Canada’s Unconstitutional Conservatives

This article originally appeared on, republished here with permission from the author

I’ve often said, and many Canadians would agree, that Prime Minister Stephen Harper’s Conservative Party is the most conservative the county has ever seen. It is, after all, the first conservative government to hold power without the word progressive tied to the party name.

Normally in Canada, we can determine the extremism of a party’s ideology by the laws they pass through the House of Commons. In the last decade however, particularly since 2011, we can also determine just how far-right Stephen Harper is by the amount of laws deemed unconstitutional by Canada’s Supreme Court.

The fact of the matter is, if Harper’s Conservatives pass major legislation with social implications, you can bet there is an above average chance that these laws fly in the face of Canada’s Charter of Rights and Freedoms.

Stephen Harper

Before we get into the details, it is important to note that Canada’s Supreme Court contains 7 out of 9 justices appointed by Stephen Harper himself. The court has been under conservative control for years now, yet have continuously ruled against the guy who put them in the big chairs.

It just goes to show just how unconstitutional these laws really are. It should also be mentioned that 80% of these decisions were unanimous.

Federal ban on non-dried marijuana extracts – Jun 11, 2015

Canada’s highest court ruled that the federal government’s prohibition on consuming cannabis extracts for medical use is unconstitutional.

The case involved Owen Smith, whose legal team argued that the ban on non-dried forms of medical cannabis violated his constitutional rights. Mr. Smith went to Ottawa and won. The unanimous ruling against the federal government expanded the definition of medical marijuana beyond the “dried” form. Medical marijuana is now fundamentally legal in all forms.

Federal ban on assisted suicide – Feb 6, 2015

The Supreme Court of Canada lifted the government’s ban on doctor assisted suicide. The historic, far-reaching and once again unanimous decision declared that suffering patients have a constitutional right to have a doctor help end their life.

The Court ruled that assisted suicide is constitutional “under a physician’s care, for consenting adults who determine they cannot tolerate the physical or psychological suffering brought on by a severe, incurable illness, disease or disability.”

Canada’s three prostitution laws – Dec 20, 2013

The Supreme Court of Canada struck down the country’s three main anti-prostitution laws. In another unanimous decision, the court struck down laws prohibiting brothels, living on the avails of prostitution and communicating in public with clients. The Court ruled the laws were over-broad and “grossly disproportionate.”


The supreme justices didn’t legalize prostitution (they don’t write laws), but they did give the federal government a year to fix them or face the reality of legal prostitution.

Naturally, Harper’s conservatives wrote a new law and more than 220 legal experts inevitably claimed the new prostitution bill once again offends the Charter. I’m guessing Supreme Court Challenge part two is around the corner.

Marc Nadon on the Supreme Court – Mar 21, 2014

In order to appoint Quebecer Marc Nadon to the Supreme Court, Stephen Harper tried to amend the Supreme Court Act through a budget bill. The government introduced changes in an effort to make Nadon eligible as a former member of the Quebec bar, as opposed to a current one.

The court said in a 6-1 decision that the amendment was unconstitutional because the government does not have the power to make such amendments unilaterally. Changes to the court’s makeup require a constitutional amendment with the unanimous consent of the provinces.

Expands land-title rights – Jun 26, 2014

In what legal observers called the most important Supreme Court ruling on aboriginal rights in Canadian history, the Court determined that native Canadians still own their ancestral lands, unless they signed away their ownership in treaties with government.

The decision complicates any of Harper’s plans to build large federal infrastructure projects such as pipelines and highways in the vast un-ceded sectors of British Columbia.

The Prime Minister’s attempt at Senate reform – Apr 25, 2014

Prime Minister Stephen Harper had to give up on one of his career goals when the Supreme Court of Canada ruled that he needed substantial provincial consent to introduce elections or term limits to the Canadian Senate and undivided consent to do away with it altogether.

Believing the provinces would never see eye to eye on reform, the unanimous 8-0 ruling forced Harper to throw in the towel. Without even trying, he determined “that significant reform and abolition are off the table.” Harper just conceded that the country was “essentially stuck” with a scandal-plagued unelected Senate.

Harper blocked from shutting down Insite – Sep 30, 2011

From the moment Stephen Harper was elected, he had his mind set on closing Insite; the country’s first (and successful) safe injection site. But in its 9-0 decision, the Supreme Court said the federal government had the jurisdictional right to use criminal law to restrict illicit-drug use, but that the anxieties it cited in an attempt to close Insite were “grossly disproportionate” to the benefits for drug users and the community.

insite bc

“During its eight years of operation, Insite has been proven to save lives with no discernible negative impact on the public safety and health objectives of Canada,” the Court said. The ruling had made it possible for other safe injection sites to open across the country, but Harper passed another, yet unchallenged law, that made opening new sites impossible.

Mandatory minimum sentences for gun-related crimes – Apr 14, 2015

Harper came into office promising to get tough on crime despite the fact that crime rates were at 40 year lows. One of the laws he passed with his Majority Government was his now famous Omnibus Crime Bill which included, among other things, mandatory minimums for gun-related crimes.

The 6-3 ruling, said the statute was unconstitutional as it upheld a 2013 Ontario Court of Appeal ruling that labelled the law cruel and unusual.

The court said the mandatory minimum sentence could entangle people with “little or no moral fault” and who pose “little or no danger to the public.” It cited an example; a person who inherits a firearm and does not immediately get a licence for the weapon.

Truth in Sentencing Act – Apr 11, 2014

Another part of Harper’s Omnibus Crime Bill was the Truth in Sentencing Act. His government basically tried to stop judges from acting in what it saw as an overly generous way toward prisoners who had not received bail. The 7-0 Supreme Court ruling said the practice is rooted in traditional sentencing principles and can continue.

What both cases have in common is the Harper Government’s attempt to limit judges’ discretion in sentencing. In essence, the party that preaches smaller government was trying to tell Canadian judges how to do their jobs.

Cutting access to early parole – Mar 20, 2014

Another blow to Harper’s crime fighting agenda. In another unanimous ruling, the Supreme Court of Canada ruled that a law that applied retroactively to non-violent offenders that took away their easy access to early day parole, violates their constitutional rights.

The Harper Government had tried to end the Accelerated Parole Review which made it quick and easy for first-time, non-violent federal offenders to obtain day parole.

Harper, and conservatives in general, love to say they believe in small government, not wanting to manage people’s lives or waste public money like liberals or progressives apparently do. Judging from this list I’d have to say the opposite is closer to the truth.

I would love to get a figure on how much time and money these unconstitutional Conservatives have wasted passing and protecting these illegal laws. Regulations that their own judges have consistently and unanimously ruled unconstitutional.

Facebook Comments

Join the discussion

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.