Prime Minister Stephen Harper is in a bind. Earlier this month he named Justice Marc Nadon, 64, to the Supreme Court of Canada. Days later, Toronto lawyer Rocco Galati challenged the appointment and last week the Quebec government announced it too would contest Nadon's eligibility
Justice Nadon has chosen not to sit on the highest court until the matter is settled. Last week in question period, Liberal MP Stéphane Dion asked how the government planned to resolve this "imbroglio juridique".
Justice Minister Peter MacKay didn't exactly tip his hand, "We believe Mr. Speaker that Justice Nadon is eminently qualified. We are certain he will serve the country and the court with distinction and will receive the clearance he needs to join his colleagues on the Supreme Court of Canada."
Just how Nadon will get that clearance is a mystery. The government doesn't have many options and the clock is ticking. Supreme Court justices don't like to be short-handed and they're scheduled to hear more than 20 cases before the end of the year including a reference on how the government could reform or even abolish the Senate.
"Typically what you want to have is a full bench of the court so that you don't give rise to the argument that well, if the court had sat in a full bench the decision could have been different," says the Dean of Civil Law at the University of Ottawa Sébastien Grammond.
1. Allow the Galati challenge to unfold
This is undoubtedly the slowest option, even if it was expedited. The matter could get before a federal court judge within weeks but no matter the outcome, it would likely be appealed all the way up to the Supreme Court of Canada and that could take more than a year.
2. Refer the matter directly to the Supreme Court of Canada
With the Galati challenge on course to end up at the highest court, many legal experts recommend referring the matter directly to the Supreme Court. The minister of justice would ask it to rule on whether a judge from the Federal Court of Appeal may be appointed to one of the Quebec seats and if not, how the government would have to change the Supreme Court Act to do so.
Former Justice Minister and Liberal MP Irwin Cotler supports this idea although he recognizes one pitfall, "It requires the judges to sit really in judgment, admittedly not of the candidate's merits but of the procedures that brought it about when at the same time it has fallout because it is a prospective colleague. He has already been appointed."
3. Amend the Supreme Court Act
Justice Minister MacKay has said he intends to amend the law to make it clear federal judges in Quebec may be appointed to the Supreme Court of Canada. However parliament may not have the power to change the law on its own.
A number of legal experts believe a constitutional amendment is required to tinker with the Supreme Court Act.
Irwin Cotler doesn't believe a constitutional amendment is needed but, "I'm sure that there are going to be people who say you do...and that's going to prolong the process."
According to Grammond, going this route could also be politically tricky. "If we reach the conclusion that it has to be done by constitutional amendment, then it opens up a discussion among all the partners of Confederation," says Sébastien Grammond.
Right now tradition dictates the geographical distribution of Supreme Court judges. Should parliament open up the Act, it is conceivable that some provinces and territories would want to see the court's makeup entrenched in law or even changed.
4. Pass a declaratory Act
This would be an indirect way for the federal government to circumvent uncertainty over whether it can amend the law. Instead of changing the Supreme Court Act, parliament would impose its interpretation of the law through declaratory legislation.
"Parliament could actually adopt a declaratory act that would essentially include something to the effect that membership of the Quebec bar should be understood to include past membership of the Quebec bar," says Université de Montreal law professor Stéphane Beaulac.
The government could also draft language making it clear that Nadon and any other Quebec judge from the Federal Court or Federal Court of Appeal may be appointed to the Supreme Court of Canada, just as they are in the rest of Canada. With its majority, Beaulac says he doesn't think it would take more than a few months for the government to get such a measure through parliament.
5. Justice Nadon could resign
Few people want to talk publicly about this option because Justice Marc Nadon certainly didn't do anything to deserve this controversy. However several legal experts say it would be the quickest way for the government to get out of this mess.