Harper quietly politicizing the courts

Opinion

Hey there, time traveller!
This article was published 26/07/2015 (3193 days ago), so information in it may no longer be current.

It’s no secret the Harper government has never liked the Charter of Rights and Freedoms or judicial decisions overruling government policy, leading to what critics call “judge-made law.”

Prime Minister Stephen Harper has made some attempts to change the character of the Supreme Court of Canada, but the general impression has been that the judicial system was safe from excessive political tampering.

That view, however, is open to question following a lengthy investigation by the Globe and Mail, which found the Conservative government for the last nine years has been actively working to appoint judges who are likely to be friendly to its agenda and opposed to the idea courts should overturn traditional social and moral values, including on such matters as abortion, gay rights, prostitution and doctor-assisted suicide.

The Conservative government, the Globe reported, has named about 600 of 840 full-time judges who sit on provincial appeal and superior courts, as well as federal courts. Lower-court judges are appointed by the provinces.

The government has favoured prosecutors and business lawyers over defence attorneys in the process, presumably on the assumption the latter are more likely to be sympathetic to the charter.

Most importantly, when the government was elected in 2006, it changed the process for naming judges by giving the federal government more clout in the process. In addition, regional cabinet ministers also played a critical role in the decision-making process. In some cases, the Globe found, ministers even had lunch with potential candidates to ensure they were likely to be friendly to the government, or at least not unfriendly.

Through these and other means, the newspaper discovered the Conservative government has created a pool of judges who will eventually be considered for promotion to higher courts.

Previous governments have also picked politically palatable candidates for the bench, a practice the Canadian Bar Association criticized in a 1985 report. As a result, former prime minister Brian Mulroney created a system of screening committees to ensure at least the perception judges were picked on the basis of merit alone.

As noted, Mr. Harper tilted that process in favour of his own partisan agenda, while also allowing cabinet ministers to conduct their own informal, secretive screening.

There’s no better example of this process than the appointment of former Tory cabinet minister Vic Toews to the judiciary.

The recent appointment of Justice Bradley Miller to Ontario’s Court of Appeal should also raise red flags. Among other things, Judge Miller believes the Supreme Court was wrong to strike down the laws on assisted suicide and prostitution. The courts, he believes, have ignored the harm caused by such decisions. As the Globe discovered, Justice Miller believes certain moral and cultural standards are part of basic human nature and more important than individual rights or evolving rights, such as gay marriage. All of this from a man who one day could rule from the highest court in the land.

Will this new Canadian judiciary be one of Mr. Harper’s enduring legacies? If so, it’s unlikely to be one Canadians appreciate down the road.

The bottom line is the judicial appointment system needs to be strengthened and immunized from political influence.

No one wants an American-style public screening process, which is overly partisan. Canada, however, should revisit the original intent of the screening process introduced by Mr. Mulroney, which was to select judges based on merit and in a way that is neutral and independent.

Justice, remember, is supposed to be blind.