The vacancy was first announced five months ago when Chief Justice Beverley McLachlin personally advised Prime Minister Stephen Harper that Morris Fish would hear no more cases after the spring session ended in June, with his retirement effective at the end of August.
Fish’s departure had long been expected — he turns 75 in November, the mandatory retirement age for high court judges — unlike the surprise exit last year of Quebec colleague Marie Deschamps at the relatively young age of 59, after 10 years on the high court.
Harper picked Richard Wagner, a judge of the Quebec Court of Appeal, to replace Deschamps. But that appointment also took months, drew criticism for reducing the number of women on the bench, and left the new judge scrambling to get in place before the Supreme Court’s 2012 fall session began.
It will be the sixth Supreme Court of Canada appointment Harper will have made. In the next two years, he will have two more chances to shape the makeup of the high court, with the mandatory retirements of Louis LeBel of Quebec, in 2014, and Marshall Rothstein — who was Harper’s very first appointment to the Supreme Court — who turns 75 in 2015.
But University of Ottawa law professor Adam Dodek suggests the greater influence over the high court is not Harper’s but rather that of Chief Justice Beverley McLachlin, who just turned 70.
As of Sunday, McLachlin, who was the first woman to hold the position, becomes Canada’s longest serving chief justice — a historic milestone—surpassing William Johnstone Ritchie who sat at the top post for 13 years until 1892, when he died at the age of 78.
“I think she has really succeeded in establishing her leadership of our court,” said Dodek. “This is a group of judges who have a great deal of mutual respect for each other that didn’t exist under prior chief judges.”
Although Harper has power over the appointment, said Dodek, “he doesn’t have power over what happens when they get to court” and it has proven difficult to predict how high court judges will rule based on which government named them.
“I don’t think you can point to the last (seven) years and characterize it as a Conservative court or say it is a more conservative era than when it was full of Trudeau or Chrétien appointees. We don’t have the polarized and politicized judiciary that they have in the United States.”
Nevertheless, it will be again a scramble for the new judge to get in place. Last year, Wagner was nominated in October, hastily appeared before a Commons committee to answer questions, was formally appointed by Harper, then sworn in privately so he could immediately sit on appeals — all within a week before hearings began. His public swearing-in was put off for another two months because the court was too busy.
Paloma Aguilar, spokesperson for Justice Minister Peter MacKay, said the committee’s report is “still under consideration” but a new judge will be named before the high court’s fall session begins on Oct. 9.
This year, the Conservative government has been pre-occupied with shuffling cabinet ministers, senior PMO and ministerial staff, and drafting a new governing agenda to lay out in a fall throne speech.
It took nearly two months before it announced it would follow the same selection process in the past three appointments. An all-party selection panel was struck on June 11, and the three Conservatives, an NDP and a Liberal member got to work quickly.
Even after the mid-summer cabinet shuffle saw one of the MPs, Shelly Glover, appointed to cabinet she and the others continued the work, winnowing out an unranked shortlist of three from a “long list” of unknown number of “qualified” candidates provided by the Justice department.
Because Harper prorogued Parliament, the appointee will face an ad hoc committee to be struck after the announcement.
NDP MP Françoise Boivin, who sat on the judicial screening committee last year and this year, says the committee’s work could not have proceeded more quickly merely because the government had screened Quebec candidates the year before. “The actors are not necessarily always the same. You have to re-do the process,” Boivin said.
Last year, other leading contenders were believed to be Justice Marie-France Bich, named to the Quebec Court of Appeal in 2004; Justice Nicholas Kasirer, and Madam Justice France Thibault and Federal Court of Appeal Judge Robert Mainville.
No comments:
Post a Comment