False Claims of Judicial Activism

Ever since the enactment of the Canadian Charter of Rights and Freedom the courts have played an important role in the evaluation of government policy and legislation.  Occasionally – although more frequently as of late – courts have struck down legislation as unconstitutional.

When courts weigh in on the constitutionality of legislation the common refrain from those who disagree are allegations of ‘judicial activism’.

This refrain is a common Conservative touch stone.  It is a reactionary allegation devoid of any intellectual rigour.

Most recently Jason Kenney criticized the Supreme Court’s prostitution ruling stating stating that courts “should be restrained at the exercise of judicial power in overturning democratic consensus.”

Kenny misses the point.  The Supreme Court acted in accordance with democratic consensus.  Applying the Charter is precisely what the courts are empowered to do – this was what democratically elected politicians had in mind when the they enacted the Charter.

In an excellent critic of the Quebec Charter of Values former justice Louise Arbour says it better than I ever could:

We have the good fortune to live under the rule of law. It is tempting to denounce the judicial function as “government by judges” and therefore non-democratic. But the hallmarks of a mature democracy lie in its effective constraints against majority rule where such rule would otherwise trample on fundamental human rights.

It’s also easy to ridicule the intricacies of legal reasoning that produce results that we don’t always like. But in the end, it’s all quite simple. To have rights is like having an umbrella; it’s only useful when it’s raining.

The Charter – tool of the ‘activist judge’ – is the mechanism our parliament chose as an effective constraint against majority rule.

As Henri-Dominique Lacordaire said: Between the rich and the poor, between the master and the servant, between the strong and the weak, it is freedom that oppresses, and the law that sets free.

Again to plagiarize from Louise Arbour – The purpose of law in a free and democratic society is to liberate, not to restrain. It is to create a safe and just environment in which human conduct is regulated and power is constrained so that maximum freedom and safety is attained by all.

Cries of judicial activism miss the point completely.  Laws must meet minimum standards of justice and fairness to achieve their purpose – maximizing freedom and constraining power.  These standards are reflected in the Charter and it is these standards that are applied by so called ‘activist judges’.

It is especially offensive for the Conservatives fall back on the tiered refrain of judicial activism as the Conservative legislative record (see: justice and the environment as excellent examples), is devoid of any evidence based policy decisions.

When legislation is passed without any regard for supporting evidence it is disingenuous to complain when courts – who are governed by evidence – come to different conclusions.

To compound the Conservative’s legislative sins they have not just ignored evidence when considering new legislation but they have actively abdicated their responsibility to the courts.

Take for example Bill C-25 – the Truth in Sentencing Act.  David Daubney, a senior policy advisor in the Department of Justice and a drafter of the bill, testified that not only did he not dispute the evidence undermining C-25 but also suguested that courts would clean up the government’s mess. Mr. Daubney candidly told Parliament that:

Frankly, (C-25’s) impact will be that courts trying to do justice will find that in many cases the circumstances (of pre-sentence custody) do justify (enhanced credit), but we’ll have to see how that plays out.

I think judges will try to the right thing. Another possibility is that they will lower the sentence they would have given in order to somehow take into account any unfairness.

Which is exactly what happened. Every level of court — including the Ontario Court of Appeal — interpreted the restrictive provisions of C-25 as broadly as possible in an attempt to avoid unfairness … just as Mr. Daubney predicted.

It is indeed ironic that a government that makes a habit of crying foul over so-called ‘judicial activism’ abdicated to the courts its own duty to craft laws that are constitutional — and fair.

But this only proves the point – playing the victim of activist judges is for those who lack any intellectual rigour.