Lorne Sossin is Dean and Professor at Osgoode Hall Law School, York University. Sossin holds doctorates from the University of Toronto in Political Science and from Columbia University in Law. Sossin's teaching and research interests span administrative and constitutional law, the regulation of professions, civil litigation, public policy and the judicial process.
It is hard to know at what moment Stephen Harper and his Conservative Government reached the nadir in their relationship with the Courts. Many might cite March 21, 2014, the day the Supreme Court of Canada (SCC) disqualified Justice Marc Nadon from his appointment — the first time in Canada’s history that a court had turned back an executive appointment. But I would probably pick September 30, 2013, the date on which the appointment of Justice Nadon was announced. The Government knew the appointment of a Federal Court of Appeal Justice to fill one of the three “Quebec” seats on the Supreme Court would be contentious (and had already sought an opinion from former SCC Justice Ian Binnie indicating such an appointment was not illegal). Even more so, while Justice Nadon had exhibited many commendable qualities during his service on the Federal Court of Appeal, he was nearing retirement and it was clear to most observers that his 2009 dissent in favour of the Government’s position in the Khadr case was a key factor in his putative elevation. Justice Nadon’s appointment on the merits, and in its process, represented a gauntlet thrown down at the feet of the Canadian judiciary.
And then, of course, it got worse. After the Supreme Court turned back the Nadon appointment (purely on eligibility grounds, without comment on the merits or the process), on May 1, 2014, “senior conservatives” leaked that Chief Justice Beverley McLachlin had lobbied against the Nadon appointment. The Chief Justice responded by stating that she had sought a call with the Prime Minister to discuss concerns about the eligibility of a Federal Court judge (concerns, which of course, did not go away). The Prime Minister, rather than climbing down from these extraordinary allegations against a sitting Chief Justice, reiterated them, pointing out that he declined the call because it would have been inappropriate to discuss the appointment with the Chief Justice. If this was not the bottom, what could possibly be next?
More to the point, how did we get here? There are two plausible explanations — one substantive and one less so. I will touch on each briefly.
The substantive reasoning relates to the many instances where Conservative ideas and policies have been stymied by Supreme Court decisions (and to a lesser extent, lower court decisions). To cite just some examples, the Supreme Court compelled an unwilling Conservative Government to fund needle exchanges in Vancouver (in 2011), and prevented an eager Conservative Government from launching a national securities regulator (in 2012). From the Bedford decision (2013) legalizing certain aspects of prostitution to the Carter decision (2015) striking down the Criminal Code provision making it illegal to assist someone in committing suicide, the Government appeared to ricochet from one setback to another. I should probably devote more space to the Government’s significant defeat in the Senate Reference (2014) and the Aboriginal rights case, Tsilhqot’in Nation (2014), but this would simply be piling on.
Other Canadian Governments have lost significant cases at the Supreme Court or had policy proposals and positions turned back (the Liberals, for example, lost their own Senate Reference and a series of Aboriginal rights cases in the 1980s). Never before, however, has there been a partisan tinge to the narrative around Government litigation before the courts. This more American style of coverage (noting, for example, how many Harper SCC appointments voted with the majority or the dissent) represented a new and worrying turn in the relationship between the Federal Executive and the federally appointed judiciary.
The saga unfolding over the past year of the Harper decade in Canadian politics represents an extension of a broader theme. Having fought so hard in so many elections for power and ultimately for a majority mandate, it is as if for Harper’s Government, other appointed bodies (whether courts, regulators or independent agencies) are viewed as less legitimate and a threat to Canada’s democratic system — particularly the Supreme Court as it has interfered with or rolled back so many policy initiatives and policy preferences of the Conservative Government since 2006.
The second explanation is less political and more personal. Listening to the Conservative rhetoric, it does not appear that the Conservative Government has philosophical differences with the courts about the nature of democratic legitimacy — rather, it sounds like the Conservatives sometimes simply mistrust judges. They believe judges (though importantly not all of them) to be hostile to the Government and its value-based policy preferences.
But it is not so simple. The Government does appear to have a soft spot for the Federal Court, as suggested above. The leaked short-list for the replacement of Justice Fish on the SCC included 6 potential appointments, 3 of which emanated from the Federal Court of Appeal (including, of course, Nadon). Additionally, in the Bill C-51 debates of 2015, the Conservatives have eschewed a greater role for administrative oversight through the Security Intelligence Review Committee (SIRC) but have been content to leave key determinations in the enhanced CSIS powers in the hands of Federal Court judges. And beyond the Federal Court, the Conservatives also have used judicial appointments to advance some of their own loyalists (Vic Toews springs to mind). Like all assessments of a decade in power, the story of the Conservative Government under Prime Minister Harper and the courts is multi-faceted, and anything but one-dimensional.
As we approach 10 years of Conservative Governments under Prime Minister Harper it is fair in my view to draw some conclusions about the relationship between the Executive and Judicial branches in Canada.
The first conclusion, made ever more apparent over the past tumultuous year, is that the Courts are not beyond the reach of partisan politics and political opportunism. If the Prime Minister can go after the integrity of the Chief Justice, then no judge can truly remain beyond the fray.
The second conclusion is that, after a decade of appointments by Harper’s Cabinet, the courts remain fiercely independent — tellingly, all but one of Harper’s 5 appointments who took part in the Nadon decision, for example, agreed with the majority that the appointment contravened the Supreme Court Act.
The third conclusion is that the Conservatives have not paid an especially high price for the fights they have picked with Judges. Judges are well respected in the abstract, but not especially loved (particularly by the Conservative base) when it comes to specific issues — the public largely sides with the Government, for example, when it calls for stiffer sentences for criminals and for the discretion of the judges to be constrained in this context by mandatory minimum sentences.
While it is perhaps too early to say, my final observation is that the relationship between the Courts and the Executive is more resilient than many might have thought. Although the personal relationship may have touched rock bottom sometime over the past couple of years, the institutional relationship remains strong and largely unaffected, including Government funding for the courts and its staff, and the judicial enforcement of Government laws and policy. Unlike Statistics Canada, Elections Canada and other bodies whom the Harper Conservatives have bloodied (either for partisan reasons or simply to make a point — or both), the courts have emerged from a decade of the Harper led Conservative Government unscathed (some might say unbowed). In Canada, judges and politicians may not always like each other, but the courts and executive need each other to achieve their institutional goals — and ultimately both depend on the legitimacy conferred by Parliament and the confidence of the public.