Our desperado PM has done it again. The issue this time is the appointment of a new Supreme Court justice to fill a vacancy from Quebec. Judge Robert Mainville is apparently Harper’s pick this time, after a previous appointment from Quebec — Marc Nadon — was struck down as unconstitutional.
In Nadon’s case, the Supreme Court ruled that any Quebec appointee has to be a member of the Quebec bar and sitting on a Quebec court. The message was a fairly simple one: Nadon worked for the Federal Court, wasn’t a member of the Quebec bar, wasn’t a Quebec judge and didn’t qualify.
Our PM’s answer: Choose another federal court judge, shift him temporarily to the Quebec Court of Appeal (just visiting?) and then appoint him to the Supreme Court of Canada. Bottom line? Harper gets to appoint a federal court judge to the Supreme Court despite the Constitution and proves a variation on the old adage: There’s more than one way to skin a chief justice.
Enter the man with balls as big as church-bells: Rocco Galati. Galati is the constitutional lawyer who stopped the Nadon appointment in its constitutional tracks. He isn’t buying Justice Minister Peter MacKay’s temporary transfer of Mainville to the Quebec Court and says that Mainville’s appointment violates Section 98 of the Constitution: “The judges of the courts of Quebec shall be selected from the Bar of that province.”
Part of the problem is procedural hocus-pocus. Harper never bothered to ask the Supreme Court to answer the question about whether a federal judge could be appointed directly to the Supreme Court. Instead, when Chief Justice Beverley McLachlin tried to forewarn the PM and the Justice minister (really the same person) that there might be problems with the Nadon appointment, Harper reached for a mudball.
McLachlin, he claimed, had done something “inadvisable and inappropriate”. So much for an independent judiciary. It goes without saying that his allegations were spurious nonsense. Custom holds that the chief justice takes part in the consultation process leading to the appointment of a new Supreme Court justice.
Harper had run into the one thing he hates more than Pierre Trudeau: someone putting a limit on his widely-abused powers. In this case, the news for our megalomaniac-in-chief was particularly bad. Appointing judges to the Supreme Court directly from the Federal Court would require a constitutional amendment. For a control freak, opening the Constitution is like taking your hands off the steering wheel of the bobsled going into a hairpin turn.
So what lies ahead? Will the Supreme Court hear Galati’s objection to the PM’s power play? And what about Quebec? Will it allow its courts to be used to launder federal court judges in order to make them technically qualified to be appointed to the red-and-white brigade? Or will it back Galati and insist that the Constitution either be observed or amended?
From where I sit, this unnecessary fight with the Supreme Court — in which government toadies have participated in false accusations against Chief Justice McLachlin, goes to Stephen Harper’s fundamental rejection of Canada’s governance model. A former Harper cabinet minister told me that there was a very good reason the Harper government didn’t celebrate the 25th and 30th anniversaries of the Charter of Rights and Freedoms.
First, the charter was Pierre Trudeau’s creation. Harper has a pathological hatred of both the Liberal party and its most famous modern leader. Looking forward to the 150th anniversary of Canada’s founding, the Harper government commissioned a huge poll to find out who Canadians admired the most. It was the guy who gave us the charter.
And then there are Harper’s problems with the charter itself, which the former cabinet minister spelled out for me: “Harper hates the charter because it transferred power from Parliament to the people. There was a higher authority than the government of the day which he just can’t accept — even though many of his own MPs have a copy of the charter hanging on the walls in their offices. He doesn’t seem to care that is an integral part of Canada now.”
Stephen Harper’s real fight is not with the Supreme Court per se, but with the 1982 Constitution that created the charter. The problem for the Supreme Court is that it has the sole responsibility to assess all laws passed by Parliament against their interpretation of the charter. That means laws sometimes get struck down — although Parliament always has the option of responding with another law.
Ultimately, Harper is trying to crush a vision of Canada that sits behind the bulletproof glass of the Constitution — Pierre Trudeau’s vision, which saw the people as greater than their government. Harper can’t get at it, he can’t change it — and he can’t stand it.
Which is why he has attacked an institution four times as popular as his PMO. Even after stacking the court, he now realizes that his appointees are left with the immoveable reality of the charter. That’s why MacKay tried to retroactively change the Supreme Court Act using the flim-flam of the budget implementation bill.
The smear job against McLachlin, backed up by the chorus of idiots who say whatever master says, was probably designed to force McLachlin to take a pass on further abuse from this eye-for-an-eye prime minister of ours — and opt for an early retirement. The court has demonstrated five times in the recent past that Harper can’t dictate to the Constitution. For everyone’s sake, let’s hope she hangs tough.
Now that the high court has ruled that police must have search warrants before accessing personal information from Internet service providers, the bad blood between Harper and the Supremes will be much worse. Privacy law expert Michael Geist recently asked a very good question: What does the government do now with its two privacy bills, C-13 and S-4, both of which would extend warrantless access to the personal information of Canadians?
Perhaps the prime minister might review that poll of 12,000 people his own government commissioned to see who Canadians admired most. There’s a reason Pierre Trudeau topped the list — and Harper’s name was nowhere in sight.
Original Article
Source: ipolitics.ca/
Author: Michael Harris
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