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

Harper used to fret about “arbitrary” Charter rulings

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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.