Justice Minister Peter MacKay isn't ruling out the government putting forward Marc Nadon's name for a Supreme Court seat, despite the court ruling last week that his appointment was void.
Asked by reporters, and then in question period by New Democrat MPs, whether he would rule out the government trying again to name Nadon to a seat on the court, MacKay dodged the question.
"As you would expect, we'll look at all the details of the decision, which I did read already with interest, including Mr. Justice [Michael] Moldaver's dissent. And we'll look at the details of the decision, we'll examine our options as we ensure that the Supreme Court has its full complement," MacKay said.
The court decided 6-1 that Nadon didn't qualify for one of Quebec's three seats on the court because he came from the Federal Court. The Constitution sets out specific rules for naming justices from Quebec, the only province that uses a civil code of law rather than common law.
Asked in question period about the decision to name Nadon, MacKay said he'd consulted a number of people in the legal field, including Quebec's attorney general, the chief justices of Quebec and the Quebec Superior Court, the chief justices of the Federal Court and Federal Court of Appeal, and representatives from the Quebec Bar Association and the Canadian Bar Association.
"And Mr. Speaker, from this long list of candidates, the multiparty selection committee provided us with a list of three names," MacKay said.
'Two other names'
New Democrat MP Françoise Boivin said the question is whether the government listened to the advice it was given.
"Did they really listen to them and keep the list? We'll recall that the minister of justice for the province of Quebec clearly said that Justice Nadon was not even on his list of recommendations," Boivin said.
"Canadians can clearly see that Conservatives have no one to blame but themselves for this mess."
Boivin was one of the opposition members of the multiparty selection committee and said she was bound by the rules of in-camera discussions not to reveal what was decided behind closed doors.
But Boivin suggested the government suspected there could be trouble with the appointment, pointing to a comment by MacKay last August in Saskatoon when he told the National Post it was time to clarify the rules around appointments.
MacKay said at the time that there were "provisions right now that could be interpreted as excluding federal judges from Supreme Court appointments."
Harper named Nadon to the court Sept. 30.
Boivin seemed to suggest Nadon's name was on the list of three that the committee passed on to Prime Minister Stephen Harper for consideration, telling reporters that MacKay should go back to the "two other names" on the list, but she wouldn't confirm that.
Liberal MP Stéphane Dion, who has worked extensively on Quebec and Constitutional issues, said it's been a year since the province was fully represented on the court. He said the Conservatives are trying to save face now that the Supreme Court has rejected their nominee, along with their attempt to change the criteria for Quebec justices on the top court.
"It's not only that they have been wrong, it's what they said. They went to the court to pretend that the court is not protected by the Constitution," Dion said.
"It was completely wrong, the court said it's absurd as a theory ... it is also the fact that what they were pretending to be the truth was a complete fallacy."
Dion said the arguments presented by the government to the Supreme Court were about weakening it.
"I think the prime minister wanted once again to have all the power for himself, and he wanted to weaken the Supreme Court and to weaken the provinces, Canadian federalism and the weight of Quebec in the federation," he said.