In my last article, “Reaffirming the Case for Constraint“, I replied to Leonid Sirota’s article “How to do Constitutional Adjudication,” which was itself a response to my paper, “The Case for a Constrained Approach to Section 7.” Mr. Sirota also wrote a piece entitled “Seven’s Sins” in response to my original paper. I had intended to reply to “Seven’s Sins” in the post you are reading now. However, after posting “Reaffirming the Case for Constraint,” Mr. Sirota promptly responded with a piece entitled “Constraint and Candour.” This is getting a bit complicated. So, rather than replying to each article separately, I am going to address Mr. Sirota’s two articles – “Seven’s Sins” and “Constraint and Candour” – in a single post. I will first address his comments about constitutional adjudication generally and then return the conversation to section 7 of the Charter, where it first began. I welcome Mr. Sirota’s reply and offer him the final word on the matter.
Constraint and Restraint
Before addressing Mr. Sirota’s argument, I will first clarify my own interpretive philosophy. At the conclusion of my previous article, I explained that my approach to constitutional adjudication is not necessarily one of judicial restraint, but rather of constitutional constraints. Judicial restraint is essentially a posture of deference toward the legislature that a judge chooses to take. There is no constitutional rule that says a judge ought to be restrained. In exercising restraint, a judge may even fail to give effect to a constitutional provision. Constraints, on the other hand, are rules that are imposed on the judge by the constitution itself, or by the rule of law more generally. Constraints place external limitations upon what a judge can do; but they also force a judge to act in certain circumstances.
The words of section 7 of the Charter offer several such constraints. They require a judge to invalidate a law or other executive action that would deprive an individual of life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice. But they also compel a judge to uphold a law that does not deprive an individual of life, liberty or security of the person, or that deprives an individual of these rights in accordance with the principles of fundamental justice. A judge exercising judicial restraint would be wary of striking down any democratically enacted law. The constrained judge, on the other hand, would freely strike down those laws that offend section 7, but only those laws that clearly come within the ambit of section 7. Since the vast majority of controversial section 7 cases before the Supreme Court deal with the expansion of that section, judicial restraint and constitutional constraints tend to overlap and can easily be confused or conflated. One can certainly be both constrained and restrained, but conceptually speaking, they are distinct.
Mr. Sirota shares my belief in the importance of constraint, and in particular that the constitutional text is “the overarching limit on judicial power.” Similarly, I am in full agreement with his argument that law is replete with moral principles. The rule of law and democracy are themselves value-laden principles, as are the many provisions of the Charter. To the extent that a judge is enforcing a Charter provision, he or she is admittedly engaged in a “moral or ideological endeavour” as Mr. Sirota says. Yet, it is precisely for this reason that judges must be constrained by the constitutional text. The judge is armed with a most volatile weapon – the power to override laws that offend the Charter, and thus to impose the Charter‘s “moral or ideological” values upon the Canadian public. That function must be carried out delicately and strictly within the bounds of the constitutional text. To expand upon the meaning of the text is to impose moral values beyond what the people’s representatives have enacted into law. It is to codify morality for which there is no apparent consensus.
Thus, to say that judging should be apolitical is not to say that law itself can be utterly devoid of political or moral values; it is to say that the application of the values embedded in the law itself should be done in a neutral manner. A judge who finds a man guilty of first degree murder and sentences him to life imprisonment has made a strong moral and ideological statement in opposition to murder and in favour of severely punishing murderers. But if the judge weighed the evidence fairly and impartially, and correctly applied the rules of evidence and the Criminal Code, then no one could accuse the judge of being ideologically driven. In delivering the verdict and sentence, the judge is merely serving as the mouthpiece for society’s morality, as expressed through its laws.
My sense is that Mr. Sirota and I disagree to some extent on the “restraint” side of things – specifically when and to what extent deference is owed to the legislature. My own view is that judges should work under a presumption that the legislature dutifully considered the Constitution and sought to keep the law within the bounds of the Constitution, but should also be prepared to rebut that presumption and, as I said in my last article, “vigorously enforce” Charter protections. And given that Charter adjudication is a prima facie “moral or ideological endeavour,” judges should typically err on the side of deference when presented with so-called “hard cases.” Mr. Sirota sees “democratic process failures” as providing judges with “the reason” to invoke the power of judicial review, and suggests that the presence of a failure could obviate the need for judicial deference. With respect, I do not find Mr. Sirota’s concept of “democratic process failures” to be helpful for the reasons I outlined in my previous article, and because of their indeterminate nature, I do not believe they should play a role in whether or not a judge exercises deference.
In sum, Mr. Sirota and I are more or less on the same page when it comes to the theory of constitutional adjudication. Our principal disagreement at this point appears to be the way in which section 7 has been interpreted and ought to be interpreted. In other words, we agree on the ideas, but not on the way those ideas are applied in the real world. So it goes.
The Interpretation of Section 7
Mr. Sirota disagrees with most of the constraints that I propose should govern the interpretation of section 7. In particular, he is of the view that I am misguided with respect to 1) the original meaning of section 7, 2) the significance of the word “deprived” and 3) the principles of fundamental justice. He agrees, however, that section 7 should not be unduly expanded, and in particular, should not be expanded to include positive government obligations. In my respectful view, it is his objections that are misguided, firstly because they undermine the very constraint principle he endorses, and secondly because, without such constraints, the courts are far more likely to expand section 7 into the realm of positive government obligations.
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Mr. Sirota is correct that Justice Lamer’s decision in B.C. Motor Vehicle Reference paid “close attention to the text and context of section 7.” In “The Case for a Constrained Approach to Section 7” I point out that the Court’s early Charter decisions appear “tame” from the perspective of 2016. It is equally true that the decisions are generally more carefully reasoned and doctrinal. One gets the sense reading those early decisions that the Court was truly alive to the awesome power this new Charter afforded the judiciary and sought to take great care to ensure that its decisions comported with the Charter‘s text, purpose and philosophical roots. To use the familiar metaphor, the living tree was not permitted to grow beyond its “natural limits.”
On the other hand, it would be a stretch to say that Justice Lamer’s reasoning is in keeping with modern-day originalism. It is one thing to point out (correctly in my view) that the Court’s interpretation should not be bound by the original intent of the framers. It is another to suggest that the original meaning of “principles of fundamental justice” included substantive guarantees. While Mr. Sirota is correct that the phrase had previously been interpreted in an explicitly procedural context, this misses the point. Section 7 of the Charter was essentially an amalgam of ss. 1(a) and 2(e) of the Canadian Bill of Rights, neither of which had ever been interpreted to protect a substantive right. By all accounts the phrase “principles of fundamental justice” was chosen because “due process of law” came with the baggage of the “substantive due process” doctrine developed in the United States.
While the original intent of section 7 as a whole is arguably irrelevant, the framer’s intended meaning of “principles of fundamental justice” is surely relevant since the phrase had no “public” meaning at the time of its adoption, and, aside from its inclusion in the Canadian Bill of Rights, was not a familiar term of art. In sum, while the original meaning of principles of fundamental justice is admittedly somewhat ambiguous, there is no evidence that it ever meant anything except a procedural guarantee. The only evidence at our disposal – the framers’ understood meaning and the Supreme Court’s own interpretation – indicates that it was not meant to incorporate substantive guarantees.
In “The Case for a Constrained Approach to Section 7,” I emphasize that it would be impractical to erase three decades of Charter jurisprudence by confining section 7 to strictly procedural matters. I am also prepared to concede that it is at least plausible that certain limited substantive guarantees would be captured by a reasonably generous reading of “principles of fundamental justice.” On the other hand, if we are to remain faithful to the original meaning and purpose of section 7, then the interpretation of that section must be constrained by the language of the provision. In my paper, I offer three important textual constraints that courts have, at times, ignored or marginalized: first, that the interpretation of section 7 should not extend beyond the protection of “Legal Rights” – meaning that it should only be applied in the context of the administration of justice; second, that a law should only be struck down where it “deprives” an individual of life, liberty or security of the person; and third, that the principles of fundamental justice should only concern the very basic tenets of the legal system.
Mr. Sirota appears to take no issue with my first proposed constraint, but he clearly does take issue with my second and third (or at least with how I believe those constraints operate in practice).
With respect to the deprivation requirement, Mr. Sirota argues that there is no significant difference between “deprivation” and “infringement.” With respect, there is a clear semantic distinction. Merriam-Webster defines “deprive” to mean “to take something away.” It other words, it connotes a complete loss of something – in the case of section 7, one’s life, liberty or security of the person. By contrast, the definition of “infringe” is “to wrongly limit or restrict.” One may have his or her liberty limited or restricted without having it taken away. Mr. Sirota suggests that a day’s imprisonment is less onerous than “years without the ability to take elementary precautions imposed by the Criminal Code’s prostitution-related offenses.” It is not for me to say whether or not that it so, but in my view it is also irrelevant. The Charter is not an instrument for weighing and measuring human hardships. A Charter protection speaks to the nature of the state action, not the duration of hardship (though the duration of the state action is certainly relevant once deprivation has been established). There are many laws that are unquestionably constitutional, but that, over time, might prove to be more onerous than a single day in prison. As an obvious example, I suspect that many people would be prepared to spend one day in prison in exchange for never again having to pay taxes. The cumulative effect of paying taxes over decades could be far more burdensome than a single day in prison; but is trite that when the government levies a tax, it does not “deprive” an individual of his or her liberty (even allowing for some flexibility in interpreting that term).
Mr. Sirota is also of the view that in determining whether state action has “deprived” an individual of life, liberty or security of the person, the Court should not be limited by what I refer to as the “direct effects” of the law. My issue with “indirect effects” is not with the causal relationship per se (though certainly rights deprivations must be reasonably foreseeable), but with the necessity of relying upon social science evidence to establish a rights breach. This is not to say that social science evidence can never prove helpful; but we must recognize that it is, at base, opinion evidence proffered by a party in the context of adversarial litigation. Much has been written about the potential dangers of opinion evidence contaminating the fact finding process, and this commentary generally emerges in the civil litigation or criminal law context where the issues are typically narrow and findings of fact often relate only to a single individual. Two eminently qualified physicians, for example, will often disagree as to whether an individual plaintiff is able to return to work following a motor vehicle accident. Not surprisingly, the opinion of the expert will almost always be in favour of the party who has hired him or her. In the context of “social and legislative facts” – meaning facts about society at large – opinion evidence becomes all the more menacing, because it is all but impossible to cross-examine the expert against a clear factual record. A physician who opines that a plaintiff is able to return to work can be challenged with a number of facts in evidence – records of treating physicians, employment documentation, and the testimony of the plaintiff’s closest family and friends. By contrast, there is no way for a trier of fact to verify the opinion of a social scientist that “street-based venues hold the greatest risk to safety” for prostitutes (see Bedford v. Canada, 2010 ONSC 4264 (CanLII) para. 316.) This opinion is not capable of being tested or weighed against non-contentious adjudicative facts, nor can the trier of fact fall back on common sense and good judgment. The opinion can only be confirmed or contradicted by other opinion evidence, almost none of which is based on direct observation and all of which concerns, not one individual or even ten, but an entire segment of society. The inevitable result is a costly battle of the experts, leaving the court in a position to select whichever unreliable opinion it prefers.
For this reason, the courts should take great care in the role they afford to “social and legislative facts.” These expert opinions may be valuable in supplementing other adjudicative evidence, but they should not serve as the evidentiary foundation for a rights breach. If an issue cannot be resolved without recourse to generalized and unverifiable opinions about society at large, then it should be returned to the legislative branch, which is better equipped institutionally to handle the matter.
Mr. Sirota is also of the view that my criticism of some of the principles of fundamental justice created by the courts is misguided. He concedes that the principle of “gross disproportionality” involves “a measure of subjectivity,” but argues that overbreadth is a “time honoured principle,” citing First Amendment jurisprudence in the United States. While I am no U.S. constitutional scholar, the American doctrine of overbreadth appears to be distinct from its Canadian counterpart. Under First Amendment jurisprudence, a law is overbroad if, in proscribing unprotected conduct (say, defaming others), the law also proscribes protected conduct (political expression). Importantly, the Court looks at the law on its face. It is not required to articulate the underlying purpose of the law, and therefore is not required to evaluate whether the law has overshot its purpose. The Canadian principle of overbreadth has been criticized by numerous scholars, including Professor Hogg, who correctly notes that it raises “a host of practical and theoretical difficulties.”
Mr. Sirota is opposed to enshrining positive government obligations in section 7. Yet, under his more expansive construction of section 7, the entrenchment of positive obligations becomes far more likely, if not inevitable. Mr. Sirota is certainly correct that section 7 has long been understood to be “a shield to protect individuals from the state, not a sword to put to the throat of elected representatives in order to force them to spend money and enact regulations at the behest of interest groups.” But this is simply the doctrine as it currently stands – just one more constraint liable to fall by the wayside in service of the “living tree.” If the Supreme Court is prepared to create new principles of fundamental justice, read down the deprivation requirement, and even bring section 7 out of the adjudicative context on occasion, then what will prevent it from muddying, or even eliminating, the shield/sword distinction? If these basic textual constraints are not enforced, then it can only be a matter of time before the “wonders” of section 7 come to include positive government obligations, from providing a basic standard of living to public healthcare. The majority of justices in Gosselin acknowledged as much when they refused to forswear for all time the protection of positive obligations, recognizing that they may eventually be possible under an expansive living-tree interpretation.
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To summarize, while I have some real concerns with section 7’s sins, my main issue is with the “wonders” it may yet accomplish. Lord Sankey is famous for stating that Canada’s constitutional order is a “living tree”; but two years later he offered an analogy that, while far less cited, is no less important. In the Aeronautics Reference, he warned against judicial interpretations moving slowly but surely away from the original meaning of the text – “from what has been enacted to what has been judicially said about the enactment.” Lord Sankey went on to state the following:
To borrow an analogy; there may be a range of sixty colours, each of which is so little different from its neighbour that it is difficult to make any distinction between the two, and yet at the one end of the range the colour may be white and at the other end of the range black. Great care must therefore be taken to consider each decision in the light of the circumstances of the case in view of which it was pronounced, especially in the interpretation of an Act such as the British North America Act, which was a great constitutional charter, and not to allow general phrases to obscure the underlying object of the Act, which was to establish a system of government upon essentially federal principles. Useful as decided cases are, it is always advisable to get back to the words of the Act itself and to remember the object with which it was passed. [Emphasis Added]
It is this very phenomenon that we are witnessing in the context of Charter adjudication generally and section 7 in particular. Carter and Bedford were not much different from other section 7 cases decided post-2010 such as Canada v. PHS Community Services Society, but both represent a noticeable departure from the doctrine of the early 1990’s. In the absence of textual constraints that are vigorously enforced (and some measure of judicial restraint in the face of questionable legislation), this phenomenon can only continue in earnest, propelling the interpretation of section 7 across sixty colours, and more, until it bears no likeness to the original text.