Stephen Harper’s Contempt for Constitutional Rights

Stephen Harper’s recent nominee to the Supreme Court Canada exposes his desire to exercise power over the criminal justice system without interference by judges. There is nothing intrinsically wrong with his appointee, Justice Marc Nadon. He is faultlessly ordinary. Ask any Canadian lawyer with the temerity to offer an opinion and with knowledge of the appointee’s judicial history and you will likely find this assessment: Nadon lacks the Promethean ability to be daringly original or creative. His judgments are imitative and uninspired.

So why would Stephen Harper nominate Nadon?  Nadon suits Harper’s political agenda. Harper anticipates that Nadon will staunchly defend his ‘Tough-On-Rights’ agenda. Harper does not refer to his agenda as inimical to civil liberties. Instead, he holds the antiquated notion that harsh penalties and mandatory minimum sentences deter criminal behavior. He smugly refers to his agenda as ‘tough on crime.’ His agenda, regardless of its characterization, abhors a nation that values liberty and democracy. Under the guise of protecting victims of crime it violates the rights and freedoms of  Canada’s citizens that the Charter of Rights and Freedoms was designed to protect.

Nadon’s judicial record is antagonistic to civil liberties. His judicial record is that of a governmental ‘yes’ man. He is the quintessential Harper nominee. Lacking in independent thought, he is less likely to challenge any government legislation, even if it is misguided or intrusive of civil liberties. If the government wants something, that will be good enough for him.

Ironically, at Nadon’s nomination hearing in October 2013, he claimed that he most admired two of Canada’s judicial icons, former Chief Justices Bora Laskin and Brian Dickson. Interesting choices. However, stealing the words of Sen. Lloyd Bentsen to Dan Quayle during the 1980 United States vice presidential debate: “Justice Nadon ‘You’re no Bora Laskin or Brian Dickson’.” Not to suggest that Nadon was attempting to compare himself to these exemplars of judicial talent; but his judgments are the very antithesis of what Laskin and Dickson championed.

Laskin was a liberal jurist with a strong record of supporting civil liberties. While many of his decisions were not popular at the time of their release, they were almost always eventually adopted by judges less creative and less visionary. Dickson was himself an admirer of Laskin. In fact, in their years together on the bench they seldom disagreed. The two of them, together with another staunch protector of civil rights, Justice Spence,  became affectionately known as the LSD line. You could count on all 3 to ensure that an individual’s rights were never sacrificed on the altar of governmental pandering.

Stephen Harper, of course, hopes that Marc Nadon will genuflect at that governmental altar in deference to his Almighty ruler, himself. Harper no doubt was impressed when Nadon sided with the Canadian government in every aspect of their treatment of 15-year-old detainee Omar Khadr. Khadr was interrogated for hours at Guantánamo Bay without benefit of legal counsel. Of the 13 Canadian judges asked to consider the actions of the Canadian interrogators, only one found no fault in their treatment of the young detainee; Marc Nadon. At that moment Harper probably decided who his next nominee to the country’s highest court would be. He had found the man who would unquestioningly support his anti-democratic agenda.

Those that challenge Nadon’s appointment to the Supreme Court of Canada will be impaired by their requirement to demonstrate that his appointment offends constitutionally entrenched laws. There is nothing illegal about the Prime Minister’s ability to appoint a candidate in lockstep with his agenda. He is not bound to follow previous leaders who chose worthy candidates based upon their intelligence and talent. Sadly, Harper is free to choose his candidate based upon the likelihood that he will never dissent from the government’s agenda no matter how repressive it may be.

Harper’s nominee, if appointed, will never be a modern-day Laskin or Dickson. To emulate these judicial luminaries Nadon would need to be a lot more creative and a lot less intimidated by the government that nominated him. The Harper government, like the crayfish, continues to crawl backwards into the future.