Day Eleven: Geoff Sigalet

Post-doctoral Fellow at the Queen’s Faculty of Law and Research Fellow at Stanford Law School’s Constitutional Law Center

Thanks very much to Leonid Sirota and Mark Mancini for kindly inviting me to contribute to this symposium. I thought about which cases to include in my list of the “worst” Supreme Court cases of the 1967-2017 period during Christmas, and I hope that my list isn’t too out of touch with the charitable spirit of the season. This list is largely influenced by my own Madisonian argument for the need for constructive dialogue between Canadian legislatures and courts about Charter rights. My theory of rights dialogue is just one among many, and my ideas on dialogue and rights are significantly indebted to the work of Dennis Baker and Grégoire Webber (among many others).

Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519 (Sauvé II)

In my view, the Court deserves applause in cases where it not only exercises a proper degree of deference to Canadian legislatures, but is willing to recognize a measure of co-ordinate autonomy in constructing the indeterminate meaning of Charter rights. In R v Mills the Supreme Court explicitly used the idea of dialogue to justify its reasoning about the meaning of the Charter’s sections 7 and 11(d) right to a full answer and defence in criminal trials as it relates to the privacy rights of victims. It also considered how a statutory reply to an early decision (R v O’Connor) constructed the meaning of such rights in relation to the privacy rights of the accused, but also the Charter’s section 15 and 28 sexual equality rights of victims, and the public interest in encouraging the reportage of sexual assault, especially the sexual assault of women and children.  The opinion characterized the relationship between Parliaments and the judiciary as one of “dialogue”. It claimed that: 

The law develops through dialogue between courts and legislatures … Against the backdrop of O’Connor, Parliament was free to craft its own solution to the problem consistent with the Charter.”

This suggests that Parliament has autonomy in constructing the nature and scope of Charter rights.

But the Court also deserves criticism when it departs from this constructive type of dialogue. A few years after Mills, in Sauvé II a majority of judges on the Court repudiated its previous commitment to co-ordinate dialogue. The Court invalidated a legislative reply to a prior judicial ruling that had seemed to invite inter-institutional disagreement on whether the Charter’s section 3 protections for voting rights secured prisoners’ the right to vote. The Court repudiated Parliament’s attempt to reply to the Court’s prior invalidation of an 1898 statute disqualifying all prisoners from voting during their imprisonment with an enactment limiting disenfranchisement to convicted criminals imprisoned for a period of 2 years or more. The majority opinion argued that “[t]he healthy and important promotion of a dialogue between the legislature and the courts should not be debased to a rule of ‘if at first you don’t succeed, try, try again’.”

This was at odds with the more constructive ideal of dialogue the Court embraced in Mills. In my view, the much narrower role for legislatures in the more interrogative ideal of dialogue embraced in Sauvé II presupposes that Courts are the supreme authority over the meaning of Charter rights, and this premise lacks a textual basis in the Constitution Act. The type of dialogue represented by Sauvé II involves courts interrogating legislatures for justifiable reasons for infringing rights. This type of dialogue threatens both democratic control over the meaning of indeterminate rights, and respect for rights as specifications of justice that should not be easily overridden.

Even setting aside the difficulties attending the interrogative ideal of dialogue articulated in Sauvé II, the case rested on questionable legal and philosophical reasoning about the construction of voting rights. While the text of section 3 of the Charter limits the right to vote to citizens, the Court did not consider at any length the question of whether the public meaning of entrenching the right to vote was thought to extend to prisoners (in spite of the interesting fact that the Joint Committee on the Constitution excised an internal limitation clause qualifying this right after debates concluding that it was vague and unnecessary). Instead, the Court extended the right to vote to prisoners without much comment, and then engaged in a problematic proportionality analysis of the justification of infringing their right to vote. Although the Court granted that the legislation had legitimate aims (encouraging civic responsibility and punishing crime) it found the enactment disproportionate to these aims in a way that appeared to deny the possibility of any proportionate limitation on the right to vote. Writing for the majority, McLachlin C.J. argued that limitation on prisoner voting was disproportionate to these ends because the “obligation to obey the law flows from the fact that the law is made by and on behalf of citizens”. This claim was not philosophically reconciled with the “practical matter” that “we require all within our country’s boundaries to obey its laws, whether or not they vote.” Liberal political philosophers such as H.L.A. Hart and John Rawls would have been puzzled at the majority’s reasoning on this matter and its invocation of social contract theory.

R v Oakes, [1986] 1 SCR 103

Like many of the other contributors to this symposium, I consider the approach to Charter rights developed in Oakes to have created confusion about the meaning and specification of rights. In turn, I think that this confusion has affected the norm of dialogue informing interactions between legislatures and the courts concerning Charter rights. Oakes introduced the European “proportionality” approach to reasoning about whether Charter rights are reasonable limited according to section 1. The Oakes test encourages courts to focus less on the scope and nature of rights as they relate to other rights and constitutional provisions, and more on the legitimacy (i.e. importance), suitability (i.e. rationally connected), necessity (i.e. minimally impairment), and proportionality (stricto sensu) of the state’s “infringements” of rights. But these latter questions lead both courts and legislatures to analyse rights in a utilitarian register. They orient judicial interactions with legislatures towards determining whether the reasons and means by which legislatures “infringe” rights are justifiable. This can have the unfortunate side-effect of decreasing legislative responsibility for constructing the indeterminate meaning of rights.

Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567

This case involved Albertan Hutterites who objected to having their photographs appear on their driver’s licences and sought accommodation as a matter of their right to freedom of religion under section 2(a) of the Charter. The majority decision conceded that the provincial regulation infringed section 2(a), but held that the legitimate and suitable government aim of having a photo database lacking exceptions minimally impaired the right, and that Alberta’s interest in the security of its licencing system outweighed any case-by-case harm to the religious freedom of individuals.

The majority opinion was problematic because it failed to establish why the photographs of 250 Hutterites were necessary to maintaining a secure licencing system (in a province with 700,000 citizens without licences at that time). The majority also erred by implying both that the lack of accommodations really only threatened the religious claims of individuals, and that infringements on freedom of religion deserve more deference due to the “broad scope” of the right. The Court has since largely corrected the view that religious freedom cannot be unjustifiably limited in relation to a religious community (e.g. Mounted Police Assn. of Ontario v Canada). But, in my view, the Court has unfortunately continued Hutterian Brethren’s spirit of treating abridgements of religious freedom as worthy of less scrutiny than other rights and interests. However, in the spirit of the season, I should note that Abella and LeBel JJ.’s dissents are fantastic, especially LeBel’s critique of proportionality analysis.

Schachter v Canada, [1992] 2 SCR 679

Joanna Baron has already written persuasively in this symposium about the difficulties created by the Court’s understanding of judicial remedial powers in Schachter v Canada. In Schachter, the Court decided that the separation of powers should not strictly limit the ability of courts to “read-in” measures to remedy unconstitutional legislation according to section 24 of the Charter (even though such legislation is, per section 52 of the Constitution Act, 1982, null ab initio). I agree with Ms. Baron and Dean Robert Leckey that this type of expansion of the remedial powers threatens to spill the banks of the traditional judicial role.

Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624

Eldridge is in a way the fruit of the problems with Schachter. In Eldridge, the Court interpreted the equality guarantee in section 15(1) of the Charter to require B.C.’s public health care system to include specific resources for deaf patients. The Court went so far as the specify that “sign language interpretation will be required in most cases” and that the cost of providing such interpreters is “only 150,000”. As Professor Baker points out in his book’s excellent discussion of the case, in Eldridge the Court not only potentially expanded the judicial role into the legislative function, but did so in a way that appears to have circumvented enumerated protections for legislative control over public spending in sections 53 and 54 of the Constitution Act, 1867.

A belated Merry Christmas and Happy New Year to all!

Day Ten: Mark Mancini

We at Double Aspect are very excited to host this important symposium. As I’ve written before, I think it is necessary for observers to turn a critical eye to the Supreme Court’s cases. Those of us interested in doing so should not shirk behind the ceremony of the bench.

Here is my list of the 5-worst Supreme Court cases of the last generation. My North Star is the separation of powers between the courts and the political branches, and the division of powers between the provinces and the federal government. These fundamental protections are necessary for any constitutional democracy, and are logically prior to any bill of rights, which are simply mere “parchment barriers.” These cases, in their own way, undermine these important structural protections.

  1. Doré v Barreau du Quebec, 2012 SCC 12

Doré has received criticism on so many levels, but my concern is the separation of powers problem it creates. It sacrifices the supervisory function of courts for the sake of the Court’s fascination with a pop-psychology sort of “expertise.”

Doré rests on the assumption that technical policy expertise in the decision-maker’s ambit transfers seamlessly to constitutional matters arising in that ambit [46-47]. This assumption is academic at best, and completely wrong at worst. It rests on the mistaken view that we can fuse together questions of law and “policy” in one mishmash of questions that administrative decision-makers can address relying on one well of policy expertise. But this is not the way human knowledge and information works. Agencies can be viewed as information processors, and when processing information, they also prioritize it. Unless decision-makers receive constitutional training (like lawyers), they could undervalue the importance of certain relevant facts applicable to constitutional problems.

The effect of this myth of expertise is the dilution of a court’s recognized supervisory role over constitutional matters (see Hunter v Southam). No one denies that a challenge to a government law is analyzed on a correctness standard. Of course, the Oakes test contemplates deference (Doré, at para 57). But deference to a legislature—a recognized constitutional actor—is functionally different than deference to a quango. We defer to legislatures for good reasons (for example, because a question is inherently political, best amenable to resolution by legislatures), whereas the reasons for deference to administrators on constitutional matters are weak and unproven.

  1. Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62

Though this list appears in no particular order, Newfoundland Nurses is my pick for the worst case of the last 50 years. Thinly reasoned but consequentially harmful to the institutional roles of Parliament and the courts, Newfoundland Nurses extended a sentence in Dunsmuir (which itself grabbed a theoretical prescription from an academic article) that courts should defer to reasons that “could be offered” by decision-makers [12-13].

Newfoundland Nurses responds to the classic “insulation” problem in judicial review: the decision-maker has not offered enough information for the court to be sure that relevant issues were addressed. Understandably, courts cannot undertake the constitutional supervisory function of judicial review if they cannot determine the basis for the decision. Newfoundland Nurses tells us that courts, in the name of deference, should not strike a decision on this basis alone.

But it is no answer to this problem for courts to create reasons for the decision-maker. After all, Parliament delegated power to administrative decision-makers, not the court, to decide particular cases (see here, and Stratas JA’s reasons in Bonnybrook). The legislature’s delegation, absent constitutional objection, should be respected by courts. But when courts attempt to cooper up decisions that are otherwise left wanting, they disrespect Parliament’s delegation, and they end up reviewing a “decision” of the court’s creation, rather than the one actually rendered.

Ironically, Newfoundland Nurses instantiates a rule of deference that isn’t really deferential. On one hand, courts—in the name of respect for legislative intent and the unhelpful metaphysical idea of a “culture of justification”—defer to administrative decision-makers. On the other, courts build up defective reasons to save decisions.

  1. Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12

The Federal Courts Act provides grounds of review which tell courts when they could allow judicial review. The question in Khosa was whether these grounds of review superceded the common law judicial review analysis set out in Dunsmuir, and relatedly, what the position of a court is on judicial review in absence of statutory direction.

While Justice Binnie for the majority began his analysis by noting that Parliament need not specifically direct deference for it to be applied, Justice Rothstein (in concurrence on result) had the better of the argument by reasoning that a free-standing idea of expertise amounts to a court-amendment of duly enacted legislation. The reason is this: Parliament could repeal or reorganize various administrative decision-makers at any time. It follows that the legal justification of the administrative state is statutory law. How a decision-maker is reviewed is also a function of statute. Therefore, a court cannot subvert statutory language in service to its own policy goals, in this case, some ethereal “judicially determined expertise” [96].

Regarding the Federal Courts Act, for Justice Binnie, questions of home statute interpretation are reviewed on a reasonableness standard, regardless of legislative guidance [44]. This allowed him to conclude that the grounds of review specified in the Federal Courts Act were largely silent on the standard of review, permitting deference. But because there is no reason to presume deference in absence of statutory language, Justice Rothstein was clearly right to conclude that most of the grounds in the Federal Courts Act set the standard of review as correctness [72]. While the common law Dunsmuir framework can inform the review of federal decision-makers, it should not resist the Federal Courts Act.

  1. General Motors v City National Leasing, [1989] 1 SCR 641

The Supreme Court interprets Canada’s division of powers to permit overlap between the orders of government, in the name of “cooperative federalism” (Securities Reference II, at para 18). Modern regulation is said to require nothing less. General Motors is perhaps the best example of the folly of this assumption from the perspective of the exclusive division of powers.

General Motors concerns the case of a statutory provision that facially intrudes on the other order of government’s jurisdiction, but that are included in an otherwise valid statute. Since the days of the Privy Council, it was recognized that such provisions were not constitutionally problematic if they were necessarily incidental to the broader legislative scheme. Slowly but surely, courts diluted this strict test, next permitting only a “rational, functional connection” between the provision and the scheme (Papp; Zelensky). General Motors is the cherry on top. It creates a shifting standard—depending on the severity of the intrusion of the provision, a more or less strict test would apply—sometimes the rational-functional test, sometimes the necessarily incidental test. [669].

But this shifting standard does not match onto the division of powers. As Asher Honickman persuasively argues, the division of powers was not originally understood to permit overlap, and instead was meant to be an exclusive distribution of powers. This means General Motors goes wrong in two ways: first, it sometimes permits a “rational, functional test,” which permits a great deal of overlap. A necessarily incidental test, while also permitting some overlap, only does so to enable the enacting government to legislate to the full extent of its power; without the impugned provision, the rest of the statute would fall. Second, General Motors purports to measure the “seriousness” of an intrusion. Not only does this encourage judicial navel-gazing, but one can’t get a little bit pregnant. The exclusive division of powers prevents intrusion by one order of government on the other, no matter its “seriousness,” except in the narrow case of necessity.

  1. Re Residential Tenancies Act, [1981] 1 SCR 714

Residential Tenancies sets out the test for when provinces (or the federal government) want to divest courts of adjudicative power in favour of statutory tribunals. A divestment of this kind implicates s.96 of the Constitution Act, 1867, which has been interpreted to protect the judicial function of the superior courts from provincial abrogation (see Crevier, at 237). Even though a power may have been considered judicial in 1867, provincial legislatures can attach judicial functions to a tribunal within a “broader institutional framework” [733-734].

From a separation of powers perspective, Residential Tenancies incentivizes governments to regulate broadly order to enable the attachment of a purely judicial function to a tangentially related legislative scheme. This erodes the power of courts, and incentivizes mass delegation to any tribunal that can be characterized as promoting the “collective good.” This amorphous term enables Parliament and the legislatures to “regulate away” the judicial functions contemplated by the historical understanding of s.96, subverting the hierarchy of laws.

On the division of powers of side, broad provincial delegation eats away at the function of uniformity that is achieved by s.96. A federal power of appointment is designed to vest a power to create uniformity, while still respecting provinces (see MacMillan Bloedel, at para 15). But if provinces can eat away at judicial functions originally understood as being a matter of federal control, the uniformity function slowly ebbs.

Day Nine: Maxime St-Hilaire

Associate Professor, Université de Sherbrooke and visiting scholar at SciencePo Paris Law School

Dupond v City of Montreal, [1978] 2 SCR 770

In this case, provisions of a Montreal bylaw (still in force: see Villeneuve c Ville de Montréal2018 QCCA  321) allowing the city to temporarily ban an assembly, parade, or other gathering due to public order concerns or anticipated “commotion” withstood a constitutional challenge based on the division of powers. By a 6-3 majority, the Supreme Court managed to rule that what Laskin CJ, dissenting, called a “mini criminal code” didn’t come under the  exclusive federal power over criminal law, but was part of a valid exercise of the  exclusive provincial jurisdiction over local or private matters (Constitution Act, 1867, para 92(16)), as well as of their exclusive powers over municipal institutions para 92(8)), property and civil rights (para. 92(13)), the administration of justice (para 92(14)), and power to impose penalties to enforce provincial legislation (para 92(15)).

I’m not going to say the ruling is absurd, but Beetz J’s majority reasons are weak and epitomize a form of Quebec nationalist bias that is willing to take Quebecers (as individuals) hostage. Whereas para 92(16) plainly reads as a partial residual legislative power, Beetz J’s reasons invert the very logic of all residual legislative power, which is supposed to apply only if the party relying on it has shown that the matter at issue can’t be assigned to any of the positively listed (non-residuary) powers: “Lorsqu’un texte législatif est en soi de nature locale ou privée, il incombe à la partie qui affirme qu’il relève d’une ou de plusieurs catégories de sujets énumérés à l’art. 91 de le prouver”, writes Beetz J, citing the Union St-Jacques de Montréal c. Bélisle, (1874) LR 6 PC 31. Leaving aside the criticism of that strange but common idea that the division of legislative powers would be entirely found in ss 91 and 92 of the Constitution Act, 1867, division of powers analysis must work precisely the other way around.

Another symptom of biased analysis here is the attempt to root the legal norm at issue in a multitude of different heads of legislative power. This mustn’t be conflated with double aspect, areas of shared jurisdiction, or concurrent attribution of legislative power. Normally, once a legal norm’s pith and substance has been identified, the judge must make up his or her mind and link that norm to a single head of legislative power, unless an inherently incidental legislative power such as the provincial penal power provided for at para 92(15) is relevant.

With regard to both the factual and legal contexts, the way in which Beetz J strives to distinguish the provisions at issue from criminal law on the basis that it is directed at “prevention” rather than punishment is entirely unconvincing. So is the manner in which he suggests that freedoms of expression, of the press, of assembly, of association, and of religion are “distinctes et indépendantes de la faculté de tenir des assemblées, des défilés, des attroupements, des manifestations, des processions dans le domaine public d’une ville”.

Beetz J’s reasons in Dupond just don’t stand comparison with Laskin’s CJ, but the decision tends to be celebrated by constitutional lawyers in Quebec as a bulwark against, or moment of resistance to, the centripetal betrayal of the federative compact. The reason I particularly dislike this decision is that I can’t help seeing a disconnect between the reasons given to justify it and the real ones, a hijacking of the applicable law by a form of political bias, and a sacrifice of the protection given the individual by the law on the altar of a more or less conscious constitutional (sub‑)nationalism.

Duplessis used to complain that the Supreme Court is like the Tower of Pisa, always leaning towards the same ― federal ― side. In Dupond, the apex court leaned towards Quebec, and it didn’t look good.

Canada (Human Rights Commission) v Taylor, [1990] 3 SCR 892

In this case, the question whether an infringement of the constitutional freedom of expression by the “quasi constitutional” (see my post on this concept) Canadian Human Rights Act, which protects equality in matters of federal jurisdiction, was justified, was basically treated the same as the question whether an infringement of that very freedom by the Criminal Code was too. Indeed, Taylor and Keegstra were heard one right after the other, handed down on the same day, by identical majorities, and majority and dissenting reasons written by the same judges. They were treated as companion cases for the simple reason that both concerned hate speech.

Yet there’s a difference between infringing freedom of expression through criminal law and doing it through human rights legislation. Criminal law isn’t chiefly about protecting rights. Human rights legislation is. Even when a given human rights statute protects only, or mainly, the right not to be discriminated against, it’s about human rights protection. Unless one believes that s. 33 of the Canadian Charter introduces an absurd hierarchy (according to which linguistic rights of s. 23 would prevail over the right to life of s. 7 or the protection against cruel and unusual treatment of s. 12), the Supreme Court has a responsibility to strive to make constitutional rights and freedoms form a coherent system. Ideally, supreme and constitutional courts should always seek to interpret a right so as to make sense of the other rights, and vice-versa. Hence, they should apply a much higher degree of scrutiny when the infringement of a constitutional right comes from a statute whose pith and substance is the protection of rights. Indeed, I think that s. 1, that is, proportionality, shouldn’t be open to human rights statutes’ infringing on a constitutional right in order to better protect another. Resorting to proportionality in cases where human rights legislation infringes on a constitutional right only contributes to the Supreme Court’s failing to successfully meet the challenge of “rights collision”, which requires a sufficient amount of interpretive delineation, integration, and coherence, notably in order to avoid hierarchization.

New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly), [1993] 1 SCR 319

It’s particularly hard for me to be brief on parliamentary privilege, a topic on which I cross-posted a few lines here on Double Aspect, published a little elsewhere, and appeared before the Senate Standing Committee on Rules, Procedure and the Rights of Parliament this past March. I also must disclose that I acted as an alleged expert on global standards in a parliamentary privilege case, Boulerice, until my affidavit was eventually dismissed by the Federal Court of Appeal.

I’ve been holding a grudge against the Supreme Court’s judgment in New Brunswick Broadcasting since I first read it as an LLB student, back in 1997. About a decade later, when I happened to read Kelsen’s 1929 book on democracy (apparently not available in English, though it is in French), I felt a bit relieved, not to say rewarded. Even back in the late 1920s, it was easy to understand that, in 17th Century Britain, parliamentary privilege’s raison d’être was to protect parliamentarians from courts at a time prior to both judicial independence and responsible government. By the 20th century, it was readily understandable that parliamentary privilege has to be updated, including in the face of the risk that it would be misused by the parliamentary majority in order to oppress the minority (the opposition), something which constitutional experts in Europe are now generally well aware of. There is no sign of such an understanding in New Brunswick Broadcasting ― nor in the somewhat backpedalling Vaid decision either. Karakatsanis J’s “purposive approach” in Chagnon gives me a little hope (Côté and Brown JJ’s dissenting reasons on this topic are disheartening), but there is still a long way to go.

However, there’s just one funny idea on which I want to focus here: that it somehow makes sense to rely on the fact that the Constitution Act, 1867’s preamble mentions the “desire to be federally united [under] a Constitution similar in Principle to that of the United Kingdom” in order to constitutionalize, that is, to put above legislation, something that in the UK has always been subjected to legislation; that, insofar as Parliament is concerned, s. 18 of the Constitution Act, 1867, while setting limits, clearly makes a matter of federal legislative jurisdiction; and that Fielding v Thomas, [1896] AC 600 (PC) confirmed was a matter of provincial jurisdiction by virtue of former para 92(1) of that same Constitution Act. Well, now that I think about it for the 101st time, it finally seems to me that stating this funny idea is enough to debunk it.

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

There has to be some Hell for bad judicial decisions, and a special place in it for Supreme Court’s judgment in Doré v Barreau du Québec. A lot has been said, including in this series, about that decision, by which the Court has allowed itself both not to apply the constitutional bill of rights where it has to (what I have characterized as a denial of constitutional justice) and to apply it where it mustn’t.

In both cases the Court “sort of applies” the Charter, suggesting it makes no difference anyway (see notably McLachlin CJ and Moldaver J’s concurring reasons in Loyola), which isn’t true. For instance, when the “Doré framework” is applied, it’s no longer required, for an infringement to be justified, that it be “prescribed by law”. But there, precisely, lies what I find so shocking about Doré. Section 1 of the Charter, requires that infringements of rights be “prescribed by law” to be justified ― not for the Charter protections to apply at all. How then could the Court conflate the two, to the point of converting a case where the constitutional right at stake probably (because the Supreme Court’s jurisprudence never managed to sort out what “prescribed by law” means) could not be validly infringed (because the infringement wasn’t prescribed by law) into a case where that very constitutional right didn’t apply (even though the possible infringement being prescribed by law never was a condition for the Charter to apply)? A (first year) law student asked me once: “How can it be possible that Supreme Court judges, and moreover unanimously, make such a basic mistake?”, to what I responded: “I have no idea, but I can tell you that this is why I might retire early!” 

Doré clearly is a further symptom of the Supreme Court’s having totally lost the plot on the conditions under which the Charter applies, and trying now to obviate the question, on which I’ve claimed the idea that the SCC’s practice amounts to some “jurisprudence” (that is, to some “law”) is a myth. After Ktunaxa, where the majority just ignored it, we could hope, like Léonid Sirota did, to be witnessing Doré’s Demise. Like a living dead, it came back in the twin TWU cases (here and here), which would for sure have made my list, had 2018 been within the timeframe, and where members of the Court don’t even agree that Doré is still valid law. This is, and has been for a while, the disastrous state of Canadian constitutional law relating to rights and freedoms.

Tsilhqot’in Nation v British Columbia, 2014 SCC44, [2014] 2 SCR 257

There are things one just has to get right. One of them is the first final judgment declaring a constitutional aboriginal title. Yet in Tsilhquot’in, the Supreme Court managed to spoil this historic moment with deeply flawed reasons. When this judgement was handed down, I intended publishing a short enthusiastic post. I ended up publishing a 50-page-long critique.

McLachlin CJ’s unanimous reasons, even on aboriginal title, rely extensively on the 1984 Guerin decision, which, contrary to Calder (1973) and Delgamuukw (1997), was not a landmark decision on aboriginal title ― it dealt with fiduciary duty. Guerin had brought in aboriginal title only in order to give a private law dimension to the relationship between the federal government and the band after a reserve land surrender under the Indian Act, which allowed fiduciary duty to fill a legal vacuum. Guerin wrongly equated reserve land and aboriginal title, an error which was corrected in Osoyoos Indian Band. “It does not matter, in my opinion, that the present case is concerned with the interest of an Indian Band in a reserve rather than with unrecognized aboriginal title in traditional tribal lands,” had written Dickson J. (as he then was) in Guerin. “The appellant argued that, as a matter of law, aboriginal title subsists in a reserve created under the Indian Act. This is clearly incorrect,” wrote Iacobucci J. in Osoyoos Indian Band.

Through this unlikely reliance on Guerin, McLachlin CJ, for the Court, also allowed a hypertrophied version of the fiduciary duty to make a comeback. After Guerin, a collective delirium affected the country’s constitutional and aboriginal law lawyers, who started to spread fiduciary duty on their toasts. It took a while before a few Supreme Court decisions (including Wewaykum and Manitoba Metis Federation) eventually specified that, no, the State doesn’t always have a fiduciary duty towards aboriginal peoples when their rights are at stake, simply because, even then, the State doesn’t always act primarily for the special interest of aboriginal peoples, but sometimes in the public interest at large. By fits and starts, then, the “honour of the Crown” had replaced the Crown’s “fiduciary duty” as a general interpretative principle of s35 CA 1982. But Tsilhquot’in simply ignored all that, as if it had been released in 1989. Did McLachlin CJ have her reasons for the Court written by some geriatric law clerk who had taken his law degree from 1984 to 1987?

There are so many other problems with this judgement that I could not possibly discuss them all here. In particular, I prefer not to address the division of powers aspect of the decision. My doctor told me “Never again”!


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.

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.