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Step Down, Justice Nadon, While There's Still Time

01/16/2014 05:25 EST | Updated 03/18/2014 05:59 EDT

Justice Nadon, the Prime Minister appointed you to serve this country at the highest level. In so doing he has put you in the position where the only way you can truly serve the best interests of Canada and its Supreme Court is to decline his appointment and step down -- while there's still time.

I am, as you once were, a maritime lawyer. But let us set aside for a moment -- for the few moments we may have before the Court renders its decision -- the legal merits of the case to consider what is at stake. For you, a personal sacrifice in declining to serve that I cannot possibly imagine. But yours has been a life of service for many years, one from which you have for the past few years taken a well-deserved semi-retirement. So the more important question for you and all Canadians must be: What is at stake for the nation?

Your appointment, sadly, has divided Canadians on both political and geographic lines. It has unnecessarily inflamed national sentiments in Quebec, and she has always jealously guarded her constitutional rights. In passing over many highly qualified jurists currently serving on the bench or at the bar of Quebec, as the plain language requires, the Prime Minister must have known his decision would light a fire under these ever-simmering regional tensions -- tensions the Court's decision will not quell, no matter which way the case is decided.

Just as importantly, your appointment has divided Canadians on political grounds. It will not be contentious, I hope, if I point out that your opinion in Khadr was in a minority of one, not just among your colleagues on the Federal Court of Appeal but, with the benefit of hindsight, also in reference to the Supreme Court's decision. Rightly or wrongly, many Canadians perceive that your appointment is an attempt to politically slant the Court in accordance with those minority views on government and foreign affairs prerogative.

Again, however, it is not important what Mr. Harper's subjective motives were, nor does it matter what the result of the case is: in any result, the Court has in fact been politicized by being required to consider and decide on this appointment. A decision against the appointment will be held out by conservatives as clear evidence the Court is 'activist' irrevocably damaging respect for the Court as a judicial institution in much the same way as in the United States. A decision in favour will be held out as liberals as proof that the Prime Minister's power to radically shape the Court through his appointments is virtually unfettered, similarly irrevocably damaging respect for the Court as a judicial institution.

Sadly, the most likely explanation is that Mr. Harper was well aware of these regional and partisan divisions, and that he perceived political advantage in dividing Canadians and in sowing disrespect for the Court and judiciary. If this is the case, then you are currently being used as a pawn (or, with greatest respect, a bishop) in a game that has as its purpose dividing Canadians and damaging our national institutions.

But Mr. Harper's subjective motivations are irrelevant, as the Court's ultimate decision is sadly also irrelevant. Intentional or not, and whatever the decision, your appointment has created a situation that can only further divide Canadians and damage the reputation of and respect for the Supreme Court you have been asked to serve. In any case, the result is the same: the only rational response, and the least bad possible outcome, is for you to bring this political sideshow to an end by publicly declining this great honour.

This will be a personal sacrifice I cannot imagine, and I can only tell you that if history shows the same wisdom in its future judgments as you do in this one, your service in resigning will be remembered as a great personal sacrifice made for the benefit of all Canadians and the honour of the Court, and you will be remembered not merely as one of the Court's 84 Justices, but as the only one who was ever asked to place the country's needs above his own and resign before taking his seat - and who made the right decision.

Please step down, Justice Nadon, while there's still time.

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