Canadian Lawyer

16 N O V E M B E R / D E C E M B E R 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m once taught law at Western University, was appointed to the Ontario Court of Appeal in June. Miller is opposed to same-sex marriage. He is said to be an originalist who believes that constitu- tions should be interpreted according to the intentions of their founders (shades of United States Supreme Court justices Antonin Scalia and Clarence Thomas). Miller doesn't think that the framers of the 1982 Charter of Rights and Freedoms wanted to protect gay marriage because, after all, the Charter doesn't actually say that. Grant Huscroft, another former West- ern law professor recently appointed to the Ontario Court of Appeal, is also an originalist opposed to gay marriage. His appointment triggered similar criticism. (Hey, what's going on down there at the Western law school? How many more right-wing law professors are lurking in the faculty lounge waiting for the minis- ter of justice to call with senior judicial appointments on offer?) There's a dreary predictability about the criticism of these appointments. Most serious commentators on the Supreme Court, and judicial affairs in general, are politically correct left-wingers. Why this is, I do not know. These people behave as if appointing someone like Russell Brown, who thinks judicial power should be lim- ited, and is skeptical of the Charter' scope, and doesn't like same-sex marriage, is obviously inappropriate. Such appoint- ments, they seem to think, are subversive of the modern Canadian constitution, if not our very way of life. They are the work of a megalomaniac former prime minister who, just possibly, wanted to destroy the Supreme Court as we know it and impose his nutty view of the world upon us all. The commentariat's discontent extends to the appointment process, which, it is suggested, makes ideologically bad appointments possible in the first place. The argument against the current process goes something like this: Appointment to the Supreme Court should not be within the gift of an ideologically moti- vated prime minister (at least, not if he's a conservative). The prime minister should only be able to nominate a candidate (like the U.S. president). There should be serious public parliamentary hearings into a nomination, including a thorough interview of the candidate. Perhaps par- liamentary ratification of the candidate should be required. The public should know whatever there is to know about a candidate before he or she becomes a judge of the Supreme Court. If this were the appointment process, so the argument does, ideological and inad- equate judges wouldn't be foisted on us by a tyrannical prime minister who doesn't really believe in an independent judiciary. he Supreme Court commentariat — a motley crew of pundits, professors, and journalists — swung into action when Russell Brown of Alberta was appointed to the highest court last July. The appointment made the com- mentariat nervous. Brown is a conservative and a libertarian. He has opin- ions (naughty boy!) about issues that might end up before the court. To make things worse, he blogged about his opinions when he was a law professor. Thanks to his blog, we know that Brown is in favour of property rights (shudder!). He likes Stephen Harper. He thinks Justin Trudeau is "unspeakably awful." He's against exclusive state-provided health care. He doesn't like the Dalai Lama. The commentariat expressed similar negative opinions when Bradley Miller, who T O P C O U RT TA L E S O P I N I O N @philipslayton CHRIS WATTIE/REUTERS Judges are full of surprises The courts need judges with a variety of views so stop with the dreary, predictable criticisms. By Philip Slayton T Justice Russell Brown speaks during his welcoming ceremony at the Supreme Court of Canada in Ottawa October 6, 2015.

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