War of words over Marc Nadon's scotched nomination to top court

The story of how Justice Marc Nadon was named to the Supreme Court and ultimately rejected by the same court has been rife with conflicting statements about what really happened. Here's a look at what has been said by the court, the government and the opposition.
Justice Marc Nadon with Minister of Justice Peter MacKay following Nadon's nomination to the Supreme Court of Canada. He was found not eligible by the court to represent Quebec. (Adrian Wyld/Canadian Press)

The story of how Justice Marc Nadon was named to the Supreme Court and ultimately rejected by the same court has been rife with conflicting statements about what really happened, leading to a war of words between the powerful executive and judicial branches of the country.

The tale is riven with drama and laced with historic significance. A prime minister has never publicly criticized a chief justice of the Supreme Court before. The spectacle of the highest elected official in the country crossing swords with the head of the judiciary branch has gripped and engaged Canadians.

The adversaries are formidable. Prime Minister Stephen Harper is on his way to joining the top tier of longest-serving prime ministers. Chief Justice Beverley McLachlin is the first woman to head the court and the longest-serving chief justice in Canadian history.

Nadon now also has a historical claim, although not an enviable one. He is the first appointed judge ever to see his claim to a seat on the nation's highest court reversed by the potential colleagues he hoped to join.

Nadon was a Federal Court judge in Ottawa with a 20-year tenure when he was named by Harper to fill a Supreme Court spot vacated by retired Justice Morris Fish.

From the outset, his eligibility was questioned because he is not, as the Supreme Court Act stipulates, a Quebec lawyer, or Quebec superior or appeals court judge with a current knowledge of Quebec's civil code.

A Toronto lawyer challenged his appointment, sparking the government's request for the Supreme Court to decide if Nadon could join its ranks.

Here's how recent events have unfolded, beginning with the Supreme Court of Canada's decision about Nadon:

March 21

The Supreme Court delivered a 6-1 opinion that Nadon, as a Federal Court judge, is not eligible to represent Quebec on the Supreme Court.

Nadon had been named to the position in late September, and then appointed and even sworn in by the chief justice. He was also given an office in the Supreme Court building in Ottawa.

April 1

Harper expressed surprise at the court's decision.

Here's his response to a question from Liberal Leader Justin Trudeau about when a Quebec judge would be appointed: "Mr. Speaker, during consultations, all of the parties in the House agreed with the idea of appointing a Quebecer from the Federal Court to the Supreme Court. It is surprising to learn that the rule for Quebec is completely different from the rule for the rest of Canada."

Harper also seemed to be violating the secrecy requirement of a committee of MPs that had put Nadon's name on a short list.

"The Liberal Party, in fact, supported the nominee for the Supreme Court because all experts agreed that, as has been done in the past, judges who come from a certain province and sit on the Federal Court can be named for that province in the Supreme Court of Canada," the prime minister told the House of Commons.

Harper was seemingly referring to the Supreme Court selection panel charged with narrowing down a list given to them by the government. The committee, dominated by Conservative MPs, picked three names. One was Nadon's.

But the committee is sworn to confidentiality, and may not talk about its deliberations or selection of names.

May 1

The Nadon issue resurfaced on May 1, because of an article in the National Post that quoted what journalist John Ivison called senior Conservative sources. The story said McLachlin had lobbied against the appointment of Nadon.

On the same day, in response to the newspaper's story, McLachlin's office issued a rare comment, dated May 1, saying, "The chief justice did not lobby the government against the appointment of Justice Nadon. She was consulted by the parliamentary committee regarding the government's short list of candidates and provided her views on the needs of the court."

McLachlin's statement went on to say she had advised MacKay as well as the prime minister's chief of staff about a potential problem of a Federal Court judge filling the Quebec vacancy on the top court.

On the same day, the Prime Minister's Office responded to media questions about McLachlin's statement, saying, "The chief justice initiated the call to the minister of justice. After the minister received her call, he advised the prime minister that given the subject she wished to raise, taking a phone call from the chief justice would be inadvisable and inappropriate. The prime minister agreed and did not take her call."

May 2

There was another comment from McLachlin's office that did not quite tie in with the PMO email. "The chief justice's office also made preliminary inquiries to set up a call or meeting with the prime minister, but ultimately the chief justice decided not to pursue a call or meeting."

That same day at an event at Fanshawe College in London, Ont., Harper again voiced surprise at the Supreme Court's decision.

He told reporters: "I should mention that this had never come to our attention before. It had not come to attention at previous times in our history when judges were appointed from the Federal Court, nor had it come to this government's attention when we had in fact appointed justices from Quebec to the Supreme Court. But nevertheless that issue was raised."

May 6

A week later, as the issue continued to dominate headlines, Harper changed the tone of his narrative about his choice of Nadon, no longer expressing surprise at the possible constitutional problem with Nadon's nomination.

Harper said in the House of Commons: "Mr. Speaker, again, last week, it was suggested that I had not been made aware of a legal issue involving eligibility to the Supreme Court before the government made its appointment. On the contrary, I was well aware of that and that is why I consulted legal and constitutional experts. We acted according to their advice."

He repeated his correction about the story of Nadon's appointment the next day.

May 7

On May 7 in the House of Commons, MacKay seemed to veer close to violating the confidentiality of the MPs on the selection committee.

"Perhaps most notably, those who should have known that this decision and this case was well decided and known in legal circles would be members of the parliamentary committee, including the honourable member who just spoke, the justice critic for the NDP party, who, it is now well known, would have seen the list and recommended the list that went forward that contained names of Federal Court judges from Quebec who wished to be considered for a Supreme Court appointment."

MacKay was referring to NDP MP and justice critic Françoise Boivin, who was a member of the Supreme Court selection panel. MacKay seemed to be saying of the three names on the short list chosen by the committee, more than one was a Federal Court judge. 

MPs on the committee must swear to uphold confidentiality, meaning they cannot talk about the contents of the list or how they voted. It's not clear if the confidentiality undertaking also applies to the minister of justice and the prime minister.

May 8

Boivin told Evan Solomon, host of CBC News Network's Power & Politics, she was not permitted to tell him if the committee knew there was a problem with Nadon's eligibility, or how she voted.

"I will leave it to everybody to imagine, knowing me, what I did at committee," she said, referring to Mackay's remarks about her duties at the selection committee, which included voting for the three names on the short list.

The government selected Nadon's name from that list.


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