No, Yaakov Roth, The Supreme Court of Canada Is Not Overstepping Its Boundaries

I see the Harper PMO must have found another muppet to write opinion pieces for them.  In the National Post, we find Yaakov Roth expounding on the "problems" he has with the way the Supreme Court of Canada has been ruling on such matters as safe injection sites and prostitution.

The first thing I want to point out is that Mr. Yaakov Roth is not an expert on Canadian Constitutional Law - he was a Legal Clerk to Antonin Scalia - an American with no particular history in Canadian law.  Further, Antonin Scalia is notoriously conservative in his opinions, and it is in part from him that the entire narrative of "activist judges" started from.

On the D.C. Circuit, Scalia built a conservative record, while winning applause in legal circles for powerful, witty legal writing, which was often critical of the Supreme Court precedents he felt bound as a lower-court judge to follow. Scalia's opinions drew the attention of Reagan administration officials

Mr. Roth's arguments are very much consistent with the false narrative that any time the court rules against a set of laws the judges are being "activist".

I’ve seen my share of eyebrow-raising decisions. But using illegal drugs and publicly soliciting prostitution are, to put it mildly, not activities that come to mind when one thinks of fundamental constitutional rights. How did we get here? How did the SCC go so far off-track? 

The root of the rot, in my view, is not an erroneous legal doctrine or a misconstrued Charter provision (although there are plenty of both), but something far more basic: how the Court finds facts in Charter cases.

First of all, Mr. Roth's position presupposes that he actually understands the rulings he is talking about.  He doesn't.

In Charter cases, however, the relevant considerations often transcend the individual parties and relate more broadly to society as a whole. What are the long-term social effects of allowing prostitutes to solicit business in public? Will safe injection sites encourage increased drug use? The Supreme Court calls these “social facts,” facts about “society at large.” Shockingly, it now treats them identically to ordinary adjudicative facts. Contrary to earlier jurisprudence, Bedford expressly ruled that the trial judge is supposed to review social science, hear from purported “experts,” and make a conclusive determination that is binding on appeal unless “palpably” wrong.

Apparently, Mr. Roth has never actually read Canada's Constitution and come to an appreciation of how that document establishes a guiding framework for all aspects of this nation's government.  In particular, the Charter of Rights and Freedoms establishes a set of rights which is designed to hold in check a government which can otherwise run amok over the interests of its citizens.

Perhaps unique to having "conservative governments", the Supreme Court finds itself being put in the position of arbiter over laws and actions of governments whose overweening desire to control aspects of society that proscription has never effectively controlled.  Under Mulroney, it was the Supreme Court which struck down abortion laws in Canada - for similar reasons to the InSite and Prostitution rulings.  In all of these cases, the laws as written placed citizens into places of increased danger, at the hands of the law itself.

The InSite case was a matter of the Harper Government wanting to shut down the program, in spite of a mountain of clear evidence that it has been effective in reducing the damage done by heroin consumption in Vancouver.  There was no law struck down in that case, rather the government was effectively told that it had to abide by its own rules rather than arbitrarily imposing its political will through policy alone.

The Bedford case on prostitution is more complicated, in large part because the laws surrounding prostitution largely predate the creation of the Constitution in Canada.  Further, the awareness of the impact of those laws on prostitutes (who, I must point out are not criminals under the law), created a peculiar dynamic which ultimately placed the prostitutes in danger.

These are subtle points in law, though.  It is easy, if not silly, to claim that because parliament passed a law that it is valid.  Politicians are creatures of the moment, and prone to creating laws which are to one degree or another reactions to the pressures of the day.  Laws drafted before the 1983 Constitution Acts are very likely going to violate one or more aspects of the Constitution.  This is not a bad thing, it is simply a reality.  A law written when I was born is not guaranteed to be a meaningful law forty years later.  Understandings change, society changes (hopefully for the better), and the impact of that law changes.

In practice, this means that a single, anonymous trial judge is authorized to impose his social worldview on the entire country. In the Insite case, for example, the trial judge found as a “fact” that the social benefits of the safe injection site outweighed its costs. 

Ummm, yes, Mr. Roth.  Perhaps you should go read some of the research that has been published related to InSite.  You know, that objective stuff called evidence?  Does that constitute a "fact", or does the Harper Government's overt hostility to a program based solely on talking points and political spin constitute a stronger "fact"?  Personally, I'll take the one that has actual evidence behind it as opposed to talking points and emotional statements.

Ultimately, these cases — like most Charter cases — are about policy choices. Courts can serve as a useful check on democracy by ensuring that Parliament is using reasonable means to advance its objectives. But turning every social policy issue into a disputed “fact” to be resolved by a single judge after hearing testimony from academics is nothing but a transparent effort to substitute judges’ policy views for those of Parliament  —just what the SCC repeatedly claims not to do.

Here is where Mr. Roth drops the veil of supposedly objective analysis and plays the "activist judge" card.  Unfortunately for Mr. Roth, his entire argument falls apart on this.  There is a fascinating balance in the Canadian Constitution which he fails to understand.  The judiciary, especially the Supreme Court, is in the unique position of acting as a counterweight to the inclination of politicians to be excessive in their legislation and implementation of policy.

The Supreme Court does not deal in the cut-and-dried logic of concrete evidence as one would find in a lower court dealing with a murder case.  They are often called to deal with the law and its impact across the broad swath of society.  Laws are ultimately matters which affect the society which they are written for.  As much as Mr. Roth (and no doubt his mentor, Mr. Scalia) might like to remove "soft facts" such as social impact studies from the picture and only deal in "hard facts", the fact is that the higher courts simply cannot do so and carry out their role effectively.

This is not "judicial activism", as the far right likes to call it.  Rather it is a part of a process which ultimately ends up holding the desires of politicians to exceed their legitimate authority by writing laws which violate fundamental principles set out elsewhere in law.  The Harper Government has done this repeatedly in a swath of laws that it has passed - all of which will have to be challenged in court, or repealed by future governments in order to bring the body of Canada's laws back in line with the principles of our nation's Constitution.