One of the most reliable traditions in Canadian commentary on legal matters is accusing courts of \u201cjudicial activism\u201d. \u00a0This criticism was used to great effect throughout the Harper era, but particularly so in the final years of the Conservative Government\u2019s time in office as varying pieces of\u00a0its\u00a0legislative agenda faced scrutiny in the Supreme Court of Canada after making their way through lower courts over the years.<\/p>\n
In 2013, for example, Barbara Kay complained<\/a> of a \u201cplethora\u201d of Supreme Court decisions that had \u201clittle to do with law\u201d and more to do with the judges \u201csocial engineering along theoretical lines\u201d. \u00a0In 2014, the Economist, observing from across the Atlantic, lamented Canada\u2019s judicial activism<\/a>, citing Jason Kenney\u2019s accusation that the Supreme Court of Canada had used \u201cjudicial power\u201d to overturn \u201cdemocratic consensus\u201d. \u00a0In 2015, Brian Lee Crowley accused the Court<\/a> of both \u201cinventing\u201d law as well as \u201ccorrupting\u201d it, by using it as an \u201cinstrument of social change\u201d. While Andrew Coyne, also just last year,\u00a0argued that the Court<\/a> had in some cases \u201cignored precedent\u201d and in others essentially \u201crewritten the constitution\u201d.<\/p>\n These critiques all assume the Supreme Court’s supposed “activism” about the Charter of Rights and Freedoms is the problem in legal\u00a0disputes with the Harper Government; that\u00a0the Court has regularly employed interpretations of the Charter or other constitutional principles that are not only wrong, but unprecedented and unconventional\u2014 acting contrary to established constitutional rules or principles, ignoring legal precedents, or flouting the \u201ctext\u201d of the Charter itself.<\/p>\n While Harper’s legislative approaches have been criticized, few have examined more systematically how the Harper Government itself approached the\u00a0Charter and other constitutional principles. \u00a0I 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\u00a0best understood as activist\u2014 unconventional, unprecedented, even at times arguably radical, and\u00a0often ignoring precedents and the plain text of the Charter.<\/p>\n This is counter-intuitive as\u00a0it runs contrary to\u00a0most\u00a0media legal commentary, which is Court-centered and focused on judicial decisions. \u00a0It also runs counter to the\u00a0emerging\u00a0consensus about Harper’s\u00a0“incrementalist” governing style as\u00a0Prime Minister\u2014 as has been chronicled\u00a0by partisans<\/a>, academics<\/a>, political writers<\/a> and reporters<\/a>.\u00a0\u00a0In fact, when it came to the Charter, Harper was often anything but.<\/p>\n Of course, the Harper Government did not issue constitutional decisions like a Court.\u00a0 But it did <\/em>legislate on numerous matters impacting Charter rights and that is how it regularly \u201cspoke\u201d or expressed its interpretation of Charter rights and other constitutional principles. \u00a0As constitutional dialogue theory\u00a0has taught us<\/a>, each time Parliament passes a law, whether in response to a Supreme Court judgment or not, that law embodies the Government\u2019s judgment on the requirements of the Canadian Constitution\u00a0and the scope, meaning, and interpretation of\u00a0Charter rights.<\/p>\n And examining certain aspects of Conservative Government\u2019s legislative record and actions, Harper\u2019s very own Charter activism takes shape\u2014 in many instances built upon Charter interpretations often more unprecedented or unconventional than those decreed by judicial critics. And not just in a\u00a0particular area of law or policy, but a diverse range of issues:\u00a0anti-terrorism, criminal law, privacy, and citizenship (with Harper’s reforms on citizenship\u00a0recently in the spotlight<\/a>\u00a0after\u00a0the Trudeau\u00a0Government indicated they would\u00a0repeal them).<\/p>\n The clearest example of Harper\u2019s Charter activism is found in the controversial Anti-Terror law, Bill C-51<\/a>. Beyond its many contentious provisions was something extraordinary by constitutional standards\u2014 provisions giving\u00a0Canadian courts the power to authorize<\/em> violations of Charter\u00a0rights.\u00a0 Indeed, under Bill C-51\u2019s new provisions<\/a>, the Canadian Security Intelligence Service (CSIS) is expressly authorized to \u201ctake measures, within or outside Canada, to reduce\u201d very broadly defined \u201cthreats to the security of Canada\u201d. When authorized by judicial warrants issued by the federal courts, such measures may \u201ccontravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms\u201d or may be \u201ccontrary to other Canadian law\u201d.<\/p>\n 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<\/em> and authorize <\/em>those very rights violations.<\/p>\n Professors Roach and Forcese called these provisions<\/a> \u201cdramatic, even radical\u201d as they \u201cmisunderstand entirely the way our constitution works, on a fundamental level\u201d. The Canadian Civil Liberties Associated called them<\/a> an \u201cunprecedented grant of power\u201d while Amnesty International said they were<\/a> \u201cunprecedented\u201d.\u00a0 And Canadian Journalists for Free Expression called these C-51 reforms<\/a> \u201cunreasonable and dangerous\u201d. Not surprisingly, the\u00a0Trudeau\u00a0Government indicated these are among the first provisions<\/a> it will seek to \u201crollback\u201d through amendments.\u00a0 The Harper Government\u2019s understanding of Canadian constitutionalism\u2014 and the role of courts\u2014 as reflected\u00a0in 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.<\/p>\n Another such example is found in the Harper Government\u2019s likewise controversial Abolition of Early Parole Act (\u201cthe AEPA\u201d)<\/a>, part of Harper\u2019s \u201ctough on crime\u201d legislative agenda.\u00a0 While many of Harper\u2019s anti-crime laws have proven constitutionally suspect<\/a>, the AEPA was particularly problematic because it applied retrospectively <\/em>and effectively extended and increased punishments for offenders who had already been sentenced and were serving those sentences.<\/p>\n The AEPA has been described as a \u201cfundamental change\u201d<\/a> to Canada\u2019s criminal justice system, which it is.\u00a0 But, in applying retrospectively in the criminal law context\u2014 with the impact of extending existing punishments (and thus adding new punishments to existing ones)\u2014 the AEPA ignores the plain text of the Charter and departs from historic and deeply entrenched legal principles in the criminal law context.<\/p>\n 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\u00a0it\u00a0guarantees you are not to be \u201c…punished for it again\u201d). 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\u00a0short,\u00a0blatantly\u00a0contravenes\u00a0the\u00a0plain text\u00a0of several Charter rights, suggesting the Harper Government simply ignored the Charter or, to use\u00a0Andrew Coyne’s terms (with some irony, as he used them to criticize judges not government), adopted an interpretation of the Charter that had effectively \u201crewritten”<\/a> its\u00a0text.<\/p>\n This was essentially the Supreme Court of Canada’s finding in its 2014 decision<\/a>,\u00a0with Justice Wagner declaring AEPA one of the \u201cclearest of cases of a retrospective change that constitutes double punishment\u201d. Yet, even this finding does not fully\u00a0convey the law’s unprecedented nature.<\/p>\n AEPA\u2019s use of retrospective criminal laws constitutes a significant\u00a0departure 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. \u00a0As legal scholars, political scientists, and historians have\u00a0described<\/a>, documented<\/a>,\u00a0and\u00a0shown<\/a>, the idea can be traced back to the earliest written laws and codes, including Hammurabi\u2019s Code, early Greek laws, the ancient Roman laws codified in the Corpus Juris Civilis<\/em> and the constitutions, for example, of Constantine (306-337 A.D.) and Justinian (527-565 A.D.), and England\u2019s famous Magna Carta of 1215.<\/p>\n But this principle would gain its greatest prominence and importance in the English common law\u2014 often expressed with the Latin maxim nullum crimen, nulla poena sine lege<\/em>\u2014 in the works of Sir Edward Coke, Bracton, Blackstone, and other leading common lawyers and jurists of earlier centuries. \u00a0Animating this legal maxim and principle was a natural justice aim to prevent unfairness, injustice, and arbitrariness in the application of laws\u2014 it was unfair and oppressive to retroactively punish or disadvantage people, except in accordance to pre-determined and fixed criminal laws and penalties.<\/p>\n This \u201cancient\u201d legal principle has long been recognized in Canada as well. In its 1886 decision McQueen v The Queen<\/em><\/a>, for example, the Supreme Court of Canada cited with approval this even earlier declaration\u00a0by Justice James Kent: \u201cIt is a principle of universal jurisprudence that laws civil and criminal must be prospective and cannot have a retroactive effect.\u201d \u00a0It is also reflected in\u00a0section 11 of the Charter.<\/p>\n Like the Charter breach authorizations in Bill C-51, the AEPA was an unconventional and\u00a0activist challenge to the Charter\u2014 not only ignoring the Charter\u2019s plain text, but literally representing a significant departure from ancient legal principle.<\/p>\n There are still other examples of Harper’s Charter\u00a0activism. \u00a0The somewhat ironically named Digital Privacy Act<\/a> (Bill S-4) actually includes provisions\u00a0that seriously threaten\u00a0privacy interests.\u00a0Specifically, the Act added new provisions to the\u00a0Personal Information Protection and Electronic Documents Act<\/a>\u00a0that\u00a0significantly expanded the circumstances where not only law enforcement, but a broad category of third party businesses or individuals\u00a0can access customer and service subscriber personal information without consent or judicial oversight.<\/p>\n These new laws undercut people’s\u00a0privacy\u00a0interests\u00a0more generally, but also offer an unconventionally narrow interpretation of privacy rights protected by the Charter. \u00a0Section 8 guarantees everyone the \u201cright to be secure against unreasonable search or seizure\u201d and as recently as June 2014, the Supreme Court of Canada in Spencer<\/em><\/a>\u00a0affirmed that a warrantless request by police to companies for subscriber information\u2014 the kind of information the Digital Privacy Act exposes to disclosure without judicial oversight\u2014 violates section 8\u00a0of the Charter.<\/p>\n The Spencer<\/em><\/a>\u00a0decision merely re-affirmed long standing Charter protection for information privacy, albeit in a new context.\u00a0 Still, for over two decades\u2014 since the Supreme Court\u2019s 1993 decision in Plant<\/em><\/a>\u2014 section 8 has been understood to protect a \u201cbiographical core of personal information\u201d as well as \u201cinformation which tends to reveal intimate details of the lifestyle and personal choices\u201d from warrantless search and seizure by police.<\/p>\n In Spencer<\/em><\/a>, police asked an ISP for \u00a0subscriber information (name, address, etc) belonging to an IP address that had been accessing and storing child pornography.\u00a0 While the information the police sought was itself basic, the Court acknowledged that an IP address, once linked to a person\u2019s name and identity, can reveal an extensive array of \u201cintimate details\u201d about that person\u2019s \u201clifestyle and personal choices\u201d as all online activities linked to the IP address\u2014 websites visited, items purchased, people contacted, services used, etc\u2014 would be known to police and anyone with access to the IP (an\u00a0IP address is visible to any site you visit or contact online).\u00a0 As such, the Court found the police\u2019s warrantless request violated section 8. \u00a0Police should have obtained a warrant first.<\/p>\n Yet, despite the Charter\u2019s express privacy guarantees in section 8, two decades of experience with the understanding that it covered \u201cinformation which tends to reveal intimate details of the lifestyle and personal choices\u201d, 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<\/a><\/em>)\u00a0to voluntarily disclose personal subscriber information\u2014 and more\u2014 without warrant or judicial oversight. The Act thus ignores long established Charter privacy protections\u00a0or at least offers a radically\u00a0narrow interpretation of those rights.<\/p>\n One further example of Harper’s Charter activism worthwhile highlighting is the\u00a0Strengthening Canadian Citizenship Act<\/a> (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.<\/p>\n The SCCA has been described as \u201cunprecedented\u201d<\/a>, \u201cdramatic\u201d<\/a>, and \u201cthe most radical change to citizenship law since 1947\u201d<\/a>. \u00a0At the very least, it can be said that the SCCA constitutes another example of activist\u00a0constitutionalism, this time on Charter rights and citizenship.<\/p>\n 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\u2014it was conferred on false pretenses\u2014and revocation merely restores the person to his or her original non-citizenship status. Citizenship, then, was not truly<\/em> being revoked as it had never been actually attained.\u00a0 What is more, anyone subject to revocation had a right to a full hearing in the Federal Court.<\/p>\n Some defenders of the Act have incorrectly claimed<\/a> that involvement in \u201cwar crimes\u201d or \u201ccrimes against humanity\u201d were additional \u201clong\u201d recognized exceptions that could lead to revocation and that the Act simply expanded those criminal categories. This is false.\u00a0 Before SCCA, fraud or misrepresentation remained the only basis for revocation for almost four decades.\u00a0However, 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 Desch\u00eanes Commission<\/a> recommended this course of action in 1986. War criminals would obviously not disclose their crimes in\u00a0a\u00a0citizenship application (as their application would surely be denied), so fraud and misrepresentation\u2014 again, the sole narrow basis to revoke citizenship\u2014 was almost always available to seek revocation in such cases.<\/p>\n 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<\/a>\u00a0declared that \u201ceveryone\u201d has a \u201cright to nationality\u201d while the International Covenant on Civil and Political Rights<\/a>\u00a0(ICCPR) (finalized in 1966 and ratified by Canada in 1976) provided\u00a0that \u201cno one shall be arbitrarily deprived of the right to enter his own country”, a right not subject to any restrictions or limitations. \u00a0As Hannah Arendt would write in the aftermath of the Second World War,\u00a0citizenship is the \u201cright to have rights\u201d<\/a> because it gives a person the right to \u201cbelong\u201d to a \u201cpolitical community\u201d and thus guarantees all rights attaching to that membership.<\/p>\n 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\u201d\u2014 and, reflective of it being the “right to have rights”, section 6 is not subject to legislative override under the Charter\u2019s section 33 “notwithstanding” clause.\u00a0 Section 6 has also long been interpreted consistent with this Post-War consensus. \u00a0In the 1989 Cotrani<\/em> decision<\/a>, after explicitly citing a range of international instruments, including the ICCPR, Justice LaForest wrote, strongly echoing Arendt, \u201cLike 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\u201d.<\/p>\n More recently, the Supreme Court of Canada re-affirmed these findings in its 2013\u00a0Divito<\/a>\u00a0<\/em>case, including the \u201ccore\u201d of section 6 as a protection against \u201cexile and banishment\u201d and \u201cexclusion of membership in the national community\u201d. The Court also\u00a0explicitly cited Arendt to emphasize the foundational importance of section 6 rights\u2014that mobility ensures the right to have and enjoy all other rights of citizenship at home.<\/p>\n 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<\/em><\/a> 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).\u00a0 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.<\/p>\n The SCCA thus provides the Government with the unprecedented new power to \u201cexile\u201d and \u201cbanish\u201d (dual) citizens from both Canada through denaturalization, excluding them forever from \u201cmembership in the national community\u201d.\u00a0 These powers are clearly contrary to the \u201ccore\u201d of the Charter\u2019s guarantees under section 6, and the\u00a0international consensus, in the Post-War period, on the centrality of citizenship to human rights.<\/p>\n Not surprisingly, the SCCA has been constitutionally challenged<\/a> in Federal Court. No decision has been rendered yet, but given it essentially ignores\u00a0section 6 rights, and significantly departs from an entrenched conception of citizenship as inviolable, these aspects of SCCA, as Macklin concludes<\/a>, are unlikely to survive constitutional scrutiny.<\/p>\n —————————–<\/p>\n On the Charter\u2019s 30th anniversary in 2012, Harper was asked directly<\/a> why he and his Government was \u201cnotably silent\u201d on the occasion. \u00a0He claimed that the Charter\u2019s association with the Constitution\u2019s repatriation\u2014and the \u201cdivisions\u201d surrounding it\u2014prevented him from properly celebrating the anniversary. He also declined to comment on how the Charter has been employed by courts over the years.<\/p>\n 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\u2019s unprecedented public dispute with the Chief Justice<\/a>, evidence the Government ignored<\/a> its duty to ensure bills were Charter compliant, ignored Supreme Court holdings when legislating responses<\/a> to decisions, and erected legal and regulatory barriers<\/a> for citizens wishing to exercise their right to vote abroad.<\/p>\n 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 \u201cCharter activism\u201d accusations, regularly leveled by critics, pundits, and commentators at the Supreme Court throughout the Harper era, on their head. \u00a0To the contrary, it was the\u00a0Harper’s Government, and not any court, that engaged in some of the most\u00a0significant\u00a0forms of \u201cCharter activism\u201d during his time in office: enacting a range of laws embodying unconventional, unprecedented, at times even “radical”, conceptions of Charter rights or significantly\u00a0departing from established constitutional practice or principle.<\/p>\n This analysis suggests a constitutionally activist Harper Government pushing unprecedented and unconventional\u00a0constitutional ideas, a reality far different from the courts-as-antagonist narrative typically seen in popular media<\/a>. For as commentators\u00a0now hail Harper\u2019s supposed \u201cincrementalist\u201d governing philosophy<\/a>, Canadians must know it was a philosophy he often wholly abandoned with respect to Canada’s\u00a0constitutional tradition, and the Charter, our most important human rights document.<\/p>\n","protected":false},"excerpt":{"rendered":" One of the most reliable traditions in Canadian commentary on legal matters is accusing courts of \u201cjudicial activism\u201d. \u00a0This criticism was used to great effect throughout the Harper era, but particularly so in the final years of the Conservative Government\u2019s time in office as varying pieces of\u00a0its\u00a0legislative agenda faced scrutiny in the Supreme Court of […]<\/p>\n","protected":false},"author":913,"featured_media":293125,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"content-type":"","ep_exclude_from_search":false,"footnotes":""},"categories":[],"tags":[8392,8375],"article-status":[],"irpp-category":[],"section":[],"irpp-tag":[],"class_list":["post-293127","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","tag-charter-of-rights-fr","tag-stephen-harper-fr"],"acf":[],"yoast_head":"\n