Canada’s lesson of judicial activism to Trump’s America

On Monday, February 13, Canada’ Prime Minister Justin Trudeau had his first face-to-face meeting with US President Donald Trump. At the press conference, when asked about Trump’s immigration ban against seven Muslim-majority countries, Trudeau responded that Canada’s refugees policy balanced security with openness, and declined to criticize the US administration’s ban.

Yet only a few days earlier Trudeau said that Canada will welcome refugees rejected by Donald Trump. Ahmed Hussen, Canada’s minister of immigration, promised to grant temporary residence permits to people affected by the US travel ban. For several days, Immigration, Refugees and Citizenship Canada’s website carried a banner on “Special Measures for Foreign Nationals Affected by the US Executive Order.” All of this looked like a pointed statement of disagreement with the US government’s decision, quite contrary to Mr. Trudeau’s rather meek statement at Monday’s press conference to the effect that “the last thing Canadians want is for me to lecture another country on how they should govern.”

It must be said that Canada does show something important – and relevant to the US politics today – in terms of the relationship between various branches of power and the role of judiciary in particular. The well-known story of Canadian judicial activism, specifically as it relates to the assertion of rights and privileges of various special interest groups, chimes extraordinarily well with the events of the last 2 weeks in the US.

Trump’s executive order of January 27, 2017 restricted immigration from seven predominantly Muslim countries, six of which are war-ravaged, failed states. On January 30, 2017, the order was challenged in a court suit filed in the State of Washington. Three days later, on February 3, Judge James Robart of the district court in Seattle suspended Trump’s executive order arguing that “significant and ongoing harm was being inflicted on substantial numbers of people, to the detriment of the States, by means of an Executive Order.” The next day, the San Francisco-based liberally-inclined US Court of Appeals for the 9th Circuit (western United States) denied a Justice Department request to stay the suspension of President Trump’s order. On February 13, Judge Robart denied presidential administration’s request to postpone any further proceedings in his court over the travel ban.

US courts clearly take the policy-making initiative in their own hands. This new form of judicial activism is rather unprecedented for the country. While the American constitution provides for checks and balances on executive authority, it does not provide for the courts to replace or undermine the President in his purely executive functions. In the landmark Mississippi v. Johnson case the argument was that “the Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department,” even if the courts do have the right to review the legislature and the executive orders.

While rather new to the US, judicial activism of this sort is a long-standing feature of Canadian politics. Since the adoption of the Charter of Rights and Freedoms by a Liberal government in 1982, a number of Charter-based suits resulted in important changes to the law of the land. One of the early Charter-based acts of the Supreme Court made woman’s choice a sole criteria for abortion. A series of other acts promoted same-sex marriages, even though sexual orientation was not specifically mentioned in the Charter itself. In 2012, Canada’s judges disallowed police tapping of telephones without a warrant, even in emergency situations. Next year, the Supreme Court decriminalized prostitution. More recently, a Canadian federal court ruled that the government’s cuts to health care for refugees represented “cruel and unusual treatment,” which essentially obliged the Trudeau government to restore all refugee health care benefits to the pre-cut levels.

Among other achievements of judicial liberal activism in Canada is the ruling on the right to strike, which practically annulled the existing essential services legislation, the endorsement of assisted suicide, and the hate speech ruling that, according to an expert opinion, “all but strangles” arguments made from a religious point of view. In most of these and related cases it is indeed difficult to ascertain whether this or that decision has been derived from sensible reading of the Constitution, or whether the court has simply made it up.

Supporters claim that the Charter-based activism transformed Canada into a “constitutional trendsetter” for the whole world. Now and then, “the declining attraction of the US Constitution as a model for other countries” is contrasted with “increasing attraction” of the Canadian model.

The slowly evolving constitutional crisis in the United States serves an apt demonstration of how the uncritical following of the liberal-activist trend by the US judiciary may affect the country’s politics in such vital areas as immigration politics and national security. No matter whether the President or the dissenting states, via the continuing court action, will win, the damage to Donald Trump’s exercise of executive powers has been done.