Courting Disaster

It seems fitting that I began writing this review — concerning judges, politicians, and policy — in a courtroom hearing about just that. With my forbidden laptop out of judicial sight, I typed away at Toronto’s Osgoode Hall, where the Ontario Divisional Court was hearing two days of arguments about the challenge by my employer, the Canadian Civil Liberties Association, to the Ontario Ministry of Education’s decision to change the sex-­education curriculum taught in the province’s schools. In our view, the decision to replace a 2015 curriculum with a 1998 version violated several provincial statutes, as well as the rights to equality and security in the Charter of Rights of Freedoms. The 1998 version was only about heterosexual education, whereas the 2015 one discussed same-sex relationships, sexual orientation, and gender identity.

The government’s response to our challenge was basically that the courts should mind their own business, arguing in its written brief that “the legislature has given to the minister, and not to the courts or the applicants, the responsibility to set educational priorities and direction for all of Ontario’s publicly funded schools.” Thus, the subject of Policy Change, Courts, and the Canadian Constitution was very much alive in the courtroom as I began to write. I hoped to find something in it to answer the question of why and how we’ve ended up, in my view, downgrading the concept of “supreme law” provided for in our Constitution.

There was a time in Canada when “unconstitutional” meant something. No longer. Relativism has overtaken the judicial interpretation of fundamental rights and freedoms in Canada, to the point where words in our Constitution like “supreme” and “fundamental” seem misplaced, replaced by weasel words like “temporary” and “reasonable.”

The power mongers in first ministers’ offices descend upon their agents to manipulate institutions designed to protect us. Using legal discourse, means become ends, the falcon cannot hear the falconer, and it’s no wonder populism arises as salvation to some and a dirty word to others.

The analysis in Policy Change ought to have been relevant to our Divisional Court hearing, which indeed was about policy making, jurisprudence, and legislative authority. Yet no point in the book was cited by any of the six parties with standing before the Divisional Court, nor may any of its arguments see the light of day in any judicial decision, cabinet document, legislative speech, or policy brief.

This is a book by scholars and for scholars, and its editor, Emmett Macfarlane, rightly proclaims it to be innovative and unprecedented. It is obviously topical, as the packed courtroom for the CCLA challenge would indicate. That it is scholarly need not mean it is inaccessible to a broader readership. So is it? As with the book itself, the answer to that question requires some elaboration.

Macfarlane is a political scientist at the University of Waterloo, in Ontario, and these essays examine constitutional cases from a political science perspective. This should mean a freshened perspective, but too much of the writing is mired in overly academic prose in the worst sense — too specialized, full of jargon and inflated vocabularies. Any chapters with “punctuated equilibrium” or “desuetude” in their titles deserve additional revision, particularly when those terms are never properly explained.

But the political science analysis of policy making by the courts is indeed a valuable project, because it need not be distracted by doctrinal limitations arising from the jurisprudence itself. Why, when, and how courts make policy is not only grist for law faculties and practitioners. Public policy effects change in Canada — and occasionally that change is truly uncharted. More typically, it either turns the clock back or entrenches the status quo. This variety of public policy, if undertaken by courts rather than institutions accountable through elections, affects the masses. It’s relevant to all of us, even if this particular book was not intended for the masses.

Having lit on the idea that judge-made policy is worth studying by social scientists, the editor had to tackle its legitimacy (in Part One), its impact on governments and legislatures (Part Two), and then its impact on particular policies (Part Three). The questions posed in the book are fundamental. Why, if at all, should judges be making policy? Regardless, how do politicians anticipate or respond to or capitalize on what the judges are doing or might do? How have these practices played out with abortion policy, assisted dying, policing and corrections, language rights, Indigenous rights, queer and trans rights, and refugee, citizenship, and immigration policy? In this regard, I have a few complaints about the book that are but trifles: it focuses upon federal rather than provincial policies, and on government more than legislatures. A bright spot is Kyle Kirkup’s chapter, “After Marriage Equality: Courting Queer and Trans Rights,” where we learn that trans activists likely will not (only) follow the path laid by same-sex marriage legalization.

The book is limited by its focus on the executive branch of the federal government. This is illustrated by the chapter by Janet Hiebert, “The Charter, Policy, and Political Judgment,” on how Canadian federal governments anticipate the possibility of judicial review. The U.S. Congress does not get fussed about constitutional challenges, she explains, whereas European legislatures are risk averse to anticipated litigation. Because Canada’s parliamentary system tends to be controlled by the Prime Minister’s Office, the conflation of legislature and executive by the author is fair enough, and I entirely agree with her conclusion, that Canadian governments are constitutional “risk takers” rather than “Charter-­proofers.” In other words, federal politicians don’t seem to care about judicial review or the Charter, other than rhetorically. Hiebert’s conclusion is prescient, considering the risk undertaken by the PMO in its efforts on behalf of a Quebec conglomerate facing criminal charges, fully exposed and turned into a scandal as I write by the resignation from cabinet of a former justice minister.

The risk taking is a different story in many provinces, because of the integration of constitutional lawyers answering to the attorney general within ministries responsible for areas such as health, education, energy, and the environment. My experience as attorney general in Ontario was that the efforts of my predecessors, Roy McMurtry and Ian Scott, to so infiltrate the entire government made it difficult to get a policy before cabinet that was likely to be overturned by the courts.

In the case involving the CCLA and Ontario’s sex-ed curriculum, the evidence made clear that the Premier’s Office and the education minister had told the deputy minister of education to implement the revised curriculum but not to advise the government — at the time, only weeks in office — on whether the policy was pedagogically sound, let alone constitutional. While such an episode may be business as usual in Ottawa, it is not necessarily the canonical approach in the rest of Canada.

Moreover, the most extraordinary constitutional development in Canada of late receives initial but insufficient attention by Macfarlane: courts “temporarily” permit the continued operation of laws they’ve ruled unconstitutional — a pause to allow legislative redress, however inadequate — to avoid the alleged horror of a legislative vacuum. As if a law, any old or new law, is necessarily better than no law. This trend is, I believe, an inexplicable tolerance of injustice and intolerable deference by the judiciary to the executive.

Consider our old abortion laws. When the Supreme Court struck down the abortion prohibition in the Criminal Code in 1988, that was that. No federal government has touched abortion regulation, let alone criminalization, since then. Today any such ruling — that the Criminal Code is contrary to the Charter — would not mean that women would be free to abort a pregnancy. If R. v. Morgentaler were decided today, in other words, doctors and female patients would be facing criminal sanctions for attempting an abortion.

Today, courts routinely rely on the suspended declaration of invalidity, a remedy that permits a government to game the courts, such that unconstitutional infringements by the state can continue ad infinitum. That is to say, government lawyers insist that chaos will reign if a law is struck down immediately, misappropriating a remedy used in the extraordinary Manitoba Language Rights Reference (1985), where the Supreme Court of Canada ruled all Manitoba’s laws unconstitutional for not being bilingual. Next, the Crown returns to court when the deadline to fix the unconstitutional laws approaches, insisting that legislative traffic jams justify continued unconstitutionality — until the new law is finally passed, often fixing nothing, but now the applicants have to start all over again with a new challenge.

Judges today fancy themselves constitutional auditors and robed policy makers, in a fashion unique to Canada. Many have been hornswoggled by Crown counsel, without any evidence of anything before the court, to permit the Crown to renovate a house condemned. I say either the Constitution means something, such that unconstitutional laws cannot stand, or it doesn’t. For otherwise the injustice continues to do its wrong.

This is not to say that Parliament has taken back the reins of power. Parliament also gets snookered by the executive branch, with some promises of a renovation to come. It’s a song and dance that sometimes involves parliamentary institutions but usually just executive chimera. The usual trick is for the minister to mention the judicial decision in media statements and in the introduction of a bill to the legislature, as if acknowledging that the will of the judiciary trumps the will of the elected. But, more often than not, the trick ends with the new bill complying with the judicial decision not at all. In some nations, such behaviour is considered contempt of court.

This increasing practice is well covered in the chapter by Eleni Nicolaides and Matthew Hennigar on assisted suicide, “Carter Conflicts: The Supreme Court of Canada’s Impact on Medical Assistance in Dying Policy.” The so-called dialogue between judiciary and Parliament to craft legislation that conforms with the Charter has become a shell game, a clever political sleight of hand that’s contemptuous of the Constitution — incredibly, in the name of the rule of law. Defying the Supreme Court decision in Carter, which struck down the assisted suicide ban “temporarily,” is less a dialogue with the courts than the tail wagging the dog.

Canada is a parliamentary democracy in which the Constitution is “supreme law.” But that “supreme law” is not an end itself. It’s a means to an end. “If Canadians can agree upon the great and lasting principles upon which they wish their society to be built, then they can agree upon the broad lines of the constitution needed to achieve those ends,” said the constitutional authority (and poet) F. R. Scott in 1943. We did that. The broad lines of our Constitution have the executive doing this, the legislature doing that, and the judiciary reviewing both. The judiciary can conspire with the legislature only if the Constitution so permits. But Canada’s Constitution does not permit this cabal of unconstitutional denial. That Constitution, until further notice, reads, under section 52: “The Constitution of Canada” — which includes the Canadian Charter of Rights and Freedoms — “is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” Absent a constitutional amendment, that’s the law of Canada. So if a court finds that a law is inconsistent with the Constitution, it is of no force or effect — period. No weasel words like “reasonable” or “temporary” intrude upon this declaration of supremacy.

(On February 28, the Ontario Divisional Court dismissed the CCLA’s application. We are seeking leave to appeal on a number of fronts, one of which is that the Ministry of Education curriculum is, indeed, subject to the Charter of Rights.)

Without any idea or evidence of how legislatures actually work, Crown counsel make promises they can’t possibly keep, clinging to laws ruled by the courts to be sunk, only to be rescued by Crowns submitting that the laws aren’t truly sunk, but merely sinking. Yet somehow these unconstitutional laws on prostitution, solitary confinement, assisted suicide, and medical marijuana, to name only a few, remain legally afloat. Judges fear the fantastical anarchy foretold by the Crown and lack the spine to effect their own judgements. Occasionally, even plaintiffs’ counsel fear looking unreasonable or overly principled to their Canadian colleagues. Bar and bench alike betray the language of the Constitution, giving the first ministers’ offices an inch. They take a mile.

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In our democracy, the authority to pass, repeal, and change laws rests with Parliament, elected by the people. The authority to review laws rests with the judiciary. The authority for both is entrenched in the Constitution, which is indeed a product of both Parliament and judiciary, but its authority is engendered democratically, even where that authority is judicially reviewable. We can change the Constitution according to the rules we set for changing it. But until then, the Constitution reflects the great and lasting principles upon which Canada is built. There is an undemocratic renovation under way today.

This is the subject of Arthur Peltomaa’s Understanding Unconstitutionality: How a Country Lost Its Way. It is a polemic of legal scholarship written by a practitioner. Peltomaa, a partner with Bennett Jones LLP, in Toronto, observes, “Canadian courts routinely make orders which allow governments to act unlawfully following findings of unconstitutionality.” His entire 200-page book is about this Canadian practice, rejected out of hand in other countries, of conferring temporary validity on laws adjudged to be unconstitutional. While the writing can be indulgent and flowery (Zeus appears in the first paragraph), it is a compelling read. It argues against the phenomenon of the suspended declaration of invalidity that Policy Change opens with, but devotes scant attention to it otherwise. If you had to choose between the two books, I think you know which one I’d recommend.

Policy Change seeks to break new ground, not settle any scores. It does not purport to be a book about the Constitution; instead, it is about policy changes by the courts, through the lens of political science. It contains many helpful insights but no unifying direction or lessons to be learned, as is often the case with anthologies. It is intended to get a neglected social science ball rolling, which hopefully means more expert scholarship, available to all those seeking to divine the constitutional law of Canada. For that we can be grateful to Macfarlane and his contributors.