I argued last week that the Supreme Court should find British Columbia’s “hearing fees,” which litigants must pay to bring a case in front of a judge, unconstitutional as a violation of the principle of the Rule of Law. But what about the Supreme Court’s decision in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49,  2 S.C.R. 473, asks Duncan J. MacAuliffe on Twitter. It was the basis for my saying that “the Supreme Court has understood [the Rule of Law] very narrowly.” But doesn’t it stand for a still more far-reaching proposition?
In this (rather delayed) post, I would like to explain why I think that Imperial Tobacco does not compel the decision the principle of the Rule of Law cannot invalidate B.C.’s hearing fees.
The issue in Imperial Tobacco was the constitutionality of a B.C. statute which allowed the provincial government to sue tobacco manufacturers to recover the money the province spent on healthcare for people suffering from tobacco-related illnesses. The statute was clearly retroactive ― it was not a tort, prior its enactment, to cause the government economic damage by selling tobacco, and this retroactivity was one of the grounds on which it was challenged, the argument being that it violated the principle of the Rule of Law.
The Supreme Court rejected this claim, holding that “none of the principles that the rule of law embraces speak directly to the terms of legislation” (par. 59). Indeed, it said,
the government action constrained by the rule of law as understood [by the Court’s jurisprudence] … is, by definition, usually that of the executive and judicial branches. Actions of the legislative branch are constrained too, but only in the sense that they must comply with legislated requirements as to manner and form (i.e., the procedures by which legislation is to be enacted, amended and repealed) (par. 60).
The Court rejected more substantive readings of the Rule of Law, encompassing requirements of prospectivity, generality, and fair civil trials. The requirements, it pointed out, “are simply broader versions of rights contained in the [Canadian Charter of Rights and Freedoms]” (par. 65), and it would be illegitimate for courts to rely on the unwritten principle of the Rule of Law as a vehicle for importing them into the constitution. Furthermore,
several constitutional principles other than the rule of law that have been recognized by this Court — most notably democracy and constitutionalism — very strongly favour upholding the validity of legislation that conforms to the express terms of the Constitution (and to the requirements, such as judicial independence, that flow by necessary implication from those terms). Put differently, the appellants’ arguments fail to recognize that in a constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box (par. 66).
This is strong (and, as I have suggested here, unfortunate) stuff. Still, I think that Imperial Tobacco can fairly easily be distinguished from the hearing fees’ case, and should be so distinguished, because two important elements that led the Supreme Court to decide Imperial Tobacco the way it did are not present in the case of the hearing fees.
One is the “expanded-version-of-Charter-rights” claim. In my view, there isn’t really anything in the Charter that protects a limited version of the claim at issue. The Rule of Law problem with hearing fees, I have argued, is that they are an indirect and stealthy device for preventing people from asserting their constitutional, statutory, and common law rights which ostensibly still exist as a matter of law. The Charter does not speak to this issue, and thus the situation is not the same as with retroactivity and trial unfairness, which it explicitly prohibits in criminal cases, but says nothing about ― and thus tolerates ― in civil matters.
The other distinction between Imperial Tobacco and the hearings fees’ case is that in the latter, the Supreme Court’s precedents, although are probably not, by themselves, sufficient to compel the conclusion that they are unconstitutional, at least point in the direction of this outcome. These precedents, notably Amax Potash Ltd. v. The Government of Saskatchewan,  2 S.C.R. 576 and Air Canada v. B.C. (A.G.),  2 S.C.R. 539, hold that a province cannot deny a person, whether through legislation or by an exercise of executive discretion, an opportunity to challenge the constitutionality of legislation by which it deprived him of some legal rights. In other words, they mean that no one can be stripped of his or her constitutional rights by being prevented from asserting them in court.
Now there is a step to be made from these cases to that of the hearing fees, because what is at issue there is not just constitutional rights, but all legal rights, including some which a province can modify by legislating. But the case of Wells v. Newfoundland,  3 S.C.R. 199, stands for the proposition that even non-constitutional rights have to be extinguished by clear statutory language, not by implication or stealth.
Imperial Tobacco does not discuss these cases. It certainly stands for the proposition that a province (or Parliament) can retroactively modify legal rights. But the statute at issue there did so explicitly, rather than by barring the holders of these rights access to the courts while purporting not to touch the rights in question, so the Supreme Court did not there decide whether that was permissible. And that is the issue it has to face in the hearing fees’ case.
In approaching that issue, the Court should certainly take its own advice in Imperial Tobacco and reflect on the importance of the principles of constitutionalism and democracy. Constitutionalism, for instance, means that the province cannot prevent litigants from asserting constitutional claims (the very issue decided in Amax Potash and Air Canada), which the hearing fees will do in some cases, or for that matter from asserting their claims under federal law, which they will do in others. And democracy should mean that a regulation enacted by the provincial executive should not deny litigants rights conferred or not interfered with by democratically enacted provincial statutes, which the hearing fees will do in cases arising under provincial law.
As for the Court’s broader comments about the Rule of Law not constraining legislatures and denigrating “amorphous constitutional principles,” I think they are flatly contradicted by its own jurisprudence. Legislatures, the Court itself has recognized, are bound to maintain a legal framework. Principles can have strong legal effects, none more so than that of judicial independence (which, incidentally, happens to be a much beefed-up version of s. 99(1) of the Constitution Act, 1867). These unfortunate comments are really so much smoke ― toxic, but almost weightless, and easily blown away.