The Justice Legacy of the Harper Years

Rory Leishman
March 3, 2016
President Trump recently named Amy Coney Barrett as his nominee to fill the Supreme Court seat made vacant by the death of Justice Ruth Bader Ginsburg, triggering a heated debate on the clash between legislative and judicial powers. Rory Leishman evaluates former prime minister Stephen Harper’s attempts to rein in Canada’s activist judiciary.

The Justice Legacy of the Harper Years

Rory Leishman
March 3, 2016
President Trump recently named Amy Coney Barrett as his nominee to fill the Supreme Court seat made vacant by the death of Justice Ruth Bader Ginsburg, triggering a heated debate on the clash between legislative and judicial powers. Rory Leishman evaluates former prime minister Stephen Harper’s attempts to rein in Canada’s activist judiciary.
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During its ten-year reign Stephen Harper’s Conservative government managed to eliminate the long-gun registry, abolish the Court Challenges Program, expand freedom of expression and pass an array of legislation cracking down on prostitution, pornography, drug trafficking and violent crime. The Conservatives accumulated and expended a lot of political capital in pursuing these substantive changes to the Canadian justice system. But there is considerable doubt about how many of them will survive the Trudeau Liberal government and an activist judiciary.

On gun control, at least, neither the Liberals nor the courts have shown any disposition to revive the long-gun registry introduced by the Chretien government in the 1990s. Instead, the Trudeau administration will apparently start delivering on a promise to “to get handguns and assault weapons off our streets” by reviving a regulation eliminated by the Conservatives in last year’s Common Sense Firearms Licensing Act that required the licensed owner of a handgun to obtain an additional permit to transport his gun to and from a firing range or a gunsmith. It’s not much, and there may be more to come on gun control.

As for the Court Challenges Program, it was created by the Liberal government of former prime minister Pierre Trudeau in 1978 to finance interest group litigation for the purpose of defining and expanding the provisions of the Charter of Rights and Freedoms. The program was abolished by the Mulroney Conservatives in 1992, revived by the Chretien Liberals in 1994, and abolished again by the Harper Conservatives in 2006. Now, with the backing of the Canadian Bar Association, Prime Minister Justin Trudeau has directed his Justice Minister Judy Wilson-Raybould to revive the program yet again.

Minister of Justice and Attorney General of Canada Jody Wilson-Raybould in Ottawa November13, 205. Photo by Blair Gable
Minister of Justice and Attorney General of Canada Jody Wilson-Raybould in Ottawa November13, 2015. Blair Gable File Photo

One of the Harper justice reforms that most gladdened the hearts of conservatives was the repeal of Section 13 of the Canadian Human Rights Act. While intended to prohibit the promotion of hate against minorities, it had been used repeatedly by a small coterie of human rights activists to harass and prosecute media outlets and others who expressed critical opinions about Islamic fundamentalism and gay marriage, among other controversial issues. Perhaps to minimize the blowback against the government, the repeal was executed by a Tory backbencher’s private members’ bill. Regardless, it was a significant win for free expression.

Long before he became prime minister Stephen Harper was a reliable exponent of the classical separation of legislative and judicial powers. He came out of the Calgary School of conservative academics who championed parliamentary supremacy in response to liberal judicial activism as practiced by courts and interest groups – which they dubbed the Court Party – in the post-Charter era. As Leader of the Opposition in 2003, he denounced the Halpern ruling by the Ontario Court of Appeal that arbitrarily read same-sex marriage into the Constitution. Speaking in the House of Commons, Harper said: “I would point out that an amendment to the Constitution by the courts is not a power of the courts under our Constitution. Something the House will have to address at some point in time is where its powers begin and where those of the courts end.”

As prime minister, Harper attempted to appoint judges who subscribed to the traditional principles of judicial restraint. Mr. Justice Marshall Rothstein, Harper’s first choice for the Supreme Court of Canada, seemed to fit the bill. In an unprecedented public hearing on the appointment by an all-party committee of Parliament, Rothstein testified: “[Judges] should apply the law. They shouldn’t depart from the law. They shouldn’t be inventing their own laws.”

Asked about the role of judges in changing the law to bring social policies into conformity with evolving conceptions of morality, Rothstein said: “It seems to me that the social agenda is the agenda for Parliament. Where Parliament wants to advance the law in social terms, that’s their job – that’s your job.”

On occasion, Rothstein stood by these convictions. In a joint dissent last year in Saskatchewan Federation of Labour v. Saskatchewan, he and Mr. Justice Richard Wagner, another Harper appointee, repudiated the majority ruling which held that the ban on strikes by essential services workers in the Saskatchewan’s Public Service Essential Services Act violates the right to strike implied by the guarantee of freedom of association in section 2(d) of the Charter.

Rothstein and Wagner stated: “This Court has long recognized that it is the role of legislators and not judges to balance competing tensions in making policy decisions, particularly in the area of socio-economic policy…. It is not the role of this Court to transform all policy choices it deems worthy into constitutional imperatives.”

That was well said. Yet just one week later, Rothstein and Wagner joined in the unanimous opinion of the Supreme Court in Carter v. Canada, which struck down the ban on physician-assisted suicide in the Criminal Code. With this ruling, the Court not only shattered its own 1993 precedent in Rodriguez, but also flouted the repeated and express will of Parliament against legalized euthanasia.

Altogether, six of the nine judges who supported last year’s Carter ruling were Harper appointees. Likewise, five Harper appointees backed the ground-breaking judgment written by Chief Justice Beverley McLachlin in Canada v. Bedford, 2013, which struck down restrictions on prostitution in the Criminal Code. This same five also backed McLachlin’s startling 2014 judgement in Tsilhqot’in that created vague, new, property entitlements for aboriginals that could have dramatic consequences for Canadian resource development.

Should Harper be faulted for appointing judges who turned out not to be reliable practitioners of judicial restraint? Maybe, but the future performance of judicial appointees is notoriously unpredictable. Even former U.S. President Ronald Reagan did not foresee that one of his appointees, Sandra Day O’Connor, would become an ardent judicial activist on the Supreme Court of the United States.

Besides, whenever Harper tried to assert the separation of legislative and judicial powers, he usually endured a public flogging from the opposition, the media, and the legal community. That was evident during the uproar which ensued after the executive counsel for the Supreme Court disclosed that McLachlin had asked to talk with Harper about “a potential issue” regarding the eligibility of Mr. Justice Marc Nadon to serve on the Court. Citing advice from the Justice Ministry, Harper refused to take the call and said publicly that it would be improper for a prime minister to talk to the chief justice about an issue that could – as it eventually did – come before her court (which ruled Nadon ineligible).

The statue Ivstitia (Justice) looks outward from the Supreme Court of Canada, with the Peace Tower in the near distance.
The statue Ivstitia (Justice) looks outward from the Supreme Court of Canada, with the Peace Tower in the near distance. Creative Commons

Harper was widely denounced inside and outside the legal profession for allegedly violating the separation of powers by joining in a public airing of the issue. A group of past presidents of the Canadian Bar Association accused him of threatening the independence of the courts by “claiming that the Chief Justice of Canada attempted an inappropriate conversation with him”. Trudeau charged him with making “unfair and personal accusations against the chief justice”.

Although Trudeau is now in power and may lean towards liberal-leaning judicial activists in his future court appointments, including the replacement of McLachlin as chief justice upon her mandatory retirement two years hence, some of Harper’s appointments may yet exert conservative influence on Canadian jurisprudence. These include legal scholars such as Mr. Justice Russell Brown, his last appointee to the Supreme Court, and Justices David M. Brown, Grant Huscroft and Bradley Miller of the Ontario Court of Appeal. These judges were all public exponents of judicial restraint prior to their appointments, who may resist judicial usurpation of legislative power.

If they do, however, it could take the form of minority dissents in cases where court majorities overturn anti-crime legislation initiated by the Harper Conservatives. Last year, in R. v. Nur, the Supreme Court struck down the mandatory minimum sentences for possession of a loaded, prohibited firearm in the Tackling Violent Crime Act of 2008. McLachlin contended in her reasons for judgment that the minimum term of five years for repeat offenders violates the ban on cruel and unusual punishment in section 12 of the Charter and “goes far beyond what is necessary in order to protect the public, to express moral condemnation of the offenders, and to discourage others from engaging in such conduct.”

The Tougher Penalties for Child Predators Act, which the Harper Conservatives passed through Parliament last year, also includes an array of mandatory minimum prison sentences such as 14 years for publishing child pornography or sexually assaulting a child. These and other Conservative mandatory minimum sentencing laws are expected to face Charter challenges in the future, unless the Trudeau Liberals repeal them first. During debate on the Child Predators Act, then-Liberal justice critic Sean Casey averred: “Mandatory minimum sentences do not deter crime.” If the Justin Trudeau Liberals genuinely believe that, they might consider getting rid of the mandatory minimum sentence of 25 years for first-degree murder which the Pierre Trudeau Liberals introduced in 1976.

The definitive history of the Harper crime and justice legacy has yet to be written. Some will argue that it was a profoundly conservative and sincere effort to “make our streets and communities safer”, as was said in every criminal justice reform announcement the Tories ever made. Others will contend it was primitive law-making and cynical pandering to the conservative base. Both will have to admit, however, that the difference between the Harper Conservative and Trudeau Liberal legal agendas was as different as night and day. Instead of demonizing and incarcerating pimps, prostitutes, drug traffickers, gangsters and terrorists, the new government is committed to legalizing marijuana, multiplying so-called safe injection sites for illegal drugs, softening anti-terrorist laws, and legislating in accord with the Supreme Court’s direction on legalized prostitution and doctor-assisted suicide.

And it’s a safe bet the historians will agree on one other thing: Liberal criminal justice reforms will get a smoother ride in Canadian courts than Harper’s ever did.


Rory Leishman
 is a freelance journalist based in London, Ontario who was previously a lecturer in political science at Western University and national affairs columnist for The London Free Press.


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