Canadian Prime Minister Justin Trudeau is not the first prime minister to have been accused of political interference in the justice system. Such accusations are inevitable because political governments are at least nominally in charge of appointing judges.
Former Prime Minister Stephen Harper was widely criticized for what former Attorney General Wilson-Raybould might have described as “the perception of political interference”.
It was when he appointed Marc Nadon to the Supreme Court of Canada as one of three mandatory Quebec judges. The Supreme Court Act essentially specified that three of the court’s nine judges must be a member of the Quebec Bar or Bench of at least 10 years.
Justice Marc Nadon was appointed to the Federal Court in 1993 by Liberal Quebec Prime Minister Jean Chretien. Since 2001 he has been a Federal Court of Appeal judge. He does not have a single political item on his CV, which is definitely of the calibre you would expect from a candidate for the Supreme Court.
The appointment was challenged on the grounds that, as a Federal Court judge, Justice Marc Nadon was neither a member of the Quebec Bar, nor the Quebec Bench. The Quebec government was happy to jump onto the challenge, quickly turning the issue into a political one.
It was an issue that was later described by Supreme Court Justice Cromwell as a technicality, who said that he felt “very sorry” for what happened to Justice Marc Nadon two years prior.
What had happened was, rather than letting the case make its way up the courts and waste a ton of a lot of people’s money, Harper decided he wanted to cut to the chase. He asked the Supreme Court directly what they thought of the proposed appointment.
The Supreme Court responded in what is now widely known as the “Nadon Reference“, in which 7 of the 9 Supreme Court judges issued a 6-1 decision in favour of the challenge against the Nadon appointment.
It was a spectacle for the opposition to enjoy, a stand-off between the Chief Justice of the land and the secretive prime minister. Harper was understandably frustrated at the politicization of a routine item of business on a small technicality.
From his perspective, just a year before the 2015 election, the Chief Justice was “calling him out” for “political interference”, just because his government did not realize that a Federal Court judge from Quebec would not be accepted as a Quebec judge to the Supreme Court.
The Media’s selective conscience
You may have noticed that the recent Justice Committee testimony by Michael Wernick did not generate a proportional level of media attention compared to the first time he testified, especially the cutting arguments put forward by Raitt and Poilievre which exposed lies to which Wernick hardly attempted to give an adequate answer.
It might have been explained away by the fact that Wernick was not an official holding a partisan post like Gerald Butts. Perhaps the press felt bad about attacking an old private citizen who was clearly taking the controversy very personally.
The light in which ‘Nadon-gate’ was portrayed by the media seems to reduce the persuasiveness of such explanations. A Liberal appointed senior judge from Quebec was, to use an expression by Wernick, “dragged through the public square” by those desperate to cast the government in a sinister light before a long-awaited election.
The memory of Justice Marc Nadon should be remembered by journalists as a real case of a non-scandal being inappropriately politicized at the expense of innocent individuals who become ‘collateral damage’. Instead, some are blind to the irony of their cries of “No Scandal!” when a real one finally looks them in the face.