Conservative Strategy to demonise the Courts?


The Liberal – Activist enemy?

I have noticed something odd about the legislative agenda of the Conservative Party. Hey, I ain’t no lawyer, but it has struck me repeatedly that the Conservatives have been crafting legislation that would quickly be thrown out by the courts. It has struck others as well, including at least one of the Lawyers charged with drafting and preparing laws for parliaments consideration. I have read knowledgable opinions here and there that this or that part of an Omnibus bill would not pass muster in a constitutional challenge, or that precedence would overturn another measure, and I think there may be more to it than incompetence, or the burden of draughting 500 page ominibus legislation.

This morning, being a bit of a political news junkie, I popped over to National Newswatch to see what, if anything was happening in the news coverage of Candian politics today, and I stumbled across THIS ARTICLE in the Toronto Star. In essence, a senior Justice department Lawyer has been warning his political masters, the Conservative Government that they are breaking the law by refusing to vet their legislation for constitutional conflicts and other errors in law. After nearly 10 years of pointing out that it was a legal obligation of the Government to ‘proof read’ their legislation and being told to shut up, the Government Lawyer, Edgar Schmidt sued his own department to enforce the obligation to vet legislation for errors in law.

I scratched my head for about 15 seconds, I mean, why would the Conservatives deliberately craft bad laws that not only could, but almost certainly WOULD be overturned by the courts? Obviously it is important to them that un-enforcable and illegal laws should be passed by Parliament, or they would simply do their duty and correct legal flaws before passing any given bill. I am afraid that an answer came to me all too quickly. We have the example of US Republican/Tea Party narrative whereby the ‘activist liberal courts’ are the scapegoat for every decision that challenges the Tea Party’s world view. What a handy dandy strawman that makes eh?  So here’s a plausible scenario for you. The Conservative Government introduces flawed legislation that, for example, allows pipelines to be rammed through Native Lands without consultation. Naturally, those opposed to the legislation challenge it in court, and lo and behold, their rock solid case wins, and the pipeline languishes in limbo. About a million slobbering racists come out of the woodwork to rant about activist courts, dirty drunken Indians, and environmental terrorists. The Conservatives look on owlishly saying ‘ geez, too bad those lousy courts ordered us to give those feckless Indians their way, now all your jobs are gone, and it is the Socialist – Liberal Courts that done the deed!’ Talk about a gift that keeps on giving! All you need to do is continue to create faulty legislation that talks to the political fringes on a selection of issues, and the media will have a continuous stream of ‘bad liberal courts’ stories to feed to the underclasses.

It’s actually a pretty scary thought. Is there any other reasons why the Conservatives might want to discredit the administration and application of Justice in canada? Well yes, maybe. Should the Government find itself in the position of breaking the law, then they can deflect the public impact and stigma by claiming that the courts decisions are motivated by partisanship. It works in the States, so why shouldn’t it work here? Anyway, the actual practice of passing un-vetted laws is in front of the courts now. I wonder if anybody in the media will pick up on the fact that the Conservatives are defending their practice of deliberately formulating un-lawful legislation. It should be very interesting indeed to see how they defend themselves from this suit. I seriously hope their arguments and defense get placed under a magnifying glass for all to see and judge.

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5 Responses

  1. Here’s my post on how the roll-back of environmental laws will likely have the effect of increasing litigation by the government’s political opponents. Is that intentional? Or is it aimed at forcing opponents into increased reliance on litigation, with the resulting polarisation, increased use of resources, etc?

  2. Hi
    I think you miss the obvious
    harpercrite only needs to replace the supreme court judges with his own replacements to alter the environment the liberals built when they did the same thing

    There are lots of lawyers willing to make a deal with a devil for a judges job I would think

    Many actually believe the courts honest fair and based on laws…what a hoot !

  3. @Andrew: I did read your post, and it was worthwhile read. Kind of similar conclusions, that legal failings of the law are intended to put a stopper in criticism, and make lawsuits too expensive. Kind of like a super slapp…

  4. Hi John,

    I don’t agree with you that all jusdges are partisan. I would even go so far as to say that professional ethics would render the majority of Judges impartial. That may change with time, I hope not.

  5. “The most objectionable aspect of the embedded state is the practice of bureaucrats and, let’s be frank, judges in undertaking to create constituencies for their own administrative advancement”

    That’s a quote from harperite barry cooper i put at few years back at .

    The stance is basically antinomian. The attitude is get away with what you can. There is no reverence for process. Not caring is at the heart of it. And anti-intellectual.

    Stacking the courts here cannot be like in the US where there seems inherent politicization. But revulsion of rights talk leads to things like from dispensing with from assistance programme to launch Charter suits to simply ignoring court orders. It would prove their point about ultimate indivisible sovereignty in govt. hands. And it would be to press a cultural revolution into Canadian politics.

    As usual, with their perspective, valid perceptions of things gone wrong are met with completely contraindicated policy, resulting in falling into the hands of bigger and unaccountable “constituencies”. This is the plague of Alta-oriented natl. politics.

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