Apr 6, 2014
Here’s a second serving of Nadon reactions, collected over the weekend, during which we were told that, for the government, “all options are on the table”, meaning that it won’t rule out reappointing Nadon to the top court by other means.
Anything is possible, but this is a highly unlikely scenario for a number reasons. Primarily at this stage, the government will probably want to quickly fill the vacancy and move on. Erin Crandall explains why:
Finally, the entire Nadon affair has important consequences for Quebec politics. The province is currently in the midst of a closely fought election campaign, pitting the governing Parti Québécois (PQ) against a resurgent Liberal Party. The PQ draws a great deal of its support from Quebec sovereigntists, and a different decision in the Nadon case would almost certainly have been touted as proof that the province’s interests cannot be adequately protected while still part of Canada. The SCC’s decision yesterday helps to diffuse that particular controversy and refocuses the race on other issues.
Yves Boisvert gives some key historical context in this regard:
This judgment handed down by the Supreme Court, as spectacular as it is, follows its framework of “cooperative federalism”.
Rarely, however, have Quebec’s “autonomist” arguments succeeded so well.
I am convinced that the Supreme Court would never have rendered such a judgment 30 or 40 years ago. Never.
[Our translation]
True or not, one thing is certain: Maurice Duplessis' line that "the Supreme Court of Canada is like the Tower of Pisa - it always leans on the same side" now has to make room for at least one significant exception.
That said, not everyone agrees with the majority (though it would appear that most of the initiatial commentary is supportive). Leonid Sirota, for one, is in Moldaver’s corner:
Finally, the entire Nadon affair has important consequences for Quebec politics. The province is currently in the midst of a closely fought election campaign, pitting the governing Parti Québécois (PQ) against a resurgent Liberal Party. The PQ draws a great deal of its support from Quebec sovereigntists, and a different decision in the Nadon case would almost certainly have been touted as proof that the province’s interests cannot be adequately protected while still part of Canada. The SCC’s decision yesterday helps to diffuse that particular controversy and refocuses the race on other issues.
[…]
Indeed, taking the idea that current membership in Québec’s legal profession is required to make a judge a legitimate representative of the province on the Supreme Court leads to the absurd conclusion that the longer a Québec judge sits on the court, the less legitimate he or she is, by virtue of his or her allegedly growing detachment from Québec legal culture and “social values.” I do not believe that anyone has ventured such a suggestion, but it seems to follow from the logic adopted by the Supreme Court’s majority. That logic, in my view, reflects ― and reinforces ― a sadly narrow view of what it means to be a Quebecker and a Québec jurist.
Also of interest in Leonid’s post, is his conclusion that the reference ruling has made it unconstitutional to pass a regular law that would restrict future Supreme Court appointments to bilingual candidates. But read the whole thing for that.