R v Boudreault: Parliament’s Cross to Bear

The rule of law does not countenance the frequent use of suspended declarations.

In R v Boudreault, 2018 SCC 58 the Supreme Court of Canada (per Martin J) struck down s.737 of the Criminal Code, which requires an offender who is found guilty, is discharged, or pleads guilty to an offence under the Criminal Code or the Controlled Drugs and Substances Act to pay a “mandatory victim surcharge.” The Court found that the surcharge constituted “cruel and unusual punishment” under s.12 of the Charter, because the victim surcharge was levied on offenders regardless of “the inability to pay, the likelihood that they will face a repeated deprivation of liberty for committal hearings, or the indefinite nature of the punishment” [45]. The Court struck down the law with immediate effect.

The substantive merits of the case are not my concern, and others have summarized them. But I can’t resist dipping my toe in the water. The test developed under s.12 of the Charter of “gross disproportionality” applied to “reasonable hypothetical scenarios” has always troubled me. Gross disproportionality is not necessarily co-equal with “cruel and unusual” punishment, the latter being a legal term of art that also appears in older constitutions, like the United States’ (8th Amendment). Issues of application arise, too: it is one thing for a criminal sentence to be grossly disproportionate, but it strikes me as odd to say that a victim surcharge, parasitic on the conviction assessed against the individual, is “grossly disproportionate” or even “punishment.” The offender is simply being asked to bear some of the costs of her criminal conduct.

But, though I disagree with the substantive outcome, I take the s.12 violation as a given—instead, I think the more interesting part of the case is the decision on remedies. I see Boudreault as a small step towards peeling back the force of the suspended declaration of invalidity, which has, in recent years, been the constitutional remedy adopted by the court on the say-so of the government. This state of affairs corrodes the important organizing principle of Canada’s constitutional remedies law: the rule of law itself.

How does the rule of law situate itself in the doctrine? The remedial authority for striking down laws is s.52 of the Constitution Act, 1982. That provision simply declares that the Constitution is supreme—and so it follows that laws contrary to the Constitution are invalid. A law that is unconstitutional is no law at all, and no court or government official should apply or enforce laws that are unconstitutional.

Section 52 does not say anything about “suspended declarations,” yet they have become the go-to remedy for the Court in constitutional cases. Because the Constitution should be interpreted consistently, any justification for suspended declarations should similarly be found in the rule of law itself. But this has not been the way for the Court, which often suspends declarations without much of a thought. For example, suspended declarations were endorsed in both Bedford (prostitution laws rendered unconstitutional) and Carter (criminal prohibitions on assisted dying rendered unconstitutional). In the former case, there was barely any comment on the matter from the Court. It noted that, “[w]hether immediate invalidity would pose a danger to the public or imperil the rule of law… may be subject to debate” [167]. A mere two paragraphs later, the Court concluded that, “considering all the interests at stake” the declaration should be suspended [169]. In the latter case, the Court’s analysis was similarly brief: “We would suspend the declaration of invalidity for 12 months” [128]. What’s more, the government couldn’t meet the deadline imposed by the Court, and actually received an extension of the suspension. In these cases, the suspended declarations seemed the declaration of rote when the Court was faced with a certain type of high-profile case.

This era of the suspended declarations stands uneasily with a generation previous. The first case in which the suspended declaration was used was the Manitoba Language Reference. There, the Court found Manitoba’s failure to publish laws in both official languages to be unconstitutional; accordingly, all of Manitoba’s laws were constitutionally invalid. But the Court recognized that an immediate declaration of invalidity, reaching forwards and backwards, would invalidate all laws and acts taken under those laws in the province of Manitoba, creating a “legal vacuum” [753]. The Court framed this concern in terms of the rule of law. By declaring the statutes invalid, an element of the rule of law would be sacrificed, the part that “requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order” [749]. And because the rule of law required the maintenance of this order of laws, an immediate declaration according to s.52 would undermine it.

Slowly but surely, the Court extended (or, arguably, replaced) this rule of law justification for suspended declarations. In Schachter, the Court listed three situations in which a suspended declaration would “be warranted”: the rule of law justification in Manitoba Language Reference, where striking down the legislation would “pose a danger to the public”; and where striking down legislation could deprive “deserving persons” of benefits.

So, the situation can be mapped in three general phases–simplified, of course: (1) Manitoba Language Reference, where the rule of law provided the exception to an immediate declaration (2) Schachter guidelines and (3) the Bedford/Carter era, where neither the rule of law or the Schachter guidelines figure prominently in the Court’s analysis. Bedford/Carter are in this respect a far cry from the Manitoba Language Reference. But in Boudreault, the Court seemed willing to at least lurch backwards toward Schachter. It ultimately concluded that “[t]he respondents have not met the high standard of showing that a declaration with immediate effect would pose a danger to the public or imperil the rule of law” [98]. To the extent that the Court actually ties back its conclusion on suspension to the Schachter guidelines, it seems willing to move away from the idea that a declaration should be suspending merely on the government’s submission. The Court characterized the Schachter guidelines as a a “high bar” [98]. And the Court, promisingly, framed its reason for hesitance in the language of the rule of law: “…in my opinion, a suspended declaration in this case would simply cause more offenders to be subject to cruel and unusual punishment” [98].

So, Boudreault can be seen in two ways. It can be seen as a throwback to a more disciplined application of the Schachter guidelines, which would be a welcome and easy doctrinal change. At the very least, the Schachter guidelines are predictable and are related (if only tangentially) to the rule of law. Or, for those of us who are more positive, Boudreault can be seen as justifying a more robust doctrine of constitutional remedies based on the rule of law, where suspensions are confined to narrow circumstance; the government is forced to deal with constitutional violations and plan for the eventuality that certain laws may be more susceptible to a successful challenge.

Any such courageous doctrinal change should start from the perspective of the rule of law. For example, it strikes me that the third Schachter category—deprivation of benefits—does not create a situation impacting the rule of law at all, and so should not justify a suspended declaration. Situations involving public safety could impact the rule of law, but the bar would have to be exceptionally high. In democratic societies of order, only the most massively disruptive situations of public safety would imperil the rule of law and justify the further imposition of unconstitutional laws. This would be a rarely used category.

Similarly, an allowance for suspensions on rule of law grounds would similarly be narrow. I can envision marginal situations like the Manitoba Language Reference, where a significant portion of the laws on the books are declared invalid, depriving a jurisdiction of a positive order of laws; or where a particularly important law governing some central set of legal relations is declared invalid (an example escapes me). Even this latter suggestion is perhaps a bridge too far, because any law could be “important.” Nonetheless, this rule of law justification would be narrowly confined, significantly more so than the Court’s existing doctrine

Those who favour suspensions might retort that, both institutionally and constitutionally, legislatures are owed deference in remedying constitutional violations. But to my mind, deference does not attach to this point of the constitutional analysis. It is one thing to defer to a government’s laws when determining whether they violate particular constitutional rights. To strike down a government law is not something that should be taken lightly, given the classic countermajoritarian difficulty—this is why stable and principled doctrine is so important. But once the law has been struck down by a court, it is wholly the legislature’s job to solve the constitutional problem. Absent some overriding rule of law concern, it is usually not (and shouldn’t be) the job of courts to patch up laws or give governments an assist through suspensions. After all, Parliament legislates. When it errs, Parliament must fix its mistake. This is its cross to bear.

In this sense, Boudreault is a refreshing change in tenor for a Court that has generally afforded deference through suspensions. One hopes it’s a renewed look to the rule of law.

Why’d You Do This?

Giving Parliament more time on assisted suicide, the Supreme Court fails to explain itself

On Friday, the Supreme Court issued its ruling on the federal government’s request for an extension of the suspension of the declaration of unconstitutionality of the Criminal Code’s provisions that have the effect of making assisted suicide unlawful in all circumstances. The ruling, Carter v. Canada (Attorney General), 2016 SCC 4 (which I suppose will be known as Carter II, to distinguish it from the merits decision, Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331) extends the suspension for another four months ― instead of the six requested by the government. Emmett Macfarlane has a scathing op-ed in the Globe and Mail, arguing, convincingly in my view, that the Supreme Court’s decision is unprincipled and illogical. I have nothing much to add to prof. Macfarlane’s comments regarding the substance of the decision. I do, however, want to say something about procedure and form.

The Supreme Court’s decision-making process was hurried. The oral argument took place last Monday, and the decision came out on the Friday afternoon. Why the rush? The original suspension of the declaration of unconstitutionality had three more weeks to run. It is nice of the Court not to wait until the last possible moment ― but did it have to issue its decision with less than an hour’s notice on a Friday afternoon? I won’t speculate as to the reasons why the Court did this, but whole business looks a bit shambolic.

As for form, my complaint is that the Supreme Court provides no justification for its conclusions. The Court agrees, unanimously, to extend the suspension of the declaration of unconstitutionality, but the sum total of its explanation is this:

In this case, the length of the interruption of work on a legislative response to the Court’s decision due to a federal election constitutes [an extraordinary] circumstance. Parliament was dissolved on August 2, 2015 and officially resumed on December 3 of that year. This four-month delay justifies granting an extension of the suspension of the declaration of invalidity, but only for four months. [2]

The invocation of an election as effectively a time-stopper for calculating the delay Parliament has to respond to the Court’s ruling is unprecedented ― and unexplained. Why did the Court never mention the matter earlier? And how much sense does it make to think that a day on which Parliament was not able to sit to consider a response to the Court’s ruling must necessarily be recouped later on? After all, it’s not as if Parliament had spent every day on which it would have been able to do so actually doing it!

Beyond that, the Court simply ignored the issues that were debated at oral argument (about which I wrote here). There was, for instance, a good deal of discussion about whether a comprehensive legislative framework dealing with assisted suicide is necessary to avoid creating paralyzing uncertainty for the medical profession and other stakeholders. The Court says nothing at all about this in its opinion. Nor does the Court even mention another issue that got a good deal of attention on Monday ― the role of the provinces in devising the regulatory framework for assisted suicide. And the Court keeps ignoring broader issues about when, if ever, suspended declarations of unconstitutionality are appropriate, and how much explanation should be given when they are granted. (Though if this ruling is anything to go by, the Court still believes that the answer to the latter question is “none whatsoever.”)

When I commented about the oral argument, I expressed the hope that the Supreme Court’s “ruling, whatever its conclusion, [would be] mindful of the issues that it will inevitably raise and that go well beyond just this case.” My hope was not fulfilled. Prof. Macfarlane says that the Supreme Court “needs to reconsider its use of suspended declarations.” I have in the past been more willing than some others to defend the Court’s use of this remedial device. But if the Supreme Court cannot exercise this power it has granted itself in the way any judicial power ought to be exercised ― that is, in a transparent and rule-bound fashion ― then it should renounce it altogether.

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.

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.