She Said/He Said : Chief Lawmaker/Chief Justice

The Supreme Court Act (Supreme Court of Canada) requires that three seats be reserved on the Court for Quebec. Quebec judges are to be appointed "from among judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province". Prime Minister Stephen Harper's appointee to fill the third vacant Quebec seat on the Court had never held one of the judicial positions specified. He had practised in Quebec as a lawyer for 20 years, and more latterly was a judge of the Federal Court.

The question hovered whether he qualified as "from among" Quebec's "advocates". Having practised in the province for close to 20 years, it would seem he should qualify; trained in Quebec, and practising there surely accounts for something? Nowhere does it specify that a nominee must be a current advocate in the province. A disagreement emerged between the Chief Justice of the Supreme Court, Beverley McLachlin and the Prime Minister over the appointment of Justice Marc Nadon. 

"Neither the Prime Minister nor the Minister of Justice would ever call a sitting judge on a matter that is or may be before their court."
"The Chief Justice initiated the call to the Minister of Justice. After the Minister received her call he advised the Prime Minister that given the subject she wished to raise, taking a phone call from the Chief Justice would be inadvisable and inappropriate. The Prime Minister agreed and did not take her call."
"The Department of Justice sought outside legal advice from a former Supreme Court Justice on eligibility requirements of federal court judges for the Supreme Court of Canada. This legal advice was reviewed and supported by another former Supreme Court Justice as well as a leading constitutional scholar and was made public. None of these legal experts saw any merit in the position eventually taken by the Court and their views were similar to the dissenting opinion of Justice Moldaver."
PMO explanation

Chief Justice McLachlin appears to have felt unease about the pending appointment of Justice Nadon. She appeared to clarify her position as to be open-minded, not meaning to "express any opinion as to the merits of the eligibility issue"; her purpose, she explained through a spokesman of her office, was that she "wished to ensure that the government was aware" of some misgivings she felt, and to alert them to that fact.

When Justice Nadon was finally selected as the nominee for the Supreme Court, she made the conclusion that a "requirement of current membership in the Quebec bar has been in place -- unambiguous and unchanged -- since 1875"; a statement that appears to some to be rather unambiguously a matter of personal interpretation. She had a message to convey and that message was that Justice Nadon was "ineligible" for the post.

Yet, as political scientist Emmett Macfarlane noted if the "unambiguous" error of proposing a non-lawyer for the Court appointment was so blatant, the sitting judges should have refused to swear in the nominee. Instead, the Court did indeed swear in Justice Nadon, with the Chief Justice presiding, leading to the obvious conclusion that his ineligibility had not been "unambiguous". Which is it, then?

Justice Moldaver concluded that Judge Nadon was indeed eligible, and former Supreme Court justices Binnie and Charron agreed with him. And they are not the only experts on the judiciary who reached that conclusion. It took a Toronto lawyer with a hate on for the Prime Minister to file a challenge to the appointment in the Federal Court.

The court's decision, with the majority finding the appointment unconstitutional seems, rather than a reasoned, judicial finding, to be one marked by an underhanded intention on the part of some of the justices to carry on in what has become a modern-day tradition of defying this Conservative-led government. An activist court that, even pre-dating the current administration, saw fit to make decisions that did not necessarily reflect the broad general social choices of the public.

"On April 22, 2013, as a courtesy, the Chief Justice met with the Prime Minister to give him Justice Fish's retirement letter. As is customary, they briefly discussed the needs of the Supreme Court of Canada."
On July 29, 2013, as part of the usual process the Chief Justice met with the Parliamentary committee regarding the appointment of Justice Fish's successor. She provided the committee with her views on the needs of the Supreme Court.:
"On July 31, 2013, the Chief Justice's office called the Minister of Justice's office and the Prime Minister's Chief of Staff, Mr. Novak, to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court. Later that day, the Chief Justice spoke with the Minister of Justice, Mr. MacKay, to flag the potential issue. The Chief Justice's office also made preliminary inquiries to set up a call or meeting with the Prime Minister, but ultimately the Chief Justice decided not to pursue a call or meeting."
Owen Rees, Chief Justice executive legal officer

A tinge of personal malice appeared to surface on the wording of the rejection of the nominee by the majority Supreme Court decision, repeatedly referring in what can only be described as a gratuitously disdainful manner, to Justice Marc Nadon as “supernumerary”. Two years yet to go for Chief Justice McLachlin?