It is not every day that sitting judges publicly criticize the Supreme Court of Canada for having abandoned principle, or being every bit as political as the U.S. Supreme Court.
But Federal Court of Appeal Justice Marc Nadon is not just any judge. He is the only one named to the Supreme Court who was ever rejected by that court as legally ineligible.
In a conversation with a group of law students known as the Runnymede Society, Justice Nadon provided a glimpse of the judge Canada nearly got – erudite and brash, deeply conservative and willing to take on the country’s highest court.
The essence of his message: Canada’s judges, including those on the Supreme Court, too often serve their own ideas of fairness and justice in interpreting the 1982 Charter of Rights and Freedoms. In that sense, they are political – bringing their own ideologies to judging.
“Courts are institutions. You’re not free to go there and change the world,” Justice Nadon, who is now 70, told the students in a session at McGill University law school on Jan. 17, 2018. Runnymede, a libertarian group, shared a video of the event with The Globe and Mail.
“The law is the law. The law is not just set for you. . . . When I hear judges saying, ‘Well, I decide cases based on what I think is fair,’ that’s not my view ... . I say that sounds to me arbitrary. Remember the statue of justice you see is blind.”
In Justice Nadon, prime minister Stephen Harper was seeking a dissenting voice on a court he viewed as overly liberal – too willing to act as a check on government by interpreting the Charter in a way that is sympathetic to minorities and those accused of crime. (The Charter gives judges the authority to strike down laws that violate rights.) For instance, gay rights were not explicitly protected in the Charter, and Mr. Harper said the court was wrong to read them in.
In his highest-profile ruling, in 2010, he was the only judge among 13, on three levels of court, who found that the Canadian government had behaved lawfully toward Omar Khadr, a Canadian held in a U.S. prison for suspected terrorists at Guantanamo Bay, Cuba. (Canadian officials had questioned him at age 16, in the absence of legal counsel, and passed his answers to his captors.) But the Supreme Court agreed with Justice Nadon that it was not the courts’ place to order Ottawa to demand his repatriation.
Justice Nadon’s Supreme Court appointment in 2013 was the catalyst for an unprecedented public confrontation, when Mr. Harper accused chief justice Beverley McLachlin of attempting to interfere in his case, an allegation she denied. The court rejected the appointment in a 6-1 ruling, saying Justice Nadon did not meet the terms of the Supreme Court Act, which required that each of its three Quebec judges be an advocate of that province, or a member of a senior Quebec court. Justice Nadon has declined interview requests from The Globe since that time, the most recent on Sept. 3.
Justice Nadon told the Runnymede students that the views of the conservatives on the U.S. Supreme Court are “similar to mine.” Those judges have endorsed "originalism,” the notion that the Constitution must be interpreted in light of the intentions of its founders more than two centuries ago. Justice Nadon gave an example of where he supported originalism in the Canadian context.
The example involves the Charter’s Section 7, which protects the right to life, liberty and personal security. In constitutional talks in 1981, it was clear, Justice Nadon said, that the drafters of the constitution intended the section only to protect an individual’s right to due process in the legal system.
But in a major 1985 case known as the B.C. Motor Vehicle Reference, the Supreme Court said it would also use Section 7 to ensure laws are fair and just in their substance. By interpreting the Charter in such a broad – liberal – fashion, the court opened the way to a history of activism, from striking down the criminal law on abortion in 1988 to permitting physician-assisted dying in 2015. Without that 1985 decision, the court would have been much more constrained and more deferential to Parliament on major social issues.
“I think it was erroneous in law,” he said of the 1985 ruling, because it disregarded the intentions of the Charter’s framers.
Having opposed the overturning of precedent, however, he said he is not sure how far he would have been prepared to go to challenge the Supreme Court’s broad interpretation of Section 7.
“Whether, if I were sitting there, I would be prepared to overturn it, maybe not. It’s settled,” he said.
Justice Nadon told the students he has more respect for the U.S. Supreme Court than the Canadian one, because its politics are in the open.
“I recently said to a judge of the Canadian Supreme Court who I like very much, ‘I don’t want to offend you, but I have more respect for the American Supreme Court.’ His gut answer was ‘the U.S. Supreme Court is political.’” Justice Nadon mocked this notion, saying the Canadian court is supposedly not political because its judges, with one or two exceptions, tend to share the same liberal ideas.
What judges should be doing, he says, is thinking through problems in the ways developed by the legal system over many years. He refers to these long-established problem-solving approaches (such as following precedent) as legal principle and doctrine.
Doctrine, he said, is “everything.”
"If judges abandon principle, abandon doctrine, we are in for very difficult times in the future.” He said the Supreme Court had done so by rejecting its own precedents on physician-assisted dying and other cases on “very flimsy grounds.”
It is a conservative message, because his point is that courts should be wary of changing with the times and of questioning established legal ideas; when they do so, he says, the law loses its predictability and consistency, and the public’s respect for the legal system is put at risk. (His message was quite different at his public nomination hearing in 2013, when he said he did not support “predictability to the point of madness.”)
Joel Bakan, a professor at the University of British Columbia’s Allard School of Law, said in an interview that Justice Nadon is asking judges to apply the law “mechanically.”
“When you give the judiciary norms like freedom, equality and liberty, the notion that they can just mechanically find the answer to what those mean is quite impossible. Interpretation requires drawing on your sense of the world and how things should be.”
One legal observer who knows Justice Nadon well described him in an interview as an arch-conservative who is very proud of his views and likes to share them in conversation. In Justice Nadon’s view, the observer said, doctrine is a set of principles judges are not entitled to touch. Judges must follow these principles to protect certainty of the law.
The observer, to whom The Globe has granted confidentiality because he occupies a sensitive position in the legal community, says Justice Nadon’s hero was U.S. Supreme Court justice Antonin Scalia, who died in office in 2016. Justice Scalia stressed the importance of originalism.
Author Rosemary Sexton, a friend of Justice Nadon, is still bitter at the court’s rejection of his appointment, and how he was treated by the media, who she said described him as semi-retired and an expert in maritime law, as if that’s all he was. (Ms. Sexton’s husband, Edgar Sexton, served with Justice Nadon on the Federal Court of Appeal.) Justice Nadon, she said, is highly intelligent, kind and a big reader – he especially enjoyed conservative intellectuals William F. Buckley Jr. and Bill Kristol. “The living room/library of his beautiful log home in Montebello is covered in wall-to-wall book shelves that go above the doorways and reach the high cathedral ceilings,” she said in an e-mail.
Justice Nadon appears to have a sense of humour about his short-lived Supreme Court appointment.
“Everywhere I go when I’m introduced,” he told the Runnymede students, “I usually say after the introduction, ‘You forgot to say I was appointed to the Supreme Court.’ They may want not to hurt my feelings.”