Saturday, May 14, 2011

The coming conservative court - The Globe and Mail

There is a problem with this story: The coming conservative court - The Globe and Mail

The problem is fairly simple: it demonstrates no understanding of the process of Canadian judicial review but assumes that divisions in the United States (between liberal and conservative jurists) apply to Canada. The recently announced retirement of two Supreme Court justices provide an interesting opportunity for some enterprising journalist to educate Canadians (or, at least open a dialogue) about the nature of Canadian judicial review. One wants to say "true to form" but that would be catty, _The Globe_ seems to have swung and missed on its first change.

What are some of the problems with this story? Well, consider the definition of "conservative" when it comes to judicial review ... hmmm .... OK, there is none. We learn -- from a Harper quote -- that liberals are supposedly "extreme" in their interpretation of the Charter. I am not at all certain what that means. If it is extreme it must be bad ... but exactly how and why is not explained. We learn that conservatives believe in "conservative" Charter rulings (I hardly find that shocking, btw). That Harper's appointments will likely pose "nightmare" for civil libertarians and progressives (whomever these are), and that conservatives like a court that defers to Parliament. Oh, and conservatives apparently don't engage in "debate" or "bold decision making."

In other words, what we are left with is a code that we cannot decipher. The person who wrote this story has done no real research. For instance, they have not queried whether a conservative/liberal distinction applies as well to Canada as it does to the US. They have not tried to explain what this distinction means, and they have discussed the issues at stake. For instance, are Charter provisions upholding the equality of citizens under threat? Harper and other conservatives argued that equality was a matter on which Parliaments voted and if Parliament decided that some people were not equal ... well ... then it could implement or maintain laws that rejected equality giving some Canadians a lower legal status (and less benefit of the law) then others. After he was elected, Harper quietly stopped talking such non-sense largely because it is non-sense (and potentially fascist!) but is this perspective about to make a come back? Is Harper going to appointment judges (exactly where he would find them is not clear) who would reject equality? If so, this would be a serious issue and reason for people to be concerned about his appointments.

Let me be clear: I'm no Harper fan. I doubt I will like the appointments he will make to the Supreme Court. However, we cannot assume that America -- really American popular cultural -- conceptions of the judicial review apply in Canada. They don't. Explaining the distinctions, however, would require that a Globe reporter do something more than what as episode of _Law and Order_ to write their column. So ... its not done.
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