Canadian conservatives have been using courts to thwart the Liberal government — and winning

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OTTAWA — The tiny team at the Canadian Constitution Foundation was split on what it expected from a major challenge against the federal government’s decision to invoke the Emergencies Act during the trucker convoy protests in Ottawa.

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CCF counsel Josh Dehaas told his colleagues before the decision last week that it “felt like a loss” was coming, while executive director Joanna Baron refused to consider that idea out of tightly held superstition.

Litigation director Christine Van Geyn would entertain “good vibes only” before the judge ruled.

But there was reason to be nervous.

“In Canada, the culture is such that there’s a lot of deference to government in the judiciary. So if you’re in the business of pushing back against government overreach, you’re going to probably lose more often than you win,” said Dehaas.

When the decision came down on Jan. 23, ruling the prime minister’s use of the Emergencies Act was neither justified nor reasonable, and violated the Charter, it was a clear and overwhelming victory for the plaintiffs. Not only did it send a shockwave through the political world, including the Liberals’ cabinet retreat then underway in Montreal, it shocked the CCF lawyers. Not least because the judge had given the CCF a direct shout-out for influencing his decision.

When Deputy Prime Minister Chrystia Freeland immediately announced the government’s intention to appeal, Van Geyn took to X to post the CCF’s informal response:

“BRING IT ON,” she wrote, in all-caps.

The federal government has been taking a beating in the courts lately. Before the Emergencies Act decision last week, another Federal Court decision shredded the government’s single-use plastic ban in November. And a month earlier came a stunning loss for the government on its environmental impact legislation.

Lawyers and legal experts are split on whether it’s because conservative legal groups have grown more sophisticated and organized in recent years, or because the Trudeau government’s pushing on jurisdictional boundaries has made it more vulnerable to court challenges.

Either way, the decentralized collection of advocacy groups, societies and individual lawyers that make up the closest thing to a conservative legal movement in this country has been riding high lately.

But even while the CCF celebrated their Emergencies Act victory, Dehaas wanted to make it clear that a lot of the credit belongs to Jason Kenney. The former Alberta premier had for years championed the use of court challenges to fight Ottawa, bucking against the general suspicion toward court-made law that conservatives normally hold.

When Kenney came to power in Alberta in 2019, he came in with a three-part plan to deal with the feds.

One: find common ground wherever possible. Two: when disagreements cropped up, work with other provinces to amass strength in numbers.

“Third, if none of that worked, go to a policy of confrontation, using all levers at our disposal, and obviously, that included court challenges,” said Kenney, now a senior adviser at Bennett Jones law firm in Calgary.

Kenney’s government was determined to energetically challenge policies it considered harmful to Alberta. Since he resigned as premier in fall 2022, some of those court challenges have been paying off.T

The most satisfying victory for him, Kenney says, was the October Supreme Court decision that ruled the federal government’s aggressive Impact Assessment Act was largely unconstitutional. Kenney had derided the law as the “no more pipelines act”: by forcing project applicants to consider everything from downstream emissions to gender impacts and traditional Indigenous knowledge, he said it caused intolerable uncertainty and confusion about major resource and infrastructure projects.

Vital to the effort, Kenney said, was getting as many other provinces on board as possible.

“It really did raise the stakes, I think, having all the provinces present arguing that it was unconstitutional. And I don’t think it was hyperbole for me to describe that as perhaps the most important decision on the nature of the federation in decades,” said Kenney.

Alberta also intervened in the hearings on the single-use plastics ban, which the Federal Court found was far too broad because it regulated all plastics as “toxic,” even though they aren’t. Alberta was also central in the fight by multiple provinces to challenge the constitutionality of the Trudeau government’s carbon taxing powers, but lost that one in 2021 at the Supreme Court after some success in the lower courts.

And, though few know it, Kenney’s government was a driving force behind the challenge against Trudeau’s use of the Emergencies Act in 2022. Dehaas said that it makes the CCF’s job easier when provinces join them in these court challenges, partly because it throws more lawyers at the problem, but also because the two sides can make different arguments.

Alberta’s intervening in the Federal Court challenge against the Emergencies Act, providing legal staff and support, and public comments made by Kenney in 2022, were vital for establishing that the Trudeau government wasn’t faced with a national emergency, which is required under the act. The act also requires that the emergency cannot be handled existing law-enforcement tools.

Alberta had resolved a combative trucker blockade connected to the Freedom Convoy at the U.S. border crossing near Coutts, Alta., using existing laws and police resources, and Kenney himself warned Trudeau that the Emergencies Act wasn’t necessary to deal with protesters. Alberta could convincingly argue in court that the convoy protests could be dealt with under existing laws, because that was the province’s own experience.

But even outside Alberta, the conservative legal movement has grown more vibrant in recent years, pushing into the legal mainstream with the CCF and the Runnymede Society, a northern startup somewhat similar to the influential Federalist Society in the U.S.

The Runnymede Society, which can loosely be described as centre-right but which prides itself on heterodox and anti-establishment views, has spread to all of Canada’s major law schools and has become a place for some of the brightest young law minds to network and argue about the law.

“In the long run, they’re going to play a very important role in allowing some young lawyers to take on board other perspectives than the most aggressive left-leaning charter views,” said Kenney.

The Justice Centre for Constitutional Freedoms, meanwhile, has been taking on less celebrated cases that allege government overreach, particularly involving vaccine mandates and censorship. A court challenge to Alberta’s pandemic restrictions filed by the JCCF resulted in a surprising victory last year because the judge found that the orders were effectively ordered by the cabinet instead of the chief medical officer of health. The decision meant that Crown prosecutors would no longer pursue pandemic-related cases in the province. The trouble for conservatives now is that the decision looked just like what they fear most: courts making law that take power away from elected representatives.

You're ending up with is a situation where people are confusing rule of law with rule by judges

The growing influence of these organizations is not just present in court challenges, but also the broader legal debate in Canada. When debate over the use of the notwithstanding clause intensified in 2022, it featured a lot of Runnymede alumni on both sides of the debate.

Still, not everyone is on board with this new centre-right effort to wage “lawfare.” Even some lawyers who don’t mind the outcomes of these recent cases still harbour that traditional conservative anxiety about turning to judges, rather than elected representatives, to decide big issues.

“What you’re ending up with is a situation where people are confusing rule of law with rule by judges,” said Stéphane Sérafin, a law professor at the University of Ottawa, who said this strategy could come back to haunt conservatives in the long-run.

Sérafin said he generally agreed with the conservative advocacy groups on the issues before the courts, but had major concerns about the strategy.

“I would be very concerned with this idea that a Conservative-led government, for example, would suddenly find every single one of its decisions reviewed by a court because the court has decided take a very narrow view of the discretion granted to it by Parliament,” said Sérafin.

For many of the lawyers and politicians involved in these legal battles, that argument is either unconvincing or irrelevant. Kenney argues that the scales are so imbalanced against conservatives in the courts that they have no choice but to fight a rearguard action.

The former premier even chalks up his victories to fighting on jurisdictional grounds — namely, federal infringement on provincial rights — rather than on pure charter rights.

“That’s pretty black-letter law. There’s not terribly large room or latitude to conjure out of thin air new standards of jurisprudence like they’re able to do much more easily on the charter,” said Kenney.

As far as concerns about “lawfare,” Kenney said he’s long past worrying about that.

“That ship sailed 40 years ago. So, that was a lovely argument, perhaps, in the 1980s, and ’90s. But if we simply abandon a judicial advocacy to the left, there will be predictable outcomes,” said Kenney.

National Post

stthomson@postmedia.com

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