Thursday Thinkpiece: Morton & Snow on the Harper Conservatives and the Canadian Judiciary

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Law, Politics, and the Judicial Process in Canada, 4th Edition

Editors: F.L. Morton & Dave Snow
ISBN: 978-1-55238-990-4 (Paperback)
Publisher: University of Calgary Press
Page Count: 693
Publication Date: August 2018
Regular Price: $49.99 CAD / $49.99 USD

Excerpt: Introduction to Chapter 11: The Harper Conservatives and the Canadian Judiciary, by F.L. Morton and Dave Snow

For a complete listing of the readings referred to in this excerpt, please see the book’s Table of Contents.

The Harper Conservatives and the Canadian Judiciary

After thirteen years of Liberal Party rule, Stephen Harper led the Conservative Party of Canada to power in 2006. Having merged the Progressive Conservatives and the Canadian Alliance parties three years before, this was heralded as no ordinary change in government. The Canadian Alliance’s predecessor, the Reform Party, had populist roots and a strong base in Western Canada. The party’s antipathy towards the Central Canadian “Laurentian consensus” that had governed Canada for much of its existence led many to hope, and others to fear, that the 2006 election would mark the beginning of significant changes to Canadian political institutions and public policy.

The Harper Conservatives spent nine and a half years in power (2006–2015), four in a majority government. After their defeat in the 2015 election, the jury is still out as to whether the Harper decade was indeed transformational; for every commentator who claims Harper fundamentally changed Canada for good or ill, there is another who says his institutional and policy changes were piecemeal, incremental and easy to reverse. The judicial process remains one such area over which the Harper legacy remains hotly debated.

As Thomas Bateman (Reading 11.6) shows, even before he became Prime Minister, there were signs that Harper’s relationship with the courts would be different than his predecessors. During the 2006 election, Harper tried to reassure voters that one of the “checks on the power of a Conservative government” would be that “courts have been appointed by the Liberals.” While the Harper government’s subsequent defeats in the courts largely confirmed this, Bateman argues that it was nonetheless “impolitic” for Harper to say so. Canadians view their judges as independent, non-partisan and non-ideological; judges are beyond reproach, and politicians are loath to criticize them. Yet here was a political leader – on the cusp of becoming Prime Minister – suggesting that the party of appointment would influence judicial decisions. What did this portend for Canadian politics?

In hindsight, the Harper government certainly had a different conception of the role of the judiciary than its predecessors. As Emmett Macfarlane has argued, [1] Harper’s skepticism pierced a bipartisan “Charter regime” that had existed from 1982 until 2006. Shortly after coming to office, Harper cancelled the Court Challenges Program, although he eventually restored the minority language component in 2008. This reflected a government that was less fawning in its reverence for the Canadian Charter of Rights in Freedoms than the other federal parties, and more partial to judges who exhibited deference to Parliament, particularly on criminal justice issues. The Harper government was, in short, the first federal government to treat with suspicion the institutional and policy changes wrought by the Charter Revolution.

During the Harper decade, a new relationship between the federal government and the courts emerged in three ways: first, changes to the judicial appointment process, both for lower courts and the Supreme Court of Canada; second, a more combative relationship with the Supreme Court of Canada, made manifest most clearly in the fallout after the Supreme Court’s historic rejection of the appointment of Justice Marc Nadon; and third, by the sheer number of losses on major policy issues in the Supreme Court itself, even after the Court was composed of a majority of Harper-appointed judges.

Judicial Appointments to Lower Courts
One of Harper’s earliest reforms was to change the composition of the Judicial Advisory Committees (JACs) that select all federally appointed judges (section 96 and 101) apart from the Supreme Court of Canada. The JACs had previously consisted of seven appointed members – three discretionary and four nominated – who ranked judicial candidates as highly recommended, recommended or not recommended (see Chapter 4). The four nominated positions – a judge, a member of a provincial law society, a member of a provincial bar association and a nominee of the provincial Attorney General – were all representatives of the legal community.

The Harper government made three changes to the JACs: it added a representative from the law enforcement community; it limited the judicial representative to a non-voting chair (except to break ties); and removed the “highly recommended” category, returning to the twofold categorization that the JACs had used from 1988 to 1991. In Reading 11.2, Rainer Knopff describes these changes, and the responses they provoked. In Knopff’s words, critics railed against the Harper changes as “a startling departure from the ‘merit principle’ in judicial selection in favour of a dangerous ideological politicization of the judiciary.” Such critics included then Chief Justice Beverley McLachlin, former Chief Justice Antonio Lamer and the Canadian Judicial Council. Knopff claims the critiques from the legal community turn on a definition of “merit” that ignores the political reality of judicial decision-making; it is a distinction that also reflects the declaratory model of judicial decision-making (see Chapter 2). The real objection, Knopff surmises, is that by removing the judicial vote and adding a law enforcement representative, the JAC majority shifted from lawyers to non-lawyers. Accordingly, the legal community’s exaggerated response to the JAC changes was “the latest episode in the long-standing partisan demonization of the Harper Conservatives as anti-Charter and anti-court.” It would not be the last.

By the time Harper had been in power for nine years, his government had passed a considerable amount of “tough-on-crime” legislation, including reforms to youth justice, an increasing number of mandatory minimum sentences and reforms to pre-trial custody. Alongside these reforms, Harper’s judicial appointments to lower courts represent what Sean Fine (Reading 11.1) calls “the little-noticed half of Mr. Harper’s project to toughen Canadian law.” In 2007, Harper proclaimed that his government wanted “to make sure that our selection of judges is in correspondence” with its desire to “crack down on crime and make our streets and communities safer.” By the end of Harper’s tenure, his government had named nearly 75 per cent of the 840 full-time federally appointed judges. Fine documents how the Conservative government sought to appoint judges who would adopt an “originalist” position on the Constitution rather than the Living Tree (see Reading 12.3), accord greater deference to Parliament and accept the loss of judicial discretion entailed by Harper’s crime bills. In doing so, they favoured prosecutors over criminal defence attorneys and academics. These judges, Fine argues, are “Mr. Harper’s enduring legacy.”

Jamie Cameron (Reading 11.3) sees a worrying trend in such appointments. She claims the latter days of the Harper government were characterized by a more overt desire to “pack” courts with judges known for their ideologically conservative views, both at the lower courts and with Harper’s final Supreme Court appointment, Justice Russell Brown. Others question whether Harper’s stamp on the judiciary was that influential, and whether it will actually endure. Emmett Macfarlane (Reading 11.4) contends that the reaction to Harper’s lower court appointments “has been a fascinating mix of alarmism and ahistorical punditry.” While Macfarlane argues that ideological diversity is just as important as other forms of diversity on the bench, he claims there is little evidence that Harper’s appointments are as conservative as his detractors insist. “The real story of Harper’s judicial appointments,” Macfarlane writes, “has been how hard it has been for him to find clearly conservative individuals to appoint to the bench.”

Whether these lower court appointments will cement Harper’s legacy is an open question. However, his changes to the JACs will not endure: in its first year in power, Justin Trudeau’s Liberal government reversed the Harper-era changes by removing the law enforcement representative, returning the vote to the judicial representative and reinstating the “highly recommended” category.

Appointments to the Supreme Court of Canada
Harper also introduced changes to the appointment process for the Supreme Court of Canada (see Chapter 4). Under Harper, the process was so varied that, unlike the JAC reforms, it is impossible to discern a “Harper approach” to Supreme Court appointment. After being named to a shortlist by an advisory committee including several representatives from the legal community, Justice Marshall Rothstein became, in 2006, the first Supreme Court appointee to answer questions before a parliamentary committee. However, this committee did not scrutinize Justice Thomas Cromwell’s 2008 appointment (see Chapter 4). The next three Harper appointments (Justices Moldaver, Karakatsanis and Wagner) were nominated by a committee of Members of Parliament, and they answered questions before a parliamentary committee as well. Then came the appointment of Justice Marc Nadon.

In Reading 11.6, Thomas Bateman describes what came to be known as the Nadon Affair. With the impending retirement of Quebec Justice Morris Fish, Prime Minister Stephen Harper announced in 2013 that he would appoint Marc Nadon as Fish’s replacement. Nadon, a Quebecker, was a semi-retired judge on the Federal Court of Appeal at the time of his appointment. He had been a member of the Federal Court for over two decades, prior to which he had been a long-standing member of the Quebec bar. However, there were questions as to whether he satisfied section 6 of the Supreme Court Act, which required appointments to be “among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” Although Nadon was not appointed from the Court of Appeal or Quebec’s Superior Court, he had been an advocate in that province several decades earlier. Complicating matters was section 5 of the Supreme Court Act, which stated that “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” As Bateman describes, “The provisions could be read to require that Quebec appointees (but not others) must be current members of the bar or current members of a s. 96 court in Québec. Nadon was neither.”

The federal government sought the legal opinion of retired Supreme Court Justice Ian Binnie, who determined that Justice Nadon’s appointment would be constitutional. Retired Supreme Court Justice Louise Charron and Professor Peter Hogg each reviewed Binnie’s opinion for the federal government, and agreed. Nadon was formally sworn in to the Supreme Court in October 2013. Later that month, the government introduced an amendment to the Supreme Court Act to clarify that a person could be considered an advocate from Quebec “if, at any time, they were an advocate of at least 10 years standing at the bar of that Province.” Toronto lawyer Rocco Galati (supported by the province of Quebec) challenged Nadon’s appointment and the amendment, which led the Harper government to send a reference to the Supreme Court of Canada. On March 21, 2014, the Supreme Court ruled in Reference re Supreme Court Act, ss 5 and 6.[2] Remarkably, the same court that had sworn in Nadon voted 6–1 that his appointment violated the Supreme Court Act, insofar as he was neither a member of the Quebec bar nor a Quebec court at the time of his appointment. Even more remarkably, the Supreme Court declared that any changes to the statutory Supreme Court Act that affect the “composition” of the Supreme Court – such as the Harper government’s clarifying amendment – require unanimous provincial consent under the constitutional amending formula.

Incredible as it was, neither the Supreme Court’s rejection of a justice it had previously sworn in nor its constitutionalization of the Supreme Court Act were the most controversial part of the Nadon Affair. As Bateman recounts, less than two months after the decision, an unprecedented back-and-forth between the Prime Minister’s Office (PMO) and the Supreme Court of Canada played out in the press. Conservative sources told a reporter that the Chief Justice had lobbied the government against the Nadon appointment; the Supreme Court responded that it had merely advised the government of potential issues with the appointment, but did “not express any views on the merits of the issue.” The PMO then claimed the Chief Justice had initiated a call to the Minister of Justice, who in turn advised the Prime Minister that taking the call would be inappropriate; the Supreme Court responded that the Chief Justice merely sought to “flag” the issue with the Minister of Justice and the Prime Minister’s Chief of Staff, that consultation with the Chief Justice was “customary” for appointments to the Supreme Court, that there was “nothing inappropriate” about this, and that the Chief Justice ultimately decided not to pursue a meeting with the Prime Minister anyhow. For court watchers, the spectacle of a sitting Prime Minister and a sitting Chief Justice engaged in a literal “he said, she said” for several days was extraordinary.

To put it lightly, Harper did not win this public relations battle with the Supreme Court of Canada. As Bateman notes, the legal community “supported the Supreme Court without exception.” Leader of the Opposition Thomas Mulcair called Harper’s behaviour an “unprecedented and inexplicable attack on one of our most respected democratic institutions.”[3] Eleven former presidents of the Canadian Bar Association published an open letter (Reading 11.7) defending the Chief Justice’s behaviour as “perfectly in line with the sort of courteous discussions which have historically occurred between the judiciary and the executive,” while claiming Harper’s comments “demonstrate a disrespect by the executive branch for the judicial branch of our constitutional democracy, and for the Chief Justice of Canada.” These former presidents worried ominously whether the PMO’s statements were a threat to judicial independence, insofar as they “may intimidate or harm the ability of the Supreme Court of Canada to render justice objectively and fairly.” Even the International Commission of Jurists weighed in, claiming months later that the PMO’s statements were “not well-founded and amounted to an encroachment upon the independence of the judiciary and integrity of the Chief Justice.”[4]

In hindsight, concerns about threats to judicial independence seem overstated. Judicial independence in Canada is surely strong enough to withstand a few press releases from the PMO. Lorne Sossin (Reading 11.5), who is critical about the Harper government’s approach to the judiciary, nevertheless argues that it demonstrates that Canadian courts remain “fiercely independent” and that the relationship between the judiciary and the executive is “more resilient than many might have thought.” The swift reaction to the PMO’s statements by the opposition, the media and the legal community were further proof that any hint of a critique of the Supreme Court – even as tepid as those proffered by the PMO – will be subject to intense criticism.

Yet perhaps the Prime Minister is not the only one who deserves scrutiny in the Nadon Affair. In Reading 11.7, political scientists Dennis Baker and Rainer Knopff highlight a tension between Reference re Supreme Court Act and the Supreme Court’s official statements on the matter. On the one hand, the Supreme Court press release claims the Chief Justice called the Minister of Justice and the PMO’s Chief of Staff to “flag” issues with Nadon’s potential appointment, but did not “express any opinion as to the merits of the eligibility issue.” On the other hand, the Chief Justice subsequently signed on to the six-judge majority that claimed the “requirement of current membership in the Quebec bar has been in place – unambiguous and unchanged – since 1875.” How, Baker and Knopff ask, could the Chief Justice have no opinion on the merits of the appointment that she subsequently found “unambiguously” unconstitutional? And if the Nadon appointment so clearly violated the Supreme Court Act, why did the Supreme Court swear him in?

The Reference re Supreme Court Act was controversial, and its fallout unprecedented. However, the constitutionality of Nadon’s appointment was settled; Harper appointed Clément Gascon in Nadon’s stead as Justice Fish’s replacement in June, 2014. Amid allegations that opposition MPs had leaked details of the Nadon appointment process to the media, Harper abandoned the MP selection panel, and used the pre-2004 criteria to appoint Gascon, with no committee scrutiny. Harper’s final appointments, Suzanne Côté and Russell Brown, were appointed the same way in 2014 and 2015. In 2016, the Trudeau government reformed the Supreme Court appointment process substantially (see Chapter 4).

Limited Policy Success at the Supreme Court
Notwithstanding the failed Nadon appointment, Harper certainly had the opportunity to leave his mark on the Supreme Court of Canada. By the time of the October, 2015 election, he had named eight justices to the Court, seven of whom were still sitting. Since October, 2012, a majority of justices on the Supreme Court have been appointed by Harper; barring the death or early retirement of any of the current justices, the Court’s “Harper majority” will remain until October, 2030, when Justice Karakatsanis will turn seventy-five.

Yet the post-Harper Supreme Court behaves a lot like the pre-Harper Supreme Court. Judges are undoubtedly political and bring their ideological perspectives to the cases they hear, but those perspectives are mitigated by various other factors, such as doctrine, role conceptions and a desire for institutional legitimacy (see Reading 8.3). As Harper found out to his chagrin, simply appointing justices in Canada does not guarantee they will favour government policy. Lorne Sossin (Reading 11.5) notes a number of high-profile examples where policy supported (if not created) by the Harper Conservatives was ruled unconstitutional by the Supreme Court: the 2011 reference that Vancouver’s safe injection site should stay open;[5] the 2011 decision preventing the federal government from creating a national securities regulator;[6] the 2013 decision that struck down activities related to prostitution (see Reading 7.5);[7] the 2014 reference that rendered unconstitutional the Prime Minister’s plan to reform the Senate (see Reading 2.6);[8] and the Reference re Supreme Court Act. One could add to these three different decisions (in 2008, 2010 and 2015) where the Supreme Court ruled against the government with respect to alleged terrorist Omar Khadr, an area on which the government had staked considerable political capital.[9]

The Harper government’s poor record in the Supreme Court of Canada continued into its final year. As Benjamin Perrin documents, in the Supreme Court’s ten most important decisions from 2015, the Harper government fared very poorly (Reading 11.8). Such losses included cases that struck down the criminal prohibition on assisted suicide (see Reading 7.5);[10] expanded collective bargaining rights for the Royal Canadian Mounted Police;[11] extended the right to medical marijuana;[12] and struck down mandatory minimum sentences. [13] Many of these cases were part and parcel of the Harper government’s tough-on-crime approach to criminal justice, yet Perrin demonstrates how the Harper government’s “losing streak” continued during a year in which seven of the nine justices were Harper appointees.

Some have argued that this narrative of a “fractious relationship” between the Harper government and the Supreme Court is overstated. In Reading 11.9, Christopher Manfredi notes that when governments lose in court, they are often defending legislation passed by previous governments. Many of the above examples of Harper “losses” actually involved legislation or executive actions made by other (often Liberal) governments, including the cases concerning prostitution, assisted dying, collective bargaining and Omar Khadr. Manfredi explains how the Harper government had its own legislation invalidated by the Supreme Court at a rate that actually compares favourably to the post-Charter governments that preceded it. Manfredi concludes that there is “a much more complex relationship between the Court and the [Harper] government than can be captured through a simple ‘scorecard’ of outcomes.”

Conclusion
Few would dispute that Stephen Harper desired a judiciary more deferential to legislatures and executives, one willing to engage in tougher criminal sentencing and predisposed to allow reasonable limits on Charter rights. Did Harper get his wish to “remake the judiciary”? Probably not. His reforms to lower court appointments, explicitly designed to encourage a greater number of “tough-on-crime” judges, were reversed by Justin Trudeau less than a year after Harper left office. Trudeau then brought in a new appointment process to the Supreme Court, the central elements of which – recommending functionally bilingual candidates regardless of region, a commitment to diversity and an advisory board with a majority of members who were lawyers or judges – would hardly have been high on Harper’s wish list. Harper’s institutional imprint on judicial selection has already gone.

What about the personal makeup of the judiciary – the fact that, by the time he left office, Harper had appointed seven of the nine members of the Supreme Court and nearly three-quarters of all federally appointed judges? Here again, it is too early to tell for certain, but the evidence does not suggest a revolution of deferential, tough-on-crime or even nominally “conservative” judges. While the Harper government’s record at the Supreme Court of Canada may not have been that much worse than its predecessors, it certainly lost most of the major cases it fought before the Court, particularly with respect to criminal justice reform. Those losses have continued even after Harper has gone, as in R. v. Lloyd (2016),[14] where the Supreme Court struck down mandatory minimum sentences for drug crimes. Harper’s appointees continue to strike down Harper’s laws, regardless of the level of court. And the Trudeau government has also brought back the Court Challenges Program, long the scourge of critics of judicial power. The Charter Revolution has not been overthrown.

Harper’s limited impact on the judiciary speaks to the stickiness of Canadian legal culture – its inclination towards judicial interpretative supremacy, a Living Tree approach to constitutional adjudication and a markedly different strand of criminal justice reform than Harper sought. The legal community was resolutely and uniformly anti-Harper (try finding a Canadian law professor with something positive to say about the Harper Conservatives); the characterization of the Conservatives as “anti-Charter and anti-court” continued throughout Harper’s tenure, not always without reason. The best analogy for Harper’s attempt to reshape Canada’s judiciary is, as one Conservative source said in Reading 11.1, that the government was “dripping blue ink into a red pot.”

Time will tell whether Harper’s drop in the bucket has changed its colour. Harper’s appointments no doubt brought some ideological diversity to Canadian courts, though they do not yet seem to have made a discernible impact on judicial outputs. What we can say is that the Harper years – from his appointment reforms to his willingness to challenge the judiciary in public – presented a different relationship between the federal government and the courts than Canada has ever seen. For these reasons, the Harper decade provides fascinating lessons about the institutional relationship between courts, legislatures, executives and society more broadly.

NOTES
1 Emmett Macfarlane, “‘You Can’t Always Get What You Want’: Regime Politics, the Supreme Court of Canada, and the Harper Government,” Canadian Journal of Political Science 51, no.1 (2018), pp. 1–21.
2 [2014] 1 S.C.R. 433.
3 Aaron Wherry, “Stephen Harper, Beverley McLachlin and an historic mess,” Maclean’s, May 6, 2014, http://www.macleans.ca/politics/stephen-harper-beverley-mclachlin-and-historic-mess/.
4 Wilder Tayler, “Letter to Dr. Gerald Heckman,” International Commission of Jurists, July 23, 2014, http://voices-voix.ca/sites/voices-voix.ca/files/letter_canada_230714_2_tayler_to_heckman.pdf.
5 Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134.
6 Reference re Securities Act, [2011] 3 S.C.R. 837.
7 Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101.
8 Reference re Senate Reform, [2014] 1 S.C.R. 704.
9 Canada (Justice) v. Khadr, [2008] 2 S.C.R. 125; Canada (Prime Minister) v. Khadr, [2010]
1 S.C.R. 44; Bowden Institution v. Khadr, [2015] 2 S.C.R. 325.
10 Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331.
11 Mounted Police Association of Ontario v. Canada (Attorney General), [2015] 1 S.C.R. 3.
12 R. v. Smith, [2015] 2 S.C.R. 602.
13 R. v. Nur, [2015] 1 S.C.R. 773.
14 R. v. Lloyd, [2016] 1 S.C.R. 130.