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Relationship with courts among key election issues for lawyers

|Written By Tali Folkins

That the upcoming federal election will mean for legal and justice issues in Canada is certainly hard to say given the nearly three-way tie the major parties are currently sitting at in the polls. But whatever the final result, a few particularly politically minded lawyers predict the election will be a crucial one on a number of fronts.

‘We have seen a disturbing record of confrontation and contempt by the Harper government for the judiciary and the Supreme Court of Canada in particular,’ says Garry Wise.

Bob Rae, a former NDP premier of Ontario, interim federal Liberal leader, and now a senior partner at Olthuis Kleer Townshend LLP, says that among the most important legal and justice issues now hanging in the balance are the relationship between the government and the courts and what he says has been a marked increase in the politicization of judicial appointments.

Prime Minister Stephen Harper, “in my view, made a major error in judgment in deciding that he would take on the Supreme Court of Canada in a very personal way,” says Rae. “I think most Canadians, including most Conservatives, were offended by that, and that’s something that I hope we never see a repeat of.

“I think equally significant is the question of judicial appointments and I think the fact that the politicization of the appointment process has been an ongoing challenge and Mr. Harper’s taken it to another level. The process needs to become more transparent and it needs to be much less based on the whim of the government of the day. And that’s my own view, but I don’t think we’ll see that under Mr. Harper. I hope we’ll see it under the other two parties. I think it’s an area that needs to change.”

After 10 years of what he says has been “essentially a Reform government,” Rae says too many Canadians are going to jail and the Criminal Code has become too complex.

Rae admits that the NDP has committed to changes on a number of key legal and justice issues such as repealing Bill C-51 and holding a commission of inquiry into the issue of murdered and missing aboriginal women in Canada. He believes, however, that the Liberal platform addresses legal and justice issues more thoroughly than the NDP’s proposals. For example, he notes the Liberals have pledged to increase parliamentary oversight on security issues and strengthen the Security Intelligence Review Committee.

The Liberal pledge to amend Bill C-51 includes eliminating a provision allowing the Canadian Security Intelligence Service to apply for court warrants to break Canadian laws. The Liberals have also called for an inquiry into murdered and missing aboriginal women.

Among Liberals, according to Rae, there’s also “a recognition that our drug laws, particularly with respect to marijuana, are proving to be counterproductive.” The Liberals have promised to legalize the sale of marijuana. An NDP government, meanwhile, would decriminalize certain offences.

Garry Wise, founder of the Wise Law Office in Toronto and a legal and political commentator via his blog, agrees that the future of the relationship between the prime minister’s office and the courts is likely to depend to a great extent on what happens next month.

“We have seen a disturbing record of confrontation and contempt by the Harper government for the judiciary and the Supreme Court of Canada in particular,” says Wise.

“One can only hope, with a change of government, for the restoration of a modicum of respect and decorum by the [prime minister’s office] and government for the judicial branch.”

But Geoff Pollock, a sole practitioner who ran for the Conservatives in the 2013 byelection to replace Rae as an MP, says he believes the alleged conflict between Harper and the courts has been “overblown.”

“There’s a conversation between the executive, the legislative, and the judiciary, but there’s always been a conversation between them,” he says.

The Conservative agenda, he says, emphasizes making Canadian families more secure both physically in their homes and in their wallets. A key plank in the party’s platform, he says, is its legislation aimed at ensuring that the most violent criminals go to jail for life with no chance of parole.

Hugh Scher, an employment, human rights, and disability lawyer who has taken part in a number of federal and provincial government consultations, says the Conservatives’ priority on protecting victims of crime, punishing criminals, and making them accountable contrasts starkly with the approach of the other two main parties.

He cites, for example, a recently announced NDP plan to increase the number of shelters for victims of domestic abuse that would allow them to safely escape their abusers and Liberal tax proposals aimed at reducing income disparities and “improving the situation of middle-class Canadians in a way that will ultimately create greater equity and equality in society.”

Pollock, however, says Conservatives have always agreed that it’s important to get at the root causes of crime by targeting poverty. That’s one of the reasons why the party places so much emphasis on growing the economy and reducing the tax burden, he says.

There’s also a difference among the three parties, according to Scher, in their approach to the question of assisted suicide in the wake of the Supreme Court of Canada’s ruling to lift the ban on it last February.

The Conservatives, he says, seem intent on examining the recommendations of a panel they’ve recently formed “to try to review and implement the terms of the Supreme Court of Canada [ruling] in what they consider to be a responsible way that looks at the issue out of concern for the abuse of vulnerable Canadians,” he says.

The NDP position, he says, seems to be in line with the Quebec approach of legalizing assisted suicide under strict conditions. The Liberals voted last winter to allow assisted suicide, but their exact position seems uncertain, he notes. “It’s not clear what particular safeguards they will be looking at putting in place.”

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