OTTAWA (Reuters) - The Supreme Court of Canada dealt a blow to Conservative Prime Minister Stephen Harper on Friday by blocking a controversial appointment to the high court made by Harper in October.
The court’s sweeping 6-1 decision said Harper’s appointee, Federal Court of Appeal Justice Marc Nadon, did not meet the specific criteria set for taking up one of the seats on the court bench reserved for the province of Quebec. It also struck down retroactive changes to the criteria for the appointment made by the government in December.
The ruling is an embarrassment for the government and means the court will have to continue operating one judge short of its nine-member capacity for a while longer.
The government, operating on the advice of two former Supreme Court justices, had appointed Nadon in October to fill one of three seats reserved for Quebec, but Toronto lawyer Rocco Galati challenged the move. The separatist Quebec government also opposed it. The court has now voided the appointment.
The Supreme Court Act requires that appointees to the court from Quebec be either judges of Quebec’s provincial courts or lawyers with at least 10 years standing with the Quebec Bar Association.
Nadon had been a member of the Quebec Bar for two decades, but that was before his appointment as a federal judge, and he is not a member now.
The court ruled that Quebec appointees must be current provincial judges or current members of the Quebec Bar. It said that changing these conditions would require a constitutional amendment to which all 10 provinces would have to agree.
However, it did allow for a possible loophole: that Nadon resign his judgeship and return to the Quebec Bar for a day in order to be eligible for appointment. The court said it was not asked whether this would be allowed and “(w)e therefore do not decide this issue”.
The government declined to say whether it would try that route.
“We are genuinely surprised by today’s decision,” Harper spokesman Stephen Lecce said. “Prior to Justice Nadon’s appointment, the Department of Justice received legal advice from a former Supreme Court justice, which was reviewed and supported by another former Supreme Court justice as well as a leading constitutional scholar.
“None of them saw any merit in the position taken by the court.”
Canada’s Supreme Court has traditionally been less politicized than the top court in the United States, which typically has been divided between conservative and liberal judges.
But Canada’s prime minister still has the power to appoint people perceived to be aligned with the government’s ideology, and there is no confirmation process in Canada similar to the approval required by the U.S. Senate for court appointees there.
Nadon is a specialist in maritime law, which may not be not a field given to wide ideological differences, but he is perceived by some commentators to be a judicial conservative.
They point to a dissent he wrote against a Federal Court of Appeal ruling that Canada had to seek extradition from the United States of Omar Khadr, a Canadian who confessed to having killed a U.S. soldier in Afghanistan and to conspiring with al Qaeda.
Harper’s Conservative government has pursued a tough-on-crime agenda that has included stiffer sentences and an onus to take the rights of victims into account.
The Supreme Court Act has special criteria for the appointment of judges from Quebec, Canada’s only majority French-speaking province, which draws its legal tradition from France’s civil law rather than English common law.
The court said the purpose of the provisions for Quebec judges “is to ensure not only civil law training and experience on the court, but also to ensure that Quebec’s distinct legal traditions and social values are represented on the court, thereby enhancing the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights.”
Allan Hutchinson, professor at Osgoode Hall Law School in Toronto, said it was a brave decision for the court to make, considering that it had sworn Nadon in as a judge in October.
“There’s something a little bizarre about that, when they say, ‘Yes, you’re in. Actually, now that we’ve thought about it, you’re out.’,” Hutchinson said.
Beyond the immediate implications for the Quebec seat, the case may give a hint as to the court’s thinking on a separate issue the government has brought to its attention: how the Canadian Senate can be changed or even abolished.
The Senate is the upper house of Parliament and all senators are prime ministerial appointments. Harper says he wants to make the way they are chosen more democratic or else abolish the Senate altogether.
University of Ottawa constitutional expert Sebastien Grammond said that if the court thinks provincial unanimity is required to change the criteria for court appointees, an argument could be made that unanimity would also be needed to abolish the Senate.
The name of the case is Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21.
Additional reporting by David Dias in Toronto; Editing by Jeffrey Hodgson; and Peter Galloway