By: Dougald Lamont
Winnipeg Free Press
In just five weeks, the Supreme Court of Canada handed Stephen Harper and the Conservatives five defeats. The prime minister and his MPs have responded, not by examining what they have done wrong or could have done otherwise, but by launching a concerted attack on the court.
Such a response is, at once, incredibly petty and incredibly serious. It calls into question whether Canada's lawmakers -- including the prime minister himself -- even understand the law and the role the judiciary is supposed to play.
Among the decisions overturned were the appointment of Marc Nadon to the Supreme Court and an attempt to reform the Senate by Parliament alone. Several of these defeats should have been no surprise: Harper was clearly warned there were problems ahead of time.
While Nadon was an accomplished jurist, he lacked a basic requirement of the job that is set out in legislation: he had not recently practised law in Quebec.
Changing the Senate means changing the constitution, and that requires the agreement of the federal government and seven provinces with more than 50 per cent of the population.
Yet Harper suggested Chief Justice Beverley McLachlin had inappropriately contacted his office and that of the Justice Minister Peter MacKay about filling the vacancy on the court, while Conservative MPs anonymously groused to the media that Parliament was powerless, that the court was imposing "judge-made law," and the dire prophecies of former premiers Allan Blakeney and Sterling Lyon at the passage of the Charter of Rights and Freedoms had come true.
This is nonsense. There is nothing to suggest Justice McLachlin did anything untoward. The growing fiasco of overturned legislation is due to the government's own bullheaded incompetence in ignoring advice and ramming through legislation or appointments that were doomed to fail.
This entire mess was predicted two years ago. In 2012, Conservative MPs were passing record numbers of private member's bills to appear "tough on crime" to their constituents, even if it meant outlawing something that was already illegal.
At the time, critics warned there was a risk of years of court challenges and laws being overturned because while government bills are subjected to scrutiny by lawyers from the Department of Justice to make sure they are constitutional, private member's bills are not.
Their reaction raises the question of whether their response is just a crass political manoeuvre, or if the PM and his caucus, whose job it is to make law, really don't understand how the law works.
Judge-made law is not something new that only appeared when Canada patriated the Constitution in 1982. The "common law" is all judge-made, and it is one of the pillars of the legal system in Canada, the U.S., and most of the Commonwealth.
Canada's Supreme Court made decisions overturning (or confirming) laws long before the 1982 Charter of Rights and Freedoms or the 1960 Bill of Rights. In the 1930s, the Supreme Court overturned an attempt by the Social Credit government in Alberta to force newspapers to print "corrections" whenever an article was at odds with the government's facts.
The courts have always played a critical, independent role not just in trying criminals or settling disputes, but as a check on the powers of government.
Neither the prime minister nor MPs can pass whatever bill they want. Otherwise the majority of the population or MPs would be able to vote to treat a minority unjustly. They often have, and when it comes to righting historic wrongs, it is has often been courts, not politicians, that have delivered justice.
Harper couldn't be bothered to follow the law, so he took a shortcut, and lost. This is a consistent pattern, and under Harper, cutting corners has become a chronic habit.
Harper is the first prime minister in many years who is not a lawyer. He is an economist by training, a libertarian by inclination, but a propagandist and a politician by profession.
Perhaps that is why he sees everything as political. Anyone who disagrees with his government, even when honest disagreement and independence is part of their job description, is perceived as a political opponent. The law, and rules, too, are seen as something political -- something put in place by his opponents not to ensure a level playing field, or fairness for everyone, but to place him and his party at a disadvantage.
The judges rejecting Conservative legislation are not all Liberal appointees: Mr. Harper himself appointed the majority of Supreme Court judges currently on the bench.
Few Canadians would list lawyers among their favourite professions. Canadians are often upset when lawyers and courts reach controversial decisions, or deliver a result that people find morally uncomfortable. Sometimes, judges and courts do not deliver the justice we hope for.
But we should not be so blinded by our cynicism that we lose sight of the role the courts play in protecting us from bad laws, overreach by government, or keeping politicians and government in check, by making sure MPs don't break the law when they make the law.
If Harper's legislative legacy is dismantled by the courts, he will have no one but himself to blame. He had ample warning.
Dougald Lamont is a writer and communications consultant in Winnipeg.