With assisted dying legislation looming large, Canadians have started to consider more fully not just what is ethical, but also what is the Law and what are our Rights. And nine Supreme Court justices, while a small number, count a lot when sorting through those issues.
You want a number? Nine.
OMG! When I hear the Liberal leader utter those words during the election debate on August 6, I could do cartwheels, had it not been for my muscles being like jello after a swim. It is rare for a political leader to defer to courts. But that is what Mr. Trudeau is doing. (Video link here)
Apologies: this post is longer and more pedantic than most. I am providing some background information on courts that will help to understand my next forays, which will address the performance so far of Justice Minister and Attorney General, the Honourable Jody Wilson-Raybould.
So, what is the import of now-Prime Minister Trudeau’s ability to count to nine? It is that we live in a world governed by law, and that when push comes to shove and at the end of the day, every day, it is our nine Supreme Court justices that are the final arbiter’s of law in Canada.
At the risk of causing my good lawyer friend (he is both a good friend and a good lawyer) to pull out some of his precious remaining hair, I am going to explain some legal considerations that actually affect our lives. For those legally inclined, I acknowledge and apologize that am simplifying complex issues without a brief-full of caveats. I guess that is my sole caveat.
The final arbiter
Courts sometimes clarify, and sometimes make law. And in all/most/many cases, once they have done that, it’s sorta the end of the debate. So, for Conservatives to say that a proposed assisted dying law, in both the court ruling and the government’s legislation, goes too far; or for the CPC to have maintained that marriage is only between a man and a woman until only a few days ago just flat-out ignores, flouts, and misrepresents now-established Law and Canadian’s Rights. That was the import of Mr Trudeau’s answer of “nine:” NDP Leader Mulcair claims that 50% plus one would win a referendum in Quebec, when the Supreme Court of Canada (SCC) was clear in the Secession Reference that the NDP’s math is insufficient.
Ultimately, our job as judges of the Supreme Court of Canada is to settle questions about the law – including the Constitution – and how it should be applied. … Governments may unintentionally cross the line between constitutional conduct and unconstitutional conduct.
… courts perform their essential duties … in accordance with settled principles of law and interpretation, with restraint and appropriate deference to the roles of the legislature … and with concern for women, men and children who make up the public.
– the Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada
Once the Supreme Court of Canada has held that a law is unconstitutional, there can be no doubt about the status of the law: it is invalid, and need not be obeyed. The same result follows from a holding of invalidity by a lower court.
– Peter Hogg, cited in Dunbar and Edge v. Yukon Government et al.
From Wikipedia we learn:
Stare decisis is a legal principle by which judges are obligated to respect the precedent established by prior decisions.
This means both that lower courts have to respect the decisions of superior courts and also that a court accepts its own previous rulings as precedent. That, for instance, explains why the conservative-dominated US Supreme Court never just threw out the pro-choice Roe vs Wade case, but rather chipped way at it slowly. And that points to a particular conundrum that the SCC faced in Carter v. Canada (Attorney General), the current law on assisted dying.
You may remember the case of Susan Rodriguez, suffering from ALS, who argued before the Court in 1993 for a physician-assisted death and lost. Given the similarities with the living sufferer involved in Carter, the Court needed to “distinguish” (argue why it does not apply) the Rodriguez case:
However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.
In Carter, the Court demonstrated that precedents relating the Charter of Rights and Freedoms were now much more mature and studied than they had been in 1993, in particular as they relate to Section 1’s “reasonable limits” on freedoms and Section 7, which relates to “Life, liberty, and security of the person.” That’s the same section that played a pivotal role in 2013 prostitution case, Canada (AG) v. Bedford.
A “living tree”
In the famous “Person’s Case” in 1929, the British Judicial Committee of the Privy Council in Edwards v. Canada (AG) set a major precedent. The SCC had taken a strict textual approach to opine that, while women were persons, they were not “qualified persons,” for entry into the Senate. Well thank god for the Brits! Subsequently, the Judicial Committee invented a new Canadian approach to interpret texts. The Lord Chancellor, Viscount Sankey, writing for the committee, stated:
The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions, it has been subject to development through usage and convention.
What’s the import of this? It means that the meaning of our constitutional texts change with the times. Since the Persons Case, the living tree principle has been extended from the former-BNA to include the Charter.
Now, we can compare this “leaving tree” idea to what is sometimes called “textualism,” and sometimes called “originalism” by conservative justices in the U.S. From the NY Times obit:
The centerpiece of Justice Scalia’s judicial philosophy was his commitment to the doctrine of originalism, which sought to interpret the Constitution as it was understood at the time of its adoption. …
“We have now determined,” he said in remarks in Philadelphia in 2004, “that liberties exist under the federal Constitution — the right to abortion, the right to homosexual sodomy — which were so little rooted in the traditions of the American people that they were criminal for 200 years.”
He added that his colleagues may soon discover a right to assisted suicide between the lines of the text of the Constitution.
“We’re not ready to announce that right,” he said, more than a little sarcastically. “Check back with us.”
The interesting case of the Reference
The original ruling in Carter was made by the BC Supreme Court in 2012. It was then argued in the BC Court of Appeal before the Supreme Court of Canada decided to hear the case. That’s three courts and about three years. That’s a pretty horrible burden for anyone in search of a Right. In Canada, we have a shortcut, where cases do not have to wind their way through a provincial system towards the SCC. While neither the UK nor the US have this, in Canada legislatures are permitted to pose questions directly – to make “references” – to their highest jurisdictional court. Some examples are:
- The SCC Reference re Resolution to amend the Constitution in 1980 that prevented Prime Minister Trudeau the Senior from unilaterally repatriating the Constitution.
- The SCC Reference re Secession of Quebec in 1996 relating to the circumstances under which a province could separate from Canada.
- The Reference to the SCC re Same-Sex Marriage in 2004
- The Supreme Court of BC Reference re: Section 293 [polygamy] of the Criminal Code of Canada in 2011.
Pin the tale on the Court
References or court challenges can be used to spin a tale or lay the blame on a Court. Sometimes a government does not have the courage to show leadership, or knows it hasn’t a hope of winning. It will set up a court to take the fall. So, while the Liberal governments of Prime Ministers Chretien and Martin knew exactly what their moral and legal obligation was to legitimize same-sex marriage, they wanted to be seen to be forced to comply by the courts, hence the reference. Similarly, the Harper government sent a reference to the SCC on Senate reform, when any first-year law student could have told it the answers, especially considering the Quebec Senate Reference made only a few years earlier.
Any court might do
It’s not only the SCC that establishes precedent: lower courts can also, although other provincial courts are not bound by them. For example, there were significant challenges to prohibitions of same-sex marriages in Ontario, BC, and Quebec, which all articulated the Right. The SCC did not entertain appeals from any of these. In the Yukon, a comparable court case merely referenced the Ontario case and said, in effect, “We’ll have what they are having.”
A good read
Once you start to understand the way that court rulings are made and their impact on our lives, they become wonderfully readable (remember there was the Wonky Warning at the start). They are not written only for lawyers: they are written to be accessible for Canadians so that we can better understand our laws that under-pin our rights. Or maybe it’s our rights that under-pin our laws. Or both.
Below I have included excerpts from the Secession Reference, which was written as a guide to understanding Canadian democracy. It is a moving and inspiring read. That is, if you have another ten minutes or so (the numbers, starting at 220 are the page numbers).
Go and pour a tall scotch and come back for a secondary read.
INDEXED AS: REFERENCE RE SECESSION OF QUEBEC
File No.: 25506.
1998: February 16, 17, 18, 19; 1998: August 20
Present: Lamer C.J. and L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
It is necessary to make a more profound investigation of the underlying principles animating the whole of the Constitution, including the principles of Constitution, democracy, constitutionalism and the rule of law, and respect for minorities.
The Court —
Representation in the Lower House was to be based on population, whereas in the Upper House it was to be based on regional equality, the regions comprising Canada East, Canada West and the Maritimes.
Our Constitution is primarily a written one, the product of 131 years of evolution. Behind the written word is historical lineage stretching back through the ages, which aids in the consideration of the underlying constitutional principles. These principles inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based. The following discussion addresses the  four foundational constitutional principles that are most germane for resolution of this Reference: federalism, democracy, constitutionalism and the rule of law, and respect for minority rights. These defining principles function in symbiosis. No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other.
The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a “living tree”, …
In a federal system of government such as ours, political power is shared by two orders of government: the federal government on the one hand, and the provinces on the other. Each is assigned respective spheres of jurisdiction … .
The principle of federalism recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction.
Democracy is commonly understood as being a political system of majority rule. It is essential to be clear what this means.
The Court must be guided by the values and principles essential to a free and democratic society which I believe to embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.
In institutional terms, democracy means that each of the provincial legislatures and the federal Parliament is elected by popular franchise.
It is, of course, true that democracy expresses the sovereign will of the people. Yet this expres- sion, too, must be taken in the context of the other institutional values we have identified as pertinent to this Reference.
The consent of the governed is a value that is basic to our understanding of a free and democratic society. Yet democracy in any real sense of the word cannot exist without the rule of law. … Our law’s claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the “sovereign will” or majority rule alone, to the exclusion of other constitutional values.
(d) Constitutionalism and the Rule of Law
At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.
… the rule of law provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all.
Simply put, the constitutionalism principle requires that all government action comply with the Constitution. … This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, …
An understanding of the scope and importance of the principles of the rule of law and constitutionalism is aided by acknowledging explicitly why a constitution is entrenched beyond the reach simple majority rule.
Although democratic government is generally solicitous of those rights, there are occasions when the majority will be tempted to ignore fundamental rights in order to accomplish collective goals more easily or effectively. Constitutional entrenchment ensures that those rights will be given due regard and protection.
By requiring broad support in the form of an “enhanced majority” to achieve constitutional change, the Constitution ensures that minority interests must be addressed before proposed changes which would affect them may be enacted.
Constitutionalism facilitates — indeed, makes possible — a democratic political system by creating an orderly  framework within which people may make political decisions. Viewed correctly, constitutionalism and the rule of law are not in conflict with democracy; rather, they are essential to it. Without that relationship, the political will upon which democratic decisions are taken would itself be undermined.
(e) Protection of Minorities
The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities. However, it should not be forgotten that the protection of minority rights had a long history before the enactment of the Charter.
… the framers of the Constitution Act, 1982 included in s. 35 explicit protection for existing aboriginal and treaty rights, … The “promise” of s. 35, as it was termed in R. v. Sparrow,  1 S.C.R. 1075, at p. 1083, recognized not only the ancient occupation of land by aboriginal peoples, but their contribution to the building of Canada, and the special commitments made to them by successive governments.
Photos and illustrations:
Leader’s debate: Excerpted screen grab; photo of SCC building: © 2002 by Ian Hornby