Thursday, October 17, 2013

Whoa cowboy whoa Antonin Scalia you are not!

Good Day Readers:

The attempted appointment of Marc Nadon to the Supreme Court of Canada graphically illustrates just how flawed the nomination process really is - process and procedures aside, it's what Stephen Harper wants. But it doesn't end there look at the Senate. How in God's name did we end up with Mike Duffy, Pamela Wallin, Mac Harb and Patrick Brazeau?

One need look no farther than the Douglas Inquiry to see how flawed the selection process was in appointing Lori Douglas to the Manitoba Court of Queen's Bench a bad decision for which taxpayers will be responsible for God knows how much longer.

Sincerely,
Clare L. Pieuk   
Judge mired in legal challenge seen as fan of American Scalia

His previous work has emphasized precedent and disdain for any 're-do' of Law

By Cristin Schmitz
October 18, 2013 Issue
Justice Marc Nadon is seen above during the parliamentary committee hearing in Ottawa on October 2, following his nomination to the Supreme Court of Canada. He has decided not to assume his duties until a legal challenge over his eligibility to serve is resolved. (Adrian Wyld/The Canadian Press)

Although he has opted not to assume his duties until the legal situation surrounding his appointment is clarified, many are wondering where Justice Marc Nadon fits in on the nation’s top court politically and in terms of jurisprudence.

Is he Canada’s answer to Antonin Scalia?

It’s hard to imagine a Supreme Court of Canada judge leaning as far right as the U.S. Supreme Court’s most prominent conservative, but Justice Nadon, is a Scalia fan. When his ex-colleague at the Federal Court of Appeal, Justice Marshall Rothstein, was promoted to the high court seven years ago, Justice Nadon gave him the book Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice.

Justice Nadon “would take it as a badge of honour” to be compared to Scalia, says a senior jurist and former colleague. “He’s conservative. There’s no doubt about it. You don’t wonder where he is philosophically. But he’s intellectually honest about it. He’s got intellectual integrity in holding to his views.”

At press time, Justice Nadon had announced he would not assume his duties at the Supreme Court “for the time being” due to a court challenge to his eligibility for appointment to one of the court’s three seats reserved for Quebec.

When and if he does step into his new role, however, the 64-year-old avid golfer — who has spent his judicial career reading widely in history and politics and engaging intellectually with public policy questions — is expected to stick with a judicial philosophy that emphasizes restraint, deference, precedent and the wording of statutes, and which leaves it up to legislators to fix defective laws (absent constitutional imperatives).

As he explained to MPs on Parliament Hill October 2, “Courts need to make sure that they don’t interfere with executive and legislative power, and in my opinion, that’s absolutely essential…There’s still a separation of power here. If there are no Charter issues, then the mandate of the courts is to apply the act as it has been enacted by the Parliament of Canada,” he said. “It’s not up to us to say: ‘This isn’t a good law, we’re going to re-do it’… that’s certainly not my philosophy.”

The judge didn’t say much about his approach to the Charter, but his typical restraint is illustrated by his Federal Court of Appeal dissent in the Khadr case — much admired by Prime Minister Stephen Harper — in which the judge accepted Ottawa’s argument that the Charter doesn’t empower courts to interfere with the executive’s foreign policy decisions.

In the opinion of some, the judge’s views explain why he was appointed.

A senior Quebec jurist, who did not wish to be named, said the prime minister’s rejection of Quebec judges expert in droit civil and criminal law in favour of the “purely ideological” appointment of a small “c” conservative Federal Court of Appeal maritime law expert with comparatively little experience in either area has not been widely applauded by Quebec judges and lawyers.

This is particularly so since the top court already has Justice Rothstein, a transportation law expert from the Federal Court of Appeal whose decisions on labour, aboriginal and criminal law have been on the conservative end of the spectrum. “I understand that the prime minister would want to favour someone who is a certain way, but this person has to have the [legal] experience that he should have,” the Montreal lawyer said of Justice Nadon’s appointment.

Notably, most of the judge’s Charter judgments that have arrived at the Supreme Court of Canada have survived intact (see sidebar, Nadon by the numbers).

Human rights lawyer David Baker of Toronto’s BakerLaw says Justice Nadon’s declaration last year that the government violated the Charter’s equality rights guarantee by failing to give visually impaired people equal access to federal government websites shows he can be convinced to make “a strong systemic ruling.

“He made a finding in a case with extremely broad systemic implications across the entire government that involved the federal government scrapping more than $200 million worth of software which could not be made accessible to people with visual disabilities,” noted Baker, who won the case.

One day before Justice Nadon was appointed October 3 (he was sworn in October 7), the Université de Sherbrooke civil law graduate told MPs his habit as an “independent thinker,” along with his broad experiences as a lawyer and judge, are what he brings to the court. “I have a lot of patience. I work well with my colleagues,” he said, noting that appellate work is a team effort. “I’m willing to be moderate when necessary, and to be steadfast when I need to be.”

He also assured the ad hoc parliamentary committee questioning him that he can handle the court’s grueling demands, even though he opted for supernumerary (part-time) status two years ago.

“I am absolutely ready to do the work and to devote all of my time” to it, he pledged.

The maritime law expert also said he feels qualified for one of the Supreme Court’s three Quebec seats.

“My knowledge of civil law is strong, in my opinion,” he said. “I have a bachelor’s in civil law. I practised in Montreal for 20 years. I mostly worked in maritime law…but I’ve done a lot of civil law.”

His inexperience in criminal law — which makes up 50 per cent of the court’s workload — did not visibly daunt the judge, as he replaces the court’s expert in that legal area, Morris Fish.

Judges “learn quickly” and often decide matters of law they never encountered as lawyers, he pointed out. “You can be certain that over the next three, four, five months I will learn a lot about criminal law. In three months, I’m not going to become an expert as…Justice Fish, but I want to know what I’m talking about.”

Asked how his appointment contributes to the court’s “diversity,” the son of a francophone Quebecker and a Ukrainian singer noted he has read widely, and reflected, about Canadian society. “There’s no excuse for not understanding, or trying to understand, all the major issues of a society,” he said. “Am I the ‘ethnic’ candidate that fits perfectly?…I’ll let others answer that question.”

Of note to lawyers who will argue appeals at the top court, Justice Nadon emphasized that oral argument is important — a view not universally shared by his colleagues.

“Very often the oral arguments change [a judge’s] mind,” he said. “We’re very open, and it’s absolutely crucial. You have to listen, hear, and be ready to consider arguments that perhaps, at first glance, don’t seem important, but end up being so.”

Lawyers who have appeared before Justice Nadon told The Lawyers Weekly he was prepared, and familiar with the issues. “He was interested, engaged, asking probing questions, along with the other members of the panel,” Baker recalls.

“In terms of intellect and ability he’s a top-notch judge,” adds Toronto litigator Rocco Galati, who has represented clients before Justice Nadon on security certificate and other immigration matters. While the immigration bar may see him as “a little conservative,” Galati says, “I would make the caveat that even on immigration, it’s my perception that he tends to have gone where the law takes him.” (Galati has launched a court challenge to Justice Nadon’s eligibility, as a former Federal Court of Appeal judge, to be appointed to the Supreme Court, (see sidebar, Judge’s hockey story falls flat)

Justice Nadon has been married for 30 years to his second wife, Margaret Buchan. His son, Marc-André Nadon, practises media law in Montreal at the judge’s former firm, Fasken Martineau.

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