Canada’s Supreme Court considers today whether its own Justice Marc Nadon was legally appointed, Prime Minister Harper chose him

Harper government trying to ‘stack’ Supreme Court, lawyer argues by Tonda MacCharles, January 15, 2014, Toronto Star
Galati suggests the Conservative government skirted requirements in the Supreme Court of Canada Act and went over the heads of Quebec’s senior judicial and advocate ranks to name a Federal Court judge in Ottawa — Marc Nadon — to the country’s highest court. “This government has known this is an issue,” said Galati. “This is a blatant attempt to stack the court, and if it is successful it will diminish the currency of this court.” Galati said Federal Court judges are creatures of a court established mainly to defend federal principles in disputes. Galati said that if the Supreme Court approves the federal government’s move, it would amount to aligning itself with the executive branch. In court, Galati was more delicate, saying: “To allow one level of government to do an end-run” around the constitution’s requirements to respect Quebec’s distinctive legal culture “opens a door to politicization of this court.”

On top of Galati’s criticism, four Quebec constitutional law experts, in a blistering opinion piece published in the Globe and Mail, slammed the Harper government for trying to make a change “on the sly” to Quebec’s contingent on the court, and called the whole thing “Kafkaesque.” They said Prime Minister Stephen Harper landed the mess in the current high court’s lap, only after it first went to the retired Supreme Court judge Ian Binnie (whose opinion also got a nod from retired judge Louise Charron), to get a positive advisory opinion on the government’s move.

“On the simple level of appearances, this ping-pong game between the federal government, the Supreme Court and a former member of that same court about the nomination of one of its members has something Kafkaesque about it,” they wrote. “The more cynical observers will see nothing to increase the confidence of the public in the judicial nomination process and the administration of justice.” Those lawyers go on to say that Judge Nadon, who was confirmed within three days after little public scrutiny, was long gone from Quebec and that his experience as a lawyer in the province 20 years ago was no longer relevant. “Justice Nadon was named to the Federal Court in 1993, which is before the new Civil Code came into effect. He has therefore never practised as a lawyer under the Civil Code of Quebec,” the experts write. “Afterwards, as a member of the Federal Court, he had no contact with large parts of the Civil Code which have a direct bearing on the functioning of Quebec society, such as civil rights law, property law, the law of sureties, the law of succession, family law, etc.” The analysis was signed by André Joli-Cœur, a constitutional lawyer who acted as amicus curiae in the Quebec Secession Reference in 1998; André Binette, a former co-chairman of the Nunavik Commission and member of the legal team for the Quebec Secession Reference; Patrick Taillon, professor of constitutional law at Laval University; and Étienne Dubreuil, a partner at D.S. Welch Bussières. Until now, few have ventured such bold criticisms of the Nadon appointment.

The actual court hearing, when it got underway, was a more polite and nuanced examination of Supreme Court eligibility. And the court reserved its decision. Meanwhile, the judges gave the federal government a tough grilling.

Several judges pointed repeatedly to the plain wording of the Supreme Court of Canada Act, which guarantees three high court seats to Quebec, and stipulates a judge must come from Quebec’s superior trial or appellate court or have 10 years experience practising at the province’s bar as a lawyer. It says nothing about Federal Court judges in that list of who is eligible. The Constitution Act of 1982 says changes to the court’s composition can be made only with the unanimous consent of Parliament and all provinces. Other changes need seven provinces to agree. Ontario and Quebec argue that the court is now a constitutional body, and can be changed only with consent of the provinces.

Justice Louis LeBel said Ottawa’s new interpretation that the law allows any candidate who “at any time” in the past had 10 years’ advocacy experience has broad implications: “What about the person who has been thrown out of the Quebec bar?” he asked. Quebec lawyer André Fauteux said if Ottawa is right, then any lawyer who starts in Quebec but moves to Vancouver and spends the next 25 years practising common law would be eligible for a Quebec seat on the court. That result would be absurd, Fauteux suggested.

Federal government lawyer René LeBlanc defended Ottawa’s interpretation, saying lawmakers never intended to exclude Federal Court judges from the high court, nor from Quebec’s seats on the court. He contended Quebec’s interests are protected simply through the guarantee of a certain number of seats — “it’s a question of ratio.” “When we’re talking abut historical compromise, to the extent that there is one, that is it,” he said. He said the only requirement was that an individual must have “sufficient professional background” — which applies “to everyone regardless” of their province of origin. The federal government argues it has a right to interpret the statute as it sees fit, or to change it, as long as Quebec’s proportion of judges remains constant.

Justice Louis LeBel said: “So theoretically, we could appoint three residents from Quebec who have no legal training, who have never been a member of the bar, who have never been a judge, if the federal government decided to adopt an act in that light?”

The federal lawyer stumbled, saying he wasn’t suggesting that Parliament could pass that kind of law. “I’m merely saying it can pass a law relating to the timing of belonging to the bar at the time of appointment,” LeBlanc said.

Justice Rosalie Abella challenged the federal government’s defensive response to the legal criticism of its position: “The question isn’t whether it’s a good or bad thing to have a Federal Court appointee, but whether the law requires same eligibility conditions for all, whether there are two sections in order to preserve the differences” with Quebec’s civil law tradition and the common law tradition in the rest of Canada.

The case was heard by seven judges — minus Nadon (who has stepped aside from taking up office in the same building as his fellow judges until the reference is decided) and minus Marshall Rothstein, another former Federal Court judge appointed by Harper to the top court in 2006. Galati said Wednesday that even if the Supreme Court rules against the Nadon appointment, legal doctrine would allow Rothstein to retain the seat he’s held for seven years. [Emphasis added]

Supreme Court justices express skepticism about Harper’s latest appointment by Sean Fine, January 15, 2014, The Globe and Mail
Several judges of the Supreme Court of Canada have expressed skepticism about the legality of Prime Minister Stephen Harper’s latest appointment to that court, Justice Marc Nadon. The Supreme Court is being asked to consider his appointment during a hearing Wednesday – the first of its kind in the Supreme Court’s 139-year history – in a case that puts the court in the unusual position of having to rule on whether an appointee can join its ranks. The court has been sitting with at most eight members since Justice Nadon stepped aside in October shortly after being sworn in, when Toronto lawyer Rocco Galati challenged his appointment in Federal Court.

At stake is whether Prime Minister Stephen Harper will be able to put his choice on to the court. Justice Nadon tends to favour judicial restraint, and in one case, supported the Canadian government’s treatment of teenage terrorist Omar Khadr, then incarcerated at a U.S. naval prison at Guantanamo Bay, Cuba. All 12 other judges who heard the case in Canadian courts, including the Supreme Court, said Canada had severely abused Mr. Khadr’s rights. Even apart from the legal challenge, the choice of the 64-year-old supernumerary (semi-retired) judge, a specialist in maritime law, has been the most criticized of Mr. Harper’s six appointments to the country’s most influential court.

The hearing on the legality of Mr. Nadon’s appointment also raises questions of national unity in determining the required qualifications of Quebec judges. Justice Nadon was a judge on the Federal Court of Appeal, and Section 6 of the Supreme Court Act, which sets out the qualifications for the three Quebec judges on the country’s highest court, leaves out judges from the Federal Court. On Wednesday, Chief Justice Beverley McLachlin asked federal lawyer René LeBlanc why that is, and he replied that Section 6 must be read together with Section 5, which expressly permits those who have been a member of a provincial bar. But some judges seemed dissatisfied with the response. Justice Rosie Abella of Ontario asked whether it was Parliament’s intent “to have the same conditions of appointment throughout Canada.”

“That’s correct,” Mr. LeBlanc replied. Justice Abella demurred. “When we look at the historical facts, we can see that’s not correct,” she said. “And that’s why there are two sections.” Justice Richard Wagner of Quebec persistently challenged the Canadian government. “Don’t you think the more fundamental issue is to go behind the intent, behind the compromise” between English and French Canada, in trying to ensure the Supreme Court has an adequate number of civil code experts, he asked. The province of Quebec opposes the appointment, arguing that judges on the Supreme Court need current knowledge of the province’s civil code, which governs civil rights, family law and relationships between people, and which no other province has. Mr. LeBlanc replied that former chief justice Antonio Lamer of Quebec was a criminal lawyer with little background in Quebec’s civil code. He said Parliament’s intent was to allow a prime minister wide latitude to pick qualified jurists for the court.

Justice Abella asked Mr. LeBlanc what his evidence is that Parliament did not intend to treat judges from Quebec differently than judges from the rest of Canada. He said the evidence can be found in Parliament’s 1875 debates, at the time the court was created. But Justice Wagner and Chief Justice McLachlin asked about changes to the law since then that left Federal Court judges out. [Emphasis added]

2014 01 15 we have to trust the PM not to stray

2014 01 15 J LaBel unimpressed so basically could appoint 3 fr pq w no legal training if feds change the law

2014 01 15 J LaBel asks if govt could unilaterally scrap any legal qualifications

2014 01 14 harper govt argues its within harper govt power to change the act on SCC judges

2014 01 15 Harper govt arguing it has the right to pass declararoty provisisions to clarify Fed Court Judges qualify

Supreme Court considers today whether its own Justice Marc Nadon was legally appointed by Tu Thanh Ha, January 15, 2014, The Globe and Mail
For the first time in its 139-year history, the Supreme Court of Canada is considering whether a judge chosen to join its ranks was lawfully appointed. Prime Minister Stephen Harper chose Justice Marc Nadon in September to fill one of three slots reserved for Quebec on the court.

Arguments will focus on two sections of the Supreme Court Act of 1985 that outline who may be appointed to the country’s highest judicial body. Section 5 requires that the appointee is or has been a a judge of a superior court or a member of province’s bar for at least 10 years. Section 6 stipulates that the court has to have at least three Quebec judges, from either the Quebec Court of Appeal or of the Quebec Superior Court or from among the lawyers of that province. Justice Nadon is a 64-year-old  maritime law expert who has presided at the trial and appellate levels of the Federal Court for the last two decades. Two years ago, he became a supernumerary judge, meaning semi-retirement. He lives in Nepean, south of Ottawa.

The province of Quebec says Justice Nadon’s appointment violates the spirit of the constitution and historical tradition that there be judges acquainted with the province’s Civil Code practices. Recognizing that legal tradition dates back to the days following the British conquest but more recent jurisprudence indicates that the appointee’s connection to Quebec civil-law practices be “contemporary, tangible and concrete,” the Quebec Attorney-General argues in its brief. The federal government argues that Justice Nadon was a member of the Quebec bar from 1974 until 1993, when he was appointed to the federal court. However, Toronto lawyer Rocco Galati, who was the first to challenge the Nadon appointment, says the law stipulates that the appointee should be a contemporary member of the provincial bar. In a brief submitted for the hearing, Mr. Galati said the government’s reading of the appointment rules is “torturing the English language” and ” takes us close to the realm of Alice in Wonderland.” [Emphasis added]

Supreme Court in a bind as it hears case today against Harper appointee Nadon by Jefferey Simpson, January 15, 2014, The Globe and Mail
It would not be treason, but it would certainly be lèse-majesté for the Supreme Court of Canada to reject the Harper government’s appointment of Justice Marc Nadon for the country’s highest court. Only the Supreme Court can do now what the government, the House of Commons committee and frankly the entire legal community of Canada failed to do: Protect the integrity and uphold the highest standards for appointments to the Supreme Court. Wednesday morning, the Supreme Court will be asked by the government of Quebec and a Toronto lawyer to block Justice Nadon’s nomination. They will argue that, as a Federal Court of Appeal judge, he has not been a member of the Quebec bar for the past decade. Nor is he from Quebec’s highest provincial courts (as stipulated in the Supreme Court Act). Therefore, he should not be appointed.

No one can ever predict how the Supreme Court will rule. These objections could seem plausible, but only with a narrow statutory interpretation, because Justice Nadon was a member of the Quebec bar before he had to leave it to join the Federal Court. Moreover, declaring Federal Court judges from Quebec ineligible from consideration for the Supreme Court because the statute makes no specific reference to that court might be textually correct, but a circumscribed interpretation.

The issues at bar Wednesday are a distraction from the main objection: that Justice Nadon’s career offers nothing of sufficient distinction to merit him being on the Supreme Court. He is being appointed for a simple political reason: Prime Minister Stephen Harper’s government scoured Quebec for someone they hoped would be judicially conservative and respectful of government arguments. In this appointment, as in some others to lower courts, the government is playing out its distaste for what it considers “activist” judges and courts that “read” too much into the law. Justice Nadon intended to become a supernumerary judge on the Federal Court of Appeal – a part-time judge, in other words, hardly a commendation for a new job that demands intense and sustained work.

None of his work on that court caught anybody’s imagination. One analysis of his judgments revealed that of 12 cases he wrote for the majority that were appealed to the Supreme Court, nine were overturned – in one case, involving natural resource extractive industries, by a 9-0 majority.

This case places the existing Supreme Court justices in an invidious position that they have every right to resent. They are being asked to rule on the legitimacy of the appointment of a future colleague, an awkward situation to say the least. As distinguished jurists, they know that someone who had sought to become a supernumerary judge might not be up to the Supreme Court’s workload. Every one of them would laugh at Justice Nadon’s explanation that he wanted to go supernumerary to give him more time to reflect on complicated cases. Moreover, they, and especially outstanding Chief Justice Beverley McLachlin, are deeply committed to preserving the court’s independence, political neutrality and highest performance standards. They know what the government is trying to do with this appointment, but can they find a legal reason to stop it? Would that be the “right deed for the wrong reason”?

What this appointment reveals is troubling for other reasons beyond the government’s attempt to politicize the court. We now know that Canada cannot stop a government intent on making inferior appointments. No one thought any mechanism to prevent such appointments was necessary, because governments would only appoint from among the best and the brightest. Canadians always decried U.S. Senate nomination procedures that could get raucous and partisan. Nonetheless, those procedures stopped questionable or bad nominations. Here, it has been alarming to observe the cone of public silence (despite widespread private dismay) from the entire Canadian legal community, including tenured academics, retired judges, bar associations and law societies. With a few notable exceptions, their clubby silence has been the “greatest treason” to the law. [Emphasis added.  And where have been the comments from Canada’s legal community on Alberta’s Court of Queen’s Bench Chief Justice Wittmann granting a provincial energy regulator agency (the AER, previously the ERCB, before that the EUB, before that the ERCB)  legal immunity from violating the Canadian Charter of Rights and Freedoms?]

Nadon nomination an embarrassment to our judicial system by ANDRÉ JOLI-COEUR, ANDRÉ BINETTE, PATRICK TAILLON AND ÉTIENNE DUBREUIL, January 15, 2013, contributed to The Globe and Mail
The nomination of Justice Marc Nadon from the Federal Court of Appeal to the Supreme Court raises a serious constitutional issue. Far from being anecdotal, this nomination contradicts both the text and the spirit of the Canadian Constitution which, since 1982, protects the Supreme Court of Canada as the highest judicial institution in general, and the composition of that Court in particular (in accordance with sections 41 d) and 42d) of the Constitution Act 1982. Much more than an awkward nomination, the Nadon controversy puts directly in question the weight of Quebec’s civil law within the Supreme Court, and by extension, the binary nature of the Canadian legal system. This matter is important, because as with Senate reform and the changes to royal succession (two other issues before the courts), the federal government is unilaterally proceeding with changes to the constitution and to the rules that are protected by a procedure which requires the consent of the provinces.

After having tried to prevent an anticipated controversy by the production of a legal opinion written by a former member of the Supreme Court and after having seen the nomination of Justice Nadon challenged in court by two lawyers from Toronto, the federal government has decided to refer the matter directly to the Supreme Court. Furthermore, the federal government has presented on the sly to Parliament a change to the Supreme Court Act (SCA), which seeks to impose its interpretation of the constitutional requirements in relation to the nomination of the three judges from Quebec. But, according to section 41 of the Constitution Act, the federal Parliament cannot, without the consent of each province, change the composition of the Supreme Court of Canada.

In a unanimous motion, the National Assembly of Quebec has rightly denounced the nomination of Justice Nadon to the Supreme Court
and has asked for the right to take part in the nomination process of the three Quebec judges of the Supreme Court.

The nomination of Justice Nadon, the request for an opinion from the honorable Ian Binnie, a former member of the Supreme Court of Canada, as well as the changes to the SCA are in fact illegal attempts to go around the requirements of section 6 of the SCA. This section sets specific requirements for the nomination of three judges from Quebec. It requires that the three Quebec judges be chosen from among members of the Superior Court or of the Court of Appeal of Quebec – the general courts responsible for the application of Quebec civil law – or among lawyers who are currently members of the Bar of Quebec and have been for the last 10 years. Since he has not been a member of the Bar of Quebec for decades, and he is not a resident of Quebec, Justice Nadon unfortunately does not fit into any of those categories.

Much more than simple formalities, these requirements are essential characteristics of the composition of the Supreme Court of Canada. These guarantees go back to the Quebec Act of 1774 and constitute one of the essential aspects of the recognised distinctive character of Quebec. They are derived from both the binational and bifocal nature of the Canadian legal system and their purpose is to preserve the specific identity and the integrity of the Quebec civil law system. The recent recognition of the Quebec nation by the House of Commons confirms that these guarantees necessarily have a cultural dimension, since civil law is a major element of the culture of the Quebec nation.

Otherwise, it would be too easy to bypass the constitutional protection of civil law by naming to the highest Canadian court jurists, such as Justice Nadon, who have long since ended their practice of Quebec civil law. These jurists have lost daily contact particularly with the application of the Civil Code of Quebec and of laws adopted by Quebec’s National Assembly, as well as with the safeguard of the principles and the internal logic of civil law. By its very nature, the jurisdiction of the Federal Court is strictly limited to federal law and its judges are rarely exposed to civil law, and if so, to a limited or marginal extent.

Justice Nadon was named to the Federal Court in 1993, which is before the new Civil Code came into effect. He has therefore never practiced as a lawyer under the Civil Code of Quebec. Afterwards, as a member of the Federal Court, he had no contact with large parts of the Civil Code which have a direct bearing on the functioning of Quebec society, such as civil rights law, property law, the law of sureties, the law of succession, family law, etc. In these circumstances, the ties between Justice Nadon and Quebec law, as well as his ties with Quebec, have been too remote for too long to make it possible to consider that the spirit of section 6 of the SCA, which benefits from the constitutional protection of section 41, has been respected in his case.

This nomination is also an embarrassment for the Canadian judicial system, particularly for the judges of the Supreme Court. Indeed they are the ones who will soon have to rule on the delicate matter of irregularities surrounding the nomination process of one of their own, and this by criticizing the opinion written at the request of the federal government by a former member of the court, the honorable Ian Binnie. On the simple level of appearances, this Ping-Pong game between the federal government, the Supreme Court and a former member of that same Court about the nomination of one of its members has something Kafkaesque about it. The more cynical observers will see nothing to increase the confidence of the public in the judicial nomination process and the administration of justice.

Finally, it is hard to see how the Supreme Court can preserve in this case the appearance of impartiality as defined by its own rigorous precedents, while deciding on the constitutionality of the nomination of one of its members, who has been sworn in and is said to have already an office within the walls of this central institution of the Canadian State.

André Joli-Cœur is a constitutional lawyer. He acted as amicus curia in the Quebec Secession Reference in which the question of Quebec’s accession to sovereignty was addressed by the Supreme Court; André Binette is a constitutional lawyer and former co-chairman to the Nunavik Commission. He was a member of the legal team of the Quebec Secession Reference; Patrick Taillon is a professor of constitutional law at Laval University; Étienne Dubreuil is a partner at D.S. Welch Bussières. [Emphasis added]

Appointment showdown looms uneasily in holiday background, Galati, judges in opposing interveners’ corners in front of SCC by Cristin Schmitz, December 20 2013, Lawyers Weekly
Expect fireworks next month when Rocco Galati tells the Supreme Court that two of its nine members are illegally occupying their seats. “Supreme Court or not, I don’t hold back,” says the colourful Toronto litigator, whose latest uphill legal challenge to what he calls an “ineffective, corrupt” judicial appointment system takes aim at the legality and constitutionality of the Harper government’s Oct. 3 appointment of Supreme Court Justice Marc Nadon. “A lot of us out here, meaning barristers, have quietly lost confidence in the administration of justice years ago,” Galati says. “In my 25 years I’ve seen the system go to hell, and because of our quiet, polite Canadian culture nobody likes to speak up about it.”

Galati certainly plans to “speak up about it” as an intervener at the Supreme Court’s Jan. 15 hearing of the federal government’s Reference re Section 53 of the Supreme Court Act (aka the Nadon Reference), a case which only arose because of Galati’s unprecedented Federal Court challenge to Justice Nadon’s eligibility for appointment (the Federal Court has stayed that case pending the outcome of the Reference). Galati answers “no” when asked whether he thinks he will get a fair hearing for his arguments, based on ss. 5 and 6 of the Supreme Court Act (SCA), that also impugn former Federal Court of Appeal judge Marshall Rothstein’s 2006 Supreme Court appointment, as well as the eligibility for appointment to the Supreme Court of all judges of the Federal Court of Appeal, Federal Court, Tax Court, and provincial courts across the land. (The Supreme Court informed counsel Dec. 9 that Justice Rothstein recused himself from the Reference on Nov. 15, but the court did not offer an explanation).

“The Reference should have been brought before Justice Nadon was proposed,” Galati insists. He points out that Department of Justice officials knew for years that federal court judges might be ineligible for the Supreme Court, particularly for a Quebec seat. Indeed, Justice Minister Peter MacKay publicly acknowledged there were contentious eligibility issues last August. However, Ottawa still elevated Justice Nadon from the Federal Court of Appeal in October to a Quebec seat on the Supreme Court, while trying to forestall questions by pointing to legal opinions it obtained from two ex-Supreme Court judges and a constitutional expert.

Galati was not impressed. “How can anybody have faith in the system that missed this?” he asks. “They don’t respect the law. The law is very clear to me. Everybody knew this was a problem, so the fact that [Justice Nadon] has been sworn in without anybody in the state apparatus flagging it, tells me I can’t have any confidence in the state apparatus, including the Supreme Court.”

Then why bother taking the matter to court, especially at his own expense? Galati likens it to having cancer. “Do you have confidence the surgeon is going to save you? No,” he says. “But you’ve still got to go through the operation. It’s all you’ve got.”

He characterizes the case as another manifestation of a debased judicial appointment system that he has successfully challenged before in court, notably in 2011 when the Federal Court’s decades-old practice of hiring deputy judges over age 74 was declared illegal (with a domino effect in the Federal Court of Appeal, the Tax Court, and the Court Martial Court of Appeal.)

“We do not have a proper judicial appointment system,” Galati contends. “The proof is in the pudding in these cases that have crossed my path: the deputy judges case; the fact that this [federal] government has appointed nothing but white judges in the last 100-plus appointments; and the fact that something like this issue — which everybody knew was an issue — can get ignored and Justice Nadon be sworn in.”

Sébastien Grammond, dean of civil law at the University of Ottawa, says Galati’s challenge and the resulting Reference break new ground. There have been few, if any, court challenges to a judicial appointment in Canadian history.

“So that makes it a very dramatic case, and also it is…a very interesting question of statutory interpretation with big consequences,” he notes.

Should Galati’s arguments win the day, the impact would be felt nationwide, Grammond notes. [Emphasis added]

Stephen Harper's Supreme Court

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