Rory Leishman

Among the nine judges on the Supreme Court of Canada, Justice Malcolm Rowe stands alone in that he is the only current justice who has demonstrated a clear understanding that the separation of legislative and judicial powers is essential to the preservation of democracy and the rule of law.

In a perceptive in the UBC Law Review and a series of recent speeches, Rowe points out that prior to enactment of the 1982 Canadian Charter of Rights and Freedoms, the great majority of Canadian judges exercised restraint: They refrained from usurping the exclusive authority of Parliament and the provincial legislatures to enact laws and determine public policies within their respective spheres of federal and provincial jurisdiction.

However, since the Charter came into effect, the Supreme Court of Canada has been taken over by judicial activists who have abandoned all restraint. Instead of upholding the laws and the Constitution, they routinely strike down some duly enacted laws, amend others and change the Constitution for the purpose of imposing their policy preferences on Canadians.

In defence of such judicial policy-making, unrestrained judges claim the Charter makes them do it. That argument is false. There is nothing in the history or the plain text of the Charter to suggest that the legislators who drafted it intended to confer supreme policy-making powers on the courts.

Instead, judicial activists on the Supreme Court of Canada have arrogated this power to themselves. Rowe, of course, is not alone among judges in insisting that the courts should not determine public policy. Tom Bingham, former Lord Chief Justice of England and Wales at the beginning of the 21st century, has been aptly described as “the greatest judge of his generation. As Rowe notes, Bingham insists in his book The Rule of Law that: “The job of judges is to apply the law, not to indulge their personal preferences.”

Former Justice William McIntyre of the Supreme Court of Canada took the same view. In dissenting from the notorious decision of the majority of the Court in Morgentaler, 1988, to strike down Canada’s abortion law, he contended: “It is for Parliament to pronounce on, and to direct, social policy. This is not because Parliament can claim all wisdom and knowledge, but simply because Parliament is elected for that purpose in a free democracy.”

In contrast, the majority of the Court in Morgentaler presumed that they were better qualified than Parliament to determine the policy on abortion, but they split three ways on what that policy should be. On one point, the majority all agreed: So-called abortion rights are implicit in the guarantee of “life, liberty and security of the person” in section 7 of the Charter.

McIntyre would have none of this argument. He persuasively held that, apart from the few restrictions on abortion that then still existed in the Criminal Code, “no right of abortion can be found in Canadian law, custom or tradition, and that the Charter including section 7 creates no further right.”

In calling for judicial restraint, Rowe maintains: “I should not be understood to criticize any particular decision or resulting rule.” Fair enough. But the implications of his argument are clear for all the outrageous policy-imposing decisions by the Supreme Court of Canada over the past 35 years.

By Rowe’s reasoning, it is clear that striking down Canada’s abortion law Morgentaler, 1988, was wrongly decided. And the same goes for many other egregious decisions of the Supreme Court of Canada in the Charter era such as the legalization of euthanasia (Carter, 2015), living off the avails of prostitution (Bedford, 2013), the possession of pornography for private use (Sharpe, 2000), and acts of group sex in a swinger’s club (Labaye, 2005).

None of these cases is a valid precedent. They all are illegitimate intrusions by the Court on the legislative powers of Parliament. And all these cases should be reversed for the same reason that the Supreme Court of the United States in Dobbs, 2022, overturned its lawless judgment in Roe v. Wade, 1973, that struck down every abortion law in the United States.

Of course, the Supreme Court of Canada as presently constituted is not about to reverse course and revive judicial respect for the legislative authority of elected representatives of the people in Parliament and the provincial legislatures. Canadians who are eager to see democracy and the rule of law revived in Canada can only hope that from now on, whoever succeeds Prime Minister Justin Trudeau will nominate only restrained judges like Rowe who respect the separation of legislative and judicial powers.