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Bastarache too ‘anti-freedom,’ say libertarians

|Written By Tim Naumetz

OTTAWA - A conservative legal foundation that wants more “pro-freedom” decisions by the Supreme Court of Canada has compiled a critical look at outgoing Justice Michel Bastarache, saying he was on the wrong side of the fence too many times.

And - as Bastarache’s June 30 retirement date neared - speculation mounted that an appointment to replace him with a prominent judge on the Court of Appeal of Newfoundland and Labrador could give finally give women a majority on the country’s highest court.

Of 37 cases in which Bastarache participated, he was a “weak” supporter of fundamental freedoms and was on the “pro-freedom” side only 56 per cent of the time in non-unanimous decisions, says a report from a study by Chris Schafer, a director of the Canadian Constitutional Foundation, and foundation researcher James McLean.

Despite the negative side, from the foundation’s perspective, the study nonetheless found Bastarache was a “strong supporter” of freedom in decisions involving economics and equality, taking the “pro-freedom” side more than 80 per cent of the time.

The foundation has been controversial, under attack for challenging the ban on private medical care in Canada and also facing criticism for supporting a decision by the Harper government to cancel funding of court challenges by minorities.

Schafer, once an assistant to former Reform Party leader Preston Manning, admits in an interview the foundation would have backed Prime Minister Stephen Harper in his failed court challenge of campaign spending limits under the Canada Elections Act.

Harper lost the 2000 case, Harper v. Canada, when he was president of the National Citizens Coalition and attempted to get third-party limits struck down as an unconstitutional abridgement of free speech under s. 2.

“In that case, we would argue that they would have thrown out the law and allowed free speech to reign during elections,” Schafer tells Law Times.

Despite that position, Schafer denies the foundation is intent on influencing any government when it comes to making appointments to the Supreme Court.

“Personally I would be happy, the foundation would be happy and would fulfill its goals, if every Supreme Court justice saw as his or her role to fulfill the constitutional obligations of safeguarding individual freedom, equality before the law and economic freedom,” he tells Law Times.

Schafer is a lawyer and registered lobbyist with Gowling Lafleur Henderson LLP in Ottawa.

He was called to the bar in Ontario in 2006 and prior to that he worked with the conservative Fraser Institute in Vancouver, the Cato Institute in Washington, and for Manning as a political intern for a summer.

Ezra Levant, another former back-roomer with the Reform Party in Ottawa who took on the Alberta Human Rights Commission after he published the infamous Danish cartoons lampooning the Islamic spiritual figure Mohammed, is a member of the foundation’s advisory board.

Schafer said the foundation, a registered charity which issues tax receipts to donors, focuses its studies of Supreme Court justices on s. 2 and s. 15 protection of fundamental freedoms and on economic rights, and has not analyzed their rulings under s. 7 legal rights.

He and McLean acknowledge in the Bastarache report that the analysis “necessarily reflects the judgment of the authors” and that they avoided divisive issues such as “whether or not the state has a legitimate role in restricting pornography or prostitution.”

Among the cases where they praised Bastarache for siding with the “pro-freedom” majority was Thomson Newspapers Co. v. Canada, where the majority held it was unconstitutional to ban the broadcasting or publication of public opinion polls in the final three days before a federal election.

An example of an “anti-freedom” ruling was a majority decision in Canadian Egg Marketing Agency v. Richardson that the marketing board did not violate s. 6 on the basis of residency.

Meanwhile, the name of Justice Margaret Cameron, of the Newfoundland and Labrador Court of Appeal, surfaced late last week as a strong candidate for the government’s choice to replace Bastarache.

St. John’s counsel Sheila Greene, president of the Law Society of Newfoundland and Labrador, tells Law Times Cameron would be a good selection if the Harper government decides to appoint a Supreme Court justice from the province for the first time since it joined Confederation in 1949.

Greene describes Cameron as “dedicated, hardworking, with a very even judicial temper.” She says Cameron has worked collegially with the chief justice of the appeal court, former Newfoundland premier Clyde Wells.

Wells demonstrated his keen sense of constitutional legalities when he denied the legislative assembly vote in 1990 that led to the demise of former prime minister Brian Mulroney’s Meech Lake constitutional accord, and is unlikely to be selected to fill the Bastarache vacancy despite his razor-sharp legal mind.

Only Quebec is guaranteed a fixed number of Supreme Court positions, three, under the Constitution, but for decades the convention has been one justice from the Atlantic region, two from the western provinces, and three from Ontario.

Joel Pink, president of the Nova Scotia Barristers’ Society, agreed Cameron is a leading candidate, noting that her name played prominently when Bastarache was selected from the New Brunswick Court of Appeal in 1997.

Pink, however, said gender should not be the decisive factor.

“I think the issue from all of us should be that this is an appointment of merit,” he tells Law Times. “There’s no up side for a government to look to appoint someone who is not anything other than absolutely qualified.”

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