Supreme Court of Canada rejects Harper judicial appointee Marc Nadon

[canada-man]

OTTAWA—The Supreme Court of Canada has issued a stunning rejection of Prime Minister Stephen Harper’s judicial appointment of federal appeals judge Marc Nadon to the country’s top bench.
The high court in a 6-1 ruling said Friday the Conservative government’s appointment last fall of Nadon to one of its own seats reserved for Quebec was an unconstitutional change to the composition of the Supreme Court of Canada, and required the unanimous approval of parliament and the provinces.
The ruling is an astonishing rebuttal of every political and legal argument the Conservative government, Harper’s Justice Minister Peter MacKay and federal lawyers made. It could have implications for the reform of another key federal institution: the senate.

But for now, in siding with Quebec, the high court may have dampened the potentially explosive issue in a province where political parties — now in the midst of an election — had unanimously condemned Harper’s move.
Harper set off a political and legal storm last fall and the Conservatives were forced to try to retroactively change the law via a budget implementation bill, declaring that government could interpret the law on the court’s makeup as it saw fit.
But Chief Justice Beverley McLachlin, Louis LeBel, Rosalie Abella, Thomas Cromwell, Andromache Karakatsanis and Richard Wagner all vehemently disagreed.
They signed Friday’s bombshell ruling in the name of “the Court.” No single judge took authorship.
But their conclusions are clear.
In a historic declaration, the country’s top court said the Supreme Court of Canada is not merely the creation of a federal law, but is “constitutionally entrenched” and has been so even before the 1982 patriation of the Canadian constitution.


http://www.thestar.com/news/canada/...cts_harper_judicial_appointee_marc_nadon.html

 

[blackrock13]

Two SCOC decisions against Harper in two days. Looks like the SCOC is not one of Harpers biggest fans or best strategy.

 

[shack]

Two SCOC decisions against Harper in two days. Looks like the SCOC is not one of Harpers biggest fans or best strategy.

He's a vindictive SOB. Wonder what he's considering. Maybe with his majority he'll try to push something through that would change the rules instead of him actually having to play by the rules.

 

[Aardvark154]

It seems a very "legalistic" decision.

Marc Nadon was born in Québec, his law degree is from the Université de Sherbrooke, he practiced in Québec, he is a member of the Barreau du Québec, but he isn't from Québec enough to be a Puisne Justice???

 

[danmand]

It seems a very "legalistic" decision.

Stop the presses: A legalistic ruling from the supreme court.!!

 

[Aardvark154]

Stop the presses: A legalistic ruling from the supreme court.!!

You would prefer "extremely narrow?"

 

[Butler1000]

You would prefer "extremely narrow?"

My laymans understanding is he was a federal judge and one of the criteria is he is required to have actually served on a Quebec bench which he hasn't.

I suppose in theory a quebec appointed judge should have experience directly with quebec law(making rulings) if he is to properly interpret challenges against Quebec provincial laws brought before the SCC.

 

[MattRoxx]

Nadon's a Quebec judge like Mike Duffy's a PEI senator.

 

[blackrock13]

This was the fourth time the SCOC didn't accept the government argument on four different cases. So much for those TERB members who argued that appointed judges follow who ever appointed them. Five of the judges are Harper appointees.

 

[Aardvark154]

My laymans understanding is he was a federal judge and one of the criteria is he is required to have actually served on a Quebec bench which he hasn't.

I suppose in theory a quebec appointed judge should have experience directly with quebec law(making rulings) if he is to properly interpret challenges against Quebec provincial laws brought before the SCC.

Perhaps one of my learned friends can help me understand But if the following §§ of the Supreme Court Act apply:


5. Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.

6. At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.

Given that Judge Nadon was certainly a member of the Barreau du Québec, for at least 19 years, how did they come to he isn't qualified?

 

[red]

Perhaps one of my learned friends can help me understand But if the following §§ of the Supreme Court Act apply:


5. Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.

6. At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.

Given that Judge Nadon was certainly a member of the Barreau du Québec, for at least 19 years, how did they come to he isn't qualified?

I haven't read the ruling yet but I thought you couldn't be on the federal court and had to have experience in the civil code and apparently he did not

 

[Aardvark154]

I haven't read the ruling yet but I thought you couldn't be on the federal court and had to have experience in the civil code and apparently he did not

Colour me confused, here is the pertinent section of the Supreme Court Act http://laws-lois.justice.gc.ca/eng/acts/S-26/page-2.html#h-4

_ _ _ _ _ _ _ _ _ _ _

OK, here is the decision, which even though this is TERB I should have read first. http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13544/index.do

§§ 5.1 and 6.1 are the sections which were just added to the Supreme Court Act.


The Court held that they see the wording of § 6 as limiting to currently active advocates, which of course a sitting Judge may not be.

Talk about a extremely technical narrow decision!

 

[dcbogey]

I'm not a lawyer. As I understand the ruling, the CSC ruled that the additions to the Supreme court act would require a constitutional amendment - not easy to do in Canada. I have read several reports that he was no longer a member of the bar in Quebec.

If he had resigned from the federal court, been re-admitted to the Bar - even for a day - this would probably not have happened.

I look forward to this court's decision on what Harper wants to do with the Senate.

 

[fuji]

He's a vindictive SOB. Wonder what he's considering. Maybe with his majority he'll try to push something through that would change the rules instead of him actually having to play by the rules.

He tried already. The SCC ruled that any change to its structure would require the support of 7 provinces representing half the population. That is not something he can do.

 

[Aardvark154]

The SCC ruled that any change to its structure would require the support of 7 provinces representing half the population.

Fuji, do you know what the SCC's logic was for holding this?

One would think that given that the Supreme Court Act is a "plain vanilla" Act of Parliament, that what Parliament can create, Parliament can abolish. I'm not arguing that this would be wise, far from it, but I'm wondering on what peg Constitutionally the SCC is hanging its hat in holding the above? Do you know?

 

[mandrill]

Fuji, do you know what the SCC's logic was for holding this?

One would think that given that the Supreme Court Act is a "plain vanilla" Act of Parliament, that what Parliament can create, Parliament can abolish. I'm not arguing that this would be wise, far from it, but I'm wondering on what peg Constitutionally the SCC is hanging its hat in holding the above? Do you know?

My brief reading of the news blurbs suggests that:

1. the SCC has given itself quasi constitutional status based on the old UK common law doctrine that certain norms of procedure and government become constitutionally enshrined after a hallowed amount of time. You will recall that the UK believes it has an "unwritten constitution".

2. As Butler says, the SCC then proceeded to decide that due to the above unwritten constitutional practices, a Quebec appointee must have hands on experience w Quebec provincial laws, not Federal administrative law. Hence, Nadon was ineligible.

It's probably going to be an influential decision.

 

[oldjones]

I haven't read the ruling yet but I thought you couldn't be on the federal court and had to have experience in the civil code and apparently he did not

As the view of the Court was reported, that requirement wasn't mere membership in the Quebec bar, but actual practice which assured the appointee would be familiar with current aspects of the Code Civil. According to the reports, Nadon had primarily (if not exclusively) dealt with maritime (federal) law cases before being appointed a federal judge, to ajudicate such cases.

Letting the appointment stand would be tantamount to preferring a perhaps poorly expressed technicality over the clearly intended principle of the law, and at the highest level of or government, the constitunional framework of the nation. Though we now have an American-style written constitution, it is just another addition to the centuries of British-style constitutional evolution. Amending—even just to clarify—the Supreme Court Act by a footnote in a thousand page budget bill (a confidence vote under closure, with the whips on) hardly meets the standard for full consideration and widespread approval that constitutional amendments deserve.

It's to the Court's credit that they pointedly ignored the unworthy suggestion that a single day's current practice in Québec would satisfy.