The Conservative government stretched a point – but not beyond the limits of reason – when it nominated Marc Nadon as a justice of the Supreme Court of Canada, and more specifically as one of the three judges on the court from Quebec.
Now that the court has turned it down, the government should resist any temptation to create some new, artificial qualification for Mr. Nadon, say, by appointing him first to the Quebec Superior Court and then a few weeks later nominating him to the Supreme Court. Surely the man has been through enough.
Six of the seven judges who took part in the case seized the occasion to show the flag of their court. They made clear – with a sound argument – that dry verbiage in the Supreme Court Act on the credentials for its members has been elevated to constitutional status. Under the Constitution Act, 1982, the rules on the court dating back to 1949 can be changed only by a constitutional amendment, that is, by the much-dreaded prospect of "opening up" the Constitution.
The government's flexible interpretation of the qualifications for membership was supported by the legal opinions of Peter Hogg, a man often thought of as the dean of Canadian constitutional law, and Ian Binnie, a similarly respected retired justice of the court. One current judge of the court, Michael Moldaver, agreed with them, in a carefully reasoned dissent.
The majority of the court, however, emphasized that the case required both technical, closely textual statutory interpretation and a broader, "purposive" approach.
Since 1982, the Supreme Court of Canada has become accustomed to dealing with matters of general principle, with ideas that engage them. They are not fond of technical arguments.
The Nadon case obliged them to parse intricate clauses. Perhaps the somewhat strained arguments made by the government irritated them. The judges could not ignore the technicalities, but they wanted to look to longer-term policies, all the more.
The significance here of French civil law, with its importance to Quebec's special place within Canada, is clear. It was as if the government's arguments had provoked the justices to give an expansive force to the protection of the Quebec Civil Code, as part of a larger Canadian social contract – even by way of narrow-sounding legal clauses.