July 28, 2015

Harper’s Judges under attack: What do conservatives want from the Supreme Court?

Moin A. YahyaRebel Blogger

The timing couldn’t have been more perfect: The Globe & Mail published an article decrying how Stephen Harper had been remaking the judiciary over the past many years, and then yesterday the Prime Minister announced the elevation of Justice Russ Brown of the Alberta Court of Appeal to the Supreme Court of Canada. (I should disclose that Justice Brown is a good friend of mine and a former colleague at the University of Alberta’s Faculty of Law.) 

Over the next few days and then over the many coming years, undoubtedly Justice Brown will come under academic and journalistic scrutiny to see if his appointment fits a narrative that many on the left of academia and journalism like to paint. 

The Globe article suggests a vast right-wing conspiracy whereby conservative operatives are spread all over the country hunting for the great judicial-conservative hope. Indeed, another article two days later was full of interviews with critics who wanted to change the judicial appointment system so that the (Conservative) government would have less discretion in the appointment of judges. 

Of course, as long as the Liberal government, and for that matter the Mulroney PC government before that, were appointing left-wing liberals, these critics praised the amazing meritorious appointments that were being made to our nation’s courts.  But once the nature of appointments started to become more conservative, all of a sudden the appointments were characterized as ideological and conspiratorial. 

Even assuming that the federal Conservatives have been trawling the bottoms of the ideological oceans looking for the most conservative judicial candidate they could find, the question remains: Why hasn’t it made a difference in our legal culture? After all, seven of the nine Supreme Court justices have been appointed by this government, and yet much of this government’s contentious legislation has been struck down. 

Even at the lower courts, regular lawyers will be hard pressed to see a real difference in the judging done by one party’s appointees or another. On one hand, this is a good thing. It points to a uniformity of Canadian legal thinking that has escaped the worst of American judicial grandstanding. 

On the other hand, it points to a basic deficiency in Canadian conservative (and while we are at it, Libertarian) judicial philosophy, namely that there is none. For example, many conservatives would like judges to simply apply the law and not insert themselves into purely political matters.

Notwithstanding conservatives lament over the enactment of the Charter and the loss of Parliamentary sovereignty, conservatives have begun using the Charter to attack speech and spending suppressing election laws (as in Harper v. Canada, [2004] 1 S.C.R. 827,) and the state’s monopoly over healthcare (as in Chaoulli v. Quebec (Attorney General) [2005] 1 S.C.R. 791.)  Conservatives attack Human Rights Commissions for suppressing offensive speech even though all such commissions are validly enacted by provincial and federal legislatures. 

There is, therefore, a tension between the principle of Parliamentary sovereignty and the vindication of conservative values in general. Part of this tension stems from our obsession with American conservative constitutional discussions and forgetting the classic nineteenth century British legal traditions such as those of A.V. Dicey (who emphasized the concept of the “rule of law”.)

It would behoove conservatives to rediscover the lost British legal traditions that once permeated our legal discourse a century ago. (I say British, because in addition to the various English legal jurists, many Scottish legal scholars and jurists played a great role in developing Western legal traditions.)

This brings me back to Justice Brown.  His tenure on the court will confound both critics on the left and right who will wish to box his judgments into easy to label categories. Will he be tough on crime? Will he defer to Parliament or will he insert his values into the law? Will he legislate from the bench? Will he let the living tree grow or will be an originalist?  If those are the labels critics wish to use, then the answers will be both yes and no.

But if the questions are: Is he hard-working? Does he pay attention to the law? Does he bring an open-mind to each case? Does he listen to both sides of the case before making up his mind? Does he understand the “rule of law”? The answer to all of these questions is a resounding yes! And that makes him a Conservative in my books and in the books of Dicey.


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commented 2015-09-01 10:08:44 -0400
If judges must follow the law then there is no point appealing ANYTHING to the Supreme Court. All matters referred to the Supreme Court were either decisions of judges following the law or the hobbies of lawyers who didn’t like what the lawful law makers enacted. Of course we want judges to make judgements. It really doesn’t matter where a line is drawn in an ant hill….some ants are going to be crushed.
commented 2015-08-02 22:15:07 -0400
A million years ago, in the first week of Administrative Law, I read a bit of A.V. Dicey. Sadly we read him in the spirit of “here’s what not to think”. My own sense was that the rest of the course, after reading more of Dicey, was a very long year of increasingly absurd arguments for the destruction of the rule of law and the imposition of the bureaucratic state. That is, of course, the conventional wisdom to this day.

We can see how well that has worked out. Promote Dicey, damn Denning and you will not go too far wrong.
commented 2015-07-29 23:29:34 -0400
There will come a time when the overturning of some law enacted by parliament will backfire against the SCofC. Only then will some reform happen. Hopefully, it isn’t some terrorist action/activity that causes it.
commented 2015-07-29 08:50:02 -0400
@ Ron Christensen said Harper is a “Christain Evanglical” What is that? if you are going to criticize better to learn how to spell something you hate! Rom your disdain of Canada’s sovereignty is showing! Harper has never tried to change the culture of Canada…what he is trying to change is the enormous BUREAUCRACY (a pregnant institution that gives birth to increasing numbers every day) that was erected by Pierre Trudeau and that put Canada into EVER-INCREASING debt for the ensuing years…now Mulcair wants to build the bureaucracy even more monstrous with national day care…can you imagine the cost of multiple new buildings across Canada to house this new ‘SYSTEM’, thousands more government employees earning top wages, benefits and pensions, and the vast financial resources needed! Al this, just to ensure that all Canada’s children are taken from their families at an even younger age and indoctrinated into the inevitable leftist state religion by unionized workers who care less about the nation’s progress, the education of children, the inconvenience to parents, or a good days’ work,and more about their own rights, their wages, their benefits and their pensions, and going on strike to get MORE! And yes you and I WILL pay for all this and the nation will AGAIN GO INTO DEEP DEFICIT like the days immediately following Pierre’s bureaucracy-building government that increased our bureaucracy from 3,000 to 30,000 in 15 years….now the malignant “tumor” of bureaucracy is growing into numbers as many as the stars in the sky! Harper is trying to save us from such a bloated government and setting Canada free to liberate taxpayers from eternal servitude…DON’T YOU GET IT?

Furthermore, day care ensures that children never learn to bond with their families and become even more prone to peer influence…as if we need more of that!
commented 2015-07-28 22:59:36 -0400
Ron Christensen are you joking? anybody that thinks of trudeau as a good prime minister is beyond rational debate, the man has damaged Canada more than any other person in history! He was an elitist and a communist at heart and the constitution he forced on us is a poorly written piece of garbage that protects the worst at the expense of the good people. Junior is just an idiot without a clue about the real world or real people
commented 2015-07-28 21:36:27 -0400
Now more than ever we as Canadians must rid ourselves of Steven Harper and his brand of Christain Evanglical justice. I for one am incredibly proud of Pierre Elliot Trudeau and what he did for Canada vis a vis the Charter and the Constitution. The Calgary “deconstructionists” who include Harper, Levant, Flanagan, and others have shown their disdain for Canada, its constitution and charter. Harper and his cronies, have more than governing in mind—they believe they can change the “culture” of Canada. They are wrong and time will show it.
commented 2015-07-28 20:41:05 -0400
Every summer, I read a Russian novel or two. I’ve just finished reading Us Conductors by Sean Michaels and One Day in the Life of Ivan Denisovich by Aleksandr Solzhenitsyn. Both describe Russian society from the 30s to the 60s. I identified strongly with the parts of each book that decried the corruption of judiciary and rule of law. I could see a lot of Canada.

There is no doubt that too many of Canada’s judges do not properly weigh evidence and interpret law. Too many can be bought and/or intimidated for profit. Police regularly perjure themselves and the judges know it. It’s a mess.

But from the decisions I’ve read, the proportion of judges who are corrupted and/or make partisan decisions to promote their own careers is greatest in the lower courts. Although one or another of the Supreme Court of Canada judges sometimes writes decisions that smack of partisanship or simple bad logic, they are few or fewer than in the lower courts. Sigh.

The beauty of Canada’s appeals courts and the Supreme Court is that no one judge makes the decisions. Certainly, there is authority in these courts. Judges take direction. But the higher the court, the more independently judges are able to act.

I think what some interpret as Supreme Court of Canada bias is really the tendency of the judges to interpret law, to the best of their ability, in the context of current human society. Locally and globally. Judges are mere humans, after all.

I expect of Judge Brown nothing less than to keep an open mind, to work hard, to weigh evidence fairly, to apply the best of his ability in logic and formal semantics to the interpretation and application of law, and to have the spine and conscience to think and act independently of any threats or bribes made to corrupt his judgement. It is what I expect of all judges, despite any partisan association they may enjoy. And that is not Conservative. It is integrity.
commented 2015-07-28 20:13:23 -0400
Thank you Ron Voss.
commented 2015-07-28 19:47:15 -0400
At the Parliament of Canada web site one finds this Overview of the Canadian Parliamentary System:
“Three branches work together to govern Canada: the executive, legislative and judicial branches. The executive branch (also called the Government) is the decision-making branch, made up of the Monarch represented by the Governor General, the Prime Minister, and the Cabinet. The legislative branch is the law-making branch made up of the appointed Senate and the elected House of Commons. The judicial branch is a series of independent courts that interpret the laws passed by the other two branches.”
Activist judges, unelected, appointed individuals are acting as philosopher kings, as per the idealized utopian city-state born in Plato’s Republic, ruling over our country, have transformed and corrupted Canada’s Parliamentary System. The judicial tyranny at play in Canada is not hidden. Chief Justice Beverly McLachlin has such an understanding as declared so in her own words, “There is little point decrying the fact judges make law they do and they must.”
You hear that from her own lips in this trailer from the film, “Besieged – Democracy Under Attack”, produced by Charles McVety of the Institute for Canadian Values:
Again from the Overview of the Canadian Parliamentary, “The legislative branch is the law-making branch", contrary to McLachin’s imperious assertion: “There is little point decrying the fact judges make law they do and they must.” These justices should be required to take a basic civics class!
This usurpation of Parliament and democracy (“the secret of judicial law making, formally (coming) out of the closet”) has gone on far too long and must be stopped. The only way to overcome this distortion of our Parliamentary System is for the government to invoke the notwithstanding clause and finally thus put an end to the judicial tyranny and restore and re-establish the correct role for the three branches of Canada’s parliamentary system of government, namely, the executive, legislative and judicial branches.
I hope that Justice Brown is of the mind set that, “The judicial branch is a series of independent courts that interpret the laws passed by the other two branches.”
commented 2015-07-28 18:53:56 -0400
As a long time political follower, I think that we need a strong decisive Supreme Court more than ever. It has saved us several times in the last year or so from the attempts by Stephen Harper to pass illegal bills into law. That is a good sign to me.
commented 2015-07-28 17:23:20 -0400
I would prefer that all judges be elected as they are supposed to represent the people. They should also have term limits.
commented 2015-07-28 15:50:05 -0400
Either way is good for me!
My point being “WE” have to enact some TOUGH LOVE regarding these leaches…
Maybe not the death penalty but “they” need to fear the consequences of their actions.
As of now there are no REAL consequences for political corruption, and until that time comes “they” will continue to rape and pillage…
Just saying.
commented 2015-07-28 15:19:59 -0400
Zee, I am in full agreement, but I would prefer lethal injection or firing squad.
commented 2015-07-28 15:03:10 -0400
The lefties are upset as their grip on the public is being pried away from them. This election, there will be a plethora of lies from the Socialists desperate to regain that hold. Regrettably, most of the public will never see the difference as the Socialist Media will not make any comparisons and only promote the Socialist Agenda.
commented 2015-07-28 14:18:58 -0400
ALL Judges should be ELECTED.
Not be appointed by the PM.
Same as the Senate.
ALL politicians are “lackeys” for each “other lackey” and can no longer be trusted in making the best decisions for the citizens…
Definitely NOT US!
Time to bring back the noose…
Just saying.
commented 2015-07-28 14:15:28 -0400
There is never a time when a judge, at any level, should ever insert his/her personal opinion into a judgement.

It does not matter whether the judge is Conservative, Liberal, Libertarian, NDP, or anything else. The judgement must always be strictly by the law. Period.
commented 2015-07-28 12:54:51 -0400
I find that their is often a big difference between justice, and the law.
commented 2015-07-28 12:54:00 -0400
Very well said Moin! I laughed when I saw that the Globe had essentially categorized Mr. Brown as a ‘conservative’. He is a friend of mine and I can safely say that he does not fit into any such simple box such as the proponents of the arguments you succinctly eviscerate would wish. Thank you good sir.
commented 2015-07-28 12:52:53 -0400
The worst judicial appointment in the history of Canada was Bora Laskin the appointee of Pierre Elliot Trudeau who ruled that french was equal to English without any justification just to satisfy his master who appointed him over far more experienced and competent candidates. This ruling has caused untold hardship and loss of income and advancement for Canada’s English speaking majority.