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opinion B A C K PA G E BY EZRA LEVANT Harper's not that radical courts. On New Year's Eve, Ontario's Superior S Court ruled in favour of the Conservative party in an unusual legal fight. The Tories insisted on returning $591,000 to Elections Canada, which refused to accept it. The court sided with the Tory view that they shouldn't be able to keep an election subsidy for GST expenses and a GST rebate. It sounds odd that politi- cians would give money back — until you realize that the rule would apply to the less well-off opposition parties, too. Weeks later, the Tories beat Elections Canada again, this time at the Federal Court. An obscure accounting practice, where Conservative candidates received rebates for their share of $1.3 mil- lion in pooled radio and television ads, was upheld as legal. The practice was dubbed the "in-and-out" scandal by the opposition, though it was too arcane to attract widespread public attention. A court victory for Elections Canada would have been easier to understand, but it never came. Those were just party lawsuits; the government itself is on a winning streak too. In January, the Supreme Court of Canada declined to hear an appeal by the Canadian Wheat Board, which had unsuccessfully tried to peel off a politi- cal gag order from Ottawa. Harper had directed the board not to engage in an advocacy campaign against his plans to reform it. Opposition critic Ralph Goodale called the gag order "thuggish," but the courts called it perfectly legal. And then there was the sexiest case of them all: the Supreme Court's review of a Federal Court of Appeal ruling ordering the government to repatriate Omar Khadr, the Canadian being held at Guantanamo Bay on charges of murder- ing a U.S. soldier in Afghanistan in 2002. In a unanimous ruling, the Supremes tephen Harper may have a minor- ity in the House of Commons but he's been winning majorities in the to defang the CHRC without MPs taking any political risk for it. So is there a romance between judges and the Conservatives? Not really. Some of these cases were wins on narrow technical grounds, not broad public policy debates. Whether or not the GST can be refunded twice isn't an ideological question. Declaring any law unconstitutional is controversial, but is there any sizeable group in Canada, on the left or the right, that could be called pro-censorship? What, then, about the Khadr case? overturned the repatriation order, stating the cabinet "is better placed to make such decisions" and "the impact on Canadian foreign relations . . . cannot be properly assessed by the court." They did ask the government to remedy, in its own man- ner, the fact that Canadian agents inter- rogated Khadr "unconstitutionally" in 2003 and 2004. The government's com- pliance was precise: it sent a diplomatic note to the U.S., asking it not to use any information gathered in those interviews in the prosecution of Khadr. Problem solved. My favourite court win was actually a nominal loss for the government. Last September, for the first time in 32 years, the Canadian Human Rights Tribunal dismissed a "hate speech" complaint brought by the Canadian Human Rights Commission. It didn't just dismiss it, but declared it unconstitutional. It's hard to call that a win for Harper — the Department of Justice sent law- yers to intervene to uphold the law. But they had been dispatched under Paul Martin's government, and by the time final arguments came, they seemed half- hearted. And when the CHRC appealed, the Justice Department made the striking decision not to join. When was the last time Justice didn't try to uphold one of its own laws? The decision suits the govern- ment just fine — and allows the judiciary 46 Ap R il 2010 www. C ANAD i AN law ye rmag.com Surely there is no greater hero on the left than Khadr. It wasn't just Khadr's treatment on trial; it was the entire war on terror. It was George W. Bush, even though Barack Obama is now the jailer of Guantanamo; it was Harper's foreign pol- icy, even though it was Martin's govern- ment that illegally interrogated Khadr. Richard Fadden, the new director of the Canadian Security Intelligence Service, points to a "loose partnership of single-issue NGOs, advocacy jour- nalists, and lawyers" who portray ter- rorists as "quasi-folk heroes." But that's the problem. The media-legal industrial complex was just an echo chamber for people agreeing with each other. Like the mainstream media, the legal acad- emy is frightfully uniform in its think- ing. The radical idea that a judge could usurp foreign policy might look fine in a law journal or an editorial page, but not one actual Supreme Court justice was willing to sign his or her name to such a revolution. A 5-4 ruling against Khadr would have come as a shock to the academy; the 9-0 ruling has stunned it into silence. Turns out Harper isn't as radical as those who most loudly accused him of it. Ezra Levant is a Calgary lawyer and author. He can be reached at ezra@ ezralevant.com. SCOTT PAGE