PARLIAMENT HILL—MPs and human rights lawyers say they expect Prime Minister Stephen Harper will attempt to swing the pendulum of Supreme Court of Canada rulings toward the prevailing views of Conservative Party supporters as he fills the court’s two vacancies in a secretive and high-stakes process that begins its final stages this week.

An ad hoc panel of MPs from all three main parties in the Commons will meet Thursday on Parliament Hill behind closed doors to review a list of potential nominees that Justice Minister Rob Nicholson (Niagara Falls, Ont.) will present them for an advisory opinion on their candidacy.

The MPs will be sworn to secrecy about anything that transpires in the hearing, including the names of the candidates, as they reduce the pool of candidates to an unranked list of six from which Mr. Harper (Calgary Southwest, Alta.), in collaboration with Mr. Nicholson, will eventually choose the final nominees to fill the court’s two vacancies for Ontario.

But an Ottawa law professor, NDP MP Don Davies (Vancouver Kingsway, B.C.), and the chief legal counsel for the Canadian Civil Liberties Association told The Hill Times they believe one of the government’s most controversial legislative initiatives in the past year—a sweeping bill that drastically reduces the rights of refugee claimants arriving on Canada’s shores—will likely take centre stage in Mr. Harper’s deliberations over the appointments.

Mr. Davies, a lawyer, Canadian Civil Liberties Association lawyer Nathalie Des Rosiers, and University of Ottawa law professor Errol Mendies said the refugee bill, as well as sweeping provisions of a separate omnibus crime bill the government plans to table this fall, will inevitably be challenged under the Charter of Rights and go to the Supreme Court of Canada for a ruling on its constitutional validity.

“It’s clear that they will appoint people that they think have a vision of society that’s closer to theirs, I don’t think that’s too surprising,” said Ms. Des Rosiers, chief house legal counsel for the CCLA. “What we will be looking at though is, I think, that it would be highly inappropriate in the context of the questions posed to the candidates to ask for their opinion on theses bills, otherwise it pre-judges the issues and would prevent, I think, parties [who eventually challenge them in the Supreme Court] from having the feeling of being truly heard.”

“Certainly I think we expect a more conservative selection, in terms of outlook, nevertheless, I think we would want and we would hope for candidates with an open mind that are willing to uphold the Constitution of Canada,” said Ms. Des Rosiers.

Ms. Des Rosiers pointed to a provision of the refugee bill that would allow refugee claimants to be detained for up to a year without outside review, essentially at the discretion of ruling on their status by the Immigration minister, as one of the aspects that violates Canada’s Constitution.

NDP MP Joe Comartin (Windsor-Tecumseh, Ont.) told The Hill Times he will be in Ottawa to attend the review panel hearing on Thursday evening on behalf of his party as its justice critic.

The office of Liberal MP Irwin Cotler (Mount Royal, Que.) confirmed Mr. Cotler was flying home on Wednesday from a visit to Israel to take part on behalf of his party.

A press aide to Mr. Nicholson, Andrew Bernardo, described the details of the vetting system but did not provide names of the Conservative MPs who will take part.

Immigration Minister Jason Kenney (Calgary Southeast, Alta.) first tabled the refugee bill last year following two high-profile arrivals of cargo ships carrying several hundred Tamil migrants seeking refugee asylum on Canada’s West Coast.

Public Safety Minister Vic Toews (Provencher, Man.) personally attended arrest and disembarking procedures for Tamils aboard the Thai cargo ship Sun Sea, and the Conservatives played the incident up as they began laying the ground for an election campaign, ranking the refugee and human smuggling legislation high up as part of the party’s tough-on-crime platform.

Mr. Davies said the build-up and continuing Conservative attempts to portray Canada under threat from illegal migrants and asylum seekers, including the recent controversy over Mr. Kenney’s highly-publicized arrest and detention warrants for 30 foreigners, is a sign that despite general appreciation for the Conservative government’s first two Supreme Court appointments since 2006, Mr. Harper may now believe the time is right to strike a court balance that his party’s base has been expecting since he first took power.

“One of many attacks on C-4, before Parliament now, is it will in fact violate the charter,” Mr. Davies said. “It has provisions in it for detentions without review that have already been identified by constitutional lawyers as being unconstitutional. What that makes me cautious about is, will the Harper government try to appoint people who would be less likely to take a robust interpretation of the Charter? There is some evidence of that, because members of the government, Harper himself and other members of government, are on record stating that they prefer a less interventionist court.”

Mr. Mendes, a strong critic of the government’s single-minded conservative approach to criminal justice, said he is hopeful that Mr. Harper may resist the temptation to begin stacking the court with jurists who he expects would be predisposed to Conservative views on criminal law, the penal system, and treatment of refugee seekers.

“There is the potential for Harper to understand that there has to be one institution that does not become politically partisan the way, for example, the United States Supreme Court has become, much to the detriment of the rule of law and indeed the political system in the United States,” Prof. Mendes said. “I think if he realizes he cannot have the top court of the country become another political institution that he will tread carefully.”

The Ontario vacancies on the Supreme Court were created earlier this year with the retirements of Justice Louise Charron and Justice Ian Binnie.

Normally, a prime minister names members of the federally appointed provincial appeal courts to the Supreme Court, and Mr. Harper has so far had the opportunity to appoint only four judges to the Ontario Court of Appeal—Chief Justice Warren Winkler, in 2007; Justice Gloria Epstein, also in 2007; Justice Andromache Karakatsanis in 2010; and Justice David Watt, first named to the Ontario Superior Court in 1985 by then Progressive Conservative prime minister Brian Mulroney and named to the Court of Appeal by Mr. Harper in 2007.

For gender balance, either Justice Epstein, Justice Karakatsanis or Justice Karen Weiler, named to the appeal court by Mr. Mulroney in 1992, could carry on Justice Charron’s representation in that regard.

It has been reported that Mr. Harper may wish to be the first prime minister to appoint an aboriginal person to the Supreme Court, and  observers have mentioned Justice Harry LaForme, a member of the Mississaugas of New Credit First Nation near Toronto, as one of the potential candidates.

tnaumetz@hilltimes.com

The Hill Times