Winnipeg Free Press - PRINT EDITION

Harper's supreme mistake

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The irony will not have been lost on Prime Minister Stephen Harper. The Supreme Court of Canada rejected his appointment of Judge Marc Nadon to the high court because he did not meet the requirements for jurists from Quebec. For good measure, the court also struck down a Conservative bill that amended the Supreme Court of Canada Act. The bill was unconstitutional, the court ruled on Friday.

Mr. Harper had appointed Judge Nadon because he apparently believed the semi-retired Quebec justice shared his view courts should not interfere with the will of Parliament, which, of course, is exactly what the court did. The real rebuke, however, was to Mr. Harper's style of governing, particularly his use of omnibus bills containing many separate pieces of unrelated legislation.

Mr. Harper did not start the use of omnibus bills, but he has been their greatest abuser. The bundling of legislation into a single implementation bill speeds up passage in the House but circumvents the ability of legislators and community groups to properly study key pieces of controversial legislation.

In some cases, important government initiatives proceed with very little scrutiny.

That's what happened when the Harper government's omnibus bill last fall included an amendment to the Supreme Court Act, as it affects who can be appointed from Quebec to sit on the Supreme Court.

The Supreme Court Act says Quebec jurists can only be elevated to the Supreme court if they are current members of either the Quebec Superior or Appeal courts, or the Quebec bar. Judge Nadon, a former Federal Court judge, meets none of those requirements.

The government's amendment, which was introduced after Judge Nadon's appointment, slipped by largely unnoticed until a Toronto lawyer launched a court challenge. The government subsequently referred the controversy to the Supreme Court.

The Harper government expressed surprise following the court's decision, partly because it had a legal opinion Judge Nadon met the legal requirements. But it should have withdrawn the appointment, particularly when it became clear it was unacceptable to the government of Quebec. By law, three judges on the nine-person Supreme Court must be from Quebec.

Judge Nadon had appeared before an all-party committee prior to his appointment, but subsequent media commentary focused on whether the appointment should have been a woman, and not whether he met the requirements.

It's clear a better process is needed for identifying and approving suitable candidates. American-style confirmation hearings are not part of the British tradition and there's no evidence they produce better judges. The American system is also prone to political partisanship and meddling.

The current system, however, could be more vigorous in vetting candidates for the Supreme Court to ensure they meet the highest standards and, perhaps, to ensure a rough gender balance on the court.

Judge Nadon himself is an unfortunate victim of the bungled affair, but the fact is he was not an ideal representative of Quebec's legal community. He was named to the Federal Court in 1993, one year before Quebec introduced a new civil code with which he has no experience. He apparently came to Mr. Harper's attention in 2009 following a ruling that said the courts had no business in foreign affairs and some matters were best left to the government.

Mr. Harper has lost a few battles in the Supreme Court, including its ruling striking down the laws on prostitution, but the solution is good laws and policies that will withstand judicial scrutiny.

The prime minister also needs to curtail the use of massive omnibus bills that conceal, deliberately or not, matters of vital public policy.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition March 22, 2014 A16

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