For the federal Conservatives, the temptation to campaign against the courts in next year’s federal election must be overwhelming.
This is a government determined to bring its brand of law and order to this country, whether it is cracking down on bogus refugee claimants, giving police more surveillance powers, bringing in mandatory sentencing, ending early parole or always going the extra mile to bring down the hammer in the name of victims’ rights.
In most cases, that agenda has crashed on the rocks of judicial challenges.
But it is hard to imagine that many of Prime Minister Stephen Harper’s initiatives, no matter how mean-spirited they may appear, do not appeal to at least a Conservative core, and perhaps more than just that zealously guarded core.
Such a campaign, of course, would hearken back to the Conservatives’ Reform ancestry, a time when then-opposition MPs would often rail against unelected judges, but it would now have to be a campaign against those who have largely been appointed by Harper.
Such a campaign would also do nothing to further Harper’s agenda.
Still, two Conservative clarion calls over the weekend seem to show the outlines of such a campaign.
When Federal Court Justice Anne Mactavish slapped down Conservative reforms to refugee health care on Friday in decidedly blunt language, Immigration Minister Chris Alexander responded in kind with his case for the reforms.
In Alexander’s view, the reforms, which the government has loosely couched as a matter of law and order for refugee applicants, have saved taxpayers $600 million so far (a claim that was not accepted by Mactavish) and are projected to save taxpayers $1 billion over the first five years of the 2012 initiative.
Refugee claims from countries that were the major sources of unfounded or bogus applications had come down 87 per cent last year, Alexander said.
Mactavish (a Liberal appointee) called the reforms “cruel and unusual,” saying they breached refugees’ Charter rights, and that Conservatives endangered the lives of innocent and vulnerable children “in a manner that shocks the conscience and outrages our standards of decency.”
So there is the choice Conservatives seem comfortable in offering - a mean-spirited government that purports to save money on the backs of vulnerable refugees, or a clear-headed government that has put order back into a system rife with abuse and saves money for hard-working taxpayers.
Saturday night, in the friendly confines of Calgary during Stampede week, Harper launched an aggressive pitch for his government’s “safe streets” agenda.
“If, God forbid, Canadians are attacked, or robbed, if they lose someone they love to a murderer, or if they see their children driven to suicide by bullying and harassment ... the first thing they want their government to do is not make excuses for criminals, but to stick up for victims,” Harper said.
He fired away at Justin Trudeau, claiming the Liberal leader would “restore that key liberal principle of criminal justice, that the offender must be considered innocent even after being proved guilty.’’
But, pre-election embellishments aside, Harper could have been talking about Canadian courts, not the Liberal party.
The Conservative list of court defeats began shortly after its 2011 majority victory when the Supreme Court unanimously ruled against its move to close Vancouver’s Insite supervised injection drug clinic.
On matters of law and order, the top court has ruled Internet service providers cannot provide information without a warrant, that judges have the discretion to count time in custody before sentencing, and that the government’s mandatory gun sentencing law breached Charter rights, as did retroactive rules that denied offenders accelerated parole
As well, Alexander’s new citizenship law will face a court challenge, and the government is appealing another court ruling that overturned its bid to continue to limit voting rights for Canadian expatriates.
Beginning Monday, MPs will spend three days studying a prostitution bill made necessary by the Supreme Court rejection of existing laws.
This is all apart from the court rulings on Senate reform and the appointment of Marc Nadon to the Supreme Court, as well as the unseemly spat Harper began with Chief Justice Beverley McLachlin.
A governing party stymied time and again by the courts may be tempted to run against the men and women in robes.
More court fights may energize its base.
It would, however, be better advised to pull in its claws and listen to the country’s real opposition, its high courts.
If it doesn’t, then an opposition party seeking power could do worse than to campaign on Charter rights in this country, rights the courts say time and again have been breached by this government.
Tim Harper is a national affairs writer.