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,  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. 
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,  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,  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.