Why our highest court seems afraid to take on the Harper government

Legal expert Philip Slayton on the Supreme wimps

Tom Hanson/CP

For a moment last January, the Supreme Court of Canada was flexing its muscles. In its decision Canada (Prime Minister) v. Khadr, it seemed ready to rein in the federal government in a serious way. The court came within a hair’s breadth of telling the Prime Minister to seek Omar Khadr’s repatriation from the United States, because his Charter rights had been breached by Canadian officials.

The Khadr case echoed a similar but more dramatic faceoff between executive and judiciary in the United States. In his January state of the union address, President Barack Obama criticized the U.S. Supreme Court decision in Citizens United v. Federal Election Commission with five of the judges sitting there while he did so (“not true,” mouthed Justice Samuel Alito, as the President spoke). The Citizens United case held that the First Amendment protects the corporate funding of political broadcasts. The New York Times has called the President and U.S. Chief Justice John Roberts “intellectual gladiators in a great struggle over the role of government in American society.”

There has been speculation in legal circles that the Khadr decision was a harbinger of similar things to come in Canada—that Prime Minister Stephen Harper and Chief Justice Beverley McLachlin may be destined to become intellectual gladiators, like Obama and Roberts.

The Khadr case gave heart to those who think the Harper government is autocratic and constitutionally insensitive, and want to see the judiciary offset the power of the executive branch. But then, in June, hopes were dashed by another Supreme Court decision. In Ontario v. Criminal Lawyers’ Association, the Supreme Court passed on a new opportunity to poke a righteous finger in the government’s despotic eye. The issue in the Criminal Lawyers case was whether the Charter of Rights and Freedoms obliges the government to disclose documents pretty much on demand—a question with some serious political currency these days. It doesn’t, said the court. Then again, said the court, timorous and vacillating, maybe it does, sometimes.

The flaccid decision severely troubled those who thought a new constitutional order was emerging. It aggravated freedom of information wonks, who had been looking forward to poring through government archives. It distressed those who expect clear and forceful decisions from our highest court.

The events leading to this disappointing decision began in 1983, when Domenic Racco, a flamboyant underworld figure, was murdered in a Mob hit at a railway spur near Hamilton.

After a lot of delays and bungling by investigators and lawyers, two men went to trial for the crime in 1997. The judge, appalled by the behaviour of the police and Crown attorney in the case, stayed the proceedings. “I have found many instances of abusive conduct by state officials,” he said, “involving deliberate non-disclosure, deliberate editing of useful information, negligent breach of the duty to maintain original evidence, improper cross-examination and jury addresses?.?.?.?” The Ontario Provincial Police investigated the judge’s allegations. In a secret report, the OPP found no police misconduct.

Incensed, the Criminal Lawyers’ Association of Ontario asked to see the report under the Ontario Freedom of Information and Protection of Privacy Act. The provincial government refused, relying on provisions in the statute that give it discretion to deny disclosure of law enforcement and solicitor-client records. These provisions are not subject to the statute’s “public interest override,” which requires disclosure if there is a compelling public interest. The lawyers argued that this override exemption violated the freedom of expression guaranteed by the Charter, and went to court.

The case made the usual stately progression through the justice system, finally reaching the Supreme Court in December 2008. There was a whiff of excitement in the air. Would the Supreme Court proclaim a general right of access to government information? What made the case even more interesting was that the court itself seemed to be having trouble with it. Months and months went by without a decision, and there were rumours of internal soul-searching and strong disagreements.

Then, in June, came a damp squib. A unanimous seven-justice panel found for the government of Ontario. The judgment, given by Chief Justice McLachlin and Justice Rosalie Abella, said the Charter does not guarantee access to all documents in government hands.

Open government, it says, “requires that the citizenry be granted access to government records when it is necessary to meaningful public debate on the conduct of government institutions.” But, in a poorly conceived analysis, the court defined “meaningful public debate” in a narrow and technical way.

What happened was doubly strange, given what our constitutional kissing cousins have been up to. It is not just the U.S. judiciary that has been testing the executive branch. Ever since the European Convention on Human Rights was incorporated into British law in 1998, British judges have become what one commentator has called “a political class of activists.” The replacement last year of the judicial committee of the House of Lords by the new Supreme Court for the United Kingdom, as the final court of appeal for the U.K., has further encouraged what is now a wholly separate judiciary to take on the British executive branch.

Tom Bingham was lord chief justice of England from 1996 to 2000. He recently published an acclaimed book called The Rule of Law. Bingham observes that if judges can hold a statute to be invalid because it is contrary to a higher, fundamental law, then “the rule of law and parliamentary sovereignty are not, as one might have hoped, a happily married couple but are actual or potential antagonists.”

Canadian judges have been holding statutes invalid when they run contrary to a higher law since the Charter became part of our Constitution. In Canada, the rule of law and parliamentary sovereignty can be antagonists. When that happens, it is up to the judges to make sure that the rule of law wins the struggle.

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