Setting Judicial Appointment Standards

"To my knowledge, nothing like this has ever happened with regard to a Supreme Court appointment in Canada's history, and certainly not in the last three of four decades. That makes it a big deal and a big problem because we are politicizing the Supreme Court, in effect, by having this battle."
"It's not cut-and-dry either way. I would consider the appointment legitimate because Marc Nadon was an advocate in Quebec for at least 10 years as required by the Supreme Court Act. And there's no doubt that Mr. Nadon is a Quebec judge despite the fact that he was appointed from the Federal Court of Appeal. His legal education was in Quebec. He hails from Quebec as an individual."
"There will be those who will regard Mr. Nadon as illegitimate if he ends up sitting on the Supreme Court. And that kind of perception is harmful to the legitimacy of the Supreme Court itself, particularly in the eyes of Quebecers. I'm not saying the Supreme Court will crumble and lose all its authority, but this is a significant concern and an unprecedented one."
Emmett Macfarlane, political scientist, University of Waterloo

How much more deferentially inclusive can the Prime Minister get? An all-party panel of Members of Parliament came up with a short list of three candidates to make a Supreme Court appointment in view of the mandatory retirement of former justice Morris Fish. Opinions were sought by the Prime Minister from former Supreme Court Justices Ian Binnie and Louise Charron. One of Canada's most respected constitutional authorities was also brought into the process.

Justice Binnie provided an opinion to the Department of Justice that the selection of Justice Marc Nadon to the Supreme Court met all the criteria of the Supreme Court Act pertaining to such court appointments. There was concurrence from both former justice Charron and also from Peter Hogg, the constitutional authority. "I read the opinion of Ian Binnie, and I agree with it", concluded Mr. Hogg.

But a challenge has been brought forward by Toronto lawyer Rocco Galati who contends that Justice Nadon is not adequately qualified as he would have it, since only judges from Quebec's appeals or superior courts, or lawyers who have belonged to Quebec's bar for at least ten years can legitimately be appointed to the Supreme Court. The issue hinges on whether Justice Nadon is regarded as a Quebecer in legal standing.

He was born in Quebec, practised in the Montreal offices of a law firm, named to the Federal Court in 1993, served on the Federal Court of Appeal, the Competition Tribunal, and the Court Martial Appeal Court of Canada. "Justice Nadon is qualified, and we are certain he will serve the court with distinction", a spokeswoman for Justice Minister Peter MacKay, said.

The Parti Quebecois and the Quebec separatists have a stake in the situation. Their perennial attitude is to malign the role that federal government institutions play in Quebec. Should the current PQ government in Quebec seek to exploit the issues surrounding the appointment of Justice Nadon, the political consequences could be far-reaching, Mr. Macfarlane fears. "I worry that this gives them ammunition". 

Everything is grist for the separatist mill, and forcing the government to agonize over its latest appointment is yet another issue that the PQ loves to gloat on. Even though, on this occasion, their argument does not hinge on the candidate not being sufficiently language-proficient.