Oban and I were on an extensive hike this weekend when he opened up on Harper’s cunning strategy to undermine public confidence in our elite institutions. I am taking the liberty of representing his arguments below. They were as follows:
1. Harper passes all the legislation he needs as a government in budget bills, where they escape effective scrutiny.
2. The bills he wants debated in full are the symbolic bills, which he knows – more or less – will be overturned by the Supreme Court.
3. He wants key pieces of his agenda to be not accepted by the Supreme Court.
4. He is engaged in an effort to diminish the respectability of elite institutions.
5. In addition, he seeks a state in which he can reduce the effect of the charter of rights and freedoms. He may be preparing the way for a widespread use of the “notwithstanding clause” or some other means to immunize his legislation against the power of the Courts.
So far Oban and I would agree that this is what Harper is doing, and that this is the best explanation of why Harper is doing it. Where we differ is whether this project of delegitimation is the evil he sees it as being.
The issue turns, as I see it, on the extraordinary power handed to the legal profession and the judiciary to regulate all aspects of Canadian life. While I am open to persuasion on the topic, my starting position is a profound mistrust of the wisdom, capacity, and democratic legitimacy of the Supreme Court and the legal profession to understand realities, and regulate us appropriately.
Canadians lived successfully without a charter of rights and freedoms for centuries, in a society of increasing lawfulness of behaviour. We had judges and the rule of law before we had the rule of Courts and judges over most areas of life. What we did not have, I argue, is a closed, limited, and legally privileged group, the legal profession, exclusively procuring for themselves, the judiciary and legal profession, the right to determine what the people might have determined for themselves without interference by lawyers and courts. The Court’s functions before the Charter were limited to the issue of whether the federal or provincial governments had jurisdiction, not whether they offended a Charter of Rights and Freedoms. Parliaments were supreme. Sometimes they enacted legislation we now choose to think was evil, but for the most part, legislatures were significantly less unwise than a post-Charter Canada assumes that they were.
So I would agree, for the time being, that Harper’s derisive treatment of the Supreme Court is the attempt at delegitimation that Oban speaks of. But I do not see it as all bad. In reviewing the cases I do not see that the opinions of the Court are so markedly superior to those of legislatures. The case of the qualifications of Mr. Justice Nadon to sit on the Supreme Court (Nadon), for instance, was invented out of whole cloth. No person informed by the rules of grammar could read section 5 and 6 of the Supreme Court Act and come to the majority opinion. Turning down the mandatory minimum sentencing for gun crime is probably a good thing; I own guns and the rules for keeping them locked up and away from the very ammunition they need is absurd, and going to jail for a “gun crime” for improper storage is outrageous. But whether the whole of the law had to be impeached is open to question.
But whether the Supremes get it right or wrong, they are at the apex of a legal profession that has to a great degree replaced the parliaments of this country. The very irresponsibility with which Oban finds fault in the American system of government is being engendered here for different causes: the supremacy of the Court, which is frequently driven by fashionable twaddle.
My basic objection to the Court’s override of parliaments rests on this: I do not think the political opinions of nine Volvo drivers in ermine are necessarily better than mine, or yours.
Moreover, better or worse, the opinions of this group of specialized legal experts do not command my allegiance.
Saying that Harper’s attacks on the Charter are the empowerment of a resentful class of the lower orders is mere snobbery, however well grounded this observation might be.
For my part, I do not yet think we are in danger of losing the country to crowds of resentful people of low accomplishment that Oban fears are being titillated and aroused by Harper’s opposition to the Supereme Court. Au contraire, I think we have already lost the control of the country to the legal profession and the style of thinking with which they are imbued at law schools. The fish are not conscious of the water. Nor are lawyers of their ideology. The very idea that they – and they alone – through their supreme emanation, the Supreme Court, should control the direction of the country, in the long term, is to me an abomination.
Oban, I am waiting for your arguments in favour of the supremacy of the courts over parliaments. It is a debate well worth having.