Thursday Thinkpiece: Morton & Snow on the Harper Conservatives and the Canadian Judiciary

• Author: Administrator
• Date: September 27, 2018

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Law, Politics, and the Judicial Process in Canada, 4th Edition

Editors: F.L. Morton & Dave Snow
ISBN: 978-1-55238-990-4 (Paperback)
Publisher: University of Calgary Press
Page Count: 693
Publication Date: August 2018
Regular Price: $49.99 CAD / $49.99 USD

Excerpt: Introduction to Chapter 11: The Harper Conservatives and the Canadian Judiciary, by F.L. Morton and Dave Snow

For a complete listing of the readings referred to in this excerpt, please see the book’s Table of Contents.

The Harper Conservatives and the Canadian Judiciary

After thirteen years of Liberal Party rule, Stephen Harper led the Conservative Party of Canada to power in 2006. Having merged the Progressive Conservatives and the Canadian Alliance parties three years before, this was heralded as no ordinary change in government. The Canadian Alliance’s predecessor, the Reform Party, had populist roots and a strong base in Western Canada. The party’s antipathy towards the Central Canadian “Laurentian consensus” that had governed Canada for much of its existence led many to hope, and others to fear, that the 2006 election would mark the beginning of significant changes to Canadian political institutions and public policy.

The Harper Conservatives spent nine and a half years in power (2006–2015), four in a majority government. After their defeat in the 2015 election, the jury is still out as to whether the Harper decade was indeed transformational; for every commentator who claims Harper fundamentally changed Canada for good or ill, there is another who says his institutional and policy changes were piecemeal, incremental and easy to reverse. The judicial process remains one such area over which the Harper legacy remains hotly debated.

As Thomas Bateman (Reading 11.6) shows, even before he became Prime Minister, there were signs that Harper’s relationship with the courts would be different than his predecessors. During the 2006 election, Harper tried to reassure voters that one of the “checks on the power of a Conservative government” would be that “courts have been appointed by the Liberals.” While the Harper government’s subsequent defeats in the courts largely confirmed this, Bateman argues that it was nonetheless “impolitic” for Harper to say so. Canadians view their judges as independent, non-partisan and non-ideological; judges are beyond reproach, and politicians are loath to criticize them. Yet here was a political leader – on the cusp of becoming Prime Minister – suggesting that the party of appointment would influence judicial decisions. What did this portend for Canadian politics?

In hindsight, the Harper government certainly had a different conception of the role of the judiciary than its predecessors. As Emmett Macfarlane has argued, [1] Harper’s skepticism pierced a bipartisan “Charter regime” that had existed from 1982 until 2006. Shortly after coming to office, Harper cancelled the Court Challenges Program, although he eventually restored the minority language component in 2008. This reflected a government that was less fawning in its reverence for the Canadian Charter of Rights in Freedoms than the other federal parties, and more partial to judges who exhibited deference to Parliament, particularly on criminal justice issues. The Harper government was, in short, the first federal government to treat with suspicion the institutional and policy changes wrought by the Charter Revolution.

During the Harper decade, a new relationship between the federal government and the courts emerged in three ways: first, changes to the judicial appointment process, both for lower courts and the Supreme Court of Canada; second, a more combative relationship with the Supreme Court of Canada, made manifest most clearly in the fallout after the Supreme Court’s historic rejection of the appointment of Justice Marc Nadon; and third, by the sheer number of losses on major policy issues in the Supreme Court itself, even after the Court was composed of a majority of Harper-appointed judges.

Judicial Appointments to Lower Courts
One of Harper’s earliest reforms was to change the composition of the Judicial Advisory Committees (JACs) that select all federally appointed judges (section 96 and 101) apart from the Supreme Court of Canada. The JACs had previously consisted of seven appointed members – three discretionary and four nominated – who ranked judicial candidates as highly recommended, recommended or not recommended (see Chapter 4). The four nominated positions – a judge, a member of a provincial law society, a member of a provincial bar association and a nominee of the provincial Attorney General – were all representatives of the legal community.

The Harper government made three changes to the JACs: it added a representative from the law enforcement community; it limited the judicial representative to a non-voting chair (except to break ties); and removed the “highly recommended” category, returning to the twofold categorization that the JACs had used from 1988 to 1991. In Reading 11.2, Rainer Knopff describes these changes, and the responses they provoked. In Knopff’s words, critics railed against the Harper changes as “a startling departure from the ‘merit principle’ in judicial selection in favour of a dangerous ideological politicization of the judiciary.” Such critics included then Chief Justice Beverley McLachlin, former Chief Justice Antonio Lamer and the Canadian Judicial Council. Knopff claims the critiques from the legal community turn on a definition of “merit” that ignores the political reality of judicial decision-making; it is a distinction that also reflects the declaratory model of judicial decision-making (see Chapter 2). The real objection, Knopff surmises, is that by removing the judicial vote and adding a law enforcement representative, the JAC majority shifted from lawyers to non-lawyers. Accordingly, the legal community’s exaggerated response to the JAC changes was “the latest episode in the long-standing partisan demonization of the Harper Conservatives as anti-Charter and anti-court.” It would not be the last.

By the time Harper had been in power for nine years, his government had passed a considerable amount of “tough-on-crime” legislation, including reforms to youth justice, an increasing number of mandatory minimum sentences and reforms to pre-trial custody. Alongside these reforms, Harper’s judicial appointments to lower courts represent what Sean Fine (Reading 11.1) calls “the little-noticed half of Mr. Harper’s project to toughen Canadian law.” In 2007, Harper proclaimed that his government wanted “to make sure that our selection of judges is in correspondence” with its desire to “crack down on crime and make our streets and communities safer.” By the end of Harper’s tenure, his government had named nearly 75 per cent of the 840 full-time federally appointed judges. Fine documents how the Conservative government sought to appoint judges who would adopt an “originalist” position on the Constitution rather than the Living Tree (see Reading 12.3), accord greater deference to Parliament and accept the loss of judicial discretion entailed by Harper’s crime bills. In doing so, they favoured prosecutors over criminal defence attorneys and academics. These judges, Fine argues, are “Mr. Harper’s enduring legacy.”

Jamie Cameron (Reading 11.3) sees a worrying trend in such appointments. She claims the latter days of the Harper government were characterized by a more overt desire to “pack” courts with judges known for their ideologically conservative views, both at the lower courts and with Harper’s final Supreme Court appointment, Justice Russell Brown. Others question whether Harper’s stamp on the judiciary was that influential, and whether it will actually endure. Emmett Macfarlane (Reading 11.4) contends that the reaction to Harper’s lower court appointments “has been a fascinating mix of alarmism and ahistorical punditry.” While Macfarlane argues that ideological diversity is just as important as other forms of diversity on the bench, he claims there is little evidence that Harper’s appointments are as conservative as his detractors...