Reference Cases Are Not The Problem

Over at iPolitics, James Matkin and Clive Cocking are busy moaning about how the Supreme Court "kills innovative legislation" in the form of "reference cases".

The basic thesis of their argument is that we need to take away from the Supreme Court of Canada the ability to hear "reference cases".  A reference case is fundamentally a hypothetical case - a "what if we wrote legislation like this" test.  For most Canadians, the most recent "Reference Case" was Harper's "Senate Reform" gambit, which got smacked around for violating various aspects of the division of powers in the Constitution.

Matkin and Cocking complain that these reference cases effectively drag the Supreme Court into the political discourse where it has no business being.

I respectfully disagree with their analysis of the situation.  The problem is not reference cases at all, but rather the manner in which the current government has approached the matter.

Since 1875 the federal government has dumped an astounding 75 reference cases into the lap of the court. Many of them have involved the thorniest of political issues, such as Quebec secession or Senate reform.

Quite frankly, if in 139 years, we have put 75 cases before the Supreme Court of Canada, that's not exactly a huge amount.  Thats one every couple of years, roughly, and for the most part, those have been legitimate cases of the government's lawmakers asking very real questions about the legitimacy of a given legislative approach to a problem under this country's Constitution.

On the whole, it has been quite useful when one examines it as a tool to help lawmakers (who are seldom experienced members of the judiciary) to consider the implications of legislation they are considering, or for that matter the more subtle aspects of constitutional law (as the 1998 Quebec Secession reference addressed).  Given the speed with which the court system moves as a whole, there is much to be said in favour of a reference case being heard - not the least of which is to serve as a baseline for guidance as to how a court would look upon a particular issue in the future.  While these are definitely theoretical moments, it takes years (and millions of dollars) to litigate an issue to the Supreme Court to have it overturned on charter or constitutional grounds.   When it is something which could have been avoided by simply asking the obvious questions up front, it saves all involved an enormous amount of grief (and money).

Citing Harper's Senate reference as an example, Matkin and Cocking seem to believe that Harper should have just legislated as he wished and then have the whole mess before the Supreme Court.  One doesn't have to be a Constitutional scholar to realize that Harper's entire approach to the Senate violated multiple articles of Canada's Constitution.  Since Harper has shown repeatedly that he has no interest in writing laws which respect Canada's constitution, one could arguably say that the reference case saved Canada millions in litigating the matter.

Harper has tried to use this to claim that Senate reform is "impossible".  Of course, what Harper is really saying is that he is unwilling to engage with the provinces to make the amendments needed to achieve his vision of a reformed Senate in Canada.  Since 2006, Harper has not once met with all the provincial Premiers.

Justice Frankfurter of the U.S. Supreme Court rightly described such advisory opinions as “ghosts that slay”, particularly innovative legislation. Our Parliament has repeatedly used this legal device to dodge its duty to act on tough issues. One of the most craven examples was the federal government’s 2011 decision to let legislation creating a national securities regulator die stillborn in the face of a negative Supreme Court reference opinion – when three sections of the constitution give Parliament adequate trade and commerce powers to enact such legislation.

Oh ... it kills "innovative legislation"?  No more than writing that legislation and having it struck down as a result of subsequent litigation.  Again, the example that the authors cite is another case where Harper and his government would have to engage with the provinces directly in order to develop an acceptable model.  Harper refuses to engage with anyone outside his inner circle in the PMO, and he is incapable of developing any kind of meaningful compromise.

The problem is not reference cases, nor is it the politicization of the Supreme Court that they argue arises from such cases.  The problem is a government which has no respect for the Constitution of Canada and a Prime Minister who is unwilling to actually engage with the provinces.  Harper is the problem, not the reference cases.

How Harper Wastes Your Tax Dollars

Harper likes to style his government as a "firm, steady hand on the tiller", especially on matters of the economy.

But the man is so blinded by his hatred for our country's laws and the foundational principles of the Canadian Constitution and The Charter of Rights And Freedoms that he simply writes legislation that is based solely on his ideology.

The net result:  unjust laws that are in fact illegal under Canada's Constitution, and millions of dollars spent trying to sustain those laws before the courts of the land.

June 2014: Supreme Court upholds privacy rights
April 2014: Feds can't go it alone on Senate reform
April 2014: Judges have discretion on sentencing
March 2014: Medical marijuana users win injunction
March 2014: Early parole abolition repealed
March 2014: Marc Nadon rejected by Supreme Court
December 2013: Court strikes down prostitution laws
November 2013: No mandatory minimums for guns
September 2011: Supervised injection clinic remains open

... and those are just the cases the court has ruled on.  There is more before the court, and more challenges yet to come based on legislation that this government has rammed through.  Including the "Fair Elections Act", "The Strengthening Canadian Citizenship Act", and the "Protection of Communities and Exploited Persons Act" for starters.  

There's more, including a "cyberbullying bill" that is really just a trojan horse for widespread surveillance without warrant, and a litany of evilness that has been rammed through as part of "budget omnibus bills" which should never have been given the time of day.

Fiscal prudence?  Hah!  

This is government by ideology.  Harper views the Constitution of this country as an impediment, not as a framework.  

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.

Mr. Harper: Can You Even Read?

If I didn't know better, I'd swear that Harper doesn't know how to read a legal decision.  Yesterday, in Question Period, Harper said the following:

“The Supreme Court has ruled in its wisdom that the federal government can neither abolish the Senate nor, in fact, can the federal government actually propose reforms -- significant reforms -- to the Senate,” Harper said in the House.

This is complete nonsense.  The Supreme Court ruled that the Federal Government cannot unilaterally alter the Senate.  In other words, the Supreme Court ruled that changes to the Senate require the government to work in the framework of the Amending Formula embedded in the Constitution of Canada.

“That is all now, according to the Supreme Court of Canada, within the purview of the provinces. So my position has not changed. If the provinces believe as I do that there should be reform, they should bring forward those reforms forthwith. If they don’t believe that, they should bring forward amendments to abolish the Senate.”
Read more: http://www.ctvnews.ca/politics/provinces-should-propose-senate-reforms-forthwith-harper-says-1.1798071#ixzz30NXb5Yo6

Apparently, this is as close to negotiating consensus as Harper can get.  Acting like a petulant little child who has just been told "no, you can't have all the cookies", he tries to shift responsibility to somebody else.  In this case the provinces.

Frankly, if Harper wants to change the Senate, he is responsible for putting forth a vision for what a revised Senate should look like, and then work with his peers - the provincial premiers - to come to a consensus.  If he cannot build consensus among the provinces, that is his failing.

The amending formula for Canada's Constitution is a neatly crafted package which ensures that you can't make arbitrary changes to it without actually engaging with the rest of the country.  It requires that someone be able to foster consensus among the provinces to make amendments.  This is a good thing - it stays the hand of an autocrat, and requires actual leadership to achieve meaningful change.

Brian Mulroney was at least willing to try.  Both the Charlottetown Accord and Meech Lake Accord ultimately failed, but not because Mulroney was unwilling to negotiate with the provinces.  Instead, Harper sits there and acts like a petulant little child because the Supreme Court essentially told him to go do his job as Prime Minister.

Stephen Harper's legacy will be the redemption of Brian Mulroney.

Further Analysis On Marc Nadon's Appointment

Marc Nadon is, for now at least, out of the picture as far as Canada's Supreme Court is concerned.

Frankly, I know very little about Justice Nadon's beliefs and history as a judge.  I wouldn't be at all surprised if he happened to lean towards Mr. Harper's "hang-em-high" approach to justice - generally speaking Harper is far more prone to basing his appointment decisions on ideology and politics than other Prime Ministers in our history.

However, the Supreme Court's ruling on Nadon's appointment is not about Mr. Nadon or Mr. Harper's views on justice.

The Supreme Court's ruling is very interesting as it went after many of the same issues that I suspect strongly affect Harper's desires to unilaterally amend the Senate.  In effect, in appointing Mr. Nadon, Harper was ignoring a set of rules that had been clearly established for over a century.

The government does not have the authority to amend the Act, wrote six of seven judges, saying "the unanimous consent of Parliament and all provincial legislatures is required for amendments to the Constitution relating to the 'composition of the Supreme Court.'"

Frankly, it comes to me as no great surprise that Mr. Harper and his gang are once again attempting to modify the structure of government without regard for the laws of Canada and the Constitution of this nation.  First, Harper is not a lawyer.  He never has been, nor has he shown any particular interest in coming to understand the finer points of law.

Second, and more concerning, is that Harper is an ideologue.  His government has repeatedly pushed through laws only to have them struck down by the Supreme Court time and again - often on Constitutional grounds.  He doesn't guide his ministers to legislate effectively and within the framework of Canada's legal systems, but rather is attempting to forge an entirely new system by writing tons of laws and hoping that they stick.

Fundamentally, he's using the same tactics that we see the far right in the United States using - throw tons of obviously ridiculous legislation into the system, and hope that enough manages to survive to fundamentally change the underlying structures beyond recognition.

At this point, I'm beginning to suspect that the first step in undoing the appalling damage that this government is doing to Canada and its legal systems is going to have to be an omnibus bill that rescinds 95% of the legislation pushed through since 2006.  Most of it is unconstitutional, and of the remainder, much of it is just plain cruel and punitive.

Harper Loses 2 Gambits In 2 Days

Harper has lost two gambits to undermine Canada's legal system in two days.

First, an attempt to make prison sentences harsher by retroactively killing an early parole program was knocked down yesterday.

Then, this morning, the Supreme Court swatted down Harper's appointment of Marc Nadon to the Supreme Court.  Even after attempting to change the rules to make Nadon "eligible" by amending the Supreme Court appointment rules in one of their infamous "Omnibus Bills".

These two occasions tell us a lot.  In nearly a decade in power, Harper and his band of goons still do not understand the framework of laws in this country.  One could argue that they do not care, and be at least partially correct.  Harper's disdain for the law and due process are well known.  

Standby On The Fainting Couches ...

This morning, the Supreme Court of Canada struck down our countries archaic laws on prostitution.

Predictably, the Con$ who report to PMSH are wagging their fingers at the Supreme Court:

Justice Minister Peter MacKay said the government was "concerned" by the ruling, and is "exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons." 

Meanwhile, Employment Minister Jason Kenney raised the spectre of judicial activism — saying legislators, not judges, should be making the law. It's a topic Prime Minister Stephen Harper has complained about as recently as this week. 

"My own view is the judiciary should be restrained of the exercise of overturning a democratic consensus. Having said that we of course respect the independence of the judiciary and its role," said Kenney. 

The high court struck down all three prostitution-related prohibitions — against keeping a brothel, living on the avails of prostitution and street soliciting — as violations of the constitutional guarantee to life, liberty and security of the person.

Kenney's words are particularly troublesome, as they grossly misrepresent what is going on here. The court has not "overturned a democratic consensus" at all.  The court has overturned laws which are out of date and violated fundamental principles of this country's constitution.

Of course, right on cue, the pearl clutching set over at Lifesite are falling onto their fainting couches:

According to Gwen Landolt, a lawyer and national vice president of REAL Women, the Supreme Court “seems to be in a tizzy” because it has disregarded the basic legal principle that the court stand by its previous rulings. She noted that the Supreme Court had upheld the ban on solicitation in 1990. 

“It’s no longer the court of last resort. It’s now the court of interim resort,” she said. “Everything is up for grabs now. They’ll just change their minds according to the current trend.” 

“The only positive thing coming out of this is that we know the prostitution law was not strong enough to protect women and the community,” she said. “Now we hope the Conservative government will go back and create a law that will provide proper protection for women and for the communities.” 

 Uh yeah, Gwen - "the current trend" is actually evidence-based...

I Disagree With The Supreme Court Here

The Supreme Court of Canada decided not to order the Canadian Government to repatriate Omar Khadr.

There is a problem here. The court has acknowledged that the government has violated Mr. Khadr's rights time and again throughout this whole sordid business. The government - especially under Mr. Harper - has been exceptionally rigid in its refusal to act on Mr. Khadr's behalf. It is disappointing indeed that the Supreme Court is unwilling to order the government to take effective action on Mr. Khadr's behalf.

The argument that the Supreme Court has no business dictating foreign affairs policy to the government is flawed in my view. This is not merely a matter of foreign affairs policy - it is in fact a situation where the government has been an active participant in the violations of Mr. Khadr's rights under Canada's existing laws. This is where the Supreme Court has, in my view, missed the point entirely.

Further, it does not recommend any kind of remedial or compensatory actions to be taken by the government to amend the situation that it has created with its mistreatment of his file.

In the bigger picture, this is an example of the Canadian government telling its citizens that they have NO standing with the government - within or without the nation's borders. Consider this carefully the next time you find it necessary to travel.