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Did Harper lose, or is it a win in disguise?

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Prime Minister Stephen Harper participates in a question and answer session with the Greater Kitchener Waterloo and the Cambridge Chambers of Commerce in Kitchener, Ont., on Friday.

NATHAN DENETTE / THE CANADIAN PRESS Enlarge Image

Prime Minister Stephen Harper participates in a question and answer session with the Greater Kitchener Waterloo and the Cambridge Chambers of Commerce in Kitchener, Ont., on Friday.

When is a loss not a loss?

On Friday, to virtually no one's surprise, the Supreme Court of Canada opined fundamental changes to the way we select senators or limit their terms cannot be affected without the support of seven provinces totalling at least 50 per cent of our population. Further, abolishing the Senate would require support from all provinces.

Prime Minister Stephen Harper, who asked the Supreme Court for its opinion on the matter, sounded unusually resigned about the top court's decision.

"I think given the Supreme Court has said we're essentially stuck with the status quo for the time being, and that significant reform and abolition are off the table, I think it's a decision that I'm disappointed with but I think it's a decision that the vast majority of Canadians will be very disappointed with," Harper said.

Of course, that's not what the Supreme Court said in its decision. It only reminded the prime minister that fundamentally changing our system of government by eliminating the upper chamber is something that requires strong provincial direction and, ultimately, approval. And perhaps that a change like this shouldn't be easy.

Senate reform could be one of Harper's hallmark accomplishments if he wanted to bring the first ministers together and talk. But he won't, because it's just too much work.

At first blush, it appeared just another crushing blow for a government that is consistently wiffed when it comes to recent decisions from the top court.

On the one hand, it's not hard to imagine the Tories fuming at the insolence of the courts for repeatedly derailing their legislative agenda. It's entirely possible, however, Harper not only didn't expect to win this Senate challenge, but didn't want to.

Reforming or abolishing the Senate is so much work, and virtually no one with a modicum of knowledge about the Constitution thought Harper was going to get a green light to expunge the Senate with a bill and a majority mandate in the House of Commons.

So, perhaps the prime minister expected to lose.

This is, after all, a man who leads a party and government that has a lot to gain by fencing with the Supreme Court. Core Tory supporters hate the courts in general and the Supreme Court in particular. Defeat has only solidified his credentials as a martyr to the populist cause.

If the Tories have calculated that, even in defeat, they can be winners in the hearts and minds of their fiercest supporters, then the past two months have been quite the success story. The Conservative government has now been turned back five consecutive times by the top court on a variety of different legislative or administrative matters.

In March alone, the Supreme Court upheld challenges to legislation that attempted to limit early access to parole for non-violent offenders and to force convicts to go through a laborious Federal Court process to challenge prison transfers. The court also rejected the appointment of Justice Marc Nadon to its bench, determining he was ineligible under current rules.

The hits kept coming in April when, in another unanimous decision, the court rejected a bid by the Tories to curb the judicial practice of awarding 1.5 days' credit for time served in custody prior to sentencing.

Two months, five rejections by the Supreme Court. It's enough to make you wonder if the Conservatives have grown tired of the rule of law.

Governments regularly vet draft legislation to ensure, in the interests of all citizens and the traditions of democracy, it does not violate any aspect of the Constitution or the Charter of Rights and Freedoms.

Sometimes, the vetting process involves getting a Supreme Court opinion, especially when particularly muddy issues are at stake. However, this is not the track record of a government using the courts for guidance on legislative matters. The Tories keep throwing their best pitches at the top court, and the justices keep fouling them off.

There is no doubt this government would prefer to eliminate all pre-sentencing credit for convicts, take away their rights to oppose prison transfers, or possibly eliminate parole altogether. As for appointments to the top court, it's hard not to conclude Harper would dearly like to see men and women with a much more liberal (pun intended) interpretation of what the Constitution allows and doesn't allow.

Even so, this record seems like a no-lose proposition for Harper. In fact, Harper looks and sounds like a man who has already calculated the political benefits of losing to the courts as we head toward a 2015 fall election.

When is a loss not a loss? When you can bundle together a bunch of small setbacks and mould them into a potent political strategy. And that's a win.

dan.lett@freepress.mb.ca

Republished from the Winnipeg Free Press print edition April 26, 2014 A15

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