Last week, Canada entered its 41st federal election. Voters will head to the polls in a few weeks on May 2. The contest will pit the incumbent Conservative Party, which held a minority in the last Parliament, versus the four major opposition parties: the Liberal Party, the separatist Bloc Québécois, the New Democratic Party, and the Green Party.
Unlike most recent federal elections in Canada, this one will be potentially quite significant for the future of the Canadian Supreme Court. The reason why is this: the next Prime Minister will have the power to appoint up to three or four new Supreme Court justices in his next term. Insofar as there are no formal checks on the Prime Minister’s appointment power–unlike, for instance, in the United States where the Senate must confirm the President’s nominees–the Prime Minister could very well reshape both composition of the Court and its ideological orientation.
By law, a Canadian justice must retire no later than her seventy-fifth birthday. [Section 9(2)]
Four current justices will reach that benchmark by the year 2015: (1) Justice Morris Fish will reach the mandatory retirement age on November 16, 2013; (2) Justice Ian Binnie will attain that age on April 14, 2014; (3) Justice Louis Lebel will have to retire by November 30, 2014; and (4) Justice Marshall Rothstein must retire by December 25, 2015.
Appointments to the Canadian Supreme Court have historically been much less politically charged than what we have seen in the United States. But the two protagonists in the current federal election–incumbent Prime Minister Stephen Harper and Opposition Leader Michael Ignatieff–both possess strong views about the role of judges and more broadly about the function of the Supreme Court. It would therefore not surprise observers to see the next Prime Minister depart from Canadian political tradition in order name more ideological judges to the Supreme Court, particularly if the new Prime Minister holds a parliamentary majority.
One could quite easily conceive of Stephen Harper appointing unabashedly conservative-minded judges who adhere to a minimalist view of the Court’s function. One could just as easily picture Michael Ignatieff, the celebrated human rights scholar, naming to the high court a cast of judges who believe deeply in the socially transformative possibilities of constitutional rights adjudication.
Either is possible. Which is why the Canadian federal election now underway will have important implications for the future of the Canadian Supreme Court.