Harper takes a swing at the Supreme Court after losing yet another case

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In the past few years, the Harper government has aggressively pursued its own agenda without due regard for the Canadian Constitution, the rights of the provinces and the rights of the most vulnerable Canadians. It has pushed for Senate reform, tougher criminal laws, and even subtly attempted to shift the balance of the Supreme Court of Canada by appointing judges with a conservative bent.

Stephen Harper may have hoped that his five appointments to the Supreme Court would influence the outcome of the cases before it, but a recent string of well‑deserved thrashings in court have demonstrated that the Supreme Court is truly an independent, non‑partisan body, able to act as a check on the government's (inappropriate) actions.

Unable or unwilling to further his agenda in a legitimate manner, Harper sank to a new low last week and made unfounded attacks on the conduct of Supreme Court Chief Justice Beverley McLachlin. Harper alleged that the chief justice improperly contacted the government in July 2013 to lobby against the appointment of Federal Court of Appeal judge Marc Nadon to the Supreme Court. Harper failed to mention that the chief justice was consulted by the parliamentary committee who screens proposed new judges to advise on the needs of the top court, and that she merely flagged the issue of appointing a Federal Court judge as opposed to a Quebec court judge, as required by the Constitution. This was long before the appointment was made and long before that appointment was challenged.

In making such shocking allegations against one of the most respected judges in Canada, the prime minister has yet again shown that he is behaving like a schoolyard bully. Perhaps Harper needs to revisit the Constitution and be reminded of why we have an executive, legislative and judicial branch of government -- and why an independent judiciary is so important to a healthy democracy.

The decisions issued by the Supreme Court, discussed further below, were logical and rightly decided. In no case was the government precluded from continuing to advance Harper's agenda in accordance with the Constitution. The prime minister has no one to blame for his government's failures but himself and his staff for failing to consult widely on proposed legislation, failing to take the time to carefully draft unambiguous laws, and failing to properly consider the Charter of Rights and Freedoms or the Constitution Act, 1867 in advance of forging ahead. Would anyone in Canada honestly advocate that the court's role is to simply rubber-stamp legislation that runs afoul of basic principles of constitutional law?

The Senate reform decision

In the recently released Reference re: Senate Reform, the Governor in Council sought an opinion from the Supreme Court as to whether the government could unilaterally change the manner in which senators were appointed (i.e. through consultative elections), limit the terms of senators (and potentially make them susceptible to politicization), or abolish the Senate altogether. Because the Senate was created by the Constitution Act, 1867, its processes for amendments must be followed. This includes clear processes for making "general amendments" to the Constitution (s. 38 and s. 42(1)(b)) and "fundamental changes" to the Constitution (s. 41(e)).

In reviewing these processes, the Supreme Court found that consent of the Senate, the House of Commons, and the legislative assemblies of at least seven provinces representing half of the population of all the provinces was required to change the manner in which senators obtained their positions or to change their tenure, because these were general amendments. On the abolition of the Senate, the Supreme Court stated that because this would fundamentally alter the constitutional architecture of the country by eliminating one of the checks and balances in the system, it would require the unanimous consent of the Senate, the House of Commons, and the legislative assemblies of all Canadian provinces.

To suggest that the government is being blocked by the Supreme Court in its efforts to create change is a weak attempt by Harper to shift responsibility to the judiciary for his government's own unwillingness to work with the provinces of Canada and obtain consent as required by our confederating agreements to reform the Senate.

Challenge to appointment of Marc Nadon

Similarly, in the Reference re: the Supreme Court Act, ss. 5 and 6, the Supreme Court was asked to determine whether a Federal Court of Appeal judge, Marc Nadon, was eligible to hold one of the three seats on the Supreme Court reserved for a Quebec judge. The same day that Nadon's appointment was challenged by a prominent Toronto constitutional lawyer, the government introduced and subsequently passed amendments to the Supreme Court Act that would make Nadon eligible by removing a requirement that the judge be a current member of the Quebec bar.

After reviewing the legislative history of sections 5 and 6 of the Supreme Court Act, the Court noted that section 6 reflects the historical compromise reached with Quebec that led to the creation of the Supreme Court. The right to a minimum number of Quebec judges was a negotiated right alongside other protections such as minority language, religion and education. This provision effectively recognizes that judges appointed from Quebec are subject to different criteria. They are required to be steeped in Quebec's civil law, social values and culture, and to be a current judge of the Court of Appeal or Superior Court of Quebec and current advocate with least 10 years standing at the bar of Quebec.

The Supreme Court also concluded that Parliament cannot unilaterally change the composition of the Supreme Court because essential features are constitutionally protected under Part V of the Constitution Act, 1982. Like the Senate reform reference, changes to the composition of the Supreme Court can only be made with unanimous consent of Parliament and provincial legislatures. Changes to the other essential features of the Supreme Court can only be made with the consent of at least seven provinces representing, in the aggregate, at least half of the population of all the provinces.

It is disingenuous for Harper to argue that the Supreme Court's decision in this reference was a surprise. If Parliament truly believed that there was nothing offside about the appointment, the prime minister would not have requested a legal opinion from professor Peter Hogg.

Elimination of credit for pre‑sentence detention

Finally, in April 2014, the Supreme Court considered in R. v. Summers and R. v. Carvery whether a sentencing judge erred by granting enhanced credit to offenders under s. 719(3.1) on the basis of the accused's loss of eligibility for early release and parole. Parliament expressed frustration that this finding appeared to undermine its "tough on crime agenda."

In 2009, the government enacted the Truth in Sentencing Act (TISA), which changed the statutory regime governing credit for pre‑sentence detention. Parliament amended s. 719(3) of the Criminal Code to limit credit for pre‑trial custody "to a maximum of one day for each day spent in custody." It also added s. 719(3.1) which states that despite that limit, "if the circumstances justify it, the maximum is one and one‑half days for each day spent in custody." Previously, courts would routinely award 2:1 credit for days spent in detention.

The Supreme Court explained at paragraph 2 of its decision that judges typically awarded enhanced credit, at a rate higher than one day for every day of detention, for two reasons:

Time in a remand centre does not count for the purposes of eligibility for parole, earned remission or statutory release, and this can result in a longer term of actual incarceration for offenders who were denied bail. Moreover, conditions in remand centres tend to be particularly harsh; they are often overcrowded and dangerous, and do not provide rehabilitative programs.

Further, failure to offer enhanced credit meant that vulnerable and impoverished offenders who could not afford bail would spend a longer period of time incarcerated.

Because section 719(3.1) of the TISA did not contain any limiting language that would prevent the court from determining what "if the circumstances justify it" meant, the court found it appropriate for the sentencing judge to grant credit at a rate of 1.5 days for every day in detention on the basis of the above rationale for enhanced credit.

Stephen Harper intimates that the Supreme Court of Canada has been overly activist; however, this case is yet another example of the fact that Parliament has done a poor job of drafting the legislation in question. Parliament did not draft s.719 (3.1) with sufficient particularity if it had a different intention, and as such the court's findings were correct.

If the prime minister hopes to regain respect from Canadians after last week's attack on the chief justice, he will apologize and retract his comments. He will also take responsibility for his poor judgment in wasting valuable court resources with respect to the Supreme Court of Canada decisions and References above.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

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