Inside Politics

UPDATED - Irwin Cotler challenges PM to explain claim of all-party support for Nadon nomination

It appears that the seemingly insatiably inquisitive Irwin Cotler still has a few unanswered questions on how the government arrived at the decision to nominate Marc Nadon to the highest court in the land --including, but not limited to, on what, precisely, the prime minister is basing his assertion that, "during consultations, all the parties in the House agreed with the idea of appointing a Quebecker from the Federal Court to the Supreme Court." 

Here's an excerpt from Cotler's latest written query:

[W]ith respect to the Prime Minister's statement regarding Justice Nadon in the House on April 1, 2014, that "pendant les consultations, tous les partis de cette Chambre étaient d'accord avec l'idée qu'on pouvait nommer un Québécois de la Cour fédérale à la Cour suprême", (i) to what consultations is the Prime Minister referring, (ii) was the Prime Minister part of these consultations and if so in what capacity, (iii) if the Prime Minister was not part of these consultations, by what means was he informed of their contents, (iv) to what extent are these consultations public, (v) if these consultations were public, in what manner can records of them be accessed, (vi) if these consultations were not public, are their contents protected by any privilege or confidentiality agreement and if so, what are the consequences for any individual breaking consultation confidentiality, if any, (vii) on what basis was this statement made, (viii) how can a party involved in these consultations express its disagreement "avec l'idée qu'on pouvait nommer un Québécois de la Cour fédérale à la Cour supreme", (ix) how can a disagreement, such as the Prime Minister suggests did not occur, be made public within the ordinary course of consultations[?]

It's worth noting that the selection committee charged with whittling down the government's initial long list of potential Supreme Court candidates to a short-list of three recommended nominees is, indeed, made up of MPs from all parties -- three from the government, and one from each recognized opposition caucus.

But - and this, it seems, is likely what Cotler is getting at with his question -- the entire selection process takes place behind closed doors, under a cloak of voluntary confidentiality, which means that no one -- not the members, nor the prime minister -- should be publicly referring to what may or may not have transpired during those deliberations.

Of course, it's entirely possible that the PM was referring to entirely separate consultations, which, presumably, is why Cotler is asking the government to clarify the matter.

Under the standing orders, they now have to do precisely that, at least in theory, within 45 days.

UPDATE: A helpful New Democrat staffer points out that his party's leader brought up the very same concern during Tuesday's question period: 

Hon. Thomas Mulcair (Leader of the Opposition, NDP):  Mr. Speaker, it is one of two things: either the Prime Minister is revealing a secret that he does not have the right to tell or he is not telling the truth. I can tell you that he is not betraying a secret because what he just said is the opposite of the truth.

(Alas for those hoping for a response, Mulcair then switched to a different topic, and the prime minister declined to address the earlier query in his answer.) 

UPDATE II: Another helpful New Democrat staffer sends along a link to the transcript of the public ad hoc committee meeting with Nadon, during which the party's justice critic, Francoise Boivin, raised the question of his experience with Quebec civil law at several points during her allotted time. 

UPDATE III: Meanwhile, a Liberal staffer observes that, while the prime ministerial news release on the 2012 appointment of Justice Richard Wagner, notes that the short-list of candidates was "unanimously approved by the committee," the 2013 release on Nadon, which is otherwise all but identical in form, makes no such claim. 

The complete text of the question -- which, it's worth noting, clocks in at well over 1,500 words, and includes, among other things, a request for more information on the $3,131.35 spent on what the government described in a previous Order Paper response as "the acquisition of machinery and equipment" related to the Nadon appointment process:

Q-437 -- April 1, 2014 -- Mr. Cotler (Mount Royal) -- With regard to the appointment of Justice Marc Nadon: (a) who did what and when prior to the Selection Panel being convened; (b) who determined the process to be followed with respect to the most recent appointment process to fill a vacancy on the Supreme Court of Canada (SCC); (c) was the process for Justice Wagner designed with the departure of Justice Fish for a year later in mind; (d) was the process for Justice Nadon designed with the forthcoming departure of Justice LeBel in mind; (e) in the breakdown of appointment process costs provided in the answer to Q-239, what accounts for the "Acquisition of Machinery and Equipment" cost associated with the appointment of Justice Marc Nadon; (f) was there a competitive bidding process with respect to the goods and services in (a); (g) what accounts for the greater cost of "Legal Services" for the appointment of Justice Marc Nadon relative to the reported costs provided in the answer to Q-239 for other Justices; (h) are the costs for the legal opinions of Justices Binnie and Charron included in the "Legal Services" heading for appointment process of Justice Marc Nadon reported in the answer to Q-239; (i) if the answer to (f) is no, under what heading are these opinion costs found and, if not reported in the answer to Q-239, where are they reported; (j) were the legal opinions of any Quebec jurists explicitly sought with respect to the eligibility of Justice Marc Nadon and, if so, (i) whose opinions were sought, (ii) on what date, (iii) at what cost; (k) were the legal opinions of any Quebec jurists explicitly sought with respect to the eligibility of a federal judge to assume a Quebec seat on the SCC and, if so, (i) whose opinions were sought, (ii) on what date, (iii) at what cost; (l) how long will the materials relative to Justice Nadon's appointment remain on the website for the Office of the Commissioner for Federal Judicial Affairs Canada; (m) when were these materials first posted; (n) under what guidelines will they be removed; (o) how was the decision to seek outside legal advice relative to Justice Nadon's eligibility made, (i) by whom, (ii) on what dates, (iii) why; (p) did the Department of Justice render an internal opinion as to the eligibility of Justice Nadon to assume a Quebec seat on the SCC; (q) what assessment or evaluation of the Nadon nomination has the government undertaken such as to improve the process for the next appointment; (r) what assessment, evaluation, or review of the Nadon nomination will the government undertake so as to learn from it; (s) with respect to the statement of the Minister reported by CBC on March 24, 2014, that "we'll examine our options as we ensure that the Supreme Court has its full complement" what specific options were considered by the government; (t) did the government consider re-naming Justice Nadon after the decision in Reference re Supreme Court Act, ss. 5 and 6 and, if not, why did the Minister not rule this out when asked subsequent to the ruling's release; (u) on what specific dates did the Selection Panel engage in consultations relative to the process that resulted in the nomination of Justice Nadon; (v) did any consultations or meetings of the Selection Panel occur after July 15, 2013; (w) were any outside lawyers consulted on the amendments made to the Supreme Court Act during the nomination of Justice Marc Nadon; (x) was Quebec consulted on the amendments made to the Supreme Court Act during the nomination of Justice Marc Nadon; (y) was the Barreau du Quebec consulted on the amendments made to the Supreme Court Act during the nomination of Justice Marc Nadon; (z) were any documents, presentations, or memos prepared for ministers or their staff, from April 1, 2013 to present regarding Justice Marc Nadon and, if so, what are (i) the dates, (ii) the titles or subject-matters, (iii) the department, commission, or agency's internal tracking number; (aa) with respect to the Minister's appearance before the Standing Committee on Justice and Human Rights on Thursday, November 21, 2013, wherein he deferred to Ms. Laurie Wright (Assistant Deputy Minister, Public Law Sector, Department of Justice) on a question regarding consultations in the matter of changes to the Supreme Court Act and wherein she said "In this particular case, I'm not aware that there were any consultations with the Barreau du Québec. It's not unusual for the government to consult in circumstances such as this, though", (i) were there any consultations with the Barreau du Quebec and, if so, on what dates, (ii) was the Minister aware personally of consultations, (iii) what role would the Minister personally play in such consultations in 'usual' circumstances, (iv) if there were no consultations, why were none held, (v) were any consultations requested by the government in this regard; (bb) with respect to the various costs reported in the response to Q-74 related to Ms. Louise Charron Mr. Ian Binnie and Professor Peter Hogg, what accounts for the difference in these costs; (cc) were the three named individuals asked the same total number of questions and with the same exact wording; (dd) in addition to these individuals referenced in part (z), who else was asked and on what date with respect to the question of the eligibility of a Federal judge to assume a Quebec seat on the SCC; (ee) with respect to statement of the Minister of Justice in the House on October 17, 2013, "The eligibility and the opinion that we have received from Mr. Justice Ian Binnie, which has also been endorsed by Supreme Court Justice Louise Charron, as well as a noted constitutional expert Peter Hogg, is very clear", (i) when were Justice Charron and Professor Hogg provided the opinion for Justice Binnie, (ii) how long did they have to review it before reporting to the government; (ff) with respect to the statement of the Minister of Justice before the Standing Committee on Justice and Human Rights on November 21, 2013, that "legal opinion prepared by respected former Supreme Court Justice Ian Binnie which [...] was supported by his former colleague, the Honourable Louise Charron, as well as by noted constitutional expert, Professor Peter Hogg", (i) did the Minister use "supported" to mean "endorsed", (ii) did the Minister mean that all conclusions were agreed in wholeheartedly by those cited; (gg) with respect to the Minister's comments before the Ad Hoc Committee on the Appointment of SCC Justices that "I would add that this opinion was reviewed by several eminently qualified individuals, including the Honourable Louise Charron as a former judge of the Supreme Court of Canada herself. The opinion was also reviewed by Professor Peter Hogg, a recognized constitutional expert and author. Both of them expressed unequivocal support for Mr. Justice Binnie's conclusions", is "several" used to mean "more than two but not many" as defined by the Canadian Oxford Dictionary (2 ed.) and (i) if so, who other than Justice Charron and Prof. Hogg is included in the class of "eminently qualified individuals" who reviewed this opinion, (ii) if not, in what sense was the word "several" used in this context and to convey what; (hh) was Justice Binnie informed that his opinion would be made public and, if so, was this part of the arraignment the government made with him; (ii) can Justice Charron publicly release her opinion that was rendered to the government and, if not, why not; (jj) can Professor Hogg publicly release his opinion that was rendered to the government and, if not, why not; (kk) will the government release the opinions of Justice Charron and Prof. Hogg and, if not, why not; (ll) how did the government decide from whom to seek opinions; (mm) how did the government determine whose opinions to release; (nn) other than the Minister of Justice, who in the Department of Justice, in the Prime Minister's Office, and in the Office of the Commissioner for Federal Judicial Affairs Canada reviewed the Charron and Hogg opinions; (oo) where are the Charron and Hogg opinions currently stored, who has access to them, and what is the plan for retention; (pp) concerning the Selection Panel that considered Justice Marc Nadon's candidacy, (i) how were members of the Panel chosen, (ii) what qualifications were sought, (iii) how did each of the members of the Panel meet the qualifications in (ii), (iv) what measures are in place to ensure that Aboriginal candidates are considered in the work of the Panel; (qq) who was the Executive Director of the SCC Selection Committee for this process and how was this person selected; (rr) what protections were in place to ensure that members of the Panel elevated mid-summer to Cabinet were not influenced by their Cabinet role in the work of the Panel; (ss) with respect to the Prime Minister's statement regarding Justice Nadon in the House on April 1, 2014, that "pendant les consultations, tous les partis de cette Chambre étaient d'accord avec l'idée qu'on pouvait nommer un Québécois de la Cour fédérale à la Cour suprême", (i) to what consultations is the Prime Minister referring, (ii) was the Prime Minister part of these consultations and if so in what capacity, (iii) if the Prime Minister was not part of these consultations, by what means was he informed of their contents, (iv) to what extent are these consultations public, (v) if these consultations were public, in what manner can records of them be accessed, (vi) if these consultations were not public, are their contents protected by any privilege or confidentiality agreement and if so, what are the consequences for any individual breaking consultation confidentiality, if any, (vii) on what basis was this statement made, (viii) how can a party involved in these consultations express its disagreement "avec l'idée qu'on pouvait nommer un Québécois de la Cour fédérale à la Cour supreme", (ix) how can a disagreement, such as the Prime Minister suggests did not occur, be made public within the ordinary course of consultations; and (tt) with respect to the Prime Minister's statement in the House on April 1, 2014 that "Évidemment, c'est une grande surprise de découvrir qu'il y a une règle tout à fait différente pour le Québec que pour le reste du Canada", (i) when was the Prime Minister first informed that there exists a different rule for the appointment of judges from Quebec vis-a-vis the rest of Canada to the Supreme Court of Canada, (ii) did the Prime Minister personally solicit, receive, and review legal advice on this point within the context of the Marc Nadon appointment, (iii) what steps were taken to mitigate any such surprises that might arise during the appointment process?

Tags: blackberry jungle, irwin cotler, marc nadon, order paper questions

Comments on this story are moderated according to our Submission Guidelines. Comments are welcome while open. We reserve the right to close comments at any time.

Submission Policy

Note: The CBC does not necessarily endorse any of the views posted. By submitting your comments, you acknowledge that CBC has the right to reproduce, broadcast and publicize those comments or any part thereof in any manner whatsoever. Please note that comments are moderated and published according to our submission guidelines.