Conservative Danger: Three Vacant Supreme Court Positions

In a number of places in today's press, the issue of Harper's stance that the Supreme Court of Canada should take a deferential role to the will of the Canadian Parliament has been discussed (see the links at the end of this article).

But another intensely important issue, that ties in directly with the Canadian Supreme Court needs to be discussed. The next person to become Prime Minister will be able to appoint at least three Supreme Court justices, and shape the nature of the Supreme Court for a generation.

Supreme Court justices Louise Arbour and Frank Iacobucci have both announced their departure, so two immediate vacancies will open up by the time the next government forms. Then in 2006, justice John Major reaches the mandatory retirement age of 75.

The Supreme Court is composed of nine justices, who, once appointed serve until mandatory retirement at 75, or upon voluntary resignation. Three positions out of a possible nine will be available to whoever the next Prime Minister decides to appoint. And let us make no mistake, it is the PM who is the final arbiter of appointments. It does not matter if that Prime Minister is serving in a majority or a minority government.

Moreover, there are no hard rules as to who can be appointed. Traditionally justices have been appointed from provincial Courts of Appeal, but there is nothing to say that justices can't come from lower courts, or even lawyers directly from practice. The pool of candidates available to a Prime Minister, with a particular ideological take on how the Supreme Court should function in relation to Parliament, is large enough for him to choose justices who closely share his ideology.

Now it would be a radical shift in tradition to choose justices from anywhere other than provincial Courts of Appeal, but Stephen Harper is proposing a radically different relationship between the Canadian Supreme Court and the Canadian Parliament. He insists the Supreme Court should be deferential to the will of Parliament. It would only make sense that, if Harper were Prime Minister, he would appoint those who fell in line with his view of the Supreme Court's role. But just as important, he could appoint justices who share his intensely social conservative agenda.

The question Canadians need to start asking themselves is: Do they trust the Conservatives act in accordance with Canadian tradition and appoint relatively non-partisan experienced justices? Or will Harper base his appointments on how inline they are with his stances on issues like environmental law, same-sex marriage, abortion, the death penalty, bilingualism, federal hate crimes law, and the role of the Supreme Court.

We know how the Liberals would appoint justices, they would continue with tradition. But we've never had a seriously right wing coalition made up largely of former Reform and Canadian Alliance party members.

This single issue could provoke a significant shift in the overall trends in Canadian law for decades to come. I think it's something the other parties in this election need to start talking about.

Here are some additional article links:
Toronto Star: Shaping Our Top Court (click here)
Toronto Star: Harper Unveils Plan to Change Judiciary (click here)
Canadian Press: Harper, Martin vie for chance to reshape Supreme Court of Canada (click here)
The Supreme Court of Canada Website (click here)