Calgary School v. Supreme Court of Canada: Reference re Senate Reform, Reference re Supreme Court Act, Canada v. Bedford Kirsten Andersen Ph.D. Candidate, York University Canadian Political Science Association Annual Congress 2017 31 May 2017 Ryerson University, Toronto Table of Contents I. Introduction 1 a. Calgary School Members 2 b. Principles 2 II. The Cases: 4 a. Reference re Senate Reform 4 b. Reference re Supreme Court Act 6 c. Canada (Attorney General) v. Bedford 10 III. Conclusion 15 Works Cited 16 “[W]e will not cease from mental fight, till we have built a Hayekian Jerusalem in Canada’s green and pleasant land.”1 -Tom Flanagan, ‘Advice to Progressives From the Calgary School’ I. Introduction This quotation is intentionally absurd, however, it also reflects the most extreme attitudes of a group of Canadian conservative thinkers and political actors known as the Calgary School (‘the School’). Referred to as “a rambunctious, Rocky Mountain brand of libertarianism that has become synonymous with Western alienation,” the Calgary School advocates limited govern- ment, powerful provinces, and unfettered democracy.2 This paper will take the Calgary School perspective and apply it as an analytical lens for examining three decisions by the Supreme Court of Canada (‘the Court’) that illustrate the rela- tionship between Parliament and the judiciary at the tail-end of the Harper era. First, the paper will consider Reference re Senate Reform (hereafter the Senate Reference), where the federal government referred questions to the Court concerning potential changes to the Senate of Cana- da. Second, the paper will consider Reference re Supreme Court Act, ss. 5 and 6 (hereafter Supreme Court Reference), which addressed and rejected the attempted appointment of the Hon- ourable Marc Nadon to the Court. Third, the paper will consider Bedford v. Canada (Attorney General) (hereafter Bedford), where three provisions concerning prostitution in the Criminal Code were struck down as unconstitutional. Each of these judgments reflects an area of disagreement between the federal government and the Court that generated a significant degree of political contention. Interpretations of earlier and similarly controversial rulings were offered by the Calgary School following the introduction of the Charter of Rights and Freedoms (hereafter the Charter) in 1982. The School had probed these Court decisions to determine their political precipitants and consequences, and overall im- plications for policy. The analysis undertaken here will unpack the School’s conceptualization of democracy and its particular concerns with the legitimacy of judicial contributions to policy for- mation processes. The School’s notions of individual liberty, government accountability, and rep- resentative democracy are a distinctly Canadian adaptation of classical liberal theory’s most en- during ideas. Far from losing their relevancy, the School’s interpretations of Canadian constitu- tional jurisprudence are helpful for explaining both the outcomes and political circumstances precipitating three politically charged Supreme Court judgments from the past few years. The hegemonic ideologies animating the School are still widely held today by powerful political ac- tors, and for this reason, must be robustly understood. Only then may they be meaningfully chal- lenged and alternatives proposed. This paper will proceed by first explaining the views and ideological underpinnings of the Calgary School by providing an overview of writing by some of its members. The paper will then turn to my selection of the Court’s constitutional judgments, and interpret them using the School’s lens. These interpretations will give equal consideration to the judiciary’s actions and 1 A sardonic excerpt from Flanagan’s ‘Advice to Progressives From the Calgary School’ as featured in Literary Re- view of Canada magazine, December 2010. 2 Mcdonald, Marci, ‘The Man behind Stephen Harper’, The Walrus, Web, 29 Sept 2014 !1 those of the relevant elected representatives. There will be no attempt to moderate or justify the School’s convictions.3 a. Calgary School Members Much like members of any ‘school’ of thought, adherents of the Calgary School do not always explicitly identify themselves as such. While there are numerous students of the School, its founders and most prolific members are an assortment of political figures, academics, and elected representatives. Situated at the School’s centre are its thinkers and educators, namely Barry F. Cooper, Tom Flanagan, Ted Morton, Rainer Knopff, and David Bercuson. The School’s unofficial (but widely recognized) members include mainly right-wing Western Canadian politi- cal actors. These include former federal Official Opposition Leader Preston Manning and former Alberta Official Opposition leader, Danielle Smith.4 As a partisan of the aptly named Reform party, former Prime Minister Stephen Harper established himself politically in the company of the Calgary School members. While it would be misleading to designate Harper as an adherent of the School, the School's beliefs and activities have had an undeniable influence on him. No- tably, Harper’s former chief of staff, Ian Brodie, is claimed by the School’s members as one of their own.5 b. Principles The Calgary School’s principles are most clearly articulated in the writings of its thinkers that have taken up the issues of Meech Lake, Quebec sovereignty, Aboriginal rights, and the ‘problem’ of judicial activism. Concerning the last issue, the School’s opinion is expressed in Ted Morton and Rainer Knopff’s cri de coeur: The Charter Revolution and the Court Party. In this book, Morton and Knopff articulate some of the School’s central ideas that inform the analysis undertaken here. They suggest that following the entrenchment of the Charter, interest groups and government institutions have heightened the Supreme Court’s influence and political power to unprecedented levels. This has facilitated judicial activism and led to a powerful Court capable of making impactful political decisions that come at the price of a well-functioning democracy.6 It is impossible to overstate the legal, political, and social significance of the Charter within Canada. Indeed, the School’s rise to prominence followed that of the Charter—towards which the School maintains a strong suspicion. Rather than the quiet judicial aura that surrounds post-Charter jurisprudence, the School prefers the “sound and the fury” of legislative debate.7 3 Rather, it is some of the School’s more problematic ontological and epistemological commitments that are high- lighted here. My critique considers their most prominent and visible examples. This assessment expresses the hypo- thetical opinions of the Calgary School, regardless of whether they are explicitly and/or consistently identified as such. Opinions presented as belonging to the School are the product of both actual and imagined responses by its members. 4 Supra note 1. 5 Ibid. 6 Review of The Charter Revolution and the Court Party. Canadian Justice Review Board 7 F. L. Morton, and Rainer Knopff, The Charter Revolution and the Court Party, (Peterborough, Ont.: Broadview, 2000) p. 13, 158 !2 Understanding what the School stands for first requires an understanding of what it de- cries. In The Charter Revolution and the Court Party, the terms “Charter revolution” and “Court Party” are used in an exclusively pejorative manner. The Charter revolution refers to a move- ment away from a parliamentary supremacy towards a constitutional supremacy, or, what the School sees as a problematic move towards is “judicial supremacy.”8 The School’s general con- cern is court engagement in policy decisions that subvert existing government legislation. Such subversions are undemocratic because they result in non-elected judges changing the policies of elected representatives. Since judges are not elected, their policymaking cannot be regarded as legitimate. The introduction of the Charter brought with it a judiciary that became more politically active and policy-influencing than ever before.9 Such a judiciary engages in judicial activism. Defined sympathetically, judicial activism is the “inclination by the court to be fairly bold about striking down laws and policies that contravene the constitution.”10 However, Morton and Knopff set out a more severe definition, and refer to judicial activism as the judiciary’s readiness to veto the policies of other government branches (particularly Parliament and legislatures) rather than defer to them. Simply put, the Charter revolution lies in the judicialized, legalized, and rights-based vernacular that defines contemporary policymaking.11 As the former Supreme Court Justice the Honourable Bertha Wilson put it: Thus, the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass. The role of the courts is to map out piece by piece, the pa- rameters of the fence.”12 The Court Party is best understood in reference to its participation in the Charter revolu- tion. Morton and Knopff state that the Charter revolution “is characterized by the rising promi- nence in Canadian public life of both a policy-making institution (the judiciary) and its partisans (the Court Party).13. The Court Party’s political interests can be broken into five “distinct (albeit overlapping) categories:” national unity advocates, civil libertarians, equality-seekers, social en- gineers, and post-materialists.14 The impact of the Charter revolution and the emergence of the Court Party on Canadian constitutional law and politics is not limited to Charter litigation. The Charter revolution has brought about an increase in the judiciary’s power and influence relative to other governmental actors that has permeated all government-court interactions. With the federal government’s sanc- tion the Charter has shifted the power dynamic between the different branches of government 8 The Charter Revolution and the Court Party, supra note 7, p. 13 9 Ibid. 10 Robert J. Sharpe and Kent Roach, The Charter of Rights and Freedoms (Toronto: Irwin Law, 2013), p. 441 11 Supra note 7, p. 15, 21 12 Justice Bertha Wilson, R.