Globe and Mail
Friday, May. 13, 2011
The sudden retirement of two Supreme Court judges has handed Prime Minister Stephen Harper the chance to remake the high court along conservative lines, opening a debate over how to select their successors.
Mr. Justice Ian Binnie is leaving the court just three years short of his mandatory retirement age of 72. But Madam Justice Louise Charron’s decision to exit at 60 has accelerated a process that will see Mr. Harper fundamentally reshape the court by 2015.
Mr. Harper had already stood to replace four judges whose mandatory retirement dates span his term as prime minister – Judge Binnie, Mr. Justice Morris Fish, Mr. Justice Louis LeBel and Mr. Justice Marshall Rothstein.
Legal experts now believe Mr. Harper will use his choices to usher in a decades-long course of conservative Charter of Rights rulings and low-key deference to Parliament. That prospect is sure to delight those who view activist judges as anathema and the Charter with suspicion. At the same time, it conjures up a potential nightmare for the political left and civil libertarians who look to the Supreme Court to strike down laws that offend the Charter and to safeguard the rights of the accused.
The vacancies also guarantee another eruption of controversy over the appointment process.
Traditionally, the sitting prime minister and justice minister chose Supreme Court judges in secret and announced their selections with the barest explanation.
However, Mr. Harper abandoned that backroom process in 2006 with the appointment of Judge Rothstein, who became the first nominee to be screened in public by a parliamentary committee that had a limited ability to probe the candidate’s previous legal clients, court rulings and political affiliations. Mr. Harper also added a procedure for future nominees under which an all-party committee would provide a short list of candidates.
But when he appointed Mr. Justice Thomas Cromwell to the court in 2008, he simply announced his final candidate, on the grounds that the committee was paralyzed by infighting. Then he short-circuited the public hearing process because he felt it would take too long. Should Mr. Harper opt to again bypass the hearing process this summer for his new nominees, opponents will inevitably accuse him of hypocrisy and secrecy.
Throughout Friday, Ontario’s legal community churned with speculation over the extent to which Mr. Harper’s nominees will reflect his preference for judges who will be harsh on crime, defer to Parliament and rarely use the Charter to strike down laws or enhance rights.
In an opinion piece he wrote for The Globe and Mail in 2000, in which Mr. Harper explained why he was trying to have a federal election law overturned by the courts, he offhandedly endorsed criticisms of so-called activist judges: “Yes, I share many of the concerns of my colleagues and allies about biased ‘judicial activism’ and its extremes. I agree that serious flaws exist in the Charter of Rights and Freedoms, and that there is no meaningful review or accountability mechanisms for Supreme Court justices.”
While Judge Charron was conservative when it came to criminal justice issues and the Charter, Judge Binnie, a skilled jurist in every area of the law, was one of the few liberal voices on the court.
The notion of a liberal bloc forming is quickly moving out of reach. Legal experts believe that Madam Justice Rosalie Abella, the only left-leaning judge on the court, is now doomed to perpetually find herself on the wrong end of 8-1 court decisions.
“Abella is likely to become an important, if singular, progressive conscience for the court,” observed Allan Hutchinson, a long-time Supreme Court watcher who is a professor at York University’s Osgoode Hall Law School.
“He would love to appoint someone in their 50s and have a nice, long legacy from someone who will, in his view, do the right thing,” said a source close to the court. “This minister is out not for the short term, but for the long-term game. This is consistent with his attitude toward controlling things beyond his reach.”
Mr. Harper is too astute to put forward an overtly right-wing candidate with an obvious agenda, the source said. “What he wants is a strong, independent-minded judge who will go into the backrooms of the Supreme Court and influence, cajole, charm and sell a position he or she is already convinced of.”
The source added that Mr. Harper also recognizes that some judges are worth more than just their own vote. “Someone who is extremely hard-working, articulate, personable and charming has a good chance of not only casting their own vote, but causing many other people to cast votes in their direction,” he said. “Sometimes, you simply have to sign on to a draft because you don’t want to be badly outmatched. You want to be associated with the beautiful draft.”
Professor Jamie Cameron, a constitutional expert at York University, said Mr. Harper will seize his historic moment. “This is a Prime Minister who has an agenda and has not been able to implement his agenda until now,” she said.
Mr. Harper is also in a position to effectively choose the next chief justice during his term. Based on a convention of rotating francophone and anglophone chief justices, a Quebec judge is likely to be next. Therefore, whoever is prime minister is almost sure to choose from one of the two Quebec judges Mr. Harper will appoint.
Prof. Cameron noted that the court’s move toward conservatism was already under way, having begun when Chief Justice Beverly McLachlin rose to the top job a decade ago. The intellectual debate and bold decision-making that had characterized the Brian Dickson and Antonio Lamer courts began to fade.
The court’s low-key, minimalist decision-making is also trickling down through the court system. “Without binding precedents from the top, the lower courts are not as likely to take chances,” Prof. Cameron said. “Over a period of time, litigants who take advice from their lawyers are less likely to bring claims.”
Another criticism of the current court is that it asserts the validity of rights, yet provides no practical remedy for the party that has suffered harm. In key cases involving freedom of information, environmental damage and the rights of terrorism suspect Omar Khadr, experts say the court carved out a bland middle ground which offered no genuine remedy.
“This does appalling violence toward the rule of law,” said University of Ottawa law professor Amir Attaran. “It denies litigants any practical application of their rights, and it is both unintelligent and cowardly of the Supreme Court.”
Of the judges soon to depart, Judge Fish is the court’s resident champion of criminal rights. Judge LeBel, an erudite intellectual whose leanings are hard to pin down, has been a swing vote.
“While he can be unpredictable, I see him as a moderating force in the court's drift towards narrower interpretations of Charter rights, more deference to state power and diminishing concern for the rights of the vulnerable,” said York law professor Bruce Ryder. “His retirement will weaken the court's commitment to civil liberties.”
Beyond those whose departures are predictable or scheduled, other opportunities could appear unexpectedly for Mr. Harper. Madam Justice Marie Deschamps is rumoured to be tiring of toiling on the court, while Judge Abella – like former Supreme Court justice Louise Arbour – could potentially lose interest in being a liberal voice in the wilderness.
Possible candidates to fill the top court void
Stephen Harper can choose from numerous highly regarded legal minds
Prime Minister Stephen Harper is likely to fill at least one of the two upcoming Supreme Court of Canada vacancies by drawing on a vast storehouse of talent at the Ontario Court of Appeal.
Judges whose reputation, age and experience render them strong candidates include Eleanore Cronk, Marc Rosenberg, Eileen Gillese and James MacPherson.
Inasmuch as the Harper government is opposed to a formal requirement that Supreme Court judges be bilingual, Court of Appeal judges who have the added virtue of French proficiency include judges Paul Rouleau, Robert Sharpe, Robert Blair and Andromache Karakatsanis.
Two judges who are perennial favourites to be elevated – John Laskin and David Doherty – may now be too old to qualify or too distant from Mr. Harper’s ideological preferences.
However, Federal Court of Appeal Judge David Stratas, 50, is a leading constitutional expert with conservative tendencies, an engaging personality and a prodigious appetite for work.
Ontario Superior Court Judge David Brown and Ontario Court of Appeal Judge Michael Moldaver also stand out based on their legal abilities and notably conservative outlook on the Charter and criminal law.
Should Mr. Harper choose to dip into the bar – particularly if he wants to replace Judge Louise Charron with a woman – lawyers Sheila Block, Janet Minor and Linda Rothstein are considered to have solid credentials.