Harper used to fret about "arbitrary" Charter rulings - Macleans.ca

Harper used to fret about “arbitrary” Charter rulings


Stephen Harper hasn’t offered up any very detailed comment on his view of the Charter of Rights and Freedoms since he became Prime Minister. But Paul Wells guides us through how we might interpret Harper’s ambivalent remarks on today’s 30th anniversary of Pierre Trudeau’s landmark contribution to Canada’s constitutional evolution.

For those curious about Harper’s earlier, perhaps less guarded days, and how he might have seen the Charter back then, I can think of two glancing remarks that shed a bit of light on his view of it—neither of them, unfortunately, very definitive. In both cases, he seemed mainly worried about “arbitrary” interpretation of Charter rights by the courts.

“And we have a Supreme Court, like yours,” Harper told a group of American conservatives in a rather notorious 1997 speech, “which, since we put a Charter of Rights in our constitution in 1982, is becoming increasingly arbitrary and important.”

Then there was a newspaper column he wrote back in 2000, shortly after Trudeau’s death, in which Harper touched briefly on what seems to be the same concern. “Mr. Trudeau’s goal was no doubt to genuinely promote a ‘just society’ of individual ‘equality’,” Harper allowed, and then went on, “But only a liberal intellectual could believe the assignment of benefits and ‘rights’ would not become an arbitrary, politicized game.”

It’s interesting that Harper focused on the notion that in applying the Charter, judges would naturally be prone to arbitrariness. Yet in Charter-based decisions—notably last fall’s to allow Vancouver’s Insite supervised injection clinic to keep operating—Supreme Court of Canada judges explicitly write about disallowing laws or government practices precisely because they are arbitrary.

In fact, there’s a whole section on “arbitrariness” in the Insite decision. So you can read up on how the judges who decide cases based on the Charter think about this concept. On exactly what Harper had in mind, way back when, your guess is as good as mine.


Harper used to fret about “arbitrary” Charter rulings

  1. Even more ironic given Harper’s comments is the fact that removing the assignment or who had rights and who didn’t – in other words “arbitrariness”, was the point of making the courts the guardians of the peoples rights. All Trudeau did was to make the rights of the people accessible to the people without having first to swear fealty to some political god, or party.

    Perhaps what Harper had in mind way back when [and now] was that he only objects to arbitrariness when it isn’t his own govt dishing it out.

  2. It’s worth noting that Harper is our first PM since Clark and first long serving PM since maybe WWI to come to office without a legal background.  Add to that an affinity for “Calgary School” philosophy which is on the fringes of “political theory” and legally inaccurate, and they guy is just in way over his head on legal issues.  It was plainly on display in the hours following the Supreme Court’s ruling on gay marriage, which he plainly misunderstood (the court did not, as he inaccurately claimed “punt the issue back to parliament”.

    • interesting how wildrose is parroting some of the CS bafflegab. Sparrrow was on the cbc in AB the other day laughably trying to claim charter protection for so called conscience rights. I’ve no legal backround but it sounded potty to me, claimimg to have a charter right to discriminate against minority rights. How the hell did our country come to this, half wits like sparrow claiming to speak knowledgeably about constitutional law?  

      •  Well people do have the right to discriminate based on their conscience, particularly when it comes to freedom of religion.  For example, you can’t force the Catholic Church to perform gay marriages, because they have a different idea of what marriage is about and for. 

        Now how widespread this can go is going to have to be worked out.  Barring people from certain professions and from public life is also discriminatory.

        • To talk about it very quickly and in less detail than it deserves, there was probably a sincerely held religious belief and it could probably have been accommodated.  We give an awful lot of leeway to religious beliefs, as we should.  HOWEVER in the case of marriage officiators it became a matter of allowing them to practice their religion as they saw fit, in a government job, was a slap in the face to gay people and equality rights, so it won out.  The court ruled correctly – it would be just as bad as a wicket worker at the ministry of transportation saying that black customers had to go to the next window, or a city-owned bus driver not accepting jewish passengers.

          So the legal arguments in favour of letting people beg off performing gay civil marriages weren’t as outlandish as some thought, but in the end they still can’t.

        • There is no barring of people from certain professions or public life. If gay marriage is the law of the land and you exercise your right not to agree with it you are entirely free to not apply for the job. We don’t allow someone who denies the holocaust to preach their hatred from inside our class rooms or lecture halls, what’s the diff?

        • There are boundaries to the freedom of religion.

          The Charter does not grant the right to have people vote for you despite your kooky beliefs. You can run for office, but you can’t make us vote for you.

        • And on marriage officiators, civil marriage is not a religious procedure. The symbolic marriage (the one with no legal force) is the religious ceremony.

          It is obvious that marriage officiators not bring their religious beliefs into civil marriage, which is distinct from their religious marriage practice.

          • In fact, one could argue that if they feel so strongly about religious marriages, they are acting counter to their espoused beliefs by performing ANY civil marriage, as it is not a ceremony sanctioned by their faith. So it is disingenuous to argue religious beliefs as a reason for discriminatory behaviour toward gays.

        •  I wasn’t just speaking of people begging off civil marriages, but all sorts of other issues where privately held belief conflict with the law of the land.  Aside from the culture war issues of today, there are other concerns such as conscientious objection to participating in war, which is problematic when you have conscription.

          The boundaries will have to be gradually worked out, and there will probably be cases in which hatred for a particular religious group or other not being “progressive enough” will result in wrongful termination or discrimination in being considered for public appointments.

          •  it in no way appears to be headed in that direction, and quite frankly you are an idiot for thinking otherwise.

            Seriously, it’s like the right needs some giant bogeyman they absolutely have to live in fear of, and every time society opens the closet to show its not there, they scream and say “no! no! it must be under the bed now i just know it!”

          • Sometimes.   Though the left claiming that we are going to be dragged back to the dark ages happens every damn day on forums like these, so you should get off your high horse.

    • Good point. 
      No doubt one of the reasons why Harper has been so popular with the electorate in the past 3 elections and will continue to be for the next few is the fact that he is not a lawyer and seems to enjoy demonstrating to the public that too many lawyers in Ottawa is not a good thing.

      •  it’s not so good when you have to know the law to make it, but maybe useful when trying to fool your supporters into believing it is what is not (Ezra levant has made a career of this, for instance, lawyer or no).

        Ultimately, it’s like having a bunch of surgeries performed by people who have heard a lot about hospitals but aren’t doctors.

  3. And legal discussions of arbitrary laws aren’t the same as the right wing myth about “arbitrary” activist courts.  The first is a carefully considered body of law designed to protect citizens from the state making overly broad laws, the second is a series of lies perpetuated by people who hate minorities so much they would undermine the institutions of their own country rather than see them treated equally.  harper’s jibbering and the court’s discussion are completely different things.

    •  Lest you forget, it has often been the courts that have oppressed minorities by arbitrary decisions, rather than uplifted them.

      Parliament is often made up of people who don’t know the laws as well as the judicary and the Supreme Court.   But should it have primacy over the Supreme Court in making law?  Absolutely.   Parliament is elected, the Supreme Court is not.

      Otherwise we might as well bring back the Senate as a house of lords with actual power as a legislative body.

      •  Your first sentence is unlikely to be true and doesn’t describe Canada’s post charter experience.  Your second sentence is true.  If parliament hates the law it should alter the law, not whine about activist judges.

        hate that gay people can get married? use the notwithstanding clause to make it clear that gays don’t have equal rights.  don’t undermine the very system that makes this country great by trying to pussyfoot around bigotry and hate.

        • Sometimes people object to gay marriage because of bigotry and hate.  Other times people object to gay marriage because they simply have a different idea of what marriage is for.

          I myself am far more concerned with the idea that the state is moving in a direction to try to remove legal definitions of parenthood to exclude parents that have a genetic relation to the child for the sake of the fantasy of two women or two men being the parents of a child.  They don’t, they have three parents a father, a mother and a step-parent.   Luckily though the courts (outside of Quebec at least) seem to be on my side in that issue.

          •  For the first paragraph, if those people weren’t up in arms against childless couples, then they’re hypocrites.  Most are still bigots just trying to justify they’re crap.

            for the second, don’t worry.  people who actually know what they’re talking about are on the issue. They have a better understanding of children’s needs than you do, likely care for them more, and they won’t let them down.

          •  Oh, well if that’s your attitude, you probably have an example of the court oppressing a minority that you approve of.

            I was using it as an example of the court getting it right, but I should consider myself lucky that someone like you might be sitting in the chair instead.

            As for infertility… well it does have a role to play in determining whether a marriage is valid or not.

          •  Also, your second paragraph could be the exact words used to justify the 60’s swoop.

          • Yanni

            It’s the sixties scoop, and it happened precisely because constitutional rights protections weren’t strong enough to override majority ignorance and predjudice; it would not have happened had there been a charter. 

          •  See, you see majority ignorance and prejudice, I see left-wing social engineering.

          • For goodness sake.  Gay marriage has been the law for a long time in Canada.  The sky is still blue, the world still spins on its axis, and no catholic priest has been forced to marry a same sex couple. 

            We should just get over it.  Religious types need to get over this notion that they somehow have a say on what goes on in the bedrooms of the nation – from trying to control reproductive rights of women to same sex marriage – it’s none of the state’s business.  Nor mine.  Or anyone elses.  Period.

          • Why is having a genetic relation to a child more important than being the person who has raised them and cared for them every day of their life?

      • As someone who has read case law as part of my job for two decades, I can assure you that SCC decisions are far from arbitrary. They have to carefully examine both the law itself, the facts of the case, and how past courts have interpreted the law and similar facts and then make a reasoned decision stating exactly how they reached their decision.

        While you may not always like the outcome, it is far from arbitrary. Most who label their decisions as such are those who based their opinion of an issue on emotions or ideology and who were disappointed when their side lost. Is the court infallible? No. But they make an honest effort at reasoned and reasonable interpretations of the law.

        Political decisions, on the other hand, are often based on ideology &/or popularity rather than factual analysis (esp. with, though by no means limited to, the current government). They tend to worry more about what voters think than about what is right. As we can see from the Leafs being the most profitable hockey franchise, popularity and good decisions not only do not always go hand in hand, but unreasoned, emotional  popularity may often increase the odds of bad decisions.

        •  Eh, I don’t really buy the mistrust of the populace.  I’ve generally found that the oligarchy of political, legal or intellectual elites are just as capable of being ideologically blind and capable of horrible injustices.

          •  But everything you have posted so far leads a reader to believe your findings are based on bias and ignorance, not to mention a fair bit of stupidity.

          •  I know, I know, by becoming a progressive you’ve become oh so smart and accomplished.    All that matters is that you pick the right ideological tribe, and you’ve ascended to a higher intellectual plane.


  4. The Charter was the most Americanizing thing ever done to Canada.  Perhaps that is why the Liberal Party has been trending slowly out of existence since then.

    I don’t have any problem with the Charter, but I don’t necessarily accept the premise that a judicially interpreted Charter is any better over the long haul in protecting fundamental rights than a parliament based on the British Parliamentary system.  It is just the American way of doing things, rather than the British way of doing things.

    A judicially interpreted Charter, I would argue, tends to make the centre of the political spectrum complacent, and the extremes of the political spectrum activated (i.e. the political centre disappears),  In the British system, where the parliament protects the rights, it forces the middle to be politically activated, because a broader plurality has to be convinced of the right interpretation of rights before one can move ahead.

    i.e. The Liberal Party was actually authoring their own death sentence with the Charter.  It made the Liberal Party unnecessary.

    •  So then why did the Liberal party disappear in the UK earlier?

      • Britain had a much more rigid class structure, and was decimated and bankrupted by two wars.

        Its politics is becoming more centrist over time now, as both Labour and the Conservatives are moving back from the extremes of Thatcherism on the right, and well Blair was the new centrist version of the Labour Party. Their politics is converging again after a tumultuous 20th century driven by other things…war and the end of empire

    •  Some higher profile issues might ultimately gain parliamentary protection  decades or generations after they would if the rights were constitutionally protected.  To understand why that in itself might not be good enough, imagine your parents grew up as plantation slaves.

      And Britain has legally mandated protected minority rights now, and since they have no constitution i guess they might very well have the same effect (I’m not really on capable footing with the application of British human rights law).

      • Slavery lasted longer in the United States than in Britain.  It took an extremely bloody civil war to overcome bad tyrannical court decisions, that allowed slavery to persist.

        The ultimate protector of fundamental rights are the people themselves.  Whether this is done through a judicially-interpreted charter or through an elected parliament, only the route to the same endpoint is different.

        Both routes have advantages and disadvantages, and consequences for the political structure of the nation.

        If you have a judicially-interpreted charter, my point is simply, that it really obviates the need for a centrist brokerage political party.  A charter and a court obviates the need for a centrist big tent political party.

        The main effect of the charter was the acceleration of the Americanization of Canadian political culture.

        •  Not much the court could do when slavery was written into the constitution.  It’s not an example of “the people” acting more quickly than the law.

          • Slavery was not written into US constitution. You sound unsure with your footing here too.

          • Also….exactly how does traditional marriage violate rights? I don’t recall homosexuals being denied the right to marry. As long as the marriage met the criteria set out – 2 people, opposite sex, not related. Lots of them did get married…they just met the criteria.
            I assume you’re pushing hard to help everyone enjoy your version of “marriage”. I am commited to my mother’s welfare and I lover her very much. Should I be able to marry her? Why not?
            Finally, what is the point of the state recognizing marriage? Why is it important to you that the state recognize these relationships? I don’t think the state has any business in our bedrooms…do you?

  5. First of all, anyone can say something is “arbitrary.” If the Court wants to characterize a government policy or practice as “arbitrary”, they will do so. But what is your point, exactly? You almost seem to be suggesting that because the Court used the word “arbitrary” to characterize a government action, that somehow undermines Harper’s earlier contention that the Court itself was arbitrary. 

    It is well known what Harper meant, by the way. He meant that in Charter cases, the courts make public-policy decisions which ultimately must be based on one’s personal political views. Declaring that drug addiction is a “disease” is arguably arbitrary for the court: is addiction a disease? That is a question on which reasonable people disagree; it does not have an objective, yes/no answer. It is the kind of thing the courts could have left to be threshed out by the peoples’ representatives.

    • He meant that in Charter cases, the courts make public-policy decisions
      which ultimately must be based on one’s personal political views

      If this is what he meant, he was very very wrong indeed.

    •  If not a disease, what would you call it?

      I mean, it has signs and symptoms. It causes changes in neurochemistry and changes in the body. It’s not caused by an infection, sure, but not all diseases are (eg. cancer). Regardless, surely this is a question not for the general public, but for medical experts to decide, isn’t it?

      • Parliament is not “the general public;” it is a deliberative body that the public has elected to make law on its behalf. This partly involves listening to and considering the advice of relevant experts. But no, policy makers should NOT slavishly follow the dictates of experts.

        The question of whether addiction is a disease is ultimately a matter of opinion. Data can (and should) be used to support an argument either way, but it is not, like questions of the constitutional division of powers, a technical, objective problem.

        To say that addiction is a disease is to suggest that the addict did not start taking drugs by his own choice and that he has no capability of breaking his addiction; it turns him into a victim who needs help rather than a selfish person who is hurting the people around him. And that was exactly the purpose of defining addiction as a disease in the Insite case: i.e., the addict is suffering from a “disease,” which threatens his section 7 rights; therefore, to deny him access to the health services provided at Insite (which treat his “disease”) is to violate his section 7
        One’s opinion on whether addiction is a disease will depend on one’s policy
        agenda and on what one thinks about issues such as: personal responsibility;
        whether it is drugs or laws against drugs that cause harm; whether one thinks
        calling addiction a disease helps people or merely makes excuses for people who
        made stupid decisions. The Court attempts to make their judgments seem like
        inevitable, objective conclusions – the mere dispensing of justice by legal
        “experts.” That is a ruse.

  6. Two comments:
    1. The court Harper was commenting on over a decade ago had a lot of dissents and concurring judgments. Given wide splits on contentious issues between judges of exceptional calibre, to a non-laywer a sense of arbitrariness is understandable. The McLachlin court is much less prone to concurring judgments, and more sparing with its dissents.

    2. Ironically, despite my first comment above, the Insite decision itself is an example of arbitrariness. The decision granted the relief the applicants sought, but by issuing an order *of its own motion* and after disagreeing with the applicants’ view of the law. The government won the legal battles but lost the war, in other words, because the Supreme Court took matters into its own hands. It might have been right to do so. But procedurally it’s an odd duck and unlikely to make Harper think the SCC is less arbitrary.

  7. trudeau was a backstabbing pig. Rot in hell Pierre. What a joke Canada has become since the Charter. Enumerated rights are the death of democracy and Canada seems to be first down the turdhole. I hope Harper eliminates the charter and all the traitor judges who invoke it in court.