Ad Hoc Committee on the Appointment of Supreme Court of Canada Justices

(1305)

[English]

The Chair (Hon. Peter MacKay (Minister of Justice)):

Good afternoon, everyone.

I want to begin by welcoming all of you, my colleagues, committee members, Mr. Justice Marc Nadon, Maître Jean-Louis Baudouin, ladies, and gentlemen.

[Translation]

Ladies and gentlemen, welcome to this historic event.

[English]

This is a very important and historic day here on Parliament Hill.

I welcome my colleagues back to Ottawa. I'm sure you had a very busy and fruitful summer in your constituencies.

On this occasion, members of Parliament acting on behalf of all Canadians will once again have the opportunity to engage in a rare direct dialogue with our most recent nominee for the Supreme Court of Canada, a process that the Prime Minister outlined just two days ago, on September 30, 2013, when he announced Justice Nadon's nomination.

At that time the Prime Minister announced that the nominee would appear at a public hearing of an ad hoc committee of parliamentarians to answer questions from members of Parliament.

The goal of today's hearing is of course to inform the Prime Minister's eventual final decision with respect to the next appointment to the Supreme Court of Canada.

[Translation]

This process was used before, first, when Justice Marshall Rothstein was appointed to the Supreme Court of Canada in 2006, more recently, when Justice Andromache Karakatsanis and Justice Michael Moldaver were appointed in 2011, and finally when Justice Richard Wagner was appointed in 2012.

[English]

This process, which was begun by our government, is intended to bring greater openness and transparency to the judicial appointment process by allowing Canadians, through this procedure, to learn more about these individuals who may be appointed to the Supreme Court of Canada, our highest court in the land.

The selection process for a replacement began after Mr. Justice Morris Fish gave notice of his intention to resign from the court effective August 31, 2013.

In keeping with the announced process, and in view of the fact that we are replacing one of the three judges from the province of Quebec, La Belle Province,

[Translation]

I am very pleased to announce that I took the time to consult with Quebec's attorney general.

[English]

My predecessor, Minister Nicholson, and I consulted with the Attorney General of Quebec, as well as with senior members of the Canadian judiciary, including the chief justice of Canada, and with prominent legal organizations including the Barreau du Québec and the Canadian Bar Association, all with a mind to identifying a pool of qualified candidates for appointment to the Supreme Court of Canada.

Members of the public were also included in this process and were provided the opportunity to submit input with respect to qualified candidates who would merit consideration. The list of qualified candidates was then reviewed by an all-party selection panel composed of five members of Parliament from the government as well as from other recognized parties as selected by their respective leaders. The members of the selection panel were—and I note four of the five are present with us—

[Translation]

from the Conservative Party of Canada, the Honourable Shelly Glover and MPs Jacques Gourde and Robert Goguen, from the New Democratic Party, MP Françoise Boivin, and from the Liberal Party of Canada, MP Dominic LeBlanc.

[English]

The selection panel was given the very challenging task of assessing eminently qualified candidates and then providing an unranked list of their top three choices as qualified candidates to be provided to the Prime Minister and to me as Minister of Justice. To help ensure a full, balanced, and objective process and assessment of these candidates, the members of the panel met to review the resumés that were provided by each candidate as well as a number of reported judgments covering a variety of topics that might be considered by the Supreme Court of Canada.

(1310)

The panel members also consulted extensively with members of the judiciary and the legal community, including the Chief Justice of Canada, the Chief Justice of Quebec, the Chief Justice of the Quebec Superior Court, the chief justices of the Federal Court and the Federal Court of Appeal, the Attorney General of Quebec, the Barreau du Québec, and the Canadian Bar Association.

I want to again thank that panel for their hard work over the summer and the very extensive consultations, as I've just outlined, that they undertook.

Following these consultations, the selection panel completed their report and submitted this unranked list that I referred to of three qualified candidates, which of course included our nominee, Marc Nadon.

Before I move to introduce our speakers, who are two in number, I want to address another matter before we get under way. The Prime Minister's news release announcing the Honourable Marc Nadon as nominee for the Supreme Court of Canada also included a backgrounder with an opinion that was prepared by the Honourable Ian Binnie, a former judge of the Supreme Court of Canada.

For those of you who've had the opportunity to review that opinion, I'm sure you will agree that it was written in very clear and unequivocal language—as some might say, in "plain-speak"—in English. It was also, of course, made available in the language of Molière, en français.

In short, Mr. Justice Binnie—as he then was—was asked to review certain provisions of the Supreme Court Act as they pertain to the appointment of judges representing the province of Quebec, and specifically to address the issue of eligibility of judges from the Federal Court of Appeal as Supreme Court of Canada justice nominees.

As many of you will know, we have several judges on the Supreme Court of Canada who were in fact appointed directly from the Federal Court of Appeal, so there is precedent. Those justice appointees would include Mr. Justice Rothstein, Mr. Justice Iacobucci, and many years before that Mr. Justice Le Dain. I also note that we've had a number of justices who were appointed directly from private practice, including Mr. Justice Sopinka and more recently Madam Justice Arbour.

Having said that, there has not been an appointment from the Federal Court directly to the Supreme Court of Canada from Quebec. The purpose of this exercise of having Mr. Justice Binnie examine this issue was to provide the government with an opinion as to whether a person who has been a member of the Quebec bar for at least 10 years and is now a judge of the Federal Court or the Federal Court of Appeal would qualify as one of these three judges from the province of Quebec.

The conclusion, as I mentioned earlier, was clear and unequivocal. Mr. Justice Binnie stated that as long as the candidate has been a member of the Quebec bar for at least 10 years, he or she would qualify for an appointment to the Supreme Court of Canada as a representative of the province of Quebec. He went on to say that this would clearly include a judge of the Federal Court or the Federal Court of Appeal—and I would again emphasize—as long as that judge has been a member in good standing of the Quebec bar for at least 10 years immediately prior to his or her appointment as a judge.

I would add that this opinion was reviewed by several eminently qualified individuals, including the Honourable Louise Charron as a former judge of the Supreme Court of Canada herself. The opinion was also reviewed by Professor Peter Hogg, a recognized constitutional expert and author. Both of them expressed unequivocal support for Mr. Justice Binnie's conclusions.

[Translation]

I repeat that the opinion was very clear. And I would like to thank Justice Binnie very much for that clarification and his efforts.

[English]

Colleagues, moving on to other matters, I want to address just a few procedural issues off the top that will govern today's proceedings.

First, as was the case last year at the hearing for Mr. Justice Wagner, we will begin with an opening statement from our constitutional expert, Maître Jean-Louis Baudouin. This will be followed by opening remarks, of approximately 20 minutes in length, from our nominee, Mr. Justice Nadon. Then we will commence two rounds of questioning by committee members present, consisting of eight- and five-minute rounds respectively. As chair, I will be responsible, aided by the clerk here, for enforcing these time limits. The proceedings will end with concluding remarks from Maître Baudouin.

Second, I want to inform colleagues and guests here that parliamentary privilege does not apply—I repeat, it does not apply —to these proceedings, as this is not technically a parliamentary committee. This means that protection from defamation, slander, does not apply. I know that this is not a necessary admonition, but I am just putting it on the record. The normal protections of parliamentary procedure are not in effect here today. I leave each of you to exercise your own good judgment accordingly. We're all judges of our own conduct here.

(1315)

Finally, I want to remind all of you that the eminent member of the Canadian judiciary who has been invited here today and is with us will be responding to your questions in a manner that reflects the independence and impartiality of our judicial system. This means that some questions may not be answered fully or at all, which is within his right and, again, at his discretion.

To lay out some of the basic ground rules, I remind you that any question that raises an issue of law that might potentially come before the Supreme Court of Canada, as well as any question on matters of government or public policy, would not be viewed as appropriate.

Consistent with our very Canadian approach to these matters, I would add to the list that all questions of a personal nature, that is to say, questions that delve into Mr. Nadon's personal life and do not relate to his professional life or experience, would not be appropriate. However, despite this caveat, I understand that Mr. Justice Nadon is an avid golfer, so you may wish to question him about his handicap, the state of his game, or distance off the tee. Those questions would be within the purview of his discretion to answer. That may depend on the type of season that he's had this summer.

Maître Baudouin will now explain in more detail the appropriate scope of questions and the constraints on judicial speech for us shortly, with some more general comments.

I would ask that we as committee members respect the parameters within which our nominee is able to respond. With that said, I now have the great honour and privilege today of introducing another outstanding jurist as the government's nominee for the Supreme Court of Canada, Mr. Justice Marc Nadon of the Federal Court of Appeal.

[Translation]

Mr. Justice Nadon was born in Saint-Jérôme, north of Montreal, on September 7, 1949. His father was a hockey player in the American Hockey League from the 1940s to the 1960s. He was also a businessman. His mother, the daughter of Ukrainian immigrants, was born in Montreal.

Since Justice Nadon will have the opportunity to tell us more about himself, I will provide a summary of his legal career.

He was called to the Barreau du Québec in 1975 and practised law at the firm of Martineau Walker in Montreal, where he gained expertise in maritime law and transportation law.

[English]

For 40 years he has been dedicated to the law. After almost 20 years in private practice as a member of the Quebec bar, Justice Nadon was appointed to the Federal Court in 1993. During such time he was a judicial member of the Court Martial Appeal Court of Canada and the Competition Tribunal. It was during that time that he was appointed to the Federal Court of Appeal by the government of Jean Chrétien in 2001. I'm not sure if my friend, Mr. Cotler, was the Minister of Justice at that time.

Mesdames et messieurs, ladies and gentlemen, colleagues, without any further ado please join me in extending a warm welcome to our latest Supreme Court nominee, Mr. Justice Marc Nadon.

Welcome, sir.

Just before we hear from Mr. Nadon I'm going to introduce the Honourable Jean-Louis Baudouin and invite him to address us.

Maître Baudouin holds a law degree from McGill University. It's a fairly good school for law, I'm told. He holds a state doctorate as well from Paris, the faculty of law, and a graduate degree in comparative law from the

[Translation]

Faculté internationale de droit comparé

[English]

in Madrid and in Strasbourg. He has been a member of the Quebec bar since 1959. Maître Baudouin was a judge of the Quebec Court of Appeal from 1989 to 2009 and prior to that a professor at the Université de Montréal, Faculty of Law, where he taught contract law, civil liability, medical law, and bioethics.

(1320)

Monsieur Baudouin is also a senior legal counsel with the law firm of Fasken Martineau in Montreal and a prominent and wellknown member of the Quebec bar. Over the years he has collected no less than six honorary degrees and in 2012 was a recipient of the Grand Officer medal from l'Ordre national du Québec.

Throughout his career he has participated in numerous conferences and international conventions around the globe, and he has contributed to a process like this in the past. He's a frequent speaker and a much sought-after speaker. He has participated in conventions, conferences, and legal assemblies around the globe and has sat on countless medical, legal, and academic committees. He has organized multiple international conventions across the country and around the globe. He has served as a bioethics consultant for the Canadian government and is the author of more than 100 articles published both in Canada and abroad. He is a very qualified person to be with us today to help us in conducting this committee hearing.

I will now ask the Honourable Jean-Louis Baudouin to provide us with an overview of the constitutional framework within which this hearing is to take place.

[Translation]

Mr. Baudouin, please go ahead.

The Hon. Jean-Louis Baudouin (Former Judge of the Court of appeal of Quebec, As an Individual):

Thank you, minister, for those very kind and flattering words.

I am glad to see Mr. Justice Nadon before me, since he used to occupy the office that's now mine, making it an even greater honour to see him here today.

At the outset, I'd like to say what a pleasure it is to appear before you today for the second time. I had the honour of being here for the appointment of the Honourable Richard Wagner in October 2012. I am again pleased to appear before the committee for the appointment of the Honourable Marc Nadon, a Federal Court of Appeal judge.

The process of consultation and dialogue we are engaging in today is now well-honed, given that this is the fourth time it's been used, unless I'm mistaken. My role today is certainly not to give you an introduction to the Supreme Court of Canada. As parliamentarians and public representatives, you know it, of course.

My job is twofold. First, if I may, I will provide a few details on the court's operation, but only as it relates directly to the appointment you are considering today, so in the context of your examination. Then, in keeping with a now well-established but recent tradition— given that this system has been in place only since 2006—I would like to briefly draw your attention to certain principles and rules that apply to the examination of the person you are considering today. I use the word "examination" in the broadest sense. I should instead refer to it as a consultation or dialogue, one that must be open and honest. Naturally, no one is on trial here.

Clearly, the Supreme Court holds considerable importance to our country and the preservation of our democratic system. The Supreme Court is the final interpretative authority for the increasingly complex series of acts and regulations made not only by the federal government, but also by all the provincial and territorial governments. The court has the important role of making sure that this legislation is compatible with the Constitution, thereby ensuring unity among Canadian values. Therefore, a Supreme Court judge must have the most extensive body of experience possible, while being an able practitioner of the law.

This role has taken on even greater significance since the advent of the Canadian Charter of Rights and Freedoms in 1982. The charter introduced and prescribed a new framework for the exercising of fundamental rights. However, as you know, the charter is written in general terms, unlike so-called statute legislation, which usually contains a tremendous amount of detail. As a result, the Supreme Court's role has become more important, and the job of its justices even more difficult. In fact, the court has bound legal substance to a series of general notions, such as "free and democratic society," one you know quite well. The court has also defined what freedom of speech and freedom of religion are. This substance changes with time and requires the new justice, as well as all of the court's justices, to have the ability to adapt to a changing society. This new judge must be in tune with society as it evolves.

Occasionally, the charter has been criticized—wrongfully, in my opinion—for allowing the judiciary to take the place of the legislature, to the extent that Canada has been governed by judges ever since. Their role is important, to be sure, but it is much more limited, given that the legislative authority is paramount in a democratic society. The Supreme Court, however, has the mission of aligning the fundamental freedoms recognized under the charter with the sociological and political changes of Canadian society as a whole. In that sense, the court's job is to bring about progress in the law.

I am saying all this to remind you of the tremendous importance that a Supreme Court appointment holds for the entire country. The candidate's experience and skills must be equal to the difficult task that will fall to the new judge and mark his or her legacy. A responsibility of this nature is especially onerous.

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The Court, as you know, hears but a small number of appeals every year, and in most cases, leave to appeal has been granted. All of the matters it considers are therefore extremely important.

A Supreme Court judge is, however, not pure of spirit. The judge is a person, male or female, from a specific background, with a particular family upbringing and education, someone who has been shaped by a different social environment than his or her fellow judges. The judge is an individual who, in the course of his or her career as a practitioner of the law, has dealt with a variety of issues, encountering a myriad of problems about which he or she has formed opinions.

Your task today is to have a dialogue with the Honourable Marc Nadon, to determine whether his general merits and personal attributes make him a candidate worthy of the honour bestowed upon him.

What are those merits? First of all, one must have a good legal mind. That seems to go without saying, so you won't mind if I don't belabour the point.

Next, one must be completely open-minded. One comes to the Supreme Court with one's own variety of intellectual and emotional baggage. One has, as we all do, one's own beliefs, reflexes and ideas. One has certain likes and dislikes, certain behaviours and tendencies one approves of or does not. When presiding over a case, however, one must set aside that subjectivity and consider the reality with an objective mind. It is imperative that one be impartial, free of any bias. One must listen to others carefully and take a neutral stance, something that—let's be frank— isn't always easy. There will be times when one will have to render a decision that goes against one's own beliefs but that is consistent with the law. Considering that, open-mindedness and the ability to respect others' views are two of the very first qualities you should look for during your conversation.

Lastly, one must demonstrate and protect total independence. The independence of Canada's judiciary, a long-standing tradition, is the envy of many judges in other countries where justice is directly in the hands of the politicians in power, where the judge merely carries out their decisions and orders. It is imperative to assert independence not just from those in power, but also from the general public. One must expect to be the target of criticism and comments for one's decisions. One is obviously not out to win a popularity contest. A spirit of tolerance is also an essential quality.

In a few moments, you will have the opportunity to ask the Honourable Marc Nadon questions to make sure he possesses all the necessary qualities to do the job.

Since the process of appearing before the House of Commons was introduced, certain rules have been defined, and they must be followed. I believe we should stay away from the American model, which more closely resembles an aggressive cross-examination than a conversation or dialogue. Therefore, it is not appropriate to ask the candidate about pending matters, whether before the Supreme Court or other courts, or to ask him his personal opinion on highly controversial issues. Asking him to explain or, worse still, justify some of the decisions he has rendered during his career should also be avoided. Lastly, questions of a very personal nature—except, perhaps, about golf—such as those about his personal life, are clearly not acceptable. On the contrary, questions about his legal experience are.

What should you do, then? You could—and I would even say should—sound out the Honourable Marc Nadon about how he perceives his role, what contribution he intends to make to the court, what he thinks about the role and evolution of the law and where his motivation comes from.

There you have it. I have the feeling I went on too long. I will end by thanking you for your patience.

(1330)

The Chair:

Thank you kindly, Justice Baudouin.

[English]

I would now begin the process that we are all anxious to begin.

That said, I'm going to turn the floor over to Mr. Justice Marc Nadon.

Sir, the floor is yours.

[Translation]

Mr. Justice Marc Nadon (As an Individual):

Minister of Justice, ladies and gentlemen of the committee, Professor and Honourable Jean-Louis Baudouin, viewers, listeners and everyone in attendance here today, I am happy and honoured to be here. I'll be even happier later today, around 5 o'clock.

Some hon. members:

Ha, ha!

Mr. Justice Marc Nadon:

My intention is to give you an overview of the person before you today, in order to help you gain a better understanding of who he is.

Before I begin, I'd like to acknowledge the Honourable Justice Morris Fish, who recently retired, and commend him on the exceptional work he did. I was certainly deeply humbled to accept the Prime Minister's offer to replace him.

As the Minister of Justice mentioned, I was born in Saint-Jérôme, a tiny village north of Montreal, in the Laurentian Mountains. My father was a hockey player in the 1940s, when the pay wasn't very good, and my Ukrainian mother was a professional singer, one of whose great pleasures in life was to be the resident singer at Quebec City's Château Frontenac during the big band era. From an early age, both of them instilled in me the idea that I had to study and work hard to seize the opportunities I would have in life. My parents were very aware of the fact that they weren't able to attend college or university after high school. I'm proud of my francophone and Ukrainian roots. My Ukrainian grandparents came to Canada during the First World War; they were happy to have the opportunity to live and work in a country like Canada, which welcomed them with open arms.

My son, Marc-André, who it seems is a lot like me, is a lawyer at my old firm in Montreal, now called Fasken Martineau DuMoulin.

He practises media law and intellectual property law.

My wife, Margaret Buchan, who's been my companion for over 30 years, is a Scotswoman with degrees from the University of Edinburgh and the University of Rennes, in France. She's from Peebles, a tiny village near Edinburgh.

[English]

Because my mother spoke only Ukrainian and English when she married my father, I was brought up in English during the first few years of my life. However, afterwards I did all my schooling, from primary school to law school, in the French system in Quebec.

During my youth, my ambition in life was to become a hockey player. Looking at me, that may seem surprising, but those days were different. In fact, I was drafted by the Detroit Red Wings when I was 14, and I'm now going to make an admission, which may be fatal to me here in Ottawa, that I'm neither an Ottawa Senators fan nor a Montreal Canadiens fan.

However, when I was around the age of 16, my father read me the riot act and said that I had to decide whether I wanted to study or play hockey. I opted for studying. It now seems that I made the right decision.

(1335)

[Translation]

At the end of my college studies, after having read a book about psychoanalysis, written by Pierre Daco, if memory serves me correctly, my plan was to become a psychologist. Unfortunately for me, the college guidance counsellor informed me that I was missing a number of the biology prerequisites to go into psychology. So I asked him what I could study with the credits I had. One of the fields he told me I could go into was law, which I chose right away. I studied law at the Université de Sherbrooke for three years. At the end of those three wonderful years, filled with study and reflection, I obtained my degree in civil law.

When I finished school, I had a special fondness for criminal law and hoped to become a crown attorney. Unfortunately, things didn't work out as planned. In fact, from the moment I began articling at Martineau Walker, I spent 20 years practising maritime law and transportation law. My area of law was one of the most interesting, involving clients and legal issues from a number of countries, including the U.S., England, France, Belgium, Russia and Germany.

I had the chance to meet lawyers from all of those places, people with whom I remain quite close.

[English]

During the course of my practice, I had the opportunity of appearing before the Supreme Court of Canada on at least three occasions in cases pertaining to maritime law. My first appearance before the Supreme Court was in the late seventies when I was a very young lawyer. I remember with great fondness the manner in which Chief Justice Laskin and the court treated me and the other lawyers, who were all very young lawyers.

At that time my firm had asked me if I would be part of a group of lawyers who would open an office in London, England, where I lived from 1988 until 1990.

My job is twofold. First, if I may, I will provide a few details on the court's operation, but only as it relates directly to the appointment you are considering today, so in the context of your examination.

Then, in keeping with a now well-established but recent tradition— given that this system has been in place only since 2006—I would like to briefly draw your attention to certain principles and rules that apply to the examination of the person you are considering today. I use the word "examination" in the broadest sense. I should instead refer to it as a consultation or dialogue, one that must be open and honest. Naturally, no one is on trial here.

Clearly, the Supreme Court holds considerable importance to our country and the preservation of our democratic system. The Supreme Court is the final interpretative authority for the increasingly complex series of acts and regulations made not only by the federal government, but also by all the provincial and territorial governments.

The court has the important role of making sure that this legislation is compatible with the Constitution, thereby ensuring unity among Canadian values. Therefore, a Supreme Court judge must have the most extensive body of experience possible, while being an able practitioner of the law.

This role has taken on even greater significance since the advent of the Canadian Charter of Rights and Freedoms in 1982. The charter introduced and prescribed a new framework for the exercising of fundamental rights. However, as you know, the charter is written in general terms, unlike so-called statute legislation, which usually contains a tremendous amount of detail. As a result, the Supreme Court's role has become more important, and the job of its justices even more difficult. In fact, the court has bound legal substance to a series of general notions, such as "free and democratic society," one you know quite well. The court has also defined what freedom of speech and freedom of religion are. This substance changes with time and requires the new justice, as well as all of the court's justices, to have the ability to adapt to a changing society.

This new judge must be in tune with society as it evolves.

Occasionally, the charter has been criticized—wrongfully, in my opinion—for allowing the judiciary to take the place of the legislature, to the extent that Canada has been governed by judges ever since. Their role is important, to be sure, but it is much more limited, given that the legislative authority is paramount in a democratic society. The Supreme Court, however, has the mission of aligning the fundamental freedoms recognized under the charter with the sociological and political changes of Canadian society as a whole. In that sense, the court's job is to bring about progress in the law.

I am saying all this to remind you of the tremendous importance that a Supreme Court appointment holds for the entire country. The candidate's experience and skills must be equal to the difficult task that will fall to the new judge and mark his or her legacy. A responsibility of this nature is especially onerous.

(1325)

The Court, as you know, hears but a small number of appeals every year, and in most cases, leave to appeal has been granted. All of the matters it considers are therefore extremely important.

A Supreme Court judge is, however, not pure of spirit. The judge is a person, male or female, from a specific background, with a particular family upbringing and education, someone who has been shaped by a different social environment than his or her fellow judges. The judge is an individual who, in the course of his or her career as a practitioner of the law, has dealt with a variety of issues, encountering a myriad of problems about which he or she has formed opinions.

Your task today is to have a dialogue with the Honourable Marc Nadon, to determine whether his general merits and personal attributes make him a candidate worthy of the honour bestowed upon him.

What are those merits? First of all, one must have a good legal mind. That seems to go without saying, so you won't mind if I don't belabour the point.

Next, one must be completely open-minded. One comes to the Supreme Court with one's own variety of intellectual and emotional baggage. One has, as we all do, one's own beliefs, reflexes and ideas.

One has certain likes and dislikes, certain behaviours and tendencies one approves of or does not. When presiding over a case, however, one must set aside that subjectivity and consider the reality with an objective mind. It is imperative that one be impartial, free of any bias. One must listen to others carefully and take a neutral stance, something that—let's be frank— isn't always easy. There will be times when one will have to render a decision that goes against one's own beliefs but that is consistent with the law. Considering that, open-mindedness and the ability to respect others' views are two of the very first qualities you should look for during your conversation.

Lastly, one must demonstrate and protect total independence. The independence of Canada's judiciary, a long-standing tradition, is the envy of many judges in other countries where justice is directly in the hands of the politicians in power, where the judge merely carries out their decisions and orders. It is imperative to assert independence not just from those in power, but also from the general public. One must expect to be the target of criticism and comments for one's decisions. One is obviously not out to win a popularity contest. A spirit of tolerance is also an essential quality.

In a few moments, you will have the opportunity to ask the Honourable Marc Nadon questions to make sure he possesses all the necessary qualities to do the job.My job is twofold. First, if I may, I will provide a few details on the court's operation, but only as it relates directly to the appointment you are considering today, so in the context of your examination.

Then, in keeping with a now well-established but recent tradition— given that this system has been in place only since 2006—I would like to briefly draw your attention to certain principles and rules that apply to the examination of the person you are considering today. I use the word "examination" in the broadest sense. I should instead refer to it as a consultation or dialogue, one that must be open and honest. Naturally, no one is on trial here.

Clearly, the Supreme Court holds considerable importance to our country and the preservation of our democratic system. The Supreme Court is the final interpretative authority for the increasingly complex series of acts and regulations made not only by the federal government, but also by all the provincial and territorial governments.

The court has the important role of making sure that this legislation is compatible with the Constitution, thereby ensuring unity among Canadian values. Therefore, a Supreme Court judge must have the most extensive body of experience possible, while being an able practitioner of the law.

This role has taken on even greater significance since the advent of the Canadian Charter of Rights and Freedoms in 1982. The charter introduced and prescribed a new framework for the exercising of fundamental rights. However, as you know, the charter is written in general terms, unlike so-called statute legislation, which usually contains a tremendous amount of detail. As a result, the Supreme Court's role has become more important, and the job of its justices even more difficult. In fact, the court has bound legal substance to a series of general notions, such as "free and democratic society," one you know quite well. The court has also defined what freedom of speech and freedom of religion are. This substance changes with time and requires the new justice, as well as all of the court's justices, to have the ability to adapt to a changing society.

This new judge must be in tune with society as it evolves.

Occasionally, the charter has been criticized—wrongfully, in my opinion—for allowing the judiciary to take the place of the legislature, to the extent that Canada has been governed by judges ever since. Their role is important, to be sure, but it is much more limited, given that the legislative authority is paramount in a democratic society. The Supreme Court, however, has the mission of aligning the fundamental freedoms recognized under the charter with the sociological and political changes of Canadian society as a whole. In that sense, the court's job is to bring about progress in the law.

I am saying all this to remind you of the tremendous importance that a Supreme Court appointment holds for the entire country. The candidate's experience and skills must be equal to the difficult task that will fall to the new judge and mark his or her legacy. A responsibility of this nature is especially onerous.

(1325)

The Court, as you know, hears but a small number of appeals every year, and in most cases, leave to appeal has been granted. All of the matters it considers are therefore extremely important.

A Supreme Court judge is, however, not pure of spirit. The judge is a person, male or female, from a specific background, with a particular family upbringing and education, someone who has been shaped by a different social environment than his or her fellow judges. The judge is an individual who, in the course of his or her career as a practitioner of the law, has dealt with a variety of issues, encountering a myriad of problems about which he or she has formed opinions.

Your task today is to have a dialogue with the Honourable Marc Nadon, to determine whether his general merits and personal attributes make him a candidate worthy of the honour bestowed upon him.

What are those merits? First of all, one must have a good legal mind. That seems to go without saying, so you won't mind if I don't belabour the point.

Next, one must be completely open-minded. One comes to the Supreme Court with one's own variety of intellectual and emotional baggage. One has, as we all do, one's own beliefs, reflexes and ideas.

One has certain likes and dislikes, certain behaviours and tendencies one approves of or does not. When presiding over a case, however, one must set aside that subjectivity and consider the reality with an objective mind. It is imperative that one be impartial, free of any bias. One must listen to others carefully and take a neutral stance, something that—let's be frank— isn't always easy. There will be times when one will have to render a decision that goes against one's own beliefs but that is consistent with the law. Considering that, open-mindedness and the ability to respect others' views are two of the very first qualities you should look for during your conversation.

Lastly, one must demonstrate and protect total independence. The independence of Canada's judiciary, a long-standing tradition, is the envy of many judges in other countries where justice is directly in the hands of the politicians in power, where the judge merely carries out their decisions and orders. It is imperative to assert independence not just from those in power, but also from the general public. One must expect to be the target of criticism and comments for one's decisions. One is obviously not out to win a popularity contest. A spirit of tolerance is also an essential quality.

In a few moments, you will have the opportunity to ask the Honourable Marc Nadon questions to make sure he possesses all the necessary qualities to do the job.

Since the process of appearing before the House of Commons was introduced, certain rules have been defined, and they must be followed. I believe we should stay away from the American model, which more closely resembles an aggressive cross-examination than a conversation or dialogue. Therefore, it is not appropriate to ask the candidate about pending matters, whether before the Supreme Court or other courts, or to ask him his personal opinion on highly controversial issues. Asking him to explain or, worse still, justify some of the decisions he has rendered during his career should also be avoided. Lastly, questions of a very personal nature—except, perhaps, about golf—such as those about his personal life, are clearly not acceptable. On the contrary, questions about his legal experience are.

Since the process of appearing before the House of Commons was introduced, certain rules have been defined, and they must be followed. I believe we should stay away from the American model, which more closely resembles an aggressive cross-examination than a conversation or dialogue. Therefore, it is not appropriate to ask the candidate about pending matters, whether before the Supreme Court or other courts, or to ask him his personal opinion on highly controversial issues. Asking him to explain or, worse still, justify some of the decisions he has rendered during his career should also be avoided. Lastly, questions of a very personal nature—except, perhaps, about golf—such as those about his personal life, are clearly not acceptable. On the contrary, questions about his legal experience are.

What should you do, then? You could—and I would even say should—sound out the Honourable Marc Nadon about how he perceives his role, what contribution he intends to make to the court, what he thinks about the role and evolution of the law and where his motivation comes from.

There you have it. I have the feeling I went on too long. I will end by thanking you for your patience.

(1330)

The Chair:

Thank you kindly, Justice Baudouin.

[English]

I would now begin the process that we are all anxious to begin.

That said, I'm going to turn the floor over to Mr. Justice Marc Nadon.

Sir, the floor is yours.

[Translation]

Mr. Justice Marc Nadon (As an Individual):

Minister of Justice, ladies and gentlemen of the committee, Professor and Honourable Jean-Louis Baudouin, viewers, listeners and everyone in attendance here today, I am happy and honoured to be here. I'll be even happier later today, around 5 o'clock.

Some hon. members:
Ha, ha!

Mr. Justice Marc Nadon:

My intention is to give you an overview of the person before you today, in order to help you gain a better understanding of who he is.

Before I begin, I'd like to acknowledge the Honourable Justice Morris Fish, who recently retired, and commend him on the exceptional work he did. I was certainly deeply humbled to accept the Prime Minister's offer to replace him.

As the Minister of Justice mentioned, I was born in Saint-Jérôme, a tiny village north of Montreal, in the Laurentian Mountains. My father was a hockey player in the 1940s, when the pay wasn't very good, and my Ukrainian mother was a professional singer, one of whose great pleasures in life was to be the resident singer at Quebec City's Château Frontenac during the big band era. From an early age, both of them instilled in me the idea that I had to study and work hard to seize the opportunities I would have in life. My parents were very aware of the fact that they weren't able to attend college or university after high school. I'm proud of my francophone and Ukrainian roots. My Ukrainian grandparents came to Canada during the First World War; they were happy to have the opportunity to live and work in a country like Canada, which welcomed them with open arms.

My son, Marc-André, who it seems is a lot like me, is a lawyer at my old firm in Montreal, now called Fasken Martineau DuMoulin.He practises media law and intellectual property law.

My wife, Margaret Buchan, who's been my companion for over 30 years, is a Scotswoman with degrees from the University of Edinburgh and the University of Rennes, in France. She's from Peebles, a tiny village near Edinburgh.

[English]

Because my mother spoke only Ukrainian and English when she married my father, I was brought up in English during the first few years of my life. However, afterwards I did all my schooling, from primary school to law school, in the French system in Quebec.

During my youth, my ambition in life was to become a hockey player. Looking at me, that may seem surprising, but those days were different. In fact, I was drafted by the Detroit Red Wings when I was 14, and I'm now going to make an admission, which may be fatal to me here in Ottawa, that I'm neither an Ottawa Senators fan nor a Montreal Canadiens fan.

However, when I was around the age of 16, my father read me the riot act and said that I had to decide whether I wanted to study or play hockey. I opted for studying. It now seems that I made the right decision.

(1335)

[Translation]

At the end of my college studies, after having read a book about psychoanalysis, written by Pierre Daco, if memory serves me correctly, my plan was to become a psychologist. Unfortunately for me, the college guidance counsellor informed me that I was missing a number of the biology prerequisites to go into psychology. So I asked him what I could study with the credits I had. One of the fields he told me I could go into was law, which I chose right away. I studied law at the Université de Sherbrooke for three years. At the end of those three wonderful years, filled with study and reflection, I obtained my degree in civil law.

When I finished school, I had a special fondness for criminal law and hoped to become a crown attorney. Unfortunately, things didn't work out as planned. In fact, from the moment I began articling at Martineau Walker, I spent 20 years practising maritime law and transportation law. My area of law was one of the most interesting, involving clients and legal issues from a number of countries, including the U.S., England, France, Belgium, Russia and Germany.I had the chance to meet lawyers from all of those places, people with whom I remain quite close.

[English]

During the course of my practice, I had the opportunity of appearing before the Supreme Court of Canada on at least three occasions in cases pertaining to maritime law. My first appearance before the Supreme Court was in the late seventies when I was a very young lawyer. I remember with great fondness the manner in which Chief Justice Laskin and the court treated me and the other lawyers, who were all very young lawyers.

At that time my firm had asked me if I would be part of a group of lawyers who would open an office in London, England, where I lived from 1988 until 1990.

Before moving on—and I'm going to make many young lawyers jealous here—I would like to say that we had wonderful senior partners at the firm in those years, who told us young lawyers that we were not to worry about billable hours but that we were to concentrate our efforts on becoming excellent lawyers. These partners—George Allison, Roger Beaulieu, and Peter MacKell— sadly, have all passed away.

I then began thinking of becoming a judge in the Federal Court mainly because of its jurisdiction in maritime law and other fields of federal jurisdiction. I wanted to be in court more often and to have the opportunity to concentrate all of my time reflecting on and deciding legal issues. I was appointed in 1993, and I've never regretted my decision. It has been a very fulfilling career and it has met all of my expectations.

[Translation]

I worked at the Federal Court for nine years. There, I had the opportunity to hear cases and render decisions involving countless areas, from immigration, patent, trademark, copyright and aboriginal law to administrative, maritime, constitutional and charter law.

I was also able to hear cases involving antiterrorism legislation enacted by Parliament.

In addition, I was a member of the Competition Tribunal, where I reviewed one of the biggest cases in that field, the merger of Superior Propane and Inter-City Gas. As a result, I spent six months in Calgary, a city I now know well.

In December 2001, I was appointed to the Federal Court of Appeal, where I have served for over 12 years. There, too, I acquired more judicial experience. My time at the Federal Court of Appeal brought me into contact with some of the best legal minds, who taught me enormously and have significantly influenced how I approach and examine legal matters.

I also spent a few years teaching at the Université de Sherbrooke's faculty of law.

[English]

I would say that the life of a judge, as I see it, is a life of intellectual pursuits, by which I mean that one is constantly striving to better understand the issues of law and society that come before the court. One of the great pleasures and privileges in the life of a judge is that one may devote all of one's time and energy to arrive at the correct result in any given matter. Because context is crucial in law, one must know a lot about history, the origin of ideas or consequences, and the implications of decisions on litigants and society. That is why reading has always been, for me, a great passion. It is a full-time effort, only constrained by the number of hours in a given day.

At the top of the judicial pyramid sits the Supreme Court of Canada. That court is the leader of the Canadian judiciary. It sets the tone. It enacts the principles that every court in the land must follow, and it interprets the charter, which provides protection to all citizens of Canada. It plays an extremely important role and therefore imposes on its members a heavy responsibility.

The rule of law is at the core of what judges do, and more particularly, it is the golden thread that permeates our judicial system. Without it, life in a democracy would be very different. The Supreme Court of Canada is the guardian of the rule of law.

(1340)

[Translation]

I will close by saying that one of the most fundamental aspects of our justice system is lawyer participation in every single facet of the process. In my view, our legal system, as it now stands, is the envy of all, because we have outstanding bars—lawyers who understand that, without the rules of law, the freedoms we hold so dear would be jeopardized. That is why I believe respect by the judiciary for the profession is an essential requirement for any judicial undertaking in Canada.

I hope that my brief remarks gave you a satisfactory and insightful look at the person before you. I would just like to say that the subsequent period of questions will no doubt be fair and balanced, given that I have spent my life questioning witnesses—as a lawyer— and lawyers—as a judge. Now it's my turn to face the reality.

[English]

As these proceedings are conducted in both official languages with translators present it is appropriate that I make you aware of some of the dangers that lie behind translation by relating to you a true story. Years ago I read the memoirs of Lord Elwyn-Jones, who was then the Lord Chancellor of England, then the highest legal position in the United Kingdom under the government of Prime Minister Callaghan.

In his memoirs, he talked of a speech he was asked to give in Paris to a group of distinguished civil lawyers. During the course of his presentation on the common law and the common lawyers of England—a very serious presentation—he realized that on many occasions people were laughing. He simply could not understand why that was happening as he had not said anything funny, nor had he intended to say anything funny.

At the end of his presentation, he received a warm round of applause. He was approached by one of his friends to whom he voiced his surprise regarding the laughter that his speech had caused.His friend said to him that all had gone extremely well, but that the laughter was the result of translation. Lord Elwyn-Jones asked, "What do you mean?" His friend said that when he referred to the common lawyers of England, the translators translated those words into French with the words "les avocats bien ordinaires du Royaume- Uni".

[Translation]

I will end on that note. My infinite thanks for your patience. I am entirely at your disposal. I would be pleased to answer all of your questions, to the best of my ability.

Once again, it's an honour to appear before you today. Thank you.

[English]

The Chair:

Thank you, Mr. Justice Nadon. I can assure you that we view you as anything but ordinary. It's extraordinary to have you with us and to be at this point.

I would now also reiterate, as Maître Baudouin has done, that this is a dialogue, not an interrogation or an inquisition. We very much look forward to this dialogue with you.

Madam Boivin, you have eight minutes.

[Translation]

Ms. Françoise Boivin (Gatineau, NDP):

Thank you, minister.

For two years now, I have found myself here in October to participate in this process. Former Justice Baudouin mentioned it earlier, in fact. You still have a chance to appoint a woman to the Supreme Court. Justice Nadon is not to blame. I say it every year. I feel compelled to say it because it is a crucial consideration, in my view.

Justice Nadon, allow me to be among the first to congratulate you, apart from the government members. Make no mistake, as you mentioned, this meeting today is a process of dialogue and conversation to give us a chance to get to know you better, other than by reading the binder provided to us or participating in more indepth meetings with your people, which some of us attended.

As you said yourself—and it may have been a slip of the tongue— you accepted the Prime Minister's offer. We are all well aware of our role here. But, in light of the process, I think certain questions need to be asked, albeit in a respectful way. Don't hold it against me, although I doubt I'll have another opportunity to argue before the Supreme Court in the coming years.

That said, you are a supernumerary justice. For a long time, the average person—myself included—thought being a supernumerary judge was akin to early retirement. Yet we know the colossal amount of work that must be done at the Supreme Court of Canada.

Can you tell us whether you were in early retirement at the Federal Court of Appeal?

(1345)

Mr. Justice Marc Nadon:

No, I was not. I will still explain the supernumerary process. In Canada, federal judges can acquire supernumerary status when they reach the magic number of 80— their age added to their number of years of service. I was 62 years old and had 18 years of service, for a total of 80. So I could have retired fully. The supernumerary status allows us to hear fewer cases and work fewer weeks as a result. That is discussed with the chief justice and gives us more time to engage in other activities, if we want. It can also help us dedicate much more time to our cases, should we choose to. So we are not talking about an early retirement.

I will give you an example. I can only talk about my own case. During the first year of my supernumerary status, two years ago, I finished in December and left for two or three months. However, on December 15, I took a complicated charter case—the Jodhan case— which is mentioned in you book. The case had to do with access to the Internet for visually impaired people. I said to my colleagues that I had some time and would take the case. However, the case was substantial. Although I went south for four weeks, I spent two months at full time....

Ms. Françoise Boivin:

So that did not necessarily reduce your workload.

Mr. Justice Marc Nadon:

Possibly not, but it does give us time to dedicate ourselves to more complex matters and help our colleagues with heavier workloads.

Ms. Françoise Boivin:

You do know that workloads at the Supreme Court of Canada are incredibly demanding.

Mr. Justice Marc Nadon:

Yes. Allow me to clarify that I knew those weeks or days of rest would disappear when I accepted this appointment to the Supreme Court. I did not accept the Prime Minister's offer lightly. If this goes well, I am ready to do the work and devote all my time to it.

Ms. Françoise Boivin:

You talked about the decisions you submitted to us, and I found that interesting. You have been a judge since 1993. I know that we cannot necessarily talk about the content of the decisions, and far be it from me to debate with you issues like the ruling handed down in the Khadr case. Perhaps I would not win that debate, but that is not the objective of today's exercise anyway. Nevertheless, I am very curious. I have looked at the various documents that were submitted to us. Judge Nadon, you have handed down some very important rulings over the years. Why have you settled on those five judgments? What was your decision process? You were asked to submit a ruling in each of the following areas: constitutional law, the federal charter, criminal law, national security, civil law, administrative law, and another decision of your choosing. I should add in passing that you have not provided a decision in the area of civil law, but I understand that this is because you were at the Federal Court. Be that as it may, why would you choose these five decisions that were presented in the media, rightly or wrongly, as being in the government's favour? Did that cross your mind, or did you not think about it at all?

Mr. Justice Marc Nadon:

No. As all Canadian judges, we arrive at a finding after hours, weeks and months of work. When we issue the finding, we are not thinking about making Canada win. I know that is not what you think. In the Jodhan case, which is related to the charter, our decision was not in the government's favour. In the Martin case, which is also related to the charter, our finding was in the government's favour. I have never kept statistics on that. Some decisions are in favour of the government and others are against it. In my opinion, rulings must be informed by the law and the jurisprudence.

Ms. Françoise Boivin:

What led you to submit these five decisions you decided to tell us about yourself?

(1350)

Mr. Justice Marc Nadon:

We were asked to provide five decisions in specific areas, such as administrative law, constitutional law and criminal law. We do not render rulings in criminal law, except in cases related to the Corrections and Conditional Release Act or to terrorism. I presented my Khadr case ruling, which was the only decision related to terrorism I handed down at the Federal Court of Appeal. I rendered some judgments during my time at the Federal Court. One of them is still being reviewed by another judge, and that is why I did not present it.

We do not deal with civil law cases in the same way that Quebec courts do; we deal with them indirectly. For instance, the Employment Insurance Act, which often brings us to Montreal, is a statutory act. To arrive at a statutory solution, we must often consider contractual issues. For example, employed individuals must pay contributions. We must examine many underlying issues related to civil law.

Over the course of my 20 years at the Federal Court and the Federal Court of Appeal, I have dealt with civil law a great deal, but that was not the main legal area of the decisions. If I were to set aside several hours, I would find decisions where we dealt with issues related to the Quebec civil law.

Ms. Françoise Boivin:

Excellent, thank you. I understand that you dealt with civil law indirectly in employment insurance decisions.

According to your résumé, you are an expert in maritime law and transportation law; that's amazing. Not much is said about civil law. And then you arrived at the Federal Court.

The minister talked at length about legal opinion. You are the first person to be appointed and have a legal opinion at the same time. Of course, that fact is sparking discussions. However, your knowledge of civil law is limited to what you just told me. Is that right?

Mr. Justice Marc Nadon:

I think that my knowledge of civil law is very solid. I obtained a bachelor's degree in civil law, and I practised in Montreal. For 20 years, I mostly worked in maritime law, but I also argued civil law cases before the Quebec Court of Appeal and the Superior Court of Quebec. I do not recall all the cases. At my office, I was constantly consulted by lawyers who sought my opinion on civil law contractual issues. That was not my main practice, but I have worked a great deal in the area of civil law, at the Federal Court and at the Court of Appeal.

This is somewhat inaccurate, but I do need to introduce myself. Basically, I practised maritime law, but I have also practised a great deal of civil law and participated in civil commercial litigation in Quebec.

Ms. Françoise Boivin:

Thank you.

The Chair:

Thank you, Ms. Boivin.

Minister Glover, go ahead.

Hon. Shelly Glover (Saint Boniface, CPC):

Thank you, Minister MacKay.

I want to begin by thanking you for this opportunity. This is a historic moment for us simple MPs. I just want to let you know that it's truly a pleasure and an honour to be in your company today. I also want to thank Mr. Baudouin for the efforts he invested and the advice he provided before this discussion began.

Judge Nadon, congratulations. This is a very special moment in your life, and I know that your family is very proud today. On behalf of my colleagues, I want to congratulate you. All the documentation we have helps us see how great your career has been. It is clear that you have a great deal of experience.

My first question is about accountability. Could you please explain to our committee—and to the Canadians watching us on television—how our legal system works in terms of your accountability obligations? Could you also tell us to whom you are accountable? Could you please answer these questions while drawing on your experience as a trial judge and as a judge of the Federal Court of Appeal?

Mr. Justice Marc Nadon:

I'm not sure I understand your question.

This may seem surprising, but I am not accountable to anyone other than myself. A judge's duty is to administer justice as informed by the law and the jurisprudence, especially that of the Supreme Court. That is a judge's role. In each case, a judge must administer justice to the best of their ability and knowledge.

We have a great responsibility toward the Canadians who appear before us. We must do our work effectively and zealously. Our work always consists in arriving at the correct finding, which depends on the issues and the cases.

We are accountable to Canadians because that is our duty. That is what we are here for. That is why we are treated so well and allowed to do our work in the comforts and quiet we need.

We are also accountable to lawyers. I see them as the cornerstone of any legal system, which would not work without them. That is what I said earlier and what I have always thought during my career.

More specifically, when I became a judge, the first rule I set in my mind was that lawyers were sacred in my eyes. I had to listen to them and allow them to express themselves, file their defence to the best of their ability and defend their clients' rights. Whether I agree with them or not is another matter.

As judges, we are also accountable to superior courts. For instance, trial judgments can be reviewed by the Federal Court of Appeal, as you know, and Federal Court of Appeal decisions can in turn be reviewed by the Supreme Court.

To those who are not involved in the legal system on a daily basis as we are, I would like to say that judges are not competing amongst themselves. The Federal Court of Appeal is not in competition with the Supreme Court. Trial judges are not competing with us. We will not become stars or set ourselves apart; that is not how things work. From the initial processing of a case to its consideration by the Supreme Court, it's all about team work. The Supreme Court uses trial decisions and Federal Court of Appeal decision to ultimately facilitate its own work. It is important for judges to express their opinion over the course of the judicial process on issues that are often extremely complex. That way, when the case makes its way to the Supreme Court, that institution can consider different schools of thought on the question and different philosophies to arrive at the correct finding.

We are part of a team whose members are all working together to produce the best possible result for litigants in a given case.

That is my legal philosophy in a nutshell.

(1355)

Hon. Shelly Glover:

Thank you.

I would also like to talk a bit about members of the bar. Some of them are probably listening to us now. What advice would you give to practising members of the bar who come before the Trial Division, the Court of Appeal or even the Supreme Court of Canada?

Mr. Justice Marc Nadon:

Many judges have made speeches about ways to be good, to be better. Those speeches are available. In my opinion, there is no magic recipe. Just like us, lawyers have to be prepared. They have to work, be familiar with their cases, do the necessary research and put in the required time to ensure that their clients are fully represented. They have a duty to the court. In a way, we are dependent on lawyers. The better they are, the better the judges are. I think all judges would agree with that assessment. Lawyers have an obligation to be prepared and to provide us with everything we need to hand down the best possible decision in a given case.

Therefore, lawyers—and this is not a mystery to them—must be ready and do the work they need to do to defend their clients. Client defence is their main duty. However, they are still officers of the court. They have a duty to us to ensure that the cases are well prepared and that the arguments to be raised in cases—especially constitutional ones—are well established and presented, so that we can do our work in such an exemplary manner.

Hon. Shelly Glover:

You have had a long career. Were there any specific moments that defined your preparation for becoming a judge, be it at the Federal Court or, in this case, the Supreme Court of Canada?

Mr. Justice Marc Nadon:

Are you talking about my career as a lawyer?

(1400)

Hon. Shelly Glover:

Pardon me?

Mr. Justice Marc Nadon:

I did not understand your question.

Hon. Shelly Glover:

You have had a long career. Have any specific experiences prepared you for becoming a judge at the Federal Court of Appeal and

Mr. Justice Marc Nadon:

No, I would say that a series of circumstances were involved. I think that we must be legally minded. I hope that I possess that quality. Over the course of all these years, not many people have complained about me.

As Professor Baudouin was saying, we have to be open, patient and prepared to listen. Patience is a golden rule for judges. When lawyers do not present a case exactly as we would like to see it presented, that is not reason enough to set patience aside. We have to be patient, ready to listen and open to arguments. Before hearing the parties involved, we prepare. We receive the relevant records two months in advance. We read them carefully and do our research. We form a preliminary opinion on the case. This does not happen everyday or in 90% of the cases, but very often, the oral argument changes our mind. We change our mind often. You may read that judges have already made up their mind, but that's not the case. We are very open. It is absolutely critical that we listen, hear and be prepared to consider arguments that may not seem to be important at the outset, but that are important in many cases.

Hon. Shelly Glover:

Thank you.

The Chair:

Thank you, Minister Glover.

I now yield the floor to Irwin Cotler.

Hon. Irwin Cotler (Mount Royal, Lib.):

Thank you, Minister.

Mr. Nadon, I would like to begin by joining those who have congratulated you on your appointment. As the minister said in the beginning, I think it's important for parliamentarians to have their opinion heard over the course of this process. Like Mr. Baudouin said, this is a consultation—a dialogue.

Some people wanted this appointment to be used to maintain the balance between men and women at the court. What elements of diversity do you think you contribute to the judiciary? Why is diversified training desirable?

Mr. Justice Marc Nadon:

I am hard pressed to tell you why I bring an element of diversity. I told you about my background, which is distinctive. However, we all have distinctive backgrounds. My life story is my own, for better or for worse, as the case may be.

I have a legal vision. I told you about my career. As a judge, I have heard hundreds, even thousands, of cases on pretty much every topic under our purview. I have learned a great deal. I have heard numerous arguments. I have had countless opportunities to think about issues of concern not only for the individuals involved in the cases, but also for societies. This includes matters related to access to justice, problems pertaining to the charter and its sections 7 and 15, as well as its section 6 that has to do with mobility rights. I have thought about that for 20 years.

Law is not practised in a vacuum; it encompasses a number of underlying elements. As I was saying, we must understand many other considerations to make good judges—such as history and sociology. I am not saying this to beat the drum. However, I have read a lot in 20 years. One of the things I have appreciated the most in my career as a judge was having this freedom, unlike individuals who practise law and have to contend with various constraints. Those among you who are or have been lawyers know this. However, since we have that freedom, we have no more excuses— we have to understand all the major societal problems.

Am I the perfect ethnic candidate? I dare not answer that question. I will let others answer it. It's not my place to do that.

I hope this answers your question.

(1405)

Hon. Irwin Cotler:

Yes, yes.

[English]

Let me turn to a question about a case, as part of this dialogue of consultation that you were involved in, and that is the Mugesera case. When the Mugesera case was before the Federal Court you ordered at the time that deportation proceedings against the Rwandan génocidaire Leon Mugesera be halted as he had not committed any crimes against humanity. You mentioned also the absence of proof that any murders had been committed. The Supreme Court later ruled unanimously that he did commit a crime against humanity, that the very incitement constituted the crime, and that he was therefore inadmissible to Canada.

On reflection, do you feel that you made the right decision in that case?

Mr. Justice Marc Nadon:

I won't answer your question as posed, but I'd just like to say this, because there may be some misunderstanding. I heard Mr. Mugesera under judicial review for two weeks in Quebec City. My decision was that the order for deportation could not be stopped. I did not order that the deportation be halted. There were five arguments. He succeeded on one or two, but he had to succeed on five. The end result of my decision was that Mr. Mugesera was going to be deported. That is why the decision was appealed to my future colleagues in the court of appeal, who disagreed with me. They ordered that Mr. Mugesera not be deported.

In the end, the Supreme Court confirmed my decision that he could be deported.

Hon. Irwin Cotler:

I'm just speaking about a particular question of law, if I may, regarding

Mr. Justice Marc Nadon:

Okay, I can answer that. All I'll say is that you probably have had occasion to read the decision, and I won't get into that because, like Professor Baudouin, I wouldn't want to try to explain and justify my decision here. But on the point you referred to, it is all written in my decision, why I went in a certain direction as opposed to not doing so.

The case was decided on the evidence and the arguments that were before me. I haven't read the decision, unfortunately, for a long time, but, as I said, there were numerous arguments being made in defence of Mr. Mugesera. I mostly held against him, except on a number of points, but for the reasons that I gave in that decision, I don't think I could go any further without adding.... You and I would need five hours for me to explain that, or probably less as you happen to be filled in on the background and so on.

I can only answer that way.

[Translation]

Hon. Irwin Cotler:

You submitted the Khadr case to us. You wrote, and I quote....

[English]

The Chair:

Mr. Cotler, there's a point of order here. I'm sorry to interrupt you.

Hon. Shelly Glover:

I'm so sorry. My learned friend is a very good friend of mine. I just hope we don't breach the spirit of what we're here for by addressing specific cases and asking the judge to justify his decisions, which was something that Maître Baudouin clearly stated at the beginning would be inappropriate. Although I appreciate that my learned friend, my colleague Mr. Cotler, has a tremendous amount of knowledge in this, I would hesitate to put some questions like the previous one before the judge. It would put him in an awkward position and be contrary to what Maître Baudouin pointed out at the beginning.

The Chair:

I think we are close to the line. Mr. Justice Nadon has responded appropriately, within the bounds, and I think Mr. Cotler has moved on to another subject.

The floor is yours, sir.

Hon. Irwin Cotler:

I have moved on to another subject. In fact I'm moving on to the case that Judge Nadon gave us for our consideration, one of the five cases. That's why I'm focusing—

The Chair:

With respect, I think the concern is only when Mr. Justice Nadon is asked to revisit those decisions, justify them, or speak to another court's appeal decision that goes to the subject matter.

I'll give the floor back to you, sir.

Hon. Irwin Cotler:

Since that might enter into a procedural issue —whether it does or not—I'll go on to another question that does not address it in that way.

[Translation]

Judge Nadon, you may have heard Chief Justice Beverley McLachlin speak out about what has been referred to as an access-to-justice crisis. Do you share her opinion that justice in Canada is all too often inaccessible?

(1410)

Mr. Justice Marc Nadon:

I have not recently read what she said, but I have a good idea of what she could have said.

There are access-to-justice issues at our court and at federal courts. We need to recognize the fact that justice has become very expensive. Even we, judges—who are well paid by the federal government—could ill afford to hire a lawyer several times because their services have become so expensive. Hiring lawyers is clearly almost impossible for people with a modest income. That reality cannot be denied. So what can we do to resolve this problem?

Our court and federal courts have tried to change the rules in order to allow people to represent themselves, and many of them do so. We try to help them as much as we are allowed, while keeping in mind that we should not be hurting the other party by doing so. I want to point out that, in most cases, it is not recommended for people to represent themselves. They are not familiar with the rules or the law, and they often struggle to get their real point across to the court, even if their cause is a worthy one.

Legal assistance is available in many provinces, but it does not cover everything. I know that the Chief Justice commented on that. How far are governments prepared to go when it comes to adopting the measures needed to provide access to justice in the most effective manner possible? If I were the minister of justice, I could share my great theory, but as I am a judge, I will keep it to myself. The Chief Justice said what she had to say. You are asking me what I think about that, but it is hard for me to comment too openly on this issue, simply because that is the prerogative of the government and the Department of Justice.

Any changes would generate costs; new funding would have to be provided. Other measures can help people access justice. Certain countries provide more funding for legal assistance than some of the provinces do. There are all kinds of ways to change things, but at the end of the day, either the government would provide more money, or lawyers would start charging less for their services. It is not my place to meddle any further in this issue.

It is in our interest, as judges, that parties be represented by very good lawyers. That is in our interest and in the interest of everyone. In what specific way will we achieve that? I must leave that to the Minister of Justice and to provincial justice ministers. You yourself served as Minister of Justice for a number of years, and you did a great job. You probably know better than I do what kind of difficulties stand in the way of resolving these complicated issues.

[English]

The Chair:

Thank you, Mr. Cotler.

Madame Péclet.

[Translation]

Ms. Ève Péclet (La Pointe-de-l'Île, NDP):

Good afternoon, Mr. Nadon.

I want to begin by saying that I am very happy to be here. This is the first time I am participating in this kind of a committee, and I am very honoured to be able to ask you questions.

In your opening remarks, you talked about the rule of law. I studied law at the Université de Montréal, and I cannot tell you how much my professors stressed the importance of the rule of law. You said that the court was the defender of the rule of law, and that is a very thought-provoking statement. I would like to know more about your overall vision of the court's role as it relates to various powers. This refers to what you said about legislative and executive branches as defenders of the rule of law.

Mr. Justice Marc Nadon:

Clearly, the judiciary has its own separate area. The legislative branch does not play the same role as the judiciary. The judiciary is very protective of its jurisdiction and of its role in society. I understand that law-makers and the executive feel the same about their role. I have a hard time talking about interaction because the federal government is almost always one of the parties that appear before us, in the federal courts in particular. Between the federal government—the executive—and us, the barrier is higher than the Berlin Wall, which means that we do not communicate; we are separated. We must routinely review the executive's actions, whether in terms of the charter or the judicial reviews of administrative tribunals established by the executive. We therefore operate in completely separate areas.

There is a degree of activity. In past rulings, the Supreme Court has made suggestions to the executive or Parliament to address what seemed to be a potential danger of injustice or an outcome that is unacceptable in its view. The court has sometimes tried to make suggestions other than the solutions provided in the charter, which are different. There is a degree of implicit interaction, but I would not go as far as saying that we are constantly communicating. That would be risky. We all want to achieve the best possible outcome, justice. In Canada, we have our own way of looking at justice and that is what we all want to achieve.

We have been given different tools, according to our roles. Members of Parliament do not use the same tools as we do to achieve justice.

When the American founding founders achieved independence for the United States and established the Bill of Rights, James Madison, one of the great artisans of the Bill, wrote in the Federalist Papers that courts were

(1415)

[English]

"the least offensive branch".

[Translation]

By that, he meant that there is no need to worry too much about judges, because their role is to examine and apply the law. Recently, books have started to describe courts as

[English]

"the most dangerous branch".

[Translation]

As the professor pointed out, some feel that courts go too far. The approach of courts is limited, meaning that courts must be very careful not to interfere in the legislative power or the executive power. I also feel that it is essential to hold on to our powers and privileges firmly in the face of the administration.

Ms. Ève Péclet:

You have made rulings in some rather highprofile cases. It would be interesting to hear you talk about how you handled those cases. Was it stressful? How did you make the rulings knowing that those cases were very high profile?

Mr. Justice Marc Nadon:

Let me say that there is no stress. We are aware that the media will broadcast that type of ruling. Similarly, with some rulings, we are certain that they will end up in the Supreme Court.

I never felt that our modus operandi had to change because of that. A complicated ruling often takes a few months. We work very hard and we weigh everything. Of course, we consult the Supreme Court case law. As you know, that is actually the golden rule. If the Supreme Court says that a + a = ab, we don't have a choice, whether we agree or not.

The fact that it is in the media is secondary. We are used to the idea that our names may well appear in newspapers and that the ruling will be considered either good or bad. That is not a concern. We don't think about that when we prepare the rulings. We feel that every ruling is important, even if it has less media coverage. Often, the rulings that are not in the media are much more complicated and important for society. They don't make the headlines, but we see their impact two or five years later.

I would say that, for a judge—and this is my own opinion—the only pressure is the need to make the best ruling possible. When we sign off on a ruling, we often take a minute or two to look up to the sky and ask ourselves:

[English]

"Do I have it right or not?"

[Translation]

Then we sign it. But just when we are about to sign—I am not talking about the very simple cases, but the major cases—we weigh everything because a chessboard always has light squares and dark squares, and we have to put everything together.

The only real pressure, a pressure indeed, is the need to get the right result. We are not afraid to see our ruling overturned by the Supreme Court. As I said earlier, if I hand down a good ruling, which is then submitted to the Supreme Court, the end result does not matter because my ruling will be useful in one way or another. That is how appeal courts contribute to the judicial process.

(1420)

The Chair:

There is time for another quick question.

Ms. Ève Péclet:

As you know, about 60% or even more of Supreme Court cases are related to criminal law.

In your CV, we see that you are an international expert in maritime law. Could you briefly tell us about your experience in criminal law and especially your vision of criminal law in Canada?

Mr. Justice Marc Nadon:

As I said before, when I finished my law degree, I wanted to be a crown prosecutor. I had bought every book on the topic. I was well versed. However, I haven't worked in that area since.

You must understand that one of the great skills lawyers and judges have is the ability to learn fast. All my colleagues, including Supreme Court justices, worked in a specific area of law at one point. They became judges and they had to make rulings on topics with which they were not at all familiar in the beginning. Even at the Supreme Court, some lawyers come with a vast expertise in criminal law, but they are not well versed in trade. We learn quickly with every case.

If I am appointed to the Supreme Court, I can assure you that, in the following three, four or five months, I will be fully informed about criminal law. In three months, I will not become an expert like Justice Fish, but I can tell you that, when I am sitting, I want to know what I am talking about. That is what we do in all areas.

When I came to the Federal Court, I knew nothing about patents and, believe me, it is not an easy topic. I learned. I also learned what I needed to learn about taxes when I came to the Court of Appeal, even though it was not my favourite subject in university. We learn very quickly. There is nothing at all to worry about. Don't forget that colleagues at the Supreme Court know this subject inside out.

In a nutshell, I have read up on criminal law and I understand it, but you will have to wait for an answer about my vision and opinion on the subject until I am properly informed and have a chance to deal with a real problem.

The Chair:

Thank you very much.

Mr. Goguen, the floor is yours.

Mr. Robert Goguen:

Thank you, Mr. Minister.

First of all, congratulations, Your Honour. Well done. From rereading your rulings, we are convinced that your analytical skills will undoubtedly be an asset to the Supreme Court.

Not everyone here or watching us on television has had an opportunity to read your very specific rulings. We are now able to converse with you and see what you think. Having an idea of how you see things is rather comforting.

As a lawyer and a judge, you have had a chance to ask a lot of questions. Although Justice Baudoin says that this is not an American-style interrogation, you will agree that it is much more enjoyable to ask questions than to answer them.

I would like to go back to Ms. Péclet's question about the three branches of government: the legislative, the executive and the judiciary. How do you see the role of those three branches? Since the charter came into force, some aspects have become more prominent. Could you comment on that?

(1425)

Mr. Justice Marc Nadon:

As I was trying to explain, these are three separate branches. They are the three branches of government. The charter is the exception. When I studied law and when I started practising in 1974, before the charter came into effect, if Parliament passed a piece of legislation, the courts had to apply it, end of story. It was out of the question for courts to say that there were problems with the legislation. That is not how things worked. Parliament was recognized as the master of the legislative aspect and the courts had to respect that. That is still the case, subject to the provisions of the charter.

The charter required the judiciary to study the legislation and determine whether there is discrimination, as set out in section 15 on the right to equality. Are the lives and freedoms of Canadians infringed upon under this provision? Like relay runners, the courts have grabbed the baton and have studied all these major issues since 1982, and especially since 1985. I think the separation of powers is still there. If there are no charter issues, the mandate of the courts is to apply the law as enacted by the Parliament of Canada. I don't think any judge will suggest otherwise. That is the way it is and that is how it has to be.

As I said earlier, it is a bit different for the executive, because many administrative rulings are subject to the Federal Court Act.

The courts did not come up with that. Parliament allowed the courts to review some rulings by the administrative power and by administrative tribunals. To sum up, my answer is that we must respect and maintain the separation of powers.

Mr. Robert Goguen:

It is watertight.

Mr. Justice Marc Nadon:

Yes, it is watertight.

Mr. Robert Goguen:

From your CV, we can see that, as a lawyer, you practised law in Quebec for a number of years. You were also a judge at the Federal Court in Quebec.

How has your experience as a lawyer in Quebec prepared you for the position of justice of the Supreme Court? Could you expand on this? We know that bijuralism plays a major role in the appointment of people from Quebec.

Mr. Justice Marc Nadon:

As you all know, and as all Canadians discovered a few days ago, I used to practise maritime law. Maritime law is quite interesting.

One of my good friends, Professor Tetley, whom Mr. Cotler knows well, was a lawyer in my office, a minister under the Liberal government of Robert Bourassa and a professor emeritus at McGill University. He was a professor of maritime law and he practised maritime law. He wrote many books on the science of maritime law. One of the things he discovered is that maritime law has its roots in civil law, not common law. All the fundamental principles of civil law can be found in the principles of Roman civil law. Professor Tetley has written extensively on this topic and I have had the opportunity to read about it myself. For those of you who are fans of English literature, of Charles Dickens for example, if you go to page 108 of my edition of David Copperfield, you will see a very detailed and funny description of what the London maritime courts used to do in the 1700s and 1800s. He clearly explains that they were civil law experts and that those who practised maritime law were not common law lawyers, but Oxford and Cambridge graduates trained in Roman law. Those people did two things only, either maritime law or canon law. You can see the origins, if you look at the principles.

In my practice, I argued a rather well-known ITO case before the Supreme Court. The case was argued under both civil law and common law because it was uncertain what the Supreme Court was going to decide. It was unclear which law applied. It happened in Quebec and involved a robbery in the port of Montreal. The question was whether contractual relationships fall under civil law or common law. We argued that from the outset at the Court of Appeal and the Supreme Court in both bijuridical systems.

Contrary to what some may think, there are many links between common law and civil law. They are not two completely separate legal systems. The terms are often different and the approach is different but, for the most part, the outcome is the same, whether in tort or contract matters. Now, Quebec has adopted trusts, which did not exist when I practised law. This has been largely copied from English law. They are two parallel systems with many links. When you practise law the way I have, saying that you do not do civil law is an opinion. I cannot say that it is false, but it is not accurate, because you do a lot of civil law. In Quebec courts, it is always civil law. In federal courts, the lawyers arguing trademark and patent cases will attest to that. To argue cases before the Federal Court of Appeal in Quebec, you must understand civil law very well. Otherwise, it would not be funny. Civil law underlies all statutory principles.

(1430)

The Chair:

Thank you, Mr. Goguen.

Mr. Jacob is next.

Mr. Pierre Jacob (Brome—Missisquoi, NDP):

Good afternoon, Justice Nadon. I am very happy to be part of this great discussion.

My first question is the following. Do you have any mentors or legal scholars as role models? In your career as a lawyer and a judge, has any Supreme Court justice inspired you in particular?

Mr. Justice Marc Nadon:

It is not like my love for the Detroit Red Wings. There is not just one. I have read many biographies of former Supreme Court justices, including the biographies of Justices Laskin, Dickson and Duff. Those are the three names that come to mind. All three were exceptional judges, at different times. Justice Duff's time was before the Charter. Justice Laskin passed away in 1986, I believe. So that was the beginning. Justice Dickson came afterwards. They made significant contributions.

All Supreme Court justices are human. We do not always agree with everything they say. We have different opinions, but that is part of the debate. Their contributions have been outstanding in all cases, for a variety of reasons. I have had many heroes. I am thinking of all the senior lawyers who were there when I started my career and very well regarded colleagues with whom I worked in court. If I name only one or two, five or six others will probably phone me this evening to ask why I didn't name them.

In my view, the quality of the judiciary is outstanding in Canada. We are not perfect. We must make mistakes from time to time, but I think judges do an outstanding job in circumstances that are not easy. I started practising in 1974 when judges had a minimal amount of work compared to today. In support of the Federal Court and the Court of Appeal, I will say that they receive very few cases that are easy. The cases always deal with federal law and have administrative implications. There is a lot of administrative law. People my age will remember that administrative law was simple in their law courses. We had two credits a week. We talked and never thought about it. Today, it is perhaps the most debated topic in court, particularly in the Supreme Court. Administrative law is everywhere and takes many forms. That requires a lot of work. Judges today are doing an outstanding job.

I have read the biographies of all the great English judges, given that our system stems from theirs. Since the 1700s or 1800s, there have been a lot of great English judges. The rule of law has evolved because of great judges who have made it evolve over time. We don't say it, but we must thank those who did all that work before our time, who made it possible for us to be where we are today and who made the rule of law what it is today. Given what is happening around the world, it is not necessarily easy to have what we have here.

Mr. Pierre Jacob:

Thank you, Justice Nadon.

Could you tell me how you see the importance of bilingualism at the Supreme Court of Canada?

Mr. Justice Marc Nadon:

I don't want to tell you whether or not I think that all judges should be bilingual. Of course, bilingualism is important in Canada. In an ideal and perfect world, all judges at all levels would be fully bilingual. The reality is different for all kinds of reasons. I think it is a noble goal and it must not be forgotten. However, there are other considerations. It is up to the executive to look at those considerations. I am not in the executive. I was tempted to say something else, but it is the executive's problem.

To answer your question, I would say that bilingualism is important in Canada. Ensuring that everyone is bilingual is a very noble goal. I will leave it at that. I am bilingual myself. I would therefore not be able to say that it is not useful or important.

(1435)

Mr. Pierre Jacob:

Thank you, Justice Nadon.

Do I still have some time, Mr. Chair?

The Chair:

Yes, you have three minutes.

Mr. Pierre Jacob:

Okay. So I have time for a third question.

You said that you have often practised civil law indirectly.

Could you tell me how you see civil law as part of Canadian law?

Mr. Justice Marc Nadon:

Quebec's civil law goes back to the 1866 Civil Code of Lower Canada. We all know the history of the conquest up to 1866, during which civil law was defended ardently in various ways to ensure its survival. It is Quebec's private law. With the exception of statutory laws adopted by the government, civil law is at the heart of all the relationships between Quebeckers, whether in tort or in contract matters. In some ways, it is different from common law, which is its equivalent in the Maritime provinces, the other Canadian provinces and the Anglo- Saxon world.

The Anglo-Saxon world reveres common law, and with good reason, the same way we revere civil law in Quebec. There is even a cultural dimension to our civil code that we must not ignore. That is why federal courts use provisions that are similar to those in the Supreme Court Act. For instance, our federal court has five representatives from Quebec out of 11, which may surprise you. That is because there could be more judges in the Federal Court of Appeal, but that is not the case right now. There are still five judges from Quebec in the Federal Court of Appeal, which is a lot.

Just like me, those judges are the guardians of civil law. When we hear a case in Montreal or Quebec City, where we go on a regular basis, those problems come up. The lawyers have studied civil law. That is their right and the right of the Quebec people, and it must be protected. I feel that Quebec civil law plays a cultural role that is undeniable and sacred. As judges from Quebec in federal courts, our responsibility is to ensure that this law is protected. I think we have done a good job so far. We must not sacrifice civil law for the sake of common law and neither should the provinces that use common law. These are two systems of private law that must be protected, especially in Quebec. As I said, there is a cultural dimension to which we are strongly attached.

Mr. Pierre Jacob:

Thank you, Mr. Nadon and Mr. Minister.

The Chair:

Thank you.

Mr. Gourde, you have the floor.

Mr. Jacques Gourde (Lotbinière—Chutes-de-la-Chaudière, CPC):

Thank you, Mr. Minister.

Justice Nadon, congratulations on your appointment.

To continue along the same lines, at the Supreme Court of Canada, there are three judges from Quebec. Quebec uses the Civil Code. Outside Quebec, common law is used. As a result, are your decisions more recognized internationally? I know you have extensive experience in maritime law and transportation law, which must deal a lot with international issues. There are advantages and disadvantages to having the Civil Code and common law. I have been told that it is a major advantage internationally, because our rulings are recognized and are often used as case law. Could you elaborate on that?

(1440)

Mr. Justice Marc Nadon:

Many countries, such as England and the United States, are Anglo-Saxon. They have Anglo-Saxon common law systems. However, we must not delude ourselves. In the last 30 or 40 years, the statutory aspect has become more and more significant in all countries. Common law is no longer what it used to be in 1850. At that time, it governed all private law. There are now a great deal of legislative interventions. Because of legislation, some private sectors are governed by statutory laws. Quebec has earned admiration internationally. In my view, that is because it is recognized that the Supreme Court—and, to a lesser degree, the same goes for the courts of Canada—deals with both civil law and common law issues.

The courts in Australia, New Zealand and England can identify with that. A number of you probably know this, but for those of you who do not, I will talk about Louisiana, which is a civil law state. Its civil code is similar to ours. In Louisiana, civil law is practised. Scotland is also a civil law country. The same goes for many places in the world. I feel that the Louisiana and Scotland civil codes are more similar to the civil code of Quebec than to the civil code of France. French civil law and Quebec civil law are different. France has a civil code, but its whole approach to law is very different from Quebec's.

Canada is considered as an example because it has two legal systems. Our courts, including the Supreme Court, are constantly dealing with issues that pertain to these two levels. Our courts are respected because we apply the rule of law. Clearly, all courts aspire to that. Our judges are brilliant. I talked about them earlier. Our judges are recognized around the world as outstanding judges. That all makes a difference. When we look at an Australian or English decision that does not bind us, there may be persuasive arguments that help us understand our own law, be it civil law or common law. All those systems of law are interconnected.

Mr. Jacques Gourde:

Thank you.

Our modern criminal justice system is basically considered an adversarial process between the prosecution and the accused, who, in most cases, is represented by a defence lawyer.

In your view, what role does a victim of crime play in our current criminal justice system?

Mr. Justice Marc Nadon:

That is a question I would rather not answer, and I will tell you why. In some American states, it is common that at the time of sentencing, the victim—or the parents and loved ones of the victim if the victim passed away because of the crime—testify in court.

In my view, it is a policy issue. Establishing whether or not that should exist is a philosophical question. In my opinion, that is the responsibility of the executive, of the Minister of Justice. I have a hard time commenting further on that. I know you would like an answer and I might be tempted to tell you what I think about a host of things, but that is not why I am here today.

Mr. Jacques Gourde:

The fundamental quality of judges is their ability to provide specific, concise and well founded decisions. We know that some decisions are short and some are longer. Some judges tend to render decisions that are quite short, while others render longer decisions.

What about you? Do you like to be specific and concise or do you like to elaborate and be more theoretical in your decisions?

Mr. Justice Marc Nadon:

I have never been as concise and specific as I would like.

When I started as a judge, we had writing courses. They are still being offered. Among others, I remember that one of our professors gave us as a model the well-known English judge, Lord Denning. He was recognized for his brevity and clarity. He had a specific way of writing rulings.We all admired him. Even the House of Lords, which routinely overturned his rulings, admired him. But it still overturned his decisions.

I remember commenting that, if I could write like Lord Denning, I would not be Marc Nadon, but Lord Denning. When we look at the literature, we see that every judge has his or her own way of doing things. I know that my colleagues have often told me that, when they read one of my decisions, they do not need to look at the bottom of the page to see my name because they already know I wrote it. It is the same with many of my colleagues. I read a decision and I know who wrote it. Every judge has his or her personality and his or her way of handling problems. I don't think my decisions are the longest, but they are not the shortest either. It is not because I don't want them to be. Once again, in an ideal world, we would be so specific that we could say everything in 10 pages instead of 25. However, it is sort of like literature; no two great authors write in the same way.

Having said that, I agree that we must be specific and concise.

(1445)

Mr. Jacques Gourde:

I have one last question for you.

You have a lot of experience and qualities. Which ones add value to the Supreme Court? You know the other judges, but you must have qualities that add value to the Supreme Court.

Mr. Justice Marc Nadon:

First of all, I am a thinker, an independent thinker. I have been practising law for 40 years and I think about it all the time. I won't say that I wake up in the middle of the night thinking about it, but I am constantly thinking about the issues that we are facing. I have written on a number of topics. There are others I have not written about, but we must understand that there is a limit to what we can and must write when we are not in the Supreme Court. The Supreme Court actually sets the principles.

Once the principles are established, it is not up to me to say to the Supreme Court: "Listen, I will not follow your principles". I will rightly get a slap on the wrist, or something harsher.

I am an independent thinker and I think that is important. I have a lot of patience and I work well with my colleagues. I have never had any problems with anyone. I am ready to put some water in my wine when necessary and I know when not to put water in my wine. I have experience in many areas of law. I do not have any in criminal law, but I have a lot of experience in general trade law. I have had a lot of charter cases, major cases. I have had constitutional law cases. I don't remember if it was section 91 or 92 of the Constitution. So I have a different real-world experience; all judges have their own real-world experience. So I can hopefully have an influence on my colleagues, just like they will be able to have an influence on me in some areas.

As I said, we work together. A lot of collective effort goes into a ruling. Even when there are dissenting opinions, a lot of ongoing teamwork leads to that result. So I think I can contribute, and I can tell you that I will do what I have always done; I will work very hard to achieve a proper outcome that complies with the law and with Supreme Court case law.

The Chair:

Thank you very much.

[English]

Colleagues, I note that we are more than halfway through the process now and we are on time, which is great. You've all been very respectful and considered in your questions.

We can take a short break if anyone requires a short break—I'm in your hands, Monsieur Nadon—or we can continue on. What is the preference of the committee?

[Translation]

Mr. Justice Marc Nadon:

As I said, it is my turn to be crossexamined.

So the members' wish is my command.

[English]

The Chair:

Very good, I take it then that the preference is that we continue on. That being the case, the floor is yours, Mr. Kellway.

Mr. Matthew Kellway (Beaches—East York, NDP):

Thank you, Minister MacKay.

I know we're far down the list in this interrogation, Judge Nadon, but let me add my congratulations on your nomination. I imagine for your profession it's a bit like making the Detroit Red Wings. It's a great honour, and I'm sure congratulations can't come often enough.

Let me ask you to reconcile, if you would, a couple of things for me. I was struck by Maître Baudouin's context-setting remarks about the law and its importance in our society. He talked about the Supreme Court being the last word on a set of complex laws and regulations and the Supreme Court becoming more important since the adoption of the charter, and that in fact from that bench, you define a free and democratic society. I think I got all of that right.

I am not a lawyer, but I am married to one, which means that the legal system and courts and all the rest of it have been the subject of much conversation around the dinner table in my house for about 20 years. I have to say there's a certain complexity to all of that. Frankly, it's a bit mystifying, I think, to most Canadians what that system looks like.

I was kind of struck when.... I think the question came from Minister Glover about accountability. If I got your answer correctly, you were talking about accountability to yourself as judge, to the judges before you, to the lawyers. I'm wondering how you reconcile the role of the judge, especially from the Supreme Court bench, as being so important in our political system, really, so important to Canadian society, with the fact that the system seems very much shrouded in mystery to the average Canadian. This may go back to Mr. Gourde's question about a writing style, too.

Do you see any kind of responsibility for demystifying what the Supreme Court does, what the whole judiciary does, for the Canadian system so that Canadians have a better appreciation of what's going on out there?

(1450)

Mr. Justice Marc Nadon:

There is no doubt that the law is filled with technicalities and complexities, which often make it difficult even for avid observers of the judicial system to always understand; so for people who have no connection to the legal world, things are even more difficult to understand.

Since I became a judge, we, the courts, have tried to a certain extent to demystify and make things easier for people to understand. We regularly revise our rules to make them simpler so they can be understood even by non-lawyers. We have succeeded reasonably well, although we can only go so far in that direction because it's a system that remains necessarily technical up to a certain point, but we've tried. In some respects we've allowed the press to have better coverage of the courts. Depending on the courts and the provinces, we have even allowed cameras in the courtroom so that people can look at how a judge reacts or interacts. I think all of the Supreme Court hearings are televised, though I am told that Judge Judy is still more popular.

We can't totally remove the cloak of mystery; it is the nature of the beast. We have gone a long way, but perhaps not as far.... I have tried deliberately leading up to today not to read too many of the papers to keep my mind open to all your questions, but to a certain extent, the papers have written on what's going on today, what's at issue, why we are here, so the public is in a position to understand. The courts themselves have a duty, and we still have a long way to go, to write reasons that the public can understand and can relate to.

These are various measures that we're all attempting to take. We still have a way to go on this, but if we read...to take your colleagues' more concise and precise reasons that the public can understand, the public will.... It's important that the public understand. I agree entirely with you that the public has to understand what we do, why we do it. It's part of our job to explain it as we go along, but I think it is also part of the job of the media, those that follow court activities, to explain as best they can in a clear and, I'd say, correct way what courts do on a day-to-day basis.

Most people don't have involvement with the courts. Most of us, as persons, rarely appear before the courts, so they always remain a bit like medieval churches, although I think what we have done with that is to take off the wood flooring and wood panelling so they're a bit more friendly. It is partly our responsibility, but it is also partly the responsibility of all those who have any interest in the functioning of the court, including the media, to take steps to make justice more open so that it can be better explained to the public. It is not an easy effort, but I think your point is well taken.

(1455)

Mr. Matthew Kellway:

I have two minutes.

Very quickly, as you have made your way through your appointments through the judiciary up to this nomination, I wonder if you could reflect on whether your own view on what you're doing on the bench, the role that you play, has changed over time.

Mr. Justice Marc Nadon:

I don't think it has changed in any substantial way. My view of my role has become clearer. As I have sat more and more, I have seen more issues, more litigants, and have had more time to reflect on most problems. Clearly, I have a much better understanding not only of legal issues but also of all the issues on the side surrounding the parameters of what we do, the context, because, for example, if you are doing immigration work, as we do in the Federal Court and the Court of Appeal, it helps to read up on immigration and the problems facing immigrants to understand the issues. We remain bound to decide in law, but it helps greatly, as I said, to understand all the problems underlying what come to us as legal issues.

I think my vision has clarified. I think I am wiser and, hopefully, in 10 or 15 years I'll be even more wise. My wife would give me a slap if I said "more wiser" in the living room.

Voices:

Oh, oh!

Mr. Justice Marc Nadon:

She's a stickler for language.

The Chair:

Thank you very much, Mr. Kellway.

Mr. Dechert.

Mr. Bob Dechert (Mississauga—Erindale, CPC):

Mr. Justice Nadon, it's a pleasure to meet you, sir. Congratulations on your selection.

I hope you don't mind if I just point out that given the many things on your resumé, and the experiences you have, it's perhaps your experience with Canada's national sport that bodes well for the success of the Supreme Court hockey team. I assume there are court of appeal hockey teams across Canada that are very worried today.

Another of your many experiences, though, and you mentioned it earlier, is your period of time as a practising lawyer. I'm a former practising commercial lawyer myself. I wonder if you could give us your thoughts on how that experience gives you a perspective on your role as a judge, on the role of the Supreme Court.

I have another question along similar lines, from that background of dealing with clients and different kinds of organizations and businesses. You counselled them and defended their interests. How does the law and the knowledge of that practical experience lead to stability and economic growth? What's the importance of predictability in law to stability and economic growth in our country?

Mr. Justice Marc Nadon:

Let me take the easy question:

predictability.

I think courts have said for many centuries that part of the reason why the doctrine of precedent existed was that there had to be predictability. In part, this is because if two citizens come before the court, one on Monday and one on Wednesday, with the same facts and the same issues, they should get the same result. It would not be good for one of them, and it would not be good for society, if they went home, had a chat, and in the same matter had seen different results.

We all talk about the rule of law, but for those who have studied law, it's a pretty complex notion. One of the aspects of the rule of law is to treat everyone equally. If you come with certain issues on the same facts, the courts are going to treat you the same as others, irrespective of race, sex, colour of eyes, etc. That's what the rule of law requires, subject to the specifics of the charter.

Predictability is obviously very important, but not predictability to the point of madness, where a case has been rendered but it's clearly wrong or times have changed. There are many other good reasons why the courts will say after 10, 15 or 20 years that we should drop that case and revisit it.

In terms of commercial law, commerce is the lifeblood of our country and of many countries. It touches everyone's life, whether as employee, as employer, as supplier, as producer. Patent law is an offshoot of commercial law; that is, people who invent things, inventors. Commercial law affects every aspect of society, very important aspects. Everyone, directly or indirectly, is involved in commerce in Canada, so that law, which regulates all of these relationships, is extremely important. It's an important part of what the Supreme Court does. We often forget that it does criminal law and it does charter work, but much of its work, if I think of just last year, is in the world of patents, commerce, financial crisis, banks.

All of that work is extremely important, and not just for the purists of law. These cases have great implications and consequences for the people of Canada. It's an important aspect of what we do.

(1500)

Mr. Bob Dechert:

Thank you.

As a court of appeal judge, what principle did you follow in trying to determine whether a case should be heard again or a decision should be overturned? How did your time as a trial judge impact your views in that regard?

Mr. Justice Marc Nadon:

It's an easy question, because in our court, in the Federal Court of Appeal, we have something called Miller v. Canada, in which the court clearly said when it would revisit and set aside a former decision. It's only in very exceptional cases in which the court forgot an important principle of law or forgot to refer to a relevant statute; in other words, where we think we may have blundered a little bit, not necessarily because we are at fault, but because maybe the case was argued in a certain way and the lawyers did not make us aware of something of crucial importance. we will only revisit our decisions in very exceptional circumstances.

The reason I think we can allow ourselves to do that is that one of the options open to the parties is to go to the Supreme Court. The Supreme Court has the power to—and it does regularly, to our great chagrin—set our decisions aside and tell us we were wrong. That option is open to the parties. In our court, we have very strict rules on that. We don't reverse ourselves lightly, which doesn't mean you say, "We're bound. We've decided this issue". I have, on occasion, written saying, "We're bound and I'm going to follow it, but let me tell you why I think we were wrong five years ago", and I write it down. Actually, once I wrote more pages on why I thought we were wrong than on why we decided the case the other way. We still have the power to criticize ourselves, which I think is essential in this business.

To answer your question simply, we have strict rules on when we will overturn ourselves. There was a second part to your question, but I have forgotten it. I apologize.

Mr. Bob Dechert:

It was about how your own experience as a trial judge reflected or impacted on your later work.

Mr. Justice Marc Nadon:

In general I would say being a trial judge is an essential condition of becoming a court of appeal judge. There are exceptions, but generally, I think judges come from the trial division, because when you go to appeal, you have to understand how it actually works down in the trenches. To a great extent, trial judges do a lot of trench work. It's a very difficult job. They have to go around tons of facts. It's like building a puzzle. They have the pieces of a 500-piece puzzle and they have to build it. Then it comes to us and we have to say, "Is there one piece that's in the wrong place?" You have to understand the process of how a trial judge gets to building his puzzle, how he makes findings, how he makes decisions. To me, it's essential that you get that experience before you're elevated to the court of appeal.

(1505)

Mr. Bob Dechert:

Quickly, then, Justice Nadon, a lot has been said about the mystery of all courts, including the Supreme Court, here today. It's been described as a bit of an ivory tower. You have to live your life a little bit differently in any court, especially in the Supreme Court, so how do you stay connected with the average Canadian? I know you have a background in and you're a fan of hockey, but how do you stay connected with the average Canadian as you do this important job?

Mr. Justice Marc Nadon:

As you can see, we're human beings. We have friends. We live a social life. We interact with our friends. We play golf. We go on trips with friends. We have dinners. We drink wine with friends. We discuss. I think we lead pretty normal lives, except for one thing. Judges have to be guarded in what we say in regard to issues that might come before us. It is not open to us, even in our private lives, to say whatever comes to mind about every single subject on the planet. That's one of the—I won't say "negatives". It's one of the things you have to accept. You have to be careful wherever you go not to get into trouble, even though you haven't done anything, and not to start heckling people because you're at a spectator sport. Something might happen. You have to be very discreet and shut your mouth. Discretion is the better part of valour.

Apart from that, I think we live pretty normal lives. I certainly think in my life I know people of all levels of society. I get along well with everyone, and I never thought my position was an obstacle to all of that. You don't go around saying, "I'm a judge". I've had people ask me, "What do you do in life?" Sometimes I try just not to listen or pretend that I haven't listened. If they really, really insist, I might say, if we're playing golf, "My name is Marc, and let's get on and have a chat".

I think we have to lead normal lives, but, as I say, we have to be guarded as to what we say. We have to be guarded as to what we do, because where we go and what we say are not really us but the institution of the court, so if I blunder, it's a stain on the court. If I say something stupid, it's a stain on the court, which is worse than if it were just me. It's a stain on the court and on all of my colleagues, so it's very important to be careful.

I think we can lead pretty normal lives. We don't live in an ivory tower—a little bit, but not too much.

The Chair:

Thank you, Mr. Dechert.

Madame Bateman, if you please.

[Translation]

Ms. Joyce Bateman (Winnipeg South Centre, CPC):

Thank you, Mr. Chair.

[English]

As the minister said earlier, I am so honoured to be here. I wish you well, sir. It is a privilege for all of us, I'm sure, to be a part of this process.

[Translation]

I heard that my colleague Mr. Cotler paid us a great compliment on our current discussion.

Your Honour, when the Prime Minister announced that he would create the process that allows parliamentarians to publicly question candidates for appointment to the Supreme Court, he used the expression "legal temperament" to describe one of the qualities that parliamentarians should look for. The Prime Minister said that this expression meant the extent to which a judge is ready to apply the law and not create law, and apply the law using common sense, judgment and discretion, as you said, without inventing it.

Is that how you see the role of a judge? If not, how do you see your role?

(1510)

Mr. Justice Marc Nadon:

I think I will give the same answer as any judge would. Our role is not to legislate, but to apply the law enacted by Parliament. That is what a judge does. Unfortunately, the law is not always crystal clear. We must interpret the words and give them meaning. It is not like a chemistry experiment where we put ingredients in a test tube 20 times and we obtain the same result.

Unfortunately, law is not an exact science like chemistry or biology.

In some ways, the word "inventing" is the wrong concept. Clearly, we do not create the law. Parliament does. We apply it by considering all the facts, circumstances and the charter. As a judge, it is not my job to find solutions that Parliament should have found or has not thought about. Parliament makes the laws and enacts the legislation. We just apply it with the charter in mind. Our role is slightly different with charter issues because the charter requires courts to interfere somewhat and tell Parliament that what it did is unacceptable and that it has to redo it. With the exception of the charter, legal work means applying the law. We are not another level of government. It is not up to us to say that, because the law is not good, we are going to redo it. It is nothing like that. That is not my philosophy.

Ms. Joyce Bateman:

Thank you.

The Supreme Court of Canada receives approximately 500 appeals a year, but it can only accept about 80. The Supreme Court Act states that the leave to appeal must be granted when the case raises a major public issue. Given that the Supreme Court can only hear a fraction of the cases, what criteria could you use to determine which cases must be granted a leave to appeal?

Mr. Justice Marc Nadon:

As you mentioned, the act says what it says. We are talking about matters of national importance. There are probably a number of ways to determine what is of national importance. In some cases, it may be a patent issue, for instance, affecting the whole legal profession in Canada and having an impact on inventions in Canada. The court may feel that it is an issue that deserves its attention.

I have not sat on the Supreme Court bench yet. So I cannot tell you what I will do. The court cannot accept all cases, because there are only nine judges. If it accepted 500 cases a year, there would be a major problem. The court must make choices and try to determine which cases will have an impact. It must determine which cases to accept, which cases deal with problems that need to be addressed right away, knowing full well that some problems that come up today are of national importance. The court knows that those problems will probably come up in six months or a year. Those are problems that keep coming up and the court will have a chance to address them in the future. I don't think there is a magic bullet. It depends on the nature of the problem and the type of legal topic. Clearly, the court must make choices. It cannot accept all cases and, as a result, there are limits to what it can do. In an ideal world, all cases would be heard and the Supreme Court would decide on all those cases, but that is not realistic. The Supreme Court would need 25 to 30 judges for that. That is a different problem.

I am sure that the court studies each appeal and considers the nature of the problems to solve in Canada's interests in the coming year. It tries to make good choices and to solve those problems, in addition to the criminal cases for which leave is not required. I have never heard anyone say that the judges of the Supreme Court spend five days a week on the beach. They are very busy because the volume of work is quite considerable.

(1515)

Ms. Joyce Bateman:

Do you think that the Supreme Court should educate the public about the rule of law or mainly focus on litigants and members of the legal profession?

Mr. Justice Marc Nadon:

I said earlier that the Supreme Court was a defender of the rule of law. I think the court fulfills this role primarily through its decisions. The court is often criticized for explaining its rulings in too much detail. However, I think that the court does a great job of explaining the rule of law in its judgments and in all its cases. I am not at the Supreme Court yet. As Ms. Boivin said, slips of the tongue do happen. In my presentation, I assume that we have to go through this step and not play dumb.

In addition to their professional work at the Supreme Court, the justices visit all the provinces to speak to bar associations and explain certain things. They do that kind of work regularly. They are invited by all the bar associations to make presentations. They appear at universities. They always do so while keeping in mind that, even when they are making speeches at universities, they have to be careful and keep their comments in check, as those issues come up in court cases that require a decision.

As your colleague was saying earlier, we have to be very careful about what we say. Our appearances before lawyers and academics are not a good time to share our thoughts or any decisions we will make in future cases. We have to be very careful, as part of a sustained effort. We all love to talk and hear ourselves talk, but we have to be very careful.

Thank you.

The Chair:

Thank you very much.

[English]

Erin O'Toole, the floor is yours.

Mr. Erin O'Toole (Durham, CPC):

Thank you, Minister.

Thank you, Justice Nadon, for your thoughtful commentary in response to our questions, and really for sharing a bit of your own personal narrative and experience. It's appreciated.

I'm a lot like Madame Péclet. It's really a privilege for me to be a part of this process. When I was at Dalhousie law school a decade ago, we didn't have a hearing quite like this. I'm honoured to be part of one to help introduce you and your experience to parliamentarians and to Canadians.

A few of my colleagues have alluded to one of the dissents. I actually felt as though I were back at law school reading all the decisions and reading your dissent. I think it was a good one. I'd like you to expand on the role of the dissent. We have a chamber or a court, the House of Commons, near us, in which we record not only the government but the opposition in our Hansard. I think a welldrafted dissent helps the law evolve. We have a doctrine of precedent, but dissents are an important part of our evolution of the law.

Could you comment on the role of a dissent?

Mr. Justice Marc Nadon:

I agree that dissents are important.

There are many issues in law for which there is more than one way of looking at a problem and more than one way of looking at a legal issue. Dissents serve first to enlighten the majority, because before the judgments actually come out, if we're in a dissenting position the draft of the two who want to go one way in a court of appeal is circulated to the dissenting judge. The dissenting judge then sends his draft to the other two. I won't reveal any secrets, but it happens occasionally that the majority changes its mind and goes with the dissent and the dissent becomes a majority of three, unanimous. Sometimes it's the other way around where the dissenting judge says, "Okay, you've made comments on my dissent. I think your point is well taken and I won't dissent".

When a case goes to the Supreme Court, a dissent also serves to enlighten the Supreme Court that the court of appeal is not unanimous on this, that there are two ways they see the case. The case of Khadr is an example. I won't get into the merits, but the Supreme Court did confirm my decision for slightly different reasons. I'm not going to get into that, but I was certainly partly right.

Dissents serve that purpose. They go to the Supreme Court. As I said earlier, in a way it's team work. I have to say that what I find easier in the court of appeal is that instead of starting from scratch, I open my file and I have a well-written judgment by a judge. I start with that. It makes my life easier. Whether I agree or not is a different kettle of fish.

It's the same way with the Supreme Court. The Supreme Court gets a trial decision, an appeal decision, and maybe a dissent, so it has three decisions on the same issue, which helps it understand what's going on. It may inspire them one way or the other, and they may well arrive at a better result because of all these contending issues. Judges discuss openly how they view the problem.

I think dissents serve a very worthwhile purpose in our system. They're part of the independence of the judiciary. Independence of the judiciary is to stand on your own two legs and if you don't agree with your colleagues, well, you are paid to think and to think independently, and if you don't agree, then you don't agree and you put your case forward. That's part of the independence of the judiciary. That's why we have no fear when we dissent. We're not going to lose our jobs. We're going to carry on because that's what we have to do. To me, dissents are extremely important.

(1520)

Mr. Erin O'Toole:

Thank you.

My next question you touched on in response to a number of my colleagues' questions. The concept of the cloak of mystery of the bench has come up a few times.

You've been on the bench for 20 years now. I'd love your thoughts. We now live in a modern age in which instant communication and instant opinion are almost expected. There is a judge in Ontario who hosts a television show. There are judges who are on speaker circuits. I'm not sure, but soon there may be judges tweeting.

Where do you think the balance is so that the presumption of impartiality and the open-mind concept, which we've touched upon, are preserved while at the same time Canadians are shown their system at work and there is a demystifying or pulling back of the cloak of mystery as you described it?

Mr. Justice Marc Nadon:

The cloak of mystery, I don't think, is as opaque as it used to me. We've done away with the wigs. In fact, we never had wigs in Canada. We still have the gowns.

As I said earlier, what's important is the protection of the institution. We don't sit in a cafeteria. It would be physically possible and everyone would come and it might be easier to access, but because I think nous vénérons the judicial institution, the rule of law, we've kept certain traditions to convey the idea that this is not an ordinary place when you go to court; this is a place where we're deciding important issues. This is a place where you expect to tell the truth, the whole truth, and nothing but the truth. To a certain extent, I think there will always be some sort of mystery. It's like going into an ancient cathedral: you don't feel the same there as you do when you enter a plain, regular building. On the other hand, as I think we all recognize, the more Canadians understand the role of the judiciary, the better it is for everyone.

I think the judicial system, through the Judicial Council and various institutes and the various bars, has made great attempts to make the public aware of what's going on. I know that at the Canadian Bar Association annual meeting, there's a subsection of judges. They hold a judicial day where the public can ask questions of lawyers. Lawyers go into towns, where they have little kiosks and are asked questions. They try to be helpful to the public and try to explain things. I think it's a constant effort that all of us involved in the legal business must continue jointly.

Speaking for myself, I think there will always be—as I say, it's part of the beast—some cloak of mystery surrounding law courts. I think there has to be to a certain extent, because a courtroom and courts are not ordinary places. People understand that when they go into a court of law it is a place that's different from the regular places they sometimes go. I think it has to be to a certain extent because the values and the rules that are at stake are so important for our society. It's important. It's like certain traditions have to be kept.

I know my answer is not completely satisfactory, but it's a very difficult question to answer.

(1525)

Mr. Erin O'Toole:

We'll probably continue to struggle with the balance in the next decades.

Quickly then, with the indulgence of the minister, we've talked about your long career in the Federal Court and Federal Court of Appeal, which has also given you unique roles with the Court Martial Appeal Court, as well as the Competition Tribunal. Certainly as a lawyer, I know about the Superior Propane case.

Can you talk about how those highly specialized tribunals will contribute to your role on the court?

Mr. Justice Marc Nadon:

A good portion of the work we do— including the Supreme Court—is appeals or judicial reviews, depending on the level, of decisions made by the various administrative tribunals created by the federal government. Examples are the CRTC, which has a daily impact on people's lives, the Canadian Transportation Agency, and the national Parole Board. In the Federal Court we don't do criminal law, but we do a lot of the decisions coming from the national Parole Board, and I think there are decisions by a dozen or more other agencies that we review.

I've sat on the Competition Tribunal. The Competition Tribunal is an agency. It's akin to the Canadian Transportation Agency. When you sit there, you're an administrative tribunal, so I've had experience sitting as a member of an administrative tribunal. It certainly has helped me to work on cases where I look at administrative tribunals, as I can say, "I've been there, I've done this. I can't blame them because this is the way it works". Every little bit helps in this job. I would say that everything you've done helps you to become a better judge, and to understand all the things you should understand to be a good judge.

As I say, a good portion of the work done by the Supreme Court involves questions arising from decisions of administrative tribunals which have an impact on the lives of many, many Canadians: labour, the CRTC, the Transportation Agency, and there are tons of others that don't come to mind. As I say, every little bit helps in this job.

The Chair:

Thank you very much.

Colleagues, we have now had two full rounds where each member has had an opportunity to pose questions to Judge Nadon. We have set aside a little more time, so by consensus, what I would suggest we now do, not to prolong your agony, is to have a short round, with a question from each party, to close out this unique opportunity to question Mr. Nadon.

With that, Madame Boivin.

[Translation]

Ms. Françoise Boivin:

Thank you, Mr. Chair.

Mr. Nadon, I don't think you would refer to these situations as agonizing, since you are very good at handling them. That probably reminds you a little bit of the time when you were a lawyer and you experienced the stress that comes with appearing before a court. I am far from thinking that you are the fool in this case. I hope I can help you get that idea out of your head. I just want to say, as Mr. Baudouin mentioned, that we know that the point of the process is to have a discussion, try to get to know you a little bit and introduce you to the public.

I have found most of the exchanges informative. They have helped us gain some insight into your background and expertise. It's not always enough to just read a résumé and some of the rendered decisions, which have their limitations. That being said, when you arrive at the Supreme Court of Canada, you will face Chief Justice Beverley McLachlin. The court has nine judges. Certain needs and cases will soon be considered by the court. We have known since June 11 that the then minister of justice struck this committee. We, as members of this committee, have seen a list of candidates. Your name was on that list. Have you begun to consider the needs of the Supreme Court? What kind of a role will you play there? Beyond issues related to civil law or to the court you came from, have you looked at the court's specific needs? What will you say to your new chief justice when you sit down with her? What will you bring to her above and beyond your résumé?

(1530)

Mr. Justice Marc Nadon:

I will probably tell her that I am ready to work as soon as possible and that I can't wait to start. I'm sure she will want me to start working as early as possible, since some important cases are on the agenda.

I assume we will have a discussion. So I will have to be prepared, but I have not been appointed yet. I will need time to have a proper look at the cases. She will not allow a judge to sit without being ready. I cannot tell you how much time I will need to prepare. As I am not yet a Supreme Court justice, I do not know what the court has before it. I know that court will be back in sessions next week. I have not looked at what is on its agenda. So would I be able to sit next week? I don't know. If it is physically possible for me to study the cases thoroughly and be ready, I would say yes. The Chief Justice will have a good idea because she controls the cases.

Ms. Françoise Boivin:

Do you know who your future colleagues at the Supreme Court are? It is known that Justice Moldaver was a criminal law expert. Justice Lebel, who will retire next year, is an expert on administrative law and labour law. And the list goes on. Have you considered the members of the court to see what kind of a contribution you could make?

Mr. Justice Marc Nadon:

I think I can contribute in many ways. A newspaper said that administrative law was our bread and butter. Administrative law cases come before the Federal Court on a weekly basis. The Supreme Court and Justice Lebel, who has a lot of experience, have rendered many of those decisions. So I can definitely make a major contribution to that because I have been practising administrative law for a long time. I have regularly written on those topics. I think one particular case involves immigration or anti-terrorism legislation. I have worked on many related cases as a trial judge and an appeal court judge. Are any of the issues related to patents and taxation? I have handled similar cases a lot, and I have touched on a number of areas. I have not dealt with criminal law, but, as I said, I will do what I need to. Like all judges, I have not been involved in all areas of the law, but I could work very quickly and make a contribution in many aspects.

[English]

The Chair:

Merci.

Mr. Cotler, if you please.

Hon. Irwin Cotler:

Thank you, Mr. Chairman.

I'm going to return to the Khadr case, not in the way I intended, in other words to ask you to comment on any Supreme Court judgment, but in a different way and the way in which you raised it.

As you know, the Supreme Court did conclude that Khadr's rights under international humanitarian law and the charter were breached, but the court would not order or fashion a remedy, repatriation or otherwise. On this you both agreed on that point.

My question is this. I have to think that you gave us this judgment as one of five of your judgments to look at—and it was a dissenting judgment—because this case was a very interesting one as a matter of law. It brought up issues about the separation of powers, about the role of international law, about the role of the charter, and it seems to me that maybe there is something we could learn about you as a judge and about how it's important, as you say, for the public to appreciate the work that judges do.

What is it in this case that you gave us to look at that tells us something about you as a judge and your view of the law—

Mr. Robert Goguen:

On a point of order, Mr. Chair, with all due respect, I think, quite frankly, that is outside the scope of what Judge Baudouin has laid out. I don't think the question is appropriate.

The Chair:

I'm inclined to let Mr. Justice Nadon, as we have seen throughout the afternoon, decide whether he feels comfortable speaking about himself, but without delving into the actual decision and any reflections that it might have on future matters that could come before him.

(1535)

Mr. Justice Marc Nadon:

I think, Mr. Cotler, you are right that there were two issues. The Supreme Court agreed with me on one. I don't think it agreed on the other one.

That's all I can say. I wrote it. You've read the reasons. That's how I saw the file, bearing in mind the facts and the legal issues. They didn't agree with me on that.

Hon. Irwin Cotler:

No, I'm not concerned with the Supreme Court. I felt that you gave us this as one of five cases, and I thought you wrote a very comprehensive opinion. Maybe you offered us this judgment because you wanted us to know more about you as a judge, and that's what I'm asking about.

Mr. Justice Marc Nadon:

I think it was an interesting judgment.

We were asked to give a case on either criminal law or anti-terrorism, and that's one that came to mind. In the Court of Appeal we have done a few. That was the most important one that we did on those issues, and that's the one I sent.

What it reveals about me.... Well, I said what I had to say in that case. That was my assessment of the case and how it should go. I really can't say any more on that.

Hon. Irwin Cotler:

Let me just ask, if I may, a general legal question because, as you say, you bring to the court a repository of expertise in administrative law. Many cases touch on questions of administrative law, but the court is increasingly engaged not only in charter law but also in the application of international law to domestic law. That case and others bring that point up.

How do you see the relationship between international law and domestic law?

Mr. Justice Marc Nadon:

The Supreme Court has made it clear in many decisions that when Canada signs treaties, the court will consider those treaties in interpreting our own law. I think it has made that clear in Baker and in many other cases. When you and I were at law school the rule was that if the government had not enacted legislation giving effect to the treaty, the judges would never consider that. The court has now gone beyond that, as I say, in Baker and many other cases so that to a certain extent the treaty will inform or help the court interpret our own statutes and our law. That's where we are now.

That issue is still in flux. I think that in the next few years many cases will probably arise where the court will have to say something about that issue, whether that will involve staying where it is or moving forward.

I'd rather not say more than that because that's where we are now. I've read, as I must, the Supreme Court decision and I think that's the state of the law as we now stand. Whether it will go forward or not, I'd have to hear the arguments and take a stand at that point.

[Translation]

The Chair:

Thank you.

Mr. Goguen, you have the floor.

Mr. Robert Goguen:

Thank you, Mr. Chair.

Judge Nadon, Ms. Boivin drew an analogy between the Supreme Court and hockey and asked you whether you will be a winger or a centre player. It seems to me that the cases you will hear will be assigned by the Chief Justice.

One thing is certain; you have extensive experience as a trial judge. Earlier, you said that it would be key for an appeal court judge to have served on a trial court, as that kind of experience gives you insight into where the pieces of the puzzle fall into place.

Do you think that will also help you in your duties at the Supreme Court? Do you think you will have to surmount certain challenges?

Mr. Justice Marc Nadon:

My challenge consists in rendering correct judgments and being respected by my colleagues. I hope that I will also help them hand down better judgments. There is no doubt that, even at the Supreme Court, trial court judges are very useful. As I said earlier, every level teaches us things that are useful to the highest court—the Supreme Court. I think that few people would disagree with that. Generally speaking, that's what has happened within our system. Wayne Gretzkys and Maurice Richards come along once in a while, but they are exceptions.

(1540)

[English]

Mr. Robert Goguen:

Gordie Howe?

[Translation]

Mr. Justice Marc Nadon:

Gordie Howe is another such individual. I didn't want to say it. Gordie Howe was one of my heroes, so I am not of that ilk.

I think all that is useful. One does not become a legal expert overnight. I have often told friends that I thought I was a very good jurist when I became a judge—and I hope that I was—but that, after two or three years in that role, I realized how much my legal expertise had improved.

Today, it's the same idea. Experience and time help us learn. The law is not the only important consideration; the way we deal with problems is also of significance. All that helps us become better jurists. One of the major advantages at the Court of Appeal is the fact that we do not decide on our own. Three judges are involved in rendering decisions. Sitting with other very knowledgeable individuals makes us better. The same obviously applies to the Supreme Court. All that makes us better and helps us make better decisions.

[English]

The Chair:

Colleagues, I thank you very much for what I think were some very enlightening and very respectful questions presented here.

This entire process has been very helpful, as several have commented, in giving Canadians a better understanding not only of who sits on and aspires to be a part of the Supreme Court of Canada but also, as Judge Nadon has said, of the quality of the jurists that we have in this country, which is exceptional.

I would now defer to Jean-Louis Baudouin to give us some concluding remarks before we wrap up this committee session.

Monsieur Baudouin.

[Translation]

The Hon. Jean-Louis Baudouin:

I don't want to draw out this meeting needlessly. I just wanted to point out that the process is on the right track, and that there is now a certain amount of jurisprudence available. The line of questioning has been absolutely perfect. In addition, I feel that one aspect of the process is a major advantage. Thanks to television, all Canadians will be able to get to know Judge Nadon better. This may inspire young people to pursue a career in law.

I would now like to congratulate Mr. Nadon and wish him good luck in this new stage of his career. On a more personal note, I hope that his work at the Supreme Court will help him reduce his golf handicap.

[English]

The Chair:

I hope it doesn't.

[Translation]

Thank you all for being here and for the work you have done.

[English]

I want to thank everyone here, including our interpreters, all of the table staff, and the clerk for what I correctly deem to have been a very important dialogue and a very important process that I hope will remain a precedent.

Most importantly, I want to thank Mr. Justice Nadon for being here, for subjecting himself to these questions. I hope it was not akin to being in the dentist's chair. I hope this was also a reflection of the interest of parliamentarians and Canadians in the pinnacle you are about to achieve in judicial terms.

I might just say as a personal comment that we appreciate very much your humour, your humility, and for showing a very human side to the bench, including your hockey prowess, which I think endears you to many Canadians. Although your choice of team may lead some to question your judgment—

Voices:

Oh, oh!

The Chair:

—you have chosen a winning team.

I thank you very much, and I thank you as well for your public service that you have already demonstrated over the years, and thank your family, who I am sure are extremely proud.

As Mr. Goguen has said,

[Translation]

this is a great day for your family. You are definitely a remarkable Canadian.

[English]

We wish you the very best, sir. We will no doubt be hearing from you, although we will probably be reading your decisions as opposed to hearing from you directly. We are very, very grateful for your frank and informed responses here today. Merci beaucoup.

With that, we will conclude this session. Thank you.

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