Courting Understanding

The Supreme Court of Canada has spent most of the last several decades in the public spotlight, dealing with a wide range of constitutional cases touching on some of the most controversial issues of modern society: constitutional amendment and constitutional reform; federalism; the balance between civil liberties and national security; abortion; gay rights; same-sex marriage; assisted suicide; secession; Aboriginal rights; and mandatory minimum sentences. This list, while not complete, is none the less enough to make the point: after decades of constitutional change and turmoil, arguably the single most important change to Canadian politics has been the emergence of the Supreme Court of Canada as a major national institution that is expected to be engaged in the major political issues and controversies of the day. No significant political controversy or policy innovation is truly concluded until the Supreme Court has weighed in.

The last few years amply demonstrate the court’s new significance. In 2011, the court said that Parliament did not have the constitutional authority to create a national securities regulator (Reference re Securities Act), and it blocked the federal government’s plans to shut down Vancouver’s safe injection site for drug addicts (Canada (Attorney General) v PHS Community Services). In 2014, the court handed down decisions that constrained both the prime minister’s power of judicial appointment (Reference re Supreme Court Act Sections 5 and 6, [regarding the appointment of Marc Nadon]) and Parliament’s ability to make changes to national institutional institutions (Senate Reform); and in 2015, it broke new ground with decisions on the right to strike (Saskatchewan Federation of Labour v Saskatchewan) and the right to assisted suicide (Carter v Canada). This is a far cry indeed from 50 years ago, when Ronald Cheffins could without irony describe the Supreme Court as “The Quiet Court in an Unquiet Country” (1966).

The predictable consequence of this institutional evolution has been a steady flow of academic books and journal articles about the Supreme Court and its decisions—mostly bearing on the Canadian Charter of Rights and Freedoms (a list too long to tackle), with a good number on Aboriginal rights and issues (also an extensive list), and more recently on the Supreme Court’s evolving federalism doctrines. These books and articles are sometimes written by people who liked the decisions but more often by people who did not, although both are generally preoccupied with deciding when and how the judges got it right or got it wrong, and urging the Supreme Court to continue or to reverse direction. Some of the titles are ominous and dramatic: Power without Law (Cameron 2009) and Mighty Judgment (Slayton 2011) are two of the recent examples that come to mind. The recent decisions have similarly provoked critical journalistic responses. Gordon Gibson attacked the Supreme Court as an “enemy of democracy”; Brian Lee Crowley accused the court of undermining the rule of law, calling on a new generation of lawyers and scholars to turn back this “cultural rot” (2015); and Benjamin Perrin awarded the Supreme Court the title of the Macdonald-Laurier Institute’s “Policy-Maker of the Year” (2014), an honour about which the members of the court were unenthusiastic (Toronto Star 2014). Much of the writing on the Supreme Court therefore takes one of two forms: either we are analyzing for praise or blame the logic and the direction of the court’s major decisions in some specific area of law, or we are openly wondering whether the court is behaving legitimately to intrude on these major issues at all.

Most of these books and articles are about Supreme Court decisions, about the output of the court; they are not...