Harper's Attempt To Politicize The Judiciary

More so than any Prime Minister in Canada's history, Harper is hell-bent on imposing his political agenda on Canada's courts.

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?

 

The Harper Government Attempts To Politicize The Courts

In the wake of a series of failed gambits involving the Supreme Court, we now find Harper attempting to assassinate the character of the Chief Justice.

"I can tell you this," said a clearly irked Harper, who appointed Nadon last September after commissioning independent legal advice that approved of the choice. 

"I think if people thought that the prime minister, other ministers of the government, were consulting judges before them or — even worse — consulting judges on cases that might come before them, before the judges themselves had the opportunity to hear the appropriate evidence, I think the entire opposition, entire media and entire legal community would be outraged," he said. 

"So I do not think that's the appropriate way to go."

Let us take a close look at Harper's statements here.  First, he is implying a similarity between a case that is before the courts and the deliberations of parliament with respect to making an appointment.  There is no such similarity, and Harper is lying to Canadians when he implies it.

An attempt on the part of a politician to lobby a judge regarding a case before the courts except as a witness before the court is clearly an attempt to confound the process of justice.  (This same principle applies to all participants in a litigation)  There is a very good reason for this, and that is to assure the public as a whole that justice is not only seen to be done, but that it is done independently of the influence of politics, wealth and other factors.  Harper is quite correct to say that had it come out that his office had lobbied the justices of the court with respect to a case before the court that the public would be outraged.

Appointments to the court, are done by parliament.  Parliament is a public body - it is responsible to the public, and its actions are subject to public scrutiny.  It acts on behalf of the public, and theoretically, in the public interest.  The proceedings of the elected bodies of parliament are inherently public through the publication of the Hansards, as well as records of committee proceedings.

This makes an appointment of a justice to the Supreme Court just as much a public proceeding as a debate over a piece of legislation.  Further, there is an existing process where in fact the committee is obliged to consult with the justices currently sitting on the court when appointing a new justice. 

McLachlin spoke to Harper "as a courtesy" last April to give him the retirement letter of justice Morris Fish, said the statement. 

She met with the parliamentary vetting committee on July 29 "as part of the usual process," then contacted Justice Minister Peter MacKay and the Prime Minister's Office on July 31 "to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court." 

McLachlin's office said it contacted the PMO to make "preliminary inquiries" about setting up a call or meeting with Harper on the matter, "but ultimately the chief justice decided not to pursue a call or meeting." 

"Given the potential impact on the court, I wished to ensure that the government was aware of the eligibility issue," McLachlin said in her statement. 

"At no time did I express any opinion as to the merits of the eligibility issue. It is customary for chief justices to be consulted during the appointment process and there is nothing inappropriate in raising a potential issue affecting a future appointment."

Let's take a close look at the Chief Justice's comments as well.  First, she met with the committee as part of the standard process.  So far, nothing abnormal or unusual here.  Then a couple of days later, she contacts the Justice Minister to raise a flag over the eligibility of Marc Nadon.  Raising a flag over a matter of this nature is perfectly legitimate, and I cannot imagine how this constitutes an unreasonable action on the part of Justice McLachlin.

In fact, what she is doing in raising the issue is warning the government that they could be creating a serious political landmine for themselves should they proceed with Marc Nadon as an appointee.  Had the government actually heeded her warning and proceeded with a different candidate, they would have saved themselves a public embarrassment.

Which brings me to Marc Nadon's appointment in the first place.  Outside of being apparently ideologically compatible with Mr. Harper, there is little or nothing about Mr. Nadon that makes him one of Canada's noteworthy legal professionals.  So, one might imagine that a lot of people would be wondering about why he was even a candidate outside of Harper's desire to push the court in a particular political direction.

As he has done in the past with other public figures who have stood against him, Mr. Harper is once again playing to his mean-spirited, vindictive side.

That writer, Tom Flanagan, now is back with a forthcoming book, Persona Non Grata: The Death of Free Speech in the Internet Age, that speaks of Mr. Harper in “Nixonian” terms, as a man who “believes in playing politics right up to the edge of the rules, which inevitably means some team members will step across ethical or legal lines in their desire to win for the Boss.” 

Anger Harper, or thwart his political objectives, and he comes out on the attack.  He's done it before, going as far as to fire Linda Keen for failing to obey his politically motivated desire to restart a reactor that was unsafe.  I'm sure that had he dared, he would have sacked Parliamentary Budget Officer Kevin Page long ago, except the political price of firing him would have been exceptionally damaging to Harper's political ambitions.

Getting into a spat with the Supreme Court justices simply reinforces that this is a thin-skinned politician who fails to respect the checks and balances that are central to this country's constitution.