In the strongest opposition questioning yet during unofficial House committee hearings over Supreme Court appointments that began in 2006, Conservative MP Shelley Glover (Saint Boniface, Man.) intervened at one point to object to a line of questioning from Liberal MP Irwin Cotler (Mount Royal, Que.), a former justice minister who took issue with a ruling the nominee, Federal Court of Appeal Justice Nadon, had made in a controversial case involving a Rwandan man accused of inciting genocide against Rwanda’s ethnic Tutsis in 1992.
Mr. Cotler was about to question Judge Nadon over another ruling he made, which had favoured the Harper government in the legal battle over attempts to have accused Canadian terrorist Omar Khadr returned to Canada from the U.S. military prison in Guantanamo Bay, Cuba, but changed direction and agreed to ground rules for the committee that do not allow MPs to grill the nominees over previous decisions or over explosive legal issues they may one day have to consider in a ruling.
Judge Nadon, 64, is the sixth of nine Supreme Court judges to be appointed by Prime Minister Harper (Calgary Southwest, Alta.), in collaboration with his minister of justice and following extensive consultations with top judges, attorneys general in the provinces and regions the judges would represent on the highest court in the land.
But Mr. Harper’s first appointment, former Manitoba Court of Queen’s Bench judge Marshall Rothstein, had been selected by former Liberal prime minister Paul Martin but not yet appointed before 2006 federal election. Mr. Nadon’s appointment, yet to be made official following the committee hearing, makes the court majority truly one that Mr. Harper has shaped.
Former Progressive Conservative prime minister Brian Mulroney appointed Judge Nadon to the Federal Court in 1993, part of a string of patronage appointments that Mr. Mulroney made as he prepared to step aside before B.C. MP and then justice minister Kim Campbell took over the Progressive Conservative leadership and the Prime Minister’s Office, and before an overwhelming defeat in a general election later that year.
Liberal prime minister Jean Chretien, who ousted the Progressive Conservatives from office in 1993, named Judge Nadon to the Federal Court of Appeal in 2001. He is the first judge appointed as one of three Supreme Court judges from Quebec to come from the Federal Court, which led Mr. Harper to obtain opinions from two retired Supreme Court judges and a leading Canadian constitutional scholar that affirmed the appointment met constitutional requirements for Quebec representation.
In the Khadr case, Judge Nadon disagreed with two fellow Court of Appeal judges, and wrote that the Federal Court did not have the authority to order the Canadian government to take steps to repatriate Mr. Khadr, jailed in Guantanamo over allegations he had fought in Afghanistan as a 15-year-old supporter of the Taliban and killed a U.S. soldier. The Federal Court of Appeal majority decision ordering the government to come to Mr. Khadr's aid was later effectively overturned by the Supreme Court.
The Supreme Court said it could order the government to repatriate Mr. Khadr, but made it clear Mr. Khadr's legal rights had been violated and that the government had an obligation to protect him.
In 2001, Judge Nadon partially upheld an Immigration and Refugee Board appeal decision that favoured accused Rwandan war criminal Leon Mugesera in an appeal of a deportation order for crimes against humanity. But when Mr. Cotler pressed Judge Nadon at the Parliamentary committee, Judge Nadon pointed out that his decision would have resulted in Mr. Mugesera’s deportation. The Supreme Court overturned a Federal Court of Appeal ruling that would have resulted in Mr. Mugesera remaining in Canada. Judge Nadon had ruled only that there was no evidence Mr. Mugesera had committed crimes against humanity, but agreed with the other counts against him.
When Mr. Cotler questioned Judge Nadon about how his appointment could contribute to diversity on the Supreme Court—which now has only three women as judges, including Chief Justice Beverley McLachlin, Judge Nadon gave a lengthy and often rambling response.
“I have a hard time saying why I add to diversity. I’ve talked about my background; I have a specific background, as does each one of you. I have my own life journey, for better or for worse. I have a legal vision. I had the career I’ve described to you as a judge. I’ve had hundreds if not thousands of cases on just about every topic under the sun,” replied Judge Nadon.
“I have learned a lot, I’ve heard many arguments, I’ve had many opportunities to reflect on all of these topics that concern not just those affected by a case, but those that concern society, Charter [of Rights] issues, Section 7 [on legal rights], Section 15 [on quality rights], Section 6 on mobility rights,” he went on.
“I’ve had 20 years to reflect on that, and the law doesn’t operate in a vacuum; many things must be understand to be a good job, for example history, sociology, and this isn’t to toot my own horn, but for 20 years one of the things I’ve most appreciated as a judge is I’ve had the opportunity, as opposed to practising law, being a judge gives us the freedom, there’s no excuse for not understanding or trying to understand all the major issues of a society,” Judge Nadon said.
“Am I the ethnic candidate that fits perfectly? Well, I can’t answer that; I’ll let others answer that question. It’s not up to me to answer that. I hope that answers your question a bit,” he said.
Norman Spector, the prominent blogger and a former chief of staff to prime minister Mulroney, said Wednesday that although the opposition parties may be suspicious of Prime Minister Harper’s appointments, it should be no surprise Canada’s prime ministers would appointment Supreme Court judges whom they feel would generally support their constitutional and other legal viewpoints.
But he said Canada’s judiciary is notably independent, and Supreme Court judges have consistently proven to be eminently qualified.
“I think we’re fooling ourselves, and maybe intentionally fooling ourselves for reasons of political correctness to think that a judge’s views have no bearing on whether they get appoint to the Supreme Court or not, or to any other court,” Mr. Spector told The Hill Times in an interview.
“I don’t know who else was on the list, I’m sure they were all qualified, it’s almost impossible for a non-qualified judge to get on the list, but at the margin, I don’t think we should think that a Prime Minister appointing judges is any different than an American president appointing judges,” Mr. Spector said.
Original Article
Source: hilltimes.com
Author: TIM NAUMETZ
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