Why bother with a parliament?

The thrust of Mark Kennedy’s article on John Ibbitson’s biography of our Dear Leader is that the Prime Minister opposes the power of the Supreme Court to derive the country it wants  by its powers of interpretation of the constitution. Good for him.

It is not what parliament wants, nor what the federal and provincial governments want: it is the country that  the nine members of the Supreme Court want.

In his book, Ibbitson writes of how Harper’s distrust of judges stems from a long-standing concern over judicial activism in the wake of the Charter of Rights and Freedoms.

The book reveals that once Harper took power in 2006, he grew increasingly frustrated with how the court’s rulings were overturning his legislative policies, and how it had established itself as the “unofficial opposition” to his government.

Chris Roussakis for National Post

Chris Roussakis for National PostChief Justice Beverley McLachlin poses for a portrait inside the Supreme Court in Ottawa on April 21.

“Harper has repeatedly complained to his inner circle that, under Chief Justice Beverley McLachlin, the Court has become a sociology seminar, with the judges/professors able to turn their theories into laws, and Parliament unable to stop them,” according to the book.

Ibbitson writes that Conservatives lamented the advent of the Charter in the 1980s, fearing that courts would override Parliament.

The top court “obliged their worst fears” with rulings that have limited police powers, struck down the abortion law, and extended civil rights to gays and lesbians.

“For Stephen Harper, this was simply another way in which liberal urban elites in Toronto and Ottawa and Montreal imposed their agenda on the rest of the country.”

Obviously this is true. Clearly it is not an allowed thought in the Liberal/Court Party.

But listen to Ibbitson, as reported:

 

Ibbitson writes that Harper’s criticism of the chief justice set a “dangerous precedent” and now ranks as one of his “most discreditable acts” as prime minister.

“Not only did he lose the fight; he tarnished his reputation and damaged what should be the sacrosanct separation of powers between executive and judiciary.”

To be blunter than I should be, suppose your program of government is being deliberately dismantled by the Supreme Court, and not merely are you obliged to take the criticism, and accept the obloquy of being chastized by the Court, and accept that your legislative program has been gutted, but you are supposed to defer to nine professors of sociology who wear ermine robes as if their opinions were better than your own?

And by deference I mean that, according to the Court Party, of which Ibbitson is a member, you are not allowed to refer to the existence of obviously political judgments as such?

I have every sympathy for Harper. He is correct in his analysis. Beverly McLachlin is tossing her pisspot out the window just as Prime Minister Harper passes underneath, and by the lights of the Court party, he is supposed  grin as if he were happy. I could not do that, nor could you. Nor could Ibbitson.

There is no “sacrosanct constitutional relationship” between the Supreme Court and the ruling party or the prime minister. The sacredness of the Supreme Court is an invention of the Court party to shield it from rational inquiry and criticism by the other parts of the government, and the people itself. The Prime Minister is not supposed to have them shot, nor should he dock their pay, nor threaten their lives, liberty or property. I am sure that list of prohibited behaviour can and should be lengthened

But he ought to be able to call them on their judicial bullshit.

An 18th century British sovereign had less immunity from criticism than Beverly McLachlin.

 

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Gabby in QC

I find this speech by L. Ian Macdonald, given before he apparently soured on Stephen Harper judging by his iPolitics columns, explains two distinct interpretations of the Constitution, one of which the PM adheres to:
http://www.lianmacdonald.ca/speeches.html
“So now there are two constitutional traditions in Canada, the British North America Act of 1867, now known as the Constitution Act, and the Charter of Rights and Freedoms of 1982. One gave birth to our country, the other has had a transformational effect on it, arguably far beyond the intent of its framers. One defined the rights of government, and the division of powers; the other has since defined the rights of citizens. …
After a quarter century of Charter ascendancy, we are experiencing a renewal of our BNA inheritance. What Harper is proposing, and implementing, isn’t “open federalism”. It’s classical federalism. …”

But the SC has been busy putting a spoke in the PM’s wheel. The anti-Harper crowd applauds every time the SC does so, gleefully pointing out that most of the judges are Harper appointees. IOW, good choices, good judgment on his part, given the resulting decisions. Yet, when it comes to the Senate appointees, the same crowd ascribe all the wayward senators’ misdeeds to him personally, faulting his poor judgment.

Weird.

Oban

Well I hope you feel better for your rant. The courts have troubled those who do not wish to see their will checked. That has been true at all times and places. The role of the judiciary varies, it just happens that in Canada, the Court has been made responsible for protecting a number of core values that some do not much like. Our current Prime Minister and many of your present correspondents doubtless share his views. What is causing so much unease in me is the continuous feeding into the legal system little time bombs that Harper knows do not respect Charter values. He is setting up the judiciary for political confrontation – and the judiciary has no choice but to do its job: declare inoperative or nullify certain legislative measures that violate the Constitution.

What is Harper’s long game? I doubt if it is constitutional change – he won’t even discuss it in relation to the Senate. He knows he would get nowhere convening the Provinces to discuss changing the Charter.

I suspect his aim is to immunize himself when it comes to making increasingly red-meat conservative judges.

His second purpose, I would guess, is to set the stage for use of the Notwithstanding clause. Like chemical warfare, once let loose it is uncontrollable and becomes legitimized for use by both right and left. He has been cautious in his approach to releasing the valve to let that loose, but if he has a second majority, I think he would act sooner rather than later.

In the meantime, he gets his base (305) consolidated and slathering for bodily juices. Sometimes he can get close to 40% of the public on board with a particular and high profile issue (majority territory), and if it falls in an election period, that may be enough.

In any event, this is not one of those real issues. Real issues are dealt with in Budget Implementation Bills. This is about pushing buttons and getting people upset. If you can think of anything the Court has or has not done in the last 5 years that actually affected your life, your partner’s or a friend’s, I would be interested in hearing.

Alain

@Oban. What you state about the courts basing their rulings on the charter is false. The first and outstanding example I cite was reading into the charter what the framers had purposely excluded: sexual orientation. Yet the same judicial activists would never consider reading into the charter private property rights, which Trudeau had excluded. I shall not bother to cite several other examples, but I have made my point.

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