The recent Bedford ruling has captured media headlines by reigniting the debate on prostitution in Canada. A less attention-grabbing, but similarly reactive issue raised out of the ruling is the belief that “activist” judges are extending past their mandate in rendering such decisions. Indeed, the Political Bouillon’s own Yuan Zhu wrote an article last week decrying the judiciary’s supposed activism in striking down this legislation. This is a common Canadian political myth that is championed by conservative judicial critics, the notion that the Supreme Court and other judicial bodies are allegedly diluting Canadian democracy since they are an unelected legal branch. However, these critics commit two crucial errors with these kinds of complaints; firstly, they misconstrue what is actually dialogue between the judiciary and the legislature surrounding the Charter of Rights and Freedoms as some kind of judicial autocracy, and secondly they romanticize current Canadian elected democracy to the point of being blind to its faults.
Firstly, the confusion surrounding the alleged use of activism in the Bedford decision should be clarified. The Supreme Court struck down three laws surrounding prostitution that do not in itself legalize the activity, but rather indicate that these codes in their present version are in violation of our constitutionally entrenched Charter of Human Rights and Freedoms. This is simply a matter of the Supreme Court doing its duty by ensuring that all laws passed by Canadian legislature are constitutional. The Court did not legalize, amend, or create any laws surrounding prostitution themselves, but instead gave the legislative bodies a grace period of 1 year to draft a more constitutional response; be it in the direction of legalization or further criminalization. The legislative body will draft such a document, with the judiciary’s criticisms of the past three laws in mind, and likely draft a constitutionally viable legal response. This is a perfect example of Charter dialogue between two branches of Canadian government, and thus it is extremely preemptive and sensationalistic for even the most fervent conservative judicial critics to be bewailing any supposed judicial interventionism.
However, since the creation of the Canadian Charter of Rights and Freedoms was entrenched into our Constitution, judicial activism is a trait that Canadian democracy encourages strongly. As noted Constitutional academic Peter Hogg notes, “The Charter is widely admired, and so are the decisions of the Canadian court”. This document which gave the judiciary such power to amend and evolve Canadian laws boasts over 80% approval amongst the Canadian populace. For context, the current leaders in the Legislature, Stephen Harper and his Conservative Party, hold a 28% approval rating. He and other Prime Ministers in recent history seldomly win an election with over 40% of the populace supporting them. Same-sex marriage and abortion- contentious social issues that were determined by the Supreme Court, boast enormous approval amongst Canadian citizens. Yet these social changes that fall in line with the public’s opinion and attitude were not determined by a legislative body. Instead, it was the Supreme Court of Canada that accurately embodied Canadian public opinion and codified social progression into law, in accordance with the free and democratic society that Canada’s Charter represents.
Even contentious social issues that have yet to be acted on- including euthanasia (69%) and cannabis legalization (66%)– each boast far higher approval ratings than our current majority government. This indicates that the conservative judicial critics, so eager to defend the Canadian public opinion, are looking only through the incredibly narrow confines of the elected versus the unelected. Although Supreme Court activism embodied in the Charter and the further progression of the legal sphere in various judicial issues are both enormously popular compared to our legislative government, these narrow minded ideologues continue to protest against Canada having an activist judiciary. These complaints come despite the judiciary boasting the ability to both elevate the level of socio-legal discourse and possibly fulfil Canadian public opinion more expeditiously than the Canadian legislative body, if need be.
Legislative bodies are and should be the typical medium for creating laws, of course. However, due to the ideology that runs rampant across these parties in addition to the pandering and political gamesmanship that each have been guilty of committing, the public’s opinion on specific issues is not always truly met. With this in mind, a complainant who finds a legal justice problem in the Charter as it pertains to a particular issue, whether it be hospital care wait times, the right to die, or anywhere in between, deserves to be met by a judicial body that can mediate over an injustice unfettered by ideology or the self serving thoughts of future electability.
Some on the particularly radical end of the conservative judicial critics have recently gone as far as to condemn Canadian governance as a benevolent dictatorship run by an autocratic judiciary. This could not be further from the truth. While Canada is thought to be a benevolent dictatorship, with an essentially presidential system that lacks the inherent checks and balances seen in a country such as the United States, the power imbalance actually lies with the Prime Minister’s Office and the Executive Branch. With a hyper-partisan, corrupt, and largely ineffective Senate, a judiciary with the ability to interpret the law is a critical cornerstone for a democracy to be able to curb potentially excessive ideological lawmaking that lacks respect for the constitutional principles of Canada.
In conclusion, the Canadian political myth that a dangerous, unelected judiciary is defying the will of the Canadian public is completely at odds with reality. Instead, the Supreme Court of Canada along with the Charter of Rights and Freedoms work in concert to provide legal progression in accordance with the notion of a constitutionally embedded “living tree” document- a concept of timeless socio-legal evolution that was devised by Pierre Elliot Trudeau and his Premiers who governed across various ends of the ideological spectrum. The unelected judiciary and elected legislative branches find innovative legal solutions to select issues through a dialogue, rather than from an autocracy on either end. The will of the Canadian public works so far beyond the mere confines of elected and unelected, and this will should be represented more fairly across further levels of government to alleviate the enormous power disparity of the centralized executive power apparatus.
– Eli Vincent Zivot