Apr 6, 2014
Please read Justin Ling’s article on the Nadon reference. Here’s a quick round-up of reactions to the decision.
Adam Dodek equates the decision with a declaration of “constitutional independence”:
The Court demonstrated its independence from government in having the moxie to invalidate the Prime Minister’s appointment of Justice Nadon. But the Court also declared its constitutional independence, holding that the Supreme Court is now protected under the Constitution and cannot be changed except through formal constitutional amendment. The “constitution of the court” – which includes the existence of the Court itself as well as the requirement that three judges must come from the Quebec Court of Appeal, the Quebec Superior Court or existing members of the Quebec bar – can only be changed by unanimous agreement of the federal government and all of the provinces. It is safe to say that is highly unlikely in the foreseeable future.
Underlying the Nadon saga, writes Emmett Macfarlane, is a deeply flawed process of appointments to the Supreme Court:
The lack of transparency and accountability in the existing system of prime ministerial appointments is unacceptable. Despite tepid measures of reform—such as the establishment of an all-party committee to reduce a government longer list of candidates to a short list, and an interview of the appointee before a committee of parliamentarians—the prime minister retains virtually complete discretion and the process itself is conducted entirely behind the scenes.
The all-party committee that develops the short-list of candidates conducts its work in complete secrecy. Not only are its members prohibited from discussing where they stood on deliberations, they are not even allowed to state publicly whether the committee was unanimous on the short-list that it developed. It is absurd that the opposition parties would even agree to take part in a practice that basically serves only to put a bipartisan stamp of legitimacy on the outcome.
Irwin Cotler echoes the same thought:
Indeed, beyond the issue of Nadon’s eligibility for appointment, concerns remain respecting the process of consultation, vetting, and the criteria for appointment. As I noted when Nadon’s nomination was first announced – parliament was informed who was chosen, but not why they were chosen. This is important to reveal because, for example, Justice Fish was an expert in criminal law and it may be that his successor ought to have the same subject matter expertise and experience – a key consideration of which parliament should be informed when a nominee is announced.
Additional concerns remain regarding appointments more generally. It is worth considering that out of the six justices appointed by Prime Minister Harper, five have been male. Moreover, how meaningfully was Quebec consulted if mere days after the appointment and announcement of changes to the law the province spoke of considering its “options”?
Not much commentary from the Quebec press yet, but we'll be sure to update soon.