Trial judges overturn the Supreme Court

One person can, and has overturned rulings of Canada’s Supreme Court. Not Prime Minister Harper although I’m sure he would like to. It’s the trial judges appointed by the prime minister that can.


It may seem alarming but it’s nothing new. Appointees from Prime Minister Chrétien did. Whether it’s alarming or not depends on your point of view.

If you think that physician-assisted suicide is a good idea, you would have been pleased when lower court judge, Justice Lynn Smith, overturned an earlier Supreme Court ruling.

In 1993 the Supreme Court ruled against Sue Rodriguez in her bid to have access to physician-assisted suicide. Rodriguez was suffering a terminal illness that prevented from ending her ended her own life.

In 2012, Justice Smith overturned that ruling. She heard testimony from jurisdictions in the U.S. and Europe that allow assisted suicide, and concluded those laws are successful in protecting  the vulnerable from being pressured into accepting an unwanted death.

Justice Smith was appointed by the Chrétien government but she was no hack. Before being appointed, she was dean of the University of British Columbia law faculty and a founding director of the Women’s Legal Education and Action Fund.

Those aren’t the criteria our current PM uses. Unlike Chrétien, Harper has made it clear what he looks for in judges. Sean Fine, justice writer for the Globe and Mail puts it this way: “For nearly 10 years, the Conservative government has been seeking candidates it believed would defer to Parliament and not go out of their way to defend individual rights.”

If you think that a two-tier health care system is a bad idea, then you will worry about the ruling of a lone judge, yet to be chosen, who will hear the case of Dr. Day. He claims the constitution supports his extra-billing of patients. The Canada Health Act and the parallel equivalent B.C., the Public Health Act, prohibit extra billing.

The Supreme Court reference in Dr. Day’s claim would not affect all of Canada –yet. The 2005, Supreme Court ruling only affected Quebec’s Health Insurance Act. In the so-called Chaoulli decision, private health care was allowed under Quebec’s Act. Should Dr. Day’s claim be successful, however, it could have implications for all of Canada in a subsequent Supreme Court decision.

How can it be that the Supreme Court is not supreme? It turns out that in its wisdom the Supreme Court has ruled that it isn’t all powerful.  That’s because our Constitution is a “living tree,” capable of growth over time. Trial judges are to interpret the Constitution because society’s values change over time.

If this doesn’t seem to ring true, it’s because we are constantly reminded of the immutable U.S. Constitution, especially in the right to bear arms. Canada has no such tradition of “originalism:” we are not bound by the intent of the Charter’s framers.

My hope is that trial judges will feel the weight of Canada’s destiny on their shoulders. I trust that honourable judges will base decisions on the facts and not the machinations of malevolent politicians who would corrupt the judiciary to their own ends.