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Canada and U.S. differences highlighted in actions of Supreme Courts

If you want to see just how different we are from our southern neighbours, consider the expectations and actions of our respective Supreme Courts. In the U.S., Supreme Court Justices tend to dance with the political leader who “brung” them.
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If you want to see just how different we are from our southern neighbours, consider the expectations and actions of our respective Supreme Courts.

In the U.S., Supreme Court Justices tend to dance with the political leader who “brung” them. In Canada, not so much.

In the U.S., there is now one vacancy on the top court — and there will be possibly two more before Donald Trump’s term is up. That court is now evenly populated with liberals and conservatives.

Trump says he’ll tip the balance in his favour. Any judge he nominates must be both anti-abortion and support the second amendment to the constitution, which guarantees the right to bear arms. And you can bet those judges will not waver.

Canadian prime ministers tend to be less prescriptive when it comes to judicial appointments although, unlike the American system which requires Senate approval, they do have the final say.

Prime ministers are, though, also constrained by the constitution, which prescribes regional balance in those appointments.

But it is more likely that the Supreme Court of Canada will turn governments of any stripe on their heads rather than being willing handmaidens.

For example, we no longer have a law in this country prohibiting abortion. Back in 1969, Liberal Prime Minister Pierre Trudeau’s government did bring a law legalizing the procedure, provided a committee of doctors signed off on it being necessary for the physical or mental health of the mother.

But 20 years later, and after we had a Charter of Rights, the feds brought a case against our most famous abortionist Henry Morgentaler. In the end, the Supreme Court tossed out the abortion law as unconstitutional.

Brian Mulroney’s Tories tried and failed, thanks, most would say, to a tie-breaking vote in the Senate, ironically by Conservative Pat Carney, to get a new law passed. So the Criminal Code is silent on the matter.

By the way, six of the nine members of the Supreme Court are former conservative Prime Minister Stephen Harper appointments. Chief Justice Beverley McLachlin was a Mulroney pick and two others are Liberal choices.

But that Tory majority didn’t help Harper when he tried to shut down Vancouver’s supervised injection site.  

And his displeasure with the  court in general, and the Chief Justice in particular, burst into an open battle when McLachlin attempted to caution Harper’s justice minister and the Prime Minister about technical “eligibility problems” should he  appoint Marc Nadon to the Supreme Court to fill the Quebec seat.

Harper accused McLachlin of meddling. Legal experts said she was just offering her advice as others before her had done.

Harper went ahead with the appointment. That led to a constitutional challenge to the Supreme Court, which ruled against Harper and humiliated Nadon, as he had to vacate the position.

Harper’s government also took it on the chin in the Supreme Court decision regarding doctor-assisted deaths. They dragged their feet on rewriting legislation as demanded by the court. The work was still not done when they were finally defeated by the Liberals who managed to crank out a piece of legislation critics say fell short of what the Supreme Court wanted. And now, yet another case to make that point is wending its way back there now that will challenge the Liberals.  

The most recent poke in the eye to governments by our Supreme Court came earlier this month with the decision regarding the B.C. Teachers Federation in a legal battle that has been going on since 2002 when the provincial Liberals stripped them of the right to bargain class size and composition. As well as the B.C. government, the case drew interveners from provincial governments in Ontario, Manitoba, Saskatchewan, the federal government and a Council of Employers group.

In a move that was historic for its speed, and still has a buzz going in legal circles, the court deliberated for 20 minutes. That was followed by 60 seconds for the Chief Justice to announce the court would uphold the teachers’ appeal.

The Supreme Court agreed with sole dissenter at the B.C. Court of Appeal, Justice Ian Donald, and his opinion that the original trial judge was correct in concluding the government of British Columbia had failed to bargain in good faith. And that the legislation stripping the teachers of their rights was unconstitutional.

@allengarr