Harper attacks the rule of law

Over his political career Stephen Harper has done a lot of shocking things: proroguing Parliament—twice—to avoid political embarrassment (the third time was a normal prorogation); cancelling a planned speech at the United Nations to return to Canada for a Tim Horton’s photo op; breaking his own fixed election date law; placing the bulk of his annual legislative agenda in omnibus budget bills with limits of debate or study. Admittedly it’s a long list, and I have barely scratched the surface.

Still, I don’t think I have ever encountered as many deeply horrified and shocked Conservatives over one of Harper’s actions as over his attack on the Chief Justice of the Supreme Court of Canada.

The triggering event was the court’s 6-1 ruling on March 21, 2014 that Marc Nadon, a semi-retired federal court judge from Quebec, was not eligible for appointment to the Supreme Court of Canada as a representative of Quebec. This judgment came from a court with the majority of judges appointed by Harper. Up until the Nadon appointment, Stephen Harper’s choices had been exemplary—Tom Cromwell, Marshall Rothstein, Michael Moldaver, Andromache Karakatsanis and Richard Wagner.

Nadon fell well below the mark. His background was in admiralty law, a particularly narrow area of law not often before the highest court. His most notable contribution to jurisprudence had been a dissenting opinion in the case of Omar Khadar where the majority found the government had violated Omar Khadar’s rights. Another of his lesser known opinions had been to bar me from the 2011 leader’s debate.

However that may be, the legal issue that became an immediate hurdle was that the Quebec appointment to the court should be a judge with experience in Quebec civil law. The Supreme Court of Canada Act made it clear that an appointment to the bench from Quebec had to be a member of the Quebec bar. Nadon was not.

Harper had appointed Nadon in October, but back in July the Chief Justice had attempted to raise the concern that Nadon was not eligible. The Chief Justice is normally consulted about new appointees to the bench.

The Prime Minister’s Office waited until after the decision to issue a public statement that Harper had refused to discuss the matter with Chief Justice Beverly McLachlin. Both Harper and Justice Minister Peter MacKay suggested that the Chief Justice had behaved improperly. They attempted to create the impression that the chief justice’s requested phone call about the legalities of a proposed appointment were on the same scale as an attempt to discuss a case before the court. The latter would have been scandalous; the former is normal practice.

Delayed Second Attack

That Harper raised it months later in an attack on the Chief Justice sent shock waves across Canada. The Canadian Bar Association (CBA) called on the prime minister to acknowledge the Chief Justice had done nothing wrong. Eleven past presidents of the CBA called on the prime minister ‘to remedy the situation;’ one they felt ‘may intimidate or harm the ability of the Supreme Court to render justice objectively and fairly.’ One group of prominent lawyers has written the International Commission of Jurists, requesting an international investigation to protect the independence of the Canadian judiciary. As a former practicing lawyer, I have found the attack on the Chief Justice deeply disturbing.

Having assaulted our Parliamentary institutions and principles over time—everything from the independence of the civil service, to the supremacy of Parliament, to Canada’s role as a Constitutional Monarchy—it now seems the prime minister was ready to attack the rule of law. Clearly, in the past he had ignored court rulings—such as the finding in the Omar Khadr case. And within months of becoming prime minister, Harper killed two key programmes that built on a growing jurisprudence of the package of Charter-protected rights and freedoms—eliminating both the Court Challenges Programme and the Law Reform Commission of Canada. He has forced through bill after bill, despite warnings from top Constitutional law experts that the legislation would not survive court challenge.

Was there a plan to run against the court? Blame the Supreme Court for being unable to put bad guys in jail forever; blame it for blocking Senate reform? Blame it for protecting a set of values Harper does not like? Or was this random recklessness, disconnected from a plan? Sometimes when someone behaves like a bull in a china shop, it’s not because they intend to destroy everything; it’s just because the only way a bull can walk through a china shop is to wreck everything.

In Paul Well’s award-winning book about Harper, The Longer I’m Prime Minister, he argues that a significant influence on his thinking is a 2002 book by his first Chief of Staff, Ian Brodie. Friends of the Court: The Privileging of Interest Group Litigants in Canada, was based on Brodie’s work during his doctorate. Brodie argued that the Liberals had put in place the Charter to enshrine Liberal values. That coupled with an ‘activist court’ would lead to forcing Alberta to pass laws to defend same-sex marriage and extend spousal benefits to such marriages, to advance a Liberal agenda in ways that electoral politics alone could not.

Reading Well’s book, it came as no surprise that the Court Challenges Programme and Law Reform Commission had been early victims on Harper’s ‘hit list’. What is unfortunate is that the Opposition Parties let him do that in a minority Parliament.

What wasn’t clear then should be clearer now. Stephen Harper sees the Charter of Rights and Freedoms as a Liberal institution. Despite having appointed the majority of judges to the Supreme Court of Canada, he is willing to treat our highest court as a partisan tool of the Liberal rule of years ago.

We had a hint of this when there was not even a press release to mark the anniversary of the Charter of Rights and Freedoms being enshrined in our Constitution. For a prime minister who seems to celebrate every anniversary—the War of 1812, Canada’s 175th year, the Queen’s Diamond Jubilee, and now the 100th anniversary of the first year of the First World War—there was nothing to mark the 30th anniversary of the Charter. Harper’s treatment of our courts is disturbing. While there is a lot of anxiety about his appointments to our highest court, many senior lawyers fear the mediocre, and worse, appointments to lower courts will create more havoc. And meanwhile, the Supreme Court of Canada has had to function since April 2013 one judge short and without a jurist from Quebec.

The attack on our Chief Justice is not just another unworthy assault on a decent civil servant, in the same vein as the attacks on Linda Keen, Kevin Page, Munir Sheikh, Marc Mayrand or Richard Colvin. This is of another order. This is an attack on fundamental principles of the rule of law. This must not go unanswered.