Supreme Court

NewsPolitics

This article originally appeared on QuietMike.org, 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.”

canada-prostitution

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.

News

Does anyone remember the concept of “open federalism?” That was the anti-centralist concept of Canada espoused by the Reform party back in the early 90’s that said the role of the feds should be limited to those areas that the provincial government either can’t or won’t do themselves. They also argued quite forcefully that any major policy decisions should be done in consultation with the provinces rather than being imposed on them by a dictatorial government in Ottawa.

Ironically enough these were once the cherished principles that our two-faced Prime Minister Harper once swore to adhere to until his dying day, if ever he became Prime Minister. Now, like so many other noble words once spoken by Steve Harper (i.e. denouncing patronage appointments of Senators) & his gang of neo-cons, they have been quickly disregarded in favour of the new dominant political ideology of this government: Ottawa knows best! As a wise man once said (Groucho Marx, often misattributed to Woody Allen) “ these are my principles. If you don’t like them, I’ve got others.”

I was reminded of open federalism the other day, when a Superior Court judge in Quebec found that the long gun registry was a shared overlapping jurisdiction between the two levels of government (criminal law is federal, but the registration of firearms is a matter for the provinces) and could not be destroyed without the consent of the provinces.

Quebec had filed an injunction (easily one of the best things the Charest government and the current interim leader Jean Marc Fournier as Justice Minister, ever did) against the feds when they inexplicably announced that they were destroying the data collected over the years by the registry, stating that they wanted the data to be transferred over to them, for the purposes of creating their very own provincial registry. A sensible and good use of taxpayer’s money. Not to mention a valuable crime fighting tool that virtually every police chief in the country supports.

But don’t expect Minister my-personal-life-is-of-limits-but-I want-access-to-yours Toews to accept logical arguments on this one, or any other issue for that matter. I’m certain it is only a matter of time before he and the government challenge the lower court decision and send the case all the way to the Supreme Court of Canada (not that they’ve had much luck their lately), open federalism be damned!

With the recent and tragic shooting of Denis Balnchette on election night, fresh in the minds of Quebeckers, they are no doubt more resolved than ever to have stronger, not weaker, gun control laws on the books. Pity that Harper’s bunch is too blinkered by their ultra-right wing views to realize that.

*Photo by mostlyconservative (via Flick under a CC license).

EnvironmentNewsPolitics

With the debate over the Northern Gateway pipeline proposal heating up in Ottawa, and the likely scenario of some sort legal battle emerging, it might be time to look what the law, and in particular the Supreme Court, has said about aboriginal land claims in the past to see if we can better predict the outcome of any trial on this contentious subject.

Harper and his oil business cronies probably would have preferred that the Northern Gateway project fly under the radar, but his loudmouthed Minister of Natural Resources Joe Oliver didn’t get the PM’s memo, evidently. Tasked with the unenviable job of trying to greenwash the tar sands for sale in the U.S. and elsewhere, Oliver is ratcheting up the us-versus-them rhetoric in the wake of the recent delay to construction of the Keystone XL pipeline due to Obama’s controversial decision to withhold permission. Reeling from this setback, and the prospect of the same thing happening to their latest pipeline dream, Oliver made the now infamous remark that Canada’s economic interests were being threatened by “environmental groups and other radical groups…attempting to hijack our regulatory system!”

Luckily, no one in their right mind is buying what Oliver is selling, least of all first nation groups for whom the pipeline could have a massively negative impact on their traditional lands, most disturbingly at the location where the pipeline ends in Kitimat BC, which happens to be in the heart of one of the world’s most sacred and delicate ecosystems, the Great Bear rainforest.

The government maintains that it has been in consultation with First Nations through the Joint Panel Review, set up by the feds back in 2006. But is this enough? Most experts on aboriginal law in the context of Supreme Court rulings related to section 35 of the Charter of Rights and Freedoms (affirming “existing aboriginal treaty rights”) are deeply skeptical that the government has done its constitutional duty to involve First Nations in this process from the start.

This duty basically stems from two key precedents in Canadian law: Mikisew (2005) and Delgamuukw (1998). Before the latter decision was used by the court to assert the legitimacy of native sovereignty over their own land, governments tended to try and minimize the importance of those claims by pretending that native communities only exercised their rights in relation to hunting, fishing and various other traditional activities.

The former is perhaps even more significant in its implications for the proposed pipeline. In his opinion, Justice Binnie laid down a twofold obligation on the part of the government: 1) the crown ( i.e. the feds) must be in consultation with affected First Nations at the earliest stages of development. 2) The results of that consultation must be factored into the planning of the project in question.

Two pieces of evidence belie the feds’ position, in light of the cases I just mentioned. The leadership of the Haisla people, who historically occupied the land where the tanker farm would be built, had not only been denied a meeting with the relevant ministers in ’05, but when then environment minister Rona Ambrose made her first public statement about the project in ’06, it contained virtually no mention of their concerns. Furthermore, the Joint Review Panel seems to be a toothless government public relations tool with no legal powers to decide aboriginal title or land claims. Not to mention that the Crown chief representative lacks negotiating authority.

Another potential legal issue raised by the Harper governments mishandling of this matter is the question of Joe Oliver’s now infamous letter. Aboriginal legal experts say it could be used as evidence that the crown is not negotiating with First Nations in good faith. According to Michael Lee Ross: “On its face, this looks inconsistent with the requirement that the Crown proceeds with an open mind. It does suggest the process has already been predetermined.” Hardly surprising that the Carrier-Sekani nation have filed a lawsuit against the project.

However, despite this duty to consult, it’s important to remember that, by virtue of the archaic Indian Act, First Nations still don’t have the power to veto development projects on their lands. Ultimately, the best that the communities involved in this battle can hope for is that by raising awareness about the harmful consequences to environment, local enconomy and their people, the combination of negative publicity generated and legal red tape created will cause Enbridge to back down from their controversial plan.

Canadian ElectionsNewsPolitics

An electoral campaign dominated by talk of coalitions, corporate tax cuts and care for seniors has sidelined an issue crucially important to the future of the country: court appointments to Canada’s highest judicial body.

With four of nine Supreme Court Justices approaching the mandatory age of retirement in the next four years, and eight of nine eligible for retirement with full pension by the end of 2011, Canada’s next Prime Minister will likely wield an inordinate influence over the country’s judicial landscape for years to come.

In Canada, the Prime Minister appoints judges to the Supreme Court with no formal checks and balances. While the Supreme Court Act requires that three of the nine judges be from Quebec and that all nominees must have been members of the bar for at least ten years, the appointment process is otherwise uninhibited.

This leaves Canada’s Prime Minister with unchecked power to choose the individuals who will make definitive judgments on abortion, national security and religious freedom among other contentious issues. Long after the Prime Minister has held office, judges with no term limits will continue to make policy that affects the lives of future generations.

So, given this startling number of imminent Supreme Court vacancies, why have judicial appointments been a sleeper issue during this campaign?

First, in Canada media coverage of political culture does not normally extend to the judiciary and Canadian new sources have few, if any, justice reporters.   This stands in stark contrast to the Unites States, where Supreme Court Justices border on celebrity status (consider the media coverage of Sonia Sotomayor’s nomination).

Can you name all of the people in this picture? Canadian Supreme Court Justices

Second, despite the fact that Supreme Court rulings have a profound effect on our lives, judgments are notoriously long, dull and academic, and most Canadians are more interested in clipping their toenails than following the procedures of this far-removed institution.

Finally, there is the unavoidable fact that reforming the judicial appointment process is a complicated issue no matter how you shake it.

Critics of the Canadian appointment process have lobbied the government to reform the current system to resemble the more democratic US system of appointment where   nominees must be confirmed by the senate, which holds veto power.

In Canada, leaving the confirmation to our unelected senate would do nothing to improve the democratic value of the process. Bestowing the confirmation on elected legislators would be equally fruitless since the Prime Minister’s party holds the most seats in the House of Commons and, with the crack of the party whip, the PM’s nominations would likely go unchecked.

Detractors of the US-style process are also quick to point out that including legislators, while more democratic, would render the process a legitimately partisan affair. The independence of the judiciary may be compromised when the process is politicized and party preference for Supreme Court Justices plays an accepted role in the process.

Heeding to criticism about the democratic deficit, in recent years the executive branch has taken minor steps to reform the unchecked Canadian appointment process.

In 2003 Prime Minister Paul Martin altered the process by initiating a parliamentary committee to review nominations, and Prime Minister Stephen Harper followed suit by allowing the committee to question Supreme Court nominees—a commonplace practice in the US but a first in Canadian history.

Ultimately, however, the committee’s role was simply a perfunctory one, as the committee was carefully instructed as to what types of questions they could ask nominees, and accomplished nothing in fundamentally altering the appointment process.

Although these superficial changes to the appointment process have been disappointing, we should not be discouraged from pursing a more meaningful type of reform.   A major step in this endeavor is to cast the net of possible reform options beyond the usual reach of our Southern neighbour to consider how other countries proceed.

In Australia for instance, there must be consultation with the Attorney-Generals of the states and territories, which offsets the executive’s concentration of power.   The United Kingdom, while not operating under a charter, takes a distinctly non-political approach to High Court appointments by forming a selection committee, which includes significant lay representation, each time a vacancy arises.

While far from perfect, both countries’ appointment processes offer potential options for reforming our current system’s disproportionate concentration of power.

With a frightening number of vacancies looming, and a still yet unknown government, it is especially important to moderate the majoritarianism that a selection process left entirely up to the Prime Minister creates.

If Harper’s two previous Supreme Court appointees have been relatively uncontroversial picks, his track record suggests cause for concern. In 2008-2009 alone there were a documented 233 patronage appointments sprinkled generously among the senate, lower courts and various other government positions.

If we really believe that judicial independence is a cornerstone of our democracy, and that its primary function is to provide a balance to executive and legislative powers, then why has the appointment process gone unchecked for so long? Now more than ever we need to demand real checks and balances to the appointment of the individuals who have the final say on our rights and freedoms.