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Justice Nadon's Dismissal Highlights a Permanently Flawed Institution

03/24/2014 12:36 EDT | Updated 05/24/2014 05:59 EDT

The constitution of Canada gained a few new pages last week.

After months of uncertainty, on Friday the nation finally received closure in the much-watched face-off between the Harper administration and the Supreme Court of Canada over the Prime Minister's contentious 2013 appointment of Justice Marc Nadon to the Court itself.

Nadon's appointment was illegitimate, the Court ruled, and for the first time in Canadian history, a judge who'd already been sworn-in, fitted for his goofy fur-lined robes, and begun collecting a salary will be abruptly booted from office. (Sensitive to the questions surrounding his own legitimacy, Nadon has not actually heard a case -- in other words, worked -- since his appointment last October, yet still pocketed an estimated 175 grand. But that's a scandal for another day).

What's wrong with Nadon? Well, this being Canada, three of the nine seats on the Supreme Court are reserved for Quebeckers. But not just any old Quebeckers -- Section 6 of the 1875 Supreme Court Actdictates they must be "appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province."

Marc Nadon is a Quebec-born former judge of the Federal Court of Appeal  -- which as you may notice, is neither the Quebec Court of Appeal nor the Quebec Superior Court. But given that he's a former judge and lawyer, can he at least be considered "among the advocates" of his province? The Prime Minister said yes, but the Supreme Court says no.

In the Supremes' mind, the phrase "among the advocates" should be read to "impliedly exclude former members" of the Quebec bar -- which is what Nadon became when he joined the federal judiciary two decades ago. So that's that. So long, Marc!

But what does this have to do with the constitution?

Well, shortly after Justice Nadon's appointment, the Conservatives rammed this weird amendment to the Supreme Court Act through parliament "clarifying" that any Quebec appointee to the Supreme Court (like, say, Justice Nadon) totally counts as being "among the advocates" (and thus qualified to join the Court) so long as "if, at any time, they were an advocate of at least 10 years standing" at the provincial bar.

In addition to firing Nadon, Friday's Supreme Court ruling said the government isn't allowed to do this sort of thing.

Parliament, the justices declared, "cannot unilaterally modify" the Supreme Court Act's rules for who is and isn't qualified to join the body without first obtaining a constitutional amendment unanimously backed by all the provinces. This was the result of their rather expansive reading of the Canadian Constitution's amendment procedure, which says unanimous provincial consent is necessary for any reform affecting the Court's "composition." In other words, the Supreme Court Act, once a mere statute, has now been elevated to the exalted status of constitutional law.

Does this logic make sense to you? If you're a member of one of Canada's leading editorial boards, it apparently makes all the sense in the world.

The most superlative happy paper was by far the Toronto Star, whose board declared the Friday ruling "good news for every Canadian who values the rule of law," not to mention "a powerful and welcome" rebuke to "Harper's arrogant bid to throw the Constitution to the wind" in the service of installing judges on board with his "political agenda."

Similar words were echoed by the Globe and Mail, who praised the Supremes' "sound argument," and the Ottawa Citizen, who savoured this "ringing affirmation of the independence of the judiciary" in the face of old man Harper's efforts to cram in some unqualified "ideological supporter for government policy".

Only Christie Blatchford at the National Post seemed to find fault with what she described as the Court's "disgraceful decision."

Christie isn't much impressed with the fact that "seven of the alleged best minds in the entire country have spent five months twisting themselves into knots" over the definition of a single word -- "among." Like Justice Moldaver, the ruling's sole dissenting judge, she regards definitions of this sort as basically subjective political matters -- and therefore within the mandate of elected politicians to decide, not some busy-body "activist court."

But, she continues, it gets worse. Having reenforced the idea that prime ministers can't be trusted to appoint appropriate judges on their own, the legacy of this ruling will be a further reduction in political authority over the judicial branch, and further outsourcing to a "crony-driven, quasi-secret process" in which "unelected committees of lawyers" soon become the only ones trusted to vet the suitability of the nation's legal overseers.

Personally, I still can't get over the whole constitutional angle.

As one of the key institutions of the federal government, it obviously makes sense for the Supreme Court to enjoy certain constitutional protections. But to decree that even modifying the resume criteria for the men and women who sit on it should require nothing short of a constitutional amendment is to cordon off yet another enormous realm of the broken Canadian political system from even the mildest tinkerings of common-sense improvement.

Canada's agonizingly high bar for constitutional amendments long ago turned a whole host of reform causes into hopeless dead ends. This is the reason we're not supposed to discuss abolishing the monarchy, and why most analysts are equally dour on the prospects of Senate reform -- it's simply unimaginable any administration in Ottawa could drum up the amount of provincial support required by the constitution to ratify such ideas.

So increasingly Canadians are simply told to shut up, and make their peace with permanently flawed institutions.

In expelling a perfectly decent judge from amongst their ranks on what amounts to a trivial technicality, the Supreme Court has now forever frozen itself in this same amber of cynicism.

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