For those of you who think Canadian democracy is going to the dogs under Stephen Harper, I say that there are still reasons for hope. A few of these came last week when Canada’s judiciary ruled against the Harper government in two key decisions that show why the Supreme Court of Canada, more than any other institution in our country, remains the most effective check on the Prime Minister and his ever expanding executive power.
The first is a case involving an obscure jurisdictional matter which relates to a major principle of Canadian, and indeed international, human rights law. The case which dates to 2010, was filed by a truly nasty customer (this dude was convicted of first degree murder and taking out a hit on another prisoner while inside, paid for with heroine!) who claimed his habeas corpus rights, an ancient right of common law that ensures that a prisoner receives due process and their day in court, had been violated when he was transferred from one prison to another without being informed of the evidence against him. The issue of access to courts for legal remedy is as fundamental a principle you’re likely to find in our legal system. Nonetheless, attorneys general (i.e. the federal Justice Minister) have been undermining this right for many years through various misguided attempts at ‘tough on crime’ measures designed to prevent access to justice for convicts and others. But as a lawyer for the B.C. Civil Liberties Association put it, “Hopefully this is the last time the Supreme Court is going to have to clearly say prisoners can choose the most effective and speedy access to get justice.”
The Court led by, Juctice Lebel, made a unanimous decision against the government’s position, (even though the impact of the case on this particular convict is basically academic now) in order to send a message to the government that it will be shut down again and again if it ever messes with legal rights found in section 10 of the Charter.
The other more high profile case, is that of Justice Marc Nadon, a man whose appointment to the Supreme Court has been plagued by controversy from the start. Nadon, of course, was causing raised eye brows even before his nomination to sit on the highest bench in the land. A brief look at his work on the bench of the Federal Appeals Court reveals that he was the only justice to vote against the repatriation of Canadian Omar Khadr from Gitmo by the Canadian government, a position that no doubt scored him serious brownie points with Harper, who eventually did so under protest.
But Nadon will now be remembered by most for his humiliating rejection by the Supreme Court of Canada, which answered the government’s reference to the Court, in the negative. And with good reason. Nadon’s ill advised appointment to the bench was compounded by the government’s blatant attempts to rectify their mistake by changing the 1875 Supreme Court Act to allow a former member of the Quebec Bar, rather than a current one, to sit as one of the three representatives from Quebec to the Court. The Court rightly saw this as tampering with the constitutionally guaranteed composition of the Court that would at the very least require the Feds to obtain the consent of all 10 provinces, something that Quebec made abundantly clear, it would never give.
The reasons for this constitutional situation are well explained in the majority opinion of the Court, as expressed by all 8 Justices (very seldom do we see the Court releases anonymous opinions like this one). That is, the justices representing Quebec must be well versed in the Civil law of Quebec, a basic feature of the bi-judicial nature of Canada’s legal tradition. This means that Nadon, a man who had not practiced law in Quebec for the past 20 years, could hardly be expected to understand the latest legal developments in Quebec since that time, and was not qualified for the job.
Harper, must have gotten the message, because rather than try to get his nominee in through the backdoor by getting Nadon to join the Quebec Bar Association, he announced the government was dropping its case and withdrawing its support for their nominee. (Though not before spending $250,000 of the taxpayer’s money in their futile efforts to appoint him).
The lesson for the Harper gang should be a sobering one: though they may have appointed the majority of the justices sitting on the bench at the moment, they should not expect any political favours from the folks in the red robes. Especially, when their actions cross well established constitutional red lines as they did in both of these examples.
This might be a foreshadowing of what the government can expect from the SCC when they come out with their opinion on the government’s proposed package of Senate reforms. If these recent decisions are anything to go by, the Court appears to be feeling very unsympathetic toward the government’s legislative agenda. But let’s leave that aside for another blog.
Other articles by David DesBaillets
The “Leprechaun” of Canadian finance takes his walk in the snow
Will Harper Turn his Back on Péladeau and Sun News?
Federal Politicians take vow of silence during Quebec election
Was the Canadian Government involved in a TransCanada cover-up?
Confessions of a lefty Jewish Canadian on Harper’s visit to Israel
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