‘Liberal’ Supreme Court rulings alarming
The dust is still settling from last week’s historic ruling of the Supreme Court in the matter of euthanasia. One early casualty: judicial restraint, the fading notion that the courts, in interpreting the law, should be bound by … something — the written text, the historical record, precedent, logical consistency. One by one, the court in recent years has liberated itself from these constraints; with the legalization of “assisted death,” it has slipped free altogether.
Indeed, the record will show it was the Conservative Prime Minister Stephen Harper who presided over, indeed selected, the most liberal-activist court in our history. Not just liberal: activist.
On the first half of that statement, there can be no argument. This is indisputably Harper’s court. He appointed seven of the nine judges. Of these, two — Marshall Rothstein and Thomas Cromwell — were appointed while the government was still in a minority position. The other five — Michael Moldaver, Andromache Karakatsanis, Richard Wagner, Clément Gascon and Suzanne Côté — were appointed in the last four years, after the Conservatives had won their long-sought majority. If the court more and more resembles a runaway train, it is Harper’s train, as it will be Harper’s wreck.
Indeed, there is but one Liberal appointee, Rosalie Abella, on this most liberal of courts, Chief Justice Beverley McLachlin having been appointed by the Conservative Brian Mulroney. Yet in one decision after another — prostitution, hate speech, the Nadon and Senate references, the right to strike — the court has taken it upon itself of late to push the boundaries of Canadian law to the limit, going where no previous Supreme Court would have dared. In some cases it has ignored precedent, in others it has rewritten the constitution. In the aggregate it has become almost impossible to discern any coherent underlying philosophy in the Court’s rulings, or to predict with any confidence how it will rule on a given question.
’Twas ever thus, of course — up to a point. The courts will inevitably put someone’s nose out of joint no matter how they rule, and while conservatives have long railed against “judicial activism,” they too often seem to mean any exercise of judicial review: the mandate, assigned to the courts by Parliament, to compare the law in front of them with another, more fundamental law — the Constitution — and to the extent of any discrepancy between the two to declare the former to be of no force or effect.
What makes a decision “activist,” then, is not merely that it results in this or that law “passed by a democratic Parliament” being overturned, but whether it does so in accordance with Parliament’s own previously expressed wishes: that is, whether the grounds for the decision can in fact be found in a sensible reading of the Constitution, or whether the court made it up. Even allowing for some difference of opinion over what is reasonable, it is clear that not every such reading can be defended, as it is sometimes clear that no reading was even tried.
Here again, this is nothing new: activism was with us, in one form or another, long before the Charter, as for example in the decisions of the Judicial Committee of the Privy Council that essentially eviscerated the strong federal government the authors of the British North America Act had envisaged scant years after they drafted it.
But on its current tear, the court has ventured much further into the long grass than ever before. It isn’t its radicalism I mind: I think the prostitution decision was wholly justified in the name of Charter guarantees of “security of the person,” even if it made life difficult for the government. It’s the absence, all too often, of any rational basis for its rulings — the sometimes cheery disregard for the whole concept — that is beginning to become alarming.
Indeed, in its 2013 decision upholding the Saskatchewan Human Rights Code provisions against hate speech, the court amply demonstrated that activism can be as much a matter of omission as commission. The court has always been wobbly on speech cases but it had never before gone so far as to justify restricting speech in the name of freeing it (a failure to ban hate speech, it mused, might be “more rather than less damaging to freedom of expression”) or to suggest that truth was no defence (“the use of truthful statements should not provide a shield in the human rights context”).
That was perhaps an early warning sign of a court that was going off the rails. From there, it was on to the Nadon decision (on the eligibility of Federal Court judges from Quebec for appointment to the court) involving not only an unusually selective, not to say capricious reading of the relevant act, but an assertion of a wholly fictitious legislative record from which the court prudently did not bother to quote.
The Senate reference was nearly as bad: the court found, on the strength of a vague unease about the constitutional “architecture,” that a provision allowing “significant changes to the powers of the Senate and the number of senators” did not allow them to be as significantly changed as all that: or at any rate that they could not be changed to zero.
But it is with its last two decisions that we find a court seemingly detached from any intellectual moorings whatever. The decision finding public employees, even those deemed essential, have a constitutionally guaranteed “right to strike” seems to have been drafted, as the two dissenting judges noted, as if workers were still doffing their cloth caps to their 19th century overlords.
As for the euthanasia decision: what can one say about a ruling that finds a right to death in a section of the constitution devoted to the right to life — that does so in breezy defiance, not just of Parliament’s stated preferences, but of the court’s own ruling in a similar case, rendered two decades before? The court goes to elaborate and unconvincing lengths to suggest it had been moved by changes in “the matrix of legislative and social facts” since then. The reality, one suspects, is rather simpler. It did it because it wanted to.