Top court rejects appointee
OTTAWA—The Supreme Court of Canada delivered a stinging and unequivocal rebuke to the Conservative government today as it rejected Prime Minister Stephen Harper’s latest appointment to the high court’s ranks by a 6-1 margin.
The court said that Marc Nadon, the semi-retired Federal Court of Appeal judge from Quebec, is not eligible to sit on the court because he does not meet the specific requirements for the jurists appointed from that province.
Rocco Galati, the Toronto lawyer who first challenged the Nadon appointment, welcomed the court’s decision, but said it shouldn’t have fallen to an ordinary citizen to raise the issue.
“When I started this, I was very, very clear and convinced that I was right and that this was as clear as a bell to me,” Galati said in an interview from India, where he is travelling.
“In the main, I think it’s a good decision, particularly on the larger issue of the constitutionalization of the court,” Galati noted.
“I’m very happy about that.
“That’s why I put my personal time, energy, and put frankly a lot of money into this that I’ll never get back, in order to clean up the government’s mess,” he added.
“The fact that the court has recognized that . . . the government cannot alter the composition of the court without constitutional amendment, I’m very happy about that as a constitutional lawyer,” Galati said.
The court said Parliament cannot unilaterally change the composition of the Supreme Court because its essential features are constitutionally protected under the Constitution Act.
Nadon was declared ineligible because he came from the Federal Court and did not meet the criteria of either coming from the Quebec Superior Court, the Quebec Court of Appeal, or being a current member of the Quebec bar.
The court’s opinion affects only Quebec appointments, which means there is no impact on current Supreme Court Justice Marshall Rothstein of Manitoba, whom Harper appointed from the Federal Court of Appeal in 2006.
The Tories amended the Supreme Court Act last year to allow the appointment of a jurist who is currently, or has in the past been, a member of the Quebec bar with at least 10 years standing—a provision that applies to Nadon.
At the same time, Harper referred the appointment to the Supreme Court for an opinion.
“The narrow question is thus whether he was eligible for appointment because he had previously been a member of the Quebec bar,” said the ruling, which—in a rare occurrence—was formally written by all six judges in the majority.
“In our view, the answer to this question is no: a current judge of the Federal Court of Appeal is not eligible for appointment.”
The only dissenter was Justice Michael Moldaver, a Harper appointee from Ontario.
The high court said the government did not have the authority to amend the Act, saying “the unanimous consent of Parliament and all provincial legislatures is required for amendments to the Constitution relating to the ‘composition of the Supreme Court.’”