Conservatives, the Supreme Court, and the Constitution: Judicial-Government Relations, 2006-15

Abstract

Three high profile government losses in the Supreme Court in late 2013 and early 2014, combined with the government’s response to those losses, generated a narrative of an especially fractious relationship between the Conservative government of Prime Minister Stephen Harper and the Court. This article analyzes this narrative more rigorously by going beyond a mere tallying of government wins and losses in the Court. Specifically, it examines Charter-based invalidations of federal legislation since 2006, three critical reference opinions rendered at the government’s own request, and two key judgments delivered in the spring of 2015 concerning aboriginal rights and the elimination of the long-gun registry. The article argues that the relationship between the Conservative government and the Court from 2006 to 2015 was much more complicated than the “fractious relationship” narrative would suggest. However, the Conservative government did adopt a more consistently confrontational approach in its legislative responses than its predecessors.