That the prime minister failed to name a woman, as widely expected and suggested, including seemingly by Chief Justice Beverley McLachlin. This leaves the top court with twice as many men as women — six to three.
That Harper has picked a conservative with ideological affinity to his brand of conservatism — not on social issues, such as abortion, but rather on governance, such as how much deference the courts should show the executive branch. In other words, Nadon may not be the type to challenge the prime minister on policies and interpretation of law. Nadon will likely give unto government what the government considers to be government’s and unto the courts what he thinks is the court’s — as he suggested before a parliamentary panel Wednesday.
There may be a third element worth considering — the prime minister’s inclination to name and promote little-known jurists or those with limited experience.
Nadon is so unknown that following his nomination Monday, even senior legal circles wondered, “Marc Who?”
A senior Toronto lawyer said: “I was with some judges the other day and the universal reaction was one of puzzlement. Nadon was a bit of a mystery to them. Maybe he is well-known to Harper or one of his cronies.”
A similar sentiment had greeted Harper’s 2011 appointment of Andromache Karakatsanis to the highest court. Her elevation was considered unusual since she had served barely 19 months on the Ontario Court of Appeal, to which she had also been named by Harper. It was said that she had not produced jurisprudence of note but that she was more known as having served the Mike Harris government well, as deputy attorney-general and also secretary to the cabinet, which included Jim Flaherty and two others who have since become an integral part of Harper’s cabinet — John Baird and Tony Clement.
Flaherty’s role was also questioned in the elevation of another judge to the Ontario Court of Appeal. In 2007, the legal community was shocked when Harper bypassed Dennis O’Connor for Ontario chief justice, even though his candidacy had been endorsed by Roy McMurtry, then retiring chief justice, and also by all the other judges on that bench.
It was said that Flaherty had been unhappy with O’Connor’s 2002 conclusions on the inquiry into the Walkerton disaster, in which seven died after drinking contaminated water.
The issue has been revisited by McMurtry in his just-released Memoirs and Reflections (University of Toronto Press).
He notes that the O’Connor report “was critical of the Harris government . . . In addition, the premier’s office was annoyed that the premier himself was called as a witness at the inquiry . . .
“Unfortunately, Flaherty’s resentment lingered longer and in 2007 when . . . I was advised that he persuaded (the federal) cabinet to block the appointment of O’Connor.
“Flaherty told some of his former political colleagues in Ontario of his strong opposition to O’Connor’s appointment, and they in turn revealed the information to me. I also learned from other former political colleagues . . . that the Harper government believed I had no right to state my views publicly about my successor,” even though “Dennis is one of the most respected legal figures in Canada.”
Another Harper appointment to the bench that raised some eyebrows was that of Justice Alexandra Hoy as Associate Chief Justice to the Court of Appeal for Ontario last year. She had served just 18 months on that court after being named to it by Harper.
“It all seems to be a buddy system — what seems to count most is whom you know,” said the Toronto lawyer.
Nadon, 64, has been a supernumerary (semi-retired) judge at the Federal Court of Canada — not the usual source for filling Quebec’s quota of three judges on the Supreme Court.
In announcing his nomination, the prime minister’s office was on the defensive about both Nadon’s expertise and his Quebec credentials.
The PMO emphasized his expertise in maritime law, even though the top court rarely deals with admiralty matters. And the announcement appended a legal opinion that he was indeed eligible to be appointed to the court from Quebec, having been a member of the Quebec bar.
The process by which judges are selected remains secretive and tightly controlled. While a parliamentary committee of five shortlisted three names (the other two remain secret), it’s the Conservative majority on it that ensured Nadon was on that list and Harper picked him.
Prime ministers have always had that prerogative. But as opposition leader, Harper attacked the process as too closed. He called for a more open and transparent system. The only nod to that promise is that his nominees are paraded before the cameras — in a TV show in which an ad hoc committee of Parliament plays its assigned role. On Wednesday, Justice Minister Peter MacKay made that abundantly clear, saying that tough questions on controversial matters were absolutely off limits.
Original Article
Source: thestar.com
Author: Haroon Siddiqui
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