Rory Leishman:
In a proposed judgment for the majority of the United States Supreme Court in the case of Dobbs v. Jackson, Justice Samuel Alito persuasively argued that the Court’s calamitous 1973 ruling in Roe v. Wade that struck down every state law restricting abortion was so completely and wrongly decided that it has no authority as a judicial precedent and should be overturned.
There is not now and never has been any provision in the United States Constitution stating that a mother has a right to abort her child. “Roe was egregiously wrong from the start,” Alito explained. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Some pro-lifers think Alito’s argument has not gone far enough on the ground that regardless of what the Constitution provides, the Court should not just reverse Roe, but also strike down all laws permitting abortion.
That argument is wrong — disastrously wrong. Judges should not legislate. They should stick to upholding the common law, statute laws, and the Constitution as expounded in valid judicial precedents.
The separation of legislative and judicial powers is a fundamental principle of democracy. Montesquieu put the matter well: “There is no liberty if the judiciary power be not separated from the legislative…. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator.”
Pro-life Canadians should have no difficulty in grasping this point. For the past 40 years, we have been living under the arbitrary control of our judicial dictators on the Supreme Court of Canada. Under the pretense of upholding the Canadian Charter of Rights and Freedoms, these autocratic judges have usurped the legislative powers of Parliament and the provincial legislatures to set policies on an array of key issues ranging from the legalization of euthanasia and same-sex “marriage” to the imposition of abortion-on-de
mand.
Yet despite the Court’s appalling legislative record, some prominent Canadian pro-lifers have been clamoring over the past two years for the Supreme Court of Canada to usurp the emergency powers of Canada’s elected legislators to set policies in a pandemic. That is folly. All freedom-loving Canadians should insist that judges not legislate.
Until recently, the overwhelming majority of Canadian judges upheld the separation of legislative and judicial powers. In 1975, counsel for the notorious abortionist Henry Morgentaler got nowhere when they tried to persuade the Supreme Court of Canada to strike down Canada’s abortion law on the ground that it violated the right to life and liberty in Section 1 of the 1960 Canadian Bill of Rights. Chief Justice Bora Laskin utterly repudiated this argument. He wrote: “How foreign to our constitutional traditions, to our constitutional law and to our conceptions of judicial review was any interference by a Court with the substantive content of legislation.”
Just a few years later in the notorious 1988 Morgentaler ruling, the Supreme Court of Canada abruptly reversed course and struck down this same abortion law because it allegedly violated the right to life and liberty in section 7 of the Charter. That 1988 ruling was no less arbitrary than the 1973 judgment by the Supreme Court of the United States in Roe.
A majority of judges on the United States Supreme Court now seem poised to reverse Roe. Is there reason to hope that the Supreme Court of Canada might soon likewise reverse its erroneous ruling in Morgentaler 1988?
Alas no. On April 8, every member of the Supreme Court of Canada opined in R. v. Stairs that common law rules governing searches following a lawful arrest are incompatible with the right against unreasonable search and seizure in section 8 of the Charter. Not one member of the Court recognized that unelected judges have no right to evaluate and change the law.
Elected legislators, of course, are not infallible, but at least they can be held to account by the people in elections. The same cannot be said for unelected judges who arbitrarily presume to legislate from the bench.
Democracy (rule by the people), despite all its faults, is vastly better than jurocracy (rule by unelected and unaccountable judges). When will our elected legislators in Parliament finally summon up the will to revive democracy and the rule of law in Canada by exercising the undoubted constitutional authority of Parliament to call our judicial autocrats before the bar of Parliament and compel these rogue judges to get back to upholding the law and respecting the separation of legislative and judicial powers?
