Tory government seeks speedy hearing on Marc Nadon's eligibility for Supreme Court
By Tonda MacCharlesOttawa Bureau
Wed., Oct. 23, 2013timer4 min. read
OTTAWA—The federal Conservative government has asked the Supreme Court of Canada to quickly schedule a hearing on whether its latest judicial appointment to the top court is lawful, citing the pickle the court now finds itself in.
In documents submitted to the court Tuesday and released Wednesday to the Star, the federal cabinet requests a speedy hearing on its latest reference, saying the need to quickly resolve Marc Nadon's eligibility "is essential to restore the effective operation of the Supreme Court of Canada."
The government says Nadon's current absence reduces Quebec's representation on the bench, adds to the workloads of his colleagues, could lengthen court delays in reaching decisions, and "is of significant importance in the administration of justice in Canada."
Nadon stepped aside because his formal Oct. 3 appointment was almost immediately challenged in a separate lawsuit by Toronto lawyer Rocco Galati, who says it had no legislative or constitutional basis.
The government this week came up with a legislative fix. In two direct questions to the Supreme Court of Canada, Prime Minister Stephen Harper asks for the court's stamp of approval on simple interpretive or "declaratory" provisions that the Conservatives inserted into their latest omnibus budget implementation bill.
Those would allow appointments of any judge who "at any time" had 10 years' good standing as a member of the bar in any province, as well as particularly in Quebec — the only province whose membership on the high court is guaranteed and expressly outlined in law. But it does not directly ask the constitutional question in its notice of reference.
In a supplementary motion record seeking a speedy hearing, the federal cabinet gets indirectly at the larger constitutional question at the heart of Galati's challenge — asking the high court "to provide its opinion on the constitutional validity of these provisions."
In other words, the federal government would like the court to agree that it had the constitutional and legislative power to name Nadon instead of a judge from Quebec's practicing bar or superior trial and appellate court, and to uphold the "interpretative" provisions.
But Galati said Wednesday it all means he will not drop his lawsuit.
"It high-handedly skirts my question and the challenge I filed," Galati said. "They have to clearly state the question on the reference. This is nonsense what they're pulling, this is just typical of this government. They have no respect for the rule of law, they didn't before and they don't now; they're playing games with the public."
The federal government acknowledges the whole mess is impeding the high court's operations, with only two Quebec judges sitting and a more onerous workload for Nadon's peers.
So, it says the case should be heard as early as Jan. 13, 2014 — the start of the court's winter session.
"So long as these proceedings are outstanding and the Honourable Mr. Justice Nadon refrains from participating in hearing cases that come before this court, the operations of the court are detrimentally impacted," the federal government said.
His absence hurts Quebec's representation on the court and "could have an impact on the work of the court particularly given its very heavy caseload of criminal and civil appeals," the federal brief said.
It notes that the increased workload for the remaining judges could lead to longer reserve times for decisions or fewer appeals being heard during the fall and possibly next winter's session.
It says it is "imperative that the questions be resolved as quickly as possible, while suggesting it will ensure provincial and territorial justice ministers "and any other party that may be granted leave to intervene" have an opportunity "to be heard."
That's certainly not lost on the judges of the high court who will hear the reference. They have been down one judge since Nadon stepped aside on Oct. 8.
It's not clear whether he will be able to take his seat until after the reference is resolved. He has said only that he won't participate in matters before the court "for the time being."
The federal reference says it was prompted to go straight to the top court after the lawsuit filed by Galati and the Constitutional Rights Centre.
Galati's argument is that the law does "not permit the appointment of a Federal Court of Federal Court of Appeal" judges to the Supreme Court of Canada, and that Nadon's appointment is unconstitutional.
Nadon was plucked from the Federal Court bench in Ottawa, where he spent the past 20 years as judge with its appellate and trial divisions judging federal public law cases. Prior to that he practiced maritime and transportation law in Montreal.
The provincial PQ government said it too would challenge the Nadon appointment. An affidavit by Jonathan Shanks, federal justice lawyer with the public law sector of the department of justice, said Tuesday that the government has not yet been advised what form Quebec's challenge would take. But since it all could ultimately end up appealed to the high court, the federal government launched the reference to reach a conclusion faster, it said.
Stephen Harper, Quebec