Feds sending Nadon question directly to SCC

You wouldn’t expect to find matters relating to the Supreme Court of Canada slipped into a budget bill, but that’s what happened on Parliamnet Hill today.

An amendment “respecting the criteria for appointing judges” to the SCC was buried in more than 350 pages of a budget implementation law tabled in the House of Commons today.

In light of a court challenge to Justice Marc Nadon’s appointment to the country’s top court, Justice Minister Peter MacKay announced today the government is also sending a reference directly to the Supreme Court to “clarify certain eligibility criteria of Supreme Court Justices.” The Barreau du Quebec had asked the prime minister to take this step to speed up resolution of the appoinment controversy.

“Our government will defend the eligibility of longstanding members of the bar in all provinces and territories to sit on the highest court in Canada,” said MacKay in press release clarifying events earlier in the day in the House. “Longstanding members of the Quebec bar should be, and are under the law, treated the same as lawyers in other provinces and territories in Canada.”

The court challenge launched Oct. 8 by lawyer Rocco Galati argues that Federal Court of Appeal judges are not eligible for appointment to the three seats reserved for judges from the province of Quebec. The province of Quebec has also said it would be challening Nadon’s appointment.

As part of today’s budget bill, “the government introduced declaratory provisions to the Supreme Court Act clarifying — without making changes to the existing law — that individuals with at least 10 years with Quebec bar at any time during their career, are eligible to sit on the Supreme Court of Canada as a Quebec member.”

“That’s simply changing the composition of the Supreme Court through the back door,” Rocco Galatai told the Postmedia news service in response to the proposed changes. “By clarifying it, they’re admitting that it didn’t read that way before and if it didn’t read that way before, they are de facto changing the composition of the Supreme Court.”

Prior to Nadon’s appointment, the government got a legal opinion from former SCC justice Ian Binnie, opined that someone who has been an advocate of the Quebec bar for at least 10 years at any time during their career is qualified to be appointed to the top court bench. His view was supported by both Louise Charron, another former SCC judge and and constitutional law expert Peter Hogg.

While he was officially sworn in Oct. 7, Nadon has chosen not to “participate for the time being in matters before the Supreme Court of Canada.”

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