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Editorials Harper shift on Supreme Court nomination process less than ideal

Justice Minister Peter MacKay responds during Question Period in the House of Commons on Parliament Hill in Ottawa, Wednesday May 14, 2014 . THE CANADIAN PRESS/Adrian Wyld

Adrian Wyld/THE CANADIAN PRESS

The good news: That vacancy on the Supreme Court could finally be filled. The caveat: The process the Harper government has cooked up to accomplish that objective, asking the government of Quebec to submit a list of candidates from which it will select a new judge, sets a less than ideal precedent.

Should Ottawa consult with experts and stakeholders, including the provincial government? Of course. But choosing a new judge from a list created by Quebec City is an idea ripped straight from the rejected Charlottetown and Meech Lake accords.

Justice Minister Peter MacKay confirmed on Wednesday that, to get itself out a mess largely of its own making, Ottawa is turning to Premier Philippe Couillard's new government. "They have provided us with a list, and we are looking for a consensus that would include a name from that list," said Mr. MacKay. "Our list and their list are being examined in concert to find a common name."

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In short-term political terms, this looks like a win-win. The Harper government may have found an elegant way of ditching the faulty process, and the flawed short list, that ended up in the nomination of Federal Court Judge Marc Nadon. The Supreme Court ruled that Federal Court judges are ineligible to occupy the Supreme Court's three Quebec seats. The government's carefully steered appointment process sidelined many thoughtful Quebec jurists and yielded only five other names – three of whom are also Federal Court judges, and hence also ineligible.

And while Ottawa is looking for help restoring credibility in Quebec, a federalist government in Quebec City is looking for wins it can claim from Ottawa. Mr. Couillard gets to burnish his bona fides within the nationalist camp, by getting recognition of one of the Quebec government's long-standing demands, namely that three judges on the Supreme Court be not just Quebeckers, but Quebeckers nominated by Quebec City.

Which is the problem. The provincial Justice Minister was proudly telling the National Assembly that they had established a precedent, charting "the course for things to come." Federal sources, however, were saying the opposite, and insisting that giving this kind of power to a provincial government was just a one-off, and not to be repeated. We need some clarity, please.

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