After 10 years of Conservative appointments it is not at all clear that the courts — and certainly the Supreme Court of Canada — are in worse shape than they were when Stephen Harper took office. There is nothing to suggest that the judiciary of 2015 is less qualified or more “political” in its approach to judging. Indeed, over the past few years the government has suffered losses in blockbuster decisions concerning prostitution, assisted suicide and Senate reform. And in each of those cases, the Court was unanimous. So if Stephen Harper came to power with a burning desire to reshape the Canadian judiciary, there is little evidence that he has succeeded.
Yet there is definite unease in the profession and the legal academy. To put the discomfort in context, we need to remember that much of our post-1982 constitutional jurisprudence was shaped by a Supreme Court that was progressive, protective of the Constitution and open to new conceptions of constitutional rights. That is not to say that the Court was uniformly interventionist. Indeed, it was assertive and cautious in fairly equal measure. But under the leadership of former chief justice Brian Dickson, the Court tackled early Charter cases with a very different mindset than, say, the Court of the 1970s. With some bumps along the way, subsequent jurists have cemented Dickson’s legacy. The impact of this body of case law on generations of legal professionals — lawyers, academics and jurists — should not be underestimated. The idea of dismantling it makes people nervous.
But is the Harper government really so dangerous? After all, the Prime Minister has never used the notwithstanding clause. He has always maintained, in the face of court rulings that do not go his way, that he will “respect” them. He has not tended to attack judicial decisions as legally baseless — even when he disagrees with them. There has always been at least a veneer of regard for law and the rule of law.
So what’s the problem? Some of it has to do with the association of large-C Conservatism with the so-called Calgary School, which sees the Charter of Rights and Freedoms as little more than an excuse for judges to engage in social engineering. It is probably no accident that the Harper government did almost nothing to commemorate the 30th anniversary of the Charter, in marked contrast to its observance of the 200th anniversary of the War of 1812 and its apparent enthusiasm for the upcoming 150th anniversary of the British North America Act. There was its decision to change the federal Judicial Advisory Committees to include members of law enforcement. There was the high-profile attack on Chief Justice Beverley McLachlin following the Marc Nadon ruling in 2014. There were the judicial appointments of individuals who are openly skeptical of major pillars of the Charter era, such as purposive interpretation and the structure of section 1 analysis. Furthermore, though the connection is somewhat fuzzier, there has been a conspicuous lack of women and visible minorities appointed to superior courts over the past 10 years — giving the impression that the courts are less diverse, and (more contentiously) more conservative.
Much of the problem, though, may have less to do with any tangible impact on the judiciary, or even with the Harper administration’s relationship to the Charter, than with its attitude to the law and the Constitution generally.
What troubles many people about the Harper government is the nagging sense that it perceives the law as an obstacle to be overcome, rather than a guide for principled governance.
While the Prime Minister has not openly defied the courts, he is clearly happy to test the limits of what the Constitution permits him to do. Consider the most recent appointment to the Supreme Court. Justice Russell Brown is a perfectly qualified candidate. But in announcing Brown’s appointment immediately before advising the Governor General to dissolve Parliament, it seems that Harper intended to circumvent the caretaker convention, which ordinarily precludes making nonurgent appointments during a writ period. It was always unlikely that anyone would challenge this move in court, especially since, win or lose, a judge could not nullify the appointment. Moreover, Harper could always seek political cover behind the claim that the convention simply has nothing to say about appointments so long as they are announced before dissolution. But he has pushed up against the limits of a constitutional rule designed to safeguard political accountability.
This attitude has been on display a number of times. On two occasions the Prime Minister advised the prorogation of Parliament in order to cut short politically damaging debates, all but daring the Governor General to refuse. We have learned through the Mike Duffy trial that he took a strained view of the Senate residency requirement — one that was flatly at odds with the opinion of his own counsel, Benjamin Perrin. And what about the refusal to appoint new senators despite the language of the Constitution Act, 1867, to say nothing of the Supreme Court’s 2014 Senate Reference? There is little doubt that Harper is banking on the fact that his opponents, and the courts, will have difficulty stating the precise point at which he will be in violation of his constitutional obligations, allowing him considerable wiggle room whatever the results of litigation.
All this creates the impression that the government is more than willing to press against constitutional arrangements, exploiting enforcement gaps whenever possible. Notice that none of the above controversies has anything to do with the Charter — with, for example, mandatory minimum sentences or antiterror measures. That is, indeed, our point: one need not be a fan of the Charter, or the powers it gives to judges, to find the government’s general willingness to game the law and the Constitution disturbing.
For ordinary citizens, it is often regarded as acceptable to go as far as the language of the law will allow — to exploit loopholes or ambiguities in the language of a statute in order to pursue some private agenda. What the law does not expressly forbid, we frequently say, the individual is at liberty to do. The state and its officials, however, stand in a different relationship to the law and the legal order. It is the responsibility of the government to ensure that the law and our constitutional system of arrangements function smoothly — not just now, but in the future. What troubles many people about the Harper government is the nagging sense that it perceives the law as an obstacle to be overcome, rather than a guide for principled governance. Debates over its approach to judicial appointments must be seen in that light.