Dreaming of Dialogue

Can New Zealand courts declare statutes to be inconsistent with the Bill of Rights Act? Does this matter?

Canadians have long been used to the idea that, as the Supreme Court put it in Re Manitoba Language Rights, [1985] 1 SCR 721, “[t]he judiciary is the institution charged with the duty of ensuring that the government complies with the Constitution.” (745) In New Zealand, things are very different of course, because the constitution is not entrenched. Parliamentary sovereignty prevails, and the courts’ role is limited accordingly. Although there is a statutory bill of rights, the New Zealand Bill of Rights Act 1990, it specifically provides that courts cannot invalidate or otherwise refuse to apply legislation that is inconsistent with it, and contains no remedial provision analogous to section 24 of the Canadian Charter of Rights and Freedoms.

So it is, or at perhaps was, an open question what, if anything, a court might be able to do when it concludes that a statute is inconsistent with the Bill of Rights Act. Might it go so far as to issue a declaration to that effect, or is it limited to only stating this opinion in the course of its reasons? In Attorney-General v Taylor [2017] NZCA 215, the New Zealand Court of Appeal says that, sometimes at least, a formal declaration can be made, and upholds the very first such declaration issued by a New Zealand court, confirming that the disenfranchisement of all convicted prisoners (and not only of those serving sentences longer than the three-year Parliamentary term) is inconsistent with the Bill of Rights Act’s guarantee of the right to vote. (The Attorney-General was not contesting the substantive point, it is worth noting, but only disputing that the declaration could and should have been made.)

* * *

The first question for the Court was whether authority to make a “declaration of inconsistency” existed at all and, if so, what its source was. The answer, the Court holds, is that superior courts have such an authority as part of their jurisdiction to answer questions of law, and that the Bill of Rights Act supported it. The Court rejects the Attorney-General’s submission that express statutory authorization is required to permit the making of declarations of inconsistency. Just as Parliament’s legislative authority does not derive from positive law but from political fact, so does the judicial authority of the courts. Neither branch owes its authority to the other; rather, “a distribution of the state’s sovereign powers among the branches of government emerged from the political settlement concluded in the decades following the Glorious Revolution of 1688”. [50] Ultimately, “[i]nconsistency between statutes is a question of interpretation, and hence of law, and it lies within the province of the courts.” [62]

The Court notes that the Bill of Rights Act itself contemplates the possibility of a judicial assessment of the consistency of other legislation with its provisions, whether its results are stated in the court’s reasons (which the Attorney-General accepted was permissible) or in a formal declaration. Moreover, New Zealand has undertaken to provide domestic remedies for breaches of its obligations under the International Covenant on Civil and Political Rights, the implementation of which is one of the Bill of Rights Act’s stated purposes, so that it should be interpreted in accordance with this undertaking. Besides, in the Human Rights Act 1993, Parliament has already authorized the making of declarations of inconsistency when legislation breaches equality rights. Although the Bill of Rights Act contains no equivalent provision, this “evidences parliamentary acceptance that a court may make declarations about the inconsistency of legislation with rights protected by the Bill of Rights”. [107]

Second, the Court had to address an intervention by the Speaker of the House of Representatives, who argued that the whole case, or at least the way in which it had proceeded, was an infringement of Parliamentary privilege. In particular, the Speaker was concerned by the reliance, at first instance, on a report prepared by the Attorney-General to alert the House of Representatives of the incompatibility (in the Attorney-General’s opinion) between the blanket disenfranchisement of prisoners and the protection of the right to vote in the Bill of Rights Act. Indeed he sought sought to prevent the use of any “speeches in the House, select committee reports or submissions made to select committees” [122] to ascertain the consistency of legislation with the Bill of Rights Act, arguing that this would be tantamount to calling Parliamentary proceedings into question contrary to article 9 of the Bill of Rights 1688 and the Parliamentary Privilege Act 2014. The Court rejected these arguments, holding that “a court does not impeach parliamentary proceedings merely by describing parliamentary processes or making a finding about the same subject matter,” [129] so long as it does “not endorse or criticise Parliament’s treatment of the issues”. [130] It is permissible, too, to refer to the Attorney-General’s report, although it is important for the courts to come to their own, independent conclusions.

Third, the Court considered the conditions in which declarations of inconsistency should or should not be granted. Such declarations, thought they do not affect anyone’s rights, are part of a “dialogue” (it might have been more accurate to say “conversation”) involving the the different branches of government, which

is not unique to constitutional disputes. It describes the routine work of government, in which Parliament legislates and the executive administers and courts interpret, leading in due course to legislative reform to better meet the community’s evolving needs. [150]

The only difference is that a declaration of inconsistency is a “more pointed” [150] than usual expression of a court’s opinion, which carries with it

the reasonable expectation that other branches of government, respecting the judicial function, will respond by reappraising the legislation and making any changes that are thought appropriate. [151]

Such “pointed” expressions of judicial opinion should not be lightly; a statement in the court’s reasons for judgment is sometimes, and even “ordinarily” [162] preferable. But it is sometimes necessary to go further. However, the courts are to apply fairly strict criteria for standing (at least when compared with the Canadian “open bar” approach), and to ensure that there exists a real adversarial dispute and that they have the relevant evidence available to them before pronouncing on the rights-consistency of legislation.

Fourth and last, the Court asks itself whether a declaration should have been granted in this case. It concludes that because “[t]he undiscriminating limitation … on so central a right demanded justification [and] [n]one was forthcoming” a declaration of inconsistency “was the appropriate way both to convey the Court’s firm opinion that the legislation needs reconsidering and to vindicate the right”. [185]

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To Canadian readers this all might seem like pretty tame stuff. And indeed there is no mistaking the notes of caution in the Court’s discussion, above all in its statement that “indications” rather than formal declarations of inconsistency should “ordinarily” suffice. What “ordinarily” will mean in practice remains, of course, to be seen, but at least for now the Court seems to think the step of granting a formal remedy ― even one that could produce no more than a purely symbolic effect ― is a serious, even an exceptional one.

Yet I think it would be a mistake to make light of the Court’s decision and, perhaps more importantly, of its reasoning. Although its conclusions are cautious, it still reflects a confident view of the judiciary’s constitutional position as a branch of government that is, in its own sphere, not Parliament’s subordinate, but its equal. It is worth noting that the primary ground on which the Court rests the authority to make declarations of inconsistency is not an implication from the text or nature of the Bill of Rights Act (as it had done in Simpson v Attorney-General [1994] 3 NZLR 667 (CA), a.k.a. Baigent’s Case, where it held that damages were available for breaches of the Act by the executive). Rather, the authority to make declarations of inconsistency is said to come from the judiciary’s own inherent powers, which the Court goes out of its way to say are not the product of any legislation but of the constitutional order of things (my phrase, not the Court’s). Similarly, the Court resists the Speaker’s attempt to restrict judicial deliberations about Bill of Rights Act issues, even as it cautions that judges must be seen to interfere with the deliberations of Parliament.

Indeed, this case can be seen as a clash between two competing constitutional visions. One, advanced both by the Attorney-General and the Speaker, sets Parliament, protected by its sovereignty and privilege, above the other branches of government, whose first concern must be to avoid disrespecting or challenging it. The other, which the Court adopts, treats the branches as (almost) co-equal: “each is sovereign within its sphere of authority in the sense that it may act without the permission or authority of the others”.[51] To be sure, Parliament is first among equals because it can make law, and thereby oust judicial power (though New Zealand judges, as their British counterparts, have on occasion mused about the limits of that authority) or, in other cases, royal prerogative. But at least until it does so equality, not subordination, is the rule. It is a respectful equality, but respect goes both ways: not only must the courts exercise restraint and show comity on appropriate occasions, but Parliament too ought to engage in constitutional dialogue, and go so far as to reconsider its enactments, when called upon to do so by the courts.

Yet I am quite skeptical about the potential for constitutional dialogue between the judiciary and Parliament, on which the Taylor Court rests such hopes. We know that in Canada the “dialogue” has turned out to be quite one-sided, with the Supreme Court telling Parliament what it had, and what it could not, do. As the majority put in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, another prisoner disenfranchisement case,

the fact that the challenged denial of the right to vote followed judicial rejection of an even more comprehensive denial, does not mean that the Court should defer to Parliament as part of a “dialogue”. Parliament must ensure that whatever law it passes, at whatever stage of the process, conforms to the Constitution. The healthy and important promotion of a dialogue between the legislature and the courts should not be debased to a rule of “if at first you don’t succeed, try, try again.” [17]

The power dynamics in New Zealand are, of course, the opposite of those in Canada. It is Parliament, not the judiciary, that gets to have the last word in a constitutional conversation. But I do not expect it to be any more open to persuasion than the Supreme Court of Canada. I would love to be proven wrong on this, but I’d be quite surprised if ― assuming there is no change of government at the forthcoming election ― New Zealand’s Parliament chose to “reconsider and vindicate the right” to vote as the Bill of Rights Act, which it was happy to ignore on this issue, requires it to do.

* * *

Subject to an intervention by the Supreme Court, the courts of New Zealand do, then, have the ability to formally declare legislation to be inconsistent with the New Zealand Bill of Rights Act, despite the Act not authorizing them to do so. This authority rests on a conception of the constitution in which the branches of government are almost, if not quite, equal, rather than Parliament lording it over the courts (and the executive). Yet there is reason for skepticism about the vision of respectful dialogue between Parliament and the courts that this relative equality is supposed to foster. Someone gets to have the last word, and it seems likely enough that, in New Zealand as in Canada, it will be the only that will count.

NOTE: See also the comments by Andrew Geddis, on Pundit, and Edward Willis, on his Great Government blog.

Extra Time

Assisted suicide and the trouble with giving politicians time to respond to judicial decisions 

This morning, the Supreme Court heard oral argument in the federal government’s application to extend the suspension of the declaration of invalidity of the Criminal Code‘s provisions that have the effect of prohibiting assisted suicide in any circumstances, which the Court granted in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331. The suspension of the declaration of invalidity was meant to last a year ― and that period will expire on February 6. The federal government, supported by Ontario, says it needs more time to consider and enact is response. The Carter appellants, represented by Joseph Arvay, argue that additional legislation is not necessary, and any extension of the suspension would cause the beneficiaries of the constitutional right not to be prevented from receiving a willing physician’s assistance in dying to suffer needlessly.

I watched the webcast (except for Québec’s submissions), more because I was interested in what the Court might say about suspended declarations of invalidity in general than out of a preoccupation with Carter itself. (Others have written about the specific issues in Carter, for example Emmett Macfarlane in a post for Policy Options.) Suspended declarations of invalidity are something of a habit for the Supreme Court, and some thoughtful academics believe that it is a bad one. For example, in a blog post for the UK Constitutional Law Association, Robert Leckey argued that suspended declarations of invalidity infringe the Rule of Law and weaken the courts’ power of reviewing legislation. As I wrote in response, I think these are important concerns, although prof. Leckey might not have given enough weight to some countervailing considerations. In any case, as I wrote at the time,  “[w]e need to think more about this issue ― and so does the Supreme Court,” which has been unwilling to give meaningful, or even any, explanations for its decisions as to whether to suspend its declarations of invalidity or not. Unfortunately, if perhaps inevitably, this morning the big questions about suspended declarations of invalidity seemed to me to stay just below the surface of the argument, as the parties and the Court mostly which stayed narrowly focused on the case at bar. (I take it that prof. Macfarlane disagrees.)

There was some discussion of the Rule of Law, to be sure, after the federal government invoked it as justifying the need for comprehensive legislation and as a reason for rejecting the possibility of judges granting individual exemptions if the suspension of the declaration of invalidity is extended. Ontario also insisted on the need for clarity regarding the legal situation of the various persons who may become involved in physician-assisted suicide. Mr. Arvay, for his part, rejected the governments’ claims that allowing the declaration of invalidity to expire without other legisltion in place would generate uncertainty. But there was, understandably enough, no discussion of how the need for legal certainty might play out in other cases where, as Prof. Leckey has argued convincingly, a suspended declaration of invalidity may generate more rather than less uncertainty over the state of the law than an outright invalidation.

But there was no explicit discussion of whether it matters, when we consider the appropriateness of suspending a declaration of invalidity, whether the law at issue is a repressive one or one that attempts to balance the competing claims of various social groups ― as I suggested it might. Clearly, however, something like this concern underlies the difference of emphasis between Mr. Arvay, who insisted on the ongoing violation of the constitutional rights of the people on whose behalf he litigated the case, and the government, which repeatedly spoke of the importance of “buy-in” from physicians and other stakeholders, which in its view only legislation can generate.

Nor was there any discussion of the need for the Court to explain its reasons for granting or denying a suspension of a declaration of invalidity, though one might hope that the Court will be made to reflect on it by an exchange between Justice Wagner and Mr. Arvay. Justice Wagner asked whether the Court had been wrong to suspend the declaration of invalidity it issued in Carter. Mr. Arvay wouldn’t say so, but he did inform the Court that others have. If the Court does indeed think it possible that suspending the declaration of invalidity was a mistake, it should, in my humble opinion, consider the fact that one reason for judges to explain their decisions is that they ― as the rest of us ― are less likely to err when submitting to the self-discipline of giving reasons. Decisions regarding suspended declarations of invalidity are no different from those that concern the other aspects of the cases that courts decide. Had the Supreme Court forced itself to work out an explanation for this aspect of its ruling in Carter, instead of lazily contenting itself with stating that it “would suspend the declaration of invalidity for 12 months,” [128] it might have avoided a decision that it may now have reason to regret.

This morning’s hearing was perhaps most instructive when it came to another issue: that of the respective roles of Parliament, the provincial legislatures, and courts in upholding constitutional rights and making policy, and the implications of a suspended declaration of unconstitutionality for their relationship. The federal government and Ontario emphasized the unusual nature of this case because it makes it necessary, in their view, for both Parliament and legislatures to act. Mr. Avray disagreed that it was necessary for Parliament to legislate (and prof. Macfarlane, for one, shares his view), but even if inapposite in this case, this argument is worth keeping in mind for future ones ― at least if the parties that made it were wrong to say that another such case might never come up again. The Court will also have to ask itself whether the messy realities of politics, including both the time it takes to legislate in general ― to which the parties did refer ―, and the significance of elections and changes of government ― which mostly went unmentioned ― should be allowed to intrude on its somewhat abstract views of dialogue between branches of government.

And beyond these specifics, there is a broader issue of whether Parliament and the legislatures or the Supreme Court should be the main author of the legal framework for assisted suicide in Canada. The government lawyers insisted on the importance of having a legislated framework, for generating both stakeholders’ “buy-in” and for a broader social acceptability. Mr. Arvay, however, was having none of it. He described Québec “death with dignity” law as mostly “bells and whistles,” and was adamant that legislators, both federal and provincial, were effectively superfluous in elaborating a regulatory framework. The efforts, such as they were, of the federal government ― not only of Stephen Harper’s administration, but also of the current one ― towards developing a response to Carter have been “dilatory,” in Mr. Arvay’s view. There is no need to collect more information ― it’s all there, in the trial record. There is no pressing need to legislate ― physicians and their professional regulatory bodies can deal with pretty much any issue that assisted suicide raises on their own.

This contempt for politicians is not surprising coming from a man who would like to insulate the judiciary from any sort of political influence. Yet while it is true that politicians generally have failed to get their act together on the issue of assisted suicide, and that Mr. Harper’s government at least can be fairly described as having procrastinated on responding to the Supreme Court’s ruling in Carter, I think that Mr. Arvay is wrong here, as he is wrong in his quest to “depoliticize” the judiciary. It is not only the politicians that he insults when he says that we need no more discussion than what has happened in the courts ― it is also the citizenry. True, the courts have laid down the constitutional foundation on which an eventual legal framework will have to be built. But it would still be better if elected officials ― and through them, the citizens of Canada ― take responsibility for the building. Mr. Arvay’s position that a process that makes this possible is irrelevant is condescending and disheartening.

I suspect that at least some of the judges ― especially Justice Moldaver, but possibly a number of others ― also think along these lines. But even if they do, it does not follow that they will grant the extension the federal government has requested. They may agree with Mr. Arvay, prof. Macfarlane and others that the extension is not necessary for the legislative process to proceed. (Justice Moldaver himself inquired about that possibility in questioning the federal government’s lawyer.) I do not know how the Court will rule. But I hope that its ruling, whatever its conclusion, is mindful of the issues that it will inevitably raise and that go well beyond just this case.

NOTE: I misspelled Mr. Arvay’s name earlier. My apologies! And thanks for Laura Track for pointing it out to me.

Happy 800th, Magna Carta!

Today is the 800th anniversary of the signing of the Magna Carta Libertatum ― or just the Magna Carta, among friends. The Great Charter has been much celebrated, and also derided, of late. In the New York Times, Sarah Lyall does an excellent job of summarizing the competing perspectives. The celebrations tend to emphasize Magna Carta’s role as a symbol of liberty and the Rule of Law. Consider, for instance, that Sir Tim Berners-Lee, the inventor of the World Wide Web, has called for a “Magna Carta” to protect the openness of his invention. (The Economist has a somewhat cheeky take on this today.) The critics point out that this symbolism is largely made up, a 17th-century fabrication. In its own day, the Magna Carta was a miserable failure: King John, who signed the Magna Carta, swiftly proceeded to get the Pope to dispense him from the duty to abide by it. There is not much for me to add, but I would like to venture some thoughts not on the contemporary significance or historical insignificance of the Magna Carta, but on what I take to be two if its timeless lessons.

The first is that the relationship between universalism and particularism in the realm of human rights is very complicated. The Magna Carta includes some clauses that are still cited today because they appeal to us as much as they did to the people of 1215. This is especially true of the injunction (in clause 39) that

[n]o free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

In a recent judgment, the Chief Justice of the United States, John Roberts, also alluded to the next clause, whereby King John promised that “[t]o no one will we sell, to no one will we refuse or delay, right or justice.” And while I don’t think the Magna Carta is much cited in this context, the idea of proportionality in punishment that is so important in contemporary Canadian jurisprudence was already there, in clause 20:

For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein the implements of his husbandry, if they fall upon the mercy of a royal court.

Of course, it is true that, as Carissima Mathen noted in a recent op-ed, “[b]arbaric practices, like public execution and torture, continued apace.” But then, medieval England was not the only place where proclaimed ideals were not exactly matched by actual events.

Still, it is sometimes said that the past is a foreign country. And so it is tempting to think that if the ideals of due process of law were had such an attraction for the people of that foreign place, they are no mere concerns of a particular time and place. They speak to something universal in human nature. So when the governments of places such as Russia or China try to dismiss calls that they abide by these rights as some sort of cultural imperialism, an attempt to impose the neuroses of Western modernity on their nations’ vastly different cultures, we could call their bs.

At the same time, it is undeniable that many of the Magna Carta’s provisions were very much artifacts of their particular place and time ― and the same is true of (just about?) any other rights-protecting document that has followed it. It is difficult for us to believe that the removal of “[a]ll fish-weirs … from the Thames, the Medway, and throughout the whole of England, except on the sea coast” had the same importance as due process of law, but there it is in the Magna Carta, in clause 33. It’s a reminder, I suspect, not all of the or the Canadian Charter of Rights and Freedoms, will appear equally important 80 years after their enactment ― never mind 800.

The other lesson of the Magna Carta concerns the importance of enforcement mechanisms for the limitation of governmental power and the protection of individual rights. It is, I think, seldom mentioned, but the Magna Carta actually included an enforcement clause, clause 61. The mechanism it put in place was, however, very much medieval. The barons were to elect 25 of their number, to whom people who considered their rights to be infringed could complain. Four barons would then go to the king, and if the king

make no redress within forty days, … the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon.

In other words, the only possible remedy for a rights violation was civil war. Which, frankly, seems a bit of overkill for a failure to remove a fish-weir from the Thames ― or even, for that matter, for a corrupt trial. Even if King John had been inclined to abide by the promises he made on the field of Runnymede, it is doubtful that the Magna Carta would have been much of a success. Any good faith disagreement between him and the barons would have led to wars, which would probably have caused people to hate the Magna Carta more than anything ― unless the parties also thought that a fish-weir wasn’t really worth a civil war, in which case the Charter would have become a dead letter anyway.

Perhaps it is then better that things turned out the way they did. It is King John who has gone down in history as the villain of the play, and not the Magna Carta. (Indeed, I cannot help but wonder whether he would have done things differently had he known that signing that document would be his greatest claim to fame!) The Great Charter, free any legacy of being applied ― and perverted ― by fallible human beings, can remain a shining symbol of our beliefs in liberty and the Rule of Law. I, for one, hope that its 1000th anniversary is greeted with at least as much fanfare as the 800th.

Please Advise

The Prime Minister is apparently refusing to have any new Senators appointed, until, well, who knows (though one may suspect that it is until the next election. The leader of the official opposition has already declared that he would never appoint any Senators ever. And, as I noted in my first post on this subject, a Vancouver lawyer, Aniz Alani, has asked the Federal Court of Canada to put an end to the Prime Minister’s subversion of section 32 of the Constitution Act, 1867, which provides that “[w]hen a Vacancy happens in the Senate … the Governor General shall by Summons to a fit and qualified Person fill the Vacancy.” Mr. Alani’s suit raises a number of interesting questions. In this post, I address some of them.

Although his notice of application names both the Prime Minister and the Governor General as respondents, Mr. Alani’s challenge is framed as an application for judicial review of the Prime Minister’s “decision … not to advise the Governor General to summon fit and qualified persons to … the Senate.” He seeks declarations to the effect that the Prime Minister must so advise the Governor General, and that his failure to do so is an unconstitutional violation both of the relevant provisions of the Constitution Act, 1867 and of underlying constitutional principles.

Before getting to the substantive issues this raises, a few words about preliminary matters. An issue that I will only flag, but not address, is that it can be difficult to show that a course of not doing something amounts to a decision not to do it that is amenable to judicial review. Assuming that Mr. Alani can clear that hurdle, he may also need to convince the court to grant him public interest standing, to pursue his challenge, since the non-appointment of Senators does not injure or affect him personally any more than any other citizen. The factors a court will consider in deciding whether to grant public interest standing are the existence of a serious justiciable issue, on which more below, though if the federal courts follow the Québec Court of Appeal’s recent decision in Canada (Procureur général) c. Barreau du Québec, 2014 QCCA 2234, they will not impose a high threshold here at the standing stage; the seriousness of the applicant’s interest; and the existence of alternative ways of getting the matter before the courts, which should not be an issue here.

Once these matters are out of the way, the biggest substantive issue with Mr. Alani’s application is the way in which it involves constitutional conventions. This arguably goes at once to the jurisdiction of the Federal Court under section 18.1 and to the justiciability of his claims under the general principles courts apply in cases where their power to decide a question is uncertain. To repeat, Mr. Alani’s application aims squarely at the behaviour of the Prime Minister, and not that of the Governor General. Yet the text of the Constitution Act, 1867 gives the power and the duty ― the word “shall” in section 32 is dispositive in this regard ― to appoint Senators to the Governor General. Pursuant to a constitutional convention, this power is exercised on the Prime Minister’s advice. But, on the orthodox view, that convention itself is not a legal rule, and there is no legal link between the Prime Minister and the appointment of Senators.

Thus, Mr. Alani may have some difficulty showing that his application raises at least one of the “grounds of review” which give the Federal Court jurisdiction under subsection 18.1(4) of the Federal Courts Act. At least on the orthodox view of a rigid separation between law and convention, the Prime Minister has not “refused to exercise [his] jurisdiction,” “failed to observe a … procedure that it was required by law to observe,” or “acted in any other way that was contrary to law.” The law, on this view has nothing to say about the Prime Minister’s behaviour with respect to the appointment of Senators. For the same reason, the government could argue that the a Prime Minister’s decision to advise or not to advise the Governor General is a purely political one, and therefore lacks a “sufficient legal component” to be justiciable.

The Supreme Court’s opinion in Reference re Senate Reform, 2014 SCC 32, complicates things, however. The Court introduced a notion of “constitutional architecture,” which seems to encompass the relationships between the various institutions of government, such as that between the Senate and the House of Commons. The Court took the position that making the Senate, in effect, elected would alter the constitutional architecture by making it the equal of, rather than the complement to, the House of Commons. Until then, we thought that the reason the Senate (normally) yielded to the House of Commons was a constitutional convention, rather than a legal constitutional norm.

Mr. Alani could invoke this notion of constitutional architecture, which is part of the legal and not only the conventional constitution, to argue that the Prime Minister’s actions ― or rather his inaction ― infringes on the “constitutional architecture” which makes him responsible for ensuring, by giving timely advice as to the identity of “fit and qualified persons,” that the Governor General can discharge his duty under s. 32 of summoning them to the Senate “when a vacancy arises.” Whether the courts would accept this argument remains to be seen. It seems at least plausible to me, but the notion of architecture is too new and too uncertain to make any predictions about the ways in which it might be applied in the future.

But even if Mr. Alani can overcome the difficulty of showing that the Prime Minister’s behaviour actually contravenes a legal rule, he will further need to convince the courts that the remedies he is seeking are appropriate. (Although I cannot develop the argument for this proposition here, I think that the courts’ decisions on justiciability are often dependent on their views of their remedial powers, and not only on the nature of the rules at issue in a case.) Mr. Alani is asking the court to declare that “the Prime Minister … must advise the Governor General to summon a qualified Person to the Senate within a reasonable time after a Vacancy” arises, and that he is acting unconstitutionally by failing to do so. But such a declaration would not be very helpful, because it would not specify what a reasonable time is. Unfortunately, it is probably impossible for a court to be any more specific, given the politically sensitive nature of any Senate appointment, not to mention the absence of any clear time limit in the constitutional text.

Now the Supreme Court has occasionally issued fairly vague declarations or statements of the law, often in the context of references (such as the Reference re Secession of Quebec, [1998] 2 S.C.R. 217). The one “normal” case where the Court did that, which immediately comes to mind, however, is Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, where the Court declared that the Canadian government had acted unconstitutionally, and said, in effect, that it ought to do something about that. But the government’s ― this Prime Minister’s government’s ― response to that decision was arguably perfunctory, and the same might happen in this case. A declaration that the Prime Minister is acting unconstitutionally may well be met with further inaction, and might thus only serve to undermine the courts’ authority. I am not sure that the courts will, or indeed that they should, risk such an outcome.

The constitutional rule set out in section 32 of the Constitution Act, 1867, seems clear enough. But the role of constitutional conventions and concerns about the remedial powers of the courts, not to mention administrative law and standing issues, might still prevent it from being judicially enforceable. This seems problematic from the perspective of the Rule of Law ― but then again, a rule of this sort never intended to be judicially enforced. A Prime Minister’s self-interest in making patronage appointments can normally be counted on to ensure that appointments to the Senate will be relatively expeditious. Unfortunately, when the incentives on which a constitutional scheme implicitly relies break down, the constitution itself becomes dysfunctional ― indeed, we may well speak of a constitutional crisis, albeit not yet an acute one ― and it’s not obvious what can be done about that, or by whom.

Reticence and Power

The Supreme Court of Canada is in the habit of “suspending” its declarations of unconstitutionality of legislation, especially controversial or important legislation, ostensibly in order to give the legislature which enacted the statute at issue time to re-write it so as to remove the constitutional defect while preserving as much of the substance of the law as possible. Sounds nice, doesn’t it? But in a very interesting post on the UK Constitutional Law Association’s blog, Robert Leckey argues that this trend is worrying. Suspended declarations of invalidity, prof. Leckey claims, are problematic from a Rule of Law perspective, and amount to a tacit abandonment of some of the Supreme Court’s power of judicial review. I am not sure that either of these claims is quite right, but they deserve careful thought.

Professor Leckey’s main exhibit is the Supreme Court’s recent decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, which invalidated the Criminal Code‘s provisions “regulating” prostitution on the basis that they were contrary to the guarantee of “security of the person” in the Canadian Charter of Rights and Freedoms, but suspended the declaration of unconstitutionality for a year, to give Parliament the chance to enact a new regulatory framework for addressing the problems created by prostitution. Prof. Leckey points out, as I did in my review of the Court’s decision, that the Court offers little, if anything, by of justification for the decision to suspend the declaration unconstitutionality. Yet, he says, the suspended remedy is quite problematic, both in this specific case and from a theoretical perspective.

Practically speaking, for one thing, it perpetuates for one more year a legal regime which the Court has found to compromise the security of the women involved in sex work. For another, the suspended declaration of unconstitutionality helps foster a state of uncertainty about the applicable law, which “local authorities are enforcing the provisions to varying extents,” thus “arguably undermin[ing] the rule of law.”

At a more theoretical level, prof. Leckey suggests that ” the suspended remedy in Bedford represents the culmination of judges’ reshaping of their role under the Charter.” In the Charter’s early years, they would simply strike down the laws they found to contravene it. The suspended declaration of unconstitutionality was originally developed as a remedy in order to avoid the dangers of a legal vacuum, and was meant to be exceptional. Now, however, it is justified as a means, not of preventing lawlessness, but “of making space for a legislative response.” In prof. Leckey’s view, the Supreme Court has moved “from using orders under the Charter to cease the effect of laws violating rights to using them to identify legislative priorities,” resulting in an “apparent underuse of [the Canadian judiciary’s] constitutional powers,” contrary to the letter of the constitution.

It seems to me that prof. Leckey makes very important points, but perhaps neglects the counter-points that could be made in defence of the Supreme Court’s practice. For instance, when thinking about the Rule of Law implications of suspending a declaration of unconstitutionality, it is worth noting that, when a legislative response to the Court’s judgment is expected, the suspended remedy helps to maintain the stability of the law, by making for a single change of regulatory framework (when the new law is enacted) rather than two in quick succession (when the old law is struck down and again when a new one is enacted). I’m not sure that this outweighs prof. Leckey’s point about uncertainty, but it is at least a possibility to consider.

As for the theoretical point, I think it is necessary to think about the differences between the laws of which the courts are asked to review the constitutionality. As I have suggested elsewhere (here, for instance), we might want to treat laws that simply expand the coercive power of the state, or entrench incumbents in political office, differently from those which are meant to balance competing social interests. Whether or not these different sorts of laws ought to be reviewed with varying degrees of deference, there is, I think, a much better case to be made for suspending a declaration of unconstitutionality for a law of the “balancing” sort than from a coercive or power-entrenching one. And it may well be that laws belonging to the “balancing” category form a larger part of the Supreme Court’s constitutional docket now than they did in the Charter’s early days, when it was busy weeding out legislation like the Lord’s Day Act, which would account for the proliferation of suspended declarations of unconstitutionality.

Now, even if this general point is right, I think that prof. Leckey is quite right about Bedford. The prostitution provisions of the Criminal Code do not, in my view, balance competing social interests. They are naked repression. Unfortunately, the Supreme Court’s treatment of the remedy issue, particularly its reference to the “great concern” which “many Canadians” supposedly feel about “unregulated” prostitution (par. 167), suggests that it may well regard it as a balancing, rather than a repressive, regulatory scheme.

Still, the misuse of the suspended declaration of unconstitutionality in one case does not prove that this remedy is fundamentally flawed. We need to think more about this issue ― and so does the Supreme Court. Its unwillingness to explain itself does not become an institution that pretends to be circumspect in its use of power. Power deployed without explanation is the opposite of reticence.