Commenting on the Supreme Court’s recent decision striking down a mandatory minimum sentence in R. v. Nur, 2015 SCC 15 in the National Post, John Ivison joins the list of commentators lamenting the Supreme Court’s “political” decision-making. The dissent by Justice Moldaver, joined by Justices Rothstein and Wagner, makes him say that
[w]hen three such eminent jurists … warn in such forceful terms that the Court has overstepped its bounds, we are in precarious constitutional territory.
Now Nur (on which I commented here) strikes me as a strange case from which to draw such alarmist conclusions. The majority and the dissent agree on the alleged dangers of guns and gun crime ― the statistics showing such to be rare and declining notwithstanding ― and that Parliament is entitled to impose harsh penalties on people who commit crimes of that sort. They also agree, however, that applying a three-year mandatory sentence to a person who commits a licensing-type infraction would be grossly disproportionate. They disagree on the best way of avoiding this unjust and unconstitutional result ― on the means, that is, not the ends. True, the dissent argues that its proposed means are more respectful of Parliament’s choices. But it is quite clear that if the dissenters did not think that the statute itself provided a way of avoiding the injustice that they, no less than the majority, are concerned about, they would have struck it down. It is worth noting that they do not advocate abandoning altogether the approach of using hypothetical cases to assess the constitutionality of mandatory minimum sentences, but only say that it should not be used when the statute makes it possible ― and, in their view, virtually certain ― that the mandatory minimum will not be imposed. In short, there is no great confrontation of constitutional philosophies here.
In any case, what I find even more puzzling is Mr. Ivison’s “three eminent jurists” phrase. It’s not that I think it doesn’t describe Justices Rothstein, Moldaver, and Wagner well. But weren’t there six eminent jurists on the other side of the case, disagreeing with them? It’s not that the majority must necessarily be right, of course. But when one says ― as I myself do often enough ― that the dissenters’ position is the better one, one should have a reason for this claim. And, at the risk of reading too much into Mr. Ivison’s words, they strike me as at least a hint that these three jurists were somehow more eminent, more deserving of our attention, than their colleagues. But why would that be?
Actually, there is a reason why someone concerned about the Supreme Court’s “politicization” and “overstepping its bounds” might find Justices Rothstein, Moldaver, and Wagner more “eminent” than their colleagues. They are the three who have arguably been the most likely to adopt a more deferential stance, or to refuse to go along with the Court’s expansive readings of the constitution. Thus Justice Rothstein castigated the majority’s broad reading of s. 96 of the Constitution Act, 1867 and reliance on the unwritten principle of the Rule of Law to strike down hearing fees in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31. He also dissented from the constitutionalization of the right to collective bargaining in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 and, jointly with Justice Wagner, from that of the right to strike in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4. Justice Moldaver, for his part, wrote a forceful dissent in l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, denouncing the majority’s invocation of Québec’s “social values.” Perhaps there are other cases too, but these are the ones that come to mind most readily.
Is it the case, then, that ― whether or not they are more “eminent” than their colleagues ―Justices Rothstein, Moldaver, and Wagner are some sort of a distinct, deferential or “restrained” faction on the Supreme Court? Hardly. Nur is, so far as I recall, the first time that they have been united in urging greater “respect” for legislative or governmental choices than their colleagues showed. In Trial Lawyers, Justice Moldaver was part of the majority, and probably an enthusiastic part, if his questions at the hearing are anything to go by. (Justice Wagner wasn’t part of the panel that heard the case.) Justice Wagner was part of the majorities in both l’Affaire Nadon and in the Mounted Police decision. Justice Rothstein is perhaps a more doubtful case, because he was recused in l’Affaire Nadon and not part of the panel in the Mounted Police and Saskatchewan Federation of Labour cases either. Would we have seen the Rothstein-Moldaver-Wagner alignment in the latter case if he had been? In any event, the three of them joined all of their colleagues in the “by the Court” judgment in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, which added “constitutional architecture,” whatever that is, to the ever-growing list of sources of constitutional law. That’s hardly the stuff of deep commitment to “judicial restraint” ― whatever that too may be.
One can certainly criticize the Supreme Court for going too far in its decisions, for stretching the bounds of the constitution and of its authority, for not respecting Parliament enough. And one can commend judges for blowing the whistle on their colleagues when they do this sort of thing. But so far as the Supreme Court of Canada is concerned, I remain of the view that it is best to make such criticisms on a case-by-case basis, and not as part of some grand narrative about “activism,” “politicization,” or something like that. Just like the eminent jurists who sit on that court are doing, in fact.
Double Aspect 
Surely I am not the only person who is made nervous by the arguments that even though the laws are drafted in such a way that they would clearly apply to a much wider-than-necessary range of circumstances, we shouldn’t be worried because the officials would NEVER be tempted to use the full “legally available” range rather than the “what everyone knows we really meant” range. If we worry about judicial discretion (and clearly lots of people do), surely we should also worry about police discretion and prosecutor discretion, and deal with it by tailoring the laws to accomplish what we really have in mind rather than some bigger thing that includes what we had in mind. Why play the piano in legislative mittens when you do so in gloves? Legislation that is vague and/or casually over-reaching is — to be blunt — just scary. To draw on a local example: as the national media reported last month, a town in southern Alberta passed a by-law prohibiting people gathering in public of groups of more than three, and when the police chief was questioned about whether this wasn’t a bit draconian, he replied that they didn’t mean ALL groups of three, and since everyone know perfectly well what groups they had in mind, people shouldn’t be worried. Well, I worry
Sure. But in fairness to the Nur dissenters, Justice Moldaver wasn’t suggesting that we only rely on the prosecution’s good faith and wisdom. He also offers a mechanism for courts to intervene when the prosecution abuses its powers ― the court can say that it’s an abuse of process and offer a s. 24(1) remedy that would consist in imposing a sentence below the mandatory minimum. The majority says this isn’t fail-safe, and they may be right ― I don’t think I know enough to tell. But still, the disagreement concerns the efficacy (and the degree of “fit” within the broader constitutional law) of the control mechanism, not whether there should be one at all.