The Conservatives are coming for our courts

Sometimes, it pays to read past the headline. That’s certainly the case with a recent National Post story titled “Trudeau’s Law Society,” one that suggested “it’s no coincidence that more judges who donate to the Liberal party are brought to the bench than Conservative donors.” The Investigative Journalism Foundation, a news organization that partnered with Postmedia on the story, went even further by tweeting that its story “shows that the federal Liberals appear to be stacking the courts with their supporters.”

Thirteen paragraphs down, the reader — if they make it that far — discovers that only 18.3 per cent of the Liberal government’s 1,308 judicial appointees made a political donation, with 76.3 per cent of them having donated to the Liberals. That means 13.9 per cent of their appointees donated to the Liberals, with 86.1 per cent either not donating or donating to one of the opposition parties. “I’m not saying the data is a problem,” former Trudeau economic adviser and policy consultant Tyler Meredith tweeted, “but when 4 out of 5 people appointed aren’t contributing at all, to anyone, the favouritism angle looks far less than sensational header (sic).”

Ironically, this matches reporting from Postmedia back in 2010, which showed 66 of the 270 judges the Harper Conservatives had appointed at that point had made political donations, with 41 of them having donated to the Conservative Party of Canada. A further 25 had names that matched political donors — mainly Conservative ones — but couldn’t be verified as the same people. If you include them in the list, that’s 33.7 per cent of judicial appointees who were political donors, with 72.5 per cent of them donating to the CPC.

Postmedia’s editors clearly didn’t agree. Earlier this week, they published the second story in this ongoing collaboration, one that highlighted six Superior Court justices who had attended Liberal fundraisers “shortly before being appointed.” It beggars belief that any government would appoint someone to the bench because they attended a $1,625 fundraiser, and the reporting again ignores the pattern of appointment under the previous government, one that included former justice minister Peter MacKay appointing the best man at his wedding and an old friend of his father to the Nova Scotia Supreme Court. As Press Progress reported back in 2015, MacKay had personal and financial ties to six of the nine appointments he made to Nova Scotia courts.

Same as it ever was, in other words. If anything, the Trudeau government has made important strides towards depoliticizing the appointment of judges. That’s particularly true of the ones sitting on the Supreme Court. By appointing former prime minister Kim Campbell to chair an independent advisory board that recommended a short list of candidates, constitutional expert and author Emmett Macfarlane argued: “Trudeau has introduced an advisory process that will limit his own discretion. A selection committee will be recommending him a set of names for consideration, so patronage and ideology are even less likely to dominate the process.”

Trudeau’s 2017 decision to appoint Richard Wagner as former chief justice Beverley McLachlin’s replacement speaks to that lack of partisanship on Canada’s highest court. After all, the prime minister who first appointed him to the Supreme Court was one Stephen Harper. “Cabinet ministers, as we all know, come and go,” former federal justice minister and University of Alberta professor of law Anne McLellan told the CBC back in 2017. “But the chief justice, once appointed, will be there, bar unforeseen situations, up until mandatory retirement.”

That Trudeau chose to put a Harper appointee in that most powerful of roles speaks to the reality that Canada’s high court is fundamentally different than the one in the United States, where justices almost never break ranks with the party that appointed them. So, too, do some of Trudeau’s other appointees to the Supreme Court, who include Nicholas Kasirer (who was first appointed to the Quebec Court of Appeal by Harper) and Malcolm Rowe (who advised Conservative Fisheries and Oceans Minister John Crosbie from 1986 to 1992).

We have, in other words, avoided the sort of overt politicization of our highest court that has come to define — and may eventually destroy — America’s democracy. And for some reason, Conservatives want to see that change. “We need to stop the Supreme Court from weakening people’s rights,” then-UCP leadership candidate and former federal Conservative MP Brian Jean said last year. “That means electing a Conservative prime minister, for certain, and understanding that selecting judges is the most important thing we can do ... so we have people that align with our thoughts.”

David Parker, the founder of Take Back Alberta and a key player in the UCP government where Jean now sits as a minister, went even further. “The legal system in this country has been captured by radical leftwing extremists,” he tweeted, “who use it to impose their morality on the rest of the world. They must be stopped. We must remove these ideologues from all of our institutions, democratically.”

They fully intend, in other words, to weaponize Canada’s judiciary and the independent and apolitical appointment process that helps fill it out to further their own political ends. Expect that campaign to ramp up in the weeks ahead, as the Supreme Court is set to deliver its decision on the constitutionality of the Impact Assessment Act (a.k.a. Bill C-69) — one that Alberta’s Court of Appeal has already declared unconstitutional. As constitutional lawyer Martin Olszynski noted recently, “If that law is upheld as constitutional, expect a vicious but baseless smear campaign against our judiciary.”

It’s up to the rest of us to push back against that. Fighting for judicial independence may not be as sexy as battling for freedom or justice, but those are just two of the many things that can't and won’t exist without it.

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