Supreme Court of Canada nominee Marc Nadon, left, arrives to testify before an all-party committee to review his nomination with Justice Minister Peter MacKay in Ottawa on Oct. 2, 2013.CHRIS WATTIE/Reuters
The Supreme Court's newest judge set out a modestly deferential view of the role of the country's highest court, at a nationally televised nomination hearing. He also avoided being drawn into a discussion of his views on controversial rulings he'd written, including one involving Canadian terrorist Omar Khadr, in which he sided with the federal government.
"We're not another Parliament," Justice Marc Nadon told a special parliamentary committee on Wednesday. "It's not up to us to say this is not a good law, it ought to be changed." He said, however, that the Constitution "gives us a slightly different role, because the Charter [of Rights and Freedoms] sometimes allows us to indicate if a law needs to be changed." He also said that all judges would give that same answer to the question of whether judges should apply law or create law.
Justice Nadon, 64, is Prime Minister Stephen Harper's choice to replace a Liberal appointee, Morris Fish of Quebec. He is Mr. Harper's sixth appointee on the nine-member court..
He said sometimes he sides with the government and sometimes against it, depending on the evidence and arguments. He stressed the importance of listening to lawyers with an open mind. "Not every day, not 90 per cent of the time, but very often, the oral arguments change our mind," he said. "We're very open. You have to listen, hear and be ready to consider arguments that perhaps at first glance don't seem important, but end up being so."
Committee member Irwin Cotler, a former Liberal justice minister, asked Justice Nadon what his ruling in Mr. Khadr's case revealed about him as a judge. In that case, Justice Nadon found Canada's treatment of the former teenage prisoner nearly blameless, a finding at odds with the Supreme Court's subsequent unanimous ruling. His view that foreign policy matters should be left to government, not judges, to decide, was affirmed by the Supreme Court.
"That was my assessment of the case and how it should go – I really can't say any more than that," Justice Nadon said.
Mr. Cotler also asked if he would make the same decision today as when he found Léon Mugesera of Rwanda – whose hateful speech about Tutsis and "cockroaches" had implicated him in war crimes – not to have committed crimes against humanity. The Supreme Court later disagreed with him unanimously on that point. Justice Nadon said he would not answer the question, but went on to say that his ruling supported the deportation of Mr. Mugesera.
Mr. Cotler was then rebuked by Shelley Glover, a Conservative member of the committee, for asking Justice Nadon to justify a decision he had written.
University of Toronto law professor David Schneiderman said after watching the hearing that he was struck by "how little substance" there was. "It was noticeable how the NDP and Liberal committee members tried to draw the judge into a discussion of particular rulings – into more substantive discussion of the law, which is totally in bounds in the U.S. Senate confirmation process so long as questions are not about how the judge will decide future cases. The nominee deftly handled these by not talking substance, but talking abstractly about things like the separation of powers."
Mr. Cotler also asked the judge how his appointment contributes to diversity. (The appointment has been controversial because of pressure on Mr. Harper to restore the court's complement of women to four.) "Am I the ethnic candidate that fits perfectly? I'll let others answer that," Justice Nadon replied.
Earlier, he described his family background: His father was a player in the American Hockey League at a time, he said, when hockey players didn't make much money. His mother, the daughter of Ukrainian immigrants, was a singer. During his first few years, he was raised in English, but his education was conducted entirely in French. He said he was drafted at age 14 by the Detroit Red Wings organization, and the following year his father told him he must choose between hockey and studying. He chose studying. (Conservative MP Bob Dechert said, however, that his appointment bodes well for the Supreme Court hockey team.)
Justice Nadon praised the senior lawyers at the Montreal firm he started at in 1974, then known as Martineau Walker, for telling young lawyers not to worry about billable hours, but about becoming excellent lawyers. Asked what he would bring to the court, he said he is an independent thinker, has a lot of patience, works well with colleagues, is willing to be moderate when necessary and "steadfast when I need to be."
At times he showed flashes of a dry wit. "All of the Supreme Court hearings are televised, although I think Judge Judy is still more popular."
New Democrat Françoise Boivin asked him if he had been partway toward retirement when he was chosen from the ranks of supernumerary judges on the Federal Court of Appeal.
Justice Nadon replied that being supernumerary meant a smaller caseload and more time to spend on each case. "Being supernumerary gives us the time to look at more complex cases."
Justice Minister Peter MacKay, who chaired the meeting, was asked in an interview why in each of the four public nomination hearings held during Mr. Harper's years in office, the committee has been given just two days' notice of who the nominee is. "As a lawyer you're very often called before the court on short notice, and expected to make a case," he replied.