{"id":264348,"date":"2016-09-08T10:30:51","date_gmt":"2016-09-08T14:30:51","guid":{"rendered":"https:\/\/policyoptions.irpp.org\/issues\/the-charter-partys-new-dance-with-the-judiciary\/"},"modified":"2025-10-07T21:16:08","modified_gmt":"2025-10-08T01:16:08","slug":"the-charter-partys-new-dance-with-the-judiciary","status":"publish","type":"issues","link":"https:\/\/policyoptions.irpp.org\/fr\/2016\/09\/the-charter-partys-new-dance-with-the-judiciary\/","title":{"rendered":"The \u201cCharter Party\u2019s\u201d new dance with the judiciary"},"content":{"rendered":"

In the wake of the Harper government\u2019s electoral defeat, Canadians may have had cause to wonder how the new Liberal government would fashion its relationship to the judiciary and particularly the Supreme Court of Canada. The Harper government\u2019s relationship with the country\u2019s highest court, and indeed with the Charter of Rights and Freedoms itself, was widely viewed as an acrimonious one. Some critics characterized the Harper government\u2019s relationship to the Court vis-\u00e0-vis the Charter as a constant tug of war: Parliament pushing unconstitutional legislation and the Court responding with activist judicial decisions. In contrast, the Liberals have been portrayed as the \u201cCharter Party<\/a>,\u201d in part because the Charter was largely the result of Pierre Trudeau\u2019s constitutional wrangling and is central to the party\u2019s brand.\u00a0This notion is often linked to trust in an activist judiciary construed as supreme interpreter and protector of the Charter. Given the power of this self-image, many commentators could be forgiven for thinking that any constitutional rope pulling between the Court and Parliament would cease with the election of the Liberals, ushering in a period of tranquil coexistence between the Court and its political patron.<\/p>\n

Yet the role of the \u201cCharter Party\u201d vis-\u00e0-vis the courts appears to be subtly changing as the Liberals rediscover both the role Parliament plays in articulating the indeterminate meaning of Charter rights and the unprecedented way today\u2019s judiciary asserts supremacy by presenting its own constructions of such rights as determinate and final. Together, these discoveries could ultimately spur the fulfilment of the Charter\u2019s promise as a text inviting the determination of the rights of Canadians in a dialogue between a democratically responsible Parliament and a more deferential judiciary.<\/p>\n

Justice Minister Jody Wilson-Raybould recently asserted Parliament\u2019s responsibility for determining the meaning of Charter rights in dialogue with the courts. This is evident in the text of the government\u2019s legislative response (Bill C-14<\/a>) to the Supreme Court\u2019s Carter<\/em> decision<\/a> regarding assisted suicide and in her comments in the House<\/a> regarding amendments to the legislation.<\/p>\n

In Carter v. Canada<\/em>, the Supreme Court held the Criminal Code\u2019s section 241(b) prohibition on assisted suicide to be an unjustifiable violation of Canadians\u2019 section 7 Charter rights to life, liberty and security of the person in cases where \u201ccompetent\u201d adults experience \u201cgrievous and irremediable medical conditions.\u201d\u00a0The Court suspended its declaration of invalidity for 12 months and invited Parliament to \u201creconcile\u201d the Charter rights of patients and physicians. This invitation to Parliament to interpret the Charter within boundaries set by the Court implies a view of Parliament as a partner in an interinstitutional dialogue concerning rights. After the Harper government\u2019s defeat on October 19, the task of drafting a response fell to Wilson-Raybould\u2019s office. Bill C-14 recognizes the Court\u2019s view that an absolute prohibition on assisted suicide violates section 7 rights, but it limits the right to assisted suicide to cases where the death of an individual is \u201creasonably foreseeable.\u201d The legislation also includes a number of protections for physicians and safeguards meant to shield vulnerable individuals. The legislation itself is thus an example of Parliament asserting its constitutional role in constructing the meaning of the indeterminate Charter rights to life, liberty and security of the person.<\/p>\n

During the parliamentary debates about Bill C-14, Wilson-Raybould explained that, first, the Supreme Court itself recognized that it is \u201cthe role of Parliament to craft a complex regulatory regime\u2026and that such a regime would be given a high degree of deference by the courts\u201d; and, second, that in reviewing previous parliamentary responses to Supreme Court nullifications,\u00a0\u201cit could not be presumed, just because Parliament\u2019s scheme looked different from what the court had envisioned, that it was unconstitutional.\u201d<\/p>\n

The minister seems to prefer a more collaborative dialogue with the judiciary, but her comments suggest Parliament has a role in constructing the meaning of Charter rights.<\/p><\/blockquote>\n

Wilson-Raybould was referring to the 1999 Supreme Court case\u00a0R. v. Mills<\/em><\/a>,\u00a0<\/em>in which the Court reviewed the constitutionality of legislation governing the disclosure of records in sexual assault proceedings. Notably, in\u00a0Mills<\/em>, Parliament not only enacted a scheme that \u201clooked different\u201d from what the majority of the Court envisioned in its previous decision delineating a constitutional regime for records disclosure (O\u2019Connor<\/em><\/a>)\u00a0<\/em>but passed a law that essentially legislated the dissenting opinion in that decision. In\u00a0Mills<\/em>, the Court acknowledged that \u201cParliament may build on the Court\u2019s decision, and develop a different scheme as long as it meets the required constitutional standards.\u201d This constituted,\u00a0in the words of Kent\u00a0Roach<\/a>, an \u201cin your face\u201d disagreement with the\u00a0O\u2019Connor\u00a0<\/em>majority. The minister seems to prefer a more collaborative dialogue with the judiciary, but her comments in Parliament clearly draw upon the \u201cdialogue theory\u201d that Parliament has a role in constructing the meaning of\u00a0Charter\u00a0<\/em>rights \u2014 even contesting tenuous judicial rights constructions.<\/p>\n

Wilson-Raybould\u2019s approbation of court-legislature dialogue on Charter rights has been highlighted in her recent appointment of Gr\u00e9goire Webber as a legal affairs adviser. Webber is one of the most sophisticated constitutional theorists in Canadian academia, and he also happens to be a proponent of \u201cdialogue theory.\u201d While Webber is clearly of the opinion that one promise of the Charter involves the judicial protection of rights, he has also written in support of the responsibility of Parliament in promoting and constructing the meaning of rights in dialogue with the courts. He has also critiqued aspects of the reasoning of the Court in Carter<\/em>.<\/p>\n

Some have argued<\/a> that C-14 is unconstitutional because it is incompatible<\/a> with Carter<\/em>. This is, strictly speaking, false. The Constitution does not bar Parliament from participating in constitutional interpretation. It specifies the supremacy of the Constitution rather than the interpretive supremacy of the judiciary. In fact, the Charter itself grants Parliament the ability to override judicial decisions concerning many of its rights (including section 7 rights) using the notwithstanding clause, section 33. While section 33 has fallen into disuse, it was a deliberately chosen provision of the Charter meant to help guarantee the legislative responsibility for rights construction. If the Liberals continue to take this vision of parliamentary responsibility for interpreting Charter rights seriously, it could prove a welcome revitalization of the \u201cCharter Party.\u201d<\/p>\n

It remains to be seen, though, whether the Supreme Court will hold up its end of the dialogue bargain. The Court increasingly acts more like a superlegislator than like a final court of appeal. This superlegislator tendency was glaringly evident in the 2015\u00a0Saskatchewan Federation of Labour<\/em>\u00a0<\/a>case, in which the Supreme Court of Canada, with scant justification, overturned its own recent binding precedent. To wit: in the first<\/a> two<\/a> of the \u201clabour trilogy\u201d of cases decided between 2011 and 2015, the Supreme Court explicitly held that the\u00a0Charter\u2019s section 2(d) guarantee of freedom of association did not encompass a constitutional right to strike. The Court said the opposite in the Saskatchewan<\/em> case and attempted to minimize its apparent inconsistency by stating that the right to strike was protected where the prohibition \u201cinterfered with the right to meaningful collective bargaining\u201d (while stating, for the first time, that it had come to view the right to strike as \u201cessential\u201d to the bargaining process). It is telling that Justice Abella regally introduces her reasons in Saskatchewan Federation of Labour<\/em> with her conclusion: \u201cIt seems to me to be the time to give this right constitutional benediction.\u201d And thus, the Court has effectively dug out its own pipeline to accelerated constitutional amendment, fashioning new constitutional guarantees that modify Canadians\u2019 everyday rights and obligations without any troublesome negotiations and consultation with the public.<\/p>\n

There are a number of reasons to object to the posture adopted by the Court in recent years. An appellate court entering legislative territory on the country\u2019s most fundamental and divisive policy questions erodes the\u00a0legislative function. But, more practically, we ought to consider the particular expertise and procedures of the Court as an institution. Its expertise is in jurisprudence and its own precedent, and markedly not the heterogeneous and contingent perspectives of the Canadian people, particularly those whose everyday rights and duties stand to be fundamentally changed by assisted-dying legislation. The Supreme Court again attempts to resolve the problem of its limited institutional capacity, and the problem of grappling with the complex moral implications of regulating assisted death \u2014 a practice that a majority<\/a> of Canadian doctors remain unwilling to participate in \u2014 by heavy deference to the trial judge\u2019s \u201cfindings of legislative and social facts.\u201d In Carter<\/em>, the Court did not merely strike down the prohibition on assisted dying as unconstitutional but also directed Parliament that in order to pass constitutional muster, an assisted dying bill would need to \u201creconcile the competing rights of physicians and patients\u201d (a task that is, perhaps, impossible<\/a> to conclusively perform). The Court, then, not only invalidates but also enacts legislation. But a trial judge\u2019s findings of fact that inform his or her findings on social facts are an ephemeral snapshot, a set of conclusions drawn from one fallible individual on the basis of a few lawyer-selected \u201cexperts.\u201d It cannot approach the dynamism or negotiated wisdom that emerges from stakeholder consultations and energetic Commons debate.<\/p>\n

The question of whether the courts share interpretive authority over the Constitution with Parliament is not merely an academic one but of present consequence.<\/p><\/blockquote>\n

The question of whether the courts share interpretive authority over the Constitution with Parliament is not merely an academic one but of present consequence. Constitutional challenges to the freshly enacted Bill C-14 are already under way<\/a>. A 25-year-old woman suffering from spinal muscular atrophy, Julia Lamb, cannot access physician-assisted death under C-14 as her death is not reasonably foreseeable in the near future. Her esteemed lawyer, Joe Arvay, claims C-14 is unconstitutional per\u00a0Carter<\/em>. In recent court submissions, Arvay accused the government of engaging in an abuse of process by claiming that\u00a0the Court\u2019s pronouncements on\u00a0Charter\u00a0guarantees of assisted dying are no longer the last word now that a comprehensive regulatory regime for assisted dying has been enacted by Parliament. In other words, according to Arvay, the courts ought to respond to Lamb\u2019s request for recognition of her constitutional right for access to assisted suicide as though Bill C-14 was never drafted, deliberated upon and passed. This can\u2019t be right.<\/p>\n

It remains to be seen how the courts will respond to these challenges, but we suggest that members of the judiciary reconcile themselves to the notion that theirs is not the exclusive and final interpretation of the nuances of\u00a0Charter\u00a0rights. A more appropriate choreography of Court-Parliament relations would involve some explicit recognition of judicial humility, born from an understanding of the Court\u2019s limited functions and its necessarily incomplete solutions to complex social problems.<\/p>\n

Photo:\u00a0Adrian Wyld \/ The Canadian Press<\/span><\/p>\n

\n

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In the wake of the Harper government\u2019s electoral defeat, Canadians may have had cause to wonder how the new Liberal government would fashion its relationship to the judiciary and particularly the Supreme Court of Canada. 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