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On Jan. 15, the Supreme Court of Canada will decide whether the nomination of Justice Marc Nadon was legal. Until then, he is banned from the court and not giving interviews. (Adrian Wyld/The Canadian Press, photo illustration The Globe and Mail)
On Jan. 15, the Supreme Court of Canada will decide whether the nomination of Justice Marc Nadon was legal. Until then, he is banned from the court and not giving interviews. (Adrian Wyld/The Canadian Press, photo illustration The Globe and Mail)

What Justice Nadon’s appointment says about the Supreme Court’s future Add to ...

All five of Mr. Harper’s sitting appointees joined in the Supreme Court’s unanimous ruling striking down Canada’s prostitution laws in December. Justice Nadon’s willingness to poke holes in what would otherwise have been unanimous rulings could lead the court in new directions.

“Stephen Harper might feel that someone who was willing to take that kind of stand in Khadr might articulate the dissenting view,” says Carissima Mathen, a law professor at the University of Ottawa. “That’s powerful – especially in rights cases.”

Breaking new ground

But will Justice Nadon be as predictable as Mr. Harper might hope?

At his public nomination hearing in October, he presented a humble figure. He described a childhood in Saint-Jérôme, a village in the Laurentian Mountains in the heartland of Quebec, where he was raised by a Ukrainian mother (a professional singer) and a French-Canadian father (a minor-league hockey player). He dreamed of a life like his dad’s, on the rink, but eventually embarked on what became a 40-year career in law. He expressed only modest deference to government at that hearing. In fact, his judicial heroes include two of the great liberals in Canada’s Charter-era history – chief justices Bora Laskin and Brian Dickson.

Of the five rulings he submitted to a Commons judicial selection panel, one showed him standing up to the federal government in an equal-rights case, forcing it to make its websites accessible to the visually impaired.

He mentioned this case when he was asked at the nomination hearing whether he was in early retirement; he answered that being supernumerary meant more time to work on such complex cases.

With the exception of Khadr, however, none of the submitted cases was groundbreaking: they included a couple’s demand for double paternity leave after having twins (he said no) and prisoners’ attempt to fight a ban on smoking at federal jails (he said no again).

Justice Minister Peter MacKay, when asked in an interview what rulings impressed him, mentioned these cases as well as Siemens Canada vs. J.D. Irving, a lawsuit involving the Irving family conglomerate in New Brunswick. Hardly the stuff of head-turning jurisprudence.

So what might the appointment of Justice Nadon accomplish, providing the hearing this month goes in his favour? How will he handle the more incendiary issues coming down the pipe?

That depends on two things, Prof. Mathen says. First, “is he willing to take on the less-popular view in cases and really develop it?” Second, even if he turns out to be the hands-off conservative champion the Prime Minister wants so badly, his achievements “will depend on how persuasive he is ... to his colleagues. How persuasive is his writing? Will having that kind of conservative voice become a pole around which other judges are willing to coalesce?”

If not, he could become little more than a voice of dissent crying in the wilderness.

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