A skeptical Supreme Court weighs the future of Harper’s controversial appointment

Prime Minister Stephen Harper’s newest choice for the Supreme Court of Canada ran into a wall of skepticism at a hearing into the federal government’s interpretation of the law governing appointments.

In a case with no precedent in the Supreme Court’s 139-year history, seven judges were put in the extraordinary position of having to judge a prospective new member, Justice Marc Nadon, a 64-year-old judge with a conservative bent.

“What started out as a plain vanilla administrative law challenge to Justice Nadon’s appointment has transformed into a possibly momentous question of constitutional principle,”

Justice Nadon was a member of the Federal Court of Appeal for the past 20 years, and the Supreme Court Act does not directly say Federal Court judges are eligible to fill one of the three spots reserved for Quebec on the top court. If the court rules Justice Nadon ineligible, the government argues it could unilaterally change the law; but the judges questioned whether such a change would require a constitutional amendment and provincial consent.

The case is an important moment not only for the court, which has been working without a ninth judge for several months, but for Mr. Harper, whose choice could foster a constitutional dispute in Quebec that he could not have wanted, and at a time when the province has a separatist government.

Ottawa argues it would be absurd to exclude the experience of Federal Court judges. Quebec, which is intervening in the case, says the appointment is illegal because the three judges from that province need a current link to the province’s civil code, which includes family and property law.

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This content has been updated on August 23, 2014 at 12:19.