No doubt there were a lot of heads nodding during Supreme Court Justice Malcolm Rowe’s recent speech to the Runnymede Society, a conservative legal group.
The theme of the speech, in part, was the perils of Judicializing Everything, to quote the title of a recent book. When decisions on important issues are made through the courts, he warned, rather than through politics, “the final decision-makers become judges, not those who are elected.”
Issues that might have been sorted out through the messy compromises of politics instead become all-or-nothing, up-or-down exercises of judicial fiat. “Court cases,” Justice Rowe reminded his audience, “tend to be ‘winner-take-all’ contests. If you can win big in court, why compromise through elected institutions?”
But wait a minute: Runnymede Society. Runnymede Society. Isn’t that the law-school wing of the Canadian Constitutional Foundation, the conservative legal advocacy group that intervened to such effect in Canadian Frontline Nurses v. Canada (Attorney General)?
That was the case, you’ll recall, in which Federal Court Justice Richard Mosley lately found the federal government’s use of the Emergencies Act to break up the Ottawa convoy mob was unlawful: both ultra vires the Act and in violation of the Charter of Rights. Had it not been for the interventions of the CCF, the judge noted, he might not have ruled the way he did.
That’s hardly the only recent court victory for conservative causes. As Stuart Thomson writes in the National Post, “the federal government has been taking a beating in the courts lately.” Before the Mosley ruling, there was the November Federal Court decision overturning the federal ban on single-use plastics, and before that the Supreme Court ruling carving up one of its signature environmental laws, the Impact Assessment Act.
Conservative opposition to “judge-made law,” it seems, is rather less absolute than previously suspected. Over the years it has often seemed as if conservatives were opposed to any court decision invalidating any law – as if judicial review were, in and of itself, “judicial activism.” But it turns out that was wrong. It’s only activism if a court rules in a way conservatives dislike.
To be clear, it is a good thing to see conservatives clasping the Constitution to their breasts. (I speak from some experience: many years ago I sat on the CCF’s board of directors.) Conservatives have often sounded and acted as if the Charter, in particular, were a bad dream from which they would soon wake up. To see them invoking the Charter before the courts, rather than pining for its abolition, is a welcome sign of maturity.
And conservatives are right to think ill of judicial activism – that is, of reading things into the Constitution that plainly aren’t there and were never intended to be. We can disagree on whether this or that decision should be so described and still agree it is something to be avoided. If you want the Constitution to mean something other than what the people who passed it intended, get yourself elected and amend it.
But the broader conservative lament, that “unelected judges” are undoing the work of elected parliamentarians, or that government’s discretion to act in the public interest has been unduly confined by the Charter, is ahistorical, not to say alegal.
All laws, not just the Charter, bind governments to act in certain ways, and not in other ways: that’s the point. All laws, not just the Charter, are interpreted and applied by judges, whose rulings, as they become precedent, bind not only Parliament or the government, but the courts themselves.
The Charter was in this sense nothing new. Long before the Charter, courts were applying the British North America Act, as arbiters between the claims of different levels of government. Now they also arbitrate between governments and citizens, but the exercise is fundamentally the same.
As for Justice Rowe’s argument, I rather fear it caricatures both the courts and the legislatures. Supreme Court decisions are rarely “winner-take-all.” Often the court looks for ways to give something to both sides, sometimes to a fault. Where it does toss out a law, it is usually open to the government to amend it, in a way that preserves its purpose but corrects any needless overreach.
And Parliament? The phrase “winner-take-all” is more often used to describe our electoral system, which commonly hands a monopoly on power to a party with less than 40 per cent of the vote, on which thin mandate it then imposes a raft of sudden and violent policy changes – only to see these repealed and replaced by the next “majority” government.
Compromise? If only. Maybe one day, after our electoral system has been reformed. Until then the courts will have to do.