Day Eight: Andrew Bernstein

Partner in Torys LLP litigation group specializing in public law, IP, and appellate practice

I was delighted to be invited [1] to participate in Double Aspect’s Twelve Days of Christmas “Worst Supreme Court of Canada cases 1967-2017,” with a group of knowledgeable scholars, pundits and practitioners.[2] I was even more delighted to be able to submit my entry near the end, as I was in Oaxaca, Mexico when the invitation arrived. However, going near the end has its downsides. Many of my most staunchly disliked cases (Doré anyone?) have already been called out by others. Although there is no strict rule against “concurrences,” I see the point of the blog as being to entertain and educate, not just vent. As a result, with one exception, I have largely resisted the urge to go all Smokey Robinson and “Second that Emotion” at the top of my lungs.[3] I therefore am trying a kind of experiment, which is to create a loose etymology of the different kinds of “bad decisions” we find from the Supreme Court and choosing cases that I see as an example of each type.

1. “The dud with the thud”: Chaoulli v Quebec, 2005 SCC 35, [2005] 1 SCR 791

The Supreme Court has been Canada’s highest Court for over 70 years. But sometimes you read one of its decisions and think “can’t someone appeal this?” because it’s simply wrong and everyone knows it the instant it’s released. Chaoulli v. Quebec was about a doctor and a patient who teamed up to argue that Quebec’s prohibition on the private sale or purchase of health services that are covered by its provincial health insurance plan is contrary to the Canadian Charter of Rights and Freedoms or Quebec’s Charter of Human Rights and Freedoms. A seven-judge panel split three ways: three judges held it was contrary to both Canada’s and Quebec’s Charter, three judges held it was not, and one held it was simply contrary to Quebec’s. So while technically the majority did not rule that the ability to purchase medical treatment on the private market is a s. 7 right, that notion got a serious plurality, and their opinion ultimately prevailed.

This is a bad decision on a number of bases, but like most bad s. 7 decisions, it comes down to the analysis of “principles of fundamental justice.” Unlike some of my co-authors on this blog, I’m not inherently opposed to the idea of substantive principles of fundamental justice, but this case is a good example of how they can go wrong. Essentially, the Court held that it is a principle of fundamental justice that laws not be “arbitrary.” It then (selectively) reviewed the evidence, some of which suggested that allowing patients to purchase private health insurance would help “relieve the burden” on the public system, and concluded that since many other social democracies have dual public and private medical care, it would be arbitrary to deprive Canadians (or at least Quebecers) of the same option.

There is so much wrong with this analysis that it could be its own blog post. However, I only have a fifth of a post to dedicate to it, so I will simply set out the following ideas (1) “arbitrariness” is not always in the eye of the beholder, but it certainly was here; (2) the fact that Canada does things differently than other countries does not make it arbitrary; and (3) judges almost always go wrong when they try to substitute their views of how to make social policy for the views of legislators or administrators. Could the majority here seriously think that no one had ever thought that a private system might “relieve the burden” from the public system and that’s why it did not happen? Or is it possible that the people charged with making health care policy recognized that perhaps pulling supply out of the public system to service private patients would do more harm than alleviating some of the demand?

Fortunately, this decision has gone nowhere, which is why I have categorized it as a “dud with a thud.” It has been apparent from the time it was released that this decision was destined to be a one-off. The judicial system as a whole has many tools in its arsenal (ignoring, distinguishing, declaring that “times have changed” and not following) to ensure that an off-day of four members of the Supreme Court does not turn into a permanent deformation of our constitutional democracy. Although there were numerous prophecies of doom,[4] Chaoulli did not mark the end of The End of the World As We Know It, we feel fine, and if the day comes when we don’t, we can be safe in the knowledge that the Canadian Medicare is still very robust.

2.  The precedent that makes life difficult when times change: R v Edwards, [1996] 1 SCR 128

A disclaimer: I am not a criminal lawyer. A second disclaimer: I am NOT a criminal lawyer. A third disclaimer: I ran this idea by my father-in-law who is a leader of the criminal bar (Martin medal, Law Society Medal, the whole enchilada) and he thinks I am by and large wrong. But the “standing threshold” for s. 8 cases has always troubled me. I have kept this opinion mostly to myself because, as a non-criminal lawyer, no one actually cared what I thought about s. 8. But in the last few years I have started doing some privacy law as part of my civil and public law practice (this will come up again below – I’m not just self-promoting). So suddenly I have some (modest) qualification to talk about s. 8 and so I’m taking it and running with it.

In one of its very first Charter cases, Hunter v. Southam, the Court reasoned that since only unreasonable searches and seizures were unconstitutional, then a party complaining about the search or seizure has to have a reasonable expectation of privacy in the space that was unlawfully searched. This makes sense in some contexts: if you abandon incriminating evidence somewhere that anyone (including the police) could find it, it’s hard to see how any search could be “unreasonable.” However, this is almost never how this rule operates in practice. Rather, the facts of Edwards are much more typical: the accused leaves his drugs in his girlfriend’s apartment. The police search the apartment without a warrant. The accused challenges the search on the basis of s. 8, and the court says “you don’t have a reasonable expectation of privacy in the apartment, so you don’t have standing to bring a s. 8 challenge.” It is clear from the discussion in Edwards that this law is taken almost in its entirety from similar U.S. case law on the fourth amendment, which (as Justice LaForest pointed out in his concurring reasons) appear to be largely the product of Burger and Rehnquist Court backlash against Warren Court precedents.

One of the smartest provisions of the Charter was s. 24(2), which provides remedial flexibility for evidence obtained contrary to its prohibitions. Undoubtedly influenced by the mixed experience of the exclusionary rule in the United States, the drafters of the Charter included this section to set out a specific threshold: evidence obtained in violation of the Charter can be excluded only when its admission would bring the administration of justice into disrepute. In light of this key difference, it would make sense to consider the accused’s expectation of privacy in the weighing of the various factors that dictate whether the evidence will ultimately be admitted rather than a threshold question that asks whether the accused even has access to the Charter right in the first place.

If the subsequent law to Edwards showed that notwithstanding these difficulties, the standing threshold was workable and coherent, I might have been persuaded to omit this case in favour of a few that did not make the cut (Wells v. Newfoundland? The Securities Act Reference? Bueller?[5]). But unfortunately Edwards has led to many difficulties, which have only gotten worse in the era of searches for data on devices rather than drugs or weapons stuffed between sofa pillows. How does one establish an expectation of privacy in communications that are made through several different servers? What happens when A allows the police to search her laptop and finds B’s files? Who has a reasonable expectation of privacy on what device? What about the cloud? The three or four people who saw the 2014 box office flop Sex Tape knows “no one understands the cloud!”[6] and if you have ever had the experience of trying to explain difficult technology to the Supreme Court, you know that they are no exception.

In sum, artificially forcing all these issues into the “reasonable expectation of privacy” analysis distorts the prohibition against unreasonable searches and seizures into a prohibition against invasion of “reasonable” expectations of privacy. This could have all been avoided by simply asking whether a search was unreasonable, and skipping the step that asks “who has standing to raise it?” And while this has made for some robust debates during Friday night dinner at my in-laws’, my matzo ball soup would go down a lot easier without the standing threshold for s. 8.

3.  The bad decision as post-modern art: Reference re: Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 SCR 457

I am a big fan of modern and post-modern art, and am fortunate enough to practice at a firm with a lovely collection. But all of the works are not to everyone’s taste. There is a very prominent painting with three red stripes about which numerous people have remarked “my kid could do that!”[7] There are a series of coloured dots arranged in three rows that I think are beautiful, but some find too splashy. But the piece that gets the most negative attention is a large (about 3M by 2M) painting of a (full) green garbage bag that is prominently displayed near our reception desk. When a smart-ass opposing counsel inevitably asks “why do you have a painting of a garbage bag in your conference room space? Does it reflect the quality of your legal work?” my usual response is “some people just don’t understand modern art!”

Of course, my mock indignation disguises the fact that some modern and post-modern art is extremely difficult to comprehend. While the garbage bag does not necessarily fall into that category, the Reference re: Assisted Human Reproduction Act very well might. It is an incredibly important decision. It is the modern (or perhaps post-modern?) authority on the scope of Parliament’s criminal law power. However, because of the unfortunate nature of the decision (three sets of reasons, numerous different impugned sections, little clear consensus on any issues, difficult to tell what the majority is), applying it is extremely difficult. Its 289 paragraphs almost seem like a Dadaist plot to frustrate and amuse, and to properly understand it, you need a Mondrian-style colour-coded chart.

I’m all for lawyers thinking about art, even when I don’t understand it. I think it challenges us to think beyond our own lawyerly logical syllogisms, and makes us more interesting people. Over the years I have even begun to enjoy the garbage bag. But I think that, when it comes to crucial points of constitutional law, what we need is clear guidance, not post-modernism, even if the chart it generates is surprisingly attractive.

4.  The “Sequel that made the first one worse”: Hill v Scientology, [1995] 2 SCR 1150

Have you ever seen the movie Weekend at Bernie’s? It’s a slapstick comedy involving two guys carrying around the body of their dead employer over the course of a weekend. The running gag is that they put “Bernie” in sunglasses and clothes and prop him up like he is still alive. If you saw this movie, you probably laughed pretty hard and enjoyed yourself. But if you had the misfortune of seeing the sequel (Weekend at Bernie’s II), not only did you probably you hate it, it might have caused you to re-think whether the first one was, in fact, good. Because, in truth, watching two hapless dudes walking around with a body is funny the first time, but the second time its just dumb.

Some cases are like the Weekend at Bernie’s movies. The original seems fun, until you see the sequel and realize that the original was actually a mess. Of course this raises a philosophical question: is it the sequel or the original that belongs on the “worst cases” list? While I ruminated on this subject for a while, I ultimately selected the sequel because not only was it, itself bad, but it ruined a perfectly good one too. As a result, when it comes to the Supreme Court’s decision in certain circumstances to apply Charter values instead of Charter rights, I believe it is the sequel, not the original, that deserves our antipathy.

Charter values is one of the most controversial concepts in Canadian constitutional law. The concept comes from R.W.D.S.U v. Dolphin Delivery, [1986] 2 SCR 573, which, at the time it was released, seemed more-or-less innocuous. At an employer’s request, a judge had entered an injunction against a union engaged in secondary picketing. The injunction itself was challenged as a violation of freedom of expression on the basis of common-law rules, and the Court held that the Charter does not typically apply to private litigation between private parties. While it could certainly be argued that this was not the correct analysis, the fact that what was being challenged was a judicial decision to grant discretionary relief rather than the law that underlies it likely obscured the correct issue. However, the part of this case that “lives in infamy” among constitutional lawyers is Justice McIntyre’s off-the-cuff remark suggesting that whether the Charter applies in this context “is a distinct issue from the question whether the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution. The answer to this question must be in the affirmative” (emphasis added). Neither Justice McIntyre nor any of his colleagues use the phrase “Charter values,” and none of them suggest that the application of “Charter values” would be a suitable substitute for a full-fledged infringement and justification analysis when a common law rule is being impugned.

As a result, it’s hard to criticize Dolphin for its introduction of Charter values into the discourse. Justice McIntyre was entirely right to say that when Canadian governments chose to enact a constitution setting out our most fundamental legal values, the judge-made common law should evolve to be consistent with those values. And Charter values is not always a harmful concept. I would go so far as to say that they can be applied in a way that’s both useful and appropriate, such as in R v Salituro [1991] 3 SCR 654, in which the Court made a modest change to an evidentiary rule that does not on its face infringe any Charter rights but seemed out-of-date and arbitrary.

Unfortunately, about a decade after the Dolphins were delivered, the chickens came home to roost, in the form of “the sequel,” Hill v. Scientology. Hill focused on whether the tort of defamation is consistent with the Charter guarantee of freedom of expression.[8]

The common law of defamation (essentially creating civil liability for uttering words that could harm a reputation) contains many rules that impose significant limits on expression. Once a defendant is proven to have uttered defamatory words (i.e., words that have the tendency to lower the reputation of the plaintiff(s) in his, her or their community), falsity and general damages are presumed. This means that the onus lies on the defendant to prove that defamatory words are actually true. Moreover, defamation is a strict liability tort – whether someone acted in good faith or with due diligence is irrelevant. Together, these rules have a significant chilling effect on speech, since the cost of defending a defamation trial alone can be ruinous, not to mention the possibility for significant damages.

The United States Supreme Court long ago modified the common law rules to make defamation harder to establish, and defences easier to make out. In the Hill case, Scientology argued that the Supreme Court should carefully scrutinize the common law of defamation to ensure that its rules were consistent with s. 2(b). However, the Court did not really even consider the issue. While one could have hoped for an analysis that carefully looks at the various metes and bounds of the tort of defamation, its various defences, and considers whether their effect on expression can be reasonably justified, this is nowhere to be found in the decision. Instead, Cory J. goes to great lengths reject the notion that a private litigant can challenge the common law at all, stating (at para. 95):

The party challenging the common law cannot allege that the common law violates ‘a Charter tight because, quite simply, Charter, rights do not exist in the absence of state action. The most that the private litigant can do is argue that the common law is inconsistent with Charter values. It is very important to draw this distinction between Charter rights and Charter values. Care must be taken not to expand the application of the Charter beyond that established by s. 32(1), °either by creating new causes of action, or by subjecting all court orders to Charter scrutiny.

Justice Cory goes on to say that if the common law is the alleged problem, then only a Charter values, not a “infringement and justification” analysis should be applied (at para. 97):

When the common law is in conflict with Charter  values, how should the competing principles be balanced?  In my view, a traditional s. 1  framework for justification is not appropriate.  It must be remembered that the Charter  “challenge” in a case involving private litigants does not allege the violation of a Charter  right.  It addresses a conflict between principles.  Therefore, the balancing must be more flexible than the traditional s. 1  analysis undertaken in cases involving governmental action cases.  Charter  values, framed in general terms, should be weighed against the principles which underlie the common law.  The Charter  values will then provide the guidelines for any modification to the common law which the court feels is necessary.

It is easy to show why this analysis is wrong-headed. Imagine a piece of legislation that makes the practice of any religion other than Protestantism in public a civil cause of action, permitting anyone offended by others’ practice to sue for civil damages. It should be clear that a defendant to this lawsuit can (and should) argue that the law that creates this cause of action infringes s. 2(a), and therefore should not be enforced. So why should the analysis be different when the law is a common law rather than a statutory rule, and freedom of expression rather than freedom of religion is infringed? And why in particular should a defendant have to rely on the willingness of the court to amend the common law in accordance with Charter values, rather than subject it to the cold hard scrutiny of questions like pressing and substantial purpose, rational connection and minimal impairment that is required in a s. 1 analysis? Justice Cory’s reliance on s. 32(1) is likely the source of the problem: the “state action” here is not the legislative or the executive branches, but rather the rules created and enforced by the judicial branch (of government). And if you don’t think that they are a part of “government action,” try ignoring one of their orders and see what happens.[9]

While the law of defamation has subsequently been modestly updated to insert a defence of “responsible communication” to alleviate some concern about its chilling effects on expression, it still contains some very expression-unfriendly elements, such as the reverse onus to prove truth, or the presumption of damages. Moreover, the recent emergence of common law privacy torts raises similar, and perhaps even more troubling, questions for freedom of expression. How long will it be before a public figure claims that publishing information about his or her extramarital relationships constitutes an “intrusion upon seclusion” or “publication of private facts?” And will the courts actually examine these torts for their adverse effects on expression through the microscope of an Oakes analysis, or are we forever destined to use the much less potent magnifying glass of Charter values when it comes to the common law?

Finally, using Charter values as a substitute for s. 1 analysis has spread well beyond the application of common law rules by common law judges. Most controversially, the Supreme Court in Doré essentially endorsed a type of “Charter values” approach instead of a s. 1 analysis when considering whether administrative orders and decisions are contrary to the Charter. Doré has been covered in several of the previous days’ works as one of the Court’s worst decisions in the modern era. And while I appreciate that they are not at least formally bound by precedent, I would point out that at least the movie studios had the good sense not to make Weekend at Bernie’s III: Bernie’s Back!

5.  The “Case that causes a small but not trivial constitutional crisis”: Reference Re: Supreme Court Act, 2014 SCC 21, [2014] 1 SCR 433

While I generally avoided repeating cases discussed by others, I cannot resist mentioning my least favourite Supreme Court decision of the modern era, the Reference Re: Supreme Court Act. The reason is simple: it is entirely untoward to have the Supreme Court exercise a veto, even a legalistic veto, over its own composition. Rather, the institutional integrity of courts in general, and the Supreme Court in particular, requires that it accept whomever the executive selects for it. And doing so in a way that essentially constitutionalizes itself and its composition makes it particularly unattractive.

Others have pointed to the difficulties with the strained statutory interpretation that the Court relied on to bar a well-respected member of the Federal Court of Appeal (Justice Marc Nadon) from being appointed to the Supreme Court. It makes no sense that someone who was a long-time practitioner in Quebec, and who was qualified to be appointed to the Federal Court because he was a long-standing member of the Barreau du Québec could not qualify as a Quebec judge under the Supreme Court Act because he was neither a “current” member of the Quebec bar or Quebec bench. However, the real problem, in my respectful opinion, is the constitutional analysis. In particular, the Court found that it was not open to Parliament to amend the Supreme Court Act to allow a former member of the Quebec bar to be appointed to the Court. In so doing, the Court essentially constitutionalizes itself, stating “the existence of an impartial and authoritative judicial arbiter is a necessary corollary of the enactment of the supremacy clause …. As such, the Supreme Court of Canada is a foundational premise of the Constitution.”

This analysis raises some important questions, which need to be asked but cannot be answered here:

  • Why does the constitutional need for a judiciary to enforce the constitution require a second-level court of appeal such as the Supreme Court?
  • Is there a constitutional requirement to have statutory appeals?
  • If the existence of a Supreme Court to determine constitutional questions is a constitutional necessity, why does the Court have the right to decline to hear these questions? Isn’t the corollary to the constitutional “right” to a Supreme Court the “right” to have that Court hear all constitutional questions?
  • If the Court is right that Parliament can make small “maintenance” type changes to the Supreme Court Act, why doesn’t that include allowing former lawyers (now Federal Court judges) to be seated? Some extremely well-respected Supreme Court jurists come from the Federal Courts from Ontario (Iacobucci) or the West (Rothstein). Why can’t they come from Quebec?
  • Is the existence of the Supreme Court a matter of constitutional law or constitutional convention? If it is the former, where can we find it in the Constitution Act and why was the Supreme Court Act excluded from the list of statutes that are declared to be part of the Constitution of Canada? If it is the latter, why is the Court suddenly enforcing conventions after saying in the Patriation Reference and the Seccession Reference that conventions are not enforceable?

These questions have no answer because, of course, the constitutionalization of the Supreme Court Act by the Supreme Court cannot be explained by legal logic, constitutional history or text. Rather, the judges appeared to have a collectively negative reaction to the appointment of Justice Nadon to their ranks and distorted the meaning of the constitution to prevent it.

The subsequent public dispute between the Prime Minister and the Chief Justice was largely the PM’s fault. In a constitutional structure with a de facto separation of powers, it is entirely inappropriate for the head of the executive to criticize the judiciary (and, it should be said, vice-versa), and throwing a public fit because a court decision does not go your way is particularly unbecoming. But one can sympathize with the PM’s reaction, because the same separation of powers that should have prevented him from making his misgivings public also specifically allocates the appointment of Supreme Court justices to him, not the Court.

I noticed in editing this last section that it was less light-hearted and devoid of pop culture references. This suggests to me that I still can’t find my sense of humour when it comes to this case. This is unfortunate because a sense of humour is an important quality in a litigator. Perhaps this suggests a 2019 New Year’s Resolution for me: time to for me to get over it! For the rest of you, I wish the best for the new year and hope that your living tree grows strong, but not through the window of your living room.

[1] I sort of invited myself. I mean I dropped a HUGE hint that I’d like to participate and then Double Aspect was kind enough to invite me.

[2] I refuse to say who is who.

[3] I have not resisted the urge to sprinkle this post with a random assortment of pop culture references from the 80s and 90s, however.

[4] Typically more common of the political right than the political left when it comes to Canadian judicial decisions, although this can change over time, as it did in the U.S.

[5] Bueller is not a case. So don’t go looking for it on Canlii.

[6] Perhaps next year we could do the worst 5 Cameron Diaz movies?

[7] They are wrong.

[8] I should say that the one and only “rule” that Double Aspect gave me was that the decisions I choose cannot have been overturned. It is arguable that Hill was, if not overturned, at least severely modified by the Court’s subsequent defamation decision in Grant v. Torstar (2009 SCC 61). However, Grant did not in any way modify Hill’s approach to how to apply the Charter to a common law rule, and in fact essentially applied it. So on the basis of that self-made exception, I am including Hill on my list.

[9] Don’t do that.

Author: Mark Mancini

I am a graduate of the University of New Brunswick Faculty of Law, and a current LL.M. student at the University of Chicago Law School. I clerked at the Federal Court for Justice Ann Marie McDonald. I have interests in administrative law broadly, with specific interests in substantive review of administrative interpretations of law. I am also interested in law and economics, particularly remedies law viewed from an economic perspective. Any views expressed on Double Aspect are mine, and mine alone.

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