What Does Justice Nadon’s Nomination Mean for the Supreme Court?

On September 30th, Prime Minister Stephen Harper announced his sixth nomination to the Supreme Court of Canada (SCC). His pick, Justice Marc Nadon, replaced Justice Morris Fish—a Chrétien appointee and accomplished criminal law jurist. Justices LeBel and Abella are the only remaining Liberal appointees, though Justice Rothstein was short-listed by a committee convened by the outgoing Martin government and the Chief Justice was elevated to that status by Prime Minister Chrétien. That brings the total of justices appointed solely on the initiative of Mr. Harper to five—a majority.

The Supreme Court of Canada is not the Supreme Court of the United States. The SCC has never intervened to change the outcome of a federal election or overturned a century of campaign finance jurisprudence to the benefit of the political party that appointed its majority. We aren’t privy to the senate confirmation hearings that so often descend into theatrical train-wrecks, and aspiring Supreme Court justices do not face litmus tests. As such, this shift in the SCC’s composition should be viewed in context; it should neither inspire hysterical panic on the part of dyed-in-the-wool liberals nor cause Charter-loathing conservatives to salivate.

At the same time, it would be a mistake to view the Court as an ideological vacuum, free from the reach of politics. Courts are made up of people and, by institutional design, they are appointed by the country’s top politician to reflect the values and objectives of today’s government. The Prime Minister views appointments as part of his or her mandate, and—while party of appointment is not a perfect proxy for judicial ideology—the specific qualifications and background of a judge can be indicative of the appointing-government’s priorities and the Court’s future trajectory.

Khadr Revisited: A Case Study in Non-Intervention

If the Harper Government’s approach to the judiciary had to be summed up in one word it would be “deference”—that is, an overriding preference for candidates whose judicial philosophy reflects restraint and non-interference with government objectives. In a Globe and Mail editorial published in 2000, Mr. Harper elaborated upon his view of the role of the judiciary:

Yes, I share many of the concerns of my colleagues and allies about biased ‘judicial activism’ and its extremes. I agree that serious flaws exist in the Charter of Rights and Freedoms, and that there is no meaningful review or accountability mechanism for Supreme Court justices (Harper, “Chretien Gagging Canadians”).

Media coverage of Justice Nadon’s nomination has fixated on his most famous (or infamous) opinion, his dissent in Khadr v Canada (Prime Minister), 2009 FCA 246. The majority of the Federal Court of Appeal held that the complicity of Canadian officials in Omar Khadr’s detainment and interrogation by US authorities violated Khadr’s rights under section 7 of the Charter. Consequently, the court upheld the trial-level decision to order Khadr’s repatriation.

The Supreme Court responded tentatively, choosing to invoke the Canadian equivalent of the “Political Questions” doctrine (2010 SCC 3). In doing so, it struck down the Federal Court of Appeal’s decision on narrow grounds. While the majority agreed that Khadr’s section 7 rights were violated and that this was not justified under section 1, it held that ordering the government to repatriate Khadr was an inappropriate remedy that failed to grant appropriate diplomatic flexibility to the executive. This was a timid—some might say cowardly—decision, but at least it set out, in no uncertain terms, the fundamental illegality of Khadr’s treatment under Canadian, US, and international law.

Citing periodic requests by Canadian officials that Khadr receive medical assessments, independent counsel, educational materials, and periodic consular access, Justice Nadon wrote that if indeed the Canadian government owed any duty to Khadr under section 7, it had done enough to discharge its responsibilities (at para 88). In this situation, Justice Nadon argued, Canada’s hands were tied and it did all that was reasonably within its power to protect Khadr given the diplomatic situation.

Justice Nadon’s opinion certainly aligns with prevailing views of contemporary political conservatism—that is, the prioritization of security over civil liberties. But it also neatly encapsulates Prime Minister Harper’s understanding of the judiciary’s role—to give a narrow reading of Charter rights and deference to the political process. Elected governments, subject to the will of the electorate, not judges, should determine the appropriateness of a particular policy. Neither Harper nor Nadon appear particularly concerned by the fact that courts often offer the only protection that an individual in Khadr’s situation is likely to get.

Future Implications

Legal issues cannot all be sorted neatly into liberal or conservative silos, and, in any case, it is likely that the Supreme Court as an institution is too cautious to swing dramatically to the right on social issues. As a legal and political body, the Supreme Court has historically been politically moderate. Donald Songer (2008 at 8), for instance, has crunched the numbers and observed that there have been only relatively modest swings in the proportion of decisions favouring liberal versus conservative outcomes as a function of changes in the political composition of the Court. Mr. Harper is also too shrewd a politician to nominate blatant ideologues bent on radically reshaping the law. To do so would be to risk political backlash and accusations of exactly the kind of court-packing that he vocally criticized in past governments.

Rather, we are likely to see inroads made in a handful of priority areas for the Harper Government. In addition to a narrow reading of the Charter, the government has made “law and order” criminal justice a priority. We have seen significant movement in this direction in the area of criminal law as well as relevant areas of Charter jurisprudence (e.g. section 24(2)). The departure of Justice Fish, a committed advocate of the rights of the accused, coupled with Justice Nadon’s relative inexperience in this field due to his career in the federal judicial system will likely only accelerate this trend.

There remains a distinct possibility that Harper appointees will “go rogue”—that is, develop distinct understandings of the constitution that do not reflect the objectives of today’s government. Even justices in the highly politicized American Supreme Court broke rank with their parties on particular issues—such as Justice O’Connor on abortion or Justice Kennedy on gay rights. Even stalwart members of the “Liberal Quartet” like Justice Stevens, who loudly opposed the Court’s rulings in Bush v Gore, 53 US 98 (2000), and Citizens United v Federal Election Commission, 558 US 310 (2010), were appointed by a Republican. Thanks to the much-maligned lack of political accountability on the part of judges, they are able to vote their conscience with relatively little political backlash. Peter McCormick (2012) has recently undertaken an ambitious empirical analysis of modern Canadian Supreme Court decisions and has found a surprising amount of fluidity and collegiality in the formation and dissolution of majorities. It is this intellectual ebb and flow that shapes evolving judicial philosophies on the Court and that so often frustrates the ambitions of the appointing political leader. One can only hope that it continues.