News Canada

Supreme Court rejects Harper appointee Marc Nadon 0

Jessica Hume. (Andre Forget/QMI AGENCY)

By Jessica Hume, National Bureau

OTTAWA — Prime Minister Stephen Harper's run of bad luck at the Supreme Court continued Friday after the high court said the resume of his hand-picked appointee doesn't meet the standards to become a justice.

In a 6-1 ruling, the court said Marc Nadon is unqualified to sit on the top court.

Harper will have to go back to the drawing board to fill the vacancy and a second one that comes up in the fall.

He announced Nadon's nomination last September, at which time Nadon was working as a semi-retired judge on the Federal Court of Appeal.

Nadon was officially named to replace one of three Supreme Court judges appointed to represent Quebec.

It was a controversial choice because Quebec nominees must have practised law in Quebec for at least a decade and be a member of the province's bar at the time of appointment.

Nadon indeed practised law in Quebec for more than 10 years, but that was more than 20 years ago. He wasn't a member of the Quebec bar when Harper announced his nomination.

The Supreme Court of Canada Act also says its judges should be picked from provincial superior courts — not from federal courts, such as in Nadon's case.

"A current judge of the Federal Court of Appeal is not eligible for appointment under section six as a person who may be appointed 'from among the advocates of that province,'" the ruling says. "At the time of appointment, the appointee (must) be a current member of the Quebec bar with at least 10 years standing."

The government tried to address the criteria issue by adding a new clause to the Supreme Court of Canada Act in its omnibus budget of 2013.

That clause — Section 6.1 — would have allowed Nadon's appointment despite his not having practised law in Quebec for more than 20 years.

The Supreme Court found the clause unconstitutional and struck it down — a decision that has particular implications now because a Quebec election is underway and the question of sovereignty is again front and centre.

The Supreme Court says the significance of the requirements for Quebec judges goes beyond simply understanding Quebec civil law. The purpose is "to ensure that Quebec's distinct legal traditions and social values are represented on the court, thereby enhancing the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights," the ruling says.

In a statement, the Prime Minister's Office said it was "surprised" by the decision.

"A multi-party committee was also involved in the selection process and at no time did any members, including from the Opposition, object to appointing a member of the Federal Court of Appeal to the Supreme Court, which is itself a federal court."

On Thursday, the Supreme Court ruled the government violated the Constitution when it made retroactive changes to the parole process, effectively scrapping early parole.

"We have to be wondering, who is minding the constitutional house?" NDP justice critic Francoise Boivin said of the government's Supreme Court setbacks.

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