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In 2013, an attempt by Prime Minister Stephen Harper to appoint Federal Court of Appeal judge Marc Nadon to a Supreme Court vacancy sparked a political and legal dispute. Many observers, including Chief Justice Beverley McLachlin, questioned whether Nadon met the constitutional requirement for a judge from Quebec. But the Harper government proceeded with the nomination. Following a court challenge to the appointment, the federal government asked the Supreme Court to rule on Nadon’s eligibility. A 6–1 majority decided that he did not meet the criteria for a justice from Quebec and was therefore ineligible.
Background
In 2013, an unprecedented dispute erupted over an attempt by Prime Minister Stephen Harper to appoint Marc Nadon, a Federal Court of Appeal judge, to a Supreme Court vacancy for a Quebec seat. (The Constitution requires that three Supreme Court justices be from Quebec. They are able to handle issues related to civil law, which is unique to the province.) Nadon’s name had been on a list prepared by an all-party committee of MPs.
However, soon after Harper announced him as the chosen candidate, complaints surfaced that Nadon did not qualify as being from Quebec. Justice Minister Peter MacKay responded that Nadon had been selected by way of a “non-partisan, transparent and accountable selection process.” But critics noted that a majority government like Harper’s could effectively select its preferred candidate by virtue of holding a majority on the committee.
Controversy Intensifies
As the controversy flared, it emerged that Chief Justice Beverley McLachlin had contacted the Minister of Justice and the Prime Minister’s Office to make sure the government was aware that Nadon might not fit the legal criteria for Quebec appointees to the Supreme Court. Harper later accused the Chief Justice of acting improperly. In response, McLachlin issued a statement saying that she merely wished to ensure the government was aware of the eligibility issue. She said she had not expressed any opinion on the merits of the issue.
Various powerful legal figures came to McLachlin’s defence. Canadian Bar Association president Fred Headon expressed concern that Harper’s comments about the Chief Justice could erode public confidence in the Supreme Court. Headon called on Harper to publicly clarify that McLachlin had acted appropriately.
Harper ignored the critics and went ahead with Nadon’s nomination. But before Nadon could join the court, a Toronto lawyer, Rocco Galati, launched a court challenge to the appointment. The federal government then asked the Supreme Court to rule on Nadon’s eligibility.
Conclusion
The Supreme Court concluded by a 6–1 majority that Nadon did not meet the legislated requirement. It states that appointments for the three Quebec seats on the bench be either sitting judges on Quebec’s Court of Appeal or Superior Court, or current members of the Quebec bar. As a Federal Court of Appeal judge, Nadon was ineligible.
