Why is Marc Nadon's appointment to Canada's top court so controversial?
Published Wednesday, January 15, 2014 11:15AM EST
Last Updated Wednesday, January 15, 2014 2:15PM EST
The fate of a Supreme Court Justice Marc Nadon is up for debate today, as his colleagues are asked to decide whether he is eligible to sit on Canada's highest court.
Scrutiny over Nadon's appointment boils down to two issues: Whether he meets the qualifications under Quebec law to represent the province as a Supreme Court judge, and whether the federal government can make the decision to re-write the legislation that determines who can be appointed to the court.
"It's very awkward for the court, because the court needs to be seen as being above all politics. It has to be above all partisan wrangling," Hugo Cyr, a professor of constitutional law at the University of Quebec at Montreal, told CTV News Channel on Wednesday.
"You don't want your legitimacy to be questioned when you're a Supreme Court judge," he added.
Nadon, a Federal Court judge, was semi-retired when Prime Minister Stephen Harper chose him in September to fill one of three slots reserved for Quebec in the court.
Under Quebec law an appointee must either be a Superior Court of Quebec judge, a Quebec Court of Appeal judge, or be among the lawyers practising in the province for at least 10 years.
Nadon has not been a member of the Quebec bar for the past decade; he was living in Ottawa at the time of his appointment.
Ian Greene, a professor of public policy and administration at York University, pointed out that Quebec has its own unique civil law system, different from the civil law system in the rest of the country. Some legal experts have argued that a Quebec Supreme Court candidate must be up to date with the province’s unique legal system.
"If Nadon is accepted as a Supreme Court judge, I think many Quebecers will consider this to be an insult, whether they're federalists or separatists, because he's not an expert in civil law and Quebecers are very proud of their civil law system."
Cyr agreed that if Nadon qualifies for the Supreme Court position, there will likely be backlash from Quebec.
"The court is now asked to decide whether or not Justice Nadon basically represents enough of the Quebec legal community to sit as one of the three judges of Quebec," Cyr said.
Ottawa defends Nadon's appointment
The federal government claims, however, that if you've been a member of the Quebec bar for at least 10 years, whenever that happened in your career, then you qualify.
The Conservatives tabled a fall budget bill that, among other things, amended the Supreme Court Act to allow Federal Court judges from Quebec to serve on the country's highest court.
A spokesperson for Justice Minister Peter MacKay said Wednesday that the government is prepared to defend the right of Quebecers on the Federal Court to sit on the Supreme Court of Canada.
Paloma Aguilar told CTVNews.ca that the Ministry of Justice has received legal advice from a retired Supreme Court justice and constitutional scholar who’ve said that someone with Nadon's qualifications is eligible to sit on the Supreme Court.
"We look forward to resolving this issue and to seeing Justice Nadon, a highly qualified individual, take his place on the court,” Aguilar said in a statement.
Critics have raised concerns about the government making changes to the Supreme Court Act, warning that it could set a dangerous precedent.
"People who are critical of the government say that this is dangerous. It could lead to putting anybody on the Supreme Court who the government wants and stacking it with political appointees," said CTV's Mercedes Stephenson.
Stephenson added that supporters of the Supreme Court Act changes have said the Quebec rules limit the pool of Quebec judges and lawyers who are qualified for the position.
From a political perspective, Greene said Nadon has been known to side with the government on certain controversial matters.
When the Federal Court of Appeal ruled that the Harper government had to repatriate Omar Khadr, Nadon wrote a dissenting opinion that Canada was not responsible for Khadr’s treatment in Guantanamo Bay.
"If you look at his past judgments he shows a tendency to defer to the position of the government," Greene said.