Justice Minister Peter MacKay hopes to replace Marc Nadon within weeks

Justice Minister Peter MacKay says he hopes to find a replacement for Justice Marc Nadon on the top court by the end of the parliamentary session, which could be two weeks away.

New Supreme Court judge will be a 'common' pick from a Quebec list and a federal government list

Justice Minister Peter MacKay says he hopes to find a replacement for Justice Marc Nadon on the top court by the end of the parliamentary session, which could be two weeks away if the House of Commons rises by the middle of June, as it usually does every year.

"That's my hope," MacKay told a reporter Thursday as he was heading into question period in the House of Commons.

Inside the House,  MacKay was asked by Liberal justice critic Sean Casey what process would be used to replace not only Nadon but also Justice Louis LeBel, who is due to retire in November. MacKay replied he'd met with Quebec's Justice Minister Stéphanie Vallée on the matter.

"We've been working collaboratively on what we think will be a very good choice for the next Supreme Court justice," he said.

Speaking to reporters in more detail in the foyer of the House of Commons Wednesday, MacKay confirmed the Quebec government has provided a list of candidates who could occupy the Quebec vacancy created in the top court when Justice Morris Fish retired last summer.

"We are looking for a consensus that would include a name from that list," MacKay told reporters.

But, he added, Quebec's list is not the only one.

"We have a list, too," MacKay said, explaining that the two lists are being examined to find "common names," although it's hard to imagine finding common names would take more than a few minutes, if that.

In the fall, the federal government named Federal Court Justice Marc Nadon to fill Fish's position, but the Supreme Court ultimately found Nadon was not eligible because he is neither a current Quebec lawyer nor a Quebec judge from a superior or appeals court.

The court determined that there are unique rules that apply to Quebec so that the three Quebec slots on the court cannot be filled by judges from the Federal Court.

After Nadon was rejected, the government said repeatedly it disagrees with and was disappointed in the highest court's decision, but has also said it will respect the letter and the spirit of the ruling.

Perhaps no role for Parliament

In the second attempt to fill the empty Quebec seat on the bench, MacKay said Wednesday there might not be a role for Parliament to play in selecting a judge.

Previously the government, in bid to create a more open and transparent method of picking Supreme Court judges, had allowed a selection committee of MPs to have a say.

In Nadon's case, the committee, dominated by Conservative MPs, narrowed down a longer list provided by the government to three names. One of those names was Nadon's.

But MacKay said Wednesday there is now a more pressing situation and "we are obviously running up against serious deadlines." He said it hasn't been determined if a selection committee of MPs will examine the lists.

There is some need for speed because a ninth judge on the top court has been lacking for almost nine months. But the Supreme Court won't be sitting again until October and it's not clear why MacKay feels there is such an urgency to make an appointment that a parliamentary committee might not be consulted.

Constitutional lawyer Adam Dodek, contacted at the University of Ottawa, said, "The rush is to get somebody in place for August to have time to move to Ottawa and have time to prepare for the beginning of the court term in October."

It's not clear if the process of collaborating with a provincial government will be a precedent the government will use to select new Supreme Court judges. 

"I think what everyone is talking about, is there some stopgap measure, a sort of a one-off to get a consensus way to fill the Nadon vacancy for now," Dodek said.

MacKay has not said definitively whether two new judges, rather than just one, will be chosen from the two lists.