Justice Marc Nadon is the subject of a legal challenge alleging he is not qualified to occupy one of the three Quebec seats on the court. His critics say he is not familiar enough with Quebec's civil code and has not spent enough time in Quebec. Adrian Wyld/Canadian Press
Prime Minister Stephen Harper's latest choice for the Supreme Court of Canada has been quarantined from the rest of the bench while it hears a legal challenge to his appointment.
The Supreme Court has filed a letter with Canada's attorneys general stating that Marc Nadon is not permitted to have contact with the other eight justices on Canada's top court.
He cannot work on cases and is not allowed to visit his new office or even the court house.
Nadon, a semi-retired Federal Court judge, was appointed by Harper last month to fill one of the three Quebec seats on the nine-member Supreme Court.
However, a Toronto lawyer has taken the highly unusual step of mounting a legal challenge, arguing the Ottawa-based Nadon does not meet the bench and residency requirements for a Quebec representative on the high court.
The Quebec government has also contested the appointment, and the Harper government responded with its own reference to the court seeking guidance.
Nadon to stay away from Ottawa office
The Canadian Press reported last week that Nadon has been given an office in the Supreme Court building just down the street from Parliament Hill and that the reference on his appointment was causing some discomfort within the court.
The court refused to comment for the story on whether Nadon had an office or had taken up residence.
But the following day, new rules of engagement were filed on the court docket "to ensure that the members of the Court are able to deliberate on questions referred to the Court in a manner free from any conflict of interest."
In short, Nadon is to steer well clear of the Supreme Court building and its denizens until the challenges to his appointment are resolved.
"Justice Nadon will not occupy his office or attend at the Court," stated the court correspondence, dated Nov. 1.
"The Court confirms that none of its members has discussed the merit of the (legal) challenge or the reference with Justice Nadon."
Interveners in the government's reference have until Jan. 3, 2014, to submit their arguments, and a hearing is scheduled for the middle of January.
Government anticipated controversy
Nadon, 64, has spent the last two decades on various federal courts and tribunals, leading critics to argue he will not be familiar enough with Quebec's civil code to serve as one of the province's three guaranteed representatives on the high court.
The Conservative government argues that a Federal Court judge, even a supernumerary like Nadon who only carried half a caseload, is perfectly qualified to serve.
Two retired Supreme Court justices and at least one constitutional expert have endorsed the government's view. However, the fact the Conservatives sought out those opinions in advance suggest the government knew Nadon's appointment would be controversial.
And the government tried to hedge its bet, after the appointment, by rewriting a section of the Supreme Court Act in its latest omnibus budget bill to make it explicit that someone in Nadon's circumstances is qualified.
"This is what is called a declaratory provision, which is meant simply to clarify what we believe is the proper interpretation of the existing act," Justice Minister Peter MacKay said Oct. 22 as the government introduced a 300-plus page budget bill.
That same day, the government asked the Supreme Court to weigh in on the constitutionality of Nadon's appointment.
"It is such a mess," said NDP justice critic Françoise Boivin.
"It's so sad. You have nothing but respect for that institution. None of this is their fault."
Nadon is Harper's sixth appointee to the top bench and the first that has caused any significant degree of controversy.
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