On July 1, 2021, Supreme Court Justice Rosalie Abella will be retiring from her role as a judge of the highest appellate court in our country. Abella is currently 74 years old and will cease to hold office upon turning 75, as the Supreme Court Act stipulates..Appointed to the Supreme Court of Canada (SCC) in 2004 by then Liberal Prime Minister Paul Martin, Justice Abella has helped decide many of the Court’s most significant constitutional decisions, including Chatterjee (civil forfeiture), Whatcott (freedom of expression), Bedford (prostitution), Sask Federation of Labour (public sector unions), Carter (medically assisted dying), Comeau (interprovincial trade), TWU (community covenants), the recent GGPPA Reference (federal carbon tax), and others..A quick survey of these cases reveals no clear and principled ethical or philosophical position. Abella has often dithered between upholding and striking down laws that harm economic liberty, procedural rights and provincial rights. For instance, in Chatterjee, she decided to uphold Ontario’s civil forfeiture legislation, which that province has subsequently used with a vengeance to strip wholly innocent people of their property. However, in Bedford, she decided federal criminal prohibitions violated prostitutes’ rights to security of the person..At times she is a statist par excellence. At other times she advocates for the proverbial little guy. Regardless, imposing order on the chaos of her decision-making is nearly impossible..But perhaps there is one thing that brings coherence to Abella’s record: her view of the role of the SCC in Canadian society. Queen’s law professor Bruce Pardy calls Abella Canada’s “foremost activist judge,” and he’s right. Although there is no clear ethical or philosophical view underpinning Abella’s record, it can certainly be described as activist or “progressive.”.In a 2018 speech, Abella said the SCC is “the final adjudicator(s) of which contested values in a society should triumph.” This should be surprising to those Canadians who are under the impression the role of judges is to interpret the law and apply it to the particular facts that come before them. Abella seems to believe the court’s role is to act as the arbiter for all questions of morality and fairness in Canada, and to make a new Canada in the court’s own image; a responsibility most Canadians would probably prefer to leave to our democratically elected representatives, not some far away cabal of nine cloistered, unelected red-robed lawyers..The legal authority for Abella’s progressive view of the SCC’s role comes from the 1929 Edwards decision where Lord John Sankey said “The British North America Act planted in Canada a living tree, capable of growth and expansion within its natural limits.” Progressives have taken this to mean the Constitution of Canada is infinitely malleable, capable of surprising and unforeseeable new meaning, and the judges of the SCC are the oracular caretakers of this tree..But notice Sankey did not say the BNA was itself a “living tree.” He said that the BNA planted a living tree within Canada, and this tree could grow within the jurisdictional bounds as written in the constitution. The constitution is fixed and mobile on this view. It’s the pot, the “natural limits,” in which this living tree planted in Canada would grow..As federal parliamentarian Scott Reid argued in his brilliant discussion of the Edwards decision, this sort of use of the “living tree” metaphor is indistinguishable from the SCC granting itself the constitutional authority to amend the constitution at will. And what’s worse, this carte blanche licence is not at all what Sankey meant since it is not at all what he said. But these inconvenient truths have not curbed Canadian enthusiasm for judicial activism within some circles. As a result, the legacy of Abella, and those who agree with her, is the SCC has granted itself the requisite authority to amend the constitution when it chooses to do so..The next judge to occupy a seat at the SCC in replacement of Abella will be appointed by Prime Minister Justin Trudeau. Years from now, we may be having a similar discussion about that judge’s record and how our once democratic nation, with all its flaws, has fully slipped from governance-by-parliament to the far less desirable governance-by-the-judiciary..Derek James-From is a columnist for the Western Standard and a constitutional lawyer
On July 1, 2021, Supreme Court Justice Rosalie Abella will be retiring from her role as a judge of the highest appellate court in our country. Abella is currently 74 years old and will cease to hold office upon turning 75, as the Supreme Court Act stipulates..Appointed to the Supreme Court of Canada (SCC) in 2004 by then Liberal Prime Minister Paul Martin, Justice Abella has helped decide many of the Court’s most significant constitutional decisions, including Chatterjee (civil forfeiture), Whatcott (freedom of expression), Bedford (prostitution), Sask Federation of Labour (public sector unions), Carter (medically assisted dying), Comeau (interprovincial trade), TWU (community covenants), the recent GGPPA Reference (federal carbon tax), and others..A quick survey of these cases reveals no clear and principled ethical or philosophical position. Abella has often dithered between upholding and striking down laws that harm economic liberty, procedural rights and provincial rights. For instance, in Chatterjee, she decided to uphold Ontario’s civil forfeiture legislation, which that province has subsequently used with a vengeance to strip wholly innocent people of their property. However, in Bedford, she decided federal criminal prohibitions violated prostitutes’ rights to security of the person..At times she is a statist par excellence. At other times she advocates for the proverbial little guy. Regardless, imposing order on the chaos of her decision-making is nearly impossible..But perhaps there is one thing that brings coherence to Abella’s record: her view of the role of the SCC in Canadian society. Queen’s law professor Bruce Pardy calls Abella Canada’s “foremost activist judge,” and he’s right. Although there is no clear ethical or philosophical view underpinning Abella’s record, it can certainly be described as activist or “progressive.”.In a 2018 speech, Abella said the SCC is “the final adjudicator(s) of which contested values in a society should triumph.” This should be surprising to those Canadians who are under the impression the role of judges is to interpret the law and apply it to the particular facts that come before them. Abella seems to believe the court’s role is to act as the arbiter for all questions of morality and fairness in Canada, and to make a new Canada in the court’s own image; a responsibility most Canadians would probably prefer to leave to our democratically elected representatives, not some far away cabal of nine cloistered, unelected red-robed lawyers..The legal authority for Abella’s progressive view of the SCC’s role comes from the 1929 Edwards decision where Lord John Sankey said “The British North America Act planted in Canada a living tree, capable of growth and expansion within its natural limits.” Progressives have taken this to mean the Constitution of Canada is infinitely malleable, capable of surprising and unforeseeable new meaning, and the judges of the SCC are the oracular caretakers of this tree..But notice Sankey did not say the BNA was itself a “living tree.” He said that the BNA planted a living tree within Canada, and this tree could grow within the jurisdictional bounds as written in the constitution. The constitution is fixed and mobile on this view. It’s the pot, the “natural limits,” in which this living tree planted in Canada would grow..As federal parliamentarian Scott Reid argued in his brilliant discussion of the Edwards decision, this sort of use of the “living tree” metaphor is indistinguishable from the SCC granting itself the constitutional authority to amend the constitution at will. And what’s worse, this carte blanche licence is not at all what Sankey meant since it is not at all what he said. But these inconvenient truths have not curbed Canadian enthusiasm for judicial activism within some circles. As a result, the legacy of Abella, and those who agree with her, is the SCC has granted itself the requisite authority to amend the constitution when it chooses to do so..The next judge to occupy a seat at the SCC in replacement of Abella will be appointed by Prime Minister Justin Trudeau. Years from now, we may be having a similar discussion about that judge’s record and how our once democratic nation, with all its flaws, has fully slipped from governance-by-parliament to the far less desirable governance-by-the-judiciary..Derek James-From is a columnist for the Western Standard and a constitutional lawyer
