The Supreme Court of Canada was remarkably united against the Conservative government in a year of unusually important rulings, a conservative think tank found in naming the court “policy-maker of the year.”
The government had a clear win in just one of the 10 biggest cases, on aboriginal land rights, while in seven cases it was a clear loser, a report from the Macdonald-Laurier Institute said.
The losses covered a wide range of areas – the government’s attempt to create an elected Senate, to keep thousands of convicted criminals in jail for longer terms, and even to appoint a judge of Prime Minister Stephen Harper’s choosing to the Supreme Court. In the seven clear losses, the court was unanimous five times. Only three judges dissented in the seven cases combined.
“The federal government lost, and lost big,” Benjamin Perrin, the report’s author, said in an interview, adding that he could not remember a year with so many cases likely to be of enduring importance. Mr. Perrin, a law professor at the University of British Columbia, was a legal affairs adviser in the Prime Minister’s Office two years ago.
The institute said it gave the court the title because it “changed Canadian public policy in wide-reaching and long-lasting ways” in the past year. Previous policy-makers of the year include Bank of Canada governor Mark Carney and Foreign Affairs Minister John Baird.
Mr. Perrin said the government’s biggest concern from its year of overwhelming defeats will be that its agenda is grinding to a halt. If that agenda “continues to be unravelled by the courts, it’s actually not governing the way that it wants to. It’s also politically quite embarrassing, and if people begin to think that the government is not understanding what the law is, and it’s not able to govern effectively, that becomes a very serious concern.”
Clarissa Lamb, a justice department spokesperson, defended the government’s record in court cases. “The federal government is involved in over 50,000 litigation cases every year. Our government is proud of our litigation record.”
The report sheds some light, if indirectly, on Prime Minister Harper’s decision last spring to accuse Supreme Court Chief Justice Beverley McLachlin of inappropriate conduct. Mr. Perrin called the Prime Minister’s decision to engage in a public dispute with the Chief Justice “a symptom of the frustration that’s likely setting in.” The International Commission of Jurists criticized Mr. Harper over the accusation, which it found baseless.
Chief Justice McLachlin was the sole author of four of the 10 rulings, and wrote opinions in two more.
Mr. Perrin suggests the problem might lie in the quality of legal advice from the justice department or whether the government is heeding that advice. The government might consider retaining “eminent outside counsel” to argue some cases, he said. Until an internal review is done of its litigation strategy, it would be premature to conclude the losing streak is caused by a “fundamental rift in values between the federal government and the court,” the report said.
SEAN FINE – JUSTICE WRITER
The Globe and Mail
Published Thursday, Nov. 27 2014, 6:00 AM EST
Last updated Thursday, Nov. 27 2014, 6:00 AM EST