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Tuesday, April 15, 2014

Last thoughts on Marc Nadon and the Myth of the Harper Court

Abstracting from the technical issue, discussed below, what are we to make of Stephen Harper’s choice of Marc Nadon for the Supreme Court of Canada?

Quite apart from the technical issue, commentary judged him undistinguished, only chosen because Harper liked his dissent in a case concerning Omar Khadr. Harper wanted to plant a pliant judge, deferential to the government, on the Court, was the theory. In doing so he was ‘politicising’ the Court.

Nadon was the 6th judge Harper had ‘nominated’ to the Court, as we now say in our Americanised understanding of these things. US presidents nominate judges. Their appointment must be confirmed by the Senate. In Canada judges are simply appointed by the Governor General on the advice of the government. But, in the case of Supreme Court of Canada appointments, this has become confused by a ‘process’ that has emerged in clumsy emulation of the Americans. As followed by Harper, this consists of a Supreme Court Appointments Selection Panel of MPs going through a long list of prospects and coming up with an unranked short list of three from which the Prime Minister makes his choice.

Commentary has also followed the American example, looking for the politics in the choices, as there undoubtedly is in Obama’s. In the States most judges can be labelled progressives or conservatives, likely to be chosen by Democrat or Republican presidents respectively. But Canada is not the States. If Harper wanted to stack the Court with conservatives, he wouldn’t know how to do it. And, on the record, he hasn’t even tried.

Every one of Harper’s choices had been appointed to a lower court by a Liberal government.

And what have they done for him? Three of his appointments figured in the majority that turned down Nadon. Two in the unanimous court that turned down the national securities commission. Four in the unanimous Court that ‘dealt another blow’ to him in the recent Truth in Sentencing Act judgment, the reasons written by Madam Justice Karakatsanis, the previous choice spotlighted by Harper Court theorists. Five in the unanimous Court that handed him the political embarrassment of the prostitution case.

As for the ‘process,’ his last four choices have passed through the peculiar all party Selection Panel, unknown to law. The Globe’s Jeffrey Simpson complains that the Selection Panel had little time and only got to read a selection of judgments by the judges under consideration. What would he have them do? Constitute themselves as a head hunting firm and beat the bushes for prospects, take applications, seek references, conduct interviews? Appointing people to offices is an executive function. In the US the Senate doesn’t choose judges. The President does. The Senate only confirms his choices.

If a group of MPs is capable of expressing any intelligent preference, which is very much to be doubted, they can do it on the basis of some background material and reviewing judgments.

Who is ‘politicising’ the Court? It is the commentators who imagine Harper’s scheme to make a Harper Court who are politicising the Court. Lawyers should be appointed judges who understand the law, can take in and assess the arguments made before them, come to a decision and explain it in cogent reasons. It is the commentators who would add to these qualifications, or substitute for them, that a good judge should see things at The Globe, The Star and the CBC see them. Should use their seats on the bench to advance a liberal consensus and stymie conservatives. They want a political bench, as long as its politics is correct.

They needn’t worry. Judges come from the comfortable, conventional bourgeoisie, listen to the CBC, take The Globe, if not The Star, and are in thrall to the progressive ideology of the law schools.

So far as Nadon is concerned, perhaps Harper was aware of Nadon’s dissent in the Federal Court of Appeal in Khadr and took a shine to him because of it. For the commentators, to have made a decision in favour of the government, and worse, against Khadr, must mark Nadon as a brutish conservative and a bad judge. In fact Nadon’s dissent is well reasoned, the work of a good judge. And, when the case went on appeal to the Supreme Court of Canada, the unanimous Court, including only two Harper appointees, implicitly agreed with him in substituting a declaration that “that through the conduct of Canadian officials in the course of interrogations in 2003-2004,…, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter,….” for the Federal Court of Appeal’s order “that the government request the United States to return him to Canada.”

There was no “court order repatriating Canadian child terrorist Omar Khadr” as the press had it. The courts could not issue an order repatriating Khadr. That was up to the Americans. Nadon did not say he should not be repatriated. He said the government should not be ordered to ask that he should be. And the Supreme Court of Canada, including seven judges appointed by Liberal governments, agreed. It was under a Liberal government that the Court held Khadr’s rights had been violated. And, in the event, Khadr has been ‘repatriated,’ at Canada’s request, and is in a comfy Canadian gaol.

There is no reason to think that Nadon, had he been permitted to sit on the Court, would have served out his term finding for Harper, or his successors, whoever they may be. He wrote for the Federal Court of Appeal in holding that the government had violated the rights of the blind.

I have a problem with the Supreme Court of Canada. But I see no solution in searching for a school of ‘conservative’ judges and packing the Court with them. The way to a solution lies in understanding what judges should do and what they are doing, in sorting out the law schools and turning away from our obsession with the politicised American courts and the political process by which judges are appointed.

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