Canada’s Conservatives Don’t Care About the Rule of Law
Canada's conservative movement increasingly mimics their Republican neighbours. And that should deeply worry us.
As Canadians watch in horror, American institutions once thought infallible are succumbing to right-wing political forces. Republicans appear willing to do anything, break any rule, and transgress any norm to achieve their goals.
Most recently, the American right has used every political trick conceivable to place Brett Kavanaugh, a conservative political operative and accused rapist, on the Supreme Court, one of the world’s most powerful and influential decision-making institutions.
Republicans have undermined voting rights to cement artificial majorities, deployed billions in secret money to swing elections, tore apart Congressional norms and undermined the courts. These are not the acts of a government committed to the preservation of a functioning democracy, but rather an entrenched elite intent on domination.
American voters are slowly recognizing that for all their high-minded rhetoric, the right-wing movement’s chief concern is perpetuating their stranglehold on power.
It would be easy for Canadians to discount this moment as an aberration, limited in scope to a failed ideology with a death grip on American institutions. We sit back and proudly proclaim that this could never happen in Canada. We are better than them. We wouldn’t be fooled.
But we are wrong. Canada’s right-wing sees in Republicans not an embarrassment to be shunned, but rather a model to be imported.
The Path Not Taken
The Charter of Rights and Freedoms is something most Canadians cherish, but Conservatives abhor. It limits the supremacy of Parliament, subjecting laws to court challenges and Charter tests. Conservatives view it as a limit on small government free market ideals, a wall holding Canada back from a libertarian paradise envisioned by conservative heroes Milton Friedman and James Buchanan.
Stephen Harper understood this. His disdain for the courts was legendary. His actions related to the courts were less about punishing criminals and more about placing restrictions on judges’ ability to interpret and rule on laws. The goal was to shift power back to the parliament, where Harper’s Conservatives held power.
Harper’s signature legislative achievements were struck down time and time again. Mandatory minimums, assisted suicide, laws targeting sex workers: legislation that would have significantly pushed our country to the right was overruled by the courts.
This culminated in Harper’s famous outburst and denunciation of Supreme Court Chief Justice Beverley McLachlin. Harper claimed McLachlin was interfering in his appointment of Federal Court Judge Marc Nadon to the Supreme Court. Author and journalist John Ibbitson explained Harper appointed Nadon partially because of his record of “judicial deference”, a phrase beloved by conservatives across North America, where judges defer to the will of elected officials.
Ibbitson also wrote that Harper’s political staff “talked the prime minister down from launching a full, public assault on the impartiality of the Court”.
It is at this point that confusion arises. Harper had the power to overturn the Supreme Court. The notwithstanding clause would have given Conservatives what they always wanted – unchecked power to overrule the Charter and remake Canada in their image.
The option was available. All it required was political will. And in a different era, Harper was reluctant to categorically state he wouldn’t use it. But time and time again, he demurred.
Welcome to Ford Nation
Harper’s legacy wasn’t the grand remake of Canada that Conservatives envisioned.
Rather, it can be defined as a period of incrementalism, a legislative record that was quickly undone when the Conservatives were defeated and Justin Trudeau’s Liberals took office.
Conservatives tasted power, but they refused to act. Doug Ford would not make the same mistake.
Ford, not Stephen Harper, is Canadian conservatism in its most advanced form. He is the closest reflection of Republican-inspired, single-minded obsession with the accumulation of power and the execution of one’s “mandate” at all costs.
It’s impossible to stay focused on any one of his actions long enough to feel appropriate outrage. Cancelling cap and trade, ending Ontario’s basic income pilot, slashing worker disability payments, cutting welfare, remaking marijuana laws, reversing Ontario’s sex-ed curriculum, cancelling the $15 minimum wage. The breadth of these changes would account for a full term in any normal government, not one summer.
Stephen Harper’s incremental conservatism is officially dead, killed by a man who will do anything to achieve right-wing goals.
Ford is himself an outsider, which may explain his actions. He is a Conservative, true. He’s always voted Conservative. But he is no Jason Kenney, seeped in Canada’s Conservative movement since birth, watching as his religious orthodoxy crumbles before his eyes. Ford did not spend his thirties like Andrew Scheer, presiding as Speaker of the House, becoming an expert in parliamentary procedure. He’s no John Baird, Albany Club member, parlaying his foreign affairs experience into lucrative board appointments and questionable relationships with foreign governments.
Ford is something else.
He is the man of Ford Fest. Unlike many of Canada’s modern-day Conservative heroes, he has actual business experience (even if it was handed to him by his father). He publicly supports Donald Trump, and openly doubts the more than 20 women who accuse Trump of sexual assault. It took him four days to acknowledge that it was wrong for him, Premier of Canada’s most populous province, to associate with white supremacists.
Can you imagine Harper doing something similar? How about clean-cut John Baird? Their position in the more traditional Conservative establishment would never permit it.
Baird, Harper, and the like all chafed against the norms Ford now flouts — but none were willing to simply ignore them. Perhaps they feared the political or social consequences. It turns out they needn’t worried.
There is No Hero
Nothing symbolizes Canada’s conservative movement’s embrace of power more than Ford’s use of the notwithstanding clause.
The sorry truth? Conservatives want this. They’ve always wanted it. Years of railing against the courts, the Charter and the elites has culminated in this singular action.
And now that they’ve got a taste, they want more.
This shouldn’t surprise anyone. Canada’s Conservatives, more so than any other political organization or movement in Canada, understands the rules have changed. They look across the border for inspiration. Leaders like Harper and Kenney cheer on far-right European dictators. The world is tilting rightward, and they want to be part of it.
Ford reflects a new conservative movement. Its participants consume Rebel Media, absorb the mad ravings of columnists like Joe Warmington and Christine Blatchford, and detest liberal “snowflakes”.
To them, Ford is not a disgrace, or an embarrassment to be avoided — he is what they have been waiting for.
Ford understands, much like Republicans, that the courts are a barrier that must be overcome to accomplish their goals. Republicans understood this, so they stacked the court, held up Obama’s Supreme Court nominee, and are ramming through the nomination of a right-wing political operative. The American Constitution stands, but its enforcer is hobbled, controlled for the next generation by right-wing apparatchiks like Gorsuch and soon-to-be Justice Kavanaugh.
In Canada, the Charter exists, but it’s relevance could soon fade as Conservatives inevitably turn the notwithstanding clause into an afterthought, wielded as a normal tool of any right-wing governing agenda.
There are no saviours sitting and waiting in the backbenches. Plaintive calls for Conservative MPPs Caroline Mulroney, Christine Elliott or Vic Fedelli, lauded as traditional Conservatives, are met not with silence or cowardice, but round after round of standing ovations as Ford recites his creed “for the people”. Even in the face of calls to apologize for standing toe-to-toe with a vile white supremacist, his MPPs turned away, visibly uncomfortable but unwilling to act.
The Conservative caucus recognize the truth: Ford’s steamroller style of governing is delivering the goods. Why would they interfere with that?
Andrew Scheer, the mild-mannered, institutional Conservative supports Ford’s decision to use the notwithstanding clause. He’s refused to say if it’s a good idea, But he’s already committed to using all powers available to achieve his own policy goals. Other right-wing leaders like Brad Wall also back Ford’s move.
And in Quebec, new rightwing Premier François Legault has promised to invoke the clause to ban government workers from wearing religious garb.
The floodgates, more so than at any point in recent Canadian history, are now open. Under conservative rule, the Charter will become a footnote, the notwithstanding clause used as a normal tool in the legislative process.
Harper’s idea of incremental conservatism is dead. And not one Conservative — not even Harper himself — attended its funeral.
The Kavanaugh nomination and the willingness of his allies to overlook his lying and crimes to get what they want should terrify not only Americans, but Canadians as well.
Conservatism, as represented by Republicans, Trump, and Doug Ford doesn’t care about rule of law, or norms, or anything else that pundits and the political class have typically claimed to hold dear.
It cares about power, and how it can best use power to implement policy that benefits the elite.
The spectacle of an accused rapist, seething at the injustice of being held to account for his actions, denouncing his political opponents, and wielding untapped power for the rest of his life is deeply disturbing. Yet checks and balances exist. There are eight other justices on the court and a mechanism for impeachment, no matter how unlikely, is still a reality.
None of that exists here. The only check on Doug Ford Conservatives is the people. If we are going to block Ford and his allies, we will have to organize a real opposition. Waiting for someone or something else to save us can only end in our defeat.