Stephen Harper’s gift to Canada

It’s not what he intended but former Prime Minister Harper has emboldened Canada’s Supreme Court and strengthened the Charter of Rights and Freedoms.

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Harper set out to remake Canada in his own image; a conservative unlike any Canada has seen before. Certainly not like the Progressive Conservative party that his amalgamation consumed; one based the libertarian principles Harper learned from his American professors at the University of Calgary.

Harper considered the Charter, introduced in by Pierre Trudeau in 1982, to be an artifice. But to Harper’s chagrin, the legacy of his nemesis has been strengthened.

It’s not for lack of trying. Harper tried to subvert the Charter by passing contrary laws.  Looking to emulate the U.S. system of making political appointments, he tried to stack the Supreme Court to support his subversion. That backfired as the judges he had appointed struck down laws he had passed, such as those on mandatory jail terms or illegal drugs.

Another approach was to kill of the Charter by a thousand cuts. In changing the law incrementally, he imaged that lots of small increments would add up to big change. Sean Fine, justice reporter for the Globe and Mail explains:

“On murder, he took away the ‘faint-hope clause’ that allowed for parole after 15 years instead of 25. Then he permitted the 25-year waiting period for a parole hearing to be added up in cases of multiple murders – 25 years on each murder. And then he promised life in prison with no parole for especially brutal murders.”

Harper tried to shut down the safe-injection clinic in Vancouver, Insite, where drug users could inject heroin with a nurse present, The Supreme Court ruled that shutting the clinic would severely harm, perhaps kill, drug addicts.

The Supreme Court ruling had the unintended consequence of making it harder for the Harper government to limit the rights of the vulnerable. Undeterred, Harper pressed ahead with prostitution laws, which the court unanimously ruled against decreeing that the laws endangered prostitutes.

More consequences of this legacy played out when the city of Abbotsford attempted to keep homeless people from sleeping in parks by spreading chicken manure.

“B.C. Supreme Court Chief Justice Christopher Hinkson, a Harper appointee, ruled for the homeless and against the city. Government should not cause physical or psychological harm to a vulnerable population, he said, citing the Insite ruling.”

Ghosts of a strengthened Supreme Court and the Charter brought in by Pierre Trudeau will haunt the son. Rulings have reduced the ability of all governments to impinge on rights.

Solitary confinement in federal prisons is being challenged based on the Insite ruling. If Justin Trudeau’s new Minister of Justice, Ms. Wilson-Raybould, attempts to defend the status quo, she could find herself taking a position on basic Charter rights similar to that taken by the Harper government.

“The result could be a supreme irony: Unless she moves quickly – on refugee health cuts, on mandatory jail sentences that fall most heavily on aboriginal peoples, on a spate of laws that reduce judges’ discretion – the Trudeau government will find that its justice-department lawyers are in court defending Harper-era policies whose goal was to remove perceived liberal bias from the justice system.”

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Trial judges overturn the Supreme Court

One person can, and has overturned rulings of Canada’s Supreme Court. Not Prime Minister Harper although I’m sure he would like to. It’s the trial judges appointed by the prime minister that can.

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It may seem alarming but it’s nothing new. Appointees from Prime Minister Chrétien did. Whether it’s alarming or not depends on your point of view.

If you think that physician-assisted suicide is a good idea, you would have been pleased when lower court judge, Justice Lynn Smith, overturned an earlier Supreme Court ruling.

In 1993 the Supreme Court ruled against Sue Rodriguez in her bid to have access to physician-assisted suicide. Rodriguez was suffering a terminal illness that prevented from ending her ended her own life.

In 2012, Justice Smith overturned that ruling. She heard testimony from jurisdictions in the U.S. and Europe that allow assisted suicide, and concluded those laws are successful in protecting  the vulnerable from being pressured into accepting an unwanted death.

Justice Smith was appointed by the Chrétien government but she was no hack. Before being appointed, she was dean of the University of British Columbia law faculty and a founding director of the Women’s Legal Education and Action Fund.

Those aren’t the criteria our current PM uses. Unlike Chrétien, Harper has made it clear what he looks for in judges. Sean Fine, justice writer for the Globe and Mail puts it this way: “For nearly 10 years, the Conservative government has been seeking candidates it believed would defer to Parliament and not go out of their way to defend individual rights.”

If you think that a two-tier health care system is a bad idea, then you will worry about the ruling of a lone judge, yet to be chosen, who will hear the case of Dr. Day. He claims the constitution supports his extra-billing of patients. The Canada Health Act and the parallel equivalent B.C., the Public Health Act, prohibit extra billing.

The Supreme Court reference in Dr. Day’s claim would not affect all of Canada –yet. The 2005, Supreme Court ruling only affected Quebec’s Health Insurance Act. In the so-called Chaoulli decision, private health care was allowed under Quebec’s Act. Should Dr. Day’s claim be successful, however, it could have implications for all of Canada in a subsequent Supreme Court decision.

How can it be that the Supreme Court is not supreme? It turns out that in its wisdom the Supreme Court has ruled that it isn’t all powerful.  That’s because our Constitution is a “living tree,” capable of growth over time. Trial judges are to interpret the Constitution because society’s values change over time.

If this doesn’t seem to ring true, it’s because we are constantly reminded of the immutable U.S. Constitution, especially in the right to bear arms. Canada has no such tradition of “originalism:” we are not bound by the intent of the Charter’s framers.

My hope is that trial judges will feel the weight of Canada’s destiny on their shoulders. I trust that honourable judges will base decisions on the facts and not the machinations of malevolent politicians who would corrupt the judiciary to their own ends.

Cultural Genocide in Canada

At first I found the accusation that Canada committed genocide to be incredulous. I don’t recall Canadians marching into villages and hacking people to death with machetes as happened in Rwanda. I don’t remember Canadians rounding up families and send them to gas chambers as happened with the Nazis.

Yet, when the chief justice of Canada’s Supreme Court and the head of the Truth and Reconciliation Commission charge Canada with cultural genocide, I have to pay attention.

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Strange as it may seem, Prime Minister Harper helped me understand what cultural genocide is. He’s the one who condemned it in Turkey and Russia.

Mr. Harper did not hesitate to call what the Ottomans did to the Armenians as cultural genocide. Doug Saunders makes the comparison (Globe and Mail, June 6, 2015):

“There is at least a functional similarity (albeit at a slower and less lethal scale) to the acts committed by the Ottomans against Armenians on Turkish territory in 1915: Those acts involved the mass, violent uprooting, force-marched relocation and forced-labour institutionalization of an entire people, with considerable disregard for life (as well as some considerable acts of outright murder).”

What happened in Russia was similar too. The Soviets forced families into collectives to grow food for Russia even as those families died of starvation. Children were removed from families and stripped of their language and culture. Sounds familiar.

Our first prime minister, John A. Macdonald made it clear what his intentions were when removing 150,000 children from their families and sending them to residential schools; it was to “acquire the habits and modes of thought of white men.”

These institutions were more along the lines of British child-labour reformatories than they were like schools. When children were unable to grow their own food, 4,000 died of starvation and disease.

“In other words, Canada’s crime fits into the historical pattern of a certain sort of genocidal act,” continues Saunders, “one that has been recognized and condemned by Ottawa when it has taken place in other countries. By acknowledging the validity of the Truth and Reconciliation Commission’s label, Ottawa would gain credibility in applying it to other countries.”

Depressing as it may be to live in a country that committed cultural genocide, there is a way forward. It starts in the distant past, before the 1870s when the shoe was on the other foot. Back then when native people were in the majority, European explorers would not have survived without the generosity of their hosts. Newcomers were not herded into camps and their wild British ways whipped out of them in lessons taught to the tune of the hickory stick.

Canada needs to return the favour shown by our hosts. It almost happened with the Kelowna Accord in 2005 when then Prime Minister Paul Martin reached a $5 billion deal with first nation leaders to improve the health and education.

Former Canadian Assembly of First Nations Chief Phil Fontaine called the Kelowna Accord a breakthrough for his people but calls for implementation  have fallen on deaf ears. Our PM has defined what cultural genocide is by his condemnation of it in other countries. It’s time we dealt with it in our own back yard.