Not Quebecois enough

The Nadon case before the Supreme Court concerns the qualifications of the Prime Minister’s latest appointee. The Supreme Court Act shows it to be an open-and-shut case. Why then the fuss?

First the law. Section 5 of the Supreme Court Act says:

 Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.

“is or has been”…”a barrister or advocate of at least ten years standing at the bar of the province”.

 At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.


Mr. Nadon has practiced law at the Bar of Quebec for more than twenty years, before being made a judge of the Federal Court. Case closed. This case does not involve deep law, ambiguous doctrine, or the reconsideration of some previous point where one would want the Court to carefully consider how far civil liability goes in areas of risk. It is as plain on its face as you can read.

So why the fuss? Rocco Galatti, the Toronto left wing lawyer did not like Nadon’s deference to government in the Khadr case. But the government of Quebec? Read the statement of its lawyer before the Supreme Court yesterday.

The federal proposal, said Mr. Fauteux, is “absolutely, unequivocally unacceptable for Quebec.”

A justice from Quebec, he said, needs a contemporary link to the province and an understanding of the present culture to adequately represent the province.

“It’s not a question of whether a person knows civil law or knows Quebec jurisprudence or case law, but rather it’s a question that a person comes from an environment, milieu, made up of different elements,” he said.

Translation:” the judge has to be as much a representative of Quebecois tribal interests as we, the government of Quebec, deem necessary”. He must come from an environment, a milieu, that we approve of, and the Federal Court and Ottawa and living in Ottawa clearly does not suffice. Only he cannot say this, because then the Quebec government’s scheme of ethnic self-preference would be exposed. Its a nudge-nudge, wink-wink position.

Andrew Coyne’s musings today  “Maybe fighting was the point” provide no insight into what is, simply put, a reaction by the Usual Suspects to anything Harper does. Coyne holds the Prime Minister to a standard higher than any appointing power is required to achieve, “whether he was the best or even an appropriate choice for the job.” Nadon is manifestly appropriate, as were maybe a score of other judges in the country. Whether he is the “best”, according to the exacting standards of Andrew Coyne, is immaterial. I strongly believe that Coyne would not  expect the same standard of a Liberal Prime Minister’s appointment. I recognize that Coyne has a problem I do not: he must fill newspaper column-inches with something to cause reader reaction and comment. Nevertheless, unless he wishes to pass over into the self-regarding fatuity of Jeffrey Simpson, he had better adopt a little humility. It is not about you, Andrew.


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Toronto Voter

Coyne is dead on. Nadon is not a good choice.

As Coyne points out, he meets the base minimum legal qualifications so fine, the SCC should allow him.

But is he a good choice? He is semi-retired, hasn’t practiced law in Quebec and with the civil code in a very very long time, has no area of expertise (except maritime law), doesn’t even dealt with many constitutional or criminal law cases.

And this is the best Harper could come up with for the highest court in the land?

And you think that just meeting the barest technical legal requirements is all that is required for such a critically important and influetial position of great power?

The left and Quebec will complain about anything Harper does. But that does not mean that you should take that opposite view: that anything they criticize must be supported.

Since when did substance stop mattering at all?


Thank you, Toronto Voter, for an intelligent response. I wish all my respondents were as thoughtful. I disagree, nevertheless. It is not the job of the Prime Minister to select the best candidate, it is to select someone fully qualified whose judicial philosophy agrees with his.

I have read Mr Justice Nadon’s decision in a case about the jurisdiction of the CRTC over telecommunications. I thought it fully adequate, conceptually, and legally correct. This guy is not a one-trick pony. You do not get to sit on the Federal Court of Appeal and be a dummy.
I can think of one or two Liberal appointees to the Federal Court and the Tax Court (lower down) who were unqualified.(I specifically do not mean Allan Lutfy, who may have been a political operative for Trudeau but is first rate lawyer and a real gent).
I think Mr Justice Nadon’s judicial record speaks well of him.

Toronto Voter

He is really inappropriate as a selection. His judicial record says two things: he’s capable and he hasn’t much of one (judicial record that is). He is a capable judge that much can be said of him. But is that the criteria? Bare minimums? Being intelligent and capable should be the line below which you aren’t even considered; not the line above which you should be considered for the highest court of the land.

He is not noted for rising to the top of any field of law, for publishing or commenting on any significant law (other than maritime law). At the Federal Court, you don’t exactly deal with very complexe cases though, and certainly very few of the kind that you will see as a Supreme Court judge. The fact that there have been bad appointments before now is no justification for continuing that trend. You say that his judicial record speaks well of him.

It absolutely fundamentally is Harper’s responsibility to select the best or from among the best legal minds to appoint to the bench. I don’t think there is a single power of appointment that he has that is more fundamental than that.

And to say he should be guided by politics instead of qualities is not only very very hard for me to stomach. It says a lot about politics and government today, frankly. It is also very very much the opposite of what Harper promised us.

Where is the judicial vetting that he promised us? This is a perfect case that screams higher scrutiny. The kind Harper used to call for.


I consider all appointment methods that cause the Prime Minister to be restricted to some list of candidates drawn up by, say, the Bar Associations, the provincial governments, or any other institution, merely change the locus of decision-making without improving the result.

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