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.
