The Marc Nadon riddle

An appointment shrouded in secrecy, now subject to innuendo

Yesterday during Question Period, on the matter of Marc Nadon, the Prime Minister offered that “during hearings and consultations, the NDP said that it did not object to appointing a Quebecker from the Federal Court to the Supreme Court. Now, the NDP has changed its tune.”

Thomas Mulcair responded as so.

Mr. Speaker, it is one of two things: either the Prime Minister is revealing a secret that he does not have the right to tell or he is not telling the truth. I can tell you that he is not betraying a secret because what he just said is the opposite of the truth.

This is a bit of a riddle.

For our purposes here, there were two basic parts to the Supreme Court selection process: a multi-party panel of MPs that consults privately and recommends three names to the government in confidence and a multi-party committee that questions the government’s chosen nominee after he or she has been selected from that list of three.

As noted last week, the PMO’s first response to the rejection of Marc Nadon included the declaration that “A multi-party committee was also involved in the selection process and at no time did any Members, including from the Opposition, object to appointing a member of the Federal Court of Appeal to the Supreme Court, which is itself a federal court.”

This was apparently meant to be in reference to the public committee hearing, not the secret deliberations of the multi-party selection panel. In that regard, the statement is basically true. If you review the transcript of that hearing, you won’t find any statement of outright objection to the idea—though the NDP’s Francoise Boivin did ask questions about the federal court and Mr. Nadon’s knowledge of civil law.

But now Mr. Mulcair says there is something here that is not true. Ms. Boivin, a member of the selection panel that deliberated in secret, has said that the vote to recommend names to government was not unanimous and Mr. Mulcair’s office says the NDP leader was making the same point as Ms. Boivin. But that doesn’t necessarily means there was a specific objection to Mr. Nadon on the grounds that he did not meet the requirements of the Supreme Court Act. I asked that question of the NDP and was told they couldn’t tell me because, of course, the proceedings occurred in camera.

Meanwhile, Liberal MP Irwin Cotler has quickly jumped on a separate, but similar comment made by the Prime Minister said yesterday, this time in response to a question from Justin Trudeau—”pendant les consultations, tous les partis de cette Chambre étaient d’accord avec l’idée qu’on pouvait nommer un Québécois de la Cour fédérale à la Cour suprême.” Mr. Cotler piles up a number of questions on this.

(i) to what consultations is the Prime Minister referring, (ii) was the Prime Minister part of these consultations and if so in what capacity, (iii) if the Prime Minister was not part of these consultations, by what means was he informed of their contents, (iv) to what extent are these consultations public, (v) if these consultations were public, in what manner can records of them be accessed, (vi) if these consultations were not public, are their contents protected by any privilege or confidentiality agreement and if so, what are the consequences for any individual breaking consultation confidentiality, if any, (vii) on what basis was this statement made, (viii) how can a party involved in these consultations express its disagreement “avec l’idée qu’on pouvait nommer un Québécois de la Cour fédérale à la Cour supreme”, (ix) how can a disagreement, such as the Prime Minister suggests did not occur, be made public within the ordinary course of consultations[?]

This is all rather awkward. (I’ve asked the PMO to explain Mr. Harper’s comments and will update this with whatever response I receive.)

Even still, we probably end up with a bunch of questions about the process. Should the proceedings of the selection panel remain entirely confidential? Should the New Democrats or Liberals have been expected to express any objections more quickly? Should the entire process be overhauled?

Granted, it doesn’t necessarily follow that a different process would’ve stopped Mr. Nadon’s nomination any earlier—if the government was fairly certain it would win any appeal of his qualifications, it might have gone ahead anyway.

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