The timing couldn’t have been more perfect: The Globe & Mail published an article decrying how Stephen Harper had been remaking the judiciary over the past many years, and then yesterday the Prime Minister announced the elevation of Justice Russ Brown of the Alberta Court of Appeal to the Supreme Court of Canada. (I should disclose that Justice Brown is a good friend of mine and a former colleague at the University of Alberta’s Faculty of Law.)
Over the next few days and then over the many coming years, undoubtedly Justice Brown will come under academic and journalistic scrutiny to see if his appointment fits a narrative that many on the left of academia and journalism like to paint.
The Globe article suggests a vast right-wing conspiracy whereby conservative operatives are spread all over the country hunting for the great judicial-conservative hope. Indeed, another article two days later was full of interviews with critics who wanted to change the judicial appointment system so that the (Conservative) government would have less discretion in the appointment of judges.
Of course, as long as the Liberal government, and for that matter the Mulroney PC government before that, were appointing left-wing liberals, these critics praised the amazing meritorious appointments that were being made to our nation’s courts. But once the nature of appointments started to become more conservative, all of a sudden the appointments were characterized as ideological and conspiratorial.
Even assuming that the federal Conservatives have been trawling the bottoms of the ideological oceans looking for the most conservative judicial candidate they could find, the question remains: Why hasn’t it made a difference in our legal culture? After all, seven of the nine Supreme Court justices have been appointed by this government, and yet much of this government’s contentious legislation has been struck down.
Even at the lower courts, regular lawyers will be hard pressed to see a real difference in the judging done by one party’s appointees or another. On one hand, this is a good thing. It points to a uniformity of Canadian legal thinking that has escaped the worst of American judicial grandstanding.
On the other hand, it points to a basic deficiency in Canadian conservative (and while we are at it, Libertarian) judicial philosophy, namely that there is none. For example, many conservatives would like judges to simply apply the law and not insert themselves into purely political matters.
Notwithstanding conservatives lament over the enactment of the Charter and the loss of Parliamentary sovereignty, conservatives have begun using the Charter to attack speech and spending suppressing election laws (as in Harper v. Canada,  1 S.C.R. 827,) and the state’s monopoly over healthcare (as in Chaoulli v. Quebec (Attorney General)  1 S.C.R. 791.) Conservatives attack Human Rights Commissions for suppressing offensive speech even though all such commissions are validly enacted by provincial and federal legislatures.
There is, therefore, a tension between the principle of Parliamentary sovereignty and the vindication of conservative values in general. Part of this tension stems from our obsession with American conservative constitutional discussions and forgetting the classic nineteenth century British legal traditions such as those of A.V. Dicey (who emphasized the concept of the “rule of law”.)
It would behoove conservatives to rediscover the lost British legal traditions that once permeated our legal discourse a century ago. (I say British, because in addition to the various English legal jurists, many Scottish legal scholars and jurists played a great role in developing Western legal traditions.)
This brings me back to Justice Brown. His tenure on the court will confound both critics on the left and right who will wish to box his judgments into easy to label categories. Will he be tough on crime? Will he defer to Parliament or will he insert his values into the law? Will he legislate from the bench? Will he let the living tree grow or will be an originalist? If those are the labels critics wish to use, then the answers will be both yes and no.
But if the questions are: Is he hard-working? Does he pay attention to the law? Does he bring an open-mind to each case? Does he listen to both sides of the case before making up his mind? Does he understand the “rule of law”? The answer to all of these questions is a resounding yes! And that makes him a Conservative in my books and in the books of Dicey.
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