Grégoire Webber: The remaking of the Constitution of Canada

Editors’ note: The blog has a number of country correspondents who report from time to time on matters of interest to a UK audience. Prof Webber is the blog’s Canada correspondent.

Over the past year, Canada has undertaken an important remaking of its constitution. It has (1) given constitutional status to an uncertain number of provisions of the Supreme Court Act, (2) introduced a constitutional right to strike, and (3) introduced a constitutional right to assisted death, among other changes. That the people of Canada have done all this in such a concentrated span of time betrays the claim that the Canadian constitution is the ‘hardest to amend in the world’.

How have they done so? By employing a clever strategy. The people of Canada have avoided the politically fraught constitutional amendment provisions and instead appealed to that special, unmentioned, and politically rather straightforward constitutional congress that goes by the name of the Supreme Court of Canada.

This exaggerates an important truth: the constitution has undergone a number of important reforms, all at the hands of the Supreme Court. I leave to others to judge these reforms on their merits and here attend to a question that even those who would welcome the changes should be open to: are there principled reasons to support these reforms by way of the judicial exercise of constitutional review? Lest one be the sort of activist whose support for judicial intervention is unapologetically a ‘sometime thing’—valid when the going is good, withdrawn when the going is not—there is reason to express reservations with how these reforms were brought about.

I examine three judgments over the last year and highlight some of the Court’s reasons. My exercise is selective and I make no claim that the reasons I criticise were controlling, but as reasons offered by the Court in support of its judgments, these reasons stand ready for evaluation and criticism.

Constitutionalising the Supreme Court Act

In March 2014, the Supreme Court rendered its opinion on the meaning of a statutory provision guaranteeing three seats on the Court to persons ‘from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province’. Marc Nadon, a judge of the Federal Court of Appeal and former Quebec advocate, was nominated for appointment to the Court by the Minister of Justice and appeared before a parliamentary committee, following which he was formally appointed. Shortly after, he was Borked, not by a partisan Senate committee, but by six of his colleagues.

The reasoning of the majority turns on the meaning of the phrase ‘from among the advocates of that Province’. As a judge of the Federal Court of Appeal, Justice Nadon was no longer an advocate of Quebec. For the majority, this disqualified him. Opinion is divided on the merits of this conclusion. More interesting for this post is how the majority addressed Parliament’s more or less contemporaneous move to amend the Supreme Court Act to provide that a former Quebec advocate-turned-judge would remain eligible for appointment.

The majority declared the amendment invalid by appealing to the following constitutional provision:

An amendment to the Constitution of Canada in relation to the following matters [requires the unanimous approval of the Senate, House of Commons, and the provinces] … (d) the composition of the Supreme Court of Canada.

One would be forgiven for thinking that, somewhere in the constitution, there must be a provision setting out the composition of the Supreme Court, such that an amendment to it is captured by this provision. There isn’t. The only other constitutional provision on the Court is the one authorising Parliament to ‘provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada’, an authority exercised by Parliament in adopting the Supreme Court Act in 1875 and in amending it from time to time since.

What, then, allows the majority to conclude that an amendment to the Supreme Court Act now runs afoul a provision of the ‘Constitution of Canada in relation to . . . the composition of the Supreme Court of Canada’? The answer is quick and unimpressive and relies on the following constitutional provision:

The Constitution of Canada is the supreme law of Canada …

So it is. But how does that get us to the Supreme Court’s composition? The Court’s reasoning here rests on two premises and a ‘conclusion’. Premise 1: ‘The existence of an impartial and authoritative judicial arbiter is a necessary corollary of the enactment of the supremacy clause’. (Let us grant the premise, despite the unacknowledged difficulty with the fact that the courts are also subject to the supremacy clause and so would also need to be subject to an impartial and authoritative arbiter . . .) Premise 2: ‘The judiciary became the “guardian of the constitution”.’ (This reads like a restatement of Premise 1.) The conclusion: ‘As such, the Supreme Court of Canada is a foundational premise of the Constitution.’

What to say about the soundness of the reasoning? Beyond the absence of a relationship between the premises and the conclusion, perhaps all that needs saying is that the Supreme Court was only introduced, by parliamentary enactment, in 1875, some years after the Westminster Parliament adopted Canada’s founding instrument in 1867. Claims about ‘foundational premise’ are difficult to reconcile with history, a history otherwise appealed to by the majority to suggest that, over time, the Supreme Court ‘became constitutionally protected’. No one noticed until this judgment.

On the strength of this reasoning, the Court declares ‘essential features of the Court’, including the current composition rules, immune from parliamentary amendment because they are guaranteed by the supremacy clause. In so doing, it reminds Parliament of the importance of seeking the assent of the provinces—Quebec especially—for introducing new provisions to the constitution. The irony of the reminder will not be lost on those who share the dissenting judgment’s evaluations that the majority elevated to constitutional status a reading of the Supreme Court Act that ‘rewrite[s] history’, ‘def[ies] logic and common sense’, and uses principles of statutory interpretation ‘heretofore unknown’.

Constitutionalising a right to strike

In January 2015, a majority of the Court overruled a trilogy of 1987 precedents, reaffirmed from time to time, to conclude that the constitution’s guarantee of freedom of association now protects a right to strike. In arriving at this new position, the majority surveys some movement in the Court’s own jurisprudence as well as a selection of foreign jurisdictions and international law, in many instances citing decisions or provisions that predate either the 1982 Charter or the 1987 precedents or both. On the strength of these surveys, the majority concludes in favour of introducing a right to strike. The question ‘how this collection of stuff actually leads to the conclusion’ is left open by the majority.

The concern that the different results in 1987 and 2015 are to be explained primarily by the changed composition of the Court will not be allayed by how the majority formulates its conclusion: ‘It seems to me to be the time to give this conclusion constitutional benediction.’ (Abella J., para 3) Few judgments are as transparent in their claim to be a roving law reform commission acting on the power asserted by a majority of members on the Court..

Constitutionalising a right to assisted death

In February 2015, a unanimous Supreme Court concluded that the constitution now guarantees a right to assisted death. At issue was the constitutionality of a criminal provision declaring that ‘No person is entitled to consent to have death inflicted on him’ and of another providing that ‘Every one who … (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence’. Those same provisions were upheld by the Supreme Court in 1993; in 2015, they were struck down on the grounds that the present case raised a different legal issue (the doctrinal tests had changed) and that the ‘matrix of legislative and social facts … differed from the evidence before the Court in [the 1993 case]’.

At the beginning of its judgment, the Court frames the debate as between ‘the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition’, on the one hand, and ‘the sanctity of life and the need to protect the vulnerable’, on the other hand. Against these competing values, the Court accepts that the constitutional right to life is engaged given that ‘the prohibition on physician-assisted dying ha[s] the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable’.

The question before the Court thus turned on the justification for limiting the right to life. In evaluating the objective of the criminal prohibitions, the Court here makes a surprising and unannounced move. It revises its framing of the competing values at stake and denies that the criminal law concerns itself with the sanctity of life.

The Court’s reasoning here is that (1) the 1993 decision did not find the preservation of life to be a legislative objective (given the authority otherwise awarded to that decision, one is tempted to ask: so what?); (2) ‘If the object of the prohibition is stated broadly as “the preservation of life”, it becomes difficult to say that the means used to further it are overbroad or grossly disproportionate’ (why?); and (3) the prohibition on aiding and abetting suicide ‘is not directed at preserving life, or even at preventing suicide [because] attempted suicide is no longer a crime’. Instead, says the Court, the criminal prohibitions only pursue ‘the narrow goal of preventing vulnerable persons from being induced to commit suicide at a time of weakness’.

These reasons are unimpressive. First, the Court neglects to mention the proposition of criminal law that one cannot consent to one’s own death, a provision that directly aims at preserving life (and not only for the vulnerable). Second, the Court here again confuses a legal liberty (‘attempted suicide is no longer a crime’) with a legislative determination that therefore there is no reason to ‘preserve life’ or ‘prevent suicide’. The Court fails to grasp the basic idea that some legal liberties acknowledge the limits of legal regulation without sanctioning the activity in question (for a similar error in its evaluation of the regulation of prostitution, see here). Third and relatedly, the Court altogether fails to notice the difference between suicide (self-regarding conduct) and assisted suicide (other-regarding conduct), a difference on which it is reasonable to suppose that Parliament acted in maintaining the prohibition on one person’s act to take the life of another, a prohibition quite independent of the vulnerability of the person whose suicide is assisted.

Having discarded the preservation of life as relevant to evaluating the criminal prohibitions, the reformulated question became whether the blanket prohibitions were necessary to protect the vulnerable or whether some alternative, permissive scheme could be designed. On that possibility, the Court notes that the UK Supreme Court ‘found the evidence on safeguards insufficient’, notes the great number of Senate, Commons, and other studies on the question, and notes the ‘process of legalization’ in a number of European and US states. However, when it comes time to evaluate directly whether it is possible to design such a scheme, the Court’s judgment is summarised thus: ‘We see no reason to reject the conclusions drawn by the trial judge.’ No justification is offered for extending the deference properly owed to a trial judge on adjudicative facts (based on evaluating the truthfulness of witnesses) to a trial judge’s assessment of the legislative and social facts based primarily on affidavits and reports submitted to the court. The Court may not have abdicated its judicial responsibility, but it retreated from fulfilling its full responsibility.

As a result of failing to engage with the evidence before it, the Court’s own confident assertion that ‘the risks associated with physician-assisted death can be limited through a carefully designed and monitored system of safeguards’ offers no comfort to Parliament that it will be able to fashion such a scheme, nor to those vulnerable persons who will be at heightened risk if such safeguards are imperfectly designed.

Opposition and governing

On one view amongst commentators, the Supreme Court of Canada has become the unofficial opposition in Ottawa and its Chief Justice the unofficial Leader of that unofficial opposition. This role, some will say, has become necessary in order to rebalance the constitution following a decade of leadership from ‘a prime minister who has terrorized the living Jehovah out of his own cabinet and caucus and muzzled Parliament’.

And yet, the analogy is not quite right, even granting the argument’s premises. For in engaging in constitutional reform, the Court is not only opposing legislative measures introduced by the government, but is also proposing and enacting new measures. It is legislating—a verb I employ without assuming that judicial legislating is a violation of office. The point is rather this: if the Court legislates in introducing new constitutional rights and duties, it is doing some of the governing, to which the question presents itself—Who stands as the opposition to this governing?

There is a risk to judicial independence in organised opposition to the judiciary. Certainly, an important constitutional tradition cautions against commenting on cases before the courts (sub judice) and, more generally, against the doing of things that risk undermining the Rule of Law. But then that leaves us with two scenarios.

In one scenario, we accept an unopposed judicial power to govern, disciplined only by the judges themselves, and accept that our support here may be a ‘sometime thing’. In another scenario, we do not accept that it is proper for judges to govern, except by governing as that branch of government devoted to doing justice according to law. Here, the ‘opposition’ to judicial governing, if it is to be considered as such, is the legal profession’s evaluation of judicial method as being true (or not) to law applicable (or not) to the case at hand. It is not opposition on the all-things-considered merits of judicial rulings. Rather, it is opposition watchful of judicial method, opposition that has as its primary concern judicial activity that is itself poses a risk to the Rule of Law.

Grégoire Webber is Canada Research Chair in Public Law and Philosophy of Law at Queen’s University and Visiting Senior Fellow at the London School of Economics. He is country correspondent for Canada for the UK Constitutional Law Group Blog.

(Suggested citation: G. Webber, ‘The Remaking of the Constitution of Canada’ UK Const. L. Blog (1st Jul 2015) (available at http://ukconstitutionallaw.org))