Judicial Activism and its Harms: The Supreme Court’s Flawed Interpretation of Section 7
Gordon Lee, 3L
In July 2022, the British Columbia Court of Appeal upheld the province’s prohibition of private health insurance in Cambie Surgeries Corporation v British Columbia (Attorney General), 2022 BCCA 245 (CanLII) (Cambie Surgeries). While this decision garnered significant media coverage, very little has been written about whether courts should even be involved with issues of public policy, such as whether Canada’s healthcare system should allow for private health insurance. In this post, I suggest that courts should not engage in policymaking, particularly regarding moral, social, and political issues that the Canadian people, through their elected representatives, should be deciding.
First, judicial “fact-finding” in the context of moral, social, and political questions is more akin to policymaking than fact-finding. Second, the Supreme Court of Canada’s (“Court”) willingness to decide these questions is detrimental for Canadian democracy. Finally, the Court’s approach to section 7 of the Canadian Charter of Rights and Freedoms encourages individual judges to read their personal moral, social, and political views into the Constitution without any textual basis for doing so.
At the outset, I wish to state that the moral, social, and political issues I am referring to are public policy issues which are both highly contested among Canadians and not enumerated in the Canadian Constitution. For example, while the use of harmful drugs is a highly contested issue that is not listed as a right in the Constitution, it has been the subject of a major constitutional decision of the Supreme Court of Canada.
Legislative “Fact-Finding”
First, it is important to understand the distinction between adjudicative facts and legislative facts, why legislative facts are more like opinions than facts, and the danger that can arise when courts engage in legislative fact-finding.
In Danson v Ontario (Attorney General), [1990] 2 SCR 1086, 1990 CanLII 93 (SCC) (Danson), the Supreme Court defined adjudicative facts as those involving the immediate parties, such as "who did what, where, when, how and with what motive or intent" (Danson at page 1099). Conversely, legislative facts are more general and relate to the purpose and background of legislation, including its social, economic, and cultural context. An example of a legislative fact is “encouraging drug addicts to seek treatment is a better approach than encouraging continued consumption of harmful drugs.” As their name suggests, legislative facts involve public policy, the domain of elected legislatures.
In Nelson (City) v Marchi, 2021 SCC 41 (CanLII) (Nelson), the Court stated that “[c]ore policy decisions of the legislative and executive branches involve weighing competing economic, social, and political factors and conducting contextualized analyses of information. These decisions are not based only on objective considerations but require value judgments — reasonable people can and do legitimately disagree… If courts were to weigh in, they would be second-guessing the decisions of democratically-elected government officials and simply substituting their own opinions” (Nelson at para 44).
Two points stand out from this excerpt in Nelson. First, the Court’s description of policy decisions aligns closely with the definition of legislative facts from Danson. Second, the Court recognizes that legislatures are better suited to make policy decisions and conduct legislative fact-finding than judges. I believe there are several reasons for this.
First, legislative “facts” are much more like opinions than facts. While adjudicative questions can usually be answered with a yes or no—was the accused present at the crime scene at 10:30 p.m.? Did a contract contain a particular sentence?—legislative facts are “facts about society at large, established by complex social science evidence” (Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII) (Bedford) at para 48).
In Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 (CanLII) (PHS), the question before the Court was whether the federal government could close a supervised consumption facility for harmful drugs in Vancouver, known as Insite. The Court found “no discernable negative impact on the public safety and health objectives of Canada during [Insite’s] eight years of operation” (para 133). However, contrary to the Court’s assertion, crimes associated with drug use like theft and assault have increased dramatically since Insite’s opening, as have overdoses. Regardless of how one views these statistics, these numbers should give reason to doubt the Court’s factual conclusions.
Furthermore, the Court held that permitting Insite to continue providing drug users with spaces to consume harmful drugs outweighed the benefits of closing it down (PHS at para 136). This is not a factual statement, but an opinion. For example, many of the victims of violent crime committed by Insite’s users may not agree with the Court. As Yaakov Roth has noted, such statements “are not ‘facts’ in any true judicial sense. They are social theories, policy conclusions, value judgments and ideological preferences.”
Similarly, in Carter v Canada (Attorney General), 2015 SCC 5 (CanLII) (Carter), the Court upheld the trial judge’s finding that there was “no compelling evidence that a permissive [assisted suicide] regime in Canada would result in a ‘practical slippery slope’ (para 107). However, in just seven years since Carter, Canada has gone from prohibiting assisted suicide, to legalizing assisted suicide only where death was reasonably foreseeable, to removing the reasonable foreseeability requirement, to allowing individuals to access assisted suicide on account of mental illness. Given the rapidity with which Canada’s assisted suicide regime has expanded, I believe the Court’s “finding of fact” that legalizing assisted suicide would not lead to a slippery slope was not a fact, but an incorrect prediction.
Additionally, courts are often confronted with extensive conflicting evidence when conducting legislative fact-finding. For example, in Cambie Surgeries, both sides lined up multiple experts and voluminous research in support of their position (para 44). When extensive conflicting research exists, the danger is that a judge can claim to have reached a “factual” conclusion by “unquestioningly accepting the assertions of selected social scientists while completely ignoring the fact that those assertions are the subject of fervent debate” (Parents Involved in Community Schools v Seattle School Dist. No. 1, 551 US 701 (2007), Thomas J., concurring).
This occurred in PHS, where the Court “found” that Insite’s opening contributed to health and public safety (Bedford at para 100, summarizing the Court’s finding in PHS). However, the Court’s reasons ignore a competing study from the British Medical Journal that found “no substantial decrease in the rate of stopping injected drug use” as a result of Insite’s opening. Additionally, there are competing claims about whether Insite actually saves lives. Again, the point is not whether the Court’s “findings” are right or wrong; the mere fact that the Court missed these credible, relevant studies casts doubt on its infallibility as a legislative fact-finder.
I am not suggesting that courts should never assess or admit evidence or research from non-legal sources. As has been noted, courts often assess such evidence in economic disputes, such as patent or anti-trust cases, without controversy. However, in economic disputes, the impact of a court’s decision is usually limited to the immediate parties, unlike rulings on broad public policy issues like those in PHS, Bedford, or Carter. When the Court decides to constitutionalize a particular political position as in Carter, it prevents Canadians from having a say on the issue, even though Canadians will bear the consequences of the Court’s decisions.
For example, a prohibition on physician-assisted dying was reaffirmed by a large parliamentary majority in 2010. However, the Court’s decision five years later in Carter rendered the Canadian people’s opinion irrelevant. In 2010, Canadians from across the country could express their views on assisted suicide to their Members of Parliament and hold their MPs accountable at the ballot box. However, when the Court decided that it would hear Carter, Canadians were denied any say on the question of whether assisted suicide should be legal. Furthermore, regardless of Canadians’ opinion of Carter, there was and is no way of holding Supreme Court justices accountable for their decisions.
The Supreme Court has also never found an infringement of s. 7, where many of these political issues are litigated, to be justified under section 1. This means that if Cambie Surgeries goes to the Supreme Court, nine unelected individuals will likely have the final say on the future of Canada’s public healthcare system.
Having unelected judges decide fundamental questions of deep moral, social, and political importance has negative consequences for democracy. This is even more so when judges decide to extend constitutional protection to practices or activities which are not mentioned anywhere in the Constitution. In a democracy, elected legislatures should be able to pass laws which are popular with Canadians, so long as these laws do not infringe the Constitution. However, when the Supreme Court decides to expand the Constitution beyond the natural meaning of its text, so as to strike down many longstanding and popular laws, this has grave consequences for democracy.
More than half a century ago, an American jurist wrote that “‘[p]rivacy’ is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things…” (Griswold v Connecticut, 381 US 479 (1965), Black J., dissenting). The same could be said about “life, liberty, and security” or “principles of fundamental justice.” For example, the Court held in PHS that “life, liberty, and security” and “principles of fundamental justice” meant that the federal government could not close the Insite facility, even though the text of s. 7 says nothing of the sort. The same could be said about the prostitution-related laws in Bedford or the physician-assisted dying prohibition in Carter.
Two of Canada’s greatest constitutional scholars agree on the need for judicial restraint in constitutionalizing practices which are not explicitly mentioned in the Constitution. Peter Hogg wrote that “without any clear [constitutional] prescription,” some important questions should be left “to elected legislative bodies (and the sanction of the ballot box).” [1] Similarly, William Ralph Lederman pointed out that “[i]f we characterize too many things as constitutional, we put too much of potential legal change to meet societal needs beyond the reach of the flexible statutory means of change… the problem of limiting what is to be considered “constitutional” in this sense is very real. The limits have to be severe. You cannot constitutionalize the whole legal system.” [2] As these quotes make clear, democracy is at risk when unelected judges enshrine their personal opinions into the Constitution, particularly when there is no textual basis for doing so.
Section 7 and Stare Decisis
A related issue with the Court’s s. 7 jurisprudence is the holding that any judge can revisit and overturn Supreme Court precedent if the judge believes there has been “a change in the circumstances or evidence that fundamentally shifts the parameters of the debate” (Bedford at para 42). This is a low bar that has nothing to do with whether a prior case was correctly decided as a matter of law. While the Court states that this threshold is ”not an easy one to reach” (Bedford at para 44), the reality is that the social facts on almost any contested issue change every year. For example, the social facts on an issue like assisted suicide in Canada are very different than they were just five years ago.
Recently, retired Justice Rosalie Silberman Abella called the U.S. Supreme Court’s approach to precedent “really quite scary.” However, I believe the Supreme Court of Canada’s approach to precedent is much scarier. In Canada, a court does not have to conclude that a prior case was wrongly decided—or even that there has been an error of law—to overturn precedent. In Canada, a correctly decided case can be overturned by a single trial judge who simply has a different personal view on a hotly-contested political issue.
Looking Forward, Looking Back
It is hard to feel hopeful about the future of s. 7. So long as Bedford remains good law, courts will continue to decide complex social, moral, and political issues, even if there is no textual basis for doing so. Additionally, well-funded special-interest groups will be able to use the courts to impose their beliefs on Canadians without having to go through proper democratic, legislative channels.
While overturning Bedford would be a positive step, Re BC Motor Vehicle Act, [1985] 2 SCR 486, 1985 CanLII 81 (SCC) (BC Motor Vehicle Reference) is the largest roadblock to any progress in restoring separation of powers and returning policymaking and legislative fact-finding to the Canadian people. In that case, despite testimony from two of the most important drafters of the Charter, Jean Chrétien and Barry Strayer, who stated clearly that section 7 only applied to procedural guarantees, the Court dismissed this testimony as deserving only “minimal weight” (BC Motor Vehicle Reference at para 52). Instead, the Court simply declared that it would apply a “purposive reading” of section 7 (BC Motor Vehicle Reference at para 59) and declared that the Charter was a “living tree” (BC Motor Vehicle Reference at para 53), and thus should not only apply to procedural rights, despite the justices’ inability to find a single drafter of the Charter who would support the Court’s view. Essentially, the Court decided that it wanted to read section 7 in a way that was unsupported by the text, legislative history, or really any evidence at all and simply declared, in an example of judicial activism, that section 7 would now apply to substantive cases. This poorly reasoned decision is the foundation for the aggressive judicial intervention in non-legal policy matters discussed in numerous cases since, including PHS, Bedford, and Carter.
Unfortunately, it is unlikely that BC Motor Vehicle Reference will be overturned any time soon, given the vocal support for judicial policymaking from jurists like Chief Justice Richard Wagner, who told an interviewer that he was “very proud” of Carter and emphasized that the Court’s ruling “depended on the evolution of society, the evolution of technology, evolution of medicine, evolution equally of the moral values that link most Canadians.” None of these are legal considerations, especially “moral values that link most Canadians.” Frankly, it is absurd for an unelected judge (who sits on the Supreme Court, an unrepresentative body which is unaccountable to Canadians) to claim to act on behalf of the moral values of most Canadians, particularly when, as in Carter, the Court overturned a law that had enjoyed the continued support of the Canadian people’s representatives in Parliament for over a century.
For the reasons outlined in this post, I strongly believe that the Court must limit the use of both s. 7 and legislative fact-finding. To do so, the Court should adopt the U.S. Supreme Court’s framework in Washington v Glucksberg, 521 US 702 (1997), a decision in which all nine justices agreed that assisted suicide was not a constitutional right. In Glucksberg, the Court held that any practice or activity not expressly mentioned in the Constitution, such as assisted suicide, will not be recognized as a constitutional right unless it has been “deeply rooted in this Nation’s history and tradition.”
If Canada adopted this framework, this would mean that judges would no longer be able to read their personal views into the Constitution. For example, because the Constitution does not expressly guarantee an individual the right to use harmful drugs like heroin, cocaine, and fentanyl, any laws regarding the legalization or criminalization of these activities would fall to Parliament, not the courts. Similarly, the Charter is silent on the issue of healthcare. Under Glucksberg’s framework, the Canadian people, and not the courts, would oversee Canada’s healthcare system.
For Canada, adopting Glucksberg’s framework would have several benefits. First, it would not prohibit substantive protections under section 7, and thus would not require overturning BC Motor Vehicle Reference. Second, it would ensure the continued protection of foundational rights which have been recognized for centuries at common law, like freedom of contract, property rights, and parental rights, even though they are not enumerated in the Charter. Finally, and perhaps most importantly, adopting Glucksberg’s framework would restore proper separation of powers by ensuring that courts focus on applying the law to concrete legal disputes instead of making policy decisions that are better left for the public to decide.
Ultimately, contentious political, social, and moral issues will be decided one way or the other—either by courts or by Canadians. Today, the Supreme Court has elevated itself above the Canadian people. If Canada is to remain a democracy where Canadians can govern themselves and shape the future of their country, the Court must change its course.
[1] Peter W Hogg, Constitutional Law of Canada, vol 2, 5th ed Supp (Scarborough: Thomson, 2007) at 44–8, cited in Ontario (Attorney General) v Fraser, 2011 SCC 20 (CanLII) at para 227.
[2] WR Lederman, “Charter Influences on Future Constitutional Reform” in David E Smith, Peter MacKinnon & John C Courtney, eds, After Meech Lake: Lessons for the Future (Saskatoon: Fifth House Publishers, 1991) at 119, cited in Mark S Harding & Rainier Knopff, “Constitutionalizing Everything: The Role of “Charter Values”” (2013) 18:2 Rev Const Stud 141 at 160, online: https://www.constitutionalstudies.ca/wp-content/uploads/2019/08/01_Knopff-Harding.pdf.