Tories appoint two conservative law professors as judges by Sean Fine, December 17, 2014, The Globe and Mail
Justice Minister Peter MacKay has appointed two of the country’s most conservative law professors as judges in Ontario, one of whom has publicly criticized the court he is about to join. The appointments come in a year when Ottawa has faced controversy over judicial appointments, and for suspending parliamentary hearings into new Supreme Court judges.
Grant Huscroft, who teaches constitutional law at Western University in London, Ont., will become the first non-judge named to the province’s highest court since the Conservative government came to power in 2006.
He said in a 2012 television interview that judges on the Ontario Court of Appeal – the court he is joining – went too far when they described the Conservative government’s mandatory minimum sentence of three years for illegal gun possession as cruel and unusual punishment and struck it down.
In a newspaper comment piece, he also denounced the Supreme Court’s rejection last spring of a judge appointed by Prime Minister Stephen Harper, calling the 6-1 ruling in the case of Justice Marc Nadon “as bad a decision as the court has made in recent memory.”
Prof. Huscroft, who co-edited a 2004 book on the Constitution with Mr. Harper’s first chief of staff, political scientist Ian Brodie, has taken a public position on other hot-button issues, such as assisted suicide, saying there is no need for the Supreme Court to second-guess the judgment of Parliament.
The government also appointed Bradley Miller, another conservative constitutional specialist from Western, to Ontario’s Superior Court of Justice, the province’s top trial court. Prof. Miller espouses a form of “originalism” – a view of the Constitution held by conservative judges such as Antonin Scalia and Clarence Thomas in the United States, but almost totally rejected in Canada. (Originalism holds that the Constitution means what its authors wanted it to mean and should not be interpreted based on later social changes, whether in 1982 in Canada or in 1787 in the United States.) Prof. Miller and Prof. Huscroft co-edited a book called The Challenge of Originalism in 2011.
Reaction to the appointment from the legal community was varied. A Toronto criminal lawyer was upset, saying the government has ignored excellent lawyers for years for Ontario appeal court positions. (The lawyer did not wish to be named, expecting some day to appear before the new judges.) A senior judicial source, who also did not wish to be named, was also critical. “If you were trying to identify the leading constitutional scholars of the far right, you’d probably have Grant Huscroft at the top of the list,” the source said, calling him “anti-Charter [of Rights] and basically, anti-equality rights.” [Emphasis added]