Politics

BENCH PRESSED

With two vacancies on the top court, Martin must weigh which comes first: personalities or process

LEAH BOWNESS August 2 2004
Politics

BENCH PRESSED

With two vacancies on the top court, Martin must weigh which comes first: personalities or process

LEAH BOWNESS August 2 2004

BENCH PRESSED

Politics

LEAH BOWNESS

With two vacancies on the top court, Martin must weigh which comes first: personalities or process

PAUL MARTIN has a dilemma on his hands. With the June departures ofjustices Louise Arbour and Frank Iacobucci, there are two vacancies to be filled on the nine-member Supreme Court of Canada. Ideally—at least when it comes to matters of jurisprudence and the judges’ workloads—the new appointees will be in place before the court’s fall session opens in October. Martin could easily do this—according to constitutional convention, selecting justices for the top court is the prerogative of the prime minister. But back in January, as part of his plan for reducing the so-called democracy deficit, Martin promised members of Parliament an opportunity to review those appointments. So the question facing Martin is which comes first—people or process?

Given what’s at stake, the question is more than academic. With a mandatory retirement age of 75 for justices, each appointee can affect the tenor of the court for a generation. Arbour, 57, who on July 1 took up the post of United Nations High Commissioner for Human Rights, and Iacobucci, 67, who stepped down eight years early to spend more time with his family, were considered two of the more liberal, Charter of Rights-oriented judges. And looming

on the court’s fall docket is the blockbuster same-sex marriage reference.

The political pressures on Martin will likely be intense. MPs of all political stripes will undoubtedly be looking for him to deliver on his promise of giving them more power in the new minority government. Conservative Leader Stephen Harper, in particular, favours changing the appointment process, though for very different reasons. Harper believes judges should take a less activist interpretation of the Charter and be more deferential towards elected politicians. The current nomination process is arbitrary, he says, “and then we find out later what these guys’ and gals’ views on issues are.”

Many legal experts, however, hope Martin will take a cautious approach to reform. Ian Greene, a political science professor at

WITH a mandatory retirement age of 75 for justices, each appointee can affect the tenor of the court for a generation

York University, fears that with so many issues confronting Martin and the new cabinet, the court question may not get “the attention it deserves.” Bruce Feldthusen, dean of the University of Ottawa’s faculty of common law, agrees that changing the selection process has too many ramifications to be rushed. More urgent, he says, is filling the court’s vacancies. “It’s irresponsible,” adds Feldthusen, “to leave those positions open one day longer than is necessary.”

The latest word from the PM’s office is that new justices will, in fact, be named in time for the fall session—and that MPs will be involved, although it’s not clear how. One possibility is a hybrid: use the current criteria to develop a short list and then give MPs an opportunity to review those candidates.

So who would be in the running?

By law, justices are chosen from superior court judges or from lawyers with at least 10 years’ experience. Traditionally, replacements come from the same province as the departing justice—that’s Ontario for both Arbour and Iacobucci. Possible candidates from the Ontario Court of Appeal: Rosalie Abella, the first Jewish female judge in Canada; Louise Charron, a bilingual francophone; David Doherty, considered an expert on criminal law; Eileen Gillese, a Rhodes Scholar and one of the three judges who ruled unanimously in favour of same-sex marriage in 2003; and John Laskin, son of former Supreme Court chief justice Bora Laskin, who has wide expertise in constitutional, criminal and business law.

Possible candidates from Ontario’s legal community include: Peter Hogg, a leading constitutional expert; David Scott, the first Canadian president of the American College of Trial Lawyers; Marlys Edwardh, whose background is in criminal law; and Sheila Block, a civil litigator of note.

Iacobucci suggests that those who replace Arbour and himself should possess more than the requisite intelligence and sense of fairness-they should also have “a willingness to listen and experience in life.” And he adds that while the court “could become politicized,” Canada’s history and traditions will prevent any serious problems. Martin can only hope that assessment is correct and that changing the appointment process will be the only precedent he’s setting. lifl