Split

Justice Marc Nadon has had a bumpy ride on his ascendancy to the Supreme Court. Questions have arisen about his qualifications and the truthiness of his claim to have once been a draft pick of the Detroit Red Wings. (It turns out he was at best scouted by the Red Wings team, but was never drafted by the team).

Now a pair legal challenges look to sideline the new Supreme Court justice for months. A Toronto lawyer is arguing Nadon’s selection doesn’t meet the criteria necessary to sit on the top court. Now the Quebec government is wading into the challenge, arguing they don’t consider Nadon enough of a Quebecker. Nadon, it turns out, sat on a Federal Court of Appeals in Quebec, rather than a Quebec court. This distinction, according to some minds in Quebec City, means that Nadon doesn’t qualify to sit in one of the three seats reserved for Quebec on the nation’s highest court.

I will leave it to other forums to untwine many of the various threads of debate these challenges pose. Instead we want to look on the practical problem Nadon’s issues are causing the Supreme Court. While these legal challenges are before the court, and they could end up before the Supreme Court itself, heard by his new colleagues, Nadon has voluntarily stepped aside from the bench.

This decision, albeit noble, has nevertheless created another set of problems. A full bench consists of nine justices. With Nadon sidelined, the Supreme Court is left with eight members, a heavy workload and the possibility of a split decision in each of about 20 cases it is expected to hear before the end of the year.

So grave is this prospect of deadlock that the court is considering sidelining a second justice to restore an uneven number (in this case seven) and ensure a clear decision up or down.

This seems to be a severe fix, especially given the fall workload—but it does give a measure to the importance the highest court in the land places on delivering clear decisions.

It is a long way from the Supreme Court of Canada to Shire Hall in Prince Edward County—but the issue raised in Ottawa serve to highlight an under-discussed weakness of the existing council makeup.

As currently arranged, County council is composed of 15 councillors and a mayor, each with a single vote. With some frequency, issues are decided at Shire Hall by a split vote—8-8 down the middle. In these cases the issue, motion or request fails. It is Council’s procedure.

But it leaves a sour taste in the mouths of many who come before council. It is one thing to lose by a clear vote, but to lose on a tie vote is a much harder thing to swallow. In at least two occasions the opportunity to fix the size of council—one way or another—was thwarted by a tie vote on council.

It was a key issue raised by the Citizens’ Assembly this past summer. They understood innately that any revision to council size had to result in an uneven number of representatives. A new resized council had to be able to provide a clear message and deliver clear decisions.

But like much of what the Citizens’ Assembly had to say, this recommendation was muffled by the pleadings of a handful of opponents and blocked by the intransigence of council members unwiling to accept change, no matter how many people voted for it.

The stakes are surely lower at Shire Hall than at the Supreme Court of Canada; nevertheless it is intriguing to watch the gyrations with which the top court is contorting itself to ensure it is relevant and unambiguous in its deliberations and decisions.

Meanwhile at Shire Hall, nine members of County Council are content to lumber along, oblivious to all but like-minded voices, untroubled by the urge to be clear or relevant.

Perhaps we expect too much.

 rick@wellingtontimes.ca