Worried on this Canada Day that an overbearing government is trying to change the country too much? Bothered that civil liberties are being sacrificed, that the government is trying to impose a moral code, that big monied interests are being catered to at the expense of the disadvantaged?
If so, you might find comfort in the work of our Supreme Court. Its rulings give it the look of standard-bearer for the proverbial little guy, the underdog’s ally. Its progressive orientation runs up against the Conservatives’ intent. Not by design, but in effect, it has become the Official Opposition in Ottawa, outdoing the New Democrats and Liberals.
Look at the recent decisions. Last week, the court delivered a major boost to the rights of native peoples with its landmark decision on land claims and aboriginal title. The decision gives First Nations broad bargaining powers and significantly complicates Ottawa’s resource development schemes. In the same week, the court struck a blow for labour rights, siding with the union representing former Wal-Mart employees in a dispute over compensation.
On privacy rights, the court recently denied police the right to subscriber information from Internet service providers without a warrant. Earlier, it stood up for the rights of sex workers, striking down anti-prostitution laws. And for those who feel the Conservatives have gone overboard with their throw-them-in-the-slammer take on criminal justice, there’s been Supreme Court resistance as well. Recent rulings have challenged mandatory minimums and other aspects of the government’s crime legislation.
How the Conservatives feel about most of these judgments does not have to be spelled out.
Court watchers are hard-pressed to remember another time when there’s been such a sharp ideological divide. For Prime Minister Stephen Harper, it’s doubly exasperating. He has long been an opponent of judicial activism and the weight justices have accorded the Charter of Rights and Freedoms. He can complain, but a majority of the Supreme Court’s justices are his own appointments. While his picks have been seen as somewhat more conservative than those made by Liberal prime ministers, the justices have failed to do his bidding.
Like most prime ministers, Mr. Harper seeks to impose his biases. His ideology runs stronger than others, however, and he is up against a court that tends to reflect Canadians’ centrist traditions. This has led to more contrast – and more conflict.
The conflict was compounded when the court dealt a public embarrassment to the Prime Minister by rejecting Marc Nadon, his Supreme Court nominee from Quebec. The court drove a dagger into his plans for Senate reform with a ruling that said such reform would require constitutional amendment. It would likely have shredded his electoral reform bill had it not been substantially changed.
It’s hardly a surprise that progressives are hailing the performance of Big Bench. “The court clearly understands what Canada is about,” one judge told me, “and they will not let this government cut its heart out. Unlike in the U.S., our Supreme Court really does act as a responsible check against ideological excesses of the government of the day. And unlike the U.S., our court has not been undermined by being politicized.”
That he didn’t politicize the court with more ideologically charged appointments may come to be one of Mr. Harper’s biggest regrets. In his years in power, he’s been able to bring many of Ottawa’s other institutions to heel. The big exception is the Supreme Court. It is the chief negator of his agenda.