March 26, 2014 · 0 Comments
WHEN COURTS WANT to send out a strong message, their judgments go out as coming “by the Court,” or the Latin “per curia.”
That’s clearly what Chief Justice Beverley McLachlan wanted, and she almost succeeded, with all but one of the other Supreme Court of Canada justices signing on in what will likely become known as the Nadon decision.
At issue was the constitutional legality of Prime Minister Stephen Harper’s selection of a semi-retired member of the Federal Court of Appeal to sit as the constitutionally required third member of the nine-member Supreme Court.
As one of the great compromises involved in Confederation, Quebec has always been assured one-third of the court’s members (initially two judges). Ontario is also guaranteed three, with one each coming from the four Atlantic Provinces, the three Prairie Provinces and B.C.
That left the government able to choose a member of Le Barreau du Québec (the province’s law society) or the Quebec courts, with the appointees usually coming from the Quebec Court of Appeal.
One problem with the Nadon appointment was that although he once was a member of the Quebec bar association, he was on the Ottawa-based Federal Court of Appeal.
Another, not addressed in the Supreme Court ruling, was that over the years he had not developed much of a reputation for anything beyond giving great defence to government decisions.
And while the legality of the appointment was supported by former Supreme Court justice Ian Binnie, the reality was that it was strongly opposed by all three Quebec political parties and a ruling upholding the appointment would not have sat well with the province’s electorate.
Most Canadians must have been surprised at the strong reaction, perhaps because nothing like it had ever happened before, and for good reason.
Chief Justice McLachlan herself is an outstanding example of the longstanding tradition of appointing the best legal minds to the country’s top court without much attention being paid to their political leanings.
McLachlan was a professor with tenure at the University of British Columbia when she was appointed by the Trudeau Liberals to the County Court of Vancouver and then to the Supreme Court of British Columbia.
In 1985, with the Conservatives in power under Brian Mulroney, she was appointed to the British Columbia Court of Appeal, and three years later was named Chief Justice of the Supreme Court of British Columbia. Mr. Mulroney appointed her to the Supreme Court of Canada on March 30, 1989, and Jean Chrétien made her Chief Justice of Canada on January 7, 2000.
Such bipartisanship in judicial appointments has never taken place in the United States and probably never will.
In the early years of the Harper government the Supreme Court appointments were almost as non-controversial, and the Nadon appointment was the sixth since the Tories came to power in 2004. A seventh will come next November when Justice Louis LeBel reaches the mandatory retirement age of 75.
In those circumstances, it is to be hoped there is nothing to the rumours that the Harperites will do an end run and re-appoint him after he “retires” from the Federal Court to become a member of the Quebec Bar.
There are surely many qualified, bona fide Quebecers ready, willing and able to take the posting.