What is currently the greatest threat to our democracy and Parliament? My candidate: the Supreme Court of Canada.
Some would say, "No, no – it is the Harper government, with its concealment of basic issues in omnibus budget bills, its muzzling of committees and public servants, and its concentration of power in the PMO." And there is a point there, as with all recent governments. The difference between the government and the Supreme Court, however, is that we can get rid of governments every few years, if so inclined. Whatever threat they might pose is a controllable one.
But the court? Doesn't it simply interpret the law? Would that such were true. Lately it has turned to the making of law, a task to which it is neither mandated nor suited. The judges can do this through their control over the Constitution and its exact meaning. This power was awarded in the 1982 Trudeauvian amendments, the court replacing Parliament as the highest authority in the land.
The Constitution has long been considered a "living tree" to be read in the context of developing realities. The phrase was coined by British jurist Lord Sankey in 1929, when our final legal decisions came from England. Well and good. The crucial question, then, is: Who is the gardener?
Until 1982, the "tree" was pruned by an elected Parliament. Ever since, the shears (and fertilizer and grafting) have been wielded by the unelected Supreme Court of Canada.
Three recent decisions will serve to illustrate the ensuing power grab. These are the striking of the Criminal Code ban against euthanasia, the refusal of the Supremes to accept the appointment of Justice Marc Nadon of Quebec to their own ranks, and a finding regarding the right of RCMP members to unionize. The issues vary widely, but the common thread is the accretion of power to the court.
In the assisted-suicide matter, the judges simply overturned their own judgment of 1993 in the Rodriguez case. Like many, I do not differ with the result. But I offer it as an example of what they can do. They decided that, "the law relating to the principles of overbreadth and gross disproportionality had materially advanced" since then.
Two questions, then. First, who changed that law? Why, none other than the judges. They make it up continually. Second, what body should have grasped whatever changes had occurred? Why, Parliament, of course. That Parliament shows cowardly and pusillanimous tendencies is no reason for the court to do the MPs' proper work. But the Supremes do it because they can.
In the matter of Justice Nadon, nominated by the Prime Minster, it looked to many observers as if the current judges just didn't want this fellow in their midst. Six to one said his appointment would not be lawful based upon a tortuous reading of Sections 5 and 6 of the Supreme Court Act. (Supreme Court Justice Michael Moldaver wrote a better-argued dissent.)
But what is really important in this decision passed virtually without notice. The court slyly constitutionalized itself in ruling that the 1982 amendments protected the "essential features" of the court, though nowhere is this said in the amendments nor is the Supreme Court Act mentioned in the schedule of protected laws.
The import of this? Parliament can't get at them. Suppose there was an idea for term limits on Supreme Court judges, which would be a very good one. They could now simply say, sorry, can't do it, and no one could argue because – and I repeat this – they are the law.
Finally to Mounted Police Association v. Canada. The court stretched the "freedom of association" part of the Charter beyond limits in constitutionalizing adversarial labour relations, thereby reversing its own precedent of only four years earlier. Supreme Court of Canada Justice Marshall Rothstein wrote a courageous dissent, describing how such decisions have the power to "freeze matters in time and restrict Parliament's ability to change course" for future realities. The court must be "especially cautious when dealing with questions of socioeconomic policy."
And, most damning, courts "may not identify a desired result and then search for a novel legal interpretation to bring that result about." I cannot think of a better summary charge.
All is not lost. Since no one, including this court, is infallible, there remains the "notwithstanding" clause, by which elected legislatures can overrule the appointed court in many instances. They should routinely do exactly that when the actions of this court so require. It hasn't happened yet. Summon up courage, please.