The Cons V The Courts!

Andrew Coyne wonders if the Harper Regiem is deliberately challenging the Courts with their various 'unconstitutional' pieces of legislation in order to get them to overstep their bounds and make a federal “not withstanding” exception to our charter more acceptable.


Not only is the government making no apparent effort to “Charter-proof” legislation, that is by seeking the advice of Justice department lawyers on its constitutionality in advance of its introduction, as it is required by law to do, it seems if anything to be taking advice on how to offend it.
It is impossible to read the several dubious provisions of Bill C-51, the Conservatives’ anti-terrorism legislation — allowing the police to detain people on suspicion an act of terrorism “may” be about to occur; permitting intelligence officers to break the law, bizarrely, with the permission of a judge; banning the promotion of terrorism “in general” — in anything but this light.
Certainly the manner in which they proceed in parliament seems to indicate that they have no tolerance for anyone who questions their judgement and a clear disdain for any process or restriction upon their proposed new laws.


It is no secret that many Conservatives have long chafed at the notion that acts of Parliament should be subject to constitutional override. It wasn’t the Court’s judgment they questioned — it was the whole concept of judicial review. For these Conservatives, the remedy, short of abolishing the Charter, has always been the notwithstanding clause: Section 33, allowing governments to pass legislation in defiance of the Charter, provided they declare openly they are doing so, and with the stipulation that the legislation must be renewed every five years to remain in effect.


As Andrew says, once the precedence has been set then they will have no compunction with using such means to get their own way again, as has been shown time and time again over the last few years. It is this slow nibbling away at our democratic processes that has let them gradually destroy the check and balances upon power to the point where we teeter on the edge of a dictatorship.


The stated ambition of many judicial conservatives, then, such as the panel of legal scholars that appeared at last week’s Manning Conference, has been to revive it: not merely to invoke the clause in this or that case, but as often as possible, and thus to re-establish the primacy of Parliament, as they see it, over the Charter, and the Court.
I do not think it is too far-fetched to suppose that that is the Harper government’s objective. They will pick their opportunity carefully. They will not do so, I do not think, over the assisted suicide decision, where they are on the wrong side of public opinion. But on something unassailably popular, like a crime bill, or an “Anti-Terrorism Act”? And once they’ve broken the taboo, it is not hard to see them doing it again, and again, until the point has been made.
Given the past behaviour of this regime it is not much of a stretch to believe that they would consider such a move to circumnavigate our existing laws, the courts and our constitution.




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