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Updated: Thu, 01 May 2014 14:37:24 GMT | By CBC News, cbc.ca

Marc Nadon appointment was red-flagged by chief justice

Beverly McLachlin, Chief Justice of the Supreme Court of Canada, delivers a speech in Ottawa, Tuesday, February 5, 2013. THE CANADIAN PRESS/Fred Chartrand Fred Chartrand/ Canadian Press

Beverly McLachlin, Chief Justice of the Supreme Court of Canada, delivers a speech in Ottawa, Tuesday, February 5, 2013. THE CANADIAN PRESS/Fred Chartrand Fred Chartrand/ Canadian Press

Although the chief justice of the Supreme Court warned the government there could be a problem with a federal judge being appointed to the top court, the Conservatives named Justice Marc Nadon anyway.

The appointment of Nadon, a respected Federal Court judge, to replace retired Justice Morris Fish, eventually led to an expensive reference to the Supreme Court about his eligibility, and a public humiliation for Nadon.

Last month, the court issued an opinion that, constitutionally, Nadon was not eligible to represent Quebec because he had been a Federal Court judge in Ottawa for the past 20 years, and was not a sitting Quebec superior or appeals court judge, nor a current member of the Quebec bar.

But months before the top court's decision, Chief Justice Beverly McLachlin had already advised then-Minister of Justice Peter MacKay about a "potential issue" in naming a Federal Court judge to represent Quebec on the highest court.

In an unusual move, McLachlin has publicly replied to allegations she may have lobbied against Nadon's appointment.

A statement issued by the Supreme Court's executive legal officer, Owne Rees, explains McLachlin was consulted by the special parliamentary committee that was tasked with studying a short list of names drawn up by MacKay's office.

The statement from Rees is a response to a question put by journalist John Ivison of the National Post asking for a comment about whether McLachlin "lobbied against Justice Nadon's appointment," as Ivison says a source had told him.

"The chief justice did not lobby the government against the appointment of Justice Nadon," Rees wrote. He said McLachlin or her office flagged a potential problem to both MacKay and the prime minster's chief of staff, Ray Novak, but "did not express any views on the merits of the issue."

It is not unusual for the chief justice to be consulted by the special selection committee whose deliberations are confidential. The committee consists of five MPs, three of them from the government side of the House of Commons, although in previous governments it also included legal experts.

Not an unknown issue

The dubiousness of Nadon's eligibility to become a Supreme Court judge was not exactly an unknown issue, the statement from Rees implies.

"The question concerning the eligibility of a Federal Court judge for appointment to the Supreme Court under the Supreme Court Act was well known," Rees said.

Despite McLachlin's advice, the government commissioned legal opinions about Nadon's appointment from two retired Supreme Court judges, Ian Binnie and Louise Charron.

Binnie, who works as a lawyer for the federal government, was paid over $7,000 for an eight-page opinion stating that Nadon was eligible for the job because he had at an earlier point in his career been a member of the Quebec bar for at least 10 years. Charron, who was paid over $4,000, agreed with Binnie's opinion.

Binnie, who is out of the country, did not respond to emails from CBC News.

That isn't the total sum the government paid for legal opinions about Nadon's appointment. Documents tabled in the Commons set out the costs of choosing and nominating Nadon. The tab includes $80,894 for legal services and another $152,294 for translation and other professional services.

The fact the chief justice of the Supreme Court would issue a rare statement to scotch rumours she had lobbied against Nadon illustrates the tension between the top court and the Harper government.

When the court decided last month the federal government could not unilaterally reform or abolish the Senate, unless it had the consent of most, if not all, of the provinces, Prime Minister Stephen Harper said the top court's opinion "is supported by virtually no Canadian."

Harper also let it be known he was disappointed with the court's opinion on Nadon.

Yet when Nadon's appointment happened, the Supreme Court didn't reject him, but welcomed him into its fold, giving  him an office and a salary.

It was a constitutional challenge from a relatively unknown Toronto lawyer, Rocco Galati, who specializes in terrorism cases, that started the legal process reversing Nadon's appointment.

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