Day Seven: Kerri Froc

Assistant Professor, University of New Brunswick

Gosselin v Quebec (Attorney General), 2002 SCC 84, [2002] 4 SCR 429

A truly god-awful section 15 Charter decision penned by McLachlin CJ (as she then was), commonly regarded as the “high watermark” of formalism under the previous “human dignity” test.  The majority found it “dignity affirming,” for under 30s in Quebec to be forced to participate in workfare or be subjected to drastic deductions in their level of social assistance.  Arguably, the decision relied on stereotypes about poor people in finding it was consonant with equality to incentivize participation through draconian penalties (when in fact there were not enough “workfare” placements for all under 30s in any event).  And this was a case largely about discriminatory stereotypes.  McLachlin CJ also speculated without any evidence about the availability of family resources that would save these young people from starvation (saying that “evidence of actual hardship is wanting”).  Another troubling element is the majority’s refusal to rule on whether section 7 contained “positive rights,” indicating only that, “[o]ne day s. 7 may be interpreted to include positive obligations”.  This reasoning satisfied virtually no one on any side of the issue and since then, the Supreme Court has refused to clarify the matter by denying leave in relevant appellate cases.

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

This case seemed to launch a thousand terrible treatments of legislative history in Charter jurisprudence.  Justice Lamer, for the majority, rejected testimony from two legislative drafters at the Special Joint Committee on the Constitution regarding the meaning of fundamental justice under section 7.  It is not so much the ultimate finding that I find repugnant – namely, that substantive as well as procedural justice can be considered.  In fact, I believe that such a finding is supportable on a principled interpretation of s.7.  Rather, it is that the majority treated evidence of legislative history so cavalierly, so early on in the Charter’s life.   Without much thoughtful analysis, Justice Lamer mused that “framers’ intent” was nearly “impossible of proof” and that consideration of historical materials evincing such intent could lead to “frozen rights” contrary to living tree constitutionalism. Therefore, this evidence ought to be given “minimal weight.”  Purposive interpretation requires courts to interpret the Constitution in light of “the historical origins of the concepts enshrined,” among other things.  This, plus the BC Motor Vehicles Reference has meant, for instance, that judges are entitled to consider Aristotle’s views on equality in interpreting s.15 but not necessarily those of the many women and women’s organizations who influenced its text and the views of politicians who passed it.  The weak and malleable standard of “minimal weight” permitted Lamer J. himself, less than 10 years later to rely on legislative history to deny the existence of a right to funded legal counsel in Charter section 10(b) (in the 1994 Prosper decision).  For all the dire warnings about “frozen rights,” the nearly unfettered discretion of judges in considering historical evidence wrought by the BC Motor Vehicles Reference has not benefitted Charter claimants.

Bliss v Attorney General of Canada, [1979] 1 SCR 183; Lavell v Canada (Attorney General), [1974] SCR 1349

As a feminist it is difficult to pick the Court’s worst rulings on gender.  Is it when the Court cited the guarantees of sex equality in section 15 and equal rights in section 28 in a decision that justified cross-examination based on rape mythology (Osolin)?  Is it when the Court accepted the Newfoundland government was justified in reneging on pay equity agreements for financial reasons merely on its say-so in Hansard (example: “We couldn’t take the chance that our credit rating would drop one more notch”)?

Bliss and Lavell, however, are the OGs of bad gender equality decisions, made under the Canadian Bill of Rights. In a feat of breathtaking abstraction, Justice Ritchie in Bliss deemed discrimination against pregnant women in the provision of employment benefits not to be a distinction based on sex, but between pregnant and non-pregnant people.  He pronounced, “Any inequality between the sexes in this area is not created by legislation but by nature.”  Justice Ritchie in Lavell, with similar formalist sophistry, found essentially that the “marrying out” provisions under the Indian Act that stripped Indigenous women of status for marrying non-status partners, treated all Indigenous women equally badly.  Therefore, it maintained equal administration of the law, and did not discriminate.

While ultimately the SCC distanced itself from the Bliss ruling in another pregnancy discrimination case a decade later (Brooks v Canada Safeway, [1989] 1 SCR 1219), the legacy of both cases is still with us.  The Court has been loathe to recognize that women have been discriminated against as women, rather than, say, as “people who do most of the childcare but can’t deduct the expense” (Symes) or “people whose aren’t allowed to speak in their own right during constitutional negotiations but have to go through men” (NWAC).

R v NS, 2012 SCC 72, [2012] 3 SCR 726

I hate rights “balancing” or “reconciling” cases generally, for the way in which they dissolve the rigor of a Charter rights analysis and introduce value-based determinations about whose rights are most important (all the while papering over the fact by using the objective-sounding language of “balancing”).  Spoiler: when women are involved in Supreme Court balancing cases, they lose.  However, R v NS, seems to have it all for the purposes of raising my ire.  It is another majority decision penned by McLachlin CJ, wherein she set out a framework for determining whether a sexual assault complainant must remove her niqab at trial.   Minimizing the impact of removing the niqab on NS’s freedom of religion (stating, wrongly, that the complainant would be prepared to remove her niqab for a security check at a border crossing)?  Check.  Doubling down on the common law assumption of demeanour evidence’s value, even in the face of an impressive body of social science evidence to the contrary?  Check.   A gender- and intersectionality-free analysis in a case saturated with gender and racial tropes?  Check.  Denying a rights claimant the rigours of the Oakes test in favour of a balancing framework cribbed from publication ban cases?  Check.  Setting out a complex framework that nevertheless likely would result in the same outcome 100% of the time?  Check.

Day Six: Dwight Newman

Professor of Law and Canada Research Chair, University of Saskatchewan

My identification of the five worst Supreme Court of Canada cases stems from cases that both manifest particularly problematic judicial methodology and whose influence has pervaded other cases.  The judgment is not about policy/political result but about legal method and legal consequences.

In chronological order, the five worst cases are:

Canadian Industrial Gas & Oil Ltd (CIGOL) v Government of Saskatchewan, [1978] 2 SCR 545

The CIGOL case is not on the tips of everyone’s tongues, but its failings are nonetheless worth a reminder during this Christmas season—the case connects indirectly to ongoing and current controversies.  The CIGOL case concerned differentiation between a direct tax and an indirect tax for purposes of division of powers analysis.  The majority used informal, intuition-laden analyses to conclude that a Saskatchewan tax on oil producers was an indirect tax that would be passed on to consumers and was thus outside the province’s jurisdiction over direct taxation.  The claim was preposterous given that Saskatchewan oil producers had to take the world oil price—by any sensible economic logic, the tax fell on the producers and was a direct tax.  The case directly affected a subsequent case that had the indirect effect of forcing Saskatchewan to nationalize its potash industry.  These cases led ultimately to the campaign for the addition of section 92A to the Constitution as part of the 1982 package—while it reverses the specific results, the pattern of poor economic logic as part of judicial reasoning continues to rear its head.  CIGOL is a very bad case to have on the books when the Court engages with resource industries and, more generally, economic aspects of life.

Re BC Motor Vehicle Act, [1985] 2 SCR 486

The BC Motor Vehicle Reference is a highly significant case on constitutional interpretation in the Charter era.  In interpreting and broadening s 7 of the Charter, Lamer J (as he then was) went through a lengthy explanation of why evidence of the intended meaning of s 7 was of little weight.  In doing so, he rendered irrelevant the sensible meaning of carefully chosen words that had been used just three years earlier.  The case saw one of the many informal invocations of the living tree metaphor (with no discussion of its origins) that have been so misleading, as Lamer J wrote that “[i]f the newly planted ‘living tree’ which is the Charter is to have the possibility of growth and adjustment over time, care must be taken to ensure that historical materials […] do not stunt its growth” (para 53).  There is a certain breathtaking audacity here concerning the role of the judges who are now to “adjust” a constitutional text over time—the BC Motor Vehicle Reference planted many of the seeds of such concepts.

R v Oakes, [1986] 1 SCR 103

The Oakes test for rights limitation is, of course, one of the most famous tests ever to proceed from the Supreme Court of Canada, and it has had an international impact as well.  But the framework articulated in the original Oakes case has had a messy influence with the courts moving back and forth from its strictures in relatively unpredictable ways.  The Oakes decision itself was decided on the rational connection branch in a manner that would be inconsistent with most subsequent applications of the Oakes test—that fact alone should raise some questions about the fundamental coherence of what is going on here.  The whole application of the Oakes test as an external limit on rights—something not necessarily proceeding from the constitutional text, despite mythologies to the contrary—undergirds a vast body of jurisprudence in which we live constantly in states of rights “infringement” but with those infringements being “justified” in what becomes an unhealthy rights culture.  The sheer pervasiveness of Oakes makes it difficult to challenge, and we must be impressed by efforts like those of LeBel J in Hutterian Brethren and Rowe J in Trinity Western University (2018) (with the latter having other questionable features but being on point in its critiques of contemporary proportionality analysis).  But much more work is necessary to get toward a sounder approach to rights analysis.

R v Van der Peet, [1996] 2 SCR 507

The Van der Peet decision on the test for the Aboriginal rights clause in section 35 of the Constitution Act, 1982 is a tragic example of the Court drawing briefly on some pseudo-philosophical work in trying to determine the bounds for a rights clause without prior precedent in Canadian constitutional traditions.  Instead of engaging with precedents concerning survival of property rights in various contexts within the British Empire, the Court developed its own, culturally-focused test.  In subsequent applications to other s 35 contexts, where the Court has had to make ad hoc adjustments to parts of the Van der Peet test to even make it fit, the test has led to peculiar cultural limits on the scope of property rights and other rights.  The Court faced a challenging undertaking in Van der Peet, and its methodologically suspect approach unfortunately locked section 35 law into some deeply problematic patterns.

Canada (Attorney General) v. Bedford, 2013 SCC 72[2013] 3 SCR 1101 and Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331

Apart from their results, the Bedford-Carter duo of cases saw an explicit move away from the doctrine of stare decisis and even an authorization of trial courts overruling Supreme Court of Canada jurisprudence.  Bedford set out some of the basic law to this effect, albeit in a case technically distinguishable from issues that had been decided by prior judgments.  Carter went on to see the new rules applied as a trial court decision that overturned a prior Supreme Court of Canada judgment was considered laudable.  The ultimate consequences are not all clear yet, but this shift has put some of the basic premises of rule of law at stake.

Day Five: Gerard Kennedy

Visiting Doctoral Researcher, NYU School of Law

When asked to write about what I considered the Supreme Court of Canada’s “worst” decisions of the past several decades, I was somewhat reluctant. One must always tread a fine line between criticizing flawed reasoning and the rule of law that the Court symbolizes. But hey… it’s Christmas and there’s already enough cheer to go around!

There are admittedly different metrics which one could use to fairly rank decisions for being “worst”. Uniting these five is a personal dislike, whether from teaching, scholarship, or practice. This personal relationship, as well as excluding overruled decisions, does lead to emphasizing recent decisions.

Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395

Doré famously held that the traditional Oakes test analyzing reasonable limits on Charter rights does not apply in the administrative law context. Rather, a “robust” reasonableness analysis applies instead.

Double Aspect readers need no introduction to the problems that reasonableness review can pose for the rule of law (e.g., here and here). I have written about this myself elsewhere. This is particularly problematic in the constitutional realm, as justifications that the legislature must provide for infringing a Charter right are greater than those that the executive must provide, despite: a) the legislature being democratically accountable unlike the executive; and b) the legislature giving the executive its power in the first place.

Perhaps more consequentially, Doré enshrined the concept of “Charter values” into Canadian law. These are part of the Canadian constitution only insofar as they are incorporated in the Charter rights. But Doré suggests they can be an independent source of “conflict” with the actual rights of the Charter.

As I and others have noted before, there are also frequent instances of judges ignoring Doré – including Supreme Court judges themselves. That’s sign of a problem.

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

The “Nadon Reference” is most remembered for the spat that occurred between the Prime Minister and Chief Justice after the decision. While Stephen Harper behaved unprofessionally during this episode, the reasoning that voided Marc Nadon’s appointment to the Supreme Court is perhaps its most internally inconsistent.

Taken as a stand-alone sentence, one could read s. 6 of the Supreme Court Act (“At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province”) as excluding Federal Court of Appeal judges who had been members of the Quebec Bar. But a tiny bit of context reveals this interpretation is disingenuous, including (but not limited to):

  • 6’s purpose is to ensure expertise in Quebec civil law – which Quebec Federal Court of Appeal judges manifestly have (there is mandatory Quebec representation on the Federal Court of Appeal for this reason);
  • to read s. 6 as divorced from s. 5 (“Any person may be appointed a judge who is or has been a judge of a superior court […] or a[n] advocate of at least ten years standing”) suggests that a Quebec lawyer could be appointed to the Supreme Court after articling – it was hard to disagree with Justice Moldaver’s witty dissent that the majority’s incorporation of the ten-year requirement but not the past tense possibility from s. 5 into s. 6 being “an exercise in statutory interpretation heretofore unknown”;
  • the reasoning means that Justice Nadon would have been eligible to be appointed to the Supreme Court in 1993, but not 2013; and
  • he would have been eligible had he been appointed to the Quebec Court of Appeal (which the Supreme Court later acknowledged was legal), and then a day later appointed to the Supreme Court. The Supreme Court simply dodged this absurd implication.

CUPE v New Brunswick Liquor Corporation, [1979] 2 SCR 227

Something was awry in 1970s administrative law with judges ignoring obvious statutory language requiring deference. As such, in 1979, the Supreme Court held in CUPE that administrative decisions could only be reviewed if “patently unreasonable”. Had I been a scholar of administrative law in 1979, I may have hailed CUPE as an excellent innovation.

Unfortunately, this cure for admittedly inappropriate judicial actions may be worse than the disease. As Audrey Macklin has recently observed, this “standard of review” language is not found in legislative text or common law tradition. What has spawned is forty years of frustration on the question of standard of review (where in the modern administrative state certain executive decisions should be deemed to fall, something courts have limited expertise in). We could instead have refined our statutory interpretation to determine whether particular statutes require deference to administrators (a straight-up exercise in statutory interpretation for which judges are eminently qualified).

Pezim v British Columbia (Superintendent of Brokers), [1994] 2 SCR 557

While CUPE may have been a crude innovation encouraging respect for legislative intent, Pezim actually perverts legislative intent. In this 1994 decision, the Court, building on earlier case law, concluded that the rationale for deferring to administrators applies even when the legislature gives a right of appeal analogous to the right to appeal a judicial decision.

Administrators may well have expertise in particular areas of law, and their reasons are entitled to “careful consideration.” But this kind of “deference” is akin to the “deference” given to advocates making astute submissions, such as Marie Henein in criminal law, or a lower court judgment synthesizing the law particularly well, such as Justice Paul Perell in class actions. Conflating these two types of deference is wrong in principle and has been confusing in practice.

R v Hape, [2007] 2 SCR 292, 2007 SCC 26

Does the Charter apply to the actions of Canadian actors extraterritorially? Thanks to Hape, no one really knows. The Court managed to be tremendously broad and tremendously narrow at the same time, confusing academics ever since (notably John Currie: see, e.g., here and here). I was left so confused during my LL.M. that I changed specialties for my doctorate!

The majority of the Court held that the Charter did not generally apply to actions of Canadian officials abroad. This is odd given that s. 32 of the Charter says it applies to government action, without geographical limitation. Even stranger was the number of exceptions the Court suggested could apply, including if government officials act contrary to international human rights law: an enormous body of law with significant overlap to the Charter that has led to further litigation (e.g., the Khadr affair).

The Court also spent paragraphs analyzing precedent to come to the holding that customary international law (another enormous body of law) “may” be incorporated into Canadian law through the common law, with this also being an “aid” to the interpretation of legislation. Profound and almost meaningless at the same time.

While much more nuance would be required to adequately explain my views on these cases, they symbolize my least favourite Supreme Court decisions of the past forty years.

Day Four: Michael Plaxton

Professor of Law, University of Saskatchewan

Many thanks to Leonid for inviting me to participate. I have focused on a few cases drawn from the substantive criminal law canon, picking out those which I think raise special concerns about the relationship between the courts and Parliament. Fa-la-la-la-la….

R v Jobidon, [1991] 2 SCR 714

Strictly speaking, the Supreme Court didn’t address any constitutional issues in Jobidon. This was a case concerning the circumstances under which consent to applications of force could be vitiated on public policy grounds, for the purposes of the offence of assault. But Jobidon raises huge questions about the respective roles of the courts and Parliament in determining what is a crime and what isn’t. The majority held that it was open to the courts to decide, on a case-by-case basis, that certain courses of action are so lacking in social value that any apparent consent by the putative victim is legally ineffective. In taking that approach, the majority failed to pay due regard to section 9 of the Criminal Code, which precludes the creation of new common law crimes. Perhaps more importantly, though, the reasoning of the majority runs directly contrary to the separation-of-powers considerations that underpinned Frey v Fedoruk, the landmark ruling that spurred Parliament to create section 9 in the first place. Jobidon has consistently taken a kicking from criminal law commentators since it was decided in 1991, and more recent authorities have rejected the reasoning it rests upon. The Supreme Court will have an opportunity to express its views on the case when it decides Barton in 2019.

R v Butler, [1992] 1 SCR 452 and R v Labaye2005 SCC 80, [2005] 3 SCR 728 

Butler was a deeply problematic decision on a number of levels. In upholding the obscenity provisions of the Criminal Code, the majority effectively re-wrote them, construing section 163(8) in light of values and objectives that bore no resemblance to those of the Parliament that enacted it. To make that palatable, the majority invented the ‘permissible shift in emphasis’ – a murky notion that exists for no other reason than to allow the courts to repurpose legislation for its own preferred policy ends. Along the way, the majority waded into the Hart-Devlin debate, hinting that it might not be open to Parliament to criminalize activities on any basis other than harmfulness, while implicitly adopting a highly elastic conception of ‘harm’. In doing so, the majority neither acknowledged the vast scope of Parliament’s criminal law-making authority, nor articulated ascertainable limits on it.

Ten years later, in Malmo-Levine, the Court rejected the argument that John Stuart Mill’s harm principle is a principle of fundamental justice under section 7 of the Charter, in large part because it fails to articulate a “manageable standard” against which to measure the constitutionality of legislation. Indeed, the majority accepted that, in principle, Parliament could use the criminal law power to target courses of action that are not, strictly speaking, harmful at all, but wrongful on some other basis – citing remarks in Butler to that effect.

This set the stage for Labaye, in which the Court was called upon to interpret “acts of indecency” in section 197(1). Writing for the majority, McLachlin CJ observed that harm was an “essential ingredient of obscenity”, as well as for indecent assault. Even more significantly, she held that it was the role of the Court to refine what it means to cause harm in the first place – to produce a “workable theory of harm” over time, in the “tradition of the common law”. The majority never explained how this could possibly be appropriate in the substantive criminal law context, given the special need for clarity and certainty, and given that it falls to our elected representatives, not the courts, to tell us what courses of action are criminally wrongful.

R v Martineau, [1990] 2 SCR 633

The Travis Vader debacle sparked a great deal of discussion as to the need to clean up the Criminal Code. But it ought to have prompted more debate over the merits of Martineau, which was poorly reasoned and wrongly decided.

It is reasonable to think that people who engage in behavior that is only objectively dangerous, and cause death as a result, should never be called “murderers”. That claim, however, is by no means obvious. For more than 250 years, English and Canadian judges, commentators, and legislators took the view that subjective foresight of death was not a requirement for murder. There is nothing like a “societal consensus” to the contrary.

Much of the majority’s opinion is tacitly grounded in the idea of fair labelling, suggesting that it was open to Parliament to treat the conduct in issue as criminal ― and more blameworthy than mere manslaughter ― so long as it did not call the conduct “murder”. The dissenting judges were rightly dismissive of this argument. The labels applied by Parliament to criminal offences are, in the end, legal labels that need not perfectly track moral language. It is not the role of the courts to decide how Parliament can best articulate the wrongfulness of a given course of action.

In the end, the decision in Martineau rested on spurious claims that section 230 was inconsistent with the stigma and punishment associated with murder. The stigma argument is question-begging: the point of criminal offences is to express Parliament’s view that a given type of conduct is wrongful and deserving of censure. If Parliament regards the conduct in question as sufficiently wrongful to warrant being treated as ‘murder’, then it is unclear how or why the courts have any business second-guessing it.

There is a strong argument that the real problem with constructive murder was the mandatory minimum sentence for murder generally. If that’s the case, though, then the answer was to strike down the mandatory minimum, and not the substantive offence. Indeed, the practical effect of Martineau was to make it less likely that challenges to the mandatory minimum for murder would succeed, since it is unlikely that the sentence would be grossly disproportionate for anyone who could be convicted under the categories of murder that remain.

The poor reasoning on display in Martineau is reflected in the fact that, since the early-1990s, there has been little or no success in convincing appellate courts that an objective fault offence should be struck down by virtue of the stigma and punishment associated with it. Martineau is the product of a time when judges and commentators were far more skeptical of objective fault offences generally. It was wrong the day it was decided, but it looks more and more wrong with each passing day.

R v Carter #2, 2016 SCC 4, [2016] 1 SCR 13

A decision that took all of the confusion surrounding the remedy ordered in Carter #1, and made it worse. By the time the majority was done, we somehow had a declaration of unconstitutionality that applied only to some instances of physician-assisted suicide, a suspension of the declaration (for reasons that were dubious at best), and a holding that patients could seek exemptions during the period of the suspension. A low point in constitutional remedies.

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.


Day Two: Bruce Pardy

Professor of Law, Queen’s University

R v Oakes, [1986] 1 SCR 103

The Supreme Court’s decision in Oakes may have seemed innocent enough at the time but it is where the trouble begins: the Supreme Court’s assertion of the authority to decide questions of social policy, the scourge of proportionality, and the erosion of the rule of law in Charter interpretation. Other than the wording of the Charter itself (and perhaps not even that), no text has had more influence on the way the Charter is interpreted than the Oakes test. The seeds planted there eventually make possible Justice Rosalie Abella’s recent assertion that the Supreme Court “is the final adjudicator of which contested values in a society should triumph.”

The irony is that in Oakes the Court rejects the justification argued by the government, declares the reverse onus in the Narcotic Control Act to be unconstitutional, and may have believed that it was imposing “a stringent standard of justification” under section 1. Funny how things turn out sometimes.

Andrews v Law Society of British Columbia, [1989] 1 SCR 143

The mess the Supreme Court has made of section 15 of the Charter begins in Andrews. The words of s 15(1) appear to establish the right to the equal application of laws that are non-discriminatory, to which s 15(2) is a narrow and specific exception. However, in Andrews the Supreme Court is confused and confusing. The judgment says, correctly, that the purpose of section 15 is to ensure equality in formulation and application of the law and that persons who are similarly situated be similarly treated (equality of application). However, it also calls for persons who are differently situated to be differently treated (equality of outcome), with McIntrye J endorsing the notion that “there is no greater inequality than the equal treatment of unequals.” Does section 15 require that the same rules and standards be applied to everyone, or that different rules and standards be applied so as to produce equal results?

Like in Oakes, it is difficult to find fault with the result in Andrews on the facts, but the Court is unable to provide a clear conceptual framework for section 15. Andrews makes it possible for the Court, in section 15 cases that follow such as R v Kapp, to assert that the two parts of section 15 “work together to promote the vision of substantive equality that underlies s. 15 as a whole.” That sentiment, in turn, eventually feeds the misguided quest in Trinity Western for substantive equality in the name of Charter values, which are given precedence over explicitly enumerated fundamental freedoms.

R v Wholesale Travel Group Inc, [1991] 3 SCR 154

Sometimes constitutional provisions challenge the legitimacy of the regulatory state. When they do, the Supreme Court is ready to protect it. In its recent and widely panned decision in R v Comeau, the Court eviscerates section 121 of the Constitution Act 1867 when it fears that internal free trade will inhibit panoptic regulation. Comeau is just the latest decision from the Court to shield the modern welfare state from constitutional restraints.

In R v Wholesale Travel, the Court finds that the reverse onus in regulatory prosecutions does not violate the presumption of innocence under section 11(d) of the Charter. Like its justifications in Comeau, the Court’s reasoning is woeful. Regulatory prohibitions are essential to public welfare, the Court says, as though polluters are more dangerous than murderers and rapists. Regulatory offences are less serious than ‘true’ criminal offences, it suggests, ignoring the similarity in their penalties including the potential for incarceration. Citizens voluntarily submit themselves to regulation, the Court insists, so are fair game for a reversed onus – even though regulation is so widespread that is impossible to stay clear of its reach. Finally, the Court concludes, since evidence of fault lies in the hands of the accused, that is where the burden should lie ― but evidence of intent lies in the hands of the accused in criminal cases too and the Crown must nevertheless prove intent in those prosecutions beyond a reasonable doubt. In effect, the Court has no juristic reason to distinguish the onus of proof in regulatory and criminal prosecutions. It simply believes that a reverse onus is necessary for the regulatory state to function. Therefore it must be permissible, the Charter be damned.

Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190

I can provide no better comment on Dunsmuir than to quote the dissenting judgment of Justices Côté and Brown in Wilson v Atomic Energy of Canada:

This Court has recognized that, where deference is owed, a decision-maker’s interpretation of the law will be reasonable if it falls within a range of intelligible, defensible outcomes: Dunsmuir v. New Brunswick … deferring in this way on matters of statutory interpretation opens up the possibility that different decision-makers may each reach opposing interpretations of the same provision …  The rule of law and the promise of orderly governance suffer as a result. When reasonableness review insulates conflicting interpretations from judicial resolution, the identity of the decision-maker determines the outcome of individual complaints, not the law itself. And when this is the case, we allow the caprice of the administrative state to take precedence over the “general principle of normative order”. More troubling still, such a situation calls into question our legal system’s foundational premise that there is “one law for all” since, realistically, what the law means depends on whether one’s case is decided by one decision-maker or another. It goes without saying that the rule of law, upon which our Constitution is expressly founded, requires something closer to universal application. … As long as there is one conflicting but reasonable decision, its very existence undermines the rule of law. [References omitted]

Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395

Given its decision in Doré, it is not difficult to understand how the Supreme Court could go so wrong in its abominable 2018 decision in Trinity Western. In Doré, the Court reflects a vision of the Charter that might be unrecognizable to its drafters. Is the Charter not a shield against an overbearing state? Does the government not bear the burden of establishing that any breach of a Charter right is a reasonable limit prescribed by law? Not so much, according to the Court, at least in the context of administrative decision-making.

Doré advances the Court’s continuing project to reconceive the Charter as a progressive document to be wielded in the pursuit of collective goals. The Court says that the Charter contains not just the rights and freedoms written in the text but also “Charter values”, found nowhere but in the Court’s imagination. Administrative decision-makers are to weigh Charter values against Charter rights when exercising their statutory discretion, effectively turning the Charter from a shield into a sword. Vague statutory objectives are sufficiently “prescribed by law” to justify infringing a Charter right if the decision-maker balances Charter values in a “proportionality exercise”. Strange how the Constitution always means what the Court thinks it should.

Day One: Joanna Baron

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 v. Canada, [1992] 2 SCR 679

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.”

R. v. J.A., 2011 SCC 28, [2011] 2 SCR 440

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.

R v Butler, [1992] 1 SCR 452

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!

Canada (Attorney General) v. Bedford, 2013 SCC 72[2013] 3 SCR 1101

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.)

Reference re Secession of Quebec, [1998] 2 SCR 217

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.” [91] 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.