In a National Post column, Jonathan Kay makes the following argument:
“The federal NDP has called on the Canadian government to submit its new, constitutionally dubious prostitution law directly to the Supreme Court for a reference opinion on its compliance with the Charter of Rights and Freedoms. I agree: It could take more than half a decade for a new group of sex-trade litigants to take a Charter challenge up the appellate food chain. Until then, Canada will be saddled with a prostitution law that isn’t much better — and, in some important ways, is worse — than the old laws stuck down by the Supreme Court in its 2013 Bedford ruling.”
This conclusion encapsulates much that is wrong with Ottawa’s elitist culture.
I say this not because I am a friend of the Conservative’s new prostitution law, or a friend of prostitution laws in general. I am not. In this, I agree mostly with Kay. I believe it would be much better to license, regulate and tax prostitutes. I also believe that the new law is worse than what it replaces because it goes further in the direction of men-are-wrong-and-women-are-always-victims school of philosophy propagated by man-hating feminists.
Having said that, there is a higher principle at stake here than merely one corner of the criminal code: it is the separation of powers. In our government, the Prime Minister and Cabinet is the executive, while Parliament makes the laws, and the Supreme Court interprets the laws and enforces constitutional provisions. For this system to stay in balance, each branch of government must confine itself to its assigned role. This includes the Supreme Court.
Of these three, the only unelected branch is the Supreme Court. Because the Supreme Court is required to adjudicate cases brought before it dispassionately, it has been felt that appointing rather than electing judges is necessary in order to insulate them from partisan influence and popular passion. However, there is a flip side: because they are unelected, they should only make judgements based on the particular facts of the case, or the law relevant to the case, and nothing else. Exceeding these limits means that they are no longer refereeing but legislating. At that point, we no longer live under the rule of law but rather under a legal aristocracy, little different from ancient Egypt, where a small group of priests told everybody what to do after examining the entrails of chickens.
Another check on the Supreme Court’s power should be that they only consider cases after they have wound their way through the courts. Unfortunately, Parliament has the ability to bypass the courts and refer its laws directly to the Supreme Court. This is called referral power and is recommended by Kay to settle the prostitution law. I believe that the very idea of referral powers is wrong because it creates a cozy relationship between various branches of government when they should be pitted against one another. This tilts the balance of power in favour of our elites by facilitating the coordination of their activities.
In the United States, the land where judicial review was invented (through the landmark Marbury vs. Madison decision), the idea of Congress going directly before the Supreme Court is abhorrent. To reach the Supreme Court, a case must make its way through the entire federal court system. And unlike Canada, where our justices are selected by one man who doesn’t have to justify his choice, prospective Justices in the US are subject to a Senate confirmation process that is sometimes gruelling and cruel.
I think it was Justice Antonio Lamar who complained in the 1990’s about all the criticism his court was getting, contrasting it to the respect Canadians had for the Court in the 1960’s. Well, you know what Antonio? People revered the old Supreme Court because it tended not to overstep its bounds. It is only after the Constitution Act of 1982, when the Court started playing Parliament – like it did with the Bedford ruling, where the existing prostitution law was struck down, at least partially, for reasons having nothing to do with constitutional principles – did the public’s attitude change. Don’t like the heat Antonio? Don’t make laws disguised as rulings.
Kay concludes his piece with, “Enough with the moralizing: Send this law to the Supreme Court.” You know what Jonathan? Parliament is the proper place where moral concerns, as well as fiscal limitations, economic considerations, and social consequences (such as the harm faced by prostitutes when plying their trade) should be debated – not the unelected Supreme Court. When Parliament gets it wrong (as it often does), our Parliamentarians have to answer to their voters. If the Supreme Court gets it wrong (as it also often does)… well, that’s just too bad.
Therefore, the scope of the Supreme Court’s constitutional rulings should be strictly limited to enforcing the constitutional law, as it is written. And Parliament should not be colluding with them using their ‘referral power’.
And if you insist that we shouldn’t legislate morality, I will ask you, why murder and rape are illegal? Answer: because these acts are immoral. The left has enjoyed great success in justifying its positions with moral principles. It’s only a problem when conservatives do the same.
We should debate our moral questions openly and democratically, and not hide behind our legal priesthood.