One of the most reliable traditions in Canadian commentary on legal matters is accusing courts of “judicial activism”. This criticism was used to great effect throughout the Harper era, but particularly so in the final years of the Conservative Government’s time in office as varying pieces of its legislative agenda faced scrutiny in the Supreme Court of Canada after making their way through lower courts over the years.
In 2013, for example, Barbara Kay complained of a “plethora” of Supreme Court decisions that had “little to do with law” and more to do with the judges “social engineering along theoretical lines”. In 2014, the Economist, observing from across the Atlantic, lamented Canada’s judicial activism, citing Jason Kenney’s accusation that the Supreme Court of Canada had used “judicial power” to overturn “democratic consensus”. In 2015, Brian Lee Crowley accused the Court of both “inventing” law as well as “corrupting” it, by using it as an “instrument of social change”. While Andrew Coyne, also just last year, argued that the Court had in some cases “ignored precedent” and in others essentially “rewritten the constitution”.
These critiques all assume the Supreme Court’s supposed “activism” about the Charter of Rights and Freedoms is the problem in legal disputes with the Harper Government; that the Court has regularly employed interpretations of the Charter or other constitutional principles that are not only wrong, but unprecedented and unconventional— acting contrary to established constitutional rules or principles, ignoring legal precedents, or flouting the “text” of the Charter itself.
While Harper’s legislative approaches have been criticized, few have examined more systematically how the Harper Government itself approached the Charter and other constitutional principles. I do so here, arguing, albeit counter-intuitively, that it is Harper Government’s own interpretations of the Charter and other long settled constitutional principles that were often best understood as activist— unconventional, unprecedented, even at times arguably radical, and often ignoring precedents and the plain text of the Charter.
This is counter-intuitive as it runs contrary to most media legal commentary, which is Court-centered and focused on judicial decisions. It also runs counter to the emerging consensus about Harper’s “incrementalist” governing style as Prime Minister— as has been chronicled by partisans, academics, political writers and reporters. In fact, when it came to the Charter, Harper was often anything but.
Of course, the Harper Government did not issue constitutional decisions like a Court. But it did legislate on numerous matters impacting Charter rights and that is how it regularly “spoke” or expressed its interpretation of Charter rights and other constitutional principles. As constitutional dialogue theory has taught us, each time Parliament passes a law, whether in response to a Supreme Court judgment or not, that law embodies the Government’s judgment on the requirements of the Canadian Constitution and the scope, meaning, and interpretation of Charter rights.
And examining certain aspects of Conservative Government’s legislative record and actions, Harper’s very own Charter activism takes shape— in many instances built upon Charter interpretations often more unprecedented or unconventional than those decreed by judicial critics. And not just in a particular area of law or policy, but a diverse range of issues: anti-terrorism, criminal law, privacy, and citizenship (with Harper’s reforms on citizenship recently in the spotlight after the Trudeau Government indicated they would repeal them).
The clearest example of Harper’s Charter activism is found in the controversial Anti-Terror law, Bill C-51. Beyond its many contentious provisions was something extraordinary by constitutional standards— provisions giving Canadian courts the power to authorize violations of Charter rights. Indeed, under Bill C-51’s new provisions, the Canadian Security Intelligence Service (CSIS) is expressly authorized to “take measures, within or outside Canada, to reduce” very broadly defined “threats to the security of Canada”. When authorized by judicial warrants issued by the federal courts, such measures may “contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms” or may be “contrary to other Canadian law”.
This aspect of the new legislative regime is, in fact, entirely unprecedented in Canadian constitutionalism because it fundamentally transforms (and arguably misconceives) the role of courts in constitutional adjudication. Instead of courts enforcing or guaranteeing Charter rights against government laws or actions, or scrutinizing government justifications for limiting them, Bill C-51 deputizes courts with powers to sanction and authorize those very rights violations.
Professors Roach and Forcese called these provisions “dramatic, even radical” as they “misunderstand entirely the way our constitution works, on a fundamental level”. The Canadian Civil Liberties Associated called them an “unprecedented grant of power” while Amnesty International said they were “unprecedented”. And Canadian Journalists for Free Expression called these C-51 reforms “unreasonable and dangerous”. Not surprisingly, the Trudeau Government indicated these are among the first provisions it will seek to “rollback” through amendments. The Harper Government’s understanding of Canadian constitutionalism— and the role of courts— as reflected in this central aspect of Bill C-51, is by any stretch unprecedented, unconventional, and transformational; a different kind of Charter and constitutional activism, but activism nevertheless.
Another such example is found in the Harper Government’s likewise controversial Abolition of Early Parole Act (“the AEPA”), part of Harper’s “tough on crime” legislative agenda. While many of Harper’s anti-crime laws have proven constitutionally suspect, the AEPA was particularly problematic because it applied retrospectively and effectively extended and increased punishments for offenders who had already been sentenced and were serving those sentences.
The AEPA has been described as a “fundamental change” to Canada’s criminal justice system, which it is. But, in applying retrospectively in the criminal law context— with the impact of extending existing punishments (and thus adding new punishments to existing ones)— the AEPA ignores the plain text of the Charter and departs from historic and deeply entrenched legal principles in the criminal law context.
First, the AEPA clearly contravened section 11(h) of the Charter, which in plain language, prohibits double punishments for the same offence (if found guilty and punished for an offence it guarantees you are not to be “…punished for it again”). Second, it would also, in cases where AEPA came into force after trial but before criminal sentencing, plainly contravene section 11(i), which likewise prevents retroactive or retrospective criminal punishments by prohibiting changes to punishments after commission of the offence but before sentencing. The AEPA, in short, blatantly contravenes the plain text of several Charter rights, suggesting the Harper Government simply ignored the Charter or, to use Andrew Coyne’s terms (with some irony, as he used them to criticize judges not government), adopted an interpretation of the Charter that had effectively “rewritten” its text.
This was essentially the Supreme Court of Canada’s finding in its 2014 decision, with Justice Wagner declaring AEPA one of the “clearest of cases of a retrospective change that constitutes double punishment”. Yet, even this finding does not fully convey the law’s unprecedented nature.
AEPA’s use of retrospective criminal laws constitutes a significant departure from deeply entrenched legal principles. In fact, the rule or principle that criminal laws and criminal punishments must be fixed and pre-determined, not retrospective or retroactive, is ancient in origins. As legal scholars, political scientists, and historians have described, documented, and shown, the idea can be traced back to the earliest written laws and codes, including Hammurabi’s Code, early Greek laws, the ancient Roman laws codified in the Corpus Juris Civilis and the constitutions, for example, of Constantine (306-337 A.D.) and Justinian (527-565 A.D.), and England’s famous Magna Carta of 1215.
But this principle would gain its greatest prominence and importance in the English common law— often expressed with the Latin maxim nullum crimen, nulla poena sine lege— in the works of Sir Edward Coke, Bracton, Blackstone, and other leading common lawyers and jurists of earlier centuries. Animating this legal maxim and principle was a natural justice aim to prevent unfairness, injustice, and arbitrariness in the application of laws— it was unfair and oppressive to retroactively punish or disadvantage people, except in accordance to pre-determined and fixed criminal laws and penalties.
This “ancient” legal principle has long been recognized in Canada as well. In its 1886 decision McQueen v The Queen, for example, the Supreme Court of Canada cited with approval this even earlier declaration by Justice James Kent: “It is a principle of universal jurisprudence that laws civil and criminal must be prospective and cannot have a retroactive effect.” It is also reflected in section 11 of the Charter.
Like the Charter breach authorizations in Bill C-51, the AEPA was an unconventional and activist challenge to the Charter— not only ignoring the Charter’s plain text, but literally representing a significant departure from ancient legal principle.
There are still other examples of Harper’s Charter activism. The somewhat ironically named Digital Privacy Act (Bill S-4) actually includes provisions that seriously threaten privacy interests. Specifically, the Act added new provisions to the Personal Information Protection and Electronic Documents Act that significantly expanded the circumstances where not only law enforcement, but a broad category of third party businesses or individuals can access customer and service subscriber personal information without consent or judicial oversight.
These new laws undercut people’s privacy interests more generally, but also offer an unconventionally narrow interpretation of privacy rights protected by the Charter. Section 8 guarantees everyone the “right to be secure against unreasonable search or seizure” and as recently as June 2014, the Supreme Court of Canada in Spencer affirmed that a warrantless request by police to companies for subscriber information— the kind of information the Digital Privacy Act exposes to disclosure without judicial oversight— violates section 8 of the Charter.
The Spencer decision merely re-affirmed long standing Charter protection for information privacy, albeit in a new context. Still, for over two decades— since the Supreme Court’s 1993 decision in Plant— section 8 has been understood to protect a “biographical core of personal information” as well as “information which tends to reveal intimate details of the lifestyle and personal choices” from warrantless search and seizure by police.
In Spencer, police asked an ISP for subscriber information (name, address, etc) belonging to an IP address that had been accessing and storing child pornography. While the information the police sought was itself basic, the Court acknowledged that an IP address, once linked to a person’s name and identity, can reveal an extensive array of “intimate details” about that person’s “lifestyle and personal choices” as all online activities linked to the IP address— websites visited, items purchased, people contacted, services used, etc— would be known to police and anyone with access to the IP (an IP address is visible to any site you visit or contact online). As such, the Court found the police’s warrantless request violated section 8. Police should have obtained a warrant first.
Yet, despite the Charter’s express privacy guarantees in section 8, two decades of experience with the understanding that it covered “information which tends to reveal intimate details of the lifestyle and personal choices”, and a clear re-affirmation of those information privacy rights as recently as 2014, Harper proceeded with the Digital Privacy Act, which allows companies (like the ISP in Spencer) to voluntarily disclose personal subscriber information— and more— without warrant or judicial oversight. The Act thus ignores long established Charter privacy protections or at least offers a radically narrow interpretation of those rights.
One further example of Harper’s Charter activism worthwhile highlighting is the Strengthening Canadian Citizenship Act (SCCA), enacted in 2014, which included provisions that would allow the Government to revoke citizenship from dual citizens convicted of certain terrorism and related offences against the state inside or outside Canada.
The SCCA has been described as “unprecedented”, “dramatic”, and “the most radical change to citizenship law since 1947”. At the very least, it can be said that the SCCA constitutes another example of activist constitutionalism, this time on Charter rights and citizenship.
Since 1977, there has been a single narrow exception to the inalienability of citizenship: it could be revoked if found to have been obtained through fraud or misrepresentation. The theory or justification for this singular exception was that citizenship had never been legally obtained in the first place—it was conferred on false pretenses—and revocation merely restores the person to his or her original non-citizenship status. Citizenship, then, was not truly being revoked as it had never been actually attained. What is more, anyone subject to revocation had a right to a full hearing in the Federal Court.
Some defenders of the Act have incorrectly claimed that involvement in “war crimes” or “crimes against humanity” were additional “long” recognized exceptions that could lead to revocation and that the Act simply expanded those criminal categories. This is false. Before SCCA, fraud or misrepresentation remained the only basis for revocation for almost four decades. However, the Government of Canada did begin, as a matter of policy, to use this lone exception against naturalized citizens suspected of war crimes after the Deschênes Commission recommended this course of action in 1986. War criminals would obviously not disclose their crimes in a citizenship application (as their application would surely be denied), so fraud and misrepresentation— again, the sole narrow basis to revoke citizenship— was almost always available to seek revocation in such cases.
This near legal inviolability of citizenship reflected the Post War international consensus on the importance of citizenship to human rights. The 1948 Universal Declaration of Human Rights declared that “everyone” has a “right to nationality” while the International Covenant on Civil and Political Rights (ICCPR) (finalized in 1966 and ratified by Canada in 1976) provided that “no one shall be arbitrarily deprived of the right to enter his own country”, a right not subject to any restrictions or limitations. As Hannah Arendt would write in the aftermath of the Second World War, citizenship is the “right to have rights” because it gives a person the right to “belong” to a “political community” and thus guarantees all rights attaching to that membership.
The text of the Charter similarly reflects this consensus in section 6(1), which guarantees every “citizen of Canada” the right to “enter, remain in and leave Canada”— and, reflective of it being the “right to have rights”, section 6 is not subject to legislative override under the Charter’s section 33 “notwithstanding” clause. Section 6 has also long been interpreted consistent with this Post-War consensus. In the 1989 Cotrani decision, after explicitly citing a range of international instruments, including the ICCPR, Justice LaForest wrote, strongly echoing Arendt, “Like the international and constitutional documents I have referred to, the central thrust of s. 6(1) is against exile and banishment, the purpose of which is the exclusion of membership in the national community”.
More recently, the Supreme Court of Canada re-affirmed these findings in its 2013 Divito case, including the “core” of section 6 as a protection against “exile and banishment” and “exclusion of membership in the national community”. The Court also explicitly cited Arendt to emphasize the foundational importance of section 6 rights—that mobility ensures the right to have and enjoy all other rights of citizenship at home.
The SCCA dramatically departs from this Post-War consensus and broad Charter protections for citizenship. As Professor Audrey Macklin has pointed out, the SCCA theorizes revoking or stripping citizenship as a punishment for a range of criminal acts against the state or against other states (e.g., treason, terrorism, aiding the enemy, and similar offences at home or abroad). Not only that, despite significantly expanding the grounds for citizenship revocation, the Act also removed the right to a Federal Court hearing for those whose citizenship have been revoked except in very narrow and limited cases.
The SCCA thus provides the Government with the unprecedented new power to “exile” and “banish” (dual) citizens from both Canada through denaturalization, excluding them forever from “membership in the national community”. These powers are clearly contrary to the “core” of the Charter’s guarantees under section 6, and the international consensus, in the Post-War period, on the centrality of citizenship to human rights.
Not surprisingly, the SCCA has been constitutionally challenged in Federal Court. No decision has been rendered yet, but given it essentially ignores section 6 rights, and significantly departs from an entrenched conception of citizenship as inviolable, these aspects of SCCA, as Macklin concludes, are unlikely to survive constitutional scrutiny.
On the Charter’s 30th anniversary in 2012, Harper was asked directly why he and his Government was “notably silent” on the occasion. He claimed that the Charter’s association with the Constitution’s repatriation—and the “divisions” surrounding it—prevented him from properly celebrating the anniversary. He also declined to comment on how the Charter has been employed by courts over the years.
Harper has not shown the same reticence to take on the Charter through laws, with a range of enactments that challenge the plain meaning of Charter rights or long settled constitutional understanding. And there are many other potential examples than those discussed here, from Harper’s unprecedented public dispute with the Chief Justice, evidence the Government ignored its duty to ensure bills were Charter compliant, ignored Supreme Court holdings when legislating responses to decisions, and erected legal and regulatory barriers for citizens wishing to exercise their right to vote abroad.
Still, the aim here was not to exhaustively detail every controversial act Harper pursued, but cast his “incrementalist” legislative legacy in a different light by turning “Charter activism” accusations, regularly leveled by critics, pundits, and commentators at the Supreme Court throughout the Harper era, on their head. To the contrary, it was the Harper’s Government, and not any court, that engaged in some of the most significant forms of “Charter activism” during his time in office: enacting a range of laws embodying unconventional, unprecedented, at times even “radical”, conceptions of Charter rights or significantly departing from established constitutional practice or principle.
This analysis suggests a constitutionally activist Harper Government pushing unprecedented and unconventional constitutional ideas, a reality far different from the courts-as-antagonist narrative typically seen in popular media. For as commentators now hail Harper’s supposed “incrementalist” governing philosophy, Canadians must know it was a philosophy he often wholly abandoned with respect to Canada’s constitutional tradition, and the Charter, our most important human rights document.