By Dr. MUNYONZWE HAMALENGWA
Apart from former Prime Minister Joe Clark’s commentary on the recent hostile attitude of Prime Minister Stephen Harper towards the Chief Justice of Canada, Beverley McLachlin, most pundits have largely missed Prime Minister Harper’s historical pedigree relating to the judiciary.
From his days as the head of the extreme right-wing National Citizens’ Coalition (NCC), Harper has always displayed the attitude that the judiciary is obstructionist towards democratic politics. One needs only to examine the massive litigation file of the NCC to detect Harper’s thinking. The NCC battled the Charter to no end.
Harper’s thinking was not a lonely call in the wilderness. It was like the thinking of quite a number of prominent conservative and leftist politicians and academics which is that the judiciary should play no role at all in the politics of Canada, except perhaps to rubber-stamp political decisions after the fact. This is despite the fact that it is parliament that gave the judiciary the tools and the jurisdiction to contend with democratic politics, through for example, the Charter of Rights and Freedoms. These pundits forget that law is nothing but codified politics, law is birthed through politics. Judges interpret a political creature and therefore are directly or indirectly involved in political combat in the courtrooms. This other debate is for another day.
It is not surprising that when Harper lost a few significant decisions in the Supreme Court of Canada, including having his nominee for the vacant post in that institution rejected, his historical attitude towards the judicial institution exploded to the fore. But that attitude has always been there. Harper insinuated that the Chief Justice wanted to meddle in the politics of judicial appointments. Harper and his disciples implied that the Chief Justice’s conduct was unbecoming. The shock was that the Prime Minister could cast aspersions on the Chief Justice, with the potential of bringing disrepute or ill-repute to that institution. This would not bode well for the administration of justice in Canada.
Harper, however, has also displayed a more menacing and contradictory character as Prime Minister, from being an advocate of reasonable democracy before he was elected in 2006 to being an extreme anti-democratic element following his election. Harper prorogued parliament to avoid possible non-confidence votes more than any Prime Minister in Canadian history. He did this to avoid defeat. Harper promised to disband the Senate democratically. But he did not do this.
Harper has also perhaps referred more cases to the Supreme Court on reference for decisions than any other Prime Minister. Instead of democratic governance, which he had been advocating before he became Prime Minister, Harper abdicated his responsibility to supposedly an undemocratic institution, the judiciary. One should read the NCC’s court submissions against the judiciary to fully understand the contradictory character Harper became as Prime Minister. Harper became a fan of quick fixes. Democratic governance was seen as inconvenient by Harper.
However, when these quick fixes were not in his favour, he lashed out at the Chief Justice, the last salvo involving the derailment of the Nadon appointment to the Supreme Court of Canada. Harper had advocated for public hearings of judicial nominees before appointment, a position he abandoned once he became Prime Minister. He made the process of judicial appointment more political than before.
If he cannot recruit the judiciary to his thinking, he will attack them openly, as he used to do as head of the NCC. Harper’s ministers have also attacked the judiciary more than any other government in Canadian history. One only needs to refer to the numerous ministerial comments when the judiciary ruled against gun-related crimes and mandatory minimum sentences as well as the judiciary’s insistence on preserving the discretionary powers that it has held historically in relation to sentencing.
The only remedy Harper now has is to stack the courts with like-minded judicial insurgents. As I previously noted, Harper promised transparency in the appointment process of the judiciary. Even that promise had not been fulfilled.
However, the public is now more alert to that process than at any time in Canadian history because of Harper’s attack on the Chief Justice. Whatever is hidden always comes to light, as Harper is quickly learning.
Dr. Munyonzwe Hamalengwa is the author of The Politics of Judicial Diversity and Transformation. He practices law in Toronto.