Challenges in Canadian Constitutional Law

On 17 October 2018 the Programme for the Foundations of Law and Constitutional Government welcomed four distinguished speakers from Canada to a one-day workshop on Challenges in Canadian Constitutional Law. Justices Grant Huscroft and Bradley Miller of the Ontario Court of Appeal, Professor Dwight Newman of the University of Saskatchewan, and Professor Grégoire Webber of Queen’s University, led a lively discussion with an audience of senior and junior scholars.  

Charter values

The workshop was divided into two sessions. The first session, led by Justices Huscroft and Miller, focused on the intriguing idea of ‘Charter values’, which is increasingly invoked in judicial reasoning and academic debate in Canada. The idea was first deployed in the domain of (horizontal) relations among private parties, who under the Canadian Charter (part of the Constitution Act 1982) do not have rights over, or duties to, one another. The loose idea of ‘Charter values’ – of which there is no authoritative, canonical list – eventually migrated to the domain of judicial review of administrative action, and even to the field of statutory interpretation. The workshop contributions stressed the fundamentally unstructured, ad hoc nature of legal appeals to open-ended ‘Charter values’, which appeals often enough have the upshot of maximizing judicial discretion in ways hard to reconcile with respect for the Rule of Law.

For, on the one hand, reliance on ‘Charter values’ may unjustifiably trade on a false equivalence of this idea with the idea of Charter rights and the reasoning apparatus thereto associated, which involves assertions of limitations of rights liable, and open, to justification. And, on the other hand, broad ‘Charter values’ such as dignity, equality or liberty may be asserted, and in practice have been recognized, as warrants capable of trumping Charter rights, thereby claiming an unearned priority not only over other legal principles but also over rights themselves. Reliance on ‘Charter values’ as a judicial reason to change the common law, and possibly to invalidate legislation, is a doctrinally untenable and morally flawed scenario that highlights the need for scholarly scrutiny and regimenting analysis to rein in a development that jeopardizes the very values in the name of which this incipient rhetoric operates.

The logic of rights

But the present-day logic of constitutional rights reasoning is itself not free from pitfalls – a view proposed in the second session of the workshop, led by Professors Newman and Webber. The Canadian Charter, per its section 1, ‘guarantees the rights and freedoms set out in [the Charter] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. Judicial reasoning about limitations of rights has for some time been dominated by the conceptual apparatus of ‘proportionality’. This apparatus summons the interpreter to assess the justifiability of a legal measure that putatively limits a right by considering several questions, namely: (i) the measure’s objective, (ii) the measure’s rational connection to the objective, (iii) the existence of alterative means, and (iv) whether the measure is warranted in light of an overall ‘balancing’ exercise. Proportionality, in this technical sense, in effect turns reasoning about rights limitations into a two-step analysis that amounts to asking whether somebody’s constitutional right (first step) can be justifiably infringed (second step). The second step’s heavy reliance on considerations of justice and moral appropriateness carries the implication that there are morally justified, indeed morally necessary, infringements of rights. Proportionality reasoning is thus liable both to normalize the idea of rights infringements, and to lend prima facie strength to non-legitimate rights claims (eg a ‘right’ to pornography). These infelicities are symptoms of the fundamental malaise of proportionality: appeal to an essentially empty formula judicially imported into the constitutional text bestows apparent plausibility to legally uncontrolled and uncontrollable – unconstitutional – exercises of judicial law-making.

Workshop participants put forward a number of legal correctives or alternatives to proportionality as devices to safeguard the separation of powers in ways firmly rooted in the constitutional text. One proposal advocated an originalist understanding of the Charter’s reference to a ‘free and democratic society’ as a reference to the state of Canadian law in 1982, complete with provisions not repealed in the preceding decade. On this view, the makers of the constitution should be deemed to have understood the Charter’s aim to be to preserve, rather than reform, a society regarded as already being ‘free and democratic’. It was noted that this is how governmental and educational institutions presented the Chapter at the time of its inception. The three-year implementation period set for section 15 (per section 32(2)) was flagged up as a potential challenge to this reading.

Another proposal favoured a quasi-procedural construction of the notion of ‘demonstrability’, directing the interpreter to the reasons provided by legislators voting for the legal measure under scrutiny. These reasons ought to be presumed to be sufficient in all but extreme circumstances, the test for which would develop through an accruing body of jurisprudence. A related proposal drew on the longstanding ‘clear mistake’ rule of American constitutional law. A concern was expressed that such strategies might replace one interpretative superstructure with another.

A third set of proposals questioned the propriety of conceiving of the rights nominally listed in the Charter as genuine legal rights. The Charter’s recurrent phrasing in the form ‘Everyone has a right to X’, which leaves unstated who has a duty to perform which conduct for the right-holder’s sake, has its origins in the 1948 Universal Declaration of Human Rights, which is a non-binding, programmatic instrument. The makers of the Charter transposed a formulation fit for a programmatic text into a legal instrument, in the context of which only rights specified into three-term relations (determining duty-bearers and the content of their duties) rights are properly so called. So on this proposal we should interpret the Charter’s reference to ‘limits prescribed by law’ as a pointer to legislative prescriptions by way of determining, indeed de-limiting, actionable legal rights, prescriptions presumed not to be disproportionate. 

Finally, a fourth set of reflections saw the root of the problem not in proportionality itself but in the abstractness of rights coupled with the decision to empower judges to specify their content. The way forward, on this view, may be to accept the broad apparatus of proportionality but apply it in a more deferential fashion.