A bit of a pickle

As this issue was about to go to press, the Supreme Court of Canada announced it would hear on Jan. 15 the reference filed by the federal government regarding the Supreme Court Act and the appointment of a Federal Court judge as one of the mandatory three members from Quebec. Just days after Justice Marc Nadon’s appointment was announced and he was sworn in as the newest member of the Supreme Court, Toronto lawyer Rocco Galati, later joined by the Quebec government, filed a challenge to this appointment.

So if the hearing isn’t until mid-January, how long until there’s a decision? It’s not as Liberal MP and Justice critic Irwin Cotler tweeted right after the hearing date was announced “at least two and a half more months of Quebec under-representation at the Supreme Court,” it will be more. On average it takes the top court five to six months to deliver a decision. As it has already sped up the time to hearing, it’s likely the ruling will also come out faster than average but it still won’t be overnight. Let’s say it’s unlikely Nadon will be hearing cases before next spring.

What does that mean for Canadians, the law, the parties to all these cases, and for the court itself? Nadon is sitting on the sidelines until this legal brouhaha is decided. It means in some cases sitting eight judges on panels that should have nine. It could also mean some tension internally as judges who are already working to the limit are pushed to do more. Anyone knows a team in any situation that loses a member leaves the others working harder to fill the gap.

It’s fairly widely known that most judges’ minds are pretty much made up prior to hearings based on factums and other legal research. As such, if it appears it could be a contentious decision, the chief justice has an inkling in advance and can make sure there are seven rather than eight sitting on the case. But then, there’s always been a perception that a case facing the full panel of nine judges will result in a very weighty decision. If there are only seven judges sitting and it ends in a split decision will that result in questions from counsel as to whether two more judges would have made a difference? On occasion, even though judges may have reached a conclusion in advance, counsels’ submissions may sway one member of the bench, who in turn could perhaps sway others. It’s rare but it does happen.

And then there’s always the question of why so much hullabaloo over a judge some deem not worthy of all this legal and constitutional gnashing of teeth. Nadon is 64 and before his appointment had elected to go supernumerary as a judge of the Federal Court. His selection was approved by a multi-party committee but still it was asked, why are we picking someone who only wants to work part-time to join the top court? Others criticized his lack of experience with criminal law. Others cried foul he was not a woman. But none of those complaints is worthy of a court challenge.

The court challenge, and thus the reference case, centres wholly on whether Nadon is entitled to represent Quebec as he has been out of Quebec for too long. The government had to act in light of the controversy and Galati’s challenge but it was aware of the issue and asked two former Supreme Court judges and a top constitutional scholar to weigh in. Ian Binnie opined that as long as he’d been practising for at least 10 years in Quebec, Nadon qualified. Louise Charron and Peter Hogg agreed. Those are some serious legal minds. What’s the chance of the current SCC bench disagreeing with them? Pretty slim. Let’s get Nadon on the bench and put him to work deciding some important cases. Then all the rest of these concerns about fairness will be moot.

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