Day Three: Asher Honickman

Partner at Matthews Abogado LLP in Toronto and founder of Advocates for the Rule of Law, a legal think tank

The Double Aspect bloggers, Leonid Sirota and Mark Mancini, have kindly asked me to provide my list of the five worst Supreme Court of Canada decisions in the modern era.

I am presenting my list in chronological order, from the earliest decision to the most recent, but the chronology also happens to correspond with the decision’s level of egregiousness (in my humble opinion). And the top three all come from this decade, so take that for what it’s worth. I have consciously limited Charter cases and ignored admin law cases, as I suspect they will be the focus for many others in this series (especially Doré) . Some of the cases below may not make my list were I to do this again; but, to quote Arnold Schwarzenegger in True Lies, “they were all bad”.

Re B.C. Motor Vehicle Act, [1985] 2 SCR 486

I confess I thought long and hard about whether to include this decision. As I have written previously, Re B.C. Motor Vehicle Act’s treatment of s.7 of the Charter is tame compared to modern incarnations such as Bedford and Carter. But the fact remains: there would be no Bedford, Carter or the potential for a “positive rights” interpretation of s.7 foreshadowed in Gosselin, were it not for this decision.

The record is clear that the framers of the Charter consciously chose the phrase “principles of fundamental justice” for s.7 rather than the American phrase “due process of law” so that the section would be limited to procedural guarantees. And while it is true that the framers could have been even more explicit and gone with “natural justice”, there was no basis to view the selection of “fundamental justice” as an invitation for a broad substantive rights interpretation. The term “fundamental justice” had been lifted directly from the Canadian Bill of Rights and had only ever been interpreted as providing procedural protections. The framers thought it meant the same thing as “natural justice” and so did a clear majority of judges in superior and intermediate appeal courts in the years between 1982 and 1985.

Despite this originally understood meaning, the Supreme Court in BC Motor Vehicles interpreted the “principles of fundamental justice” to incorporate substantive protections.  The Court eschewed the historical evidence, appealing instead to the “living tree” metaphor from Edwards v Canada, seemingly unconcerned that the Charter had been enacted just three years earlier (and that Edwards did not state that the meaning of constitutional text could change over time).  Thus began the transformation of the Charter into a continually-morphing social policy document, and, in the process, the reshaping of the Court into the final arbiter of society’s contested values.

Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 SCR 3 

Canadian Western Bank is a bit of an outlier on this list, because I actually happen to think the Court was correct in upholding the law. My problem with this case is simple: it utterly confused, misstated, and ultimately marginalized the doctrine of interjurisdictional immunity.

As I explain in my article “Watertight Compartments: Getting Back to the Constitutional Division of Powers”, the so-called doctrine of interjurisdictional immunity is a misnomer. It is, in fact, merely a function of the basic pith and substance doctrine. It arises in the unique context of provincial laws that are valid under the property and civil rights power, but which, on their face, would also apply to federally regulated undertakings in the province.  The Supreme Court dealt with this phenomenon for over half a century by “reading down” the law so that it no longer “came within” federal jurisdiction.

In Canadian Western Bank, the majority appeared to misunderstand this aspect of the pith and substance doctrine, adopting instead Chief Justice Dickson’s incorrect statement in OPSEU v. Ontario (Attorney General) that the doctrine of interjurisdictional immunity was the “undertow against the strong pull of pith and substance”. This was, and remains, ahistorical nonsense. The upshot is that the doctrine is now one of “limited application”,  which has furthered the trend toward a “co-operative federalism” based on overlapping powers. Whereas it traditionally arose when a provincial law affected an integral aspect of a federal undertaking (consistent with the wording of ss.91 and 92), the doctrine will now only be implicated where the provincial law “impairs” the “core” of a federal undertaking. This is impossible to apply in practice with any consistency or objectivity, and, more importantly, it is not what the Constitution says.

Reference re Supreme Court Act, ss 5 and 6, [2014] 1 SCR 433, 2014 SCC 21

The “Nadon decision” is unquestionably one of the Court’s worst. The issue in this case was whether Marc Nadon, a justice of the Federal Court of Appeal from Quebec, could be appointed to the Supreme Court. The Court grounded its decision in the original meaning of sections 5 and 6 of the Supreme Court Act. So far, so good. But the Court interpreted s.6 in an overly strict and decontextualized manner, and then, paradoxically, proceeded to affirm a statutory purpose that had no basis whatsoever in the text.

Between these two extremes lay the reasonable textualist interpretation that the term “from among the advocates” in s.6 applied to both current and former Quebec lawyers. The reason was simple. Section 6 only made sense if it was interpreted together with s.5, which expressly stated that current and former advocates could be appointed. To interpret s.6 in isolation would mean that a lawyer who had been called to the Quebec Bar just one day earlier could be elevated to the Supreme Court.

The Court spoke at length about the supposed purpose underlying s.6 – to safeguard Quebec’s unique social values – but this purpose was found nowhere in the statute itself, and, in any event, the Court offered no reasonable explanation for why the appointment of Marc Nadon would frustrate this purpose.

Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31

The Supreme Court has often expanded Charter rights under the living tree doctrine, but Trial Lawyers Association of British Columbia is perhaps the first time the Court fashioned a new right out of whole cloth ― a constitutional right to access to justice.

There is little I can say about this decision that I have not already said in the case comment I published on ARL at the time. Section 96 of the Constitution Act, 1867 must be read broadly and contextually, but the section is fundamentally about the superior courts as an institution; it does not guarantee an individual right.

It is odd the Court chose this hill to fight on. There was no evidence that BC courts had become generally inaccessible, only that a hearing fee scheme was too onerous for one particular individual. The fee was not excessive and was recoverable as a disbursement, so it is not evident that the rule was unjust even as a matter of policy. What is clear is that the Constitution had nothing whatsoever to say about it.

Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245

I cannot say with certainty that Saskatchewan Federation of Labour is the absolute worst decision in modern Supreme Court history, but it is certainly up there. The decision represents the coup de grâce to the original meaning of freedom of association in the Charter.

This “fundamental freedom” was historically understood as a “negative” guarantee to do collectively what one is permitted to do individually. Beginning with the decision in Dunmore, however, and continuing with BC Health Services and Fraser, the Supreme Court began chipping away at this historical understanding and endowing the associations themselves with rights.

Saskatchewan Federation of Labour was the reductio ad absurdum for this line of reasoning. If associations have the constitutional right to government facilitation and to collectively bargain, it is not a stretch to accept that they also have a right to strike.

The decision in Saskatchewan Federation of Labour overruled past precedent, ignored the ordinary meaning of the text and left the doctrine in a state of flux. But I suspect it will be remembered most for its author, Justice Abella, casting aside all pretense of judicial humility and granting “benediction” to a novel constitutional right.


Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

2 thoughts on “Day Three: Asher Honickman”

  1. What evidence is there that the original meaning of s.2(d) is as Mr. Honickman says? Given comments made in Parliament at the time of the Charter’s entrenchment, Canada’s extant international law commitments, the traditional link between FoA and labour rights, and the fact that at least some of the Premiers who participated in the drafting of the Charter would have understood s.2(d) to protect labour rights, it seems clear enough to me that the First Labour Trilogy was the aberration.

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