Recent Rulings from top court are alarming in re-writing the Canadian Constitution

What causes concern

is the absence of any rational basis for its rulings

The court has always been wobbly on speech cases, but it had never before gone so far as to justify restricting speech in the name of freeing it. ?
 The record will show that it was the Conservative Prime Minister Stephen Harper who presided over, indeed selected, the most liberal-activist court in our history. Not just liberal: activist.

The dust is still settling from last week’s historic ruling of the Supreme Court in the matter of euthanasia. One early casualty: judicial restraint, the fading notion that the courts, in interpreting the law, should be bound by something — the written text, the historical record, precedent, logical consistency. One by one, the court in recent years has liberated itself from these constraints; with the legalization of “assisted death,” it has slipped free altogether.

Indeed, the record will show that it was the Conservative Prime Minister Stephen Harper who presided over, indeed selected, the most liberal-activist court in our history. Not just liberal: activist.

On the first half of that statement, there can be no argument. This is indisputably Harper’s court. He appointed seven of the nine judges. Of these, two — Marshall Rothstein and Thomas Cromwell — were appointed while the government was still in a minority position. The other five — Michael Moldaver, Andromache Karakatsanis, Richard Wagner, Clément Gascon and Suzanne Côté — were appointed in the last four years, after the Conservatives had won their long-sought majority. If the court more and more resembles a runaway train, it is Harper’s train, as it will be Harper’s wreck.

Indeed, there is but one Liberal appointee, Rosalie Abella, on this most liberal of courts, Chief Justice Beverley McLachlin having been appointed by the Conservative Brian Mulroney. Yet in one decision after another — prostitution, hate speech, the Nadon and Senate references, the right to strike — the court has taken it upon itself of late to push the boundaries of Canadian law to the limit, going where no previous Supreme Court would have dared. In some cases it has ignored precedent, in others it has rewritten the constitution. In the aggregate it has become almost impossible to discern any coherent underlying philosophy in the Court’s rulings, or to predict with any confidence how it will rule on a given question.

’Twas ever thus, of course — up to a point. The courts will inevitably put someone’s nose out of joint no matter how they rule, and while conservatives have long railed against “judicial activism,” they too often seem to mean any exercise of judicial review: the mandate, assigned to the courts by Parliament, to compare the law in front of them with another, more fundamental law — the Constitution — and to the extent of any discrepancy between the two to declare the former to be of no force or effect.

What makes a decision “activist,” then, is not merely that it results in this or that law “passed by a democratic Parliament” being overturned, but whether it does so in accordance with Parliament’s own previously expressed wishes: that is, whether the grounds for the decision can in fact be found in a sensible reading of the Constitution, or whether the court made it up. Even allowing for some difference of opinion over what is reasonable, it is clear that not every such reading can be defended, as it is sometimes clear that no reading was even tried.