In an election campaign where parties seem desperate to outdo one another with increasingly stupid policy proposals, Conservative leader Andrew Scheer has twice now felt it appropriate policy to bother the Supreme Court of Canada with matters of his political expediency. Once was bad enough, particularly given that he was proposing something by which there isn't actually a mechanism to get the Supreme Court to do what he wants, but the second time was far darker both in intent and in probable outcome added to the fact that it is wrapped in a pernicious lie that he is trying to leverage to his benefit in the election campaign. Either way, this constant demand that the Supreme Court play a more robust political role, whether it's to provide political cover or to be in an existential game of "Mother, May I?", is dangerous and unbecoming.
Sadly, there is a long tradition in this country of politicians courageously waiting for the Supreme Court to "force" them to do the right thing, because they have neither the spines, intestinal fortitude, nor gonads to do it and risk the wrath of socially conservative voters. This is especially true for the LGBT community, whether it's the repeal of sodomy laws, the extension of human rights protections, or eventually same-sex marriage (to which the Martin government added a fourth question to the reference that the Chrétien government before it began, designed solely as political cover transparently enough that the Supreme Court opted to turn the tables on Martin and decline to answer).
The Supreme Court had to overturn prostitution laws that were supposed to have long since been updated by a Parliament too timid to broach the subject while hundreds of sex workers died needlessly, and even more recently, the Supreme Court had to rule on the question of medical assistance in dying before Parliament could be moved to act, and even then, the current government (and Jody Wilson-Raybould in particular) presented legislation that did not conform to the Court's ruling, and has forced advocates to go back to the courts in order to be told as much, because the government (and Wilson-Raybould in particular) couldn't handle a topic that was too "controversial" for them to effectively manage. After all, this is a government that can't communicate their way out of a wet paper bag, nor manage an issue to save their lives.
Doing the work of governments, federal and provincial, too timid to do abide by the Charter is one thing, but now comes a new brand of political shitbaggery that aims to make the Supreme Court even more of a political actor because it's politically expedient to do so. I refer to Scheer's two campaign proposals to date that would drag in the Supreme Court to the political arena. The first was his suggestion that any jurisdictional challenges over pipelines be "fast-tracked" to the Supreme Court erm, without there being an actual mechanism to do so. Yes, a government could put a reference question to the Court, which is not the same as taking a live issue and immediately bypassing the lower courts in the hopes of getting a final answer right away. (Well, right away being a relative term because generally there is a six-month lag between when the Supreme Court grants leave and them hearing the case, and then six months to a year for them to render a decision).
The Supreme Court of Canada is not a court of first instance. It is not built to hear witnesses and get expert testimony directly, nor should it. That's the job of the lower courts and for those judges to make decisions, which can then be appealed to the Supreme Court where there are records and factums for the judges to draw from, and hear arguments on why those lower-court decisions were right or wrong. That's an important way that the legal system operates, and while it may be inconvenient for Scheer and others to have to go through the process, it exists for a reason, so that matters can have their day in court, and have the deliberations of Courts of Appeal on the matters before they get to the Supreme Court. Loading their docket with the spats of premiers and prime ministers who refuse to sit down and work together and would rather have the Court deliver a spanking to someone is no way to run a country.
Scheer's second instance was as part of his cudgel in trying to use the Double-Hyphen Affair on the campaign trail, and pledged to introduce a childishly named No More Cover-Ups Act that would empower the RCMP to go directly to the Supreme Court in order to gain access to cabinet documents. It's both stupid to promise, and it's part a distasteful policy release that includes calling for a politically motivated judicial inquiry into the Double-Hyphen Affair something that Scheer is trying to do in order tap into the American "Lock Her Up!" mentality (because we're LARPing American politics now) never mind that judicial inquiries should not be politicized, that we don't try to demand the police investigate our political rivals like they would in banana republics, but most importantly, we don't want to drag in the Supreme Court to be a political actor in the centre of this kind of nonsense. Even more to the point, Cabinet confidences are at the heart of our system of government, and it can only operate on the basis of cabinet solidarity, and for that to work it needs confidentiality. Trying to assert that they would be used to cover up corruption is a way of trying to undermine our very system of government.
If the RCMP were investigating a matter and they are not the proper place for judicial review for Cabinet confidences would be the Federal Court, not the Supreme Court, as a court of first instance. But this is about Scheer lying to the public again to create that false impression, and trying to drag the Supreme Court into it for his own political cover. This needs to be called out for what it is. The Supreme Court of Canada does not exist to provide cover for reluctant or mendacious politicians, and we only risk damaging our most trusted institutions if we continue to play these kinds of games with them. This needs to stop. Now.
Photo Credit: CBC News
