Courting Canada’s Conservatism


Much has been written about the country – our country – that Conservative Prime Minister Stephen Harper has wrought over the past decade. Indeed, this is not the Canada that Pierre Trudeau, or even Brian Mulroney, left behind.

Still, every individual lucky (or unfortunate) enough to occupy the official residence at 24 Sussex Drive makes his or her mark on the political and cultural landscape of the nation – for better and for worse.

For his part, Mr. Harper clearly hopes that however the election in October plays out he and his crusty crew of Tories will be remembered and admired as competent fiscal managers, demonstrably capable in all matters concerning the economy. And, until about a minute ago, that might have been a fair expectation.

The current condition of Canada’s commercial and labour markets has all but undermined the current government’s fondest dreams of a legacy on economic grounds. Two consecutive months of negative growth, stubbornly low commodity prices, moribund employment in just about every sector and region of the country have done quick, nasty work to the agenda.

Yet, there is one area where Mr. Harper may well have secured a place for himself in the history books: The judiciary.

In a fascinating and bravely reported piece in a recent edition of the Globe and Mail, that newspaper’s justice writer Sean Fine observes, “Mr. Harper’s battles with the Supreme Court are well known. The court has struck down or softened several of his crime laws. When the Prime Minister named an outspoken conservative, Marc Nadon, to the Supreme Court in 2013, the court itself declared Justice Nadon ineligible. Mr. Harper would go on to publicly assail the integrity of Supreme Court Chief Justice Beverley McLachlin, turning an institutional dispute into a very personal battle.”

But a closer look behind the curtain reveals a far more successful campaign to remake the country’s judicial system in a decidedly Conservative image. As Mr. Fine reports, “While those public conflicts were playing out, the government was quietly transforming the lower courts. The Conservative government has now named about 600 of the 840 full-time federally appointed judges, or nearly three in every four judges on provincial superior courts, appeal courts, the Federal Court and Tax Court.”

Why does this matter as long as the Supreme Court retains at least a modicum of ideological independence? The answer is that the high court doesn’t actually do the daily heavy lifting in our judicial system. The courts with which Mr. Harper is most concerned are, Mr. Fine writes, the ones that, “at the appeal level, decide how the government’s crime crackdown is to be implemented. At the trial level, they decide high-profile cases. In constitutional cases, they rule on social and legislative facts – anything that establishes the real-world context in which a law plays out, such as whether prostitution laws endanger sex workers.

“Higher courts, including the Supreme Court, do not change these facts, unless they view them as wildly wrong. Constitutional rulings depend on these facts. The judges, who can serve until they are 75, may be sitting long after other governments have come along and rewritten the laws. They also are a farm team or development system for the Supreme Court.”

In effect, “They are Mr. Harper’s enduring legacy.”

Economic conditions run hot and cold, but matters of justice, law and morality are enshrined in the democratic institutions we embrace and on which we depend.

This is where Canada’s new conservatism will root itself and ensure, among other things, that Mr. Harper will be remembered long after he’s left the political stage.

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