The judge looked down at the full-bearded young man who sat relaxed and smiling before him. Omar Khadr, a former teenage terrorist, was in a Canadian courtroom for the first time.
Years earlier, through various channels, the judge had lobbied Prime Minister Stephen Harper for a promotion – and got one. Part of his new job was assigning cases, sometimes to himself. Now, in 2013, the case before him involved an individual in whom Mr. Harper had expressed an emphatic interest. In the end, Associate Chief Justice John Rooke of the Alberta Court of Queen’s Bench ruled for the government and against Mr. Khadr, deciding he had been convicted as an adult, not a juvenile.
No one, including Mr. Khadr’s defence lawyer, said the judge was in any way biased or unfair. But some familiar with the judge’s lobbying said the appearance was unfortunate – that justice must also be seen to be fair.
The Rooke episode is one glimpse of a much bigger, untold story. It is the story of how Mr. Harper and the Conservatives have reclaimed the judiciary from the Liberals, who had held power for the 13 years before Harper took office and for most of the previous century.
“Dripping blue ink into a red pot,” is how one Alberta Conservative who has been involved in the appointment process described it. In the public glare of Parliament, the Conservatives have passed dozens of crime laws that reduced judges’ power to decide on a sentence. Behind closed doors, the government has engaged in an effort unprecedented since 1982, when the Charter of Rights and Freedoms took effect: to appoint judges most likely to accept that loss of discretion – the little-noticed half of Mr. Harper’s project to toughen Canadian law.
Mr. Harper’s battles with the Supreme Court are well known. The court has struck down or softened several of his crime laws. When the Prime Minister named an outspoken conservative, Marc Nadon, to the Supreme Court in 2013, the court itself declared Justice Nadon ineligible. Mr. Harper would go on to publicly assail the integrity of Supreme Court Chief Justice Beverley McLachlin, turning an institutional dispute into a very personal battle – another Canadian first.
But while those public conflicts were playing out, the government was quietly transforming the lower courts. The Conservative government has now named about 600 of the 840 full-time federally appointed judges, or nearly three in every four judges on provincial superior courts, appeal courts, the Federal Court and Tax Court.
These are the courts that, at the appeal level, decide how the government’s crime crackdown is to be implemented. At the trial level, they decide high-profile cases like Mr. Khadr’s. In constitutional cases, they rule on what are called social and legislative facts – anything that establishes the real-world context in which a law plays out, such as whether prostitution laws endanger sex workers. Higher courts, including the Supreme Court, do not change these facts, unless they view them as wildly wrong. Constitutional rulings depend on these facts.
The judges, who can serve until they are 75, may be sitting long after other governments have come along and rewritten the laws. They also are a farm team or development system for the Supreme Court. They are Mr. Harper’s enduring legacy.
In the course of this transformation, entire categories of potential candidates, such as criminal defence lawyers, have been neglected; prosecutors and business attorneys have been favoured. So cumbersome is the system of political scrutiny that vacancies hit record-high levels last year. And sometimes, critics say, judges and politicians, even cabinet ministers, have come into close contact in the appointment process, raising questions about neutrality and fairness.
Underlying the appointments issue is a covert culture war over who gets to define Canadian values, Parliament or the courts, and what political party puts the most indelible imprint on the nation’s character.
The rules in the appointments system are few, and all previous governments have used the bench to reward party faithful. But Mr. Harper is the first Prime Minister to be a critic of the Charter, and early on he told Parliament that he wanted to choose judges who would support his crackdown on crime.
The Globe spent months exploring the secret world of appointments to understand the extent of the changes and how the government set out to identify candidates who share its view of the judiciary’s proper role. We spoke to dozens of key players – political insiders, members of judicial screening committees, academics, judges and former judges – often on a condition of anonymity, so they could talk freely.
Neither Mr. Harper nor his justice minister, Peter MacKay, would grant an interview.
Chopping at the living-tree doctrine
The appointments system has five steps, four of them political. The first – screening committees spread across the country – is intended to be neutral and independent. Its members originally consisted of lawyers nominated by law societies, bar associations, provincial governments and the federal government, and a provincial chief justice or other judge. In 2006, the Conservative government added a police representative, and took away the judge’s vote – ensuring that federal appointees had the voting majority on the committees.
Next, cabinet ministers responsible for patronage appointments in their regions make recommendations, chosen from the committees’ lists, to the justice minister. The minister’s judicial affairs adviser scrutinizes those picks, and the minister sends his choice to the Prime Minister’s Office for review. Finally, cabinet decides.
Long before he became prime minister, Mr. Harper made it clear that he objected to the judiciary this system produced, and that the deck was stacked against his view of constitutional rights. A Liberal prime minister, Pierre Trudeau, was the driving force behind the Charter. He made the first Supreme Court appointments of the Charter era, choosing liberal judges such as Brian Dickson and Bertha Wilson, who were determined that the Charter would make a difference in Canadians’ lives.
Gay rights were a flashpoint. In 2003, as Canadian courts began to legalize gay marriage, Mr. Harper, then opposition leader, hired Ian Brodie as his assistant chief of staff. Mr. Brodie, at the time a political scientist at the University of Western Ontario, had just published a book in which he decried “judicial supremacy” – the notion that Supreme Court judges had usurped the role of Parliament.
At Western, Mr. Brodie teamed up with Grant Huscroft, a young law professor who would go on to organize conferences, write articles and edit books to give life to U.S.-style “originalism,” which holds that constitutions mean what their drafters said they meant, and don’t change with the times. This is the philosophy of Antonin Scalia and Clarence Thomas, the most conservative U.S. Supreme Court justices.
That year, Mr. Harper made a daring accusation, based on originalism, in the House of Commons. The Charter’s framers deliberately did not protect gays and lesbians in the equality clause, he said. Therefore, the Supreme Court, which had read such protection into the Charter back in 1995, had violated the Constitution, he argued. And now, in 2003, that decision had become the legal foundation for gay marriage.
“I would point out that an amendment to the Constitution by the courts is not a power of the courts under our Constitution,” he said.
Mr. Harper was challenging a status quo rooted in modern women’s rights. In 1928, the Supreme Court ruled that women could not be appointed to the Senate because they were not “persons” – they did not vote or run for office in 1867, when the country’s founding Constitution was written. But the Judicial Committee of the Privy Council in England said on appeal that the Constitution should be seen as a “living tree capable of growth and expansion within its natural limits.” Women were indeed persons, because constitutional interpretation changed with the times.
The living-tree idea has been at the heart of Charter legal rulings since the beginning: It has not been a matter of dispute on Canadian courts. The Supreme Court has rejected originalism in several rulings, including the landmark same-sex marriage case of 2004. But to Mr. Harper and his circle, the living tree means rule by judges. “We have in very significant measure ceased to be our own rulers,” Conservative MP Vic Toews told a pro-life group in Winnipeg in 2004, after quoting from a book by conservative U.S. jurist Robert Bork.
Two years later, Mr. Toews became the first justice minister in the new Conservative government. He quickly revamped the appointments process, giving the government its voting majority on the screening committees. A furor erupted. The country’s chief justices complained that judicial independence was at risk.
Mr. Harper did not back down. He got to his feet in the House of Commons and said something no prime minister in the Charter era had ever said publicly. He declared that his government wished to appoint judges who saw the world in a certain way – that is, those who would be tough on crime.
“We want to make sure that we are bringing forward laws to make sure we crack down on crime and make our streets and communities safer,” he said on Feb. 14, 2007. “We want to make sure that our selection of judges is in correspondence with those objectives.”
But even with voting control on the screening committees, the Conservative government’s choices were constrained. There were few proponents of originalism like the Americans’ Justice Scalia, who dissented bitterly from last month’s landmark gay-marriage ruling and as late as 2003 supported a state’s right to criminalize homosexual sex. There was nothing like the Federalist Society, a grassroots national movement in the U.S. that encourages young lawyers to promote conservative views and support the doctrine of original intent. There was no single defining political issue like abortion. In the U.S., judicial conservatism is much more about activism – judges trying to roll back precedents such as Roe v. Wade, which established women’s right to abortion on demand, or to reject gun controls, or limit affirmative action policies.
In Canada, judicial conservatism tends to mean judges who accept the wishes of legislators – judges who defer to Parliament’s primary role as lawmaker and are reluctant to find fault with a government’s choices. Judges who know their place.
Finding reliable judges
The key to the Conservative strategy is identifying prospects with the right views. The Prime Minister has eyes and ears across Canada.
These belong to the cabinet members responsible for dispensing patronage appointments (known as political ministers). They use their local contacts, such as party fundraisers (or “bagmen”) to identify lawyers, academics and sitting judges who fit their specifications, and recommend them to the justice minister. Appointments under the Liberals, worked in much the same way: A cabinet minister opened the door.
“You always have to have a champion,” a Conservative from Alberta explained. “Nobody gets appointed without somebody walking them through, in one way or another.”
In Ontario, the political ministers are Joe Oliver in Toronto, Pierre Poilievre in Ottawa, Diane Finley in the southwest and Greg Rickford in the north. Mr. MacKay is the political minister in Nova Scotia. Defence Minister Jason Kenney and Health Minister Rona Ambrose are the political ministers in Alberta. Some political ministers are more intent on identifying conservative-minded candidates for the bench than others. (Strangely, three leading criminal defence lawyers have been appointed on Mr. MacKay’s home turf. What he supported in his own backyard he did not foster in the rest of the country.)
Mr. Kenney has a political office in Calgary separate from his constituency office, with separate full-time staff. Both he and Ms. Ambrose need to sign off on each candidate either one recommends for a judicial appointment, another Alberta source said. “The person has to make it by both Jason and Rona. They both have a veto. In Calgary, there’s generally a respect on Rona’s part for Jason’s picks and vice-versa.”
Mr. Kenney and Ms. Ambrose are not lawyers. They ask their contacts to recommend candidates.
“It’s not, ‘Is this person going to be tough on crime?’ ” the first Alberta source said. “It’s, ‘Can you recommend this person, are they reliable?’ There’s a little bit of code in there.” Reliability means being both right-of-centre and competent – a two-level filter.
Reliability has a more nuanced meaning, too, according to an appeal court judge, not in Alberta, who follows judicial appointments closely: judges who are technically minded and stick to precedent, who won’t “play with the rules or make new rules.”
Finding reliably conservative judges is a challenge. In Alberta, roughly one-third of federal judicial appointees are not right-of-centre, the first source said, but are chosen for being competent and not left-of-centre. The ideological requirement is not a litmus test around a single issue, but around a general worldview involving a lack of sympathy for minority causes or convicted criminals – which some Conservatives see as the demarcation line between right and left.
“You either see a criminal as a victim of society or as someone who needs to pay his debt to society,” the source said. “One’s a little bit to the left, one’s a little bit to the right. You don’t always get that right either when you pick. People sometimes surprise you when they get up there and have no boss other than their own conscience.”
This either-or view of sentencing incenses legal observers such as Allan Wachowich, a retired chief justice of the Alberta Court of Queen’s Bench. Mr. Wachowich, a long-ago Liberal “bagman” by his own description, was a Liberal appointee who was named associate chief justice by a Progressive Conservative prime minister, Brian Mulroney. (His champion was cabinet member Don Mazankowski, but he didn’t know until Mr. Mulroney told him, he said. He told the prime minister jokingly that it was all part of a “Polish conspiracy.”) “You have to treat every case as an individual case,” Mr. Wachowich said in an interview. “Is there any hope of redemption? Is there a prison where he isn’t going to be influenced by hard-core criminals? You’ve got to sit there and listen and contemplate, and give it a weekend sometimes.”
About four years ago, at a time when judges had begun striking down Conservative laws on crime and drugs, political ministers such as Mr. Kenney and Ms. Ambrose came under increased pressure to choose judges who would defer to legislators.
“Deference became a buzzword when a number of laws were being struck down, mostly for Charter violations,” said former Conservative MP Brent Rathgeber, now an Independent.
As one of the few lawyers in the Alberta caucus from 2008 to 2013, he was sometimes consulted on appointments by a political minister. “The PMO decided it would be better if we had a judiciary more deferential to Parliament’s authority.”
In at least one case in Alberta, Mr. Kenney and Ms. Ambrose personally checked out a new candidate for the bench, according to a source familiar with the process. The candidate first attended a series of get-to-know-you breakfasts and lunches with Conservative Party insiders, before a chat with the two ministers, and was ultimately named to the Court of Queen’s Bench, the province’s top trial court, the source said.
There are no written rules prohibiting such contacts between prospective judges and cabinet members or other politicians. A Conservative, who did not confirm that the meeting took place, said there would be nothing wrong if it did, because the appointments are for life and mistakes can’t be undone.
But mention of the meeting often brings a shocked reaction from lawyers and judges, who view it as compromising independence. Peter Russell, a political science professor emeritus at the University of Toronto and a leading expert on judicial appointments, explained the sense of shock.
“Yes, the public should be concerned about partisan interviews of prospective candidates for judicial appointment,” Prof. Russell said. Such interviews mean that, in Canada, “appointments to the highest trial courts and courts of appeal in the province remain open to blatant partisan political favouritism in selecting judges – something most provinces and most countries in the liberal democratic world have reduced or eliminated.”
Both Mr. Kenney and Ms. Ambrose refused to speak to The Globe for this story. They would not confirm or deny that they interviewed a candidate for the Court of Queen’s Bench. An Alberta source said the appointment process is a matter of practice and tradition. “It’s not even really written down anywhere.”
‘Interested in a promotion? Play with us’
The government’s strategy is to change the judges at the same time as it toughens the Criminal Code. And sitting judges have a record that can be monitored.
Former prosecutor Kevin Phillips of Ottawa had barely taken his seat as a provincially appointed judge in the fall of 2013 when his fellow judges began rebelling openly against a new law. The victim surcharge, a financial penalty used to subsidize victim services, had just become mandatory; even the poorest criminals would have to pay. Judges in several provinces refused to force them. In Edmonton and Vancouver, some judges allowed 50 or even 99 years to pay. In Montreal, a judge found a way to make the surcharge $1.50. An Ottawa judge ruled the law unconstitutional without even giving the government a chance to defend it.
The surcharge was typical of the government’s crime laws: It removed discretion from judges, with a mandatory minimum penalty. It took from criminals and gave to victims.
Instead of joining the rebels, Justice Phillips, a police chief’s son, turned against them. Thwarting the will of Parliament is a “recipe for arbitrariness,” he said in a ruling released eight weeks after he joined the Ontario Court of Justice in Brockville, and “arbitrariness is antithetical to the rule of law.”
His stay on that court didn’t last long: On April 13, four months after Justice Phillips took his public stand, Mr. MacKay announced his promotion to the Ontario Superior Court, the top trial court in the province.
This is not to imply that Justice Phillips is less than fair-minded. As a prosecutor, he received high praise for his fairness from criminal defence lawyers in Ottawa interviewed for this story. But his appointment sent a message to judges on lower courts – those appointed by the provinces.
As a veteran lawyer in Toronto put it, “ ‘You’re interested in a promotion to the Superior Court? Play with us.’ ”
A provincial court judge in Western Canada, speaking not about Justice Phillips but generally, says he is concerned that some judges have a “career plan” that involves a promotion.
“I worry that some judges hear the footsteps,” he said. “They read the headline in The Globe and Mail before it’s written, and maybe, just maybe, they temper their judgment as a result. As soon as you get to that stage, the integrity of the system crumbles. But do I think that happens? Yes, I do think it happens.”
The judge, the PM and the promotion
Some judges make their case for promotion directly to politicians – despite a Canadian tradition that usually keeps judges and legislators apart to ensure that the system appears to be, and is, neutral.
On three separate occasions when he was still a Conservative MP, Mr. Rathgeber says judges came to him. “I can tell you of one Court of Queen’s Bench judge and a couple of Provincial Court judges who were seeking elevation to the Court of Appeal and Alberta Court of Queen’s Bench,” he said. “The judge would tell me why they thought they were not a good fit on the Court of Queen’s Bench trial division and why their skill set might be better doing appellate [work] at the Court of Appeal. And if there’s anything I can do to help that occur.”
Some in the legal community view aggressive lobbying by sitting judges as unseemly. Sometimes it backfires. Other times, though, it is rewarded – as appears to be the case with Justice Rooke.
In 2009, the judge on the Alberta Court of Queen’s Bench lobbied the Prime Minister through channels for the job of chief justice, multiple sources told The Globe. He put together a dossier on his record. Jim Prentice, then the federal environment minister, spoke to Mr. Harper on Justice Rooke’s behalf. Justice Rooke and Mr. Prentice had been “little Clarkies” – party workers who had supported Progressive Conservative leader Joe Clark decades earlier.
Justice Rooke also reached out personally to well-regarded figures in the legal community who tend to be consulted by the Conservative government in judicial appointments, an Alberta Conservative said.
Some of Justice Rooke’s colleagues resented his lobbying, believing that Neil Wittmann of Calgary, then the associate chief justice, deserved to be chief justice. Justice Myra Bielby, the senior judge in Edmonton, would probably then become associate chief justice. According to a 100-year-old tradition – never broken – if a chief justice was appointed from Calgary, the associate chief was chosen from Edmonton, and vice-versa.
A committee of his colleagues on the bench approached Justice Rooke about a rumour he had even met personally with Mr. Harper. (The Prime Minister appoints chief and associate chief justices.) In the Canadian system, such a meeting would have been seen as irresponsible, and the committee’s approach was a sign that the judges were alarmed by the prospect. Justice Rooke vehemently denied that the meeting took place, which the judges accepted.
But some made known who they felt should be chief and associate chief. “There were a lot of ‘bank shots’ [from Justice Rooke’s colleagues] to make sure that for an appointment like that, you have the right person, because the system has to work,” the source said. To make a bank shot is to have someone else send your message – “you get the justice minister [of Alberta] to make a call, you get the chief of staff to make a call, you get three or four senior lawyers to make a call.”
Mr. Harper named Justice Wittmann, who joined the bench as a Liberal appointment, as chief justice. Then, despite the century-old tradition, he chose Justice Rooke as associate chief. The government later promoted Justice Bielby to fill the first vacancy on the Court of Appeal.
In 2013, Justice Rooke took on the Khadr case. On the day of the hearing, Mr. Harper publicly stated his support for the most severe punishment possible. Politicians rarely comment on cases before a court because it may look like an improper attempt to influence a judge. Still, Justice Rooke said his ruling in favour of the Canadian government – to treat Mr. Khadr as an adult – was a straightforward matter of statutory interpretation.
Six months later, the Alberta Court of Appeal overturned the ruling in a 3-0 vote. Among the three were two Conservative appointees, including Justice Bielby. This spring, the Supreme Court also ruled in Mr. Khadr’s favour – adding insult by deliberating for just a half-hour.
No one has suggested that Justice Rooke was unfair, or that there was a quid pro quo for his appointment as associate chief justice. Dennis Edney, an Edmonton lawyer who represented Mr. Khadr, said he found the judge “attentive and fair in his dealings with me and my representations. That is all I ask.”
To some Conservatives, the appointment of Neil Wittmann ahead of John Rooke showed that ability matters more than politics in Conservative appointments. “It’s a very, very good example to show where skill and talent and colleagues’ confidence trumped political bias,” a party source said.
But to outside observers, when judges lobby for promotions, they undermine the appearance – and perhaps the reality – of judicial independence.
“If you’re starting to get into a lobbying process, are you not then beholden to those who make the appointment?” said John Martland, a former president of the Alberta Law Society, speaking generally.
The Globe contacted Associate Chief Justice Rooke through his assistant and asked if he wanted to correct any facts or provide comments. Diana Lowe, his executive counsel, replied that judges speak only through their judgments and a response would not be appropriate.
In an ironic postscript to these events, the federal government went before the Alberta Court of Appeal in May to block Mr. Khadr’s release on bail. A single judge heard the case – Justice Bielby.
Mr. Khadr is now free on bail.
Tapping a ‘very small pool’
Because there is rarely a straight line from what an appointing government expects to how a judge actually rules, the Conservative strategy is designed to reduce uncertainty, using broad categories as a convenient shortcut to predicting the ideological orientation of candidates for the bench.
Criminal defence lawyers are underrepresented, according to a Globe and Mail review of all appointment notices since 1984. Academics are, as well, with some notable exceptions. So, too, is anyone who has a senior role in a group with the word “reform” in its title. (One such group is – or was – the Law Reform Commission of Canada, later known as the Law Commission of Canada; in the Conservative government’s first year in power, it scrapped the organization.)
Business lawyers are favoured. Prosecutors are favoured.
Judges appointed by Progressive Conservative prime ministers Mulroney and Kim Campbell look very much like judges appointed by Liberal prime ministers Jean Chrétien and Paul Martin, apart from the underlying political affiliations. They appointed more criminal defence lawyers than prosecutors. They did not shy away from academics, either. And Mr. Mulroney chose leading liberals such as Louise Arbour and Rosalie Abella in Ontario, and Morris Fish in Quebec; Liberal governments later named them to the Supreme Court.
The current Conservative government has appointed few judges in the past nine years who have liberal reformist credentials. Three judges it named to the Ontario Court of Appeal since late in 2012 represented groups arguing against gay marriage at the Supreme Court in 2004. As of this winter, it has appointed 48 prosecutors, compared with 12 lawyers who did primarily criminal defence work, and 10 academics.
Conservatives say the system is no more ideological today than it was under the Liberals. “I can’t see the difference,” a Conservative said. “When someone is a committed federal Liberal and has worked for the party for 30 years and gets to be of a certain age and a certain standing where some political heavyweights recommend them [for the bench], it’s because they’re ideologically framed by working for the party.”
But David Dyzenhaus, a University of Toronto law and philosophy professor, says he is deeply worried by the pattern of appointments.
“It’s very clear that it’s almost impossible for a judge who comes from the political centre or to the left to be appointed,” he said. “Which means that the appointment of judges is from a very small pool of lawyers. That invariably means people of considerable ability are being passed over. The quality of the bench is going to be lower. It will invariably take its toll on the Canadian legal order.”
How to evade ‘lefties’
The screening committees set minimum standards for the selection of judges. Across the country there are 17 such judicial advisory committees (JACs), as they are known, and they are the only stage of the appointment process whose rules are public.
Until 2006, the committees had three choices when presented with a candidate: highly recommend, recommend or not recommended. Mr. Toews changed that, however, stripping out the first option; now committees can only recommend, or not.
The loss of the highly recommended category “removes a lot of the committee’s ability to express to the minister its view as to who really should be appointed to these positions,” said Frank Walwyn, a Toronto business lawyer appointed by the Ontario government to the screening committee in the Greater Toronto Area.
Of the 665 applicants in 2013-14, the committee recommended 300, or nearly one in every two. Of those 300, the government anointed a chosen few – 66 judges, or roughly one in five of the recommended group. Under the last year of the old rules, 2005-6, the committees “highly recommended” 76 applicants; if a government wished, it could find enough highly recommended judges to fill all the vacancies.
In practice, despite the changes that put federal government appointees in the voting majority, the committee members tend to seek common ground. “What I’ve found is that consensus really is the order of the day,” Mr. Walwyn said. “If you have a number of people saying this person is not balanced either in the prosecution or defence of individuals, the committee will take that very seriously.”
From the Conservative government’s perspective, the committees sometimes stand in the way of the judges it wishes to appoint. So the government has taken deliberate steps to evade the committees, at least in Alberta, a local source said. It has a kind of express lane to bypass the need for a committee recommendation: choosing from judges already serving on the Provincial Court, a lower level of court appointed by the province. (The committees comment on these judges, but make no recommendation.) These tended to be right-of-centre judges with a known track record.
The advisory committees “were not letting through tough-on-crime candidates because they wanted some lefties to be appointed,” the source said. “Liberal judges had control of the screening committees. One of the ways [the government] could get around this is if you were already appointed to another court, the screening committee could not block you; they could only comment.” In this fashion, a Provincial Court judge, Brian O’Ferrall, made an unusual leap straight to Alberta’s highest court, the Court of Appeal, in 2011. Several others went to the Court of Queen’s Bench.
This is not against the rules. The appointments system has wide discretion.
The next steps: recommendations from the political ministers, then the judicial affairs adviser checking out the candidates. One such adviser, Carl Dholandas, was a former member of the national Progressive Conservative Party executive who served as executive assistant to Nigel Wright when he was chief of staff in the PMO. The justice ministry declined to make him available for an interview. He left the post early this year, and the ministry would not even reveal the name of the new adviser. (It’s Lucille Collard, who was an official at the Federal Court of Appeal.)
After the Justice Minister’s recommendation goes to the PMO, an appointments adviser, Katherine Valcov-Kwiatkowski, screens the candidates yet again, before a name makes it to a cabinet vote.
This unwieldy process has slowed the system. Chief justices grew restive at the high numbers of vacancies on their courts: at record levels last year – more than 50 open seats. That number plummeted to 14 in June, with an avalanche of appointments before the official start of the federal election campaign. Quebec Court of Appeal judges were stretched so thin last fall that Chief Justice Nicole Duval Hesler asked Superior Court chief justice François Rolland if she could borrow some judges on an ad hoc basis, a source said. Chief justice Rolland said no.
In his annual public address in September, chief justice Rolland complained that one of the vacancies on his court went back to August, 2013, and four others to April, 2014. Civil trials expected to take longer than 25 days must be booked four years in advance, he said. He jokingly asked if anyone could get Justice Minister MacKay on the phone, because he had tried and failed. The judge has now retired.
One seat that was filled: In 2013, an opening on the Manitoba Court of Queen’s Bench went to former justice minister Vic Toews.
The judge who doesn’t like Canadian law
It is easy to see why Mr. Harper would be a fan of Grant Huscroft, Ian Brodie’s friend and co-editor, and why the Conservative government named the Western law professor to Ontario’s highest court, effective in January. (Mr. Brodie, now at the University of Calgary, tweeted his congratulations.)
In his published work, Mr. Huscroft has rejected virtually everything at the heart of the Canadian constitutional order. He is opposed to judges reviewing rights claims under the Charter – an important part of his job. He believes it’s undemocratic and judges are no better than anyone else at deciding whether a law is consistent with the rights commitments of the Charter. He has made the same point as Mr. Harper on gay rights and the Charter – that the framers deliberately did not protect gay rights. He has written that democracies do not “grossly violate rights,” but put “thoughtful” limits on them.
Wil Waluchow, a legal philosopher at McMaster University who strongly disagrees with Mr. Huscroft’s originalism, describes him as open-minded and respectful of different viewpoints. “He may fight against the mainstream to some extent, but I don’t think it will be in a way that is disrespectful or dishonest,” Prof. Waluchow said. “I respect Grant an enormous amount.”
Prof. Dyzenhaus, who co-edited a 2009 book of essays with Mr. Huscroft, is also familiar with his work, and has a somewhat different view. “He’s an attractive choice for Stephen Harper because he shares with Harper an antipathy for entrenched bills of rights and the way of interpreting those rights that Canadian judges have developed for 30 years,” Prof. Dyzenhaus said by phone from Cambridge University, where he is the Arthur Goodhart Visiting Professor of Legal Science.
So why does Mr. Huscroft want to be a judge? In Canada, unlike in the U.S., there is no public review of the federal appointments of new judges in which that question could be asked. Or this one: How can he stay true to his principles while respecting precedent?
Mr. Huscroft declined multiple requests for an interview. But Prof. Dyzenhaus believes Mr. Huscroft hopes to bring change from within.
“If I’m right that he thinks large chunks of the Canadian legal system are illegitimate, one reason for taking office is he wants to get involved in a kind of damage-limitation exercise. So to the extent he can, he will try to prune the living tree.”
The constitutional romance
Constitutional romantics assume the worst of elected legislators and the best of judges,” Mr. Huscroft has written. For nearly 10 years, the Conservative government has been dripping blue ink into a red pot – attempting to expunge, bit by bit, the country’s 30-year romance with the Charter, and with judges who go out of their way to be the guarantor of rights.
The moves have produced mixed results. The government is up against a culture of unanimity; when Liberal and Conservative appointees sit down together, they tend to find common ground. It also faces a tradition of judicial independence, as some Conservative-appointed judges have demonstrated in striking down tough-on-crime legislation. “This, irrespective of who appointed you, is always the dominant culture,” one appeal court judge said.
There is no strong evidence, in a statistical sense, of more severe criminal sentencing. But there are other areas of the judicial system where the effects can be seen. Perhaps the clearest sign of change is on the Federal Court. Refugees whose claims are rejected by the immigration board can ask this court to review their case. The review is not automatic, and Conservative appointees on the Federal Court agreed to a review in just 10 per cent of cases, compared with 17.6 per cent for Liberal appointees, a study found. David Near, a former judicial affairs adviser for the Conservatives, accepted 2.5 per cent of requests for judicial review he heard on the Federal Court. In 2013, he was appointed to the Federal Court of Appeal.
As an election approaches that will be fought in part on security from terrorism and crime, the Prime Minister and his cabinet continue their determined effort to reshape the judiciary. In June, they promoted Justice Bradley Miller, another former Western professor and proponent of originalism, to the Ontario Appeal Court. He opposes gay marriage and asks whether the Supreme Court has lost its moral centre. Business lawyers were again prominent, criminal defence lawyers scarce.
Mr. MacKay’s office has given only one answer when The Globe has asked questions over the past eight months about individual appointments and the judicial appointments process: “All judicial appointments are based on merit and legal excellence and on recommendations made by the 17 Judicial Advisory Committees across Canada.”
Sean Fine is The Globe and Mail’s justice reporter.
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