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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 ...

At 62, Justice Marc Nadon of Ottawa had reached the magic number.

His age plus his 18 years in the Federal Court’s trial and appeal divisions added up to 80 – allowing him the option to work about half his usual hours and still receive his full pay of $288,100. An option he took. To mark the transition, he took four weeks off for a southern holiday, then returned to a lightened workload.

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But his break wasn’t to last. This fall, Prime Minister Stephen Harper appointed Justice Nadon to the Supreme Court of Canada – not only ending his career’s twilight but putting him into what is turning out to be a glaring spotlight. Instead of the usual praise for such appointments, the legal community reponded with shock, and vocal displeasure.

Even Frederick Vaughan, co-author of the seminal book The Supreme Court: History of the Institution, found the appointment baffling. No judge, he says, had ever been appointed to the Supreme Court from what is known as supernumerary – semi-retired – status.

“It’s a strange, strange appointment, frankly,” he says. “Why would you go with a supernumerary when he’s indicated that he’s halfway to retirement?”

But it wasn’t just his part-time status that raised questions.

Justice Nadon’s specialty, maritime law, is hardly of prime importance to the Supreme Court. His record of judgments is seen in legal circles as not terribly distinguished. He has had little connection in the past 20 years to the province he was appointed from – Quebec. He isn’t a she (the court’s complement of women had dropped from four to three).

His appointment is also of questionable legal merit.

On Jan. 15, the same court that Justice Nadon was appointed to will hold an unprecendented hearing on whether a Federal Court of Appeal judge can qualify for one of the three spots reserved for Quebec on the Supreme Court. The hearing comes after a Toronto lawyer and the Quebec government made separate challenges to the appointment.

So did the prime minister make a mistake in choosing Justice Nadon? Or does his choice say something about the Conservative government’s plan for the country’s most influential court?

Court watchers point to a crucial clue – Justice Nadon’s stance on the case of teenage terrorist Omar Khadr.

At a time when other judges are beginning to rebel against the government’s overhaul of criminal law, the Khadr ruling marked the then-unheralded 64-year-old as a voice for keeping judges in their place.

A judiciary in revolt

Mr. Harper had no shortage of judges from the Quebec Court of Appeal to choose from. They included at least two judges with star power, Marie-France Bich and Nicholas Kasirer, both of them regarded as scholarly centrists.

“[Mr.] Nadon was on nobody’s short list – he wasn’t on anybody’s long list as far as I know,” McGill University law professor Robert Leckey says.

But like any prime minister, Mr. Harper has the prerogative to shape the bench as he sees fit. And in a year-end interview with the media, he repeated his long-touted goal – to transform criminal law so that it is no longer “centred on the welfare of the criminal.”

This tough-on-crime approach is a central, and popular, part of Mr. Harper’s political agenda. It’s behind sweeping changes to the Criminal Code that have put more people in federal prisons than ever before. It’s also behind his vision for the bench.

That’s because the wrong sorts of judges could block Mr. Harper. And the judiciary has been doing just that.

Two years ago, when the Conservative government tried to close Insite, a Vancouver clinic where addicts injected illegal drugs under a nurse’s supervision, the Supreme Court ruled that the government couldn’t close the clinic – by a resounding 9-0 vote.

Later this month, the Supreme Court will hear three separate cases in which judges gave convicted criminals 1.5 days of credit for every day served in jail before conviction. The Truth in Sentencing Act abolished the previous practice of two days credit for every day served. Judges were not supposed to give extra credit in most cases.

Judges in several provinces have also refused to order some offenders to pay the mandatory Victim Fine Surcharge, a financial penalty that goes to victim services. Appeals are under way that could eventually reach the Supreme Court.

Now, with big constitutional challenges ahead – on mandatory minimum sentences, for example – judges have another opportunity to use their discretion in ways that may be at odds with the government.

‘Forbidden areas’

The answer for Mr. Harper may be to find his own rebels, stubbornly independent jurists ready to stand up for conservative principle.

Justice Nadon certainly marked himself as a potential outlier four years ago in the case of Omar Khadr.

Canadian Omar Khadr was 15 when he was captured in Afghanistan after a battle with U.S. soldiers, and accused of the war crime of murder. The United States jailed him at Guantanamo Bay, its naval base in Cuba. Canadian officials who visited him when he was still a minor interrogated him with no lawyer present to advise him, and turned over what they gleaned to his captors.

Thirteen Canadian judges ultimately heard the case – one from the Federal Court’s trial division, three from the appeal division and nine from the Supreme Court. They had two key questions to answer: Did Canada violate Mr. Khadr’s constitutional rights, and if so, must the government demand his repatriation? The court unanimously answered yes to the first question, and no to the second.

On interrogating a teenager without counsel present, and turning information over to his jailers, the court said: “[This behaviour] offends the most basic Canadian standards about the treatment of detained youth suspects.”

Only one judge called Canada nearly blameless: Justice Nadon. Foreign policy, he wrote in a stylish and confident defence, is one of “the forbidden areas” in which judges have no right to question government.

Clearly he was no bleeding heart. He had nerve. And he was on the government’s side.

No creativity required

When a prime minister, any prime minister, appoints a judge, criticism is usually muted. Law professors may worry that their students won’t get clerkships at the Supreme Court if they are seen deploring a judge’s limited capacities. The leading lights of the bar may worry about appearing before the man or woman they criticize. Or perhaps the Canadian legal community is just too clubby for harsh words.

Jamie Cameron, an Osgoode Hall law professor, says she has a rule not to comment publicly on the attributes of appointees – but she is breaking her rule this time.

“What the appointment shows is the Prime Minister’s lack of respect for the Supreme Court as an institution,” she says. “I feel very strongly that the orderly progression and evolution of the law requires a strong court – a court that’s capable and willing to demonstrate leadership. I think this appointment unquestionably weakens the court.”

For some observers, this is at least partly in line with the other appointments made by Mr. Harper. What unites all six of his Supreme Court appointees “is judicial restraint, or at least no evident tendencies towards judicial creativity, which has long been a sin Harper Conservatives have sought to stamp out,” says Bruce Ryder, a professor at Osgoode Hall Law School.

And although Mr. Harper has not appointed nearly as many Supreme Court judges as Pierre Trudeau, Brian Mulroney or Jean Chrétien, he has done enough to put his stamp on the law, and public policy, for years to come – and, some fear, to turn back the clock more than 30 years to pre-Charter of Rights days when the Supreme Court rarely stuck its neck out and had little prestige.

Even so, Mr. Harper’s appointees are capable of surprises. Justice Michael Moldaver of Ontario gave a controversial speech to the Criminal Lawyers Association in 2005 attacking defence lawyers who “trivialize and demean” the Charter of Rights. At the Supreme Court’s recent hearings on Senate reform, Justice Richard Wagner of Quebec repeatedly asked whether aboriginal peoples would have a say in changing Canada’s basic institutions.

Other appointees, such as Marshall Rothstein of Manitoba and Thomas Cromwell of Nova Scotia, are also widely viewed as strong judges.

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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