Supreme Court-Marc Nadon spat shows PM's problem with Quebec's liberal judges

When the federal government tapped Federal Court Judge Marc Nadon to fill a Quebec seat on the Supreme Court, the argument was that he was a more traditional jurist, one whose judgments reflected greater deference to Parliament.

But there's another way to look at it, based on a view shared by Stephen Harper and others in his inner circle, that judges on Quebec's senior courts are too liberal‎ and far too activist in applying the Charter of Rights and Freedoms as a check on the power of elected officials.

• Listen to CBC Radio's The House
• John Gomery says Harper's comments on chief justice 'distasteful'
• Harper's dust-up with the chief justice - pique or strategy?

"I think he regards it as a little bit of an adversarial bench,'' says retired Quebec Superior Court judge John Gomery, who chaired the inquiry into the Liberal sponsorship scandal.

In an interview with CBC Radio's The House, Gomery says the Harper government perceives Quebec as more to the left of centre than any other province.

"And that, I think, makes Mr. Harper uneasy about Quebec judges because they come from that culture and that milieu, and are representative of that opinion.''

That view is not universal in the government's ranks, of course, but some senior Conservatives sources have privately expressed a similar opinion.

That, at least, helps explain why the Harper government went to such lengths to push Nadon as the first Federal Court judge to represent Quebec on the country's highest court.

Remember, those efforts began with obtaining independent legal advice from not one but two retired Supreme Court justices, risking a legal challenge and then, when that challenge came, rewriting the Supreme Court of Canada Act, as part of a budget bill, to try to allow it.

"We followed a process that could only be described as the most conclusive ever undertaken by a government with respect to a Supreme Court appointment," Justice Minister Peter MacKay said this week.

"But we took an unprecedented step of going further and getting outside advice, which conformed to the decision we had taken with respect to that appointment.''

Win some, lose some

The government may well have taken even more steps, including an unconfirmed report this week that the Prime Minister's Office suggested Nadon resign from the Federal Court, and rejoin the Quebec bar to get around the wording of the Supreme Court of Canada Act. It was a suggestion he apparently rejected.

All in, this is a lot of political effort to expend on a judicial appointment, particularly on someone who was semi-retired and relatively low-profile before all of this.

But it's entirely consistent when you consider the broader signal the Harper government is sending to try to change a judicial culture it considers more liberal than conservative.

That change, apparently, includes the Supreme Court of Canada, even though Harper has already appointed five of the judges now serving there.

Last week, anonymous senior Conservatives complained to a Postmedia journalist that the court was thwarting the government's agenda. They alleged Chief Justice Beverley McLachlin had, last July, tried to lobby the prime minister not to appoint Nadon to her court.

The story took off when the prime minister's office called McLachlin's actions inappropriate.

The PM's statements garnered near unanimous condemnation from legal circles, and prompted a rebuttal from McLachlin, who said she was simply fulfilling her role as chief justice to identify the needs of the court, and offered no opinion on the merits of the issue.

The dispute overshadowed the other Conservative complaint, that the Supreme Court was thwarting Parliament's will by overturning aspects of the government's tough on crime agenda, by rejecting unilateral reform of the Senate and, of course, by turning aside Nadon's nomination.

By "Parliament's will," the Conservatives really mean the prime minister and his cabinet — the executive branch of government. They are not fans of the Charter of Rights, introduced in 1982, and not fans of the powers it gave the judicial branch to hold government in check.

The prime minister made that clear last week when asked if McLachlin's court was holding up his political agenda.

"My view is that in our system post-1982 we have a system where the court has had an expanded role in judging the appropriateness of laws, not just under the traditional constitutional criteria but under the Charter,'' he said.

"Parliament passes laws. Courts occasionally strike them down or suggest alternatives. And Parliament has a right to respond to that. So I guess I would say on some things you win, and some things you lose and you just go on from there."

Except it's now clear his government is unwilling and unable to just move on.

Unwilling, because Harper and MacKay still haven't explained why they felt compelled to publicly rebuke McLachlin for phone calls that happened last July — months before Nadon was appointed.

Unable, because the Quebec seat Nadon was supposed to fill on the country's highest court remains vacant, with another opening coming later this year when Justice Louis LeBel reaches the mandatory retirement age of 75.

MacKay told the Commons that he's spoken with his Quebec counterpart this week, and he intends to come forward with a new name for the Supreme Court very soon.

The easiest thing would be to select one of the other two candidates from the same short list that included Nadon.

But the scuttlebutt is that one of those other candidates is also a judge on the Federal Court of Appeal; the other is said to be a Quebec Court of Appeal judge who wasn't the Conservatives choice then, and may not be now.

Harper has clearly signalled he wants a more conservative judge on the bench. With one failed attempt under his belt, he may already have lost his case.