How Harper Will Reshape Canada's Courts

Wayne MacKay

Abstract


Among the many opportunities for a lasting legacy for the newly minted majority Harper government, the appointment of a majority of members of the Supreme Court of Canada may be the most significant. In addition to two existing Harper appointments and the two that are imminent, at least three more sitting justices will reach mandatory retirement at 75 during the next four years.

In the Canadian constitutional framework, the Supreme Court of Canada plays a lead role in guaranteeing the basic rights of Canadians and providing a check against any abuses of power at either the legislative or executive (bureaucratic) levels.

Even before the adoption of the Charter of Rights and Freedoms in 1982, this country’s courts have been important players on the Canadian scene in upholding the rule of law, keeping administrators in check, and interpreting the division of powers between the federal and provincial levels of government, as articulated in the Constitution Act, 1867. Giving shape to the broad language of the 1982 Charter has expanded the judicial role and raised the profile of the judicial branch of the Canadian state – especially the Supreme Court of Canada.

Prime Minister Stephen Harper went on record in a 2000 opinion piece he wrote for The Globe and Mail as being concerned about “biased ‘judicial activism’ and its extremes,” as well as the “serious flaws” in the Charter of Rights and Freedoms. He has repeated these concerns in a more muted form since assuming office in 2006, and has described the appropriate judicial temperament as one that is respectful of the elected legislative role and one that is balanced – restrained – in the interpretation of rights.

Concerns about what stamp Harper might put on the Supreme Court should focus on this question of judicial temperament and style, rather than ideology or blatant political partisanship. While matters of ideology and politics may still have some sway in lower-level court and administrative tribunal appointments, Harper is too shrewd a politician and too subtle a strategist to make blatant partisan or ideological appointments at the increasingly scrutinized Supreme Court appointment process.

Keywords


Courts; Judges; Legal Profession

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