Harper standing on his tennis court


“What’s it going to be: a modern democracy or a Steve’s banana republic of the north?”

Evidently, it’s the latter, following the Prime Minister’s decision to execute all of the Justices on the Supreme Court.

Or whatever.

Yes, the Prime Minister’s open contempt for the top court has reached such levels that he did not take one of the Chief Justice’s phone calls.

Quel scandale.

The details go something like this.

John Ivison reports that the opening serve came from the Tory caucus, who’re mad-as-hell at the Supreme Court over their recent rebukes of the Harper Doctrine.  He continues that the court’s ranking member, Beverley McLachlin, tried to warn Ottawa away from appointing the ill-fated instalment of Marc Nadon, and that she’s openly bad-mouthing the Conservative regime.  Despite this, the PMO warned the soldiers to stay in line, and to hold fire.  Ivison also drops the revelation that the top court may have been instrumental in the gutting of the Fair Elections Act.

The Supreme Court returned the serve and opened a rally.  A release from the court laid out the facts: McLachlin did advise the government that appointing Nadon could be problematic — but, given that her warning came months before the official appointment and the subsequent legal challenge, she stayed clear from opining on a case that was, or may be, before her.

“The Chief Justice spoke with the Minister of Justice, Mr. MacKay, to flag the potential issue.  The Chief Justice’s office also made preliminary inquiries to set up a call or meeting with the Prime Minister, but ultimately the Chief Justice decided not to pursue a call or meeting,” the release reads.

“At no time did I express any opinion as to the merits of the eligibility issue,” McLachlin says.

But the Prime Minister’s Office lobbed the ball:

“The Chief Justice initiated the call to the Minister of Justice.  After the Minister received her call he advised the Prime Minister that given the subject she wished to raise, taking a phone call from the Chief Justice would be inadvisable and inappropriate.  The Prime Minister agreed and did not take her call.”

Okay, so what the hell is going on?

First off: the Tories should be incised at the court.  They should be downright furious.  The Supreme Court has taken a hatchet to numerous policy objectives of the Harper Government, in an openly undemocratic way.  And there are two reasons for that.

First: the Harper Government is terrible at writing legislation.  Crafting bills is an art, and it’s one that the Harper government has not mastered, and refuses to take any pointers on.  Take, for example, an Ontario Court of Appeal decision in R. v. Nur, where a crucial part of the Harper Government’s tough-on-crime agenda was struck down.  The judge found not that the provision itself was unconstitutional, but that an aspect of the legislation — which added a three-year mandatory minimums for those in possession of unlicensed firearms — could have accidentally netted hapless firearm owners with expired registration.  Thus, they struck the whole thing down.

That’s one in a long list.  There’s the immigration bill and its revoking of due process in some circumstances that many lawyers figure may fail to meet Charter muster, the Not Criminally Responsible Reform Act which could indefinitely lock-up low-risk offenders, the Senate reform package that everybody knew wouldn’t fly, the bill that sort-of ended pre-trial sentencing credits that the court found to be null, and many more.

But here’s the thing: the Court has rarely actually declared the crux of the bills unconstitutional.  They regularly rule that facets or unintended consequences of these bills are the real problem, and hack them up accordingly.

Second: the Supreme Court exists to frustrate governments.

The Tories take the court’s challenges as a check on their democratically-vested power.  The Court sees it as their vested authority to ensure that legislation falls within certain parameters.

They’re both right.  The Court is supposed to be not just undemocratic but, at times, anti-democratic.  That’s what we agreed on, in adopting the Charter.

Ivison hits on that brilliantly in his piece:

“One Cabinet minister struggled to stifle his opinion.  ‘I think you can imagine my views.  Allan Blakeney and Sterling Lyon were prophets,’ he said, referring to the former premiers of Saskatchewan and Manitoba, who fought the introduction of the Charter because they felt it would weaken Parliament’s supremacy.”

Some may inherently wince at any cabinet minister disparaging the Charter, but he’s right: it does tie Parliament’s hands.

In response, rather than sulking, the Harper Government should take a more serious approach to crafting legislation, and actually listen to those who testify before committee.  Rather than trotting out their experts and using them as a human shield — like they did with Peter Hogg in the Nadon process — they should actually trust that when someone bangs the gong and calls “unconstitutional!” that they may be doing so to save the government a headache, not create one.

To the Conservatives’ credit, a veritable gaggle of constitutional scholars figured that the Nadon appointment was on the up-and-up.  Many didn’t.  The Harper Government was smart enough to try to wedge in amendments to the Supreme Court Act.  Several scholars thought that would be good enough.  Others didn’t.  At the end of the day, the Court read the Act in a very, very narrow way.  It could well have happened to any government.

But even so, a government should only shuffle nervously before the judges in rare cases — circumstances where age-old legislation finally gets the hook, or where evolving circumstances expose limitations of the laws on the books.

Few, if any, of Harper’s bills are inherently unconstitutional, they merely have aspects that could be, and almost always are, challenged.  Tightening or improving those provisions could avoid those challenges and, ultimately, save the government a ton of embarrassment and everyone a ton of money.

If a sitting government is dragged before the Justices as many times as the Harper Government has, perhaps its time to re-evaluate how things are going.

Harper, rather than taking stock, has instead reverted to culture wars.  And his critics have been happy to engage.

The Prime Minister has tapped into his old Reform spirit and turned this as a us vs. them scenario where the Court represents the landed aristocracy, whereas he and his cohorts in the tiers état are meeting on the tennis court to demand their dues.

Problem is: Harper has been in power for nearly a decade, and any insinuation that he represents the grassroots energy that he once did is complete fallacy.  He is as entrenched into the system as the etchings in the Hall of Honour.

His tormentors, meanwhile, love to fit this tension into pre-carved slots.  Harper hates freedom, Harper hates his critics, Harper hates the constitution, etc.

This is an issue as old prairie politics itself.  But if Harper wants to cement his legacy, and ensure that it is not eroded by the onslaught of legal challenges over time, he needs to play the game, and he needs to table legislation that is going to survive Charter challenges.

Until then, he’ll be standing in his private tennis court, with only his caucus to keep him company.



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Old Stephen Harper vs. New Stephen Harper on the Fair Elections Act
Stephen Harper the dinosaur


Follow Justin Ling on twitter: @Justin_Ling


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