A Very Good King

The Chief Justice of Canada is retiring this month. Under her leadership, the Canadian Supreme Court has presided over an incredible amount of judicial activism. Whilst some of those decisions might have been correct the decision should have been made by the democratic branches and not the Court.

This December, Canadian Chief Justice Beverley McLachlin is retiring from the bench, after 28 years on Canada’s highest court, and 17 as its leader. Her retirement has been met with plaudits from across the political spectrum, including her erstwhile sparring partner Stephen Harper. In her wake, is left a long and distinguished legacy, including a number of monumental decisions whose implications are still being felt. As Justin Trudeau put it “Canadians owe her an immense debt”.

No one could deny the enormous importance and impact of McLachlin’s tenure, nor her fine legal mind. In fact, her court has not been one of dissent; the vast majority of decisions are made unanimously. However, her legacy rests in no small part on the wide-reaching changes that her Court has had on Canadian law. Laws prohibiting euthanasia, same-sex marriage, prostitution and same-sex discrimination were struck down, and in 2014 vast new obligations to aboriginal title were established. To many, these legal changes appear nothing less than benign, and indeed the normative prerequisites for a just society. It is 2017 after all. However, the method by which these legal rights were established, inasmuch as they overturned laws established by parliament, should be a cause of great concern, and McLachlin’s legacy viewed much more cautiously than the rhetoric suggests.

A little history is in order: The British North America Act (1867) established that Canada would have a Constitution “similar in principle to that of the United Kingdom”. In other words, Parliament would be supreme in areas of Federal jurisdiction, the courts were mostly confined to jurisdictional disputes between levels of government. However, in 1982, the Constitution Act, containing the much vaunted Charter of Rights and Freedoms was passed, containing a number of rights that parliament could not infringe, except by invoking the ‘Notwithstanding Clause’. The Notwithstanding Clause provide inter alia, that parliament could override the Bill of Rights, subject to renewal every five years. Parliament, we were and are told, remains sovereign.

Of course, politics and the law are not that simple. Over the last 35 years, there has been a marked judicialization of our politics, perfectly shown by McLachlin’s shepherding of Carter v Canada (Attorney General). Referred to simply as Carter, the decision struck down the absolute prohibition on assisted suicide, an absolute prohibition that had been upheld in parliament by a landslide majority  in the last parliament. This is obviously, from wherever you are on the political spectrum, a major change in the law. One with vast and wide-ranging medical, ethical and social implications.

The legal question on which the court decided were the narrow grounds of whether or not it is a criminal offence (under the Canadian Criminal Code) to assist another in committing suicide. Carter is a reversal of the 1993 Rodriguez v. Canada decision, which refused to allow a doctor assist the suicide of a patient with ALS. Rodriguez in fact made the point that it was society’s right to attempt to preserve life.

Indeed, the very question of euthanasia is one that the European Court of Human Rights (not a body known to be a shrinking violet) has declared encompasses “a wide margin of appreciation”. In other words, while the Canadian court system has declared that it has oversight over euthanasia laws, this position is not the norm in international jurisprudence.

Defenders of the Charter, and the relatively interpretivist tradition to which McLachlin and most of Canada’s judiciary belongs, simply point to the notwithstanding clause and say Parliament has the notwithstanding clause – if Parliament wanted to do something about a court decision, it could. Politics, of course, does not work that way. No sooner had the decision been handed down that left-wing parliamentarians, mostly from the avowedly socialist New Democratic Party, accused supporters of the prohibition at odds with the rule of law. The rule of law had already been decided, they said, and those who opposed a liberal regime were simply non-compliant with the Constitution.

Proponents of liberal assisted suicide laws no longer had to defend the merits of their position – all they had to do was point to a Court, who had already done their heavy lifting for them. In fact, so potent was this line of attack, that when the Liberal Party passed a relatively limited law in response – assisted suicide only in the cases of interminable, terminal and intolerable illness – the main criticism was that it too contravened the Charter. At no point during the entire two months this dominated Canadian airwaves, did I ever hear a moral or political case for a permissive law. Proponents, knowing the relative unpopularity of their position sat behind the prestige of the court, letting a legal interpretation do political heavy-lifting.

Similarly, in 2013, McLachlin’s Court held in Bedford v Canada (Bedford) that laws prohibiting prostitution were again illegal. Again here, the Conservative response was to craft a law that prohibited prostitution in a number of areas, including near children’s playgrounds, and criminalized buying (but not selling) of sex. This is broadly the model adopted in Sweden. You know what came next. Instead of defending the absurd proposition that prostitution should be allowed close to playgrounds, permissive critics simply cried that the restrictions went against the Court’s ruling. Again, the Court was used as a political shield through which politicians could avoid the political implications – and thus the political cost – of their decisions.

There are a number of other decisions that have drastically changed policy, too numerous to mention but including the 2004 same-sex marriage decision (in which McLachlin was involved) and, in a personally penned opinion in 2015, struck down the Conservative government’s updates to the criminal code that implemented mandatory minimum sentences for certain crimes.

I will not contest the normative results of these decisions. With some I am in wholehearted agreement as to the desirability of the outcome, in others I disagree strongly. However, we should have profound reservations regarding the manner in which these decisions were made.

In a parliamentary democracy, I hold my representative, my Member of Parliament, accountable for the implications of legislation. If assisted dying becomes abused, as it has in the Netherlands, who am I to hold accountable? Supporters of the Court say they are just impartially upholding the law so its useless complaining to them. Parliament had no say in the matter, so what’s the point in signing a petition? What if I really believe that prostitution is the sign of a degraded and deeply sexist society (as they believe in Iceland). Are you really going to tell me that I can no longer lobby for a specific outcome as a Member of Parliament or as a voter because a court said so? I cannot think of any line of argument that does more to diminish the legacy of parliamentary government.

Supporters of liberal interpretations often just point to the Notwithstanding Clause and say: use that. But these are often the first critics to attack politicians for publicly disagreeing with the Court’s ruling. The same people who point to the Notwithstanding Clause are often the same people protesting that to use it and bypass the court is an assault on the rule of law.

Furthermore, I cannot accept that our politicians get off this lightly. Every single one of these hot-button issues – abortion, prostitution, crime and punishment, assisted suicide – are matters of extreme moral importance. They are also divisive, and votes for which politicians pay a price. We cannot let them off the hook. It is a sign of weak politicians to hide behind court judgements, but such behaviour has, in the last few years, become de rigueur.

Most worrying is the permanency of legal decisions. Much of the support for Courts comes from the perception that when it speaks it enshrines rights in perpetuity – and who doesn’t like enshrined rights? But in democracies nothing is permanent. If you want to get same-sex marriage, or legalize prostitution, or allow assisted suicide run for parliament. Start a petition. Lobby. Vote. We vest our decisions in parliamentarians because their mandate is the mandate we give, and we can overturn it. What happens the day the Court decides to uphold or strike down a deeply unjust piece of legislation? Look no farther than the United States. As Tony Benn puts it – “I would rather a bad parliament than a good king”.

And by all accounts Beverly McLachlin has been a very good king. Her legal mind is unquestioned, and her influence renowned. She by no means started this trend. But the fact she has been feted to such a degree, and her influence so remarked upon, is not necessarily a good thing. She may be a liberal hero to many, but I imagine those same people will not have the same fuzzy feelings about the Court when her successor turns out to be a Conservative.

Connor MacDonald is an undergraduate at the University of Cambridge.

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