OTTAWA — The opposition is raising concerns about a shorthanded bench after newly minted Supreme Court Justice Marc Nadon stepped aside pending the outcome of a legal challenge to his appointment.
Both the NDP and Liberals say the government could have dealt with the matter sooner. Instead, important cases like suspected terrorist Mohamed Harkat’s security certificate challenge and the Senate reference — both of which are coming down the pike this fall — will get short shrift.
“Going into a Senate reference with less than a full complement. Having Quebec underrepresented on the panel, it isn’t an ideal situation,” Liberal justice critic Sean Casey said.
“It’s a concern that could have and should have been addressed by a more timely appointment.”
NDP justice critic Francoise Boivin agreed a full bench is critical for those bringing their cases to the highest court in the land, particularly if they face a split decision. She said the process to find a replacement for Justice Morris Fish should have started immediately after he announced his retirement in April rather than in June when the secretive, all-party selection panel, of which she was a part, was announced.
“It’s kind of a sad situation for the Supreme Court of Canada starting its fall sitting,” she said, noting justice can be slow and it could be a while before he’s back on the job if he decides to wait until the proceedings against him have concluded or the government decides to amend legislation.
That said, not waiting could pose a myriad of problems that has her “head spinning” if the courts eventually conclude Nadon shouldn’t have been appointed.
Despite the federal government’s efforts to fill the Supreme Court bench with mere days to spare before the busy fall session began Wednesday, the high court is officially down a body as Nadon’s fate hangs in the balance.
The former Federal Court judge was sworn in Monday, the same day a Toronto lawyer went to court to challenge his appointment on the basis that the Supreme Court Act doesn’t allow Federal Court justices from Quebec to serve on the top bench. As a result, Nadon said he would hold off on hearing cases.
According to the court’s fall schedule, some 24 cases are set to be heard between now and December. It’s not clear how many Nadon was scheduled to preside over or how many were slated to be heard by all nine members of the Supreme Court. It’s the court’s policy not to discuss the composition of the panels or reveal who will sit on an appeal before a hearing.
Cases cannot be heard by fewer than five judges. They’re usually heard by an odd number of judges — five, seven or nine to avoid evenly split decisions — but it has sometimes sat with eight judges.
Nadon’s eligibility for the job is a matter the government foresaw. Justice Minister Peter MacKay mused in August about amending the Supreme Court Act, noting it “could be interpreted as excluding federal judges from Supreme Court appointments.”
When his nomination was announced last week, it included a legal opinion from former Supreme Court Justice Ian Binnie, who concluded a member of the Federal Court with at least 10 years’ experience as a member of the Quebec bar could be appointed to the Supreme Court. Retired Supreme Court Justice Louise Charron and constitutional expert Peter Hogg both reviewed and agreed with the opinion.
Nadon, 64, most recently spent 12 years as a Federal Court of Appeal judge and eight years on the Federal Court before that. Prior to becoming a judge, he spent two decades as a lawyer specializing in maritime and transportation law at Fasken Martineau in Montreal.
The Supreme Court Act has allotted Quebec three spaces on the top bench because of its unique civil code. At the centre of the debate is whether a Federal Court judge from Quebec is familiar enough with the province’s civil laws, having not had to hear such cases at the federal level — in Nadon’s case, for 20 years.
Boivin called the advance legal opinion an “exceptional” move. Under a gag order not to speak about the deliberations that occurred during the selection process, she suggested it’s not hard to infer that Nadon’s eligibility may have come up and spurred the government to seek advice.
The former lawyer said she personally has concerns about Nadon’s expertise in civil law. Binnie’s decision “doesn’t necessarily shut the matter for me,” she added, noting it’s curious that none of the experts consulted were from Quebec.
tcohen@postmedia.com
Twitter.com/tobicohen
