I’m quite late to the topic, but I want to say something about the debacle that is Justice Nadon’s appointment to the Supreme Court. The government’s decision to appoint him is being attacked both legally and politically, and while the political criticism cannot undo it, the legal challenge could, in theory, and has already forced Justice Nadon to step aside from the Supreme Court’s work. Yet, ironically, the legal challenge is without merit. So are some of the political attacks ― but not others.
The line of criticism against Justice Nadon’s appointment that does have merit concerns his suitability for the job. As Jeffrey Simpson put it yesterday in the Globe and Mail, “the Supreme Court deserves better.” It is simply not clear what qualifies Justice Nadon for the Supreme Court ― it is certainly not his expertise in maritime law, which will go unused there. Actually, Justice Nadon’s most important asset in the eyes of the government which appointed him was probably his usual strong inclination to side with the government in disputes about its power. The best-known and most dramatic example of that was his dissent in Canada (Prime Minister) v. Khadr, 2009 FCA 246,  1 FCR 73, where he argued that not only had Canada not infringed Omar Khadr’s rights, but in fact that it did all it could for him ― in Justice Nadon’s view, it seems, interrogating a citizen who you know has been tortured is helping him. Presumably, the government expects Justice Nadon to take the same sensitivity with him to the Supreme Court, and help endorse its agenda, starting with the Senate reform plan the constitutionality of which the Court is due to consider next month. Appointing a judge in the expectation that he will be rubber-stamp rather than an independent thinker does, of course, deserve harsh criticism. If anything, there has not been enough of it in the last few weeks.
What there has been too much of, however, is criticism of Justice Nadon’s ability to represent Québec. The most absurd claims, voiced by members of the provincial government, is that Justice Nadon does not deserve to be appointed to one of Québec’s seats at the Supreme Court because he lives on the Ontario side of the Ottawa river. La Presse’s André Pratte demolished this line of argument in a recent editorial, pointing out that
[i]f we follow [this] reasoning, a lawyer who practiced for 10 years in Rivière-du-Loup would be a more suitable representative for Québec than a brilliant jurist who, for example, spent a part of his career with the International Court of Justice. (Translation mine)
The seemingly more serious critique concerns Justice Nadon’s supposed lack of familiarity with Québec’s civil law ― the distinctiveness of which, after all, is the reason Québec is entitled to three judges at the Supreme Court in the first place. But this herring is of only a mildly less intense hue of scarlet than the matter of Justice Nadon’s address. It is simply not true that all the judges appointed from Québec are civil law experts. Justice Fish, for example, whom Justice Nadon was appointed to replace, was a criminal law expert, and I’m not sure he had ever dealt with civil law in his practice. He did serve on the Québec Court of Appeal for a long time prior to his appointment to the Supreme Court, dealing of course with civil law cases, but I don’t think that it ever became an area of expertise for him. The same is true of Chief Justice Lamer (whose prior judicial service was mostly on the Superior Court). Justice Beetz had taught constitutional law prior to becoming a judge, and served only briefly on the Québec Court of Appeal prior to his appointment to the Supreme Court. Yet they were all distinguished (and, in the case of Chief Justice Lamer and Justice Beetz, arguably great) judges. No judge can be an expert in, or even familiar with, all the areas of the law with which his or her court deals with. This is especially true of Supreme Court judges, who might be called on to deal with just about any case that can conceivably arise in the Canadian legal system. Judges have to learn on the job ― and it probably doesn’t matter very much whether a particular judge’s learning curve is steepest in civil, criminal, or constitutional law. It is legitimate to ask just what each judge brings to the Supreme Court’s table ― and in Justice Nadon’s case, the answer seems to be, sadly, not a whole lot. But it is not fair to criticize a new appointee for what he or she does not bring ― there are no good judges by that standard.
Right or wrong, political critiques about the wisdom of Justice Nadon’s appointment cannot undo it. A legal challenge, originally launched by a Toronto lawyer, then joined by the Québec government, and subsequently superseded ― in practice although not yet technically, so far as I know ― by the federal government’s decision to submit the issue to the Supreme Court on a reference, is another matter. The problem is that s. 6 of the Supreme Court Act provides that “[a]t least three of the judges [of the Supreme Court] shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” Justice Nadon is obviously not a judge of the Court of Appeal or the Superior Court of Québec. He was, prior to his appointment to the Federal Court, an “advocate of that province” ― but of course he no longer is one. At first glance, only current, not former, Québec lawyers can be appointed. By contrast, s. 5 of the Supreme Court Act, which applies to all judges (other than those from Québec), provides that “[a]ny person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” This wording embraces former lawyers, and thus permits the appointment of judges from the federal courts. Since s. 6 is drafted differently, it should also be understood differently ― or so goes the argument; and at first glance, it is a persuasive one.
Even more persuasive to me, however, is the opinion of (the former Supreme Court) Justice Ian Binnie, who has concluded that, despite the literal meaning of these provisions, their correct interpretation permits the appointment to the Supreme Court of former members of the Québec bar who have subsequently served in the federal courts, such as Justice Nadon. Justice Binnie’s argument is twofold. First, he studies the history of the predecessor provisions of sections 5 and 6, and concludes that the current wording of s. 6 is only a quirk of statutory revision, which does not actually reflect Parliament’s intent to prevent the judges of federal courts (or, say, of international tribunals) from being appointed to the Supreme Court. Legislative purpose is the second element of Justice Binnies analysis. The raison d’être of sections 5 and 6, he says, is to ensure that only qualified, experienced candidates can be appointed to the Supreme Court. But reading s. 6 as preventing the appointment of former Québec lawyers who then became federal court judges not only does nothing to achieve that purpose ― it contradicts it, because it would mean that a lawyer who could be appointed to the Supreme Court straight out of practice could not be appointed after serving some years at the Federal Court of Appeal ― despite being, obviously, a more experienced and better qualified candidate. I encourage you to take a look at Justice Binnie’s analysis. It is quite brief and easily readable ― and, as I said, very persuasive.
Justice Nadon’s nomination was supposed, it seems, to be a vessel that would carry the federal government to the sweet lands of success, whatever projects of its that the Supreme Court might be called upon to validate ― starting with that about Senate reform. The vessel was not fully seaworthy ― but that wasn’t expected to matter. Yet it has been caught in a legal storm that is going to keep Justice Nadon at sea for the next several months, if not longer, and which might yet sink him, if the Supreme Court disagrees with Justice Binnie. Ironically, that storm is, in my view, nothing but a tempest in a teapot.