Budget bill amends Supreme Court Act for Nadon appointment

The federal government took steps Tuesday to work around a legal challenge that has held up the appointment of Justice Marc Nadon to the Supreme Court of Canada.

Justice Minister Peter MacKay said he will ask the Supreme Court itself for an opinion on the Supreme Court Act "relating to appointments to the highest court."

And the government is also making "declaratory provisions" in the second bill to implement last spring's budget, tabled Tuesday, to amend the Supreme Court Act.

Nadon's appointment as one of three judges on the top court from Quebec was announced last month and confirmed by a House of Commons committee, but has been challenged by Toronto lawyer Rocco Galati.

Galati's argument is that only judges from Quebec's appeals or superior courts, or lawyers who are current members of Quebec's bar and have been for at least 10 years, can represent Quebec on the Supreme Court.

Quebec, which has a different system of law than the rest of Canada, is guaranteed three spots on the bench. Quebec has also announced it is supporting a challenge of the appointment.

A legal opinion for the federal government by former Supreme Court Justice Ian Binnie said Nadon was qualified because he was a member of the Quebec bar for 20 years — although that was before he became a Federal Court judge.

"Our government will fervently defend the eligibility of long-standing members of the bar in all provinces and territories to serve on the highest court of our country,” MacKay said in the House Tuesday.

"We have now taken steps to ensure that the Supreme Court itself will clarify the situation so Mr. Justice Nadon can join them and have a full complement of Supreme Court justices," MacKay said.

Nadon recused himself from participating in hearing cases until the challenge to his appointment is resolved — a process that could take months or even years if it was to proceed through the courts.

The controversy has left the Supreme Court of Canada short-handed for dozens of cases and an important reference on the future of the Senate, which forced the government to act.

The budget bill amends the Supreme Court Act to add two sub-sections, including: "For greater certainty, for the purpose of section 6, a judge is from among the advocates of the Province of Quebec if, at any time, they were an advocate of at least 10 years standing at the bar of that province."

Another sub-section includes similar language for "a province."

'Solves one problem and creates another'

Asked whether the measures are retroactive and are intended to apply to Nadon, Flaherty told reporters on Parliament Hill Tuesday, "You'll have to ask the justice minister."

When pressed about why he didn't know given that the measures were in his budget bill, Flaherty replied, "It's the mechanics of government."

One expert said the legislative approach makes sense in that it addresses uncertainty over whether a Federal Court judge qualifies for appointment to the Supreme Court. But that approach is not without problems.

"I would add that it solves one problem and creates another," University of Ottawa law professor Adam Dodek said in an email to CBC News.

"It should not be the subject of a budget bill but should be a self-standing bill amending the Supreme Court Act to allow for the fullest debate around the issue of qualifications for appointment to our highest court."

It is not clear when the Supreme Court would hear the reference on Nadon, but it is unlikely to be before next month's scheduled hearings on how Parliament could reform or even abolish the Senate.