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jeffrey simpson

The Harper government figured it would teach the Supreme Court justices a lesson by appointing Marc Nadon to their midst. Instead, the justices taught the Harper government a bunch of lessons.

Among the lessons: Don't play politics with the judiciary. Don't play fast and loose with the law. Pick the best-qualified, not the average. Understand the Constitution.

The Harper government thoroughly deserved the complete rebuke it received Friday from the Supreme Court of Canada. The Prime Minister and Justice Minister Peter MacKay mishandled everything in their attempt to place on the court someone whose conservative ideology rather than legal expertise commended him to the government.

They almost succeeded, which ought to produce a lot of soul-searching among those who care about the integrity of the courts. The country's legal profession remained abjectly silent in the face of a less-than-satisfactory process that produced an obviously ideological appointment. The parliamentary committee barely studied the candidate, in fairness perhaps because MPs were given so little time to investigate a nominee about whom so little was known. Law professors, with a few exceptions, clammed up despite their beloved tenure. It took the Supreme Court, by a resounding 6-1 majority, to say "No."

No, because justices from Quebec must come from the province's highest courts or the bar, and Justice Nadon was from the Federal Court of Appeal and therefore met neither test. No, because the government, figuring maybe there might be this problem of eligibility, changed the Supreme Court Act unilaterally whereas such a change would require a constitutional amendment.

On both legal questions, the government lost and lost completely. The majority judgment bulldozed over the government's arguments and swept aside supporting briefs from two former Supreme Court justices, Ian Binnie and Louise Charron, as well as constitutional expert Peter Hogg.

None of this had to happen. There were many qualified candidates from Quebec to fill the province's third seat, including judges from the province's superior courts, a law dean at McGill and practising lawyers. Had any one of these individuals been appointed, the appointment would not have sparked controversy. Nor would the appointment have provoked a constitutional challenge.

Instead, the Prime Minister opted for someone whose ideological persuasion and deference to government fitted what Mr. Harper prefers on the bench. By putting Justice Nadon on the highest court, Mr. Harper (and Mr. MacKay) would show the entire judiciary – and especially the Supreme Court – that it was out of step with the "tough-on-crime" needs of the country and attitude of the government.

Mr. MacKay, who had to carry the can for the Nadon appointment, kept spouting clichés about how well-qualified the candidate was. The minister never offered detailed evidence in the form of a track record of judgments or other writings to support this dubious contention. Instead, it became known that the vast majority of Justice Nadon's rulings on the Federal Court of Appeal that wound up in the Supreme Court had been overturned.

Mr. MacKay could never explain, for understandable reasons, how a judge who had voluntarily taken semi-retirement – had become what is called a supernumerary judge – was ready intellectually for the demanding burdens of the Supreme Court, where the workload is intense and the meaning of every sentence is parsed.

The Nadon saga, properly understood, was certainly about the law and the Constitution, but it was also about the relationship of government and the courts. It was a disguised ideological battle launched by a government convinced that too many judges are too lenient with criminals, too inclined to favour the accused over victims, too elastic in interpreting the Charter of Rights and Freedoms, and too willing to resist applying laws passed by Parliament and provincial legislatures.

The Prime Minister does not like being rebuffed, not by officers of Parliament, the press, the business community, by anybody. He's going to be steaming about the impudence of the Supreme Court turning down his nomination.

The smart strategy would be to select a middle-of-the road, highly qualified candidate from the Quebec courts or the bar and declare a truce. He could also scour the province for someone just as conservative as he hoped Justice Nadon would be, but who would not confront the impediments that the Supreme Court erected Friday.