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The Hill: Partisanship, not ideology, marks judicial appointments

OTTAWA – It’s partisanship, not ideology, that has marked Prime Minister Stephen Harper’s appointments to the bench.

Half of the judges he appointed last month have been donors to his Conservative party at one time or another.

There was a fear in the legal community, based on the hard talk that used to come out of Harper’s mouth, that if he ever got to power with so much as a minority government, he would use the bench to roll back progress on Charter of Rights issues affecting women, gays, lesbians, and minority language groups.

He would do so by packing the benches of the courts across the land as his mentor George W. Bush did with right-wing judges who would change the face of the judiciary.

This hasn’t happened. Canada isn’t the United States. Harper isn’t Bush, no matter how much he admires him.
Harper talks a tough line to please his hardline conservative base, especially behind closed doors. But when it comes to putting his appointments where his mouth is, Harper curries favour with the centre. That’s where the votes are.

The examples are numerous. When it came time early in his mandate to appoint his first Supreme Court of Canada justice, Harper picked Marshall Rothstein of Manitoba. Rothstein, despite his inabilities in French, has proven to be a fine justice who is admired and respected by the legal community.

His second Supreme Court appointment, the bilingual Thomas Cromwell from Nova Scotia, has been an equally successful appointment.

But then Harper goes and opens his mouth in private as he did to an audience of hardline conservatives in Sault Ste. Marie on Sept. 2.

A university student captured his so-called secret agenda speech on cellphone video, after which it found itself on YouTube.
On the video, we see and hear Harper lashing out at judges, calling them “left-wing ideologues” who got to the bench through previous “socialist” Liberal administrations.

Harper promised he wouldn’t appoint such people as judges, senators or public servants.
As for women’s groups, which Harper sees as adversaries, they are described as being “marginal,” something that will surely come as a surprise to a group that makes up 51 per cent of the Canadian population.

So what does Harper do a week later when it’s time to appoint a dozen more judges to various courts across the country?
Does he pack the benches with the most biased ideologues the right wing can send him?

Not at all.  He finds good judges, both men and women. They’re mainly men, of course, who have shown no bias, who have commendable legal records, and who have been recommended by the various federal judicial advisory committees across the country. 

There are such committees in each province that “recommend” prospective judges for Harper to choose from.

None are known ideologues. But half of them did contribute money to the Conservative party at one time or other. And that, it turns out, is the common thread.
William Burnett, named to the Court of Queen’s Bench for Manitoba, once gave $3,000 to the Conservative party.

Peter Richardson-Bryson, appointed to the Supreme Court of Nova Scotia, gave $2,750 to Conservative candidates in that province.
Claude Dallaire gave $500 to a Conservative candidate in the 2008 general election. He was made judge of the Superior Court in  Montreal.

Robert Dewar was named to the Manitoba Court of Queen’s Bench. He gave $250 to the Conservative Party of Canada in 2008.
But the appointment that attracted the most public attention on Sept. 9 was a former attorney general in Brian Mulroney’s government, Pierre Blais, whom Harper named chief justice of the Federal Court of Appeal.

But what many of the news media didn’t report was that Blais was first appointed to the Federal Court by former Liberal prime minister Jean Chrétien, who was hardly a Conservative partisan.
So all these former lawyers gave money to Harper’s coalition of Reform, Alliance, and old-line Progressive Conservatives?

Big deal. Was it any different in Liberal times? The only difference is that the Conservatives once promised they would do better. They haven’t.

While in opposition, Peter Van Loan, the man who is Harper’s minister of Public Safety today, complained about Liberal party donors ending up on the bench, something he described as calling into question the independence of the judiciary.

Actually, it didn’t call anything more into question back then than it does now.
The important thing to note is that none of the ideologues out there have been appointed to the bench under Harper. For that we can all be grateful.

The only Harper-appointed judge to have ever publicly expressed an opinion against abortion rights for women is a former Conservative MP, Lawrence O’Neil, who was appointed by Harper to the Supreme Court of Nova Scotia in 2007.

His comment on abortion came while he was still in the Commons on July 27, 1988. Hansard reports him as saying that there “appears to be widespread acceptance of the notion that a mother should have the right to control her body. There is no such right.”

That’s it. Nothing more. He’s hardly a raving anti-choice advocate. So where’s the evidence of hardline appointments to the bench by Harper? There are none.

Harper is not George W. Bush even if he talks like him behind closed doors. This is Canada, not the United States, and Harper is well aware he doesn’t have a majority.

Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richard


0 # LawyerWalter Fox 2009-10-19 16:29
Thanx for a fair balanced and unbiased article.......lovely logic....seeing womens groups as an adversary is being against women....whats wrong with thinking george bush is ok?how many votes did cleroux get in the 2004 and 2008 u.s. election?....but a columnist has no obligation to rely on facts
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0 # John Getz 2009-10-19 14:22
The Conservatives have done better by the very appointments you write of. Unless you think a minimal donation such as listed would secure a judgeship. In that case,sign me up.
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