Seven’s Sins?

A response to Asher Honickman’s take on the section 7 of the Charter

In a very interesting essay written for CBA Alberta’s Law Matters and published at the website of Advocates for the Rule of Law, Asher Honickman discusses the role of the judiciary in constitutional cases, focusing on section 7 of the Canadian Charter of Rights and Freedoms. Mr. Honickman tries to chart a middle course between what he describes as “judicial supremacy” and “legislative supremacy” ― the views that, respectively, “when it comes to interpreting the Charter … more is better” and judges should expand the scope of its provisions accordingly, and that the Charter as a whole was a mistake. Mr. Honickman’s argument is both rich and well stated. It is also, in my humble opinion, largely misguided. Because it is both rich and concise, it does not lend itself to an easy summary. I would urge the reader to take his or her time to go through it. For my part, I will respond to some specific points Mr. Honickman makes, over a couple of posts. I will start here with his take on the past, present, and future of section 7 itself.

Mr. Honickman argues that the Supreme Court misinterpreted section 7 from the beginning of its engagement with it in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, expanding its scope well beyond the procedural issues to which it was intended to apply. More recently, the Supreme Court expanded section 7 further by recognizing principles of fundamental justice which not particularly fundamental or even particularly legal. Moreover, the Court unjustifiably relaxed the requirement that a section 7 claimant be “deprived” of the rights the provision protects, and accepted findings of deprivation, or infringement, based on “the indirect effects of the law [and] on contentious social science evidence.”

Mr. Honickman concedes that “[r]eturning now to the original meaning [of section 7] would be impracticable, as it would mean erasing more than thirty years of Charter jurisprudence.” He suggests, however, that section 7 be applied only in the context of the administration of justice ― if not to procedural matters, then at least when the impugned rules create an offence. Moreover, “the state action must amount to a real deprivation, which is a higher hurdle to overcome than mere infringement,” and the deprivation must be readily apparent by looking at the law’s “purpose and its immediate legal effects,” without recourse to social science evidence. Finally, principles of fundamental justice must not be added to without caution; in particular, the prohibitions on overbreadth and gross disproportionality are too vague and insufficiently capable of consistent application to qualify.

One of Mr. Honickman’s targets is the tendency of Canadian academics and activists to demand that section 7 be used by courts to force governments to provide all manner of goodies. For example, in Tanudjaja v. Canada (Attorney General), 2014 ONCA 852, the Court of Appeal for Ontario was asked to consider a claim that governments, both provincial and federal, were obliged to implement social programmes to help people access housing. The Court found the claim not to be justiciable, and refused ― rightly, as I have argued. To that extent, I agree with Mr. Honickman: section 7 is, and ought to remain, a shield to protect individuals from the state, not a sword to put to the throat of elected representatives in order to force them to spend money and enact regulations at the behest of interest groups.

Beyond that, however, I do not share Mr. Honickman’s views. I do not think, for instance that the issue of the original meaning of section 7 is as clear as he suggests. In our paper on whether the Supreme Court has actually rejected originalism as a method of constitutional interpretation in Canadian law, Benjamin Oliphant and I argue “that Justice Lamer’s reasoning in Motor Vehicle Reference [was] quite similar to the type of analysis that many (‘new’) originalists would support,” (22) given its close attention to the text and context of section 7. In particular, while Mr. Honickman thinks that Justice Lamer (as he then was) was wrong to ignore the meaning which courts had attributed to the phrase “principles of fundamental justice” in the Canadian Bill of Rights, that phrase was, as Justice Lamer noted, used in an explicitly procedural context in the Bill, rather than as a qualifier of a general guarantee of rights to life, liberty, and security of the person.

Nor am I persuaded that there is a very significant difference between “deprivation” and “infringement” of section 7 rights. A day’s imprisonment would, everyone would agree, constitute a “deprivation” of liberty, but is it really a worse imposition than years without the ability to take elementary precautions imposed by the Criminal Code’s prostitution-related offenses invalidated in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, as Mr. Honickman suggests? I don’t think so. What is, and what is not, a “deprivation” is arguably a matter of degree ― the term used by the framers of the Charter is vague. I agree that it should be taken to refer to somewhat serious interferences, but I’m not sure that the Supreme Court has ever done otherwise.

Nor do I think that we should be distinguishing between “direct” and “indirect” effects of laws whose constitutionality is called into question. Admittedly, as I wrote in my first comment on Bedford,

I think that the Supreme Court conceded too much when it accepted a low, and arguably meaningless, causation standard to find that the impugned provisions caused harm to sex workers. The violence and exploitation which prostitutes suffer are not just “sufficiently connected” ― whatever that means ― to the law. They are its entirely foreseeable consequences.

But while I believe that the Court ought to revise its formulation of the causation standard, I do not think that a notion of “directness” is very helpful. To repeat, the harms caused by the prostitution provisions that gave rise to the constitutional complaint in Bedford were arguably indirect, but real and foreseeable all the same. And while I have, ever since Bedford came out, struggled with some very significant problems that can arise when courts rely on, and indeed expect to be presented with, extensive social science evidence in constitutional cases, I do not think that courts should forswear the use of such evidence, because failure to understand the world in which their decisions apply can cause these decisions to be very badly mistaken.

Finally, I am not persuaded by Mr. Honickman’s criticism of some of the principles of fundamental justice identified by the Supreme Court. The prohibition on gross disproportionality is at least an arguable case ― it certainly involves a measure of subjectivity in its application. But that of overbreadth is a time-honoured legal principle. It is, for instance, a staple of the First Amendment jurisprudence in the United States. Of course, Mr. Honickman is right that identifying a law’s purpose is a somewhat subjective exercise, and that it can potentially be manipulated by judges acting in bad faith, or simply indulging in results-oriented reasoning. But the exercise is a fairly routine one, being at the heart of the application of section 1 of the Charter, and indeed of ordinary statutory interpretation. That it can be done badly does not mean it cannot be done well or should not be done it all. Excessive judicial enthusiasm at identifying principles of fundamental justice is a potential problem for the interpretation of section 7 ― I criticized, for instance, the B.C. Court of Appeal for having pronounced the independence of the bar such a principle, with far-reaching and in my view disturbing implications, though fortunately the Supreme Court did not follow its reasoning. Still, the same could be said of just about any constitutional right. I don’t think that that’s a reason to always construe such rights narrowly.

In short, I am mostly not persuaded by Mr. Honickman’s criticisms of the current section 7 jurisprudence, interesting though they are. While I  share many of his concerns about where that jurisprudence may be headed in the future, I do not think that the way to address them, or to prevent them from becoming reality, is necessarily to reject the current approach, and to narrow down the scope of arguably the most fundamental of all Charter rights. Whatever section 7’s sins, they are not mortal ones.


Section 0

I wrote yesterday about the possibility that the relationship between sections 7 and 1 of the Charter might change in the wake of the Supreme Court’s assisted-suicide decision, Carter v. Canada (Attorney General), 2015 SCC 5. If I am right, however, the changes will only be relevant in a limited number of cases (albeit potentially significant ones). So I think it is also worth saying something about the relationship as it developed in the pre-Carter days, when justifying a section 7 violation under section 1 was generally regarded as well-nigh impossible. (Maxime St-Hilaire has posted a detailed review of the relevant jurisprudence as a comment to yesterday’s post. As he makes clear, while the Supreme Court has often enough analyzed section 7 infringements under section 1, this seems usually to have been pro forma.)

Section 7 is an unusual provision in the Charter because, unlike most others, it has a built-in internal limitation. It does not merely protect rights to “life, liberty and the security of the person,” but also, in effect, provides that it is possible to deprive one of these  ― so long as this is done “in accordance with the principles of fundamental justice.” What those principles are has been controversial (and remains so, as the criticism of the Supreme Court’s recent decision to recognize the lawyers’ duty of commitment to their clients as a new principle of fundamental justice in Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7 demonstrates.) However, as the Supreme Court pointed out in Carter,

three [principles] have emerged as central in the recent s. 7 jurisprudence: laws that impinge on life, liberty or security of the person must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object. [72]

As the Court further explained, “[e]ach of these potential vices involves comparison with the object of the law that is challenged.” [73] Arbitrariness occurs “where there is no rational connection between the object of the law and the limit it imposes on life, liberty or security of the person.” [83] Overbreadth is a situation where, a provision that is not arbitrary nevertheless “goes too far by denying the rights of some individuals in a way that bears no relation to the object.” [85] Finally, gross disproportionality happens when “the impact of the restriction on the individual’s life, liberty or security of the person is grossly disproportionate to the object of the measure.” [89]

Now here’s the thing. These “central” principles look an awful lot like the three prongs of the “proportionality” part of the Oakes test used to decide whether the infringement of a Charter right is justified under section 1. Arbitrariness is like “rational connection”; overbreadth seems similar to “minimal impairment”; and gross disproportionality is reminiscent of the balancing over prejudicial and beneficent effects, or “proportionality stricto sensu.” It might seem, then, that section 7, although infringements to it cannot really be justified under section 1, actually comes with its own section 1 built in.

Except that the Supreme Court has been insisting that it really doesn’t; that, as the Chief Justice put it in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101,  the “parallels” between these provisions “should not be allowed to obscure the crucial differences between the two sections.” [124] I have to admit that when I first read Bedford, this disclaimer seemed difficult to countenance. The parallels really seemed too flagrant. But with an additional explanation given in Carter, I think that there really is a meaningful difference between the “central” principles of fundamental justice and the “proportionality” analysis under section 1.

What makes the distinction between the two so elusive that the Supreme Court is forced to return to and try to clarify it in case after case is that, despite its insistence that “[t]he question of justification on the basis of an overarching public goal is at the heart of s. 1, but it plays no part in the s. 7 analysis,” [Bedford, 125] the “overarching public goal” is, in fact, the reference point for the section 7 analysis as well. And it doesn’t really help to say that, for the purpose of section 7, the objective must be “taken at face value,” [Bedford, 125] because that seems to be exactly what is going on in section 1 cases as well. Nor does it help to say that under section 7

[t]he inquiry into the impact on life, liberty or security of the person is not quantitative — for example, how many people are negatively impacted — but qualitative. An arbitrary, overbroad, or grossly disproportionate impact on one person suffices to establish a breach of s. 7. [Bedford, 127]

In theory, at least, it should be the same under section 1. The number of people affected might be a consideration, if at all, at the last, balancing stage, but if the law is not rationally connected to its objective, or if less impairing alternatives exist, it will not pass the Oakes test even if that number is small.

However, a passage in Carter clarifies things at last. The Court explains that

[i]n some cases the government, for practical reasons, may only be able to meet an important objective by means of a law that has some fundamental flaw. But this does not concern us when considering whether s. 7 of the Charter has been breached. [82]

In theory, at least, that is a (partly) plausible distinction. I say partly, because I still fail to see how a finding of arbitrariness could ever be rescued by the assertion of an “important objective” ― to which the impugned law is, ex hypothesi, not connected. But it seems possible that, in some cases, in would be impossible to draft a law sufficiently precise that it would not be overbroad ― yet, precisely because no possible alternatives exist, it would still survive the “minimal impairment” stage of the Oakes test. This was precisely the government’s argument in Carter ― and, although it did not succeed, it fared better than just about any other attempt to justify a section 7 infringement ever had. It might even be possible to show that a “grossly disproportionate” law has such enormous social benefits that it would survive the balancing stage of the section 1 analysis, though I’m pretty skeptical about that. In this way, the Court’s assertions that the principles of fundamental justice in section 7 are not about public or collective interests make sense and, as the Court has been telling us all along, the “principles of fundamental justice” in section 7 are not exactly an internal section 1.

But, keeping in mind the way in which sections 7 and 1 have interacted until Carter, and are likely to keep interacting in the future, I want to suggest that they are, in effect, a sort of section 0 ― by analogy to Isaac Asimov’s “Zeroth law of robotics.” Asimov’s original “three laws,” go like this (the lower-numbered laws over-riding the higher-numbered ones):

1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.
2. A robot must obey the orders given it by human beings, except where such orders would conflict with the First Law.
3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

Eventually, however, Asimov added an additional law, which he call the “Zeroth,” because it had priority over the First:

0. A robot may not harm humanity, or, by inaction, allow humanity to come to harm.

The First law is accordingly re-written, allowing for its violations in order to respect the Zeroth.

The principles of fundamental justice are similar in that they are considered as logically prior to and, in their actual application, arguably capable of over-riding the “First Law” of the Charter, because they protect an interest even more important than it does.

In a way, however, the relationship between “section 0” and section 1 is the exact opposite of that between the Zeroth Law and the First. The Zeroth Law reflects Asimov’s conclusion that a collective interest was superior to the individual one ― indeed, to the individual interest in life and the security of the person itself. “Section 0” reflects the opposite view, which is logical considering that the Charter, despite its strong acknowledgement of collective interests in section 1, is still the product of an individualist philosophy. Section 1 is important (as is Asimov’s Fist Law) but, at least when it comes to the most fundamental rights of all, it must give yield to an interest that is more important still. Indeed, as I have said yesterday, the Supreme Court’s greater openness to considering a section 1 justification of  a section 7 infringement may well be consistent with, rather than a departure from, this principle, insofar as it still serves to uphold the very same rights protected by section 7.

And as for the question of who, as between the Supreme Court and Asimov, has got the priority of the individual and the collective right, I’ll let you decide. The contest might be a bit unfair though, considering that Asimov’s novels tend to be better written that Supreme Court opinions.

Seven and One

I want to come back to Carter v. Canada (Attorney General), 2015 SCC 5, the Supreme Court’s decision striking down an absolute prohibition on assisting a person to commit suicide, to comment on an aspect of the Court’s reasoning that seems, as best I can tell, to have attracted little attention. The Court found that, as applied to “physician‑assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering,” the prohibition is contrary to section 7 of the Charter. Over at ABlawg, Jennifer Koshan has pointed out that “the Court’s reasons do not add much to the existing jurisprudence defining the scope of section 7.” That is true, so far as it goes. But Carter is a very unusual section 7 case all the same ― not because of what the Court says about section 7 itself, but because of what it says, and does, about the interaction between section 7 and section 1.

In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, Justice Lamer (as he then was) alluded to “war, natural disasters or epidemics” as circumstances in which section 1 could justify infringements of section 1 (albeit that Justice Lamer was specifically discussing infringements motivated by “administrative convenience,” and not some weightier objective). We have (mostly) escaped such ordeals, and all the way up to the (relatively) recent landmark decisions in the Insite case, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, and Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, section 1 has played virtually no role in section 7 cases. Unlike with most other provisions of the Charter, a finding that section 7 is infringed is as good as the end of the matter. Often, the government will not even make more than a perfunctory attempt to invoke section 1.

Carter changes that. The Court points out that

It is difficult to justify a s. 7 violation … .  The rights protected by s. 7 are fundamental, and not easily overridden by competing social interests … .  And it is hard to justify a law that runs afoul of the principles of fundamental justice and is thus inherently flawed. [95; internal quotation marks omitted]

Nevertheless the Court says that

in some situations the state may be able to show that the public good — a matter not considered under s. 7, which looks only at the impact on the rights claimants — justifies depriving an individual of life, liberty or security of the person under s. 1 of the Charter. [95]

Indeed, the Court embarks on a section 1 analysis which, although in some ways conclusory (as I have argued here), is unusually lengthy by the standards of previous section 7 jurisprudence. More importantly, it states that

The question in this case comes down to whether the absolute prohibition on physician-assisted dying, with its heavy impact on the claimants’ s. 7 rights to life, liberty and security of the person, is the least drastic means of achieving the legislative objective. … This question lies at the heart of this case. [103-104]

And so we must ask the question: is the Court is really opening the door to violations of section 7 being justified under section 1? This would be a big deal, and would force us to revise some widely held assumptions ― for example, about the unconstitutionality of the former Bill C-36, the anti-sex-work legislation Parliament enacted in response to the Court’s judgment in Bedford. (Though Michael Plaxton, for one, had cautioned against making such assumptions well before Carter.)

In Carter, the Court suggested that section 1 might save a law that infringes section 7 “particularly[] in cases … where the competing societal interests are themselves protected under the Charter” [95] ― Carter being one such case of course. This is, arguably, a logical line to draw. To violate “principles of fundamental justice” in the name of administrative convenience is one thing; to do it in order to protect life, liberty, or the security of individuals is something different.

Perhaps remarkably, few if any of the big section 7 cases actually dealt with laws that aimed squarely at protecting Charter rights rather than at some other, more pedestrian objective. At best, they aim at furthering diffuse interests such as “public health” and “public safety” ― not the individual health and safety of the people whose rights they restrict. (Criminal law would usually fall in that category. It does protect our right to the security of the person, and even our rights to life and liberty in some cases, but only indirectly, mostly through the rather uncertain mechanism of deterrence.) At worst, they are justified by administrative convenience. The restrictions on sex work struck down in Bedford, which the Court found sought to prevent nuisances, were arguably somewhere in the middle of that spectrum.

Assuming, then, that section 1 will (mostly?) be used to justify infringements of section 7 where the purpose is to protect defined rights of specific persons (and perhaps especially, the rights of more or less the same persons whose rights are being infringed), how common will such cases be? The experience of the last 30 years suggests that they will be few and far between. But at least one such future case readily comes to mind ― that of C-36, which ostensibly aims at protecting sex-workers from exploitation and violations of their dignity.

Carter may, thus, prove a rather more significant part of the Supreme Court’s section 7 jurisprudence than we originally supposed. It calls into question what used to be a safe assumption about that jurisprudence ― that section 1 was not really relevant to it. Of course, in Carter, the Court found that even a full-scale application of section 1 was not enough to save the infringement of section 7. Still, this innovation may yet have consequences ― not very positive consequences, either ― in important future cases.