Gilding the Lilley: Marc Nadon, The Supreme Court and Sun News

Friday’s Supreme Court of Canada decision concerning sections 5 and 6 of the Supreme Court Act seems to have captured some public attention - for good reason.  It is an important decision with constitutional implications.  

Not surprisingly Sun media personality Brian Lilley weighed into the implication of the Supreme Court decision with a story titled: Supreme Court makes crap up, twists logic in Nadon ruling.  

Lilley should get some credit for trying to address a complex issue but Lilley’s analysis - as telegraphed by the title of his story - leaves much to be desired.  

The Supreme Court’s decision is significant and carries unavoidable legal and political implications. It is one of the rare types of decision that can result in an erosion of the public's confidence in the courts, parliament, and the administration of justice.   

Criminological studies have found that public perception of crime and justice issues are greatly influenced by the way politicians and the media frame the issues.  An uninformed or misinformed public does not contribute to legitimate debate or dialogue.  

Lilley’s framing of the Nadon issue and his factual treatment of the Supreme Court’s decision does not advance the cause of an informed public.  

Lilley does do a good job of conveying his disrespect for the Supreme Court.  The title of his story clearly sets the tone - I supposes it also states his thesis: the Supreme Court makes ‘crap’ up.

Before Lilley explores this thesis he does a fabulous job of framing the issue and exposing his bias.  Lilley accuses the Court of acquiescing to leftist attempts to block the Conservative nomination - Marc Nadon.  Lilley says that the Court did this ‘simply because they don’t like [Harper] or his agenda’.  

This of course is patently absurd.  Lilley offers no proof for his claim - there is none.  Lilley ‘proves’ his thesis through exquisite circular logic - using the Court's ultimate decision (one that he does not agree with) to prove the alleged nefarious motive.

The fact is, that the Government referred the Question to the Supreme Court following a challenge by lawyer Rocco Galati in Federal Court.  The Government decided to skip the preliminaries and sought the Supreme Court’s opinion.

Lilley maintains that this is all a left wing ploy.  His evidence - a good ol’ ad hominem attack - calling Galati a left wing lawyer who seeks out terrorists to defence.  Point proven Brian.

Lilley does not mention that a majority of the Supreme Court was appointed by the Conservative.  A poor battle ground for lefty litigation.

The Nadon affair is obviously a political issue but Nadon - the man - was not the legal issue.  

The Legal issue was the interpretation of section 5 and 6 of the Supreme Court Act.  Indeed, the Court does not make any qualitative judgements or comments about Nadon.

The Supreme Court does not state - as Lilley says - that Nadon is not qualified - they ruled that he does not qualify.  This is an nuanced but important difference.  A difference that Lilley chooses to ignore.  

The Supreme Court’s decision is not about an agenda or red tape.  There existed (and does exist) a legitimate legislative and constitutional debate about the validity of Nadon's appointment and the Conservatives retroactive attempt to fiddle with the constitution.

The Conservatives were alive to the potential issues with Nadon’s nomination - this is why they sought former Supreme Court Justice Ian Binnie’s opinion.  

One may wonder - as was brought up in Question Period today - who else did the government consult - were there dissenting opinions?  The fact that the Conservatives rushed from nomination to farcical committee hearing to appointment in a mere 4 days raises legitimate questions.

To be fair, Justice Binnie’s opinion did find agreement - constitutional expert Peter Hogg and Former Supreme Court Judge Louise Charron endorsed Binnie’s interpretation.  There however were many views (that through a more detailed analysis) reached different conclusions.

Lilley does not address this legitimate debate.  There is no attempt on his part to provide any context or nuance.  

In fact, Lilley comically says that Justice Louise Arbour (with accompanying picture) agreed with Binnie - Lilly confuses Justice Charron and Justice Arbour.  A humourous mistake - but not one that bodes well for any confidence in Lilley’s grasp of the facts.

Lilley demonstrates this intellectual sloppiness in his simplistic interpretation of section 5 and 6 of the Supreme Court Act.  Section 5 of the Supreme Court Act reads:

5. Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.

Lilley starting point is that the obvious and plain meaning of this section - that any current or former advocate (of at least ten years standing) meets the section 5 criteria.  This is of course the very issue - does the section, given its wording apply to former advocates - there is room for debate on this point.  

Lilley again undertakes no analysis to arrive at his conclusion.  Luckily the Supreme Court did - both the majority and minority reached the same conclusion - albeit via reason and logic.  

The Court found that section 5 applies to former advocates.  Federal Court judges - being former advocates - can qualify for appointment.  As I said yesterday Justice Rothstein (an appointment from the Federal Court) must be breathing a sigh of relief.

The Supreme Court found that Nadon met the section 5 test of the Supreme Court Act.  The real issue is the interpretation of section 6 of the Supreme Court Act:

6. At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.

Lilley begins by saying that everyone agrees section 5 and 6 must be read together.  This is obvious - the disagreement is to the extent that these sections are linked and the purpose of section 6 - the Quebec clause.  

The majority of the Supreme Court made clear this disagreement at paragraph 37:

We disagree, however, with the Attorney General’s ultimate conclusion that reading these provisions together in a complementary way permits the appointment of former advocates of at least 10 years standing to the Quebec seats on the Court. Section 6 does not displace the general requirements under s. 5 that apply to all appointments to the Supreme Court. Rather, it makes additional specifications in respect of the three judges from Quebec. One of these is that they must currently be a member of the Quebec bar.

Again Lilley’s lack of nuance and accuracy do the public a disservice.  He relies on plain meaning (despite obvious ambiguities) to justify his interpretation of section 5 - yet he dispenses with plain meaning in his interpretation of section 6.  The classic definition of results based logic - another Lilley favourite.  

Lilley does have a point with his critique of paragraph 45 of the majority decision.  The majority’s summary of section 6 imports the section 5 requirement that an advocate must have 10 years of experience.  

The interpretation of this requirement limits absurdity as it prevents inexperianced lawyers from being eligible to sit on the Supreme Court.  Importantly the interpretation is also consistent with the principle that animates section 6 - limiting the pool of judicial candidates.

Not only does Lilley abandon logic but he wholly ignores the history that informs the purpose of section 6.  The majority of the Supreme Court noted at paragraph 48:

Section 6 reflects the historical compromise that led to the creation of the Supreme Court. Just as the protection of minority language, religion and education rights were central considerations in the negotiations leading up to Confederation (Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (“Secession Reference”), at paras. 79-82), the protection of Quebec through a minimum number of Quebec judges was central to the creation of this Court. A purposive interpretation of s. 6 must be informed by and not undermine that compromise.

Lilley claims that the majority of the Court arrive at the decision they did in order to side with the ‘leftist activists’ and ‘stymie the PM’.  An outrageous claim than is again unsupported by any evidence.

It is Lilley who ignores the historical significance of section 6, employes selective result driven logic, and resorts to ad hominem attacks.  Yet according to Lilley it is the Supreme Court who are ‘making crap up’ - simply priceless.  

Lilley’s obvious contempt for the Court (‘these jokers’ as he calls them) and his lazy logic don’t advance debate or inform the public - this is not the discourse that contributes to a productive discussion of an important and complex issue.  

There can be an intellectually honest discussion of the merits of the Supreme Court’s decisions (a great example can be found in this post by Leonid Sirota).  Lilley’s analysis cannot be said to be intellectually honest - quite to the contrary.

Lilley ends his video rant by saying that the Supreme Court has embarrassed themselves - again he gets it wrong - it is Lilley’s contribution to this discussion that is an embarrassment.