Smoky Lake Signal Article No. 235 (September 5, 2012) Whispering in the Wind An important article appeared in last week’s MACLEANS magazine entitled “Harper v. the Judges” and well worth a read. Written by Andrew Sniderman, the article describes two lower court rulings that have gone against federally passed laws on minimum jail sentences for gun related crimes – one judge called the federal law “fundamentally unfair, outrageous, abhorrent and intolerable” another judge called the law “unconstitutional.” Prime Minister Harper defended his stance on the mandatory minimum jail sentencing law indicating that it is “essential” in the government’s getting tough on crime strategy. Mr. Sniderman’s essay also describes a number of other cases that have been “rebuffed” by the courts (i.e. safe injection sites; having a national securities regulator; Omar Khadr’s return from the US); are presently “in the courts” (i.e. mandatory minimum sentences; assisted suicides; open prostitution and brothels); and some issues that are likely to be challenged in the courts (i.e. detention of refugees; back-to-work legislation). After reading the “Harper v. the Judges” article it is my view that Canada’s elected politicians and members of the court had best come to a better, no, a clear understanding as to their respective roles in Canada’s legal system – the consequences for not clearing up this confusion could result in a major failure in Canadian democracy. The Neo-conservative Perspective: The “battle” between Mr. Harper’s government and the courts is being viewed by some neo-conservatives as a struggle between an over zealous judiciary that is establishing its own legal framework versus an elected, majority government passing laws which in its mind, reflects the will of the people. Spokespeople on the government’s side, have offered some unusual views that are particularly troubling to those who believe in a judicial system that is and remains independent from the legislative branch of government and still in full compliance with all the tenets of the country’s Constitution and its Charter of Rights and Freedoms. The former head of the Reform Party of Canada, Preston Manning suggests that the Charter of Rights and Freedoms encourages and empowers the courts to be activist and because of this judicial activism, the courts are out of sync with Canadian society. Mr. Manning also reasons that in the last federal election the Conservatives were successful in winning a majority government and that means, all Canadians generally share Conservative values. Mr. Manning concludes: “When the court goes against those [Conservative values], the court is not only going against the government, but also going against values that are alive and well in society.” Even Prime Minister Harper has entered into the fray over the role of the courts. A couple of weeks ago in Toronto the PM defended his government’s law on minimum sentencing by saying: “I think these [shooting] events in Toronto underscore why these penalties are essential, why it is essential to have tough and certain penalties for gun crime….and I certainly call on the courts to take these penalties seriously.” My Perspective on the Court Debate: Surprise, Surprise; I actually support a part of Prime Minister Harper’s political agenda, particularly when it comes to having and implementing a getting tough on crime strategy; having a single securities regulator for Canada and supporting the development of infrastructure to move bitumen to foreign markets in an environmentally sound manner – these are all good things and are all good building blocks when building a stronger, safer, more economically sound nation. But when Mr. Harper and his supporters attempt to discredit, if not destroy, the independence of Canada’s court system, then Mr. Harper and his neo-conservative advisors have gone over the top. Preston Manning, possibly Steven Harper’s most ardent supporter and a close libertarian advisor to the PM has floated some ideas that are ridiculous and without question, illogical. Mr. Manning states that because Mr. Harper won a majority government, the values of the government (the Conservative Party) have become “generally” the values of all Canadians – I sincerely hope Mr. Manning realizes that Mr. Harper won his majority government with 39.6 percent of the popular vote. In my view Mr. Manning’s inference is not only wrong, it’s ridiculous. Mr. Manning also feels that the judiciary is activist and not responsive to Mr. Harper’s government and the laws passed by his majority government. What I gather from Mr. Manning’s outrageous statements, he feels that Mr. Harper’s government, because it is a majority, is somehow supreme to all the other arms in Canada’s constitutional framework; including the country’s Constitution and the courts. The judiciary has a specific task and that is; to assure all elements of our society operate within the tenets of the Constitution and to make judgments on that operation – in my view, Mr. Manning’s opinions are not only ludicrous, they are irresponsible. Prime Minister Harper is also attempting to influence the courts when he suggests that judges should take his legislative initiatives “seriously” – it’s not up to Prime Minister Harper to tell or direct the courts to do anything; the courts are guided by the Constitution and not by some single political will or philosophy. Should the Prime Minister prevail in this debate, some observers are rightly suggesting that Canada will no longer be a democracy with its checks and balances, it will operate with a single, absolute ruler and by definition, that’s tyranny.