The Nadon reference: A unique challenge.

AuthorEdmond, John

The judgment of the Supreme Court of Canada in the "Nadon Reference," more elegantly known as Reference re Supreme Court Act, ss. 5 and 6, [2014] 1 SCR 433 is one of the more controversial decisions of the Court in the fairly long list of defeats for the federal government in recent years.

Can Justice Nadon's appointment stand?

In 2013, the Honourable Marc Nadon was a supernumerary judge of the Federal Court of Appeal (a supernumerary judge of the Federal Courts has a reduced workload, having served 15 years and whose combined age and service total 80, or 10 years of service by age 70). He was nominated to the Supreme Court by Prime Minister Harper and sworn in October 7. He had been a member of the Quebec bar from 1974 until his appointment to the Federal Court in 1993. He was to fill one of three places on the Court reserved for Quebec by the Supreme Court Act. That same day, his appointment was challenged in the Federal Court as not meeting the criteria for such appointment by the Constitutional Rights Centre and constitutional lawyer Rocco Galati. This was overtaken by a reference by government, of which more later. Justice Nadon decided not to participate in any matters before the Court.

His appointment had raised eyebrows. He was semi-retired. His specialties were transportation and maritime law, not frequent topics at the Supreme Court. The place he would occupy had been that of Justice Fish, a criminal law expert. He was on "nobody's short list," said Robert Leckey, McGill Law School. But for Prime Minister Harper, he was the opposite of an "activist" judge: "the strong deference he showed to decisions taken by the Canadian government" "was likely one of the primary reasons" for his appointment, according to Bruce Ryder of Osgoode Hall Law School. His reputation wasn't enhanced when his claim to have been "drafted by the Detroit Red Wings when I was 14" turned out to be dubious at best.

He had issued a strong--one might say scornful--dissent in a 2009 appeal of a court order requiring Canada to request repatriation of Omar Khadr from Guantanamo Bay (Canada (Prime Minister) v. Khadr, 2009 FCA 246). Both the order appealed from and his colleagues met his wrath: "Ordering Canada to request the repatriation of Mr. Khadr constitutes, in my view, a direct interference into Canada's conduct of its foreign affairs.... how Canada should conduct its foreign affairs... should be left to the judgment of those who have been entrusted by the democratic process to manage...

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