Thursday, March 29, 2012

Harper and Judicial Activism

Happy Constitution Day!!

In case you didn't know, the Canadian Constitution Foundation is trying to sell the idea of making March 29th "Constitution Day", a day in which we are supposed to deepen our understanding of our constitutional traditions.

So with that in mind, I have decided to reproduce a column Prime Minister Stephen Harper wrote 12 years ago, when he was head of the National Citizens Coalition.(That was back when the NCC actually did stuff that mattered.)

Anyway, in the column, which appeared on June 13, 2000, Harper describes why he thinks it's important to use the Charter of Rights and Freedoms to defend individual rights, or more specifically the right to free political expression.

See below:

Chretien Gagging Canadians
by Stephen Harper --

Last week, I launched a personal legal action in the Alberta Court of Queen's Bench against the federal government's election gag law, Bill C-2. This law is the latest attempt by the federal government to restrict independent political advertising during elections.

So why is someone on the political "right" trying to have a law passed by Parliament overturned by the courts? Aren't all these "right-wingers" opposed to "judicial activism" and supporters of good, old "parliamentary supremacy"?

The answer, of course, is "no." Yes, I share many of the concerns of my colleagues and allies about biased "judicial activism" and its extremes. I agree that serious flaws exist in the Charter of Rights and Freedoms, and that there is no meaningful review or accountability mechanisms for Supreme Court justices.

But these things pale in comparison to the dangers and deceptions inherent in Bill C-2. My legal challenge constitutes the fifth time in the past 17 years that the National Citizens' Coalition has sponsored litigation against gag laws. On each previous occasion, the same scenario has unfolded: The government concedes the law restricts freedoms of expression and association, fails to provide a shred of evidence to justify such constitutional violations, and is laughed out of court.

In the most recent judgment earlier this year, Mr. Justice Donald Brenner of the B.C. Supreme Court shot down a provincial election gag law, saying: "To override Charter rights, it is necessary that there be more than a general hypothetical concern about a problem when there is no evidence to demonstrate that it has existed in the past or is likely to exist in the future."

The "hypothetical concern" is that independent political advertising could undermine electoral spending restrictions on political parties and candidates. Politicians argue that, because parties and candidates are limited, it is only fair that advocacy groups also be limited. If they are not, such "third parties" will upset the "level playing field."

The argument is intuitively appealing, but its premise is utterly dishonest. First of all, contrary to myth, Canada's major parties face no meaningful spending restrictions. In the next election, for example, the Liberal Party and its candidates will be able to spend more than $30-million. Most of those funds will come from the public purse -- through subsidies to both parties and donors -- without which such a "limit" could never be reached.

But what about the "level playing field" argument? Don't advocacy groups exist to help parties get elected? No, they don't. Advocacy groups may endorse or oppose parties and candidates, but their real goal is to advance a cause over the longer term.

Take the example of the "free trade" election of 1988. Gag-law folklore would have it that "third parties" poured millions of dollars into pro-free-trade advertising to help elect the Tories. The reality is the opposite.

Studies show free-trade spending had no effect on the partisan outcome of the election. (The Tories won on the opposition "split vote," not the issue.) But what the advocacy groups did was advance the issue of free trade and polarize the election around it.

On the one hand, this advocacy spending reinforced the pro-free-trade wing of the Liberal Party, which had traditionally supported the concept. And the reality is that the Liberals, once in office, did adopt and extend liberalized trade notwithstanding their 1988 opposition.

More important, it assured that the Tories in general and Brian Mulroney in particular -- historic opponents and reluctant converts to free trade -- became inexorably linked to the deal. So successful was this approach that the Mulroney government passed the free-trade agreement as its first and only bill in the following session.

That's why the Tories were livid about losing control of the election agenda. To prevent this from happening again, the Mulroney government passed a Draconian gag law.
In other words, political parties don't want to ban independent election advertising because it upsets a fair balance during elections. They want to curb such spending because it doesn't upset the balance, denying them the advantages that the Elections Act is supposed to provide.

Politicians seek these types of advantages all the time. Successive federal governments have used elections law to set high candidate thresholds for small parties, to expropriate minor party assets, to control broadcast times, to gerrymander riding boundaries, and to restrict publication of opinion polls by the media.

Only through court rulings have these provisions been exposed for what they are: arbitrary and unconstitutional provisions that confer advantages to the major parties at the expense of potential competitors and citizens' fundamental freedoms. It has only been through the courts that the famed "democratic legitimacy" of our elections has been preserved.

In short, the judges' activism is not resolved by the politicians' supremacy. Solutions can only be found in the classical theory of liberal democracy -- checks and balances of institutional power under limited government.

Unfortunately, this is something neither our Charter nor our Parliament provides.

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