Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m N O V E M B E R / D E C E M B E R 2 0 1 5 17 Time for a mea culpa. I've made all these points myself, often, and over a long period of time. But, if only out of sheer weariness, I'm ready to recant. I've seen the light. There are obviously many views in Can- ada on just about everything (that's a good thing), including on how to interpret the constitution and on major social issues. It's not right to have only one view reflected on the Supreme Court of Canada. You may not agree, for example, that "policies that tend to undermine the norms of marital permanence and exclusivity — as same-sex marriage, polygamous marriage, and poly- amorous unions arguably do — ought to be avoided" (that was Miller in 2011). But you can't convincingly argue that no thinking person could have this view, and anyone who has it is ipso facto an unacceptable candidate for judicial appointment. Getting back to the current SCC appointment process, critics of it say that if a prime minister hangs around long enough to appoint a majority of judges (Harper appointed seven of the current nine), then only one view on key issues, the prime minister's view, will end up being represented on the court. If this were true, it would be the best argument of all for reform. But it's not true. It ignores a great truth. You cannot predict how a judge will behave once he is safely appointed, once he is off the leash. It was a Supreme Court with a Harper- appointed majority that ruled Marc Nadon, an attempted Harper appointment, ineli- gible for a seat on the court; that rejected the prime minister's plans to reform the Senate; and struck down the Criminal Code provi- sion against assisted suicide. It is a Supreme Court largely appointed by Harper that he came to see as his greatest enemy. Nowhere is the great truth more evident than in the United States. Republicans love to list the Republican-appointed Supreme Court judges who betrayed them: chief jus- tice Earl Warren, William Brennan, Harry Blackmun, David Souter, John Paul Stevens, Anthony Kennedy. Now, bizarrely, Chief Justice John Roberts seems to have been added to the list of ideological traitors. The Wall Street Journal recently editorialized that Roberts is "moving pointedly to the left" (after all, he voted twice to uphold the Affordable Care Act). Conservatives have buyer's remorse about Roberts. They say he didn't get the memo. Railing against a judicial appoint- ment on ideological grounds is generally wrong and normally pointless. Get used to the fact that your point of view is not the only one that deserves expression. Accept that, in any event, judges are full of surprises. Remember, as the poet said, "The best lack all conviction, while the worst/Are full of passionate intensity." Philip Slayton's new book is Mayors Gone Bad. IT IS A SUPREME COURT LARGELY APPOINTED BY HARPER THAT HE CAME TO SEE AS HIS GREATEST ENEMY. Fast and Slow Thinking: Strategies and Tools to Enhance Decision Making December 3, 2015 vP 3.0 | S 1.0 Ethics in Negotiation December 14, 2015 vP 3.0 | S 0.5 Writing for Results: A Workshop for Legal Professionals December 17, 2015 vP 3.5 1/2 DAY WORKSHOPS - In Person LUNCH HOUR WEBINARS - Online Ethics in Personal Injury Law: Assessing Capacity 1RYHPEHUvP 1.25 Dealing With Self-Reps in Family Law 1RYHPEHUvP 1.25 Practice Management Webinars Series: Building Win/Win Client Relationships December 1, 8 & 15, 2015vP 3.75 (1.25/session) Ethics and Expert Witnesses 'HFHPEHUvP 1.25 Judges' Top Tips on Civility in the Courtoom 'HFHPEHUvP 1.25 OSGOODEPD HAS THE CPD YOU NEED, WHEN YOU NEED IT A WORLD LEADER IN LAW SCHOOL LIFELONG LEARNING Priority Service Code: 15-99CL OsgoodePD has been approved as an Accredited Provider of Professionalism Content by the LSUC. CAN'T MAKE THESE DATES? Programs offered Online will be available On Demand after the program date. See a complete listing of programs at osgoodepd.ca/cpd2015 * P = Professionalism hours; S = Substantive hours Untitled-2 1 2015-10-29 12:58 PM

• Cover