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Justices of the Supreme Court wait for Governor General David Johnston to deliver the Speech from the Throne in the Senate Chamber on Parliament Hill in Ottawa, Friday June 3, 2011. (Fred Chartrand/The Canadian Press/Fred Chartrand/The Canadian Press)
Justices of the Supreme Court wait for Governor General David Johnston to deliver the Speech from the Throne in the Senate Chamber on Parliament Hill in Ottawa, Friday June 3, 2011. (Fred Chartrand/The Canadian Press/Fred Chartrand/The Canadian Press)

Time to lead

Much riding on Harper's top court picks Add to ...

If Prime Minister Stephen Harper heeds the clamour of lobby groups, at least one of two impending Supreme Court of Canada appointees will be a bilingual, franco-Ontarian aboriginal woman with some visible minority blood and background as a practising lawyer.

Assuming optics count for more than pure merit, that is.

Supreme Court appointments have gone from being a yawn-inducing exercise to a high-profile process dominated by public debate about candidates, political ideologies and demographic considerations. Modern-day prime ministers tack through a sea of expectations from groups who understand the power of the court over issues they hold dear.

Mr. Harper is no less aware of the impact of his decision. Much of his most cherished legislation – crime laws, for instance – will end up being challenged in the Supreme Court, where a single vote can make the difference between being upheld or struck down.

Will he appease party loyalists by choosing conservative candidates with a law-and-order bent? Or, will he opt to please a particular community – aboriginal people, women, Jews or franco-Ontarians – by installing one of their own on the top court?

Mr. Harper has three main approaches open to him. The first is to aid the court by appointing workhorses who can write strong, speedy judgments and unite disparate factions. The court also requires a strong generalist with leadership qualities to replace Mr. Justice Ian Binnie.

The need to appoint a criminal law specialist to fill a gap left by Madam Justice Louise Charron’s departure is particularly acute, Queen’s University law professor Don Stuart said. He added that a consummate legal thinker and writer such as Ontario Court of Appeal Judge David Doherty would fill the bill.

“All of his judgments provide extra and imaginative insight and he cannot be pinned down to one ideology,” Prof. Stuart said. “Sometimes, he is pro-accused, sometimes he is not. He is always caring, thoughtful and conspicuously articulate.”

However, Mr. Harper could succumb to the political temptation to appoint candidates who support his party policies and will avoid striking down laws.

The third approach focuses on optics. Appointing a woman, an aboriginal or a member of a visible minority, for example, has the potential to endear Mr. Harper to an important political constituency.

Wayne MacKay, a Dalhousie University law professor, said it is impossible to ignore the power and symbolism of inclusiveness. “Diversity is necessary for people to view the court as credible,” he said. “If the judges were exclusively old, white men – as they used to be – that would work against it even if they were very competent.”

It was not easy for the legal establishment to accept that judges with different life experiences bring fresh, important perspectives to a court; accepting the notion means accepting that interpreting the law is a malleable exercise that can depend on a judge’s origins.

“If one is dealing with a topic like abortion, it is positive and helpful to have some women judges who will bring a different perspective,” Prof. MacKay said. “They are not representing a woman’s viewpoint, pure and simple. But they do represent a different perspective.”

NDP justice critic Joe Comartin, a member of an all-party committee that will forward two lists of finalists to Mr. Harper, said that his own party has specific leanings. “If either of the two positions is not a woman, we are going to see that as a major setback,” he said. “It is also way behind the time when a first nations judge should have been sitting on our court.”

Demographic considerations used to be purely geographical. The Constitution guarantees Quebec three of the nine judge, while there is an immovable convention that one judge comes from the Atlantic region, three from Ontario, one from the Prairie provinces and one from B.C.

However, with four seats on the court now filled by women, many argue it is vital that Mr. Harper replace Judge Charron with a woman. There is also a growing belief that every judge must be functionally bilingual. Moreover, there are strong rumblings from Ontario’s francophone community that it has a right to one of the Ontario seats.

Threading his way through these pylons, it is also imperative that Mr. Harper add dynamic figures to a court some see as flaccid. “What the court needs the most is a personality that will put a face on it,” said Clifford Lax, a veteran Toronto litigator. “It is hard to see anyone other than Ian Binnie on this court who is going to leave a real legacy. It is a very docile court.”

For many possible candidates, however, going to the Supreme Court is not a lifelong ambition. Some do not want to move to Ottawa or to work exceedingly long hours in social isolation. Practising lawyers who make $400,000 annually may also not want to halve their income.

“It’s a very lonely place,” Mr. Lax said. “Everybody who has done it talks about it being the high point of their career. But if you ask them if it was the happiest time of their career, they will always say no.”

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