Justice Rosalie Abella has retired from the Supreme Court of Canada, and none too soon.
As Professor Bruce Pardy of Queen’s University explains in the article which follows, she was an energetic promoter in her own person and ideals of the upsetting belief that judges are placed on the court to correct and perfect the life of society, as distinct from simply ensuring that the law and the Constitution as made by Legislators are correctly observed.
professor of law at Queen’s University and senior fellow with the Fraser Institute.
Madam Justice Rosalie Abella, Canada’s foremost activist judge, is retiring from the Supreme Court. When Paul Martin appointed Abella to the Court in 2004, columnist Andrew Coyne mocked the selection, writing that she was “so far out of the mainstream, even among liberal jurists, that her appointment can only be seen as a deliberate provocation.” But that was then. In a recent interview, Abella recalled Coyne’s comment to Maclean’s journalist Paul Wells, who correctly observed that if Abella was out of the mainstream at the time, she certainly is not now. Thanks in part to her influence, Canada’s highest court has excelled at making up the law.
Abella was by no means the first or only activist judge at the Supreme Court. She distinguished herself not in holding the conviction that the court knows best, but in her breathtaking shamelessness in putting it into effect. She has been explicit that the buck stops with the court on fashioning social policy. The court’s job, she told Wells, is to do the right thing when politicians won’t. In a 2018 speech in Jerusalem, later published as a column in the Globe and Mail, Abella said that supreme courts must be independent because they are “the final adjudicator(s) of which contested values in a society should triumph.”
It was not always thus. Once upon a time, courts were to apply the law but not to make it. Legislatures, not courts, decided social policy since legislatures were elected and had democratic legitimacy. If legislation comported with the division of powers between the provinces and the federal government, courts generally applied it according to its terms. Justice Brian Dickson, later the Supreme Court’s chief justice, in a 1978 decision, rejected the notion that the court should weigh political and socio-economic issues, which would necessarily reflect judges’ personal beliefs. He cited U.S. Supreme Court Justice Benjamin Cardozo, who wrote in 1921 that a judge “is not to innovate at pleasure. He is not a knight errant, roaming at will in pursuit of his own ideal of beauty or of goodness.”
Some judges still believe in this principle. Last October, Federal Court of Appeal Judge David Stratas wrote in a decision, “(Judges) are just lawyers who happen to hold a judicial commission … We are not a roving commission of inquiry able to investigate whatever we wish. We are not policymakers empowered by huge budgets to decide what is best for millions. Nor are we high priests who can arbitrate values, judge what is “just,” “right” and “fair” and give benediction to our personal beliefs.”
Our chattering classes largely disagree. In the present era of the Canadian Charter of Rights and Freedoms, amongst lawyers, academics, mainstream journalists, and social activists, judicial supremacy is now perceived as the natural order of things. Politicians and legislatures are a source of mischief. Courts are there to put things right, bring wisdom to social problems, and achieve equity. The Ontario government’s recent announcement that it would reintroduce legislation to restrict third-party campaign spending using the charter’s notwithstanding clause was met with outrage, not because the law limited freedom of speech — other laws limit freedom of speech that the intelligentsia care little about — but because a court had said the law limited freedom of speech and violated the charter
Abella has been a leading advocate for the “living tree” doctrine of constitutional interpretation, which for decades has given judicial licence to interpret the Constitution “in a manner that is sensitive to evolving circumstances” (which means, we’ll do as we think best) rather than determining meaning based primarily on the words of the text. Perhaps appropriately, the living tree itself is a product of creative misinterpretation. It is said to come from the “Persons Case” decided by the Privy Council in 1929 that held women were eligible for appointment to the Senate under the Constitution Act, 1867. However, the decision itself contains no “doctrine” or endorsement of flexible constitutional interpretation at all. As Toronto lawyer Asher Honickman has written, “(T)he decision that is held up in Canada as the seminal defence of the living tree doctrine actually advocates textual originalism.” The doctrine that allows for creative misinterpretation of the constitution is the product of creative misinterpretation of the caselaw. It’s all made up.
Consequences are easy to find but difficult to catalog. Some examples: the court said in 1993 that the charter does not include the right to assisted suicide, but in 2015 decided that it does; that the charter right to “life, liberty, and security of the person” does not include the right to receive benefits from the government but one day could; that fundamental freedoms in the charter are negative rights to be left alone, but the freedom of association includes the positive right to legislation that facilitates collective bargaining; that the right of every individual to equality under the law may require different rules for different groups; that section 35 of the Constitution Act, 1982, which affirms existing Aboriginal and treaty rights as of 1982, includes an open list of new rights never seen prior to 1982; that section 121 of the Constitution Act, 1867, which says that goods from any province shall be admitted freely into any other, does not mean that goods from any province must be admitted freely if a provincial regulatory scheme gets in the way; that charter “values” mentioned nowhere in the text of the charter enable state bodies to override charter rights listed in black and white. Consistent with Abella’s vision, the constitution is a restraint on the power of legislatures, but it does not much restrain the court.
Roaming knights errant indeed.