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PMO advised Nadon on top court eligibility: media report

Supreme Court of Canada nominee Justice Marc Nadon waits to testify before an all-party committee to review his nomination on Parliament Hill in Ottawa in this October 2, 2013 file photo. The Supreme Court will rule March 21, 2014 on whether Nadon, Prime Minister Stephen Harper's latest appointee to that court, has the legal qualifications for the job.

CHRIS WATTIE/REUTERS

The Prime Minister's Office advised Justice Marc Nadon that he could resign from the Federal Court of Appeal and become a member of the Quebec bar to ensure his eligibility for the Supreme Court, according to a media report.

Global News cited unnamed sources on Wednesday who said Justice Nadon was warned by the PMO about a possible problem with appointing him to fill a vacant Quebec seat at the Supreme Court. The report said the warning came after Chief Justice Beverley McLachlin contacted Justice Minister Peter MacKay to note a potential issue with nominating a Federal Court judge for a Quebec seat.

The Supreme Court of Canada ultimately ruled 6-1 that Justice Nadon was not eligible for the seat because he did not come from the Quebec Superior Court or the Quebec Court of Appeal and was not, at the time of the ruling, a member of the Quebec bar.

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Justice Nadon resigned as a lawyer from the Quebec bar when he became a Federal Court judge more than two decades ago.

Reached by phone on Wednesday, Justice Nadon declined to say whether he received a warning about his eligibility from the Prime Minister's Office. "I have no comments, I'd rather not say anything," he said.

A spokesperson for the Prime Minister would not comment on the report when asked about it on Wednesday evening. "We have nothing to add to the story," Jason MacDonald wrote in an e-mail.

The idea of having Justice Nadon qualify by rejoining the Quebec bar was raised in the Supreme Court ruling that disqualified him.

In the minority dissent in the 6-1 decision, Justice Michael Moldaver said the majority's ruling allows for the absurd result that Justice Nadon could qualify by joining the Quebec bar for one day.

In fact, though, a spokesman for the Quebec Bar Association said that membership in the bar requires 30 hours of continuing education every two years in programs recognized by the bar.

The revelation comes as Prime Minister Stephen Harper faces calls from the Canadian Bar Association and other legal associations to clarify a recent statement from his office about the Chief Justice. The PMO suggested last week that the Chief Justice had attempted to involve Mr. Harper in an inappropriate conversation about Justice Nadon's eligibility last summer but that the Prime Minister had declined to discuss the matter.

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In response to the allegation, the Chief Justice issued a statement indicating that the judge in question was not appointed until two months after she had held a conversation flagging the "potential issue" with Mr. MacKay. She also said she had decided against discussing the matter with Mr. Harper.

On Wednesday, the Canadian Council of Law Deans added its voice to others in the legal community by calling out the government's treatment of the Chief Justice.

The government announced that it had chosen Justice Nadon to join the Supreme Court last September, but his eligibility was challenged by a Toronto lawyer and the matter was put to the Supreme Court, which determined he was not eligible to fill the Quebec seat.

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About the Author
Parliamentary reporter

Kim Mackrael has been a reporter for The Globe and Mail since 2011. She joined the Ottawa bureau Sept. 2012. More

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