National Affairs Rory Leishman

What is the proper role of a judge in a constitutional democracy? Prior to the 1970s, there was no dispute over this issue within the legal professions of Canada and the United States: Almost all lawyers, law professors and judges agreed that, in essence, a judge should interpret and apply established legal principles, while respecting the exclusive authority of elected representatives of the people in the legislative branch of government to change the law and amend the Constitution.


In Democratic Government and Politics, a standard textbook used in universities across Canada from the late 1940s to the 1960s, John A Corry, Principal of Queen’s University and a founder of the Queen’s University Law School, noted that for people in a free society to know what the law permits and requires, “the law must have a fair degree of certainty.”

He explained: “A law that is always changing is uncertain and defeats its own purpose. Moreover, if it is admitted that the judges can change the law, people lose confidence in it and them.

“Accordingly, judges are sworn to apply the law as they find it. For the best of reasons, and with complete honesty and considerable truth, the judge insists that he does not make law but only interprets it.”

The great majority of Canadian judges still insist that, in essence, they do not make law but only interpret it. But are these claims credible?

Consider the judgment on March 26 by the Ontario Court of Appeal in Canada (Attorney General) v. Bedford. At issue in this case is the constitutionality of the laws on prostitution in the Criminal Code including

section 210, which prohibits the operation of “common bawdy-houses” (otherwise known as houses of prostitution), and section 212(1)(j), which prohibits living off the avails of prostitution.

At trial, Terri Jean Bedford, a 52-year-old former prostitute and dominatrix, claimed that by preventing prostitutes from practicsing their profession in the safety of well-guarded and supervised brothels, these criminal laws violate the constitutional rights of prostitutes to life, liberty and security of the person as guaranteed in Section 7 of the Charter.

It happens that the Supreme Court of Canada dealt with the constitutionality of the law on bawdy houses in the 1990 Prostitution Reference.  Asked specifically if the prohibition of bawdy houses for the purposes of prostitution in the Criminal Code is “inconsistent with section seven of the Canadian Charter of Rights and Freedoms,” Chief Justice Brian Dickson served up a simple and unqualified answer – “No.”

With this ruling, Dickson and his likeminded colleagues on the Court fulfilled their sworn duty to uphold the law and the Constitution as they find it. Notwithstanding the argument of counsel for the prostitutes in Bedford, there is nothing in the plain language or the legislative history of the Charter to suggest that Parliament and the provincial legislatures intended the Charter to authorize the courts to change provisions of the Criminal Code existing at the time the Charter was adopted.

The ruling of the Supreme Court of Canada in the Prostitution Reference constitutes an incontrovertibly valid and binding judicial precedent. As Corry so clearly and authoritatively stated: “Once the highest court of appeal has ruled on a particular question, its decision is binding on itself and all lower courts, until the legislature changes the rules.”

In Bedford, the Ontario Court of Appeal likewise acknowledged: “The notion of binding precedent … requires that courts render decisions that are consistent with the previous decisions of higher courts. The rationale for the rule is self-evident: It promotes consistency, certainty and predictability in the law, sound judicial administration, and enhances the legitimacy and acceptability of the common law.”

In the so-called Persons case of 1929, Viscount Sankey maintained that: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” On this basis, does it follow that the lower courts are free to amend the Constitution and overturn valid precedents set by the Supreme Court of Canada in the light of changing social conditions, new evidence and evolving attitudes?

Not so, declared the Ontario Court of Appeal in Bedford. The Court said: “If it were otherwise, every time a litigant came upon new evidence or a fresh perspective from which to view the problem, the lower courts would be forced to reconsider the case despite authoritative holdings from the Supreme Court on the very points at issue. This would undermine the legitimacy of Charter decisions and the rule of law generally. It would be particularly problematic in the criminal law, where citizens and law enforcement have the right to expect that they may plan their conduct in accordance with the law as laid down by the Supreme Court. Such an approach to constitutional interpretation yields not a vibrant living tree but a garden of annuals to be regularly uprooted and replaced.”

Corry could not have stated the fundamental importance of abiding by valid judicial precedents any better. Neither could any other genuine proponent of judicial restraint. But what did the judicial activists on the Ontario Court of Appeal actually do in Bedford? Despite their protestations of respect for judicial precedent, they proceeded under a fog of legal obfuscation to reverse the decision of the Supreme Court of Canada in the Prostitution Reference, by striking down the prohibition on common bawdy-houses in section 210 of the Criminal Code on the ground that this provision jeopardizes the safety of prostitutes and thereby violates their rights to liberty and security of the person in section 7 of the Charter to an extent that cannot be justified in a free and democratic society.

In this same ruling, the Ontario Court of Appeal held that the prohibition on living off the avails of prostitution in section 212(1)(j) of the Criminal Code likewise violates section 7 of the Charter. But in this instance, instead of striking down the entire provision, the Court arbitrarily changed the law by reading in a new requirement that living off the avails of prostitution is prohibited only “in circumstances of exploitation.” The Court explained that as a result of this judicial amendment to the law, “where the accused is providing services to the prostitute for the purpose of her prostitution, absent proof of exploitation, no offence would be committed.”

Bedford is all too typical of the excesses committed by judicial activists: Under the pretext of respecting judicial precedent and the requirements of the Charter, they arbitrarily amend the law and the Constitution.

If the Harper government decides upon a further appeal of Bedford, what will be the outcome? No one can know for sure, because the Supreme Court of Canada has become a law unto itself over the past 30 years. Without any legal justification, Canada’s top court routinely changes fundamental principles of the law as found in duly enacted statutes, the Constitution of Canada and its own valid judicial precedents.

In one notorious instance, R. v. Labaye (2005), Canada’s top court overturned longstanding precedents defining the law on keeping a “common bawdy house” for the “practice of acts of indecency” in section 210(1) of the Criminal Code, by arbitrarily legalizing consensual performances of group sex in nightclubs open to the public.

Given numerous judicial excesses like Labaye, there can be no certainty that the Supreme Court of Canada will not soon proceed to legalize both prostitution and physician-assisted suicide in violation of the precedents set by the 1990 Prostitution Reference and the 1993 Rodriguez judgment.

How long can Canada’s judicial dictators get away with subverting the law, the Constitution and the separation of legislative and judicial powers under the pretence of upholding the Charter? That remains to be seen. However, advocates and practitioners of judicial restraint have good reason to believe that Corry was right: If judges are seen to change the law, people will eventually lose confidence in it and them.