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Supreme Court Justice Morris Fish (right) addresses them Supreme Court of Canada after he was sworn in as a justice to the high court, Wednesday October 15, 2003 in Ottawa. (Fred Chartrand/The Canadian Press/Fred Chartrand/The Canadian Press)
Supreme Court Justice Morris Fish (right) addresses them Supreme Court of Canada after he was sworn in as a justice to the high court, Wednesday October 15, 2003 in Ottawa. (Fred Chartrand/The Canadian Press/Fred Chartrand/The Canadian Press)

Time to lead

Consensus-driven Supreme Court under the microscope Add to ...

Supreme Court of Canada Justice Morris Fish registered crisp disapproval last week as he accused his colleagues of misconstruing the meaning of consent in a sexual assault case.

Their misguided reasoning would ensure that even an innocent kiss planted on a sleeping partner could constitute a crime, Judge Fish fumed.

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It was the kind of exchange that was once commonplace on the court. But no more; unanimity is the norm and rarely is heard a discouraging word. Gone are the days of internal sparring and the sparking of intellectual debate. Under Chief Justice Beverley McLachlin, the court largely avoids controversy and issues few bold judgments that could be likely to ruffle feathers or raise the hackles of legislators.

In a development that is almost certainly related, public debate over the role of the judiciary has receded. In the ongoing tug-of-war between politicians who pass laws and the judges who interpret them, Parliament is inching ahead.

As Prime Minister Stephen Harper prepares to fill two Supreme Court vacancies, the ideological leanings of his appointees loom larger than ever. Should he opt to select judges who reject so-called judicial activism and like to keep their hands off legislation, a growing pattern of conservatism will be entrenched for years to come.

"The Supreme Court is more deferential and conservative," said Peter Russell, a University of Toronto political scientist. "There are still a few intellectuals out there who say the court is running the country, but that's absolutely wrong. It is tame, cautious and moderate. It is not a very robust court."

While some see its stand as kowtowing to power, others see it as much-needed balance.

Within a few years of the 1982 enactment of the Charter of Rights, the political right was loudly attacking the court for usurping the role of Parliament - rewriting or striking down laws at will. Judges had always ruled on key federal/provincial powers and criminal rights, but it was novel and startling to see them holding forth on abortion services, same-sex marriage and pornography.

Having now repositioned itself as being a respectful adviser to government rather than a direct check on its power, much of the controversy over its legitimacy has been defused.

"Even when Canadians don't like a particular decision, the court still has high credibility," said Dalhousie law professor Wayne MacKay. "We have come to accept that there is an important role for the courts in making, or at least, shaping, public policy."

However, one of the legacies of the rancorous debate is intense scrutiny of the judicial appointment process. Under the prodding of Mr. Harper and his party, a once-opaque process is now more transparent.

In the recent Throne Speech, the government promised to replace retiring justices Ian Binnie and Louise Charron using the process Mr. Harper introduced in 2006. In the coming weeks, the Department of Justice will come up with a short list of candidates. An all-party committee will rank three names for each vacancy, after which Mr. Harper and Justice Minister Rob Nicholson will make their selections. The successful candidates will be publicly questioned by a parliamentary committee.

Do these choices really matter?

To the vast majority of academics and court watchers, the answer is an emphatic yes. "Interest in the court is really quite astounding compared to the days before the Charter," said Prof. MacKay. "These judges are significant players in the political-social landscape. It's important for people to be paying attention to what they are doing."

To those who see the Charter as a vital tool to defend minorities, the coming appointments are a nightmare scenario. They envision finding the door closed at the Supreme Court, forcing them back to the political forum.

Some groups stand to be harmed more than others by such a pattern.

"Court cases have produced a lot more victories for a group like aboriginals than the political process has," Prof. MacKay observed. "Gays and lesbians also worked in the political process for a long time with very little success. But in a couple of decades of court cases, their rights have changed in just about every respect."

Most legal observers predict that Mr. Harper will not court controversy by choosing Supreme Court appointees who have direct ties to his Conservative Party. Instead, they anticipate nominees with a track record of conservative restraint and a distaste for using the Charter of Rights to tailor the law. Appointments like these would leave Mr. Harper's ideological imprint on the court for the next 10 or 20 years.

Historically, Prof. Russell said, judges sometimes take an unexpected turn toward liberalism or conservatism once they settle onto the bench. "The acid test for Harper will be: Is there any chance of the nominee becoming an activist?" he said. "I think they will be looking for neutered judges."

York University law professor Bruce Ryder said that a cautious court can have as much impact as a bold, interventionist one. He called the phenomenon, conservative judicial activism: "Narrowly construing Charter and other limits on government power, even if it means rolling back protections provided by past precedents."

Appointed to head the court in 2000, Chief Justice McLachlin has been a leader for her times. An able jurist who lived through a period of factionalism on the court in the 1990s, she emerged with an inclination toward consensus.

"That court was really under a microscope," said Osgoode Hall law professor Jamie Cameron. "I would say that one of the objectives she set for herself as chief justice was to settle things down. She is still willing to take risks, but on a highly, highly selective basis."

"She is a very good judicial strategist," Prof. MacKay agreed. "Her effectiveness may explain the very high degree of support the court has. She chooses her cases. She defends the Constitution, but not in every case."

Chief Justice McLachlin also has a tough streak. Some legal observers believe that her desire to see the court speak unanimously has led to judges diluting principles or positions in order to minimize the dissenting or concurring reasons that are released.

To take two recent examples, legal academics loudly denounced the court for taking the easy way out in cases involving the Charter rights of terrorist suspect Omar Khadr - where it found that his rights had been violated but offered little in the way of a remedy - as well as the scope of access to information laws.

Prof. Cameron said that she pines for the days when strong individualists engaged in intellectual combat on the court.

"Although it can be confusing when several members of the court write, it is an important aspect of the intellectual process and the ferment that is necessary for the law to develop," she said. "For the most part, this has been a quiet and unassuming court. It is focused on minimalist decision making and keeping a low profile for the court. They are managing their docket in a keep-the-spotlight-away-from-me kind of way."

In recent years, there has been a decline in the number of successful Charter of Rights claims. Even when the court finds in favour of a Charter claimant, it tends to craft a careful compromise that respects the aims of parliamentarians. "The evolution of Charter rights has slowed right down," Prof. Cameron said. "And when it's slow at the top, lower courts are not going to be as likely to take chances."

The number of appeals the court decides has also fallen from an average of 90-100 to approximately 60-70 per year. It has also slashed the number of cases that are granted leave to appeal by 30-40 per cent. And many lawyers question whether the Court is dodging some of the tougher, but more significant, cases.

"I hear surprise from seasoned veterans across Canada on this point," said Henry Brown, a lawyer with Gowlings LLP who specializes in Supreme Court work. Mr. Brown, said that the court is no longer as diligent about hearing cases where appellate courts have reached differing conclusions.

"Conflicting judgments of the appeal courts are simply intolerable in Canada because they result in Canadians being treated differently depending on the province they live in," he said. "Canadians will suffer as a result."

However, Prof. MacKay said that the power of the Charter to influence policy continues even in periods of restraint. "The indirect role of even threatening litigation provides significant negotiating power," he said. "Media play is an important role. When an issue is interesting or important enough, even lower-court decisions get a lot of coverage."

Some court watchers believe that Chief Justice McLachlin may choose to retire after setting a record next year for being the longest serving jurist in that role. Besides filling her vacancy, Mr. Harper would then find himself choosing her successor as chief justice.

"For the most part, we have convinced ourselves that our judges are not chosen for partisan reasons, and I think that's right," Prof. Cameron said. "But I certainly don't rule it out as the way of the future. This is a Prime Minister who has an agenda, and he has not been able to implement his agenda until now. We can look forward to a court that is even more conservative and deferential."

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