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Marc Nadon: This is the first time in its 139-year history that the Supreme Court wad asked to judge the qualifications of a prospective member. (Sean Kilpatrick/THE CANADIAN PRESS)
Marc Nadon: This is the first time in its 139-year history that the Supreme Court wad asked to judge the qualifications of a prospective member. (Sean Kilpatrick/THE CANADIAN PRESS)

The secret short list that provoked the rift between Chief Justice and PMO Add to ...

“If I see a list like that,” a veteran Quebec litigator said when told of the six names by The Globe, “I conclude the Prime Minister absolutely wants to have someone from the Federal Court.”

That was the list the Chief Justice saw. When she phoned the Justice Minister, it would not have been to lobby against the appointment of Marc Nadon, as some Conservative MPs have accused her of doing. There were four names of questionable eligibility on that list, not just one.

The five members of the selection panel received the list in early summer. Then they did their homework. Each of the candidates supplied them with five rulings. There were also legal analyses given to the panel by the Office of the Commissioner for Federal Judicial Affairs.

Two judges on the list were heavyweight candidates from the Quebec Court of Appeal. Justice Marie-France Bich had been a law professor for 20 years before spending 10 years on Quebec’s top court. She is known for writing powerful judgments with an academic bent. (She was on the previous short list but for personal reasons declared herself temporarily unavailable.) She is difficult to pigeonhole as a liberal or conservative. She is the consensus pick of the Quebec legal community.

The second was Justice Pierre Dalphond, a Mr. Everything in Quebec law, considered commercial-minded but with a black mark against him – he’d spent five years in executive positions in the federal Liberal Party more than 20 years earlier.

Three candidates were from the Federal Court of Appeal.

Justice Nadon had been semi-retired for two years and specialized in maritime law – hardly a pressing need on the Supreme Court, according to court watchers who said a criminal law expert would be more helpful. But he was known to be outspoken in his conservative views. He was the only Canadian judge who found Canada blameless in the Omar Khadr affair involving an al-Qaeda member imprisoned since his teens by the United States. Twelve other judges on three Canadian courts had excoriated the Canadian government.

A second candidate was Justice Johanne Trudel. If she had made any controversial rulings in her seven years on the Federal Court of Appeal, they had escaped notice.

A third was Justice Robert Mainville, who as a lawyer had represented native groups such as the James Bay Cree for 25 years, and had written books on aboriginal law.

A fourth, Michel Shore, was from the Federal Court’s trial division. In late 2011, rejecting a man’s claim to a religious right to smoke cannabis, he copied 144 of 152 paragraphs in his judgment from the federal government’s written argument – without attribution. In a separate case, he copied 62 of 66 paragraphs “almost verbatim” from a federal brief. The Federal Court of Appeal warned Justice Shore that the copying must stop.

Why was Justice Shore on the list for the Supreme Court? Two possible reasons: His track record of deference to government sent a message to the Quebec legal community about the kinds of judges this government favours. Also, according to legal observers, his name was easy to cut.

‘Jesus – come on’

Nearly everything about the selection panel is secret, except the names of its members, all of whom sign an oath of confidentiality.

“It is so confidential that they make you return every bit of information you have about the people, about the schedule,” said New Democrat MP Françoise Boivin, a member of the panel who spoke in broad terms about the process. “Everything is given through a thumb drive with password protection that has to be returned.”

They are not all lawyers. The Conservatives are Jacques Gourde, a farmer from Quebec; Shelly Glover, a former Winnipeg police officer who became Heritage Minister during the process; and Robert Goguen, a New Brunswick lawyer. (The three Gs, they have been dubbed by Ms. Boivin, the only Quebec lawyer on the panel.) The fifth member, Liberal Dominic LeBlanc is, like Mr. Goguen, a New Brunswick lawyer. He is also a senior member of his party; the previous time, former Liberal leader Stéphane Dion represented the party.

The selection panel rode a train together to Montreal, where they met with 10 luminaries of Quebec’s legal community at the Loews Vogue Hotel. The rock band Kiss was staying there, too. (Gene Simmons, with his mop of black hair, was hard to miss in the lobby.)

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