{"id":1843,"date":"2016-07-07T17:51:54","date_gmt":"2016-07-07T17:51:54","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=1843"},"modified":"2018-08-31T18:49:11","modified_gmt":"2018-08-31T18:49:11","slug":"sevens-sins-a-response-to-asher-honickmans-take-on-section-7-of-the-charter","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/sevens-sins-a-response-to-asher-honickmans-take-on-section-7-of-the-charter\/","title":{"rendered":"Seven’s Sins? A Response to Asher Honickman\u2019s Take on Section 7 of the Charter"},"content":{"rendered":"

This is the first of two articles\u00a0Mr. Sirota has written in response to Asher Honickman’s essay entitled “The Case for a Constrained Approach to Section 7.”<\/a> The second article\u00a0will be published shortly, following which Mr. Honickman will publish a reply.\u00a0<\/em><\/p>\n

\u00a0This article\u00a0was originally published<\/a> at Double Aspect, Mr. Sirota’s award winning blog.<\/em><\/p>\n

 <\/p>\n

In a very interesting essay written for CBA Alberta\u2019s Law Matters,\u00a0Asher Honickman\u00a0discusses the role of the judiciary in constitutional cases, focusing on section 7<\/a> of the Canadian Charter of Rights and Freedoms<\/em>. Mr. Honickman tries to chart a middle course between\u00a0what he describes as \u201cjudicial supremacy\u201d and \u201clegislative supremacy\u201d \u2015 the views that, respectively, \u201cwhen it comes to interpreting the Charter \u2026\u00a0more is better\u201d and judges should expand the scope of its provisions accordingly, and that the Charter<\/em> as a whole was a mistake. Mr. Honickman\u2019s argument is both rich and well stated. It is also, in my humble opinion, largely misguided. Because it is both rich and concise, it does not lend itself to an easy summary. I would urge the reader to take his or her time to go through it.\u00a0For my part, I will respond to some specific points Mr. Honickman makes, over a couple of posts. I will start here with his take on the past, present, and future of section 7 itself.<\/p>\n

Mr. Honickman argues that the Supreme Court misinterpreted section 7 from the beginning of its engagement with it in\u00a0Re B.C. Motor Vehicle Act<\/em>, [1985] 2 S.C.R. 486<\/a>, expanding its scope well beyond the procedural issues to which it was intended to apply. More recently, the Supreme Court expanded section 7 further by recognizing principles of fundamental justice which not particularly fundamental or even particularly legal. Moreover, the Court\u00a0unjustifiably relaxed the requirement that a section 7 claimant be \u201cdeprived\u201d of the rights the provision protects, and accepted findings of deprivation, or infringement, based on \u201cthe indirect effects of the law [and] on contentious social science evidence.\u201d<\/p>\n

Mr. Honickman concedes that \u201c[r]eturning now to the original meaning [of section 7] would be impracticable, as it would mean erasing more than thirty years of Charter jurisprudence.\u201d He suggests, however, that section 7 be applied only in the context of the administration of justice \u2015 if not to procedural matters, then at least when the impugned rules create an offence. Moreover, \u201cthe state action must amount to a real deprivation, which is a higher hurdle to overcome than mere infringement,\u201d and the deprivation must be readily apparent by looking at the law\u2019s \u201cpurpose and its immediate legal effects,\u201d without recourse to social science evidence. Finally, principles of fundamental justice must not be added to without caution; in particular, the prohibitions on overbreadth and gross disproportionality are too vague and insufficiently capable of consistent application to qualify.<\/p>\n

One of Mr. Honickman\u2019s targets is the tendency of Canadian academics and activists to demand that section 7 be used by courts to force governments to provide all manner of goodies. For example, in\u00a0Tanudjaja v. Canada (Attorney General)<\/em>, 2014 ONCA 852<\/a>, the Court of Appeal for Ontario was asked to consider a claim that governments, both provincial and federal, were obliged to implement social programmes to help people access housing. The Court found the claim not to be justiciable, and refused \u2015 rightly, as I have argued<\/a>. To that extent, I agree with Mr. Honickman: section 7 is, and ought to remain, 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.<\/p>\n

Beyond that, however, I do not share Mr. Honickman\u2019s views.\u00a0I do not think, for instance that the issue of the original meaning of section 7 is as clear as he suggests. In our paper on whether the Supreme Court has actually rejected originalism <\/a>as a method of constitutional interpretation in Canadian law, Benjamin Oliphant and I\u00a0argue \u201cthat\u00a0Justice Lamer\u2019s reasoning in Motor Vehicle Reference [was]\u00a0quite similar to the type of analysis that\u00a0many (\u2018new\u2019) originalists would support,\u201d (22) given its close attention to the text and context of section 7. In particular, while Mr. Honickman thinks that Justice Lamer (as he then was) was wrong to ignore the meaning which courts had attributed to\u00a0the phrase \u201cprinciples of fundamental justice\u201d in the Canadian Bill of Rights, that phrase was, as Justice Lamer noted, used in an explicitly procedural context in the Bill, rather than as a qualifier of a general guarantee of rights to life, liberty, and security of the person.<\/p>\n

Nor am I persuaded that there is\u00a0a very significant difference between \u201cdeprivation\u201d and \u201cinfringement\u201d of section 7 rights. A day\u2019s imprisonment would, everyone would agree, constitute a \u201cdeprivation\u201d of liberty, but is it really a worse imposition than years without the ability to take elementary precautions imposed by the Criminal Code\u2019s prostitution-related offenses invalidated in\u00a0Canada (Attorney General) v. Bedford<\/em>, 2013 SCC 72, [2013] 3 S.C.R. 1101<\/a>, as Mr. Honickman suggests? I don\u2019t think so. What is, and what is not, a \u201cdeprivation\u201d is arguably a matter of degree \u2015 the term used by the framers of the Charter is vague. I agree that it should be taken to refer to somewhat serious\u00a0interferences, but I\u2019m not sure that the Supreme Court has ever done otherwise.<\/p>\n

Nor do I think that\u00a0we should be distinguishing between \u201cdirect\u201d and \u201cindirect\u201d effects of laws whose constitutionality is called into question. Admittedly, as I wrote in my first comment on Bedford<\/em><\/a>,<\/p>\n

I think that the Supreme Court conceded too much when it accepted a low, and arguably meaningless, causation standard to find that the impugned provisions caused harm to sex workers. The violence and exploitation which prostitutes suffer are not just \u201csufficiently connected\u201d \u2015 whatever that means \u2015 to the law. They are its entirely foreseeable consequences.<\/p>\n

But while I believe that the Court ought to revise its formulation of the causation standard, I do not think that a notion of \u201cdirectness\u201d is very helpful. To repeat, the harms caused by\u00a0the prostitution provisions that gave rise to the constitutional complaint in Bedford<\/em> were arguably indirect, but real and foreseeable all the same. And while I have, ever since Bedford<\/em> came out<\/a>, struggled with some very significant problems that can arise when courts rely on, and indeed expect to be presented with, extensive social science evidence in constitutional cases, I do not think that courts should forswear the use of such evidence, because failure to understand the world in which their decisions apply can cause these decisions to be very badly mistaken.<\/p>\n

Finally, I am not persuaded by Mr. Honickman\u2019s criticism of some of the principles of fundamental justice identified by the Supreme Court. The prohibition on\u00a0gross disproportionality is at least an\u00a0arguable case \u2015 it certainly involves a measure of subjectivity in its application. But that of overbreadth is a time-honoured legal principle. It is, for instance, a staple of the First Amendment jurisprudence in the United States. Of course, Mr. Honickman is right that identifying a law\u2019s purpose is a somewhat subjective exercise, and that it can potentially be manipulated by judges acting in bad faith, or simply indulging in results-oriented reasoning. But the exercise is a fairly routine one, being at the heart of the application of section 1 of the Charter<\/em>, and indeed of ordinary statutory interpretation. That it can be done badly does not mean it cannot be done well or\u00a0should not be done it all. Excessive judicial enthusiasm at identifying principles of fundamental justice is a potential problem for the interpretation of section 7 \u2015 I criticized<\/a>, for instance, the B.C. Court of Appeal for having pronounced the independence of the bar such a principle<\/a>, with far-reaching and in my view disturbing implications, though fortunately the Supreme Court did not follow<\/a> its reasoning. Still, the same could be said of just about any constitutional right. I don\u2019t think that that\u2019s a reason to always construe such rights narrowly.<\/p>\n

In short, I am mostly not persuaded by Mr. Honickman\u2019s criticisms of the current section 7 jurisprudence, interesting though they are. While I \u00a0share many\u00a0of his concerns about where that jurisprudence may be headed in the future, I do not think that the way to address them, or to prevent them from becoming reality, is necessarily to reject the current approach, and to narrow down the scope of arguably the most fundamental of all Charter<\/em> rights. Whatever section 7\u2019s sins, they are not mortal ones.<\/p>\n","protected":false},"excerpt":{"rendered":"

This is the first of two articles\u00a0Mr. Sirota has written in response to Asher Honickman’s essay entitled “The Case for a Constrained Approach to Section 7.” The second article\u00a0will be published shortly, following which Mr. Honickman will publish a reply.\u00a0 \u00a0This article\u00a0was originally published at Double Aspect, Mr. Sirota’s award winning blog.   In a …<\/p>\n","protected":false},"author":1256,"featured_media":1849,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[36],"tags":[191,107,205,103,51,242,104,56,105,250],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1843"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/1256"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=1843"}],"version-history":[{"count":4,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1843\/revisions"}],"predecessor-version":[{"id":1847,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1843\/revisions\/1847"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/1849"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=1843"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=1843"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=1843"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}