Nadon Debacle Shows That Democracy Works in Many Ways

December 30th, 2020

One of the enduring criticisms of the Parliamentary system (as opposed to, for instance, the republican system in the United States) is that it lends itself to successive terms of one-party rule. The one party in question may change between cycles, but as long as a general election produces a majority party in Parliament, that party can dictate policy and legislation no matter the level of dissatisfaction among other parties or even the public. It is said that the ultimate “check” on that use of power is the fact that there will always be another election – 5 years or less away – and that that fact constrains the ruling party from making profoundly unpopular decisions.

Throughout Canada’s history, there have been many examples of ways in which, despite that system, dissent and disagreement can change policy, even if it does not originate on the opposite benches of the House of Commons. A random, “top of the head” instance was the impressive mobilization of public opinion against Pierre Trudeau’s White Paper that proposed effectively doing away with Indian status in Canada. Another well-studied phenomenon was the way that Canadian provinces utilized the great British North America Act ss. 91 and s. 92 litigation at the turn of the 19th century and well into the 20th. One of the best examples was the provinces’ savvy use of the British Parliament as well as the Supreme Court of Canada in 1982 to fundamentally alter the way the ruling Liberals were planning to patriate Canada’s Constitution.

The recent furor over the Marc Nadon appointment provides another micro-example. It will be recalled that the Harper government proposed the appointment of semi-retired Justice of Appeal Marc Nadon to replace Justice Morris Fish as a Quebec appointee to the bench. That appointment was successfully challenged and Nadon, J.A. was disqualified on the basis that a sitting Federal Court judge is ineligible to fill a Quebec seat on the Court. What came afterward was as stunning as it was unprecedented.

In what appears as though it may have been a deliberately leaked story, a major national newspaper reported allegations that during the appointment process, the Chief Justice of Canada may have inappropriately taken a position on the appointment of Marc Nadon and even to have lobbied against it. What followed was several weeks of back-and-forth allegations as to whether the Chief Justice had done so, or whether the allegation was in fact a “smear campaign” against her, perhaps in frustration over a series of setbacks the Court had dealt the Government. Indeed, the Canadian Bar Association came out swinging in the Chief Justice’s defence. Much of this was examined in our blog post regarding the law and order agenda.

Within the last week or two, however, it came to light that Nadon, J.A. was not the only Federal Court judge on the government’s wish list. In fact, it appears that four of the six proposed appointees were on the list, guaranteeing that at least one would find its way to the “final” list from which the Prime Minister would choose. It now appears that it may have been the fact of having four of six on the list that prompted the Chief Justice to flag the issue. Yesterday the media reported that the scandal had finally produced some results. Government sources have now confirmed that the federal government is consulting with the government of Quebec to jointly prepare a list of candidates for the Prime Minister’s review. Government sources say that this is not meant to be precedent-setting, but through the very peculiar and, some would say, poor, handling of this issue, it may be that the Harper administration has given provinces something that at least three failed attempts to amend the Constitution (Victoria in 1971, Meech Lake in 1987 and Charlottetown in 1992) could not: a direct role in appointing Supreme Court Justices, and the first real erosion of the single party rule’s absolute discretion to do so. Time will tell.

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