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The Future of the Canadian Supreme Court-Part II

We may soon have the chance to see how Richard Albert's interesting prognostications regarding the future of the Canadian Supreme Court play out. Professor Albert's recent predictions on this blog concerning the possibility that Prime Minister Stephen Harper may bring an unprecedented dose of American-style conservatism to the Court take on new urgency and force, now that Harper has secured a majority government and, above all, with today's announcement that Justices Binnie and Charron will be retiring. The Globe and Mail, for one, has stacked its list of likely candidates with a number of conservative-leaning jurists, in the widespread expectation that Harper will use this opportunity to tilt the Court to the right. Justice Binnie's replacement in particular may be pivotal given his reputation as both an intellectual leader and a centrist. The Globe's coverage is here.


  1. An interesting aspect of this is how frequently Supreme Court of Canada justices opt for an "early retirement" instead of staying on the bench until they turn 75 (the mandatory retirement age for judges in Canada). MJ Charron (appointed to the Supreme Court in 2004) is stepping down at the age of 60. A few years ago J Bastarache stepped down at the age of 61, having served as a Supreme Court of Canada Justice for 11 years. Having been appointed to the Supreme Court in 1999, MJ Louise Arbour stepped down in 2005 to assume the role of UN High Commissioner for Human Rights. In the USSC, by contrast, the practice of stepping down while a judge is in his or her early 60s is very rare. This may be indicative of how differently judges in the two countries view their position (dedicated civil servants that "have a life" versus shrine-like philosopher-kings appointed for life).

  2. David, this is interesting indeed.

    I wonder whether you think this is a good development for Canadian constitutional politics.

    Setting aside whatever one may think about the particular direction toward which an ideological prime minister might tilt the judiciary, could one argue that ideological appointments are good insofar as they sharpen for Canadians the stakes involved in Supreme Court appointments? On this view, the salutary consequence would be to reveal, for all to see, that the business of the Court is just as much politics as it is law.

    You and Ran are both scholars of political science and law. I suspect you would have some interesting thoughts about this.

  3. I am wondering, as I do each time there is a vacancy on the Supreme Court of Canada, why there is so little concern about the role of provincial governments in the appointment process. The Meech Lake and Charlottetown accords provided for such a role given the role of the Court in interpreting the division of powers. Moreover, a role for the Government of Québec is the official position of the Québec Liberal Party. Yet the idea has all but disappeared. Why?

    Patrick Fafard, University of Ottawa


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