WATCH: Global News has learned the Prime Minister’s Office suggested a way for Justice Marc Nadon to meet the requirement to fill a vacant Quebec seat in Supreme Court of Canada. Jacques Bourbeau has the details.
OTTAWA – The Prime Minister’s Office warned Justice Marc Nadon of a potential problem with his Supreme Court appointment and suggested he resign and join the Quebec bar to ensure eligibility, sources say.
The suggestion came after Chief Justice Beverley McLachlin says she contacted Justice Minister Peter MacKay last July 31 to flag the issue of nominating a federal court judge to fill a Quebec seat on the high court.
It was a call Prime Minister Stephen Harper later deemed “inappropriate” – setting off a skirmish between the Conservatives and the high court that has dominated Ottawa this past week.
The revelation now suggests the government knew the risks in appointing Nadon to the high court before it sought outside opinions, and came up with a way to avoid a potential conflict with the law.
Nadon, evidently, refused to go along with the plan. His appointment was subsequently challenged as unconstitutional and struck down by the high court in a 6 to 1 ruling.
When contacted by Global News, Nadon said in an email, “I do not have any comments to make at this time.” Harper’s spokesman did not respond to a request for comment.
Toronto lawyer Thomas G. Heintzman, past president of the Canadian Bar Association, said such a suggestion to skirt the law on the prime minister’s part would be “totally inappropriate.”
“You are in effect being disrespectful of the system and you are manipulating the proper protocols,” Heintzman said. “Why would a government ever do that with the highest court in land?”
Even after Nadon rejected the plan, the government asked retired Supreme Court Judge Ian Binnie for his opinion on the matter.
While Binnie agreed that a federal court judge who resigns and is readmitted to the Quebec bar satisfies the letter of the law, he said it makes “no practical sense” and that such a move is not “compatible with the dignity of the office.”
Justice Michael Moldaver, the only Supreme Court judge who dissented on the Nadon ruling, also remarked on the “absurdity” of a judge resigning and joining the Quebec bar for even one day.
“It is difficult to believe that the people of Quebec would somehow have more confidence in this candidate on Friday than they had on Thursday,” he wrote in his dissent.
When he was appointed as a Federal Court judge more than 20 years ago, Nadon resigned as a lawyer from the Quebec bar, as is routine.
But the Supreme Court Act states that in order for a Quebec judge to be appointed to the Supreme Court, he or she must come from the Quebec Superior Court, the Quebec Court of Appeal or be a current member of the Quebec bar with at least 10 years of experience.
The government argued Nadon was still eligible, because he had been a member of the bar for almost 20 years.
Sebastien Grammond, dean of the University of Ottawa’s faculty of civil law, said the government’s suggestion would have “circumvented the problem” with Nadon’s appointment but it is not clear he would have immediately been eligible for the Quebec bar.
“(The government) knew that there was some merit to the argument that he was not eligible, and that they tried to find a way of avoiding the issue,” he said.
But Grammond, who acted as an intervener in the case and argued Nadon was in fact eligible for the court, said the way the Harper government has treated McLachlin has not been fair.
“I don’t think it’s fair to say that the chief justice did anything wrong just because you lost your case,” he said. “ As a lawyer I lost many cases and I never said the judge was biased.”
Toronto lawyer Heintzman, one of 11 past presidents of the CBA, is calling on Harper to remedy the situation with the top court.
“The public respect for courts is something that can be lost in a nanosecond. We’ve worked for centuries to have independent courts that are respected by the public. And we can lose that overnight,” he said.
“People say that oh that could never happen. But it could happen here.”