More subplots in the search for a 'right-minded' Supreme Court judge

It's hard to imagine just who Stephen Harper has in mind to fill the vacant Quebec seat on the Supreme Court, Chris Hall writes. It's almost harder to imagine why anyone would want to accept it in today's overly politicized atmosphere.

Documents tabled Tuesday show no formal movement to fill top court vacancy

So, who's next? A woman looks at a portrait of justices in the foyer of the Supreme Court building in Ottawa in March. (Reuters)

It's hard to imagine just who Stephen Harper has in mind to fill the vacant Quebec seat on the Supreme Court of Canada. It's harder still to imagine why anyone would want to accept it.

It's been two months since the country's highest court rejected the prime minister's first choice, Federal Court of Appeal Judge Marc Nadon, ruling he wasn't eligible to represent Quebec because he was neither a judge nor a practising lawyer in the province itself.

But that botched attempt was only the opening episode in this legal drama, which comes complete with an ensemble cast of flawed characters, plot twists and claims of impropriety and betrayal.

The prime minister has accused Chief Justice Beverley McLachlin of trying to improperly lobby against Nadon's appointment, a charge her office denies.

Harper and Justice Minister Peter MacKay have also insisted that the two opposition MPs on the judicial selection committee agreed with Nadon's appointment — even though everyone involved in the process is supposed to be sworn to confidentiality.

And if that isn't enough, the Conservatives aren't disputing stories on cbc.ca or in other media that they don't want to appoint a judge from the Quebec bench, viewing the current group as too liberal.

"It seems clear that the prime minister and the justice minister politicized the selection process in order to appoint the judge they thought to be aligned with their Conservative ideology,'' Liberal MP Stéphane Dion charged this week.

The government's response is always the same.

"We will respect the process," MacKay told the Commons. "We will respect the needs of Quebec."

An opaque process

Well, maybe. But Quebec's new Liberal premier doesn't sound so sure that is going to happen.

Minister of Justice Peter MacKay says the government will "respect the needs of Quebec." (Canadian Press)

Philippe Couillard told reporters this week that his government now wants a direct say in who is chosen for the three seats on the Supreme Court that are reserved for Quebec.

The question at the moment, though, is who would want the job in the current circumstances.

The Supreme Court is, of course, the highest court in the land, its members among the very best and the very brightest legal minds Canada has ever produced.

But the drawn-out, politically-charged atmosphere surrounding this appointment is a factor that can't be ignored. So is the lack of a formal, transparent process to identify and choose the appropriate candidate.

"I don't understand why it is taking so much time," says University of Ottawa law professor Benoît Pelletier, a former Liberal cabinet minister in Quebec. "If a Federal Court judge is not eligible, there is still a huge group of judges and lawyers in Quebec who can be appointed to fill the Quebec vacancy.''

However, government documents made public Tuesday show there has been no new formal discussions with the Quebec legal community since the last round, even though the seat is still vacant.

No effort to involve the federal opposition parties, no indication whether the government intends to pick another name off the previous 2013 short list that included Nadon, or start all over again.

Pelletier isn't so much worried that no willing candidate will be found, but he is concerned that the debate around the choice is alive with political, rather than legal arguments.

"It should not be a requirement to be conservative-minded to be appointed to the Supreme Court. That is something we are not used to in Canadian judicial culture,'' he says.

A right-minded judge

But there's no dispute that the government went to extraordinary lengths to place a Federal Court judge in one of the court's three Quebec seats. And in Nadon, the government says it found not only a competent judge, but a right-minded one who exercised judicial restraint in the post-Charter of Rights era.

The documents tabled this week, in response to questions from Liberal MP Irwin Cotler, offer some additional subplots.

For example the government is citing solicitor-client privilege in refusing to disclose whether it sought a legal opinion from any Quebec judge before appointing Nadon.

Liberals claim that is an admission the government did just that, and is trying to hide the advice it received inside Quebec about the eligibility of a Federal Court judge to represent the province.

The government claimed no such privilege in releasing a legal opinion by retired Supreme Court justice Ian Binnie — an opinion that supported Harper's view that Federal Court judges are eligible.

NDP justice critic Francoise Boivin, a member of the all-party selection committee, says the PM should think hard about his next Supreme Court choice because it is going to send a message to the Quebec bar. (Adrian Wyld/Canadian Press)

New Democrat MP Françoise Boivin was a member of the selection committee that led to Nadon's appointment.

She won't discuss that process, or how Nadon came to be chosen. But she has no problem warning Harper to think twice about the new choice he's about to make.

In particular, Boivin, who is a Quebec lawyer herself, says the PM should consider the impact of choosing a lawyer rather than a sitting judge to fill the Quebec vacancy.

"If he goes to the barreau [bar association] it better be one of the most brilliant legal minds because that's going to send the Quebec courts a signal — the message is that we don't want you.''

Harper's vowed to respect the letter and the spirit of the Nadon ruling. But the prime minister also made it clear that he disagrees with the court's decision, arguing it makes Quebec members of the Federal Court second-class judges.

Still, many legal observers believe the delay in choosing someone to replace Nadon, and the absence of a formal nomination process, is a sign that the choice will be Stephen Harper's, and his alone.

And both he, and the successful candidate, will be judged accordingly.


Chris Hall

National Affairs Editor

Chris Hall is the CBC's National Affairs Editor and host of The House on CBC Radio, based in the Parliamentary Bureau in Ottawa. He began his reporting career with the Ottawa Citizen, before moving to CBC Radio in 1992, where he worked as a national radio reporter in Toronto, Halifax and St. John's. He returned to Ottawa and the Hill in 1998. Follow him on Twitter: @chrishallcbc


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