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Justice Nadon Appointed to Supreme Court of Canada

Dwight Newman, University of Saskatchewan

On September 30, Canada’s Prime Minister Stephen Harper announced the nomination of Justice Marc Nadon of the Federal Court of Appeal for the Quebec seat being vacated by Justice Morris Fish. Under Canada’s very limited parliamentary hearing system on Supreme Court nominees (this process itself adopted only in the last few years), Justice Nadon’s appointment was confirmed quickly in the subsequent days.

Justice Nadon’s presence will shift, to some extent , the balance of subject matter expertise on the Court. Where Justice Fish brought his own brand to the area of criminal law jurisprudence, the criminal law expertise on the Court will rapidly shift toward Justice Moldaver’s relatively conservative criminal law jurisprudence. At the same time, Justice Nadon brings new areas of expertise, such as maritime law and transportation law, which may not have always been seen as frequent areas for Supreme Court of Canada case law but may become so in the context of possible upcoming topics such as Arctic maritime issues and matters related to the transportation of natural resources. His background of practice in maritime law during twenty years at Fasken Martineau in Montreal following his graduation from Sherbrooke, his three years in domestic and international arbitration on maritime issues in London, and his past writing on transportation issues all bring something distinctive to the Court.

It is some of his judgments at the Federal Court, to which he was appointed in 1993, and at the Federal Court of Appeal, to which he was elevated in 2001, that may shed the most light, however, on his judicial philosophy and approach. A sample of some of his judgments on prominent issues reveal someone committed to extremely careful legal analysis, something that will not always be in tune with those seeking results-oriented jurisprudence.

A pair of judgments he authored related to deportation proceedings for individuals potentially inadmissible to Canada are illustrative. In 2001, his judgment in the Federal Court in Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2001 FCT 1095, [2001] 4 F.C. 644 saw him write in favour of “terrorism” receiving a “broad and unrestricted interpretation” (para. 27), with this conclusion based on other Federal Court jurisprudence and his interpretation of the purpose of a then-new section of the Immigration Act focused on terrorism issues. By contrast, in Mugesera v. Canada (Minister of Citizenship and Immigration), 2001 FCT 460, [2001] 4 FC 421, he read the concept of “crime against humanity” more narrowly than some would have preferred in the context of a possible deportation issue, but he again based his reading on careful attention to the precedents and the statutes at issue.

Along with this approach goes a certain caution about developing legal concepts in large, non-incremental ways. One of Justice Nadon’s recent Federal Court of Appeal decisions that has received attention because of its interaction with the political sphere was May v. CBC/Radio Canada, 2011 FCA 130, in which he dismissed a motion through which Green Party leader Elizabeth May sought to participate in the federal leaders’ debate in the 2011 election. In doing so, he carefully followed existing jurisprudence on the writ of mandamus, identifying it as not being available to compel the use of discretion in specific ways not necessarily compelled by legal duty. Justice Nadon seems unlikely to make drastic changes to remedial, or other, jurisprudence to try to promote some vague sense of fairness but rather seems likely to follow existing precedent.

No doubt capturing the most attention amongst Justice Nadon’s cases is his past ruling concerning the well-known Canadian Guantanamo Bay detainee Omar Khadr. In Khadr v. Canada (Prime Minister), 2009 FCA 246, [2010] 1 F.C.R. 73, Nadon J.A. split from his Federal Court of Appeal colleagues and authored a dissent in which he implicitly took them to task for trying to hold Canada responsible for American treatment of a detainee.

Writing on why he would have overturned the trial judgment, Justice Nadon emphasized the “territorial limitation” of various human rights treaties to which Canada was subject (para. 95) in holding it inappropriate to consider Canada to have breached Khadr’s rights by not taking extensive steps to ensure his treatment by American authorities complied with these treaties. Justice Nadon also emphasized the inappropriateness of a remedy of ordering Canada to seek repatriation that would constitute “a direct interference into Canada’s conduct of its foreign affairs” (para. 106). He emphasized past jurisprudence against such an interference, again showing his decision as proceeding from careful legal analysis.

While these decisions on hot-button topics are a mere selection of a large body of jurisprudence, they show time and time again how Justice Nadon, even in the context of highly politicized issues, seeks to follow existing precedent and statutory intent. This sedate approach does not appeal to those seeking particular results from the courts, but it does yield legal predictability and facilitates parliament’s development of a clear intent that will be respected by judges. In bringing such a judicial philosophy along with new and potentially needed areas of expertise to the Court, Justice Nadon marks an important addition to the bench, with remaining parts of his record of course to be articulated in his judgments in the years ahead.

Suggested Citation: Dwight Newman, Justice Nadon Appointed to Supreme Court of Canada, Int’l J. Const. L. Blog, October 7, 2013, available at: http://www.iconnectblog.com/2013/10/justice-nadon-appointed-to-supreme-court-of-canada

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Published on October 7, 2013
Author:          Filed under: Developments
 

3 Responses

  1. A quick update for our readers: Marc Nadon’s appointment now faces a constitutional challenge. More information is available here: http://news.nationalpost.com/2013/10/08/marc-nadons-appointment-to-supreme-court-of-canada-faces-legal-challenge-by-toronto-lawyer/.

  2. Yet another follow-up to this post:

    1. The Government of Canada is seeking to amend the Supreme Court Act and has also initiated a reference to the Supreme Court on the matter: http://news.nationalpost.com/2013/10/22/conservatives-go-to-the-supreme-court-in-battle-to-get-marc-nadon-on-the-supreme-court.

    2. A new paper challenges the legal opinion supporting Marc Nadon’s appointment: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2344452.

    And there is still more to come…

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