Is Harper set to circumvent Supreme Court’s Nadon decision?

A few weeks ago, in one of five major decisions against Her Majesty’s Government, the Supreme Court declared that the appointment of The Honourable Mr. Justice Marc Nadon to one of the top bench’s Québec seats was unconstitutional. The Supreme Court also reversed one of the amendments to the Supreme Court Act contained deep within the Government’s last omnibus budget bill, which purported to alter those same eligibility requirements. The Supreme Court ruled that Parliament did not have the unilateral authority to alter its composition without provincial consent, and that Justice Nadon’s appointment was void.

It looks like this might not be over.

There is speculation that The Right Honourable Stephen Harper P.C., M.P. (Calgary Southwest), the Prime Minister, is not giving up on the appointment of The Honourable Mr. Justice Marc Nadon to the Supreme Court of Canada. It has been reported that the Prime Minister advised Justice Nadon, shortly before his appointment, that the Justice should consider returning to Québec and reapplying to the bar.

Section 6 of the Supreme Court Act states that three justices of the Supreme Court “shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Québec or from among the advocates of that Province.” This, taken together with section 5 of the Act, means that someone appointed for a Québec seat on the Supreme Court must be (a) a judge on one of the fore mentioned provincial courts, or (b) a current Québec lawyer with at least ten years’ experience.

Now, here’s where the dispute may arise...

The Supreme Court’s decision did not specify whether they interpreted this to mean (a) a current Québec lawyer with ten years’ recent experience (i.e., counting backwards from the date of nomination to the Supreme Court), or (b) a current Québec lawyer who has, at literally any time, been a Québec lawyer for at least ten years. Justice Nadon, for example, has been a Québec lawyer for more than ten years, but that was more than twenty years ago. Would he be able to fulfill the function of a Québec justice on the Supreme Court, with respect to current knowledge of Québec’s unique civil law? That is, after all, why those three seats are constitutionally-protected.

Things are heating up. The Honourable Mr. Justice Russell Zinn, of the Federal Court, has agreed to a request to keep the constitutional challenge against the Government’s appointment of Justice Nadon open for the time being. Justice Zinn stayed the action at the request of Mr. Rocco Galati, the lawyer who launched the challenge. Mr. Galati is concerned that Mr. Nadon will reapply to the Québec bar and then, once accepted, the Prime Minister could again nominate him to the Supreme Court. Mr. Galati would then resume his constitutional challenge, with the position that a Québec lawyer appointed to the top bench for one of those three “reserved” seats must have had those ten years of Québec civil law experience immediately preceding the appointment.

What do you think? Should the Prime Minister attempt to force through Justice Nadon’s reappointment? He’s been pretty aggressive in his accusations of impropriety on the part of the Chief Justice, and the Conservative party bag men have been doing the usual rounds of “liberal courts”-bashing (despite a Supreme Court that is 75% Conservative-appointed), so it wouldn’t shock me if the Prime Minister just reappointed Justice Nadon to spur more Conservative base fanfare. (Court-bashing makes them horny with rage.)

Source: Lawyer who mounted court challenge against Harper’s Nadon Supreme Court appointment convinces judge to keep challenge open (external - login to view) - Hill Times (May 6, 2014)

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He's certainly going to try. Surprised ? No one should be.
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