Lawmakers Vs Jurists

In a parliamentary democracy lawmakers are given the trust of the electorate to govern a country to the best of their ability to ensure that democracy and all its values prevail for the good of society. The Government of Canada, through a choice expressed by the Prime Minister, Stephen Harper, nominated a Quebec-born and -practised justice, currently on the Federal Court of Appeal, to fill in a gap on the Supreme Court of Canada.

Government lawyers pre-assessed the qualifications of the nominee and two former Supreme Court Justices were asked for their opinion, along with a highly respected constitutional expert; all were of the opinion that the choice had no problems associated with it. The Supreme Court of Canada Justices finally rendered their opinion, one dissenting, the remainder assenting to -- refusal of the government choice to join them on the Bench.

In their final judgement the majority expression resulted in the ruling refusing to welcome Judge Marc Nadon to the Supreme Court of Canada. He did not fit the bill of representing Quebec's best interests on the Court. And to demonstrate their complete impartiality he was repeatedly referred to in the 48-page ruling as the "supernumerary", a rather [deliberately] demeaning term.

The Supreme Court justices did demonstrate that though most of them were themselves Stephen Harper appointees, they were independent and sufficiently so as to deny him his wish to elevate this seasoned justice to the heights that they themselves enjoy. Pity, that. But there was one dissenting voice, that of Judge Michael Moldaver; his portion of the document was 13 pages in length. And among other sentiments he expressed were these:

"That [whether former Quebec lawyers meet eligibility requirements as former lawyers would anywhere else] is a legal issue, not a political one. It is not the function of this court to comment on the merits of an appointment or the selection process that led to it.
"These are political matters that belong to the executive branch of government. They form no part of our mandate."
"If Parliament had intended to distinguish Quebec appointees from other appointees by requiring that Quebec judges be current judges or current advocates, surely it would have said so in clear terms. It would not have masked this crucial distinction between Quebec candidates and non-Quebec candidates by using words as ambiguous and inconclusive as 'from among'."

Incidental background details -- such as that Justice Nadon issued a 2009 dissent against the cseourt order repatriating Canadian child terrorist Omar Khadr from the U.S.-operated Guantanamo Bay prison, and that the independent Toronto-based lawyer Rocco Galati who opposition of the government's nomination of Justice Nadon for the Supreme Court had been the catalyst of the challenge, had once defended Mr. Khadr's older brother, Abdurahman Khadr, also a Guantanamo detainee -- may be instructive in what followed.

Dealing with Khadr, according to Judge Nadon back in 2009 "was a matter best left to the Executive" the court ordering his repatriation constituted "direct interference into Canada's conduct of its foreign affairs", he wrote at the time. Endearing the judge to the government and estranging him from the court.

Which ruled on Friday in a 6-1 decision that Judge Nadon was constitutionally ineligible to sit as a Quebec judge on the Supreme(ly-activist) Court of Canada.