Tag Archives: Supreme Court of Canada

Courting Canada’s Conservatism

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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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In the policy-maker sweepstakes, the Supremes win

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It’s bad enough for a sitting government with an entire justice department at its disposal to be judged broadly inept on matters of law. But to be found so wanting by one of the country’s leading conservative think tanks?

Gadzooks! Et tu, Brute?

But there it was some days ago for all to witness: The Macdonald-Laurier Institute’s 2014 pick for policy-maker of the year.

The winner was (cue drum roll) the Supreme Court of Canada. The reason was (cue kazoo) it managed to wipe its hallowed chambers with government lawyers 70 per cent of the time in big, landmark cases.

Allow into evidence, if you will, item #1: The federal Tories wanted an elected Senate and thought they could push a form of one through legislative channels without opening up the Constitution and all that pesky inter-provincial wrangling that is, in fact, the very essence of Confederation.

The Supremes’ response: “Sorry, fellas, it’s not gonna happen on our watch.”

This almost dismissive “now-off-you-go-and-play-nice-for-a-change” routine transpired seven times in 10 Supreme Court considerations of government cases. Apart from the Senate decision, these included key matters involving aboriginal title and land claims, prostitution, the appointment of Supreme Court justices from Quebec, cybercrime, truth in sentencing, and retrospective repeal of accelerated parole review.

For Benjamin Perrin – an Associate Professor at the University of British Columbia, Faculty of Law and a Senior Fellow at the Macdonald-Laurier Institute – who who picked this year’s top policy-maker, the decision was a no-brainer:

“The policy and legal impact of the Supreme Court of Canada’s decisions of the

last year are significant and likely enduring; the Supreme Court of Canada was a remarkably united institution with consensus decisions on these significant cases being the norm, and dissenting opinions rare; and the federal government indeed has an abysmal record of losses on significant cases, with a clear win in just one in 10 of them.”       

What’s more, if there had been a concerted effort to stack the court with justices who could be counted upon to tow the Conservative Party line, that effort seems to have failed miserably. “(Mr. Perrin’s) analysis showed that the court reached a consensus decision in 80 per cent of these cases – higher than the average over the past decade,” a Macdonald-Laurier press release stated.

Added Mr. Perrin, himself: “There is no evidence whatsoever of any observable split in the Court’s decisions on significant issues between the six judges appointed by Prime Minister Harper and the three judges appointed by previous prime ministers.”

Make no mistake, these are no trifling matters. Mr. Perrin correctly observes that 2014 hosted a disproportionate number of landmark cases. The government’s losing streak effectively handed the keys to the castle to the judicial branch.

“In its decisions on significant constitutional matters in the last year, the Supreme Court of Canada has made bold decisions that fundamentally affect the way Canadian Democracy functions,” he writes.

Furthermore, he concludes, “The most significant and enduring impact of the Supreme Court of Canada in the last year will be its interpretation of the amending procedures in the Constitution Act, 1982, in its reference decisions related to Senate reform and the appointment of judges to the high court from Quebec. Taken together, these decisions entrench the Senate and Supreme Court of Canada as institutions that are virtually untouchable. Changing the composition of either institution has been determined to require the unanimous approval of the House of Commons and the Senate as well as every provincial legislature.”

So, then what happened in 2014?

Did the government know the law well enough before it argued its cases before the court? Or, did justice lawyers feel that discretion was the better part valor (or, at least, their own job security) before politely suggesting that their political masters were out to lunch on one or more points of precedent?

In any case, Mr. Perrin thinks a post-mortem is in order. “Until this is exhaustively done, it would be premature, as some commentators have suggested, to conclude that there is a fundamental rift in values between the federal government and the Court.”

Maybe, but from where this commentator stands, it sure looks that way.

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In the policy-maker sweepstakes, the Supremes win

IMG_0129

It’s bad enough for a sitting government with an entire justice department at its disposal to be judged broadly inept on matters of law. But to be found so wanting by one of the country’s leading conservative think tanks?

Gadzooks! Et tu, Brute?

But there it was last week for all to witness: The Macdonald-Laurier Institute’s 2014 pick for policy-maker of the year.

The winner was (cue drum roll) the Supreme Court of Canada. The reason was (cue kazoo) it managed to wipe its hallowed chambers with government lawyers 70 per cent of the time in big, landmark cases.

Allow into evidence, if you will, item #1: The federal Tories wanted an elected Senate and thought they could push a form of one through legislative channels without opening up the Constitution and all that pesky inter-provincial wrangling that is, in fact, the very essence of Confederation.

The Supremes’ response: “Sorry, fellas, it’s not gonna happen on our watch.”

This almost dismissive “now-off-you-go-and-play-nice-for-a-change” routine transpired seven times in 10 Supreme Court considerations of government cases. Apart from the Senate decision, these included key matters involving aboriginal title and land claims, prostitution, the appointment of Supreme Court justices from Quebec, cybercrime, truth in sentencing, and retrospective repeal of accelerated parole review.

For Benjamin Perrin – an Associate Professor at the University of British Columbia, Faculty of Law and a Senior Fellow at the Macdonald-Laurier Institute – who who picked this year’s top policy-maker, the decision was a no-brainer:

“The policy and legal impact of the Supreme Court of Canada’s decisions of the last year are significant and likely enduring; the Supreme Court of Canada was a remarkably united institution with consensus decisions on these significant cases being the norm, and dissenting opinions rare; and the federal government indeed has an abysmal record of losses on significant cases, with a clear win in just one in 10 of them.”

What’s more, if there had been a concerted effort to stack the court with justices who could be counted upon to tow the Conservative Party line, that effort seems to have failed miserably. “(Mr. Perrin’s) analysis showed that the court reached a consensus decision in 80 per cent of these cases – higher than the average over the past decade,” a Macdonald-Laurier press release stated.

Added Mr. Perrin, himself: “There is no evidence whatsoever of any observable split in the Court’s decisions on significant issues between the six judges appointed by Prime Minister Harper and the three judges appointed by previous prime ministers.”

Make no mistake, these are no trifling matters. Mr. Perrin correctly observes that 2014 hosted a disproportionate number of landmark cases. The government’s losing streak effectively handed the keys to the castle to the judicial branch.

“In its decisions on significant constitutional matters in the last year, the Supreme Court of Canada has made bold decisions that fundamentally affect the way Canadian Democracy functions,” he writes.

Furthermore, he concludes, “The most significant and enduring impact of the Supreme Court of Canada in the last year will be its interpretation of the amending procedures in the Constitution Act, 1982, in its reference decisions related to Senate reform and the appointment of judges to the high court from Quebec. Taken together, these decisions entrench the Senate and Supreme Court of Canada as institutions that are virtually untouchable. Changing the composition of either institution has been determined to require the unanimous approval of the House of Commons and the Senate as well as every provincial legislature.”

So, then what happened in 2014?

Did the government know the law well enough before it argued its cases before the court? Or, did justice lawyers feel that discretion was the better part valor (or, at least, their own job security) before politely suggesting that their political masters were out to lunch on one or more points of precedent?

In any case, Mr. Perrin thinks a post-mortem is in order. “Until this is exhaustively done, it would be premature, as some commentators have suggested, to conclude that there is a fundamental rift in values between the federal government and the Court.”

Maybe, but from where this commentator stands, it sure looks that way.

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When getting answers from Ottawa, the cost is worth the price

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Go ahead, ask a question of one of Canada’s esteemed government members. I dare you.

We unelected peasants are, of course, accustomed to obfuscation masquerading as straight talk from those who we periodically install to purportedly defend our democracy.

But it may surprise you to learn that one Conservative backbencher has actually obtained a price tag for every query his fellow parliamentarians — Tory or not — toss at cabinet members in the simple prosecution of their duties.

It’s $117,188 and change.

That’s not for answers to trivial inquires, such as “Will the minister please explain why the socks he is wearing today do not match?” or “Why does this government insist on telling Canadians that sartorial standards require that all attendees to baseball games wear straw boaters, when clearly brimmed caps are the norm?”

No, it’s the cost associated with replying to weightier interrogatives related to such matters as “the percentage of Employment Canada benefits applications that are rejected and how many people have to wait longer than 28 days for a response; which government department is responsible for monitoring the transportation of fissile radioactive material inside our borders; how much money Ottawa has spent developing software since 2011 and what the software actually does; and the amount the government spent on travel expenses while negotiating the Comprehensive Economic and Trade Agreement with the European Union.”

The quote comes from a Globe and Mail editorial published last Thursday. It refers to actual questions on the Order Paper, which provides mostly opposition MPs with a constitutionally valuable means to ascertain just how much horse pucky a reigning government manages to sling during any given parliamentary session.

Now, Tory MP Mike Wallace wonders whether the cost to Canadian taxpayers is worth the effort to remain accountable to Canadian citizens, if only in this one, time-honoured way.

To be clear, he asked a question, placed on the Order Paper (presumably costing $177,188) that, reportedly, went like this: “Are we sure we’re getting value for the dollar?” In an interview with the Globe, he elaborated: “I think it’s just important that it’s on the record. I think government and Parliament could run more efficiently and effectively in a lot of areas and this is just one little, tiny example of where. . .are we sure we’re getting value for the dollar?”

To ask whether it’s prudent to ask questions of government members, knowing that the question itself will add to the putative $1.2-million, annual bill you’re railing against in the first place, is the apex of right-wing disrespect for, and cynicism about, 145 years of wise, parliamentary procedure.

You might have simply emailed my old colleague Sean Fine, justice reporter at the Globe, with your thoughts. No harm, no foul.

As for you now, though, for shame, Mr. Wallace, for shame!

Still, know that you are not the only one of your ilk who owes an apology to the Canadian electorate.

There is the little matter of your overlord’s constantly fractious relationship with this country’s judiciary, in which he has impugned the reputation of its head, for no apparent reason except spite; slammed its obligations to patiently review the exigencies of government’s legislative branch in the context of constitutional justice; and all but repealed an enlightened policy of his own design because a few big mouths in his circle chose to speak out against him.

Again, the Globe reports: “Last year, Prime Minister Stephen Harper announced that selection panels of MPs from the major political parties would assess candidates being considered for the Supreme Court of Canada, in consultation with leading judges and lawyers, though the actual appointment would remain a Crown prerogative.”

Now, we learn, alongside Mr. Wallace’s concerns about sharing information too freely among the hoi polloi, that this noble exercise in accountability is “being reviewed” for the simple reason that it produced too much accountability, too much truth about Ottawa’s wheelhouses of power and influence, too much public information made too readily to the very people who install these bozos to defend our democracy — we, the peasants.

Dare we ask questions? We’re damed if we don’t.

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Ottawa to the courts: Don’t be so judgy

 

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If certain Tory Members of Parliament are beginning to suspect that the bull’s eyes painted on their backs are not, in fact, figments of their fevered, paranoid imaginations, they might be right.

Never in recent times has the gulf between the executive and judicial branches of government been so cavernous as now. Consider the latest trouncing of the Harperites by the courts, as reported recently by the Globe and Mail’s justice writer Sean Fine:

“The Conservative government’s latitude to choose its own policies was curtailed yet again on Friday when a (Federal Court) judge called health-care cuts for failed refugee claimants a form of ‘cruel and unusual treatment’ and ruled them unconstitutional.”

What’s more, he observed, “So rare is the use of Section 12 of the Canadian Charter of Rights and Freedoms – ‘cruel and unusual treatment or punishment’ – that neither the government nor the refugees’ representatives were able to identify a single successful claim outside of criminal cases.”

Hardly able to contain his glee, Lorne Waldman, the lawyer for the Canadian Association of Refugee Doctors told Mr. Fine, “It’s huge – it opens up a whole new claim that we can make when we want to challenge government conduct.” 

For its part, the government remains undeterred. True to form, Immigration Minister Chris Alexander stiff-upper-lipped his reaction to the ruling, insisting he will appeal. “Failed claimants and those from safe countries like the U.S. or Europe should not be entitled to better health care than Canadians receive.” 

This is, of course, utter nonsense. Decent health care for refugee claimants (failed or successful) does not preclude similar service and treatment for citizens and immigrants. It never has.

But it is a response that’s typical of this government when it has been thwarted in pursuing its sometimes incomprehensible social agenda. And the whining, it seems, is growing louder with each passing day. 

In April, the Supreme Court slapped Prime Minister Stephen Harper’s hand by ruling that, no, he can’t just go ahead and make the Senate an elective body without the consent of the provinces, because that, dear boy, would be patently unconstitutional.

“The Senate is a core component of the Canadian federal structure of government,” the ruling read. “As such, changes that affect its fundamental nature and role engage the interests of the stakeholders in our constitutional design – i.e. the federal government and the provinces – and cannot be achieved by Parliament acting alone.”

To which Mr. Harper rejoined, just a wee bit petulantly, “(it is) a decision for the status quo, a status quo that is supported by virtually no Canadian. . .(the country has no interest in) “a bunch of constitutional negotiations. We know full well that there’s no consensus among the provinces, there’s no willingness to reopen the Canadian constitution.”

Only the month before, the Supreme Court ruled, in a precedent-setting decision, that Ottawa had no right to retroactively annul the early-parole entitlement of three federal inmates in British Columbia.

The government’s March 2011 legislation effectively, “deprive(d) the three respondents of the possibility of being considered for early day parole, which was an expectation they had had at the time they were sentenced (and) had the effect of punishing the respondents again,” the court found.

Again, the Tories were unrepentant. “Our Conservative government has been clear,” Jason Tamming, a spokesman for Public Safety Minister Steven Blaney, declared. “We do not believe that white-collar criminals and drug dealers should be released after a mere one-sixth of their sentence.”

Then, there were the kerfuffles over imposing longer prison times (nope, no can do), closing a B.C. drug clinic (we’d rather you not) and even a sketchy appointment to the Supreme Court, itself (nice try, pal, but no cigar).

In all of this, the preponderance of evidence yields one of two possible conclusions: That the various levels that comprise Canada’s justice system has it out for the sitting government and the merry pranksters it calls its cabinet ministers; or that the federal Tories know more about the ideological preferences of their voting base than they do about the actual law.

I might wish for the former, and all the court-issued bull’s eyes; but I fear that the latter is closer to the truth.

 

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Canada’s feuding, fuming democracy 

 

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That there is no love lost between Canada’s top jurists and its prime minister became brilliantly obvious last week when the Supreme Court of Canada squashed the federal Tories’ fondly held Senate reform ambitions.

Less obvious was whether the executive and judicial branches of government in this country will ever find common ground on any issue of substance that’s dear to a true, blue Harperite heart. 

Senate reform was the fifth, straight juridical mauling of the Conservatives in recent months, and, like all the others, the outcome was hardly surprising. In its ruling, the court was unequivocal about the limits of legislative meddling.    

“The framers sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives,” it declared (as quoted by the Globe and Mail). “The provinces must have a say in constitutional changes that engage their interests.”

To the federal government’s contention that the nation badly needs a more accountable, more transparent Senate whose newly elected members must serve short sprints – rather than lifelong marathons – in office, the Supremes responded that “the purpose of the (government) bills is clear: to bring about a Senate with a popular mandate. . .Legal analysis of the constitutional nature and effects of proposed legislation cannot be premised on the assumption that the legislation will fail to bring about the changes it seeks to achieve.”

As for the populist notion of abolition (enthusiastically endorsed by the NDP and others), it would  “fundamentally alter our constitutional architecture – by removing the bicameral form of government that gives shape to the Constitution Act, 1867. (Abolition) requires the unanimous consent of the Senate, the House of Commons, and the legislative assemblies of all Canadian provinces.”

With that, Prime Minister Stephen Harper bid farewell, once and for all, to a cherished plank of his policy platform. “We know that there is no consensus among the provinces on reform, no consensus on abolition, and no desire of anyone to reopen the Constitution and have a bunch of constitutional negotiations,” he said following the court’s announcement. “I think it’s a decision that the vast majority of Canadians will be very disappointed with, but obviously we will respect that decision.” 

In fact, despite their rhetoric and table pounding, the Tories never really formulated a clear idea about how to reform the Senate without dismantling the constitutional protections of a sizable number of Canadians. Every notion it floated was predicated on the faulty and profoundly self-important assumption that worthwhile changes to the institution did not require much, if any, consultation with the provinces.

The arrogance of that central conceit – that under Stephen Harper, the executive can conduct itself as it sees fit without recourse to any other branch of government – evidently rubbed the court the wrong way, as it has in four other cases since late March. 

When Peter MacKay, minister of justice, barred first-time, non-violent federal convict from obtaining early parole, the court ruled unanimously on March 20 to reverse the decision. 

One day later, the Globe reports, “Prime Minister Stephen Harper appointed Justice Marc Nadon to the court, to fill a Quebec vacancy. The question was whether, as a judge on the Federal Court of Appeal, he was eligible to represent Quebec. (The Supreme Court ruled 6-1) that he was ineligible because he did not have the special qualifications required for Quebec judges on the Supreme Court.”

Meanwhile, as the Globe chronicles, “Under the Truth in Sentencing Act, the government tried to stop judges from routinely giving extra credit to offenders for the time they serve in custody before sentencing. (The court ruled) 7-0 that judges have discretion under the act to routinely give 1.5 days credit for every day served.”

Finally, “A prisoner wanted to challenge his transfer to a maximum-security jail from a medium-security one. The federal government said he had to go through a slow process that involved the Federal Court. (The court ruled) 8-0 that prisoners’ ancient right to habeas corpus gives them prompt access to superior courts in whatever province they are in.”

Of course, amity between branches of government is not a prerequisite for maintaining a hale and hardy democracy (just the opposite, one could argue). 

If that’s true, then Canada’s successful union is the very picture of health.

 

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