The secret short list that provoked the rift between Chief Justice and PMO

Published Friday, May 23, 2014

Marc Nadon: This is the first time in its 139-year history that the Supreme Court wad asked to judge the qualifications of a prospective member.
(Sean Kilpatrick/THE CANADIAN PRESS)

That list, crafted by the Prime Minister’s Office and the Justice Department, was so troubling to Chief Justice McLachlin that she phoned Justice Minister Peter MacKay and took initial steps toward contacting the Prime Minister. These attempts to raise potential eligibility issues would later trigger an unprecedented public dispute between the Prime Minister and the Chief Justice, a coda to the ultimately failed appointment of Justice Marc Nadon.

Until now, the list of six candidates has been a closely held secret. But The Globe and Mail has obtained both that list, and the short list ultimately chosen by the selection panel. The names on those lists not only shed light on Justice Nadon’s appointment but the larger political machinations behind it – and its fallout. A judge rejected. A court short-handed. A Prime Minister’s public accusation of impropriety by a Chief Justice.

 

The lists also show how the government, though aware of the risks, worked the selection process to find a more conservative judge than it believed was available in Quebec. The province’s top judges and lawyers were largely ignored for a job reserved by law for Quebec candidates because of the province’s unique civil code. Four of the six judges put forward were from the Federal Court in Ottawa, even though it wasn’t clear judges from that court were eligible. Adding salt to Quebec’s wound, one of those judges had been publicly rebuked by an appeal court for copying from government briefs.

Choosing a Supreme Court judge is a constitutional prerogative of the Prime Minister. In the Federal Court, Mr. Harper found a source of candidates closer to his political heart – and he courted the danger of a long and messy challenge to his selection. Even now, as the court’s vacancy drags into its 10th month, he leaves a star candidate to languish on his short list – a list of only one eligible judge.

To peer behind the curtain of the appointment process, The Globe spoke to more than a dozen leading members of the Canadian and Quebec legal communities and government officials over the past several weeks. All of them talked on condition of anonymity. Neither Chief Justice McLachlin nor anyone associated with the Supreme Court provided information to The Globe for this story.

Although Mr. MacKay has described the process as the most open and inclusive ever for the Supreme Court, The Globe’s reporting reveals that the all-party selection panel presented a veneer of neutrality, and behind that veneer the government was free to pursue its political goals.

‘Let’s broaden the scope’

Staffers in the PMO were optimistic when the process began. Less than a year earlier, with another Quebec spot on the top court to fill, Mr. Harper had chosen Justice Richard Wagner of the Quebec Court of Appeal. He was conservative-minded and had an excellent reputation in the legal world. The appointment was widely applauded.

“Everyone was quite confident that the success of the Richard Wagner appointment would be repeated,” a source familiar with the process said.

But the prospects in Quebec for another conservative judge were few, the source said, and the Prime Minister wanted to find someone who would be in sync with his tough take on crime and his view of the restrained role of judges.

“Let’s look elsewhere, let’s broaden the scope,” was the prevailing attitude, the source said.

The Prime Minister knew the legal risks. “The PCO would have said, ‘Oh, we have a problem,’” the source said. The Privy Council Office is the nerve centre of the Canadian bureaucracy, and advises the Prime Minister on Supreme Court appointments.

Another source said two candidates from the Federal Court had been on the list in 2012, but neither made the short list. A year later, there were four, making it a certainty that at least one would be on the short list of three. No Federal Court judge had ever been chosen for one of the Supreme Court’s three Quebec seats. The Supreme Court Act governing those appointments does not expressly say they are eligible.