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Why such a long wait?

May 29, 2014   ·   0 Comments

MUCH HAS BEEN WRITTEN concerning the strange exchange between Prime Minister Stephen Harper and Chief Justice Beverley McLachlin over the propriety of the two discussing a pending appointment to the court, which has been short-handed since last September and soon will be losing a second judge to retirement.

Mr. Harper’s assertion (or at least that of his office) is that he refused to take a call from Chief Justice McLachlin last spring because he understood she was trying to derail his plan to nominate Justice Marc Nadon of the Federal Court of Appeal.

However, a story last week in The Globe and Mail has portrayed the matter in a significantly different light, suggesting that the Chief Justice merely wanted to point out that there might be an ineligibility problem that wasn’t limited to Justice Nadon.

The story by justice writer Sean Fine disclosed that Justice Nadon was merely one of four Federal Court judges on a six-name list from which an all-party committee has traditionally picked a short list of three.

Not unexpectedly, the country’s top court has almost unanimously concluded that the three seats on the nine-judge court reserved to Quebec must be occupied by someone who is either a Quebec-based judge or at least a member of the Quebec bar.

That left the prime minister with only perhaps 30,000 lawyers and a few hundred judges, a significant portion of whom would have had Conservative ties and some of whom might even have run for the party in the 2011 federal election.

One thing the Globe story didn’t divulge is what process was involved is producing the six-name list, and how it managed to have no fewer than four Federal Court judges.

Hopefully, by the time this is being read we shall have an Ottawa announcement of a new nominee who could be on the court following its summer adjournment.

However, even if that happens, the court will still be effectively short-handed, since Justice Louis LeBel will reach the compulsory retirement age (75) in November.

That being the case, we’re left wondering whether the appropriate course would be for Mr. Harper to nominate two persons, one of whom would not officially commence work until Justice LeBel retires.

Although there has been a lot of speculation as to the reasons for Mr. Harper’s action in nominating Justice Nadon and his inaction since then, perhaps the strangest aspect of the whole thing is that there is apparently no problem involved in nominating Federal Court judges, so long as it isn’t to fill one of the Quebec seats.

It strike us as beyond belief that Quebec today has no judge or lawyer with the credentials the PM likely wants – good knowledge of the province’s Civil Code and some familiarity with criminal law.

An ideal approach would be to nominate one lawyer and one judge, with one of the two being female and the other having expertise in the area of criminal law.

Appointment of a woman would restore a gender balance on the court, while naming a lawyer to the court would fill a notional vacancy that has existed since the last such appointee, Ian Binnie, retired three years ago.

Mr. Binnie, a prominent Toronto lawyer, filled the gap created by the untimely death in 1997 of John Sopinka, a Brian Mulroney appointee who served with distinction despite a lack of prior experience on the bench.

Whatever does happen, the two appointments will give us a court with seven of its nine seats occupied by Harper appointees – all but the Chief Justice and Justice Rosalie Abella.

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