OTTAWA -- Last April 22, Justice Morris Fish announced he was resigning from the Supreme Court of Canada at the end of the spring session.
More than six months later, his eight colleagues on the country's highest court convene this Tuesday to hear an important constitutional reference on one of the Conservative government's legacy policies: Senate reform.
Fish's vacated Quebec seat on the bench will sit empty.
The repercussions of that vacancy are profound.
An unprecedented legal challenge has been mounted by a Toronto constitutional lawyer to the appointment of Marc Nadon, the semi-retired Federal Court of Appeal judge picked by Prime Minister Stephen Harper to replace Fish.
The Conservative government has responded with its own reference to the top court on the appointment's constitutionality, and simultaneously rewrote a section of the Supreme Court Act -- a clarification, says the government -- buried in a 300-plus page budget implementation bill.
In an extraordinary move, the court has effectively quarantined Nadon from itself, stating for the record last week that Nadon has not and will not speak of the reference to members of the court and "will not occupy his office or attend at the court."
And the Quebec government says the Senate constitutional reference should not be heard without the court's full complement of three Quebec justices, stating the contested Nadon appointment should be dealt with first.
By any objective measure, "it's a mess," says Francoise Boivin, the NDP justice critic.
How did we get here?
"This decision came as a result of a non-partisan, transparent and accountable selection process featuring a multi-party selection committee and a publicly televised hearing with the nominee," Justice Minister Peter MacKay wrote in a newspaper op-ed on Oct. 31.
The Conservative government, however, clearly foresaw trouble brewing well in advance of Nadon's Sep. 30 nomination.
MacKay told the National Post in mid August it was time to clarify the rules.
"There are provisions right now that could be interpreted as excluding federal judges from Supreme Court appointments," MacKay said in advance of a Canadian Bar Association meeting in Saskatoon.
By Sept. 9, the government had in hand a favourable legal opinion it had solicited from former Supreme Court justice Ian Binnie. The government then ran Binnie's opinion past his former court colleague Louise Charron and constitutional expert Peter Hogg, who both concurred.
Seeking outside advice was itself unusual.
The subsequent public release of Binnie's opinion -- a breach of the government's zealously guarded solicitor-client privilege -- was extraordinary.
"The fact the government sought outside legal advice in this area -- and then released it -- shows the uncertainty of the question," Adam Dodek, a constitutional law expert at the University of Ottawa, said in an interview.
The nomination was taking on the appearance of an orchestrated media campaign.
The questions asked of Binnie are also noteworthy.
Not only was he asked his opinion on an appointment fitting Nadon's description, but also a second question: What if a Federal Court judge quit the court and was "forthwith" readmitted to the Quebec bar? Would he then be eligible for appointment to the Supreme Court?
Binnie responded yes to both questions. On the latter, he also pointedly added "the caveat that such a two-step expedient is neither required nor compatible with the dignity of the office being filled, in my opinion."
Rocco Galati, the Toronto constitutional lawyer who launched the legal challenge of Nadon's appointment, calls it "a back-room, end-run opinion. It's all rigged."
The government, he said in an interview, "dance and finesse and they figure skate in the nude. 'Oh, (what) if you step down for a day and come back?"'
Galati will argue that no Federal Court judge is eligible for a Supreme Court appointment -- notwithstanding that Nadon will be the fourth to come from that bench, albeit the first from Quebec -- and that the Quebec exclusion is particularly clear in the Supreme Court Act.
Those arguments begin Tuesday.
For now, it's enough to say that "reasonable people can disagree" on Binnie's legal interpretation of the act, says Dodek.
The justice minister, by his own August comment, "was clearly aware there was an ambiguity, an uncertainty, in the Supreme Court Act," said the academic.
Which brings us to the parliamentary committee -- MacKay's "non-partisan, transparent and accountable selection process" -- that submits a short list of three prospective nominees to the prime minister.
Three Conservatives, a New Democrat and a Liberal are on the committee. They are not permitted to disclose their deliberations.
The Justice Department would not answer a short list of questions on how the committee operates or why the government sought an outside legal opinion about the Nadon appointment.
"As this matter is currently before the courts, it would be inappropriate to comment on any of these issues at this time," spokeswoman Carole Saindon said in an email.
However, the NDP's Boivin has revealed how the committee does not operate. Consensus is not required for the short list of Supreme Court nominees that emerges from the committee's deliberations.
"Not how it works. You don't sign off," Boivin said on Twitter in response to questions from curious academics.
"It could be unanimous, it could be majority. Can't tell (because) of confidentiality!"
Asked directly whether the short list that included Nadon was unanimous, Boivin declined.
"Can't do that. I wish I could! Makes me reflect about whole process though," she tweeted.
The clear inference is that the government majority on the committee can include whoever it wants, regardless of minority objections.
And that seems to be the central mystery at the heart of the current Supreme Court impasse.
"His nomination is the result of an extensive review process that included consultations with prominent members of the legal community in Quebec," the prime minister said in a release when Nadon's nomination was announced Sept. 30.
The Quebec government, which Ottawa is supposed to consult under the transparency and accountability measures adopted by the previous Liberal government, says Nadon was not among its suggested nominees.
The head of the Quebec bar association declined an interview request.
When the semi-retired Nadon's nomination was announced, the trade publication The Lawyers Weekly described it as "out of the blue."
The publication quoted several lawyers who were clearly, and anonymously, non-plussed by the choice.
It quoted a "puzzled Federal Court practitioner from Ottawa" asking: "Who is he?"
Now that Nadon's appointment has become embroiled in an unprecedented Supreme Court challenge, no one in the legal community wants to touch the subject of his initial nomination.
It was only a year ago that Harper named another Quebec justice to the top court, Richard Wagner. Wagner came from the Quebec Court of Appeal, one of the clearly proscribed sources in the Supreme Court Act for Quebec's three spots on the top bench.
There was no government musing then about clarifying the rules regarding Federal Court appointees, which suggests Nadon was not on the 2012 short list.
What can fairly be said is that the government is going to extraordinary lengths and trouble to nominate a judge of distinction but not one who has a reputation as the Sidney Crosby or Wayne Gretzky of jurists.
MacKay, in his op-ed defending the nomination, called Nadon "an eminently qualified jurist with over 40 years experience." But the justice minister did not cite a single ruling or area of legal expertise.
Supreme Court appointments have rarely caused much consternation in the last four decades. Harper's sixth Supreme Court appointment has created a furor, despite measures taken in the past decade expressly designed to avoid controversy.
"To me the fundamental problem is this is a process that's supposed to increase transparency about how Supreme Court judges are appointed," said Dodek, the university professor. "And the government is keeping secret the actual rules about that very process."
"It's a self-defeating exercise in shining light on a very important appointment process."
