What Do You Want?

A proposal for an expanded (and entrenched) statutory bill of rights is confused and misguided

In an op-ed in the Globe and Mail, Patrick Visintini and Mark Dance make the case for a new legislative bill of rights, to supplement the guarantees of the Canadian Charter of Rights and Freedoms. They argue that “a dusted-off” and much-expanded version of the Canadian Bill of Rights would produce a variety of benefits, at once empowering legislators and securing the neglected rights of the citizens. Yet these ambitious objectives are contradictory, and the argument rests on a confused, if all too common, vision of the constitution.

Messrs. Visintini and Dance lament the popular conception of members of Parliament as “nobodies”. If I understand them correctly, they are also none too pleased with the fact that, unlike in the process that led to the enactment of the Charter, “[c]ritical debates about rights in Canada have been largely left to lawyers and judges, expanding rights through constitutional interpretation rather than amendment”. A legislative update to the Bill of Rights “could reverse both these trends”, ensuring that legislators once again contribute to the protection of rights, overcome the pressures of ” electoral interests and ironclad party control” and “hold[] themselves and the federal government to account for future law-making and administrative action”.

This Bill of Rights 2.0 (my cliché; don’t blame Messrs. Visintini and Dance) would have further benefits too. It “would enhance the public’s ability to understand, track and organize to defend their rights”. It could be the vehicle for enshrining in law “now-pertinent rights [that] never made it into the Charter: environmental rights, victims [sic] rights, housing rights and the rights of Indigenous peoples to self-determination and self-government”. And it could

serve as a shield against judicial reactionaries. While we enjoy a relatively state-of-the-art constitution and a Supreme Court that understands those laws as a “living tree,” we may not always be so lucky. We cannot assume that we will always be immune to the American affliction of constitutional originalism, petrifying our living Constitution where it stands or even shrinking it to fit in the “ordinary meaning” that it would have had in 1982.

Messrs. Visintini and Dance also propose “[r]equiring a two-thirds majority in both Houses of Parliament to add to or amend the new Bill of Rights”. In their view, this “would practically guarantee that cross-party consensus and collaboration would be needed” to effect such changes. They are not quite clear on whether they envision their proposed bill of rights being enacted by such a majority in the first place, although they refer appreciatively to the cross-party collaboration in the run-up to the enactment of the Charter.

More democracy! Less partisanship! More rights! Less Parliamentary abdication! More living constitutionalism! Less non-consensual tinkering with rights! If it all sounds too good to be true… that’s because it is. You can’t have all these things at once. What Messrs. Visintini and Dance are proposing is to empower Parliament, but just this once, for a grand act of abdication that will put a new plethora of rights beyond the reach of ordinary legislation, and empower the courts whose takeover by “reactionaries” they seem to fear. This makes no sense.

The point of a quasi-constitutional, or a fortiori constitutional, legislation protecting rights is to take them off the political agenda to some non-negligible extent and involve the courts in their enforcement. (Given their preference for immunizing their bill of rights from amendment by ordinary law, it is arguably a constitutional rather than a quasi-constitutional instrument that Messrs. Visintini and Dance are proposing.) Normally, one advocates enacting such laws because one thinks that the political process is not especially trustworthy, if not generally then at least with respect to the particular issues covered by one’s proposal. Of course, it may be that the political process will function well enough for the specific purpose of enacting rights-protecting legislation. Perhaps this was the case with the Charter, though looking beyond the Special Joint Committee on the Constitution one might argue that politicians did a lot of damage too, removing property rights protections and introducing the “notwithstanding clause”. Be that as it may, it is odd to expect any lasting empowerment of legislators to result from the enactment of a law whose raison d’être is to curtail their power.

Conversely, if one has sufficient confidence in the ability of legislators to deal with rights issues on an ongoing basis, or even if one simply has faith (a naïve faith, as I have argued here) that keeping legislators in control of constitutional issues will force them to take these issues seriously, the enactment of (quasi-)constitutional laws empowering the courts to set aside legislative decisions is counterproductive. One could still advocate for a legislated bill of rights in the New Zealand style, one that does not allow the courts to refuse to apply inconsistent statutes at serves, at most, to alert Parliament to the possible existence of a rights issue. One might, just, support the Canadian Bill of Rights, which allows a Parliamentary majority to override a judicial decision declaring a statute inoperative due to inconsistency with rights. But one would not demand that this law be protected from amendment by the ordinary legislative process.

Besides, if one professes confidence in the legislators’ ability to come up with a good bill of rights, as Messrs. Visintini and Dance do, one should not in the same breath demand that courts re-write those legislators’ work product. If the Special Joint Committee did good work, then what’s wrong with a constitution that has the meaning its members chose to give it? If they really want reverse the trend of judicial interpretations displacing the good work done by Members of Parliament in 1981-82, then Messrs. Visintini and Dance should be demanding originalist judges, not denouncing these (mostly hypothetical) creatures as suffering from an “American affliction”.

It’s not that I am opposed to expanding constitutional protections for rights, though my preferences would be quite different from those of Messrs. Visintini and Dance. Property rights, freedom of contract, and due process in the administration of civil and administrative justice would be my wish-list. I would also want any such expansion to follow proper procedures for constitutional amendment; it is far from clear that the entrenched bill of rights proposed by Messrs. Visintini and Dance can be enacted consistently with Part V of the Constitution Act, 1982. But one should be clear about what the point of such a change to our present constitutional arrangements would be. It would serve the cause not of legislative empowerment, or even accountability, but that of counter-majoritarian individual liberty.

And if one would rather serve those other causes, which have something to be said for them, there is plenty that one can campaign for. Improved legislative procedures are one area for reform: fewer omnibus bills, less delegation of broad law-making authority to the executive, more free votes perhaps. Many governments are elected promising to do some of these things at least. Few, if any, follow through. As an election is coming up, there is plenty of room for worthy, if perhaps quixotic, advocacy here. One could also demand more effective control over the administrative state. Again, less delegation of power to bureaucrats, but also more effective parliamentary scrutiny of the exercise of that power which has been delegated, as well as reform of the law of judicial review of administrative action. In particular, Parliament could, and should, repeal privative clauses, and clarify that administrative determinations of law are subject to full review on a correctness standard. One could also try to persuade the Supreme Court to finally abandon its deference to bureaucrats on constitutional issues. There is no point in creating new rights if administrators, rather than independent courts, are given the ability to determine their scope and effect.

In short, would-be promoters of democracy and accountability in Canada have plenty to do. A new bill of rights will not advance their purposes; other, less sexy but more realistic, measures might. Democracy, accountability, individual liberty, or glamour: they need to figure out what it is that they are after.

The Bill Is Due

In yesterday’s post on R. v. Cloud, 2014 QCCQ 464, I bemoaned the lack of property protections in the Canadian Charter of Rights and Freedoms, arguing that, as Cloud demonstrated, it hurt the poor rather than the well-off. However, while property rights are not mentioned in the Charter, section 1 of the Canadian Bill of Rights provides that

It is hereby recognized and declared that in Canada there have existed and shall continue to exist … the following human rights and fundamental freedoms, namely,

(a) the right of the individual to … enjoyment of property, and the right not to be deprived thereof except by due process of law;

Unlike the Charter, the Bill of Rights only applies to federal law ― which, of course, includes the Criminal Code. Can it be used to challenge the “victim surcharge” which, as I argued yesterday, is an arbitrary taking of property, often from the poorest members of society and for the benefit of those better off than them? The short answer is, almost certainly no. There is a way of arguing that it should be, but I would not expect courts seriously to entertain such an argument. And yet, they would be wrong not to.

Unlike the Charter, which helped usher in substantial changes in Canadian law within years of its coming into force, the Bill of Rights has languished in relative obscurity. The Supreme Court never made much of it, holding in R. v. Burnshine[1975] 1 SCR 693 at 702 that

[t]he Bill did not purport to define new rights and freedoms. What it did was to declare their existence in a statute, and, further, by s. 2, to protect them from infringement by any federal statute.

As cases such as Burnshine and Miller v. The Queen, [1977] 2 SCR 680, which rejected a challenge to the use of capital punishment on the basis that

[a]t the time when the Bill of Rights was enacted there did not exist and had never existed in Canada the right not to be deprived of life in the case of an individual who had been convicted of “murder punishable by death” by the duly recorded verdict of a properly instructed jury (704)

demonstrate, the courts’ approach to the Bill of Rights is strictly originalist. This is, of course, in contrast to their approach in constitutional cases, where originalism is (almost ritually) rejected and “large and liberal” interpretations prevail, and despite the Bill of Rights regularly being described a “quasi-constitutional” statute.

The most recent leading case dealing with the Bill of Rights is Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 SCR 40. The claimants in in that case argued that the federal government’s failure to pay interest on pension money it administered for them and Parliament’s enactment of a statutory provision barring any claim for such interest were a violation of, among other things, their property rights protected by the Canadian Bill of Rights. In a unanimous judgment by Justice Major, the Supreme Court held that the requirement of “due process of law” for any deprivation of property in par. 1(a) of the Canadian Bill of Rights did not include any procedural rights (such as notice and hearing) prior to the enactment of a statute or in “the non-discretionary application of a law to incontestable facts” (par. 45). More important for my purposes here, however, is the Court’s treatment of the claim that “due process of law” had a substantive dimension which included protection against expropriation without compensation. Justice Major noted the extreme reluctance of Canadian courts to recognize “substantive due process” rights arising out of the Bill of Rights; he also observed, however, that in the context of s. 7 of the Charter, which uses the terms “fundamental justice” instead of the Bill of Rights‘ “due process of law,” the Court has found that, in the proper circumstances, guarantees of process or justice may confer substantive protections” (par. 50). Reverting to an originalist analysis, Justice Major concluded that, in any case, when the Canadian Bill of Rights was enacted, “it was undisputed, as it continues to be today, that Parliament had the right to expropriate property if it made its intention clear” (par. 52).

How does this apply to the “victim surcharge”? To argue that it is contrary even to the narrow protection for property rights recognized by the Supreme Court in Authorson, one would need to show that a principle of proportionality or non-arbitrariness in the deprivation of property was part of Canadian law prior to 1960. I haven’t done any relevant research, but I suspect that it would not be an easy demonstration. Authorson does, however, leave open the possibility of reading “substantive protections” into a “guarantee of process.” It is difficult to know whether Justice Major really meant what he said. Perhaps the possibility he suggested was a purely theoretical one. I have no doubt that courts would be reluctant to give it effect. A case involving the “victim surcharge” might be the best opportunity to persuade them to do so. It might help, too, that since Authorson, important American scholarship has undermined the justification of the fear of  a new “Lochner Era” of judicial assault on legislation intended to foster social justice and called into question its purely procedural understanding of “due process of law.” Still, this would be a high hurdle to overcome.

The most radical, and least likely to succeed, argument against the compatibility of the “victim surcharge” with the Canadian Bill of Rights would involve a challenge to the Supreme Court’s entire approach to its interpretation. The originalism which limits the scope of its protection to what existed in 1960 is inconsistent with the Court’s approach not only to constitutional and quasi-constitutional laws, but even to ordinary statutes. To be sure, the Bill of Rights “recognizes and declares” that the rights it protects “have existed and shall continue to exist.” But recognizing the continued existence of a right need not entail its “freezing” at the moment of recognition. A right does not change, does not become a different or new right, just because it comes to have a novel application. When the equality rights of same-sex couples were recognized, they were the same old equality rights that had existed previously and would continue to exist thereafter, only extended to a new group of people. When the Supreme Court recognized that freedom of religion prevented Parliament from enforcing religious observance, it did not create a new liberty ― it only gave further meaning to an old one. Of course, there are limits to this reasoning, but that does not invalidate it altogether. It is probably always a safer bet to assume that the Supreme Court will not change course. But it should. 

The Canadian Bill of Rights deserves better treatment than it has received at the Supreme Court’s hands. The “victim surcharge” shows that the Bill is due ― to hold the government to account for its greed at the expense of some of the most vulnerable members of society.