Harper's Supreme opportunity
With the retirement of Supreme Court of Canada Justices Louise Charron and Ian Binnie announced on May 13, Canada's high court will boast two vacancies in the near future. And with three more justices on track to hit the court's mandatory retirement age of 75 over the next few years, Stephen Harper will have a total of five spots to fill over the lifetime of the current government. Add to that the two appointments that Mr. Harper already made in 2006 and 2008 (one of whom, Marshall Rothstein, will have to be replaced by 2015), and by the end of Mr. Harper's term, six of nine sitting judges likely will have been appointed under his watch. These judges will influence public policy for decades, rendering decisions not only on appellate cases that come up through lower courts, but also on direct government references, such as the 1998 secession reference made by the Liberal government under Jean Chrétien.
Whom will Mr. Harper put on Canada's top court? If his previous nominations provide a guide, judges who have at least a decade of service to give, who enjoy a good reputation among their colleagues and who don't subscribe to judicial activism -from either the right or the left end of the political spectrum.
Which is as it should be: The high court should not be a political instrument of the government of the day. As Justice Rothstein put it during the hearings into his appointment in 2006, judges should "apply the law, not depart from it and not invent it." When courts are "forced" into policy decisions by the Charter of Rights and Freedoms, as they inevitably will be, they must take "the least intrusive approach," and when asked to overturn democratically passed laws, "approach the matter with some restraint."
Much of our social landscape has been shaped by court decisions -such as the 1988 decision in R. vs. Morgentaler that struck down the country's existing abortion law, the series of decisions that led to the legalization of gay marriage in the middle part of the last decade, the de facto proscription of the death penalty and the decriminalization of marijuana for medical use. Until the Conservatives came to power, in fact, our federal government actually encouraged aggrieved groups in society to pursue judge-made law through the publicly subsidized Court Challenges Program. But with the Charter turning 30 next year, the pendulum has swung back in the other direction -in part because so many contentious social issues already have been litigated (though a few, such as prostitution and polygamy, remain to be settled). Indeed, conservatives might worry less about the Supreme Court and more about quasi-judicial bodies such as human rights tribunals, which employ laxer evidentiary requirements and mete out more activist judgments than do regular courts.
In terms of the process by which judges are appointed to the high court, our Constitution allows the prime minister to name them at his or her discretion. But to his credit, Mr. Harper is making efforts to open up the process. He has pledged to make his next appointments from a pool of candidates recommended by senior lawyers, the attorney-general for the appointee's province of origin and the general public. These will be culled by a selection panel made up of five Members of Parliament -including three Conservatives, one NDP and one Liberal MP -who will provide an unranked short list of six qualified candidates to the Prime Minister and the Minister of Justice for their consideration. The selected candidates will then appear at a public hearing to answer MPs' questions.
Unlike in the United States, however, where members of Congress are allowed to vote on nominees, MPs would still have no say over the candidates' appointments. No matter what is revealed at the hearings, they will not have the chance to pronounce themselves, or veto the prime minister's choices. While the process represents an improvement over the way the Liberals did business -which consisted of simply announcing the PM's pick as a fait accompli -it still lacks the rigour of the appointments process south of the border, where candidates for the top job must answer questions in public. Moreover, as we saw in the case of Mr. Harper's second appointee, Thomas Cromwell, it can be abandoned entirely for the sake of political expediency.
Mr. Harper has an unprecedented opportunity to shape a thoughtful, prudent and experienced court, one which respects both the rights of litigants and the limits of judicial power. We hope that the Prime Minister chooses his appointees wisely, and that he does so through a transparent process that allows both MPs and the Canadian public to understand the legal philosophy of the men and women who sit on our top court.
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