Here Be No Dragons

Andrew Coyne, with whom I am often inclined to agree, has written an angry column arguing that the current Supreme Court is “the most liberal-activist … in our history.” Mr. Coyne claims the Court’s decisions in l’Affaire Nadon, the Senate Reference, the collective-bargaining and right to strike cases, and above all Carter, the assisted suicide case, show that it has broken free of any constraints imposed by the constitution’s “written text, the historical record, precedent, [or] logical consistency.” Readers will remember that I have been sharply critical of the Court’s decisions in l’Affaire Nadon and in the labour rights cases (here and here), and that I have expressed some doubts about the reasoning both the Senate Reference and in Carter. And yet the charge of activism does not move me.

Judicial activism, I wrote a while ago, is “something like the dragon of constitutional theory. It doesn’t exist, although its distinct kinds nonexist in entirely different ways.” The trouble is that there are too many definitions of what judicial activism is floating around for the concept to be very useful. Too often, it is used as a mere rhetorical bludgeon, a pejorative label intended to reject any interference by courts with policies enacted by legislators, or even simply to dismiss a decision one disagrees with.

Mr. Coyne is too sophisticated to indulge in such simplistic tactics. He proposes what might seem like a plausible definition of activism:

What makes a decision “activist” … is not merely that it results in this or that law “passed by a democratic Parliament” being overturned, but whether it does so in accordance with Parliament’s own previously expressed wishes: that is, whether the grounds for the decision can in fact be found in a sensible reading of the Constitution, or whether the court made it up. Even allowing for some difference of opinion over what is reasonable, it is clear that not every such reading can be defended, as it is sometimes  clear that no reading was even tried.

I don’t suppose that this is deliberate, but it sounds not unlike the Supreme Court’s definition of reasonableness in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190:

reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [47]

An activist decision, we might say, is not a merely mistaken, but an unreasonable one. But as students of administrative law will know, this is not always a straightforwards standard to apply. Reasonable people can disagree about what is unreasonable. And so it is with the Supreme Court’s decisions about which Mr. Coyne complains.

Let me begin with those that trouble me less than Mr. Coyne.

The Senate Reference has its flaws. I have myself argued that the notion of “constitutional architecture” on which the Supreme Court rests its decision is obscure at best, and will need to be developed in subsequent cases if it is to become a working part of our constitutional law. But it is, in my view, hard to deny that the Court’s decision fits perfectly a line of cases going back to the original reference Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54, and the Patriation Reference, which have consistently prevented both Parliament and the provinces from making important changes to the constitution unilaterally. Although its connection to written text is sometimes tenuous ― not least, in my view, because the text itself proved woefully inadequate to the task of guiding the Court (and the politicians to whom it is, in the first instance, addressed), the Senate Reference is not divorced from logic or precedent. Quite the contrary.

As for Carter, I have suggested that the way in which the Court presented its decision, justifying it largely by deference to the trial judge’s factual findings which it barely explained in its own opinion, is insufficiently transparent. It is an attempt to lead from behind the trial judge’s back, and this tactic is bound, in the long run, to undermine the trust people are willing to place in the Court. Yet the Supreme Court used the same approach in the prostitution case, Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, which Mr. Coyne specifically holds up as an example of justified exercise of judicial power to invalidate legislation. His concerns with Carter lie elsewhere. He is annoyed that the decision “finds a right to death in a section of the constitution devoted to the right to life.” But that provision is also devoted to a right to the security of the person, understood, pretty uncontroversially it seems to me, as a right not to be subjected to unnecessary physical or psychological suffering ― and there was compelling evidence that this was the effect of the assisted-suicide ban. And as for the fact that the Supreme Court reversed its own earlier decision upholding that ban, pace Mr. Coyne, it is true that we now know a great deal more about how an assisted-suicide regime might work than we knew 20 years ago. The Court may not have explained itself nearly well enough, but it didn’t make this up either.

I turn now to the decisions my assessment of which is closer to Mr. Coyne’s. Indeed, regarding l’Affaire Nadon, I know that he agrees with my criticism of the Supreme Court’s decision, since he said as much on Twitter. In my opinion, unlike the Senate Reference or Carter, that decision is unambiguously bad. It is poorly argued and will have (indeed, it is already having) unfortunate consequences. But is it really unreasonable, an indefensible decision for all that? Well, Michael Plaxton and Carissima Mathen had made a strong argument for it (which I critique here). The statute which the Supreme Court had to interpret was ambiguous, and the purposes behind it less than fully clear. The Court’s reading of the statute was wrong and pernicious. But as much as I disagree with it, I cannot bring myself to consider it as entirely divorced from the materials the Court had to work with, or absurd.

As for the collective-bargaining and right to strike cases, Omar Ha-Redeye has argued (here and here) that they are a plausible, although in my view not an obvious, still less a desirable, evolution of the Court’s jurisprudence on the Charter’s freedom of association guarantee. Certainly there were plenty of labour law scholars who urged the outcome to which the Court came. Yes, as Mr. Coyne suggests, this outcome is divorced from economics and reality. But then there will be people who will argue that it is adverting to economics instead of only legal sources that would constitute activism. Here, I think that the Court’s decisions are utterly unreasonable from a policy standpoint. But as a matter of law? Wrong, yes. Unreasonable, indefensible? I’m not so sure.

All that to say that there is plenty to criticize about the merits of the Supreme Court’s decisions, and Mr. Coyne should by all means do so. But an argument about judicial activism, even if the concept is carefully, perhaps even sensibly, defined is unhelpful. There are no dragons in the Supreme Court’s jurisprudence. Only some questionable, and some rotten, judicial decisions.

No Room for Housing Rights

Last week, in Tanudjaja v. Canada (Attorney General), 2014 ONCA 852, the Ontario Court of Appeal upheld the striking out of an application seeking to have the federal government’s and Ontario’s affordable housing policies, or lack thereof, declared unconstitutional. According to Justice Pardu, who wrote for herself and Justice Strathy, the case, brought by a group of individuals who are either homeless or have precarious and insufficient housing and an NGO, had no reasonable chance of success, notably because it was not justiciable. Justice Feldman, dissenting, would have allowed it to proceed to a hearing on the merits.

The applicants did not attack any specific law or administrative decision of either government, but rather argued that their overall approach to the problem of affordable housing and homelessness was constitutionally defective because contrary to their rights to life, liberty, and security of the person (protected by s. 7 of the Charter) and equality rights (protected by s. 15). They did list a number of policies which in their view particularly contributed to the problems they sought to address, notably the insufficiency of the funding devoted to a number of social assistance programmes. As for the remedies they sought, these ranged from a (seemingly purely symbolic) declaration that “Canada and Ontario have failed to effectively address the problems of homelessness and inadequate housing,” to declarations to the effect that Canada and Ontario have failed to their constitutional duties “to implement effective national and provincial strategies to reduce and eventually eliminate homelessness and inadequate housing,” to an order that they, “in consultation with affected groups,” implement such strategies, under the supervision of the Superior Court.

The issues raised by the applicants, said Justice Pardu, are simply not the sort that courts can entertain: neither the applicants’ claims of rights-infringement nor the remedies they ask for can be effectively dealt with in a judicial setting. Courts can rule on the constitutionality of specific laws, “but a comparison between the legislative means and purpose, is impossible in this case,” [28] whether for the purposes of s. 7 of the Charter or of s. 1. Besides,

there is no judicially discoverable and manageable standard for assessing in general whether housing policy is adequate or whether insufficient priority has been given in general to the needs of the homeless. This is not a question that can be resolved by application of law, but rather it engages the accountability of the legislatures. Issues of broad economic policy and priorities are unsuited to judicial review. Here the court is not asked to engage in a “court-like” function but rather to embark on a course more resembling a public inquiry into the adequacy of housing policy. [33]

On the remedies side,

a bare declaration that a government was required to develop a housing policy … would be so devoid of content as to be effectively meaningless [while].[t]o embark, as asked, on judicial supervision of the adequacy of housing policy developed by Canada and Ontario takes the court well beyond the limits of its institutional capacity. [34]

As a result, Justice Pardu said, regardless of the extent of the specific Charter rights invoked by the applicants, “[t]he application here is demonstrably unsuitable for adjudication,” [36] and was rightly struck.

Justice Feldman, dissenting, was not so convinced. She stressed that

The novelty of the claim alone is not a reason to strike the claim. … The purpose of a motion to strike is to weed out, at an early stage, claims that have no reasonable chance of success, either because the legal issue raised has been conclusively decided against the claim or because the facts, taken at their highest, cannot support the claim. The motion to strike should not be used, however, as a tool to frustrate potential developments in the law. [49]

After discussing in some detail the possibility that ss. 7 and 15 of the Charter might be interpreted as the applicants say they ought to be, Justice Feldman says that the justiciability of positive rights claims has not yet been clearly rejected by the courts. ” As a result,” she says, “courts should be extremely cautious before foreclosing any enforcement of these rights.” [81] The fact that the application here does not aim at any specific law could give rise to “a number of procedural as well as conceptual difficulties,” but that does not necessarily prevent it from being justiciable. The “application asks the court to view Charter claims through a different procedural lens. That novelty is not a reason to strike it out.” [84] As for the remedies, they could, if necessary, be confined to declaratory relief.

For my part, I think that the majority is probably right here. As Justice Pardu says, there is no standard against which to measure the governments’ alleged failings. It is easy to say that not enough money is being allocated to solve the problems of housing affordability and homelessness ― but can the full solution of a social problem really be a moral, never mind a legal, standard by which to judge government action (or inaction)? Indeed, it is not clear that a full solution would exist even with unlimited funding. And if a partial solution, or movement towards a solution, are sufficient, as the relief sought by the applicants suggests, then how is a court supposed to decide what is satisfactory?

Justice Pardu is also right that the remedies the applicants seek will be either empty words or well beyond the capacity of a court to implement. Justice Feldman’s invocation of Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44 as an example of a case where declaratory relief for a violation of the Charter was appropriate is ironically revealing. The Supreme Court’s declaration that Mr. Khadr’s rights had been infringed led to no meaningful action on the government’s part.

I share one concern with Justice Feldman, however. I believe that the claims in this case are not justiciable, but I’m not convinced that they are obviously, unarguably so. Is it impossible that a court will find them justiciable? Perhaps, but I’m not sure. If this were a ruling on the merits of the application, I would have no doubt that the majority is correct. But on a motion to strike, the issue is not whether the applicants’ claims are well founded, or even reasonably likely to be well-founded, but only whether there is any chance that they will succeed. So I’m not sure that, weak as they are, they do not meet this very low threshold.

The trouble is that, as best I can tell, there is no way to adjudicate the merits of the justiciability issue on a Charter application without having a full hearing on the merits of the application itself. So the court might be simply treating the motion to strike as an opportunity to rule on the merits of the justiciability issue, so as to avoid what it thinks is an unnecessary full hearing. And I agree that a full hearing is not necessary here. No amount of evidence of the inadequacy of the governments’ housing policies, were it to be introduced, could change the fact that a court of law is not the proper place to debate this evidence. Still, treating a motion to strike as in effect a preliminary merits hearing is not legally right.

These qualms aside, there are good reasons for the courts to refuse to adjudicate, if not any and all social and economic rights claims, then at least out of vast campaigns intended to reshape entire areas of government policy. There is the issue of competing priorities ― if not all claims on public support can be satisfied, which ones should be favoured? It’s not obvious, to say the least, that the answer to that question ought to be “those who got adjudicated first.” There is the issue of legitimacy of unelected judges having to order Parliament and legislatures to increase taxes. Charles I lost his head for trying to raise taxes without Parliamentary approval, and George III lost an empire for insisting that he had the right to tax without consent. It is, again, not obvious that judges would fare any better. There is the issue of federalism. Generally speaking, housing and homelessness are not the federal government’s responsibility (except on reserves). The federal government chooses to help the provinces discharge many of their constitutional responsibilities, and the provinces accept the money (and ask for more), but how a court could assign responsibilities between the two level of government ― something that takes sometimes difficult political negotiations ― is really beyond me. There is, finally, the issue of the law’s inherent conservatism. If a court decides that social programme X is constitutionally required, then programme X cannot be got rid of even to be replaced by a more effective but differently organized programme. If the courts decide that the Charter requires governments to build social housing, then governments cannot subsequently decide to spend that money, say, on vouchers that allow people to get their own places, even if, say, the experience of other countries shows that this leads to better outcomes for the people concerned. At best, the government would have to turn to the courts and demonstrate  that its proposed programme would be enough to discharge its constitutional obligations. But it could not really demonstrate this ― it would have to speculate, and it’s not clear that a court ought to be convinced by such speculation.

Canadian courts, unlike the powerless talking shops that generate international human rights by the hundred while knowing full well that there is no prospect of most these “rights” ever being implemented, wield considerable power, because they know that their decisions will be obeyed and enforced. They know that with great power comes great responsibility, and do not exercise it lightly. They also know that a power that overextends itself and disregards the people from whom it comes and for whom it is supposed to be exercised will not last long.

Raising Issues

Normally, a common law court decides a case brought before it on the issues raised by the parties. But sometimes it can ― and occasionally even has to ― raise an issue on its own. When it can do so, and how it must go about doing this are the main topics discussed in R. v. Mian, 2014 SCC 54, which the Supreme Court decided last week.

The case was an appeal from a decision on a voir dire to exclude incriminating evidence because it took the police more than 20 minutes to inform Mr. Mian of the reason for his arrest, and still longer for them to inform him of his rights. The Alberta Court of Appeal, however, was concerned about a question which the defence lawyer asked one of the police officers involved during cross-examination. The Crown hadn’t objected to the question at the time, and didn’t raise the matter in its submissions on appeal, but the Court of Appeal invited the parties to make written submissions on the matter and asked them to address it at the hearing, eventually allowing the appeal on the basis that the judge of first instance had failed to recognize the question’s impermissibility and that it influenced his reasoning. And so the main question for the Supreme Court was whether the Court of Appeal was right to raise this issue on its own.

As a general matter, says Justice Rothstein, writing for the unanimous Court, appellate courts may raise new issues. But it is a power they must exercise sparingly.

First though, it is important to understand what does and what doesn’t count as a new issue. Justice Rothstein explains (at par. 30) that

[a]n issue is new when it raises a new basis for potentially finding error in the decision under appeal beyond the grounds of appeal as framed by the parties. Genuinely new issues are legally and factually distinct from the grounds of appeal raised by the parties … and cannot reasonably be said to stem from the issues as framed by the parties.

However, questions asked at oral argument do not necessarily raise new issues, whether they address “components of the grounds of appeal put forward by the parties,” including by probing them in greater detail and by raising sub-issues, “or … go outside of those grounds in an aim to understand the context, statutory background or larger implications,” which “may be necessary for the court to gain a more complete understanding of the issues at hand” (par. 32). A further category of issues that will not be considered as “new” are those “that form the backdrop of appellate litigation, such as jurisdiction, whether a given error requires a remedy and what the appropriate remedy is the standard of review” (par. 34). The idea here seems to be that since such issues can arise on any appeal, “parties should not require notice to address them” (par. 34).

If it identifies a “new” issue, an appellate court must decide whether to raise it for the parties. The two competing considerations here are the integrity of an adversarial system that lets the parties make their own cases and, crucially for Justice Rothstein, thereby allows “judicial decision-makers remain independent and impartial and are seen to remain independent and impartial” (par. 39), and the need to actually do justice under the law, which sometimes requires intervening into the adversarial debate. Balancing these considerations, Justice Rothstein concludes that an appellate court may raise a new issue only if failing to do so will risk an injustice, and only if it can do so without appearing biased. He explains that “[o]f essence here is that courts cannot be seen to go in search of a wrong to right” (par. 42).

Failing to raise an issue will risk an injustice when “there is good reason to believe that the result would realistically have differed had the error not been made” (par. 45). But, Justice Rothstein cautions, there will not often be good reason to think so. While this can happen more frequently when one of the litigants is self-represented, “[i]t will only be in rare cases that counsel on both sides will have failed to identify an issue that would realistically have affected the result” (par. 48). In addition, the appellate court must be sure of having the jurisdiction to consider the issue, of having a sufficient factual record on the basis of which to do so, and of being able to avoid imposing a “procedural prejudice” (par. 52) on one of the parties.

To avoid procedural injustice, an appellate court “must make the parties aware that it has discerned a potential issue and ensure that they are sufficiently informed so they may prepare and respond” (par. 54), whether the response is written, oral, or both. At all times, “natural justice and the rule of audi alteram partem will have to be preserved” (par. 59). And, while courts should be careful to avoid giving the impression, in the notice they give to the parties, of having prejudged the issue, it is not necessary, save in rare cases, for a judge or panel who raised a new issue to recuse themselves.

Practically, this is all logical, sensible stuff, although I think there is some tension between Justice Rothstein’s suggestion that an appellate court may intervene in the adversarial process when it sees a risk of error that affects the outcome, and his claim that such cases will be very rare. Is the claim really right? Is it the case that lawyers will seldom miss material issues? I hope that this is indeed so.

On a theoretical level though, I wonder whether Justice Rothstein is right that the reason why courts should be reluctant to raise new issues is the danger of appearing biased. That’s surely a part of it. But I would have thought that no less, and perhaps more, important is the need to limit judicial power. As Fabien Gélinas argues in this fascinating paper, various rules that prevent courts from considering issues ― such as the rules on standing, ripeness/mootness, and justiciability ― all serve to circumscribe the courts’ power, justifying the well-known description of the judiciary as the “least dangerous branch” of government. I thought that the presumption against raising new issues serves the same purpose. Justice Rothstein suggests otherwise.

Be that as it may, he goes on to find that in this case, there was no need to raise the issue of the impermissible cross-examination question. It was not as significant as the Court of Appeal made it out to be, and Crown lawyers clearly did not think it was. The Court of Appeal should not have second-guessed them.