Post-doctoral Fellow at the Queen’s Faculty of Law and Research Fellow at Stanford Law School’s Constitutional Law Center

Thanks very much to Leonid Sirota and Mark Mancini for kindly inviting me to contribute to this symposium. I thought about which cases to include in my list of the “worst” Supreme Court cases of the 1967-2017 period during Christmas, and I hope that my list isn’t too out of touch with the charitable spirit of the season. This list is largely influenced by my own Madisonian argument for the need for constructive dialogue between Canadian legislatures and courts about Charter rights. My theory of rights dialogue is just one among many, and my ideas on dialogue and rights are significantly indebted to the work of Dennis Baker and Grégoire Webber (among many others).

Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519 (Sauvé II)

In my view, the Court deserves applause in cases where it not only exercises a proper degree of deference to Canadian legislatures, but is willing to recognize a measure of co-ordinate autonomy in constructing the indeterminate meaning of Charter rights. In R v Mills the Supreme Court explicitly used the idea of dialogue to justify its reasoning about the meaning of the Charter’s sections 7 and 11(d) right to a full answer and defence in criminal trials as it relates to the privacy rights of victims. It also considered how a statutory reply to an early decision (R v O’Connor) constructed the meaning of such rights in relation to the privacy rights of the accused, but also the Charter’s section 15 and 28 sexual equality rights of victims, and the public interest in encouraging the reportage of sexual assault, especially the sexual assault of women and children. The opinion characterized the relationship between Parliaments and the judiciary as one of “dialogue”. It claimed that:

“The law develops through dialogue between courts and legislatures … Against the backdrop of O’Connor, Parliament was free to craft its own solution to the problem consistent with the Charter.”

This suggests that Parliament has autonomy in constructing the nature and scope of Charter rights.

But the Court also deserves criticism when it departs from this constructive type of dialogue. A few years after Mills, in Sauvé II a majority of judges on the Court repudiated its previous commitment to co-ordinate dialogue. The Court invalidated a legislative reply to a prior judicial ruling that had seemed to invite inter-institutional disagreement on whether the Charter’s section 3 protections for voting rights secured prisoners’ the right to vote. The Court repudiated Parliament’s attempt to reply to the Court’s prior invalidation of an 1898 statute disqualifying all prisoners from voting during their imprisonment with an enactment limiting disenfranchisement to convicted criminals imprisoned for a period of 2 years or more. The majority opinion argued that “[t]he healthy and important promotion of a dialogue between the legislature and the courts should not be debased to a rule of ‘if at first you don’t succeed, try, try again’.”

This was at odds with the more constructive ideal of dialogue the Court embraced in Mills. In my view, the much narrower role for legislatures in the more interrogative ideal of dialogue embraced in Sauvé II presupposes that Courts are the supreme authority over the meaning of Charter rights, and this premise lacks a textual basis in the Constitution Act. The type of dialogue represented by Sauvé II involves courts interrogating legislatures for justifiable reasons for infringing rights. This type of dialogue threatens both democratic control over the meaning of indeterminate rights, and respect for rights as specifications of justice that should not be easily overridden.

Even setting aside the difficulties attending the interrogative ideal of dialogue articulated in Sauvé II, the case rested on questionable legal and philosophical reasoning about the construction of voting rights. While the text of section 3 of the Charter limits the right to vote to citizens, the Court did not consider at any length the question of whether the public meaning of entrenching the right to vote was thought to extend to prisoners (in spite of the interesting fact that the Joint Committee on the Constitution excised an internal limitation clause qualifying this right after debates concluding that it was vague and unnecessary). Instead, the Court extended the right to vote to prisoners without much comment, and then engaged in a problematic proportionality analysis of the justification of infringing their right to vote. Although the Court granted that the legislation had legitimate aims (encouraging civic responsibility and punishing crime) it found the enactment disproportionate to these aims in a way that appeared to deny the possibility of any proportionate limitation on the right to vote. Writing for the majority, McLachlin C.J. argued that limitation on prisoner voting was disproportionate to these ends because the “obligation to obey the law flows from the fact that the law is made by and on behalf of citizens”. This claim was not philosophically reconciled with the “practical matter” that “we require all within our country’s boundaries to obey its laws, whether or not they vote.” Liberal political philosophers such as H.L.A. Hart and John Rawls would have been puzzled at the majority’s reasoning on this matter and its invocation of social contract theory.

R v Oakes, [1986] 1 SCR 103

Like many of the other contributors to this symposium, I consider the approach to Charter rights developed in Oakes to have created confusion about the meaning and specification of rights. In turn, I think that this confusion has affected the norm of dialogue informing interactions between legislatures and the courts concerning Charter rights. Oakes introduced the European “proportionality” approach to reasoning about whether Charter rights are reasonable limited according to section 1. The Oakes test encourages courts to focus less on the scope and nature of rights as they relate to other rights and constitutional provisions, and more on the legitimacy (i.e. importance), suitability (i.e. rationally connected), necessity (i.e. minimally impairment), and proportionality (stricto sensu) of the state’s “infringements” of rights. But these latter questions lead both courts and legislatures to analyse rights in a utilitarian register. They orient judicial interactions with legislatures towards determining whether the reasons and means by which legislatures “infringe” rights are justifiable. This can have the unfortunate side-effect of decreasing legislative responsibility for constructing the indeterminate meaning of rights.

Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567

This case involved Albertan Hutterites who objected to having their photographs appear on their driver’s licences and sought accommodation as a matter of their right to freedom of religion under section 2(a) of the Charter. The majority decision conceded that the provincial regulation infringed section 2(a), but held that the legitimate and suitable government aim of having a photo database lacking exceptions minimally impaired the right, and that Alberta’s interest in the security of its licencing system outweighed any case-by-case harm to the religious freedom of individuals.

The majority opinion was problematic because it failed to establish why the photographs of 250 Hutterites were necessary to maintaining a secure licencing system (in a province with 700,000 citizens without licences at that time). The majority also erred by implying both that the lack of accommodations really only threatened the religious claims of individuals, and that infringements on freedom of religion deserve more deference due to the “broad scope” of the right. The Court has since largely corrected the view that religious freedom cannot be unjustifiably limited in relation to a religious community (e.g. Mounted Police Assn. of Ontario v Canada). But, in my view, the Court has unfortunately continued Hutterian Brethren’s spirit of treating abridgements of religious freedom as worthy of less scrutiny than other rights and interests. However, in the spirit of the season, I should note that Abella and LeBel JJ.’s dissents are fantastic, especially LeBel’s critique of proportionality analysis.

Schachter v Canada, [1992] 2 SCR 679

Joanna Baron has already written persuasively in this symposium about the difficulties created by the Court’s understanding of judicial remedial powers in Schachter v Canada. In Schachter, the Court decided that the separation of powers should not strictly limit the ability of courts to “read-in” measures to remedy unconstitutional legislation according to section 24 of the Charter (even though such legislation is, per section 52 of the Constitution Act, 1982, null ab initio). I agree with Ms. Baron and Dean Robert Leckey that this type of expansion of the remedial powers threatens to spill the banks of the traditional judicial role.

Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624

Eldridge is in a way the fruit of the problems with Schachter. In Eldridge, the Court interpreted the equality guarantee in section 15(1) of the Charter to require B.C.’s public health care system to include specific resources for deaf patients. The Court went so far as the specify that “sign language interpretation will be required in most cases” and that the cost of providing such interpreters is “only 150,000”. As Professor Baker points out in his book’s excellent discussion of the case, in Eldridge the Court not only potentially expanded the judicial role into the legislative function, but did so in a way that appears to have circumvented enumerated protections for legislative control over public spending in sections 53 and 54 of the Constitution Act, 1867.

A belated Merry Christmas and Happy New Year to all!

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