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.

Canadian Supreme Court 5, PM Harper 0.

Canada is a country of rules and laws and everyone defines Canadians as law abiding, we have a Parliamentary democracy since 1848, modern Canada was founded on the principle of Peace, Order and Good Government.

It also has to be remembered that it was the 4 original Provinces ( Quebec, Nova Scotia, New Brunswick and Ontario) who created the Federal Government by uniting as one single country in 1867. Dividing clearly responsibilities and powers in our Constitution on how we govern ourselves.

Each Prime Minister since has known what the Federal Government can and cannot do Constitutionally. We have had Prime Ministers who favoured decentralization and others like P.E. Trudeau who believed in centralizing powers and intervening or overlapping into fields of jurisdictions clearly in the Provincial domain. This has been the source of much irritation for the Provinces now numbering 10 not to mention the 3 territories.

However in each dispute there has been in the past Federal-Provincial Conferences in Ottawa usually in the old Union Train Station across from the Chateau Laurier Hotel or the Supreme Court has been asked to rule on matters of jurisdiction. Though in the past talking out problems has been the favourite way to go instead of going to the Supreme Court which hands down final decisions.

In the last  9 long years of the Harper government we have seen an important shift, no talks and no communications with the Provinces, the Harper philosophy is to ignore them all together. Even with Alberta, PM Harper ignores the Provincial government in Edmonton and pursues his own vision of how his home province should evolve, doing so by protecting one sector the Oil industry to the detriment of everything else.

This has been the one theme of his government pursuit of power by all means at the expense of everything and everyone else, inability to connect with the people in general and his lack of social skills in feeling a kinship with the voters and issues.

Canada has always been a country of consensus, of bringing diverse views together and finding a common goal, something PM Harper is loath to do.

Supreme Court of Canada building on Wellington street 

Early on into his mandate he openly expressed his contempt for the Supreme Court, labelling the judges as activists and going against the will of the people. He even went so far as to criticize openly the Chief Justice, no previous Prime Minister has ever done so in public for all to hear.

He was reminded by Chief Justice Beverly McLachlin of the separation of powers in our system of government between the Crown, the Legislative and Judicial. PM Harper seemed unable to understand that anyone could challenge his authority.
But this has not stopped him from continuing his criticism always displaying publicly his ignorance on the workings of our Constitution and the separation of powers in our system of government.

A few weeks ago his nomination of Judge Nadon to the Supreme Court was thrown out because Justince Nadon did not meet the requirement to sit on the bench of the highest Court in the land.
Harper was angry and said that the Supreme Court is interfering, worst his Justice Minister Peter MacKay claimed that the PM could not have known about the new rules for nominating Justices to the Supreme Court. The rules have been in place since 1864, not exactly new. No again it was a challenge to the Constitution. Will PM Harper appoint someone else who meets the rules to the highest bench, no probably not, he will in his fashion continue to ignore the Supreme Court. We currently have 8 sitting Judges they will be 7 in November out of a total of 9 members on the bench.

Other previous negative decisions by the Supreme Court have to do with well established Jurisprudence, PM Harper does not like this at all and believes that he can change what he does not like by simple decree. In a dictatorship you can do this, no problem, but not in Canada. Jurisprudence interferes with his notion of Law and Order and severe punishment for criminals. He has failed to notice that our crime rate in Canada has been falling for years and now stands at the level of 1973.

This is why he is now proposing to pass a law called the Bill of Rights of Victims of Crime, again he demonstrates his ignorance of established jurisprudence which deals with victims rights. Justice is not about vengeance or revenge but if you read the bill you will see how persons victimized by crime would be able to make demands financial and otherwise beyond any sentence a Judge in a Court of Law might impose on a convicted criminal. All along PM Harper has maintained that Judges are too soft and too liberal in sentencing dangerous criminals so victims are never properly satisfied, let the punishment fit the crime so to speak.

In the same idea of law and order he now surrounds himself with more security than Colonel Khadafi of Libya use to have, to see Harper's motorcade in Ottawa and the hundred of police surrounding him at an event makes you wonder if he has lost his mind. This way he can entertain the notion in the mind of a certain public that we live in a very dangerous and violent society. Currently spending over 20 million $ a year on his personal safety or more than we have ever spent on all Prime Ministers combined.

PM Harper has also consistently ignored Parliament, refused to answer questions in the House, refused to be held accountable for the actions of his government. Has launched negative ad campaigns against opponents in Parliament treating them like ennemies instead of colleagues with whom he is disagreeing in a Parliamentary debate.  Obviously he has never heard of Oliver Cromwell or Charles I.

How PM Harper has failed to see that his decisions and crime bills in Parliament would be rejected by Judges is beyond comprehension when you think of the briefs and analysis papers prepared by lawyers, advisors and experts. The conclusion can only be that he does not read anything and simply acts on what he alone believes is right. After this fifth negative decision by the Supreme Court on a Constitutional matter of such serious importance as the reform of the Canadian Senate, any credibility Harper might have had is gone. He lacks judgement and lacks a fundamental knowledge on how to manage the affairs of the Government.

Canadian Senate Chamber in Parliament 

What is worst was his reaction to the decision on Friday morning, he said in the petulant tone of a spoiled child that the Supreme Court stood for the Status Quo and that the Provinces were to blame in this failure. There was nothing more he could do. This is not what the judgement says, he deliberately presented a false interpretation of the decision of the Court preferring as he usually does to throw the blame on others for his own misdeeds to please his base, the 30% of electors who support him.

He knows that any reform of the Canadian Senate must be done in consultations between the Federal Government and the Provinces and abolition requires the unanimous consent of all 10 Provinces. This he won't do since he has not spoken to the Provinces in 9 years. So all his talk of reform for all these years was nothing more than talk, what a sad, nasty little man our Harper.  

However many Canadians have come to understand how dangerous for our democracy Harper has become. In 17 months we will have a general election, it will not come soon enough.