Prime Minister Stephen Harper called it “essential.” The judge called it “fundamentally unfair, outrageous, abhorrent and intolerable.” They were both speaking about mandatory minimum jail times for gun-related crimes—Harper when touting the law requiring them, and Justice Anne Molloy of the Ontario Superior Court when she struck it down by uttering the fateful word: unconstitutional.
Harper’s mandatory minimum sentences, presented as evidence of his toughness on crime, are under judicial fire. In February, a man faced three years in jail under the 2008 law, for momentarily posing with his cousin’s illegal gun for a Facebook picture. Justice Molloy called the legislated punishment of automatic jail time “cruel” and “disproportionate.” In July, another accused faced three years for offering to sell a gun he didn’t even possess. In that case Justice Paul Bellefontaine of the Ontario Court of Justice refused to apply the sanction prescribed by law, citing Molloy’s reasoning. Many expect one of these decisions to wind its way up to the Supreme Court, where the Harper government’s crime law will officially go on trial.
The NDP enjoys the title of official Opposition in a time of majority government, but it would seem the Conservatives’ real opponents wear robes and issue decrees. In addition to the rulings on mandatory minimum sentences, judges have delivered the Tories a series of stinging defeats of late. And it’s becoming apparent that in the next few years some of the country’s biggest and most consequential debates, around issues as diverse as euthanasia, refugee detention and brothels, will be fought not in Parliament, but in the courts.
The judicial rebukes have spanned social, economic and foreign policy. Last year, the Supreme Court decided that addicts could inject heroin in a Vancouver clinic, notwithstanding Conservative attempts to shut it down. Earlier this year, the government’s goal to create a national securities regulator floundered after yet another supreme smackdown. And if the Harper government opts to bring Omar Khadr home from Guantánamo Bay, it will be because the highest court said in 2010 his rights had been violated.
For conservatives, the string of defeats provide more fodder for their argument that judicial activists are legislating from the bench through expansive interpretations of the Charter of Rights and Freedoms. “Does the Charter encourage and empower the courts to be activist? I think the answer is, yes it does,” says Preston Manning, former head of the Reform party. “The bigger question is whether judicial activism using the Charter is out of sync with society.” Manning says that the election of a Conservative majority government means Canadians generally share its values. “When the court goes against those, the court is not only going against the government, but also going against values that are alive and well in society.”
Perhaps no current Conservative minister has been more outspoken in his criticism of the courts than Immigration Minister Jason Kenney, who has met resistance to his immigration reforms, which aim in part to speed up refugee claims. Last year he questioned the judgment of federal judges who had stood in the way of a pair of deportation orders. The Canadian Bar Association (CBA) called Kenney’s public and detailed criticism—Kenney preferred the term “dialogue with the judiciary”—a threat to judicial independence and “an affront to our democracy and freedoms.” The Supreme Court’s Chief Justice Beverly McLachlin took the unusual step of thanking the CBA for its “powerful” response to a minister who resented “judges [who] were insufficiently solicitous to government policy.”
This is, of course, far from the first government to see its legislation struck down by the courts. In the 1930s it was progressive legislation from the Conservative government of R.B. Bennett, including federal unemployment benefits, a minimum wage and maximum work weeks, that was deemed unconstitutional. (A 1939 Senate report decried the courts for their “repeal by judicial legislation.”) But it’s also true the Charter expanded the power of the courts, and gave conservatives more reason to complain. In 2002, Ian Brodie, who would later become Harper’s first chief of staff, published a book called Friends of the Court. “The [Supreme] Court is well on the road to establishing itself as a legislative, rather than a judicial, institution,” he wrote. He called its post-Charter activist record “unprecedented in scope” and characterized the court-challenges program, which provided public money to support cases against the government, as evidence of the “state at war with itself.”
Conservatives have since mounted their response. During Harper’s first year as Prime Minister, the government, citing the same concerns expressed by Brodie, abolished the court-challenges program, though some funding was later restored for claims relating to minority language rights. Harper has also appointed 439 judges to Canada’s senior courts. Yet neither of these steps has inoculated the government from judicial objections to its policies. For one thing, Liberals under Chrétien and Martin appointed far more judges during their reign. More importantly, judges tend to defy partisan characterization.
Some also argue that activist groups on the left have done a better job at swaying the courts in their favour. Professor Chris Manfredi of McGill University notes that the progressive record of courts in the Charter era is partly the result of the efforts of organizations, like the Women’s Legal Education and Action Fund. Not only can such third parties influence judges through arguments they make, but they can also shepherd cases through the court system to promote their agendas. “The Supreme Court is a political institution, subject to the same kind of strategic pressures from outside groups as other political institutions,” Manfredi says. “For the first 20 or so years after 1982, those groups were mostly on the liberal part of the political spectrum.”
But increasingly, conservative activists are also pursuing a more bottom-up strategy to influence court decisions. Groups like the Canadian Constitution Foundation (CCF), launched in 2002, and the Justice Centre for Constitutional Freedoms (JCCF), founded last year, have pursued a libertarian agenda in courtrooms. For example, the CCF and JCCF have worked to find litigants and launch cases to extend the delivery of private health care. The CCF raises more than $1 million a year. It is a charity, but it pursues politics by another name. Its former president, who now heads the JCCF, ran unsuccessfully for the Wildrose party in the most recent Alberta election.
The stakes are set to rise as the government finds itself fighting a number of high-profile battles in the courts, including decisions about how we die and whether we can pay for sex. In June, the B.C. Supreme Court granted Gloria Taylor, who is suffering from the degenerative Lou Gehrig’s disease, the right to a doctor-assisted suicide. Taylor remains the only Canadian with the right to ask another person to take her life, for now. The court said the current law banning the practice should not apply to patients with serious illness or disability who are experiencing intolerable suffering, provided that the patient’s decision is not coerced and the patient is free of clinical depression. The government has appealed the ruling and asked the B.C. Court of Appeals to suspend Taylor’s right to die in the meantime, which last week the court refused to do.
In another ruling that angered conservatives, earlier this year the Ontario Court of Appeal concluded that prostitutes could operate indoors and hire bodyguards. The case is now heading to the Supreme Court in the next year, where the court will decide whether Canadians can buy sex in the privacy of a brothel.
Meanwhile the Conservatives new immigration law was only just passed in June, but observers already expect legal opposition to some of its provisions, especially its policy of six-month-long detention for some refugees. Professor Audrey Macklin of the University of Toronto calls the law “flagrantly unconstitutional” in light of previous decisions on security certificates, and expects it to be overturned. Even on the labour front, the government faces challenges to back-to-work legislation it passed to prevent strikes by workers at Canada Post, Air Canada and CP Rail. Air Canada’s pilots have filed suit in Ontario’s Superior Court and claim the Charter grants them a right to strike.
In each case, issues that might otherwise be debated in Parliament have wound up in the courts—partly because opposition parties lack any power to challenge the government themselves.
Still, if the courts are to be considered the government’s unofficial opposition, the contest will be rather lopsided. Kent Roach, a law professor at the University of Toronto, says the courts may occasionally invalidate laws, but they remain relatively weak opponents. The Charter only covers the most extreme cases, and the courts can only strike laws down, not propose new ones. Besides, successful challenges cost a fortune and take years. “If someone said, ‘Don’t worry, we can shut down the parliamentary opposition because the courts are there,’ ” Roach says, “that would be a big mistake.”
The courts, no matter how “activist,” are destined to play catch-up. Insofar as they oppose government policies, they do so slowly and selectively. In a race, judges are, at best, formidable turtles.