On June 9, the Supreme Court of Canada struck down sections of two Quebec statutes that made it illegal for Quebec residents to purchase private health insurance. Four out of the seven justices found that sections of Quebec’s Health Insurance act and Hospital Insurance act were unconstitutional under Quebec’s Charter of Rights and three of the four judges went further and found that those sections also breached the Canadian Charter of Rights and Freedoms.
Brigitte Pellerin, described as an Ottawa based broadcaster and writer, wrote the following in the National Post:
"I was disturbed to see so many conservatives--the same people have decried judicial activism for the past decade--applauding last week’s Chaoulli decision."
Ms. Pellerin shows that she has little or no understanding of what judicial activism actually is and her knowledge of how and what conservatives think appears to be lacking as well. and Brigitte Pellerin is not the only one who has pointed out this supposed hypocrisy of how those on the right view decisions of Canada’s top courts.
Judicial activism occurs when judges ignore the broad intentions that Parliament and the provincial legislatures express in their legislation and literally change, not interpret the law. Unelected activist judges end up making the laws that is the proper role of the elected representatives of the Canadian people.
a clear example of judicial activism is how the Canadian judiciary has and is dealing with the issue of gays and lesbians and same sex marriage. When the Canadian Charter of Rights and Freedoms was drafted, there was no mention of sexual orientation in section 15, the equality rights section of the Charter. This was not an oversight by the constitution’s drafters; sexual orientation was specifically omitted. Notwithstanding the intention of Parliament, "activist" judges read in sexual orientation as an enumerated ground of discrimination under section 15.
In the 1990s, Parliament, by a fairly wide margin, voted to retain the traditional definition of marriage as being between a man and a woman. In spite of Parliament’s clearly expressed intent, several provincial superior courts changed the definition of marriage by changing "a man and a woman" to "two persons" thereby legalizing same sex marriage. It is pretty difficult to find clearer examples of judicial activism.
The Supreme Court of Canada’s decision in Chaoulli could in no way characterized as judicial activism. The subject matter of the case was Canada’s health care system and how it is administered. Under the Canada Health Care act, certain medical services have to be provided by the public health care system. Justice Deschamps clearly stated that the decision whether health care in Canada is provided by a public system or a combination of public and private services, was a decision that was to be left up to Parliament. The Chaoulli decision could have been properly characterized as judicial activism had the court ruled that Canadians had a constitutional right to private health care. But the Supreme Court specifically said that this was not what they were deciding.
The Court looked at the intention of Parliament in providing a public health care system and concluded that it was to provide equal access to medical treatment for all Canadians, hardly a surprising finding. again, the Court did not become activist and tamper with the legislative intent. The Court merely defined what access means, a proper judicial function, and then found that this access was not being provided. Chief Justice McLachlin found that access means access to medical treatment, not access to be put on a waiting list. The decision of the majority of the Court was that Canada’s health care system was constitutional; however not being able to provide treatment to Canadians within a reasonable time was a breach of the right to life, liberty and security of the person and rather than suffer or die waiting for publicly provided treatment, people were free to obtain insurance for private treatment. There was absolutely nothing activist about the Court’s decision.
It is easy characterize decisions that we like as being the well reasoned legal decisions of brilliant jurists, while decisions that we don’t agree with are ones that are made by power mad unelected judicial activists. But in no way can the Supreme Court of Canada’s decision in Chaoulli be classified as judicial activism. There is nothing inconsistent or hypocritical in conservatives regaling against same sex marriage decisions but liking the Supreme Court’s decision regarding Canada’s health care system.