Supreme Court: the emerging don’t-sweat-the-fine-print bloc

PAUL WELLS: Ted Opitz’s win was the Harper government’s first good day at the Court in a while


There was some chatter on Twitter this morning, after the Supreme Court ruled to uphold the election results in Etobicoke Centre, to the effect that Stephen Harper has finally succeeded in stacking the top court with corrupt thugs and we are now fully entered into a post-democratic era here in KanuckiHarperStan. My hunch is that this overstates things.

First, this was actually the Harper government’s first good day at the Court in a while. The Supremes have more often been in the habit of handing Harper trouble, as with the Insite supervised-injection site case and Jim Flaherty’s dead-parrot project for a national securities regulator. In those highest of high-profile cases, Harper appointees concurred with their colleagues in unanimous judgments.

Today there was division, and it didn’t follow partisan lines neatly. (I’ll cut to the chase: I think it’s simplistic to presume a justice appointed by a given PM will consistently rule in ways that please that PM. This has simply never been the case in Canada, to the dismay of a succession of prime ministers.)

Today’s majority included Michael Moldaver and Marshall Rothstein, appointed by Harper, and Marie Deschamps and Rosalie Abella, appointed by Jean Chrétien and Paul Martin respectively [I got that wrong the first time around — pw]. The dissent was written by Chief Justice Beverley McLachlin, appointed to the court by Brian Mulroney and elevated to Chief Justice by Chrétien, with Chrétien appointees Louis Lebel and Morris Fish concurring.

The “swing” votes here were Abella’s and Deschamps’. And this isn’t the first time that has happened.

On Oct. 12 the Supremes handed down their ruling on R. v Prokofiew, a criminal-law case. You see, the excellently named Ewaryst Prokofiew and an associate appear to have gotten rich by claiming GST on the sale of non-existent farm equipment. The judge in the case — and here I’m going entirely on this summary by Canadian Lawyer magazine — didn’t specifically tell the jury that Prokofiew’s failure to testify should not be taken as evidence of his guilt. Prokofiew argued he’d been falsely convicted because he declined to testify. In upholding a lower-court decision, Mr. Justice Moldaver essentially said the jury should be treated as adults:

“[W]hile I agree that an explicit remedial instruction from the trial judge would have been preferable — and would have been warranted in these circumstances — I am satisfied that the instructions that were given in the instant case, when considered as a whole, were adequate,” he wrote.

“I am confident that the jury would have understood, in the context of the entirety of the instructions, that the Crown could prove Mr. Prokofiew’s guilt only on the evidence and, as Mr. Prokofiew’s silence at trial did not constitute evidence, it could not be used to prove his guilt.”

Mr. Justice Fish, writing for the dissenters, was more of a fine-print guy. “We have no basis for supposing that the jury understood, in the absence of an explicit instruction by the judge, which counsel had stated the law correctly…. The guiding hand of the trial judge was essential — and absent.”

There’s a striking consistency of style between the Supremes’ arguments, majority and dissenting, in that case and this. In both cases, a majority that calls for a broad and generous reading of the rules, and a minority that calls for a narrow technical reading.

And every justice who was in the majority on R. v Prokofiew was in the majority on Opitz v. Wrzesnewskyj, and every justice who dissented in the first case dissented today. (To further complicate matters, two more recent Harper appointees, Andromache Karakatsanis and Thomas Cromwell, did not hear the evidence in Opitz and were on opposite sides of the Prokofiew ruling.)

Questions of legal philosophy aside, the prose style of today’s ruling is striking indeed, although when I said so in the lockup at the Court, some of my colleagues chuckled. Rothstein and Moldaver, who did the writing for the majority, move immediately to questions of principle, writing in their first sentence: “A candidate who lost in a close federal election attempts to set aside the result of that election.” That sentence makes it pretty clear who they think “lost” and what the “result” was. “We reject the candidate’s (Wrzesnewskyj’s) attempt to disenfranchise entitled voters and so undermine public confidence in the electoral process,” they continue.

There is nothing so sweeping in the opinion McLachlin wrote for the dissenters. The Chief Justice has worked hard to ensure the largest possible degree of consensus on the Court; unanimous rulings far outnumber split decisions since she became the Chief. She lost that struggle today, and an emerging division among the Supremes, one that does not hew closely to party lines, seems to result.


Supreme Court: the emerging don’t-sweat-the-fine-print bloc

  1. All very interesting. Personally i’m glad there’s a tension between the justices – life’s like that mostly, full of different shades of black and white.[ mostly grey where people are involved] I imagine unanimity is rarely a good thing overall.
    I’m with justice Fish on the gst case though. Treating jurors as adults is all very well, but people are also largely ignorant of the law and prone to natural bias and prejudice. If the guy didn’t testify how many of us could honestly say they wouldn’t think…’ah, that guy must have something to hide?’ I guess you’d have to look at just how iron clad the rest of the prosecutors evidence was, but i’d be concerned that absent a specific warning from the judge[ isn’t that an awfully rookie mistake in such a case?] some members of the jury would be more disposed to give the rest of the evidence more credence then it may have deserved.

  2. I could not see a scenario that would have had the SCC get involved in something like this. It was close, but it seems the majority side clearly felt that the SCC’s place was not in deciding elections.
    What remains from all this? Election Canada really suck.

    • I think this idea that the SC was deciding the election is not accurate. Had they decided to uphold the lower court decision, a by-election would be the result. Rather then rely on “inferences” they should have just let a by-election clarify the matter.

      Odd that in this instance the Conservatives have no quarrel with “activist Judges.”

  3. I really don’t buy the Well/Geddes line that Harper has wacky schemes that keep getting shot down by the SCC. Yes, preferred government policies have not been favoured by the SCC. Yes, there have been unanimous judgements. Yes, the balance of federalism has been a common issue. But, at least in comparing the Insite and securities regulator decisions, vastly unique facts are at play. Look at the origin of the relief in Insite and the arguments that the SCC accepted and rejected, for example. While Harper has lost, he has not lost on prima facie unreasonable positions.
    That having been said, fascinating point on the emergence of a “don’t sweat the small stuff” bloc. I would have expected the CJC to be on the other side of that divide.

    • There was no way the federal government was going to win the securities regulation bit (I mistakenly thought it would be a paramountcy issue, but even that would not have given it what it wanted, making 11 regulators instead of 1). That can be a big part of trying to draw conclusions about the propensities of certain judges, sometimes (more often than not, perhaps?) the law will dictate a result different from an assigned “tendency”.

    • You don’t think the govt’s line on insite was unreasonable, really! If i remember correctly the chief justice used the word “arbitrary”.
      Some of the rest of the arguments put forward by govt lawyers were essentially laughed out of court.
      Overall it was a clear and embarrassing smack down, even if the other side didn’t get everything they wanted either.

      • No, I’m sorry, that’s not right at all. You’re entirely correct about the outcome and its tone. But not about how the case developed or was argued. And that’s my point. Harper isn’t taking crazy things to court and losing. He’s taking reasonable, tight cases and tough choices to court and losing – and that’s fine (it’s the Supreme Court of Canada and not a county court – it doesn’t see easy cases).
        The trial court ruled that the CDSA was unconstitutional. The Court of Appeal applied the doctrine of interjurisdictional immunity (a different constitutional remedy). The Supreme Court of Canada ruled that both courts below were wrong, and came up with a third constitutional remedy to save Insite. The point wasn’t even argued before it. Here’s the relevant passage from the headnote:

        “If a s. 1 analysis were required, a point not argued, no s. 1 justification could succeed. The goals of the CDSA are the maintenance and promotion of public health and safety. The Minister’s decision to refuse the exemption bears no relation to these objectives, therefore they cannot justify the infringement of the complainants’ s. 7 rights.
        As the infringement is ongoing, and the concern is a governmental decision, s. 24(1) allows the court to fashion an appropriate remedy. In the special circumstances of this case, an order in the nature of mandamus is warranted.”
        And yet the decision was *unananimous* – a hallmark of the McLachlin court, as PW aptly notes.
        I’m not attacking the outcome. I’m just saying that there is some fascinating and unprecedented sausage-making going on. And not something that lends itself to the “fine-print guys” theory.


          Here is Well’s take at the time [ my memory has proved faulty on some aspects] As you say the govt had a case. But i still think i’m right in the essentials…arguments that had been put forward, either in lower court proceedings[ the moral choice argument was slapped down hard by the CjC] and the ludicrous affair with the RCMP faked studies make it for me.
          I don’t now agree completely with Well’s conclusion [ as opposed to the Globe reporter’s take] that no real precedent was set. Sure, each case will have to proceed on its own merits and with wide ranging community support,and the minister could still say no, but they have now got a legal ruling that they can now stick in the faces of those who say the sky will fall if we allow this to spread.To me the court basically said you have to prove you’re worthy of an exemption. Winning in Vancouver made that a lot easier surely?
          All in all it looked like a good ruling to me and something that does favour the fine print guys at least as much as it does the big picture ones.

    • ” I would have expected the CJC to be on the other side of that divide.”

      She was: “The dissent was written by Chief Justice Beverley McLachlin”

      • Exactly. Sorry to have been unclear. I meant that had you asked me last year whether she would be one of the “fine-print guys” I would have said no. But here she is writing the dissent.

        • No, Paula Wells is with her political commentary skills!

  4. My concern is how anybody could consider the process of our elections “fine print”.

    The winner of an election is unimportant. What is important is that the public see the election as a process that finds the true result of the feelings of the population as a whole. If there are doubts in the process, if people feel that elections can be swung or gamed, then the entire system, including the winners that arise from it, lose legitimacy.

    And when you remember that the reason for elections is to forestall civil war as a means of choosing leaders, that’s a dangerous thing to happen.

    • kodos ~ I am looking forward to an orderly election tomorrow, which will eliminate the need for a violent blood bath

      • Yes! No robocalls, no violence, no void ballots…and a win for…dunnanana-JUSTIN TRUDEAU!

  5. I worked as an election scrutineer in a few federal elections in the past, and as such had to bone up on the relevant federal election law at the time. It’s unfortunate — but I suppose inevitable — that the decision, both at trial and at the SCC, would become fodder for partisan sniping. And predictably, most commenters’ responses reflect their partisan leanings.
    I think what has gone largely unappreciated and unreported is the reality on the ground, and the difficult and important balancing act that has to go on. The decisions that are made by the elections officials at the polling station in the cases, regarding who gets to vote and who doesn’t, typically consist of a balancing of two very important competing interests: inclusiveness and enfranchisement vs. preventing voter fraud. If you wanted to completely prevent any possible voter fraud, then at the polling station, you would instruct the officials making the decisions to be completely hardass — i.e., you’re not on the list, and you don’t have EXACTLY what the Elections Act says you must have in terms of ID and proof of residence? Then piss off, you’re not voting, period. On the other hand, if you wanted to err on the side of inclusiveness and enfranchisement, you would err on the side of generosity, and cut a fair degree of slack to people who show up to the polling station with ID or proof of residence that’s less than ideal. There are valid arguments to be made on either side of this issue.
    We should all remember what has gone on in the United States for many years: voter suppression — mostly in the form of keeping African Americans from voting, especially in the Southern States — was often accomplished by challenging the ID and residency qualifications of those people at the polling station. Because, especially way back when when many blacks were unpropertied sharecroppers, itinerant workers and lived truly at the margins, it meant that they were significantly less likely than whites to be able to satisfy rigorous evidentiary ID and proof of residency requirements at a voting booth.
    Similar considerations come into play today, including in Canada. The fact is, generally, it’s the poor, marginalized and transient, as well as the mentally ill, who are most likely to have trouble satisfying rigorous ID and residency status checks at a voting booth. Also people who are moving a lot and have less established in their lives, such as students. And if you turn them away, they’re extremely unlikely to be able to go home (assuming they have a home) and find that utility bill that proves their current address or whatever. The 90%+ likelihood is they’re not going to be voting at all if you turn them away.
    It’s somewhat ironic, then, that many self-styled progressive commentators are making out as though something horribly insidious went on in this particular case because voters with questionable or deficient identification were permitted to cast ballots. I’m just saying that for years now, front-line election officials have had to make difficult discretionary calls in this area, and there’s nothing insidious about it. They’re balancing two very legitimate interests under difficult circumstances.

    • Good comment.

      My feeling is in line with the majority.

      In a very close vote, such as the one in Etobicoke, I believe it is unlikely that the loser would not be able to find enough irregularities amongst the dozens of polling locations and the thousands of votes to cast doubt upon the process.

      And then of course, following that, the winner would be able to do the same once more in return.

      The extreme case would be an election won by one vote. It would be easy for one side to scrutinize the markings of the thousands of votes to indicate doubt. Then the other side could do the same. This would result in an unending tit for tat.

      One vote is an extreme case, but the same principle applies to 100 votes or 1000 votes.

      So where do you draw the line?

      I think that every possible review of an election must apply equally to all votes. In other words, you should not be able to review just 100 votes, or just one polling location. You must review all votes and all locations, with either a complete recount or a complete review. Nothing else is fair, to either the candidates or the voters. Providing extra scrutiny to one set of votes, as they have done in this case, introduces selection bias. All votes should have equal scrutiny and so I disagree with the way this case has been handled. I would be fine with a complete recount and a complete review of all registration certificates. But to single out 100 or so, that is wrong.

  6. Given that there were voting irregularities in 1500 polling stations and 200 ridings in the last election, and that the Conservatives were fined (instead of being thrown out or in jail) for illegal spending in 2008, this is certainly not a win for democracy. Since the CPC decimated the old PC party and leapfrogged over the top of Reform to cozy up on the political spectrum in position 6 out of 7 (where Fascist occupies 7th spot), this is not a reassuring decision. That so many “reflex voters” have not noticed this Tea-party-like sashay to the right is even less reassuring. But while this is in the news, no one is watching as FIPA turns us into a colony of China. (Check

  7. I am confused by this idea of Paul Wells’s that somehow previous judgements should justify future judgements. His idea that, since some rulings didn’t go Harper’s way previously, maybe it was time for him to come out lucky this time. I understand that he tried to justify it throughout his article, but he failed.

    In an ideal Canada, which is the one I very much want to live in, a judge’s rulings would have more to do with the letter of the law than party affiliation of the person who appointed him or her.

  8. …and the media talks on and on about this issue…

    • Would you rather they talk about this instead?

      Ray Novak: Steve
      Harper’s Closet Confidant

      He used to live above Steve Harper’s garage. Now he may be the second most powerful man in

      “Ray is effectively the Prime Minister’s closest confidant,”
      enthuses one government official. “Not only as a member of his staff, but as a
      personal and intimate member of the Prime Minister’s life.”

  9. What does Stephen Harper have in common with Supreme Court
    Justices Rosalie Silberman Abella and Marshall Rothstein and Michael
    Moldaver? They all love Israel over
    Canada. These 3 “judges” all voted
    against Borys Wrzesnewskyj, former Liberal MP who took the Conservatives to
    court over election fraud in Etobicoke-Centre.

    I smell a backroom deal for CON Ted Opitz big time. Five bucks Stephen Harper soon awards Abella
    and Rothstein and Moldaver with golden Order of Canada medals; to be presented by Prime Minister Benjamin
    Netanyahu’s at a fancy $5,000 award dinner to be held in Israel.

    • Kool Aid, Kool Aid, tastes great!

  10. In an attempt to speed up the court case, and because of the
    amount of money and time it would take to obtain all the evidence, ***ONLY 10
    polling stations out of 236 in Etobicoke-Centre are being looked at.

    AS WELL for the same reason (lack of time and cash), Borys
    did ^NOT file complaints about voting disruption and the robocalls that went on
    from the CONS.