{"id":1903,"date":"2016-08-15T21:40:37","date_gmt":"2016-08-15T21:40:37","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=1903"},"modified":"2017-04-24T18:23:25","modified_gmt":"2017-04-24T18:23:25","slug":"sevens-wonders-and-sixty-colours-more-on-the-interpretation-of-section-7","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/sevens-wonders-and-sixty-colours-more-on-the-interpretation-of-section-7\/","title":{"rendered":"Seven’s Wonders and Sixty Colours: More on the Interpretation of Section 7"},"content":{"rendered":"

In my last article, “Reaffirming the Case for Constraint<\/a>“, I replied to Leonid Sirota’s article “How to do Constitutional Adjudication<\/a>,” which was itself a response to my paper, “The Case for a Constrained Approach to Section 7<\/a>.” Mr. Sirota also wrote a piece entitled “Seven’s Sins<\/a>” 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\u00a0entitled “Constraint and Candour<\/a>.” This is getting a bit complicated. So, rather than replying to each article separately,\u00a0I 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\u00a0Charter<\/em>, where it first began. I welcome Mr. Sirota’s reply and offer him the final word on the matter.<\/p>\n

 <\/p>\n

Constraint and\u00a0Restraint<\/strong><\/p>\n

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\u00a0judge 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.<\/p>\n

The words of section 7 of the Charter<\/em> 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. \u00a0A judge exercising judicial restraint would be wary of striking down any<\/em> democratically enacted law. The constrained judge, on the other hand, would freely strike down those laws that offend section 7,\u00a0but only those laws that clearly come within the ambit of section 7<\/em>. Since the vast majority of controversial section 7 cases before the Supreme Court deal with the\u00a0expansion\u00a0<\/em>of that section, judicial restraint and constitutional constraints\u00a0tend to overlap and can easily be confused or conflated. One can certainly be both constrained and restrained, but conceptually speaking, they are distinct.<\/p>\n

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\u00a0am in full agreement with his argument that law is replete with moral principles. The rule of law and democracy are themselves\u00a0value-laden principles, as are the many provisions of the\u00a0Charter.<\/em>\u00a0To the extent that a judge is\u00a0enforcing\u00a0a\u00a0Charter\u00a0<\/em>provision, he or she is admittedly engaged in a “moral or ideological endeavour” as Mr. Sirota says. Yet,\u00a0it is precisely for this reason\u00a0that\u00a0judges must be constrained by the constitutional text. The judge is armed with a most volatile weapon – the power to override laws that offend the\u00a0Charter<\/em>, and thus to impose the Charter<\/em>‘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\u00a0moral values beyond what the people’s representatives have enacted into law. It is to codify morality for which there is no apparent consensus.<\/p>\n

Thus, to\u00a0say 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\u00a0guilty of first degree murder and sentences him to life imprisonment\u00a0 has\u00a0made 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\u00a0of 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\u00a0its laws.<\/p>\n

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\u00a0<\/em>protections. And given that\u00a0Charter\u00a0<\/em>adjudication is a\u00a0prima facie\u00a0<\/em>“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. \u00a0With respect, I do not find Mr. Sirota’s\u00a0concept 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.<\/p>\n

In sum,\u00a0Mr. Sirota and I are more or less on the same page when it comes to the theory of constitutional adjudication.\u00a0\u00a0Our principal disagreement at this point appears to be\u00a0the 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. \u00a0So it goes.<\/p>\n

 <\/p>\n

The Interpretation of Section 7<\/strong><\/p>\n

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\u00a01) the original meaning of section 7, 2) the significance\u00a0of 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.\u00a0In my respectful view, it is his objections that are misguided, firstly because they undermine\u00a0the very\u00a0constraint principle he endorses, and secondly because, without such constraints,\u00a0the courts are far more likely\u00a0to expand\u00a0section 7 into the realm of\u00a0positive government obligations.<\/p>\n

* * *<\/p>\n

Mr. Sirota is correct that Justice Lamer’s decision in\u00a0B.C. Motor Vehicle Reference<\/em> <\/a>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<\/em> 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\u00a0alive to the awesome power this new Charter<\/em> afforded the judiciary and sought to take great care to ensure that its decisions comported with the Charter<\/em>‘s text, purpose and philosophical roots. To use the familiar metaphor, the\u00a0living tree was not permitted to grow beyond its “natural limits.”<\/p>\n

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\u00a0the 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\u00a0Charter\u00a0<\/em>was essentially \u00a0an amalgam of ss.\u00a01(a) and 2(e) of the\u00a0Canadian Bill of Rights,\u00a0<\/em>neither of which had ever been interpreted to protect a\u00a0substantive right. \u00a0By 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.<\/p>\n

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\u00a0Canadian Bill of Rights<\/em>, was not a familiar\u00a0term of art. \u00a0In sum, while the original meaning of principles of fundamental justice is admittedly\u00a0somewhat ambiguous, there is no evidence \u00a0that it ever meant anything\u00a0except\u00a0<\/em>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.<\/p>\n

In “The Case for a Constrained Approach to Section 7,” I emphasize that it would be impractical to erase three decades of\u00a0Charter\u00a0<\/em>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\u00a0language of the provision. In my paper, I offer three important textual constraints that courts have, at times, ignored or marginalized: first,\u00a0that 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.<\/p>\n

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).<\/p>\n

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”<\/a>\u00a0to mean\u00a0“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,\u00a0the definition of “infringe”\u00a0<\/a>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\u00a0a day’s imprisonment is less onerous than “years without the ability to take elementary precautions imposed by the Criminal Code\u2019s 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\u00a0Charter\u00a0<\/em>is not an instrument for weighing and measuring human hardships. A\u00a0Charter\u00a0<\/em>protection speaks to the\u00a0nature<\/em>\u00a0\u00a0<\/em>of the state action, not the\u00a0duration\u00a0<\/em>of hardship (though the duration of the state action is certainly relevant once deprivation has been established). There are many laws that are unquestionably\u00a0constitutional, but that, over time, might prove to be more onerous than a single day in prison. \u00a0As an obvious example, I suspect\u00a0that many\u00a0people would be prepared to spend one day in prison in exchange for never again having to pay\u00a0taxes. \u00a0 The cumulative effect of paying taxes over decades\u00a0could be far more burdensome\u00a0than a single day in prison; but\u00a0is trite\u00a0that 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).\u00a0<\/span><\/p>\n

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\u00a0the “direct effects” of the law. My issue with “indirect effects” is not with the causal relationship\u00a0<\/span>per se <\/em>(though certainly rights deprivations must be reasonably foreseeable), but with the necessity of relying upon social science evidence to establish a rights breach.\u00a0\u00a0 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\u00a0where the issues are typically narrow and findings of fact often relate\u00a0only to a single individual. Two eminently qualified physicians, for example, will often disagree as to\u00a0whether 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\u00a0the party who has hired him or her. \u00a0In 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\u00a0– records of treating physicians, employment documentation, and the testimony of the plaintiff’s\u00a0closest family and friends. By contrast, there is no way for a trier of fact to verify the opinion of a\u00a0social scientist that “street-based venues hold the greatest risk to safety” for prostitutes (see\u00a0<\/span>Bedford v. Canada,<\/em> 2010 ONSC 4264 (CanLII)\u00a0para. 316<\/a>.) This opinion is not capable of being tested or weighed\u00a0against non-contentious adjudicative facts, nor can the trier of fact fall back on common sense and good judgment. The opinion\u00a0can only be confirmed or contradicted by other opinion evidence, \u00a0almost 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.\u00a0The inevitable result is a costly battle of the experts,\u00a0leaving the court in a position to select\u00a0whichever unreliable opinion it prefers.<\/span><\/p>\n

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,\u00a0then it should be returned to the legislative branch, which is better equipped\u00a0 institutionally to handle the matter.<\/p>\n

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\u00a0the underlying purpose of the law, and therefore is not required to evaluate whether the law has overshot its purpose.\u00a0 The Canadian principle of overbreadth has been criticized \u00a0by numerous scholars, including Professor Hogg<\/a>, who correctly\u00a0notes that it raises “a host of practical and theoretical difficulties.”<\/p>\n

Mr. Sirota is opposed to enshrining positive government obligations in section 7. \u00a0Yet, 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\u00a0that 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\u00a0– just one more\u00a0constraint liable to fall by the wayside in service of the “living tree.” If the Supreme Court is prepared to\u00a0create new principles of fundamental justice, read down the deprivation requirement,\u00a0and\u00a0even bring section 7 out of the adjudicative context on occasion, then\u00a0what will prevent it from\u00a0muddying, or even eliminating, the shield\/sword distinction? If these basic textual constraints are not enforced,\u00a0then\u00a0it can only be a matter of time before the\u00a0“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\u00a0Gosselin\u00a0<\/em>acknowledged as much when they refused to forswear for all time the protection of\u00a0positive\u00a0obligations, recognizing that they may eventually be possible under an expansive living-tree interpretation.<\/p>\n

* * *
\n<\/strong><\/p>\n

To summarize,\u00a0while I have some real concerns with section 7’s\u00a0sins, my main\u00a0issue is with the “wonders” it may yet accomplish.\u00a0\u00a0Lord 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, <\/em>he\u00a0warned 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\u00a0went on to state the following:<\/span><\/span><\/p>\n

\n

To borrow an analogy; there may be a range of <\/a><\/a>sixty colours,<\/span> 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.<\/em><\/span> [Emphasis Added]\n<\/span><\/span><\/p>\n<\/blockquote>\n

It is this very phenomenon that we are witnessing\u00a0in the context of Charter <\/em>adjudication generally and section 7 in particular. Carter <\/em>and Bedford <\/em>were not much\u00a0different from other section 7 cases decided post-2010 such as Canada v. PHS Community Services Society<\/em><\/a>, 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\u00a0bears no likeness to the original text.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

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 …<\/p>\n","protected":false},"author":2,"featured_media":1930,"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":[35],"tags":[107,255,244,263,89,234,205,103,56,105],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1903"}],"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\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=1903"}],"version-history":[{"count":10,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1903\/revisions"}],"predecessor-version":[{"id":1964,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1903\/revisions\/1964"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/1930"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=1903"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=1903"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=1903"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}