10/22/2013 02:18 EDT | Updated 01/23/2014 06:58 EST

Tories Slip Change To Supreme Court Nominations Into Budget Implementation Bill


OTTAWA - Prime Minister Stephen Harper has tossed his latest appointment controversy into the lap of the Supreme Court.

The eight sitting judges on Canada's top court have been asked to sort out whether Marc Nadon, a Federal Court of Appeal judge from Quebec whose appointment faces a legal challenge, is eligible under the rules to join their ranks.

At the same time, the Conservatives used their latest omnibus budget implementation bill Tuesday to rewrite the Supreme Court Act in order to give a nudge and a wink to the justices about how their reference ruling on Nadon ought to go.

"This is not an amendment," Justice Minister Peter MacKay said of the language buried deep inside the 300-plus page budget bill.

"This is what is called a declaratory provision which is meant simply to clarify what we believe is the proper interpretation of the existing act."

Two former Supreme Court justices and at least one constitutional expert have endorsed the government's view of the existing rules, but a Toronto lawyer has launched a legal challenge to Nadon's appointment.

Nadon has stepped aside until the issue is resolved, leaving the top court short one jurist and potentially open to 4-4 split decisions.

Quebec is guaranteed three seats on the bench under the Supreme Court Act. Those three, says the law, must be appointed from Quebec's "Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province."

Because Nadon has spent the last two decades on various federal courts, critics argue he won't be familiar enough with Quebec's civil code, which is the whole point of the Quebec quota and the appointment restrictions.

Both Quebec's sovereigntist PQ government and the Quebec bar association have suggested they may support the legal challenge.

The changes in the omnibus budget bill will declare that individuals with at least 10 years on the Quebec bar at any point in their career are eligible for the Supreme Court, say the Conservatives.

MacKay said it was done in the budget bill "simply because this was the first opportunity to bring this legislation forward that would expedite the process."

The House of Commons resumed last week following an extra month-long break after the prime minister prorogued in September.

NDP Leader Tom Mulcair called the handling of Nadon's appointment "an incredible mistake, an unprecedented error."

"The Federal Court, where Judge Nadon showed he was an extremely capable jurist, does not let anyone know whether he's capable of helping interpret the Quebec civil law," said Mulcair.

"Quebec has a right to three judges. It's a huge problem that the Conservatives have caused themselves by their own incompetence."

Liberal Leader Justin Trudeau called it "yet another question of the prime minister's judgment and competence."

And Irwin Cotler, the Liberal justice critic and former justice minister, said slipping the Supreme Court declaration into a budget bill suggests either Conservative indecision or an effort to hide the mess.

"Why tuck away something as important as amending the Supreme Court Act, which deals with a constitutional pillar of our democracy, tuck it away in a budget!" said Cotler.

The Supreme Court surprise was not the only political hand grenade buried in the budget bill.

The latest implementation act, the second of two, also includes a number of changes to labour law and more specifically to the collective bargaining powers of public servants.

It extends solicitor-client privilege protections under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, and appears to give the Immigration minister new powers over approving economic class applicants.

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