XPost: can.politics, bc.politics, ont.politics   
   From: ConsRCons@govt.cda   
      
   The Globe and Mail - September 30, 2013   
      
      
   Harper's nomination continues Supreme Court's shift to the right   
      
   Once Marc Nadon's nomination approved, the appointment would mean a   
   ratio of six men to three women on the high court   
      
      
      
   Canada's newest Supreme Court judge, plucked from the semi-retired list,   
   adds conservative tendencies to a growing conservative tilt on the   
   country's highest court.   
      
   Marc Nadon, 64, was most recently a supernumerary, or partly retired,   
   judge on the Federal Court of Appeal – an unusual source of judges for   
   the Supreme Court. He is Prime Minister Stephen Harper's sixth   
   appointment to the nine-member court, and replaces the retired Justice   
   Morris Fish of Quebec, a Liberal appointee who has been a strong voice   
   for the rights of accused people.   
      
   The choice of Justice Nadon came in the face of pressure from Quebec to   
   name a female judge, as the court's complement of women had dipped to   
   three from four. But Justice Louis LeBel is stepping down next year, at   
   mandatory retirement age, giving Mr. Harper another opportunity to   
   restore the previous gender balance.   
      
   Justice Nadon expressed something of his judicial philosophy in a   
   notable judgment in 2009 involving accused (now convicted) terrorist   
   Omar Khadr, imprisoned at Guantanamo Bay, Cuba, since he was a teenager.   
   In dissent, Justice Nadon gave a strong, even passionate rejection of   
   Canada's responsibility to try to repatriate him. The Supreme Court   
   affirmed that point of view, but its ruling criticized the Canadian   
   government's treatment of Mr. Khadr. Justice Nadon, on the other hand,   
   found Canada mostly blameless.   
      
   The Federal Court's bread-and-butter is national security, intellectual   
   property and tax law, not constitutional matters, so his views on the   
   Charter of Rights and Freedoms are not known. Justice Nadon served on   
   the court's trial and appeal levels for the past 20 years.   
      
   Mr. Harper made no reference to Justice Nadon's supernumerary status in   
   a statement in which he said the judge has produced "an extraordinary   
   body of legal work," and is considered a leader in the area of maritime law.   
      
   But some law professors criticized the appointment, viewing the judge as   
   a step backward from Justice Fish.   
      
   "I think an expert in admiralty law is an odd choice, because it's not a   
   very strong match with the court's core jurisdiction in public law, the   
   Charter [of Rights and Freedoms] and criminal law," said Jamie Cameron,   
   a law professor at York University's Osgoode Hall Law School. "It's   
   really not obvious to me how this person strengthens the court and   
   replaces Justice Fish, who was an eminent and very well-respected jurist   
   with all sorts of expertise in public law and criminal law."   
      
   She suggested the Prime Minister's approach to Supreme Court   
   appointments is creating a "workmanlike" bench that will "do little to   
   inspire and promote the development of law. It will favour the status quo."   
      
   Roderick Macdonald, a McGill University law professor, said the   
   appointment may signal that the government feels a need for expertise in   
   international commercial law, international dispute resolution and the   
   relationship of international norms with domestic norms.   
      
   There was some surprise in Quebec, perhaps because the Federal Court of   
   Appeal is not watched nearly as closely as the province's appeal court.   
   "I'm a bit surprised because the name wasn't one of those we expected,"   
   said Hugo Cyr, a law professor at the University of Quebec at Montreal.   
   "But I think he's a judge who tends to be very deferential to decisions   
   made by the executive, so it makes sense coming from that government."   
      
   Sébastien Lebel-Grenier, dean of the University of Sherbrooke's law   
   school, offered a different view. While Justice Nadon has a reputation   
   for being a conservative-leaning judge, he said, "what stands out most   
   is a true allegiance to intellectual integrity. He's got a very open   
   mind. He's someone who enjoys debates and discussions with students here   
   at the faculty," to which he returns regularly. (Justice Nadon graduated   
   from the Sherbrooke law school in 1973.)   
      
   In a 2003 case, in which a group of status Indians sought tax-exempt   
   status off-reserve, Justice Nadon rejected a lower-court ruling that   
   would have granted that status, based on evidence handed down through   
   the oral tradition; he said the evidence just wasn't there.   
      
   He showed a similarly restrained approach when he rejected the claim of   
   an adoptive mother for full maternity benefits.   
      
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