OTTAWA — The Supreme Court of Canada is set to begin grappling with an extraordinary first in its 139-year history: adjudicating the rules for the appointment of one of its own.
The sitting justices hear arguments Wednesday morning concerning the eligibility of Justice Marc Nadon, the latest appointment by Prime Minister Stephen Harper to the top court.
It marks the next messy step in a rare judicial appointment gone awry — a mess the Conservative government clearly foresaw last summer but went ahead with anyway.
Nadon, a 64-year-old semi-retired Federal Court judge, faces a constitutional challenge because he is one of three Quebec-based judges required on the nine-member bench but he may not meet the criteria for a Quebec appointee.
The government “absolutely knew this was an issue,” said Adam Dodek, a constitutional law professor at the University of Ottawa.
Justice Minister Peter MacKay sought a legal opinion from retired Supreme Court judge Ian Binnie to buttress Nadon’s appointment even before it was announced, and the government subsequently used a fall omnibus budget bill to redraft the Supreme Court Act rules to “clarify” that Nadon was in fact eligible. But by then, a constitutional lawyer and the Quebec attorney general had signalled their intention to challenge the appointment.
Nadon, already sworn in as Harper’s sixth Supreme Court appointee, was given an unprecedented notice to stay off the court premises until the legal questions are resolved.
Seven interveners will present arguments Wednesday that go to the fundamentals of how much power and latitude the government of the day has to change the court, and whether the Supreme Court’s composition is protected by the Constitution.
“It’s a puzzle, frankly,” said Frederick Vaughan, a professor emeritus at the University of Guelph who has written a highly regarded history of the Supreme Court. “There are so many things that simply don’t make sense in this appointment, when there are so many people there (in Quebec) that are capable.”
Nadon’s unexceptional judicial resume is not at issue in the legal reference, but does provide an element of political intrigue: why is the Conservative government wading into a constitutional swamp over this appointee?
The Constitutional Rights Centre and constitutional lawyer Rocco Galati launched the initial challenge, and Quebec has joined the fray.
The Canadian Association of Provincial Court Judges, concerned that a narrow reading of the Supreme Court Act could hurt diversity on the bench, has waded in to defend Nadon’s eligibility.