In March 2015, Andrew Coyne launched a spin on judicial activism that triggered an itch for rebuttal, and thus the contents of this editorial.
He stated, quite boldly, that the Supreme Court is pushing the “boundaries of Canadian law to the limit going where no previous Supreme Court would have dared”.
In his view, the Court’s recent rulings highlighted the hallmarks of “judicial activism”.
I cannot help but disagree with Mr. Coyne’s contention, and disagree with much conviction.
In so doing, I write to dispel the fiction that is judicial activism, a concept that finds its genesis in journalistic writing in the United States, which slowly trickled its way into Canada, becoming ever more pronounced in 2014.
[1] Judicial activism was in fact coined by a journalist, and is a fiction at best.
In the (paraphrased) words of Arthur Schlesinger Jr., an American journalist who coined this term in 1947, judicial activism is the tendency for judges to make, as opposed to simply interpret the law; the willingness of courts to issue rulings reversing or altering the legislative enactments of Parliament and the provincial legislatures and the inability of legislatures to effectively respond to such rulings.
Put simply, it is the absence of any rational basis for rulings.
Realistically, however, the role of the judiciary is not simply to conjure up a position, craft a new law, and fire it off into the public domain (at least, that’s not how it’s done in Canada).
Instead, there exist a set of sculpting tools from which legal interpretation is crafted. The tools come from a box containing aids that, when used in tandem with one another, engender judgments. That toolbox contains the Constitution Act, 1867 and of 1982, case law, legislation and judicial discretion, to name a few.
With these tools at play, it is dangerous to assert that the Court simply “makes things up” simply because we, as a public, diverge from its dispositions on controversial legal matters.
Conflating controversial issues with controversial judicial thinking is a red herring. The latter does not equate the former, nor is it enmeshed with it or necessarily reliant on it.
In an age in which the legislature sees it fit to undermine judicial discretion, rigorous interpretation of the law may appear to be glaring, but the simple truth underneath is this – it is the role of the judiciary to vigorously defend and uphold the Constitution. The results of that exercise will vary and interpretations will seldom be universal.
Judicial thinking is not a science. It is not akin to the work of a surgeon, an engineer or a scientist. It is an art – malleable in its own right, and colourful in its evolution.
[2] Activism lives in the House of Commons and the Senate.
For the sake of accuracy, Mr. Coyne’s assertion should be re-worded as such to reflect the reality that befalls our great nation:
“The Harper government is pushing the boundaries of Canadian law to the limit going where no previous federal government would have dared.”
Apparently, I’m not alone in making this proposition (See defence lawyer Michael Spratt’s recent editorial on judicial activism).
In fact, the federal government consistently exhibits indicia of “going where no federal government would have dared” in its pronouncements on mandatory minimums, negligible legal justifications for intervening in Iraq, unlawful health cuts for refugees, thwarting the constitutional right to strike with back-to-work legislation, enhanced surveillance provisions for intelligence agencies, and an illusory tough on crime policy playbook (which, by the way, runs contrary to prevailing social science research which confirms, time and time again, that tougher penalties do not deter crime).
The list goes on. I will save your eyes from a belaboured point.
The result of this hodge-podge of political activism is that lawyers, at the behest of their clients’ unfortunate positions, have taken to the courts to pave the way for legal reforms. The calibre of advocacy in the legal community and the facts in the cases that drive litigation efforts art part in parcel of the changes in the law Canada experienced between 2014 and the present day.
But the backdrop on which these cases are predicated appear to be of little concern to Mr. Coyne.
Contention #1: In his opinion, the Court should be constrained in its decisions by “written text, the historical record, precedent, logical consistency”. He adopts the position that judicial activism, in light of recent case law from the Court, disregards these constraints.
With due respect to Mr. Coyne, the written text of the law is not hermetic. Trite as it is to repeat, the Constitution is interpreted in light of the living tree doctrine, one that accounts for the evolution of societal views and has existed really since the Persons Case in 1929. If Mr. Coyne’s assertion held proper, and the letter of the law were hard-mounted on cobblestone, the Queen of England could merely direct, by edict or otherwise, that Ottawa no longer be the capital of Canada (N.B. Section 16, Constitution Act, 1867: http://lois.justice.gc.ca/eng/Const/page-1.html).
The interpretation of the law is imbued with a need for constant transformation. In fact it’s often said to be “behind the times” by a decade or so, catching up to the weights of current societal expectations and norms. Some may even argue that the Court’s decision in Fearon, in which the Court conformed that police officers can perform a “cursory examination” on one’s phone upon arrest, is indicative of a reality that is “behind the times”.
But the law is not in the business of “constraining” judges in their thinking.
In fact, if you fuse a dose of good advocacy with judicial thinking, you often end up with a precedent that shakes the status quo. If constraint served as the guiding force for judge-made law, the need for the vestiges of institutions like the Supreme Court, and the hierarchy of all courts beneath it would disintegrate.
Contention #2: Mr. Coyne also submits that the lack of predictability at the Court is troublesome.
It comes as no surprise that we cannot predict what the Court will say when every case with which it grants leave to appeal is imbued with a question of national importance, many of which (admittedly within the last 2 years) emanate from an active legislature pumping out laws faster than it can rise for a vote in the House of Commons.
The right to die, appoint a Supreme Court Justice, unionize, hold a privacy interest in one’s computer, and sue a foreign government for damages – these are just a few of the quandaries that found their way to the Court within the last year.
No wonder the results are unpredictable.
The issues neither warrant predictability, nor necessitate it.
As the Court aptly reminds us in the Carter decision: “Stare decisis is not a straightjacket that condemns the law to stasis” (R v Carter, 2015 SCC 5 at para 44). In layperson terms, pre-existing judge made law does not confine the law.
[3] The Court’s Most Recent Rulings on Gun Laws in Canada Exhibit Rationales far from “Activism”, instead Evincing Elastic Constitutional Interpretation.
It is worth analyzing the two most recent pronouncements on gun laws in Canada to glean how activism has no place in the Court.
I turn first to Quebec (Attorney General) v Canada (Attorney General).
At issue was the constitutionality of section 29 of the Ending the Long-Gun Registry Act, requiring the destruction of all registries related to long guns. At the heart of that legislation was an inherent policy choice by Parliament.
Notwithstanding the policy angle of the federal government, the Court looked to the Constitution to spearhead its analysis, highlighting that the principle of cooperative federalism does not limit the scope of the federal government’s legislative authority, or mandate cooperation with the provinces if the Constitution legally permits it to act unilaterally.
In fact, what drove the wedge between the majority and the dissent was whether the federal government had the constitutional power, under the division of powers doctrine, to permanently purge all of the gun registry data.
One could easily dub the decision as “pro-federal government”, one that is at odds with the trends emerging from the Court within the last year.
But positing that view displaces discursive reasoning with scrape-the-surface thinking. It comes at the cost of disregarding how legal analysis actually works.
Wouldn’t an activist court have ordered the transfer of the gun registry data? Defied the federal government’s stance absent concern for unwritten and written constitutional principles?
I doubt that Canada’s highest Court predicates its wisdom on “activism” or the emotional likes of it.
Second, consider the Court’s most recent decision in the matter of R v Nur, 2015 SCC 15.
In Nur, the Court was tasked to determine whether the mandatory minimum of 3 years incarceration for possession of a loaded or unloaded prohibited or restricted firearm without being the holder of a license of the firearm in that place and holding a certificate, constituted cruel and unusual punishment within the meaning of section 12 of the Charter.
For decades, proving a section 12 application has relegated the accused to a high onus demanding proof that the law has a grossly disproportionate impact on both the offender and in the case of a “reasonable hypothetical” involving similar circumstances.
Section 95(2) is a hybrid offence, which means the Crown can elect summarily or indictably, the latter triggering a 3-year minimum custodial sentence, and the former no mandatory minimum. The Court declared section 95(2)(a), the provision mandating a 3 year minimum sentence, of no force or effect.
Using decades of established section 12 case law, the Court refined the test for a section 12 application to account for reasonable, hypothetical situations expected to capture similar conduct of the offence in question.
Writing for the majority, Chief Justice McLachlin highlighted that the person whose gun is safely stored in a home where they are not licensed to store it, perhaps unbeknownst to that individual, could very well be captured by the impugned provision, triggering a 3 year mandatory minimum for what is, effectively, a regulatory licensing offence. She was not convinced of the argument proffered by the Attorney General positing that a grossly disproportionate sentence could be averted by prosecutorial discretion simply because the crown could elect summarily to avoid a mandatory minimum.
Interestingly, nearly half the Court was split. Writing for the dissent, Justice Moldaver called for deference to Parliament in respect of public policy legislation which evinced a clear intention to reduce gun-related crime in Canada, and preserve public safety. He goes so far so to quote Hansard to reveal Parliament’s intentions surrounding this particular mandatory minimum. The dissent parted ways with the majority by asserting that prosecutorial discretion served as a safeguard to avoid mandatory minimums that were grossly disproportionate, proposing a review of the crown’s actions, rather than a reasonable hypothetical analysis, when assessing whether a mandatory minimum is grossly disproportionate.
This is the same learned and revered Justice who, in November, declared the existence of a continuing expectation of privacy in wiretap intercepts.
So yes, ideologically, it’s hard to predict where the decisions will fall, but that’s because the decisions are fact-dependent.
CONCLUSION: What is left when we subtract judicial activism from the equation is a clear picture of the interplay between the separation of powers in Canada.
What can be gleaned from these two decisions is transformative judicial thinking in respect of the Constitution and the Charter. When faced with daunting questions of national importance, the results yield rigorous legal analysis. They push the Court to consider jurisprudence that has developed for decades, and continues to evolve in keeping with the living tree doctrine.
Make no mistake: the legal system is constantly being tested by constitutional challenges. That is the axis upon which the law operates.
So what’s wrong with running diagnostics on the system and its constituent elements? Testing the system does not entail sending darts into the air in search of a policy standpoint located somewhere in the cosmos when rendering these decisions.
What is evident is not a stage for judicial activism. Rather, it is a reflection of the efficacy of the separation of powers between the judiciary and the legislature – a constitutional principle essential to a functional democracy and for the checks and balances once dreamed of by the likes of John Locke and his successors.
It is very easy to conflate the outcomes resulting from the powers of these checks and balances with “judicial activism”. But doing so comes at the cost of misunderstanding the Court’s rationale in these decisions and most importantly, misconstruing the unique role of the Supreme Court as an institution. After all, the Charter is still relatively nascent in the grand scheme of constitution building, and like many of us on a human level (for the sake of personifying a little), it will undergo much transformation before it reaches the age of 30.
Reem Zaia, J.D. Candidate 2015, Faculty of Law University of Ottawa. The views in this piece do not represent the views of any past or present employers of the author, or any institutions in which she is a member, including but not limited to the University of Ottawa.
