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The Supreme Court of Canada building in Ottawa. (SEAN KILPATRICK FOR THE GLOBE AND MAIL)
The Supreme Court of Canada building in Ottawa. (SEAN KILPATRICK FOR THE GLOBE AND MAIL)

LAWRENCE MARTIN

The making of the Harper court Add to ...

It’s been an extraordinary period for the Prime Minister and the Supreme Court. In fewer than eight years in office, Stephen Harper has appointed six of the top court’s nine justices. Next year, he gets to name another. It’s one of the biggest and quickest turnovers the court has seen. In short order, it has become the Harper court, one that differs widely from its predecessors.

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As a staunch conservative, Mr. Harper was expected to change the court accordingly. He has done so. Most of his six picks, the latest being this month’s selection of Justice Marc Nadon, lean toward a tougher stance on crime and a limited interpretation of the Charter of Rights and Freedoms.

Gone are more liberally inclined justices such as Ian Binnie (who left in 2011) and Morris Fish, who retired to make way for Justice Nadon, the Federal Court of Appeal judge from Quebec who sided with the government’s hard line against repatriating Omar Khadr.

Some analysts see the Supreme Court changes as being of such scope that it’s left with hardly anyone who will advocate for the rights of the accused. With the exception of Justice Marshall Rothstein, Mr. Harper’s appointees will be serving for anywhere from 10 to 20 years, meaning that the new court’s tilt will likely survive Mr. Harper for a while. In assessing the ways this Prime Minister has made Canada more conservative, his stamp on the high court may well be near the top of the list.

Mr. Harper, often called an incrementalist, has managed the transformation in a way that has stirred little controversy. He has avoided lightning-rod selections of right-wing ideologues, thus sparing himself from criticism that he has been politicizing the court. He has also instituted a modest parliamentary review process for the screening of appointments.

The selection of Justice Nadon has engendered more controversy than others, not only because of some his rulings but because of the gender imbalance perpetuated by the selection. Of Mr. Harper’s six picks, no fewer than five have been male, notes Liberal MP and former justice minister Irwin Cotler.

Mr. Harper received high marks for his first two selections: Justice Thomas Cromwell and the conservative-leaning Justice Rothstein. Justice Andromache Karakatsanis, a former Ontario Court of Appeal judge appointed in 2011, has yet to make an impact. (A key factor in her appointment, some groused, was her experience as deputy to Jim Flaherty when he was attorney-general of Ontario.) Justice Michael Moldaver is viewed as a strong law-and-order judge less sympathetic to Charter rights. Another appointment, Justice Richard Wagner, is seen as somewhat conservative, though not as tough as his father, Claude Wagner, who was called the hanging judge in Quebec and later sought the federal Tory leadership.

Overlooked because of their tilt toward judicial activism or somewhat liberal reputations, critics say, were outstanding candidates such as Justice Robert Sharpe of the Ontario Court of Appeal and Justice Marie-France Bich of the same court in Quebec.

The court, which will soon make pivotal decisions on the future of the Senate and the issue of euthanasia, has been criticized for a lack of bold decision-making. Beaten down over the years by attacks on judicial activism, it lacks the fortitude, some analysts say, to guarantee fundamental rights.

In addition to gender imbalance and the screening process on appointments, the court confronts other serious problems. Justice Wagner said recently that the justice system is too laggardly, costly and opaque. He wants a national summit of lawmakers and the judiciary.

That might be a good idea, but it isn’t going to happen. Canada’s top court does not get nearly the exposure of the U.S. Supreme Court, where the identities of the chief justices are well known. There simply isn’t the degree of media interest or level of public engagement in our court. It’s an area where the Prime Minister, without facing much resistance, has been able to put a lasting conservative imprint on the country.

Earlier online versions and the original print version of this column incorrectly described Justice Andromache Karakatsanis as a top aide to Jim Flaherty when he was attorney-general of Ontario. She was deputy attorney-general, a public servant and not an aide.

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