The hot mess of the Nadon appointment

Irwin Cotler is unimpressed
The Supreme Court of Canada in Ottawa on Tuesday, July 10, 2012. The court is currently reviewing an appeal regarding the 2011 election in Etobicoke. THE CANADIAN PRESS/Sean Kilpatrick

Liberal MP Irwin Cotler heaps complaints on “l’Affaire Nadon,” none of which have anything to do with hockey.

The Government itself acknowledged that appointing a Federal Judge to a Supreme Court seat from Quebec was a risk. One need only recall that just last August, Justice Minister Peter MacKay was quoted in the National Post saying, “There are provisions right now [of the Supreme Court Act] that could be interpreted as excluding federal judges from Supreme Court appointments.” And yet, Prime Minister Stephen Harper announced Federal Court of Appeal Judge Marc Nadon’s nomination to the Supreme Court of Canada a few weeks later. Therein lies the problem.

The Government did not seek to modify those provisions prior to appointing Justice Nadon. Nor did the Government seek to allow MPs adequate time to review the selection, holding an ad hoc Parliamentary hearing on Nadon a mere 48 hours after revealing the choice of nominee to Parliament and the public.

The appointment was announced, subsequently challenged, and the Government then sought to amend the law retroactively by tacking amendments on to the end of a budget bill that they hurried through Parliament, thereby limiting debate and comment thereupon

… With the April 2013 announcement of Justice Fish’s August retirement, why did it take until October 2013 – and only a week before the start of the Court’s fall term – before MPs and the public were informed of the Government’s nominee for the Supreme Court?

… As it happens, we are now close to one year after Justice Fish’s retirement announcement and – as a result of today’s ruling – we remain with no Justice to fill his seat.

Here, for the sake of reference, is the Canadian Press timeline of events.

That the declaratory amendments to the Supreme Court Act were included in a budget implementation bill adds a certain je ne sais quoi to the situation, but we might debate whether proposing the amendments as a separate and specific bill would have changed the result. Would that have allowed for more time for debate and consideration? Maybe. Would the government have deferred to those who questioned the bill’s legitimacy and retracted the legislation? Maybe not.

As it is, at least this all results in the phrase “economic action plan”—as in, “Economic Action Plan 2013 Act No. 2,” the bill’s short title—making it into a decision of the Supreme Court of Canada, where it shall be preserved for eternity for future legal scholars. (Another victory for branding.)

The relevant clauses—471 and 472— of Bill C-4 were studied by the House justice committee over two meetings, covering three hours of testimony, last November. (It was later studied over two meetings of a Senate committee.) Justice Minister Peter MacKay testified at the second of those meetings and explained the inclusion of the amendments in the budget bill thusly.

… the Economic Action Plan 2013, No. 2 was determined to be the most expeditious and most efficient way of introducing declaratory provisions and ensuring that they are enacted on time to guarantee that federal court judges can be considered in the process of filling upcoming Supreme Court vacancies, the first of which arises next April.

During Senate hearings, Senator Jean-Claude Rivest wondered why the government hadn’t pursued the declaratory amendments before Mr. Nadon’s appointment. Of course, in hindsight, passing the legislation seemingly wouldn’t have mattered if a challenge had resulted in the Supreme Court ruling anyway.

Interestingly, two days before Mr. MacKay’s testimony, constitutional scholar Adam Dodek argued before the House justice committee both that it was improper to include such changes in a budget bill and that it was also improper to move to pass legislation while asking the Supreme Court, through a reference, whether Parliament could enact said legislation (a reference that the government initiated after Mr. Nadon’s appointment was challenged in Federal Court).

I believe this raises the question as to how the Attorney General of Canada, as the legal adviser to the Governor in Council, can both vouch for the legality of clauses 471 and 472 at the same time as he is questioning them in his advice to the Governor in Council directing the reference on the very same subject. The two simply cannot co-exist. Either the government believes that it is within its power to enact clauses 471 and 472, or it is uncertain and requires the advice of the Supreme Court.

In his testimony, Dodek later clarified that he did not think the simultaneousness was unconstitutional, but merely inappropriate. His central opinion was not universally shared—testifying at the second meeting of the committee, professor Hugo Cyr agreed with Dodek’s position, professor Benoit Pelletier disagreed and there was further discussion during Senate hearings with former justice Michel Bastarache and professor Carissima Mathen—but it was put to the Justice Minister by Ms. Boivin.

Ms. Boivin: … Back to Professor Dodek, how can you claim with Bill C-4 when it’s filed in the House that it is in order, but at the same time ask the Supreme Court whether you are in order? I have a bit of a problem seeing some logic between the two.

Mr. MacKay: Mr. Chair, colleagues, I would suggest to you that we’re doing this with a clear intent to provide any future process with the ability to say there is absolute clarity here, that the province of Quebec and the Barreau du Québec are treated the same as any other province or provincial bar in the country. The intent is to have a clarification by the Supreme Court of Canada, which is the ultimate interpreter of this legislation. To make a declaratory provision in the Supreme Court Act will, in my view, close out any present or future misinterpretation. We have a challenge, which is what has been the impetus for these steps.

I would suggest to you, colleague, that we can do two things simultaneously without going outside the law. We can do this in a way that will provide clarity for future appointments. We know that there are future appointments coming. This is the nature of the Supreme Court. There will always be a turnover of judges.

So it is very much a matter of efficiency, expediency, and bringing about the greatest degree of clarity in the short term.

(The constitutionality of legislation, as CP notes, is already a point of some debate as a result of the case of Edgar Schmidt. Mr. Cotler has proposed that all bills be subject to public constitutional scrutiny before being passed.)

A short while after Ms. Boivin had quizzed Mr. MacKay, Liberal MP Sean Casey took his turn, first (seemingly with some sass) pressing the Justice Minister on why the amendments were included in the budget bill  and then on this matter of simultaneous legislation and reference.

Mr.  Casey: In your opening remarks, Mr. Minister, you referenced a future government, and in response to Madame Boivin’s first question you referenced a future process. I take it from that, that the goal of these amendments is to have an impact on future appointments.

Mr. MacKay: Absolutely. Yes.

Mr. Casey: If that is the case, then, would you be amenable, Mr. Minister, to a delay in the implementation of these provisions, a delay in the coming into force of these provisions so that, in effect, we are not asking the Supreme Court a question and then effectively legislating the answer? My question for you is whether you would be amenable to delaying the impact of these provisions to allow the Supreme Court to speak unimpeded.

Mr. MacKay: Not at all. Absolutely not. Our intention is to clarify what we believe is the case and what we believe the Supreme Court will affirm.

Mr.  Casey: So as I understand what you just said to me, you are not in favour of delaying the implementation until the Supreme Court has spoken. You want to have Parliament amend the legislation to say that this is the state of the law, and then ask the Supreme Court what the state of the law is. Do I have that right?

Mr. MacKay: Well, Mr. Casey, you’ve been here a little while now, and you recognize that there is something called the supremacy of Parliament when it comes to the passing of laws. So yes, that’s exactly what I’m saying. We are telling the Supreme Court this is what the legislation means. We’re putting in place a declaratory provision to bring about a greater understanding of the eligibility rules, and at the same time we have sought an opinion from the Supreme Court. That’s how it works, sir.

Mr.  Casey: So we’re going to ask them and tell them at the same time.

Mr. MacKay: You got it.

Mr.  Casey: Brilliant.

Bill C-4 received royal assent on December 12. The Supreme Court began its hearings on the government’s reference a month later. And today it ruled that Parliament could not enact clause 472.

Perhaps the best interpretation of this affair is that the government gambled that its appointee would be in order, a bet that was called by the Toronto lawyer who challenged Mr. Nadon’s appointment. And that, perhaps quite apart from “efficiency” and “expediency,” the government ended up actually wasting Parliament’s time with a clause that went from royal assent to moot in 100 days. (Is there any argument that in passing the legislation, the government might’ve improved its chances of getting the reference to go its way? I invite legal scholars to speculate.)

And what now? There are questions about whether Mr. Nadon has to pay back the salary he was earning as a Supreme Court justice. There is the theory that Mr. Nadon could resign as a federal court judge and rejoin the Quebec bar, but the Globe suggests that’s not feasible. There remain questions about why Nadon was put forward in the first place, there are new questions about the appointment process for Supreme Court justices and still questions, even if just for faculty lounges, about whether the provisions of the Supreme Court Act are reasonable in the first place.