By AdvocateDaily Staff

Toronto appellate lawyer Catriona Verner says that while Prime Minister Stephen Harper has the opportunity to stack the Supreme Court when he chooses two new judges this summer, she’s cautiously optimistic his track record indicates otherwise.

“Considering he picked Justices Cromwell and Rothstein, it’s definitely possible that he’s not going to take the most conservative judges. Though, of course, he was not in the majority at that point, and now he has a majority,” says Verner, an associate at Hicks Adams LLP.

In fact, Harper will dramatically reshape the top court because four more justices are set to retire before the end of his mandate.  Read More

While the criminal defence bar is said to be widely speculating on what will happen – with some fear – in terms of which direction Harper will take the court, for her part Verner says as an appellate lawyer, “it affects me more directly that most likely we’ll lose one if not two Ontario Court of Justice appellate judges.”

Because the two retiring justices hail from Ontario, the new picks will be from the same province. While Harper can reach out to the bar for his choice, it’s popular thought that at least one will come from Ontario’s appellate court.

But Harper could choose both from the province’s top court. Given the Rothstein and Cromwell choices, Verner says she isn’t sure what that telegraphs in terms of Harper’s possible selection from the Court of Appeal. He could take both from the province’s top court.

“My bigger fear is that he’s going to take some of the great judges from the Court of Appeal. That would really change the dynamic of the court, which is already quite conservative. So, losing a couple of the more liberal judges would definitely change what goes on at the Court of Appeal,” says Verner. “But, obviously it would be good to have those liberal judges at the Supreme Court giving direction to cases across Canada.

“For me, there’s mixed feelings as to who should end up moving for the benefit of the defence from the Court of Appeal to the Supreme Court,” adds Verner.

But is there any chance Harper will choose liberal judges? Says Verner: “It’s possible that he’s not going to take the most conservative judges.”

Verner notes that on the flip side, it’s possible that in the coming weeks judges will be more “conservative than usual because of these upcoming appointments.”

While some would argue judges are above that, Verner notes that, “In that case then it shouldn’t matter who goes to the Supreme Court because all the judges are all the same. Clearly that’s not how it works.”

Catriona Verner is an associate with Hicks Adams LLP where she manages the large appellate practice. She can be reached at (416) 975-1700 (ext. 232) or email at cverner@h-b-a.ca.

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