Courting controversy
STEPHEN HARPER LEFT THE SUPREME COURT MUCH AS HE FOUND IT — UNFORTUNATELY FOR CONSERVATIVES
When Stephen Harper appointed Richard Wagner to the Supreme Court in 2012, the media described him as a “small-C conservative.” He was the son of Claude Wagner, they noted, who was at one time Quebec premier Robert Bourassa’s “tough ... law-and-order attorney general,” and at another time a Tory MP who narrowly lost the party’s 1976 leadership race to Joe Clark. (They also noted he is a man, which temporarily threw the nine-member court’s gender parity out of whack.)
At Wagner’s hearing before MPs, the Toronto Star reported, he “drew a clear line between the work of judges, which he said is to interpret laws, and that of parliamentarians, which is to make laws” — something for conservatives to cheer, perhaps, and perhaps something for liberals to fear. Progressive Canadians place much stock in the courts’ guidance on Charter issues, and in recent years that guidance has been music to their ears — on same-sex marriage, prostitution and many other issues. But Wagner also made clear that, like most Canadian jurists, he sees the Charter of Rights and Freedoms as a living, breathing document, not one frozen in amber.
That wasn’t such good news for conservatives. There hasn’t been much good news for conservatives at the Supreme Court in a long time.
Unlike in the United States, “constitutional originalists” are a rare breed in Canada’s legal community. The “living tree” view of the Charter, as a document to be interpreted and reinterpreted as times change, is dominant. “Harper did not have much of an opportunity to appoint conservatives in the vein of Antonin Scalia to the Supreme Court because they don’t really exist in Canada’s legal community,” said University of Waterloo political scientist Emmett Macfarlane, an expert on the Supreme Court.
In fact, with the exception of Marc Nadon — whom the court ruled ineligible to represent Quebec — Harper barely even rocked the boat. He could hardly pass wind without his opponents shrieking in horror, but there were always plenty of mainstream voices willing to praise his choices for the high court. In Wagner, Trudeau has appointed a Chief Justice who might serve for 15 years. Many Canadians would surely have been happier with the more obviously progressive Rosalie Abella; but everyone seems perfectly content with Wagner — even those who wouldn’t pour a drink on Harper if he were on fire.
In short, after nearly a decade of work, it’s not clear Harper made much of a difference at all.
Ted Morton, the University of Calgary political scientist and former Alberta Tory cabinet minister, concedes there isn’t a deep pool of conservative judges in Canada from which to pick. Nevertheless he argues Harper “underperformed” on his appointments “from a conservative perspective.” He thinks Harper and his justice ministers failed to realize the extent to which the court might stand athwart their governments’ parliamentary agendas.
The list of Conservative losses at the Supreme Court is long and famous: Nadon, assisted suicide, prostitution, mandatory minimum sentences for gun crimes, Senate reform, credit upon conviction for time served pre-trial. In some cases Harper appointees have dissented along conservative-friendly lines: Justice Michael Moldaver (by himself) on Nadon, and with Justices Wagner and Marshall Rothstein on mandatory minimums, for example. Moldaver and fellow Harper appointee Suzanne Côté recently took very trenchant issue with the majority’s baffling reasoning in the Ktunaxa case — a potential landmark case on religious freedom in general, and Indigenous religious freedom specifically.
“It is not the role of this Court to transform all policy choices it deems worthy into constitutional imperatives,” Rothstein and Wagner argued in a dissent in Saskatchewan Federation of Labour v. Saskatchewan, where the majority ruled in favour of public employees’ right to strike.
But on other highly contentious issues — prostitution, assisted suicide, Harper’s Senate reform plan, and pre-trial custody — the justices were unanimous. “Some of the cases are quite astonishing if one thought that there was going to be an impact on the court from (Harper’s) appointments,” remarked University of Saskatchewan law professor Dwight Newman.
A quarter of a century ago, Morton and his University of Calgary poli-sci colleague Rainer Knopff coined “the Court Party” to describe an insidious system that ostensibly developed after the Charter came into force to ensure courts would interpret the law precisely this sort of way. As Morton defined it in a 1992 paper in the Osgoode Hall Law Journal, the Court Party consists of “the new citizens’ interest groups that have spring up around ‘their’ sections of the Charter” — women’s groups, Indigenous groups, environmentalists groups, and so on — and a taxpayer-funded apparatus to ensure their interests are maximized in the courts regardless of what the Parliament or the voters of the day might think.
“Just as the state is present in the Court Party, so the Court Party can be found within the administrative state,” Morton wrote: “public funding of Charter litigation (through the Court Challenges Program); providing the institutional playing field and personnel in the form of courts and human rights commissions; engaging in a Charter clearance process within government prior to the introduction of new policy; and indirectly through the public funding of universities, providing the home base of constitutional experts and policy intellectuals.”
This situation was an important animating grievance for the Reform movement of which Harper was a significant part. There is no evidence Harper’s antipathy toward the court, which in 1997 he famously called “increasingly arbitrary and important,” or his less-than-unconditional love of the Charter, diminished over his time in office. And yet Morton argues Harper left office, and Wagner takes his, with nothing much having changed. It certainly would have been worse for conservatives, at least symbolically, had Trudeau chosen conspicuously liberal Justice Abella over Wagner. But what that difference might actually mean in real life remains to be seen.
“While the Court would look quite a bit different if Justin Trudeau had been making appointments since 2006, I’m not sure the outcomes necessarily would,” said Macfarlane, citing the cases Harper’s government lost at the hands of its own appointees. “I think appointments of even ‘moderate’ justices in our legal culture result in a Court that’s very comfortable asserting a particular set of values under the Charter.”
It’s true that Harper’s Conservatives cancelled the Court Challenges Program, just as Brian Mulroney’s Progressive Conservatives did before. A Conservative government might thereby slow the pace of Charter litigation, Newman suggests (though you would hardly know it from the court’s decisions during Harper’s prime ministership).
But then Justin Trudeau’s Liberals reinstated the Court Challenges Program just as Jean Chrétien’s Liberals did before them.
Some legal observers suggest some of Harper’s appointees to lower courts might eventually come good from a conservative perspective in years to come, especially if they ever filter up to the Supreme Court. But if conservatives desire a more deferential judiciary, it seems they will have to win an argument that their elected officials seem hesitant even to broach these days: that Parliament is indeed the proper place for the big decisions to be made; that justices are not infallible or above reproach; indeed, that they are fallible human beings who sometimes get things totally, bizarrely wrong, to the detriment of us all.
The Court Party is still set up to ensure such ideas remain on the fringe, Morton argues. But if they are to be anything other than an animating grievance for Canadian conservatives, their proponents will have to up their game.
EVERYONE SEEMS PERFECTLY CONTENT WITH WAGNER — EVEN THOSE WHO WOULDN’T POUR A DRINK ON HARPER IF HE WERE ON FIRE. — CHRIS SELLEY