What can Stephen Harper do about Marc Nadon?

That the Supreme Court might disagree with the government’s interpretation of Section 6 of the Supreme Court Act was suggested to the Justice Minister during hearings on the relevant clauses of last fall’s budget bill. To the House justice committee, Peter MacKay offered only confidence in the government’s position. To the Senate committee, he at least conceded that this scenario would be interesting.

Senator Frum: Minister, thank you very much for your time today. I think you’ve done an excellent job helping us understand this bill before us.

But as has been discussed, the Supreme Court will be hearing this reference, I think, starting January 15. And do you think there is any chance we could end up with the Supreme Court answering the question before them in a way that will clash with the proposed declaratory provisions, and, if that happens, what next?

Mr. MacKay: Well, that’s a very interesting scenario, and I’m going to choose my words carefully because I don’t want to be seen to in any way attempt to presume or pre-empt what the Supreme Court will do with this.

It is simply our contention that providing these declaratory additions, if you will, or interpretations to this legislation that we’re doing our job as legislators, as the executive branch, bringing forward these provisions for which there is precedent — the Régie des rentes du Québec v. Canada Bread Company Ltd. case I mentioned. And the Supreme Court itself has ruled on the issue of declaratory provisions in law.

They will do what they will do. They will examine precedent, look at the legislation in considerable detail, apply the very keen mind that is the Supreme Court in every way, and listen to the arguments of learned counsel.

But I would suggest it is very much our prerogative — the prerogative of the Parliament of Canada, the executive branch, but the Senate — to do its job in passing laws that are for the governance, for the inclusion and for the fairness of enabling the court itself.

So again, it is a very interesting scenario that the court is looking inward in determining its own eligibility. We are going back literally to the time of Confederation when we’re examining this bill. And it is quite remarkable that it has taken this long. It is the advent of the Federal Court that has more or less created this scenario in which we find ourselves.

But I will not prejudge what the judges will say. I will suggest that the fact that we have taken these two tracks should be seen as a reflection of the seriousness that we place on our position, which is that Quebec should be given equal opportunity to have its representatives serve on the high court.

In response to the court’s decision Friday—here is a straightforward explainer of that decision from a Queen’s professor—the Prime Minister’s Office responded as follows.

“We are genuinely surprised by today’s decision. Prior to Justice Nadon’s appointment, the Department of Justice received legal advice from a former Supreme Court justice, which was reviewed and supported by another former Supreme Court justice as well as a leading constitutional scholar. None of them saw any merit in the position taken by the Court.

“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. As even the Opposition has acknowledged, Mr Justice Nadon is a distinguished and respected legal mind.

“We will review the details of the decision and our options going forward.”

That second paragraph is a cute attempt to insulate the government from criticism (or at least share the blame), but it’s a complicated claim to make. The selection process, at least so far as MPs are involved, is a two-step: a committee of five MPs (three Conservatives, one New Democrat and one Liberal) met to reduce a long-list of candidates to a short-list and then, once the government had selected a nominee from that short-list, a committee of MPs questioned the nominee (Marc Nadon).

Only the latter is public. The proceedings of the former are confidential—we don’t know how Mr. Nadon’s name came up, whether any questions were raised about his qualifications or how the MPs ultimately voted on the short-list. The PMO’s comment apparently only applies to the latter. (Of that hearing, Liberal MP Irwin Cotler has complained that MPs had only 48 hours to prepare.) The government released legal opinions to address the question of his eligibility when Mr. Nadon’s nomination was announced, but the issue might not have become a focus until the appointment was formally challenged (a week after the public hearing on Parliament Hill) and Mr. Nadon decided to recuse himself pending that challenge.

(It’s a small thing, but the use of the adjective “genuinely” to describes one’s surprise, particularly if one is involved in politics, is also kind of funny. I think people use “genuinely” and “sincerely” in these cases when they actually mean “real” or “very.” Unless they mean to concede that sometimes they express surprise when they aren’t actually surprised.)

A trio of Conservative MPs have grumbled about the decision via Twitter—Bob Zimmer putting in a particular amount of effort to question the Supreme Court. And on The West Block this weekend, Tom Clark put one of Mr. Zimmer’s comments to Bob Dechert, parliamentary secretary to the Justice Minister.

Tom Clark: Let me to start off, yesterday one of your colleagues, a fellow Conservative MP went on Twitter and among the things he said was this. This is Bob Zimmer. He said, “We, as elected officials, enact legislation and it is the courts job to enforce. Period.” Is that how you see things? Is that how you see the role of the Supreme Court of Canada?

Bob Dechert: Well of course not, there is the Constitution, there is the Charter of Rights and all legislation has to comply with the Constitution and the Charter of Rights and Freedoms. In this particular case, as I think you mentioned in your previous piece, the government did have the opinion of a former Supreme Court Justice, Ian Binnie, confirmed by former Supreme Court Justice, Louise Charron, and also endorsed by Canada’s foremost Constitutional expert, Professor Peter Hogg, that a federal court judge from Quebec met the requirements of the Supreme Court of Canada Act. So maybe this was a grey area and it’s been clarified.

Later, Clark asked Mr. Dechert whether he would “rule out trying to get Marc Nadon on the court through some other means” and Mr. Dechert said “I think all the options are on the table and the Prime Minister will be looking at those.” That’s a very interesting suggestion, but it might be tempered by Mr. Dechert’s subsequent two sentences.

As I said, I don’t wish to speak for him or for the minister of justice. I haven’t had a chance to speak to either of them since this decision but certainly they’re looking at the options.

What, conceivably, are the options for appointing Mr. Nadon to the court? The government could go to the provinces with a proposal to amend the Supreme Court Act. There’s a theory that he could rejoin the Quebec bar for a day and thus become eligible, but there’s a question about what is required to rejoin the bar and, even if he did rejoin the bar and was thus reappointed, that appointment might be challenged. Or maybe the federal government could, as Emmett Macfarlane suggests, appoint Mr. Nadon to a Quebec court and then appoint him to the Supreme Court. Or maybe, as suggested here, Mr. Nadon would first have to rejoin the Quebec bar to be appointed to a Quebec court.

Macfarlane’s hope is that Mr. Nadon avoids any and all of this by pulling himself out of contention. In an interview with the CBC, retired justice John Gomery suggested Mr. Nadon likely wouldn’t want to try to get around the Supreme Court ruling.

Update 7:00pm. The Globe’s Sean Fine adds another theory to complicate the idea of reappointing Mr. Nadon: it might help the separatists.