But there is hope that new batch will be better

roryleishman1212While pro-life leaders are delighted by Prime Minister Stephen Harper’s elevation of Justice Russell Brown from the Alberta Court of Appeal to the Supreme Court of Canada, trendy proponents of judicial activism are appalled, and understandably so: Brown subscribes to the traditional judicial doctrine that judges should refrain from legislating from the bench.

John Whyte, emeritus professor of law at Queen’s University, is typical of Brown’s critics. In a column published in The Globe and Mail on August 15, he denounced Brown for supporting “narrow interpretations of constitutional texts [that] shut out consideration of contemporary values and conditions, and rob a living document of vitality and relevance.”

In particular, Whyte charged that Brown opposes “protections that were granted under the Charter’s ‘principles of fundamental justice,’ such as the recognition of a right to physician assistance in dying.”

Is that right? Section 7 of the Canadian Charter of Rights and Freedoms simply states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” From the plain meaning of these words, it is quite a stretch for proponents of rule by judges like Whyte to conclude that Canadians have a Charter right to physician-assisted suicide.

In the 1993 Rodriquez ruling, even the Supreme Court of Canada agreed that the complete ban on aiding or abetting in a suicide in section 241(b) of the Criminal Code does not conflict with the principles of fundamental justice as guaranteed in the Charter. Regardless, earlier this year, this same Court abruptly reversed course in its Carter ruling, by embracing absurd argument that in the light of new evidence, it is now evident the prohibition of physician assisted suicide in section 241(b) violates section 7 of the Charter.

Such arbitrary, precedent-shattering rulings are just fine with Whyte: He maintains that judicial activists are right to treat the Constitution of Canada as an ever evolving document subject to radical judicial change in accordance with contemporary values and conditions as perceived by a majority of the judges on the Supreme Court of Canada.

Brown disagrees. He rejects such judicial contempt for established law. In his ruling for the Alberta Court of Appeal in R. v. Caswell earlier this year, he argued that judges betray the public interest when they change the balance between Charter rights and the Criminal Code “whenever it is asserted that ‘it’s different now.” In Brown’s view: “Adopting such a relaxed threshold for doing so also bypasses legislators (who might also consider that ‘it’s different now’), thereby turning the so-called ‘dialogue’ which has been said to describe metaphorically the relationship between courts and Parliament into something closer to a court-to-legislator monologue.”

Prime Minister Stephen Harper concurs. During debate on the judicial imposition of same-sex marriage in 2003, he said: “I would point out that an amendment to the Constitution by the courts is not a power of the courts under our Constitution. Something the House will have to address at some point in time is where its powers begin and where those of the courts end.”

Quite so. Why, then, has Harper not appointed more restrained judges like Brown, who are resolved not to amend the Constitution from the bench?

It is not for want of trying. Harper had good reason to believe that Supreme Court Justice Marshall Rothstein, for example, would act with due judicial restraint on the Supreme Court of Canada. When Rothstein was asked in a public hearing prior to his appointment in 2006 to explain his views on the proper role of judges, he responded: “They should apply the law. They shouldn’t depart from the law. They shouldn’t be inventing their own laws.”

Rothstein reiterated much the same view in objecting to the arbitrary decision of the Supreme Court of Canada earlier this year in Saskatchewan Federation of Labour, which violated a long line of precedents, by declaring that the guarantee of “freedom of association” in section 2(d) of the Charter implicitly confers on Canadians a constitutional right to strike.

In a joint dissent with Justice Richard Wagner, another Harper appointee, Rothstein affirmed: “Democratically elected legislatures are responsible for determining the appropriate balance between competing economic and social interests in the area of labour relations. This Court has long recognized that it is the role of legislators and not judges to balance competing tensions in making policy decisions, particularly in the area of socio-economic policy…. It is not the role of this Court to transform all policy choices it deems worthy into constitutional imperatives. The exercise of judicial restraint is essential in ensuring that courts do not upset the balance by usurping the responsibilities of the legislative and executive branches.”

Nonetheless, Rothstein and Wagner proceeded just one week later to join in the unanimous Carter decision that defied the repeatedly expressed will of Parliament, shattered the Court’s own precedents, amended the Constitution and changed the law to legalize physician-assisted suicide.

Harper, no doubt, hopes that Brown will prove to be more consistent than Wagner and Rothstein in standing by a philosophy of judicial restraint. And the same goes for David M. Brown, Grant Huscroft and Bradley Miller — all recent Harper appointees to courts in Ontario, who, like Russell Brown, have outstanding academic credentials and insist that judges should uphold the laws and the Constitution as enacted and originally understood.

Proponents of judicial activism decry such appointments. They prefer rule by dictatorial judges like those on the Supreme Court of Canada who have invoked the Charter over the past 30 years as an excuse for imposing their personal political preferences on everything from abortion on demand to physician-assisted suicide, legalized prostitution and same-sex marriage.

In contrast, Canadians who cherish freedom, democracy and the rule of law should applaud Harper’s recent appointments of competent, restrained judges committed to the traditional doctrine of the separation of legislative and judicial powers. Only judges who subscribe to this time-honored judicial philosophy can be counted upon to respect the exclusive legislative authority of elected representatives of the people in Parliament and the provincial legislatures to change the law and amend the Constitution.