Harper's nomination continues Supreme Court's shift to the right

The Globe and Mail

The Supreme Court of Canada building in Ottawa. (DAVE CHAN FOR THE GLOBE AND MAIL)

Canada’s newest Supreme Court judge, plucked from the semi-retired list, adds conservative tendencies to a growing conservative tilt on the country’s highest court.

Marc Nadon, 64, was most recently a supernumerary, or partly retired, judge on the Federal Court of Appeal – an unusual source of judges for the Supreme Court. He is Prime Minister Stephen Harper’s sixth appointment to the nine-member court, and replaces the retired Justice Morris Fish of Quebec, a Liberal appointee who has been a strong voice for the rights of accused people.

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The choice of Justice Nadon came in the face of pressure from Quebec to name a female judge, as the court’s complement of women had dipped to three from four. But Justice Louis LeBel is stepping down next year, at mandatory retirement age, giving Mr. Harper another opportunity to restore the previous gender balance.

Justice Nadon expressed something of his judicial philosophy in a notable judgment in 2009 involving accused (now convicted) terrorist Omar Khadr, imprisoned at Guantanamo Bay, Cuba, since he was a teenager. In dissent, Justice Nadon gave a strong, even passionate rejection of Canada’s responsibility to try to repatriate him. The Supreme Court affirmed that point of view, but its ruling criticized the Canadian government’s treatment of Mr. Khadr. Justice Nadon, on the other hand, found Canada mostly blameless.

The Federal Court’s bread-and-butter is national security, intellectual property and tax law, not constitutional matters, so his views on the Charter of Rights and Freedoms are not known. Justice Nadon served on the court’s trial and appeal levels for the past 20 years.

Mr. Harper made no reference to Justice Nadon’s supernumerary status in a statement in which he said the judge has produced “an extraordinary body of legal work,” and is considered a leader in the area of maritime law.

But some law professors criticized the appointment, viewing the judge as a step backward from Justice Fish.

“I think an expert in admiralty law is an odd choice, because it’s not a very strong match with the court’s core jurisdiction in public law, the Charter [of Rights and Freedoms] and criminal law,” said Jamie Cameron, a law professor at York University’s Osgoode Hall Law School. “It’s really not obvious to me how this person strengthens the court and replaces Justice Fish, who was an eminent and very well-respected jurist with all sorts of expertise in public law and criminal law.”

She suggested the Prime Minister’s approach to Supreme Court appointments is creating a “workmanlike” bench that will “do little to inspire and promote the development of law. It will favour the status quo.”

Roderick Macdonald, a McGill University law professor, said the appointment may signal that the government feels a need for expertise in international commercial law, international dispute resolution and the relationship of international norms with domestic norms.

There was some surprise in Quebec, perhaps because the Federal Court of Appeal is not watched nearly as closely as the province’s appeal court. “I’m a bit surprised because the name wasn’t one of those we expected,” said Hugo Cyr, a law professor at the University of Quebec at Montreal. “But I think he’s a judge who tends to be very deferential to decisions made by the executive, so it makes sense coming from that government.”

Sébastien Lebel-Grenier, dean of the University of Sherbrooke’s law school, offered a different view. While Justice Nadon has a reputation for being a conservative-leaning judge, he said, “what stands out most is a true allegiance to intellectual integrity. He’s got a very open mind. He’s someone who enjoys debates and discussions with students here at the faculty,” to which he returns regularly. (Justice Nadon graduated from the Sherbrooke law school in 1973.)

In a 2003 case, in which a group of status Indians sought tax-exempt status off-reserve, Justice Nadon rejected a lower-court ruling that would have granted that status, based on evidence handed down through the oral tradition; he said the evidence just wasn’t there.

He showed a similarly restrained approach when he rejected the claim of an adoptive mother for full maternity benefits.

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