Mr. Harper is too astute to put forward an overtly right-wing candidate with an obvious agenda, the source said. “What he wants is a strong, independent-minded judge who will go into the backrooms of the Supreme Court and influence, cajole, charm and sell a position he or she is already convinced of.”
The source added that Mr. Harper also recognizes that some judges are worth more than just their own vote. “Someone who is extremely hard-working, articulate, personable and charming has a good chance of not only casting their own vote, but causing many other people to cast votes in their direction,” he said. “Sometimes, you simply have to sign on to a draft because you don’t want to be badly outmatched. You want to be associated with the beautiful draft.”
Professor Jamie Cameron, a constitutional expert at York University, said Mr. Harper will seize his historic moment. “This is a Prime Minister who has an agenda and has not been able to implement his agenda until now,” she said.
Mr. Harper is also in a position to effectively choose the next chief justice during his term. Based on a convention of rotating francophone and anglophone chief justices, a Quebec judge is likely to be next. Therefore, whoever is prime minister is almost sure to choose from one of the two Quebec judges Mr. Harper will appoint.
Prof. Cameron noted that the court’s move toward conservatism was already under way, having begun when Chief Justice Beverly McLachlin rose to the top job a decade ago. The intellectual debate and bold decision-making that had characterized the Brian Dickson and Antonio Lamer courts began to fade.
The court’s low-key, minimalist decision-making is also trickling down through the court system. “Without binding precedents from the top, the lower courts are not as likely to take chances,” Prof. Cameron said. “Over a period of time, litigants who take advice from their lawyers are less likely to bring claims.”
Another criticism of the current court is that it asserts the validity of rights, yet provides no practical remedy for the party that has suffered harm. In key cases involving freedom of information, environmental damage and the rights of terrorism suspect Omar Khadr, experts say the court carved out a bland middle ground which offered no genuine remedy.
“This does appalling violence toward the rule of law,” said University of Ottawa law professor Amir Attaran. “It denies litigants any practical application of their rights, and it is both unintelligent and cowardly of the Supreme Court.”
Of the judges soon to depart, Judge Fish is the court’s resident champion of criminal rights. Judge LeBel, an erudite intellectual whose leanings are hard to pin down, has been a swing vote.
“While he can be unpredictable, I see him as a moderating force in the court's drift towards narrower interpretations of Charter rights, more deference to state power and diminishing concern for the rights of the vulnerable,” said York law professor Bruce Ryder. “His retirement will weaken the court's commitment to civil liberties.”
Beyond those whose departures are predictable or scheduled, other opportunities could appear unexpectedly for Mr. Harper. Madam Justice Marie Deschamps is rumoured to be tiring of toiling on the court, while Judge Abella – like former Supreme Court justice Louise Arbour – could potentially lose interest in being a liberal voice in the wilderness.
Possible candidates to fill the top court void
Stephen Harper can choose from numerous highly regarded legal minds
Judges whose reputation, age and experience render them strong candidates include Eleanore Cronk, Marc Rosenberg, Eileen Gillese and James MacPherson.
Inasmuch as the Harper government is opposed to a formal requirement that Supreme Court judges be bilingual, Court of Appeal judges who have the added virtue of French proficiency include judges Paul Rouleau, Robert Sharpe, Robert Blair and Andromache Karakatsanis.
Two judges who are perennial favourites to be elevated – John Laskin and David Doherty – may now be too old to qualify or too distant from Mr. Harper’s ideological preferences.
However, Federal Court of Appeal Judge David Stratas, 50, is a leading constitutional expert with conservative tendencies, an engaging personality and a prodigious appetite for work.
Ontario Superior Court Judge David Brown and Ontario Court of Appeal Judge Michael Moldaver also stand out based on their legal abilities and notably conservative outlook on the Charter and criminal law.
Should Mr. Harper choose to dip into the bar – particularly if he wants to replace Judge Louise Charron with a woman – lawyers Sheila Block, Janet Minor and Linda Rothstein are considered to have solid credentials.
commentary by the Ottawa Mens Centre
Mr. Harper has yet to demonstrate that he
can resist the urge to abuse his fiduciary powers, to appoint what he feels
is a Conservative judge.
For most Canadian Fathers, we will be watching Mr. Harper to END the Extreme feminist lobby groups anointment of Feminist judges across Canada.
Enough is enough and we need an end to Male Sharia Law.