05/08/2014 12:43 EDT | Updated 07/08/2014 05:59 EDT

Why It's OK to Criticize the Supreme Court

The Supreme Court of Canada stands in Ottawa, Ontario, Canada, on Wednesday, Aug. 10, 2011. Canada's trade deficit widened more than forecast in June, signaling that the economy may have stalled or even contracted in the second quarter. Photographer: Brent Lewin/Bloomberg via Getty Images

"Security." "Among." "Justifiable." "Appointed."

When we talk about the Harper government's recent string of defeats at the Supreme Court, what we're really talking about is a string of semantic disputes over the meanings of these words. At a time when the Prime Minister's public feud with the Chief Justice is prompting Harper-haters in both press and parliament alike to offer blind, slavish adulation to some mythical idea of a Supreme Court that is both never wrong and beyond criticism, it's worth recalling just how arbitrary and disputable many of that court's recent rulings have been.

Last December, the Supreme Court ruled unanimously that Canada's existing prostitution laws -- which do not ban prostitution per se, but make it a crime to solicit or run brothels -- were unconstitutional. They argued this on the basis that such laws "infringe the [Charter] rights of prostitutes by depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice." Laws seeking to make life difficult for hookers in the name of protecting communities from the "public nuisance" they caused were "grossly disproportionate" from a cost-benefit analysis, the judges felt.

In March, the Supreme Court ruled six to one that Justice Marc Nadon was not qualified to be one of their members. Nadon had been tapped to fill one of the Court's Quebec seats, and the Supreme Court Act says you have to be "among" the lawyers of that province to qualify. That's ambiguous, so the court settled that ambiguity by declaring that being "among" the lawyers requires being a current member of the provincial bar -- which Nadon wasn't.

A couple weeks later, the Supreme Court ruled unanimously that the Canadian legal system must give convicted criminals one-and-a-half days off their sentence for every day they spend in pre-trial custody. The Conservative government's Truth in Sentencing Act had made one-for-one reductions the law of the land -- unless "circumstances justify" being more generous. The Court ruled that merely being in pre-trial custody is s a justifiable circumstance, and thereby recast the Act's exception as the new norm.

A week or so after that, the Supreme Court ruled unanimously that no level of government could conduct Senate elections without first amending the constitution. Among other things, this violated longstanding Alberta precedent that it was perfectly acceptable to hold Senate elections so long as the PM still went through the ritual of "appointing" the winner. That had been a clever exploitation of a constitutional vagary -- the document merely says Senators must be appointed, not through what process these appointments must be made -- but the Supremes threw water on that, issuing a reactionary originalist reading declaring that PMs are only allowed to appoint in explicitly undemocratic fashion.

As these studies in subjectivity hopefully illustrate, the idea that the Supremes are impartial solvers of clear-cut legal questions is simply false. The whole reason we have a Supreme Court in the first place is to bring closure to issues too murky to be easily resolved by lesser courts. The reason the Court has nine members, in turn, is to ensure these subjective questions are considered by a diversity of perspectives.

Canada's Supreme Court doesn't seem to feature a diversity of perspectives these days, alas. Of the four decisions I cited, you may notice only one featured a dissenting vote, meaning these rulings are increasingly drawn from a single ideological perspective -- a perspective I'd summarize as a general philosophy of placing sympathy above punishment, institutional survival above political reform, and social change above cultural tradition.

These are not legal principles, but subjective political and social opinions. It's perfectly fine to find fault with them.

As a species, we tend to express exaggerated admiration for talents in others we lack in ourselves. This is certainly the case with lawyers, who layfolk oft-imagine to be a sort of godly caste of super geniuses who always "know the right answers" to difficult questions. It's a mentality that's led to the extreme ballooning of legal departments in virtually every institution of modern society where decisions are made. At a political level, the attitude manifests in the form of left-wing partisans who defer blindly to the inherent wisdom of all judge-made legislation, and bristle at any suggestion the judicial branch of government should bear the slightest shred of accountability to the other two.

Yet the very fact that we have an adversarial justice system -- based on two-sided debate and one-sided victories -- should remind that this is not reality. In every trial or lawsuit, by definition, half the lawyers involved are wrong, have wrong opinions, and have told their clients to do the wrong thing. This is no less true at the Supreme Court level, whose cases usually have to be decided by inherently contentious answers to open questions, like what does or doesn't serve the "public interest" or what constitutes a "reasonable limit" on this or that civil right.

Anyone with genuine respect for a properly functioning Supreme Court should embrace this reality. They should welcome divided rulings as a signal that ours is a government that makes decisions through debate and discussion, and bemoan Court unanimity as evidence of groupthink. They should view partisan criticism of rulings the same way we view criticism of the prime minister or parliament -- proof that Canada's democracy is so robust no institution or officer is immune from opposition.

What we most certainly shouldn't do, however, is deify the Court, nor pretend it's recent rulings have been anything other than controversial, contestable, and -- in many cases -- just flat out bad.

On the night of December 13, 2000, I remember watching Al Gore concede the presidency to George Bush. It was the day after the US Supreme Court ruled his continued claim to the White House hopeless, yet the man was admirably dignified in his life's worst moment of defeat.

"While I strongly disagree with the Court's decision, I accept its finality," he said.

A healthy democracy must always defend our right to believe both.


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