Supreme Court of Canada nominee Mary Moreau appears before the House Justice and Human rights committee and the Senate Legal and Constitutional Affairs committee, in Ottawa, on Nov. 2.Adrian Wyld/The Canadian Press
Conservative Senator Denise Batters challenged Supreme Court nominee Mary Moreau on her decision to let Omar Khadr live in the community with no restrictions during a public hearing on Thursday in Parliament.
Although the members of an ad hoc committee of parliamentarians had been cautioned not to ask Justice Moreau to explain or justify her rulings, Ms. Batters got around the warning by simply restating that the judge had included the 2019 case of Mr. Khadr on her application form as an example of creativity in sentencing. Then she asked why the judge had not included crime victims in describing the audience for Supreme Court rulings.
Justice Moreau replied that her record in comforting victims in her courtroom speaks for itself. She said she included the ruling on Mr. Khadr in her application form because it was a relatively recent case, and she had not done many recent rulings because she was busy with administrative duties as chief justice of the Alberta Court of King’s Bench.
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Mr. Khadr, who spent several years in the U.S. prison at Guantanamo Bay, Cuba, after being accused of murder at age 16 in Afghanistan, was eventually transferred to Canadian incarceration. Released on bail while appealing his U.S. convictions, he spent four years under court-imposed conditions. Justice Moreau removed those conditions for the 3½ years that remained on his supervision order.
“When I speak of a creative sentence, I cannot comment on my decision in Khadr,” Justice Moreau said. But then she added that her ruling was creative in the sense the conditions had been very strict, replicating the conditions in a sentence of conditional imprisonment, or house arrest. In other words, while on bail, he had in effect served his full sentence.
It was the most challenging exchange during the hearing of a little more than two hours with the 67-year-old nominee, who has been a judge on Alberta’s top trial court for the past 29 years. Under Canada’s Supreme Court appointment process, a nominee answers questions in a public hearing. But unlike in the U.S., the members of the ad hoc committee of parliamentarians have no power to veto the appointment, which remains the prerogative of the Prime Minister and cabinet.
Law dean Érik Eastaugh of the Université de Moncton chaired Thursday’s meeting and set down several rules: no asking about Supreme Court decisions, hypothetical future cases or the nomination process.
Justice Moreau answered questions deftly and in plain, non-legalistic language, in both French and English, and her nomination was praised by Senator Pierre Dalphond, a former Quebec Court of Appeal judge. But when Liberal MP Anthony Housefather asked what criteria she would use in considering whether to overturn a Supreme Court precedent – he said he was thinking specifically of the pre-emptive use of a legislative override of constitutional rights – Mr. Eastaugh told him he could not ask that question.
Mr. Housefather then asked what Justice Moreau, the court’s first francophone nominee from the West, with a long history of representing clients in French-language rights cases when she was a practising lawyer, knows about the English-speaking minority in Quebec.
“My community is going through what seems to be a bit of a crisis right now in terms of feeling alienated,” the Montreal MP said.
She replied that she had once acted as a lawyer for Alliance Quebec, an English-rights group that intervened in an Alberta case: “I’m from the West. I know my area of the world fairly well, and we count on our three justices of the Supreme Court from Quebec to know theirs as well.”
When Senator Paul Prosper asked her about reconciliation between Indigenous and non-Indigenous peoples, she replied: “It’s very important that the institution provide opportunities for reconciliation.” She stressed “the little steps” undertaken by her court in Alberta, such as celebrating a feast with a Cree community in the North, and making traditions of smudging and the use of eagle feathers for Indigenous witnesses available.
She also spoke of how she had been moved by the eloquence of an Indigenous man accused of breaking and entering into a house. The case goes back more than 25 years, and “it still affects me today,” she said.
In an interview after the hearing, Ms. Batters said she did not think Mr. Khadr’s bail conditions had been terribly strict – she recalled him being in the Senate gallery in 2018 – but said, overall, the judge’s performance had been positive during the hearing.