Off Course

In my post on  Canada (Attorney General) v. Bedford, 2013 SCC 72, the Supreme Court’s recent decision striking down the prostitution-related provisions of the Criminal Code, I said I would have some thoughts on what this decision means for the future of Charter-based judicial review in Canada. As Churchill said, it is a dangerous thing to make predictions, especially about the future. And I have little reason to believe that I am particularly qualified for prognostication. Still, I can at least ask questions, and point out some dangers ahead on the path on which the Supreme Court seems to be headed.

I speak of dangers because elements of the Supreme Court’s approach to deciding Bedford bothered me. In a nutshell, I am very uncomfortable with the Supreme Court’s insistence on deference to the trial judge’s fact-finding, and the key role it played in the decision. Excessive reliance on and deference to first-instance fact-finding risks shifting power to people neither expected nor prepared to wield it, undermining what little accountability there is in the judicial review process, and making Charter litigation the tool of interest groups rather than of individual citizens harmed by the government.

The Supreme Court’s conclusions in Bedford that the prostitution provisions of the Criminal Code endanger sex workers, and even that they are unrelated or disproportionate to their purposes, are largely endorsements of the findings of the judge of first instance on these points. Perhaps this is inevitable given the framing of the case as being one about security of the person (as opposed, say, to liberty). But, before reaching these conclusions, the Supreme Court also commented on the approach appellate courts must generally take to findings of fact in constitutional cases. It rejected the distinction, made by the Ontario Court of Appeal, between the levels of deference due to findings of “adjudicative facts” ― that is, facts about the parties and witnesses, their actions, and their credibility ― and findings of “legislative facts” ― that is, the broader social context of the dispute, and in particular the background and effects of the legislation at issue. The Supreme Court holds that the two sorts of facts are to be treated the same: a trial judge’s findings are conclusive barring a “palpable and overriding error” (par. 48). This is both because judicial resources must be preserved, making it undesirable for appellate judges to delve into the (often voluminous) record assembled by the parties, and because the two sorts of facts are often intertwined and difficult to distinguish.

Thus, fact-finding ― including “legislative” fact-finding ― at trial is likely to define cases all the way up to the Supreme Court. Furthermore, the Bedford decision also encourages litigants to frame their cases as intensely factual. A party needs only to convince a trial judge to adopt its vision of the facts, and its success in the case may well be locked in, avoiding the risks and difficulties of convincing 12 (or 14) appellate judges.

This makes trial judges very powerful in Charter cases. Yet there is reason to question whether this empowerment is a good idea. Trial judges ― most of whom are former litigators, without any sort of systematic training that would make them suitable for assessing social science evidence from which “legislative facts” are drawn ― are not chosen in the expectation that they will exercise determinative influence on the outcome of key constitutional cases. Many trial judges are capable of undertaking this responsibility. But many, with the best will in the world, are not. Of course, this may be true of appellate judges too, although presumably more of them are chosen for their expected capacity to deal with important, challenging cases. More importantly regardless of initial qualifications, appellate judges are more likely to develop an expertise relevant for exercising such functions, because there are relatively few of them, so that each one is much more likely to come across complex constitutional cases than a trial judge, of whom there are relatively many, so that each one may face significant constitutional cases only once or twice in his or her career. Furthermore, appellate judges do not sit alone. This means that the odds that an individual judge’s error will be caught and corrected before the court’s decision is issued are higher. Shifting power in constitutional cases from appellate to trial courts may thus lead to more errors in the dispositions of such cases.

It will also make constitutional adjudication less accountable. Trial decisions, even in important constitutional cases, attract less attention than appellate ones, especially those of the Supreme Court. Even when such decisions do attract attention from the media and academic commentators, the focus is not likely to be on the assessment of the evidence. Yet under the Supreme Court’s approach in Bedford, by the time a case comes up for appeal, and eventually reaches the highest ― and most visible ― court, it may well already be effectively decided. The Supreme Court can then avoid responsibility for controversial decisions, saying that “the trial judge made us do it.” (Indeed, I wonder whether this was not the real attraction of this approach to the Supreme Court in deciding Bedford.) Call it judicial leading from behind.

The final problem with this approach that is worth mentioning is that it risks making Charter litigation the province of sophisticated interest groups, such as those that intervened in Bedford, and out of reach of ordinary litigants and their equally ordinary lawyers, such (mostly) as the people behind some of the early ground-breaking Charter cases. Assembling a record for winning a Charter case on the facts ― on legislative facts ― is long and difficult. It is also, needless to say, expensive. As Sonia Lawrence pithily puts it in her post on Bedford (which I highly recommend)

these aren’t cases that walk into your office one day.  They are cases put together piece by painstaking piece.  It’s a long road to justice this way around, folks.

The government, as the best funded and most powerful interest group of them all, is more likely to have the resources to put together a solid record than those who challenge it. The road is certain to be long, but it may well lead to nowhere.

There is a sad irony in all of this. One wonders whether, indeed one suspects that, the Supreme Court prefers to rely heavily on fact-finding ― preferably on fact-finding by others ― in order to avoid responsibility for controversial decisions, or at least, to put the point less harshly, in order to make such decisions appear more inevitable and hence less questionable and more legitimate. This strategy may succeed in the short term. The reasoning from facts in Bedford seems very solid; although it has not escaped criticism (not necessarily enlightened, or even having anything to do with the actual decision), it has not attracted the firestorm which would have been inevitable if it had been a broader ruling based on the right to liberty, the freedom to do what one pleases with one’s body. Yet if my worries about errors, lack of accountability, and access to justice are justified, in the long run, the legitimacy of Charter-based judicial review may well be undermined. The problem with leading from behind is that one has trouble seeing ahead. The Supreme Court is in serious danger of veering off course.

Difference in Deference

After the sad distraction of the repressive “Québec Values Charter” on which I spent the last week, it is time to return to my more customary business of constitutional law and theory. It will no doubt be very bad for the blog’s traffic, but very good for my mood. There is a good occasion for me to return to constitutional theory too, in the shape of this piece by Lincoln Caplan in the New Yorker. Mr. Caplan writes about the significance of what has “long been called the most important footnote in [U.S.] constitutional law” ― footnote four of the U.S. Supreme Court’s decision in United States v. Carolene Products, 304 U.S. 144 (1938).

In that footnote, Justice Stone (as he then was) articulated a theory of what might be described as modulated judicial review. In some cases ― notably those involving economic regulation ― Courts ought to defer to legislative judgment about its constitutionality. In others ― those involving rights ― judicial review should not be deferential. Justice Stone also suggested (albeit prefacing his suggestion by saying that it was “not necessary to consider [it] now,” a caveat which Mr. Caplan ignores, which does not strike me as great journalism), that “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” as well as “statutes directed at … discrete and insular minorities” might also have to be approached with less deference than would otherwise be warranted.

As Mr. Caplan explains, these suggestions have been very influential in American constitutional thought, that of judges as well as of academics. Other theories of modulated judicial review, notably that elaborated by John Hart Ely in his classic Democracy and Distrust, which argued that judicial review should serve only to ensure the good functioning of the democratic process, built on it. A distinction between issues from which the courts would stay away, leaving them entirely to be settled by the political process, and those in which they could intervene, basically because the political process could not be relied on to function properly in these limited areas, promised to reconcile the undemocratic practice of judicial review of legislation with democratic ideals ― which is about as close as constitutional theory has to a holy grail.

Now, however, argues Mr. Caplan, the theory of judicial review developed in the Carolene Products footnote four and its progeny is being abandoned:

[w]atershed rulings of the Roberts Court, in particular, run flatly counter to footnote four: the Court has struck down voluntary school-integration plans, major campaign-finance regulations, and a critical provision of the Voting Rights Act, for example, in each case undermining rather than enhancing American democracy.

And with the logic of that footnote, gone is any justification of the legitimacy of what the U.S. Supreme Court is doing.

In past posts, I have myself suggested, very tentatively, something like a modulated approach to judicial review. Here, for instance, I wrote that

[i]t is one thing for courts resist attempts by legislatures or the executive to expand their coercive powers, or when politicians distort the democratic process in order to entrench themselves in power. It is something else for courts to intervene when legislatures try to strike a balance between the interests of different groups of citizens.

I have also said that courts might do well to be more deferential to legislatures on issues that were well-debated in the legislative process, as opposed to those which were unforeseen or ignored. However, as I also suggested here, to elaborate a sophisticated and workable theory of modulated judicial review will not be easy.

Mr. Caplan’s criticism of the recent decisions of the U.S. Supreme Court illustrates some of the difficulties which such theories must face. It is very difficult to agree not only on the on the categories of issues that warrant deferential judicial review, but also on which cases fall within each such category. And, since constitutional theory is inevitably shot through with politics (as I have argued here), it is difficult to resist the temptation to fiddle with these categories in order to suit one’s political agenda.

Thus, Mr. Caplan cites the invalidation of campaign-finance regulations as evidence of the abandonment of Carolene Products footnote four, but it actually fits not one, but two categories of cases listed in that footnote: the “specific prohibition of the Constitution” on laws “abridging the freedom of speech,” and also Justice Stone’s worry about legislation restricting the democratic process. Now Mr. Caplan probably thinks, and it is certainly arguable, that the regulations recently struck down by the U.S. Supreme Court did not infringe the First Amendment or otherwise impede the political process. But that is a view as to what the ultimate outcome of judicial scrutiny of these regulations ought to have been. One should recognize, I think, that campaign-finance regulation at least has the potential for restricting freedom of speech and impeding the democratic process, so that, on Mr. Caplan’s preferred theory of modulated judicial review, courts were fully justified not to defer to legislative judgments as to its constitutionality.

Or consider the case of affirmative action. Mr. Caplan begins his article by noting that Justice Ginsburg of the U.S. Supreme Court thinks that her colleagues’ newfound willingness to scrutinize it is evidence of their abandonment of Carolene Products footnote four. Affirmative action, after all, involves a majority conceding special advantages to minorities ― nothing wrong with that on the footnote’s logic. It’s when minorities are singled out for special burdens that we should worry. But is that so? Some people disadvantaged by affirmative action are themselves members of minority groups (notably Asian-Americans), minority groups that are smaller, though less disadvantaged, than those whom affirmative action benefits. It may well be the case that it is they who have trouble making their voice heard in the political process, thus justifying stricter judicial scrutiny of that process’s output. Furthermore, considered as individuals, the few people who actually lose out as a result of affirmative action programmes (i.e. those marginal applicants who would have got into the university or programme of their choice but for affirmative action preferences) are, arguably, a minority in their own right, even though they belong to an ethnic or cultural majority group. Carolene Products footnote four might protect them, after all.

All this is not to say that the U.S. Supreme Court’s rulings on these matters are right (or wrong). U.S. Constitutional law is, generally, not my concern here. My point is simply that applying a the Carolene Products footnote four version of a modulated theory of judicial review is very difficult. Further, I’m inclined to think that that’s not because it’s a particularly bad theory, though I don’t necessarily fully agree with it either. Rather, I suspect that similar difficulties are likely to arise in applying any modulated theory of judicial review. I still think that such theories might be an attractive response to wholesale criticism of judicial review such as Jeremy Waldron’s, but producing a satisfactory one will be very hard indeed.

Nothing Like It

Law, perhaps even more than man, is a creature of habit. It thrives on the humdrum. It likes nothing better than demonstrations that one case is just like some other in all relevant respects. It is a creature of habit in a more literal sense too, in that legal rules often crystallize out of the usual practices of a community ― though as I recently pointed out, this is not always a good thing. But how does the law deal with the new, the unusual, the unprecedented? How do, and how should, judges respond when they confront situations never faced by their colleagues and predecessors? Some recent blog posts by Gerard Magliocca and Kyle Graham explore some aspects of this question.

Prof. Magliocca is interested in assertions by a court engaged in judicial review of legislation that the statute at issue is unusual, asking “whether this concern constitutes an independent theory of heightened scrutiny.” He suggests a number of reasons for why this might be the case:

One possibility … is that this a rhetorical move.  Characterizing a law as strange implies that finding it invalid will not endanger other laws.  Or it simply prepares the ground for a conclusion of unconstitutionality by undermining the authority of the law.

Another thought is that an unusual law raises questions about its motivation.  Why did the legislature pass this curiosity?  Could be because they were trying to achieve an improper goal or circumvent a constitutional obstacle.

A third possibility …  is [that] this is the modern version of the common law rule of “construing statutes in derogation of the common law narrowly.”  In effect, tradition should be given considerable weight in interpretation.

For his part, prof. Graham is interested in “the dog that didn’t bark” arguments to the effect that the absence of judicial decisions holding that x is the law means that x is not the law. He contends that such arguments aren’t persuasive, because “a precedent desert” might be due to a number of factors that have little to do with the correctness of the proposition that x is or is not the law. It might not be worth litigating the point because the remedies available are unattractive, or the cases might be settled before being resolved by courts. Indeed, however we might expect or wish otherwise,

lots of the area that lies within the boundaries of the legal “map” remains terra incognita in the sense that there exist no published opinions squarely on point. As every first-year law-firm associate learns (after having a partner utter the awful words, “I know there must be a case on point out there; find it”), even with thousands of case reporters and an ever-growing pool of impossibly deep electronic databases to draw from, there exist many commonplace fact patterns that have generated little or no published precedent.

For what little it’s worth, I inclined to agree with prof. Graham. I think, for example, that A.V. Dicey was badly mistaken when he argued that the absence of precedents in which courts enforce constitutional conventions meant that conventions were incapable of judicial enforcement and indeed not part of law at all. (I develop this point in my paper “Towards a Jurisprudence of Constitutional Conventions”, 11 Oxford University Commonwealth Law Journal 29 (2011).) At the same time, I sympathize with courts looking at “unusual” statutes with some suspicion. When, in a recent post, I have described a Saskatchewan statutory provision allowing a newly-elected government to fire members of most provincial administrative agencies as “very unusual,” it was not only a statement of fact, but, at the same time, a way of indicating wariness and disapproval.

These are only hunches though, and of course the question arises whether they are inconsistent. In other words, should we draw the same conclusions from what prof. Graham calls a “precedent desert” in statutory law as in judicial decisions? And if so, what should these conclusions be? Does the absence of judicial precedent mean something more than prof. Graham thinks, or are courts wrong to make something of the unusualness of the legislation they are reviewing? Or is the best attitude a sort of compromise that consists in a Burkean conservative attitude of treating all novelties, whether legislation or legal claims, as presumptively suspicious but not conclusively impermissible?

I haven’t thought enough, or intelligently enough, about these questions to say something very profound. The most I can venture is that beyond its sometimes useful, sometimes annoying preference for sticking to the familiar, law is concerned with its coherence (or, to use the loftier Dworkinian idea, “integrity”). It is not closed to new claims, rules, or arguments, but if it accepts them, it must integrate them, assimilate them, make them part of the system. It must, as prof. Magliocca puts it, “tam[e] exotic beasts” and domesticate them. It is probably not unnatural that courts sometimes recoil at that task ― but it does not necessarily follow that are justified in doing so.

Federalism, Democracy, Same-Sex Marriage

It’s about time I got back to blogging. (Well, it was about time about two weeks ago, but… ) And there is surely no easier way to do so, though there are probably better ones, than to jump on the U.S. Supreme Court’s same-sex marriage cases bandwagon. Especially if one can do so in a self-satisfied way.

As everybody and their dog already know, in United States v. Windsor, the Court declared unconstitutional the misnamed Defense of Marriage Act (DOMA), by which Congress refused to acknowledge the same-sex marriages legally performed or recognized pursuant to laws of States. Dissenting, Justice Scalia wrote that “[t]his case … the power of our people to govern themselves,” (p. 1 of Justice Scalia’s opinion) and that the majority’s decision disregarded and diminished this power to install its own “black-robed supremacy” (3). The many such remarks in Justice Scalia’s opinion prompted the following tweet from Jeremy Waldron:

Now this is very interesting. Prof. Waldron, after all, is a staunch, albeit, unlike Justice Scalia, polite, opponent of “black-robed supremacy” over the will of the people. Indeed, I have argued that his arguments against judicial review of legislation and Justice Scalia’s in favour of limiting judicial review to the enforcement of the original meaning of the constitution are very similar, and that, if anything, “Justice Scalia and his fellow originalists are guilty of failing to follow the logical implications of their own views about the nature of the questions that arise in judicial review. They are, I suspect, fainthearted in that way ― fainthearted Waldronians.”

But prof. Waldron’s tweet points at a complexity that is often missed in debates about democracy and judicial review ― including, unfortunately, in his own work on this subject. These debates tend to focus on rights-based judicial review ― courts deciding the extent of citizens’ rights and of the governments’ ability to limit them. Judicial review is then usually presented, both by its detractors and by its more or less enthusiastic supporters, as a clash between the people’s representatives, between democracy and “black-robed supremacy.” But not all judicial review is of that sort.

In federations, judicial review can be based not (only) on rights, but also on the distribution of powers between federal and regional legislatures. The question such cases raise is not (only) whether a legislature had the power to enact the challenged law, but which legislature (if any) had that power. Such cases are not simply clashes between the will of the people and that of judges. They involve competition between the will of the people of the nation and that of a State, province, Land, etc., arbitrated by judges. To describe such cases as being only about judicial and popular or legislative supremacy is to miss this clash of two popular wills.

As Porf. Waldron points out, Justice Scalia’s vituperations neglect the fact that DOMA was enacted to override (or, at the time, to prevent the expression of) the will state citizenries that wanted or felt bound to recognize the equal validity of same-sex marriages. It was democratically enacted by representatives of a people, to be sure, but it was also, as Prof. Waldron puts it,” a usurping insult to democracy.”

It is, then, unsurprising that federalism was a key element of the Windsor majority’s reasoning, as Rick Pildes, Ilya Somin, and Randy Barnett, among others, explain. Windsor, I think, is a great illustration of why federalism-based judicial review is justified whatever one thinks of the philosophical problems afflicting its rights-based cousin ― it protects democracy from insulting usurpation. I know that prof. Waldron was not persuaded when I put an extended version of the foregoing argument to him in a version of this paper, originally written for a class that he co-taught (and which has since benefited from his always thoughtful comments). Now I wonder if he is on the way to changing his mind. If he is not yet, he should be.

Freedom of Corporate Religion?

A number of cases now working their way through the US court system and attracting a great deal of commentary, some of which Josh Blackman summarizes and/or links to in this post, ask an interesting question: can a corporation challenge a requirement that it provide its employees with health insurance covering, among a great many other things, contraception, on the basis that this infringes its (owners’) religious freedom (the so-called “contraception mandate”)? A corporation, of course, does not worship, or believe anything. So can it be entitled to exercise a religious right? I am not qualified to answer this question as a matter of US law, but I thought I’d say a few words about how it might play out in Canada.

Could a Canadian corporation challenge a law on the basis that it infringed religious freedom? The answer seems to be sometimes yes, and sometimes maybe. The foundational case on freedom of religion, and indeed one of very the first Charter cases, was  R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. As the style of clause makes clear, the respondent was a corporation. It was accused of operating a store on a Sunday, contrary to the Lord’s Day Act, R.S.C. 1970, c. L‑13. It claimed that the statute was contrary to the Charter’s guarantee of freedom of religion because it enforced a Christian religious observance. And sure enough, the government said that that didn’t matter, because as a corporation, Big M could not possibly have a right to freedom of religion. Justice Dickson (as he then was) rejected this argument:

Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid. Big M is urging that the law under which it has been charged is inconsistent with s. 2(a) of the Charter and by reason of s. 52 of the Constitution Act, 1982, it is of no force or effect.

The argument that the respondent, by reason of being a corporation, is incapable of holding religious belief and therefore incapable of claiming rights under s. 2(a) of the Charter, confuses the nature of this appeal. A law which itself infringes religious freedom is, by that reason alone, inconsistent with s. 2(a) of the Charter and it matters not whether the accused is a Christian, Jew, Muslim, Hindu, Buddhist, atheist, agnostic or whether an individual or a corporation. It is the nature of the law, not the status of the accused, that is in issue. (Emphasis mine)

But there is a very important qualification:

 As the respondent submits, if the legislation under review had a secular purpose and the accused was claiming that it interfered with his religious freedom, the status of the accused and the nature of his belief might be relevant: it is one thing to claim that the legislation is itself unconstitutional, it is quite another to claim a “constitutional exemption” from otherwise valid legislation, which offends one’s religious tenets.

This possible exception―possible, because Justice Dickson is not deciding that the status of the claimant is relevant to, much less dispositive of, exemption claims―might actually be much more important than the rule in Big M.  That case was probably unique; Canada is not about to re-enact the Lord’s Day Act, or any other law enforcing or prohibiting religious observances. Claims for religious exemptions, by contrast, have arisen in the last few years, and will continue to arise.

One such case was Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, in which Hutterites tried to obtain an exemption from the requirement that their drivers’ licences bear their pictures, which contradicted their interpretation of the Second Commandment. Unfortunately, it is not entirely clear what sort of entity the colony is, legally speaking―is it a corporation or something else? I am guessing though that it is a corporation of some sort, since it sued in its own name. Indeed, it is remarkable enough that no individual Hutterite was a party in the case, considering that it is individuals who applied for drivers’ licences and were required to submit to picture-taking contrary to their faith. Still, that was not at all an issue in the case. Perhaps this is simply because a violation individuals’ religious freedom was so obvious (though the majority held that it was justified under s. 1 of the Charter). Perhaps the Colony had a sort of implicit public interest standing, if such a thing can exist. Perhaps the key is that even if the Colony is, legally, a corporation, it is an obviously religious one, in a way that most ordinary commercial corporations are not. The most we can say with confidence is that this case does not confirm Justice Dickson’s caveat about corporations seeking religious exemptions; but nor does it conclusively put that caveat to rest.

So much for the law, as best I understand it. I will try to have some more theoretical comments on the issue in the coming days.

A Purely Hypothetical Maiden

In one of my first posts, I wrote―referring to the suggestion in Stanislaw Lem’s The Cyberiad that there are “three distinct kinds of dragon: the mythical, the chimerical, and the purely hypothetical, … all, one might say, nonexistent, but each nonexist[ing] in an entirely different way”―that “judicial activism is something like the dragon of constitutional theory. It doesn’t exist, although its distinct kinds nonexist in entirely different ways.” As befits a dragon, that of constitutional theory is commonly regarded as threatening a maiden―judicial restraint. And, much like the dragon, the maiden is arguably non-existent, but in a variety of different ways, of which there are about as many as of the people who use the term “judicial restraint.” Still, some of these ways of nonexistence are more interesting than others.

One such is the description of judicial restraint in an op-ed by Gerard Kennedy (not to be confused with the eponymous politician!) published on the National Post’s website. Mr. Kennedy describes the Supreme Court’s decision on the rights of common-law spouses in Québec,  Quebec (Attorney General) v. A, 2013 SCC 5, about which I blogged here, as “a case study in judicial restraint,” which he defines as a “principled deference to legislative policy choices in matters involving the balancing of competing societal interests.” He points out that the legislative scheme challenged in that case was the product of serious legislative debate, not of accident, and that the legislature―unlike courts―is in a position to know the proportion of cases in which its application results in an injustice. And so, Mr. Kennedy concludes,

[r]easonable people may disagree about the appropriateness of how Quebec has drawn its legislative priorities. But that is a separate question from constitutionality. In cases where multiple societal interests are involved and have been considered by the legislature, courts should not lightly be declaring Charter violations.

In some cases, courts can and ought to strike down legislation or intervene against unconstitutional executive action: “when a matter is peculiarly within courts’ expertise, if other parties do not lose anything, if the decision was not carefully made in the first place, and/or if it was obviously based on improper considerations” or in the rare cases where “legislatures do adopt policy goals that are per se illegitimate.”

Otherwise, judges should remember that they

do not have a monopoly on constitutional wisdom. Constitutional ideals emerge through lived practice — lived practice that is not confined to courtrooms.

This is somewhat similar to a point I made here (and repeated in the post on A.):

[i]t is one thing for courts resist attempts by legislatures or the executive to expand their coercive powers, or when politicians distort the democratic process in order to entrench themselves in power. It is something else for courts to intervene when legislatures try to strike a balance between the interests of different groups of citizens.

And I think Mr. Kennedy is right to say that courts should be more reluctant to strike down legislation due to a problem that was considered in careful debate than when the alleged constitutional defect was not considered well or at all, pace Justice Abella who contended, in her dissent in A., that  “the degree of legislative time, consultation and effort cannot act as a justificatory shield to guard against constitutional scrutiny” (par. 363).

But I don’t think that the label “judicial restraint” is very useful to this argument. It is a simplistic term, which masks what is really a rather complex approach, combining deference to legislatures in some categories of cases with a willingness to intervene in others. Indeed, there is even something paradoxical about this idea of judicial restraint. Constitutional text, after all, does not specify that courts are to approach some legislative choices more deferentially than others. On some understandings of constitutional theory, this would qualify this sort of “restraint” as “judicial activism,” or perhaps as its mirror image, the similarly illegitimate “judicial passivism.”

We would do well to abandon these labels, and get on with the real work of constitutional theory. Those of us who think that courts should modulate their approach to judicial review according to the nature of the allegedly unconstitutional state action and/or the amount of legislative consideration the issue received have many serious questions to answer. Exactly what sorts of issues call for deference to legislatures? What amount of debate, or what sort of legislative process entitles a legislative choice to deference? Does legislative debate, in order to trigger judicial deference, have to be couched in constitutional terms, or at least explicitly take the constitution into consideration? Can constitutionally-significant decisions by the executive branch command deference in the way some legislative decisions do, and if so, when? To what extent is our proposed approach consistent with the current practices of courts, and, to the extent we argue for changes to these practices, how can these changes best be implemented? And, of course, we must be ready to respond to criticism, both from those who, like Justice Abella, believe that there is no warrant for the courts to stand back in deference to a legislative consideration of a constitutional issue, and those who, like Jeremy Waldron, would say that our deferential instincts are not strong enough.  We owe it to those whom we hope to persuade, to our critics, and to ourselves to move beyond dragons and maidens, mythical, chimerical, hypothetical, or otherwise.

Vive la Différence!

It was a long time in coming, but the Supreme Court has finally delivered its ruling regarding the constitutionality of Québec’s (absence of) legal regime for de facto (a.k.a. common law) couples. The dispute pitted a wealthy businessman, identified by the Supreme Court as “B”, against his former common law spouse (and mother of his three children), identified as “A”. (In Québec, they are better known by the pseudonyms Éric and Lola). She claimed that the fact that provisions of the Civil Code of Québec (CCQ) relative to the division of family property and support obligations applied to married but not to de facto couples, such as theirs, was a breach of the equality guarantee of s. 15(1) of the Canadian Charter of Rights and Freedoms. Yesterday’s decision, Quebec (Attorney General) v. A, 2013 SCC 5, rejected that claim. The reasons, unfortunately, are obscenely long, so I will forego my usual detailed summary. After an additional rant about their length, I will summarize each of the four sets of reasons very briefly, and make some comments about the issues the decision raises and, mostly, fails to address.

First of all, let me repeat what I just said: the length of this decision is unconscionable. It is over 200 pages long. As I wrote here, when ranting about a somewhat shorter judgment,

judges impose limits on the length of written submissions by lawyers. They should impose the same limits on their own work. [Judges] make[] much of the courts’ work being for the benefit of the public. It’s not when the product is of such length that no reasonable member of the public can be expected to read it.

Now, unlike in that case, part of the explanation for the judgment’s length here is that there are multiple sets of reasons, four of them in fact. But that still works out to over 50 pages on average―and none of these sets reasons had to canvass all of the issues in the case. I simply see no excuse for the Court’s prolixity.

The four sets of reasons are as follows.

1) Justice Lebel, writing for himself and Justices Fish, Rothstein, and Moldaver, would have held that the impugned provisions of the CCQ do not infringe s. 15(1) of the Charter. Although they distinguish between married and de facto couples, this distinction is not discriminatory because it neither perpetuates prejudice nor reflects a stereotype. Instead, it gives effect to people’s autonomy, a value which, along with equality and human dignity, underpins s. 15 of the Charter.

2) Justice Abella would have held that all the impugned provisions are unconstitutional. They are discriminatory because they impose a disadvantage on a group which, historically, has been the victim of strong prejudice. And they cannot be justified under s. 1 of the Charter, because the legislative purpose of preserving autonomy can be achieved by means less impairing of equality, such as a presumptive application of the legal regime for married couples to unmarried ones, subject to an ability to contract out of that regime.

3) Justice Deschamps, writing for herself and Justices Cromwell and Karakatsanis, agrees with justice Abella that the provisions in question breach s. 15(1). However, while would also have held that the legislature’s failure to provide support rights to members of de facto couples is unconstitutional, she finds that the provisions related to the division of family property are the least restrictive means of achieving the legislature’s aim of preserving autonomy, and hence are saved by s. 1 of the Charter.

4) Chief Justice McLachlin agrees with Justice Abella that the impugned provisions are discriminatory, but she holds that they can all be justified under s. 1 of the Charter, because nothing short of the exclusion of the de facto couples from the mandatory regime imposed on married ones could preserve their full autonomy, which is the legislature’s goal.

The final tally is that the provision relative to support is upheld 5-4, while those relative to the division of property are upheld 8-1.

Now for some comments on the decision.

First, the decision shows that s. 15(1) of the Charter continues to bedevil the Supreme Court. R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, which was supposed to clarify the Courts equality jurisprudence, seems to have failed to do so. The court is fractured 5-4 on the issue of the difference between legislative distinctions, which are permissible, and discrimination, which is unconstitutional. Justice Lebel thinks that, to succeed in a s. 15(1) claim, the claimant must prove that “the disadvantage” he or she complains of “is discriminatory because (i) it perpetuates prejudice or (ii) it stereotypes” (par. 186). Justice Abella, who on this point has the support of a bare majority of the court, thinks not. Prejudice and stereotyping are indicia of discrimination, but no more than that. Whenever  “state conduct widens the gap between [a] historically disadvantaged group and the rest of society rather than narrowing it, … it is discriminatory” (par. 332).

Furthermore, remarkably, not one of the four judgments discusses the possible applicability of Kapp‘s holding that, pursuant to s. 15(2) of the Charter, a legislative scheme that is intended to remedy a historic disadvantage will not be considered discriminatory even if it does not address the situation of all the groups who have suffered from that or a similar disadvantage. The family law regime challenged by A arguably had an ameliorative purpose, to help disadvantaged members of formerly-married couples. Why no mention of s. 15(2) then? Maybe B and the Québec government simply did not raise it, in which case it seems to me that their lawyers made a serious mistake. Still, I find it surprising that the court―especially Justice Lebel―did not mention it at all.

Another issue that the court does not discuss is the subject of the equality rights that A asserted. Whose rights are at issue―the de facto couples’ or those of the economically disadvantaged members of those couples? The judgments, especially those of the majority of the judges who find that s. 15(1) has been breached, shift ceaselessly between the two possibilities. But the distinction matters. It is the couples who, historically were the victims of prejudice and disapproval because their behaviour was considered immoral. But it doesn’t make sense to say, as Justices Abella and Deschamps and Chief Justice McLachlin do, that the de facto couples are denied the protection granted to married couples. The CCQ provisions challenged by A do not protect couples―they protect the economically weaker members of those couples. The trouble for the s. 15(1) majority is that historic prejudice, on which they rely to justify their conclusion of discrimination, was not directed against individual members of couples. Furthermore, the disadvantage at which individuals such as A find themselves is due, in the first instance, to their partners’ (and sometimes, though not in this case, their own) refusal to get married, rather than to any decision of the state. And so the s. 15(1) majority judgments rely on discrimination against couples or disadvantage to individuals, as suits their needs, even though one has no direct connection with the other. I’m not sure whether they are merely confused or deliberately obfuscating.

And there is a further aspect of the equality claim that the s. 15(1) majority ignores. A complains of discrimination on the ground of her marital status. The Supreme Court has long recognized marital status as a prohibited ground of discrimination for the purposes of s. 15(1) of the Charter. But marital status is different from most of the other prohibited grounds, such as sex, age, religion, or sexual orientation, in that it is a creature of the law. Most other prohibited grounds of discrimination―citizenship is the only exception I can think of―are essentially pre- or extra-legal. A person is of a certain age, a certain religion, or a certain sexual orientation regardless of what the law has to say about it. But marital status is a category entirely defined by the law. In defining marriage and other “forms of conjugality,” the law also fixes the rights and obligations that attach to that status. This definition necessarily excludes certain people, from whom the rights and obligations are also withheld.  This cannot, in itself, be discriminatory. Now, distinctions on the basis of marital status, as of other categories defined by law, such as citizenship, can be discriminatory when they have nothing to do with the definition of that category. (Justice Lebel discusses this issue, par. 220-21, but the other judgments fail to respond to his points.) And a definition of a legal status can be discriminatory on some other basis―as, for example, the traditional definition of marriage was on the basis of sexual orientation. But I don’t think that it makes sense to say that a definition of a legal status can discriminate on the basis of that status.

The final comment I want to make concerns the role of the judiciary in this dispute. As I said here,

[i]t is one thing for courts resist attempts by legislatures or the executive to expand their coercive powers, or when politicians distort the democratic process in order to entrench themselves in power. It is something else for courts to intervene when legislatures try to strike a balance between the interests of different groups of citizens.

Courts should be more cautious in such cases, all the more so when the legislature actually considered the issue with some care, as the Québec legislature did the rights of de facto spouses.

For all that, the outcome of the case is right, and a relief. The majority reaffirms the importance of the choices people make, and their freedom to define their own legal position different from the state’s default rules. And it reaffirms the same freedom for Canadian provinces too, with Québec being allowed to stick with its unique approach if it so wishes. A win for individual liberty and for federalism, then. Vive la différence!