Justice Minister Peter MacKay has appointed two of the country's most conservative law professors as judges in Ontario, one of whom has publicly criticized the court he is about to join.
The appointments come in a year when Ottawa has faced controversy over judicial appointments, and for suspending parliamentary hearings into new Supreme Court judges.
Grant Huscroft, who teaches constitutional law at Western University in London, Ont., will become the first non-judge named to the province's highest court since the Conservative government came to power in 2006.
He said in a 2012 television interview that judges on the Ontario Court of Appeal – the court he is joining – went too far when they described the Conservative government's mandatory minimum sentence of three years for illegal gun possession as cruel and unusual punishment and struck it down.
In a newspaper comment piece, he also denounced the Supreme Court's rejection last spring of a judge appointed by Prime Minister Stephen Harper, calling the 6-1 ruling in the case of Justice Marc Nadon "as bad a decision as the court has made in recent memory."
Prof. Huscroft, who co-edited a 2004 book on the Constitution with Mr. Harper's first chief of staff, political scientist Ian Brodie, has taken a public position on other hot-button issues, such as assisted suicide, saying there is no need for the Supreme Court to second-guess the judgment of Parliament.
The government also appointed Bradley Miller, another conservative constitutional specialist from Western, to Ontario's Superior Court of Justice, the province's top trial court.
Prof. Miller espouses a form of "originalism" – a view of the Constitution held by conservative judges such as Antonin Scalia and Clarence Thomas in the United States, but almost totally rejected in Canada. (Originalism holds that the Constitution means what its authors wanted it to mean and should not be interpreted based on later social changes, whether in 1982 in Canada or in 1787 in the United States.) Prof. Miller and Prof. Huscroft co-edited a book called The Challenge of Originalism in 2011.
Prof. Huscroft did not respond to requests for comment. Prof. Miller referred questions to Regional Senior Judge Thomas Heeney.
Direct appointments of non-judges to the Ontario Court of Appeal were common until 2002, when a Liberal government picked Toronto lawyer Robert Armstrong.
Reaction to the appointment from the legal community was varied. A Toronto criminal lawyer was upset, saying the government has ignored excellent lawyers for years for Ontario appeal court positions. (The lawyer did not wish to be named, expecting some day to appear before the new judges.) A senior judicial source, who also did not wish to be named, was also critical. "If you were trying to identify the leading constitutional scholars of the far right, you'd probably have Grant Huscroft at the top of the list," the source said, calling him "anti-Charter [of Rights] and basically, anti-equality rights."
Bruce Ryder of Osgoode Hall, a liberal law professor, cheered the announcements. Pointing also to the government's appointment of University of Alberta law professor Wayne Renke to the Alberta Court of Queen's Bench, who unlike the two Western professors fits solidly in the legal community's mainstream, he said: "For a government that is famously anti-intellectual, the appointment of three professors to the bench is a particularly welcome surprise."
Prof. Miller has a doctorate in law from Oxford University, and has practised constitutional and commercial law in Toronto. Prof. Huscroft, who received his law degree from Queen's University in Kingston in 1984, taught law at the University of Auckland, New Zealand, from 1992 to 2001. He has been the chair of Ontario's Health Services Appeal Review Board since 2008. Prof. Huscroft and Prof. Miller together established the Public Law and Legal Philosophy Research Group in 2008, which organizes conferences and publishes papers on the Constitution.
Prof. Huscroft expressed a restrained view of a judge's role in an article he wrote for The Globe and Mail two years ago. "The truth is that judges have no greater insights than the people when it comes to debating the important moral and social issues of the day. The basic tools of legal reasoning are not well suited to the resolution of complex moral and social issues."