Harper aims to bait Supreme Court
Confrontation: Conservatives appear bent on reviving clause to override charter rights
Between an imperious federal government and a runaway Supreme Court, we are headed for a legal and constitutional imbroglio.
The Harper government, it is widely observed, has taken with increasing frequency, if not glee, to stuffing the bills it presents in Parliament with measures that are in self-evident violation of the constitution. Not only is the government making no apparent effort to “charter-proof” legislation, that is by seeking the advice of Justice department lawyers on its constitutionality in advance of its introduction, as it is required by law to do, it seems if anything to be taking advice on how to offend it.
It is impossible to read the several dubious provisions of Bill C-51, the Conservatives’ anti-terrorism legislation — allowing the police to detain people on suspicion an act of terrorism “may” be about to occur; permitting intelligence officers to break the law, bizarrely, with the permission of a judge; banning the promotion of terrorism “in general” — in anything but this light.
Still more blatant is the bill, still to be introduced but already popularly known as the Throw Away the Key Law, requiring those convicted of certain crimes to be jailed until they are dead, without chance of parole. The inclusion of a right to appeal for clemency to the Minister of Public Safety after 35 years, supposedly in response to “legitimate constitutional concerns,” must be regarded as something of a flip of the finger in the direction of the Supreme Court. How they must have laughed in the Prime Minister’s Office as they drafted it.
But if the government has seemed to go out of its way of late to insert rights violations in legislation, the court has seemed equally determined, in its recent decisions, to find violations of rights that aren’t there. The issue, as I’ve written before, isn’t that the court has been overturning laws with greater frequency, or to more radical effect. If the legislation under challenge plainly contradicts the constitution, that is its job — the job Parliament assigned it to do.
Rather, it is the shoddy reasoning, the slapdash approach to precedent, the curiously selective research, that has many legal scholars, not necessarily given to court-bashing, raising the alarm. Whole conferences have been given over to the deficiencies of the Nadon and Senate references. The discovery of a right to strike in the charter’s right to association, as in the Saskatchewan Federation of Labour decision, or a right to die in the right to life, in the assisted suicide decision, only cements the impression of a court that has given up even pretending to apply the law as it finds it.
Between passing laws that aren’t constitutional and striking down laws that are, the two have already succeeded in doing immense damage, not only to their own reputations, but to democracy and the rule of law. But it seems almost certain to get worse.
In the past, one might have accused governments of drafting legislation they knew to be unconstitutional, hoping to bask in any short-term popular approval — for what is popular and what is lawful are not always the same — while leaving the court to clean up the constitutional mess afterward. But the current government’s rhetoric, as much as its record, suggests it has something else in mind: a deliberate strategy of confrontation.
It is hard to escape the feeling it is baiting the court, daring it to take one step too far. And the court, for its part, seems only too willing to oblige. For all the Harper government’s efforts to undermine its credibility, the court, with its recent string of rulings, has done its best to undermine it on its own.
Even so, I can’t imagine the government would think it would win a straight-up battle for popular opinion with the court. The percentages don’t support an explanation rooted in simple partisan advantage-seeking. Rather, I think it is aiming for a much larger target: the charter. It is no secret that many Conservatives have long chafed at the notion that acts of Parliament should be subject to constitutional override. It wasn’t the court’s judgment they questioned — it was the whole concept of judicial review. For these Conservatives, the remedy, short of abolishing the charter, has always been the notwithstanding clause: Section 33, allowing governments to pass legislation in defiance of the charter, provided they declare openly they are doing so, and with the stipulation that the legislation must be renewed every five years to remain in effect.
While the clause has been occasionally invoked at the provincial level — or, under the Levesque government in Quebec, routinely — it has never been used by any federal government. Even provincially, it has been so rarely used of late as to be in danger, with the passage of time, of becoming a dead letter.
The stated ambition of many judicial conservatives, then, such as the panel of legal scholars that appeared at last week’s Manning Conference, has been to revive it: not merely to invoke the clause in this or that case, but as often as possible, and thus to re-establish the primacy of Parliament, as they see it, over the charter, and the court.
I do not think it is too farfetched to suppose that that is the Harper government’s objective. They will pick their opportunity carefully. They will not do so, I do not think, over the assisted suicide decision, where they are on the wrong side of public opinion. But on something unassailably popular, like a crime bill, or an “Anti-Terrorism Act.” And once they’ve broken the taboo, it is not hard to see them doing it again, and again, until the point has been made.
And the Supreme Court, thanks to its increasingly erratic judgments, is handing them the fuel with which to light this constitutional blaze.