Madame Justice Beverley McLachlin, Chief Justice of the Supreme Court is the longest serving chief justice in the country’s history. She was first appoint to the court in 1989 by Brian Mulroney, a Conservative prime minister, and she was elevated to the chief’s position in 2000 by Jean Chretien, a Liberal.
It appears that Prime Minister Stephen Harper is no fan of the courts, and he believes that Parliament is still the highest court in the land. This long held concept underwent serious revision with the partition of the constitution and the acceptance of the Charter of Rights. Now laws passed in parliament must meet the criteria set by the constitution and judges will determine if those criteria have been met.
In the past few months the courts have rejected a number of measures passed by the Harper government, most noted was the court’s recent rejection of the appointment of Marc Nadon to the Supreme Court and the way the government retroactively tried to change the rules governing the appointment of judges from Quebec.
This was followed by a court decision saying that the federal government can not unilaterally abolish the Senate, impose term limits, or change the appointment process without the support of at least seven provinces.
When he was first running to be prime minister, wanted to assuage people’s fear that he was a right-wing extremist who would make major changes to the governance of the country. Mr. Harper pointed out that if a Conservative government were elected to the House of Commons, it would still be held in check by the Senate, the Supreme Court and the federal bureaucracy, all packed with Liberal appointees.
If this was ever a threat, the threat no longer exists. After eight years in office Mr. Harper’s appointments dominate those institutions. Five of the eight judges on the Supreme Court, the majority of sitting senators, and most of the senior managers in the civil service have all been appointed by him.
All of which makes the prime minister’s attack on the integrity of Chief Justice McLachlin so mystifying.
If all you read were the headlines, Stevie Harper vs The Supremes, might look like some kind of a 1960s rock and roll contest, a Battle of the Bands.
Was it a fit of pique? A misguided sense of the supremacy of the prime minister’s office? It is hard to understand why Stephen Harper has taken on the Chief Justice of the Supreme Court of Canada.
The idiot fringe might see this controversy as crass politics; a populist democrat from the West takes on the entrenched eastern Establishment. But, that doesn’t hold
water as Madam Justice McLachlin is a native of Alberta, and Mr. Harper isn’t.
However, it does appear that Mr. Harper, and a few other staunch conservatives, both large ‘C’ and small, believe that since the passage of the Charter of Rights judges have become too powerful and are undermining the supremacy of Parliament. These people still won’t accept that the Constitution trumps all. Changes can still be made to the constitution, but it is quite rightly an onerous and difficult process.
Maybe this is what frustrates Mr. Harper.
In his eight years as prime minister he has tangled with bureaucrats, experts and institutions, but he’s usually been successful at imposing his will. He started with a relative small fry, Linda Keen, the head of the Nuclear Safety Commission. She wanted to shut down a leaky nuclear reactor, Mr. Harper said otherwise. Ms Keen was fired, just hours before she was to appear before a Commons committee.
Then Mr. Harper did away with the mandatory long-form census in spite of expert evidence it would undermine the integrity of the census data. Kevin Page, the budget officer was constantly at loggerheads with the government, his mandate wasn't renewed. Now there’s legislation to clip the wings of Elections Canada and when the former Auditor General, Sheila Fraser, voiced her opposition to that move, the government tried to denigrate her. Mr. Harper has also turned on his own; he has besmirched the reputation of Nigel Wright, his former chief of staff and recently axed his own hatchet-man, Dimitri Soudas.
But, it looks like he’s met his match in the Chief Justice. Even he seems aware of it. He hasn’t apologized, but this week Mr. Harper minutely altered his initial attack and he’s toned down the rhetoric. And that’s about as far this guy will ever go.
Alan Holman is a freelance journalist living in Charlottetown. He can be reached at: firstname.lastname@example.org