Supreme Court Separates Itself From Nadon
According to an article in the Globe and Mail, newly appointed Justice Nadon “has been told” — presumably by the Chief Justice — to stay away, because of the pending challenge to his status.
The article quotes a letter by deputy registrar, Mary McFadyen, written at the behest of “the court” to the provincial and federal governments, making clear that:
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.
The article also claims that this “cordon sanitaire,” as it terms it, has been made public on the court’s website, but I have been unable to find it there.
This must be an exquisitely difficult time for the court — having to rule on its own constitution, deciding the eligibility of a judge already appointed, a judge to represent prickly Québec by law, and all with a bench of eight. This is tricky and not a little embarrassing, I’d say, even though the problem is not of the court’s own making. It is a disgrace that Prime Minister Harper has placed the court in this situation and there’s a high likelihood that the method of selecting new justices will have to be seriously changed as a result.
The text of the Deputy Registrar’s letter is found on the case information page for the Nadon Reference:
Sorry, URL for the case information page:
http://www.scc-csc.gc.ca/case-dossier/info/dock-regi-eng.aspx?cas=35586
Will the SCC sit as 8 or 7 on the reference if the PM doesn’t withdraw the appointment or Justice Nadon chooses not to fall on his sword? As eight, there could be an equal split.
If they sit as 7, who will be lucky enough to get the short straw? On optics alone – heaven forfend it’s one of the two Quebec appointees. Or, with 7, there’s a dissent that includes both of the Quebec appointees.
Here’s a Catch-22. Wouldn’t it be better to have 3 Quebec judges on the panel deciding the meaning of a section applicable only to Quebec?
On optics alone, it’s worth asking why the PMO didn’t ask any of the still-living former members of the SCC who were appointed to the Quebec seats for their views on the legality of the Nadon appointment. There are some. I don’t recall reading or hearing about this. Perhaps the PMO did but was rebuffed. I’m assuming the PMO wasn’t told the appontment wouldn’t be legal and the PMO decided to bury the opinion(s). I’ve heard that the PMO consulted former SCC Justices Binnie and Charron – Ontario appointees – and Prof. Peter Hogg. See here.
In passing, has anybody forgotten the “yes but” – think “constitutional conventions” – answer that bit the Liberals in the patriation reference?
What happens if the SCC’s answer on the Nadon reference is that, even if the text of the current version of the Supreme Court Act permits (or is capable of being read to permit) Justice Nadon’s appointment, appointing him would be contrary to the convention established by the 138 years of appointments to the Quebec seats since confederation?
What would that say about the constitutional validity of the proposed amendments to the SCA?
What a mess.
As if we needed not one, but two problems with constitutional implications. This one is potentially more dangerous than the Senate expenses uproar.
The links to 2 Globe & Mail editorial cartoons which nail some of the issues underlying the debacle.
Cartoon 1 – Harper as king – go to cartoon 19
Cartoon 2 – Harper as Ozymandis – it’s cartoon 1
Ah, the moment when opportunity knocks and the SCC can finally look beyond their set of rules (Supreme Court Act) to the will of the people and our constitution as a living tree (Justice Binnie). Is this really a mess?
The SCC can still hear cases even with one member quarantined. I do not think one vacant place will have any impact on the Senate reference which is aimed at accelerating and broading the democratic reform of the Senate.
I am sorry that Justic Nadon has had to move his office to the spca (special place for court appointees) but I am glad that the SCC has taken this necessary legal action prior to hearing the case. Meanwhile, I had hoped that either PM Mr. Harper and/or AG Mr. McKay would have released more comprehensive details on why Justice Nadon was the “best of the best”. It will be very interesting to see if our remaining SCC Justices will give us all a better glimpse into the process of open debate about our constitution. Even more importantly, will they examine their own sorely inadequate appointment process which has been left to wither on the vine!