But there's another way to look at it, based on a view shared by Stephen Harper and others in his inner circle, that judges on Quebec's senior courts are too liberal and far too activist in applying the Charter of Rights and Freedoms as a check on the power of elected officials.Let's be clear about something here. Harper thinks that he should be able to write laws that violate our Constitution. He has done it multiple times, and so far the majority which have been challenged in our courts have been struck down. Every time, it is met with griping about the "will of Parliament being thwarted", which we should really understand to be "The Will of Stephen Harper has been thwarted".
But it's entirely consistent when you consider the broader signal the Harper government is sending to try to change a judicial culture it considers more liberal than conservative.
That change, apparently, includes the Supreme Court of Canada, even though Harper has already appointed five of the judges now serving there.
Last week, anonymous senior Conservatives complained to a Postmedia journalist that the court was thwarting the government's agenda. They alleged Chief Justice Beverley McLachlin had, last July, tried to lobby the prime minister not to appoint Nadon to her court.What Harper is overlooking in his drive to stack the court with judges that he thinks should be his political allies is that in today's Canada, the courts stand as part of the checks-and-balances in the Constitution that stay Parliament's hand from writing truly unreasonable legislation.
By "Parliament's will," the Conservatives really mean the prime minister and his cabinet — the executive branch of government. They are not fans of the Charter of Rights, introduced in 1982, and not fans of the powers it gave the judicial branch to hold government in check.
The prime minister made that clear last week when asked if McLachlin's court was holding up his political agenda.
"My view is that in our system post-1982 we have a system where the court has had an expanded role in judging the appropriateness of laws, not just under the traditional constitutional criteria but under the Charter,'' he said.What Harper sees as a constraint on his power is in fact a constraint, and a necessary one if his legislative track record is anything to go by. Of course, what Harper is likely equally ignorant of is that where the courts in Canada represent a check on his power, prior to 1982, the Privy Council and the Queen in England were that check, and a much less clearly defined check on the powers of Parliament.
Few things are as appalling as the current public smear campaign against the Chief Justice on the part of the PMO. This is nothing more than an attack on McLachlin's personal and professional credibility, driven solely by political frustration. Where Harper has a long history of going after the heads of agencies that frustrate him, or dismantling science research which happens to disagree with his politics, all of those agencies are subject to the direct will of Parliament. The Supreme Court, as one of the independent arms of government, enjoys protection from the "will of Parliament". While Harper can try to attack the Chief Justice personally, his ability to go after her beyond that is very limited.
It should worry Canadians deeply that the Harper Government is so ideologically driven that it finds the natural constraints present in our Constitution (which is a relatively young document, and therefore a reasonable reflection of the current norms of good governance) to be an impediment to its agenda. If those constraints didn't exist, what would he be doing to Canada?