Canadian Lawyer

16 M A Y 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m Meanwhile, most Canadians have, until recently at least, seen the Supreme Court as an essential and welcome part of our governance system, keeping the legislative branch in check and reigning in the extraordinarily powerful execu- tive branch. In my 2011 book Mighty Judgment, I argued that the court was the real opposition to an otherwise dominant government run pretty much single handedly by the prime minister. I think that many, if not most, Canadians agreed with that assessment. We have quietly and comfortably embraced a U.S.–style checks-and-balances consti- tutional system. Of course, not everyone agrees this is a good thing. In a February article enti- tled "Who's judging the judges?" Gordon Gibson wrote in The Globe and Mail that the Supreme Court is "the greatest threat to our democracy and Parliament." Gibson is particularly bothered by the court's recent decisions striking down the Criminal Code ban on assisted sui- cide, rejecting Marc Nadon as a judge of the court, and allowing members of the RCMP to unionize. Referring to the well- known metaphor that the Constitution is a "living tree," Gibson wrote that since 1982 "the shears (and fertilizer and graft- ing) have been wielded by the unelected Supreme Court of Canada." Block that metaphor! About the same time, in the The National Post, Andrew Coyne wrote of the so-called "euthanasia ruling" that one casualty was judicial restraint, "the fading notion that the courts, in interpreting the law, should be bound by . . . something — the written text, the historical record, precedent, logical consistency." Coyne argued that in some cases the Supreme Court has ignored precedent, and in others it has rewritten the constitution. He concluded: "In the aggregate it has become almost impossible to discern any coherent underlying philosophy in the Court's rulings, or to predict with any confidence how it will rule on a given question." You know things are really getting dire when no less than the Globe's Report on Business weighs in (this past Feb- ruary) with the headline, "Top court hurts economy by fostering uncertainty." Brian Lee Crowley, managing director of something called the Macdonald-Laurier Institute (a "think tank"), wrote in the ROB about "the gay abandon [sic] with which our highest court sweeps aside s the Supreme Court of Canada out of control? Are the justices of our highest court reckless megalomaniacs intent on undermining our way of life? Are unelected left- wing judicial proselytes using the 1982 Charter of Rights and Freedoms to thwart the will of the people and destroy democracy? "Yes! Yes!" members of the hard-core, far right will cry out if asked (preposter- ous) questions like these. That includes members of the Harper government, which increasingly sees the Supreme Court, and the judiciary in general, as the enemy. It must be enormously frustrating for the prime minister to witness Supreme Court judges he appointed (seven of the nine) dismantling laws he cares about. Perhaps Harper and members of his cabinet can be excused when they lash out against the temerity of turncoat judges who are now biting the hand that once raised them up. T O P C O U RT TA L E S O P I N I O N @philipslayton I SCOTT PAGE Is the SCC out of control? Judges of the Supreme Court of Canada: be wary. Do not hand your enemies an easy opportunity to upend the Constitution. By Philip Slayton

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