Catholic Civil Rights League president Phil Horgan said he hopes Harper will choose justices who will interpret the existing laws and resist any temptation to make them.

Supreme Court appointments should respect Parliament's role

By 
  • May 31, 2011

OTTAWA - The retirement of two Supreme Court justices this summer gives Prime Minister Stephen Harper a chance to shape the court, but few expect he will appoint activist judges who will try to swing the court in a conservative direction.

Those on the front lines of court battles for religious freedom and moral issues prefer it that way. Catholic Civil Rights League president Phil Horgan, a Toronto-based lawyer, said he hopes Harper will choose justices who will interpret the existing laws and resist any temptation to make them.  

“When you are acting as an umpire on competing claims, you try to make the best decision without overstepping the bounds of the judicial role,” he said. “It’s one thing to be the referee; it’s another thing to rewrite the rules of the game.”       

Horgan wants judges that recognize the role of Parliament. For those who like an activist bench, he asks, “Are they prepared for the day when that activism doesn’t go in their favour?” He hopes the judges that will replace Justices Louise Charron and Ian Binnie are “cognizant of a healthy pluralism” in Canadian society.

“This country continues to have a jealous regard for conscientious and religious freedom,” he said.

But REAL Women of Canada national vice president Gwen Landolt, a lawyer and former Crown Prosecutor, said judges, not only in the Supreme Court but lower courts as well, “all too frequently use their appointments to determine public policy.” It’s a role they are not equipped for, she said. They do not have the access to the social data, or ways to air arguments the way legislators do. Nor are they accountable to voters, who can remove them. Justices do not have to retire until age 75.

REAL Women of Canada national vice president Gwen Landolt said judges 'all too frequently use their appointments to determine public policy.'“They are the final voice in Canada,” she said.  “They are given so great a temptation to use the Charter to change the direction of society.”

Landolt criticized the way the courts have used the Charter of Rights and Freedom’s Section 7, the “right to life, liberty and security of the person,” and the Section 15 equality provisions to strike down the abortion law, write in sexual orientation to the enumerated groups in Section 15 and liberalize laws against pornography. Section 7 was used recently in Ontario to strike down the prostitution laws. Equality provisions have been used to undermine religious freedom in a number of cases, she added. Freedom of religion is clearly written into two sections of the Charter, she said, but the equality provision has been used to override it.

Landolt said judges should be appointed on merit based on experience and objectivity and reflect deference to Parliament and the will of the people.

“They should not use the Charter as a hook to promote their own perspective.”

Horgan raised the long tenure of justices. While Binnie and Charron are retiring well before 75, he noted judges appointed when they are around age 50 could conceivably serve for a generation.

“The proposition or suggestion that we put all of the tough decisions into the hands of judges is a dangerous proposition,” he said. It concentrates power in the hands of five individuals who can command a majority among the nine justices, and falls outside the Westminster tradition, he said.

“Combine that with tenures of upwards of 15-20 years, it extends a power that should be retained by legislatures.”

The Catholic Civil Rights League’s executive director Joanne McGarry would like to see a further development in the review process that Harper established for his two previous appointments to the highest court.But the Supreme Court did not create the situation where they are called upon to make public policy decisions, said the League’s executive director Joanne McGarry. “Parliament let it happen.”

On the abortion law, the Court left it open for Parliament to craft a new law, she said, and Parliament has the authority to change the situation.

McGarry would like to see a further development in the review process that Harper established for his two previous appointments to the highest court. Harper filtered a list of candidates through an ad hoc Parliamentary committee which narrowed the choices down to three. McGarry would like to see scrutiny of the prospected judges expanded.

“We have to do what we can to make sure the best people are in there,” said McGarry.

Evangelical Fellowship of Canada legal counsel Don Hutchinson said he hopes the new justices will be “of equal calibre.”

“Fine legal minds are a key to the future of the court,” he said.

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