Ben PerrinBenjamin Perrin argues that the backlash within the court to intrusion on parliamentary responsibilities is growing, with more justices increasingly calling for judicial restraint.

By Benjamin Perrin, Dec. 23, 2016

The Supreme Court of Canada is crossing the line by intruding on Parliament’s policy-making role. This critique is not being leveled by right-wing political scientists, eager politicians or dissatisfied litigants — but rather by judges on the Court itself.

Our annual review of the Court’s top-10 decisions highlights five judges who harshly criticized their colleagues for inappropriately interfering with Parliament’s job. It’s a serious critique that goes to the heart of the relative responsibilities of the Court versus Parliament and points to a growing philosophical rift.

In R. v. Lloyd, Chief Justice Beverley McLachlin wrote majority reasons striking down a one-year mandatory minimum penalty for repeat drug trafficking. She suggested Parliament legislate to allow judges to depart from other mandatory sentences to keep them from suffering a similar fate.

The Supreme Court of Canada is crossing the line by intruding on Parliament’s policy-making role.

However, Justices Richard Wagner, Clément Gascon and Russell Brown dissented, stating that if the Chief Justice’s approach is followed “one must question what role is left for Parliament’s legitimate policy choices in setting punishment”. They added that these “are questions of policy that are within the exclusive domain of Parliament”.

Similarly, in R. v. K.R.J., the majority disallowed a new law that permitted judges to prohibit convicted child sex offenders from having contact with persons less than 16 years of age, where the offence took place before the adoption of this law. The majority was not satisfied with the evidence of the benefits of such a retrospective approach. In dissent, Justice Brown argued that the majority “holds Parliament to an exacting standard of proof, thereby denying Parliament the room necessary to perform its legislative policy-development role when addressing a chronic social problem.”

In concurring reasons in R. v. Saeed, Justice Andromache Karakatsanis criticized the majority’s attempt to set out rules for particular types of searches incident to arrest, indicating that such nuanced policies are best left to Parliament. Recently retired Justice Thomas Cromwell made a similar point in concurring reasons in R. v. Jordan regarding timelines for criminal trials.

Tensions between the Court’s judicial oversight role and Parliament’s policy-making role are not new, but the level of internal division within the Court on this issue appears to have deepened.

Over twenty years ago, Justice La Forest wrote in RJR-MacDonald Inc. v. Canada (Attorney General) that the “courts are not specialists in the realm of policy-making, nor should they be. This is a role properly assigned to the elected representatives of the people, who have at their disposal the necessary institutional resources to enable them to compile and assess social science evidence, to mediate between competing social interests and to reach out and protect vulnerable groups.”

Tensions between the Court’s judicial oversight role and Parliament’s policy-making role are not new

Interestingly, former Prime Minister Stephen Harper appointed each of the judges now calling for greater judicial restraint and respect for Parliament. However, these justices do not form a cohesive voting block on the Court. Instead, they have typically raised these concerns in dissenting and concurring reasons.

Another notable trend in our annual reports is the federal government’s significant losing record at the Court. Looking at the outcomes of the top-10 decisions for each of the last three years (30 cases in total), the federal government had just three wins (10.0 per cent), 19 losses (63.3 per cent), four mixed result outcomes (13.3 per cent) and four cases where it did not participate (13.3 per cent).

This dismal record raises questions about the efficacy of the federal government’s approach to litigation and the Court’s view of Parliament’s role. Indeed, there was not a single clear victory for the federal government during the last year on one of these major files, which included appeals argued by both the former Conservative and new Liberal governments. By comparison, various levels of government have historically succeeded in 59 per cent of Charter cases.

The Supreme Court of Canada is a trailblazing institution in Canadian public life that continues to move significant and controversial issues forward. However, the rift between the Court and Parliament continues to deepen. Expectations that this might change with Prime Minister Justin Trudeau’s government have yet to materialize.

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