A constitutional amendment to appoint Nadon?

The government’s at least not ruling it out
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

After Question Period today, the government tabled responses to three sets of order paper questions related to the Marc Nadon appointment and the Supreme Court, questions tabled by Liberal MPs Stephane Dion and Irwin Cotler. You can read those responses here, here and here.

A few items of note.

-The Supreme Court’s ruling on the Nadon reference set out that amending the Supreme Court Act to allow for Federal Court judges to be appointed to fill Quebec’s seats on the high court would amount to a constitutional amendment—requiring the consent of seven provinces representing 50% of the population. The government had previously attempted to amend the Court Act through Parliament.

Mr. Dion asked (see the third link above) whether the government would be pursuing a constitutional amendment. The response: “No decision has been made on this issue.”

The government otherwise argues that the Supreme Court’s decision will have a negative impact, limiting the pool of available judges from Quebec and perhaps limiting the willingness of Quebec judges to accept appointments to the Federal Court.

Would the government really pursue a constitutional amendment? Could it do so tidily without launching wider constitutional negotiations? And, if so, should it have pursued that before wagering on Mr. Nadon’s appointment and the government’s ability to unilaterally amend the Supreme Court Act?

-The government clarifies (see the second link above) the sequence of events around the opinions it sought on the questions raised by Mr. Nadon’s appointment.

When Mr. Nadon’s nomination was announced, the government released an opinion from former Supreme Court justice Ian Binnie, arguing that a Federal Court judge of Mr. Nadon’s experience was eligible and that a Federal Court judge could resign and rejoin the Quebec Bar to become eligible for appointment.

Retired justice Louise Charron and constitutional scholar Peter Hogg were said to agree with Mr. Binnie, but a subsequent response from the government suggested that Ms. Charron had been contracted first. According to the government, Ms. Charron was “was originally asked to provide comment on question one and Justice Binnie was provided with two questions. Justice Charron and Professor Hogg were asked to review the opinion provided by Justice Binnie.” Ms. Charron and Mr. Hogg did not provide their own written opinions, but merely indicated their agreement with Mr. Binnie.

-Was anyone else consulted? Mr. Cotler asked whether the opinion of a Quebec jurist was sought. The government says that is subject to solicitor-client privilege. Mr. Cotler asked whether the Justice Department arrived at an internal opinion. The government says that is subject to solicitor-client privilege. In response to another question, the government also explains that, “Whether the Prime Minister sought, received or reviewed legal advice on this issue, apart from the legal opinion of the Honourable Ian Binnie, is a matter protected by solicitor-client privilege.”

-Back in April, the Prime Minister had mused aloud in the House that “during consultations, all the parties in the House agreed with the idea of appointing a Quebecker from the Federal Court to the Supreme Court.” At the time, Irwin Cotler wondered what precisely the Prime Minister was talking about—particularly because the consultations were supposed to be confidential.

Mr. Cotler put that to the government in one of his order paper questions—question (ss)—but the response provided doesn’t seem to amount to a direct answer.