Is Harper Americanizing our Supreme Court?

When I first heard about Toronto lawyer Rocco Galati's challenge of the federal government's appointment of Justice Marc Nadon to the Supreme Court, I had little interest, thinking this was just some esoteric legal matter that had little meaning to us laymen. But the more it I learn about it, particularly listening to the views of various legal experts, the more I begin to think Galati hit on something of great importance that many of us missed.

There is, for instance, the matter of Nadon's qualifications. According to constitutional expert Bruce Ryder of York University's Osgoode Hall, "He's a very accomplished person, but there are better qualified people, particularly on the Quebec Court of Appeal." And then there's the potential problem of the semi-retired Nadon assuming the onerous burden of Supreme Court duties.

And to this the haste in putting him on the bench, only 72 hours from the announcement of his nomination to his appointment. University of Ottawa law professor and former Supreme Court clerk Adam Dodek suggests that the vetting process, conducted by a committee of MPs, was "too narrow, too shallow and it was far too quick."

But these problems, and for that matter the obvious ideological cast of the appointment, shouldn't in themselves disqualify the man. Of greater importance is whether or not his distance from the practice of Quebec's unique form of law (he hasn't practiced in the province for 23 years) defeats the spirit of the constitutional requirement for Quebec's three representatives. Then there's the questions of whether his appointment meets the criteria set in the Supreme Court Act and whether the government has the right to unilaterally change the Act.

This latter it did with a legislative hustle that has become all too characteristic of this government. It inserted two clauses amending the Act in its 2013 omnibus budget bill. It was this little trick that first raised my suspicions.

One of these clauses specifies that a candidate who has "at any time" worked as a lawyer or judge with Quebec's civil code qualifies as a Quebec representative to the Court, thus qualifying Nadon. University of Montreal professor Paul Daly claims that if Parliament is permitted to make such "sweeping changes" to the nature of the institution, "it could pack the Supreme Court of Canada with sympathetic jurists" and even "do away with the requirement that appointees to the court be lawyers" or indeed abolish the Court altogether.

Suddenly the issue doesn't appear to be so innocuous. Is our Prime Minister intending to model our Court after the American institution, a repository of political partisans? Or is he trying to undermine an institution he doesn't much care for? Or does he just not consider the Court worth wasting valuable time on?

The Supremes have heard the arguments pro and con re the government's position and have now reserved their decision. I will await it with considerable interest.