In the wake of the Harper government’s 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’s relationship with the country’s 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’s relationship to the Court vis-à-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 “Charter Party,” in part because the Charter was largely the result of Pierre Trudeau’s constitutional wrangling and is central to the party’s brand. This 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.

Yet the role of the “Charter Party” vis-à-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’s 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’s 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.

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

In Carter v. Canada, the Supreme Court held the Criminal Code’s section 241(b) prohibition on assisted suicide to be an unjustifiable violation of Canadians’ section 7 Charter rights to life, liberty and security of the person in cases where “competent” adults experience “grievous and irremediable medical conditions.” The Court suspended its declaration of invalidity for 12 months and invited Parliament to “reconcile” 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’s defeat on October 19, the task of drafting a response fell to Wilson-Raybould’s office. Bill C-14 recognizes the Court’s 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 “reasonably foreseeable.” 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.

During the parliamentary debates about Bill C-14, Wilson-Raybould explained that, first, the Supreme Court itself recognized that it is “the role of Parliament to craft a complex regulatory regime…and that such a regime would be given a high degree of deference by the courts”; and, second, that in reviewing previous parliamentary responses to Supreme Court nullifications, “it could not be presumed, just because Parliament’s scheme looked different from what the court had envisioned, that it was unconstitutional.”

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.

Wilson-Raybould was referring to the 1999 Supreme Court case R. v. Millsin which the Court reviewed the constitutionality of legislation governing the disclosure of records in sexual assault proceedings. Notably, in Mills, Parliament not only enacted a scheme that “looked different” from what the majority of the Court envisioned in its previous decision delineating a constitutional regime for records disclosure (O’Connor) but passed a law that essentially legislated the dissenting opinion in that decision. In Mills, the Court acknowledged that “Parliament may build on the Court’s decision, and develop a different scheme as long as it meets the required constitutional standards.” This constituted, in the words of Kent Roach, an “in your face” disagreement with the O’Connor majority. The minister seems to prefer a more collaborative dialogue with the judiciary, but her comments in Parliament clearly draw upon the “dialogue theory” that Parliament has a role in constructing the meaning of Charter rights — even contesting tenuous judicial rights constructions.

Wilson-Raybould’s approbation of court-legislature dialogue on Charter rights has been highlighted in her recent appointment of Grégoire 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 “dialogue theory.” 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.

Some have argued that C-14 is unconstitutional because it is incompatible with Carter. 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 “Charter Party.”

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 Saskatchewan Federation of Labour case, in which the Supreme Court of Canada, with scant justification, overturned its own recent binding precedent. To wit: in the first two of the “labour trilogy” of cases decided between 2011 and 2015, the Supreme Court explicitly held that the Charter’s section 2(d) guarantee of freedom of association did not encompass a constitutional right to strike. The Court said the opposite in the Saskatchewan case and attempted to minimize its apparent inconsistency by stating that the right to strike was protected where the prohibition “interfered with the right to meaningful collective bargaining” (while stating, for the first time, that it had come to view the right to strike as “essential” to the bargaining process). It is telling that Justice Abella regally introduces her reasons in Saskatchewan Federation of Labour with her conclusion: “It seems to me to be the time to give this right constitutional benediction.” And thus, the Court has effectively dug out its own pipeline to accelerated constitutional amendment, fashioning new constitutional guarantees that modify Canadians’ everyday rights and obligations without any troublesome negotiations and consultation with the public.

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’s most fundamental and divisive policy questions erodes the legislative 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 — a practice that a majority of Canadian doctors remain unwilling to participate in — by heavy deference to the trial judge’s “findings of legislative and social facts.” In Carter, 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 “reconcile the competing rights of physicians and patients” (a task that is, perhaps, impossible to conclusively perform). The Court, then, not only invalidates but also enacts legislation. But a trial judge’s 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 “experts.” It cannot approach the dynamism or negotiated wisdom that emerges from stakeholder consultations and energetic Commons debate.

The question of whether the courts share interpretive authority over the Constitution with Parliament is not merely an academic one but of present consequence.

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 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 Carter. In recent court submissions, Arvay accused the government of engaging in an abuse of process by claiming that the Court’s pronouncements on Charter guarantees 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’s 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’t be right.

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 Charter rights. A more appropriate choreography of Court-Parliament relations would involve some explicit recognition of judicial humility, born from an understanding of the Court’s limited functions and its necessarily incomplete solutions to complex social problems.

Photo: Adrian Wyld / The Canadian Press

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Geoffrey Sigalet
Geoffrey Sigalet is a postdoctoral fellow at McGill's Research Group on Constitutional Studies and a research fellow at Stanford Law School's Constitutional Law Center. He earned his PhD at Princeton University in 2018. His research concerns theories of judicial review, constitutional interpretation, and in particular the idea of "dialogue" between courts and legislatures about bills of rights.
Joanna Baron
Joanna Baron is executive director of the Canadian Constitution Foundation, a legal charity that defends Canadian constitutional rights.

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