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Indeed, there is but one Liberal appointee, Rosalie Abella, on this most liberal of courts, Chief Justice Beverley McLachlin having been appointed by the Conservative Brian Mulroney. Yet in one decision after another — prostitution, hate speech, the Nadon and Senate references, the right to strike — the court has taken it upon itself of late to push the boundaries of Canadian law to the limit, going where no previous Supreme Court would have dared. In some cases it has ignored precedent, in others it has rewritten the constitution. In the aggregate it has become almost impossible to discern any coherent underlying philosophy in the Court’s rulings, or to predict with any confidence how it will rule on a given question.

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’Twas ever thus, of course — up to a point. The courts will inevitably put someone’s nose out of joint no matter how they rule, and while conservatives have long railed against “judicial activism,” they too often seem to mean any exercise of judicial review: the mandate, assigned to the courts by Parliament, to compare the law in front of them with another, more fundamental law — the Constitution — and to the extent of any discrepancy between the two to declare the former to be of no force or effect.

What makes a decision “activist,” then, is not merely that it results in this or that law “passed by a democratic Parliament” being overturned, but whether it does so in accordance with Parliament’s own previously expressed wishes: that is, whether the grounds for the decision can in fact be found in a sensible reading of the Constitution, or whether the court made it up. Even allowing for some difference of opinion over what is reasonable, it is clear that not every such reading can be defended, as it is sometimes clear that no reading was even tried.