CITLALLY MACIEL
<News Editor>
On September 23, 2013, an email was sent to the Osgoode community reporting that its Assistant Dean Stribopoulos had been appointed a Justice of the Ontario Court of Justice in Brampton. Justice Stribopoulos will join a number of other Osgoode alumni who have been appointed a magistrate position.
Currently, one member of the Supreme Court of Canada is an Osgoode graduate, Justice Andromache Karakatsanis. About five members of the Court of Appeal of Ontario are Osgoode alumni. These include Associate Chief Justice Alexandra Hoy, Justice Michael Tulloch, and Justice Harry S. Laforme. The search for Osgoode alumni among the different courts would surely result in many more of individuals. However, the list above is a good indicator that Osgoode breeds individuals with “bench” material.
One observation is that a number of these individuals are trailblazers. For instance, Justice Tulloch is the first Black judge appointed to the Court; Justice Laforme is the first Aboriginal person appointed to any appellate court judge in Canadian history; and of course, Justice Karakatsanis is the first Greek-Canadian judge appointed to the Supreme Court of Canada. Another, curious observation is that a great number of these Osgoode magistrates were appointed by a member of the Liberal Party. What this peculiar fact says about Osgoode, Canadian politics, and the intersection of those two, I will leave it up to you to conclude.
Certainly, Canadian politics and Osgoode are not intersecting much these days. At least not when it comes to endorse Harper’s latest nominee to the Supreme Court of Canada, Justice Marc Nadon. This is not to say that a heated feud has arisen between the Osgoode community and Harper. Rather, the decision has been politely questioned. Professor Jamie Cameron, for instance, told The Globe and Mail that choosing a candidate whose expertise is admiralty law was “an odd choice, because it’s not a very strong match with the court’s core jurisdiction in public law, the Charter and criminal law.”
In fact, Osgoode is not alone in this respect. There are others who have also disfavoured this appointment. The objections stem not only from the fact that Justice Nadon’s background is incompatible with the background characteristic of the other members of the Supreme Court. The objections are also based on the fact that it is a male who is being appointed. In a recent interview with Peter Mansbridge, Chief Justice McLachlin was asked about Justice Nadon’s appointment. Chief Justice McLachlin acknowledged that the act of appointing Justices to the Supreme Court of Canada is the Constitutional right of a prime minister. Nonetheless, Chief Justice McLachlin stated that ”the court should be representative of society,” and that she is “all in favour of gender parity.” In the opinion of Chief Justice McLachlin, having female Justices serving Canada’s highest Court adds to its credibility.
Others are worried that the Supreme Court has already too many Harper-appointed Justices and the political influence this may have in the future decisions of the Court. Others point to the fact that the Court is not racially diverse. In an article published by Lawyer Magazine, Philip Slayton writes:
The problem is that the country moves on ideologically and demographically leaving the Supreme Court behind. The face of Canada changes, but the court doesn’t keep pace. Isn’t it about time, for example, that someone from a visible minority and someone from the gay and lesbian community sat as a Supreme Court justice? It remains a scandal that an aboriginal has yet to be appointed. The usual counter-argument to such a suggestion is “all that matters is legal ability,” but that retort is specious and simplistic…
On Wednesday, Justice Nadon told a special parliamentary committee that Canadian courts are “not another Parliament,” and that it is not up to judges to say whether a law is good or whether it ought to be changed. Although he recognizes that the Constitution sometimes gives judges the power to change laws, it will be interesting to see how open he will be to using this power. Critics point to his dissent in the Federal Court’s decision regarding the Omar Khadr case. A dissent that came to be at odds with that of the Supreme Court of Canada in terms of the manner in which the government treated Omar Khadr. The Globe and Mail cites examples of what it calls Justice Nadon’s “restrained” approach, such as the 2003 case where Justice Nadon overruled a decision that granted status Aboriginals with tax exemptions off-reserve; and his decision against granting full maternity benefits to an adoptive mother.
My two-cents: The role of the Court is greater than what Justice Nadon’s deems it to be. Regardless of his experience or “legal ability,” I will side with Chief Justice McLachlin. Nothing personal. As I always say, time will tell. In the meantime, congratulations to Justice Stribopoulos for this great achievement.