Judges and Stephen Harper

After years of complaining about judges' rulings, court appointments reflect ideology.

Stephen Harper said in the 2006 election campaign that if he won a majority government, civil servants, appointed senators and judges who owe their jobs to the Liberals would limit his power.

Harper's comment may have been a paranoid slip in an otherwise tightly scripted campaign, or he may have been playing to the social conservatives within his party's voter universe and his own caucus. The Reform and Canadian Alliance parties, which became Harper's political home when he moved to Alberta as a young man, were deeply hostile toward the federal legal system, resenting so-called "activist" judges. Harper and others who founded these parties blame the courts, and particularly the Charter of Rights and Freedoms, for rulings that they believe favour criminals, abortionists, Aboriginals and uppity women.

For example, Conservative MP Maurice Vellacott, an evangelical minister with ties to the American-based group Focus on the Family told a reporter in May 2006 that Beverley McLachlin, the Chief Justice of Canada, was "playing God" Vellacott claimed McLachlin "herself said actually when [judges] step into this role that suddenly there's some kind of mystical power that comes over them, which everything that they've ever decreed is not to be questioned."

The Chief Justice took the unprecedented step of having a spokesperson deny that she had said any such thing. Harper had earlier orchestrated Vellacott's appointment as chair of the Commons Aboriginal Affairs committee, but Vellacott's colleagues promptly dumped him following his bizarre remarks.

Harper's own comments and actions since becoming Prime Minister are similar to those of US President George W Bush. The American President chastises "liberal activist" judges at every opportunity but has busily appointed conservative activist and loyalists to the bench.

Former Justice Minister Vic Toews has set the stage for just such a future in Canada. Toews was a harsh detractor of judges and the courts during his years as the opposition justice critic. Late in 2006 Toews recast the judicial advisory committees that had served as arms-length panels forwarding to the minister the names of lawyers to be considered for judicial appointments.

Toews created a new position on each of these provincial committees for a police officer, and he removed the right to vote from the judge presiding over the committee. That tilted the majority voting power on the committees toward Ottawa and guaranteed Toews and Harper a dominant hand in the judicial selection process. Police officers often believe that the courts make it too difficult for them to do their jobs and that sentences for convictions are too lenient.

There was apparent patronage in the way judges were appointed under the Liberals, but Toews and Harper have taken the process to a new and blatant level of politicization. The Canadian Bar Association, the Canadian Judicial Council, and even Chief Justice McLachlin protested against this move, but Toews and Harper were undeterred. The Globe and Mail reported in February 2007 that the judicial review committees were being stacked with "former politicians, aides to ministers, riding association officials and defeated candidates."

Harper has dealt with any criticism, saying that he will not leave the selection of judges to "a private club of judges and lawyers." He made it clear that he intends to stack the courts with judges who will reflect his own agenda.

One of his first high profile appointees was Toronto lawyer David Brown, who was named to the Ontario Superior Court in the fall of 2006. Brown is a rock-ribbed social conservative who had spoken out and written against abortion rights and same sex marriage. His clients had included Focus on the Family and REAL Women of Canada. Both groups went to court in an attempt to oppose same sex marriage. REAL Women also lobbied Harper to have the Court Challenges Program and the Law Reform Commission shut down, and he has granted their wish.

Commenting on the appointment of Judge Brown, Columnist John Ibbitson wrote, "Mr. Harper doesn't have to placate the social conservatives in his caucus. He is one of them himself."

Harper Conservative vs. Public Values Frame
  Activist judges / Upholding rights
  Liberal judiciary / Stacking bench with ideologues

Links and sources
  Campbell Clark, Partisans filling judge nomination committees, Globe and Mail, February 12, 2007.
  Tory MP eats crow after ruffling judicial feathers, CBC News, May 7, 2006.
  Dahlia Lithwick, Undoing Bush: The Courts, Harper's Magazine, June 2007.
  Alex Dobrota, Toews accused of trying to politicize the judiciary, Globe and Mail, November 11, 2006.
  Campbell Clark, Harper brushes off judicial critics on appointments, Globe and Mail, February 22, 2007.
  John Ibbitson, Stacking the courts: fair play?, Globe and Mail, September 22, 2006.

Posted: June 05, 2007

Harper Index (HarperIndex.ca) is a project of the Golden Lake Institute and the online publication StraightGoods.ca