Friday, May 13, 2011

Predictions - Supreme Court of Canada appointments

By Selwyn A. Pieters, B.A., LL.B.
Barrister, Solicitor & Notary Public

Friday the 13th of May, 2011, came like a thunderbolt to many in the legal community with the announcement by the Chief Justice, Justices Ian Binnie and Louise Charron, both of Ontario, retiring from the Supreme Court of Canada.

There are no shortage of candidates to fill the two spots. I suspect that one of the leading candidates will be Arthur L. Hamilton, longtime lawyer of the Conservative Party of Canada. Justice Binnie was appointed directly from private practice so I can't see too many people complaining if the Prime Minister makes an appointment similarly for the Bar as opposed to the Bench.

Mr. Hamilton stick handled all of the litigation that followed the merger of the Progressive Conservative Party (the PC Party) and the Canadian Reform Conservative Alliance (the Alliance) into a party called the Conservative Party of Canada (the CPC). See, for example, The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383, [2006] 2 F.C.R. 315, (2005) 262 D.L.R. (4th) 532, (2005) 343 N.R. 275, 2005 CarswellNat 3774, 2005 CarswellNat 3775, (2005) 143 A.C.W.S. (3d) 1029 (Fed. C.A.) (2005-11-17) 1v. to S.C.C. dismissed [2006] S.C.C.A. No. 12.

With the advent of the Charter some of our greatest constitutional victories have come from the Supreme Court of Canada. The are left to make the hard decisions that politicians sometime punt their way. In most cases whether we agree of disagree with the decisions they are usually well; reasoned and understandable. I am still licking my wounds after we lost the appeal in Attorney General of Ontario v. Michael J. Fraser on his own behalf and on behalf of the United Food and Commercial Workers Union Canada, et al., [2011] S.C.J. 20, 2011 SCC 20.

My belief, regardless of those who dispair over the appointments of judges to the top court is there is a process in place for appointments that militates against tyranny of the majority!!!! Further, its nine judges that determines these cases and our top Court is not polarized as the United Supreme Court into right vs left judges - whose political strips are easily discernable.

That Mr. Harper gets to make two appointments very early into his majority mandate is significant and important. It is likely that he will have four more picks to make. It is, therefore, the task of the legal historians in years to come to determine whether or not his appointments and reshaping of that Court made any difference.


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