The majority of judges said that Nadon’s appointment was void from the outset - it had never taken effect - despite the fact that Harper named him, vetted him and confirmed Nadon’s selection in the space of three days last October.
The majority of judges said that Nadon’s appointment was void from the outset - it had never taken effect - despite the fact that Harper named him, vetted him and confirmed Nadon’s selection in the space of three days last October.
OTTAWA—As Prime Minister Stephen Harper was in the air en route to promote democracy in Ukraine, the Supreme Court of Canada delivered a lesson of its own: this is what Canadian constitutional democracy looks like.
The Supreme Court of Canada issued a stinging rejection of Harper’s appointment of Justice Marc Nadon for a Quebec seat on the top bench, saying it was an unconstitutional change to the composition of the Supreme Court of Canada, and required the unanimous approval of Parliament and the provinces.
The news reached Harper aboard his military plane, which has secure communications with Ottawa, and came as a shock.
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“We are genuinely surprised by today’s decision,” said Harper spokesman Stephen Lecce in a statement released four hours after federal lawyers informed the Conservative government it lost every argument it had made.
Lecce pointed to an outside legal opinion that the government got last fall from a retired Supreme Court judge, which was reviewed and backed by another former judge and a constitutional law expert. It pointed at opposition members on a judicial selection committee — who were sworn to secrecy — but the government said never raised an objection to the nomination of a federal court judge to the top court.
None of that mattered.
Only one judge, Michael Moldaver, a Harper appointee, agreed with the government’s view, while six, including three other Harper appointees, vehemently disagreed.
Harper’s office gave no hint of how the vacancy would now be filled, saying only that the prime minister will review his “options.”
But those appear limited after the court’s bombshell 6-1 opinion.
The ruling declared the Supreme Court of Canada is not merely the creation of a federal law, but is “constitutionally entrenched” and has been so even before the 1982 repatriation of the Constitution.
It said three seats set aside by law for Quebec are restricted to superior trial or appellate court judges or current members of the Quebec bar, not open to members of the Ottawa-based Federal Court or Federal Court of Appeal — although judges representing other regions in Canada may be drawn from those ranks, the high court ruled.
The Supreme Court said the law which sets out the job description for all Supreme Court judges, and especially the provision regarding Quebec judges, has an important constitutional purpose of protecting the “functioning” and the political “legitimacy” of the court as a final arbiter of disputes.
It seeks to ensure “that the Court has civil law expertise and that Quebec’s legal traditions and social values are represented on the Court and that Quebec’s confidence in the Court be maintained,” the court said.
“This is a very significant day for Canada because the Quebec’s distinct character has been recognized by the Supreme Court as an integral part of the Constitution of Canada,” said Université de Montréal law professor Paul Daly.
Legal experts expect the ruling hints that the court will also require significant provincial consent, if not unanimity, for Harper’s effort to reform the Senate. The high court is still weighing that question.
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For now, in siding with Quebec, the top court may have dampened a potentially explosive issue in a province where political parties — now in the midst of an election — had unanimously condemned Harper’s move.
Harper set off a political and legal storm last fall with Nadon’s nomination. The Conservatives were forced to try to retroactively change the law via a budget implementation bill, declaring that government could interpret the law on the court’s makeup as it saw fit. A Toronto lawyer launched a legal challenge of his move, and the Quebec government vowed to fight it, too.
Now in the midst of the Quebec campaign, the PQ claimed victory.
Quebec Justice Minister Bertrand St-Arnaud said he’d recommended several names to the Harper government and the whole mess could have been avoided if Harper had heeded his advice on the “most qualified jurists in Quebec to sit on the Supreme Court.”
Liberal Leader Justin Trudeau slammed Harper, saying “the prime minister has failed in one of his fundamental responsibilities” in leaving the Supreme Court of Canada shorthanded as it weighs significant national issues like Senate reform and assisted suicide.
“There is good news in this in that we have seen that Canadian federalism works.”
Tonda
MacCharles is Ottawa Bureau Chief and a senior reporter
covering federal politics. Follow her on Twitter: @tondamacc.
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