From Charter Clothes to Constitutional Armour: Supreme Court of Canada rules 6-1 against Harper government’s appointment of Marc Nadon; Thank Goodness for Lawyer Rocco Galati cleaning up Harper’s ‘subversive mess!’

Government respects Nadon decision, but still reviewing it, Harper says by The Canadian Press, March 25, 2014, Lethbridge Herald
THE HAGUE, Netherlands – Stephen Harper says he was “very surprised” last week when the Supreme Court rejected his latest Quebec appointee to the high court bench. But while the prime minister says he respects the court’s decision about Marc Nadon, he’s hedging on what the government will do next, saying the decision is still being reviewed. … Neither Harper nor Justice Minister Peter MacKay have ruled out the possibility that they will continue to push for Nadon to be allowed to fill the vacant Quebec seat. Opposition MPs, meanwhile, say they don’t expect the Conservative government to give up on Nadon without a fight. [Emphasis added]

Five important takeaways from Supreme Court’s decision on Nadon appointment by The Canadian Press, March 21, 2014, Lethbridge Herald
The Supreme Court of Canada issued a landmark ruling on Friday in rejecting the appointment of Justice Marc Nadon to the high court. Here are five key points to consider:

1. It was the second Supreme Court rebuke for the Harper government this week. On Thursday, the court ruled that a government attempt to take away early parole rights from some prison inmates was unconstitutional. The justices appear to be sending the message that even a majority government can’t have everything its own way.

2. The justices placed constitutional armour on the Supreme Court Act, saying the federal government cannot, on its own, change the criteria for selecting high court judges. Changes to essential features of the court would require the consent of at least seven provinces representing at least half of the population.

3. In an unusual move, the six members of the majority demonstrated a united front of sorts by all taking shared credit for writing the decision. Normally, one or two judges write the decision with the others simply concurring.

4. The ruling clearly caught the government off-guard. The Prime Minister’s Office said in a statement that it was “genuinely surprised” and that it would take the time to consider its options.

5. Prime Minister Stephen Harper appointed five of the eight sitting justices, but that doesn’t give him leverage on the bench. The justices rule as they see fit…. [Emphasis added]

The Harper government deserves the Supreme Court’s rebuke by Jeffrey Simpson, March 21, 2014, The Globe and Mail
The Harper government figured it would teach the Supreme Court justices a lesson by appointing Marc Nadon to their midst. Instead, the justices taught the Harper government a bunch of lessons. Among the lessons: Don’t play politics with the judiciary. Don’t play fast and loose with the law. Pick the best-qualified, not the average. Understand the Constitution.

The Harper government thoroughly deserved the complete rebuke it received Friday from the Supreme Court of Canada. The Prime Minister and Justice Minister Peter MacKay mishandled everything in their attempt to place on the court someone whose conservative ideology rather than legal expertise commended him to the government. They almost succeeded, which ought to produce a lot of soul-searching among those who care about the integrity of the courts. The country’s legal profession remained abjectly silent
in the face of a less-than-satisfactory process that produced an obviously ideological appointment. The parliamentary committee barely studied the candidate, in fairness perhaps because MPs were given so little time to investigate a nominee about whom so little was known. Law professors, with a few exceptions, clammed up despite their beloved tenure. It took the Supreme Court, by a resounding 6-1 majority, to say “No.”

On both legal questions, the government lost and lost completely. The majority judgment bulldozed over the government’s arguments and swept aside supporting briefs from two former Supreme Court justices, Ian Binnie and Louise Charron, as well as constitutional expert Peter Hogg. None of this had to happen. There were many qualified candidates from Quebec to fill the province’s third seat, including judges from the province’s superior courts, a law dean at McGill and practising lawyers. Had any one of these individuals been appointed, the appointment would not have sparked controversy. Nor would the appointment have provoked a constitutional challenge.

Instead, the Prime Minister opted for someone whose ideological persuasion and deference to government fitted what Mr. Harper prefers on the bench. Mr. MacKay, who had to carry the can for the Nadon appointment, kept spouting clichés about how well-qualified the candidate was. The minister never offered detailed evidence in the form of a track record of judgments or other writings to support this dubious contention. Instead, it became known that the vast majority of Justice Nadon’s rulings on the Federal Court of Appeal that wound up in the Supreme Court had been overturned. Mr. MacKay could never explain, for understandable reasons, how a judge who had voluntarily taken semi-retirement – had become what is called a supernumerary judge – was ready intellectually for the demanding burdens of the Supreme Court, where the workload is intense and the meaning of every sentence is parsed.

The Nadon saga, properly understood, was certainly about the law and the Constitution, but it was also about the relationship of government and the courts. It was a disguised ideological battle launched by a government convinced that too many judges are too lenient with criminals, too inclined to favour the accused over victims, too elastic in interpreting the Charter of Rights and Freedoms, and too willing to resist applying laws passed by Parliament and provincial legislatures.

The Prime Minister does not like being rebuffed, not by officers of Parliament, the press, the business community, by anybody. He’s going to be steaming about the impudence of the Supreme Court turning down his nomination. [Emphasis added]

Justice minister: Nadon not Quebec’s only qualified candidate for Supreme Court by The Canadian Press, March 24, 2014
Justice Minister Peter MacKay says there are a number of qualified Quebec candidates who could be appointed to the Supreme Court of Canada. But three days after the country’s top court rejected Prime Minister Stephen Harper’s latest appointee to the bench, the Conservative government is ignoring opposition requests that Justice Marc Nadon formally be ruled out of the running.

The Supreme Court said last week that Nadon, a semi-retired Federal Court of Appeal judge, did not meet the very specific eligibility requirements for a Quebec seat on the bench that are laid out in the Supreme Court Act. New Democrats, Liberals and the Bloc Quebecois are all demanding to know how the government plans to address the high court’s ruling, but they’re getting few solid answers. The Conservatives say they are exploring their options, but MacKay did tell the Commons the government will move to fill the Quebec vacancy and that, in MacKay’s words, “we have many qualified people for this job.” Harper, travelling in Europe, has yet to be asked about Nadon’s unprecedented rejection by the Canadian reporters travelling with him.

Nadon decision is Supreme Court’s declaration of independence by Adam Dodek, March 21, 2014, The Globe and Mail
The Supreme Court’s decision in the Nadon Reference is a triumph for the Supreme Court of Canada and a stunning defeat for the government of Stephen Harper. The Harper government looked to the Court to bail it out of a jam and the Supreme Court refused. Instead, the Court demonstrated and declared its constitutional independence and made it more likely that appointments to the high court will be more carefully vetted through a more open appointments process.

For most of its existence, the Supreme Court of Canada was an institution that did not even deserve its name. Until 1949, it wasn’t even the highest court for Canadians – the Judicial Committee of the Privy Council was. The Supreme Court did not really start to come of age until the enactment of the Canadian Charter of Rights and Freedoms in 1982.

Well into the 1960s, the federal government would often call on individual justices to do various jobs for it: to serve as commissioners of inquiry; as delegates to conferences; etc. At times, the federal government treated the Supreme Court as an errand boy. In the Nadon Reference, Chief Justice Beverly McLachlin and the Supremes showed that they are nobody’s errand boy.

The Court demonstrated its independence from government in having the moxie to invalidate the Prime Minister’s appointment of Justice Nadon. But the Court also declared its constitutional independence, holding that the Supreme Court is now protected under the Constitution and cannot be changed except through formal constitutional amendment. The “composition of the court” – which includes the existence of the Court itself as well as the requirement that three judges must come from the Quebec Court of Appeal, the Quebec Superior Court or existing members of the Quebec bar – can only be changed by unanimous agreement of the federal government and all of the provinces. It is safe to say that is highly unlikely in the foreseeable future.

Justice Nadon will never sit on a Supreme Court case. He should never have been put through this. The government should have brought the reference prior to appointing him or even announcing his name publicly. The reference has exposed the deep and vast flaws in the government’s appointment process to the Supreme Court.It was supposed to bring transparency and accountability but instead it has brought opaqueness and obfuscation. All of the political parties are responsible for participating in a process that could so utterly fail in such basic vetting function that it required the Supreme Court to adjudicate the validity of the appointment. Not only is the decision the end of the road for Mr. Nadon’s Supreme Court career, it should also be the end of the Harper government’s defective appointment process. Adam Dodek is Vice-Dean Research and Associate Professor at the University of Ottawa’s Faculty of Law (Common Law Section). He is a founding member of the Faculty’s Public Law Group and the author of the book The Canadian Constitution. [Emphasis added]

Supreme Court’s rejection of Nadon is a legal marker and a political blow by Sean Fine, March 21, 2014, The Globe and Mail
It was a stunning rejection of Prime Minister Stephen Harper’s latest appointment to that court, Justice Marc Nadon, who was ruled ineligible for the court because he did not have current Quebec qualifications, either on a superior court or as a lawyer with current standing in that province. The Conservative government had tried to change the law to make Justice Nadon eligible, but the court said there is a special appointment process for the Supreme Court’s three Quebec judges that is protected by the Canadian Constitution from such unilateral changes. The ruling leaves Mr. Harper to go back to the same pool of candidates he rejected when he plucked the obscure, semi-retired judge from the Federal Court of Appeal in late September.

In theory, Mr. Harper could decide that Justice Nadon deserves a chance to qualify for admission to the Quebec bar, or be placed for a day on a senior Quebec court, which would put the 64-year-old in place to be appointed again. But those back doors to the country’s highest court would be such a slap at Quebec, and at the reasoning behind the Supreme Court ruling, that it could create a constitutional and political crisis, legal observers say. And it would almost certainly be one more round of severe unpleasantness for Justice Nadon, who was not commenting on Friday.

The Prime Minister’s Office suggested it has not even begun to think about what to do, issuing a statement saying it is “genuinely surprised” by the ruling and considering its options. So where to, next? Two of the most widely respected judges in Quebec, Justices Marie-France Bich and Nicholas Kasirer of the Quebec Court of Appeal, are both former academics whose cerebral and sometimes innovative approach was what Mr. Harper passed over in September. The Harper government has, however, looked favourably on Justice Kasirer in the past, appointing him to the appeal court in 2009 from his job as dean of law at McGill University. “Is Harper going to be welcoming to those kinds of characters? Probably not so much,” University of Toronto law professor David Schneiderman said in an interview. But the challenge, he said, is to find conservative, deferential judges who will tend to shy away from bold decisions expanding the rights in the Charter of Rights and Freedoms. “It’s not like there’s a deep pool of like-minded Harperites,” he said.

Daniel Turp, a law professor at the University of Montreal, said the botched appointment is a lesson in what happens when a prime minister prefers deference to merit. “What I heard from many of my colleagues in the legal community, judges included, although they don’t want to be on the record – they thought the appointment [of Justice Nadon] was totally unacceptable.”

And so there are still eight judges on the Supreme Court of Canada. And just two from Quebec. The court has been short-handed for nearly seven full months. It has never been so short for so long in the post-1982 era of the Charter of Rights and Freedoms – an era that began with more than one stress burnout of a Supreme Court judge. But the court’s credibility has not suffered, legal observers say. Far from it, they say. It was enhanced by a historic ruling that will take its place alongside the 1998 secession ruling on what it would take to break up Canada. It was a history lesson on the compromise between French and English that is Canada: “The eligibility requirements for appointments from Quebec are the result of the historic bargain that gave birth to the Court in 1875.” Section 6 of the Supreme Court Act, whose interpretation was at stake in the case, “protects both the functioning and the legitimacy of the Supreme Court as a general court of appeal for Canada.” Paul Daly, who teaches administrative law at the University of Montreal, called the ruling “a huge day for the Canadian federation. This is a ringing declaration from the Supreme Court of Canada on the importance of Quebec’s distinct character and how important it is to protect it.” [Emphasis added]

Constitutional lawyer wonders why he had to clean up Harper’s ‘subversive mess’ by Bruce Cheadle, The Canadian Press, March 21, 2014, Lethbridge Herald
Constitutional lawyer Rocco Galati was in the middle of a month-long sojourn on the Indian subcontinent when word reached him Friday that he’d brought down a Supreme Court appointee and rattled the legal underpinnings of the Conservative government. But the man who first challenged Prime Minister Stephen Harper’s choice of Justice Marc Nadon for the top bench was not in a celebratory mood after playing David to a constitutional Goliath. “When I started this I was very, very clear and convinced that I was right and that this was as clear as a bell to me,” Galati told The Canadian Press in a telephone interview from India.

In an unprecedented reference, the top court agreed by a 6-1 margin that Nadon was not eligible to sit amongst them and that the government could not unilaterally rewrite the Supreme Court Act rules on the composition of the bench.

“I just regret the fact the government can make a subversive mess of our Constitution and it’s got to be private citizens like me – at my own expense, this has cost me a lot of money, my own time, energy and money; I’m not getting any of that back – to clean up what?” said Galati. “To clean up the mess of the subversive government that doesn’t want to respect the Constitution. Why should a private citizen have to do that, quite frankly? “If I hadn’t brought the challenge, Justice Nadon would be deciding cases as we speak.”

The reference ruling came a day after the top court had struck down retroactive Conservative changes to parole eligibility, ruling them a clear breach of the Charter and pointedly noting “that enactment of Charter-infringing legislation does great damage to that confidence” in the justice system.

The back-to-back rulings by a court that now has a majority of Harper appointees reinforces a growing impression in legal circles that the Conservative government is playing fast and loose with the law.

Some, such as Justice Department whistle-blower Edgar Schmidt, are openly questioning who in government is minding the constitutional store. “If the attorney general, the prime minister, Governor General and the chief justice of the Supreme Court aren’t, it’s pretty pathetic that they rely on citizens,” Galati said.

It’s hardly the first time the Toronto lawyer, who specializes in constitutional and immigration law, has stepped up to kick the court system in the shins. In 2011, the Federal Court of Appeal ruled that the Federal Court was in breach of the law after Galati questioned why retired judges over 75 were being retained as deputy judges, despite mandatory retirement language in the Federal Courts Act. Thirteen deputy judges had to be let go. “People said to me in that case, ‘They’ve been doing it for 60 years, how can it be wrong?’” Galati related in an interview last November.

“I said, ‘Nobody’s challenged it.’”

Ultimately, private citizens must be prepared to step up and challenge government and the courts, Galati said Friday.

“It’s probably apt, because the Supreme Court in 1951 ruled specifically that the Constitution doesn’t belong to either government. It belongs to the citizens and it’s there that we find our protection,” he said.

“That’s true, it’s often the citizens that bring up these challenges. It’s just pathetic that the court doesn’t recognize that the citizens who are grieved by these constitutional breaches shouldn’t have to be the ones to pay to fix the constitutional breaches.” [Emphasis added]

Federal government ‘genuinely surprised’ by Supreme Court decision on Nadon by The Canadian Press, March 21, 2014, The Lethbridge Herald
The federal government says it is “genuinely surprised” by the Supreme Court of Canada’s decision to reject Marc Nadon’s eligibility to join the ranks of the high court’s justices. In a statement, the government says it is reviewing the details of the decision and its “options” going forward. … The high court today rejected Prime Minister Stephen Harper’s bid to appoint Nadon by a 6-1 margin. The court says the semi-retired Federal Court of Appeal judge from Quebec is not eligible because he does not meet the specific requirements for the jurists appointed from that province.

The high court also struck down a key feature of the Conservative bill that last year amended the Supreme Court Act. [Emphasis added]

Supreme Court of Canada rejects Harper judicial appointee Marc Nadon by Tonda MacCharles, Ottawa Bureau reporter, March 21, 2014, Toronto Star
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 Supreme Court of Canada has issued a stunning rejection of Prime Minister Stephen Harper’s judicial appointment of federal appeals judge Marc Nadon to the country’s top bench.The ruling is an astonishing rebuttal of every political and legal argument the Conservative government, Harper’s Justice Minister Peter MacKay and federal lawyers made.

Harper set off a political and legal storm last fall and 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. But Chief Justice Beverley McLachlin, Louis LeBel, Rosalie Abella, Thomas Cromwell, Andromache Karakatsanis and Richard Wagner all vehemently disagreed. They all signed Friday’s bombshell ruling taking authorship of the decision. And their conclusions are clear. In a historic declaration, the country’s top court said 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 patriation of the Canadian constitution.

The judgment is an advisory opinion on a legal question — but it has the effect of striking down the Nadon appointment and sections in the Conservative budget bill that tried to facilitate it. It is an astonishing political blow to Harper.

The prime minister must now start over to find a judicial candidate for the vacancy left last year by the retirement of Morris Fish. And later this year, another Quebec seat opens up when Louis LeBel reaches mandatory retirement age of 75.

The Supreme Court found the law that 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.

Furthermore, the Conservative government does not have the right to single-handedly and unilaterally change those eligibility requirements, just as it could not unilaterally move to abolish the court.

The federal government’s insertion of a retroactive declaratory or interpretative clause in the budget implementation bill was beyond its power, the court said.

The majority 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.

Only Justice Michael Moldaver — an Ontario appointee of the Conservative government — disagreed with the Supreme Court majority, and would have allowed Nadon’s appointment to stand. … [Emphasis added]

Supreme Court says non to Nadon; federal government ‘genuinely surprised’ by Mike Blanchfield and Bruce Cheadle, The Canadian Press, March 21, 2014, Lethbridge Herald
Stephen Harper has come almost full circle. The Conservative prime minister who came to office in 2006 cautioning against the power of the courts suffered a political body blow Friday from the highest court in the land – a Supreme Court stacked with Harper appointees. … Not only was Nadon, a semi-retired Federal Court of Appeal justice, found to not have the proper qualifications laid out in the Supreme Court Act for a Quebec nominee to the top bench, but the government’s efforts to rewrite the rules were thwarted.

The government does not have the authority to amend the Act, wrote six of seven judges, saying “the unanimous consent of Parliament and all provincial legislatures is required for amendments to the Constitution relating to the ‘composition of the Supreme Court.’”

The government appeared to be caught flat-footed by the twin rebukes. A statement from the Prime Minister’s Office said it was “genuinely surprised” and would review its options…. As for the government’s options, legal scholars were left scratching their heads. Carissima Mathen, a University of Ottawa law professor and constitutional lawyer who followed the Nadon reference closely, said the government was “pretty cavalier” in how it appointed him. “Will they accept defeat, or will they look for other ways to get around this?” she wondered. “I think it’s really important for public confidence that they actually accept when they have been defeated.”

It was the second muscular reminder from the high court in as many days that the Constitution reigns supreme.

On Thursday, a retroactive element in the Conservative tough-on-crime agenda dealing with parole eligibility was struck down, with the court reminding the government that passing unconstitutional laws brings the justice system into disrepute.

Green party Leader Elizabeth May issued a release that drew the next obvious inference – a constitutional challenge to the government’s deeply controversial “Fair Elections Act” that rewrites the way Canadian elections are conducted and, some argue, tilts the field in the Conservative party’s favour. May urged the government to “stop wasting Parliament’s time and stop clogging the courts with legislation that was, on its face, unlikely to survive a court challenge, but which the House keeps passing in blind disregard of the consequences.”

Trudeau said the ruling is an affirmation that Canadian federalism works, and it comes “at a convenient time for people who believe in the strength and functioning of Canada.”

Others saw little to praise in a messy process that tarred everyone from the government to the court to Nadon himself. The 64-year-old may now be on the hook to repay the hefty Supreme Court salary he’s been collecting for five idle months.

Adam Dodek, a constitutional law professor at the University of Ottawa, said the court reference “really blows the lid off the federal government’s claim that their way of appointing Supreme Court judges is open and transparent and accountable.” [Emphasis added]

Supreme Court rejection of Nadon latest legal blow for Harper by Jordan Press and Mark Kennedy, Postmedia News, with files from Christopher Curtis, The Gazette, March 21, 2014, The Calgary Herald
Prime Minister Stephen Harper is under pressure to quickly appoint a new Quebec judge to the Supreme Court of Canada after the top court rejected his controversial choice unveiled last fall. However, in the wake of an unprecedented ruling on Friday, the government appeared flat-footed, saying it was “surprised” by the development and is now examining its “options.”

The landmark judgment by the high court nullified the government’s appointment last October of Federal Court of Appeals Judge Marc Nadon on the grounds that he didn’t meet the eligibility criteria laid out in the Supreme Court Act. The court also rejected as unconstitutional the government’s attempt to bypass those rules by retroactively amending the law. The Conservatives tried to redefine the law to support Nadon’s appointment, but only after it became clear his ascendance to the Supreme Court bench faced legal and political challenges. … The 6-1 decision was a stunning political defeat for the Harper government, the latest in a string of constitutional decisions from the top court that have not gone the government’s way. … The judgment on Nadon was issued shortly after Harper left for a week-long trip to Europe. Harper’s spokesman, Stephen Lecce, released a three-paragraph statement. “We are genuinely surprised by today’s decision,”…. Neither of them saw problems with the appointment nor did a committee of opposition MPs object during the selection process, said Lecce. “We will review the details of the decision and our options going forward.”

The political embarrassment for the Tories, however, could only grow worse. While Nadon’s appointment was being challenged, he didn’t take part in any court hearings or deliberations, but still drew a salary, valued annually at $351,700. On Friday, the court’s registrar said it would have to determine if Nadon is required to repay what he earned, estimated to be about $146,500.

The ruling Friday may be a harbinger of things to come. The Supreme Court is scheduled to rule later this year or early next on the constitutionality of Senate reform and abolition. In that case, the government has argued that it alone can change the way senators are selected, and that the “7/50” rule is the threshold for abolition.

“It would be relevant to the issue of the abolition of the Senate,” said constitutional lawyer Sebastien Grammond. “You could make the argument that it requires unanimity because it has a central importance as one of our political institutions.”

What they said last fall:

Prime Minister Stephen Harper: “I am pleased to announce the nomination of Mr. Justice Nadon, whose extraordinary body of legal work … makes him an ideal candidate for the Supreme Court of Canada. His nomination is the result of an extensive review process that included consultations with prominent members of the legal community in Quebec.” (Press release, Sept. 30, 2013)

Justice Minister Peter MacKay: “There are provisions (in the Supreme Court Act) right now that could be interpreted as excluding federal judges from Supreme Court appointments … This act literally goes back to Confederation. Suffice to say, there’s a need to update some of the provisions.” (Ottawa Citizen, Aug. 17, 2013)

Prime Minister’s Office: “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.”

NDP justice critic Francoise Boivin: “I feel for Justice Nadon this morning. He is in no way responsible for anything that is happening now.”

Liberal Leader Justin Trudeau: “I think the prime minister completely botched the process and that’s very serious.”

Bloc Quebecois MP Andre Bellevance (translation): “The federal government erred from start to finish, first by not taking into account Quebec’s proposals, then appointing someone who did not legally qualify and finally trying to change a law that couldn’t be changed without Quebec’s consent.”

Green Party Leader Elizabeth May: “I urge the Prime Minister to abandon any notion of trying to circumvent the ruling of our highest court by attempting to appoint Judge Nadon by some other means.”

Government House leader Peter Van Loan: “The consequence of this decision from the court is that Quebecers actually have fewer options to make it to the Supreme Court of Canada than other Canadians, which is a very unusual paradox to see. Now, a judge or lawyer from Quebec is going to have to think twice about accepting an appointment, for example, to the Federal Court of Appeal, because they are, at least according to a Supreme Court decision, disqualifying themselves from sitting on the Supreme Court.”

What others were tweeting:

What the majority decision said:

“In our view, the answer to this question is no: a current judge of the Federal Court of Appeal is not eligible for appointment under s. 6 as a person who may be appointed “from among the advocates of that Province”. This language requires that, at the time of appointment, the appointee be a current member of the Quebec bar with at least 10 years standing.”

“The purpose of (the Quebec eligibility requirements) is to ensure not only civil law training and experience on the Court, but also to ensure that Quebec’s distinct legal traditions and social values are represented on the Court, thereby enhancing the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights. Put differently, s. 6 (of the Supreme Court Act) protects both the functioning and the legitimacy of the Supreme Court as a general court of appeal for Canada.”

“Parliament cannot unilaterally change the composition of the Supreme Court of Canada. Essential features of the Court are constitutionally protected.” [Emphasis added]

[Refer also to:

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

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. [Emphasis added]

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