Nadon, Duffy have more than looks in common

Alan Holman
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This week there was a hearing the Supreme Court of Canada to determine the validity of the Prime Minister Harper’s appointment of Marc Nadon as a Quebec judge, to that self-same Supreme Court. It is the first time such a hearing has been held. It puts the eight members of the court in the extremely awkward position of being called upon to determine if Mr. Nadon has the right to join their exclusive club.

People who have some knowledge of the appointment process and Mr. Nadon’s background say his appointment is another example of sloppy vetting by the prime minister’s office. A similar comment could just as easily apply to the appointment of Mike Duffy to the Senate.

That they are both short, balding and dapper in appearance, may be interesting, but, it is of no relevance. However, both appear to have been appointed to important national institutions created by the Constitution for reasons of significance to Conservatives; Mr. Duffy for his political fund raising capabilities and Mr. Nadon for his conservative interpretations of the law.

As to the impact on Canadian society, Mr. Nadon’s appointment, as one of the three judges on the Supreme Court from Quebec, is a much weightier and more serious matter than Mr. Duffy’s appointment as a senator representing Prince Edward Island.

Mr. Duffy’s appointment, as one of 105 senators, is of little importance to anywhere but Prince Edward Island, while Mr. Nadon, as one of nine justices, could hear legal appeals from across the country and might on occasion set legal precedences that would affect all Canadians.

Much of the legal framework in Quebec is based on the Civil Code with its roots in French legal system while in the rest of the country it is based on British Common Law. This is why Quebec gets three judges on the high court.

Just as there are legal parameters for the appointment of provincial representatives in the Senate, there are also legal requirements for the appointment of the Quebec judges to the high court. Quebec judges are to be chosen from among the members of the Superior Court or of the Court of Appeal of Quebec the general courts responsible for the application of Quebec civil law or among lawyers who are currently members of the Bar of Quebec, and have been for the last 10 years.

Writing in the Globe and Mail, a panel of legal experts from Quebec outlined their objections to Mr. Nadon’s right to sit as a judge from Quebec. They point out that he has been a member of the Federal Court in Ottawa since 1993, hearing common law cases for more than 20 years and has not been a member of the Quebec bar since that appointment. They say that since Mr. Nadon left Quebec there was a extensive revision of the Civil Code that he would not be familiar with.

Much of the argument in the Supreme Court this week was about these matters. There were also arguments about the need for the appointment to go to a resident of Quebec, which is an argument that Islanders are familiar with, vis a vis Mike Duffy. The hearing is over and it’s expected the court will take sometime before reaching a decision.

Politicians, who will normally scrap at the drop of a hat, seem very reluctant to challenge each other on constitutional issues. It wasn’t the premier of Quebec that legally challenged the prime minister’s right to appoint Mr. Nadon, it was a lawyer from Toronto. It took sometime before the Quebec government finally decided to intervene in the court against the appointment.

In spite of some very cogent arguments made by David Bolger, a UPEI professor, no one has ever challenged the legality of Mr. Duffy’s appointment, even though he was clearly residing and working in Ottawa at the time.

Going to court can be expensive and governments spare no expense in defending their actions. Should the government win, it might ask the court to award costs, meaning the challenger pays all the legal bills. Some think governments do this as a way of discouraging what are perceived to be nuisance suits.

But, on an issue so basic as the Senate residency requirement, one might have expected the P.E.I. government to challenge Mr. Duffy’s appointment. However, if you are a client-state, dependent on the federal government for 40 per cent of your finances, the need to ‘go along’ to ‘get along’ could outweigh any urge to take a stance based on constitutional principles.

- Alan Holman is a freelance journalist living in Charlottetown. He can be reached at:

Organizations: Supreme Court of Canada, Superior Court, Globe and Mail Federal Court

Geographic location: Quebec, Prince Edward Island, Ottawa Toronto Charlottetown

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