EDITORIAL: Supreme Relief

July 1, 2014

In the lead-up to Canada Day, the Association for Canadian Studies asked 1,509 people, “What keeps Canada united?” It’s a loaded question for sure. (How united is it? Whom does it unite?) And there were only 11 options to choose from. Nonetheless, the top responses are interesting to consider as a tumultuous parliamentary session comes to an end and federal political parties begin what are expected to be their yearlong election campaigns.

The most popular answer in the random poll, picked by 25 per cent of respondents, was that the Charter of Rights and Freedoms keeps Canada united. Second choice, with 22 per cent support, was universal health care. Only 12 per cent said hockey while two per cent—a sliver—picked the monarchy. The military wasn’t an option.

Assuming people generally believe that what unites a country makes it better, the results suggest a separation, if not a gulf, between public opinion and the priorities of a government that has spent an awkward amount of time defending itself against Charter challenges (and losing) or, through cuts to taxes and transfer payments, confounding any hopes of improving public services like health care (see Kayle Hatt’s article on Page 8).

This disconnect creates space to fight the next election on bigger issues than sound economic management versus reefer madness. With respect to the Supreme Court, the government faces far more serious challenges than those affecting its electoral prospects in 2015, though the two might intersect.

In their first of what will be regular columns for the Monitor, Steve Anderson and David Christopher of OpenMedia.ca walk us through one of those challenges: a legislative assault on privacy that was pre-emptively found to be unconstitutional by the Supreme Court in a June 13 decision asserting a person’s right to remain anonymous on the Internet.

The government tried and failed before to give security agencies the ability to collect information on Internet users without a warrant. In their column (Page 14), Anderson and Christopher argue the most recent legislation (Bill C-13), which reproduces these warrantless snooping clauses, shows a government out of touch with privacy rights and a top court with clearer ideas of their importance.

In another historic ruling on June 26, the Supreme Court declared that the Tsilhqot’in First Nation of central British Columbia held title to 1,700 square kilometres of traditional land outside its reserve, and that the B.C. government must meet strict conditions before making any incursions onto indigenous territory. They include a requirement to consult in good faith on proposed land use and the need to accommodate the group’s interests.

“The Province did neither” when it started issuing timber licences for the B.C. interior in 1983, wrote the Supreme Court in its judgment. It therefore breached its constitutional duty to the Tsilhqot’in. The importance of the decision, which will apply in any Crown (federal or provincial) interaction with indigenous groups with open title claims, was not lost on Canada’s oil and gas sector. It came only a week after the federal government approved Enbridge’s Northern Gateway tar sands pipeline, opposed by almost all First Nations between Alberta and the west coast (see Marc Lee’s article on Page 16).

“The court stated that the Tsilhqot'in had the right to determine ‘the uses to which the land is put and to enjoy its economic fruits,’” explained Oilprice.com. “That power could prove to be a major obstacle for industrial companies seeking to build major infrastructure projects like roads, bridges, power plants and pipelines.”

Beyond these two cases, the government faced criticism this spring for introducing a new law on prostitution that does not address the Charter violations in its predecessor, attempting to circumvent the Constitution with the Prime Minister’s nomination to the top bench, and then publicly attacking the Supreme Court when the nomination failed, “to foster disrespect for the judiciary—an unheard-of thing in Canada,” according to Simon Potter, past-president of the Canadian Bar Association.

The consequences of these recent Supreme Court decisions and the responses to them are too many to consider here. But surely it is a problem for the government that two of its major policy thrusts—tough-on-crime Internet surveillance and all-systems-go energy and resource development—have been disrupted by what public opinion considers to be the most important unifying force in the country.