What really bugs Conservatives about the Supreme Court prostitution ruling

- December 20th, 2013

Supreme Court of Canada

The Supreme Court today delivered a landmark ruling on prostitution. My colleague Daniel Proussalidis has the news here and Justice Minister Peter MacKay has released a statement in response.

Another colleague this morning remarked that reaction among those who vote for candidates of MacKay’s party, i.e. The Conservative Party of Canada, is likely to be mixed: The libertarian set will see nothing wrong at all with what the Court is saying. The social conservatives, on the other hand, will be terribly distressed.

But both libertarians and social conservatives are likely to be upset at the fact that these decisions — landmark decisions — are not being made by any legislature or by any government that must regularly defend its decisions to voters, but instead are being made by judges.

Employment Minister Jason Kenney was asked about this decision at a press conference he gave in Calgary on another matter hours after the release of the court ruling. Kenney sums up this ‘conservative’ objection: ”I think that in our system of government there is an understandable primacy of Parliament as the democratic deliberative process and that my own view is that the judiciary should be restrained at the exercise of judicial power in overturning a democratic consensus. Having said that, we of course respect the independence of the judiciary and its role. We will review the decision and determine what is the necessary next step to ensure the protection of vulnerable women from sexual exploitation.”

Maclean’s political editor Paul Wells talks about what Kenney is getting at in his book The Longer I’m Prime Minister and while I’m going to quote a big chunk from that book here on this topic, there is more in the book …

Ian Brodie’s Friends of the Court: The Privileging of Interest Group Litigants in Canada, published in 2002, is a highly unflattering study of one aspect of Pierre Trudeau’s legacy. But any serious politician learns from his opponents, and Harper later incorporated many of the techniques Brodie described into his governing style.

Friends of the Court is based on his doctoral dissertation. Brodie’s focus was the Supreme Court of Canada in the aftermath of the Charter of Rights. “A remarkably activist tribunal,” he wrote. “In recent years it has forced Alberta to extend its human rights code to protect against discrimination based on sexual orientation. It has required Canadian governments to extend spousal benefits to same-sex couples. And it has disrupted resource management policies by extending aboriginal rights.” This burst of activism in the 1980s was “unprecedented,” and Brodie plainly found the reaction to it a little odd: even though a succession of governments and powerful interests had been dealt defeats at the Court’s hands, its activism hadn’t provoked a political backlash. Brian Mulroney and the premiers had spent the years since 1987 trying to change just about everything in the Constitution it was possible to change—except the Charter and the functioning of the courts.
The rise in judicial activism was matched by a rise in the sustained activity of interest groups: “groups representing feminists, civil libertarians, language minorities, unions, business and others” organized “to wage long-term battles in the courts.” Such groups often claimed to be politically disadvantaged, he observed. Which may indeed be the case, except that state funding has been crucial to their formation, survival and their frequent court victories. The main vehicle for this funding was the Court Challenges Program, which provided money to civil-society applicants so they could challenge laws on Charter grounds.
Eventually it becomes clear that Brodie is describing a loose network of interests congenial to broadly Liberal goals which extends well outside the government or the Liberal Party. He cites two leading Calgary School academics, Ted Morton and Rainer Knopff, who had written a study of what they dubbed the “Court Party.” This network included “social reform-minded professionals and academics in public interest groups, government departments, independent government agencies, the criminal bar, and the law schools.” …
“Morton and Knopff’s central observation is that the Court Party is a political minority in Canada,” Brodie wrote. “Electoral politics is therefore not an advantageous arena for them. The Court Party prefers to advance its agendas through institutions that are insulated from electoral politics. The courts, quasi-judicial tribunals, and the administrative arms of government are arenas where the Court Party’s professional skills and abilities can make up for their lack of electoral support.”
Of course electoral politics was an advantageous arena for the Liberal Party through the first half of the 1980s. But the Liberals didn’t dare wear their activism on their sleeve. They had to look like moderates. In this Morton–Knopff–Brodie view, the courts served as the advance guard of what Brodie calls a “post-materialist” vision.
Harper made it clear he had taken Brodie’s argument to heart when he delivered an extraordinary news conference in the Centre Block lobby outside the House of Commons as opposition leader in 2003. Ontario judge Roy McMurtry had just handed down his landmark ruling permitting same-sex marriage. Harper argued that the Liberals had plotted for a very long time to produce precisely this result.
“They wanted to introduce this same-sex marriage through back channels,” Harper said then. “They had the courts do it for them, put the judges in they wanted. Then they failed to appeal, failed to fight the case in court.”
But, the reporters protested, McMurtry was a lifelong Progressive Conservative. He used to be Bill Davis’s attorney general in Ontario. He was appointed to the court by Mulroney. “Well, he’s a former Tory,” Harper said. “But whether he’s conservative or not is a matter of terminology.”
After a brief stint as a junior political staffer in the Mulroney government in the mid-1980s, Harper worked in a succession of opposition parties for nearly twenty years before he formed a government. He clearly had no trouble holding two simultaneous thoughts about much of what he saw along the way: “This is outrageous” and “This will come in handy someday.” The lesson he took from the behaviour of the Court Party was subtle. It wasn’t “Stack the courts.” It wasn’t “Use the Court Challenges Program to fund Conservative-friendly legal challenges.” One of the first things he did as prime minister was to cancel the Court Challenges Program. He pretty much gave the courts up for lost as potential instruments of ever-broader Conservative hegemony, and events would show he was right to have done so.
The lesson he did draw was “Work your networks.” A conservatism that operated only in the Prime Minister’s Office and on the government side of the House of Commons would be like a plant without roots. It could not survive or flourish. But over time he would identify the “back channels” he could work through. Long after he became prime minister in a minority Parliament, electoral politics would rarely be an advantageous arena for advancing his goals. He would find others.

Categories: Justice, Politics

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7 comments

  1. Gabby in QC says:

    “The social conservatives, on the other hand, will be terribly distressed.”

    It is not only the social conservatives who are “distressed” by the Supreme Court’s decision.
    If your readers read/understand French, google “Conseil du statut de la femme
    La décriminalisation de la prostitution inquiète” — a QMI article — in which the president of the Quebec Conseil du statut de la femme (Council of Women) Julie Miville-Dechêne questions the wisdom of the SC decision. Quebec is hardly considered a bastion of social conservatism.

    What about Europe, which many “social progressives” often cite as models? Google “MEPs call for a Europe free from prostitution and support the Brussels’ Call signed by 200 NGOs” where you can read this press release:
    “[Brussels, 1 October 2013] Today, Members of the European Parliament (MEPs) gathered for a joint press event in the European Parliament, to express their view that prostitution is an obstacle to equality between women and men and a violation of human rights. Coming from different countries and all major political groups in the European Parliament, 53 MEPs have signed the Brussels’ Call ‘Together for a Europe free from prostitution’.
    Initiated by the European Women’s Lobby (EWL) and its partners, the Brussels’ Call had been launched in December 2012 in the European Parliament, and endorsed by around 200 women’s rights NGOs, coming from 27 Member States and five other countries (Norway, Iceland, Macedonia, Québec, Argentina). …”

    That last sentence gave me a bit of a start, what with Québec being listed among “five other countries” — but I digress.

    The press release continues:
    “By supporting the Brussels’ Call, MEPs make it clear that prostitution is a form of violence against women and a violation of human dignity. They address 6 key recommendations to EU Member States: the suppression of repressive measures against prostituted persons; the criminalisation of all forms of procuring; the development of real alternatives and exit programmes for those in prostitution; the prohibition of the purchase of a sexual act; the implementation of policies of prevention, education, to promote equality and positive sexuality; the development of prevention policies in the countries of origin of prostituted persons. …

    The European Women’s Lobby (EWL) is the largest umbrella organisation of women’s associations in the European Union (EU), working to promote women’s rights and equality between women and men. EWL membership extends to organisations in all 28 EU Member States and three of the candidate countries, as well as to 21 European-wide organisations, representing a total of more than 2000 associations.”

    Are all those European NGOs & assorted lobby groups also “socially conservative”?

    I haven’t yet read the SC decision — I’m simply reacting to the usually disparaging “social conservative” label.

  2. Larry says:

    The high mighty Conservatives lose another court case , they sure like to waste our money. If any Liberal is reading this could you donate to the Liberal party, so we can run these Cronies out of town.

  3. trevor999 says:

    It seems that you forgot to mention that it was a unanimous decision. Furthermore seven of the Justices were appointed by Harper. (Actually it’s eight, but one is not sitting). I imagine that’s what really bugs the Conservatives. I think Kenney ought to check his objections at the door. The SOC based its decision on the Charter, the law of the land, not on some social conservative rhetoric.

  4. Kyuss says:

    ”I think that in our system of government there is an understandable primacy of Parliament as the democratic deliberative process and that my own view is that the judiciary should be restrained at the exercise of judicial power in overturning a democratic consensus.”
    Translation: We should be able to pass any law we want, whether it violates the Charter or not, and the courts shouldn’t be able to do anything about it.
    Very dangerous, tyranny of the majority thinking on display right there. Personally, I don’t understand what the big deal is. I can pay a woman to have sex with me, film it and then sell it to anyone 18 and up and that is not a crime. But, if I pay a woman to have sex, don’t film it and just keep the experience between the two of us that is somehow illegal? Boggles the mind.

  5. Ed - NORTH OF BARRIE says:

    Obviously they’re upset at the fact that such a ruling will enable all Canadians to get screwed at anytime and anyplace without having to wait for it from their governments, both federal and provincial.

  6. Corey Sadler says:

    We all know how well the legislature looks out for our best interests. Just look at Bill C45 which allows native land owners to now lease their land to greedy developers to destroy in search of oil, water, and precious metals. This was done without any consultation with the chiefs of any of the reserves. They do what they want and I am glad that educated and informed judges have made this decision and not a group of Conservative cronies who are not looking out for our best interests.

  7. Idea Factory says:

    The world will continue on with this decision. I lived in New Zealand when it legalized prostitution. It required a lot of recommendations to make this safe for those who sell sex and those who buy. New brothels opened and even advertised for staff. Sex workers need health checks and a type of identify card. There is a union for sex workers. The issue will be how the Conservatives react.

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