As the CBA National Magazine’s excellent Yves Faguy notes on its blog, « charges of judicial activism [directed at the Supreme Court of Canada] are back in vogue. » He links to a couple of examples. Yet another one by Gordon Gibson, appeared in the Globe yesterday. The charge may always be the same, but the sophistication of the argument to support it varies. Andrew Coyne’s was interesting and worth a detailed answer, which I provided over at my own blog, Double Aspect. Mr. Gibson’s, by contrast, is despairingly simplistic. At its root are two claims that are either naïve or deliberately misleading. 

Mr. Gibson accuses the Court of « making » the law instead of « interpreting » it. But any interpretation, especially interpretation of a vaguely worded text, as most constitutional provisions are, must perforce add something new to the law. The distinction is a purely rhetorical construct.

Mr. Gibson claims that with « the 1982 Trudeauvian amendments, » ”• i.e. the Patriation of the Constitution and the enactment of the Canadian Charter of Rights and Freedoms ”• « the court replac[ed] Parliament as the highest authority in the land. » But Parliament never was « the highest authority, » because its powers were limited by those of the provinces, and for as long as Canada has existed, courts have invalidated legislation that infringed the federal division of powers. The Charter added to the number of grounds on which courts could strike down laws, but it did not create this power.

I have sharply criticized two of the Supreme Court’s decisions which Mr. Gibson invokes in support of his claim of « activism » (here for that in « l’Affaire Nadon » and  here and here, or here in summary form, for that constitutionalizing the right to collective bargaining). But, as I say in response to Mr. Coyne, we do better by criticizing the Court’s reasoning than by invoking the near-meaningless charge of « activism. » And we should certainly avoid outright distortions of the legal or historical record, in which Mr. Gibson engages. The Court is not, or should not be, above criticism. But that criticism will not be effective if it can be dismissed as simply misinformed.

Photo by beth / CC BY-NC-ND 2.0 / modified from original 

Leonid Sirota
Leonid Sirota teaches constitutional law at the Auckland University of Technology Law School. He is a graduate of the Faculty of Law, McGill University and the New York University School of Law. His main interests are Canadian constitutional law, other areas of public law and legal theory.

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