Remember this quote uttered in the dying days of the 2004 federal election? “Well, to heck with the courts, eh? If the Charter of Rights and Freedoms is going to be used as the crutch to carry forward all of the issues that social libertarians want, then there’s got to be for us conservatives out there a way to put checks and balances in there.”
One of the several Conservative “bozo eruptions” during the 2004 federal election, it was uttered by then-B.C. Reform Party MP Randy White.
The Conservatives lost in 2004, but won a minority government in 2006. Once in power, Prime Minister Stephen Harper rode herd on his social conservative base, paving the way for his majority victory in 2011.
However, the current- and unprecedented – row between the prime minister and the chief justice is proof, if Canadians are in need of any, that political ideology – true belief – is impervious to compromise and change.
In fact, it’s amazing that ideology hasn’t manifested itself sooner given the sharp cleavage between the values and beliefs of the 30 to 35 per cent of Canadians who support Harper and his Conservatives and the 65 to 70 per cent of Canadians who back one of the four parties comprising the centre-left.
As a fresh-faced graduate of the neo-conservative Calgary School, Harper was – and remains – a fervid devotee of small government, low taxation, market orthodoxy, individual rights and liberties, traditional families, and especially, law, order and punishment.
Thus it wasn’t just happenstance that, as one of his first acts upon being sworn in as prime minister, Harper cancelled the Court Challenges Program initiated by Pierre Trudeau’s Liberals. It was specifically designed to level the legal playing field between the powerful and the powerless by providing public financing for ordinary citizens and social groups to launch legal challenges to unfair or discriminatory situations, laws and actions. In Harper’s world, such pandering to bleeding hearts had to go – immediately. And it did.
But that was as far as Harper was prepared to push to satisfy his red meat base. Until now.
The unprecedented showdown between the prime minister, the chief justice and the Supreme Court is akin to a pot finally boiling over on the stove. The genuine beliefs and principles of the prime minister and his party could not be contained any longer. They burst into the open and are now exposed for all to see.
No more mushy middle.
Building up to the unprecedented assault on Chief Justice Beverley McLachlin and the Canadian Supreme Court have been the Harper government’s smacks upside the head for virtually every senior federal public official, from former Auditor General Sheila Fraser to Chief Electoral Officer Marc Mayrand and from Peter Tinsley of the Military Police Complaints Commission to Kevin Page, Canada’s first – and widely admired – Parliamentary Budget Officer.
It appears the government needs a refresher course in the forms and conventions of constitutional parliamentary government. It needs to finally accept that Canada, unlike the Mother of Parliaments in Britain, has a written constitution. That means it is a constitutional parliamentary government, bound by laws and a written constitution, not precedent alone.
Canada’s written constitution is the reason that the Harper government lost, by a vote of 8-0 , its attempt to make the Senate an elected chamber with term limits or abolish it. The court ruled elections and term limits would, as stipulated in the written Canadian Constitution, require the government to gain the consent of seven provinces representing half the country’s population. Further, it ruled outright abolition would require the unanimous consent of all provinces.
The Harper government lost, by a vote of 7-0, its attempt to stop judges from giving offenders extra credit for time served in custody while awaiting sentencing. The court ruled that judges have discretion under the act to routinely give 1.5 days credit for every day served.
The Harper government lost, again, by a vote of 8-0, its attempt to block an inmate from challenging his transfer to a maximum-security jail from a medium-security jail. The Harper government wanted the inmate to go through a lengthy process involving the federal court. The court ruled that prisoners’ rights to habeas corpus gives them prompt access to superior courts in whatever province they are in.
The Harper government lost, by a vote of 6-1, its attempt to appoint Federal Court Justice Marc Nadon to the Supreme Court to fill a Quebec vacancy. The court ruled that Nadon was ineligible because he lacked the specific qualifications required for Quebec judges on the Supreme Court.
Justice Minister Peter MacKay stripped access to early parole from non-violent, first-time federal offenders, including those already sentenced. The Supreme Court ruled, by a vote of 8 to zero, that the law cannot be applied retroactively.
After this unbroken string of defeats at the hands of the Supreme Court, it’s little wonder that the prime minister and his government undoubtedly share Randy White’s perspective on the law, courts and justice and believe even more strongly that governments should be able to simply say “to heck with the courts, eh?” and get their way.
Unfortunately for the prime minister and his government – but fortunately for Canada as a first world democracy – he and it must continue to govern according to the rule of law and the written Canadian Constitution and not by personal preference – or political prejudice .
Frances Russell was born in Winnipeg and graduated from the University of Manitoba with a Bachelor of Arts degree in history and political science. A journalist since 1962, she has covered and commented on politics in Manitoba, Ontario, B.C. and Ottawa, working for The Winnipeg Tribune, United Press International, The Globe and Mail, The Vancouver Sun and The Winnipeg Free Press as well as freelanced for The Toronto Star, The Edmonton Journal, CBC Radio and TV and Time Magazine.
She is the author of two award-winning books on Manitoba history: Mistehay Sakahegan – The Great Lake: The Beauty and the Treachery of Lake Winnipeg and The Canadian Crucible – Manitoba’s Role in Canada’s Great Divide. Both won the Manitoba Historical Society Award for popular history.
She is married with one son and two grandsons and lives in Winnipeg.