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Harper should withdraw Marc Nadon's nomination

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Justice Marc Nadon, nominated to the Supreme Court of Canada

If the Harper government has any sense, it will withdraw the nomination of Justice Marc Nadon to the Supreme Court of Canada, then, after a discreet interval of two or three months, offer him a consolation prize. Perhaps a diplomatic appointment as ambassador to Portugal or Denmark or Ireland, or some other posting that offers prestige without any heavy lifting.

Meanwhile, Justice Minister Peter MacKay could go back to his lists of qualified Quebec jurists to find a candidate whose nomination would not put the Supreme Court in the embarrassing position of having to pass judgment on a putative colleague.

He needs a nomination that would not create a constitutional issue. A nomination that would not anger the Quebec government or hand the minority Parti Québécois administration an issue with which to bash Ottawa in the next provincial election. A nomination that could be defended by court-watchers as being more than an effort to pack the Supreme Court with conservative judges.

MacKay will not find Judge Nadon’s name on any of those lists of eligible jurists. As McGill University law professor Robert Leckey puts it, “Nadon was on nobody’s short list -- he wasn’t on anybody’s long list as far as I know.”

This is not to say Judge Nadon was not a capable jurist in his years on the Federal Court of Appeal. But he was an improbable choice -- so improbable that it should have raised warning flags in the Prime Minister’s Office.

For starters, at 64, he was already on the downward slope of his judicial career. Two years ago, he took advantage of a cozy arrangement to move into semi-retirement as a supernumerary judge on the Federal Court -- an arrangement that enabled him to cut his workload in half while retaining his full salary ($288,100 a year).

A supernumerary judge had never been named to the Supreme Court before, so why would Harper choose a judge who clearly wanted to work less to fill a seat in which he would have to work harder than he had ever worked before? And why would he pick a judge from the Federal Court in Ottawa to fill one of the three Quebec seats on the Supreme Court?

Traditionally, those Quebec seats have gone to judges who are either serving on the Quebec Superior Court or are active members of the Quebec bar. It remains unclear following last week’s hearing at the Supreme Court whether Federal Court judges are actually eligible for the Quebec seats; the Supremes will have to sort that one out as they ponder their uncomfortable decision. (My hunch is they will conclude that Federal Court members are, in fact, eligible, but that won’t change the perception that Nadon is an Ottawa judge who is out of touch with Quebec civil law.)

So why did the Harper government make such an improbable choice? The reason, it appears, is that Harper really liked the stand that Justice Nadon took in his Federal Court dissent in the case of Omar Khadr, the child soldier. Nadon supported the government’s argument that it was not obligated under the Charter of Rights and Freedoms to seek Khadr’s repatriation from United States custody.

Diminishing the importance of the Charter is an element in the Harper government’s justice strategy, and Nadon may have seemed like a safer, more sympathetic jurist than Harper’s five earlier appointees, who have shown a distressing (to Conservatives) tendency to independent thinking on such issues as prostitution laws and safe drug injection sites.

The problem in the Nadon case, as in such high-profile affairs as the Senate expenses coverup, is that there doesn’t seem to be anyone in the PMO who has the ability, as they say, “to see around corners.” That is, to anticipate that, if the PM does X, then Y and Z must surely follow. The prime minister has surrounded himself with people with tunnel vision. They don’t even notice the corners as they charge straight off the cliff.

Cambridge resident Geoffrey Stevens, an author and former Ottawa columnist and managing editor of the Globe and Mail, teaches political science at Wilfrid Laurier University and the University of Guelph. His column appears every Monday in the Waterloo Region Record and the Guelph Mercury. He welcomes comments at [email protected]

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