Justice Marc Nadon listens to opening remarks as he appears before a parliamentary committee following his nomination to the Supreme Court of Canada Wednesday October 2, 2013 on Parliament Hill in Ottawa. The Supreme Court of Canada is set to begin grappling with an extraordinary first in its 139-year history: adjudicating the rules for the appointment of one of its own.The eight sitting justices hear arguments Wednesday morning concerning the eligibility of Nadon, the latest appointment by Prime Minister Stephen Harper to the top court. Adrian Wyld/The Canadian Press
The timing of Prime Minister Stephen Harper's departure to Ukraine positioned him perfectly to be well above the myriad of sharp criticisms of today's historic Supreme Court ruling on his appointment of Marc Nadon.
Liberal Leader Justin Trudeau said the rejection of Nadon to the Supreme Court is a reflection of Harper's poor judgment
"One of the fundamental responsibilities of the prime minister of Canada is to get the big things right," Trudeau told reporters in Toronto, "and there is no bigger thing, in many ways, than appointing people to the Supreme Court of Canada."
In a six-to-one decision, Canada's highest court deemed Nadon to be unqualified to sit among them as a Quebec member, and that the changes the government made to the Supreme Court Act (which would have allowed him to sit) were actually unconstitutional.
New Democrat justice critic Françoise Boivin said she was happy with the court's ruling and took aim at the fact that the government passed those changes to the law through an omnibus budget bill. She said she still hasn't digested that two little articles were passed that had the capacity to review historical positions in naming judges.
"Honestly, it's insulting," she said.
"I'm not just saying for Quebec. It's insulting for lawyers, it's insulting for the justice and it's especially insulting for that great institution that is the Supreme Court of Canada," she said.
The matter of constitutionality is a sticking point for retired judge John Gomery, who said the appointment was bad in the first place because Nadon doesn't have the expertise to serve on the court.
"It must be a profound embarrassment for the government," he said in an interview on CBC Radio's The House. "They made what has turned out to be a bad and illegal and unconstitutional appointment and it has sort of exploded in their face."
Marc Nadon 'a victim'
Gomery has known Nadon for a long time and at one point the two worked at the same law firm.
"I'd like to express a certain sympathy for Marc Nadon who didn't deserve the embarrassment or even the humiliation that he has had to endure because of the government's mistakes," he said.
The NDP's Boivin said Nadon "in no way is responsible for anything that is happening right now."
Trudeau agreed. He said Nadon is "really a victim" who's been put in an untenable situation.
"It really is unfortunate that he's having as bad a day as I'm sure he is right now," he said.
"I put the responsibility of that squarely on the shoulders of the prime minister."
Vacant Quebec seat
Looking beyond today's decision, there is still the matter of empty seats on the country's highest bench.
"The first thing [the government] should do is fill the vacancy on the Supreme Court and do it as rapidly as it possibly can, because the Supreme Court needs nine judges and it hasn't had nine judges for a long time now because of this issue," Gomery said.
Boivin said it has been a year now that Quebec has gone without one of its judges on the Supreme Court.
She said Justice Minister Peter MacKay should follow the existing process: talk to lawyers in Quebec and consult the chief justice of Quebec's Superior Court, the Quebec Bar Association and the Canadian Bar Association.
"It's hard to play politics with that decision," she said. "We shouldn't play politics, in my book, with justice issues like this."
The reason behind the urgency is that there are number of important cases to be brought before the court in the coming months, said Trudeau, such as decisions on assisted suicide as well as the ongoing issue of Senate reform.
"All I know is a decision in which Quebec certainly has an important perspective has been studied without a full contingent of Supreme Court justices and that has all sorts of consequences, and now we're going to have to start over again," he said.
"The prime minister will have to hopefully get the appointment right this time," Trudeau said.
"It's time wasted that we don't have time to waste."
Good news for Quebec
Trudeau also touched upon the theme of national unity during his brief remarks to reporters, especially notable as Quebec potentially faces an existential crisis in the upcoming provincial election.
"There is good news in this in that we have that Canadian federalism works," he said.
This decision, he continued, shows that the Supreme Court is "very mindful of protecting Quebec's rights" by ensuring it has strong Quebec voices on the bench.
Quebec Premier Pauline Marois said she is "very happy" with the decision. The leader of the Parti Québécois told reporters Friday the prime minister's appointment was "not acceptable."
That sentiment is shared by the federal Bloc Québécois.
André Bellavance, Bloc MP for Richmond-Arthabaska, said Nadon’s nomination was done without the consent of Quebec and failed to respect the basic conditions of the law.
“The federal government erred from beginning to end,” Bellavance said.
Quebec Justice Minister Bertrand St-Arnaud said he would take the time to properly analyze all the elements of the Supreme Court ruling, but that it was good news for the province and its people.
“Already we understand that it will contribute to assuring the presence of Quebec judges at the heart of the Supreme Court and allow them to share their contemporary experience in Quebec’s particular legal system — of our civil law — to settle disputes coming from Quebec,” St-Arnaud said.
PMO 'genuinely surprised'
For its part, the Prime Minister's Office said it did not expect the outcome of today's ruling.
“We are genuinely surprised by today's decision," PMO spokesperson Stephen Lecce said in a statement.
Lecce said the Justice Department received legal advice from former Supreme Court justices and a constitutional scholar and "none of them saw any merit in the position taken by the court," prior to Nadon's appointment.
Lecce said a multi-party committee was involved in the selection process and didn't express objection to appointing a member of the Federal Court of Appeal to the Supreme Court.
However, the discussions of that committee are not made public and it is unclear whether much was said about Nadon at all.
Boivin was on the committee of MPs that advised on a final list of candidates from which Harper chose Nadon. She said Friday it wasn't a unanimous decision.
The Prime Minister's Office said it will "review the details of the decision and our options going forward.”
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