Judges in several provinces have also refused to order some offenders to pay the mandatory Victim Fine Surcharge, a financial penalty that goes to victim services. Appeals are under way that could eventually reach the Supreme Court.
Now, with big constitutional challenges ahead – on mandatory minimum sentences, for example – judges have another opportunity to use their discretion in ways that may be at odds with the government.
The answer for Mr. Harper may be to find his own rebels, stubbornly independent jurists ready to stand up for conservative principle.
Justice Nadon certainly marked himself as a potential outlier four years ago in the case of Omar Khadr.
Canadian Omar Khadr was 15 when he was captured in Afghanistan after a battle with U.S. soldiers, and accused of the war crime of murder. The United States jailed him at Guantanamo Bay, its naval base in Cuba. Canadian officials who visited him when he was still a minor interrogated him with no lawyer present to advise him, and turned over what they gleaned to his captors.
Thirteen Canadian judges ultimately heard the case – one from the Federal Court’s trial division, three from the appeal division and nine from the Supreme Court. They had two key questions to answer: Did Canada violate Mr. Khadr’s constitutional rights, and if so, must the government demand his repatriation? The court unanimously answered yes to the first question, and no to the second.
On interrogating a teenager without counsel present, and turning information over to his jailers, the court said: “[This behaviour] offends the most basic Canadian standards about the treatment of detained youth suspects.”
Only one judge called Canada nearly blameless: Justice Nadon. Foreign policy, he wrote in a stylish and confident defence, is one of “the forbidden areas” in which judges have no right to question government.
Clearly he was no bleeding heart. He had nerve. And he was on the government’s side.
No creativity required
When a prime minister, any prime minister, appoints a judge, criticism is usually muted. Law professors may worry that their students won’t get clerkships at the Supreme Court if they are seen deploring a judge’s limited capacities. The leading lights of the bar may worry about appearing before the man or woman they criticize. Or perhaps the Canadian legal community is just too clubby for harsh words.
Jamie Cameron, an Osgoode Hall law professor, says she has a rule not to comment publicly on the attributes of appointees – but she is breaking her rule this time.
“What the appointment shows is the Prime Minister’s lack of respect for the Supreme Court as an institution,” she says. “I feel very strongly that the orderly progression and evolution of the law requires a strong court – a court that’s capable and willing to demonstrate leadership. I think this appointment unquestionably weakens the court.”
For some observers, this is at least partly in line with the other appointments made by Mr. Harper. What unites all six of his Supreme Court appointees “is judicial restraint, or at least no evident tendencies towards judicial creativity, which has long been a sin Harper Conservatives have sought to stamp out,” says Bruce Ryder, a professor at Osgoode Hall Law School.
And although Mr. Harper has not appointed nearly as many Supreme Court judges as Pierre Trudeau, Brian Mulroney or Jean Chrétien, he has done enough to put his stamp on the law, and public policy, for years to come – and, some fear, to turn back the clock more than 30 years to pre-Charter of Rights days when the Supreme Court rarely stuck its neck out and had little prestige.
Even so, Mr. Harper’s appointees are capable of surprises. Justice Michael Moldaver of Ontario gave a controversial speech to the Criminal Lawyers Association in 2005 attacking defence lawyers who “trivialize and demean” the Charter of Rights. At the Supreme Court’s recent hearings on Senate reform, Justice Richard Wagner of Quebec repeatedly asked whether aboriginal peoples would have a say in changing Canada’s basic institutions.
Other appointees, such as Marshall Rothstein of Manitoba and Thomas Cromwell of Nova Scotia, are also widely viewed as strong judges.