OTTAWA — Within moments of his nomination to Canada’s highest court, Federal Appeal’s Court Justice Marc Nadon came under fire for being a man.
While his nomination maintains the critical regional balance required on the Supreme Court — he’ll replace retiring Quebec Justice Morris Fish who said he was stepping down in April — many expected the next appointment would be a woman.
Richard Wagner was appointed to the Supreme Court last October following the retirement of Marie Deschamps, leaving just three women on the nine-member bench.
Marc Nadon, the new Supreme Court nominee.
NDP leader Tom Mulcair, for example, congratulated Nadon on the prestigious nomination, but raised concerns over gender equality.
“In 2013, to have two times more men than women represents a certain inequality in terms of representation,” he said, adding it has nothing to do with Nadon’s merit or the nomination process that involves all parties contributing to a short-list of three candidates that’s handed to the prime minister for a final decision.
“I look to the fact that for decades, more than 50 per cent of law school graduates are women. . . . It doesn’t represent the profession in 2013.”
Prime Minister Stephen Harper will have another chance to restore the gender balance when Justice Louis LeBel is forced to retire next year when he reaches 75, the mandatory retirement age for top court judges.
Harper revealed the newest candidate to the Supreme Court Monday.
As a formality, Nadon will appear before a House of Commons committee Wednesday to answer questions from members of Parliament. Barring any major hiccups, he’ll be formally appointed shortly after.
“I am pleased to announce the nomination of Mr. Justice Nadon, whose extraordinary body of legal work — as a longtime judge on both the Federal Court and the Federal Court of Appeal; judicial member of the Competition Tribunal; expert in maritime and transportation law with almost 20 years as a practicing member of the Barreau du Quebec; arbitrator; teacher; and author — makes him an ideal candidate for the Supreme Court of Canada,” Harper said in a statement.
“His nomination is the result of an extensive review process that included consultations with prominent members of the legal community in Quebec.”
Nadon, 64, served on the Federal Court of Appeal since 2001 and on the Federal Court from 1993-2001. In 1994, he was appointed to the Court Martial Appeal Court of Canada and, in 1998, a judicial member of the Competition Tribunal. Before that, he was a lawyer and partner at Fasken Martineau Walker in Montreal. He’s considered an expert in maritime and transportation law.
Not one to shy away from controversy, Nadon was the lone judge to offer a dissenting opinion in 2009 in the case of Omar Khadr. His two appeal’s court colleagues upheld a ruling ordering the government to repatriate the since-convicted child terrorist, who was at the time being held in Guantanamo Bay, Cuba.
They argued Khadr’s Charter rights were breached when CSIS officials interviewed him in 2003 and 2004, and passed the information to U.S. authorities, which led to his mistreatment.
Nadon countered that Canada had “taken all necessary means at its disposal to protect Mr. Khadr during the whole period of his detention” and that the Federal Court exceeded its jurisdiction by ordering his repatriation.
Nadon was also the judge who thwarted Green Party leader Elizabeth May’s attempt to get into the televised leaders debate during the 2011 election campaign. May was seeking a judicial review of a CRTC policy that says broadcasters don’t have to include all political parties in debates. Nadon said there wasn’t enough time for the court to properly review the case and make a ruling.
He ruled against the government last year when he ordered the release of a Federal Court judgment that contained information about a secret protocol between the RCMP and Justice Canada that the government was trying to suppress.
In another pair of widely publicized rulings, Nadon denied a B.C. mother maternity benefits because she adopted her children as opposed to gave birth to them. Earlier this year he also rejected an Ottawa man’s attempt to claim separate parental leave benefits for his twin daughters.
In a recent interview with Postmedia News, Justice Minister Peter MacKay raised concerns about the appointment of Federal Court judges to the high court. He suggested the Supreme Court Act needed a facelift as it could be interpreted as excluding federal judges from Supreme Court appointments.
The government, however, said it’s sought three separate legal opinions from former Supreme Court justices Ian Binnie and Louise Charron, as well as constitutional expert Peter Hogg.
All agreed that a member of the Federal Court with at least 10 years experience as a member of the Quebec bar could be appointed to the Supreme Court.
