Recently, Prime Minister Harper appointed Québec Judge Clement Gascon as the newest Supreme Court Justice. What is interesting about this appointment is that it was not Harper's first choice. At the end of last year he appointed Justice Nadon to the court. This appointment was highly criticized due to Justice Nadon’s lack of experience and the fact that he was already retired. It appeared the appointment was more about his political affiliations then his resume. That appointment was challenged in the Supreme Court over the issue of Justice Nadon’s Québec affiliation (the latest judge appointed, by law had to be from a Québec court). In June of this year the Supreme Court informed our Prime Minister that Justice Nadon was ineligible. After much delay, Justice Gascon was appointed to our highest bench. What is unique about his appointment is that the vacancy he filled was open for more than a year - the longest in the court's history and that his appointment was done without any review by a parliamentary committee or any public hearings. Normally a 5 person panel of 3 government MPs and 2 opposition MPs prepare a list of potential candidates that is given to the Prime Minister's office to pick the final appointment. In Justice Gascon's case, the Prime Minister's office chose their candidate without any input from Parliament or parliamentary hearings. Fortunately despite the lack of review, Justice Gascon an expert in commercial law is considered well-qualified for this position within the legal community. It does raise the question though – Why did the PM act unilaterally when his candidate would likely have been approved?
The Conservatives law and order agenda continues to suffer many judicial setbacks and many more legal battles are raging over various legislation they've implemented in the last few years. Recently an Ontario court struck down the mandatory victim surcharge as unconstitutional. The Supreme Court has also ruled the Conservatives do not have the right to unilaterally change the Senate composition without changing the Constitution itself. There have also been decisions striking down the Conservatives legislation regarding pretrial custody, mandatory minimum sentences for guns and the prostitution laws. Future legal battles will include challenges to the Conservative’s bills regarding new citizenship laws, prostitution laws, and not criminally responsible laws. It is widely held in the legal community that the new legislation enacted by Parliament regarding these issues will not stand up to constitutional challenge.
The Conservative government has time and time again enacted legislation designed to be “tough on crime”. Thankfully our courts have continued to strike down legislation that violates our constitutional rights and continues to protect Canadians from the tyranny of this majority government. Perhaps in the future the government might consider consultation with the legal community rather than shooting from the hip and enacting legislation that sells politically but is clearly unconstitutional.
Shawn Swarts is a lawyer at the law firm of Cobb & Jones LLP. Should you have any questions for Ask A Lawyer, please direct them to the Simcoe Reformer or ask a lawyer of your choice. For more articles, visit the Library page at www.cobbjones.ca.