Prime Minister Stephen Harper’s two nominees to the Supreme Court of Canada appear strong, but the public hearing process is far too rushed – a 2 1/2-hour meeting Wednesday, just two short days after the nominees were announced.
Mr. Justice Michael Moldaver of the Ontario Court of Appeal brings a tough but fair approach to criminal law, including justifiably long sentences for terrorism and Internet luring offences. He would bring a refreshingly blunt, plain-spoken manner to the court. Notably, he has given strong, provocative speeches on how and why criminal trials spin regularly out of control. Even so, there is no reason to believe that he would predictably accept the government’s agenda on crime or other matters.
The multilingual Madam Justice Andromache Karakatsanis, also of the Ontario Court of Appeal, brings deep experience of government as a former senior civil servant in Ontario during the Mike Harris years. But she joined the appeal court only in March, 2010, and her record is scant. It does not appear, though, that Mr. Harper tabbed her as a hanging judge. (As a Superior Court judge, she sentenced a man to house arrest for sexual interference and sexual touching involving three young boys.)
Much to Mr. Harper’s credit, he broke with tradition in 2006 and created the public hearings. Remember the silly exercise in 2004 when Liberal justice minister Irwin Cotler sat in for the nominees and told the country how wonderful they were? The 1982 Charter has given enormous power to the Supreme Court, and the prime minister’s prerogative to appoint those judges means he can shape this country’s future long after his own tenure is over. The ad hoc committee can’t reject the nominees, but it can raise questions if an appointment owes more to ideology or political connections than to merit.
Why, then, is Mr. Harper in such a rush? The two judges being replaced, Madam Justice Louise Charron and Mr. Justice Ian Binnie, announced their retirements in mid-May, five months ago. An important case on whether an anti-hate law violates the Charter’s protections for free speech was left last week to a bench of seven members, rather than nine, because the government was so slow.
Two days is not enough for the committee to read the nominees’ judgments and any speeches they may have given and prepare probing questions. The scrutiny is needed.
This is becoming Mr. Harper’s court. With these two, four of the judges will be his appointees. Claims of some critics that he would try to hijack the court for some narrow ideological purpose have proven abysmally wrong.
But the ad hoc committee can be a useful check on his, or any prime minister’s, mostly unfettered power over the nominations. Mr. Harper should give his process an opportunity to work properly.