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Nadon is Nay, doh!
March 21, 2014 8:07 AM   Subscribe

Supreme Court of Canada kicks out one of its own. "The Supreme Court has dealt a stunning blow to Prime Minister Stephen Harper, ruling that his latest appointee to that court, Justice Marc Nadon of Quebec, is not legally qualified for the job."
posted by blue_beetle (46 comments total) 12 users marked this as a favorite

 
More specifically, the Supreme Court of Canada has to have three judges from Quebec (which uses a different civil code). Harper appointed a judge who was not currently a member of the Quebec bar, or a judge in Quebec (he was a federal judge), and who had not practiced in Quebec in 20 years. Nadon wasn't some bright light in the judiciary, either.

I don't really understand why Harper did this. The Khadr case?

Nadon could requalify for the Quebec bar and be appointed one of the Quebec seats, or he could be appointed one of the non-Quebec seats.
posted by jeather at 8:13 AM on March 21 [1 favorite]


Jesus.
posted by flippant at 8:17 AM on March 21


The judgement itself is here.
posted by bonehead at 8:20 AM on March 21


Is the dissent argument solid?
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 8:33 AM on March 21


jeather: "I don't really understand why Harper did this. The Khadr case?"

Nadon was an outlier in not being critical of the Harper government's handling of that case which is just the sort of party line toeing that Harper looks for in appointees.
posted by Mitheral at 8:40 AM on March 21 [2 favorites]


Essentially the dissent says that no, a former member of the Quebec bar of 10 years standing is enough while the judgement says that it isn't. It's two different interpretations of the following paragraphs:
5. [Who may be appointed judges] Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.

6. [Three judges from Quebec] At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.
The judgement says that three of the judges have to be currently judges in Quebec or lawyers in Quebec. The dissent says that paragraph 6 is modifying 5, so of the people who are eligible from 5, 3 of them have to have eligibility coming from Quebec but not necessarily current eligibility. I think the first interpretation seems right to a non-lawyer reading of the law, but I am not a lawyer.

I am pleased by this if for no other reason than the other ruling would have caused huge problems during the election campaign.
posted by jeather at 8:41 AM on March 21


The judgement also affirmed the constitutional entrenchment of the SCC in response to the Act attempting to amend it (under which Harper was trying to get Nadon onto the Court). This reaffirmation of the constitutional structure of Canada will likely have repercussions for the Senate Reference. Also, this ruling combined with yesterday's judgement that retroactively changing early parole provisions is unconstitutional points to a strong streak of constitutional protections in this Court.
posted by hepta at 8:46 AM on March 21 [1 favorite]


I think that the more important piece of the decision is that Parliament's attempt to change the Supreme Court Act through a budget bill is unconstitutional, and needs to be ratified by the provinces. This will have huge implications (for better or worse) in any attempt to reform the senate. every time I use the word senate I want to prefix it and say 'imperial senate'.
posted by furtive at 8:48 AM on March 21 [4 favorites]


The Globe and Mail's Jeffery Simpson had a good take on Nadon's appointment, in a piece published before today's decision.

In their smugness, Canadians always believed that no serious check was needed on prime ministerial prerogatives for Supreme Court appointments, unlike Senate confirmation in the United States. As a result, Canada has no procedure for seriously questioning, let alone blocking, a dubious or bad appointment – it was thought that no prime minister would make such a choice.

posted by bowline at 8:50 AM on March 21


Criticism of the original appointment.

Harper up to old tricks with omnibus "Budget" bill to include rule changes to Supreme court.
posted by Mitheral at 8:51 AM on March 21


The dissent makes a very good point in that literally Nadon could have rejoined the bar for a day, been appointed, and that would be fine. That's kind of a stupid result and we shouldn't support decisions that lead to it.

That being said, the volumes of history and context that the majority brings is even more convincing that, perverse or not, it is what Parliament has always intended and they can't change the law now (because of the whole constitution dealio).
posted by Lemurrhea at 8:52 AM on March 21


The main criticism in the dissent appears to be that the Supreme Court's ruling didn't go far enough to clarify the qualifications required for Quebec judges. I would speculate that the Court interpreted the law as narrowly as possible in order to get the result they needed - which, in this case, was to keep a patently unsuitable candidate off their bench. The Supremes don't much like to be messed about with by politicians of Harper's ilk.
posted by Mary Ellen Carter at 8:53 AM on March 21


The dissent makes a very good point in that literally Nadon could have rejoined the bar for a day, been appointed, and that would be fine.

Technically, they stipulate that they have not ruled on that specific scenario (because not asked to), but in doing so suggest that it would be an approach that would satisfy the Constitution. (That's my take anyway.)
posted by Kabanos at 8:55 AM on March 21 [1 favorite]


Here's the part as reported by CP:

"We note in passing that the reference questions do not ask whether a judge of the Federal Court or Federal Court of Appeal who was a former advocate of at least 10 years standing at the Quebec bar could rejoin the Quebec bar for a day in order to be eligible for appointment to this Court under Sec. 6," … "We therefore do not decide this issue."
posted by Kabanos at 9:02 AM on March 21


Kabanos, I think the majority doesn't rule as you mention, but Moldaver's dissent says:
[153] ... A former Quebec superior court judge or advocate of 10 years standing at the Quebec bar could rejoin that bar for a day and thereby regain his or her eligibility for appointment to this Court. In my view, this exposes the hollowness of the currency requirement.

He also makes an argument that, by using the majority's methodology, there's technically no 10 year requirement for Quebec appointees, and that the majority's argument that this requirement exists is a cherry-picking of clauses from s. 6. I'm less convinced by that, but I haven't looked at it carefully enough.

Also, I think it's important to not view this decision as a referendum on Nadon. Dude was a Federal Appeals Court judge for quite a while. He's absolutely qualified to be on the SCC. Just not from Quebec, because of weirdness. We've had far less-well-credentialed appointees before.
posted by Lemurrhea at 9:03 AM on March 21 [1 favorite]


Also, I have been dissapointed not to see this headline anywhere:

NO NADON ADD-ON

(c'mon Toronto Sun, step it up!)
posted by Kabanos at 9:03 AM on March 21 [5 favorites]


I think the first interpretation seems right to a non-lawyer reading of the law

In this case you seem to be in the company of the majority of the judges though, so you got that going for you
posted by Hoopo at 9:24 AM on March 21


The key issue here is "purposive" analysis of the majority, I think, contrasted with Moldaver's statement that "it is not the function of this court to comment on the merits of an appointment.." The majority is interested in the substantive purpose of the relevant sections, the dissent is not.
posted by sfred at 9:26 AM on March 21


Also, I have been disappointed not to see this headline anywhere:

NO NADON ADD-ON


I'm pretty sure it'll be on Bob Loblaw's Law Blog.
posted by New Frontier at 9:42 AM on March 21 [2 favorites]


I'm just glad that the Supreme Court has never ruled that I'm unqualified for my job.

(yet)
posted by blue_beetle at 9:46 AM on March 21


NO NADON ADD-ON

Nadon: Non, eh?
posted by feckless fecal fear mongering at 10:50 AM on March 21


Nadoff, surely.
posted by ZaphodB at 10:53 AM on March 21


...and don't call me Shirley.
posted by feckless fecal fear mongering at 10:55 AM on March 21 [1 favorite]


Harper is astonishingly incompetent at selecting appointees. They always seem to turn out to be crooks, grossly incompetent, or ineligible for the appointment. It speaks a lot for Harper's character, IMO.
posted by five fresh fish at 11:56 AM on March 21 [1 favorite]


Harper is astonishingly incompetent at selecting appointees. They always seem to turn out to be crooks, grossly incompetent, or ineligible for the appointment. It speaks a lot for Harper's character, IMO.


To be fair, I am pretty sure 3 of the justices on the SCC who were in the majority on this decision today were appointed by Harper.
posted by hepta at 12:19 PM on March 21


And Moldaver, who dissented.
posted by hepta at 12:20 PM on March 21


Since no one has chimed in with a US perspective yet, I'll note that down here, you don't even need a law degree to be a (federal) judge or justice. (Of course the president would never appoint a non-lawyer and the Senate would never confirm.) To be Solicitor General, though, you must be "learned in the law."
posted by Xalf at 12:50 PM on March 21


Chaos in Chaonada
posted by Pruitt-Igoe at 12:56 PM on March 21 [1 favorite]


I just had a Scottish friend swear at me for saying:

Nadon, nae on!
posted by feckless fecal fear mongering at 1:11 PM on March 21


An important bit of context for understanding where Harper's original appointment and it's rejection today come from:

In the 2004 federal election, Harper and the Conservatives led in the polls going into the final weekend before the vote. Up to that point, the Liberals had been in power for the previous 11 years, and 20 of the previous 29 years.

Harper had been trying to shake the idea that he was conservative ideologue leading a party of extremists (Canadians generally want moderation in their federal government). He was asked a relatively innocuous question about the potential significance of a change to a Conservative government after so many years of Liberal control. He responded by saying, essentially, that "the [capital L] Liberal orientation of the nation's institutions" would serve as a natural check on a Conservative government. Many corners interpreted this as confirmation that he was just as much of an ideologue as they feared, and the election swung to a Liberal minority a few days later.

Harper finally won a minority in 2006 and have been in power since then.

But Harper and the Reform-Conservatives who bore him to power do genuinely feel that the varied institutions that hold sway over power in Ottawa are biased against them. This Supreme Court appointment was just the latest in am unending series maneuvers to re-orient the culture of power to be more favourable to Harper and those inside and outside of government that support him. The man has aspirations for altering confederation that extend far beyond his tenure in power.
posted by dry white toast at 1:29 PM on March 21 [6 favorites]


I think the heart of this decision is that Harper's appointment (like much of his other policy and law-making) flaunts a century and a half of tradition and convention. The court was put in a very awkward position of how to deal with this, since convention does not lend itself well to legal analysis, and is not justiciable unless the convention is constitutional. Thus it is not surprising that the statutory interpretation analysis of the majority is not watertight. The 'on the surface' interpretation is an appropriate exercise of the judicial role, but the majority judgement reflects much deeper concerns about respect for the judiciary, the rule of law, and the separation of powers more generally. So while statutory interpretation is always controversial, the conventions and constitutional principles that underlie the majority's judgement are correct in my view, and rightfully protected.

Some (but not all) of these principles come to the surface in the judgement:
The purpose of s. 6 is to ensure not only civil law training and experience on the Court, but also to ensure that Quebec’s distinct legal traditions and social values are represented on the Court, thereby enhancing the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights. Put differently, s. 6 protects both the functioning and the legitimacy of the Supreme Court as a general court of appeal for Canada.
Moldaver J., dissenting, disagreed:
I do not agree that s. 6 was intended to ensure that “Quebec’s . . . social values are represented on the Court” (para. 18). Parliament made a deliberate choice to include only objective criteria in ss. 5 and 6. Importing social values — 140 years later — is unsupported by the text and history of the Act.
With respect to Moldaver J., while 'social values' may not have been expressly referenced in the early legislative history, I think most legal, constitutional, and political historians would recognize that these values were present, if not integral, to the bargain of Quebec joining Canada.

That is why I think bringing up the technicality of whether Nadon could have joined the Quebec bar for a day and become eligible is besides the point. The point is the fundamental constitutional convention—that the three Quebec appointments should be consistent with "the historic bargain that gave birth to the Court in 1875." The spirit of Quebec's unique and guaranteed three seats on the bench should not be circumvented by political self-interest, hurried amendments to the Supreme Court Act, or Moldaver J.'s suggestion that someone could rejoin the Quebec bar for a day and become 'by definition' eligible. The majority was right not to have to split hairs and decide this point. The constitutional obligations on Parliament speak for themselves.

I have some sympathy for the dissent of Moldaver J. (despite him probably being the least bilingual among the current judges), as statutory interpretation is always arguable and subject to controversy. But the majority took a stand here and recognized that the constitution elevates the Supreme Court above the mere political whims of Parliament.
posted by ageispolis at 1:58 PM on March 21 [3 favorites]


Xalf beat me to it but: you Canadians and your crazy Commie ideas that judges have to be qualified!

The court actually had to be asked the question/asked to rule on the issue before it could take a step of removing one of its own members, right? This reminds me of the Douglas Adams bit where God, upon being asked too incisive a question, disappears in a puff of logic.
posted by XMLicious at 2:41 PM on March 21


you Canadians and your crazy Commie ideas that judges have to be qualified!

Well we make up for it by letting the government just appoint them, no need to consult with the opposition/confirm/etc. Which kind of relies on the government picking smart people, rather than evil morons.
posted by Lemurrhea at 5:05 PM on March 21 [1 favorite]


Evil morons indeed. How is Vic Toews qualified to be a judge? (Although this rather suggests that Peter MacKay is incompetent in appointing the evil moron.)
posted by sneebler at 5:24 PM on March 21 [2 favorites]


Canadian Bar Association's National Magazine: The Nadon ruling defines the Supreme Court of Canada’s role in the Constitution and has implications for the Senate reference.
posted by Kabanos at 5:29 PM on March 21 [1 favorite]


One thing Harper has been far, far too good at is consolidating his power in ways that not only fly under the radar of most Canadians, but actually makes anyone who notices sound like they're obsessed with procedure or clinically insane. The long-form census and the shutdown of various academic libraries and institutions are not exactly hot-button topics. Patrick Brazeau's new job at a strip club has gotten more traction than the fact that Harper appointed him to his Senate position, or that Harper's chief of staff basically paid the money Mike Duffy was supposed to pay back for housing expenses. The Fair Elections Act disenfranchises people in ways more complex an obscure than just "no poors or youths at the ballot box," leading Elections Canada to post a lengthy rebuttal proposing changes to the act that practically no Canadian has read in full because honestly we all have jobs and families and stuff. And now this: Harper trying to get a judge into the Supreme Court as a Quebec replacement, and then failing to do so because he wasn't Quebecois enough as per the requirements for the special appointment process.

The problem with Bush was that you had so many big things to put on your list of why you should vote for the other candidate, you couldn't possibly recite them all from memory. The problem with Rob Ford is that you just have to point at him and go "THAT'S why he should be kicked out of office," and somehow Toronto hasn't gotten the message. The problem with Stephen Harper is that even attempting to enumerate his excesses of power is a) impossible for all but those with photographic memories and policy wonk backgrounds, and b) liable to put most people to sleep.

I worry that one day, the nation will wake up, and it'll turn out Harper's managed to build a secret underground lair powered by CANDU reactors and protected by the throngs of new inmates he's created thanks to his tough-on-crime legislation, and he managed it all by making improper capital appropriation requests from the Ministry of Natural Resources budget while simultaneously altering the income tax code to divert a portion of all child tax benefits to defense contractors.
posted by chrominance at 7:21 PM on March 21 [10 favorites]


To me, the U.S. equivalent to this was when G.W. Bush put Dick Cheney in charge of his VP selection committee, Cheney came back saying, "me," someone pointed out that they were both from Texas and that the Constitution wasn't cool with that, and so Cheney said, "Huh, guess I'm from Wyoming now."
posted by Navelgazer at 9:34 PM on March 21


Evil morons indeed. How is Vic Toews qualified to be a judge? (Although this rather suggests that Peter MacKay is incompetent in appointing the evil moron.)

You can disagree with him, and there may be a (non-justiciable) convention being violated here about appointing former politicians to the court too quickly, but he's got the substantive experience. From his appointment notice:

"Mr. Justice Toews was a Member of Parliament for twelve years and also served as a member of the Manitoba Legislative Assembly for almost five years. He served as Minister of Public Safety of Canada (2010-2013), President of the Treasury Board of Canada (2007-2010), Minister of Justice and Attorney General of Canada (2006-2007), Justice Critic for the Official Opposition (2000-2006), Attorney General and Minister of Justice, Manitoba (1997-1999), and Minister of Labour of Manitoba (1995-1997).

Mr. Justice Toews also served as Director of Constitutional Law (1987-1991) and Crown Counsel for Criminal Prosecutions (1977-1979), Manitoba Department of Justice. In addition to this, he served as in-house counsel to the Great West Life Assurance Company in from 1991 to 1995 and again in 1999. His main areas of practice were criminal law, constitutional law, administrative law, and employment and labour law."

Nothing about that says to me he's "unqualified" to sit as a trial judge. Will he do a good job when he's not being a politician? Were there better candidates? Different questions.

I should point out of course that one of the little changes Harper's government has made is remove the old "highly qualified" label for judicial candidates, which "left a screening committee to set a low bar – dividing applicants into the qualified and the unqualified."
posted by maledictory at 9:53 PM on March 21


I'm not sure I care to trust the judgement of someone who fucks the babysitter, regardless the details.
posted by five fresh fish at 10:02 PM on March 21


Details.
posted by five fresh fish at 10:28 PM on March 21


That's the first time I've read anonymous's takedown of Vic Toews. Holy shit, what an asshole. It's worse than I remembered. Worse than I picked up through my general news awareness. I knew he was middle-aged and fucking a teen; I didn't connect the rest. What an asshole! Why the hell is he still a judge?
posted by five fresh fish at 10:37 PM on March 21


New Rule: you fuck the babysitter, you can't be a judge.
posted by five fresh fish at 10:37 PM on March 21 [1 favorite]


can I just speak for the non-US mefites and say, actually it is fine if you don't relate this to the US system, it's an interesting story without any connection whatsoever.
posted by wilful at 5:48 AM on March 22 [1 favorite]


maledictory: Nothing about that says to me he's "unqualified" to sit as a trial judge.

I have no idea how someone becomes a judge, but I was expecting more experience as a lawyer, and that time as a politician wouldn't count. In Toews' case, both his political behaviour and his dalliance with the babysitter would seriously lower his score in the box labelled "Judgement".
posted by sneebler at 7:03 AM on March 22


> One thing Harper has been far, far too good at is consolidating his power in ways that not only fly under the radar of most Canadians, but actually makes anyone who notices sound like they're obsessed with procedure or clinically insane.

Canada is like someone who has cancer but doesn't know it yet.
posted by The Card Cheat at 8:00 AM on March 22 [3 favorites]


Chrominance: One thing Harper has been far, far too good at is consolidating his power in ways that not only fly under the radar of most Canadians, but actually makes anyone who notices sound like they're obsessed with procedure or clinically insane.

I see Harper as a serious threat to "Canada as we knew it", but I haven't paid much attention to the details of party politics in the past. I've never been able to understand Harper's behaviour, or why he and his party do some of the things they do. At one time I thought his public coyness, secretive manipulation and commitment to some weird policies were symptoms of his fundamentalist Christianity.

Lately I've been reading Philip Mirowski talking about the Neoliberal thought collective and Agnotology. Mirowski says he's been called a conspiracy theorist for trying to point out how much influence the network of right-wing think-tanks have in the US, but his ideas are well-documented and seem to explain a lot of otherwise hard to comprehend political decision-making.

Harper the economist is well-connected to two North American centers of Neoliberal thought - the Chicago School, and its Canadian incarnation the "Calgary School" at the University of Calgary. Harper and the founders of the Reform Party (eventually took over the Conservative Party of Canada) are well-connected to a the network of free-market business think tanks (Fraser Institute, Canada West Foundation, the Canadian Council of Chief Executives, CD Howe, and more) that are, in turn, related to, founded by, and sometimes funded by a parallel group of US think-tanks (The American Enterprise Institute and a bunch of others). Donald Gutstein has a whole book on how these relationships work.

Harper makes a whole lot more sense as part of this network of Conservative interest groups and thinkers than he does as a traditional Canadian politician. He sees himself as the Straussian man behind the curtain, quietly reorganizing society to bring the fruits of real free-market economics to the ignorant masses. I really think he buys the Straussian Noble Lie, where you do what you think is best without telling anyone what you're up to.
"You won't recognize Canada when I'm through with it" --Stephen Harper, 2006
This Nadon episode is just an example of the kind of structural change he's pursuing, and the only reason we're talking about it is that its failure leaves a wake of questions about what's really going on.
posted by sneebler at 8:03 AM on March 22 [4 favorites]


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