Winnipeg Free Press - PRINT EDITION

Harper's supreme mistake

  • Print

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 But it should have withdrawn the appointment, particularly when it became clear it was unacceptable to the government of Quebec.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

Fact Check

Fact Check

Have you found an error, or know of something we’ve missed in one of our stories?
Please use the form below and let us know.

* Required
  • Please post the headline of the story or the title of the video with the error.

  • Please post exactly what was wrong with the story.

  • Please indicate your source for the correct information.

  • Yes

    No

  • This will only be used to contact you if we have a question about your submission, it will not be used to identify you or be published.

  • Cancel

Having problems with the form?

Contact Us Directly
  • Print

You can comment on most stories on winnipegfreepress.com. You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

You can comment on most stories on winnipegfreepress.com. You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

Have Your Say

New to commenting? Check out our Frequently Asked Questions.

Have Your Say

Comments are open to Winnipeg Free Press print or e-edition subscribers only. why?

Have Your Say

Comments are open to Winnipeg Free Press Subscribers only. why?

The Winnipeg Free Press does not necessarily endorse any of the views posted. By submitting your comment, you agree to our Terms and Conditions. These terms were revised effective April 16, 2010.

letters

Make text: Larger | Smaller

LATEST VIDEO

Sanders gives other candidates a reality check

View more like this

Photo Store Gallery

  • Jia Ping Lu practices tai chi in Assiniboine Park at the duck pond Thursday morning under the eye of a Canada goose  - See Bryksa 30 Day goose challenge Day 13- May 17, 2012   (JOE BRYKSA / WINNIPEG FREE PRESS)
  • A monarch butterfly looks for nectar in Mexican sunflowers at Winnipeg's Assiniboine Park Monday afternoon-Monarch butterflys start their annual migration usually in late August with the first sign of frost- Standup photo– August 22, 2011   (JOE BRYKSA / WINNIPEG FREE PRESS)

View More Gallery Photos

Poll

Do you think e-cigarettes should be banned by the school division?

View Results

View Related Story

Ads by Google