Here Be No Dragons

Andrew Coyne, with whom I am often inclined to agree, has written an angry column arguing that the current Supreme Court is “the most liberal-activist … in our history.” Mr. Coyne claims the Court’s decisions in l’Affaire Nadon, the Senate Reference, the collective-bargaining and right to strike cases, and above all Carter, the assisted suicide case, show that it has broken free of any constraints imposed by the constitution’s “written text, the historical record, precedent, [or] logical consistency.” Readers will remember that I have been sharply critical of the Court’s decisions in l’Affaire Nadon and in the labour rights cases (here and here), and that I have expressed some doubts about the reasoning both the Senate Reference and in Carter. And yet the charge of activism does not move me.

Judicial activism, I wrote a while ago, is “something like the dragon of constitutional theory. It doesn’t exist, although its distinct kinds nonexist in entirely different ways.” The trouble is that there are too many definitions of what judicial activism is floating around for the concept to be very useful. Too often, it is used as a mere rhetorical bludgeon, a pejorative label intended to reject any interference by courts with policies enacted by legislators, or even simply to dismiss a decision one disagrees with.

Mr. Coyne is too sophisticated to indulge in such simplistic tactics. He proposes what might seem like a plausible definition of activism:

What makes a decision “activist” … 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.

I don’t suppose that this is deliberate, but it sounds not unlike the Supreme Court’s definition of reasonableness in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190:

reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [47]

An activist decision, we might say, is not a merely mistaken, but an unreasonable one. But as students of administrative law will know, this is not always a straightforwards standard to apply. Reasonable people can disagree about what is unreasonable. And so it is with the Supreme Court’s decisions about which Mr. Coyne complains.

Let me begin with those that trouble me less than Mr. Coyne.

The Senate Reference has its flaws. I have myself argued that the notion of “constitutional architecture” on which the Supreme Court rests its decision is obscure at best, and will need to be developed in subsequent cases if it is to become a working part of our constitutional law. But it is, in my view, hard to deny that the Court’s decision fits perfectly a line of cases going back to the original reference Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54, and the Patriation Reference, which have consistently prevented both Parliament and the provinces from making important changes to the constitution unilaterally. Although its connection to written text is sometimes tenuous ― not least, in my view, because the text itself proved woefully inadequate to the task of guiding the Court (and the politicians to whom it is, in the first instance, addressed), the Senate Reference is not divorced from logic or precedent. Quite the contrary.

As for Carter, I have suggested that the way in which the Court presented its decision, justifying it largely by deference to the trial judge’s factual findings which it barely explained in its own opinion, is insufficiently transparent. It is an attempt to lead from behind the trial judge’s back, and this tactic is bound, in the long run, to undermine the trust people are willing to place in the Court. Yet the Supreme Court used the same approach in the prostitution case, Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, which Mr. Coyne specifically holds up as an example of justified exercise of judicial power to invalidate legislation. His concerns with Carter lie elsewhere. He is annoyed that the decision “finds a right to death in a section of the constitution devoted to the right to life.” But that provision is also devoted to a right to the security of the person, understood, pretty uncontroversially it seems to me, as a right not to be subjected to unnecessary physical or psychological suffering ― and there was compelling evidence that this was the effect of the assisted-suicide ban. And as for the fact that the Supreme Court reversed its own earlier decision upholding that ban, pace Mr. Coyne, it is true that we now know a great deal more about how an assisted-suicide regime might work than we knew 20 years ago. The Court may not have explained itself nearly well enough, but it didn’t make this up either.

I turn now to the decisions my assessment of which is closer to Mr. Coyne’s. Indeed, regarding l’Affaire Nadon, I know that he agrees with my criticism of the Supreme Court’s decision, since he said as much on Twitter. In my opinion, unlike the Senate Reference or Carter, that decision is unambiguously bad. It is poorly argued and will have (indeed, it is already having) unfortunate consequences. But is it really unreasonable, an indefensible decision for all that? Well, Michael Plaxton and Carissima Mathen had made a strong argument for it (which I critique here). The statute which the Supreme Court had to interpret was ambiguous, and the purposes behind it less than fully clear. The Court’s reading of the statute was wrong and pernicious. But as much as I disagree with it, I cannot bring myself to consider it as entirely divorced from the materials the Court had to work with, or absurd.

As for the collective-bargaining and right to strike cases, Omar Ha-Redeye has argued (here and here) that they are a plausible, although in my view not an obvious, still less a desirable, evolution of the Court’s jurisprudence on the Charter’s freedom of association guarantee. Certainly there were plenty of labour law scholars who urged the outcome to which the Court came. Yes, as Mr. Coyne suggests, this outcome is divorced from economics and reality. But then there will be people who will argue that it is adverting to economics instead of only legal sources that would constitute activism. Here, I think that the Court’s decisions are utterly unreasonable from a policy standpoint. But as a matter of law? Wrong, yes. Unreasonable, indefensible? I’m not so sure.

All that to say that there is plenty to criticize about the merits of the Supreme Court’s decisions, and Mr. Coyne should by all means do so. But an argument about judicial activism, even if the concept is carefully, perhaps even sensibly, defined is unhelpful. There are no dragons in the Supreme Court’s jurisprudence. Only some questionable, and some rotten, judicial decisions.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

16 thoughts on “Here Be No Dragons”

  1. Reblogged this on Ontario Paralegal and commented:
    For those who think the Supreme Court has become a ‘rogue’ activist court, please read this. Like the author, I too frequently agree with Mr. Coyne’s articles. This is an elegant and well reasoned response to the suggestion the Supreme Court is exceeding its constitutional mandate.

  2. You say tomaytoes I say tomahtoes. At the root of these “questionable and rotten judicial decisions” is a cause, and activism is as good an explanation as anything else.

    1. Not quite. There’s a “cause” in every constitutional decision. (See e.g.: and .) Often, the cause in question will be found in the constitution itself. In other case it can be inferred there, with greater or lesser plausibility. The point of denouncing activism, on a definition like Coyne’s, is to say that the cause animating a particular decision is not to be found in the constitution. And the issue is, how do we know that?

  3. Leonid, bravo – and thanks for yet another thoughtful, learned, and nuanced response to a difficult issue. It is always a pleasure to read your blog.

    I do agree that the tag of “judicial activism”, as commonly used, is not particularly useful; more often than not, I find it to be semantically empty. I had not thought to liken it to the reasonableness standard, though that of course has its own problems given the elusiveness of a finding a common approach to reasonableness review (e.g. Stratas J.A.’s comments in Canada v. Abraham, 2012 FCA 266). And anyone with even a passing familiarity with U.S. constitutional law will recall the conservative “judicial activism” that nearly derailed the New Deal legislation of the Roosevelt era, whereas in modern times it generally describes activism on the political left. There is much to be said for the view that “judicial activism” is an epithet to describe a decision that the speaker disagrees with, no more and no less.

    It occurs to me that an alternative, more useful approach may be to think of activism in institutional terms. Unlike the other branches of government, the courts are of course reactive, in that they can only decide cases that are put before them. It is often said, given their role, that courts should therefore be careful to decide no more than they have to: that concept is well-expressed, for example, in the law on mootness. We could describe as “activist”, then, a decision that decides a legal issue that was not necessary to reach the result in the particular case (particularly in the case of the SCC, where the obiter/ratio distinction is often more theoretical than real anyway). By that standard, I would think the Saskatchewan Federation of Labour case is likely the most “activist” case of the ones you mentioned.


    1. Thank you Alex!

      Just to be clear ― apparently I wasn’t in the post: unreasonableness is not my definition of “activism” it is my reading of Coyne’s. The point of my post is that Coyne’s argument about activism fails by his own definition, and that would be more useful to just speak of the merits of the decisions rather than debate whether they are “activist,” by whatever standard.

      As for the question whether a decision addresses more issues than it needs to, I agree that it can be a self-aggrandizing behaviour by a court. But with a Supreme Court, part of its institutional mission is to provide advance guidance and help solve disputes without their being litigated all the way up. So it must balance those considerations against a need for modesty. I’m pretty sure that the judges do in fact perform this balancing in many cases, and while we can disagree with the decisions they come to, we should acknowledge the difficulty of the task.

  4. I don’t quite have the admiration for Coyne that you do. I lost a considerable amount of respect for his capacity to understand the Constitution over the issue of the Senate reference. Was there anybody out there that seriously thought that Parliament alone could make major structural changes to the Senate without a great deal of support, if not outright unanimity, from the Provinces? His response to that decision could be best summed up as “Wahhh! Constitutional change is hard, and the Supreme Court should just do what everyone wants!”

    Coyne seems to be rather good at wrapping petulant indignation in a considerable amount of verbiage, but while in specific cases I might agree with him, in general I find his arguments fairly unsophisticated, and sometimes outright ignorant.

    1. I don’t think that’s quite fair. This was one of Coyne’s weaker efforts, but he still made a reasonable attempt not to be simplistic, and went well beyond just rants and assertions. I think that if we’re going to cut the SCC some slack, we should do it for him too!

      1. Well, maybe, but his constant haranguing of the SCC over the Senate ruling, despite the fact that there was no one out there who saw even the smallest possibility of a different decision, rankled me the wrong way. Of all the people involved in Conservatives’ awkward and doomed attempts at reform, I feel sorriest for the Government lawyers, who must have felt very foolish indeed having formulate and enunciate positions they knew to be patently absurd.

        Coyne, to my mind, is one of the “lazy revolutionary” types you referred to a few months ago; someone who envisions some sort of end result, but wants to skip past all the hard work that might go into achieving that particular end. I can well imagine why someone who views the Senate as a useless organ (and I think I’ve written here that I’m sympathetic to that point of view) might find the high bar the SCC set as being “activist”. The problem with Coyne’s position on the Senate reference opinion is that it isn’t the Supreme Court that set the bar that high at all; it was the Fathers of Confederation and the Federal negotiators and the ten premiers negotiating patriation in 1981.

        I know I’m picking on Coyne more over the Senate decision than Carter, but mainly because I think there’s more latitude for criticism in Carter (not that I disagree with the end result, but that’s just my own bias). We can certainly look skeptically on aspects of the Senate decision, but really, the difficulty of reforming the Senate existed (and was clearly apparent) almost from the very beginning of Confederation. At least the Constitution Act, 1982 gave a clearer road map of how to do it, even if that road may be very difficult to climb.

        So, I do stand behind my statement that Coyne can be very petulant, and when he does get into that frame of mind, he becomes rather incoherent. He’s a good enough writer to mask that incoherence, but it doesn’t take long to see that some of his arguments are vacuous and astonishingly ill-informed.

      2. We might have to agree to disagree here. Coyne ― and you may remember this ― is well-aware of this “lazy revolutionary” dynamic (see: Is he always constant? No, not quite. Does he slip sometimes? Sure. But knowing what it’s like to try to write something intelligent two or three times a week, I’m going to be indulgent with anyone in the same boat.

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