On Dec. 20, the Supreme Court of Canada handed down its decision in Canada v Bedford, the latest in a long string of arbitrary and outrageous judicial excesses over the past 30 years that not only struck down long-standing legislative restrictions on prostitution, but also demonstrated, once again, the Court’s inveterate contempt for genuine democracy and the rule of law.
Not so long ago, the great majority of Canadian judges were practitioners of judicial restraint. They upheld the separation of legislative and judicial powers – a fundamental principle of democracy that obligates judges to respect the exclusive legislative authority of elected representatives of the people.
In Bedford, the Supreme Court of Canada exercised no such restraint. Instead of upholding the prohibitions in the Criminal Code on bawdy-houses (s. 210), living on the avails of prostitution (s. 212), and communicating in public for the purposes of prostitution (s. 213), the Court struck down all three laws on the pretence that they violate the rights of prostitutes to “life, liberty and security of the person” in section 7 of the Canadian Charter of Rights and Freedoms.
This ruling has no basis in law or precedent. Prohibitions on bawdy-houses and living on the avails of prostitution date back to the beginning of the Criminal Code of Canada in 1892. There is nothing in the plain language or the legislative history of the Charter to suggest that members of Parliament and the provincial legislatures intended that the Charter would nullify existing laws on prostitution. Still less is there any reason to believe that these legislators understood that the Charter gave prostitutes the right to solicit for customers.
Practitioners of judicial restraint do their best to uphold and apply the laws as originally understood to changing social circumstances. In marked contrast, judicial activists take it upon themselves to treat the laws and the Constitution as so many living trees subject, as they see fit, to pruning, trimming and twisting out of all original appearance by arbitrary judicial decree.
These same judicial activists are disposed to disregard any authoritative precedent that stands in the way of their desire to update and change the law. Thus, in Bedford, the Supreme Court of Canada arbitrarily set aside its ruling in the Prostitution Reference, 1990. Asked in this latter case if the legal bans on bawdy-houses and soliciting for prostitution violate section 7 of the Charter, the response from the Court was clear and unambiguous: “No.”
As a statement of the law, that should have settled the issue. Respect for binding precedent is essential to the rule of law. In Woods Mfg. Co. Ltd. v. the King (1951), Chief Justice Rinfret explained: “Without this uniform and consistent adherence the administration of justice becomes disordered, the law becomes uncertain, and the confidence of the public in it undermined.”
Chief Justice Beverley McLachlin likewise acknowledged in her reasons for judgment in Bedford: “Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.” Precisely so. But what did she and her colleagues on the Court proceed to do in Bedford? Under a cover of legal chicanery, they unanimously flouted the Prostitution Reference; struck down three key provisions on prostitution in the Criminal Code; and gave Parliament one year to enact what the Court considers an acceptable new set of laws on prostitution.
That is typical of what now passes for democracy in Canada: unelected judicial activists on the Supreme Court of Canada arbitrarily strike down some laws, amend others, and presume to dictate policy guidelines to elected representatives of the people in the legislative branch of government. This high-handed judicial behaviour is just fine with the great majority of contemporary lawyers, law professors and judges in Canada: evidently, they relish the vastly increased powers, prestige and wealth that have been conferred on the legal profession by the judicial usurpation of legislative authority.
The Bedford ruling is all the worse for having been unanimous. It confirms beyond doubt that even all five judges who were appointed to the Supreme Court of Canada by the Harper Conservative government have no compunction about overturning established laws and defying the will of Parliament.
The question is: how long will the rest of us Canadians put up with this judicial abuse? When will Parliament finally invoke its undoubted authority under the Constitution to tame these rogue judges and reinstate the separation of powers?