A response to Asher Honickman’s take on the section 7 of the Charter
In a very interesting essay written for CBA Alberta’s Law Matters and published at the website of Advocates for the Rule of Law, Asher Honickman discusses the role of the judiciary in constitutional cases, focusing on section 7 of the Canadian Charter of Rights and Freedoms. Mr. Honickman tries to chart a middle course between what he describes as “judicial supremacy” and “legislative supremacy” ― the views that, respectively, “when it comes to interpreting the Charter … more is better” and judges should expand the scope of its provisions accordingly, and that the Charter as a whole was a mistake. Mr. Honickman’s 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. For 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.
Mr. Honickman argues that the Supreme Court misinterpreted section 7 from the beginning of its engagement with it in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, 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 unjustifiably relaxed the requirement that a section 7 claimant be “deprived” of the rights the provision protects, and accepted findings of deprivation, or infringement, based on “the indirect effects of the law [and] on contentious social science evidence.”
Mr. Honickman concedes that “[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.” He suggests, however, that section 7 be applied only in the context of the administration of justice ― if not to procedural matters, then at least when the impugned rules create an offence. Moreover, “the state action must amount to a real deprivation, which is a higher hurdle to overcome than mere infringement,” and the deprivation must be readily apparent by looking at the law’s “purpose and its immediate legal effects,” 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.
One of Mr. Honickman’s 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 Tanudjaja v. Canada (Attorney General), 2014 ONCA 852, 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 ― rightly, as I have argued. 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.
Beyond that, however, I do not share Mr. Honickman’s views. I 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 as a method of constitutional interpretation in Canadian law, Benjamin Oliphant and I argue “that Justice Lamer’s reasoning in Motor Vehicle Reference [was] quite similar to the type of analysis that many (‘new’) originalists would support,” (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 the phrase “principles of fundamental justice” 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.
Nor am I persuaded that there is a very significant difference between “deprivation” and “infringement” of section 7 rights. A day’s imprisonment would, everyone would agree, constitute a “deprivation” of liberty, but is it really a worse imposition than years without the ability to take elementary precautions imposed by the Criminal Code’s prostitution-related offenses invalidated in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, as Mr. Honickman suggests? I don’t think so. What is, and what is not, a “deprivation” is arguably a matter of degree ― the term used by the framers of the Charter is vague. I agree that it should be taken to refer to somewhat serious interferences, but I’m not sure that the Supreme Court has ever done otherwise.
Nor do I think that we should be distinguishing between “direct” and “indirect” effects of laws whose constitutionality is called into question. Admittedly, as I wrote in my first comment on Bedford,
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 “sufficiently connected” ― whatever that means ― to the law. They are its entirely foreseeable consequences.
But while I believe that the Court ought to revise its formulation of the causation standard, I do not think that a notion of “directness” is very helpful. To repeat, the harms caused by the prostitution provisions that gave rise to the constitutional complaint in Bedford were arguably indirect, but real and foreseeable all the same. And while I have, ever since Bedford came out, 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.
Finally, I am not persuaded by Mr. Honickman’s criticism of some of the principles of fundamental justice identified by the Supreme Court. The prohibition on gross disproportionality is at least an arguable case ― 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’s 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, and indeed of ordinary statutory interpretation. That it can be done badly does not mean it cannot be done well or should not be done it all. Excessive judicial enthusiasm at identifying principles of fundamental justice is a potential problem for the interpretation of section 7 ― I criticized, for instance, the B.C. Court of Appeal for having pronounced the independence of the bar such a principle, with far-reaching and in my view disturbing implications, though fortunately the Supreme Court did not follow its reasoning. Still, the same could be said of just about any constitutional right. I don’t think that that’s a reason to always construe such rights narrowly.
In short, I am mostly not persuaded by Mr. Honickman’s criticisms of the current section 7 jurisprudence, interesting though they are. While I share many of 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 rights. Whatever section 7’s sins, they are not mortal ones.
Double Aspect 
This is a big issue for a blog comment, but here goes:
1. I agree that new originalism can pitch the original meaning at a high enough level of abstraction that pretty much anything is OK. But I personally would draw the line at Lamer’s decision in the Motor Vehicle Reference. In the Patriation Reference, the majority said that there was a convention that the constitution could not be amended without the “substantial consent” of the provinces. Trudeau ultimately went along with that, and the November 1981 compromise was born (Charter for notwithstanding clause, etc.) As an interpretative matter, I would think it would follow that whatever the Charter means, it cannot mean more than what the substantial number of provinces consented to. Now I think it is possible to consent to a rule or principle that is applied in a way that you didn’t expect. This occurs in commercial or labour contracts all the time. But it is at least relevant if your negotiating partner assured you that the result was one that could not happen, and all the previous arbitral jurisprudence was that it wouldn’t happen. So, with respect to s. 7, you had Chretien, Tasse and Strayer –for the Trudeau government and therefore speaking against interest when limiting the reach of the Charter — all saying that “principles of fundamental justice” just means procedural rights. You had the Bill of Rights jurisprudence saying it just means procedural rights. And you had the provinces clearly worried that it could imply American-style “substantive due process”. I would think that in the context, the advocates of judicial power would be estopped from saying that the provinces substantially consented to substantive principles of fundamental justice.
2. There are no real limiting principles to the arbitrariness, overbreadth and gross disproportion trilogy of substantive principles. These are really just the Oakes test, which in turn is really just cost-benefit analysis. If you add in that stare decisis doesn’t mean anything, and that “liberty” and “security of the person” are constantly expanding (they already include all criminal law and much of health law), then what really is the difference between the Supreme Court and a super-legislature? Notice that Lamer in the Motor Vehicle Reference was actually quite concerned about this problem, but none of his solutions have held up (s. 7 is no longer limited to the kind of thing found in ss.8-14, “liberty” is no longer limited to not being incarcerated, etc.)
So far, the Court has not gone so far as to find social or property rights in s. 7, but there is no principled reason that a future majority can’t just say, as with Carter and Bedford, “that was then; this is now.” The Canadian public doesn’t seem to worry about the counter-majoritarian dilemma very much. As long as the decisions weren’t wildly unpopular, they would hold up. The problem, as the Brexit referendum reminds us, is that in the long run, governments you cannot easily remove build up resentments against themselves which can only be dealt with by systemic change. Or maybe we will become like the US, where the appointment process becomes ideologically polarized. It is striking that the nomination of SCOTUS justices is *the* issue that unifies each of the parties internally and divides them against each other. No other issue — certainly not free trade, immigration, but not even taxes or spending — comes close. I would say that of all the Charter provisions, it is really only s. 7 (as currently read) that has the potential to unleash this kind of ideological polarization: Chaoulli is a case in point, where you have the Court wandering into the most ideologically-loaded issue in Canadian politics.
I probably agree that it is too late to return to a “procedural fairness” interpretation of s. 7, but it is not too late for the Court to at least recognize how dangerous it has become.
These are great points, but I am not persuaded. With respect to 1., I would question whether it is appropriate to treat the text of the Charter ― which was, after all, “the people’s package” of constitutional reform ― as a contract between governments, such that members of one of these governments can speak authoritatively to its meaning, and that we ought to apply the “contra proferentem” principle to its interpretation. As to 2., I have suggested in the past that there is, after all, a meaningful difference between the principles of fundamental justice and s. 1: https://doubleaspectblog.wordpress.com/2015/03/11/section-0/. I’ll have more to say about the judicial role generally shortly, though I’m not sure that s. 7 is a more likely catalyst for potential revolt against the court than some other provisions. In Québec at least, ss. 2(b), 23, and 2(a) have long appeared the more likely candidates, and I doubt I can guess what might be the case in the future. As for politicization of judicial appointments, it arguably has occurred already ― the Liberals would not have appointed Justice Brown, just as the Conservative appointed no Justice Abella.
P.S. I’ve just noticed that you’d actually commented on the “Section 0” post!
I return the compliment about “great points”, but (not surprisingly in this vale of confirmation bias), I am also not persuaded.
There is a lot of rhetoric bound up in the phrase “people’s package.” It immediately makes a contrast between governments and the people, and puts rights on the side of the people, in contrast to division-of-powers disputes, which are between governments. This rhetoric has a pull on me personally, and it definitely had a pull on the Canadian public of 1981-2 and continues to do so right now. And it was definitely the rhetoric of the Trudeau government at the time. As you know, it is also highly disputable — we could also say there is no “people” prior to some sort of governing structure, that democratic governments are the vehicles of the people, and that rights are either fictions used by lawyers and judges to enact elite preferences or perhaps an individualist acid that undermines solidaristic relations between people. Governance just is making a balance between security, liberty and equality (for example), so any public policy dispute can be dressed up in these terms. There are no right answers to these questions. The real question is who makes the balance, and how easy it is to correct them if you disagree.
I am not endorsing that latter kind of rhetoric either. What I am suggesting is that 1982 was a complex moment with a *compromise* between these two visions. Certainly, the 1981 SCC said that the “substantial consent” of the provinces was important (at least conventionally), so it matters what they substantially consented to. And a focus of concern was on the content of “principles of fundamental justice”, particularly in light of the experience with “due process” in the 5th and 14th Amendments. To some extent, Chretien, Strayer and Tasse shared these concerns, to some extent they were reassuring opponents of the Charter who had them. Either way, I don’t think it was quite right for the SCC to just say it didn’t care, and Justice Lamer’s limiting principles have not survived him.
On 2, there is no doubt that the SCC says there is a difference between the arbitrariness, overbreadth and gross disproportion trilogy in s. 7 and the rational basis, minimal impairment and strict proportionality test under s. 1. As I said in the other comment, in Bedford they do say that use of arbitrary instrumental variables to get at difficult-to-observe underlying issues (the drinking age, for example) is not OK under overbreadth, but might be under minimal impairment. I am not sure this really makes sense because the use of clear rules (which are therefore inherently more arbitrary than standards) is at certainly a basic tenet of a legal system, although it works in tension with discretionary standards.
But from the point-of-view of someone putting in evidence in a constitutional case, I am not sure there is really much difference. The government’s objective will almost always be accepted. The applicant is going to try to persuade the court that there are less intrusive ways to get at that objective and the government is going to try to show that those other ways wouldn’t work. The social science will be ambiguous, which will lead the court to defer when it wants to or to ignore the social science when it doesn’t. The findings of trial judges will be given great weight, except when they aren’t. The Court will complain about the evidentiary record, except when it decides to rely on a law review article or judicial dictum to establish a dubious empirical connection. The Court will either conclude that the government went too far in its effect on the applicant’s legitimate interests or it won’t. I don’t think subtle doctrinal differences will cash out in the results.
I agree of course that we are already down the road towards ideological polarization on the final court, but of course the Americans are a century or so ahead of us, and we are not quite at the point where Supreme Court nominees are the glue holding fragile national coalitions together. Although there are obviously ideological differences between Justices Abella and Rothstein, for example, there is not yet the kind of predictable division where everything depends on the median vote. There is no Canadian equivalent of Justice Kennedy But give it time!