Conservatives and the Courts

November 18, 2013

In a very interesting article this weekend PostMedia’s Stephen Maher referenced comments made by Stephen Harper following the 2006 election.  Harper stated that his government’s absolute power would be kept in check by the courts.

Harper was correct in principle.  The courts, through the application of constitutional principles, act to keep the power of the state in check.   This check ensure that individual (and in many cases minority) rights are protected.  

It is, however, only through the continued legitimacy of the courts that life can be given to this check and to our fundamental constitutional protections.

Given that the legitimacy and independence of the courts play such a vital role in ensuring the survival of constitutional protections it is unfortunate that the Conservative Party’s frequent refrain is to seek to undermine respect for our judiciary.

This lack of respect was most recently demonstrated by by Justice Minister Peter MacKay. 

As reported by the Ottawa Citizen and National Post, Mackay accused judges who exercised their discretion to give indigent offenders time to pay manditory victim fines of making a “making a mockery” the governments new legislation.  MacKay went on to say that the judges’ actions were “insulting” and “disrespectful” to victims.  

I have written on the absurdity and unfairness of mandatory victim fines when applied to indigent offenders.  The judicial response to this legislation, in an attempt to address unfairness, should not be undermined by the Justice Minister.

This is hardly new behaviour.  Indeed, the Conservative Party has not been shy in their criticisms of the courts.    

In 2011 Immigration Minister Jason Kenney attacked on Federal Court judges for decisions he didn’t agree with suggesting that judges were interfering with the Government’s immigration objectives.  Kenny said, as reported by the Toronto Star:

“So it concerns me when I hear that more than half of the cases that come before the Federal Court are immigration- or refugee-related […] It suggests to me that the integrity of the decisions made by my department is being questioned too often without sufficient justification.”

“Even in easy cases, the removal process can be exploited by clever immigration lawyers who know that our courts are too often willing to indulge even the most creative and dubious claims”

In November at the Conservative Party Convention Stephen Harper blamed the courts for standing in the way of Senate reform.  Placing blame at the feet of the judiciary seemed to be in response to the a reference to Quebec Court of Appeal on Senate reform.  In that case, released a few days before Harper’s speech, the court found that:

In conclusion, Bill C-7, if it had been adopted, would have been unconstitutional without the agreement of the majority of the provinces pursuant to subsection 38(1) of the Constitution Act, 1982, since its true nature was to amend the method of selection of senators and the powers of the Senate without having respected the applicable amending procedure. In reality, Bill C-7 attempted to circumvent that procedure.

Harper’s comments are all the more inappropriate given the that the Supreme Court of Canada was days away from its own hearings on Senate reform.  

The mistrust of the courts by Conservitives was made plain to me durring an exchange with a Harper appointed Senator at a committee hearing:

Senator Eaton: Rape?

Mr. Spratt: There are no minimum sentences for sexual assault.

Senator Eaton: If a woman is raped, there are no minimum sentences. A judge could give two years, say, if I was married to the person, or, if I was on the street, a judge could sentence my rapist to two years?

Mr. Spratt: In the case of a sexual assault where a woman is victimized, we trust judges to impose the correct sentence.

Senator Eaton: Would you not think that a sex offence against a child or child labour is at least as heinous a crime as second-degree murder?

Mr. Spratt: This is the problem when we are dealing with absolutes. One can imagine many different cases where an offender takes someone’s life, and one can imagine a great many cases where a child is subjected to unspeakable acts. The problem with mandatory minimum sentences, and the problem I have answering that question, is that I cannot think of all the permutations that may exist.

Senator Eaton: I guess I lack imagination to imagine why you would object to a minimum sentence if a child has been exploited in any way.

Mr. Spratt: I trust our judiciary.

Senator Eaton: I guess I do not completely in that regard.

The Conservative Party’s attitudes to the judiciary can be contrasted to that of former governments.  In a 2006 address to Parliament following the Supreme Court reference re: same sex marriages, Paul Martin said:

[W]e are guided by the ruling of the Supreme Court of Canada, which makes clear that in no church, no synagogue, no mosque, no temple – in no religious house will those who disagree with same-sex unions be compelled to perform them. Period. That is why this legislation is about civil marriage, not religious marriage.

Moreover — and this is crucially important – the Supreme Court has declared unanimously, and I quote: “The guarantee of religious freedom in section 2(a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages that are contrary to their religious beliefs.”

The facts are plain: Religious leaders who preside over marriage ceremonies must and will be guided by what they believe. If they do not wish to celebrate marriages for same-sex couples, that is their right. The Supreme Court says so. And the Charter says so.

This type of respect for courts is all but absent from the Conservative Party.

It is not surprising that the Conservative Party finds itself in conflict with the courts.  This is an unavoidable situation when policy decisions are made that are in conflict with expert evidence.  It is unavoidable when ideology rules the day.

The Conservatives can ignore evidence when legislating.  They can dismiss expert opinion. They can give little consideration to the constitution.  Courts cannot. 

In order to save face it may be politically advantageous for the Conservatives to attack judges when courts are critical of their legislation.   This response undermines the very check that Harper said would hold his government to account.  This attack does not serve the interest of justice or the interest of Canadians.  

In 2006 Harper said the courts would act as a check against his absolute power.  The courts have.  Perhaps this is why they are under constant attack.