March 23, 2014 12:03 pm
Updated: March 23, 2014 2:09 pm

Conservatives don’t rule out getting Nadon on Supreme Court bench


Above: In an interview on The West Block with Tom Clark, Conservative MP and parliamentary secretary to the minister of justice Bob Dechert said all options are on the table in terms of filling the vacant Supreme Court seat from Quebec.

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OTTAWA  — The Harper government is not ruling out trying again to get Justice Marc Nadon on the Supreme Court bench despite the ruling this week from the highest court that he’s ineligible.

“I think all options are on the table,” said Conservative MP Bob Dechert, who acts as parliamentary secretary to Justice Minister Peter MacKay. “The prime minister will be looking at all of those. … I don’t wish to speak for him or for the minister of justice, I haven’t had a chance to speak to either of them since this decision, but certainly they’re looking at the options.”

Until Friday, Nadon was in legal limbo since Prime Minister Stephen Harper appointed him in September.

READ MORE: Harper’s high-court appointment Marc Nadon ineligible, Supreme Court rules

The Quebec government and Toronto constitutional lawyer Rocco Galati argued Quebec appointments must come from specific courts listed in the Supreme Court Act.

Nadon, a semi-retired Federal Court of Appeal justice, was found by six of seven Supreme Court Justices to not have the proper qualifications laid out in the Supreme Court Act for a Quebec nominee to the top bench, namely he because he came from the Federal Court of Appeal rather than a Quebec institution.

And those same judges thwarted the government’s efforts to rewrite the rules.

The government does not have the authority to amend the Act, those judges wrote, saying “the unanimous consent of Parliament and all provincial legislatures is required for amendments to the Constitution relating to the ‘composition of the Supreme Court.”

The government appeared to be caught flat-footed by the twin rebukes.

WATCH: The Quebec government was pleased with the ruling, but the whole thing was a waste of time, said provincial Intergovernmental Affairs Minister Alexandre Cloutier. 

A statement from the Prime Minister’s Office said it was “genuinely surprised” and would review its options, all the while stressing Nadon’s appointment had been vetted by two former Supreme Court justices and a committee of MPs.

“I will point out that the names that were submitted to the minister of justice and the prime minister were selected by a panel of MPs from all parties,” Dechert said in an interview on The West Block with Tom Clark. “None of the opposition MPs raised any concern about Federal Court judges from the province of Quebec being qualified to sit on the Supreme Court of Canada, so you can understand our surprise.”

The NDP has disputed that claim.

Although the Quebec government was pleased with the recent Supreme Court ruling, provincial Intergovernmental Affairs Minister Alexandre Cloutier said the whole thing was a waste of time.

“It would work better if we didn’t spend months in court, for what is for us so obvious they couldn’t do that,” Cloutier said in an interview Sunday.

The minister said there were a number of signs the Conservative government knew it was doing something it couldn’t.

“They asked [for an] external opinion from a former Supreme Court justice because they knew [this]was the first time [anyone] was trying to go this way,” Cloutier said. “For us, it’s an example of bad federalism, where a unilateral decision made in Ottawa does not respect the three names … presented by the Quebec government.”

So the two sides spent months in court and thousands of dollars and, as a result, Quebec is still short one justice on the Supreme Court bench, he said.

The provincial minister said his government will again propose names to Ottawa, and is hoping the government will “follow the rules and  … respect the fact that in Quebec we have a different system of law that goes back to 1774.”

With files from The Canadian Press

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