Day Twelve: Leonid Sirota

It’s easy enough to make a list of very bad Supreme Court decisions ― there is no shortage of material. The challenge, rather, is to reduce the list to some fixed number. Anyway, here’s my attempt, influenced in part by a wish to present cases from a variety of areas and to highlight some that have not been mentioned by other participants in this symposium. Here’s what promoting diversity and inclusion can look like!

The Breathalyzer Reference, [1970] SCR 777

As part of an omnibus criminal law reform bill, Parliament imposed breath tests for drivers suspected of being intoxicated, but also provided that police were to furnish a suspect with a sample of his own breath, presumably for independent analysis. Only, when the government proclaimed the impaired driving provisions into force, it left out the breath sample requirement. The issue for the Supreme Court was whether this was a permissible use of the bill’s section allowing the government to proclaim its “provisions” into force at the time of its choosing.

By five votes to four, the Court said that it was. Despite vigorous dissents pointing out that the government effectively re-wrote what Parliament had enacted without having any clear authority to do so, Justices Judson and Hall both insisted that “provisions” could be any parts of the bill. And if, as Justice Hall diplomatically put it, “proclaiming parts only of” the scheme enacted by Parliament “may indicate on the part of the executive a failure to live up to the spirit of what was intended by Parliament”, that wasn’t the courts’ concern. Justice Laskin (as he then was) was even worse, arguing that “we should be very wary of judicializing the exercise of the very broad executive power conferred by Parliament”, and should moreover let the government define the word “provisions” as it pleases.

The Breathalyzer Reference itself is somewhat obscure now. Yet its abdication of the judicial duty to interpret the law and to see to it that Parliament’s will is carried out, antithetical to the separation of powers and the Rule of Law, still infects the Supreme Court’s jurisprudence ― above all in administrative law.

Nova Scotia Board of Censors v McNeil, [1978] 2 SCR 662

McNeil, as it’s usually referred to, is another decision that’s not especially well known, though it’s sometimes cited for its endorsement of a “presumption of constitutionality”. Yet the very fact that a “Board of Censors” was involved should ring alarm bells. This board had been given vast powers consonant with its name, and used them to ban The Last Tango in Paris from being shown in Nova Scotia, without even providing an explanation. The claim was that provincial legislation authorizing film (and theatre) censorship was, to that extent, an invasion of the federal criminal law power, and thus unconstitutional. 

A 5-4 majority, in reasons by Justice Ritchie, rejected this argument. In part, its reasons are based on the idea that regulating movie theatres is no different from regulating any other kinds of business ― say, farms or restaurants ―, which provinces can do under their “property and civil rights” power. But the majority also insists that provinces can regulate morality to reflect local sensitivities. In making this case, the majority relies heavily on R v Quong Wing ― a decision that upheld a sexist and racist segregationist Saskatchewan statute intended to “protect” “white women or girls” from interacting with “Chinamen”, and is a good candidate for the worst and most shameful Supreme Court decision of all time. This reasoning could just as easily have been used to uphold the notorious “Padlock Law” struck down in Switzman v Elbling ― to which the majority conveniently doesn’t refer. 

Incidentally, McNeil was handed down (though it hadn’t been heard) simultaneously  with Dupond v City of Montreal, which features in Professor St-Hilaire’s contribution. January 19, 1978 was not a good day for the Supreme Court of Canada.

Provincial Judges’ Remuneration Reference, [1997] 3 SCR 3

Unlike the in the other cases on my list, the majority opinion in the Provincial Judges’ Remuneration Reference, written by Chief Justice Lamer, is animated by a principle of undoubted constitutional value: the independence of the judiciary. In response to legislation cutting judicial salaries, along with the salaries of other public employees, in a number of provinces, the Court was preoccupied with upholding the reality and perception of judicial independence in Canada. Even so, Chief Justice Lamer’s opinion is perhaps the nec plus ultra of what I have called “constitutionalism from the cave” ― the enforcement of an ideal constitution that we perhaps ought to have, but don’t.

The constitutional text guarantees the independence of only some courts: namely, superior courts and courts of criminal jurisdiction. No matter, said the Chief Justice. He found that the preamble of the Constitution Act, 1867 implemented the principle of judicial independence for all courts (alongside other principles, such as democracy and federalism). One wonders why in 1867 and 1982 people bothered with writing detailed constitutional texts. And then, to give effect to the principle of judicial independence, the Supreme Court required the creation of independent commissions that would propose the terms of judicial remuneration to legislatures. This too, needless to say, with no textual basis.

The question of whether a constitutional text can have implications beyond the letter of its provisions is not an easy one. For what it’s worth, I think the answer is at least sometimes in the affirmative . But these implications cannot be drawn from a preamble while ignoring the text itself. Nor is it plausible that complex institutional arrangements are constitutionally required if the constitution says nothing about them.

Harper v Canada (Attorney-General), 2004 SCC 33, [2004] 1 SCR 827 

The decision to uphold limits on the ability of members of the civil society to spend money to persuade voters during an election campaign, limits so low that even a single one-page advertisement in a national newspaper would have broken them, illustrates many of the pathologies in the Supreme Court’s Charter jurisprudence. There is the conviction that the Court knows which speech is a valuable in a free and democratic society (that of politicians) and which is not (in this instance, everyone else’s). There are mistaken guesses masquerading as common sense (it’s the wealthy whom spending limits silence ― yet we know, in fact, that in Canada it’s “ordinary” people pooling their resources together through unions and NGOs who are prevented from making themselves heard). There is the uncritical deference to a self-interested legislature (“a reasoned apprehension of … harm”, supported by no evidence, is enough to curtail fundamental freedoms).

None of these themes is a constant in the Court’s Charter cases, but each pops up again and again. Harper is arguably unusually bad in uniting them all ― and it does so in the service of upholding a law that could easily be used to ban books, and is now being expanded into a system of increasingly comprehensive political censorship.

Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293

One  might plausibly have filled this “top” five with just administrative law cases from the past decade. Edmonton East is probably not the most consequential of them but, like Harper, it neatly encapsulates a variety of pathologies that afflict its area of the law. The Supreme Court was asked to review a decision of a municipal valuation commission on a legal issue on which the commission had not explained its reasoning at all. The applicable legislation provided for appeals to the courts on questions of law. Nevertheless, the majority opinion by Justice Karakatsanis insisted that the commission was an expert decision-maker and, as such, was entitled to deference from the courts. Of course, in this case, there wasn’t anything for the courts to defer to, so Justice Karakatsanis simply made up reasons that the commission might have offered for its conclusion, and pretended to defer to that. 

In commenting on this case, I said that this was tantamount to Justice Karakatsanis “playing chess with herself, and contriving to have one side deliberately lose to the other”. As for her insistence on deferring to the purportedly expert commission on an issue on which the commission had no real expertise, I thought it was reflective of a “post-truth jurisprudence”. I stand by those comments. The Supreme Court occasionally claims that its approach to administrative law focuses on giving effect to the intentions of the legislatures, but this is simply not so. (Co-blogger Mark Mancini’s contribution, especially its discussion of Canada (Citizenship and Immigration) v Khosa, makes this point well.) The wishes of legislatures that want the courts to police administrative decision-makers are routinely ignored, because the Supreme court trusts the executive more than it trusts itself. It’s a sad state of affairs and, as Mark has observed, there is little hope of improvement.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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