What we’re talking about when we talk about ‘judicial activism’

Has the Supreme Court gone too far?

Sean Kilpatrick/CP

Sean Kilpatrick/CP

In the wake of landmark decisions on assisted suicide and the right to strike (among others), there appears to be a new renaissance for decrying the “judicial activism” of the Supreme Court of Canada.

Andrew Coyne accuses the Court of ignoring precedent, rewriting the constitution and basically lacking “any rational basis” for its decisions. Conrad Black is equally critical. Stockwell Day accuses the Court of writing law, rather than merely applying existing law. Gordon Gibson arguably goes even farther, calling the Court “the greatest threat to our democracy,” and accusing it of “making” rather than merely “interpreting” the law. And Brian Lee Crowley complains of the “unaccountable” and virtually unlimited control judges have over the meaning of the Charter, allowing them to trump legislation and introduce uncertainty into the law. In the view of all of these critics, it is asserted that judges have abandoned the “appropriate” level of judicial restraint.

Charges of judicial activism, however, are inherently tricky and sometimes incoherent. In a lot of public discourse, complaints about activist decisions are simply complaints from someone who disagrees with a particular outcome. When expressed as disagreement, using the concept of judicial activism isn’t very helpful; one person’s activism is another person’s legitimate exercise of judicial authority to uphold the constitution.

Léonid Sirota, who writes an award-winning legal blog, drives this point home in a critical response to Coyne’s column. Coyne’s argument is more sophisticated than merely disagreeing with a decision; instead, it focuses on the Court’s reasons, essentially defining judicial activism not as merely an “incorrect” decision but, an “unreasonable” one. Sirota ultimately finds even this frame unhelpful (or at least unconvincing, in relation to the cases that are the subject of Coyne’s ire). Reasonable people can debate whether Coyne is right about the reasonableness of the Court’s decisions. I think there are other problems with Coyne’s argument, the most glaring of which is the assertion that the current Court is the most activist in Canada’s history. He is almost definitely wrong on this point; while the Harper government has lost quite a few prominent constitutional cases, the Court has not been invalidating government decisions or laws with anywhere near the frequency of the late 1980s to mid-1990s.

But do these critiques of the judicial activism concept make the concept itself irrelevant? Can the Supreme Court be activist in any sense? Many lawyers and legal scholars seem to think the Court cannot be activist. In other posts, Sirota has argued that judicial activism is “near-meaningless” and non-existent. On Twitter, a few lawyers I engaged with argued that the Court can’t be activist because whenever it invalidates a law, overturns a government decision or influences public policy it is merely performing its role (a role that the constitutional framers of 1982 expressly gave it, and which in other ways it has always had, as when it adjudicates federalism disputes).

This strikes me as completely wrong. For one thing, it is premised on a view that the constitution is only what the judges say it is. For some in the legal community, this apparently means the Court literally cannot err in its interpretation of the law. Other legal commentators have a slightly more nuanced view but one that basically amounts to the same thing: sure, judges can err, but as United States Supreme Court Justice Robert Jackson famously said: “We are not final because we are infallible, but we are infallible only because we are final.”

This is a cute play on words but it is still fundamentally nonsense. Most importantly, it ignores the enormous amount of discretion Supreme Court justices have when interpreting the constitution. On many of the difficult cases that reach the Supreme Court, one set of nine judges will reach a completely different decision than another set of nine judges. For that matter, every time there’s a dissenting judgment is proof that there is no obviously “correct” outcome required by the law.

At its most fundamental, there is a tendency among some in the legal community to view law as something that is completely autonomous from politics, morality and ideology. But in cases involving inherently political and moral issues like assisted suicide or complex public policies like labour relations or the health care system, judging itself has inherently political elements.

To be clear, I am not claiming that law is nothing but politics. I wrote an entire book arguing against the idea that judging is only politics in another form; I do not agree with those who simply label judges as “liberal” or “conservative” and believe that ideology is all that matters. The law, legal precedent, the constitutional text, and the institutional norms and processes within the Court all make a difference in shaping and constraining judicial decisions. But law and politics overlap. Judges’ ideologies matter. And this is not just about recognizing that judges are humans and therefore fallible, it is about recognizing that Charter cases are political and the Court itself is a political institution.

From this perspective, we have to recognize that the meaning of the Constitution itself is independent, in an important sense, from what the Court says it is; the Court doesn’t always get it right, and the other branches of government may have a legitimate interpretation of the Constitution that diverges from it. We also have to recognize that judicial activism is real. And here is where political science comes in, because it provides a definition of judicial activism that has nothing to do with whether one likes or agrees with a given judicial decision.

Instead, judicial activism has an empirical definition that can be understood in both a quantitative and qualitative sense. In a quantitative sense, activism can be measured based on the frequency with which the Court invalidates laws or impacts government policy. A deferential court that never overturns government decisions is not activist, a court that always does so is the most activist. As political scientists like Christopher Manfredi argue, judicial activism can be seen as being on a spectrum. Our Supreme Court is “activist” in about 35 percent of Charter cases.

But saying that does not make a claim about whether this level of activism is inappropriate or desirable. Indeed, given the whole purpose of the Charter of Rights, a completely “restrained” Court would arguably be as problematic as one that is constantly making policy. Whether the Court is “too activist” is a normative judgment that people are free to argue about. But under this definition, to say that activism is meaningless or does not exist would be incorrect.

The Court can also be activist in a qualitative sense. Take the Court’s decision in the InSite case, involving Vancouver’s supervised drug-injection facility. The federal government sought to shut InSite down by refusing to extend an exemption for the facility under the Controlled Drugs and Substances Act. The Court ruled that this particular decision by the health minister violated InSite’s clients’ right to life, liberty and security of the person by imposing increased risks of harm. But the Court did not declare that the general use of the minister’s discretion was unconstitutional. It did not strike down any part of the law. Nor did it order other provinces to open their own supervised injection facilities. Thus, even in the context of a particular decision, a Court might be more or less activist in its reasoning.

Judicial activism is a tricky concept, and it is often used in completely subjective ways. The public debate about judicial power is incredibly important precisely because the Court wields so much policy influence. A lot of the time charges of “activism” do not seem particularly helpful in clarifying the terms of that debate. A big problem is that the Court’s critics and critics of judicial activism are both wrong, albeit in opposite directions. The former think that judges should just stick to “the law,” as if that were possible, while the latter think the Court’s decisions are only about the law because the policy consequences are merely the result of what the constitution means.

Dismissing the notion of judicial activism entirely is to deny that judges have the discretion—which they invariably exercise—to act with more or less deference to the decisions of democratically elected governments. In this sense, the concept itself remains useful and important.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. His book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role was published in 2013 by UBC Press. Follow him on Twitter @EmmMacfarlane


What we’re talking about when we talk about ‘judicial activism’

  1. Whenever Conservatives (especially the religious flank( don’t agree with a Supreme Court judgement, they call it ‘judicial activism’. Or the tired cliché used by the defunct Sun News: ‘activists judges’.
    When they agree with a decision, you never hear Conservatives utter those words.

  2. “The law, legal precedent, the constitutional text, and the institutional norms and processes within the Court all make a difference in shaping and constraining judicial decisions.”

    You forgot an important element: evidence, introduced via the normative rules of evidence that have evolved in western democracies with the “rule of law” for centuries. Evidence is notable by its absence in many of the recent SCC decisions that have been decried as judicially activist. An example is the InSite decision, wherein the evidence presented to the lower courts and embraced by the SCC wholly focused on individual “harm”, v. social “harm” (e.g. increase in crime rates in vicinity of InSite, allocation of limited resources away from other treatment facilities that also reduce “harm”) for which ample contrary evidence was available, but not tendered or, in any event, disregarded or ignored.

    Concerning the physician-assisted suicide decision, what evidence was considered as to whether a large enough “harm” even existed to warrant such a judicial renting of the social fabric as to unfetter care givers from their vow to do no harm? Certainly, there was much anecdotal evidence about unfortunates whose physical conditions rendered them incapable of ending their lives at the time they desired to do so, but are such circumstances so common as to warrant breaching the “hard cases make bad laws” adage? One will search in vain for a substantive analysis on this point in the SCC decision, as it’s clear it wasn’t anything the SCC wished to have cloud the accolades it expected to receive from those who are in thrall with its Charter-empowered reshaping of society.

    The 9 years since a conservative PM was first handed the judicial appointment reins in a post-Charter country seem to have established that appointing “conservative” judges isn’t making much of a difference. It unfortunately appears that the next step in wresting the power to decide collectively what type of society we wish for ourselves back from the judges by invoking the “notwithstanding clause” will have to wait for the next.

    • The ‘notwithstanding’ clause is no longer valid…..

      Plus you can’t freeze law in amber….it changes with the times.

      • No, you can’t freeze laws in amber because they’re ideas and moral concepts. They’re not your latest Justin Trudeau figurine. They’re laws and the ideals which this country was built upon because they’re the things this great nation was built upon.

    • Well I am guessing you did not watch the proceedings before the lower court, which is where evidence was called. In any event, the Court has no control over what evidence is called, except to exclude evidence that violates the rules of evidence.

      If there was substantial evidence supporting the position of the government in either case, it was the responsibility of the government to bring that evidence forward. You cannot blame the court for the evidence that is called.

      You do not have to invoke the notwithstanding clause, though that is certainly one way to obtain the result you desire. It is also an extremely political measure that has to be renewed every 5 years. Perhaps the current government recognizes invoking it will not be the politically wise move?

      In any event, the real way to get the result you want is to amend the constitution. The courts answer to the constitution, and the people of this country have the power to change the constitution if they have the numbers to do so. You will likely find, however, that there is little appetite to change the constitution to get the result in either decision you complain of.

      • The SCC may not have control over evidence, but they most certainly have control over what cases to grant leave to, which they regularly employ to ensure cases they do hear have good evidence. They also have the power to grant intervenor status to balance out what may have been lacking in an evidentiary sense at the trial level. Perusing the list of interveners in the InSite decision will give one a very good perspective on what the current SCC considers to be “balance”.

        As for the notwithstanding clause being an “extremely political measure”, it is this attribute that makes it the appropriate response to the extremely political judgments that are the subject of this piece. Whether invoking it is politically wise is difficult to say, given that, notwithstanding (pardon the pun) upwards of 30 years of judicial meddling with the fundamental tenets of society, it has never been invoked in any meaningful way.

        I am no harbinger of change, but my sense is we have reached the apex of Charterphilia and with every new cop killing by someone out on bail and parliamentary shoot-up by someone the police knew about, but lacked authority to restrain, the public’s zeal for innovative new Charter-protected rights (the right to wear a niqab while piloting a commercial aircraft!) diminishes.

        • “the fundamental tenets of society”??

          You mean YOUR tenets….from 12 15 or summat.

        • Well they can only grant leave to those who apply for it, so if there is an imbalance that is because only certain agencies applied. In fact, the provinces always have standing to intervene in criminal cases, and yet only one saw fit to intervene in this case. Again, you can’t blame the court for that. In any event, intervenors cannot introduce evidence.

          As for the Rehn case you refer to, I don’t think the Charter had anything to do with it. In fact most lawyers seem to agree he should have been denied bail. Not because there was any foreseeable risk he would shoot a cop (there was none), but rather because his history of failing to appear suggested he would likely fail to appear again. What happened in that case was horrific, but the only one to blame for that murder is the murderer.

          There are no “innovated, new Charter rights”. There are only Charter rights.

          • Insite wasn’t a criminal case. I never said interveners introduce evidence, I said they represent an opportunity for the SCC to balance out submissions, especially if evidence is poor or the case isn’t particularly evidence-driven (which is true of most “rights” cases, except replace “isn’t particularly evidence-driven” with “is commonly utterly devoid of “evidence”, at least in the conventional sense”). The Charter is why the likes of Rehn must be released, unless the Crown can cobble together a case for detention that, oddly, must be stronger than the case for conviction. Not surprisingly, this rarely occurs. I’ll adopt your vernacular – there are only Charter rights, although an increasing number are only discernable via judicial urim and thummim.

          • It was a case dealing with the interpretation of a provision of the Controlled Drugs and Substances Act, which is criminal legislation (as indicated in the headnote of the decision). And only Quebec sought to be heard. If there was so much evidence and support for a contrary position to that settled on by the SCC, it is a shame no one bothered to tell the SCC.

            Rehn was released because of release provisions found in the Criminal Code of Canada, not the Charter. There is simply nothing to support your assertion he was only released because of the Charter. I am quite certain that if there was any reason to believe he would act so violently as to kill a police officer, he would not have been released, and denying him release on that basis would not have violated any Charter provision.

            And where you get the idea that the Crown’s case on release must be higher than that for conviction I will never know, but you are absolutely wrong about that one.

          • Saying Insite was a criminal case is to engage in semantics, which increasingly appears to be your stock in trade. In reality, it was a case about a federal government decision to discontinue a “treatment” program that, among other things, entailed the granting of an exemption under the CDSA. The SCC decided, not for the first time, it knew better than the government about what programming that government should do.

            Concerning judicial release being a concept in current Canadian criminal justice deriving from the Criminal Code, moreso than the Charter, this is an assertion that would cause a first year constitutional law student to fail.

            The Crown fails more on detention motions than on convictions at trial. You could look it up, however, your posts belie an disinclination to do anything beyond brief perusals of head notes.

          • Seriously? You think bail was never granted to an accused person before the Charter? Here, let wikipedia tell you:

            “The Canadian law of bail originates from the British legal tradition (see main article: Bail In England and Wales). The first major Canadian legislation with respect to bail was in the criminal legislation package of 1869; in that law, the federal government made bail discretionary for all offences.”


            In any event, you have failed to even address the point, which is that even with the Charter, if there had been actual evidence this man was a risk of such violent behaviour, he would have been detained. In the same way hundreds of people are detained every year when such evidence exists. I know the facts are inconvenient for you, but the truth is his record demonstrated justification to deny bail for his propensity to fail to attend court, but nothing on his record justified detaining him because he might shoot a police officer.

            Speaking of “looking things up”, perhaps you want to look at the SCC decision on Insite, where in the headnote they describe this as a criminal law case. See, while the substance of the decision did not relate to charges, it did relate to the interpretation of a criminal statute. The point being that the provinces had a right to intervene, and did not. Though I suppose the fact you have been wildly veering away from that point may have been intentional.

            Finally, the reason more people are released on bail is not because the crown “fails”. In fact they often, very often, agree to release. One reason may be that even though the offender is guilty, he or she is not going to receive a jail sentence for the crime. So your attempt to conflate bail and convictions is pretty much meaningless.

          • Seriously? You don’t think the Charter now infests every aspect of criminal law in Canada. You don’t think even as you read this there aren’t hundreds of criminal defense lawyers thinking up new ways to argue their client’s Charter rights were breached in some novel way by some aspect of the justice system? My personal favourite was the Charter protected right to cleaner underwear. You, however, insist that the evolution of the pre-trial release in Canada since 1983 has not had any Charter influence. Perhaps it is you for whom facts are inconvenient.

            Your insistence that Insite was a criminal case because that is what the headnote says is further confirmation of what your previous posts imply – whatever might be your legal knowledge, you demonstrate little or no understanding. The exemption clause in the CDSA that caused the headnote to reference “criminal law” was the cart, not the horse. The SCC reasons were devoid of substantive analysis of the clause because the interpretation of the clause was not at issue in the appeal. You’re fond of looking things up – try “ratio decidendi”.

            Your fixation on Insite being about criminal law provides a convenient distraction from the point that begat all this, namely the “non-activist” SCC granting leave to interveners so that the pro-safe injection site interveners outnumbered the anti-safe injection site by at least 10 – 1. Your response to my pointing out this ratio was to ramble on about the right of provinces to intervene in SCC criminal cases, as if that somehow mattered. The shallowness of your legal analysis is exacerbated by your apparent misunderstanding of the point you seek to refute.

            Speaking of that point, let me dumb it down for you: the general public’s enthusiasm for courts never-ending quest to find a breach of Charter rights lurking in every interaction in life is waning. Knock yourself out.

          • Sigh. Try reading. It helps.

            I refer to this as a criminal law case (which it is) because the provinces do not even have to apply for leave to intervene in criminal cases (such as this one). That is why the headnote (written by the SCC, by the way) refers to this as a criminal law case. Any case that deals with the interpretation of a criminal law statute is one where the provinces have the absolute right to intervene – as in the SCC cannot deny them standing. So despite the fact that every province in Canada had the right to have their position heard on this, only Quebec intervened. You are blaming the SCC for the lack of “balance”, when in fact that so called lack is because, and read this carefully please, NO ONE REPRESENTING YOUR POINT OF VIEW APPLIED TO INTERVENE. Or at least, none of the provincial justice ministers who one would presume would support the Federal Government position. So your whining about this is totally misplaced; based on wrong facts.

            So too is your position on the bail provisions. As I have stated repeatedly, there are no Charter rights that demand someone who is likely to kill a police officer if released be released. The facts in this case simply do not support your assertion otherwise – something else I have stated repeatedly, and you have ignored, repeatedly. If you are correct, then no one would ever be denied bail, and the remand centres across the country are full of people who would be surprised to learn that.

          • Sigh. Stop tilting at windmills. And yelling. And arm-chair lawyering lest, god forbid, someone take your posts as correct.

          • Heh. I take it you have finally figured out where you went wrong.


          • Not quite done yet. A modest proposal. Don’t come back and post about legal stuff until you can link to a source for this:

            Any case that deals with the interpretation of a criminal law statute is one where the provinces have the absolute right to intervene – as in the SCC cannot deny them standing.

          • Fair enough. They have an absolute right to intervene in constitutional cases, not criminal cases. See SCC Rule 32. Not that it helps you, since Insite was a constitutional case, so my point is still valid.

            In any event, seems to me you were the one asserting the SCC refused to hear a balance of opinions, so seems to me the onus us on you to show groups who agree with your position applied to intervene, and were refused.

            Good luck with that.

          • Precision and correctness are overrated as attributes of legal advice, notwithstanding the view of law society assurance funds. BTW, you might want to add the 1-800 number of yours to your business cards.

          • So I assume by your reply you are a)conceding my point, and b) acknowledging you cannot back up yours.


  3. The problem with the SCOC assisted killing decision is “stare decisis” or precedent. It ignored its own prior decision. Flip-flopping every 20 years brings the law, the constitution, and the SCOC into disrepute.

    It means people are less likely to accept the decision of the court and move on, and keep fighting, and try to get a court of slightly different composition to ignore the previous decision. 20 years is not enough. It is the court politicizing and delegitimizing itself.

    It shows extreme hubris to throw out a decision just 20 years old. If the court doesn’t respect its own precedent. Why should we? We should just get a bunch of new justices and go re-litigate all the decisions that we might not like.

    • “the decisions that we might not like”….exactly. Change ’em

      20 years is considered a generation.

    • The laws do change over time. That is the entire basis of our common law legal system.

      In this case the decisions shaping Charter s. 7 have evolved considerably since the first assisted suicide decision. In other cases the law does not change much at all and cannot be used to justify overturning a previous decision, no matter how old.

      • I hope you don’t do this for a living.

  4. I agree with Lou. And will take it further. “Judicial Activism” is very popular with right wing Republicans. In the United States. The Conservatives are just echoing that. Because that’s what they do.
    I believe that Mr. McFarlane is overthinking this.
    Frank Lutz, a Republican strategist in the States, used the term extensively while counseling Tories in 2006 on election strategies.
    This is not a new thing.
    It’s Republican speak. I rank it up there with Saint Ronnie’s welfare queens.

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