The Prime Minister has been on the losing end of several Supreme Court decisions in recent times. He lost on the appointment of Marc Nadon. He lost on his bid for Senate reform. Decisions have gone against him on his crime legislation and on prostitution.
So, for someone who views the power of the court as excessive to begin with, Stephen Harper's frustration is understandable. Progressives out to get him. Again!
But there's something that doesn't fit the picture. This is Stephen Harper's court. He appointed a majority of the justices on it. He named five of the eight, with one more pending. Another, Beverley McLachlin, was named to the court by Tory Brian Mulroney. The Harper appointments, as could be expected, have been more conservative in their orientation than liberal. Yet they have still rendered verdicts he opposes.
You might think this would temper his animosity toward the court. But as we see in his feud with Chief Justice McLachlin, not so. In his forceful assertion that the executive should not be in communication with justices on cases before the court, Mr. Harper had a point. Such could be viewed as unseemly meddling, a blatant conflict of interest. Jean Charest and the late John Munro are just two ministers who had to resign for contacting judges.
Chief Justice McLachlin's attempt to communicate wasn't to discuss a case before the court, however. It was on the matter of eligibility of court candidates. As she and former justice minister Irwin Cotler and other legal authorities point out, it is customary practice to advise the government on such matters.
Mr. Harper's rejection of her call came last summer. The news, curiously, only surfaced last week following all the rebuffs the PM had taken on court decisions. His harsh critique had the look of an attempt to tarnish the Chief Justice's integrity. It had the look of retribution.
Maybe Chief Justice McLachlin's attempted clarification of eligibility rules should have been done in a different way, through lower channels. But, as the Canadian Bar Association makes clear, there was no serious breach of protocol. It is calling on Mr. Harper to stand down from his criticism of her.
No one should bet on that. Mr. Harper's Democratic Reform Minister, Pierre Poilievre, recently impugned the integrity of the country's chief electoral officer, Marc Mayrand. Because of widespread national opposition, Mr. Poilievre then had to stage an embarrassing retreat on the election bill, which aimed at reducing the powers of the chief electoral officer. On the heels of that, a further shaming on the Supreme Court feud would be too much to take.
The Prime Minister's enemies list, which includes Mr. Cotler and so many others, keeps growing – and reaching higher levels. Must everyone submit to Mr. Harper's will or face retaliation? Do we have, as his former adviser Tom Flanagan maintains, a predator as prime minister? Does he not think there will be a reckoning?
In trying to understand it, a couple of considerations come to mind. One is that these Conservatives constitute what might be called Ottawa's first real wedge government. Other governments, including Tory ones, have sought to be more representative. With this one, it's divide and conquer. It's less about broadening the tent than hardening the attitudes of those within. Others are seen as enemies at the gate.
But the antagonism is fuelled by more than strategic political imperatives. I recall interviewing David Emerson, who had a unique perspective because he served in both the cabinets of Paul Martin and Stephen Harper. There were things he preferred about the Harper operation. But one difference that alarmed Mr. Emerson was the degree of visceral contempt he saw from Mr. Harper and his top lieutenants toward those opposed to their beliefs. He'd never seen anything like it. How could they harbour, he wondered, so much venom?
The combination – a wedge government driven by such a degree of animosity – makes for a potent mix. It's why the enemies list has kept growing. It's why a woman as honourable as the Chief Justice of our Supreme Court is now on it.