marc_nadonNine judges sit on the Supreme Court of Canada. When members retire, they’re replaced by appointees nominated by the governor-general acting on instructions from the prime minister. There’s certain constitutional requirements that the nominees have to meet related to years of legal experience and region of the country they represent. Once appointed, the judges are able to serve until they reach the mandatory retirement age of 75.

On August 31, with his 75th birthday looming, Morris Fish retired from the court. He was one of three judges that represent Quebec on the court, so in replacing him Prime Minister Stephen Harper was constitutionally required to select a practicing lawyer or judge from that province. On Oct. 3, Harper announced his candidate, Quebec-born Federal Court judge Marc Nadon (pictured). Nadon is Harper’s sixth appointment to the court, and while previous appointments didn’t generate much in the way of controversy, Nadon’s appointment has not been welcomed by the legal community.

Objections have been made on two grounds. First, Nadon has spent the bulk of his judicial career in the trial and appeal divisions of the Federal Court. Thus, while he is from Quebec, critics say he lacks sufficient knowledge of Quebec’s Civil Code which differs from English common law used elsewhere in the country, and is the main reason why Quebec is guaranteed three seats on the nine-person court. Instead of Nadon, critics maintain, Harper should have picked a qualified candidate from the Quebec Court of Appeal.

Harper’s appointment has also drawn criticism because Nadon has generally had an undistinguished career as a jurist. His main speciality is maritime law, which is not exactly a hotbed of legal activity these days, and prior to his appointment Nadon, who is 62, had actually switched to supernumerary status which in judicial circles is equivalent to semi-retirement. That raises doubts about whether he would be up to the task of handling the heavy case load of a Supreme Court judge.

In a recent Globe & Mail reportSean Fine discussed one ruling that Nadon is especially known for related to the Omar Khadr case and the question of whether Canada violated the teen’s constitutional rights when officials interrogated him at Guantanamo Bay without a lawyer present and after he had been subjected to sleep deprivation and then turned the information over to his American jailers.

In an unanimous decision the Supreme Court ruled that Kadr’s rights had been violated. That decision echoed earlier rulings at the federal court level, except for one judge who held that Khadr’s rights had not been violated. That judge was Nadon, and critics allege that by appointing him to the Supreme Court Harper is trying to deter the court from engaging in the right-wing bugaboo of “judicial activism” to thwart Conservative initiatives like mandatory minimum sentences as part of the government’s “tough on crime” agenda.

On Wednesday, a seven member panel of the Supreme Court heard arguments on whether Nadon met the constitutional requirements to join their ranks. They reserved their decision in the case until a later date.

In the United States, appointments to the Supreme Court are hotly contested matters. Through its rulings, the court does shape the direction of society, and stacking the court with liberal or conservative appointees is seen by elected officials as a way of consolidating political power. Canada has typically not gone down that same path with our judicial appointments. That tradition may be in jeopardy, though, if Harper succeeds in appointing Nadon to the Supreme Court.