How Harper bungled Supreme Court appointment: Prime Minister Stephen Harper’s decision to appoint Marc Nadon, of the Federal Appeal Court, to the Supreme Court of Canada is problematic for several reasons

Quebec bar urges quick hearing on Justice Marc Nadon’s eligibility, Could take 5 years for case to get through legal system if not expedited, says bar association head by CBC News, October 11, 2013
Quebec’s bar association is urging Prime Minister Stephen Harper to refer a legal challenge of Justice Marc Nadon’s eligibility to sit on the Supreme Court directly to the country’s top court. Nadon, who was chosen on Sept. 30 to join the Supreme Court, has recused himself from participating in cases while a Federal Court hears the challenge brought by a Toronto lawyer. Johanne Brodeur, president of the Quebec bar, says Nadon’s move means that some important cases will not be heard by a full bench. For example, when the top court sat earlier this week to hear Mohammed Harkat’s challenge of the constitutionality of security certificates, only eight justices were on the bench. Additionally, a case on reform of the Senate is due to begin Nov. 12.

Brodeur said the legal challenge could take years to resolve. “It has to go to Federal Court, and Court of Appeal. It could take up to five years or more,” she told CBC’s James Fitz-Morris. Even if the case is fast-tracked directly to the Supreme Court, she said, it could possibly take up to two years. At issue are the rules of who may be appointed to the country’s top court. Nadon would seem to meet the general qualifications, but doesn’t seem to fit the special requirements outlined for the three judges representing Quebec, guaranteed under the law. The dispute is over whether Nadon is an advocate of the province of Quebec, given he spent the last nine years as a Federal Court judge in Ontario.

Rocco Galati is the constitutional law expert and lawyer who brought forward the case. His argument is that only judges from Quebec’s appeals or superior courts, or lawyers who have been members of Quebec’s bar for at least 10 years, can be appointed to the Supreme Court. “I have severe doubts on the propriety — the statutory and constitutional propriety — of this appointment,” he said. … Regardless of whether the matter works its way through the court system or is expedited straight to the top court, Mathen said the Supreme Court will have to rule on itself. “I think the optics are very unfortunate, and it puts the court, it puts all the justices in a very difficult position.”

The federal government evidently knew that selecting Nadon could cause problems. Prior to selecting Nadon, the government sought a legal opinion from Ian Binnie, a retired Supreme Court justice, who backed the appointment. Federal Justice Minister Peter MacKay said he will defend the rights of Quebecers from the Federal Court to sit in the Supreme Court, but so far hasn’t moved to expedite the challenge against Nadon or explain why he hasn’t. The Supreme Court won’t say what Nadon is currently doing because the matter is before the Federal Court. [Emphasis added]

How Harper bungled the Supreme Court appointment: Analysis, Prime Minister Stephen Harper’s decision to appoint Marc Nadon, of the Federal Appeal Court, to the Supreme Court of Canada is problematic for several reasons by Tonda MacCharles Ottawa Bureau, October  11, 2013, Toronto Star
Prime Minister Stephen Harper has made a spectacular mess of filling the latest Quebec seat on the Supreme Court of Canada. It’s the talk of the profession’s social, political and judicial circles, and not just Quebec but beyond. On Thursday, the mess left the country’s top court one judge shy of a full bench with major cases on its agenda because the appointee has stepped aside. Nobody knows for how long. All because a court challenge has been brought against Harper’s decision to vault over Quebec’s bench and bar, and pick from the federal court bench — a challenge which could in theory go all the way up to the high court itself. …

Why is it a mess? First, Harper appointed a man, Marc Nadon, when many were looking for a restoration of better gender balance on the court. The appointment of Nadon was seen as a missed opportunity to increase the number of women on the top bench back to a high of four. It’s widely believed there were at least two qualified candidates interested in the job. Second, in Nadon the prime minister picked a former maritime law expert — a field that does not dominate the Supreme Court’s caseload — who has no criminal or constitutional law expertise and no recent or really any experience with the practice of Quebec private law on his resumé.

Third, Harper reached into the ranks of “supernumerary” judges — and despite what Nadon told a Commons committee about his commitment to hearing more complex cases, it does mean semi-retired. Supernumerary judges elect to carry 50 per cent of a normal caseload.

Fourth, Harper selected a judge who is seen as deferential to Parliament and the decisions of government-appointed tribunals, not as someone who will readily call the government to account. One lawyer has made a sardonic index of the appointee’s 25 most recent judgments noting “maximum judgment length: 8 sentences, favourite expression: ‘Appeal dismissed with costs.’”

Most important, Harper’s latest appointee is a Federal Court of Appeal judge drawn neither from the ranks of Quebec’s superior trial or appellate courts nor from the province’s lawyers in private practice — contrary to a fairly clear provision in the Supreme Court of Canada Act.

It’s this point that has led to the court challenge by Toronto lawyer and well-known thorn-in-the-side of federal judges, Rocco Galati. Galati last year succeeded in overturning a provision that allowed judges over the age of 75 to sit as “supernumerary” on cases. He is outraged by what he sees as a cavalier attitude on the part of the Harper government toward the Supreme Court of Canada, the law that governs it, and the constitutional conventions of the country.

“They’re running this thing like it’s an overnight poker game,” Galati says of the government’s move.

Quebec, he says, is the only province with a guaranteed number of seats on the bench — a clear nod to the nature of the compromises that built the federation. The Supreme Court of Canada Act was expressly written to make federalism work, and if the government wanted to change it, it needed to change the law, which in turn would take a constitutional amendment that requires unanimous consent of provincial and territorial legislatures. Or the prime minister could have referred the question directly to the Supreme Court, Galati says.

What really boils Galati and others is that Harper clearly saw it coming. The prime minister tried to inoculate the appointment by seeking an outside legal opinion from retired Supreme Court judge Ian Binnie, who pronounced it was “common sense” to interpret the act to allow the nomination of a Federal Court judge who had previously 10 years practicing law in Quebec. The government then asked two other experts to review Binnie’s opinion: retired Supreme Court judge Louise Charron and constitutional law expert Peter Hogg, who lately has advised the federal government on its national securities regulator case and Senate reform. Both concurred. But nobody appears to have bothered to ask any legal experts in Quebec to weigh in. It might have lent credibility to the move, had a Quebec constitutional expert agreed with Harper. On the other hand, it may have blown up in the Conservative government’s face.

Nadon decided in light of Galati’s challenge not to participate in Supreme Court matters “for the time being,” presumably because he views the challenge to the process as serious, for now at least. And how long is Nadon supposed to stand aside? Nobody knows. But should he remain off the bench for long, it throws a major wrench into the high court’s work.

On Thursday and Friday, eight judges instead of nine sat on an important constitutional challenge to Canada’s immigration powers to deport suspected terrorists. And what happens if the judges end up in a tie vote on the decision? The lower appeal court order is the one that stands — not the Supreme Court’s view of the legislation. In that case, it would send the Mohamed Harkat case — which has now been 11 years before various courts — back for a rehearing at the Federal Court level, as ordered by the Federal Court of Appeal. There are other major cases on the agenda: an important aboriginal title case, reviews of the Conservative government’s changes to prison and parole laws, and of course, the season blockbuster — Harper’s reference case on Senate reform. Harper wants the high court to rule whether he can abolish or reform the Senate without seeking unanimous consent of the provinces. That’s one surely the Supreme Court of Canada might want a full bench to hear — whether it leads to unanimous agreement or not.

It certainly is a mess.

Justice Nadon steps aside from Supreme Court until legal challenge resolved by Sean Fine, October 8, 2013, The Globe and Mail
One day before he was to hear his first case on the Supreme Court of Canada, Justice Marc Nadon has decided to step aside temporarily in the face of an unprecedented legal challenge to his appointment from Toronto lawyer Rocco Galati. “Mr. Justice Marc Nadon has decided, in light of the challenge to his appointment pending before the Federal Court, not to participate for the time being in matters before the Supreme Court of Canada,” the court said in a news release on Tuesday. Mr. Galati has long been a thorn in the side of Federal Court judges – and Justice Nadon has spent the past 10 years on the Federal Court of Appeal. … He contends that Justice Nadon was not eligible to take a vacant Quebec seat on the Supreme Court. Section 6 of the Supreme Court Act says a judge on the Quebec Court of Appeal or Superior Court, or from among that province’s lawyers, may sit in one of the court’s three chairs reserved for Quebec judges. It does not mention the Federal Court. “The composition of all the courts should be in accordance with the statute and the Constitution,” Mr. Galati said in an interview, explaining why he filed a notice of application in Federal Court in an attempt to put the appointment on hold while he seeks a permanent order against it. … Mr. Galati argues in his court filing that the government should have referred the issue to the Supreme Court for a ruling on the legality of the appointment.

Justice Marc Nadon drafted by Harper – and Red Wings? Supreme Court nominee clarifies surprise claim to MPs that he was drafted by Detroit’s NHL team by Chris Carter, October 3, 2013, CBC News
Canada’s newest Supreme Court Justice managed to mix two of Canada’s national pastimes — hockey and politics — when he told MPs reviewing his nomination to the top court that he had been drafted by the Detroit Red Wings. “During my youth, my ambition was to become a hockey player,” Marc Nadon said, as he shared some details of his upbringing. “In fact, I was drafted by the Detroit Red Wings when I was 14.” That set some hockey fans scrambling for more details — and scratching their heads.

One of the MPs on the special Commons committee who heard from Nadon Wednesday said she’d appreciate an official clarification. “Of course, it is always a concern if someone misinforms a Parliamentary committee — we expect judges to be scrupulous in making representations to Parliament. I hope he’ll take the earliest opportunity to clarify the details of his junior hockey career with the committee,” the NDP’s Françoise Boivin wrote in an email to CBC News. [Emphasis added]

Justice Marc Nadon, gender equality and Stephen Harper’s choice of judges, A noticable trend to less diversity, women on the country’s top courts by Chris Hall, October 3, 3013, CBC News
Stephen Harper’s latest choice for the Supreme Court of Canada is a white man. And a lot of people who are commenting on the nomination of the Federal Court’s Marc Nadon think that’s a problem, both for the bench and for Canada. … Their point is that, with his appointment, there will be twice as many men as women on the nine-member Supreme Court, a gender bias that has been evident with federal court appointments ever since the Conservatives took power in 2006. … For proponents of gender parity in the courts, the decline in female judges is obvious and is a trend that must be reversed. “The court needs to be diverse,” University of Ottawa law professor Rosemary Cairns Way said this week in an interview on CBC Radio’s Ottawa Morning. “The court needs to reflect the face of Canada and the different perspectives of Canadian people.” Even the Chief Justice of the Supreme Court, Beverley McLachlin, said she’s ”all in favour of gender parity” on the top court. ”I think the court should be representative of society,” she said in an interview with the CBC’s Peter Mansbridge earlier this week, adding that more than half of law school graduates these days are women.

And it’s not just women who are missing in action. Law professors and others say there is also a shortage of non-whites on the bench. Justice is better served, they argue, when those who turn to the courts believe someone from their background, with their life experiences, is presiding.

But while the Harper government is more than willing to court votes among minorities and new Canadians, that same commitment doesn’t appear to extend to giving them preference in judicial appointments.

The choice of Marc Nadon is also a clear signal to his critics that the prime minister won’t be pushed into choosing a woman, even when it comes to replacing Supreme Court Justice Louis Lebel when he retires next year. Judicial ideology will likely trump gender and diversity once again. [Emphasis added]

Stephen Harper’s Ghastly Supreme Court Appointment by Montreal Simon, October 1, 2013

And Nadon’s record speaks for itself.

Twelve years ago he ruled that the Rwandan war criminal Leon Mugesera was not really a war criminal. A ruling that was overturned by an 8-0 decision of the Supreme Court of Canada. During the 2011 election campaign he ruled that Elizabeth May could not participate in the televised leaders’ debates. And no doubt this was the decision that earned him his new job…

Harper’s nomination continues Supreme Court’s shift to the right by Sean Fine, September 30, 2013, 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.

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.

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.” [Emphasis added]

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