Gutting the System

New Supreme Court Appointments Undermine Its Function

OpinionsSam Slotnick — Published October 9, 2012

The Supreme Court seemed to be the last bulwark against Prime Minister Stephen Harper’s agenda, but it won’t be for long.

With a majority of 40 per cent of the popular vote and a Senate on puppet strings, the Harper government has infiltrated the executive, legislative and judicial branches that are supposed to protect our democracy against the sweeping changes the current government are enacting.

As of Oct. 2, when Harper announced the appointment of his fifth justice of the nine-person Supreme Court bench, that last line of defense fell.

Some experts have claimed Supreme Court appointments are often painted as far more political than they really are. However, Harper’s appointees are all cut from a cloth with too much of an affinity for his agenda for the choices to be considered apolitical.

Richard Wagner, the new appointee, though seen as generally centrist, still emphasized, as written in The Globe and Mail, that he thought “the creation of laws is for you, Members of Parliament, to do […] it’s not up to judges.”

The centrist title given by MPs probably has less to do with what political predisposition he may or may not have and more to do with the fact that he said he wouldn’t interfere with the House’s legislature.

The son of former Conservative MP Claude Wagner also gave non-answers when asked about his position on crime, and said that it wasn’t about being lenient or strict—but being “fair.”

Lastly, Wagner has only been a judge for eight years, and may be vulnerable to the ‘tough on crime’ arguments of four much more experienced judges—especially considering his father was famous for his tough-on-crime rhetoric.

Harper’s appointees have openly advocated minimum sentencing in certain areas, such as in the case of recent appointee Justice Michael Moldaver, and that they are opposed to ‘run-away trials,’ which translates into taking issue with the involvement of interest groups who tend to help yield progressive and activist decisions.

With some luck and good political maneuvering, the PM has successfully transformed the Supreme Court to both legitimize his more controversial legislation while simultaneously curbing its generally progressive leanings.

Each appointee of Harper’s has been noted for two things: deference (i.e. they give legislators the benefit of the doubt) and being ‘tough on crime.’

That means that when aspects of Harper’s omnibus crime bill are challenged in front of the Supreme Court—which they inevitably will be—they will be heard by a bench whose majority has come out to say they won’t question the nature of the Conservative prison-heavy bill.

In other words, if someone were to challenge mandatory minimum sentencing—a grossly unconstitutional practice—Harper’s appointees are liable to let it through.

Part of what deferential justice means is that you are more apprehensive to make decisions that are considered the job of legislators.

Abortion, same-sex marriage and safe injection sites are all things in Canada that operate almost exclusively because they were protected by the Charter of Rights and Freedoms, according to the Supreme Court of Canada.

With a court that is populated by a majority of Harper appointees, it is incredibly unlikely that we will see any progressive decision-making.

And it also means, we may see a reversal of some progressive decisions in the coming years.

Harper’s manipulation of the Supreme Court will persist long after his term ends. Supreme Court justices retire at the age of 75. Current justices Morris Fish and Louis LeBel are 73 and 72 respectively, meaning that before Harper’s time in office ends, he will have the opportunity to appoint two more justices.

The five Harper appointees are significantly younger than their counterparts, by nearly a decade on average. If Harper appoints two more justices under the age of 60, over the course of the next few years, he could set up the Supreme Court to be staffed by a majority of his own appointees for the next 15 years.

What may be worst of all is that Harper has instituted parliamentary selection hearings. They give parliament an opportunity to question Harper’s candidates, in an attempt to add legitimacy to his decision.

The reality of the committees is that the participating MPs have no say in the final decision and are barred from asking candidates about social policy. The committees’ existence is also subject to Harper’s will. He’s already dissolved committees early and—as was the case with the one conducted for the latest appointee—rushed through them.

“Harper acts as if the public nomination hearing he himself created were a mere formality,” read the opening sentence of an editorial The Globe and Mail last Wednesday of Harper’s selection of Wagner.

Their outrage was in the right place, but a bit misdirected. The hearings are and always have been a formality. But at this point the question is whether Supreme Court decisions themselves will become a mere formality.