ELECTION FEATURE by Gregory Beatty
Justice of God, ah! who heaps up so many New toils and sufferings as I beheld? And why doth our transgression waste us so ? ― Dante Alighieri, Inferno
When it comes to court battles over the constitutionality of its legislation and executive decisions, the Harper government’s record isn’t much better than the Riders. In fact, 2W-11L might even flatter them.
One Supreme Court summary I saw had them at 2W-7L — and that was before the court unanimously struck down a Health Canada prohibition in June against Canadians using medical marijuana in non-smoked forms such as edibles, tinctures and teas.
The Harper government has also tasted defeat numerous times at the Provincial and Federal Court level (most recently, the niqab decision in September, permitting a Muslim woman to dress as she wishes to take her citizenship oath).
Prostitution laws, mandatory minimums for gun crimes, truth in sentencing and senate reform are other areas where the Harper government has been taken to the judicial woodshed.
The highest profile defeat was Harper’s bid to appoint Marc Nadon to the Supreme Court in 2013. A semi-retired federal court judge without standing in the Quebec bar, Nadon technically wasn’t eligible to represent Quebec on the court. But the government did some jiggery-pokery in an omnibus bill to make the appointment legal.
Not so fast, said the Supreme Court in a 6-1 ruling.
Both Harper and Justice Minister Peter MacKay (who’s not running for re-election) criticized the decision and accused Chief Justice Beverley McLaughlin of acting inappropriately by “lobbying” them before the Nadon appointment. In fact, all McLaughlin did was advise them the appointment likely contravened The Supreme Court Act.
Provision was made for a Supreme Court in the original BNA Act that established Canada as a country in 1867. The act itself was passed in 1875. Under it, the court has the power to review all federal and provincial laws. And its judgments are regarded as the definitive expression of Canadian law.
In other words, the court is a hugely important part of Canadian democracy, and Harper and McKay’s unseemly attack on McLaughlin prompted a group of Canadian lawyers and academics to complain to the Geneva-based International Commission of Jurists.
In its ruling, the ICJ held that the PM and Justice Minister had intruded on the “independence” and “integrity” of the Chief Justice.
Commenting on the decision, one of the backers of the complaint, University of Manitoba associate law professor Gerald Heckman said, “Judges have as one of their main roles ensuring that legislatures and governments and their officials act according to our law and Constitution. In doing that, they have to make a number of courageous and often unpopular decisions with social, economic and political dimensions that may attract the anger of the government in power. So it’s crucial that judges be protected and that they be perceived by Canadians to be protected from pressure.”
While the Supreme Court has long played an integral role in Canadian democracy, its scope of potential influence expanded greatly with the passage of the Charter of Rights & Freedoms in 1982.
Harper has a notorious disdain for the Charter. During his reign, both its 25th and 30th anniversaries passed without official recognition. “Harper hates the charter because it transferred power from Parliament to the people,” Michael Harris observed on iPolitics in June 2014. “There was a higher authority than the government of the day which he can’t accept.”
If the Harper government is re-elected, more legal defeats will surely occur. The Bill C-51 terrorist legislation, for instance, is extremely problematic with its major infringement of constitutional rights tied to freedom of speech, thought, association, liberty and more.
Harperites might rail about unwarranted judicial activism thwarting the democratic will of Canadians (as expressed by the 39.6 per cent of the popular vote the Cons snagged in 2011, which translates into about 17 per cent of the Canadian population), but remember: Harper has been in power for almost 10 years now, long enough to have appointed seven of the nine judges.
This is Harper’s Supreme Court, and even it consistently finds that the government, in its zeal to ram through its agenda, is acting outside the law.
With Harper’s most recent appointee, though, the ante may have been upped. Replacing Manitoba’s Marshall Rothstein as one of two Prairie reps in August, Russell Brown (as a University of Alberta law professor) blogged Wild Rose-style on such subjects as federal spending in the provincial realm of health care (he’s agin it), third party restrictions on election spending (odious and objectionable) and human rights commissions (puritanical functionaries).
With a mere two years experience as a judge, Brown, at age 49, is eligible to sit on the court until 2040.
Chief Justice Beverley McLaughlin, though, faces mandatory retirement on Sept. 7, 2018. And the question Canadians have to ask themselves is if they want Harper winning re-election and appointing her replacement?