Kirk Makin is a former justice reporter for The Globe and Mail.
Anyone tuned to dispatches from the political front lines in Ottawa could be forgiven for thinking that the Supreme Court of Canada bench has gone rogue.
Reports of a contretemps between Chief Justice Beverley McLachlin and Prime Minister Stephen Harper over Marc Nadon’s misbegotten Supreme Court appointment routinely cite a string of recent cases where judges have thwarted federal objectives.
A narrative is taking root of an activist court and a meddling Chief Justice, thumbing their noses at elected officials. But it is a false notion, far removed from the reality of a court populated by deferential judges and a Chief Justice whose signature traits are caution and restraint.
Left unquestioned, this slice of conventional wisdom will corrode the judiciary’s credibility. The spectre of an out-of-control court will be handy fodder for political aspirants in the next federal election, damaging both the judiciary and the public good.
The misconception arises from five noteworthy recent judgments – a five-game losing streak for Mr. Harper, in the eyes of those who like to keep score.
The first of these, the Bedford prostitution case, produced a predictable result. Six superior court judges had already found that key provisions of the Criminal Code endangered people they were ostensibly designed to protect. The Supreme Court unanimously told Parliament it could legislate all it wanted, but it could not disregard empirical evidence and create laws that cause even greater danger. Bedford was an affirmation of logic and rationality, not a judicial policy frolic.
Next, came the Nadon Reference, which was widely misread as a court trying to trump Mr. Harper and avoid being saddled with an unremarkable jurist. In fact, any political calculus that seeped into the court’s decision-making likely reflected sensitivity to Quebec’s special status in Confederation. For better or worse, the Supreme Court perceives itself as a nation-builder, which includes keeping a satisfied Quebec within a strong Canada. (Indeed, several judges who sat on the Secession Reference later ranked its contribution to Quebec’s standing as their finest hour.)
The next of the Big Five cases, the reference case on Senate reform, was requested by a government that had attacked the Senate in opposition, then made dozens of partisan appointments in power. In asserting the need for substantial provincial consent, the court mirrored the 1981 constitutional repatriation case and the Quebec Secession Reference. The decision, widely expected, did not crimp Mr. Harper’s agenda. Rather, it allowed him to make good his escape from the whole dreary question.
The last pair of cases involved Canada’s sentencing code. In one case, the court struck down a provision that repunished offenders after they had been sentenced. In the second, it applied time-honoured principles of sentencing to compensate accused people for time spent in pretrial custody. Both were widely predicted and reflected principles of fairness.
For decades, the court has occasionally struck down legislation that was dear to government. Recent examples include security certificate provisions of the Anti-Terrorism Act and the shutting down of a safe drug-injection site in Vancouver – both arguably more activist decisions than any of the Big Five.
Even before the arrival of Mr. Harper’s newest conservative-minded appointees, the McLachlin court was indisputably the least activist Supreme Court since the late 1970s. The Antonio Lamer and Brian Dickson courts, which preceded it, were known for their frequent resort to the Charter to temper overzealous criminal law measures.
Keenly aware of criticism from the right of her predecessor courts, Chief Justice McLachlin tends to wave an olive branch when her court alters the law. She stresses a “dialogue” between the court and Parliament, sometimes points out ways Parliament can legally achieve its stated will and suspends the effect of a judgment to allow Parliament time to enact new legislation.
In short, she is more intent on maintaining the court’s high public standing than in poking an ideological stick in the eye of a political regime or leader.
To be sure, Mr. Harper has an ideological beef with so-called judicial activism, dating back to his days at the National Citizens Coalition. However predictable they were, these five decisions were bound to irritate a long-standing burr in his saddle.
This week’s war of words should amount to a fleeting skirmish that recedes from memory. But should the myth of a maverick, activist court jell in the public mind, the Supreme Court’s standing will be harmed for many years to come.