The unappointment of Marc Nadon as slapstick

The government laughs off questions about the attempted appointment of Marc Nadon as the controversy over the Supreme Court continues
Supreme Court of Canada nominee Justice Marc Nadon (L) arrives to testify before an all-party committee to review his nomination with Justice Minister Peter MacKay on Parliament Hill in Ottawa October 2, 2013. REUTERS/Chris Wattie (CANADA - Tags: CRIME LAW POLITICS) - RTR3FIVF

Peter MacKay was apparently concerned for the other side. Or at least surprised that they would ever believe that the government would ever think of doing such a thing.

The NDP’s Megan Leslie, you see, had read the news. And so she was wondering if what was written could possibly be true. And so she went to the authorities.

“The media is reporting on new problems with Marc Nadon’s appointment. It is saying that Conservatives warned Justice Nadon about potential problems and even suggested he resign and join the Quebec bar,” she explained for the House’s benefit. “Can the Prime Minister confirm that this suggestion was made to Justice Nadon? Does he not agree that telling a judge how to circumvent the Supreme Court Act is inappropriate?”

There were groans from the Conservative side.

The Justice Minister stood here incredulous. “Mr. Speaker, they are really going out on a limb now,” he sigh. “I suggest she loosen the chin strap on her tinfoil hat.”

The Conservatives laughed uproariously.

Which is really just as well, because this is basically funny now, isn’t it? It is certainly not serious. Indeed, perhaps this whole affair is better understood as slapstick—House of Cards meets the Three Stooges meets a symposium on constitutional law.

The story is, in its own way, wacky. Government attempts to appoint relatively obscure federal court judge to the Supreme Court, possibly in violation of the Supreme Court Act and despite the Justice Minister having publicly acknowledged that the act might be restrictive less than a month before. At some point, the government apparently asks the appointee to perform a switcheroo that might not have worked anyway. (At the very least, Mr. Nadon might have had to take a few night classes to catch up.) Appointment gets challenged by Toronto lawyer. Government asks Supreme Court for clarity while also using a budget bill to legislate clarity—simultaneously asking the Court whether it was constitutional to amend the act and asserting to Parliament that it was. Supreme Court strikes down appointment and one of the government’s amendments. The Prime Minister proceeds to come very close to breaching the confidentiality of the selection process, the Chief Justice is accused of doing something inappropriate by the Prime Minister’s Office after she dares respond to the allegation of anonymous senior Conservatives and the Supreme Court goes nine months without a full complement of judges.

Nyuk nyuk nyuk.

After ridiculing Ms. Leslie this afternoon, Mr. MacKay then proceeded with three sentences that had more or less nothing to do with the question asked. The minister would not even offer the limited denial—”That was not a request that was made by me”—that he had offered the justice committee a few hours earlier.

NDP justice critic Francoise Boivin stood next and gestured across the aisle. “That, Mr. Speaker, is the Attorney General of Canada,” she said. She did not seem to mean it as a compliment, but the Conservative benches sprang up to applaud their man anyway.

Once the cheers were over, Ms. Boivin returned to the question at hand. “Mr. Speaker, telling Justice Nadon that he should resign and join the Quebec bar shows how low the Conservatives will go,” she said. “It shows that they knew all along that appointing Justice Nadon was a problem. So why was this suggestion made, and by whom?”

Mr. MacKay would not be so easily tricked into explaining anything. “Mr. Speaker,” he said, “as throughout this story, I am not going to comment on unnamed courageous voices who are speaking to the press about this.”

This, of course, is apparently what Chief Justice Beverley McLachlin, she who started it, did wrong. If only she’d left unchallenged a serious allegation of wrongdoing on her part, the Prime Minister’s Office would have had no reason to accuse her of doing something inappropriate. If only she’d been willing to let her behaviour be questioned by anonymous senior Conservatives, she never would have had her behaviour questioned by the Prime Minister’s Office.

The trick, you’ll understand, is to never be too forthcoming. To try to get away with saying as little as possible. Even when and after you might be seen to be explaining.

The Prime Minister, for instance, has said that last week someone suggested he was not aware of the potential eligibility issue under the Supreme Court Act for Federal Court judges nominated to represent Quebec on the high court. Who was it that suggested as much? The Prime Minister’s Office won’t say.

The Justice Minister yesterday said that the government had felt that it had needed to clarify the Chief Justice’s first statement on the anonymous allegations against her. What needed to be clarified? His office won’t say.

The government still has one vacancy to fill on the Supreme Court and it will soon have another. What sort of process will be used to find those nominees? The government won’t say.

As Liberal MP Irwin Cotler has noted, there seems to be an odd discrepancy in the reported timing of the expert opinions the government sought to support the appointment of Marc Nadon. How to explain that? The government won’t say.

Yesterday, Mr. MacKay seemed to suggest—note the last few lines of the third paragraph—that the selection panel that provided a short list to the Prime Minister ahead of Mr. Nadon’s nomination had recommended more than one federal court judge from Quebec. Is that what he was suggesting? His office won’t say. (This afternoon, in an attempt to defend the government’s basic assumption in appointing Marc Nadon, the minister suggested that multiple federal court judges from Quebec had applied for the Supreme Court spot.)

Despite the Prime Minister’s Office having accused the Chief Justice of doing something “inappropriate” and despite a parliamentary secretary’s attempt to plead that “nobody is attacking the Chief Justice’s credibility,” the Prime Minister and the Justice Minister seem basically unwilling to engage with the particulars of the furor now.

You’ll understand though that up until Mr. Nadon’s appointment was rejected, everything was going wonderfully.

“We followed a process that can only be described as the most inclusive ever undertaken by a government with respect to a Supreme Court appointment, but we took an unprecedented step of going further and getting outside advice, which conformed with the decision that we had taken with respect to that appointment,” Mr. MacKay later recounted this afternoon. “We then proceeded to put that name forward, the nomination occurred, and the individual in question was actually sworn in by the Supreme Court. We also went to the unprecedented step of seeking clarification through legislation and then sent it to the Supreme Court for a reference.”

It at least sounds good when you put it that way.

The government obviously wanted Mr. Nadon to have a spot on the Supreme Court. But it’s not clear how much effort it wanted to expend to do so. (See also: Senate reform.) So it gambled on a choice for one of the nine precious seats on our highest court. And however educated the gamble, the government lost.

If only this could all be explained with some lovely phrase like Responsible Resource Development or Economic Action Plan or Jobs, Growth and Long-Term Prosperity. Perhaps going down to eight judges and thus saving on one salary could be explained as Responsible Justice. Emailed statements questioning the Chief Justice’s appropriateness could be part of the government’s new Clarifying Judicial Accountability Action Plan. Not bothering to engage in much of a discussion about the whole matter could be styled as Saving Everyone The Time And Effort So We Can All Remain Focused On The Economy.

Later in the afternoon, Liberal MP Sean Casey wondered why, if the government was really so concerned about the appropriateness of the Chief Justice’s behaviour, it hadn’t ask her to recuse herself from hearing the Nadon reference.

Mr. MacKay was once more astonished.

“Mr. Speaker, far be it from me to tell the Supreme Court chief justice what to do. That is, in fact, the question here,” he said. “I would not do that. That would, I am sure, spark much controversy and members of the opposition standing here demanding my resignation.”

Better, apparently, to say nothing and then casually criticize the Chief Justice’s actions ten months later when she has the temerity to defend herself against anonymous senior Conservatives. Then the opposition will only stand here and demand you apologize.

Mr. MacKay is at least right that one of these courses would have been the more serious.

Shortly thereafter, the Justice Minister would inform the House that he hopes to have a new name for the Court “very soon.” As it is, and in lieu of anything like a serious discussion about any of this, we might merely hope that L’Affair Nadon is now basically over. And that the next nominee is clearly eligible.