Lorne Sossin is dean of Osgoode Hall Law School at York University. Grégoire Webber is associate professor in the faculty of law at Queen's University.
The federal government announced a slew of judicial appointments across the country this past week – with the highest number in Ontario. There are many stories to tell about these appointments.
There is a story about renewal, as many of the appointments brought fresh eyes, new voices and energetic perspectives that will shape the justice system for decades to come. There is a story about the missed opportunity (again) to have a judiciary reflect Canadian society – just three of the 17 Ontario appointments were women, for example. There is a story about the diversity of legal practice represented in the appointments, from academics to crown prosecutors, sole practitioners to corporate counsel.
These were not the stories covered by the news media, which focused on the supposedly conservative bent of some of those appointed, and particularly two Ontario academics, Grant Huscroft and Bradley Miller, both from Western University's law faculty.
On one hand, this focus is the product of the partisan era of judicial politics in which we are living in Canada. The Marc Nadon affair gave rise to unprecedented tensions between the Supreme Court and the government, including the Supreme Court's decision disqualifying Justice Nadon from being appointed to the court, and culminating in the ill-considered comments of Prime Minister Stephen Harper and Justice Minister Peter MacKay about Chief Justice Beverley McLachlin. Other Supreme Court decisions striking down tough-on-crime legislation, prostitution laws and the Senate reference all seemed to contribute to a dynamic of Harper versus the courts.
On the other hand, the news media itself has exacerbated this dynamic, by filtering all other stories about the justice system through a partisan lens. The appointment of the eminently qualified Prof. Huscroft and Prof. Miller, for example, becomes yet another instance of the Conservatives' ideological agenda. Their prodigious body of academic output is cited only where there are hints at a supportive posture to the government (for example, the fact that Prof. Huscroft co-edited a book with a former Prime Minister's Office chief of staff, or that he wrote an op-ed critical of the Nadon decision).
It is fair comment to point out the positions on the public record that a judicial appointment has taken on high-profile issues – and academics, almost by definition, will have a greater body of views and arguments in the public domain than lawyers in practice. But why is this the only story told?
There is an insidious quality to the "conservative" label on these new judges. Is it meant to suggest an ideological predisposition? Is it meant to suggest support for the Conservative Party or the government? Is it meant to suggest a view on judicial activism? However intended, it obscures more than it reveals.
To its great credit, the Canadian judiciary cannot easily be reduced to political labels. So, for example, some of the judges best known for their activism on social rights (Justice Claire L'Heureux-Dubé, for example) were known also for being more lenient on the prosecution on criminal justice cases. By contrast, judges known for being less active on social rights (Justice John Sopinka, for example) were zealous supporters of the rights of the accused in criminal justice. Canadian judges may be known for particular views in particular areas but have not historically pursued ideological agendas, whether aligned with a political party or a political philosophy. The governing party that appointed these judges was rarely known and it hardly ever mattered. Indeed, Justice L'Heureux-Dubé's story was a common one – appointed by the Liberals to the Quebec Superior Court and elevated by the Conservatives to the Supreme Court.
While it is easy to cast blame for the growing politicization of the courts on the Conservatives, or on the supposedly liberal media or academy, we are more interested in the harder question of how to resist this path. Because this path puts in jeopardy the most important asset the judiciary has: public confidence that judges are above the political fray, guardians of the rule of law and capable of deciding each case on its merits with an open and impartial mind.