That’s the view of many in Quebec’s broader legal community. It’s the talk of the profession’s social, political and judicial circles, and not just Quebec but beyond.
On Thursday, the mess left the country’s top court one judge shy of a full bench with major cases on its agenda because the appointee has stepped aside. Nobody knows for how long. All because a court challenge has been brought against Harper’s decision to vault over Quebec’s bench and bar, and pick from the federal court bench — a challenge which could in theory go all the way up to the high court itself.
But good luck getting anyone to go on the record to talk about it.
Lawyers, politicians, even academics beg for off-the-record protection. They fear tarnishing the reputation and credibility of the country’s top court as an institution, annoying the Supreme Court judges they may have to argue cases in front of, or jeopardizing the chance that next year’s looming Quebec vacancy may allow for one of the perceived gaps of this year’s appointment to be closed.
Why is it a mess?
First, Harper appointed a man, Marc Nadon, when many were looking for a restoration of better gender balance on the court. The appointment of Nadon was seen as a missed opportunity to increase the number of women on the top bench back to a high of four. It’s widely believed there were at least two qualified candidates interested in the job.
Second, in Nadon the prime minister picked a former maritime law expert — a field that does not dominate the Supreme Court’s caseload — who has no criminal or constitutional law expertise and no recent or really any experience with the practice of Quebec private law on his resumé.
Third, Harper reached into the ranks of “supernumerary” judges — and despite what Nadon told a Commons committee about his commitment to hearing more complex cases, it does mean semi-retired. Supernumerary judges elect to carry 50 per cent of a normal caseload.
Fourth, Harper selected a judge who is seen as deferential to Parliament and the decisions of government-appointed tribunals, not as someone who will readily call the government to account. One lawyer has made a sardonic index of the appointee’s 25 most recent judgments noting “maximum judgment length: 8 sentences, favourite expression: ‘Appeal dismissed with costs.’”
Most important, Harper’s latest appointee is a Federal Court of Appeal judge drawn neither from the ranks of Quebec’s superior trial or appellate courts nor from the province’s lawyers in private practice — contrary to a fairly clear provision in the Supreme Court of Canada Act.
It’s this point that has led to the court challenge by Toronto lawyer and well-known thorn-in-the-side of federal judges, Rocco Galati. Galati last year succeeded in overturning a provision that allowed judges over the age of 75 to sit as “supernumerary” on cases.
He is outraged by what he sees as a cavalier attitude on the part of the Harper government toward the Supreme Court of Canada, the law that governs it, and the constitutional conventions of the country.
“They’re running this thing like it’s an overnight poker game,” Galati says of the government’s move.
Quebec, he says, is the only province with a guaranteed number of seats on the bench — a clear nod to the nature of the compromises that built the federation.
The Supreme Court of Canada Act was expressly written to make federalism work, and if the government wanted to change it, it needed to change the law, which in turn would take a constitutional amendment that requires unanimous consent of provincial and territorial legislatures. Or the prime minister could have referred the question directly to the Supreme Court, Galati says.
What really boils Galati and others is that Harper clearly saw it coming.
The prime minister tried to inoculate the appointment by seeking an outside legal opinion from retired Supreme Court judge Ian Binnie, who pronounced it was “common sense” to interpret the act to allow the nomination of a Federal Court judge who had previously 10 years practicing law in Quebec. The government then asked two other experts to review Binnie’s opinion: retired Supreme Court judge Louise Charron and constitutional law expert Peter Hogg, who lately has advised the federal government on its national securities regulator case and Senate reform. Both concurred.
But nobody appears to have bothered to ask any legal experts in Quebec to weigh in.
It might have lent credibility to the move, had a Quebec constitutional expert agreed with Harper. On the other hand, it may have blown up in the Conservative government’s face.
One leading Quebec legal expert says there is a strong argument to be made that the Supreme Court of Canada Act was deliberately crafted to point the prime minister to the province’s bar and courts in order to ensure current knowledge of Quebec private law practice is represented on the highest court in the land.
Nadon decided in light of Galati’s challenge not to participate in Supreme Court matters “for the time being,” presumably because he views the challenge to the process as serious, for now at least.
And how long is Nadon supposed to stand aside? Nobody knows.
But should he remain off the bench for long, it throws a major wrench into the high court’s work.
On Thursday and Friday, eight judges instead of nine sat on an important constitutional challenge to Canada’s immigration powers to deport suspected terrorists. And what happens if the judges end up in a tie vote on the decision?
The lower appeal court order is the one that stands — not the Supreme Court’s view of the legislation. In that case, it would send the Mohamed Harkat case — which has now been 11 years before various courts — back for a rehearing at the Federal Court level, as ordered by the Federal Court of Appeal.
There are other major cases on the agenda: an important aboriginal title case, reviews of the Conservative government’s changes to prison and parole laws, and of course, the season blockbuster — Harper’s reference case on Senate reform. Harper wants the high court to rule whether he can abolish or reform the Senate without seeking unanimous consent of the provinces.
That’s one surely the Supreme Court of Canada might want a full bench to hear — whether it leads to unanimous agreement or not.
It certainly is a mess.
Original Article
Source: thestar.com
Author: Tonda MacCharles
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