I have finally had the chance to come up for air, and so will take the opportunity to writhe uncomfortably around the edges of everyone’s newly-favourite old-topic: “judicial activism”.  For the record, I tend to agree both with those who decry the label as generally unhelpful, and those who think that the vast discretion possessed by the judiciary to shape and reshape the constitution – and therefore the permissible bounds of democratic self-governance – is not without its risks and drawbacks. Which is to say that while the term ‘judicial activism’ itself may obscure more than it enlightens, the general concern animating it is not necessarily incoherent.  For now, I will use my friend and co-blogger Léonid Sirota’s most recent gambit – “What to do about ‘judicial activism’” – as a jumping off point for a few disjointed thoughts on the topic.

1) First, Léonid suggests (with some reservation) that conservatives dissatisfied with the current Court’s posture may consider starting their own intellectual movement, in order to breed lawyers and judges with a more conservative outlook (see Bob Tarantino’s thoughtful take). I have my own difficulties with this idea and may come back to it another time. For now, I want to address Léonid’s second point, which is interesting, but in my view not a full answer to the critics:

In many cases, it is not the courts who are preventing Parliament from ”œasserting itself” and starting making policy; Parliament, or its masters in the cabinet, are themselves to blame. In a sense, some of the recent decisions by the Supreme Court which various critics have branded ”œactivist,” did not go against Parliament’s assertions of policy-making power. Both Bedford, the prostitution case, and Carter, the assisted suicide one, happened because Parliament did nothing even as the evidence of the problems which the laws enacted a long time ago mounted. Of course, inaction is sometimes a policy. But all too often, it is merely the product of a lack of political will ”• of an unwillingness to make, and responsibility for, difficult and potentially controversial decisions.

Similarly, Professor Macfarlane calls the government’s inaction on the issue an instance of ‘political cowardice‘, which supports the “the necessity of the Court’s role in this particular instance”.

Of course, this reasoning could be applied following any court decision: if the legislature had only done before what the courts now say is it must do, the courts would not have had to say it.  In this way, the ‘legislature did nothing’ argument can often beg the question, by assuming the court’s decision is the necessary and unavoidable one; that is, that the government had an obligation plainly derived from the Constitution to do what the court has now told it that the Constitution requires it to do, notwithstanding that a previous court told it that the Constitution said it did not have to do that thing.

Like ‘judicial activism’, then, charges of legislative ‘inaction’ or a ‘lack of political will’ can collapse into the assertion that there was a lack of will to do what the legislature did not want to do, which is sort of to be expected. For instance, as the Court candidly observed in Carter, “[b]etween 1991 and 2010, the House of Commons and its committees debated no less than six private member’s bills seeking to decriminalize assisted suicide. None was passed.”

Admittedly, these were private members bills, but that is sort of the point: Liberal and Conservative governments have, both before and since Rodriguez, remained opposed to permitting assisted dying.  They know how to pass bills and they did not.  I may consider that position unjust and callous, but no one elected me to govern them (despite my obvious popular appeal and folksy charm).  Indeed, the UK Supreme Court recently dismissed a similar challenge, primarily on the basis that it raised the type of issue that it thought should be determined by Parliament.

So I can understand why many bristle, and while perhaps not always dressed up in fancy legal terms, I think the visceral reaction – that the Court has made a decision that a court should not be making – is at least understandable, and raises difficult questions that should not be so blithely dismissed based on the use of unhelpful terminology. (For my part, I went to some length on twitter expressing my view that the Carter decision was conspicuously well-reasoned, and arguably brings some clarity to Canada’s constitutional problem child, section 7. If there is a problem with Carter – and I am not sure there is – it seems to me not in that decision itself, but rather in the case law that gave rise to it.)

2) Another point worth addressing is whether the government’s apparent willingness to push the constitutional boundaries should trouble us, beyond any criticisms we may have of the policies themselves.  According to Andrew Coyne:

The Harper government, it is widely observed, has taken with increasing frequency, if not glee, to stuffing the bills it presents in Parliament with measures that are in self-evident violation of the constitution. Not only is the government making no apparent effort to ”œCharter-proof” legislation, that is by seeking the advice of Justice department lawyers on its constitutionality in advance of its introduction, as it is required by law to do, it seems if anything to be taking advice on how to offend it.

It is impossible to read the several dubious provisions of Bill C-51, the Conservatives’ anti-terrorism legislation " allowing the police to detain people on suspicion an act of terrorism ”œmay” be about to occur; permitting intelligence officers to break the law, bizarrely, with the permission of a judge; banning the promotion of terrorism ”œin general” " in anything but this light.

However, and leaving aside the provision permitting state agents to request judicial permission to violate the constitution – which I too find incredibly bizarre (see Professors Roach & Forcese) – it is not necessarily obvious that all of these policies are “self-evidently” unconstitutional, at least so far as the constitutional text itself is concerned.

The Charter does not say ‘Life imprisonment is always cruel and unusual’, it says “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment”; it does not say that ‘Detention upon a suspicion of terrorist activity is unconstitutional’, it says “Everyone has the right not to be arbitrarily detained or imprisoned”; it does not say ‘Promotion of terrorism is constitutionally protected”, it says “Everyone has the… freedom of thought, belief, opinion and expression” subject to “reasonable limits”.  The only laws that are self-evidently unconstitutional in this sense are those that defy its plain proscriptions – which are vanishingly few – and even then, they are fine if you can convince a court you have a good enough reason for them. Of course, the reason Mr. Coyne can say, with some confidence, that these laws are ‘self-evidently’ unconstitutional, is that some appear to run headlong into authoritative judicial interpretations of those vague and capacious terms.

Here we arrive at a bit of a quandary in light of recent events. As Professor Newman has pointed out, the Court has seemed increasingly willing to overturn itself – not precedents from the 1930s, mind you, but from a few decades ago. Canadians delight in the fact that the constitution is a ‘living tree’ that can change with the seasons, and no one doubts the legitimacy of a Court revisiting its own previous decisions.  There is a risk, however, that the more frequently the Court seeks to overturn itself (and encourages lower courts to do so), or changes the meaning of the Constitution because previous judges made decisions they might not have made, the more frequently it invites challenges to its own precedents, both from within and outside the judicial branch.

Thus, if our constitution means only what a panel of judges thinks at any given moment, and if those meanings can change with each new batch of judges, it becomes less surprising to see governments who believe they have good reasons to disagree with a specific precedent enacting laws on the borderline of constitutionality, presently conceived, and try to convince a new court to make it constitutional moving forward. Nor is it obvious that future courts will afford much deference to the decisions of the present courts, would those future courts have come down on the other side of a controversial issue.  Both prospects would seem to encourage politicians to make a dedicated effort to ensure that people who think like them are on the bench, which is a path to be avoided if we can.

3) Overall, it seems to me that the question is not whether there is such a thing as ‘judicial activism’, but how much judicial involvement in the course of governance is warranted. As Chief Justice McLachlin has observed, the “Charter has introduced vast and important new areas of judicial discretion” – that is, the courts have choices to make. This discretion can be exercised in ways that are more or less compatible with the judicial role and more or less solicitous to preserve a sphere for self-governance through democratic institutions.

In other words, issues surrounding the courts’ exercise of discretion should be discussed with a view to not only the great benefits that come from having a Charter guaranteeing our rights and freedoms, and a serious and diligent judicial branch to ensure they are protected, but also with regard to the potential trade-offs inherent in having a panel of tenured lawyers, even highly distinguished ones, decide the most pressing social and political issues of our time.

One potential risk, difficult to measure and rarely considered, is that the more thoroughly the judicial branch occupies the field of controversial and difficult issues – whether as a result of craven legislative inaction or aggressive judicial action – the less legislators have an incentive to take their jobs seriously, and the less citizens have any reason to care if they do not. On that note, I will end with a quote of the quintessential anti-judicial activist James Bradley Thayer, of which I’m quite fond:

The tendency of a common and easy resort to this great function [judicial review], now lamentably too common, is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.  It is no light thing to do that.