Canadian Lawyer

Top Court tales by Philip Slayton The worst appointment in history The method of choosing Supreme Court of Canada judges is broken, the case of Marc Nadon simply highlights it. 16 Jan uary 2014 www.CANADIAN about twisting in the wind. . . . First, the appointment is politically egregious. It's a poke with a sharp stick in the eye of the province of Quebec, presumably intentional. Take that, Premier Pauline Marois, and all you Quebeckers who voted for the NDP in the last federal election! Section 6 of the Supreme Court of Canada Act says: "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." The main idea is that substantial Quebec representation L a w ye r m a g . c o m on the highest court is essential to protect and develop Quebec's civil law system. Nadon was appointed to replace justice Morris Fish. Those are big shoes to fill, and they're Quebec shoes. Is Nadon really a Quebec lawyer? Not to those who hang out in Quebec City, he isn't. But wait, Nadon was a member of the Quebec bar from 1974 until he was appointed to the Federal Court in 1993. That, some say, puts him "among advocates of that Province," and he therefore meets the requirements of s. 6. But even if the requirements are met technically (and that's Dushan Milic T he story of Justice Marc Nadon's appointment to the Supreme Court of Canada has been pretty much done to death, but it's impossible to ignore the worst appointment in the court's history. No one has anything personal against Marc Nadon. Mind you, he shouldn't have said at his confirmation hearing that the Detroit Red Wings drafted him as a teenager (they didn't). Hey judge, what with Google and everything, it's easy these days to check stuff like that. Why make a headline writer's day by giving him the chance to use "The puck stops here?" Nadon is apparently a competent judge, if a bit obscure (he wasn't on any of the lists of "likely appointees" promulgated by bloviating law professors). As everyone knows by now, Nadon comes from the specialized Federal Court of Appeal, and is an expert on maritime law. That might suggest he doesn't have the broad knowledge and experience necessary for the Supreme Court. When I hinted at this on Facebook, I was rightly chastised by a Thoughtful Lawyer who posted, "Nadon's expertise for the last 20 years has been in all areas of federal law and anyone who takes the trouble to read some of his leading decisions in matters other than maritime law . . . would realize that Nadon is more than qualified to sit on Canada's highest court. . . ." So, if Nadon is a decent guy and a fine judge, why is he such a bad appointment? There are three reasons. None of them have anything to do with Nadon himself, who is the principal victim of this mess. Talk

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