Court challenges show Harper governing in shadow of Trudeau’s Charter of Rights

Posted on January 4, 2014 in Governance Policy Context – News – Pushback: Rulings have defined politically acceptable conservatism
January 4, 2014.   By Stephen Maher, Postmedia News

When cool-headed, elbowpatch-wearing historians eventually write the story of the Stephen Harper government, the story they tell is likely to be less dramatic than the stories that Harper’s supporters or opponents tell themselves.

The prime minister has significantly reduced taxes and spending, pushed hard to make it easier to extract and sell natural resources, introduced tougher sentences for criminals, tightened up our immigration system and made our foreign policy more ideological. But, unless he does something radical before the 2015 election, historians may decide that Harper was all hat and no cattle on some of the most significant issues facing the country, because he is governing in the shadow of Pierre Trudeau, who brought in a new constitution – including the Charter of Rights and Freedoms – in 1982.

It looks like Harper will be able to campaign in the next election on having balanced the books, offering a dramatic new tax cut in the form of income splitting – a record and a promise that ought to appeal to many centrist swing voters, but on some key issues, the charter and the judges who interpret it have presented Harper with some puzzles.

Court challenges by First Nations are likely to stop the Northern Gateway pipeline. Judges have ruled mandatory sentencing for gun crimes violate the charter and refused to impose victim surcharge fees. Jason Kenney’s immigration reforms were restrained by charter rulings on refugees’ rights. And on the key social questions of our era – same-sex marriage, prostitution, drugs, assisted suicide – the Harper government has been unwilling to stand down the judges in the face of divided public opinion.

One of the first acts of Harper’s government was to hold a losing vote on same-sex marriage, enshrining a key charter victory for homosexuals, which had the benefit of moving an issue off his plate when public opinion was moving in the wrong direction.

The Supreme Court has since blocked his government’s efforts to shut down the Insite safe-injection facility in British Columbia, and last month, struck down prostitution laws. This year, it will likely rule against him on Senate reform and may strike down the law against assisted suicide.

That case will hinge on Section 7 of the charter, which protects the “right to life, liberty and security of the person.”

In the Insite and prostitution rulings, the judges accepted the arguments of social scientists who argued Parliament was violating the Section 7 rights of drug addicts and prostitutes. If they do the same again, they will open the door to legalized euthanasia.

Harper is jammed between the judges, who don’t care about his political problems, and social conservatives, who don’t care about the Charter, and who might not bother to vote in 2015 if they don’t think Harper is with them.

He has the option of defying the courts by using the notwithstanding clause, but would likely alienate centrist swing voters.

Up to this point, Harper has handled defeats by the courts cautiously, sometimes talking tough but quietly doing as judges have bidden, making incremental advances where he can, quietly retreating when he must, delaying showdowns that he will lose, often somewhat disingenuously. Harper has long promised he would reform the Senate, appointing elected senators and limiting their terms, but he has not passed a law and did not bother to send a reference to the Supreme Court until last year, although it seemed obvious the court would need to rule on it.

At the Conservative convention in Calgary, he described his inaction this way: “We were blocked by the other parties in the minority parliaments. And now we are being blocked in the courts.”

In his year-end interview with Harper, Postmedia News’s Mark Kennedy asked him what the government would do about judges who have pushed back on mandatory minimums and victim surcharges. Harper said the justice system should be “centred on the protection of society and the redress of victims.”

“And so I hope that obviously, through time, through change in law, through change in appointments to the bench, I hope we’ll see this transformation.”

But five of the nine Supreme Court judges who unanimously ruled on the prostitution case were appointed by Harper.

On prostitution, drugs, assisted suicide, mandatory minimums, pipelines and the Senate, Harper faces judicial decisions that may give him headaches.

In the 21 months until Oct. 19, 2015, when we are to vote next, Harper needs to motivate the social conservatives in his base – likely by making a lot of noise about a new prostitution law that makes it legal to sell sex but illegal to buy it – and quietly back down from a lot of other fights, somewhat disingenuously blaming his opponents and the judges.

As a young man, Harper became a Conservative because he was angered by the way Trudeau changed Canada, but as a practical politician has steered his party away from hard-line positions on bilingualism, multiculturalism and abortion, defining the limits of politically acceptable Canadian conservatism.

Harper looks like an unwilling progressive, unable to turn the tide against the social changes set in motion by Trudeau.

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