Quebec Court of Appeal declares Harper government’s Bill C-7 unconstitutional

Justice Marc Nadon barred from Supreme Court building, speaking with bench by Sean Fine, Justice Writer, November 3, 2013, The Globe and Mail
October was not a very good month for Justice Marc Nadon, the newest appointee to the Supreme Court of Canada. He never did manage to take his seat on the court. But November, if anything, has started off on a worse note. He was told to stay away from his office at the Supreme Court building on Ottawa’s Wellington Street, not to go to the court building and not to talk to any of his prospective new colleagues on the court. And the Supreme Court has very publicly posted those directions to Justice Nadon on its website.

It was the latest in a series of events without precedent in the court’s 138-year history that have befallen Justice Nadon, a 64-year-old who in September was plucked from semi-retirement by Prime Minister Stephen Harper to serve on the country’s highest court. Justice Nadon was appointed from the Federal Court of Appeal, and it is unclear whether any of the three spots reserved for Quebec judges can be filled from that court. After a court challenge by Toronto lawyer Rocco Galati, and a complaint from Quebec’s separatist government, the Canadian government referred the matter to Justice Nadon’s eight fellow judges, asking them to rule on the legality of his appointment. The court “is trying to steer through uncharted waters in having to deal with a reference [case] that directly affects one of its members,” said Adam Dodek, a law professor at the University of Ottawa. “When a judge has a ‘stake’ in a legal matter, it is expected that he will recuse himself from the case, as Justice Nadon has done. What is unusual is the extent to which the Court has gone to create a cordon sanitaire between itself and Justice Nadon and how public it has been about the steps it has taken.”

Ottawa lawyer Eugene Meehan, a former executive legal officer with the Supreme Court, said the court is emphasizing the legal principle that justice must not only be done, it must be seen to be done. “ This is that principle on steroids. The Court is exercising an overabundance of caution, but caution nevertheless.” At the direction of the Supreme Court, the court’s deputy registrar, Mary McFadyen, wrote to the federal and provincial governments on November 1 to say the court has taken steps to ensure its members are strictly impartial for the Nadon reference case. (A reference case is one in which the Canadian government asks the Supreme Court for an advisory opinion on a major legal issue.) In her letter, Ms. McFadyen outlines the measures taken to ensure that the judges will not have any conflict of interest. “As questions concerning the legality of Justice Nadon’s appointment are pending before the Court, it has adopted the following measures to ensure that justice is both done and is seen to be done in an independent and impartial manner: 1. Justice Nadon will not have contact with the members of the Court. 2. Justice Nadon will continue not to participate in the work of the Court. 3. Justice Nadon will not occupy his office or attend at the Court.” She went on to say that the court “confirms that none of its members has discussed the merits of the challenge or the Reference with Justice Nadon.”

Quebec has told the Supreme Court it will send lawyers to Ottawa to argue that the appointment is illegal. The province’s National Assembly passed a unanimous resolution late last month saying the appointment should have come from a list of qualified candidates supplied by the province. Mr. Galati also says he intends to seek intervenor status so that he can object to the appointment. Justice Minister Peter MacKay has said he will fight for the right of members of the Quebec bar with 10 years standing to serve on the Supreme Court. [Emphasis added]

Prime Minister Stephen Harper calls courts enemy by Tonda MacCharles Ottawa Bureau reporter, November 1, 2013, The Toronto Star
An unapologetic Prime Minister Stephen Harper, waving the banner of Senate reform on a day when his appointees to the Red Chamber brought fresh embarrassment, said “the courts” were now among those standing in his way. “We were blocked by the other parties in the minority parliaments, and now we are being blocked in the courts,” said Harper…. Harper told the 2013 policy convention he is more determined than ever to punish those senators responsible for extravagant spending, dismissing concerns by some, including his own MPs, that due process against them must be followed.

The reference to “courts” now being an enemy of reform is noteworthy as it comes amid speculation within his own cabinet that Harper should call a nationwide referendum that would look past provincial leaders and judicial opinion and test the public’s appetite for abolition.

Harper’s designating “the courts” as an enemy appeared to stem from a decision last week by the Quebec Court of Appeal, which ruled reforms such as elections to select senators or term limits could not be legislated unilaterally — as Harper had proposed. The highest court of appeal in that province found 5-0 that it requires a constitutional amendment with the approval of seven of 10 provinces having 50 per cent of the population. … Harper has since launched a court reference of his own to test a broader set of scenarios with the Supreme Court of Canada. Faced with provincial opposition to his plan, Harper has asked the country’s top court to examine a number of scenarios, including outright abolition, and whether he can move ahead alone.

Overall, the speech was meant to be red meat for his core supporters…. [Emphasis added]

[The comments to the above article are worth reading]

Nadon already has office at Supreme Court despite dispute over nomination by Fannie Olivier, The Canadian Press, October 31, 2013, The Globe and Mail
The Supreme Court of Canada’s newest nominee already has an office amongst his colleagues despite the fact that his appointment is being contested in court. Two sources tell The Canadian Press that Marc Nadon has an office at the Supreme Court building in Ottawa, even as his new office neighbours are preparing to judge his case. A third source says the controversy is creating discomfort within the country’s top legal institution. In January, the eight current justices will consider whether Nadon is eligible to occupy the now-vacant ninth spot on the bench. The court had been asked to offer its opinion by the Conservative government, amid an ongoing controversy. The appointment also faces a legal challenge from a Toronto lawyer who argues that the Ottawa-dwelling Federal Court judge does not meet the residency requirements, and the Quebec government has also contested the appointment. Because Nadon has spent the last two decades on various federal courts, critics argue that he won’t be familiar enough with Quebec’s civil code to serve as one of the province’s three guaranteed representatives on the high court.

The challenge, which is unusual in the naming of a Canadian Supreme Court justice, has already sidelined Nadon from hearing cases and left the high court short one judge. Opposition parties are questioning the use of office space. “Not only is this delicate for the Supreme Court judges, having to determine if their future colleague … is qualified or not. If on top of that they’re bumping into him [at work] and getting to know him better and better … it doesn’t seem too credible, this whole process,” said the Bloc Québécois’s André Bellavance. The NDP’s Françoise Boivin said she believes the would-be nominee has settled into his space because he already has the prime minister’s approval. The Harper government argues that a Federal Court judge is perfectly qualified to serve and has tucked an amendment of the Supreme Court Act into a budget-implementation bill in support of its position. [Emphasis added]

Harper implicated in Senate scandal, ‘culture of corruption’ by The Canadian Press, October 23, 2013, Global News
Mulcair says Stephen Harper has fostered a “culture of corruption” that’s to blame for the expense scandal and the campaign within the Prime Minister’s Office to cover it up.

Court says Harper must consult provinces before reforming Senate by Daniel LeBlance, October 24, 2013, The Globe and Mail
Ottawa’s plans for the unilateral reform of the Senate have been rejected as unconstitutional by the Quebec Court of Appeal, which relied on a 1979 ruling by the Supreme Court of Canada to come to its decision. Experts said the survival of the federal government’s legislation on Senate elections now depends on the Supreme Court’s willingness to revisit its 34-year-old decision when it hears its own reference on the matter. …

In a unanimous decision on Thursday, the Quebec Court of Appeal ruled against Ottawa’s proposal, stating it would need to be adopted with the assent of two-thirds of the provinces, representing more than half of the country’s population. The Quebec Court of Appeal ruled the proposed changes were of a constitutional nature and must respect the amendment formula that was brought in as part of the 1982 repatriation of the Constitution. As part of its arguments, the Quebec Court of Appeal relied on a 1979 reference to the Supreme Court that rejected unilateral changes to the Senate. In addition, the Quebec Court of Appeal referred to the original intentions of the Fathers of Confederation in having a non-elected chamber of Parliament.

University of Ottawa law professor Benoît Pelletier said that when the Supreme Court rules on the matter in coming months, it will have to decide whether to uphold or change its 1979 ruling. “That is the big question,” Mr. Pelletier said. The federal government said it will “take note” of the Quebec Court of Appeal’s decision, while waiting for the Supreme Court’s opinion on the matter. [Emphasis added]

Court declares Harper government’s Senate reform plan unconstitutional by The Canadian Press, October 24, 2013, Calgary Herald
The Quebec Court of Appeal has ruled that the federal government had no right, under Bill C-7, to create Senate elections and set term limits without consulting the provinces. It says the fathers of Confederation considered the role and function of the Senate in great detail, and the conditions they drew up were essential to uniting the provinces under one country. Now if the Harper government wants to reform the Senate, the court says, it needs to get provincial approval. … The Conservatives have drawn up a reference of their own — this one to the Supreme Court of Canada, which will hold hearings on the Senate case later this year. The provincial-court battle, which ended with today’s 20-page verdict, began when the previous Charest government filed a reference motion in May 2012 with the Quebec Court of Appeal, seeking an opinion on the legality of C-7. It argued that the bill was unconstitutional, that it threatened to affect the functioning of Canadian federalism, and that it would harm certain regions of the country. Quebec said it cannot support Senate reform unless the provinces are consulted, because such profound changes to the country’s institutions shouldn’t happen with a simple piece of legislation. [Emphasis added]

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