Marc Nadon was judicially mugged

If I were Stephen Harper, which some of my less supportive readers might say I already am, though I can assure you that I dress on the other side—but if I were Stephen Harper, I would tell our Supreme Court to go stuff it.

Then I would clarify Sections 5 and 6 of the Supreme Court Act listing eligibility requirements for Quebec judges which, being within the purview of the executive, would be passed by Parliament if the government laid on the whip. Once done, the court would be unable to pull off last week’s sleight of hand justifying the rejection of Stephen Harper’s appointment of Mr. Marc Nadon to its bench.

The relevant sections of the Supreme Court Act say in ss.5 that “any person may be appointed a judge who is or has been . . . a barrister or advocate of at least 10 years standing at the bar of a province” and, in the following ss.6, that “three of [those] judges shall be appointed from among . . . the advocates of Quebec . . .” Nadon, an advocate at the bar of Quebec for more than 10 years, is clearly eligible. To frustrate this, the Supreme Court held that “from among” has temporal meaning, which translates to say it’s okay not to be a current member of the bar for the purposes of Section 5 but not okay for Section 6. The linguistic somersaults the judgment makes to parse “from among” to mean something else reminds me of U.S. president Clinton’s parsing of “is” to the grand jury investigating his statements about sexual relations with Monica Lewinsky.

Related:

• A mess of the Prime Minister’s own making
• The hot mess of the Nadon appointment
• Why did Harper wade into the Marc Nadon controversy?

“It depends on what the meaning of the word ‘is’ is,” explained Clinton. “If the—if he—if ‘is’ means is and never has been, that is not—that is one thing. If it means there is none, that was a completely true statement. ” Bill’s obfuscations would be at home with our Supreme Court.

As sole dissenter, Justice Moldaver wrote that this interpretation of “from among” is “an absurdity . . . cherry-picking . . . is to rewrite history.” I’d add it’s also unconstitutional. To have different rules for appointing judges to the same court runs smack into Charter rights. Nadon was judicially mugged or, as the Americans say, Borked.

The battlefield here is not between right-wing and left-wing, but between people who largely endorse the essential virtues of a free society and people who, by and large, endorse a statist one. There are left- and right-wing statists although, in the past 40 years, the left-wing has been most active.The great constitutional lawyer, Edward Dicey, believed courts should seek “to discover not what ought to be, but what is the law.” Today, Dicey is considered a pain in the neck by judicial activists who want to make law rather than interpret it.

When the current Supreme Court gets something right, it is often for the wrong reasons. On March 20, they rejected the government’s attempt to change the early parole laws for non-violent offenders—a welcome rejection. They wrote that changing parole laws retrospectively (it should have said retroactively) was to punish offenders in prison twice because they were serving sentences with the expectation of an earlier release—a situation they compared to double jeopardy. But changing parole laws is not double punishment. It is simply unfair, as is most retroactive legislation that changes rules in the middle of the game.

For a primer on this court’s mindset, read the judgment in the 2012 case R. v. Ipeelee involving two Aboriginals separately convicted of numerous violent crimes, including violent sexual assaults. Both fuelled their crimes by alcohol. One was diagnosed as a sexual sadist incapable of refraining from alcohol and drug use and the other as “a significant risk of reoffending if using alcohol.” Each went to prison and, on release, was put on long-term supervision orders, which they broke by becoming intoxicated again. For this, they were sentenced to three years and one year, respectively. Both appealed, one successfully, on grounds their Aboriginal status had not been taken into account.

While there may have been merit in a successful appeal, it did not lie in citing Aboriginal status. Yes, Aboriginal offenders are vastly overrepresented in the prison population. It is common sense that substance abuse and other rehabilitation programs should accompany prison terms. It is a fact that many Aboriginals grow up in dreadful circumstances. But these socio-economic problems are separate from the priority of protecting communities—including Aboriginal ones—from violence. Justice cannot have a different set of sentencing rules for different classes of people, any member of which may have had an awful childhood.

The Supreme Court tried to explain this sentencing disparity by reference to “the history of colonialism, displacement . . . ” etc. They cited abuses in the 1940s when the U.S. Army built a pipeline through Aboriginal lands and the “devastating intergenerational effects of the collective experiences of Aboriginal peoples.” This is like taking the Holocaust into account for Jewish offenders three generations removed from it.

Justice wears a blindfold to signify all before it merit equal treatment: rich, poor, white, Aboriginal. In Animal Farm, George Orwell’s governing pigs change their credo of “all animals are equal” to “some animals are more equal than others.” I suspect Mr. Nadon might not agree with this refocusing of justice by Orwell’s ruling pigs. And I’m dead sure the social engineers of our Supreme Court suspected he wouldn’t.

I don’t know whether Nadon would have been a good or bad judge. He believes strongly in the High Court of Parliament and has made this clear in his judgments. That position is not popular in Ottawa’s judicial circle. To argue here for such elementary notions as equality before the law, sovereignty of the High Court of Parliament, judges as interpreters rather than legislators, is shaming. Something terrible has infected the law that I once so revered. To borrow from Edmond Rostand’s Cyrano: “Meseemed I saw a slug crawl slavering o’er a flower’s petals.”