The sketch: Trying to obscure blame for the Marc Nadon appointment

Peter MacKay defers and deflects

So the government side does not seem in any great hurry just yet to the clean up the mess of Marc Nadon’s appointment to the Supreme Court.

“Mr. Speaker, the Supreme Court rejected the appointment of Marc Nadon to the highest court in the land,” Thomas Mulcair recapped this afternoon in case anyone had missed Friday’s news. “The judgment of the Court is clear: the Prime Minister appointed someone who was not eligible and amended the law of the Supreme Court unilaterally and illegally.”

Well, when you put it that way, it does sound quite bad. But hey, sometimes you take a chance (with one of the nine appointments to the highest court in the country) and it doesn’t work out.

“Can Minister of Justice definitively say,” Mr. Mulcair now wondered, “that the Conservatives will accept the decision of the Supreme Court, that the appointment of Marc Nadon is unacceptable and they will not try to circumvent the judgment in any way whatsoever?”

Mr. MacKay might have at least offered this as a premise, but the government is apparently so far unwilling to concede even this much.

“Mr. Speaker, before the appointment of Justice Nadon, the Department of Justice  received legal advice from a former judge of the Supreme Court, Louise Charron. This review was analyzed by another former justice of the Supreme Court as well as a distinguished professor and expert of constitutional law,” the Justice Minister recounted. “That is why we were genuinely surprised by the decision of the Supreme Court. I think all parties agree that Justice Nadon is a eminent and respected lawyer. We will study the details of the decision.”

That the government was surprised on Friday seems plausible—one has to presume that the Prime Minister would not have bothered appointing Mr. Nadon unless he was fairly comfortable with the odds of winning that bet. But what about the rest of it? Is the Prime Minister getting bad advice? Whose idea was it to pick Mr. Nadon? Why him? What should be done with the appointment process? What now for a nominee? How much longer until the vacant seat on the Court is assigned? (And, whatever the identity of the next appointee, is the applicable law here worth amending for future use?)

There will presumably be time for at least some of such questions, but not just yet, for first the government must deflect the blame you might wish to assign to it for the fact  the Supreme Court has gone seven months now without a ninth judge.

“Mr. Speaker, as my honourable friend would know, there was broad consultation with this process,” Mr. MacKay reported after Liberal MP Stephane Dion had reminded him that this was the first time since Confederation that the Supreme Court had disqualified an appointee, “which included consultation certainly with Quebec, with its Chief Justice, with the Attorney General of Quebec. There was an all-party committee of course that looked at the qualifications of Mr. Justice Nadon. We also sought information from retired Supreme Court justices and a constitutional expert with respect to the path that was followed.”

It is at least heartening to see the government’s deference to expert opinion. And it is potentially heartening that the Conservative side, save for a backbencher or three, has not so far made this a case of tyrannical liberals running amok in their robes (granted, it’s a bit hard to make bogeymen of the Supreme Court justices when your Prime Minister nominated five of them—three of whom sided against the government on the matter of Mr. Nadon).

When the NDP’s Francoise Boivin stood to question the minister, Mr. MacKay expounded and expanded on his consultations—”the Attorney General of Quebec, the Chief Justice of Quebec, the Chief Justice of the Superior Court of Quebec, the Chief Justice of the Federal Court of Appeal, the Chief Judge of the Federal Court, as well as representatives of major legal associations, including the Barreau du Québec and the association of Canadian bars.”

How many of those recommended Mr. Nadon? How many were presented with the possibility of Mr. Nadon? How many were asked about the possibility of nominating a Federal Court judge?

Ms. Boivin had Mr. MacKay on at least one of those listed.

“Mr. Speaker, to hear what people give us as a suggestion, it is one thing, listening is another,” she shot back. “It will be recalled that the Minister of Justice of Quebec has made it clear that Justice Nadon was not even part of its recommendations.”

Now, Ms. Boivin would attempt to connect dots.

“Canadians can clearly see that Conservatives have no one to blame but themselves for this mess,” she continued. “Conservatives happily ignored offensive comments from Vic Toews about how his critics stand with the child pornographers and appointed him to a plum patronage position on the Manitoba bench just months after leaving politics.”

“Shame!” called various New Democrats. “Shame!”

Ms. Boivin’s time ran out shortly thereafter, leaving her to put her question without the benefit of a microphone, the New Democrats standing to applaud when she had finally ceded the floor.

“Mr. Speaker, as the honourable member knows, there is a judicial advisory committee that provides the names, of which Mr. Justice Toews was put forward,” Mr. MacKay came back, stressing the “Mr.” and turning his head rather dramatically to the opposition side.

“Ohhhh!” mocked the New Democrats of the former minister’s new honorific.

“She would know that well as a member of the committee that vetted the names that came from Quebec,” Mr. MacKay continued of a committee that conducted its business entirely in secret. “She was a member of that committee and I appreciated her participation.”

Now Mr. MacKay thought he had Ms. Boivin on a point.

“Speaking of Mr. Nadon, someone said, ‘He’s a great judge. He’s a brilliant legal mind,” he reported, left hand in pocked, right hand holding a white piece of paper with the dramatic quote. “Who said that? The member for Gatineau.”

“Ohhhh!” cried the Conservatives, Ms. Boivin being said member.

“Oops!” mocked a voice from the Conservative side. “Oops!”

Here at least is a word that Mr. MacKay might’ve offered himself to describe this affair.

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