National Director, Runnymede Society
As somebody whose Christmas spirit animal, on a sanguine day, is the Grinch, I couldn’t co-sign more on Mark and Leonid’s brilliant idea to celebrate the festive season with a fortnight of piling-on to the highest court in the land. So, without further ado, five of the SCC’s decisions that either a) caused serious damage as vertically binding stare decisis, b) completely failed at its putative purpose ― to ‘decide’, or c) were just really oddly dissembling examples of judicial power expansion.
In no particular order:
Schachter brought an application declaring that the Unemployment Insurance Act unconstitutionally discriminated between adoptive and natural parents by denying natural parents the ability to split up paid parental leave as they saw fit between the two parents (i.e., permitting paid maternity but not paternity leave). The court found the discrimination was unconstitutional. No substantive objection here.
The constitutional remedies section is where things go off the rails. To recall: the text of the Charter provides that unconstitutional laws or provisions are “of no force or effect” , whilst sections 91 and 92 of the Constitution Act, 1867 give the federal Parliament and the provincial legislatures the “exclusive” right to legislate. In Schachter, though, Chief Justice Lamer broadly expands his crayon box of judicial superpowers. The erstwhile CJ deems the remedies available to the courts in these circumstances “include striking down the legislation, severance of the offending sections, striking down or severance with a temporary suspension of the declaration of invalidity, reading down, and reading provisions into the legislation.”
Lamer’s approach has been described as “purposive preservation” ― i.e., a judge chooses the constitutional remedy that aligns closest the legislature’s intention, and often in practice puts him or herself in the place of the legislature. But said judge has already deemed that the given legislation is unconstitutional: given the supremacy of the Constitution’s text is not up for debate (per s. 52 of the Consitution Act, 1982), a much less laboured approach would simply relay the task of constitutionally legislating back to its rightful actor in the separation of powers: the legislature, with its cacophony of actors and objectives. Judges are not equipped to canvass these competing demands, and implementing an additional mechanism for judges to divine ‘legislative purpose’ is an unwarranted complication. I tend to agree with Dean Robert Leckey that Canadian constitutional law’s creep in remedial discretion, initiated by Schachter, “increases the reach of judicial decision-making and enables judges to shape new law more boldly.”
The infamous ‘sleeping spouse’ case is worth revisiting in the post-#MeToo era. In R v. J.A., the Court declared that all sexual contact in the absence of an active, operating mind constitutes sexual assault. Consequently, the act of kissing or touching one’s sleeping (i.e., unconscious) spouse or partner is, in the eyes of the law, sexual assault.
The case concerned a woman and her common-law spouse. The woman agreed in advance that her partner would make her unconscious and perform certain sexual acts upon her. He did as they planned. Subsequently, she filed a complaint of sexual assault against J.A. in the midst of a child custody dispute, but changed her mind and recanted her complaint before the trial. Nevertheless, since the Crown only exceptionally withdraws charges upon recantation of a complainant, the case went all the way to the Supreme Court -with a majority of the Court upholding J.A.’s conviction for sexual assault.
The most alarming implication of the decision is addressed in the dissenting opinion written by the much missed Fish J. If all touching in the absence of an active and operating mind is legally sexual assault, it is impossible not to conclude that the act of rolling over in bed and kissing, caressing, groping, or otherwise touching one’s sleeping spouse or cohabiting partner, even if specifically consented to in advance, amounts to the crime of sexual assault.
Criminalizing such conduct was certainly not anyone’s intention. But if the legal definition of sexual assault is explicitly held to include any acts of sexual touching performed upon an unconscious person, then banal touches and ordinary gestures must be included. The majority declined to exclude such touches from the ambit of sexual assault, noting that “even mild non-consensual touching of a sexual nature can have profound implications for the complainant.”
There’s a deeper philosophical point to be made. Both the majority and the dissenting judges in J.A. started from an identical premise: Autonomy is a value worth protecting in Canadian society and law, and the sexual assault provisions of the Criminal Code are aimed particularly at protecting women from abuse by others. They agree that “no means no.” The majority decision, however, goes farther, pushing the boundaries of private relations between consenting couples to the borders of criminally culpable conduct. A “yes” is only good for as long as its speaker stays awake. After that, it’s sexual assault to touch them. The heavy-handed paternalism on display from the majority was surely portentous.
A case that rankles both my libertarian and feminist hearts. Butler owned a store in Winnipeg that sold pornographic videotapes, magazines, and other sexually explicit materials. He was criminally charged with multiple counts of selling and possessing obscene material. The Court was called upon to decide whether the Criminal Code‘s obscenity provisions unconstitutionally violated the s. 2(b) right to free expression.
The Court enumerated a “community standards” test for criminal obscenity in determining when “exploitation of sex’ is ‘undue”. It posited that ‘harm’ is properly barred under a “community standard of tolerance” test, which asks “not what Canadians would themselves tolerate being exposed to, but what they would tolerate others being exposed to.” This test was intended to replace and modernize an earlier test for obscenity in the English case Hicklin, which queried whether the impugned material would tend to “deprave and corrupt” those whose “minds were open to such immoral influences.”
The language certainly sounds more enlightened. But upon deconstruction, it’s unclear if anything other than judge-imposed morality is occurring here. Who, in the “community standard of tolerance” test, is “harmed”? Who is the “community”? And ― most significantly ― who speaks for them? Autonomy versus community and harm versus morality are all strewn together in a concealed judicial power grab. The concept of harm employed by indecency law is much more amorphous than that posed by alcoholic parents, firearm wielders, or drug traffickers. Indeed, it is impossible to objectively quantify.
What we are left with in Butler, then, is Supreme Court of Canada performing a canny ventriloquist act where it conceals its own judicial power and channels the standard of tolerance magically from the ‘national community’ of offended Canadians and the degree of ‘harm’ we will tolerate. Spare us!
One of the most consequential Charter decisions, and I truly wonder whether the Court thought much about the implications of its sweeping procedural innovation. They could have waited and gotten to this outcome eventually on a trial record that would have caused far less systemic damage, as far as Charter litigation in this country goes. The substantive facts of the case are famous, of course: the respondents B, L and S were prostitutes and challenged the Criminal Code’s provisions which forbid them from keeping a bawdy‑house; s. 212(1) (j) living on the avails of prostitution (pimping); and, s. 213(1) (c) communicating in public for the purposes of prostitution.
I do have some substantive concerns about the ruling, and about bringing regulation of sex work into the ever-expanding purview of the administrative state’s responsibility. The real mischief here though, of course, is the conflation of ‘social and legislative facts’ into the standard of review which ‘adjudicative facts’ attract, that of ‘palpable and overriding error.’ There are, of course, time- and logic- tested reasons why we defer heavily to a trial judge’s findings on adjudicative facts like how fast a car was driving when it collided with another, how credible a witness was, or how flimsy the workmanship on a wheelchair was.
“Social and legislative facts”, by contrast, are so different that it’s misleading to even call them “facts”. They involve global observations about entire populations premised on extensive research. Normally, and as was the case in Bedford, a trial judge arrives at her fact-finding conclusion following the testimony of a qualified expert. But experts disagree with one another, particularly on loaded questions such as whether banning solicitation protects women from the harms of prostitution, or exposes prostitutes to danger by forcing them to meet clients in private. A trial is a mere snapshot in time, a trial judge is a single actor with her own biases, ideological preferences and values. A trial is far from a failsafe venue for deciding sweeping social controversies. What were they thinking? (And note that in Comeau, they tried to put the cat back in the bag a bit, by declining to defer to a constitutional expert on the correct interpretation of the Constitution Act, 1867‘s free-trade provision. Sigh.)
Well, I did say I was channelling the Grinch, didn’t I? This is, admittedly, a stirring bit of political rhetoric outlining our country’s founding principles of democracy, the rule of law, federalism, and respect for minorities. There’s also some useful guidance here on the reciprocity obligations that flow from Canada’s constitutional federalism. There’s necessary cold water thrown on the sovereignists’ assertion (still recklessly made) that democracy prescribes that a positive referendum result would entitle Quebec to unilaterally dictate the terms of a divorce from Canada: “The democracy principle cannot be invoked to trump the principles of federalism and rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole.”  I know this decision has provided useful guidance to other global secession movements, and was particularly closely studied and respected on both sides of the 2014 Scottish secession debate (would that its words of compromise and mutual respect were better heeded by the Brits in their current Brexit imbroglio)!
Still, this is a legal decision meant to answer a question of pressing national importance, and on that standard it is an utter failure. I enjoyed it when I studied it in Canadian Politics 201 as an undergraduate political science student, and that’s probably the most practical use anyone could make of the decision. After 93 paragraphs on federalism, the rule of law, democracy, respect for minorities and the history of Confederation, we finally get an attempt to answer the question:
The negotiation process precipitated by a decision of a clear majority of the population of Quebec on a clear question to pursue secession would require the reconciliation of various rights and obligations by the representatives of two legitimate majorities, namely, the clear majority of the population of Quebec, and the clear majority of Canada as a whole, whatever that may be. [92; emphasis mine]
There is no guidance on what a “clear majority” constitutes, nor even a mechanism one might look to to anchor such an answer. Fifty plus one? Two-thirds? Two decades on, nobody has a clue, and so this decision stands as a beautiful failure.