This Court doesn’t lean

“You know, the Supreme Court, it’s like the Tower of Pisa,” Maurice Duplessis used to say. “It always leans in the same direction.” Ho-ho. Toward Ottawa, he meant. The mid-20th-century Quebec premier was arguing that Quebec couldn’t win at the highest court in the land because the court would always invoke a “national interest” to ignore the Constitution and run roughshod over provincial rights.

It’s super-popular in Quebec nationalist circles to quote Duplessis on the Tower of Pisa, as the St.-Jean-Baptiste Society of the Mauricie does in this .pdf — without worrying too much that what set Duplessis off was the top court’s demolition of his loathsome Padlock Act, which he used to shut down suspected Communist-owned businesses in defiance of due process and free speech. Also handily ignored: the Supremes were upholding lower-court decisions in Quebec courts when they tossed Duplessis’s law out. Basically, justices from across Canada, when asked, joined a string of Quebec judges in protecting the people of Quebec from a lousy democrat. You’d think people would bear that in mind when quoting Duplessis on leaning towers. But no such luck.

Moving along, we note that one of the first things René Lévesque’s new Parti Québécois government did in 1976 was to contract legal scholar Gilbert L’Ecuyer to poke through Supreme Court jurisprudence looking for leaning towers. He didn’t find any: his 1978 study said the Supremes were faithfully applying the tenets of an 1867 constitution (that, to be fair, L’Ecuyer found unconscionably biased in its provisions toward the federal level).

No matter. The Leaning Tower metaphor is impervious to bullets and evidence. Lucien Bouchard and Gilles Duceppe rehearsed it in anticipation of the 1998 Supreme Court reference decision on secession. That’s when I first heard about it.

Fast forward to today, when the Supremes brought down their opinion on the national securities reference. We’ve got John Geddes and, soon, Emmett Macfarlane on the substance of the decision, so I’ll restrict myself to noting that this is a terrible decision for the Ottawa-based government of Stephen Harper and a very good one for the provinces that opposed his project, mostly Quebec and Alberta. Add this to the Insite decision, and Ottawa is having a rotten year at the top court.

Conservatives will probably use the same two rulings to complain that the Court is biased against conservative thinking. As for Quebec nationalists, they will do what they must in the face of this new evidence, and ignore it.

What will the Harper government do? It’ll be very hard to redraft this bill to bring it into compliance with the separation (UPDATE: Occasional Colleague Macfarlane reminds me I meant to say “division”) of powers. The feds may have to drop the idea altogether. Which would be too bad. But it would be easier to sympathize if this government looked like one that was chasing competitive advantage for Canada down every avenue. That’s not this government. Its own panel report on competitiveness, penned by former BCE CEO Red Wilson, mostly just gathers dust.