The least that can be said about Canada's newest Supreme Court justice is that he isn't boring. Before he took his seat on the top court last week, Russell Brown left a trail of blog posts that separated him from his more austere colleagues. He had a personality.
Before the 2008 federal election, he expressed hope that a Conservative majority government would repeal "those odious third party [election] spending limits." After the election yielded a Tory minority, he called then newly elected Liberal MP Justin Trudeau "unspeakably awful."
Justice Brown's July appointment to the highest court unleashed a tsunami of indignation among the usual critics of the Harper government. They somehow argued that, because Justice Brown had (in his previous life as an academic) disagreed with a host of earlier Supreme Court rulings, that he was unfit for the top court and a threat to its progressive traditions.
They railed against the lack of transparency surrounding his nomination, after the Harper government scrapped its earlier reforms, including the screening of Supreme Court candidates by an all-party committee and subjecting nominees to (an albeit perfunctory) parliamentary hearing. Those reforms were a step forward, but their demise did not make the appointment process any less transparent than it had been throughout Canada's history.
Yes, the Harper government added a police representative to the judicial advisory committees that recommend potential judges for appointment. The committees can no longer designate a qualified candidate as "highly recommended" as opposed to simply "recommended." But if you agree with the Constitution that power for naming judges lies with the government, the change merely recognizes that prerogatives of the executive are just that.
In naming judges, prime ministers have always considered a host a factors in addition to a candidate's qualifications. To suggest that Stephen Harper is the first prime minister to seek out judges consistent with his own political or judicial philosophy is simply ridiculous. Pierre Trudeau and Jean Chrétien gave abundant weight to party loyalty and judicial ideology in picking judges.
What's striking is that, after 10 years in office, Mr. Harper has had so little influence on Canada's judiciary. Granted it's not for lack of trying, as the failed attempt to name Marc Nadon to the Supreme Court suggests. Still, none of Mr. Harper's seven Supreme Court nominees (Justice Brown is his eighth) is considered a reliable conservative, by any definition of the term.
The "Harper court" has repeatedly rebuked the Harper government – by the quashing the Nadon appointment, denying federal authority over securities regulation and dissing Mr. Harper's Senate reform proposals. The court's overturning of previous rulings on prostitution and assisted suicide reflected an absence of judicial restraint and an adherence to a "living tree" interpretation of the Constitution – everything conservatives like Mr. Harper used to rail against.
Mr. Harper's appointees on the Federal Court and Federal Court of Appeal, meanwhile, have struck down his policy of requiring new citizens to take the oath with their faces uncovered. He's appealing to the Supreme Court. Any guesses as to his odds of winning?
"The real story of Harper's judicial appointments has been how hard it has been for him to find clearly conservative individuals to appoint to the bench," University of Waterloo political science professor Emmett Macfarlane remarked in a recent article.
Conservative can mean different things in the context of the judiciary. It can mean a deference to the legislature and reluctance to "create" rights not explicitly described in the Constitution. It can also mean a respect for precedent.
It's not always clear which definition of conservative the Harper critics are using when they attack the nominations of Justice Brown, or those of Bradley Miller and Grant Huscroft, the two Ontario Court of Appeal nominees repudiated for opposing gay marriage.
If they're judicial conservatives, the new appointees will recognize, like Mr. Harper, that the constitutionality of same-sex marriage is what's called settled law. But should they be called on to rule on cases challenging that notion, it would not be heresy for them to consider an alternative interpretation of the Constitution. It might even be healthy.
The judiciary, like any other deliberative body, benefits from a diversity of opinion. One could argue that there's been too little of that in the Charter of Rights era. When Supreme Court rulings become increasingly predictable, it may be useful to inject a healthy dose of contrarianism into the discussion.
Justice Brown at least promises to enliven the conversation.
Konrad Yakabuski