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Surprise nominee for SCC
By Cristin Schmitz

October 11 2013 issue

Prime Minister Stephen Harper’s decision to fill the latest Quebec vacancy on the Supreme Court with a semi-retired Federal Court of Appeal judge who specializes in maritime law has left many lawyers scratching their heads.

“Maritime law is a declining area of practice,” a Montreal litigator pointed out. “It’s a bit weird to me,” agreed a Toronto criminal law expert. “Who is he?” asked a puzzled Federal Court practitioner from Ottawa.

Nadon, 64, is a Université de Sherbrooke civil law graduate who for 19 years practised primarily maritime and transportation law with Montreal’s Fasken Martineau. A well-read, small “c” conservative thinker and fluently bilingual anglophile who did maritime arbitrations in London and New York, he has authored hundreds of judgments in administrative, intellectual property, immigration, aboriginal, tax, corrections, and competition law since his appointment to the Federal Court by the Campbell Conservatives in 1993 (He was recommended for appointment by then-Justice Minister Pierre Blais, who Harper later appointed as chief justice of the Federal Court of Appeal in 2009). In 2001, the Chretien Liberals promoted Justice Nadon to the Court of Appeal, where he opted two years ago for supernumerary (part-time) status.

As a seasoned lawyer, and as a judge with two decades of experience and a preference for curial deference to Parliament that meshes well with Harper’s view, Justice Nadon seems a logical pick for the Conservative government.

But he flew “under the radar” as a possible candidate, said University of Ottawa civil law dean Sébastien Grammond. “I think he is quite clearly a highly competent judge but it’s difficult for me to say more than that.”

Justice Nadon’s out-of-the-blue nomination Sept. 30 stunned many in the Quebec legal community and beyond, prompting questions about whether his qualifications were the best available fit for a court needing help with droit civil and criminal law, and whether an Ottawa-based jurist who is not currently in the Quebec bar — and is neither a Quebec Court of Appeal or a Quebec Superior Court judge — is even eligible for one of the three appointments reserved for Quebec under s. 6 of the Supreme Court Act. No Federal Court or Federal Court of Appeal judge has previously occupied a Quebec seat.

(Section 5 of the act says “any 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.” But s. 6 goes on to say that “at least three of the judges 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.”). Read alone on its face, s. 6 appears to exclude judges from the Federal Court and Court of Appeal.

Trying to forestall debate on that novel legal question, the announcement of Justice Nadon’s nomination appended an eight-page legal opinion from former Supreme Court Justice Ian Binnie stating Binnie’s view that a Federal Court judge with 10 years of prior experience as a member of the Quebec bar may be directly appointed to the Supreme Court as a jurist from Quebec. The PMO’s communiqué quotes former Supreme Court Justice Louise Charron, and Canada’s leading constitutional law authority Peter Hogg, agreeing with Binnie that ss. 5 and 6 of the act, read together, permit direct appointments from the Federal Court or Federal Court of Appeal to the Supreme Court’s Quebec spots.

At press time, the Quebec government had not publicly weighed in on what could conceivably develop into a political sore spot with Ottawa. University of Ottawa law professor Adam Dodek said Binnie’s legal opinion “shows the need to amend the Supreme Court Act to clarify that Federal Court judges are indeed eligible for appointment” from Quebec (Frank Iacobucci from Ontario, and Justice Marshall Rothstein from Manitoba, among others, were previously elevated to the high court from the Federal Court of Appeal).

Initial reaction from the legal community to Justice Nadon’s nomination was muted (he had not yet been appointed at press time). 

However, Canadian Bar Association president Fred Headon congratulated the judge and noted he will bring the court’s bench back to full strength in time for its fall session. His “extensive experience” in practice and on the bench “will serve him well,” Headon predicted.

The Barreau du Québec declined comment on the nomination. The Criminal Lawyers’ Association did not return telephone calls.

NDP Justice critic Françoise Boivin, one of five MPs on the all-party Supreme Court “selection committee” which winnowed down to an unranked shortlist of three the candidates put forward by the Harper government, said she would have preferred a female jurist to fill the vacancy created by Morris Fish’s retirement last August.

The Quebec labour lawyer said she can’t disclose whether she and her colleagues unanimously shortlisted Justice Nadon (a majority vote of the government-dominated committee suffices to shortlist a candidate).

She noted there were “definitely” women jurists well qualified for the post such as Quebec Court of Appeal Justices Marie-France Bich and Johanne Trudel, whose names have been publicly mentioned as candidates.

In a conversation with federal Justice Minister Peter MacKay before the ad hoc committee began its work, Boivin said “I kind of implored him to be sensitive to this dire need to bring back gender balance to the court. Obviously he didn’t follow my advice.”

She noted Justice Louis LeBel’s mandatory retirement in 2014 marks the next chance to restore the court’s female complement to four judges.

“I’m not sure that [the prime minister] wants part of his legacy to be a gender-balanced Supreme Court of Canada,” Boivin said. “So we might have missed all of the opportunities to have a woman from Quebec sitting on the highest court in the country.”

In announcing Justice Nadon’s nomination, Harper said his “extraordinary body of legal work” as a long-time judge, lawyer, arbitrator, teacher and author “makes him an ideal candidate for the Supreme Court of Canada. His nomination is the result of an extensive review process that included consultations with prominent members of the legal community in Quebec.”

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