Harper is fighting a battle with justices he appointed
Had Stephen Harper not treated so many arms-length institutions as windmills to be tilted at, the notion that a rogue Supreme Court is bullying his government would be slightly easier to entertain.
Harper is not the first prime minister to thrown off balance by the courts.
When he introduced the Canadian Charter of Rights and Freedoms in 1982, Pierre Trudeau assured the House of Commons that it could not be used to open the door to the decriminalization of abortion.
On the watch of Brian Mulroney’s Tory government less than a decade later, that is exactly what happened.
And in the dying days of his tenure in 2003, Jean Chrétien was anything but amused to have the same-sex marriage issue thrown upon the lap of his Liberal government.
But none of Harper’s predecessors has endured as many Supreme Court reversals as he has and none has suffered the humiliation of having one of his own appointments to the top bench rejected by all but one of the other judges.
In rapid succession, the court has sent the Conservatives back to the drawing board on prostitution, judicial sentencing, Senate reform and the filling of a Quebec vacancy on its bench.
The fact that the government lost five major court battles over the short space of six months has compounded the impression that the country’s top court is at war with the Conservatives.
But under such an unpalatable scenario one would have to wonder who it is that has been looking to pick a fight: a court and a chief justice that have managed to cohabitate with a series of different federal governments or a prime minister that has a habit of turning on any institution that does not march to the sound of his drum, including those headed by his own appointees.
Over the past eight years, the country’s chief statistician; the parliamentary budget officer; the government’s now defunct advisory council on the environment; Elections Canada and more recently former auditor general Sheila Fraser have all come under Conservative fire.
As often as not, they have had their integrity questioned by ministers or by spin doctors on the government payroll for daring to be on the wrong side of Conservative plans.
The office of the Governor General itself has not been totally immune to attacks.
At the height of the parliamentary crisis in 2008, some senior Conservatives suggested that the government should take on Michaëlle Jean should she refuse to grant Harper his wish to have Parliament prorogued rather than face defeat on a vote of non-confidence.
Given the take-no-prisoners mindset that has been a distinctive feature of the Conservative government, it was therefore probably only a matter of time before the tensions between Harper and the Supreme Court erupted into a messy public fight.
But there should be no confusion as to the actual terms of engagement of this unprecedented tussle. Harper’s quarrel with Beverley McLachlin is a fight with the institution itself, not just with the individual who has so far served with great distinction as its leading voice.
As opposed to the prime minister, McLachlin cannot impose her will on her colleagues. She has neither a veto nor the last and definitive word on a given legal outcome.
The rulings that have so irritated the Conservatives — including the rejection of Marc Nadon’s appointment — were the result of the collective thinking of a majority on a bench dominated by judges that Harper himself picked.
Indeed at the time of the Nadon hearing, Quebec Justice Richard Wagner — the prime minister’s fifth appointee to the top bench — played the front and centre role in challenging the arguments of the various parties.
Connect the dots between the ongoing skirmish between Harper’s PMO and McLachlin and past and present Conservative feuds with other independent critics and you get the pattern of a governing team that has little tolerance for the checks and balances designed to prevent governments usually elected with the support of minority of voters from abusing the exceptional latitude that attends a parliamentary majority.
Chantal Hébert is a syndicated Toronto Star national affairs writer.