Plus the $145,000 taxpayers paid him to sit on his ass while he awaited a decision!

Feds spend $80,000 on four-month search for Nadon

Tim Naumetz
Thursday, May 8, 2014

Photograph by Jake Wright, The Hill Times News

PARLIAMENT HILL—The government spent $80,000 on legal costs during the four-month selection process that led to its controversial appointment of Federal Court Judge Marc Nadon to the Supreme Court of Canada last fall, more in legal fees than for any previous Supreme Court appointment by Prime Minister Stephen Harper.

The outside legal costs were apart from a further $6,605 the Privy Council Office paid for a legal opinion from former Supreme Court judge Ian Binnie that supported the government’s view Mr. Nadon’s appointment to one of three Supreme Court seats assigned to Quebec met constitutional requirements—and which government records and correspondence show took Mr. Binnie just over a week at the maximum to research and draft.

The Toronto law firm where Mr. Binnie now works as a counsel in the private sector was awarded a sole-sourced $24,238 contract with the Justice Department that began as the selection process was in its early stages last June and continued until after a Supreme Court ruling last March that the appointment of a sitting Federal Court judge was unconstitutional and did not meet the eligibility requirements for an appointment to one of the seats reserved for Quebec under the Supreme Court Act.

A spokesperson for Justice Minister Peter MacKay (Central Nova, Nova Scotia) said late Thursday, in an email response to questions The Hill Times had first asked on Wednesday, that the legal fees paid to Mr. Binnie’s firm, Lenczner Slaght Royce Smith Griffin, were not related to the Supreme Court.

“The contract in question is for a matter unrelated to the SCC,” wrote Press Secretary Paloma Aguilar, without an explanation.

Government records tabled in the House of Commons and the eight-page letter of opinion Mr. Binnie sent to the Justice Department show the government sought Mr. Binnie’s advice in September, and that he emailed and couriered his letter of advice to the Justice Department on September 9, a Monday.

The government sought the advice from Mr. Binnie after Supreme Court of Canada Chief Justice Beverly McLachlin had cautioned Mr. MacKay last July about “issues” with respect to the appointment of Judge Nadon, because of his status as a Federal Court judge and due to his lack of membership in the Quebec bar for two decades.

Following the Supreme Court ruling that Judge Nadon’s appointment was unconstitutional, and a subsequent Supreme Court ruling in April that government proposals to unilaterally change the way Senators are appointed and to limit Senate terms would be unconstitutional, unidentified Conservatives claimed the government was “incensed” at a string of the court’s decisions.

Both Mr. MacKay and Mr. Harper (Calgary Southwest, Alberta.) accused Chief Justice McLachlin had acted improperly, even though Mr. MacKay told a Commons committee last October the Chief Justice was one of many jurists and legal experts the government consulted before naming Judge Nadon to the Supreme Court.

By late Thursday evening, neither the Privy Council Office nor Mr. MacKay’s office had responded to questions about the terms of Mr. Binnie’s contract, and why Mr. Binnie sent the letter to the Justice Department even though the Privy Council Office, a secretariat that serves Mr. Harper and his cabinet while overseeing government departments, arranged the contract with Mr. Binnie.

The government also last August and September obtained opinions from former Supreme Court Justice Louise Charron and Constitutional Law Professor Peter Hogg that supported Mr. Binnie’s interpretation that the pertinent sections of the Supreme Court Act allowed the appointment of Judge Nadon, as a sitting judge on the Federal Court, to a Quebec seat on the Supreme Court.

The Justice Department responses that Mr. MacKay provided to the Commons in response to written questions from Liberal MP Stéphane Dion (Saint Laurent-Cartierville, Quebec) quote the PCO as saying the government sought advice from Ms. Charron in August, even though she was hired and paid $4,325 to provide an opinion about Mr. Binnie’s advice, which the documents say were sought in September. The documents say PCO sought Mr. Hogg’s opinion of Mr. Binnie’s view in September. Mr. Hogg was paid $1,045 to provide his opinion of Mr. Binnie’s.

Mr. Binnie was tasked to interpret Section 5 and Section 6 of the Supreme Court Act, in light of the fact that Section 5 addresses the overall eligibility for appointments to the Supreme Court from any of the provinces, while Section 6 sets out the eligibility requirements for the three of nine judges Section 6 says must be appointed from Quebec—which includes the vacancy Judge Nadon was filling.


Section 5 of the Act states any person may be appointed as a Supreme Court judge who is or “has been a judge of a superior court in any of the provinces or a barrister or advocate of at least 10 years standing at the bar of a province.”

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Secion 6 stipulates at least three of the nine judges shall be appointed from among the judges of the Court of Appeal of Quebec or of the Superior Court of Quebec or “from among the advocates of that province.”

Mr. Binnie, in his brief opinion for the government, among other things wrote that the Section 6 Quebec conditions could not be interpreted without also considering the Setion. 5 stipulation allowing past members of the bar to qualify and, along with other interpretive comments, said a Federal Court judge could be appointed to the Supreme Court if they had been an advocate in good standing for 10 years prior to their appointment to the Federal Court.

“In my view there is nothing in the Supreme Court of Canada Act that would prevent the direct appointment to the Supreme Court of Canada of a judge of the Federal Court of Canada or the Federal Court of Appeal,” Mr. Binnie wrote.

“I would be glad to discuss any aspect of this matter with you at your convenience,” he wrote.

The name of the person in the Justice Department to whom he addressed his letter was redacted before the government released it.

The lengthy Supreme Court decision last month, in response to a federal government request for an opinion from the Supreme Court on Judge Nadon’s appointment after Toronto lawyer Rocco Galati challenged the appointed in Federal court, referred to a “historic bargain” in 1875 between Quebec, the other provinces at the time, and Ottawa, that led to establishment of the Supreme Court of Canada, with essentially the same overall and specific Quebec eligibility requirements that remain in the current Supreme Court Act.

Opposition MPs were surprised to learn the short time Mr. Binnie took to write his opinion, which also endorsed another controversial option the government was reportedly considering at the time—the possibility of Judge Nadon resigning as a Federal Court judge and signing up with the Quebec bar again briefly to qualify for the appointment as being among the advocates in the province.

“It seems very short, let’s say, it’s technically possible, but it’s difficult to believe,” Mr. Dion said.

“Actually, what they wanted to hear is that somebody is of the same opinion as them,” said NDP MP Françoise Boivin (Gatineau, Quebec).

Mr. Galati, who kept his Federal Court challenge on hold out of concern the government might try to re-appoint Judge Nadon, told The Hill Times Mr. Binnie’s opinion failed to address the constitutional issues that eventually became the centre of the Supreme Court case.

“I’ve always said that the opinion was anorexic and anemic and severely lacking, given that it did not touch at all upon the constitutional issues that I had raised in my federal court application,” Mr. Galati said.

“If you’re giving a considered opinion, it takes time,” he said. “To draft my notice to challenge on basic grounds and all of that is one thing, but in order to write my factum for the Supreme Court, it took me weeks to research the history.”

Global News reported this week that sources told the network the government recommended to Judge Nadon that he resign from the Federal Court to gain his eligibility for appointment, but Mr. MacKay did not reply directly to the allegation on Thursday.

“I can tell you that’s not something that I personally encouraged him to do,” Mr. MacKay said in response to questions at the House Justice and Human Rights Committee.

In Commons Question Period, Mr. MacKay said he began consultations this week with Quebec Attorney General Stephanie Vallée and “we intend to come up with a new name for the Supreme Court very soon.”

The government paid a total of $80,894 in legal fees during the selection period it went through to decide on Judge Nadon, compared to $65,950 it paid in legal costs during the selection of Supreme Court Judge Richard Wagner, a Quebec judge, in 2012 and a combined total in legal fees of $63,742 in legal costs for the 2011 appointments of Supreme Court Judges Michael Moldaver and Andromache Karakatsanis.

The government paid only $23,580 in legal costs through the 2008 selection of Judge Thomas Cromwell and $46,234 in legal fees during the appointment of Judge Marshall Rothstein in 2006. Judge Rothstein had gone through a selection process supervised by Liberal MP Irwin Cotler (Mount Royal, Quebec) when he was justice minister in the previous Liberal government.

tnaumetz@hilltimes.com