Thousands of years ago the Hebrew Bible records a practice of the ancient Israelites. Aaron, spiritual leader and High Priest, would select two goats designating one as a sacrifice for God while the other – designated by a red string tied around its neck – had the distinct misfortune of representing the nation’s sins and was cast off the precipice of a cliff; the original scapegoat.
Centuries later, far from the desert wilderness of the early Jews, Prime Minister Harper (along with a host of pundits, authors, and a sizeable portion of Canadians) has tied a similar crimson knot into a glorious political bow around the necks of the Supreme Court of Canada and Judges across this country, casting them off the cliff of public opinion.
I am of course referencing, in admittedly hyperbolic prose, the very public battle being waged by the Harper legal agenda against the stubbornly predictable pushback of the courts. In just the last few years, the government has suffered spectacular losses at the Supreme Court of Canada including the failed appointment of Marc Nadon, striking down laws prohibiting prostitution and doctor-assisted suicide, blocking efforts to reduce ‘dead-time’ credit for pre-sentence custody, protecting the hated Senate from dying a Parliamentary death, and, most recently, rejecting the centre-piece of the get-tough-on-crime agenda: mandatory minimum sentences.
Each time, the response from government has been as predictable as it is nonsensical. Paraphrasing: ‘Those darn unaccountable Judges are at it again, usurping the will of good hard-working Canadians as expressed through their elected representatives.’ This refrain rings hollow to anyone with a passing familiarity of the Canadian court system and the statutory framework in which it operates.
Blaming activist unelected judges for usurping the will of the Canadian people begs the question, how did these judges get there in the first place? While the battle lines between PM Harper and the judiciary have been clearly drawn, it is a rare general who has the distinct advantage of appointing every senior soldier in his enemy’s army. Having been Prime Minister since 2006, Harper has been in direct control of the Superior Court of Justice, every Provincial Court of Appeal, the Federal Court of Canada, and the Supreme Court of Canada for nine years. In every one of the constitutional showdowns highlighted earlier, a majority of the Supreme Court were Harper appointees. Enjoying lifetime judicial appointments (until mandatory retirement age) it is admittedly easier for these canines to bite the hand that feeds, but it speaks to the overwhelming weakness of the many legal battles the government has chosen to fight that their own hand-picked Judges are regularly and vocally critiquing their courtroom agenda.
How did we get to a world where the country’s elected Prime Minister is consistently brought to heel by a gang of unelected robed philosopher kings? As the bumper stickers say, “It’s the Charter, stupid!” Ah yes. The Charter. That devilish piece of legal wizardry that has empowered judges to run roughshod over the will of the people. So goes the refrain at least but does anyone remember who birthed the Charter? Although only a few decades old, listening to today’s Conservatives one might think the Charter was crafted in some law school ivory tower and imposed by judicial fiat onto an unsuspecting Parliament. ‘Twas not always so.
Back in 1960 Canada had federal human rights legislation embodied in the Canadian Bill of Rights. As a Federal statute, it had the same force and effect as any other Act of Parliament. It could be relatively easily amended or repealed and was generally interpreted rather narrowly by jurists prone to judicial deference. In 1982 Parliament – that same body elected by the Canadian people that now complains so bitterly – decided that Canada needed not just another law on par with all other federal laws, but a Constitutional law elevated as the “supreme law of Canada” [section 52(1)] that would set limits and restrictions on all government powers in accordance with fundamental rights and freedoms inherent to all Canadians. As a constitutional measure, it required not only broad support within the federal Parliament but the support of a majority of the Provinces and indeed the political support of the Canadian people. There was opposition to be sure (hello Quebec!) but the Charter was not some pet project of PET (then PM Pierre Elliot Trudeau). Yes, it is legally extraordinarily difficult to abolish or amend the Charter today – which was exactly the point back in 1982 when it was extraordinarily legally difficult to give birth to such a radical legal statement of rights and freedoms in the first place.
So, if politicians can’t blame the judges they appoint, and they can’t blame the laws they enacted, what can they argue in the face of these pesky Charter decisions that have stymied so many legislative agendas? One argument making the rounds suggests that the Charter’s legal tentacles have extended far beyond the intent of the framers and the time has come to reign in the unpredictable powers of judges under its mandate. The suggestion that the framers couldn’t predict the extraordinary societal impact of Charter litigation on modern Canadian society does not stand up to reasoned scrutiny. Without a doubt, the framers did not – and could not – predict such far-reaching results as a right to medicinal marijuana or the dramatic expansion of gay rights. But, they clearly knew they were letting the legal genie out of the statutory bottle – why else would the initial introduction of the Charter in 1982 include a three year grace period before the broad-reaching equality provisions of section 15 came into force and effect? When introducing rights and freedoms, principles of fundamental justice, and guarantees of equality before the law, I accept that the framers didn’t envision the precise Canada we live in today but it would be foolish revisionism to suggest that they didn’t know something BIG was happening and that the seed they were planting would grow into a living tree whose branches and leaves could not be accurately predicted.
So what’s a duly elected government to do when its legislative agenda is thwarted time after time by activist judges empowered by a three-decade old constitutional experiment? One might suggest that abandoning a clearly unconstitutional agenda is the discretion at the heart of the better part of valour but, if the PM is not so inclined, his answer lies within the Charter itself. Although Pierre Trudeau opposed its inclusion, the political jockeying required to sell the Charter to all its political stakeholders, caused the inclusion of section 33 – the notwithstanding clause. For all the talk of the Charter usurping the power of democratically elected Parliamentarians, section 33 gifted federal and provincial governments with a nuclear bomb option. Don’t like activist judges messing with your laws? Boom! Notwithstanding. Invocation of section 33 gives government the power to ignore any and all fundamental rights, freedoms, and equality provisions (sections 2, 7 and 15) subject only to a five-year sunset clause. Still want to violate constitutional rights after your five year exemption runs out? Section 33(4) has got you covered – you can re-enact your notwithstanding declaration for another five years as many times as you’d like.
To its great credit, no federal government – including the oft-criticized Harper Conservatives – have ever invoked the notwithstanding clause. Most Provinces and Territories have also rightly seen the use of the notwithstanding clause as political suicide and a fundamentally dirty tactic but that didn’t stop Saskatchewan, Alberta, the Yukon, and – most regularly – Quebec, from invoking their ‘free pass’ against Charter scrutiny at one point or another. This is not to suggest that I favor the use of section 33. Depriving someone of their constitutional rights by resort to the notwithstanding clause is a level of legal ugliness that I hope no politician would every stoop to. But, if the government is so convinced that the Supreme Court of Canada is out-of-touch with the will of Canadians and is endangering the welfare and security of the public with their activist agenda, the power and precedent exist to enforce unconstitutional laws.
All this is to say, despite the rhetoric of a ‘war’ between our courts and our government, the delicate balancing of our legal pendulum is preserved. It is not the role of the court to tow the government line or blindly rubber stamp controversial legislation. Judges are appointed to their positions by the government. The court does not make law but it does rightly interpret, restrict, apply and in some cases invalidate legislation that violates the supreme law of this country – a law enacted by the power of Parliament in the first instance. If, at the end of the day, government cannot abide the constitutional invalidation of one of its laws, the nuclear option of the notwithstanding clause always exists. But politicians should beware: too much scapegoating of the judiciary and a government might find that the red string has been tied around its own neck and it will be a government – not the courts – that finds itself cast over the sacrificial cliff.