PMO surprised Supreme Court nomination goes upside down

- March 21st, 2014

Supreme Court of Canada

On October 3, 2013, Prime Minister Stephen Harper announced that he would be appointing Marc Nadon to fill a vacant Quebec seat on the Supreme Court of Canada.

Today, the Supreme Court, in a 6-1 ruling, said, no, the prime minister would not be appointing Nadon to the court.

To which the PM spox Stephen Lecce said:

“We are genuinely surprised by today’s decision. Prior to Justice Nadon’s appointment, the Department of Justice received legal advice from a former Supreme Court justice, which was reviewed and supported by another former Supreme Court justice as well as a leading constitutional scholar. None of them saw any merit in the position taken by the Court.

“A multi-party committee was also involved in the selection process and at no time did any Members, including from the Opposition, object to appointing a member of the Federal Court of Appeal to the Supreme Court, which is itself a federal court. As even the Opposition has acknowledged, Mr Justice Nadon is a distinguished and respected legal mind.

We will review the details of the decision and our options going forward.”

One of the reasons the PMO is surprised is because they’d asked former Supreme Court Justice Ian Binnie if Nadon would be good to go. He told them yes.

Liberal MP Irwin Cotler, the last Liberal to be a justice minister, writes an essay to make the point that he hopes this whole mess is never repeated.

Categories: Justice, Politics

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7 comments

  1. Gabby in QC says:

    My comment will of course be dismissed as simply conservative whining … but here goes anyway.
    • What is the point of electing a government if the laws and regulations they vote on and try to implement are overturned by unelected officials? What happened to the oft-voiced “primacy of parliament” if judges at various levels can arbitrarily decide not to apply legislation passed by parliament, e.g. mandatory minimum sentences?

    • From justice.gc.ca website:
    “Justice employees play a central role in drafting bills for Parliament, whether they originate with the Department of Justice or with another department. Roughly half of the Department’s staff are lawyers; the other half includes experts in fields such as research, the social sciences, and communications, as well as paralegals and support staff. Many of our lawyers work in legal services units in some 40 other federal departments and agencies.”
    What qualifications do those who actually draft the laws actually have, if the laws they end up drafting can be summarily cast aside by judges at various levels? Do the anti-Harperites actually believe PM Harper personally drafts each piece of proposed legislation?

    • In addition to former Justice Ian Binnie, cited by you Mr. Akin, “Three experts – Ian Binnie and Louise Charron, former Supreme Court judges, and Peter Hogg, a constitutional law supremo – all said Federal Court judges should be eligible. If their argument prevails, Justice Nadon will join the Supreme Court as the ninth judge.” (from Jeffrey Simpson column Here’s the value in the Nadon appointment)
    Are the opinions of former Supreme Court Justices Binnie, Charron, and constitutional expert Peter Hogg valid ONLY when they disagree with the current PM?

    • Eric Willis says:

      Gabby your points are completely specious. Judges have not arbitrarily decided to not apply legislation. That implies they have no reasons for doing so when in fact they have presented those arguments regularly why they disagree.

      Your second point ignores the fact that the current government makes a habit of drafting legislation in secret without hearing from those who might have another perspective. This current decision by the highest court of the land simply reinforces the fact that they would be better off hearing from others outside of their circle more often in the process of writing legislation.

      Your final point ignores the fact the former justices are just that, former justices. The current Supreme Court Justices, the majority of whom were appointed by Harper, have a different opinion and in the end they are the final arbitrators. That is how our legal system works and how it should work… and also why the appointment process that has been used in the past should have been used this time.

      • Gabby in QC says:

        Eric Willis, I hate to tell you, but you’re talking through your hat.
        • “why they [judges] disagree”
        They disagree because specific minimum sentencing as outlined in legislation limits their discretionary power. Even NDP MP Françoise Boivin, herself a lawyer, admits that’s the case:
        “I have no problem with the fact that we are being tougher on repeat offenders. We know that mandatory minimum sentences are not illegal per se, even though they remove a discretionary power from the courts of justice. It is important to be clear about that. The Supreme Court and other tribunals share that opinion.” (Ms. Boivin at the Standing Committee on Justice and Human Rights on Tuesday, February 11, 2014)
        Mandatory minimum sentences may make sentencing fairer, if anything, not subject to misplaced compassionate leniency from one judge versus harsher sentencing from the proverbial “throw the book at ‘em” kind of judge.

        • “drafting legislation in secret”?
        Google “Standing Committee on Justice and Human Rights” meetings, choose a session you’d like to peruse, and determine just how “secret” the drafting of legislation is — not to mention the number of lawyers working at the Justice Dept. Once again, let Google be your friend. Find the justice.gc.ca website, look for “Organization of the Department of Justice” and you will find this info:
        “The Department of Justice is a medium-sized department with around 5,000 employees. Roughly one half of departmental staff are lawyers. The other half is made up of a broad range of professionals, including paralegals, social scientists, program managers, communications specialists, administrative services personnel, computer service professionals, and financial officers.”
        Some secret.

        – end part 1, part 2 follows

      • Gabby in QC says:

        – part 2 of reply to Eric Willis

        • “former justices are just that, former justices.” So according to you, once they no longer wear their black gowns, they also shed whatever legal knowledge and wisdom they possessed during their tenure.
        Well, former SCJ Ian Binnie states some interesting facts (link provided by David Akin)
        “… Justices Gerald LeDain, Frank Iacobucci, and Marshall Rothstein were appointed directly to the Supreme Court from the Federal Court of Appeal without any s. 5 controversy.
        In addition, Louise Arbour was appointed to the Supreme Court of Canada directly from the post of Chief Prosecutor of the International Criminal Tribunal for Rwanda … She was therefore neither a judge of a court specified in s. 5 nor a practicing member of a provincial bar at the time of her appointment.”
        Different strokes for different folks, eh?

        • “the appointment process that has been used in the past should have been used this time”
        That shows just how little you know about the appointment process. It may surprise you to learn that PM Harper is following a procedure similar to one initiated by Liberal PM Paul Martin in 2004.
        Google mapleleafweb.com, look for “Process of Supreme Court of Canada Appointments, Review by Advisory Committee” where you will learn that “In 2004, Liberal Prime Minister Paul Martin announced that nominees to the Supreme Court would be reviewed by a special parliamentary committee, that would report their findings to Parliament. This led to the establishment of an ad hoc parliamentary committee, which reviewed the 2004 nominations of justices Rosalie Abella and Louise Charron.
        … In 2006, however, Conservative Prime Minister Stephen Harper signaled that future Committees may have greater access to the candidates when he allowed an ad hoc parliamentary committee to directly question the candidacy of Justice Marshall Rothstein prior to his appointment. Rothstein was one of three candidates shortlisted by a previous advisory committee convened by the outgoing Liberal government.”

        So yeah, let’s go back to when the prime minister of the day had complete power to appoint whom he liked, eh?

  2. Sharon says:

    1st thought: The Conservatives need to remember that the Supreme Court of Canada is not the U.S. Supreme Court, even though they wish it was.

    2nd thought: You get what you pay for.

  3. D. McKillop says:

    From what I understand the issue was _not_ that Nadon was appointed but that he was appointed as as Justice from Quebec.
    There’s been enough detail reported for us to understand that Nadon has not practiced in Quebec for many years and fairly would be considered to be less than learned concerning the difference in law in Quebec.
    Perhaps the ‘spox’ (a spox on both [our] houses?) or the others cited overlooked this specific?
    I also find it peculiar that conservative whiners would argue for the primacy of Parliament, having kept silence for so many of the past 6 or so years.

  4. Mike Adamson says:

    It seems to my eye that s.5 supports the appointment while s.6 as written does not. I’m not a lawyer but I think that an interpretation that the candidate should be currently serving in one of the named positions is quite plausible on a fair reading. A beleif that the sections set out minimum qualifications is also plausible but I wonder if,given that s.6 applies only to the Quebec contingent of the SCC,current knowledge and understanding of the contemporary civil law regime in Quebec isn’t also a reasonable qualification. Far be it for me to argue with a former Supreme but I’m surprised that the government was surprised.

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