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Slow search for judges likely to leave Supreme Court short handed

"I think that the SCC selection process has failed to garner muh public interest," says Adam Dodek, a University of Ottawa law professor who watches the Supreme Court closely.

Adrian Wyld/The Canadian Press/Adrian Wyld/The Canadian Press

They are immensely important figures who will affect public policy for the next 10 or 20 years – yet the glacial-paced search for two new Supreme Court of Canada judges has failed to kindle even modest public interest.

Mr. Justice Ian Binnie and Madam Justice Louise Charron announced their upcoming retirements in May, but the Department of Justice did not submit its top-secret list of 12 semi-finalists until late August. The search committee, composed of three Conservative MPs, a Liberal and a New Democrat, is confidentially vetting the list, consulting heads of the top legal organizations, law deans and senior judges.

Most previous Supreme Court appointees have been named in time to take their places before the court faces a new session. The court is believed to be chagrined that a shortened bench will almost certainly be hearing cases until late October or beyond.

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"I think that the SCC selection process has failed to garner much public interest," said Adam Dodek, a University of Ottawa law professor who watches the court closely. He said that the puzzling silence extends to groups and organizations who usually engage in a healthy clamour for appointments that reflect particular gender, race or ideological backgrounds.

The dearth of interest belies the fact that Prime Minister Stephen Harper can use the appointments to alter the ideological balance of the country's highest court. With a fall docket that includes important cases involving aboriginal rights, hate crime and extra credit for time spent in pretrial custody, the effects of a seismic change will become quickly evident.

Cases involving detention of refugees, unilateral Senate reform, tough sentencing measures and prostitution, all of which provoke sharp divisions among parliamentarians and the public, are sure to reach the court over the next couple of years.

"The question is, will the government appoint judges whose first allegiance is to upholding the Constitution and the rule of law," said Bruce Ryder, a professor at York University's Osgoode Hall Law School. "Or, will it appoint judges who are more likely to acquiesce to the government's disregard for fundamental rights? I fear the latter."

Prof. Ryder said that the court is widely seen as deferential to the government agenda. "When it has called the government to account, it has often done so in sharply divided rulings," he said. "The new appointees could cast the deciding votes."

It is a legal truism that the smaller the bench, the less legal force a decision carries. Since the vacancies are unlikely to be filled before late October, the court will have to launch its fall session on Oct. 11 with seven judges on each case.

Jonathan Rudin, a lawyer in an aboriginal case set for on Oct. 17, said a seven-judge panel will be disappointing. "I'm surprised," he said. "I certainly thought this would have been done by now. Through no fault of the court, it will have to use a seven-judge panel, which is less desirable than nine. It also adds to the workload of the current judges."

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The government's failure to bring the court up to its full complement also is a slap in the face to Chief Justice Beverley McLachlin, who has often spoken of the need to fill vacancies before the session begins.

The retirements will leave the court with a need for at least one judge who is steeped in criminal law. In addition, Mr. Harper is believed to favour youthful judges who will influence decisions for many years.

Within a week or so, the committee will submit a final list of six names to Mr. Harper and Justice Minister Rob Nicholson. They will select the two nominees, who will then have to prepare to face questioning from a parliamentary committee.

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