Monday September 01, 2014




Bad week for government in court

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Last week was a bad week for the federal government in the courts. It was a good week for Canadian democracy.

Two decisions went against new Conservative legislation and one quashed an ill-conceived appointment to the Supreme Court of Canada (SCC) bench. The government’s undoing in all three cases was the Constitution.

I’m not going to spend a lot of space talking about exactly why the legislation and appointment were wrong because I want to concentrate on why Canadians should care about this.

By way of background, though, the first decision overruled the retroactive application of tougher parole-eligibility rules. The problem here was not with the tougher rules, but applying them to people who had already been tried, convicted and incarcerated, effectively punishing them twice for the same crime. The Court said this violated their Charter rights because they had an expectation under the law at the time that they would be eligible for early release.

Personally, I think toughening sentences for white-collar criminals is a good thing, but agree or disagree, you can’t make it retroactive.

The second decision granted an injunction allowing medical marijuana users to continue to grow their own. Under Canada’s new medical marijuana laws that take effect April 1 only commercial growers would have been allowed to produce the drug and the nearly 40,000 users who grew their own would have had to stop and destroy any existing plants.

“This group will be irreparably harmed by the effects of the (new regulations),” said Federal Court judge Michael Marion.

Finally, the SCC ruled that Marc Nadon, the Conservative’s choice to fill the vacant seat on the Supreme Court bench, was ineligible.

In all of these cases, the government had to have known, or ought to have known, that it was on shaky constitutional ground.

That is precisely why we have the Constitution and independent democratic institutions such as the Supreme Court. All governments are temporary and rarely, even in majority Parliaments, do they enjoy the unconditional support of a majority of the population.

While they have the temporary right to govern, it does not give them a mandate to fundamentally change the permanent tenets of confederation.

The current federal government seems intent on doing just that by constantly, and presumably knowingly, challenging the country’s highest laws.

Some pundits and opposition critics have questioned the Conservatives’ competence in light of the recent decisions striking down their pet legal projects.

That does not really fit the brand, though. I think they know precisely what  they are doing. I think they are banking on the idea that outside of political, academic and journalistic circles, few people know, or care, enough about these esoteric questions.

I think they are hoping their frequent defeats in the courts will engender a populist view that elitist institutions are obstructing the will of the people and allow the Conservatives to make sweeping changes to our democracy.

Ultimately, I believe it will backfire, though, because any government that wants to make fundamental changes—such as the NDP wanting to abolish the Senate—is going to have to open up the constitutional debate and nobody wants to go there.

Canada is a wonderful, but somewhat tenuous idea. We are a confederation of disparate regions held together by consent of those regions by way of the Constitution because the founders recognized we are stronger and better together than we are apart.

That is why it is so difficult to change our country’s most important document.

The economy, health and education will always be at the forefront of important issues, but Canadians need to care about our democracy as well.


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