Paul Martin's stunning conversion to old-school liberalism during the June election campaign included a bunch of references to the two Supreme Court vacancies that will soon cry out for filling. Sure, we all suspect Harper of harbouring Bush-like ideological designs on the big bench--but we've yet to see a lot of evidence that Martin will replace gonzo Charter-hawks Arbour and Iacobucci with like-minded activist-types.
Maclean's has a decent article on the current debate surrounding the Court. Who might be in the line for the hot seats?
Maclean's has a decent article on the current debate surrounding the Court. Who might be in the line for the hot seats?
Appointing Gillese would be a brave and emblematic move on Martin's part, which is why it's so unlikely. In December of last year, The Globe and Mail named Gillese, along with Ontario Chief Justice McMurtry and Judge MacPherson, as the paper's "Nation Builders of the Year," in recognition of the wisdom and courage behind their June 10 court decision in favour of equal marriage. "This case is ultimately about the recognition and protection of human dignity and equality," the judges wrote in their historic decision. The Globe noted:By law, justices are chosen from superior court judges or from lawyers with at least 10 years' experience. Traditionally, replacements come from the same province as the departing justice -- that's Ontario for both Arbour and Iacobucci. Possible candidates from the Ontario Court of Appeal: Rosalie Abella, the first Jewish female judge in Canada; Louise Charron, a bilingual francophone; David Doherty, considered an expert on criminal law; Eileen Gillese, a Rhodes Scholar and one of the three judges who ruled unanimously in favour of same-sex marriage in 2003; and John Laskin, son of former Supreme Court chief justice Bora Laskin, who has wide expertise in constitutional, criminal and business law.
Possible candidates from Ontario's legal community include: Peter Hogg, a leading constitutional expert; David Scott, the first Canadian president of the American College of Trial Lawyers; Marlys Edwardh, whose background is in criminal law; and Sheila Block, a civil litigator of note.
The Court of Appeal ruling was an example of the willingness of the nation's judges to go with speed and precision where politicians only dither. In a year when Canada drew a forceful line with the United States by refusing to join the war in Iraq and moving ahead with the decriminalization of marijuana, the legalization of same-sex unions was the most concrete sign of the country's determination to be a socially liberal place, where differences can be celebrated and choice will be honoured.
A similarly inspiring choice would be Justice Rosalie Abella. Born in an IDP camp in Germany to Holocaust survivors, she came to Canada as a refugee, and became not only the youngest judge in Canada, but the first Jewish female judge and the first pregnant judge in the country's history. She was sole Commissioner and author of the 1984 federal Royal Commission on Equality in Employment, where she coined the term “employment equity." The theories of “equality” and “discrimination” she put forward in her report were adopted by the Supreme Court of Canada in its first decision dealing with equality rights under the Charter of Rights and Freedoms, and has since been implemented in Canada, New Zealand, Northern Ireland and South Africa.
Marlys Edwardh, currently one of the senior counsels representing Maher Arar at the federal commission of inquiry, and Sheila Block, chair of the Toronto litigation practice at Torys and a former CCLA board member, would also be great picks. If only Martin's lame-ass performance in promoting women to Cabinet hadn't exposed the slim-to-none chances of two deserving women reaching the Supreme Court together.