When the lifeboat goes down with the ship

The lifeboat that has been the Canadian judiciary over the last decade of Conservative reign is about to run aground. I recently learned that the rule of law, one of our five core constitutional principles, is threatened by none other than Prime Minister Stephen Harper.

While the Prime Minister is violating the Constitution and Canadian federalism by failing to appoint senators to the twenty-two vacancies in the Upper House, he doesn’t seem to have the same apathy toward judicial appointments. Since the current government has been in power, the Conservatives have named 600 of the 840 full-time judges on federally appointed courts, including provincial superior courts, appeals courts and federal courts. On the Supreme Court of Canada, seven of the nine judges have been appointed by the Conservatives, yet how many times has this noble and respected institution admonished the Harper Government for its unconstitutional policies!

Thanks to the rule of law, one of the pillars of democracy!

Since the Conservatives took power, I’ve had the impression that the judiciary is the only one of the three powers of the state to have eluded the Conservatives. I saw it as the lifeboat of the ship once formed by all three branches of government.

Yet no matter: I recently read in The Globe and Mail that, of those 600 judges, two of them freshly appointed by Harper—and having Conservative ties—have expressly stated their plans to proactively change jurisprudence, particularly criminal jurisprudence, which is largely based on judicial activism. This jurisprudence has been developed over more than 25 years since the Constitution’s repatriation.

Their path is unusual: one was appointed to the Ontario Court of Appeal in 2013 after spending just six months on the province’s Superior Court, while the other was appointed to the Court of Queen’s Bench in Alberta in 2013 and now only 15 months later to the Supreme Court of Canada! The first is a natural law proponent who advocates for resolving moral issues out of court and referring them explicitly to the federal government. The second is a libertarian fighting to have economic rights included in the Charter. Of course, I am speaking of the Honourable Justices Bradley Miller and Russell Brown.

As a supporter of the U.S. doctrine of originalism, Justice Miller believes that the Constitution, including the Charter, must be interpreted based on the intentions of the founding Fathers. Based on this doctrine, he argues in a manifesto on the Charter that the Supreme Court was wrong to recognize discrimination against gays and lesbians because they are not protected under the Charter. In short, according to Justice Miller, we must live in 2015 according to the mores of 1867!

As to Justice Brown, he was member of the advisory board of the Justice Centre for Constitutional Freedoms, a Conservative organization in Alberta that argues that equality before the law means that no one can benefit from affirmative action. This view is completely contrary to the interpretation of the Charter by the Supreme Court of Canada, which has repeatedly recognized the rights of people who have historically been discriminated against and seeks to redress the damages done to them by the state.

So allow me to question the appropriateness of the government’s choice of these two judicial appointees. I hope I am wrong.

While the Prime Minister is refraining to appoint senators to the twenty-two vacancies in the Upper House, he doesn’t seem to have the same apathy toward judicial appointments. Number of these judicial appointments might severely impair one of the most important constitutional principles of our democracy: the rule of law.