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Supreme Court rejection of Marc Nadon latest legal blow to Harper government

Supreme Court rejection of Marc Nadon latest legal blow to Harper government

A Supreme Court of Canada appointee was blocked from ascending to the position on Friday after the court rules the Stephen Harper-picked applicant did not meet the requirements for the job.

The Supreme Court claimed that Justice Marc Nadon, appointed to the club in September, was not suited to sit as a representative of Quebec and that Harper’s appointment stepped outside of the legal guidelines.

And while the decision itself and the inevitable fallout may be a matter of legal nitpickery, left best to legal chin-scratchers, it is just the latest case of the Harper government being smacked down by the country’s judiciary. Not a happy place to be for a government seeking to position itself as Canada’s legal guardians.

On Friday, the Supreme Court ruled 6-1 against allowing Nadon to join its ranks, claiming the appointment breached rules set out to ensure Quebec was properly represented on the bench.

The rejection is seen as a major blow to Stephen Harper's administration, both embarrassing in its content and stunning in its context.

According to the Globe and Mail, it was the first time in the court's 139-year history that the court was asked to rule on a prospective member.

According to the Globe's Sean Fine:

The separatist Parti Québécois government sent lawyers to the court in January to argue that Federal Court judges lack current knowledge of the province’s legal environment and civil code (which covers matters such as family and property law). Ottawa argued that the Prime Minister needs wide latitude to find the best and brightest candidates for the bench. Mr. Harper’s defeat has the effect of denying the PQ ammunition in the current election: If the ruling had gone the other way, the PQ could have argued that the Supreme Court doesn’t understand or reflect the province’s special status within Canada.

[ Related: Tories’ tough-on-crime battle takes a hit as top court quashes aspect of parole reform ]

When picked as Harper's choice for the bench, Nadon was a supernumerary judge of the Federal Court of Appeal and, before that, a Quebec lawyer for more than 10 years.

He was named to the Supreme Court of Canada by Harper on Sept. 30, 2013 and sworn in the next month. But the appointment was immediately challenged and the Supreme Court set out to determine whether Nadon was eligible.

The issue at the centre of the debate is additional eligibility requirements set out for Quebec representatives. By law, three of the Supreme Court's nine positions must be held by Quebec members, and the additional requirements are in place to ensure those members properly represent the Quebec justice system.

On Friday, the Supreme Court ruled that Nadon's standing as a judge in the Federal Court of Appeal negated him from eligibility, because it is not among the list of institutions that Quebec Supreme Court candidates can be selected from.

"A current judge of the Federal Court of Appeal is not eligible for appointment under s. 6 as a person who may be appointed ‘from among the advocates of that Province’. This language requires that, at the time of appointment, the appointee be a current member of the Quebec bar with at least 10 years standing," the ruling states.

One dissenting opinion said that Nadon's decade-long history as a Quebec lawyer make him eligible, regardless of his more recent history in a federal court.

"To suggest that Quebec wanted to render ineligible former advocates of at least 10 years standing at the Quebec bar is to rewrite history," Justice Michael Moldaver argued.

"The combination of this training and affiliation with one of the named Quebec institutions serves to protect Quebec’s civil law tradition and inspire Quebec’s confidence in this Court."

Moldaver further claimed the ruling was absurd, considering Nador could qualify himself by simply joining the Quebec bar for one day.

[ Related: Quebec referendum: Marois refusing to rule one out in next mandate ]

The ruling will surely be debated most heavily in Quebec, where it will be added to a scorecard between the federal Conservatives and Quebec sovereigntists.

But elsewhere in the country, it is just the most recent case of Canadian courts taking Harper's government to task. University of Ottawa law professor Errol Mendes, for one, said on Twitter that the ruling was a "slap in the face to Harper playing footsy with the constitution."

Supreme Court rejects Harper appointee Marc Nadon http://t.co/9SSKT6OZ0G A slap in the face to #Harper playing footsy with the constitution

— Errol Mendes (@3mendous) March 21, 2014

On Thursday, the Supreme Court ruled that the Harper government acted unconstitutionally when it made retroactive changes to parole eligibility. The Abolition of Early Parole Act eliminated accelerated parole review, meaning non-violent, first-time offenders would need to remain in prison longer before parol would be considered.

But the Supreme Court claimed the law was tantamount to double-jeopardy, because it imposed extra penalties on those who had already received their punishment.

Last fall, the Ontario Court of Appeal ruled the government's 2008 law instituting three-year mandatory minimum sentences for gun possession was unconstitutional. Last month, a B.C. court ruled against one-year mandatory minimum sentences for drug trafficking.

Elsewhere, judges have recently sidestepped the Harper government's orders to mandate the payment of increased victim surcharges, as well as its decision to strip away "time served" credits related to pre-conviction detention.

There was also a Supreme Court ruling that undermined the Conservative government's opposition to Vancouver's supervised drug injection site. And a recent Supreme Court ruling that Canada’s prostitution laws were unconstitutional similarly did not come across as good news for the federal Conservative’s “tough on crime” agenda.

Whether Nadon eventually joins the Supreme Court ranks or, more likely, Harper selects an acceptable replacement, one thing is clear. Canada’s courts haven’t been enamored by the Harper government recently. And the hits keep on coming.

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