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A pedestrian walks past the Supreme Court of Canada in Ottawa, Wednesday February 23, 2011. (Adrian Wyld/THE CANADIAN PRESS/Adrian Wyld)
A pedestrian walks past the Supreme Court of Canada in Ottawa, Wednesday February 23, 2011. (Adrian Wyld/THE CANADIAN PRESS/Adrian Wyld)

Adam Radwanski

The Supreme Court: How a Harper majority could really change Canada Add to ...

Stephen Harper is batting away the questions about what he would do with a majority government like pesky flies.

Cuts to federal health-care funding? On the contrary, he'll continue to increase it by 6 per cent annually. A reopening of the abortion debate, as one of his MPs was tape-recorded tub-thumping for? Not on his watch. The Conservative Leader has turned calm, somewhat bland reassurance into an art form.

But there is one question, a little more grounded in reality, that might at least be harder for him to answer in a single sentence: What is his vision for the institution that he himself previously identified as a counterbalance to Conservative ambitions?

Of the nine justices who serve on the Supreme Court of Canada, three - Ian Binnie, Morris Fish and Louis LeBel - will hit the mandatory retirement age of 75 within the next four years. Another, Marshall Rothstein, will come very close to it. Chief Justice Beverley McLachlin would be 71 by the end of a majority government's mandate, and Rosie Abella would be 68.

In other words, Mr. Harper would have an excellent opportunity to shape the country's top court. And given that court's enormous role in shaping public policy, particularly since the Charter of Rights and Freedoms came into effect nearly three decades ago, that could be a very transformative power.

If one were looking for signs that the abortion debate is about to be reignited, this would be a better place to start than the musings of a backbench MP. Realistically, though, it seems unlikely that Mr. Harper would overload the judiciary with raging social conservatives. If his goal is to firmly establish the Conservatives as the country's dominant national party, then returning the focus to hot-button social issues that helped derail its past campaigns would be a dubious strategy.

But if his goal is also to subtly shift the country's laws and institutions and culture of governance toward something more in line with his party's vision for the country - as opposed to the one held by the Liberals - there is much that the Supreme Court could help with. From property rights to issues of federal-provincial jurisdiction to law and order, not to mention the balance between national security and individual liberties, there's all sorts of room to help turn Canada into a more small-C conservative country.

Here, some qualifiers are in order. Mr. Harper's two Supreme Court appointments to date - the aforementioned Justice Rothstein, and Thomas Cromwell - have both been considered moderate and uncontroversial choices. He has committed to having future appointments be vetted by Parliament, which even with a majority would require them to withstand some level of scrutiny. And Canada's judiciary is not divided along partisan and ideological lines nearly to the extent of the one south of the border.

But it also bears noting that, the first time he led the Conservatives into an election, Mr. Harper expressed some strong views about what he perceived to be an overly activist judiciary.

"The idea of adjudicated rights is an important development in our political system," he said in 2004. "It's one that I support in principle. But to make it work, we've got to make sure that we have courts that apply the law, not courts that apply their own criteria."

At the same time, Mr. Harper also waded into specific discussions of courts' priorities. "I'm concerned when I see courts that can find voting rights for prisoners, but can't find a right for ordinary citizens outside of political parties to express their opinions during election campaigns," he said. (The latter was a reference to third-party advertising laws, which he contested while heading the National Citizens Coalition.)

Mr. Harper has softened his stance on many issues since 2004, so he may well have shed much of his suspicion of the judiciary in its current form. But it's hardly a moot point.

A majority would be Mr. Harper's chance to leave his imprint on the country. And the courts, in some cases more than legislators, are capable of bringing lasting change.

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