Supreme Court Nails Stephen Harper

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Harper Should Have Known

Prime Minister Stephen Harper took a hard blow from the Supreme Court of Canada on Friday morning.

In a stunning 6 to 1 decision, the judges rejected his appointment of Justice Marc Nadon of the Quebec Court of Appeal as one of three Quebec judges on the bench of the Supreme Court.

Harper was not in Ottawa to hear the bad news. He had already left in his private jet plane for a state visit to Ukraine.

The judges’ decision was clear. The Supreme Court law, says that to become one of the three Quebec judges on the bench of the Supreme Court one must be a judge of the Quebec Superior Court or a judge of the Quebec Court of Appeal, or an active member of the Quebec Bar  Association.

Nadon, who was Harper’s choice, did not meet any of these criteria.  What could Harper have been thinking? Nadon was a supernumerary judge of the Federal Court of Appeal, not of a Quebec court.

Since he was a judge, he was no longer a member of the Quebec Bar Association.

Harper knew all this, or should have, if he had anybody around him who knew the law. But he went ahead and tried everything to get Nadon accepted by the Supreme Court.

Before Christmas Harper slipped in a clause into his annual budget legislation to make Nadon be eligible retroactively as former member of the Quebec Bar,  rather than as an active member as the law required.

What could Harper have been smoking?

One can only wonder what the six Supreme Court judges must have thought when they learned Harper had used budget legislation -- of all things -- to get his choice on their bench.


As expected the budget ploy failed. The Supreme Court struck it down. It was the first time in Canadian history that a nomination to the Supreme Court was denied by the Court’s justices.

One wonders who might have been the Justice Department lawyer in Ottawa who advised Harper to attempt such foolishness.

Friday afternoon the prime minister’s office issued a statement saying that two former justices of the Supreme Court and a noted jurist had given Harper his advice. The statement did not name them.

The six Supreme Court judges warned Harper in their decision that if he wants to change the law on appointments to the Supreme Court to allow the appointment of a judge who does not meet the existing criteria, he must first of all change the Canadian Constitution and that will take and that will take the approval of the ten provinces, including Quebec.

Huh? “Approval by Quebec”? Fat chance of that happening.

Liberal leader Justin Trudeau, who was in Toronto Friday, said that Harper had «completely botched» the appointment of Justice Nadon. Trudeau, who is not a lawyer, but presumably has advisors who are, said Harper should have been aware of the criteria.

“There is no more important appointment for a prime minister than a Supreme Court appointment,” Trudeau. “The prime minister failed in one of his most major responsibilities.”

At least Trudeau didn’t say that Harper was “in way above his head” in Supreme Court matters.

Now Harper has to find someone else to fill the vacant seat on the Supreme Court bench because the court has some important stuff to do this year, such as what to do with the Senate and whether the federal government should pass a law legalizing euthanasia or assisted suicide.

As for Nadon, he could return to Quebec and become a lawyer again and Harper could later reappoint him to the Supreme Court if there is an opening.  Nadon stepped aside from the Supreme Court last fall, but has still been receiving full salary since October. Not anymore.  

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