice Nadon suggests no one else caught his eye. Two and a half years ago, Justice Nadon took supernumerary status, meaning he could work half-time for full pay on the Federal Court of Appeal. No other supernumerary judge had ever been picked for the Supreme Court, and many in the legal community do not view Justice Nadon as a jurist of outstanding accomplishment. Some say his support for the government's treatment of terrorist Omar Khadr brought him to Mr. Harper's attention.
The court reserved its decision. It is unclear how long it will take, but the court expedited the hearing because it has been working with just eight judges.
Justice Minister Peter MacKay would not address the possibility on Wednesday that the government might need to look for another judge after passing over some leading members of Quebec's Court of Appeal.
"We will defend the right of Quebeckers on the Federal Court to also sit on the Supreme Court of Canada, provided that they have 10 years of experience as a member of the Québec Bar," said Mr. MacKay's press secretary, Paloma Aguilar. "We've received clear legal advice from retired Supreme Court justice Ian Binnie, endorsed by retired Supreme Court justice Louise Charron, and constitutional scholar Peter Hogg, that someone with Justice Nadon's qualifications is eligible to sit on the Supreme Court. We look forward to resolving this issue and to seeing Justice Nadon, a highly qualified individual, take his place on the court."
But after attending the court hearing, University of Ottawa law professor Adam Dodek, who believes Justice Nadon qualifies, said there is no telling whether he will ever take his spot.
"The issue appears a lot tougher than the Minister of Justice led us to believe. It's a bit of an onion. You unwrap one question and you get to further problems."
His colleague at the law school, Carissima Mathen, who co-wrote an influential paper suggesting Justice Nadon does not qualify for the court, agreed with Prof. Dodek's assessment. "If you're trying to make a prediction based on the hearing, I wouldn't say it's a slam dunk for anybody."