The seven-month struggle over the Supreme Court appointment of Justice Marc Nadon of Quebec is over – for the country and for the 64-year-old judge. Prime Minister Stephen Harper said on Tuesday that he accepts last week's Supreme Court ruling that his latest appointee is ineligible.
"We're obviously going to respect the decision. We will respect not just the letter of the decision but the spirit of the decision as well," the Prime Minister told reporters in The Hague, where he had just wrapped up a nuclear security summit.
Justice Nadon expressed relief at no longer living in limbo. "It's not a shock, but I mean it's been going on for six months," he told Global News. "So I'm a bit like a diver who's been under water for too long. So I need to take some fresh air a bit, and breathe."
Mr. Harper's statement, after three days in which the Prime Minister's Office and others had said that all options were on the table, puts to rest the possibility the government would seek a back-door route to the country's highest court. The Supreme Court rejected Justice Nadon, in a 6-1 ruling, because as a judge on the Federal Court of Appeal he lacks current Quebec qualifications; in theory, it might have been possible to appoint him to the Quebec Superior Court for a day, and then to the Supreme Court.
Mr. Harper's acceptance deprived separatists of a potent issue during an election fought partly over the issue of sovereignty. The ruling, which stressed the province's distinct character and the court's special appointments process for its three Quebec seats, had been well received.
Trying to reappoint Justice Nadon "would have been a provocative move and provided a target for the PQ to shoot at, at a moment when they seem to be very desperate for a target to shoot at," said Christopher Manfredi, a McGill University political scientist and dean of arts.
He called the Prime Minister's response "very statesmanlike," but said, "I'm not sure he had very much choice."
Mr. Harper's decision to rule out an end-run around the Supreme Court ruling also means that a second and potentially more heated confrontation between the government and the court will be averted.
Retired Supreme Court judge John Major said the country's top judges probably found the case quite difficult on a personal level. "I'm sure the members of the court must have felt a little uncomfortable, knowing Nadon, to decide on his future. But I don't know who else could have done it," he said in an interview.
Mr. Major said he had played golf with Justice Nadon, in Montebello, Que., a couple of times since his appointment, and Justice Nadon had been philosophical, saying he would live with whatever happened. "I'm not sure he wouldn't put up a brave front with people like me. He seemed reconciled to the process and what he was in."
He also said he is a "little puzzled" about why Quebec opposed putting a Federal Court of Appeal judge on the Supreme Court, since judges on the Federal Court hear cases in Quebec and remain steeped in that province's legal culture. "I don't see how they thought that would diminish the representation of Quebec on the court."
Mr. Harper announced his choice in late September, bypassing prominent appeal court judges such as Marie-France Bich and Nicholas Kasirer in favour of a judge perceived to be deferential to government. Justice Nadon's eligibility was soon challenged in court by Toronto lawyer Rocco Galati, and Quebec's National Assembly later opposed it, prompting the Conservative government to ask the Supreme Court to rule on the judge's eligibility.