Supreme Court judges to hear arguments on eligibility of Marc Nadon

Justice Marc Nadon listens to opening remarks as he appears before a parliamentary committee following his nomination to the Supreme Court of Canada on Parliament Hill in Ottawa, on Wednesday, Oct. 2, 2013. (Adrian Wyld / THE CANADIAN PRESS)

OTTAWA -- The Supreme Court of Canada is set to begin grappling with an extraordinary first in its 139-year history: adjudicating the rules for the appointment of one of its own.

The sitting justices hear arguments Wednesday morning concerning the eligibility of Justice Marc Nadon, the latest appointment by Prime Minister Stephen Harper to the top court.

It marks the next messy step in a rare judicial appointment gone awry -- a mess the Conservative government clearly foresaw last summer but went ahead with anyway.

Nadon, a 64-year-old semi-retired Federal Court judge, faces a constitutional challenge because he is one of three Quebec-based judges required on the nine-member bench but he may not meet the criteria for a Quebec appointee.

The government "absolutely knew this was an issue," said Adam Dodek, a constitutional law professor at the University of Ottawa.

Justice Minister Peter MacKay sought a legal opinion from retired Supreme Court judge Ian Binnie to buttress Nadon's appointment even before it was announced, and the government subsequently used a fall omnibus budget bill to redraft the Supreme Court Act rules to "clarify" that Nadon was in fact eligible.

But by then, a constitutional lawyer and the Quebec attorney general had signalled their intention to challenge the appointment's legality.

Nadon, already sworn in as Harper's sixth Supreme Court appointee, was given an unprecedented notice to stay off the court premises until the legal questions are resolved.

Seven interveners will present arguments Wednesday that go to the fundamentals of how much power and latitude the government of the day has to change the court, and whether the Supreme Court's composition is protected by the Constitution.

"It's a puzzle, frankly," said Frederick Vaughan, a professor emeritus at the University of Guelph who has written a highly regarded history of the Supreme Court.

"There are so many things that simply don't make sense in this appointment, when there are so many people there (in Quebec) that are capable."

Nadon's unexceptional judicial resume is not at issue in the legal reference, but does provide an element of political intrigue: Why is the Conservative government wading into a constitutional swamp over this appointee?

The Constitutional Rights Centre and constitutional lawyer Rocco Galati launched the initial challenge, and Quebec has joined the fray.

The Canadian Association of Provincial Court Judges, concerned that a narrow reading of the Supreme Court Act could hurt diversity on the bench, has waded in to defend Nadon's eligibility.

A reading of the factums filed with the court suggests how incendiary some of the arguments will be.

"The interests of Quebec in representation on the court cannot be subject to eradication at the hands of Parliament," states the Constitutional Rights Centre factum.

"Such a position would be a betrayal of Quebec interests that would justify the succession of Quebec."

The association also raises a politically alarmist scenario in which the government is allowed to rewrite the rules at will.

"Parliament could change the law to allow for non-lawyers to be appointed, only card-carrying Conservative party members or only Federal Court judges," states the factum.

Galati and the association argue the 1982 patriation of the Constitution "constitutionalized" the Supreme Court's appointment rules and only a constitutional amendment can alter them -- an argument Vaughan, the court historian, dismissed as "horse feathers!"

The government, for its part, highlights among its arguments the 1949 debate that saw the Supreme Court bench increased to nine justices from seven, and the Quebec contingent to three from two.

It quotes the justice minister of the day, Liberal Stuart Sinclair Garson, telling Parliament that the "real purpose" -- underlined in the factum -- of having three Quebec judges is to have "three lawyers trained in the civil code rather than in the common law."

"It is that consideration, more than any geographical consideration of appointing a judge to represent this province or that one, that weighed in our deciding upon that particular subsection," Garson is quoted as saying.

The feds also argue that a narrow interpretation of the Supreme Court Act rules could effectively bar any Federal Court judge from being appointed to the top bench -- an outcome that would be "entirely at odds with the scheme of the Act, given the court's jurisdiction over appeals from the Federal Courts."

The Supreme Court has a busy winter session planned. Getting the Nadon appointment resolved one way or another will allow the court to resume sitting with its full bench of nine justices.

"I don't think this is part of any grand strategy of the government," said Dodek, the constitutional expert.

"I think this is a misplayed appointment."