Pierre Lemieux on Supreme Court
Among the numerous candidates for leader of the Progressive Conservative Party of Canada, Pierre Lemieux is one of the few who merits serious consideration. During 10 years in Parliament, he distinguished himself with an impeccably pro-life record and now he also stands out for denouncing the usurpation of legislative powers by the Supreme Court of Canada.
In a letter to supporters on January 6, Lemieux alluded to the spate of arbitrary judicial decrees in recent decades that have overturned duly enacted and long-standing federal laws on abortion, euthanasia and prostitution. “Supreme Court judges have made the law in Canada – not Parliament,” he wrote. “Canadians are ordered around like children. The Supreme Court tells Canadians what they should believe. It’s far past time, Supreme Court judges faced their own judgement days.”
To this end, Lemieux promises: “As Conservative leader and Prime Minister, I will put term limits on Supreme Court judges. I will also give Parliament a vote on the appointment of Supreme Court judges, and establish a process through which Parliamentarians hold judges accountable.”
As it is, Supreme Court judges are appointed by the Governor General acting on the advice of the Prime Minister. Giving Parliament a vote on such appointments might be a good idea, but on its own, this reform would do little to curb the judicial subversion of democracy.
As for term limits, they are blunt instrument that would cut short the careers of both judicial activists and law-abiding judges. Renewable term limits would be even worse in that they would fatally undermine the political independence and impartiality of the courts.
What, then, should be done to curtail the judicial subversion of freedom and democracy? The solution lies in the appointment of restrained judges like Neil Gorsuch, the nominee chosen by United States’ President Donald Trump to replace the late, great Antonin Scalia on the United States Supreme Court. In a lecture last year memorializing Scalia’s achievements, Gorsuch opined: “Perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society.”
Like Scalia, Gorsuch contended that judges should strive “to apply the law as it is” in conformity with the original understanding of the text. Judges should not, he insisted, “decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”
Former Chief Justice Sir Lyman Duff of the Supreme Court of Canada took essentially the same view. By the time he retired from the bench in 1944, he had served almost 38 years on Canada’s top court. In a review of Duff’s constitutional judgments in 1974, Gerald Le Dain, then a leading law professor who went on to serve on the Supreme Court of Canada, noted that Duff “is generally considered to have been one of Canada’s greatest judges.”
In outlining his judicial philosophy in The King v. Dubois, (1935), Duff reaffirmed that judges in a democracy should not evaluate, let alone change, the policy of the law. “The duty of the court in every case is [to uphold] the intention of the legislature,” he insisted. “The individual views of the judge as to the subject matter of the legislation are, of course, quite irrelevant.”
Prior to the 1970s, the great majority of United States and Canadian judges likewise affirmed the vital importance of the separation of legislative and judicial powers. Today, support for this fundamental principle of democracy is still avowed by three judges on the United States Supreme Court, but only one, Russell Brown, on the Supreme Court of Canada.
The key to curtailing the excesses of judicial activists in the United States and Canada is to fill each country’s top court with a majority of restrained judges like Duff, Scalia, Gorsuch and Brown. While that could happen within a few years in the United States, it will take considerably longer in Canada.
Meanwhile, in defence of freedom and democracy, all Canadians should urge more politicians to join with Lemieux in denouncing every judicial ruling that usurps legislative authority over public policy. United States President Abraham Lincoln set the pattern for such dissent in his First Inaugural Address when, in repudiating the notorious pro-slavery, Dred Scott decision of the United States Supreme Court, he said: “The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers.”