Canada's judges fear they could be in the crosshairs when Tories drop election writ

With a federal election no more than a year away, the Canadian judiciary could find itself a target as Prime Minister Stephen Harper’s Conservatives campaign for a fourth term in power.

The Harper government has been stymied over elements of its tough-on-crime legislation and other issues.

The friction flared most visibly in a nasty spat with Chief Justice Beverley McLachlin, who Harper and Justice Minister Peter McKay suggested made an inappropriate intervention in the ultimately failed attempt to appoint Federal Court Justice Marc Nadon to the top court.

Both McLachlin and MacKay have since tried to play down the incident earlier this year as part of the normal “healthy tension” between government and the bench.

In a recent statement in the House of Commons, MacKay said the government’s relations with the Supreme Court remain “professional and constructive,” and that he respects the court, “as well as all the institutions of the country.”

MacKay’s office refused a request to interview the minister for this story, instead reissuing his Commons remarks.

But interviews by Yahoo Canada News with some retired judges suggest the relationship is far from healthy. They fear the Constitution and basic principles of the Canadian justice system are being undermined to ensure the Conservatives’ political base is onside for the next election.

One legal scholar raised the prospect the Conservatives could campaign against the judiciary, arguing judges’ rulings have stood in the way of government efforts to shift the focus of the justice system to victims' rights instead of criminals' rights.

Yahoo spoke at length with three former judges who have served at different levels of the judiciary in different parts of the country. All spoke on condition they not be named.

None felt the judicial system itself was under threat and said there’s always some level of tension between government and the judiciary over adverse rulings. But the relationship with the federal Conservatives seems particularly prickly.

“Is the tension greater with this government?” said one retired superior court judge. “I think for a number of reasons it probably is.”

The Harper government has lost ground on a number of fronts, including:

• A Ontario Court of Appeal decision in September that ruled the Truth In Sentencing Act limiting the one-to-one sentencing credit for time in pretrial custody was unconstitutional;

• Sections of the Tackling Violent Crime omnibus crime bill dealing with mandatory minimum firearms sentences were struck down in Ontario in 2012;

• Mandatory minimums used against small-time drug dealers were ruled unconstitutional by a B.C judge last February;

• The Supreme Court in March quashed retroactive changes to parole eligibility, ruling it subjected inmates to new punishment after they’d been sentenced;

• The Supreme Court last year unanimously threw out Canada’s existing prostitution law, effectively legalizing brothels, solicitation and living off the avails. The government has responded by introducing legislation critics say essentially skirts the intent of the decision;

• An Ontario judge ruled the mandatory victim surcharge unconstitutional as imposing a disproportionate punishment on those who can’t pay. Many judges were already ignoring the law;

• The Supreme Court last April stymied the Harper government’s attempt to reform the Senate without re-opening the Constitution.

“There’s no doubt there’s a conflict between Mr. Harper’s government’s policies and the court rulings,” said one veteran provincial court judge.

It’s the Harper government that sees the judiciary as an adversary, not the other way around.

“From the judicial point of view it’s not an adversarial situation and it’s not Mr. Harper against the judges,” he said. “It’s Mr. Harper against the Constitution.”

Harper’s wariness about judges and courts goes back to his roots in the Reform wing of the Conservative party, one judge said. Reformers believe in the supremacy of Parliament and are suspicious of the court’s use of the Charter.

“So you add that sort of populist strand to the rather aggressive criminal law agenda that the court has been weighing and you can begin to see where the roots of those tensions come from,” one judge said.

Prof. Errol Mendes of the University of Ottawa’s law school said Harper’s jaundiced view of the courts dates well before he won power.

Harper said before he was elected that Canadians need not worry about a hidden agenda because the courts and public service would limit his actions, he said.

“That sort of put signals that from the very outset his way of looking at the role of government was on a collision course with the courts in general,” Mendes contended.

Political scientist Ian Brodie, Harper’s chief of staff in his first minority government, wrote a 2002 book describing how some interest groups, such as feminists and minority organizations, were granted preferred access to the Supreme Court to advance their agendas, Mendes said. The effect, Brodie argued, was to foster an activist court that would try to shift power from elected representatives to the courts.

Once Harper formed his first minority government in 2006, he acted on Brodie’s recommendation to kill the 22-year-old Court Challenges Program, which provided government funding for such interventions, said Mendes.

Harper that year also axed the Law Reform Commission of Canada, which was set up to review federal laws to keep them up to date, one retired judge noted.

“Mr. Harper does not like to take advice, particularly objective advice,” he said.

But once in power, Harper has found judges tripping up some of the Conservatives’ treasured anti-crime initiatives.

The judiciary – segments of it anyway – saw things such as mandatory minimum sentences, compulsory minimum victim surcharges and retroactive lengthening of the period between parole reviews for some offenders as a threat to Charter rights.

“The judges have been appointed or anointed as defenders of the Charter and that’s what they’re doing,” one retired judge said. “So the fight really is against Mr. Harper trying to erode Charter rights.”

Part of the problem, he said, is that the laws have been badly drafted and not vetted for their constitutionality.

“A number of his initiatives in this area, any third-year law student could have told you that there was a constitutional problem with it,” he said. “And so he [Harper] would have known that too, or should have known it."

Those in the Justice Department who might have reined in the more ideologically-driven impulses have been muzzled, he indicated.

“I have friends in that area. They tell me that they really are not as free as they used to be to give that kind of advice, and if they do give it they give it in a very played-down, low-key way and [are] ignored.”

The result has been several setbacks from courts in the provinces and in Canada’s highest court.

“They’ve pushed the envelope in a number of ways and they’ve had push-back from the courts, including the Supreme Court of Canada,” another judge said.

Some judges also found workarounds, such as finding reasons not to impose the compulsory minimum victim surcharge on indigent lawbreakers.

“You can see different judges all over the country finding ways to strike down certain aspects of these federal laws,” said a recently retired superior court judge.

Much of it apparently happens at the provincial court level, where judges pass sentence daily on everything from petty theft to robbery and assault, crimes where the accused are liable to sentences of less than two years.

“They see a lot of tragedy parading in front of them every day,” one retired judge said.

Such circumstances also presented themselves in her court, she said, such as the unfairness of mandatory minimum sentences for some crimes, regardless of circumstances.

Many judges apparently chafe under sentencing restrictions and less latitude when awarding sentencing credit for time served in pre-trial custody.

“Some judges, but by no means all, probably dislike the fact that the scope of their discretion, particularly in sentencing matters, has been narrowed by federal legislation,” said one.

A fundamental principle in Canada’s justice system, like in most advanced  constitutional democracies, is proportionality. Section 718.1 of the Criminal Code says this:

Proportionality and judicial discretion in sentencing have been key elements of the Canadian justice system, said Mendes. Lawyers, including those who eventually become judges, are imbued with those principles.

“I’m afraid the prime minister doesn’t seem to understand,” he said. “I don’t think he understands the difference between the rule of law and rule by law.”

Rule of law, Mendes explained, means laws are not arbitrary, not grossly disproportionate to what they’re trying to address and don’t involve cruel and unusual punishment. Rule by law makes judges a direct instrument of state power, with no discretion in applying the law. Like China, he said.

The Harper Tories believe the judiciary should be subordinated to Parliament, Mendes said. The 1982 repatriation of the Constitution and creation of the Charter of Rights and Freedoms strengthened the role of the courts, especially the Supreme Court, as a check on arbitrary state power.

“You take a look at the Canadian Charter of Rights and Freedoms and you’ll see that the total raison d’être of [the Charter], insofar it protects the rights of individuals, is to protect individuals not from Mafia gangs, not from Islamists fighting in Syria but from their own government,” one judge said.

“That’s what the Charter is about. It recognizes that perhaps a very significant threat to our freedom, whether it be in relation to criminal proceedings or right to assembly, etcetera, that that threat to those rights comes from our government.”

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Supreme Court rejection of Marc Nadon latest legal blow to Harper government

Harper draws criticism from predecessor over Supreme Court spat

The judiciary’s role in giving dimension to the Charter has been subject to debate ever since its implementation, another judge pointed out.

Harper’s response has been to look for candidates for judicial appointments he hopes are more ideologically simpatico.

All governments like to favour their friends, said one retired judge, but the Liberals seemed more willing to appoint Conservatives to the bench. Now, a Liberal-connected lawyer or lower-court judge is unlikely to be considered, he said.

“You have to both able and acceptable, and the acceptability bar is I think rather higher for this government than it is for others,” the judge said, noting that may be why the Conservatives have appointed fewer women.

It hasn’t always paid off. Harper-appointed judges haven’t necessarily toed the ideological line in their rulings.

“But once they’re on the bench you can never tell what they’re going to do,” said one former judge.

That became clear at the Supreme Court, when Harper’s previous five appointees could not be predictably relied on for favourable decisions.

The issue has played out most publicly in the Marc Nadon fiasco.

Nadon, by all accounts a competent federal court justice, was tapped last year to fill one of the seats on the Supreme Court reserved for a Quebec judge. But his appointment was ultimately rescinded after the Supreme Court ruled 6-1 (including three of five Harper-appointed justices) that as a federal court judge who was also not a Quebec-based jurist or lawyer, he was ineligible.

The retired judges and Mendes said Harper’s first five Supreme Court appointments were solid, but the embarrassing rejection of Nadon triggered Harper’s pugilistic reflexes.

The Prime Minister’s Office last spring said McLachlin had tried to contact Harper over the Nadon appointment, implying an attempt to interfere with the process.

In a highly unusual move, the Supreme Court responded by issuing a timeline showing the chief justice had wanted to alert the government about Nadon’s potential ineligibility before his appointment was announced. Still, the government stuck to its guns, arguing neither he nor Harper was obliged to hear from McLachlin on the issue.

The attack on the respected chief justice scandalized the whole legal community and despite MacKay’s “we’re good” statement, it is still causing ripples.

“That whole episode is very worrisome and unseemly,” said one of the retired judges. “To me it suggests the federal government, or some members of the federal government, don’t necessarily respect the fact that the judiciary is a separate branch of our system that has its role to play.”

The retired judges noted the attack on McLachlin triggered a broader public backlash but one said said the willingness of the Harper government to try to smear her reinforced the perception the Conservatives see the judiciary as the enemy.

“I think it’s hard for judges to avoid that conclusion on the basis of what the government has said about judges and courts,” he said.

However the conflict plays out, the government’s evident lack of respect for the judicial branch “doesn’t necessarily make you feel good about going to work some days,” one judge confessed.

(Photo courtesy The Canadian Press)