Canada is a Constitutional Democracy since 1982.

BY IRWIN COTLER, SPECIAL TO THE GAZETTE MAY 14, 2014

MONTREAL — Recent comments by the Harper government concerning the Supreme Court of Canada have garnered much criticism. The Council of Canadian Law Deans has decried the government's "impugning the integrity of the Chief Justice and the independence of the Supreme Court," while 11 former Canadian Bar Association presidents have denounced "disrespect by the executive branch for the judicial branch of our constitutional democracy."

While the specifics of l'affaire Nadon add up to a veritable judicial-appointments whodunit, perhaps it is worthwhile to appreciate the real issue in Harper vs. the Court.

The government has thus far maligned Chief Justice Beverley McLachlin, casting aspersions that she made an "inappropriate and inadvisable" phone call. And it has openly criticized court rulings, even impugning the court's timing. The prime minister has called the Senate reference "a decision that the vast majority of Canadians will be very disappointed with," while Justice Minister Peter MacKay has charged that "it was not this government that decided to table (the Marc Nadon reference) in the middle of the Quebec election."

In disparaging the high court, the Conservatives ignore three inconvenient truths. First, the prime minister appointed the majority of current Supreme Court justices. Secondly, the Conservative government itself asked the court to pronounce in the Senate and Nadon references. Thirdly, and most importantly, Canadian law and policy — and the roles of the courts and Parliament — have changed in the last 30 years, and dramatically so, with the advent of the Canadian Charter of Rights and Freedoms.

Under the Charter, Canada has moved from being a parliamentary democracy to being a constitutional democracy. Courts have moved from being the arbiters of legal federalism — whether the matter is federal or provincial — to being guardians of our constitutional rights, not because the courts usurped Parliament's authority but because Parliament, on behalf of the Canadian people, gave them that power in 1982. Individuals, meanwhile, have moved from being the objects of rights to being subjects of rights, with rights and remedies that were unavailable in pre-Charter law.

This is not to suggest there were no rights in Canada prior to the Charter's enactment. Indeed, the rule of law, common law, statutory protections and the like did exist. Yet, pre-Charter life and law often tell a disturbing narrative of discrimination against, and marginalization of, vulnerable groups, including discrimination against women, aboriginal people, the disabled, immigrants and refugees, racial and religious minorities, gays and lesbians and others.

Enshrining our rights in the Charter provided an additional check on the authority of Parliament, thereby limiting its actions. Our courts ensure that acts of Parliament respect these fundamental rights and freedoms.

A healthy democracy has disagreement; and indeed freedom of speech is guaranteed by the Charter. Yet, critique of the court as an institution — or maligning its members — not only runs the risk of bringing the court into disrepute, which may in fact be the objective, but ends up bringing critics into disrepute as well, and harming us all.

When I asked the minister of justice, "Why malign the chief justice?" and "Why consult the nation's highest jurist if the government did not value her counsel and advice?", the response was: "Mr. Speaker, I would not be surprised at all if there were times on occasion when the member, as a former justice minister himself, did not agree with what a judgment might have been."

There is a difference between disagreeing with and disparaging the judiciary — between seeing one's role as minister of justice as having responsibility for the promotion and protection of the independence and integrity of the Supreme Court and the judiciary, and being injurious to its role and reputation.

Regrettably, attacking unfavourable court decisions and those who make them is becoming modus operandi for the Conservative government. Instead of focusing on who or what made a decision, the government should look to why these decisions are being made. Invariably, the answer is found in the Constitution or Charter.

The solution, simply enough, is to accept and welcome these legal instruments — and accordingly respect and defend them to the fullest extent.

Irwin Cotler is the Liberal member of Parliament for Mount Royal riding, and a former federal justice minister and attorney general. He is an emeritus professor of law at McGill University.