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Ever since the Charter of Rights and Freedoms came into force in 1982, Canadian conservatives have had an unhappy relationship with Canada’s Supreme Court. The charter’s guarantees of equality rights and security of the person opened a Pandora’s box of legal challenges by feminists, gay rights organizations and welfare rights groups.

Social conservatives cringed as the Supreme Court struck down Canada’s abortion law and read same-sex rights into the charter’s equality rights section. Fiscal conservatives gasped as the court split 5-4 on the issue of guaranteeing a ‘right’ to a minimum level of subsistence. And like many other Canadians, conservatives of all stripes gritted their teeth at decisions allowing prisoners to vote and striking down Criminal Code provisions on child pornography.

So when the Tories got into government in 2006, they — and their voters — had the High Court squarely in their sights. Within a year of taking office, the government abolished the Court Challenges Program, which had bankrolled several of the cases listed above. Created by Pierre Trudeau in 1977 to fund minority language court challenges to Quebec’s Bill 101, the program had ballooned into a multi-million-dollar fund deployed by liberal and left-of-centre interest groups to advance their agendas through the courts. The Conservatives replaced it with the Language Rights Support program, with the original limited mandate of supporting minority language rights challenges.

Harper also turned his attention to the Supreme Court appointment process. Nominees must now participate in public hearings — not nearly as confrontational as those required of their colleagues in the United States, but light years more transparent than the former process, which involved little more than a press conference or news release from the PMO.

Nadon was ‘on side’ with the federal government in the Omar Khadr affair, but that alone isn’t enough to label him a rabid right-winger. Nor is it enough to really justify the amount of hot water the government got itself into.

Most importantly, however, the Conservatives have had the opportunity to shape the composition of the court itself. Of the nine judges sitting at the time Harper took office in 2006, six have since either hit the mandatory retirement age of 75 or retired early. Harper’s first appointment was Federal Court of Appeal Judge Marshall Rothstein in March of 2006. This was followed by Nova Scotia Court of Appeal Justice Thomas Cromwell in 2008, Ontario Court of Appeal judges Michael Moldaver and Andromache Karakatsanis in 2011, and Quebec Court of Appeal Judge Richard Wagner in 2012.

Of these judges, only four were really Harper’s picks; Rothstein was shortlisted by the previous Liberal government of Paul Martin. As for the other four, they cannot be described as either right- or left-wing. None came in with serious ideological leanings — unlike their colleague Rosalie Abella, or former justices Louise Arbour, Morris Fish and the late Bertha Wilson, all of whom were appointed by Liberal governments. (It should be noted that another notable ‘progressive’ former SCC jurist, Claire l’Heureux Dubé, was appointed by the Progressive Conservatives in 1987.)

Which brings us to Harper’s latest choice, Justice Marc Nadon. Even before his appointment, the PMO sensed trouble. The government sought an opinion from two former Supreme Court justices and a noted constitutional expert as to whether Nadon, who sat on the Federal Court of Appeal, could fill a vacancy reserved for Quebec. The province is guaranteed three seats on the Supreme Court due to its distinct system of civil law, and though Nadon practiced there for 20 years, Quebec government lawyers argued this week that he needed to be a “current” judge and member of its bar to qualify for the Supreme Court.

Why has Harper gone to bat for Nadon? Ideologically, the judge was ‘on side’ with the federal government in the Omar Khadr affair, writing a dissenting judgment that stated: “Whether Canada should seek Mr. Khadr’s repatriation at the present is a matter best left to the executive.”

But that alone isn’t enough to label him a rabid right-winger. Nor is it enough to really justify the amount of hot water the government got itself into, with Nadon’s appointment now in limbo while critical cases, including the Senate reference, are decided.

The facts show that the Conservatives haven’t created a right-wing High Court. Rather, they redressed a decades-old imbalance that saw its caseload and composition tilt to the left. What Canadians now have is a balanced, if rather bland bench. Unfortunately for Harper, the Nadon bungle will make it appear otherwise.

Tasha Kheiriddin is a well-known political writer and broadcaster who frequently comments in both English and French. In her student days, Tasha was active in youth politics in her hometown of Montreal, eventually serving as national policy director and then president of the Progressive Conservative Youth Federation of Canada. After practising law and a stint in the government of Mike Harris, Tasha became the Ontario director of the Canadian Taxpayers Federation and co-wrote the 2005 bestseller, Rescuing Canada’s Right: Blueprint for a Conservative Revolution. Tasha moved back to Montreal in 2006 and served as vice-president of the Montreal Economic Institute, and later director for Quebec of the Fraser Institute, while also lecturing on conservative politics at McGill University. Tasha now lives in Whitby, Ontario with her daughter Zara, born in 2009.

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