Permanent Problems

The law’s ideals and problems have not changed too much in 400 years

I have only now read Francis Bacon’s essay “Of Judicature.” Bacon seems not to enjoy anything like the reputation of his rival Coke, in the law schools anyway ― I suspect that they haven’t heard much of Coke in the science faculties, where Bacon is regarded as “the father of the scientific method.” Still, his essay is fascinating, because it shows just how little the law’s aspirations and failings have changed in the 400-odd years since it was published.

Bacon’s essay is essentially a collection of advice to judges about how to discharge their office. A good deal of it could still be repeated today. My point, in drawing attention to it, is not to say that all of this advice is good, at least in an unqualified form. It is, first and foremost, to remind the reader of the remarkable historical continuity which, for better and for worse, characterizes the law as a field of human activity.  Here are a few of Bacon’s recommendations, with some accompanying thoughts or comments of my own.

* * *

Judges ought to remember, that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.

Sounds familiar, doesn’t it? If and when there is at last a confirmation hearing for the next judge of the Supreme Court of the United States, you will hear this exhortation repeated ad nauseam; you might even hear it if there is any sort of public hearing involving the next judge of the Supreme Court of Canada. John Finnis quoted Bacon’s appeal in his very interesting recent lecture on “Judicial Power: Past, Present and Future” (whence I learned about Bacon’s essay). But the very fact that this limitation on the judicial role has for so long, and so often, been reiterated should alert us to the habitual futility of the appeal. The Supreme Court’s equivocation over  whether it discovers or makes up the legal rules which it articulates for the first time seems to the suggest that the ideal of the law-saying judge has some appeal to those already holding judicial office ― but not as much as Bacon would have liked.

[W]hen there appeareth on either side an high hand, violent prosecution, cunning advantages taken, combination, power, great counsel, then is the virtue of a judge seen, to make inequality equal; that he may plant his judgment as upon an even ground.

This is also a familiar idea in 2016. Richard Posner, to give but one ― perhaps unexpected ― example has been very vocal about the need for active judicial intervention “to make inequality equal” by correcting the disparities of resources between parties to litigation, whether in his judgments or in a recent extra-judicial indictment of “What Is Obviously Wrong with the [American] Federal Judiciary, Yet Eminently Curable” (see 190-91). There are situations, it is worth noting, where judges might be making things worse, not better. I have been arguing for a while now that this may be happening in constitutional law, as judges increasingly expect expert evidence to support Charter challenges, and thus increase the inherent disparity of resources between citizens and government. (In a recent post over at The Court, Lillianne Cadieux-Shaw seems to share this concern.)

Patience and gravity of hearing, is an essential part of justice; and an overspeaking judge is no well-tuned cymbal. It is no grace to a judge … to prevent information by questions, — though pertinent. 

There has been much discussion of this point following the recent death of Justice Scalia. He was a famously active interrogator of the lawyers who appeared before the US Supreme Court. Surviving him is his colleague Justice Stephen Breyer, whose solliloquies questions occupying entire pages in the oral argument transcript Josh Blackman lovingly (?) documents. By contrast, Justice Clarence Thomas, of the same court, had spent a decade without asking a single question until finally doing so recently. Justice Thomas, one supposes, would agree with Bacon. Those who derided him for his self-imposed silence presumably would not.

[T]hose, that engage courts in quarrels of jurisdiction, … are not truly amici curiae, but parasiti curiae, in puffing a court up beyond her bounds, for their own scraps and advantage.

Here at least, I agree with Bacon wholeheartedly. Those who, in the pursuit of their own ― these days usually political ― agenda, seek to draw the courts beyond their proper remit are not the courts’ friends, though they may present themselves as such. I have said as much in response to a call for the Supreme Court to decree, by judicial fiat, the “depoliticization” of judicial appointments. I wish I’d known the phrase parasiti curiae then, but I will make sure to use it on the next appropriate occasion.

Judges ought above all to remember the conclusion of the Roman Twelve Tables; Salus populi suprema lex.

Perhaps the most obvious example of Canadian judges applying Bacon’s prescription is the Supreme Court’s opinion in Re Manitoba Language Rights, [1985] 1 S.C.R. 721, where the Court sought to avoid “chaos” that its finding of unconstitutionality of Manitoba’s entire statute book by the expedient of suspending this finding’s effect. But beyond such exceptional situations, Bacon’s advice gets tricky fast. For one thing, the Latin salus is ambiguous. It can mean “health,” “safety,” or “welfare” ― making salus populi not one single objective, but a complicated programme. Still it is often said that judges ought to have regard for the public safety (“the Constitution is not a suicide pact”) or even welfare ― Judge Posner being a foremost advocate for the latter position. But isn’t there a tension between making public welfare into supreme law, and renouncing judicial legal innovation? Bacon says, “let no man weakly conceive, that just laws and true policy have any antipathy,” but even if true, this point doesn’t really address the issue of the judicial role. And Bacon’s concrete recommendations for achieving the salus populi ― frequent consultations between the three branches of government, and a demand that judges “be lions, but yet lions under the throne” would run afoul of our views on judicial independence, which are quite different from his.

* * *

In the essay I mention above, prof. Finnis writes that “[t]he problems about the nature and reach of judicial power, about which Bacon and Coke disagreed, are with us today in forms much shifted in occasion and location but still recognizably the same.” That is because they are “permanent problems, capable it seems of only provisional rather than permanent solutions.” (3) The relevance of Bacon’s prescriptions, and the fact that they would be contested now as they were contested when given (and again, except as specified above, I do not fully agree with them), suggests that prof. Finnis is right about that.

Absence of Evidence…

Last week, the Alberta Court of Appeal delivered an interesting decision rejecting a constitutional challenge to the province’s prohibition on private health insurance brought by way of an application. In Allen v Alberta, 2015 ABCA 277, the Court held unanimously that the applicant hadn’t provided a sufficient evidentiary basis for his challenge, and that it should have been brought by way of an action and adjudicated after a full trial. This might have been the correct result, but the route the Justice Slatter, the author of the leading opinion, took to get there is in many ways disturbing. It illustrates, I think, some worrying tendencies in Canadian constitutional law generally, and also the difficulties which challenges to the government’s healthcare monopoly specifically will face.

* * *

In a way, the case is a very simple, and also a very Canadian, one. The applicant had suffered a back injury playing hockey, and even as his pain was getting worse and worse, he was put on a two-year long waiting list for an operation. The pain was too much, and he finally decided to undergo surgery in the United States, at his own (very considerable) expense. And thereafter, he went to court, seeking a declaration that the provision of the Alberta Healthcare Insurance Act that barred private health insurance from covering healthcare services provided by the public insurance plan was contrary to s. 7 of the Canadian Charter of Rights and Freedoms.

The argument was that the government monopoly on health insurance resulted in people having to wait a long time for healthcare, and to suffer as a result, thus breaching the “security of the person” guarantee of s. 7. To support his claim, the applicant submitted “a number of medical reports and proof of expenses he had incurred,” [7] and relied on the Supreme Court’s decision in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, which declared a similar restriction on private health insurance contrary to Québec’s Charter of Human Rights and Freedoms.

For the Court, this was not good enough. After a heartfelt paean to the Canadian healthcare system, Justice Slatter went on to discuss “the importance of using appropriate procedures, and having a proper evidentiary record, when reviewing statutes for constitutionality.” [19] Constitutional cases, in his view, are not just ordinary cases:

Cases in which the appointed judiciary override the will of the democratically elected legislatures fall into a special category. Our constitution and the parliamentary system of government recognize the “supremacy of Parliament”. The presence, however, of an entrenched constitution now provides an important exception to that principle; statutes that are clearly inconsistent with the constitution are of no force or effect. [20]

For this reason, it is important that “the proper procedural safeguards [be] observed.” [21] While the citizen must have an opportunity to challenge the constitutionality of a statute, “fair[ness] to the legislature” means that the government must be able to defend it, and “fair[ness] to the court” requires that it have “a reasonable record on which to exercise this important component of its jurisdiction.” [21] The record here is not sufficient. There is a “presumption … that constitutional cases will be decided on a full evidentiary record, including, where appropriate, the evidence of expert witnesses.” [23] Evidence is especially important in constitutional cases because a declaration of unconstitutionality must, pursuant to s. 52 of the Constitution Act, 1982 determine the “extent of the inconsistency” between the impugned statute and the constitution, and “[t]he only way to know what is that “extent”, is to have a full evidentiary record with complete factual conclusions about it.” [26]

* * *

Justice Martin, in a rather terse concurrence, agrees with this reasoning, and would go no further. While Justice Slatter continues, to discuss Chaoulli and the applicant’s claim that it effectively settles the case, I will pause here and comment on this part of his reasons. As I said above, the conclusion that more evidence was required in this case may well have been correct. To be sure, it seems unlikely that the causal relationships between the prohibition on private health insurance and the existence of lengthy waiting lists established in Chaoulli are somehow not present in this case. A legislature that proceeded on the assumption that there was such a relationship would be acting rationally. But it is at least arguable that a court needs more than an assumption, no matter how plausible. It needs evidence. Allison Orr Larsen’s warnings about the dangers of “factual precedents” are apposite in the Canadian context. It may well be that a fuller record, including expert reports would have been necessary here, though I’m not sure I understand Justice Slatter’s insistence on the need for a trial to dispose of this case, as opposed to an application proceeding on a more developed record.

That said, if Justice Slatter is right, his conclusion ought to be disquieting. It confirms the worry that Sonia Lawrence expressed in the wake of the Supreme Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, and that I have been dwelling on ever since, that mounting a constitutional challenge to a statute may be becoming prohibitively complex and expensive. Marni Soupcoff, of the Canadian Constitution Foundation, which is mounting a challenge of its own to government healthcare monopoly, makes this case in a compelling op-ed in the National Post. Constitutional litigation is at danger of becoming the preserve of (relatively) well-funded public interest litigation outfits (such as the CCF). The Charter was supposed to be “the people’s package” of constitutional reform, but the people risk being prevented from bringing Charter cases by the requirement that such cases be supported by expert reports and proceed by way of trial rather than a less expensive procedure. Justice Slatter’s claim that there exists a “presumption” to this effect is particularly worrisome ― all the more so since he provides no indication as to how this presumption might be rebutted.

I want to comment on a couple of other points in the part of his reasons I have been discussing. The first one has to do with the nature of judicial review of legislation and the courts’ role in constitutional cases, on which Justice Slatter expounds in the excerpt of par. 20 quoted above. That passage contains a number of serious mistakes. For one thing, the constitution does not “recognize the ‘supremacy of Parliament'” ― those words appear nowhere in the Constitution Acts, and while Parliamentary sovereignty is arguably one of the constitution’s underlying principles, it is subject to the limits imposed by constitutional text and other such principles. For another, it is wrong to speak of an entrenched constitution that limits Parliamentary sovereignty as something new, something that only “now” exists. Canada has always had an entrenched constitution, and Canadian courts have always invalidated Canadian laws inconsistent with it, although the legal rationale for this practice did indeed change in 1982, from the supremacy of Imperial law to the supremacy of the (Canadian) constitution. Last but not least, Justice Slatter misrepresents the courts’ role on judicial review when he says that “statutes that are clearly inconsistent with the constitution are of no force or effect” ― there no such “clear inconsistency” requirement either in s. 52 of the Constitution Act, 1982 or in the Supreme Court’s jurisprudence. Constitutional cases, like all civil cases, are decided on an ordinary “balance of probabilities” standard.

The other point that I found disturbing is Justice Slatter’s unabashed celebration of the Canadian healthcare system, of which he says that it

is perceived by many as the crowning achievement of Canadian social policy. The majority of Canadians support the public funding of health care and oppose attempts to shrink or compromise the system. At the same time, many Canadians criticize the system; they would like it to be even better than it is. [14]

Justice Slatter also praises the Canadian healthcare system as “an example of co-operative federalism in action,” though the Canada Health Act, which threatens provinces with the loss of their federal healthcare transfers if they do not comply with its conditions, seems like a rather dubious example of “co-operation.” In any event, Justice Slatter is apparently oblivious to the irony of making unsupported empirical claims in an opinion that dismisses a constitutional challenge for want of evidence. But in the absence of support for these claims, it is somewhat difficult to avoid the suspicion that Justice Slatter is attributing his own views to the indistinct “majority” of which he speaks. After reading these lines, I would rather that he (and indeed his colleagues) not sit in judgment on a constitutional challenge that would, in effect, be an “attempt to … compromise the system,” to change it radically and not merely to make it “even better than it is.”

These two points together lead me to an additional observation. Justice Slatter’s approach is clearly very deferential to legislative choices. That would make him a “conservative” on the definitions that have been floating around of late, for example in some of Sean Fine’s “Tory judges” articles. But, as I’ve said before, “there is nothing inherently conservative about such an approach. It can serve to validate left- or right-leaning policies, depending on the politics of the policy-makers.” This case shows that this is indeed so. If anything, it shows that judges may be able to adopt a strategically deferential posture in order to achieve “progressive” results just as easily as to achieve “conservative” ones.

* * *

I will comment on just one passage from the remainder of Justice Slatter’s reasons. Justice Slatter observes that constitutions, including the Charter, are written in broad terms and

say nothing about the difficult social issues that come before the courts … Controlling this vague language falls to the courts, and an absence of institutional self-restraint by the judiciary makes the problem worse, not better. The Supreme Court has recast the phrase “principles of fundamental justice” with even less precise terms like overbreadth, disproportionality and arbitrariness, none of which have been comprehensively defined. It is, unfortunately, sometimes difficult to discern the difference between these concepts and a simple disagreement by the judiciary with the public policy decisions of democratically elected officials.

The text of s. 7 signals that the drafters of the Charter never intended it to be applied to the review of social and economic policies. … As Prof. [Peter] Hogg has pointed out, the intention of the framers of the Charter to restrict judicial review to procedural matters has been “totally disregarded by the Supreme Court of Canada” with dramatic consequences. [31-32]

I’m not sure I’ve ever seen a Canadian court reverse-benchslap the Supreme Court in this way. Justice Slatter’s attack is pretty vicious, and in my view largely uncalled for.

It is true that s. 7 was not intended to be applied in the way it does, but it is, to say the least, not obvious that “original intent” is an appropriate criterion for interpreting it. Even if, contrary to the Supreme Court of Canada, one is inclined to be originalist, an “original public meaning” interpretation might support the Supreme Court’s conclusion, in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 that “fundamental justice” is not a matter of procedure only. Anyway, it seems to me that it is a bit late to re-litigate that particular issue.

Beyond that, I don’t think it’s at all fair to reproach the Supreme Court for invoking principles such as overbreadth, disproportionality and arbitrariness in applying s. 7. They are, surely, not more open-ended than the expression “principles of fundamental justice.” The Court has tried, in cases such as Bedford and Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, to give them a relatively specific meaning, and in my view has been at least somewhat successful in this endeavour. Justice Slatter’s dismissal of this jurisprudence as “a simple disagreement by the judiciary with the public policy decisions of democratically elected officials” looks not unlike the expression of a simple disagreement by one judge with the constitutional policy decisions of his hierarchical superiors.

* * *

In a sense, this decision is just sound and fury, signifying nothing ― except, of course, that the applicant spent a significant amount of time and money on a litigation that proved fruitless. As Justice Watson rightly observes in his concurrence, “[d]ismissal of a declaration on the grounds that it was not made out in the pleadings and evidence is not the same thing as saying that an action properly pleaded, fairly proceeded with, and backed by sufficient evidence would be impossible.” [60] Perhaps the CCF will succeed in its own efforts to bring such an action. Yet the Court’s mistakes and dubious assertions about its role (about which I might have more to say separately) are cause for worrying, and the possibility that it is right about the high evidentiary threshold that a constitutional challenge must get over before even being considered on the merits is, if anything, even more distressing.

Public Interest in Litigation

I have already mentioned the lawsuit by Aniz Alani, who is trying to have the courts declare that the Prime Minister must advise the Governor General to appoint Senators, which the Prime Minster is refusing to do. The government has filed a motion to strike his application, which will be heard about a month from now. In this post, I want to address not the substance of his case, but on the way in which Mr. Alani has let the public follow the case, which I think is an example to follow not only for other public interest litigants, but also for the government itself.

In addition to using Twitter to publicize his challenge, Mr. Alani has created a sober but eminently usable website that explains his case, provides background information and updates and, perhaps most  importantly (at least from the perspective of law nerd), makes Mr. Alani’s submissions and supporting materials publicly available. Other litigants had made steps in that direction before but, to my knowledge, not as comprehensively or as well. For example, the Canadians Voting Abroad website about the challenge to the provisions of the Canada Elections Act disenfranchising Canadian expatriates after five years abroad looks like it was designed in the 1990s and, more importantly, is missing some crucial documents, such as the factums submitted to the Court of Appeal. (I should note that, technically, this case is not public interest litigation, since the applicants are asserting that their own rights are being infringed. However, they are quite clearly presenting themselves as acting on behalf of others, and not only on their own.)

And others still have done nothing at all. The Barreau du Québec, for example, seems to have no information about its challenge to constitutionality of the mandatory minimum sentences enacted in recent years. (This is all the more paradoxical since the Barreau does have an exhaustive list of its public positions outside the courtroom ― letters to ministers, submissions to Parliamentary commissions, and the like.) Rocco Galati, the scourge of s. 101 courts and their former judges, appears not to have a website at all, while that of his compagnons d’armes at the Constitutional Rights Centre Inc. is bereft of any information.

The reason I am writing about this is that while ordinary litigants, who go to court to assert or defend their own legal rights and interests, are perfectly entitled not to care about what the public knows about their cases, it seems to me that public interest litigants, who ostensibly pursue matters not on their own behalf but on that of the public at large or at least of some section of the public, are, in my view, in a different position. The public, it seems to me, has a right to know what it is that those purport to represent it are up to. And this right is, if anything, even stronger in the case of those representatives who have appointed themselves to that position.

As the Supreme Court has progressively liberalized public interest standing, public interest litigants have grown into a great, yet (almost?) entirely unaccountable force in the Canadian legal, and even political, system. As Mr. Galati’s example shows, and as Mr. Alani’s might yet show, they have the ability to upset the plans and policies of elected officials, and impose considerable change ― for good or ill ― on the institutions of government. Surely, this force owes the rest of us an account of its actions. Public interest litigants say, often quite rightly, that they act to uphold the Rule of Law. But one of the values of the Rule of Law is transparency. Mr. Alani is setting an example in this regard, and others should follow him.

Those “others” include, by the way, a type of outfit that is not usually thought of as a “public interest litigant,” but which in a very real sense is exactly that: the federal Department of Justice and its provincial counterparts (which I will refer to as the DOJs). The DOJs represent (a certain understanding of) the public interest by definition. They act in our collective names. They are given the right to intervene in constitutional cases. And so they too ought to tell the public what they are up to, at least in constitutional cases, and perhaps in others too. Obviously, many of their cases are of limited relevance to the public. I’m not sure exactly where the lines should be drawn, with what exceptions, and so on. I’d love to hear suggestions. But the general point, I hope, is clear enough. Insofar as governments are litigating public interest matters, they too should ensure that those members of the public who are indeed interested are able to learn more about what is being argued on their behalf and in their name.

Unintended Consequences?

When I commented on the oral arguments in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, the B.C. hearing fees case, I argued that although there was a good deal of support among the various parties and interveners for the proposition that it was section 96 of the Constitution Act, 1867, that rendered (excessive) court fees unconstitutional, this argument was problematic. Among other things, I worried that “[t]oo robust a view of s. 96 or of the principle of separation of powers would call … legislative efforts [to provide mechanisms of alternative dispute resolution, for instance, or even to encourage litigants to settle] into question.”

In the event, the Supreme Court decided the case on the basis of s. 96, holding that excessive fees were an interference with the “inherent jurisdiction” of superior courts. In criticizing that decision, I argued that “the fact that courts may have fewer litigants able or willing to go before them cannot, in itself, be an interference with their jurisdiction [because i]f it were, a great many rules encouraging litigants to settle their dispute or to use alternative dispute-resolution mechanisms would be unconstitutional too.” In a post published on À bon droit last week, Olga Redko expands on these concerns, arguing that

the majority’s opinion raises the concerning possibility that the Court’s new reading of section 96 in conjunction with the rule of law principle may be used to undermine existing provincial authority over access to alternative dispute resolution, and private international law more generally.

Ms. Redko worries that the principle set out in Trial Lawyers could be invoked by a party seeking to get out of an agreement to arbitrate or a choice of forum clause giving a foreign court jurisdiction over a dispute that might be subject to the jurisdiction of the courts of a Canadian province. As she points out,

[c]ontractual clauses sending parties to binding arbitration, or designating other provincial or state courts to resolve the dispute, clearly have the effect of denying a party the right to bring a case before the Quebec Superior Court. They arguably lead to the same result with which the Court is so concerned in Trial Lawyers Association, namely hampering the creation, maintenance, and interpretation of positive laws within the province [by its superior courts].

What is more, in Ms. Redko’s view, because of the problem of state action, the principle would not apply in the same way in the provinces where agreements to arbitrate and choice of forum clauses are enforceable pursuant to legislation and those where they are so at common law. Other rules whose effect is to limit access to courts may be called into question as well. Ms. Redko concludes that

[w]e must hope that, in light of the problems presented by such an expansive view of superior courts’ inherent jurisdiction, in future cases the Supreme Court will be very careful in broadening its interpretation of what constitutes an infringement of section 96.

I obviously agree with this conclusion. However, I am perhaps more confident than Ms. Redko that the potential problems which she and I have flagged will be avoided. The idea of state action, I believe, will actually play a constructive role in distinguishing those barriers to access to superior courts that contravene s. 96 and those that do not.

If I understand her correctly, Ms. Redko assumes that in future s. 96 cases, courts apply the rule from the Charter jurisprudence, which distinguishes common law rules from from legislated ones, the Charter only (directly) applying to the latter, and not the former. For my part, I see no reason for this belief. The rule that the Charter does not apply to private common law rules is grounded in the text of s. 32 of the Charter itself, and has nothing to do with s. 96. Although that case did not involve s. 96, in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, the Supreme Court showed that it is aware of the possibility that judicially-created rules will undermine access to justice. I trust that it would treat them in the same way as legislated rules in the context of future s. 96 litigation.

The way the idea of state action will impact such litigation is, I expect ― though perhaps I just hope ― will be to justify a distinction between barriers to access to superior courts created by the government itself ― whether by its legislative, its executive, or its judicial branch ― and those agreed to by the parties themselves. In light of the Supreme Court’s recent jurisprudence which, as Ms. Redko notes, “underscored the importance of respecting parties’ autonomy to select a mutually agreeable forum,”  I cannot believe that courts will treat choice of forum or arbitration clauses as equivalent to hearing fees. Courts will, I trust, recognize that rules of law that give effect to the parties’ intentions are different from those that hinder them.

I also think Ms. Redko somewhat misunderstands the concern of the Trial Lawyers majority with “the creation and maintenance of positive laws” (par. 40) by provincial superior courts. According to the majority,

In the context of legislation which effectively denies people the right to take their cases to court, concerns about the maintenance of the rule of law are not abstract or theoretical. If people cannot challenge government actions in court, individuals cannot hold the state to account ― the government will be, or be seen to be, above the law. If people cannot bring legitimate issues to court, the creation and maintenance of positive laws will be hampered, as laws will not be given effect.

In the context of this paragraph, and of the opinion more generally, I think that “cannot” must be understood as “are prevented by the state from.” The worry is not about the litigants who choose to take their cases elsewhere, but about those who are left with no choice.

But there is also an intermediate class of situations, where parties are given a choice to go to a superior court, but are “nudged” or pressured not to exercise it. I am thinking, in particular of rules designed to encourage parties to settle their disputes, for example by making a party that refuses a reasonable offer to settle responsible for costs even if it wins the case on the merits. This issue was raised at oral argument in Trial Lawyers, and it is true that an expansive reading of that decision might be used to argue for the invalidity of such rules, since both their purpose and, surely, their effect, is to make some litigants forgo trials. But somehow I rather doubt that the Supreme Court would accept such an application of Trial Lawyers.

That said, these are just my guesses. I could be wrong. And even if I am right, Ms. Redko’s important post certainly shows that the constitutional theory adopted by the majority in Trial Lawyers is poorly thought through. It is susceptible of interpretations that are both undesirable from a policy perspective and inconsistent with the Supreme Court’s own recent jurisprudence. The Court’s poor choice of theory may yet turn out to be inconsequential, but it is unfortunate all the same.

Neither Here Nor There

I have summarized the Supreme Court’s decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, the B.C. hearing fees case, here. Over a furious dissent by Justice Rothstein, the Court held that while provinces can impose some hearing fees, the fees cannot constitutionally result in “undue hardship” on litigants, preventing them from asserting their legal claims. The Court found that the B.C. fees do not pass this test, and declared them unconstitutional. As I wrote in the conclusion of my earlier post, the majority’s reasons leave some important questions unanswered. They also rest on shaky foundations, which Justice Rothstein’s dissent exposes. Yet Justice Rothstein’s own arguments are even less persuasive than the majority’s.

Perhaps most significantly in practical terms, the majority’s reasons do a poor job of answering the question of what fee or fee and exemption structure is constitutionally acceptable. The threshold the majority sets out for the acceptability of hearing fees ― that they must not cause “undue hardship” to litigants or make them “sacrifice reasonable expenses” ― strikes me as quite vague.

It also seems to have been formulated with only individual litigants in mind. But what about corporations? Not big corporations for which litigation is just another business expense, but small businesses ― say a convenience store engaged in a dispute with a supplier ― or non-profits? I suspect that to such litigants, the BC hearing fees can represent a significant expense, and perhaps a prohibitive one in some cases. But how will the “undue hardship” and “reasonable expenses” tests apply to them? Yet the majority’s rationale for finding some fees unconstitutional, which is that they interfere with the courts’ core jurisdiction and the Rule of Law, ought to apply to corporate litigants as well as to individual ones.

Most importantly, Justice Rothstein is right to point out that the majority’s pronouncements on the role that exemptions from fees can play in a constitutional hearing fees scheme are contradictory. As he explains, the majority says that “as a general rule, hearing fees must be coupled with an exemption that allows judges to waive the fees” (par. 48), while also saying that making litigants “come before the court, explain why they are indigent and beg the court to publicly acknowledge this status and excuse the payment of fees” (par. 60) can be demeaning and burdensome. Whether the exemption is framed in terms of “impoverishment” or “undue hardship” changes nothing to this fact; nor does it alleviate the majority’s “concern the exemption application itself may contribute to hardship” (par. 60). It is perhaps worth recalling that, as I noted at the time, at oral argument Justice Moldaver seemed convinced that an exemption regime was “unworkable.” The majority reasons (which Justice Moldaver signed on to!) do not really address this concern.

And then, there’s the question of whether a province could impose fees for hearings in provincial court (to which s. 96 of the Constitution Act, 1867, does not apply). Or, for that matter, in administrative tribunals. Now even British Columbia seems not to impose hearing fees in provincial courts, so this particular question might be purely academic but, at least in theory, anchoring the protection of access to adjudicative fora in s. 96, as the majority does, seems to suggest that access to other adjudicators ― which, no less than superior courts, even if under their supervision, engage in the determination of private and public law rights of individuals ― is not protected.

Beyond these practical worries, which may end up generating yet more costly and time-consuming litigation if British Columbia or some other province imposes fees coupled with an “undue hardship” exemption, the majority’s reasons are theoretically weak. Section 96 is a very dubious ground on which to rest a conclusion that hearing fees are unconstitutional. Justice Rothstein is quite right that the fees do not “limit the type of powers [s. 96 courts] may exercise.” They do not, in other words, interfere with these courts’ jurisdiction as it had been understood in the s. 96 jurisprudence, which has always been concerned with the removal of types of cases (e.g. judicial review of administrative tribunals) from the superior courts’ purview. The fact that courts may have fewer litigants able or willing to go before them cannot, in itself, be an interference with their jurisdiction. (If it were, a great many rules encouraging litigants to settle their dispute or to use alternative dispute-resolution mechanisms would be unconstitutional too.) As I have argued before, “the real issue [with the hearing fees] is not that the courts are being interfered with, but that individual litigants are.”

In the post just quoted, I argued that the Court should resolve the case on that ground, because hearing fees have the effect of preventing litigants from asserting their legal rights, which legislatures cannot abrogate, if at all, without clearly stating their intent to do so ― something the hearing fees do not do. So I am happy that the majority discusses the rule of law, even though it does not make that principle the main ground for its decision, and doesn’t go as far as the I would have liked. The majority is right that there cannot be a Rule of Law if people cannot assert their rights in court, and that “[i]f people cannot challenge government actions in court, individuals cannot hold the state to account ― the government will be, or be seen to be, above the law” (par. 40). To my mind, that ― rather than s. 96 of the Constitution Act, 1867 ― is the key to resolving “the fundamental issue of principle” regarding the constitutionality of hearing fees, all the more since there is already a line of cases, culminating in Air Canada v. B.C. (A.G.), [1986] 2 S.C.R. 539, standing for the proposition that legislatures or governments cannot indirectly deny citizens’ constitutional rights by preventing them from asserting them in court. Unfortunately, the majority does not mention this jurisprudence (which was also ignored by the parties and the interveners). Instead, it tries to link the Rule of Law to s. 96, but the connection seems to me awkward and unconvincing.

It is, perhaps, an attempt to rebut Justice Rothstein’s criticisms, though the majority opinion never addresses his dissent directly. But while I share Justice Rothstein’s skepticism at the majority’s reading of s. 96, I think that his brutal attack on its reliance on the Rule of Law misses the mark. Justice Rothstein argues that an unwritten principle, especially one so “vague and fundamentally disputed” (par. 100) as the Rule of Law, cannot justify striking down laws on the basis of their content. But it’s not the substance of a law that is at issue with the hearing fees ― it’s the fact that litigants will be unable to assert or defend their rights under any law, whatever its content. In Jeremy Waldron’s terminology, the conception of the Rule of Law that is at issue here is neither a substantive nor a formal one (both of which the Supreme Court had rejected in the past), but a procedural one. Justice Rothstein, in my view, has no answer to the majority’s point that allowing hearing fees to prevent people from defending their legal rights places the government above the law, which the Court had already said would be a Rule of Law problem.

More generally, Justice Rothstein’s approach to constitutional interpretation is unconvincing. His position is an absolutist one ― since hearing fees are not prohibited by the constitutional text, they are permissible, whatever their consequences. Yet even the B.C. government did not take that view and accepted, at oral argument, that in the absence of a suitable exemption, fees could create a constitutional problem. Justice Rothstein’s paeans to democracy mask the fact that the fees are imposed by the rules of court, not by legislation actually enacted by elected representatives of the people. They also ignore the problem of near-total ignorance of access to justice issues by the electorate, which I describe here.

The majority, at least, ends up in the right place, more or less, although its reasons leave a lot to be desired from a theoretical standpoint and fail to answer many important practical questions. Justice Rothstein makes some important points in criticizing them, but his critique ultimately fails.

For Sale, at the Right Price

This morning, the Supreme Court of Canada has released its judgment in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, the B.C. hearing fees case. A five-judge majority led by the Chief Justice holds that although a province can, in principle, impose some form of fees for access to courts, the fees British Columbia levied on litigants who set their cases down for trial in the province’s courts, escalating to 800$ per day starting on the 10th day of a trial, are an unconstitutional interference with the core jurisdiction of superior courts protected by s. 96 of the Constitution Act, 1867 as interpreted in light of the Rule of Law principle. Justice Cromwell, concurring in the result, would have held that the rules imposing the fees are, in their present form, not authorized by their enabling legislation, and thus invalid. Justice Rothstein, dissenting furiously , would have found that the fees are constitutional. In this post, I will summarize the majority decision and the dissent (setting aside Justice Cromwell’s concurrence). I will comment in a separate post.

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The Chief Justice holds that, as a general matter, provinces are allowed to impose hearing fees, as well as fees of other sorts, on people who go to court, pursuant to their power under subs. 92(14) of the Constitution Act, 1867, to “make Laws in relation to … [t]he Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of the Provincial Courts.” While there is a right of access to courts, its exercise can be subject to conditions. Fees “may be used to defray some of the cost of administering the justice system, to encourage the efficient use of court resources, and to discourage frivolous or inappropriate use of the courts” (par. 21). The Chief Justice rejects the distinction that the appellants and some interveners defended at oral argument between hearing fees and fees of other kinds (such as filing fees) which courts in every province levy. The real issue, for her, is not “the type of the fee,” but whether the effect of its imposition is “to deny certain people access to the courts” (par. 22).

According to the Chief Justice, that consequence, a denial of access to courts, is prohibited by s. 96 of the Constitution Act, 1867 which acts as a limit on the province’s power over the administration of justice. On its face, s. 96 merely provides that the federal government is responsible or appointing the judges of superior courts. But it has long been held to imply the existence of an irreducible core of jurisdiction in these courts as well, which the provinces (or Parliament) cannot take away from them. The Chief Justice holds (par. 32) that hearing fees can have that effect:

The historic task of the superior courts is to resolve disputes between individuals and decide questions of private and public law. Measures that prevent people from coming to the courts to have those issues resolved are at odds with this basic judicial function.  The resolution of these disputes and resulting determination of issues of private and public law, viewed in the institutional context of the Canadian justice system, are central to what the superior courts do. Indeed, it is their very book of business.

Thus hearing fees (or, presumably, any other court fees), cannot constitutionally “deny people the right to have their disputes resolved in the superior courts” (par. 36).

For the Chief Justice, “this suffices to resolve the fundamental issue of principle in this appeal” (par. 38). Nonetheless, she also explains at some length that her conclusion is also supported by the constitutional principle of the Rule of Law. The Rule of Law requires that people be able access courts, which in the Canadian constitutional framework means first and foremost superior courts. The Chief Justice argues (par. 40) that

[i]n the context of legislation which effectively denies people the right to take their cases to court, concerns about the maintenance of the rule of law are not abstract or theoretical. If people cannot challenge government actions in court, individuals cannot hold the state to account ― the government will be, or be seen to be, above the law.  If people cannot bring legitimate issues to court, the creation and maintenance of positive laws will be hampered, as laws will not be given effect.  And the balance between the state’s power to make and enforce laws and the courts’ responsibility to rule on citizen challenges to them may be skewed.

The Chief Justice concludes (par. 42) that

[t]he right of the province to impose hearing fees is limited by constitutional constraints.  In defining those constraints, the Court does not impermissibly venture into territory that is the exclusive turf of the legislature.  Rather, the Court is ensuring that the Constitution is respected.

Any fees for access to courts, the Chief Justice says, cannot “cause undue hardship to the litigant” (par. 45) ― that is, they cannot “require[] litigants … to sacrifice reasonable expenses in order to bring a claim” (par. 46). If hearing fees are imposed, they “must” (par. 48)

be coupled with an exemption that allows judges to waive the fees for people who cannot, by reason of their financial situation, bring non-frivolous or non-vexatious litigation to court.

The BC hearing fees regime, the Chief Justice holds, does not pass this test. It provides an exemption from fees for litigants who are “impoverished,” but the economic evidence is that the fees are so high that even those who would not ordinarily cannot be called poor cannot really afford them. It will not do to simply read the word “impoverished” broadly enough to cover middle-class litigants unable “to pay a fee that amounts to a month’s net salary” (par. 59). Requiring litigants to apply for the “impoverishment” exemption is also problematic because it may be “an affront to dignity and imposes a significant burden on the potential litigant of adducing proof of impoverishment” , a burden that will be worse in less “clear cases of impoverishment” (par. 60). Furthermore, the current escalating fees regime does not really promote efficient litigation. It penalizes those whose trials are long, not necessarily those whose trials are inefficient, and requires payment from a party who may not even have the control over the trial’s length, a problem which the possibility of an eventual compensation by way of an award of costs does not really address.

The Chief Justice considers the possibility of broadening the exemption for “impoverished” litigants by reading in the the terms “in need,” as the Court of Appeal had done, but rejects it. It is not clear, in her view, that the provincial legislature or government would have taken that approach, nor is it clear that even the broader exemption would be sufficient. The Chief Justice decides “to declare the hearing fee scheme as it stands unconstitutional and leave it to the legislature or the Lieutenant Governor in Council to enact new provisions, should they choose to do so” (par. 68).

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To Justice Rothstein, this is a usurpation (though he is too polite to use this word) of the “territory that is quintessentially that of the legislature” (par. 82). In his view, “there is no express constitutional right to access the civil courts without hearing fees” (par. 81), and absent a violation of such a clear constitutional right, courts ought to stay away from policy disagreements ― including, in this case, a policy disagreement about who should pay for the judicial system, and how. For Justice Rothstein, the conclusion that s. 92(14) of the Constitution Act, 1867, authorizes the imposition of hearing fees should be the end of the matter. He “take[s] exception to the majority striking down the British Columbia hearing fee scheme on a novel reading of s. 96 and the rule of law” (par. 85); “free (or at least affordable) access to courts is a laudable goal” (par. 86), but one for the political branches of government to realize as they see fit.

In Justice Rothstein’s view, the hearing fees do not trench on the superior courts’ core jurisdiction; limits on access are not the same thing as removals of jurisdiction. “The hearing fees,” he concludes, “are a financing mechanism and do not go to the very existence of the court as a judicial body or limit the types of powers it may exercise” (par. 90). Justice Rothstein faults the majority for not applying the existing test to determine whether the core jurisdiction of s. 96 courts is infringed, effectively accusing it of abandoning the law because it does not support its preferred conclusions.

Justice Rothstein is similarly unimpressed with the majority’s invocation of the underlying principle of the Rule of Law. Underlying principles might serve to fill “gaps” in the constitutional text, but there is no gap here. The constitutional text, which includes specific rights of access to courts in Charter and criminal cases, but not in other situations, must remain supreme. “In using an unwritten principle to support expanding the ambit of s. 96 to such an extent,” Justice Rothstein says, “the majority subverts the structure of the Constitution and jeopardizes the primacy of the written text” (par. 93). Moreover, the right of access derived from s. 96 is “absolute” and not subject to the limitations and derogations which apply even to “fundamental” rights under the Charter. Justice Rothstein also points out that in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 47, the Supreme Court had suggested that the Rule of Law cannot serve to strike down legislation on the basis of “its content.” To do so is to undermine both the power of the democratically elected legislatures and the certainty of the written constitution provisions.

Besides, Justice Rothstein argues, the hearing fees do not really have the unfortunate effects which the majority attributes to the. The exemption for “impoverished” litigants can apply “where the hearing fees themselves would be a source of impoverishment” (par. 107). Cost awards can offset some the impact of the hearing fees. And courts themselves have a responsibility to keep trials short, thus reducing the amount of hearing fees due. Long (and thus costly) trials are exceptional, and should be even more so, something the fees can help achieve. Finally, Justice Rothstein points to the inconsistency of the majority’s saying both that judges must have discretion to waive any hearing fees and that the process of applying for such an exemption may be a burden and an affront to the dignity of the litigants.

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Justice McEwen at first instance, argued that “some things,” including access to civil courts, “are not for sale.” The Court of Appeal in effect held that selling access to courts is fine so long as it is given away for free to those “in need.” For its part, the majority of the Supreme Court seems to have some misgivings about the sale of access, but concludes that it is tolerable provided that the price is not too high. But its decision leaves some important questions unanswered, as I will argue in my next post. It also rests on shaky foundations, which Justice Rothstein’s dissent exposes. Yet Justice Rothstein’s own arguments are even less persuasive than the majority’s. This is, on the whole, a very unsatisfying case.

Shifting the Culture of Rationing

As Justice Karakatsanis observed in the opening paragraph of her reasons (for the unanimous Supreme Court) in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87  “[t]rials have become increasingly expensive and protracted.” For the Supreme Court, the length and expense of trials is an access to justice problem. But (at least some) provincial governments, notably that of British Columbia, see it primarily as a budgetary problem, in that court time is a demand on the public purse ― it requires the presence of judges, court officers and other employees, the operation of buildings, etc. Accordingly, the BC government has chosen to ration court time by requiring parties who set their cases down for trial to pay escalating “hearing fees” which increase sharply if their trials get longer. The Supreme Court is now considering constitutionality of these fees, in a case about which I have written quite extensively.

A decision of Ontario’s Superior Court of Justice, Bosworth v. Coleman, 2014 ONSC 4832, delivered last month but recently highlighted by Allan Rouben, is interesting because it might help us see some of the issues the hearing fees litigation raises from a somewhat different perspective. To borrow Mr. Rouben’s description of the case, it was

a motion to enforce an agreement between the parties to limit the length of [a] trial to ten days, in exchange for the plaintiff agreeing to cap the damages. In Toronto, trials of ten days or more are placed on a long trial list and this can result in a much longer wait time for a scheduled trial. When the defendant appointed new counsel who considered the trial would take more than fifteen days, the proper management of the trial came back before the Court.

Justice Myers’ response (paras. 12-15; emphasis in the original) is worth quoting at length:

Before me, the defendants’ counsel submitted his honestly held professional view, as an officer of the court, that the trial would take more than 10 days to complete.  While I accept this view, I reject the premise underlying it.  That is, the trial will likely take more than 10 days if it proceeds in the ordinary manner in which the civil trial bar is used to proceeding.

[I]t is no longer appropriate to rest upon the historic way of doing things.  Doing things as we have always done them has created a crisis of access to justice (or inaccessibility of justice).  The Supreme Court of Canada recognized the challenge of ensuring access to civil justice in Canada … In Hryniak … at para. 1, Karakatsanis J. said that the system as we know it is broken:

Trials have become increasingly expensive and protracted.  Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.  Without an effective and accessible means of enforcing rights, the rule of law is threatened.  Without public adjudication of civil cases, the development of the common law is stunted.

In this case, it is not the court that has sought to improve the accessibility to justice for the parties.  Rather, the parties did so themselves [by agreeing to limit the length of their trial]. …

As submitted by [the plaintiffs’ lawyer], the effect of the agreement was to take the delay, expense and distress of a long trial off the table. The issue is not whether the defendants’ counsel thinks that the trial, if conducted in a particular way, would take longer than 10 days.  Rather, the question is: can justice be achieved for the parties in a timely, affordable and efficient manner through cooperation by counsel and with assistance from the court?

In Hryniak, Justice Karakatsanis spoke of a “culture shift” that is necessary in order to make civil justice ― including the resolution of civil disputes by judges ― accessible to ordinary Canadians. Justice Myers’ opinion in Bosworth, says Mr. Rouben, is an illustration of what this culture shift will look like. It will take some effort from everybody. As Justice Myers explains (para. 21),

Improving access to the civil justice system requires all users of the system (litigants, counsel, judges and administrators) to focus on ensuring that the system provides fair and just processes short of the unaffordable, painstaking trial of yester-year.

Lawyers need to work harder, because “[i]t may take more work for counsel to prepare a short examination” than to just “raise every possible issue and ask every possible question” (para. 22). In addition (para. 23, footnote omitted),

it is very much the role of the court and the clients to promote access to justice by working with counsel to make trials shorter, run more efficiently, and thereby more affordable, timely and proportionate. For their part, judges will have to be prepared to increase their involvement and time commitment to assist the parties and counsel in case management.  This will require appropriate administrative support as was also recognized by Karakatsanis J. in Hryniak.

In short (para. 24, emphasis added),

the court should strain to assist parties with defining processes that make the civil justice system affordable and accessible for themselves as long as the result is consistent with the fair and just resolution of the dispute on the merits.

The reason I am quoting Justice Myers at such length is that his decision, even as it tends to the same end as the BC hearing fees ― a shortening of trials ― represents a very different vision of how to achieve it. Its driving concern is not convenience for the government, but access to justice for the parties. It works not by making the resolution of disputes by courts even less accessible, but by trying to reduce the inaccessibility; not by threatening the parties but by helping them. And it is more flexible than the hearing fees approach, because it recognizes that cases are not all alike, and that in some, a “fair and just resolution of the dispute” will require a lot of time despite the parties’ and the court’s best efforts. As the Supreme Court decides what to do about hearing fees, I hope that it takes note of Justice Myers’ thoughtful opinion.

I do have one concern about it though. What worries me is that the “culture shift” espoused by Justice Myers might make the already difficult position of self-represented litigants even worse. Such litigants will have an especially hard time focusing on the legally important issues and evidence. This is most obviously because they have a limited understanding of the law (both the substantive law and the law of evidence), but also because they necessarily lack the detachment between the personal story and the legal case that is, as Scott Greenfield explains in a wonderful post at his Simple Justice blog, crucial to “thinking like a lawyer” ― and to being an effective advocate. For self-represented litigants, the temptation to just throw the kitchen sink is thus especially strong. (Indeed, the case that gave rise to the BC hearing fees challenge, Vilardell v. Dunham, 2012 BCSC 748, involved a self-represented defendant. As Justice McEwan noted (paras. 19-20), it was a ten-day trial “largely a result of the thorough approach the defendant took to the case,” even though “[c]ompetent counsel might have cut the time in half, because counsel generally know how much evidence is enough.”) Steering self-represented litigants towards shorter trials thus risks imperilling their already limited ability to obtain a “fair and just resolution of the dispute on the merits.” Of course, this problem also arises, and is even worse, under the hearing fees approach. But, especially if they are going to be actively intervening in case management to shorten trials, courts need to be aware of it.