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Supreme Court to decide whether Marc Nadon eligible to join its ranks

Justice Marc Nadon looks around the room as he waits to appear before parliamentary committee following his nomination to the Supreme Court of Canada, Oct. 2, 2013 on Parliament Hill in Ottawa. THE CANADIAN PRESS/Adrian Wyld

The Supreme Court of Canada delivers its opinion Thursday on whether Prime Minister Stephen Harper’s latest appointment to its ranks should be allowed to stand.

The high court has been examining the eligibility of Marc Nadon, a semi-retired Federal Court of Appeal judge from Quebec, in a case that could send political ripples across the country.

Harper’s decision in September to name the 64-year-old Nadon to one of three Supreme Court seats reserved for Quebec has been challenged by Toronto lawyer Rocco Galati.

If the Supreme Court sides with Galati, it would be a serious political rebuke to Harper and have implications for the next Quebec vacancy that opens up later this year.

Either way, the case could elicit a strong response among sovereigntists who likely won’t approve of being told how Quebec should interpret the special provisions of the Supreme Court Act, which specifies how the province’s three justices are selected.

Nadon has been strictly quarantined from the eight remaining justices and is staying away from country’s highest courthouse.

The Tories amended the Supreme Court Act to allow the appointment of a jurist who is currently or has in the past been a member of the Quebec bar with at least 10 years standing — a provision that applies to Nadon.

In all, the court heard from seven interveners, including the federal and Quebec governments, as well as an association of provincial court judges and constitutional experts.

The political ripples will flow from a very specific set of legal issues that lie at the core of the case.

It all centres on two specific sections of the Supreme Court Act — sections that were rewritten by the Conservative government and buried in its 300-page plus omnibus budget implementation bill last year.

Section 5 of the Supreme Court Act deals with the general eligibility of nominees. It allows for the appointment of a former or current member of the bar, a member of a provincial superior court, or a barrister with 10 years standing in the province.

Section 6 deals specifically with the appointment of the three mandatory Quebec appointees. It says appointees must be from Quebec Superior Court, the Quebec Court of Appeal or among the advocates of that province with 10 years standing.

Federal Court judges are not specifically mentioned in the list of eligible candidates, a major point of argument among the litigants.

The case will turn on how the Supreme Court chooses to interpret how the 10-year membership requirement for the Quebec bar applies to Nadon, whose career as a lawyer in the province spanned two decades.

The court has also been asked to consider whether the government had the constitutional right to amend the Supreme Court Act.

Galati argued there was no “constitutional imperative” to extend eligibility to “every single lawyer in the country” to be a candidate for the Supreme Court.

The federal government argued that interpreting the Supreme Court Act to bar any Federal Court judge from being appointed to the top court would reduce the already small pool of qualified judges.

Of the eight sitting Supreme Court justices, Marshall Rothstein of Winnipeg also came from the Federal Court of Appeal. He was appointed by Harper in 2006.

Rothstein’s Manitoba credentials were based on a legal career in the province from 1966 to 1992 when he was a partner in a law firm and a lecturer in transportation law at the University of Manitoba. He was appointed to the Federal Court trial division in 1992.

Rothstein has recused himself from the current case. He has given no public reasons for doing so.

As a result, his seven remaining colleagues will decide the case, eliminating the possibility of a 4-4 split as well as the perception of a conflict of interest on Rothstein’s part.