Canada’s Supreme Court is off-balance as ‘large and liberal’ consensus on the Charter falls apart – The Globe and Mail

Posted: January 19, 2022 at 11:05 am

Illustration by Min Gyo Chung

The decades-old liberal consensus on the Supreme Court was about to shatter, in a case far from the headlines.

On the surface, Quebec v. 9147-0732 Qubec Inc. raised a simple question: Could a company claim the same protection against cruel and unusual punishment that the Charter of Rights and Freedoms ensured for individuals?

The company was facing a mandatory minimum fine of $30,000 for doing unlicensed construction work. The court had already struck down certain punishments against individuals. Why not do the same for fines involving businesses? All nine judges in this case rejected that notion, saying that the protection against cruel treatment exists to protect human dignity, not companies.

Normally, that would have ended debate; yet even as they agreed 9-0 on the matter at hand, they split 5-3 on a far more consequential issue: how to interpret any and all rights in the Charter. (One judge stayed out of this debate.)

The liberals on the court argued that the purposes of Charter rights are what matter most. They are to be discerned not merely from the words of the Charter but by examining how rights such as equality or freedom of expression have played out around the world for instance, in the rulings of other countries courts. That open-ended approach can lead to broad protection of rights and interpretations that change with the times.

The conservatives argued that the text of the Charter has a kind of exalted position a primordial significance, they called it, setting out a more restricted approach they say is less likely to be shaped by the judges own policy preferences.

The November, 2020, dispute echoed one that has obsessed the United States Supreme Court for years. In that country, the debate is between the originalists who believe constitutional rights were frozen in time according to the intent of the founders, and liberals who believe the understanding of rights shifts with the times.

Suddenly the first 40 years of the Charter were up for grabs.

The Charter, which took effect on April 17, 1982, is Canadas constitutional bill of rights, the supreme law that gave individuals the right to challenge any government action that limits basic freedoms. And it gave judges the power to declare these laws invalid.

From the beginning, the Supreme Court said Charter rights deserve a large and liberal interpretation, and the judges used their new powers to change the country, striking down laws that criminalized abortion and medical assistance in dying, and paving the way for gay marriage.

Judges read the Supreme Court's decision on the federal government's constitutional package in 1981, during the buildup to the patriation of the Constitution.Fred Chartrand/The Canadian Press

Now the courts liberal approach to rights itself was in question.

The conservative viewpoint won out: The words of the Charter have primacy. The Constitution is not an empty vessel to be filled with whatever meaning we might wish from time to time, a majority of five judges wrote, a slap not only at the dissenters but seemingly at the court itself for much of its post-1982 history. The implication was that the court had been making up the Charters meaning as it went along.

The dissenters fired back that everything that had made the Supreme Court an international leader on rights was now at risk. Reading the Charter too literally would effectively kill it, they said, quoting a U.S. law professor who warned not to read the provisions of the Constitution like a last will and testament lest it become one.

The case with the unmemorizable name was a tipping point. The Supreme Court was now setting in place a foundation for a narrower interpretation of Charter rights, and a smaller role for the judiciary in applying them.

That was not all. For the first time, the Supreme Court had split almost entirely by party of appointment just like its U.S. counterpart.

Judges chosen by Conservative prime minister Stephen Harper were on one side, and judges named by Liberal prime ministers on the other, with a lone exception on each side.

Supreme Court Chief Justice Richard Wagner, shown on screen, introduces Justice Mahmud Jamal at a 2021 ceremony.Adrian Wyld/The Canadian Press

Ever since that case, the divisions have hardened and the debates have become more rancorous. Seven rulings over the past two years have split the nine-member bench largely by party of appointment. The Harper-appointed judges have won five of them.

A new era has begun at the Supreme Court, driven by new faces, new alliances and new leadership.

The courts previous chief justice, Beverley McLachlin, a fearless champion of rights who was widely acknowledged as an exceptional consensus builder, retired in 2017. Rosalie Abella, the courts most outspoken liberal, left in July. Three judges now hitting their stride including Prime Minister Justin Trudeaus first appointee, Justice Malcolm Rowe are taking repeated aim at the courts long-standing liberal consensus. Presiding over this shifting landscape is Chief Justice Richard Wagner, who tends to be more deferential to government than his predecessor, and less likely to seek consensus on rulings.

The stakes are high. Quebecs Bill 21, banning teachers from wearing religious dress such as hijabs, could be on the docket this year or next. This winter, the court will hear cases on major Harper-era crime laws that allowed for 100-year-plus parole waiting periods for mass killers, and established a four-year mandatory minimum for armed robbery.

The court will be asked whether Indigenous offenders have a special claim to being able to serve their sentences at home for major crimes such as drug smuggling. All manner of new cases are coming on climate change, Indigenous rights, and the rights of women, disabled people and racialized minorities.

The numbered-company case marked a rightward turn. Benjamin Berger, a professor at Osgoode Hall Law School, sees the conservative majority ruling as pivotal. We actually have a different approach to interpreting the Charter after this.

Which side do the justices choose?

Percentage in favour of government or claimant

(All current except Justice Abella)

Note: Numbers don't add up to 100% because some judges sat

on cases but didn't vote

the globe and mail, Source: Globe analysis

of charter cases in the last ten years

Which side do the justices choose?

Percentage in favour of government or claimant

(All current except Justice Abella)

Note: Numbers don't add up to 100% because some judges sat

on cases but didn't vote

the globe and mail, Source: Globe analysis

of charter cases in the last ten years

Which side do the justices choose?

Percentage in favour of government or claimant

(All current except Justice Abella)

Note: Numbers don't add up to 100% because some judges sat on cases but didn't vote

the globe and mail, Source: Globe analysis of charter cases in the last ten years

From the Charters earliest rulings, Chief Justice Brian Dickson laid out an expansive path: Rights were to be applied liberally and generously, not legalistically.

Once enacted, he wrote of the Charter in a 1984 case, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.

Human rights and the power of judges grew steadily afterward, through the Supreme Court appointments of five prime ministers, up to and including Mr. Harper, and then into the early years of a sixth, Mr. Trudeau.

Those were tumultuous decades of change marked by groundbreaking Charter rulings. The federal Lords Day Act, which attempted to compel Christian religious observance by making it a crime to open a store on a Sunday, was struck down (1985); the criminal law on abortion fell (1988); gay rights were read into the Charter (1995); criminal suspects could no longer be extradited to face the death penalty (2001); federal prisoners were restored the right to vote (2002); and medical assistance in dying became lawful (2015).

On seemingly the most divisive of issues, the court was unanimous.

In 2011, when the Harper government tried to close a Vancouver clinic where illegal drug users shot up in the presence of nurses, the court ruled 9-0 it could not do so, because the closing would endanger lives.

In 2013, the court struck down three prostitution laws, 9-0, as endangering sex workers. In 2015, the court was unanimous when it legalized assisted dying.

Chief Justice Beverley McLachlin is sworn into office in 2000.Tom Hanson/The Canadian Press

Yet even that list only hints at the extent of the rights-enhancing, judicial-authority-enlarging consensus of the final years of chief justice Beverley McLachlins tenure.

Harper-era crime laws fell repeatedly. The court even declared a constitutional right to strike, in a 5-2 ruling that reversed a 32-year-old precedent. In 2014, the court went so far as to constitutionalize itself declaring that no government could alter its composition or eligibility requirements without the unanimous agreement of Ottawa and the provinces. It was another unanimous ruling.

Even when there were dissenters, the court did not split by party of appointment; the judges were not partisan, in the sense of favouring legislation from the government that chose them. (And they still arent; of the seven cases that divided the court, most did not involve federal legislation at all.) Chief Justice McLachlin tirelessly promoted internal discussion to minimize disagreement and achieve consensus, Jamie Cameron, a professor emerita at Osgoode Hall, says.

Late in Chief Justice McLachlins tenure, though, three judges joined the court who would soon begin an assault on the consensus. Chief Justice Wagner, who replaced her, would say publicly that dissent is normal in an open society, and that he would worry if the court were always unanimous.

The consensus would break apart.

Richard Wagner, right, delivers the speech at his 2012 welcoming ceremony to the court as Beverley McLachlin, fourth from right, looks on. As chief justices, the two have taken different approaches to forming consensus among judges.Blair Gable/Reuters

In the cases that split by party of appointment, three Liberal appointees have typically voted on the left: Justice Abella (prime minister Paul Martins 2004 pick, and now retired), and the former law deans Justice Sheilah Martin (Trudeau, 2017), and, somewhat less reliably, Justice Nicholas Kasirer (Trudeau, 2019). Justice Andromache Karakatsanis, a Harper appointee (2011), also votes consistently in the liberal camp.

Justice Mahmud Jamal, a Trudeau appointee, has now replaced Justice Abella. He is a wild card on one hand, a former business lawyer who espoused judicial humility in his application form, a term that judicial conservatives in Canada use as a synonym for restraint; on the other hand, hes an activist who took on pro bono Charter cases in many social causes.

Whether the liberal wing will be as bold with him as Justice Abellas replacement is an open question. Underscoring her leadership, she was the author (or in one case, the co-author) of the dissents in all five split cases in which the liberal viewpoint lost.

In the middle, swinging left or right, depending on the issue: Justice Michael Moldaver, a Harper appointee from 2011, and Chief Justice Wagner, whom Mr. Harper chose in 2012, and whom Mr. Trudeau named chief when Ms. McLachlin retired; after 17 years of an anglophone at the helm, it was a francophones turn to be leader. Both Chief Justice Wagner and Justice Moldaver have a tough-on-crime tinge, and are liberal on womens rights. Justice Moldaver reaches mandatory retirement age on Dec. 23.

Justices Suzanne Ct and Russell Brown.Philippe Landreville and Andrew Balfour/Supreme Court of Canada

Stephen Harper, who stood well outside of the liberal consensus (he once accused the court of acting unconstitutionally by reading gay rights into the Charter), appointed two of the three consensus-busting judges: Justice Suzanne Ct (2014, but too late to hear the big cases such as assisted dying), and Justice Russell Brown (2015).

Justice Brown was an obvious outlier when Mr. Harper appointed him from the Alberta Court of Appeal in 2015. An acerbic blog hed published years earlier, when he was a law professor at the University of Alberta, made that clear. He described himself as a conservative libertarian, took shots at Justin Trudeau, then in opposition (unspeakably awful) and even launched a fusillade at then-chief justice McLachlin, wondering whether she had an anti-Conservative bias. A rugby player, he seemed to enjoy knocking heads.

Justice Ct has been an outlier par excellence. In her first three years, she became the most frequent dissenter in the courts post-1982 history, breaking from the majority in 32 per cent of cases, according to research by University of Ottawa law professor Vanessa MacDonnell. The 10 judges who sat alongside Justice Ct in those three years dissented on average in just 8 per cent of cases.

The first woman appointed to the Supreme Court directly from practice, she had been known as a ferocious litigator the description is from Montreal lawyer Doug Mitchell when she was representing Big Tobacco, among other clients. She brought a litigators go-it-alone spirit to the court.

The third consensus-buster is Justice Malcolm Rowe the first appointee from Mr. Trudeau. Mr. Rowe, appointed in 2016, would become Mr. Trudeaus gift to the conservatives on the court, augmenting Stephen Harpers legacy, much as Justice Karakatsanis proved to be Mr. Harpers present to the liberals.

The avowedly pro-Charter Mr. Trudeau, whose father Pierre was the visionary who launched the constitutional bill of rights, had initially announced that he was seeking to increase gender and racial diversity with his first appointment and would do a nationwide search. He was pushed, however, to respect a convention that required the next judge to come from Atlantic Canada. Justice Rowe, though a white male, did bring diversity: he was the first appointee from Newfoundland and Labrador.

In Canadian terms, he is a judicial conservative. Not a social conservative and not remotely tough on crime. But a firm believer in judicial restraint the idea that judges should not make rulings based on their policy preferences. That makes them more like legislators than judges, in this view.

We should stay in our lane, he told the Runnymede Society, a Canadian group that aims to shake up what it sees as liberal uniformity on the bench and in law schools.

He has lived up to those words. Of all the judges with whom he has sat on the Supreme Court, he has sided most often with government in Charter cases, and least often with the individual claiming a Charter violation, research by The Globe and Mail found. An outlier, he almost never writes for the majority in Charter rulings that are not unanimous not even a handful in five years.

In Canada, judicial conservatism is associated with deference to Parliament, a limiting of the judicial role, a respect for the separation of powers. Justice Rowe says he endorses the liberal idea of the living-tree approach the idea that the Charters interpretation can change with the times and is capable of growth and expansion within natural limits but only to a point. Sometimes people leave off the part about the natural limits, he said in a keynote address to Runnymede last spring. (The Globe attended the groups virtual conference.)

Like the other two consensus-busters, he is a disruptor. He can be irascible or sarcastic in the courtroom when he feels lawyers are pushing the judges beyond where they should go. In the fall he stunned lawyer David Butt, who was pressing for greater participation in the legal process for sexual-assault complainants, by saying that his approach reminded him of Chairman Maos Great Leap Forward.

The self-made Justice Rowe, whose father had a Grade 6 education, has a deep background in government. Before he was an appeal-court judge in Newfoundland and Labrador, he was the head of his provinces civil service, and before that an adviser to Progressive Conservative justice minister John Crosbie in Ottawa.

With remarkable candour, he explained the conservative revolt against the continual expansion of rights and the judicial role. Were being pushed, pushed, pushed, more and more and more, to take on this larger role, he said at Runnymede, expressing frustration with an environmental group that wanted the court to compel governments to take action on climate change. Discretion cant be free flowing. It cant be absolute discretion. To be properly legally exercised it must be exercised in accordance with principles or a framework. Thats sort of going out of vogue.

Lawyers, he said, are so limited in their understanding that they are blissfully unaware of their own ignorance. He added: To have courts, judges, reformulate policy, redesign programs, direct public finance is about as sensible as asking me to fly an airplane or perform brain surgery.

Justice Malcolm Rowe.Andrew Balfour/Supreme Court of Canada

Alone or in combination, Justice Rowe, Justice Brown and Justice Ct have pushed to constrain rights and the judges role. Consider the right to a French-language education for francophones outside Quebec. When the court defined that right to mean the same high-quality schooling as the majority, even if that means comparing rural French-language schools to English schools in populous areas, Justice Brown and Justice Rowe dissented in a 7-2 ruling in 2020.

How about the criminal-justice systems treatment of impoverished offenders? The court ruled 7-2 in 2019 that a Harper-era mandatory surcharge forcing all offenders to pay for victim services was cruel and unusual punishment of the poor, and therefore illegal. Justice Rowe and Justice Ct dissented.

When the court voted 5-2 to restore the right to vote in federal elections, for Canadians who have been outside the country for more than five years, Justice Brown and Justice Ct dissented in the 2019 case.

Womens rights? The court ruled 6-3 in 2018 that a Quebec pay-equity law that did not allow for retroactive payments was illegal discrimination against women. This time all three dissented. Gay rights versus religious freedom? The court rejected a proposed Christian law school 7-2 over its requirement that gay married students renounce sexual activity; Justice Brown and Justice Ct dissented in the 2018 ruling. Climate change? Last year, the court ruled 6-3 that the federal government could impose a carbon tax on the provinces; the trio dissented.

International human rights? When the court ruled 5-4 in 2020 that African workers had a right to sue a Canadian company in Canada, over allegations of torture, the trio dissented, joined by Justice Moldaver. Chief Justice Wagner swung the vote to the liberals.

The three as a unit differ from the rest of the court in that they take a much more cautious and gradual approach to developing the law, Thomas Slade, a lawyer at an Ottawa firm specializing in the Supreme Court, said. They will sooner look to existing legal principles than to try to create new ones. If they were contractors, theyd be renovating an old house rather than building a new one.

Justice Rosalie Abella.Chris Helgren/Reuters

The sometimes-harsh tenor of debate illuminated how divided the court has become.

A 6-3 ruling by Justice Abella that found the RCMP discriminated against women was corrosive of the rule of law, Justice Brown and Justice Rowe wrote in a joint dissent in 2020. (Justice Ct wrote a separate dissent.) Justice Abella called their dissent formalistic, mechanistic, sterile, stuck in the pre-Charter era and merely a repeat of their dissent from the Quebec pay-equity case.

University of Calgary law professor Howie Kislowicz says he is seeing pretty fiery rhetoric for the Supreme Court of Canada. For a reader of the Supreme Court of the United States it still seems pretty tame, but it seems to be moving in that direction. That I find notable, maybe even a little troubling. It can end up highlighting the personalities in conflict, which I dont think is healthy for the law.

The efforts of the consensus-disrupting trio have called into question some of the courts long-held premises. Their dissents have ensured that certain legal issues havent been laid to rest, Mr. Slade says. Unanimous judgments are like throwing cold water on the fire. Dissents, on the other hand, keep the embers burning, making it easier for those legal issues to take life again.

The stage was set for Quebec v. 9147-0732 Qubec, and the battles to come.

Illustration by Min Gyo Chung

Not surprisingly, Justice Rowe and Justice Brown spoke for the conservative majority in the numbered-company case. Their decision, in its central thrust and disdainful tone, sounded like a cross between Justice Rowes address to Runnymede and Justice Browns old blog.

Consistency and coherence matter, they said; the dissent from the liberal judges had added to the confusion around the courts use of international law and rulings from other countries. They offered a new, more restrictive framework for using these non-Canadian sources. Regarding the warning not to make the Charter a last will and testament, they said it was a felicitous line but it didnt diminish the texts primordial significance. They stressed that their position was in keeping with how Chief Justice Dickson wanted things to be. (Justice Rowe called himself an orthodox Dicksonian at Runnymede.)

Three dissenters, led by Justice Abella, called the majoritys approach insular, a major insult for a national court. (The remaining judge, Justice Kasirer, chose not to join either side.) Like the majority, they cited Chief Justice Dickson for support. But they said giving the text primacy could limit the scope of the rights being protected.

Overemphasizing the plain text of Charter rights creates a risk that, over time, those rights will cease to represent the fundamental values of Canadian society and the purposes they were meant to uphold, Justice Abella wrote.

Conservative academics such as Dwight Newman at the University of Saskatchewan say the liberal emphasis on the purpose of rights known as the purposive approach has led to a free-floating exercise. Once you say youre engaged in a purposive approach and you cite principles like the living-tree principle enough, then it becomes an invitation to engage in revision of the law, based on personal preferences, he said.

But to liberal critics, the majority ruling had turned away from the courts long-held belief in the importance of international law, and influential rulings from other leading judicial bodies such as the European Court of Human Rights. I fear that in the Quebec case were cutting ourselves off from that, Sujit Choudhry, a constitutional lawyer who practises globally and in Canada, says. He called the European court the worlds most important human-rights court.

The conflict on the Canadian Supreme Court was over entirely different visions of what judges in a constitutional democracy do a conflict that continues to play out.

Toronto Mayor John Tory embraces Councillor Gord Perks at a 2018 oath ceremony after an election where city council was greatly reduced by order of the province of Ontario.Fred Lum/The Globe and Mail

The question in Toronto Council v. Ontario in October was whether unwritten constitutional principles the implicit values of the Charter could be used to strike down a law, even when no explicit right was violated. It was a variation on the argument about the primordial significance of the text.

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Canada's Supreme Court is off-balance as 'large and liberal' consensus on the Charter falls apart - The Globe and Mail

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