Why Canada has the most activist Supreme Court in the world

From catch-and-release justice to MAID overreach, Canadian judicial activism is yielding some massive unintended consequences

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Often, if there’s a massive political controversy gripping the country, there’s a good chance that the Supreme Court of Canada had something to do with it.

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Ontario was recently driven into a miniature constitutional crisis due to a Supreme Court decision declaring that striking is a Constitutional right. A series of recent Supreme Court decisions kneecapping bail and sentencing provisions has helped fuel a crisis of “catch and release” justice. And, of course, Canada is now experiencing regular incidents of contentious assisted suicide cases — a regime whose existence is due entirely to Supreme Court order.

It wasn’t too long ago that the Supreme Court of Canada was extremely leery of overruling Parliament or mandating seismic shifts to the status quo. But in just the last 10 years, Canada’s top court has been on an activist streak that has begun to profoundly affect Canadian daily life.

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Below, a not-at-all comprehensive list of the times that a new Charter right discovered by the Supreme Court of Canada has yielded a cascade of unintended consequences for Canadian society.

Greenlighting the world’s least regulated assisted suicide regime

In most other jurisdictions that have legalized assisted suicide, the measure has been strictly limited to patients suffering from a physician-certified terminal illness. This is why those jurisdictions have largely avoided the worst excesses of the Canadian MAID (medical assistance in dying) regime.

For instance, the U.S. State of Oregon has had a Death With Dignity Act in place since 1997. Nevertheless, tight controls on access have meant that Oregonians have not experienced incidents of combat veterans being offered euthanasia in lieu of treatment, or of patients being killed by doctors only days after admittance for a psychiatric episode.

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The Canadian parliament had wanted to install Oregon-style guardrails when they first legalized MAID, but their hands were tied by a rather broad 2015 Supreme Court ruling that effectively enshrined euthanasia as a Charter-protected right.

According to the Court’s ruling in R v. Carter, any competent adult who was “suffering intolerably” as a result of an “irremediable” condition now had the right to seek a doctor’s help in killing themselves. Somewhat ironically, this new guarantee was found within the provisions of the Charter right to “life, liberty and the security of the person.”

As a result, although a non-partisan coalition of MPs carefully shepherded through a bill limiting assisted suicide only to those whose “death was reasonably foreseeable,” the resulting legislation was soon defeated in a court challenge. If only terminally ill Canadians could seek assisted suicide, Parliament was denying the new Charter-guaranteed MAID rights of anybody else with an “irremediable” condition.

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The result, passed in 2021, was a new MAID law that extended assisted suicide to any Canadian claiming “intolerable physical or psychological suffering,” including those whose only underlying condition was a mental illness.

There were plenty of witnesses who were flown into the R v. Carter hearings to warn the justices about the potential consequences of going too hard in legalizing assisted suicide. But the final decision is remarkably dismissive of any notion that medically assisted death might go too far. “We should not lightly assume that the regulatory regime will function defectively,” it reads.

Accidentally helping to exacerbate the “stranger attacks” problem

In recent years, B.C. has seen a spike in a phenomenon known as “stranger attacks.” These involve random, unprovoked violent attacks on Canadians in public places, often by an offender who is intoxicated or in the throes of a psychiatric episode.

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Fuelling the phenomenon is the fact that even when offenders are caught, they’re almost never detained for more than a few hours before receiving bail. This was thrown into particularly stark relief in the case of Vancouver man Mohammed Majidpour. After allegedly committing a racist attack against an Asian teenager in September, Majidpour was freed from custody after just a couple days in jail — and has since been arrested and released several more times while awaiting trial. In one instance, Majidpour tried looting a clothing store just two hours and 18 minutes after a release from custody.

In October, when B.C. Attorney General Murray Rankin announced a suite of new measures intended to deny bail to chronic offenders, he partially laid the blame for the stranger attack crisis at the feet of the Supreme Court. “Supreme Court decisions … have made it more difficult to hold violent offenders in custody while they are awaiting trial,” Rankin said in a statement.

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Rankin is likely referring to R v. Antic, the 2017 decision which established that unconditional pretrial release should be the “default position” of the Canadian justice system. “Release is favoured at the earliest reasonable opportunity and on the least onerous grounds,” it read.

Slashing gun sentencing laws due to an imaginary scenario

R v. Antic wasn’t the only instance in which the Supreme Court took a scythe to the justice system’s ability to keep offenders in jail. R v. Nur, released in 2015, decided that the imposition of mandatory minimum sentences on gun criminals constituted “cruel and unusual punishment.”

The ruling didn’t apply to all mandatory minimum sentences; requiring a minimum jail term for a rapist or murderer was still fine. But the Court ruled that putting someone in jail for three years on a gun charge could theoretically be “grossly disproportionate” and was therefore unconstitutional.

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The case surrounded 19-year-old Hussein Nur, who was caught with a loaded handgun while allegedly attempting to “get” a rival in Toronto’s Jane and Finch neighbourhood. Convicted of possessing a prohibited firearm with ammunition, Nur was handed the requisite three-year minimum sentence.

But the Supreme Court didn’t strike down mandatory gun sentences based on the particulars of Nur’s case. In fact, the Court wrote that sending Nur to jail for three years made perfect sense and did “not constitute cruel and unusual punishment.”

Rather, the R v. Nur decision was based entirely on a hypothetical scenario in which a Crown prosecutor tried to seek a three-year prison term for a gun owner whose only crime was forgetting to renew their licence. It didn’t matter that this scenario had never happened before; the mere possibility that it could happen was enough for the Court to strike mandatory minimum gun sentences from the Criminal Code on the grounds that they were a grossly disproportionate application of justice.

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The decision was 6-3, with the dissenting judges writing that the whole decision hinged on a “marginally imaginable” scenario that stretched “the bounds of credulity.” “It is not a sound basis on which to nullify Parliament’s considered response to a serious and complex issue,” they wrote.

Declaring that safe injection sites have no “negative impact on public safety”

For roughly the last 10 years, Canadian policy towards homelessness and addiction has leaned hard into the philosophy of “harm reduction” over prior models of abstinence or treatment. It hasn’t worked great: Despite government spending on homelessness reaching record highs, Canada’s rate of homelessness, tent cities and overdose deaths have never been worse.

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But right at the beginning of this national journey was a 2011 Supreme Court decision which helped clear the ground for Canada’s current regime of having safe consumption sites in major cities.

The decision ultimately hinged on a question of provincial vs. federal rights: The Supreme Court ultimately decided that provinces were free to open a facility “welcoming” illicit drug use if they wanted to, and that the feds couldn’t use the Controlled Drugs and Substances Act to stop them.

To get to that conclusion, the justices decided that federal laws against drug possession violated the Charter right to “life, liberty and the security of the person.” But this strangely only applied within the walls of a safe injection site; drug laws were still fine everywhere else. “To prohibit possession by drug users anywhere engages their liberty interests; to prohibit possession at Insite engages their rights to life and to security of the person,” it read.

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Secondly, the Supreme Court stated that opening facilities which actively functioned as neighbourhood hubs for illicit drug use would have no impact whatsoever on community safety. “There is little or no evidence that (safe injection sites) will have a negative impact on public safety,” it writes.  Another section writes that safe injection has yielded “no discernable (sic) negative impact on the public safety and health objectives of Canada.”

The evidence? A handful of limited studies conducted by Insite itself that have yet to be replicated by any of Canada’s other safe injection sites.

Deciding that it’s “cruel and unusual” to jail mass killers for life

Canada’s 30-year push to secure tougher sentences on mass murderers was the definition of grassroots political advocacy. Led by the families of Canadians who had been killed in mass-slayings (including former NHLer Don Edwards), the movement’s basic argument was that the Canadian justice system made no material distinction between the sentences handed out to an offender who killed one person, or one who killed 20 — every additional murder sentence was served “concurrently.” As Edwards said of the man who murdered his parents in 1991, killing his mother got him 25 years in jail, but the murder of his father was a ”freebie.”

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Several Liberal MPs had championed the cause of “life means life” sentencing reforms during the 1990s, but the measure ultimately came to fruition in a 2011 Conservative bill, the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act.

In the interim decades, it was this bill that effectively consigned several of Canada’s most notorious mass-murderers to jail terms of life without parole. But in March, an appeal by the gunman who murdered six worshippers at a Quebec City mosque led the Supreme Court to declare it “cruel and unusual punishment” for offenders to serve their murder sentences consecutively, rather than at the same time. If mass killers weren’t granted at least some chance of obtaining parole, it would “undermine public confidence in the rationality and fairness of the criminal justice system,” they wrote.

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The decision makes Canada an outlier even among its enlightened Western peers, most of whom still reserve the right to decree that its worst offenders should die in prison. France, for instance, largely hews to the Canadian model of handing out 20- to 30-year sentences for murder. But if that murder is a political assassination or involves “acts of barbarity,” a judge can up the sentence to “criminal imprisonment for life.”

But what’s most remarkable about the decision is that it casually dismisses the notion that the Canadian justice system should even be in the business of punishing wrongdoers. “In a legal system based on respect for rights and freedoms, the ‘eye for an eye’ principle does not apply,” it writes.

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Naturally, the Supreme Court of only a few years ago would disagree. In a 1996 decision, the Court upheld a lengthy sentence against a serial child rapist for the singular reason that proportionate jail terms were a great way for Canadians to condemn the “moral blameworthiness” of victimizing children. “Retribution is an accepted, and indeed important, principle of sentencing in our criminal law,” it read.

Discovering a Charter-guaranteed right to strike (only a few years after finding the exact opposite)

In November, Ontario was plunged into a couple weeks of fevered political crisis over news that Premier Doug Ford had threatened to invoke the Notwithstanding Clause, a rarely used section of the Constitution that allows provincial governments to ignore the Charter of Rights and Freedoms.

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The cause was a piece of back-to-work legislation intended to ward off a strike by 55,000 educational support workers. Of course, back-to-work legislation has been passed plenty of times throughout Canadian history without the need to steamroll the Charter, so why did Ford decide to escalate into a Constitutional crisis?

The reason was that the Supreme Court had declared striking to be a Charter-protected right just seven years before, effectively outlawing back-to-work legislation. Collective bargaining is obviously not mentioned in the Charter, but the court ruled in 2015 that the right to “freedom of association” should include it. As Justice Rosalie Abella wrote in the decision “it seems to me to be the time to give this conclusion constitutional benediction.”

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This was another decision that went well beyond the pale of any jurisprudence seen in the rest of the democratic world. Only a handful of countries maintain any kind of constitutional guarantee on the right to strike, and in all those cases the provision has been pretty explicitly encoded into law (rather than inferred as a natural consequence of the right to freedom of association). The Italian constitution, for instance, declares that “the right to strike shall be exercised within the limits set by the laws which govern it.”

What’s more, the 2015 decision was a direct contradiction of an earlier Court ruling that had explicitly slapped down the notion that striking was a Charter right. “The constitutional guarantee of freedom of association … does not include …  a guarantee of the right to bargain collectively and the right to strike,” reads a decision from 1987.

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And since we’re on the subject of the Supreme Court suddenly changing its mind, this has actually been happening a lot lately. In 2018, the Supreme Court decided that B.C.’s Trinity Western University could be denied accreditation for its law school due to a religious covenant that required students to remain celibate unless they were in a heterosexual marriage (TWU had argued that the denial violated their Charter right to freedom of religion). In 2001, a near-identical Supreme Court case also involving TWU accreditation had gone the exact opposite direction.

And the issue of assisted suicide actually came before the Supreme Court once before in 1993. In that case, the justices (some of whom would still be around in 2015 to write the Carter decision) ruled in part that it was Parliament’s job to figure out the assisted suicide issue, and not theirs. “Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the blanket prohibition on assisted suicide is not arbitrary or unfair,” wrote the Court at the time.

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Taking beer across provincial borders, although authorized by the constitution, is still unconstitutional somehow

A theme in many of the cases cited above is the Supreme Court’s remarkable penchant to discover entirely new Charter rights — even in instances where the Court itself has previously ruled that no such rights exist.

But this trend towards creative jurisprudence took a remarkable 180-degree turn in 2018, when the Court issued a surprise decision upholding the illegality of carrying alcohol between provinces.

The case had been launched by a New Brunswick man who was hit with a $292.50 fine while driving home from Quebec with 14 cases of beer in his trunk. The Mountie who handed out the ticket was enforcing New Brunswick’s Liquor Control Act, which forbade residents from purchasing alcohol anywhere except a New Brunswick liquor store.

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To court-watchers at the time, the case seemed pretty open and shut. The 1867 British North America Act — the document that forms the core of the Canadian Constitution — is rather explicit in stating that interprovincial trade barriers are against the law. “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces,” it states.

But the Supreme Court neatly sidestepped this particular Constitutional clause on the grounds that New Brunswick wasn’t technically maintaining a provincial trade barrier, they were just trying to “exercise oversight over liquor supplies.” And thus the $292.50 fine was upheld.

“On some issues they’ll issue broad judgements that sweep aside decades or a century of laws, but on other issues they’re quite timid and retreat back to a stance of saying, ‘Well the court doesn’t really like to interfere in these things,’” Howard Anglin, director of the Canadian Constitution Foundation, told National Post at the time.


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