Harper government's legal setbacks suggest strategy of confrontation

In what must feel to the prime minister like a visit to the shooting range, another tenet of the government's tough-on-crime agenda has been blown away.

Holding the rifle this time is respected Ottawa Judge David Paciocco. In tatters is the mandatory victim surcharge, a compulsory funding scheme implemented by the government to fund services to victims and their families.

The victim surcharge ruling is a clear signal the government's recent legal troubles are much more than a clash of personalities between Chief Justice Beverley McLachlin and the prime minister, but rather a very real collision of beliefs about how Canada should work.

The surcharge itself isn't new, but the Harper government's approach is. The Conservatives made the charge mandatory for most offences and doubled the amount offenders could be on the hook for. When judges balked, Justice Minister Peter MacKay swore they would eventually "see the wisdom" in applying it.

For one 26-year-old offender appearing before Paciocco, it was $900 the man simply couldn't pay. Rather than try to skirt the surcharge, as other judges have done, Paciocco ruled it unconstitutional.

Government lawyers argued the surcharge was not a punishment, and therefore couldn't be ruled cruel and unusual. They urged the judge to interpret the law the way Parliament intended. Paciocco refused; he said it certainly constituted punishment for the man, and was disproportionate to his crime.

In striking it down, he's set up yet another fight destined for the Supreme Court.

A legal cold war

"There's something different about the Harper government," says Emmett Macfarlane, who wrote Governing from the Bench, about the Supreme Court's role in Canadian democracy. He says the top court has long been known to complement, not fight, Parliament.

Edgar Schmidt agrees that something is wrong, and he would know — he was the general counsel for the legislative branch at the Department of Justice, until he became a whistleblower and was suspended without pay in late 2012.

He filed documents in December of that year accusing the department of working under "faint hope" — approving legislation even if it has a "combined likelihood of five per cent or less" of being upheld by the courts.

He argued that Ottawa has a duty to introduce charter-compliant legislation — or, at least, tell the public when legislation doesn't pass the test.

The government disagreed, saying that it only needs to do so if legislation is "manifestly unconstitutional, such that no credible argument exists in support of it."

If a lawyer raises an issue with legislation, and management isn't worried, internal documents instruct government lawyers to "proceed to complete drafting or examination (blue-stamping)."

"Blue-stamping" is bureaucrat lingo for approving.

So, even if a piece of legislation has a 99 per cent chance of being defeated by the courts, government policy is to forge ahead.

That throws some cold water on MacKay's now-infamous refrain that even the government's most controversial pieces of legislation are vetted to be charter-compliant.

The NDP wanted to put that to the test for the Tories' new prostitution bill, asking that it be referred to the Supreme Court.

MacKay said no.

"We shouldn't abrogate that responsibility by simply punting or deferring to the Supreme Court on such important issues, especially those that have already been legislated," he told reporters.

In a particularly ironic case, one Ontario ruling struck down the Conservatives' mandatory minimum sentence for gun crimes, ruling that it could imprison lawful gun owners.

Even for the victim surcharge, the Conservatives tried to create an escape hatch — they made it possible for offenders to pay off their surcharge with community service. But seven of the provinces said that was impossible, either because they didn't have those programs or because the crafting of Ottawa's law made it impossible.

'The system breaks'

In the knife fight that has become the government's approach to litigation, Canadian Bar Association past president Simon Potter says things are nearing a breaking point.

At a constitutional conference in July, he argued that if Parliament continues to be "headstrong" instead of co-operative, "then the system eventually breaks. That's where we're headed if we don't get this fixed."

Macfarlane says the insistence on grinding the branches of government against each other betrays not just the Conservatives' long history of distrusting the Constitution, but also a will to pick populist fights.

"Sometimes it's losing a fair fight, and sometimes it's instigating a ridiculous fight," he says.

To that end, there's some irony: the McLachlin-led court with which Harper has so frequently clashed is considered to be more conservative on many matters than its predecessor.

Whatever the reason for the acrimony, amid more and more pieces of legislation being shot from the sky, the Harper government has shown no intention to change its strategy.

Looming legal battles?

Some other recent legislation that may face court challenges:

• Bill C-13: Cyberbullying: This reincarnation of an earlier "cyber-snooping" bill would reinforce sections of the law allowing police to get Canadians' data without a warrant. The Supreme Court has ruled that unconstitutional, but MacKay has no intention to amend it.
• Bill C-24: Citizenship: Arguably the most controversial immigration change the Conservatives have introduced, this law gives the minister the power to strip dual citizens of citizenship if they’ve been convicted of certain crimes. The Canadian Bar Association was up in arms over the bill.
• Bill C-36: Prostitution: While government lawyers say the Supreme Court will rubber-stamp their effort to criminalize the purchasing of sex, some 220 lawyers say that the bill contradicts the Supreme Court’s logic in the Bedford case.
• Bill C-14: Not Criminally Responsible: Critics are confident they'll defeat this law, which would create a designation of "high risk" for offenders found to be not criminally responsible. The bill could mean that offenders are held in detention indefinitely.

Justin Ling is an Ottawa-based freelance journalist in the Parliamentary Press Gallery.