National Affairs Rory Leishman

In a controversial five-to-four ruling on July 28, the Supreme Court of the United States upheld the Affordable Care Act, otherwise known as Obamacare. From a Canadian perspective, this judgment is particularly notable for the degree of restraint exercised by the Court in arriving rightly or wrongly at the conclusion that the act is constitutional.

In reasons for the majority, Chief Justice John Roberts wrote: “Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.  Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them.  It is not our job to protect the people from the consequences of their political choices.”

Roberts confined his ruling to the authority of the United States Congress to enact the Affordable Care Act under the limited congressional powers granted by the Constitution. In particular, he focused on a key provision of the Act that imposes a penalty on anyone who refuses to purchase minimal Medicare insurance. While Roberts rejected theories advanced by the Obama administration that this charge fell within Congress’s spending and commerce powers, he concluded that for constitutional purposes, the Court could deem the penalty to be a tax that comes within the taxing powers of the Congress.

On this point, the four judges in the minority disagreed with Roberts. In defense of the majority position, Roberts wrote: “Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. ‘Proper respect for a co-ordinate branch of the government’ requires that we strike down an Act of Congress only if ‘the lack of constitutional authority to pass (the) act in question is clearly demonstrated.’ United States v. Harris, 106 U. S. 629, 635 (1883).”

Canadian judges used to exercise similar restraint. They, too, refused to second guess the wisdom of policy judgments entrusted to the nation’s elected leaders. They, too, respected judicial precedents. They likewise confined themselves to enforcing the limited powers granted to Parliament and the provincial legislatures under the Constitution of Canada. And they too, out of respect for the authority of Canada’s elected legislators, would only strike down laws whose constitutional invalidity was clearly demonstrated.

Now the majority of Canadian judges have thrown off judicial restraint. There is nothing in the plain language or the legislative history of the Canadian Charter of Rights and Freedoms to justify the judicial usurpation of legislative powers. Yet under the pretense of upholding the Charter, Canada’s unbridled judicial activists have arrogated to themselves the right to distort the Constitution, overturn laws, violate precedents and dictate policies to elected representatives of the people in Parliament and the provincial legislatures.

On June 15, Madam Justice Lynn Smith of the British Columbia Supreme Court presumed in Carter v. Canada (Attorney General) to strike down the ban on assisted suicide in section 241 of the Criminal Code on the ground that the provision allegedly violates the equality rights of handicapped persons in section 15 of the Charter. As a statement of the law, that judgment is absurd. It not only flouts the express will of Parliament in voting down bills to legalize euthanasia (most recently in 2010), but also flatly contradicts the precedent set by the 1993 Rodriguez judgment of the Supreme Court of Canada, which held, correctly, that the ban on assisted suicide in no way violates the Charter.

In a rambling 395-page ruling, Smith focused mainly on the wisdom of legalizing assisted suicide. Yet she had no constitutional right to discuss this policy judgment, let alone unilaterally change the law to suit her preferences.

While the Carter judgment will be appealed, the outcome is anyone’s guess. Like Smith, the judicial activists on the Supreme Court of Canada have scant regard for established law and the Constitution. Just as Canada’s top court overturned centuries of precedents by mandating gay marriage, so now it is all too likely to legalize euthanasia.

How long will Canadians put up with judicial tyranny? When will Parliament finally invoke its undoubted powers under the Constitution to curb the judicial subversion of democracy?