SEPTEMBER–OCTOBER 2000 • VOLUME 8 • NUMBERS 1–3

PRACTICAL AND AUTHORITATIVE ANALYSIS OF KEY NATIONAL ISSUES

SPECIAL EDITION ON THE The Charter dialogue SUPREME COURT’S 1999 between courts and CONSTITUTIONAL CASES FEATURES legislatures* The Charter dialogue between courts and legislatures Peter W. Hogg and THE LEGITIMACY OF BY PETER W. HOGG and Allison A. Thornton ...... 1 JUDICIAL REVIEW ALLISON A. THORNTON Judicial review in an age of udicial review is the term that is used legal realism: The debate over Peter W. Hogg is dean of the Osgoode Hall judicial activism Jto describe the action of courts in F.L. Morton ...... 1 Law School of York University. Allison Thornton striking down laws. Lawyers and politi- is a lawyer with Blake, Cassels & Graydon. The Supreme Court of Canada cal scientists, especially those em- in 1999: The year in review ployed at universities, love to debate the Patrick J. Monahan ...... 3 question whether judicial review is le- elected to their offices nor accountable The judicial role in a democratic state Rosalie Silberman Abella ...... 8 gitimate. The question arises because, for their actions, are vested with the Judicial activism and the Constitution under the Charter of Rights and Free- power to strike down laws that have Guy W. Giorno ...... 13 doms, the judges, who are neither The Charter dialogue, page 2 The Supreme Court’s new equality test: A critique Christopher D. Bredt and Ira Nishisato ...... 16 A mirage or an oasis? Giving Judicial review in an substance to substantive equality Martha A. McCarthy and Joanna L. Radbord ...... 20 Defence under attack: age of legal realism A review of three important Supreme Court decisions in 1999 Leslie Pringle ...... 31 The debate over judicial activism Shifting ground: New approaches to Charter analysis People have been taught to believe that BY F.L. MORTON in the criminal context when the Supreme Court speaks, it is Renee M. Pomerance ...... 36 not they who speak but the Constitution, F.L. Morton is a professor of political science Treaty rights, the Indian Act, at the University of Calgary. and the Canadian Constitution: whereas of course, in so many vital The Supreme Court’s 1999 decisions cases, it is they who speak and not the Kent McNeil ...... 44 Constitution. The Marshall decision as seen Some question whether there really is — Felix Frankfurter, former Justice of by an “expert witness” the US Supreme Court, in a letter anything called judicial activism. This Stephen Patterson ...... 53 to President Franklin D. Roosevelt seems a bit undue. The term has been The importance of the Marshall decision used by American and Canadian con- Tom Flanagan ...... 57 JUDICIAL ACTIVISM stitutional commentators for decades. DEFINED AND APPLIED In its simple and ordinary usage, it de- he debate over judicial activism notes the propensity of a judge (or a T continues to grow in Canada. Judicial review, page 26

Canada Watch is a publication of the York University Centre for Public Law and Public Policy and the Robarts Centre for Canadian Studies of York University The Charter dialogue continued from page 1 been made by the duly elected repre- not seem particularly apt considering PRACTICAL AND AUTHORITATIVE ANALYSIS OF KEY NATIONAL ISSUES sentatives of the people. Is this a legiti- that the Supreme Court of Canada’s de- EDITORS-IN-CHIEF mate function in a democratic society? cisions have to be obeyed by the legisla- Daniel Drache, Robarts Centre for This question also challenges the legiti- tures. Can one have a dialogue between Canadian Studies, York University macy of the Charter because it provides two institutions when one is so clearly Patrick Monahan, Osgoode Hall the authority for a much-expanded role subordinate to the other? The answer, Law School, York University of judicial review. we suggest, is “yes” in those cases MANAGING EDITORS The conventional answer to the where a judicial decision is open to re- question is that judicial review is legiti- versal, modification, or avoidance by Cheryl Dobinson mate in a democratic society. The rea- the competent legislative body. The judi- Joanne Rappaport son is based on our commitment to the cial decision can cause a public debate COLUMNISTS THIS ISSUE rule of law. All of the institutions in our in which Charter values are more Peter W. Hogg and Allison A. Thornton society must abide by the rule of law, prominent than they would have been if F.L. Morton and judicial review simply requires obe- it were not for the judicial decision. The Patrick J. Monahan dience by the legislative bodies to the legislative body is then in a position to law of the constitution. When the Su- decide on a course of action—the re- Rosalie Silberman Abella preme Court of Canada strikes down a enactment of the old law, the enactment Guy W. Giorno prohibition on the advertising of ciga- of a different law, or the abandonment Christopher D. Bredt and Ira Nishisato rettes (as it did in the RJR-MacDonald of the project—that is informed by the ju- Martha A. McCarthy and case, 1995), it is simply forcing the Par- dicial decision and the public debate Joanna L. Radbord liament of Canada to observe the Char- that followed the decision. Leslie Pringle ter’s guarantee of freedom of expres- Renee M. Pomerance sion. When the Supreme Court of SECTION 33 OF THE CHARTER Kent McNeil Canada adds sexual orientation to the Dialogue will not work if the effect of a Stephen Patterson list of prohibited grounds of discrimina- judicial decision is that the legislative Tom Flanagan tion in Alberta’s human rights legisla- body whose law has been struck down PRODUCTION tion (as it did in the Vriend case, 1998), cannot now accomplish its legislative it is simply forcing the legislature of Al- objective. But it nearly always will. The WordsWorth Communications first reason why a legislative body is berta to observe the Charter’s guaran- CONTACT FOR INFORMATION tee of equality. rarely disabled by a judicial decision is the existence in the Charter of the over- Canada Watch The difficulty with the conventional 227 York Lanes, 4700 Keele St. answer is that the Charter is, for the ride power of s. 33. Under s. 33, a legis- North York, Ontario M3J 1P3 most part, couched in such broad, lature need only insert a “notwithstand- Phone (416) 736-5499 vague language that, in practice, the ing” clause into a statute and this will lib- judges have a great deal of discretion in erate the statute from most of the provi- Fax (416) 650-4321 applying its provisions to laws that sions of the Charter, including the guar- www.yorku.ca/robarts antees of freedom of expression and come before them. The process of ap- ANNUAL SUBSCRIPTION RATES plying the Charter inevitably involves equality. Recall that s. 33 was added to (6 ISSUES PER YEAR) the Charter late in the drafting process “interpreting” its provisions into the like- Institutions: $75 at the behest of provincial premiers ness favoured by the judges. The prob- Individuals: $35 lem has been captured in a famous who feared the impact of judicial review on their legislative agendas. Students: $20 American aphorism: “We are under a (Outside Canada, add $10) Constitution, but the Constitution is When the Supreme Court of Canada what the judges say it is”! struck down a Quebec law forbidding Canada Watch is produced jointly by the use of English in commercial signs the York University Centre for Public Law and on the ground that the law violated the Public Policy, and the Robarts Centre for THE CONCEPT OF “DIALOGUE” Canadian Studies of York University. guarantee of freedom of expression In this article, we argue that, in consid- Copyright © 2000 (Ford, 1988), Quebec followed the deci- ering the debate about the legitimacy of Centre for Public Law and Public Policy; sion by enacting a new law that contin- the Robarts Centre for Canadian Studies judicial review, it is helpful to think of ju- ued to ban the use of English on all out- Printed in Canada dicial review as part of a “dialogue” be- door signs. The new law continued to tween the judges and the legislatures. At ISSN 1191-7733 first blush, the idea of a dialogue does The Charter dialogue, page 18

2 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 The Supreme Court of Canada in 1999: The year in review n the 1999 calendar year, the Su- BY PATRICK J. MONAHAN cessful leave applications was signifi- I preme Court of Canada handed cantly lower. down 18 constitutional cases, down Patrick Monahan is professor of law and director of the Centre for Public Law and slightly from 21 constitutional decisions CONSTITUTIONAL CASES Public Policy at Osgoode Hall Law School, Of the 18 constitutional cases in 1999, 14 in 1998 and 22 in 1997. But, overall, the York University. output of the court in 1999 was signifi- were Charter cases, 2 were federalism cantly lower than in previous years, with cases, and 2 were aboriginal rights the court handing down a total of just 73 leave being successful in 1999. Also cases. The claimants succeeded in their decisions. This represents a drop from noteworthy is that the court received claims against government in 5 of the 14 the established pattern in the 1990s—a about 20 percent fewer applications for Charter cases in 1999, a “success rate” period during which the court tended to leave in 1999 as compared with 1998 of 36 percent. This is consistent with the decide over 100 cases annually (includ- (458 versus 572), which means that al- established pattern that we have tracked ing 124 decisions in 1996 and 150 in though the percentage of successful ap- in recent years, with about one in every 1993). In 1999, about one of every four plicants remained relatively constant three Charter cases decided by the Su- decisions was decided on constitu- last year, the absolute number of suc- The SCC in 1999, page 4 tional grounds (including Charter, divi- sion or powers, and aboriginal issues). FIGURE 1 CASELOAD 1992–1999 Not only was output down in 1999, 160 but the court sat for just 55 days during Total cases the year, which is significantly lower 150 150 than the average of 75 sitting days over Constitutional the 1995–98 period. The period be- 14 0 cases tween filing an application for leave to 130 appeal and the decision on leave also increased to 5.2 months (up from 3.9 120 124 months in 1998), and the period be- 119 120 tween the hearing of an appeal and 110 judgment increased to 5.4 months (al- 107 most double the 2.8 months achieved in 100 103 1998 and 1997). 90 92 There is no obvious explanation for this decline in output and workload in 80 1999. One possibility is that the retire- ments of Chief Justice Lamer and Jus- 70 73

tice Cory somehow left the court Number of cases 60 shorthanded for part of the year. On the other hand, the transition to the new ap- 50 pointees, Justices Arbour from Ontario 50 and Lebel from Quebec, appeared (to 40 42 outside observers at least) to be fairly 38 smooth and seamless. It will be interest- 30 32 ing to track these output and workload 26 20 22 21 figures for the 2000 year to see whether 18 the numbers move back up to the levels 10 achieved in earlier years. It continues to be very difficult to ob- 0 tain leave to appeal to the highest court, 1992 1993 1994 1995 1996 1997 1998 1999 with just 12 percent of applicants for Year

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 3 The SCC in 1999 continued from page 3 preme Court resulting in a “win” for the individual claimant. In the two federal- In Law the court attempted to consolidate ism cases, success was divided: the fed- eral government succeeded in the M & the disparate strands of analysis that had D Farms case and the provinces were successful in the Westbank First Nation emerged in the mid-1990s in relation to the case. The two aboriginal claimants meaning of s. 15 of the Charter. were both successful (in Sundown and Marshall), although the court in The court put forward a complicated and Marshall later attempted to narrow the implications of its reasoning when it dis- multi-layered test that seems to turn on missed an application for a rehearing by one of the intervenors. whether a particular distinction amounts to

KEY DECISIONS IN 1999 a denial of a claimant’s human dignity. Of the 1999 constitutional cases, the equality rights decision in Law ap- peared to be the most significant in claim succeeded at the s. 1 stage. This In previous years we have noted that broader jurisprudential terms. In Law pattern seems the natural consequence Charter claims were more likely to suc- the court attempted to consolidate the of the Court’s s. 15 jurisprudence, which ceed in criminal cases than in non- disparate strands of analysis that had in effect substitutes the “dignity” analy- criminal cases. That trend was reversed emerged in the mid-1990s in relation to sis developed under s. 15 in place of the in 1999, where just one of the six crimi- the meaning of s. 15 of the Charter. The Oakes s. 1 test. (Note, however, that the nal law Charter claimants was success- court put forward a complicated and court has been relatively receptive to ful, while four of the eight non-criminal multi-layered test that seems to turn on s. 15 claims overall, with about one in claimants succeeded. Over the entire whether a particular distinction amounts three such claims succeeding. The point decade, however, claims in the criminal to a denial of a claimant’s human dig- is that the s. 1 Oakes test almost never law context have resulted in the greatest nity. As Chris Bredt notes elsewhere in proves determinative in the outcome.) success at the Supreme Court level. For this issue, the question whether a legal distinction violates human dignity is an extremely indeterminate criterion that FIGURE 2 FREQUENCY OF CHARTER CLAIMS lower courts will have considerable dif- BY CHARTER SECTION ficulty in applying in the future. 120 The puzzle is why the court contin- ues to regard it as so important to dis- 110 miss cases at the s. 15 stage, rather than 100 102 let the claim through to s. 1 where the Oakes test could be applied in the nor- 90 mal fashion. The Oakes test has proven 80 itself flexible and adaptable to a wide 70 variety of contexts in recent years. It thus seems difficult to understand why it 60 should be made so difficult for a claim- 50 50 ant in a s. 15 case to get through to s. 1. 40 44 Significantly, of the 33 equality rights cases decided by the Supreme Court in 30 31 33 27 the 1990s, s. 1 was determinative in just 20 25

one instance—the 1995 decision in Number of times sections considered 10 Egan. In the other 32 cases, the claim 11 10 was either dismissed at the s. 15 stage 0 s. 2(b) s. 7 s. 8 s. 9 s. 10(b) s. 11(b) s. 11(d) s. 12 s. 15 or, if the claimant succeeded in estab- lishing a s. 15 violation, the Charter Sections

4 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 example, claims based on s. 11(d) (the presumption of innocence and guaran- In previous years we have noted that tee of trial by an independent tribunal) succeeded in nearly one out of every Charter claims were more likely to succeed two cases in which they were raised over the decade. This is followed by in criminal cases than in non-criminal cases. claims based on s. 15 (with a 33 percent That trend was reversed in 1999, where success rate), and s. 10(b) (right to coun- sel, with a 32 percent success rate). At just one of the six criminal law Charter the other end of the scale, claims based on s. 12 (cruel and unusual punish- claimants was successful, while four of the ment) were rejected in each of the 10 cases in which such claims were raised. eight non-criminal claimants succeeded. CHARTER ACTIVISM The debate over judicial activism has gained additional momentum over the voured the Charter claimant in 27 per- Court was criticized for being overly past year, as the contributions by Peter cent of cases in which she has partici- restrictive in granting third parties the Hogg, Guy Giorno, and Ted Morton un- pated. Quebec Justices L’Heureux-Dubé right to make submissions. derline. But regardless of one’s views and Gonthier are least likely to rule in As might be expected given their au- on the relative merits of the different po- favour of the Charter claimant (each tomatic right to intervene in constitu- sitions in the debate, the fact remains with a 20 percent success rate in the tional cases, the most frequent inter- that the Supreme Court itself is divided 1990s), although it should be noted that venors are governments, with slightly over the extent to which it is appropriate Justice L’Heureux-Dubé is very recep- less than one-half (168) the total 354 in- to use the Charter to overturn the deci- tive to s. 15 claims and much less recep- terventions over the past four years hav- sions of legislatures and public officials. tive to other kinds of Charter arguments. ing been by governments. Significantly, The most “activist” member of the court the most frequent government inter- over the past decade has been Justice THE ROLE OF INTERVENORS venor before the Supreme Court during John Major from Alberta, who has fa- Over half of the constitutional cases be- this period has been the Attorney Gen- voured the Charter claimant in 42 per- fore the Supreme Court now feature eral of Quebec, which intervened in 28 cent of the Charter cases in which he the participation of “intervenors”—per- cases over the past four years. This was has participated. Relative newcomer sons or groups that are not parties to followed by the government of Canada Justice Ian Binnie has also favoured the the case itself but are given the right to (25 interventions), British Columbia claimant in 42 percent of cases (albeit file written materials and sometimes (24), and Alberta (21). Ontario inter- having sat on far fewer cases than Jus- make oral arguments. This is in stark vened 19 times in the past four years. tice Major). In contrast, the new Chief contrast to the situation as recently as The fact that Quebec was the most fre- Justice, Beverley McLachlin, has fa- the late 1980s, when the Supreme quent government intervenor is surpris- ing since there tend to be fewer constitu- tional cases at the Supreme Court level FIGURE 3 CHARTER SUCCESS RATE from the province of Quebec than from BY CHARTER SECTION either of Ontario or British Columbia. 50 One might have expected the most fre- 48 quent provincial government intervenor 40 to have been one of these two prov- inces, rather than Quebec. The four At- 30 32 33 lantic provinces, Prince Edward Island 28 27 (3), Newfoundland (2), Nova Scotia 20 (3), and New Brunswick (3), are the 20 18 19 least likely to intervene in constitutional 10 cases before the Supreme Court. These provinces also tend to have relatively

Success rates (percentages) 0 0 fewer constitutional cases heard by the s. 2(b) s. 7 s. 8 s. 9 s. 10(b) s. 11(b) s. 11(d) s. 12 s. 15 Supreme Court. Sections (with at least 10 decisions) The SCC in 1999, page 6

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 5 The SCC in 1999 continued from page 5 Apart from governments, the largest single group of intervenors are non- The fact that Quebec was the most profit organizations, including regis- tered charities, law-related organiza- frequent government intervenor is tions, industry associations, and other non-profits. A total of 76 different non- surprising since there tend to be fewer profit organizations intervened before constitutional cases at the Supreme Court the Supreme Court during the last four years, including 27 registered charities, level from the province of Quebec than 14 law-related organizations (such as the Canadian Bar Association and the from either of Ontario or British Columbia. Criminal Lawyers Association), and 5 industry groups (such as the Canadian Manufacturers’ Association and the Re- tail Council of Canada). There were 19 Council, the BC Wildlife Federation, government ones. The Centre for Public aboriginal organizations, 3 trade unions, and Delgamuukw all intervened in a Law and Public Policy contacted all of 5 corporations, and 11 individuals who series of aboriginal rights cases in the intervenors who appeared in 1999 also intervened over the past four years. 1996, but have not intervened in any in an attempt to ascertain whether or Among non-profit organizations, reg- other year or in any other context.) not their intervention was successful. istered charities have been the most fre- Only one trade union organization (the (Success is defined here in terms of quent intervenors in constitutional Canadian Labour Congress) and one supporting the party that eventually pre- cases, with 27 charitable organizations private corporation (Canadian National vailed in the litigation.) The 29 interven- making a total of 41 appearances. This Railway Company) intervened three or tions by attorneys general that we re- is followed by law-related groups (23 more times in the Supreme Court. viewed resulted in a successful inter- times) and individuals (17 times). The In 1999, at least, government inter- vention in 21 instances. In contrast, in 19 aboriginal organizations have ap- venors were more successful than non- the 53 interventions by non-governmen- peared 28 times over the past four years. Corporations and trade unions rarely TABLE 1 APPEARANCES BY PUBLIC INTEREST intervene in constitutional cases. ORGANIZATIONS, 1996–1999 The relevant numbers are set out in tables 1 and 2. Registered Law-related Industry Misc. non-profit Total Certain organizations tend to inter- Year charities organizations groups organizations appearances vene more frequently than others. The most frequent non-governmental 1996 0 1 4 17 22 intervenor during this period was the 1997 18 10 1 10 39 Canadian Civil Liberties Association 19989801229 (CCLA), which intervened eight times. 1999 14 4 4 15 37 Moreover, in all eight instances, the Total 41 23 9 54 127 CCLA intervened in support of the Charter claimant. This was followed by the Women’s Legal Education and Ac- tion Fund (LEAF), the BC Fisheries TABLE 2 APPEARANCES BY OTHER ENTITIES, 1996–1999 Survival Council, the BC Wildlife Fed- eration, and Delgamuukw et al., each Total of whom intervened five times. How- Trade Aboriginal appearances ever, these intervenors (unlike the Year unions Corporations organizations Individuals by year CCLA) did not always intervene in sup- port of the individual claimant, but 1996 0 3 14 12 29 sometimes intervened to uphold the 199703306 legislation or government action that 199810449 was under scrutiny. (It should also be 1999527115 noted that the BC Fisheries Survival Total 6 8 28 17 59

6 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 tal entities that we reviewed in 1999, the intervention was successful in 28 cases. Data suggest that non-traditional These data are relevant to the con- tinuing debate over the role of the interests, particularly charities, aboriginal courts in constitutional litigation. In the early years of the Charter, certain Char- groups, and non-profit organizations, ter critics argued that only profitable have effectively seized the opportunity corporations and wealthy private indi- viduals would have the resources nec- to intervene in litigation before essary to fund expensive litigation all the way to the Supreme Court level. the Supreme Court. Partly in response to these fears, the government of Canada instituted a Court Challenges Program, designed to fund litigation in language rights and six intervenors in a single proceeding. cused and, indeed, may be govern- equality rights cases. The theory of the Moreover, in these cases one typically ments or other organizations that are Court Challenges Program is that, by finds that there are intervenors on both funded partly or wholly through grants, providing funding to groups or interests sides of the issue. For example, in the subsidies, or the tax system. that would not otherwise have the re- recent Mills case (R. v. Mills (1999)) The Supreme Court announced in sources to undertake litigation, such dealing with the right of an accused per- August 1999 that, in future, it would groups will have the opportunity to use son to obtain psychiatric records of a strictly enforce the 60-day time limit for constitutional rights to advance their in- complainant in a sexual assault case, filing of applications for intervention. terests before the courts. Although the there were a total of 18 intervenors, in- (See the Notice to the Profession, dis- Court Challenges Program was can- cluding 8 attorneys general and 10 non- cussed in Crane and Brown, Supreme celled in the early 1990s, it was rein- governmental bodies or persons. Al- Court of Canada Practice (Carswell, stated following the 1993 federal elec- though it is not clear from the court’s 2000), at 200.) The court also an- tion and currently funds litigation in lan- opinion precisely what position was nounced that intervenors should not as- guage rights and equality rights cases. taken by all the intervenors, most of sume that they will be granted the right We have not attempted to ascertain them appear to have intervened in sup- to make oral submissions to the court. how many of the intervenors in the port of the constitutionality of the legis- Anecdotal reports from applicants for cases examined received funding di- lation and against the position taken by intervenor status suggest that the court rectly or indirectly (either in the form of the accused, whose liberty was at stake is now taking a much more restrictive grants or other subsidies). (It should in the proceeding. view of the right of intervenors to make also be remembered that our study ex- Before 1987, it was generally not pos- oral argument. amined only the intervenors, not the sible to intervene in a criminal case, A somewhat more rigorous enforce- principal parties in the litigation.) Never- with the court taking the position that ment of the requirements of the Su- theless, these data suggest that non- criminal cases involve only the citizen preme Court Rules seems appropriate, traditional interests, particularly chari- and the state rather than third parties. particularly in the criminal law context. ties, aboriginal groups, and non-profit Now, however, interventions are com- Moreover, while the court clearly has an organizations, have effectively seized monly granted in criminal matters. For interest in obtaining all relevant infor- the opportunity to intervene in litigation example, there were intervenors in 28 of mation and viewpoints on important is- before the Supreme Court. In this the 70 criminal law constitutional cases sues of public policy, there does not sense, the fears that the Charter would decided over the past 4 years (approxi- seem to be any reason in principle why be used unduly by profitable corpora- mately 40 percent.) Although this level such information need be provided by tions or the wealthy to reinforce their of intervention is lower than for non- way of oral argument. Granting inter- pre-existing privilege do not seem to be constitutional cases, it nevertheless venors the right to make written submis- borne out by these statistics. raises some concerns about the appro- sions alone seems to strike an appropri- priateness of the court’s current prac- ate balance between the need to obtain BALANCING THE ROLES OF tice, since an individual accused may relevant information and viewpoints on INTERVENORS AND PARTIES be forced to confront not only the the one hand and the fact that the actual There is a strong tendency to have mul- Crown but also an array of other groups parties to the litigation, whose interests tiple intervenors in a single proceeding. and organizations. Moreover, these are most directly at stake, should be the In those cases where intervenors ap- other organizations will typically be far primary focus of the actual oral argu- pear at all, there is an average of almost better funded that the individual ac- ment before the court on the other.

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 7 The judicial role in a democratic state

et me start this article about the ju- BY ROSALIE SILBERMAN ABELLA would be seriously taken into account Ldicial role in a democratic society by legislators. by offering a theory of what democracy Rosalie Silberman Abella is a justice In fact, statistics repeatedly confirm with the Ontario Court of Appeal. is. For me, the components of democ- that most Canadians—that majority racy are most starkly revealed in com- whose interests are consistently in- parison to its antonym—totalitarianism. voked in arguments against judicial in- What democratic societies promote— Like their British tervention, while expressing wariness and repressive ones do not—are the or even outright disapproval over a par- rights of their citizens and their partici- colleagues, ticular result in a given case—do in fact pation in decision making about the remain committed to the Charter as a rules by which they will be governed. American judges defining democratic instrument. Democracy promotes choice, voice, tended to wrap their What I would like to do, therefore, is and access to rights. Totalitarianism try to show why and how democracy is promotes none of those. mandate enhanced, not cauterized, by a judiciary The effectiveness of the rules or rule effectively fulfilling its Charter mandate, makers any given democracy generates protectively around and how democratic values are strength- may vary, but their defining similarities ened not only by a strong legislature, but will be a commitment to rights and to the status quo, also by a strong judiciary so that to- participation. gether a mutually respectful and inde- And so it is somewhat ironic to find becoming activist pendent partnership on behalf of the that in Canada today, the debate about public’s right to justice is maintained. the judicial role has, to a vocal extent, only to keep come to centre on the vigour with which LOOKING TO THE SOUTH courts are protecting rights, and the ex- government from Let me start the analysis with a familiar panded participation we have promoted encroaching on the proposition uttered by a well-known fig- to those rights. The sources of this de- ure: “[W]here the will of the legislature bate are the Charter of Rights and traditions and rights declared in its statutes, stands in oppo- Freedoms and the institution responsi- sition to that of the people declared in ble for implementing it—the judiciary. of vested interests. the constitution, the judges ought to be The criticism appears to be that governed by the latter, rather than the rights should be distributed by legisla- former.” This exhortation to the judici- tures, not courts, and that the enforce- ary to defend the people from legislative ment of the Charter by courts has there- tion that we have too much democracy acts not in conformity with the constitu- fore resulted in judicial trespass on leg- and too many institutions available to tion were not spoken by a Charter be- islative supremacy, resulting in an im- enforce it? As England, Israel, and the liever—or even a Charter agnostic. They pairment of democratic governance. European Community also embrace a were spoken over 200 years ago by Alex- legislated commitment to an overriding ander Hamilton, one of the framers of TOO MUCH DEMOCRACY? Bill of Rights, it strikes me that Canada’s the American constitution. These What is for me odd about this criticism, decision to constitutionalize rights, plac- words, articulated to confirm that the aside from its underlying—and histori- ing them at the apex of the system, wishes of the majority, as expressed cally erroneous—premise that judicial should be a source of great pride in our through elected governments, are sub- institutions do not form an integral part democratic compliance, not a source of ject to the demands of the constitution, of the democratic framework, is that it cranky agitation. are at the very core of the democratic is, at its core, a complaint that the Char- I would have thought that in a democ- commitment to judicial independence ter has created too many rights for too racy, the majority would applaud no less and constitutional supremacy. many people. But since rights and par- enthusiastically the possibility that its And what was there in the American ticipation define democracies, does the rights would be vigorously protected by constitution that made its framers so criticism not come down to the proposi- the judiciary, as that their opinions determined to keep its judicial reach

8 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 beyond the grasp of the state? The pro- tection of rights, the culmination of a When legislatures elected by majorities historical evolution that started with the Magna Carta, wandered through the enact laws like the Charter, the majority is war with the Stuart Kings, found expres- sion in the Act of Settlement and denial presumed to agree with that legislature’s in the execution of Sir Thomas More, decision to entrench rights and extend and ultimately escaped full-panoplied from the bizarre brow of King George a constitutionally guaranteed invitation III. The framers had experienced the ig- nobility of noble rule, and were deter- to the courts to intervene when legislative mined to create a new polity in which the government derived its moral au- conduct is not demonstrably justified in thority from the will of the people and its parameters from the constitution. Gov- a democratic society. ernments were constrained from en- croaching on the constitutive rights of its citizens, but if they did, there was an independent judiciary to keep those but to protect business and the public shamed by the indifference that permit- rights safe. purse from redistributive social welfare ted the Holocaust’s horrifying tenure, The institutional arrangements at the legislation designed to assist those who the Western world revisited the role of heart of this new, American democracy, needed assistance. Like their British col- rights, and uttered the international therefore, provided that the will of the leagues, American judges tended to mea culpa found in the Universal Decla- people as reflected in their elected rep- wrap their mandate protectively around ration of Human of Rights. The domes- resentatives was subject to the will of the status quo, becoming activist only to tic response in the United States was the constitution, as reflected in the deci- keep government from encroaching on slower, and did not flower until the pol- sions of an independent judiciary. the traditions and rights of vested inter- lution emitted from the House Un- Notwithstanding the formulization ests. As a result, until the mid-fifties, seg- American Activities Committee had and constitutionalization of these regation, McCarthyism, and the intern- evaporated. But blossom it did, with the democratic aspirations in the United ment of Japanese Americans did not re- American judiciary and government States, however, it cannot be said that ceived judicial rebuke; the same could taking turns at the head of the rights pa- the actual implementation met with uni- not be said, however, for women’s ad- rade until, more recently, partisan ideol- versal enthusiasm. The elites who de- vancement, minimum wage laws, or ogy has merged sufficiently with the ju- bated their way to a Bill of Rights were many of the measures introduced to dicial appointment process to seem- far more comfortable as drafters than confront the economic nightmare that ingly make rights protection less of a they were, once elected to government was the Depression. Activism, today a preoccupation. office, as recipients of their own rheto- verbal missile routinely deployed This background helps us to under- ric. When John Marshall, the first Chief against a judiciary with an expansive stand that while constitutional man- Justice of the American Supreme Court, view of rights, was once the proud hall- dates rarely change, governments, rendered his dramatic judgment in mark of a judiciary determined to re- judges, and attitudes do. The ebbing Marbury v. Madison in 1803, boldly as- strict them. Hence, the futility of labels. and flowing, the critical scrutiny, and serting the court’s right to invalidate un- But more of that later. the inherent relational tensions are in- constitutional legislation, he started the The democratic era that started with evitable. They are a function both of first act of what has turned out to be a the American constitution witnessed a perspective and of political will, each of very long-running play whose opening relationship between the judiciary and which will likely vary with time and with words are “to defer or not to defer, that the Bill of Rights that cannot be de- the times. is question.” scribed as being anything closer than Ironically, it would be many years in polite until halfway through this century. THE CHARTER ERA the United States before these judicial But with the 1954 decision in Brown v. Why does this matter now, when we are muscles were again so strenuously Board of Education banning segrega- supposed to be looking forward to flexed as to knock out legislative action, tion in American schools, the relation- millennial goals rather than backward but when they were, as they routinely ship turned intense. Shaken by the un- to romanticized history? It matters be- were earlier in the 20th century, the flex- imaginably devastating consequences cause we seem to be trapped at the mo- ing was not to protect people’s rights, of intolerance in World War II, and The judicial role, page 10

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 9 The judicial role continued from page 9 ment in a conversational whirlpool about judges and constitutions and In the first decade of Charter adjudication, rights—a conversation in which loaded phrases are perpetually spun and im- the Supreme Court was energetic. portant concepts are conveniently dis- regarded. The most basic of the central It struck down Sabbatarian and sign laws, concepts we need back in the conversa- said equality meant more than treating tion is that democracy is not—and never was—just about the wishes of the major- people the same, and decriminalized ity. What pumps oxygen no less force- fully through vibrant democratic veins is abortion. It ventured fearlessly into the protection of rights, through courts, notwithstanding the wishes of the ma- the overgrown fields of the law and cut jority. It is this second, crucial aspect of democratic values that has been sub- a wide path for other courts to follow. merged by the swirling discourse. Which brings us to Canada. I think it Again the public cheered. is fair to say that until 1981, when the Charter was donated to the British North America Act by the federal gov- ernment, no one ever accused the Ca- social contract. The public cheered. The cheered. Even the media cheered. It nadian judiciary of aggressive rights media cheered. Within months, practi- was clear that the sixties and seventies protection. In fact, many of us reared on cally every province had amended its had generated a public thirst for rights the constitutional diet of division-of- family property laws accordingly. protection, and Charter adjudication in powers jurisprudence, looked wistfully Then we got the Charter of Rights the Supreme Court in the eighties was at the wide selection on the constitu- and Freedoms. To the constitution’s di- beginning to quench that thirst. tional menu available to American vision of powers, it added rights: civil judges. With rare exceptions, the Cana- rights, like the freedoms of religion, as- THE NEW INHIBITORS dian Supreme Court not only shared the sociation, and expression; the right to With the arrival of the nineties, a few apparent inhibitions of its American counsel; and the right to security of the abrupt voices were heard to challenge and British counterparts about welcom- person. And human rights, like equality, the Supreme Court, voices in large part ing rights into the judicial fold, but also linguistic rights, aboriginal rights, and belonging to those whose psychological remained reluctant at least a generation multiculturalism. What Canada got with security or territorial hegemony were at longer. By the time I graduated from law the Charter was a dramatic package of risk from the Charter’s reach. As the school in 1970, the perception was that guaranteed rights, subject only to those decade advanced, so did the courage the Supreme Court was the place that reasonable limits that were demonstra- and insistence of these “new inhibi- decided constitutional issues such as bly justified in a free and democratic so- tors”—most of whom appeared to con- whether “persons” in the British North ciety, a package assembled by the legis- gregate at one end of the ideological America Act included women and lature, which in turn—it bears repeat- spectrum. While their articulated target whether egg marketing boards were a ing—assigned to the courts the duty to was the Supreme Court of Canada, their provincial or a federal undertaking. decide whether its laws, policies, or real target was the way the Charter was Then, in 1978, just before we got a practices met the constitutional stand- transforming their traditional expecta- Charter, the Supreme Court in Rathwell ards set out in the Charter. tions and entitlements. v. Rathwell reversed a decision it had In the first decade of Charter adjudi- They made their arguments skillfully. made only 5 years earlier in Murdoch v. cation, the Supreme Court was ener- In essence, they turned the good news Murdoch, thereby rewriting the archaic getic. It struck down Sabbatarian and of constitutionalized rights—the mark of matrimonial property regime we had sign laws, said equality meant more a secure and mature democracy—into been subject to for over 100 years. No than treating people the same, and the bad news of judicial autocracy—the longer equitable, said the court. Time to decriminalized abortion. It ventured mark of a debilitated and devalued leg- adjust to a new appreciation about the fearlessly into the overgrown fields of islature. They called minorities seeking role played by husbands and wives in a the law and cut a wide path for other the right to be free from discrimination marriage. Time, in short, to create a new courts to follow. Again the public “special interest groups” seeking to

10 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 jump the queue. They called efforts to reverse discrimination “reverse dis- Public opinion, in its splendid crimination.” They pretended that con- cepts or words in the Charter like free- indeterminacy, is not evidence. dom, equality, and justice had no pre- existing political aspect and bemoaned It is a fluctuating, idiosyncratic behemoth, the politicization of the judiciary. They incapable of being cross-examined about trumpeted the rights of the majority and ignored the fact that minorities are peo- the basis for its opinion, susceptible to ple who want rights too. They said courts should only interpret, not make wild mood swings, and reliably unreliable. law, thereby ignoring the entire history of common law. They called advocates for equality, human rights, and the Char- ter “biased,” and defenders of the status quo “impartial.” They urged the courts to authority, they are fulfilling their as- it, judges, on the other hand, serve only defer to legislation, unless, ironically, signed democratic duty to prevent legis- justice. As Lillian Hellman once said: “I they disagreed with the legislation. lative trespass on constitutional rights. will not cut my conscience to fit this They said judges are not accountable While all branches of government year’s fashions.” This means that the because they are not elected, yet held are responsible for the delivery of jus- occasional judgment will collide with them to negative account for every ex- tice, they respond to different impera- some public expectations, which will, panded right. They claimed a mo- tives. Legislators, our elected proxies, inevitably, create controversy. But judg- nopoly on truth, frequently used invec- consult constituents, fellow parliamen- ments that are controversial are not tives to assert it, then accused their de- tarians, and available research until the thereby illegitimate or undemocratic; tractors of personalizing the debate. public’s opinions are sufficiently digest- they are, in fact, democracy at work. The essence of their message was ible to be swallowed by a parliamentary What of the role of public opinion? that there was an anti-democratic, so- majority. And if they cannot be made Should judges really transcend these cially hazardous turbulence in the air, sufficiently palatable, they are starved views as they discharge their duties? most notably during judicial flights. And for want of political nourishment. Probably. Should they be aware of them while it is a message that has every right This is the dilemma all legislators anyway? Certainly. But first, we have to to be heard, it is not the whole story. face—they are elected to implement the think about what public opinion really The whole story is that the Charter does public will, the public will is often diffi- means and why it does not guide the not represent heterodoxy about democ- cult to ascertain or implement, and they courts the way it does legislatures. racy, but rather its finest manifestation. are therefore left to implement only Society is horizontal and it is vertical, People elect legislators who enact the those constituency concerns that can and it is practically impossible to know laws they think the majority of their con- survive the gauntlet of the prevailing at which point a consensus emerges. stituents want them to enact, and ap- partisan ideology. At the end of any Until we know who the public is and point judges who are expected to be in- given parliamentary session, many pub- how it forms opinions, courts deciding dependent from those legislators and lic concerns lay scattered of necessity cases are entitled to regard public opin- impartial in determining whether the on the cutting room floor, awaiting ei- ion as largely the responsibility of the legislature’s actions meet constitutional ther wider public endorsement or a legislature. This does not mean that standards. When legislatures elected by newly elected partisan ideology. courts are oblivious to what they per- majorities enact laws like the Charter, The judiciary has a different relation- ceive the public’s opinions to be, but it the majority is presumed to agree with ship with the public. It is accountable means that they cannot abdicate their that legislature’s decision to entrench less to the public’s opinions and more responsibility to decide the particular rights and extend a constitutionally to the public interest. It discharges that case before them because of their per- guaranteed invitation to the courts to in- accountability by being principled, in- ception of public opinion. Public opin- tervene when legislative conduct is not dependent, and impartial. Of all the ion, in its splendid indeterminacy, is not demonstrably justified in a democratic public institutions responsible for deliv- evidence. It is a fluctuating, idiosyncratic society. ering justice, the judiciary is the only behemoth, incapable of being cross- one for whom justice is the exclusive examined about the basis for its opin- THE JUDICIAL MANDATE mandate. This means that while legisla- ion, susceptible to wild mood swings, In enforcing the Charter, therefore, the tures respond of necessity of the and reliably unreliable. In framing its courts are not trespassing on legislative urgings of the public, however we define The judicial role, page 12

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 11 The judicial role continued from page 11 opinions, the public is not expected to weigh all relevant information or to be We will have to learn to see first and then impartial. The same cannot be said of judges. define... but we will probably, as we This defence of constitutional rights does not mean that there are no out- learn to listen and be open to each other’s standing issues. There are several to dis- perspective, emerge from the transition cuss: public information about who judges are and how they are appointed; with confidence that our decision to acquire the interrelationship between courts and legislatures, including the reminder the Charter was justified. that the notwithstanding clause gives legislatures the final say; when to read in corrective words to effect constitu- tional compliance and when to leave each of them stakes his pride to his A solitary man glides downhill on corrective compliance to the legisla- point of view. They are simply unable to his skis. ture; the tension between those who persuade one another of the value of The snow is falling. think the rights stage is overpopulated their respective opinions. It falls until the man disappears and those who are in the wings waiting On the tensest evening in the course back into to join the cast; whether labels such as of this dispute, Yvan’s solipsistic hyste- the landscape. progressive, conservative, activist, re- ria over his pending wedding distracts My friend Serge, who’s one of my straint, or politicization really contribute Serge and Marc from their animosity to- oldest friends, to a thoughtful analysis of judicial be- ward each other and unites them in has bought a painting. haviour; whether the search for consen- laughter at Yvan’s hyperbolic behav- It’s a canvas about five foot by sus is replacing compassion and cour- iour. The tension is broken when Serge four. age as the defining justice objective suddenly throws Marc a blue felt pen It represents a man who moves and, as a corollary, whether the proposi- and invites him to draw on the painting. across a space tion that entitlement should be a matter Marc cautiously approaches the paint- and disappears. of timing can ever be consistent with the ing, and slowly draws a little skier with a fact that rights are guaranteed now. woolly hat along one of the diagonal That new white canvas is the Char- All of these, and more, are issues we white lines. Yvan is stunned; Serge and ter. Different people see different are and should be talking about. It is an Marc survey the painting calmly, then things in it and approach it in different important conversation, and one I hope decide to go for dinner. ways: some with devoted passion, we will keep constructive, rigorous, and Serge’s act in permitting Marc to de- some with passionate antipathy, and continuous. face the painting proved to Marc that some with benign curiosity. The ac- Serge considered their friendship to be quisition of the Charter is sufficiently CONCLUSION more important than the painting, and recent that we are still going through a The play Art, by Yasmina Reza, is about the two friends recommitted them- “trial period” and building under- three close male friends and what hap- selves to rebuilding their relationship standing. We will have to learn to see pens to their relationship when one of with a “trial period.” Together, they first and then define, rather than the them, Serge, spends $200,000 on a paint- wash the skier off the painting and then, other way around, but we will prob- ing. The painting is white, with fine white as the play ends, Marc stands in front of ably, as we learn to listen and be open diagonal lines. Serge’s oldest friend Marc the picture, willing to see it differently to one another’s perspective, emerge is astonished by the purchase. He sees now that its significance is in perspec- from the transition with confidence nothing of merit in it, and is offended by tive for him. Here are his closing words that our decision to acquire the Char- Serge’s devotion to what seems to him as he stares at the white canvas: ter was justified. to be a ridiculous purchase. The third Under the white clouds, the snow is In my view, we have added a mag- friend, Yvan, does not understand the falling. nificent acquisition to our democratic painting but neither does he mind it, You can’t see the white clouds, or gallery. Audiences will continue to de- thereby annoying Marc. The relationship the snow. bate it for generations, but I have no among the three men unravels over the Or the cold, or the white glow of doubt that time and experience will meaning and worth of the painting, and the earth. only increase our appreciation.

12 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 Judicial activism and the Constitution*

s one who has seen the inside of BY GUY W. GIORNO quoted as saying.3 That’s not a new Athe government decision making policy. Indeed, it’s been his position for and legislative drafting process, I hope Guy Giorno is deputy chief of staff, as long as I can recall. Office of the Premier, Government of Ontario. this article brings a different, yet useful, Section 1 already contemplates the perspective to this issue of Canada imposition of “reasonable limits” on Watch. This article touches on three Charter rights and freedoms. For a legis- topics: If this is truly the lature to go further and impose restric- 1. the position of the present Ontario tions not saved by s. 1—by definition, un- government concerning the consti- people’s Constitution, reasonable limits—while technically tution and the rule of law; permitted by s. 33, is inconsistent with 2. the essential role of the people in then the public has a respect for those very rights and any constitutional dialogue.; and freedoms. This perspective closely ac- 3. the importance of mutual respect particular stake in cords with the political reality that sec- among all parties to the dialogue. tion 33 is difficult to invoke. Government decisions that bills that employ the notwithstanding THE ONTARIO expand the Charter clause have been introduced only in GOVERNMENT’S POSITION four jurisdictions, passed only in three, A telling exchange occurred in 1988 beyond what was and brought into force only in two. while the Ontario legislature debated Respect for the Constitution also re- the Meech Lake Accord. As Mike Harris contemplated in quires respect for the judiciary that up- was speaking about the possibility of a holds it. After all, as Professor Ian court reference on the Accord, a Liberal 1981 and 1982. Hunter has said, “constitutions are not backbencher interrupted. Hansard self-interpreting.”4 The amount of inter- records the following exchange: pretation required depends partly on the precision of the constitutional draft- Mr. Miller (Norfolk): This is the been ruled upon by the highest ers. The Constitution Act, 1982, while highest court, right here. court in Canada. There is no further containing some very precise sections Mr. Johnston (Scarborough West): I avenue of appeal. The Province of (such as references to first ministers’ wish it were true.... Ontario will respect the Supreme conferences), describes rights and Mr. Harris: This is no longer the Court’s ruling. Ontario respects the freedoms in very general language. Per- highest court in the land, as the constitution of Canada.2 member for Scarborough West has haps that explains why in a little under pointed out. By virtue of our Charter Although since 1995 the Ontario gov- 18 years (18 years less 8 days, to be ex- and our constitution, we have given ernment had argued with vigour a differ- act), a Charter of Rights of Freedoms of that to the Supreme Court of ent position, immediately upon release some 2,200 words has generated more Canada.1 of the ruling its response was one of jurisprudence than a constitution of conformity and compliance. more than 11,000 words has produced The present Ontario government The Ontario government respects during a century and one-third. supports the constitution, supports the not only that the constitution is the “su- The importance of judicial interpre- rule of law, and supports the role of the preme law of Canada” but also that the tation is also the reason why the Ontario judiciary (particularly the Supreme Supreme Court of Canada is the ulti- government has sought to open a dia- Court of Canada) in upholding the law mate arbiter of its meaning. logue on the appointment of Supreme and Constitution. Out of respect for constitutional Court judges. Last May, when the Supreme Court re- rights, the government quickly rejected Last October, Ontario’s minister of leased its reasons for judgment in M. v. any suggestion that it would introduce intergovernmental affairs, the Hon. H., Premier Harris issued an official state- legislation to invoke s. 33 of the Char- Norm Sterling, wrote the federal attor- ment that I’d like to quote in its entirety: ter—the notwithstanding clause. “I’m ney general, urging “a more public de- The case in question has made its not a fan of the notwithstanding clause bate on the process of appointments at way through due process, and has at the best of times,” the premier was Judicial activism, page 14

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 13 Judicial activism continued from page 13 the federal level.”5 Noting public de- mand for “more transparency and ac- [A]cceptance that the constitution must countability by all levels of government,” the letter cited a 1999 survey indicating expand into the future begs the question of that only 8 percent of Canadians accept the current system of prime ministerial whose values will guide that growth. appointments to the Supreme Court. Presumably, those of the Canadian people. Since the Hon. Anne McLellan didn’t reply,6 the federal government seems unwilling to entertain that debate. Its po- sition appears to be that this issue went He saw a constitutionally entrenched tion is a “a living tree capable of growth away with the deaths of the Meech Lake charter not just as protection of the pub- and expansion within its natural lim- and Charlottetown accords. lic, but as empowerment of the public. its.”11 Two comments about the “living The reform proposed by Meech Lake His approach looked on the constitu- tree” metaphor are apposite. First, the and Charlottetown was modest— tion not as something for the people, last four words of Sankey’s dictum are namely, that the federal Cabinet choose but of the people. often forgotten—within its natural lim- puisne Supreme Court justices from A corollary is that both the content its. The language hints at interpreta- lists of provincial nominees. This was and the interpretation of such a consti- tions that fill the interstices rather than not a new idea, having been included in tution must embody public sentiment take off in an entirely new direction. constitutional reform proposals dating and values. back to 1971. Second, acceptance that the constitu- Professor Hogg’s 1997 paper on dia- Twelve years ago, the Ontario legisla- tion must expand into the future begs logue refers to the legislative bodies as ture went much further, when on a vote the question of whose values will guide “subordinate” to the courts. While, in of 112:8 it adopted a select committee re- that growth. Presumably, those of the the sense he meant it, that description is port critical of the lack of public partici- Canadian people. accurate, in another sense, legislators, pation in appointments and calling for Consider the circumstances sur- judges, and the constitution itself are “a further opening up of the process... rounding the case in which the “living subordinate to the interests of the public in the post-Charter era.”7 (As a matter of tree” judgment was rendered: the so- they serve. If this is truly the people’s historical curiosity, that select commit- called Persons Case of 1929. Constitution, then the public has a par- tee included among its membership the Voters had already been electing ticular stake in decisions that expand current premier and deputy premier.) women to the House of Commons and the Charter beyond what was contem- provincial legislatures for some time. A LIVING TREE plated in 1981 and 1982. Prime Ministers Meighen and King both Very early, in Big M Drug Mart,9 Chief My second observation is that, for dia- promised to appoint a woman to the Sen- Justice Dickson wrote that the Charter logue to be truly meaningful, it must in- ate, but the former was defeated in 1921 was intended not just as a present but as volve the public, both directly and before he could keep the promise, and a future standard, and that s. 2 free- through its elected representatives. the latter was told by Justice Department doms could not be determined solely During the 1968 constitutional confer- lawyers that the constitution prevented by the degree to which they were en- ence, as then-Justice Minister Pierre Tru- him from doing so. King’s attorney gen- joyed pre-Charter. deau was trying to allay provincial fears eral, Ernest Lapointe, promised a con- In the Saskatchewan Reference re Pro- about a constitutionally entrenched bill stitutional amendment if necessary, and vincial Electoral Boundaries,10 Justice of rights, this is what he said: the duly elected government supported McLachlin picked up the theme, saying: [T]here is no suggestion that the the petitioners’ position before the Judi- [T]he past plays a critical but non- federal government is seeking any cial Committee of the Privy Council. exclusive role in determining the power at the expense of the prov- To the extent that newspaper editori- content of the rights and freedoms inces. We are stating that we are will- als were a barometer of public opinion, granted by the Charter. The tree is ing to surrender some of our power the appointment of women to the Sen- rooted in past and present institu- to the people of Canada, and we are ate enjoyed popular support. Thus, the tions, but must be capable of growth suggesting that the provincial gov- Privy Council’s judgment merely al- to meet the future. ernments surrender some of their lowed the constitution to expand in a power to the people in their respec- Her Ladyship relied on the apho- direction that the Canadian people had tive provinces. [Emphasis added.]8 rism of Lord Sankey, that the constitu- already moved. The “living tree” princi-

14 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 ple was that the constitution can grow in step with the country, not ahead of it. In the interest of genuine dialogue, As Justice Iacobucci implied in Vriend,12 making value judgments and one might ask whether assumptions about upholding the constitution are different exercises. Most of us agree with the ma- legislative response are preferable to letting jority in Vriend that democracy means more than majority rule. Most agree, the legislature actually respond. too, that dignity of the person, equality, pluralism, and the other principles listed by Chief Justice Dickson in 13 Oakes are important to Canadians. Yet spond. The public is also a participant 1 Debates, Legislative Assembly of none of that resolves the question of in this dialogue, and is worthy of equal Ontario, June 28, 1988, 4758. whose principles should breathe life respect. And as participants in this dia- 2 Office of the Premier, News Re- into constitutional text. logue, sometimes the public applauds, lease, May 20, 1999. and sometimes it disagrees—strongly. 3 “Ontario’s 3 leaders will honour new MUTUAL RESPECT I work for a politician, so I know ruling,” Toronto Star, May 21, 1999. My third and final comment is that any something about public criticism. It can dialogue must be based on mutual re- be uncomfortable. It can be unfair. But 4 Ian Hunter, “Taking the law in vain,” spect among all participants. I have not only is criticism the people’s right, it National Post, July 29, 1999. noted earlier that the present govern- also serves to strengthen our public in- 5 Norman W. Sterling, letter to Anne ment respects both the constitution and stitutions. The Supreme Court itself has McLellan, October 22, 1999. the judiciary that interprets it. The case recognized the importance of public 6 As of the date of this presentation, law suggests that, from the judiciary’s debate, even when it turns to criticism. April 7, 2000. A reply ultimately was perspective, that respect is mutual. Jus- In the PEI Reference16 on judges’ re- sent on May 12, 2000. tice Iacobucci’s reasons in Vriend, in muneration, Chief Justice Lamer cited which he endorsed the “dialogue” the- 7 Select Committee on Constitutional with approval the 1938 observation of Reform (Ontario), “Report on the sis, say precisely that. Chief Justice Duff that our democratic According to the court, respect for Constitution Amendment 1987” institutions (June 1998), 51. the legislature entails some degree of derive their efficacy from the free deference. Deference is not a complete public discussion of affairs, from 8 Pierre Elliott Trudeau, remarks dur- bar to Charter scrutiny, but it is relevant criticism and answer and counter- ing Constitutional Conference, Feb- to both the s. 1 analysis and the choice criticism, from attack upon policy ruary 5-7, 1968, quoted in Conversa- of remedy under s. 52. and administration and defence and tion with Canadians (Toronto: Uni- In choosing a remedy for Charter counter-attack, from the freest and versity of Toronto Press, 1972), 90-91. breaches, the courts are concerned fullest analysis and examination 9 [1985] 1 S.C.R. 295. about minimal interference with legisla- from every point of view of political 10 [1991] 2 S.C.R. 158. tive purposes—and often the analysis proposals.17 turns on guess work as to what the legis- 11 Edwards v. Attorney-General for lature might have done. Far from weakening the nation’s insti- Canada, [1930] A.C. 124, at 136. For example, in Schacter,14 referring tutions, public debate, even public criti- 12 Vriend v. Alberta, [1998] 1 S.C.R. 493. to what Parliament would have wanted cism, are what make democracy strong. 13 R. v. Oakes, [1986] 1 S.C.R. 103, at 136. That type of public participation makes to enact, Chief Justice Lamer used the 14 Schachter v. Canada, [1992] 2 our institutions accountable and grants word “assume” or “assumption” 18 S.C.R. 679. times. them legitimacy. However discomfort- 15 Miron v. Trudel, [1995] 2 S.C.R. 418. In Miron v. Trudel,15 the majority im- ing, however inconvenient, that sort of posed a definition, saying it was “what public participation comes with the ter- 16 Reference re Remuneration of Judges the Legislature would have done had it ritory called “democracy,” and we of the Provincial Court of Prince been forced to face the problem the ap- should welcome it. Edward Island; Reference re Inde- pellants raise.” pendence and Impartiality of Judges In the interest of genuine dialogue, of the Provincial Court of Prince one might ask whether assumptions * The comments in this article are my Edward Island, [1997] 3 S.C.R. 3. about legislative response are prefer- own; they do not reflect the views of 17 Reference re Alberta Statutes, [1938] able to letting the legislature actually re- Premier Harris or his government. S.C.R. 100, at 133.

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 15 The Supreme Court’s new equality test: A critique

n Law v. Minister of Human Re- BY CHRISTOPHER D. BREDT Distinction based on enumer- I sources Development,2 Mr. Justice and IRA NISHISATO1 ated or analogous grounds: The Iacobucci, writing for a unanimous Su- enumerated grounds under s. 15(1) are preme Court, articulated the principles Christopher Bredt is a partner with Borden clear. The court, however, gives guid- for analysis under s. 15(1) of the Char- Ladner Gervais LLP. Ira Nishisato is an ance on analogous grounds as follows: associate with Borden Ladner Gervais LLP. ter. The unanimity of the court is impor- An analogous ground may be tant, as in prior decisions such as Miron shown by the fundamental nature of v. Trudel 3 and Egan v. Canada,4 the the characteristic... [which] is im- court was divided in its views on the ap- The Law test is portant to [the claimant’s] identity, propriate approach to s. 15(1). How- personhood or belonging. The fact ever, in its quest to achieve a common unduly complex, that a characteristic is immutable, approach, the court has articulated a difficult to change, or changeable test that gives rise to the following prob- contextual, and only at unacceptable personal cost lems: (1) the new test relies heavily on may also lead to its recognition as “context,” is overly complex, and ac- difficult for trial an analogous ground.6 cordingly, is difficult for trial judges to The court further states that the fun- apply; and (2) it effectively eviscerates judges to apply. damental consideration for recognition s. 1 of the Charter. We review below the Further, the Law test of a new analogous ground is whether test articulated by the court in Law, such recognition would further the pur- briefly analyze the problems with the unnecessarily poses of s. 15. Law test, and finally, propose an alter- Discrimination: The final step is to native approach. overlaps the ask whether the law in question has a THE LAW EQUALITY TEST analysis of breach purpose or effect that is discriminatory The court summarizes the test in Law within the meaning of the equality guar- as follows: under s. 15(1) and antee. The court elaborates the third The approach adopted and regu- part of the test in the following terms: larly applied by this Court to the in- the analysis under Does the differential treatment dis- terpretation of s. 15(1) focuses upon criminate, by imposing a burden three central issues: s. 1, in a manner upon or withholding a benefit from (A) whether a law imposes differen- the claimant in a manner which re- tial treatment between the that effectively flects the stereotypical application claimant and others, in purpose eviscerates s. 1. of presumed group or personal or effect; characteristics, or which otherwise (B) whether one or more enumer- has the effect of perpetuating or pro- ated or analogous grounds of moting the view that the individual discrimination are the basis for is less capable or worthy of recogni- Does the impugned law (a) draw a the differential treatment; tion or value as a human being or as formal distinction between the (C) whether the law in question has a member of Canadian society, claimant and others on the basis of a purpose or effect that is dis- equally deserving of concern, re- one or more personal characteris- criminatory within the meaning spect, and consideration? tics, or (b) fail to take into account of the equality guarantee.5 the claimant’s already disadvan- SECTION 1 The court then discusses in detail taged position within Canadian soci- Once a violation of s. 15(1) has been each of these steps. ety resulting in substantively differ- found, a court must consider whether Differential treatment: The court ential treatment between the claim- the impugned legislation is saved by expresses the first step of the test as fol- ant and others on the basis of one s. 1. As with its s. 15(1) jurisprudence, lows: or more personal characteristics? the court has refined the s. 1 test in re-

16 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 cent decisions such as Egan v. Canada7 and Vriend v. Alberta.8 The court has The net effect of this overlap between emphasized that analysis under s. 1 must be undertaken with close attention the s. 15(1) analysis and the s. 1 analysis paid to the context of the impugned law. The objective of a law can be deter- is to create a repetitive test, which, mined only by canvassing the social in its application, tends to strip s. 1 problem that it addresses. The impor- tance of that objective will also turn on of any meaningful role. contextual factors. The proportionality of the means employed, and whether they justify the violation of a right, re- quire reference to the factual context of in s. 15(1) is matched by the court’s in- create classifications either directly, or the law. Accordingly, “context is the in- sistence on “context” in the application through adverse effects. Common sense dispensable handmaiden” of an analy- of the s. 1 test. The net effect of this tells us that certain classifications are sis under s. 1.9 overlap between the s. 15(1) analysis more “suspect” than others. For exam- and the s. 1 analysis is to create a repeti- ple, a law that classifies persons on the CRITIQUE OF THE LAW TEST tive test, which, in its application, tends basis of race is generally more suspect The Law test is unduly complex, con- to strip s. 1 of any meaningful role. than a law that classifies persons based textual, and difficult for trial judges to In order to create an approach that is on income level. Some weight should apply. Further, the Law test unnecessar- more straightforward and easier to ap- be given to the text of s. 15(1), which ily overlaps the analysis of breach under ply, the underlying factors relevant to an specifically enumerates a number of s. 15(1) and the analysis under s. 1, in a analysis of equality issues should be suspect types of classifications. manner that effectively eviscerates s. 1. considered. Once the relevant factors 3. Reasonableness of the classi- If the s. 1 analysis is included, a trial have been identified, the final section of fication: The reasonableness of the judge must now consider as many as 14 this article examines the issue whether classification in question requires an ex- different factors in order to determine these factors are more appropriately amination of the classification in the whether there has been a breach of the considered under s. 15(1) or under s. 1. context of the purpose of the legisla- Charter’s equality guarantees. The trial tion.11 When one examines the problem judge’s task is made more difficult by RELEVANT FACTORS IN that legislation is designed to address, the use of terms such as “essential hu- EQUALITY ANALYSIS typically the argument is made that the man dignity,” which, while a noble sen- There are three basic factors that under- classification created does not include timent, do not provide a practical stand- pin any analysis of equality rights:10 all of the people who are affected by the ard to be applied. The subjectivity of the 1. The purpose of the legisla- problem and accordingly is “under-in- test is further augmented by the court’s tion: The essence of legislating is often clusive”; or, alternatively, the argument repetitive resort to “contextual” analy- to create distinctions or classifications. is made that the classification created sis. This inevitably leads to results that Analysis of the purpose of the legisla- includes people who are not affected by turn on the individual viewpoints of the tion is thus an important first step in the the problem, and accordingly is “over- judges—a modern day equivalent of the equality analysis. What is the problem inclusive.” Legislation that is “under-in- “length of the Chancellor’s foot.” While that the legislation was designed to ad- clusive” is often sustainable on the basis some subjectivity is inevitable, the Law dress? Analytically distinct from the pur- that the legislation may proceed “one- test provides minimal constraints. pose of the legislation is its effect: legis- step-at-a-time” to ameliorate the condi- The complexity of the test is com- lation can create classifications not only tion of at least some persons affected by pounded by the obvious overlap be- directly, but also indirectly through its ef- the problem. Legislation that is “over-in- tween the s. 15(1) analysis, and the tra- fect. For example, a requirement that clusive” is often more problematic.12 ditional s. 1 analysis. A trial judge is now police officers be at least 6 feet tall and When one compares these basic fac- required to consider the purpose of the weigh 200 pounds creates classifica- tors with the three central issues that the legislation both under s. 15(1) and un- tions based upon height and weight that court identified in the Law decision, it is der s. 1. As well, the test articulated by in turn have adverse effects on women. evident that there is a high degree of the court for the determination of “dis- The effect of the legislation should be similarity. The problem is not so much crimination” under s. 15(1) contains considered as part of the analysis of the with the court’s identification of the cen- many of the same elements found in the classification in question. tral issues, but with the layering on top proportionality part of the s. 1 analysis. 2. The classification in ques- of these issues of “contextual” analysis, Finally, the heavy reliance on “context” tion: As noted above, legislation can The SCC’s new equality test, page 18

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 17 The SCC’s new equality test continued from page 17 and in the failure to allocate to s. 1 an pose of the law, the classification in However, the unification of the court has appropriate role. We suggest below an question, and the reasonableness of the been accomplished at the expense of alternative approach that addresses classification. clarity and simplicity. By simplifying the these problems. Second, the focus of the s. 15(1) test in the manner suggested, and by ac- analysis should be limited to two issues: cording s. 1 an appropriate role, we be- SIMPLIFYING THE EQUALITY TEST analogous grounds and classification by lieve that trial courts will have an easier Equality analysis can be greatly simpli- adverse effect. Where discrimination is time conducting an equality analysis. fied by considering the above factors, alleged on the basis of an analogous and by returning s. 1 to a meaningful ground, the court should, as part of the 1 The authors wish to thank Profes- role in the analysis. An essential ele- s. 15(1) analysis, determine whether sor Jamie Cameron for her helpful ment of the simplification process is to the classification in question is in fact comments. allocate the analysis of the three factors analogous to the enumerated grounds. 2 [1999] 1 S.C.R. 497. The court ap- identified to either s. 15 or s. 1, but not to In this regard, the court’s existing analy- plied the Law test in two subse- both. Two fundamental changes to the sis of this issue is appropriate. The sec- quent decisions, Corbiere v. Law test are necessary to accomplish ond area of analysis reserved for Canada, [1999] 2 S.C.R. 203 and this result. s. 15(1) is the question of whether legis- M. v. H., [1999] 2 S.C.R. 3. First, where the classification is lation has created an enumerated or 3 [1995] 2 S.C.R. 418. made on the basis of an enumerated analogous classification not directly, but ground, discrimination should be pre- by adverse effect. This inquiry should 4 [1995] 2 S.C.R. 513. sumed. The text of s. 15(1) must be given be primarily factual in nature so as to 5 Law, above note 2, at 548. some meaning, and the classifications avoid trenching on the ground that has 6 Corbiere, above note 2, at 251-52. been left to s. 1. Once a classification has that are specifically enumerated should 7 Above note 4. be presumed to be “suspect.” In these been deemed to be analogous, or an ad- 8 [1998] 1 S.C.R. 493. cases, once a presumption of discrimi- verse effect on an enumerated or analo- nation is made, the court should pro- gous classification found, the court 9 Thomson Newspapers Co. v. ceed directly to the s. 1 analysis. There should move directly to the s. 1 analysis Canada (Attorney General), [1998] is nothing to be gained by conducting in the same manner suggested above. 1 S.C.R. 877, per Bastarache J. what is, in effect, a s. 1 analysis only to 10 See, generally, Tussman and repeat that analysis once it has been de- CONCLUSION tenBroek, “The Equal Protection of termined that a law is discriminatory. In the Law decision, the Supreme Court the Laws” (1949), 37 Calif. L.R. 341. The real battle should be waged within of Canada attempted to reconcile the dif- 11 Tussman and tenBroek, ibid., at 346 s. 1. The s. 1 test should focus on the ferent approaches to an equality analysis and 366. three factors identified above: the pur- that had previously divided the court. 12 Ibid., at 351.

The Charter dialogue continued from page 2 violate the guarantee of freedom of ex- pression in the Charter, but the prov- In considering the debate about the ince protected the new law from chal- lenge by inserting a s. 33 notwithstand- legitimacy of judicial review, it is helpful to ing clause into the law. The Quebec leg- islature recognized that it was offending think of judicial review as part of a “dialogue” the freedom of expression of its Anglo- between the judges and the legislatures. phone citizens, but concluded that the enhancement of the French language in the province was important enough to override the Charter value. tion (Vriend, 1998), there was much de- court. But it was clear that this outcome When the Supreme Court of Canada bate in the province about reenacting was not forced on the government, but held that Alberta’s human rights legisla- the law in its old form under the protec- was the government’s own choice tion violated the guarantee of equality tion of a s. 33 notwithstanding clause. In based on, among other things, what the by not providing protection for discrimi- the end, the government of Alberta de- court had said about the equality guar- nation on the ground of sexual orienta- cided to live with the decision of the antee in the Charter.

18 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 Both these cases are examples of the dialogue that is permitted by the over- To be sure, the Supreme Court of Canada is ride clause of s. 33 of the Charter. a non-elected, unaccountable group of SECTION 1 OF THE CHARTER The second element of the Charter of middle-aged lawyers. To be sure, from Rights and Freedoms that facilitates dia- time to time the court strikes down statutes logue is s. 1. Section 1 provides that the guaranteed rights are subject to “such enacted by the elected, accountable, reasonable limits prescribed by law as can be demonstrably justified in a free representative legislative bodies. But the and democratic society.” This means that the Parliament or a legislature is decisions of the court almost always leave free to enact a law that infringes on one of the guaranteed rights, provided the room for a legislative response, and they law is a “reasonable limit” on the right. The Supreme Court of Canada has usually get a legislative response. established some rules to determine whether a law is a reasonable limit on a Charter right. The rules can be boiled lative objective that was sufficiently im- the right not to be “arbitrarily” impris- down to two: (1) the law must pursue portant to justify limiting freedom of ex- oned. Section 12 guarantees against an objective that is sufficiently impor- pression, but the court held that a total “cruel and unusual” punishment. When tant to justify limiting a Charter right, ban on the use of other languages in these rights are violated, the offending and (2) the law must limit the Charter commercial signs was too drastic a law can always be corrected by substi- right no more than is necessary to ac- means of accomplishing the objective. tuting a law that is not unreasonable, ar- complish the objective. In practice, the The court suggested that the province bitrary, or cruel and unusual. court usually holds that the first require- could make the use of French manda- For example, the enforcement provi- ment is satisfied—that is, the objective of tory, without banning the use of other sions of the Competition Act have been the law is sufficiently important to justify languages, and could even require that struck down on the basis that they au- limiting a Charter right. In most cases, the French version be predominant. thorized unreasonable searches and the area of controversy is whether the Such a law, the court implied, would be seizures contrary to s. 8 of the Charter second requirement has been satis- justified under s. 1. Initially, as we have (Hunter, 1984). So too have the compa- fied—that is, whether the law limits the explained, the province was not in- rable provisions of the Income Tax Act right by a means that is the least restric- clined to take this advice and simply (Kruger, 1984). But the Supreme Court tive of the right. reenacted the total ban under the pro- of Canada also laid down guidelines as When a law that limits a Charter right tection of the s. 33 notwithstanding to how s. 8 could be complied with. is struck down, it normally means only clause. However, five years later when What was required was the safeguard of that the law impairs the right more than language passions had died down a bit, a warrant issued by a judge before gov- is necessary to accomplish the legisla- the province did reenact the law that the ernment officials could search for evi- tive objective. If that is the case, then a Supreme Court had suggested, requir- dence. Parliament immediately fol- law that accomplishes the same objec- ing the use of French and requiring that lowed this ruling, and amended the tive but by a means that is more respect- it be predominant, but permitting the use Competition Act and the Income Tax ful of the Charter right will be open to of other languages on commercial signs. Act so that they now authorize searches the legislature. Moreover, the reviewing Many other examples could be given. and seizures only on the basis of a war- court that struck down the law will have The point is that s. 1 permits a dialogue rant issued by a judge. In other words, explained why the law did not satisfy to take place between the courts and the legislative objective is still secured, the s. 1 justification tests, and that expla- the legislatures. but in a way that is more respectful of nation will suggest to the legislative the privacy of the individual. body how a new law can be drafted that QUALIFIED CHARTER RIGHTS Once again, many other examples will satisfy the s. 1 justification. Several of the rights guaranteed by the could be given, but the point is that the In the Quebec language case (Ford), Charter are expressed in qualified qualified rights encourage a dialogue for example, the Supreme Court of terms. For example, s. 8 guarantees the between the courts and the legislatures. Canada acknowledged that the protec- right to be secure from “unreasonable” tion of the French language was a legis- search or seizure. Section 9 guarantees The Charter dialogue, page 26

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 19 A mirage or an oasis? Giving substance to substantive equality

he Supreme Court of Canada re- BY MARTHA A. McCARTHY sense of caution about remedy, a defer- T leased three equality rights deci- and JOANNA L. RADBORD1 ence that was not so apparent in pre-Law sions in the Spring of 1999: Law,2 equality cases like Vriend and Eldridge.14 Corbiere,3 and M. v. H.4 In all three Martha McCarthy and Joanne Radbord The issue of judicial deference is not cases, the court applied a substantive, are attorneys with McMillan Binch new to equality law. The governor of and counsel to M. in M. v. H. rather than formal, equality rights analy- Alabama decried the activism of the sis. Section 15 now clearly requires a fo- Warren court when he refused to com- cus on adopting the perspective of the ply with the desegregation mandated by rights claimant, a review of the larger With continuing Brown v. Board of Education.15 Defer- historical and social context, and an ence is not new to the Supreme Court of emphasis on considering the impact or criticism of the court Canada either—if anything, it is a persist- effects of the differential treatment. This ent theme. In one of the earliest Charter approach should assist the court in re- as overly activist, cases, Justice Lamer felt it necessary to sisting the tendency to drift into a “simi- comment on the legitimacy of constitu- larly situated” formal equality analysis.5 it may be politically tional adjudication under the Charter, In Andrews, the Supreme Court ex- stating: “It ought not to be forgotten that pressly rejected a formal equality ap- difficult for it the historic decision to entrench the proach.6 However, over the next dec- to grant remedies Charter in our Constitution was taken ade of s. 15 jurisprudence, the court of- not by the courts but by the elected rep- ten slipped back into a reliance on the that accord with resentatives of the people of Canada.”16 similarly situated test. The promise of a For the next two decades, many justices substantive equality approach was not the substantive spoke out in support of the court’s man- fully realized. date as a guardian of human rights ap- The problem reached a breaking equality guarantee. pointed by the legislature. When Chief point in the 1995 trilogy of Egan,7 Justice McLachlin was sworn in this Miron,8 and Thibaudeau,9 where the year, the notion of an “activist court” court was divided as to the proper test several months earlier, before a change continued to be a central topic in media for discrimination. The split was be- in the composition of the court. When a coverage and academic discussion. tween those Justices who wished to in- unanimous decision in Law was re- While everyone knows that a right is ject consideration of “relevance” into leased, the court pronounced that it had worthless without a remedy, it appears s. 1510 and those who wished to leave resolved its division over s. 15 and that that a serious judicial appreciation of the issue of justification to s. 1.11 The de- Law would now “provide a set of guide- this reality will be an ongoing challenge cisions of the minority supporting “rel- lines for courts that are called upon to for equality jurisprudence in the coming evance” showed many of the markers of analyze a discrimination claim under years. A substantive equality analysis a formal equality analysis. The reason- the Charter.”13 The guidelines suggest a will allow the court to find discrimina- ing was bound up with us–them com- commitment to a substantive equality tion. The court’s courage cannot falter parisons, without consideration of the approach—at least in theory. at the precise moment when it is called perspective of the claimant. With continuing criticism of the court upon to do something about it. We must Following this fracturing, the court as overly activist, it may be politically give substance to the promise of sub- released a series of decisions in which difficult for it to grant remedies that ac- stantive equality. there was unanimity as to the result. cord with the substantive equality guar- However, there was no clear resolution antee. The approach to s. 15 may be LAW v. CANADA of the interpretation of s. 15.12 The court beautifully articulated in the abstract, as (MINISTER OF EMPLOYMENT then called for a rehearing of Law v. was the case with Law, but it will not be AND IMMIGRATION) Canada (Minister of Employment and helpful if there is hesitation to give effect Law provides a comprehensive review Immigration), a case about age dis- to that vision of equality in the difficult of s. 15 jurisprudence following An- crimination that had first been argued cases. In M. v. H. and Corbiere, there is a drews, and sets out the best articulation

20 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 of the substantive equality analysis from assessment. A discrimination claim had no history of vulnerability; their ex- the court to date. Of course, the test was may involve more than one ground si- clusion was not a threat to their human defined in the abstract, in response to multaneously. dignity.21 The court had no need to actu- an “easy case.” Nancy Law’s appeal was Pre-existing disadvantage is “prob- ally “pivot the centre” and appreciate unanimously dismissed by the court. ably the most compelling factor favour- the experience of a vulnerable group.22 The court held that she had not estab- ing a conclusion that differential treat- lished discrimination in being denied ment imposed by legislation is truly dis- CORBIERE v. CANADA CPP survivor’s benefits available only to criminatory.” Historic disadvantage is (MINISTER OF INDIAN those who are 45 years of age or older, not, however, a necessary pre-condi- AND NORTHERN AFFAIRS) have children, or have a disability.17 tion to proving discrimination. In deter- On May 20, 1999, the Supreme Court re- There was no discrimination because mining whether the claimant’s dignity leased its decisions in Corbiere and the differential treatment in the case did has been violated, another factor to be M. v. H. In both cases, the court found a not “reflect or promote the notion that assessed is the relationship between violation of s. 15 that could not be de- [those excluded from the benefit the ground of discrimination and the monstrably justified in a free and demo- scheme] are less capable or less de- nature of the differential treatment. In cratic society.23 serving of concern, respect and consid- some cases, differential treatment may The issue in Corbiere was whether eration.... Given the contemporary reflect the claimant’s actual needs, ca- the exclusion of off-reserve members of and historical context of the differential pacities, or circumstances, and so not an Indian band from the right to vote in treatment and those affected by it, the be discriminatory. Still, differences must band elections was inconsistent with legislation [did] not stereotype, exclude be recognized in a manner that respects s. 15(1) of the Canadian Charter of or devalue adults under 45.”18 a person’s value as a human being and Rights and Freedoms.24 The court was After years of division among the member of Canadian society. unanimous that disenfranchisement was Justices, the court recognized that it Justice Iacobucci held that a three- discriminatory, but the court split 5:4 was necessary to “revisit the funda- step approach is appropriate for the as- with respect to the means to identify an mental purpose of s. 15 and... seek sessment of equality claims. The claim- analogous ground of discrimination. out a means by which to give full effect ant must establish differential treatment, Chief Justice McLachlin and Justice to this fundamental purpose.”19 Writing the presence of enumerated or analo- Bastarache authored joint reasons for for the court, Justice Iacobucci re- gous grounds, and discrimination that the majority,25 with Justice L’Heureux- viewed Andrews and subsequent deci- brings into play the purpose of s. 15(1). Dubé writing minority concurring rea- sions, concluding that the aim of s. 15 The Law decision retains many of sons.26 All agreed that the impugned is to “prevent the violation of essential the same problems that have threat- law made a distinction that denied the human dignity and freedom through ened equality analysis since Andrews. equal benefit of the law.27 Aboriginals the imposition of disadvantage, stere- While the minority’s “relevance” step living off-reserve were completely de- otyping, or political and social preju- was not expressly accepted as a guide- nied the right to vote in band elections dice, and to promote a society in line in assessing equality claims, the granted to those living on-reserve. which all persons enjoy equal recogni- court also failed to explicitly condemn It was also agreed that off-reserve tion at law as human beings or as mem- it. Indeed, the court continued to advo- band member status constitutes a bers of Canadian society, equally capa- cate a three-step comparative approach ground of discrimination analogous to ble of and equally deserving of con- that may invite a formal equality analy- the enumerated grounds. However, the cern, respect and consideration.”20 sis. Justice Iacobucci states that the majority rejected the assertion that the The court affirmed that equality is a court must consider the purpose of leg- same ground may or may not be analo- comparative concept and stated that it islation under s. 15 and “biological, his- gous depending on the circumstances. is necessary to consider the purpose torical, and sociological similarities or In their view, analogous grounds are sim- and effect of the legislation and “biologi- dissimilarities” of groups claiming ply markers of suspect classifications. cal, historical, and sociological similari- equality to current rights holders. This The third step of the s. 15 test will deter- ties or dissimilarities” to locate the ap- might allow a relapse into the reasoning mine whether a distinction drawn on the propriate comparator. Importantly, how- of the minority in Egan and Miron. basis of an analogous ground is discrimi- ever, “the determination of the appro- The court’s consistent focus on the natory. The determination of an analo- priate comparator, and the evaluation of perspective of the rights claimant may gous ground and the determination of the contextual factors which determine help to prevent a regression to formal discrimination must be kept distinct. whether the legislation has the effect of equality reasoning. Still, the Law deci- Chief Justice McLachlin and Justice demeaning a claimant’s dignity must be sion was written purely in the abstract— Bastarache also wished to comment on conducted from the perspective of the those denied the benefit were not vic- the criteria that identify an analogous claimant”—it is a subjective–objective tims of stereotyping or prejudice; they A mirage or an oasis? page 22

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 21 A mirage or an oasis? continued from page 21 ground. They suggest that an analogous tion of the claimants and the general off- in M. v. H. confirmed that the court had ground may be identified on the basis reserve population. However, the mi- fundamentally changed its perspective that these “often serve as the basis for nority’s reasons would not necessarily since Egan. The court adopted a truly stereotypical decisions made not on the apply to off-reserve members who had substantive approach to equality, recog- basis of merit but on the basis of a per- a different composition or history from nizing the history of discrimination and sonal characteristic that is immutable or that of the general population of off- invisibility faced by lesbian and gay rela- changeable only at unacceptable cost to reserve band members in Canada. tionships. Given the larger social and personal identity.” These are personal The discriminatory treatment was not political context of homophobia, the characteristics which “the government justified because off-reserve band mem- non-recognition of same-sex spouses has no legitimate interest in expecting us bers were completely denied the right to was rightly regarded as offensive to the to change to receive equal treatment un- vote. While it was not necessary for dignity of gays, lesbians, and bisexuals. der the law.” Other considerations, such non-residents to have identical voting As Justice Cory explained, “the exclu- as historical disadvantage and vulner- rights to residents, it was necessary to sion of same-sex partners from the ben- ability, are said to flow from the immuta- develop an electoral process that con- efits of the spousal support scheme im- bility of the personal characteristic. sidered the rights of both off-reserve plies that they are judged to be incapable In contrast, Justice L’Heureux-Dubé and on-reserve band members. of forming intimate relationships of eco- set out a more extensive list of relevant, When it came to remedy, the minor- nomic interdependence, without regard but not necessary, contextual factors that ity and majority decisions reached the to their actual circumstances.” The may be considered in making the deter- same result, showing sensitivity to the court assessed the equality claim from mination of whether a characteristic legislative role and social context. The the perspective of the rights holder, con- may be considered an analogous ground court granted a declaration of invalidity, sidered historical disadvantage and vul- of discrimination. She states that “an and struck out the words in the statute nerability, and weighed the nature of the analogous ground may be shown by the that effected the exclusion of off-reserve interest affected. The court thereby con- fundamental nature of the characteris- members. A constititutional exemption cluded that the exclusion of same-sex tic: whether from the perspective of a was not granted, and the remedy was spouses from the spousal support pro- reasonable person in the position of the suspended for 18 months to allow the tections of the FLA was discriminatory. claimant, it is important to their identity, government time to respond. The government failed to justify the personhood, or belonging.” violation of equality rights as a reason- The third stage of the s. 15 analysis is M. v. H. able limit in a free and democratic soci- whether the differential treatment re- In M. v. H., an 8:1 majority of the court, ety under s. 1 of the Charter. The gov- sults in a discriminatory impact. “In applying the s. 15 test articulated in ernment argued that the exclusion of plain words, does the distinction under- Law, concluded that Ontario’s Family same-sex couples was constitutional be- mine the presumption upon which the Law Act28(FLA) discriminated on the cause the legislation was really aimed at guarantee of equality is based—that basis of sexual orientation by exclud- protecting heterosexual couples. This each individual is deemed to be of ing same-sex couples from the defini- was legitimate because only hetero- equal worth regardless of the group to tion of “spouse” for the purposes of sexuals get married, only they have which he or she belongs?” spousal support.29 heterosexual sex that “naturally” pro- The majority concluded that disen- The court held that the infringement duces children, or only they have eco- franchisement was discriminatory. The of gays’ and lesbians’ equality rights was nomically dependent relationships. denial of voting rights perpetuated his- not justified under s. 1. The appropriate Alternatively, Ontario suggested that toric disadvantage, and treated off- remedy was to declare s. 29 of the FLA of the provision was primarily aimed at pro- reserve band members as less worthy no force and effect, and to suspend the tecting dependent women, because het- and entitled. It denied the right to vote application of the declaration for a pe- erosexual women are disadvantaged by on the arbitrary basis of a personal riod of six months. The court suggested relationships marked by gender inequal- characteristic, it attacked cultural iden- that the legislature ought to address the ity, unlike lesbians and gay men who en- tity, and it presumed a lack of interest rights of same-sex spouses in a more joy egalitarian relationships. In support in meaningful participation in the comprehensive fashion rather than bur- of the “anti-assimilationist” arguments, band. “This engages the dignity aspect den private litigants and the public purse the government and “H” heavily relied of the s. 15 analysis and results in the with piecemeal court reform. on progressive law reform work and fem- denial of substantive equality.” M. v. H. was a huge achievement for inist writings.30 The government’s sub- The minority held that the finding of gays and lesbians and for all those who mission was that same-sex couples are discrimination was based on the situa- believe in equality and justice. The result simply different, forming more equal and

22 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 fair relationships. Therefore, the equal benefit of the law is unnecessary. In fact, Having found that the definition of spousal recognition would promote in- equality by encouraging lesbians and “spouse” is contrary to the constitution, gays to adopt a heterosexual model.31 The Supreme Court rejected the gov- the court should have designed a remedy ernment’s articulation of the objec- to protect the substantive equality rights of tives.32 Instead, the court took a “broad and purposive” approach to determin- same-sex couples and other disadvantaged ing the laudatory purpose of the legisla- tion. The court had regard to legislative groups. Instead, the relief granted by debates, as well as the past jurispru- dence of the court, which indicated that the court had the very real potential the goal of the legislation had never been entirely limited to women or chil- of permitting greater inequality. dren. Most important, the government’s articulation of the objectives was not supported by the legislation, which was In this case,... [t]he appropriate trast, it failed to ensure a Charter-re- a gender-neutral scheme including mu- remedy is to declare s. 29 of no specting remedial result in M. v. H. tual support rights and obligations for force and effect and to suspend the Although there was remedial preci- unmarried and childless spouses, as application of the declaration for a sion, the court held that it could not long as they are of the opposite sex.33 period of six months. “read in” because that would not ensure The objective of the legislation could the validity of the legislation as a whole. not be framed in terms that reinforce As a result of the remedial order, the There were two other parts of the FLA the discrimination, such as “to provide extended definition of “spouse” under that would have to be considered to en- support for heterosexual families.” The s. 29 of the FLA of Ontario was to be sure constitutional validity: part IV, con- resulting reasoning would be circular.34 struck down on November 20, 1999. cerning the right to make statutorily rec- Viewing heterosexuality and hetero- The legislature had until that date to ognized agreements, and part V, deal- sexual sex as legitimate grounds for dis- amend s. 29 in accordance with equal- ing with the right to claim damages for tinction would have been antithetical to ity principles. Rather than fixing the the injury or death of a family member. s. 15’s purpose of promoting the equal- problem by striking out the offending This seems an odd justification for the ity of lesbians and gay men. words, as was done in Corbiere, the remedial choice, especially since the Even if the objective of the legislation court struck down the whole extended court had made tough remedial orders was to protect and assist heterosexual definition of “spouse” and suspended in similar circumstances in Vriend. Per- families because of their reproductive the declaration. haps the remedial order was an under- potential, the court held that there would The remedy granted could have cre- standable expression of judicial reluc- be no rational connection between this ated substantive inequality between tance to dictate social policy. Or was it a objective and the exclusion of lesbians, married couples on the one hand, and failure to be truly accountable, rooted in gays, and bisexuals. The exclusion of unmarried opposite and same-sex cou- the concern that the decision would be same-sex couples from the spousal sup- ples on the other. Striking down the un- unpopular? port regime of the FLA did nothing to as- derinclusive extension of rights might One strong possibility is that the re- sist heterosexuality or children. More- have left all unmarried couples equally medial order was a response to Ontario’s over, the legislation provided mutual sup- disadvantaged, with no unmarried approach to the litigation. In its s. 1 argu- port rights and obligations irrespective of spouses having spousal support rights ment, the government claimed that the whether the spouses had children. and obligations in Ontario. This result challenge to s. 29 of the FLA threatened Having found that the definition of cannot be easily reconciled with equal- the validity of 80 provincial statutes. “spouse” is contrary to the constitution, ity principles, particularly since the de- However, when it came to argument on the court should have designed a rem- cision in Miron suggests that differential remedy, Ontario asked—pleaded even— edy to protect the substantive equality treatment between married spouses that the court not suspend any declara- rights of same-sex couples and other and unmarried opposite-sex spouses is tion of invalidity. In fact, counsel went disadvantaged groups. Instead, the re- unconstitutional. In Corbiere, the court so far as to suggest that the court was not lief granted by the court had the very fashioned its remedy with an eye to the permitted to suspend the remedy be- real potential of permitting greater in- entire social context, including the pos- equality. The majority held that: sibility of legislative inaction. In con- A mirage or an oasis? page 24

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 23 A mirage or an oasis? continued from page 23 cause the government was not seeking it. The other 80 statutes were suddenly When it came to remedy, the minority less an issue. It was clear that Ontario did not want to engage in law reform in this and majority decisions reached politically troublesome area; it wanted the court to handle the problem instead. the same result, showing sensitivity to Viewed in this context, the decision the legislative role and social context. on remedy could be an almost subver- sive response to the position in which the court found itself. It was certainly clear during argument that the panel equality analysis. Whatever the reason of the term “spouse,” Ontario now was shocked, even horrified, by the sub- for the remedial order, the result was seeks to “protect” the label itself as the missions that the court should read in, extremely problematic. last bastion of discrimination. Segre- and that a suspension should only be On October 27, 1999, without any gated status sends a clear message of granted if the government asked for it. community consultation and after re- exclusion—gays and lesbians are a The remedy chosen, striking down all leasing the Bill to the public for the first threat to “our” concept of family from of s. 29 with only a brief suspension, time only 48 hours earlier, Ontario which society must be “protected.” may have been an effort to force On- passed An Act to Amend Certain Stat- We went with M. and sat in the legis- tario’s hand, to make the government utes Because of the Supreme Court of lature on October 27, 1999, to bear wit- take responsibility. Canada Decision in M. v. H. Second ness to the passage of the Act. Instead To be fair, the court appeared to have and third readings for the Bill were held of affirming the equality of gays and les- complete faith that the government in an evening session of the legislature, bians, the statute that credits her tireless would respect its decision. We argued without any substantive debate, and court battle as its rationale instead con- strenously that the court should read in without a recorded vote. tributes to the very real discrimination without any suspension of its remedy, The M. v. H. Act introduces separate M. was seeking to remedy. That evening, given Ontario’s clear position that it was nomenclature for same-sex couples. it was clear to us that the Act flaunted not interested in engaging in responsive Where married and unmarried hetero- both the letter and the spirit of M. v. H. legislative reform. When pressed by sexuals are “spouses” and “families,” Our client wondered aloud if any of the former Chief Justice Lamer about why gays and lesbians are deemed “same- politicans had even read the court’s we cared about remedy if the court sex partners” and “households.”35 The decision. Watching MPPs do crossword agreed that s. 29 was unconstitutional, legislation introduces, in 67 statutes, an puzzles and pass around family photos we responded that our client wanted to express distinction on the basis of sex- during the self-congratulatory “debate,” it know that this case, her case, resolved ual orientation. Rather than amend the was difficult to answer in the affirmative. the issue. She wanted to be sure that her discriminatory definition of “spouse” While the suspension may have been case meant an end to discrimination ruled to be unconstitutional in M. v. H., an effort by the court to force Ontario to and that nobody else would be required Ontario has responded with defiance, take responsibility for ensuring equality, it to fight this particular battle again. In re- saying in its press releases and in the also permitted the government to intro- sponse, Lamer C.J. said that there had debates that the purpose of the legisla- duce a new discriminatory regime. In the never been a case in which suspension tion was to “protect” traditional family end, the legislature has reconfigured in- had been granted and the court’s deci- values and to preserve the concept of equality while pretending compliance. sion had been ignored. Sometimes ex- spouse for heterosexuals only.36 With faith that this was not the con- tensions were sought, and granted, but Having argued consistently since clusion that the court had imagined, M. there was always compliance. the early ’80s that “spouse” is an inher- will shortly file a motion for rehearing The court may have been too trusting ently heterosexual definition, having before the Supreme Court of Canada. because of that past history. By throw- lost that argument in numerous lower We will argue that the amendment of ing the challenge back to the legislature court cases, and having heard once s. 29 of the FLA has not cured the con- after Ontario attempted to burden the and for all from the Supreme Court in stitutional violation, and we will re- court with the responsibility of law re- M. v. H. that it cannot be sustained, the quest a remedy for the continuing in- form, the court perhaps lost sight of the government has responded with a new fringement. Given the larger social, po- social context—the same social context tactic—segregation. Having lost the litical, and historical context of homo- of homophobia that it had fully grasped right to deny gays and lesbians equal phobia, M. asserts that Ontario’s sepa- when applying the s. 15 substantive financial benefit of the law by the use rate nomenclature promotes a feeling

24 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 of exclusion and second-class status 2 Law v. Canada (Minister of Employ- adopting that framework as one’s among members of the gay and les- ment and Immigration), [1999] 1 own, see Elsa Barkley Brown, “Afri- bian community. It has the effect of S.C.R. 497. can-American Women’s Quilting: A condoning and promoting the dis- 3 Corbiere v. Canada (Minister of In- Framework for Conceptualizing and criminatory view that gays and lesbi- dian and Northern Affairs), [1999] 2 Teaching African-American Wom- ans are a threat to the cherished values S.C.R. 203. en’s History” (1989), 14 Signs 921. of society, and that same-sex relation- 4 M. v. H., [1999] 2 S.C.R. 3. 23 Corbiere, above note 3; and M. v. ships are inherently different from and H., above note 4. 5 M.A. McCarthy and J.L. Radbord, inferior to those of heterosexuals. The 24 Corbiere, ibid., at para. 3. segregated scheme threatens the de- “Foundations for 15(1): Equality 25 The majority also included Justices velopment of law in compliance with Rights in Canada” (1999), 6 Mich. J. Lamer, Cory, and Major. equality principles. It promotes, if not Gender & L. 261. requires, separate interpretation and 6 Andrews v. Law Society of British 26 The minority also included Justices separate case law for “same-sex part- Columbia, [1989] 1 S.C.R. 143. Gonthier, Iacobucci, and Binnie. ners” as opposed to “spouses.” 7 Egan v. Canada, [1995] 2 S.C.R. 513. 27 Corbiere, above note 3, at paras. 4 and 57. The constitutional question brought 8 Miron v. Trudel, [1995] 2 S.C.R. 418. forward by M. continues to be answered 28 Family Law Act, R.S.O. 1990, c. F.3. in the same manner: the definition of 9 Thibaudeau v. Canada, [1995] 2. S.C.R. 627. 29 Spousal support (alimony) has “spouse” discriminates, without any ra- been available to unmarried 10 Justices LaForest, Gonthier, and tional justification for the rights infringe- opposite-sex couples in Ontario Major, and Chief Justice Lamer. ment. If the court’s promise of substan- since 1978 (see Family Law Reform tive equality, and its very remedial pro- 11 Justices Cory, Iacobucci, L’Heureux- Act, 1978, S.O. 1978, c. 2). Although cess, are to have integrity, the court Dubé, McLachlin, and Sopinka. the number of years required for co- should allow the rehearing and grant a 12 Benner v. Canada (Secretary of habitation varies, all Canadian prov- declaration that the definition of State), [1997] 1 S.C.R. 385; Eaton v. inces except Quebec have similar “spouse” under s. 29 of the FLA contin- Brant County Board of Education, legislation. Generally, unmarried ues to unjustifiably discriminate against [1997] 1 S.C.R. 241; Eldridge v. Brit- heterosexual spouses are granted gays and lesbians. ish Columbia (Attorney General), many of the same benefits and re- The rehearing application will show [1997] 3 S.C.R. 624. sponsibilities as married couples. whether the new commitment to sub- 13 Law, above note 2, at para. 5. See also, Miron, above note 8, es- stantive equality is a mirage or an oasis 14 Vriend v. Alberta, [1998] 1 S.C.R. tablishing that differential treatment for the disadvantaged. This contrast be- 493; Eldridge, above note 15. between unmarried opposite-sex co- tween the theoretical victory and the habitants and married spouses is 15 Brown et al. v. Board of Education practical reality is one that we have lived unconstitutional. in M. v. H. Throughout her decade-long of Topeka et al., 347 U.S. 483 (1954). 30 The Ontario government particularly battle for equality, M. was consistently 16 Re B.C. Motor Vehicles Act, [1985] 2 relied on the Ontario Law Reform successful on an entirely theoretical S.C.R. 486 at 497. Commission, Report on the Rights level, fighting only for a right to claim 17 Canada Pension Plan, R.S.C. 1985, and Responsibilities of Cohabitants support, and eventually settling her c. C-8, ss. 44(1)(d) and 58. under the Family Law Act (Ministry case with H., without ever receiving any 18 Law, above note 2, at para. 102. of the Attorney General: Toronto, relief from the financial stress of separa- 19 Egan, above note 7, at 541. 1993), at 46-47, and B. Cossman and tion. If her case ends with the court con- B. Ryder, Gay, Lesbian and Unmar- doning the M. v. H. Act, she will have 20 Law, above note 2, at para. 51. ried Heterosexual Couples and the achieved nothing more than having her 21 Ibid., at para. 100: There was no dis- Family Law Act (Research paper pseudonym on a piece of discrimina- crimination because Nancy Law prepared for the Ontario Law Re- tory legislation. Substantive equality will could not demonstrate that either form Commission, Osgoode Hall be a loose and meaningless theory—an the “purpose or effect of the im- Law School, June 1993), at 142 and enticing mirage that disappears when pugned legislative provisions 143, citing works by feminist schol- you finally think you’ve arrived. violate[d] her human dignity.” ars like Didi Herman, Shelley 22 For a helpful discussion of the multi- Gavigan, and Ruthann Robson. 1 The authors must thank Jung-Kay plicity and particularity of experi- Chiu, Student-at-Law, for his assist- ence, and the ability to centre in the 31 Factum of the attorney general of On- ance with the citations and revisions experience of another, without the tario before the Supreme Court of to this paper. need for comparison and without A mirage or an oasis? page 26

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 25 A mirage or an oasis? continued from page 25 Canada, see discussion ibid. A note deeply divided over the issue of (Supp.) (Scarborough: Thomson of caution for academic writers. Dia- spousal recognition. Canada, 1992), at 35-18. logues internal to the community as 32 Justice Gonthier dissented. Justice 35 An Act to Amend Certain Statutes to the desirability of pursuing spousal Bastarache adopted a different ap- because of the Supreme Court of recognition can and will be used by proach with respect to the identifi- Canada Decision in M. v. H., S.O. conservatives, particularly as their cation of the objectives. 1999. sectarian religion-based arguments lose force. Although such critical 33 R. v. Big M. Drug Mart, [1985] 1 36 Ontario Ministry of the Attorney commentary is intended to promote S.C.R. 295; Egan, above note 7, General, Press Release, “Ontario and further equality, if not sufficiently at 558-59. protects traditional definition of nuanced, it will most certainly be 34 Egan, above note 7, at 547-48 and spouse in legislation necessary be- used for anti-equality purposes. In M. 596; Miron, above note 8, at 488; Re cause of Supreme Court of Canada v. H., the Government also argued K. (1995), 23 O.R. (3d) 679 (Prov. decision in M. v. H.” (October 25, that the court should not grant a rem- Div), at 699; P.W. Hogg, Constitu- 1999); Legislative Assembly, Ontario edy because the community was tional Law of Canada, 3d ed. Hansard (October 27, 1999), at 1-4.

The Charter dialogue continued from page 19 CONCLUSION found to violate the Charter. In the individual rights. Judicial review is not The proof of the pudding is in the eat- other 46 cases, a new law was enacted “a veto over the politics of the nation,” ing, and our researches have showed to accomplish the same general objec- but rather the beginning of a dialogue that most of the decisions of the Su- tive as the law that was struck down. as to how best to reconcile the indi- preme Court of Canada in which laws It seems reasonable to conclude vidualistic values of the Charter with have been struck down for breach of a that the critique of the Charter based the accomplishment of social and eco- Charter right have in fact been fol- on democratic legitimacy cannot be nomic policies for the benefit of the lowed by the enactment of a new law. sustained. To be sure, the Supreme community as a whole. In a study published in 1997 (35 Court of Canada is a non-elected, un- Osgoode Hall Law Journal 75), we accountable group of middle-aged law- found that there had been 66 cases in yers. To be sure, from time to time the * This paper appeared in Policy Op- which a law had been struck down by court strikes down statutes enacted by tions, April 1999, 19, and is repro- the Supreme Court of Canada for the elected, accountable, representa- duced with the permission of the breach of the Charter. Only 13 of these tive legislative bodies. But the deci- Institute for Research on Public had received no legislative response at sions of the court almost always leave Policy, which is the publisher of all, but they included some of the most room for a legislative response, and Policy Options. A much longer ver- recent cases (to which there had been they usually get a legislative response. sion of the paper has been pub- little time to react) and some cases in In the end, if the democratic will is lished under the bylines of Peter W. which corrective action was under dis- there, the legislative objective will still Hogg and Allison Bushell (now cussion. In 7 cases, the legislature sim- be capable of accomplishment, albeit Thornton) in (1997), 35 Osgoode ply repealed the law that had been with some new safeguards to protect Hall Law Journal 75.

Judicial review continued from page 1 court) to use his or her power of judi- sions of a judge or a court—it can be 58 statutes (31 federal and 27 provin- cial review to overrule the policy tested against the historical record. By cial) in just 16 years. Surely, this quali- choices of governments. Judicial activ- this standard, there can be no disput- fies as a significant increase in judicial ism is the opposite of judicial self- ing that since the adoption of the Char- activism, and has been duly noted by restraint: the propensity of a judge, ter in 1982 our Supreme Court has em- many other than myself—including the when there are two or more equally barked on a decidedly more activist recently retired Chief Justice Lamer plausible interpretations, to choose the exercise of judicial review. Under the and Professor Monahan.1 one that upholds government policy. 1960 Bill of Rights, the court struck Using a more sophisticated definition Since judicial activism is an empirical down only one statute in 22 years. of judicial activism yields a similar ver- concept—it seeks to describe the deci- Since 1982, the court has struck down dict. Judicial activism can be defined

26 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 around three related but distinct axes: policy impact (discussed above), institu- These changes have made the court a tional design, and interpretive discre- tion. Institutional design denotes the de facto third branch of the legislative collection of judicial rules governing ac- cess to and jurisdiction of the court: process. The results are reflected in the mootness, standing, third-party inter- court’s docket. In 22 years the court heard ventions, state-action versus in-action, political questions, etc. It also encom- only 35 challenges based on the 1960 passes the related issue of remedies. In a series of landmark rulings, the Bill of Rights. In the first 16 years under Supreme Court has boldly swept aside old precedents and practices.2 Cumula- the Charter it heard 373. tively these decisions have dramatically increased the scope and frequency of the court’s scrutiny of government policy choices. While these changes coincide policy demands that is not required by phy, but did so on a completely novel with the Charter, none of them were in the Charter? feminist theory of censorship. For this any legal sense required by the Charter. Interpretive discretion is the third di- reason, Butler was hailed at the time as In effect, the court has “retooled” itself mension of judicial activism: the free- a great victory for feminists. Similarly, in from an adjudicatory institution into a dom of a judge to change the original its 1995 Egan decision, the court upheld policy review board. With respect to meaning or add new meaning to consti- the challenged legislation even as it remedies, the court has armed itself tutional rules. Notwithstanding the re- added sexual orientation to the s. 15 list with the quasi-legislative power of “read- cent vintage of the Charter and the clear of prohibited types of discrimination. ing in”—the direct amending of legisla- historical record on a number of spe- Despite the “loss” for the plaintiffs, Egan tive meaning from the bench.3 Indeed, cific sections, the court quickly de- was a tremendous victory for the gay these changes in the functional design moted judicial fidelity to “framers’ in- rights movement because it laid the of the court are likely to be more endur- tent” to optional status. Instead, the groundwork for the court’s subsequent ing—and thus more significant—than its court embraced an approach to inter- activism on behalf of gay rights in year-to-year policy impact. preting Charter rights that it alternately Vriend and M v. H.8 Indeed, these changes have made describes as “living tree... purposive In theory, the s. 1 “reasonable limi- the court a de facto third branch of the . . . contextual... large and liberal.” Suf- tations” clause might have placed legislative process. The results are re- fice it to say that this approach allows some limits on this discretion. As flected in the court’s docket. In 22 years judges to stretch the definitional operationalized by Oakes, however, the court heard only 35 challenges boundaries of rights as broadly as suits any s. 1 limitations on judges are self- based on the 1960 Bill of Rights. In the their purpose.5 imposed, which is to say, not very limit- first 16 years under the Charter it heard The result has been the production ing. There is “strict” Oakes, “minimal” 373. Approximately one-fifth of the hun- of astonishing new “constitutional Oakes, and “middle-tier” Oakes. While dred plus cases the Supreme Court rules.” Thanks to the court’s ingenuity, there is no shortage of advice to the hears annually are now Charter cases. s. 7 now requires substantive as well as judges as to which causes or groups There are now certain policy fields— procedural fairness.6 For some like Jus- are entitled to which level of scrutiny, bilingualism, aboriginal issues, feminist tice Wilson, this would include the con- judges are free to pick. It is not by acci- and gay issues, criminal law, immigra- stitutional right to an abortion.7 As a re- dent that s. 1 disagreements among tion—where a Charter challenge is all sult of Sparrow, s. 35 is no longer effec- the judges are the second highest but guaranteed if the affected Charter tively limited to protecting “existing” source of dissenting opinions in the constituency does not get all of what it aboriginal rights. Similarly, in Mahé, the court’s Charter decisions. “Reasona- wants from the responsible legislature. court rewrote s. 23 to include a right to bleness” per Oakes is little more than a (Consider EGALE’s characterization of “control and administration” by minor- subjective judgment masquerading as Ontario’s Bill 5—extending legal rights to ity language school boards. a “rule.” same-sex couples—as a “slap in the Sometimes this form of judicial activ- In sum, when we take account of di- face” because it did not redefine spouse ism occurs within a context of apparent mensions of judicial activism other to include same-sex couples.4) Indeed, judicial self-restraint. In Butler, for ex- than policy impact, the court still ap- I am sometimes tempted to ask if there ample, the court rejected the s. 2(b) pears even more activist. is anything on LEAF’s or EGALE’s list of challenge to censorship of pornogra- Judicial review, page 28

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 27 Judicial review continued from page 27 THE DEFENCES OF Vriend decision—then the court’s most acting Bill 5 in response to M v. H—an JUDICIAL ACTIVISM activist decision to date.12 example of a “positive legislative se- The claim advanced by myself and oth- quel”—the Ontario government was ers that the Supreme Court has been CRITIQUE OF THE still able “to accomplish [its] same excessively activist in its exercise of “CHARTER DIALOGUE” DEFENCE general objective”? Charter review can be challenged on I have made three principal criticisms Manfredi’s findings also contra- two related but distinct grounds. The of the “dialogue” argument in another dicted a second of Hogg’s claims—that first line of defence consists of “legal” forum, and only summarize them most sequels only involved minor arguments claiming that the court’s de- here.13 Similarly, I draw on Manfredi changes to the impugned legislation. In cisions are all “required” by the Char- and Kelly’s more sophisticated meth- his re-analysis of the same cases, ter.9 The second line of defence con- odological critique of the Hogg study.14 Manfredi found that a majority involved sists of arguments that are more “politi- Hogg uses a self-serving definition major changes, such as repealing the cal” in nature.10 That is, they tend to of “dialogue.” Hogg counts as dialogue whole section or replacing entire acts. not so much defend the court’s activ- any legislative response to the judicial The second problem with the dia- ism, as impugn the motives of the crit- nullification of a statute. If a govern- logue theory is its means/ends distinc- ics or claim that critics exaggerate the ment repeals the offending legislation tion. The means/ends distinction extent of judicial activism. The Hogg- or amends it according to specifica- sounds fine in theory but breaks down in Bushell (now Thornton) “Charter dia- tions laid out by the court, this counts practice. Politics is as much about means logue” theory falls into the latter, and I as “dialogue.” No wonder Professor as ends. Everyone wants equal employ- will restrict my comments to it. Hogg found a two-thirds incidence of ment opportunities for women and racial Hogg argues that the charge of un- dialogue! His choice of methodology minorities, but not everyone favours pref- due judicial activism is overstated.11 virtually ensured the result. erential treatment or quotas as the way to Courts rarely have the last word in Obeying orders is not exactly what achieve this goal. No respectable person Charter disputes. The s. 33 notwith- most of us consider a dialogue. Dia- is willing to defend child pornography, standing clause gives that power to any logue is a two-way street. If I go to a res- but many will argue that restrictions on it government with the political will to taurant, order a sandwich, and the must be balanced with our respect for use it. More typically, when the courts waiter brings me the sandwich I or- freedom of expression and privacy. have stuck down a law, they have ob- dered, I would not count this as a “dia- In addition, apparent disagreement jected not to its purpose but to the logue.” Nor do I think this is how Pre- about means sometimes turns out to be means used to achieve it. The “means- mier Harris saw it, when he explained disagreement about ends. Everything oriented” character of Charter deci- the introduction of Bill 5 as “simply depends on the purpose(s) a judge at- sions leaves the door open for the gov- obeying the Supreme Court of Canada. tributes to the statute. The broader the ernment to redraft and re-enact the im- . . . The courts have told us we must purpose(s), the easier it is to find that pugned statute in a manner that still deal with this... and we’ll comply.”15 the legislation passes the “least restric- achieves its original objectives. Yet, according to Hogg’s methodology, tive means” test. In fact, any half-clever Hogg then tests this theory against 66 this is “dialogue” pure and simple. judge can use procedural objections as court rulings (mostly Supreme Court) Manfredi and Kelly have made a a colourable device to strike down legis- striking down statutes, and discovers similar objection to Hogg’s methodol- lation that he or she opposes for more that in 46 of them, there was indeed a ogy. Dialogue, they correctly assert, substantive reasons. This occurred in “legislative sequel.” That is, in two- implies an equality of the discussants. some of the very cases used by Hogg— thirds of these cases, the government They re-analyzed Hogg’s cases distin- that is, those involving voluntary reli- was still able “to accomplish the same guishing between “positive” and “nega- gious instruction in Ontario schools and general objective” through new legisla- tive” legislative sequels, and found that the federal prisoner voting cases.17 tion. He concludes, the Charter has only one-third qualified as “dialogue” Perhaps the best example of this in- not created a “judicial veto over the in a meaningful sense, not the two- strumental use of procedural objections politics of the nation,” but rather insti- thirds reported by Hogg.16 I would ar- comes from the recently retired Chief tuted a dialogue between judges and gue that even this figure is misleadingly Justice of Canada. In the 1988 Morgen- legislatures. Within months, the Hogg high, since most of the legislative taler case, Justice Lamer joined Justice dialogue theory had soared off the amendments were simply what the Dickson in an opinion striking down the pages of the Osgoode Hall Law Review court said must be done to pass Char- abortion provisions of the Criminal and into the obiter dicta of the Su- ter (that is, the court’s) scrutiny. Would Code because it violated s. 7 of the preme Court—in, of all cases, the anyone seriously contend that in en- Charter. The procedures required to at-

28 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 tain a legal abortion were deemed too restrictive and ambiguous. However, To re-establish the old policy status quo, speaking on the tenth anniversary of the Morgentaler decision, Lamer told law Mr. Klein would be portrayed as “taking students at the University of Toronto in 1998 that he voted to strike down the away rights” from gays, and he had no abortion law for a very different reason: stomach for that scenario. So he did what because a majority of Canadians were against making it a criminal offence. he had done before—nothing. The staying Does this mean that his 1988 s. 7 objec- tions were simply after-the-fact ration- power of the PSQ—this one judicially alizations to justify striking down a law that he opposed for other reasons? created—was demonstrated once again. Thirdly, Hogg’s assertion that the availability of s. 33 counters criticisms of judicial usurpation is again more true in them as much as possible. Such issues before—nothing. The staying power of theory than in practice, which is to say cross-cut normal partisan cleavages and the PSQ—this one judicially created— that it is not a very accurate theory. Ac- thus fracture party solidarity. Nor are they was demonstrated once again. cording to Hogg, “If there is a democratic likely to win any new supporters among Hogg writes that judicial nullifica- will, there will be a legislative way.” If a the (uninterested) majority. tion of a statute “rarely raises an abso- government fails to use the tools at its dis- Describing the Alberta government’s lute barrier to the wishes of democratic posal, that’s the government’s fault, not decision to “live with” the Vriend ruling, institutions.” He is right in his observa- the court’s. This account fails to recog- Hogg writes: “But because ‘notwith- tion, but wrong in his conclusion. It nize the staying power of a new, judicially standing’ was an option, it is clear that does not have to be an absolute bar- created policy status quo (PSQ), espe- this outcome was not forced on the gov- rier. Depending on the circumstances, cially when the issue cuts across the nor- ernment, but was the government’s a small barrier may suffice to perma- mal lines of partisan cleavage and di- own choice.” Hogg is only half right in nently alter public policy—typically dis- vides a government caucus. this assertion. He ignores the fact that placing a “muddy middle” compro- Contrary to the rhetoric of majority the court’s decision decisively changed mise policy with one favoured by one rule and minority rights, on most con- the government’s options. The govern- of two competing sets of activists. temporary rights issues there is an un- ment’s preferred choice was not to act There is a fourth and final problem stable and unorganized majority or plu- at all—to simply leave the old PSQ in with the dialogue theory: it is simulta- rality opinion, bracketed by two oppos- place. The court destroyed this and— neously apolitical and very political. It ing activist minorities. While the issue is with the clever use of the “reading in” is apolitical in the sense that it ignores salient for the activists on both sides, it technique—created a new PSQ. the central political issue of “who typically is not a priority for the majority. The judicial ruling significantly wins.” It lumps together very different Charter challenges are typically brought raised the cost of saying “no” to the kinds of legislative sequels: “following by one of the two activist minorities. winning minority. Before the ruling, the orders” (Hunter v. Southam); substan- Abortion is the classic example. Klein government could (and did) say tial resistance (Daviault); and outright In terms of political process, the effect that it was simply treating homosexuals non-compliance through the use of of a Supreme Court Charter ruling declar- the same as heterosexuals. Neither s. 33 (Ford). Apparently, it does not ing a policy unconstitutional is to create a was singled out for different treatment. matter whether the legislative or judi- new PSQ that is more in line with one of After the ruling, however, invoking cial view prevails. All are counted the two groups of minority activists. The s. 33 could and would be construed as equally as “dialogue.” Fair enough. ruling shifts the burden of mobilizing a an attack on gays; taking away rights But do the legions of judges, rights new majority coalition (within voters, they already had. Other things being activists, and academics who now in- within a government caucus, and within equal, Klein would have preferred the stinctively invoke the “dialogue” mantra a legislature) from the winning minority status quo ante. But the government’s the moment they hear the word “judi- to the losing minority. pre- and post-ruling situations were not cial activism” show the same equanim- This turns out to be difficult. The issue equal. To re-establish the old policy ity as Professor Hogg when it comes to typically is not a priority for the govern- status quo, Mr. Klein would be por- equating “following orders” with the use ment, the opposition parties, or the pub- trayed as “taking away rights” from of s. 33? Or does the popularity of the lic. Indeed, the priority for most govern- gays, and he had no stomach for that “dialogue” theory stem from the fact ments on such “moral issues” is to avoid scenario. So he did what he had done Judicial review, page 30

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 29 Judicial review continued from page 29 that governments have been so passive value the “dialogue theory” more for its the “sore losers/sour grapes” charge. in the face of judicial activism that “fol- political utility than for its empirical ac- For examples, see the essays re- lowing orders” is the norm? If cases like curacy. It soothes the conscience of the ferred to in note 9. Ford were the norm, not the exception, judges and arms the court’s defenders 11 Peter Hogg and Allison Bushell (now would we find the same enthusiasm for with a ready-made defence for its next Thornton), “The Charter Dialogue “Charter dialogue”? foray into the political thicket. Between Courts and Legislatures: Or When Premier Klein mused publicly Perhaps the Charter Isn’t Such a Bad about invoking s. 33 in the week follow- Thing After All” (1997), 35 Osgoode ing Vriend, did the court’s defenders 1 For a detailed version of this argu- Hall Law Journal 75-124. A con- cheer “Dialogue, Ralph, Dialogue!” No. ment, see chapter 1 of F.L. Morton densed version of the Hogg-Bushell They described s. 33 as the “atom bomb and Rainer Knopff, The Charter (now Thornton) argument appears of rights” and likened its use to the prac- Revolution and the Court Party (To- in this issue of Canada Watch. tice of “banana dictatorships.” When ronto: Broadview Press, 2000). 12 See F.L. Morton, “Vriend v. Alberta: Ontario responded to M. v. H. by extend- 2 See, generally, Lorne Sossin, The Judicial Power at the Cross- ing equivalent legal rights to gay couples, Boundaries of Judicial Review: The roads?”(1999), 7 Canada Watch 77. did gay activists cheer this as “dialogue”? Law of Justiciability in Canada (To- No. To the contrary, Martha McCarthy ronto: Carswell, 1999). 13 F.L. Morton, “Dialogue or Mono- logue?” (April, 1999), Policy Options said that she intends to take the Ontario 3 See, generally, Kent Roach, Constitu- government back to court for stopping 23-26. (Also available on-line at: tional Remedies in Canada (Aurora, www.irpp.org.ca.) short of redefining “spouse” to include Ont.: Canada Law Book, 1994). same-sex partners. 14 Christopher P. Manfredi and James Experiences like these lead me to 4 James McCarten, “Ontario extends B. Kelly, “Six Degrees of Dialogue: A conclude that not only is the dialogue legal rights to same sex couples,” Na- Response to Hogg and Bushell,” theory inaccurate as an empirical tional Post, October 26, 1999, A5. (1999), 37 Osgoode Hall Law Jour- theory, its invocation is opportunistic— 5 See Morton and Knopff, note 1 nal 513-27. above, chapter 2. when it supports the policy outcome 15 McCarten, “Ontario extends legal that the court’s partisans like. 6 Reference Re B.C. Motor Vehicle Act, rights to same-sex couples,” above Indeed, as these two examples illus- [1985] 2 S.C.R. 486. note 4. trate, the very purpose of claiming that a 7 See Wilson J.’s opinion in Morgen- 16 Manfredi and Kelly redefined the particular policy is a “right protected by taler v. the Queen, [1988] 1 S.C.R. 3. concept of dialogue to apply only to the Charter” is to put that issue beyond 8 For details, see Morton and Knopff, those cases in which the legislature the reach of everyday politics—that is, to above note 1, chapter 1. responded to a nullification “posi- force people to stop talking about it. This tively”—by re-enacting the law with is the purpose of a “written” (as opposed 9 These include Weinrib’s “activist some amendments. There were 12 to our old tradition of an “unwritten”) constitution” theory; the “living tree” such cases. “Negative” responses— constitution: to stipulate that there are theory; the “we didn’t ask for it” de- which did not qualify as “dialogue”— certain activities that are so fundamental fence; the “necessarily counter- included section repealed (n=5); to our conception of justice that they are majoritarian” defence; the “rule of section amended prior to SCC deci- placed beyond the reach of ordinary po- law”/“rights are trump” defence; and sion (n=5); act repealed and re- litical majorities—that is, they require the “the political disadvantage” theory of placed (n=6); judicial amendment of supermajorities stipulated by the amend- the Charter. For examples of these, legislation (n=1); and no legislative ing formulas. The moral premium that at- see the essays by Bertha Wilson, sequel (n=7). Manfredi and Kelly taches to a successful “rights claim” is Beverley McLachlin, and Lorraine also excluded the 23 trial and appel- intended to terminate dialogue on that Weinrib in Policy Options (April and late court decisions included in the issue rather than to stimulate it. It is for May 1999). (These are available on- Hogg study, because there was no this very reason that I (and others) have line at the Web site of the Institute for way of knowing if they were repre- criticized the ascendancy of “rights talk” Research on Public Policy: www. sentative of non-SCC nullifications. as a threat to the democratic tradition of irpp.org.ca.) public debate and consensus building.18 10 In addition to the “Charter dialogue” 17 See Morton, “Dialogue or Mono- In the final analysis, I suggest that the theory, these include the “nothing logue?” above note 13 for details. legal community’s embrace of the dia- new” argument; the “decisions are 18 This argument is the focus of chapter logue theory is disingenuous. They ultimately accepted” argument; and 7 of Morton and Knopff, above note 1.

30 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 Defence under attack: A review of three important Supreme Court decisions in 1999

hree important Supreme Court of BY LESLIE PRINGLE the incidence of sexual violence in Ca- TCanada decisions in the 1999 year nadian society, the disadvantageous im- display a disturbing trend and signal a Leslie Pringle is an attorney pact of sexual abuse on women and with Skurka and Pringle change in the court’s approach to find- children, and the need to encourage re- ing a balance between the rights of the porting of sexual offences. The rights of accused and the interests of society in the accused to make full answer and criminal trials. The cases of Mills,1 At a time when defence were barely mentioned. The Stone,2 and Smith v. Jones3 introduced legislation also gave greater control to some significant changes in the crimi- the voice of victim the witness over records in the hands of nal law, which all came at the expense the Crown,5 enacted a list of factors that of the accused. In Mills, the Supreme rights advocates is would not establish that the records Court retreated substantially from its loud and shrill, and were likely relevant in making full an- earlier statement of the constitutional swer and defence,6 and placed empha- parameters of the accused’s right to political pandering sis on factors relating to privacy and make full answer and defence. In Stone, societal interests that were not in ac- the court put a significant dent in the to fears for public cordance with the majority ruling in presumption of innocence, and in O’Connor.7 In light of the obvious differ- Smith v. Jones, the accused was left in a safety is widespread, ences struck in the balance between vulnerable and uncertain position after accused persons and complainants by the court removed some of the protec- the court must be the majority in O’Connor and Bill C-46, tions afforded by the law of privilege. the question was, who was right—the The implications of these judgments resolute in protecting court or Parliament? are disturbing for those who believe that The surprising answer from the court the measure of a just society is its treat- the rights of the in Mills was that they were both right. ment of those who are accused of the unpopular accused. According to the court, Bill C-46 could worst crimes. At a time when the voice still strike a balance that was constitu- of victim rights advocates is loud and tional despite its marked differences shrill, and political pandering to fears from O’Connor. This finding required for public safety is widespread, the cused’s right to make full answer and that the court give Parliament some re- court must be resolute in protecting the defence when seeking access to third- markable leeway to disagree with the rights of the unpopular accused. Unfor- party records. In the 1995 case of R. v. Supreme Court of the land on a consti- tunately, these cases demonstrate a O’Connor,4 the majority of the court tutional issue. In an unprecedented dis- weak response to the public outcry de- struck a constitutional balance between play of deference, the court conceded manding protection against crime. A re- the accused’s need to gain access to that Parliament was entitled to differ in view of the cases indicates several fea- records in the hands of a third party in its opinion as to where privacy con- tures of the apparent shift in the court’s order to defend himself, and the need to cerns entered into the analysis, and approach to the rights of the accused. respect the privacy rights of the com- even that Parliament was entitled to give This article attempts a brief analysis of plainant in a sexual assault case. Parlia- the Crown an advantage over the ac- the shifting focus, and its implications. ment clearly shifted the O’Connor bal- cused in possessing records that the ac- ance in favour of the complainant when cused did not have. The court allowed OVERVIEW OF THE CASES it enacted Bill C-46 (ss. 278.1 to 278.91 of that some difference in approach was R. v. Mills the Criminal Code) in 1997. The pream- permissible. Essentially, the court held In Mills, the court revisited the topic of ble to the Bill devoted several para- that there was a range of permissible the constitutional parameters of the ac- graphs to Parliament’s concern about Defence under attack, page 32

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 31 Defence under attack continued from page 35 options available to deal with access by insanity. The effect is of course impor- was sufficiently clear, serious, and im- an accused to third-party records. The tant: the court must start from a proposi- minent to justify setting aside the solici- fact that Bill C-46 was at the lowest end tion that leads to a verdict of NCRMD, tor–client privilege. However, the court of the acceptable range did not render it and not from one that may lead to an split on the level of disclosure that was unconstitutional.8 Second best could acquittal. Finally, if the defence of non- required.13 The majority held that the still be constitutional. insane automatism is left with the jury, portion of the psychiatrist’s report that the jury must be told about the “serious indicated there was a serious risk to R. v. Stone policy factors which surround automa- public safety should be disclosed to the Stone was a case involving the com- tism, including concerns about feign- sentencing court and made public.14 In plex defence of automatism. The ac- ability and the repute of the administra- future cases, they noted that it might be cused claimed that he suffered a psy- tion of justice.” The jury will be in- appropriate to warn the potential victim chological blow that left him in a disso- structed that the accused will be found directly, or the police or a Crown pros- ciative state after his wife berated him guilty unless he proves that he was act- ecutor. The minority took more care to in a cruel and sadistic way about his ing involuntarily on the balance of prob- circumscribe the scope of the disclo- children, his former wife, and his abilities. sure and its proposed use. They held sexual performance. He then stabbed Although the court upheld an acquit- that, although the psychiatrist’s opinion his wife 47 times. At his trial for mur- tal based on non-insane, involuntary could be disclosed to the Crown and der, the accused relied on the defence conduct in a sleep-walking case in the sentencing judge, the details form- of “non-insane automatism,” and called 1992,11 it seems that the chances of a ing the basis of the opinion, including medical evidence that supported the similar success after Stone are exceed- the accused’s own statements, should fact that he was in a dissociative state. ingly slim. The defence of non-insane not be disclosed. Such a limitation was Accordingly, he sought an acquittal be- automatism appears to be dead.12 necessary in order to protect the ac- cause his actions were not voluntary. cused’s right against self-incrimination, In the alternative, he suggested that if Smith v. Jones and to ensure that the chilling effect of the court insisted that his condition In Smith, the court was faced with disclosure would not make lawyers reti- was a disease of the mind, the medical achieving a balance between the need cent to refer their mentally disturbed cli- evidence entitled him to a finding of for public protection, and the rights of ents for assessment or treatment. The not guilty by reason of mental disorder the individual accused. The facts were minority was also careful to indicate that (NCRMD). The judge refused to put unusual and gave the court justifiable disclosure of the opinion did not neces- non-insane automatism to the jury, but cause for alarm. The accused was sarily mean that it was admissible. Jus- did leave open the defence of insane charged with aggravated sexual assault tice Major noted that sanctioning a automatism. The accused was con- of a prostitute, and was referred to a psy- breach of privilege too hastily erodes victed of manslaughter. chiatrist by his lawyer, under the um- the workings of the system of law in ex- In Stone, the court9 reviewed its own brella of solicitor–client privilege. The change for an illusory gain in public jurisprudence on non-insane and in- accused provided the psychiatrist with safety. sane automatism, and changed the law detailed information about his plans to in three important ways. In the first in- kidnap, rape, and murder prostitutes in THE COURT’S INCREASED stance, the majority imposed a legal the future. The psychiatrist concluded EMPHASIS ON burden on the defence to establish au- that the accused was dangerous and SOCIETAL INTERESTS tomatism on the balance of probabili- would likely commit further offences, In the early years of the Constitution ties, in the absence of which the de- and advised the lawyer of his concerns. Act, 1982, this “living tree” was said to fence would not be left with the jury at The accused subsequently pled guilty to be capable of growth and expansion. all. Although recognizing that this shift the charge. When the psychiatrist was The Supreme Court described the Char- in the burden to the accused violated advised that the sentencing judge would ter as a means of providing “unremitting section 11(d) of the Charter, the major- not be informed of his concerns with protection [for] individual rights and ity found that such a limitation was justi- regard to the danger posed by the ac- liberties,” and held that it was to be fied under s. 1.10 In the second instance, cused, he brought an application for a given a “broad and purposive analy- the majority formulated a rule that declaration that he was entitled to dis- sis.”15 In one commentator’s descrip- judges must “start from the proposition” close the information he had received tion of the years that followed, the court that automatism stems from a disease of in the interests of public safety. enthusiastically embraced an expansive the mind. The direction is akin to a pre- The court was unanimous in finding approach to review, and moved boldly sumption that automatism is linked to that the risk to public safety in this case into the Charter era.16

32 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 In these three cases, the court has re- treated from previous statements of the When the psychiatrist was advised that scope of the rights of the accused. It has done so in the name of victims’ rights the sentencing judge would not be informed and protection of the public, giving these broad societal interests increased of his concerns with regard to the danger emphasis in achieving a balance posed by the accused, he brought an against individual rights. How did this come about? application for a declaration that he was R. v. Mills entitled to disclose the information he had In Mills, the most obvious way in which the court bowed to broad societal con- received in the interests of public safety. cerns was by deferring to Parliament in an area where the court had already spoken on the constitutional content of the rights in question. The preamble to all very well to say that there is no hierar- and seek treatment for sexual abuse. By Bill C-46 made it abundantly clear that chy of rights, and that one right should requiring the judge to consider societal Parliament was speaking for societal not trump another. Yet at some point, factors relevant to sexual abuse before concerns that had little to do with the the “definition” of one right will neces- sexual abuse has been proven, Parlia- individual rights of the accused. While sarily “limit” another. In Mills, the court ment undermines the presumption of the legislation was also directed to the “defined” and balanced the rights un- innocence in a subtle but insidious way. individual rights of the complainant, der s. 7, and found no violation of the It is as if the legitimacy of the complaint those rights were addressed in a way accused’s right to make full answer and is conceded. that clearly skewed the balance struck defence, or to a fair trial. Implicitly, the in O’Connor. The legislation could be court found that the accused did not R. v. STONE seen as a direct response to society’s discharge the onus upon him to show a The court in Stone also instructed trial dislike of the court’s ruling in O’Connor, violation. Even though this was a case judges to inform the jury of broad and has been aptly described as “in where it was acknowledged that Parlia- societal concerns in relation to non- your face” legislation.17 Yet, in reviewing ment had changed the O’Connor rules, insane automatism. Indeed, after Stone, the legislation, the court bent over back- the state did not have to justify the shift the trial judge must begin the charge to ward to attribute good intentions to Par- in the balance. By balancing the rights the jury by thoroughly reviewing the se- liament, and to presume that Parliament under s. 7 and finding no violation, the rious policy factors that surround au- intended to enact constitutional legisla- court let the state off the hook from hav- tomatism, including concerns about tion. This position is perilously close to ing to justify the limits that the legisla- feignability and the repute of the admin- a presumption of constitutional validity, tion imposed under s. 1. istration of justice. The precise format which the court had rejected in earlier Finally, in Mills, the court permitted of the caution that is envisioned by the Charter jurisprudence.18 The case is dis- Parliament to factor societal concerns court is not clear; however, it is likely couraging in its excessive deference to about sexual abuse into the actual that the court was referring to the com- Parliament—it may also signal that the decision-making process of the trial ments of Justice Dickson in Rabey days of expansive and bold review of judge. According to ss. 278.5(f) and when he stated that automatism as a de- 19 legislation are receding into the past. (g), before disclosing the records to the fence is easily feigned. A more subtle but equally disturbing accused, the judge must consider “soci- In Rabey, Dickson J.’s comments way in which the court shifted the bal- ety’s interest in encouraging the report- were made in the context of the judge’s ance in favour of societal interests in ing of sexual offences” and “society’s consideration of the categorization of Mills was in its analysis of the relation- interest in encouraging the obtaining of automatism as a matter of law. An in- ship between s. 7 and s. 1 of the Char- treatment by complainants of sexual of- struction of this kind to the trier of fact 20 ter. In balancing the rights of the ac- fences.” Such considerations are not is highly unusual. Again, the difficulty cused, the complainant, and the inter- novel; indeed, they were accepted as for the jury in these circumstances is ests of society at large, both s. 7 and s. 1 appropriate in O’Connor. However, the very real—in a trial where they must de- have an important role to play in the difficulty inherent in this exercise termine if the claim of automatism is “contextual analysis” of rights. should not be ignored—in a trial where genuine, they are reminded that such This is where the delicate language sexual abuse is itself disputed, the trial claims are easily feigned, and acquit- of balancing begins to break down. It is judge must consider the need to report Defence under attack, page 34

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 33 Defence under attack continued from page 33 tals based on bogus claims bring the protect public safety. Could the Crown ests of the client should not be encour- system into disrepute. In effect, at the rely on the statements of the accused to aged. This is of particular concern be- very time they must consider acquittal, increase his sentence or to commence cause Smith did not rule out the possi- the jury members are warned against a dangerous offender application? If the bility of a legal duty to warn. In empha- acquittal. There is simply no precedent accused took the stand, could the sizing that the court was not seeking to for this kind of bold warning that will Crown cross-examine the accused on establish a tort duty on doctors to dis- have such a chilling effect on the delib- his statements to the psychiatrist? If fur- close confidential information when a erations of the jury. ther offences were disclosed, could the public safety concern arises, Justice Crown rely on the statements of the ac- Cory did not dismiss this possibility. He Smith v. Jones cused to prosecute him in other pro- merely stated, “That issue is not before The incursion into solicitor–client privi- ceedings? Once concerns about privi- the court and must not be decided with- lege in Smith was a necessary one in lege and about self-incrimination are out a factual background and the ben- light of the clear, serious, and imminent put aside, these uses of the disclosed efit of argument.” Legal liability for a fail- danger posed by the accused. However, material are not farfetched. Without ure to warn is an appalling prospect for in resolving the tension between the in- knowing the answer to those questions, criminal lawyers, and an equally devas- terests of the accused and society in the accused is left in a vulnerable and tating one for their clients. that case, it can be argued that the ma- uncertain position. jority gave insufficient care to crafting a The case has a further negative impact THE COURT’S RESORT TO response that would adequately protect on the role of counsel in the solicitor– WEAK LEGAL ANALYSIS AND the rights of the accused. In the rush to client relationship. Although the fact ITS FUTURE IMPLICATIONS protect the public, the very real concern situation in Smith related to a doctor A shift in emphasis from the rights of the about the effect of the decision on the seeking to set aside privilege, the guide- accused—even a retreat from a previous rights of the accused was overlooked. lines set out by the court apply to law- position—might be justified if it was The majority in Smith did not seek to yers in a solicitor–client relationship as based on sound legal reasoning and a limit the disclosure of the psychiatrist’s well. Despite the fact that the ability to clear application of fundamental princi- report to the opinion of dangerousness. warn the public of danger is permissive ples. Unfortunately, the willingness of As a result, the confidential and in- and not mandatory, defence counsel the court to retreat from its previous po- tensely private discussions of the ac- will now be placed in a position of di- sitions in both Mills and Stone is accom- cused with his psychiatrist became pub- vided loyalty whenever they are defend- panied by a weak legal analysis in sup- lic, and became available for use ing a client who presents a clear, seri- port of some of the changes. These against him at his sentencing. The mi- ous and imminent danger to an identifi- weaknesses have been exposed in sev- nority was no doubt correct in its pre- able person or persons. As a result of eral important articles, and a detailed diction that faced with this prospect in Smith, a lawyer may choose to warn the legal analysis will not be repeated the future, defence counsel will be very authorities about a dangerous client. In here.21 However, a brief review of the reluctant to refer their clients for assess- even considering whether there might issues may help in understanding the ment or treatment. In addition, it will be be a moral imperative to warn the au- somewhat obvious conclusion that is extremely unlikely that accused per- thorities, counsel will be in a position of put forward here—that change based on sons will choose to air their innermost conflict with the interests of the client a foundation of weak legal reasoning di- thoughts honestly with psychiatrists dur- and will be faced with a difficult ethical minishes not only the rights of the indi- ing the course of a criminal proceeding, and professional dilemma that is bound vidual accused, but also the integrity of even if they are genuinely motivated to to weaken the solicitor–client relation- the judicial system as a whole. seek treatment. ship. Frank discussions will be inhib- In Mills, the court relied on equality The decision is also disturbingly si- ited; the foundation of trust will be un- concerns as a necessary component of lent on the use that can be made of this dermined. The rights of the accused to the “contextual analysis” of the rights in intimate and self-incriminating disclo- counsel, to make full answer and de- question. However, the court was vague sure. While the minority was clear that fence, and to a fair trial are thereby af- in describing the nature of the equality disclosure did not equate to admissibil- fected. It would have been preferable if right, referring variously to equality be- ity, the majority in Smith appeared to the court had affirmed that in the nor- tween men and women; equality be- sanction the use of the material at the mal course, it would not be expected tween victims of sexual assault and vic- accused’s sentence hearing. However, that lawyers would warn the authorities tims of other crimes; and equality be- the court did not discuss the manner in against their own client. A moral duty to tween women whose lives have been which the evidence could be used to warn that is contrary to the best inter- documented more extensively through

34 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 aboriginal status, disability, imprison- ment, or involvement with child welfare The legislation could be seen as a direct and those who have not. The analysis was infused with the touchstones of po- response to society’s dislike of the court’s litical correctness, making reference to rape myths and to the prohibition on ruling in O’Connor, and has been aptly “whacking the complainant.” However, described as “in your face” legislation. there was little guidance on the scope or effect of a s. 15 right. In his article, “Mills: Dialogue with Parliament and Equality by Assertion at What Cost?” for extreme caution in restricting the ac- fied. Professor Delisle went on to point Professor Stuart pointed to the lack of cused’s ability to defend himself ap- out that based on such a rationale, the authority for the creation of an enforce- pears to have been forgotten. onus with respect to the defences of able s. 15 claim for the complainant, and The case of Stone has also changed lack of intent, duress, provocation, and rightly criticized the analysis, calling it the law of automatism without due re- necessity could all be reversed as well. “equality by assertion.” He predicted gard for established legal principles The suggestion is not farfetched. In- that equality rhetoric would have impor- and procedure. The most important deed, in an upcoming case in the Su- tant implications for future cases. and far reaching of the changes is un- preme Court, the Crown has raised a The prediction was alarmingly accu- doubtedly the reversal of the onus of similar rationale for a proposed re- rate. In R. v. Shearing,22 the B.C. Court proof for this defence. Disturbingly, this versal of the onus of proof in relation to of Appeal seized upon the equality lan- issue was not directly raised by any of the defence of duress.25 Based on guage in Mills, and translated it into a the parties on the appeal. Instead, Jus- Stone, the Crown asserts that it is time privacy right of the complainant to sup- tice Bastarache concluded that, in re- to revisit the burden of proof for du- press cross-examination by the accused viewing the proper evidentiary founda- ress, in part because claims of duress in relation to her diary on a charge of tion for automatism, the court should re- are easily raised by those who seek to sexual assault. In this case, the com- assess the burden of proof for automa- evade criminal sanction, and in part plainant had kept a diary, and left it be- tism as well. This circumvented the ap- because full knowledge of the duress hind when she left a centre run by the propriate procedure of giving constitu- always rests with the accused. If the accused. The accused came into pos- tional notice of the issue to all inter- court accepts this argument, it would session of the diary, and sought to cross- ested parties, who may have inter- appear that a full-scale erosion of the examine the complainant on the fact vened based on the important implica- presumption of innocence may be un- that there were no entries relating to her tions for defences generally.23 It may der way. allegations of sexual abuse during the also have deprived the court of valu- relevant time period. The trial judge re- able legal submissions that directly ad- CONCLUSIONS fused the cross-examination after bal- dressed the constitutional significance In the cases of Mills, Stone, and Smith ancing the probative value of the pro- of the issue.24 Moreover, it appears to v. Jones, the individual rights of the ac- posed cross-examination against the have contributed to the lack of evi- cused fared badly in a balancing of privacy interest of the complainant. In dence before the court to discharge rights involving broad societal inter- upholding this approach, the B.C. Court the state burden to justify the reversal ests. The court appears to be placing of Appeal referred to the “new direction of the onus of proof. In a sloppy ap- increasing emphasis on the rights of in Mills,” and said that Mills has shifted proach to s. 1 of the Charter in this victims of sexual assaults and public the balance away from the primary em- case, the majority seemed undeterred safety at the expense of the accused. phasis on the rights of the accused. by a lack of evidence and relied on pre- Although there is no presumption that The result means that in British Co- vious case law in the context of mental the rights of the accused are para- lumbia, at least, the rules governing the disorder and drunkenness to discharge mount in a criminal trial, it is obvious limits of cross-examination and the ad- the burden on the court’s own initia- that the trial process will have the most missibility of defence evidence will be tive. In his case comment, “Stone: Judi- direct impact on the accused. At the governed by balancing probative value cial Activism Gone Awry to Presume end of the day, it is the accused who against prejudice to the complainant. Guilt,” Professor Delisle noted the will face the prospect of jail if he or she This is a radical restatement of the law weakness of the majority’s reasoning is found guilty. set out in Seaboyer, which focused on a that because automatism is easily As guardian of the individual rights balancing of probative value versus feigned and all knowledge of its occur- and liberties enshrined in the Charter, prejudice to the trial process not simply rence rests with the accused, putting the court must not be unduly swayed by to the complainant. The previous need the legal burden on the defence is justi- Defence under attack, page 60

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 35 Shifting ground: New approaches to Charter analysis in the criminal context

ver the last few years, the Supreme BY RENEE M. POMERANCE1 scheme enacted by Parliament was OCourt of Canada has released vari- closely aligned with the dissenting judg- ous decisions dealing with the scope Renee Pomerance is counsel for the ment of Madam Justice L’Heureux Crown Law Office—Criminal Department, and protection of Charter rights in the Ministry of the Attorney General. Dubé. For a time, the fate of the scheme criminal context. The topics considered was unclear. Lower courts were divided include the right to silence2; the princi- on whether the provisions could sur- ple against self-incrimination3; the right vive Charter scrutiny. This debate was to full answer and defence at trial4; and At first blush, some resolved when the issue came back be- the right to be secure against unreason- fore the Supreme Court of Canada in R. able search and seizure.5 These judg- of the developments v. Mills. In Mills, the court acknowl- ments answer specific legal questions, edged that the legislation deviated from but some have a broader significance. may appear the majority ruling in O’Connor.10 None- Certain decisions disclose subtle, yet inconsequential— theless, the court found that the discernible, shifts in the court’s more O’Connor regime was not the only route general approach to the analytical the axis has turned to a fair trial. The court observed that framework governing the assessment of there may be a range of permissible op- Charter claims. ever so slightly. tions that can satisfy constitutional At first blush, some of the develop- standards. Ultimately, it held that the ments may appear inconsequential—the Yet, a shift in the records production regime, enacted by axis has turned ever so slightly. Yet, a Parliament, struck a constitutional bal- shift in the foundation, however slight, foundation, however ance between the competing interests can effect dramatic change. The court at stake in this context. has revisited and, to some extent, rede- slight, can effect Mills derives its most obvious signifi- fined the relationship between s. 7 and cance from its resolution of the “records other provisions of the Charter. It has dramatic change. debate,” or, at least, certain aspects of further entrenched the role of third- it. Yet, other features of Mills extend be- party rights—including equality rights— yond this particular battleground. The in sexual offence prosecutions. This in the constitutional equation. It has rec- court’s comments concerning the has long been a contentious area of liti- ognized a discrete and freestanding scope of s. 7 of the Charter; its interrela- gation. In the earlier case of R. v. O’Con- power to exclude evidence under tionship with other Charter rights; and nor,9 the Supreme Court of Canada had s. 24(1) of the Charter. Each of these the role of third-party rights in the con- set out a number of principles that were trends has the potential to influence stitutional equation, all have ramifica- to govern defence access to sensitive and alter the course of future litigation. tions for a broad range of constitutional records, including therapeutic records. The following will explore these devel- disputes. Accordingly, while the follow- The court was divided on the approach opments primarily as they arise in two ing will discuss Mills, it will endeavour to to be taken, with a 5:4 majority repre- recent cases: R. v. Mills6 and R. v. White.7 say relatively little about the terms and sented by Lamer C.J. and Sopinka J. It operation of Bill C-46. R. v. MILLS: SECTION 7 AND was not long before Parliament waded THE BALANCING OF INTERESTS into the debate, conducting consulta- The relationship between In R. v. Mills,8 the Supreme Court of tions and ultimately enacting Bill C-46. ss. 7 and 1 of the Charter Canada upheld the constitutional valid- The statutory regime attracted contro- The majority of the court in Mills af- ity of ss. 278.1 to 278.9 of the Criminal versy from the outset. Critics attacked firmed that s. 7 of the Charter envisages Code. These provisions, enacted under the legislation on the basis that it re- a balancing of both individual and Bill C-46, govern defence applications to flected the dissenting, as opposed to the societal interests. It is well-settled that access private records of complainants majority, voice in O’Connor. Indeed, the the ultimate question under s. 7 is

36 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 whether the impugned deprivation of life, liberty, or security of the person is in It is particularly difficult to draw clear accordance with the principles of fun- damental justice. The notion that and meaningful distinctions between societal interests have a role to play in the s. 7 analysis is not, itself, a startling the basic tenets of our legal system and proposition. The Supreme Court of the basic tenets of our democracy. Canada has, on various occasions, held that the principles of fundamental jus- There is, at the very least, a substantial tice encompass not only the rights of the accused, but also the broader com- convergence of the two. munity interests represented by the state. However, Mills has modified this principle. Suddenly, and apparently for individual. For example, in R. v. ance with the principles of fundamental the first time, the court has distin- Seaboyer,13 McLachlin J., writing for the justice can ever be justified, except per- guished between different types of majority, stated: “The principles of fun- haps in times of war or national emer- societal interests. Some are relevant to damental justice reflect a spectrum of gencies.” If societal interests were al- the s. 7 inquiry; others are reserved for interests from the rights of the accused ready weighed under s. 7, the effect was consideration under s. 1. Of further sig- to broader societal concerns.” In the to neuter s. 1. nificance is the court’s express asser- later case of Cunningham v. Canada,14 In Mills, the court revisited the dy- tion that the balancing of interests un- McLachlin J., writing for the court, ob- namic between ss. 7 and 1 of the Char- der s. 7 of the Charter is quite different served, “The principles of fundamental ter, and appeared to strike a middle from the balancing of interests under justice are concerned not only with the ground between the stark alternatives of s. 1. The implication of this is potentially interest of the person who claims his lib- the past. On the approach in Mills, profound. If the balancing is substan- erty has been limited, but with the pro- societal interests can be considered un- tially different under the two provisions, tection of society. Fundamental justice der s. 7; but societal interests are not it is now at least conceivable that a law requires that a fair balance be struck entirely spent under s. 7. This approach, that offends s. 7 may be saved under between these interests, both substan- while interesting, is of uncertain appli- s. 1. If this is so, Mills may have resur- tively and procedurally.” Other cases re- cation. The court identified “several im- rected s. 1 of the Charter as a viable ha- flect a similar approach.15 portant differences between the balanc- ven for Crown litigants who have failed The inclusion of societal interests in ing exercises under ss. 1 and 7.”17 How- to defend against a s. 7 challenge. s. 7 had implications for s. 1. The re- ever, it is difficult to gauge just how The Supreme Court of Canada has spective provisions employed different these differences will manifest in prac- not always been consistent in defining tests. However, for all intents and pur- tice. For example, the court noted as the phrase “the principles of fundamen- poses, the analyses were the same. one difference that the claimant must tal justice.” In earlier years, the court Both provisions envisaged a balancing establish a violation under s. 7, whereas was ambivalent over the extent to which of the individual and state interests— it falls to the state to establish justifica- societal interests could properly be im- usually the same individual and state in- tion under s. 1. It is true that the sections ported into the s. 7 analysis.11 For exam- terests. While Crown litigants paid token impose different burdens. But, where ple, in R. v. Swain,12 Chief Justice Lamer, heed to s. 1 in defending legislation, the Charter litigation is concerned, few writing for the majority, stated: “It is not practical reality was that the argument cases are so close as to turn on the appropriate for the state to thwart the advanced under s. 1 was often no differ- placement of the burden of proof. This exercise of the accused’s right by at- ent from the argument under s. 7. It was is particularly so where the issue in tempting to bring societal interests into merely cloaked in different language. question is the validity of a legislative the principles of fundamental justice Certainly, it was difficult to imagine that scheme or a settled common law rule. and to thereby limit an accused’s s. 7 the balancing exercises could yield dif- Other distinctions seem even more il- rights.” On the authority of Swain, ferent conclusions. The Supreme Court lusory. For example, the majority ruled societal interests were open for consid- of Canada had often observed that a that the type of balancing contemplated eration only under s. 1. Over time, this violation of s. 7 could rarely, if ever, be under s. 7 is different from that under s. 1. position evolved. More recent judg- saved under s. 1. In R. v. Heywood,16 The court stated: “Unlike s. 1 balancing, ments have espoused the contrary Cory J. affirmed, “This Court has ex- where societal interests are sometimes view—the principles of fundamental jus- pressed doubt about whether a viola- allowed to override Charter rights, under tice encompass the interests of society tion of the right to life, liberty, or security s. 7, rights must be defined so that they as much as they do the interests of the of the person which is not in accord- Shifting ground, page 38

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 37 Shifting ground continued from page 37 do not conflict with each other.” In an- s. 1. The situation is quite different The relationship between other passage, the court noted, “The where the language defining the right sections 7 and 8 of the Charter most important difference is that the is- contains its own internal modifier, such Another aspect of Mills that merits sue under s. 7 is the delineation of the as “the principles of fundamental jus- some mention concerns the court’s boundaries of the rights in question, tice.”19 For this reason, neither Oakes clarification of the relationship between whereas under s. 1 the question is nor Keegstra is particularly instructive in ss. 7 and 8 of the Charter. Simply put, whether the violation of these bounda- determining the distinction between the court affirmed that, where s. 8 is en- ries may be justified.” Does this mean s. 7 and s. 1. The more pertinent author- gaged—in the sense that there is a that s. 7 is designed to reconcile conflict- ity may be Re B.C. Motor Vehicle Act,20 search or seizure—s. 7 adds nothing fur- ing rights, while s. 1 is driven by a more wherein Lamer J. (as he then was) ther to the constitutional analysis. This combative or hierarchical approach? If pointed out that s. 7 is concerned with point flows quite naturally from the set- so, this conflicts with the tenor and spirit “principles which have been recog- tled principle that ss. 8 through 14 of the of Re Dagenais et al. and Canadian nized by the common law, the interna- Charter are merely illustrations of the Broadcasting Corp. et al.,18 in which the tional conventions, and by the very fact s. 7 right.21 Section 8 addresses one court generally rejected the “clashing ti- of entrenchment in the Charter, as es- specific component of the right not to tans” model, even as it related to s. 1. sential elements of a system for the ad- be deprived of life, liberty, or security of Moreover, as a practical matter, this dis- ministration of justice which is founded the person except in accordance with tinction is largely semantic. One can upon a belief in the dignity and worth of the principles of fundamental justice. construe a right narrowly because of a the human person and the rule of law.” Although the above principle was as- conflicting interest, or one can construe Framed in this way, the principles of fun- serted in the B.C. Motor Vehicle Refer- the right broadly and then override it. Ei- damental justice are very closely linked ence, there has been some uncertainty ther way, the scope of the right is limited to the values underlying a free and over the role of s. 7 in search and sei- and the end result is the same. democratic society. zure cases. Some of this uncertainty In any given case, context is an im- This leads to the final point. Even if stemmed from R. v. Stillman.22 The issue portant factor, both in defining the prin- the societal interests covered by ss. 7 in Stillman was whether police seizure ciples of fundamental justice and in ap- and 1 are not identical, it is nonetheless of hair samples and dental impressions plying s. 1 justification. But the funda- difficult to imagine that a law that oper- had infringed the accused’s Charter mental question remains: Where does ates in contravention of s. 7 could be rights. The collection of the biological s. 7 end and s. 1 begin? rescued by s. 1. If a law offends funda- samples clearly constituted a seizure for Part of the difficulty is that it is some- mental justice, it is unlikely to be justi- the purposes of s. 8, and the issue was what artificial to partition societal inter- fied on democratic grounds. Stated dif- analyzed on this basis. However, having ests. It is particularly difficult to draw ferently, democratic values, however im- concluded that the police actions vio- clear and meaningful distinctions be- portant, are unlikely to be capable of lated s. 8, the court nonetheless went tween the basic tenets of our legal sys- supporting practices that are fundamen- on to conduct an independent analysis tem and the basic tenets of our democ- tally unjust. Accordingly, while the Su- under s. 7. In a separate, albeit brief, por- racy. There is, at the very least, a sub- preme Court of Canada has altered the tion of the judgment, Cory J., for the stantial convergence of the two. In iden- framework of analysis governing the majority, held: “The taking of the dental tifying a discrete ambit for s. 1, the court s. 7–s. 1 relationship, it remains to be impressions, hair samples and buccal in Mills relied upon dicta from Oakes seen what, if anything, flows from this swabs from the accused also contra- and Keegstra. Yet, these cases must be aspect of Mills. It may generate little im- vened the appellant’s s. 7 Charter right viewed in context. In Oakes, the court pact. However, it does represent a de- to security of the person.” Stillman sug- was concerned with the presumption of parture from earlier analytical models, gested that there was a need to conduct innocence under s. 11(d) of the Char- and it may invigorate s. 1 advocacy on both a s. 7 and a s. 8 analysis in cases in- ter. Keegstra dealt with freedom of ex- the part of the prosecution. If nothing volving seizure of physical evidence. pression under s. 2(b) of the Charter. else, the approach of the court in Mills This suggestion has effectively been These rights are, on their terms, very dif- will likely renew litigation on the rela- countered by the reasoning in Mills. If ferent from s. 7. Neither the presump- tionship between ss. 7 and 1, an issue anything, Mills indicates that the s. 7 tion of innocence nor the freedom of that had previously been settled. It is analysis conducted in Stillman was su- expression guarantee are structured so curious that the court chose to reopen perfluous. First, in Mills, the court af- as to permit an internal balancing of in- this issue, all the more so in a case that firmed the breadth of the protections af- dividual and societal interests. Any bal- did not require actual resort to s. 1 in forded by s. 8. While s. 8 is fundamen- ancing must, by necessity, occur under order to uphold the legislation in issue. tally concerned with the protection of

38 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 “privacy,” this concept has, itself, been given a broad and purposive interpreta- The constitutional rights of third parties tion. Privacy has been held to encom- pass a global constellation of interests —be they complainants, witnesses, or the that might be affected by police search or seizure.23 In Mills, the court considered, media—must be given proper consideration at some length, the varied factors that are within the constitutional equation. included in the ambit of s. 8. Significantly, these factors included security of the per- son, the very interest that had been given separate treatment in Stillman. To the ex- ties—be they complainants, witnesses, tion” that “tends to reveal intimate de- tent that disclosure of therapy records or the media—must be given proper tails of the lifestyle and personal threatened to interfere with security of consideration within the constitutional choices of the individual.”29 the person, the court in Mills saw this as a equation. Dagenais also established Few could dispute that there is an matter for consideration under s. 8, as that, where conflict ensues, the rights of aura of privacy surrounding therapy opposed to s. 7, of the Charter. third parties are not automatically sub- records, given the highly intimate dis- Furthermore, the court in Mills servient to those of the accused. The closures that tend to be made in this pointed out that, given the parallel na- “clash model” was rejected in favour of context. Nor is it surprising that these ture of the analyses, compliance with an approach that seeks to reconcile and privacy interests were accorded consti- s. 8 will invariably denote compliance accommodate competing interests. tutional status. Section 8 of the Charter with s. 7. This statement was recently re- This accommodation model was ap- would be triggered were the police to lied upon by the court of Appeal for On- plied by the Supreme Court of Canada obtain access to this material. Privacy is tario in R. v. F.(S.).24 In F.(S.), the appel- in R. v. O’Connor,27 and it has now equally threatened where access is lant challenged the constitutional valid- been further entrenched as a result of R. sought by a private party—the accused— ity of the DNA warrant scheme— v. Mills.28 Indeed, it was the central and who is the subject of a prosecution, and ss. 487.04 to 487.09 of the Criminal defining feature of Mills. The majority who seeks a court order to this end. It is Code—arguing that the legislation vio- introduced the case by noting: “The accordingly fitting and appropriate that lated the principle against self-incrimi- resolution of this appeal requires under- complainants’ privacy interests be given nation under s. 7 of the Charter. On the standing how to define competing full weight in the constitutional equa- basis of Mills, Finlayson J.A. found that rights, avoiding the hierarchical ap- tion. That said, this trend—which com- the appellant’s reliance on s. 7 was mis- proach rejected by this court in menced some years ago—reflects a conceived. He stated that “our analysis Dagenais v. C.B.C. ” gradual drifting away from the strict re- of whether the legislation relating to In Mills, there were various rights at quirement of state action in s. 32 of the DNA warrants is constitutional begins stake: the accused’s right to full answer Charter. A discretionary order made by and ends with s. 8.” Self-incrimination is and defence under s. 7; the complain- a court does not qualify as state action often considered under the ambit of ant’s right to privacy under s. 8; and on the terms of s. 32.30 But even where s. 7, but this is generally in cases where equality rights as reflected in ss. 15 and Charter rights are not directly triggered s. 8 has not been triggered.25 Mills and 28 of the Charter. On the issue of pri- through this mechanism, the concept of F.(S.) indicate that, where there has vacy, Mills recognized the acutely sensi- Charter values has been used to ensure been a search or seizure, s. 8 of the tive nature of therapeutic records, and that discretionary court orders can be Charter will serve as the proper and, ar- other private records arising out of con- reviewed on constitutional grounds.31 guably, exclusive tool for assessing fidential trust-based relationships. The This approach is now so firmly en- whether the state action comports with majority stated: “The values protected trenched as to be unquestioned. It was Charter standards. by privacy rights will be most directly at simply a given in Mills that the com- stake where the confidential informa- plainant’s privacy rights would be as- The role of third-party rights tion contained in a record concerns as- sessed on an equal footing with the ac- Since the case of Re Dagenais et al. and pects of one’s individual identity or cused’s right to full answer and defence. Canadian Broadcasting Corp. et al.,26 it where the maintenance of confidential- One wonders how far this trend will has been accepted that Charter analysis ity is crucial to a therapeutic, or other extend. Consider the case of R. v. must accommodate the rights of per- trust-like relationship.” This statement is Godoy.32 In Godoy, the Supreme Court sons and entities who, while partici- consistent with prior case law dealing of Canada held that the police were enti- pants in the criminal process, are not with the informational privacy under tled to enter a dwelling house, without traditional parties to criminal litigation. s. 8 of the Charter. Section 8 protects a warrant, in order to investigate a discon- The constitutional rights of third par- “biographical core of personal informa- Shifting ground, page 40

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 39 Shifting ground continued from page 39 nected 911 call. The entry led to an ar- points advanced in the name of equality is equality, the records production rest of the accused for a domestic as- were hardly controversial.36 The court scheme may, in some respects, fall sault. In concluding that the police entry reiterated the need to eradicate perni- short of achieving that objective. was justified, the court affirmed the cious myths and stereotypes from crimi- The concept of equality may also common law duty of the police to pro- nal trials involving sexual offences. This work to the benefit of the defence. Mills tect life and safety. Given the public observation has been made in prior was concerned with the effect of the leg- safety concerns in Godoy, the outcome cases,37 and is as much concerned with islation on the accused’s right to full an- was not surprising. But in the course of the integrity of the trial process as it is swer and defence. But the decision also his reasons, Lamer C.J. made certain with equality issues. Similarly, the court has implications for suspects’ privacy comments of curious import regarding admonished that records applications rights, particularly where the police or the extent to which the accused’s crime should not be used to intimidate or prosecution seek to obtain therapy affected the complainant’s Charter “whack”38 the complainant. The point records as evidence of crime under rights of privacy. Moreover, the court ap- here was simply that complainants are search warrant. There are definite paral- peared to undertake a comparative entitled to be treated with dignity and re- lels between the Mills/O’Connor regime analysis. Entry was justified, in part, be- spect. Even if s. 15 had not been intro- and the search warrant process. cause the police interference with the duced, it would be difficult to quarrel Where s. 8 of the Charter is con- accused’s privacy rights was less egre- with the logic of these propositions. cerned, an accused is arguably entitled gious than the accused’s interference On the other hand, the introduction to the same privacy protections as is a with the complainant’s privacy rights. of equality concerns may raise other is- complainant. By virtue of ss. 15 and 28 Yet, this is not the type of comparison sues. For one thing, a complainant or of the Charter, Charter rights—including that has traditionally been permitted un- witness may claim only the heightened privacy rights—are guaranteed equally der the Charter. The actions of the po- protections of Bill C-46 if the trial in- to male and female persons. The nature lice and the accused cannot be placed volves a sexual offence enumerated in and degree of privacy attaching to inti- on the same footing. One group is s. 278.2. Absent a sexual offence, the mate records cannot logically depend bound by the Charter; the other is not. legislation has no application and the on gender; nor can it depend on the Moreover, the gravity of the crime has process defaults to the O’Connor identity of the party seeking access. The never determined whether there has model. As was acknowledged in Mills, expectation of privacy flows from the been a breach,33 though it is a relevant the O’Connor model does not offer the nature of the record, and the circum- factor under s. 24(2). same degree of protection to complain- stances under which it was created. It It is unlikely that the court intended, in ants’ privacy interests as does Bill C-46. ought not to matter whether the subject these passing remarks, to effect dramatic This disparity is a by-product of policy of the record is a suspect or a victim of change. Godoy was, first and foremost, a choices made by Parliament. The pre- crime. If anything, the Charter is even case about public safety concerns. None- amble to Bill C-46 leaves little doubt that, more directly engaged where the party theless, the language chosen by the in enacting this scheme, Parliament was seeking access to sensitive records is a court is interesting, and may suggest an primarily concerned with sexual crimes police officer who wishes to use the evi- increasing willingness to give effect to the against women and children.39 As a dence against the person in a criminal constitutional rights of persons who are practical matter, these are the types of prosecution. not in direct conflict with the state. cases in which records applications What flows from this? The defence What about equality rights? The court tended to be brought by the defence. might argue that the search warrant proc- in Mills has been criticized for introduc- But the issue here is privacy. Presum- ess is less protective of privacy than is Bill ing complainants’ equality rights into the ably, a complainant who has been trau- C-46. Defence advocates might argue balancing equation.34 Professor Don matized by a violent home invasion, or that the requirement of reasonable and Stuart has pointed out that the court an aggravated domestic assault, has just probable grounds—the standard of issu- merely asserted equality rights on the as much privacy in therapy records as ance for most search warrants—is akin to part of complainants, without conduct- does a person traumatized by sexual the “likely relevance” test and does not ing any type of proper analysis in accord- violence. Yet, in these non-sexual cases, reflect the additional factors that are re- ance with the s. 15 case law.35 A review of complainants are left to resist produc- quired to be balanced under Bill C-46. the judgment confirms this to be the tion under a less-protective regime. This Section 278.5(1) of the Code governs the case. However, it is important not to over- is not to say that the victim of a non- first stage of production under Bill C-46. It estimate the true purport of the equality sexual assault would necessarily have a provides that the accused must demon- component in Mills. While the court claim under s. 15 of the Charter. It is strate not only likely relevance, but also chose to invoke s. 15 of the Charter, the only to say that, if the overarching goal that production “is necessary in the inter-

40 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 ests of justice.” Section 278.5(2) sets out a broad range of rights and interests to be While different rules may apply in considered in applying this legal stand- ard. Moreover, defence counsel chal- the regulatory context, White confirms lenging search warrants might point out that, under Bill C-46, records are initially that the state cannot compel a statement disclosed to the judge for review; under a regulatory scheme, only to whereas under the search warrant re- gime, sensitive records are immediately then use that very utterance to prove accessible to police officers. In at least one case, R. v. J.O.,40 it was held that a guilt in a criminal proceeding. search warrant to seize medical records ought to contain special terms and con- ditions—including a sealing require- In other cases, public safety concerns statement under a regulatory scheme, ment—in order to protect the heightened may require that the police obtain imme- only to then use that very utterance to expectations of privacy in this area. In diate access to the evidence in issue.43 prove guilt in a criminal proceeding. reaching this conclusion, the court spe- Ultimately, these issues will have to be The conclusion reached by the court cifically considered and applied the prin- canvassed on a case-by-case basis. under s. 7 was not entirely surprising, ciples set out in R. v. O’Connor. given earlier jurisprudence. The more in- On the other hand, Crown advocates R. v. WHITE: EXCLUSION OF teresting feature of the decision in White can point out that the search warrant EVIDENCE UNDER SECTION 24(1) is the court’s exclusionary ruling, and the 44 process does require a careful balancing In R. v. White, the Supreme Court of basis on which it purported to find the of competing interests in a process simi- Canada considered the principle statements inadmissible. Simply put, the lar to that contemplated under Bill C-46. against self-incrimination under s. 7 of court in White found that the statements 41 In Baron v. Canada, the Supreme the Charter. The accused was involved should be excluded under s. 24(1), as Court of Canada held that a justice asked in a motor vehicle accident and, pursu- opposed to s. 24(2) of the Charter. The to issue a search warrant has a residual ant to s. 61 of the B.C. Motor Vehicle Act, court expressly ruled that “s. 24(1) may discretion to decline to issue a search was statutorily compelled to provide an be employed as a discrete source of a warrant, even where all of the statutory accident report. She provided three court’s power to exclude such evi- requirements have been made out. In such statements to the police. The cen- dence.”47 The recognition of a discrete exercising this discretion, the justice tral issue was whether these statements and freestanding exclusionary power in must carefully balance all of the relevant could be introduced as evidence s. 24(1) flies in the face of earlier case factors bearing on the invasion of indi- against the accused at her criminal trial law, most notably R. v. Therens.48 In vidual privacy and the interests of law on a charge of failing to remain at an Therens, Le Dain J. had firmly rejected 42 enforcement. Moreover, some, though accident. The majority of the Supreme this suggestion, holding that “s. 24(2) not all, warrant provisions contain lan- Court of Canada ruled that the admis- was intended to be the sole basis for ex- guage similar to that employed in Bill C- sion of the compelled statements at the clusion of evidence because of an in- 46. For example, general warrants under criminal trial would violate the principle fringement or denial of a right or free- s. 487.01 of the Code and DNA warrants against self-incrimination. It was held dom guaranteed by the Charter.” The under s. 487.05 of the Code require that that the police are entitled to gather in- court in White endeavoured to distin- the judge consider whether issuance of formation under s. 61 of the Motor Vehi- guish Therens and, in so doing, created a the warrant “is in the best interests of the cle Act. However, this information is two-tiered scheme for the exclusion of administration of justice.” subject to a use immunity, and cannot evidence in Charter cases. It is difficult to make categorical com- be used to incriminate the declarant in The distinction seems to be as fol- parisons between Bill C-46 and search the commission of a criminal offence. lows. In some cases, the way the evi- warrants, given the myriad of circum- The Supreme Court of Canada has of- dence was obtained will breach the stances in which search warrants are is- ten observed that, within the criminal Charter. For example, the police may sued. A justice may, in his or her discre- context, it is fundamentally unfair to obtain a statement or breath sample in tion, choose to impose a sealing require- compel an accused to create evidence— violation of s. 10(b) of the Charter. The ment on a warrant to seize a suspect’s such as a statement—that will then be police may seize evidence in a manner psychiatric records. However, this is less used against him or her in a criminal that violates s. 8 of the Charter. In such 45 likely to occur where the medical trial. While different rules may apply cases, the rule in Therens will apply, and records disclose nothing more than the in the regulatory context,46 White con- suspect’s blood alcohol concentration. firms that the state cannot compel a Shifting ground, page 42

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 41 Shifting ground continued from page 41 the admissibility of the evidence will fall recognized this common law authority tered if Ms. White would have spoken to to be determined under s. 24(2). The and noted that it has been constitution- the police even absent the statutory second category operates differently. In alized by virtue of s. 11(d) of the Char- compulsion? These are but a few of the these cases, the Charter is not violated ter. Thus, a trial judge can exclude evi- questions that might be asked in this by the obtaining of the evidence; rather, dence without resorting to s. 24 of the context. Given our experience with the it is violated by the use of the evidence. Charter at all.50 Finally, if s. 24 was to be incremental and piecemeal evolution of Thus, for example, in White, the taking invoked, it is puzzling that the court did the law under s. 24(2), it might be some of the compelled statements, under not content itself with the time-hon- considerable time before the questions statutory authority, did not itself result in oured and well-settled framework for under s. 24(1) are given definite answers. a constitutional infringement. The Char- exclusion under s. 24(2). Section 24(2) ter was, however, infringed when the is certainly capable of accommodating CONCLUSION Crown sought to admit the statements fair trial concerns; this is the central and The Charter continues to have a signifi- in a criminal prosecution. Using the defining issue under the first set of fac- cant impact on criminal litigation and the statements in this manner infringed the tors. Whether the breach flows from the definition of legal rights. One can expect accused’s right to a fair trial. White indi- obtaining or the admission of the evi- that these issues will continue to evolve. cates that, in this second category of dence, s. 24(2) is well-equipped to en- What is perhaps more surprising is the cases, admissibility is to be assessed sure that evidence affecting the fairness malleability of the overarching frame- under s. 24(1), as opposed to s. 24(2). of trial will be excluded. It is true that work in which these analyses are to take This aspect of White is troubling. Ear- s. 24(2) refers to evidence “obtained in place. Certain defining principles govern- lier judgments had hinted at this ap- a manner” that breached the Charter. ing the relationship between Charter pro- proach but, as was noted by Iacobucci However, this phrase has been given a visions have been called into question. J., the court had “never affirmatively de- broad interpretation. Section 24(2) is Charter litigation is, by its nature, a fluid cided that s. 24(1) of the Charter may triggered whenever there is a sufficient process and change is inevitable. But serve as the mechanism for the exclu- tactical, temporal, or causal nexus be- there is also some value in certainty, par- sion of evidence whose admission at tween the evidence and the breach.51 ticularly when one is delineating the very trial would violate the Charter.” It was The problem is this. The introduc- contours of the dispute. It remains to be further noted by Iacobucci J. that none tion of a new exclusionary power under seen what, if any, impact will flow from of the parties in White had actually ar- s. 24(1) has the potential to generate the changes wrought in Mills and White. gued this point. Why, then, did the court vast uncertainty. After years and years of If nothing else, the cases signal a willing- find it necessary to create a discrete litigation—and countless Supreme Court ness on the part of the Supreme Court of exclusionary doctrine? It was certainly of Canada judgments—Canadian law fi- Canada to shift ground, even on basic not necessary in order to achieve the nally achieved some degree of clarity in and apparently settled issues. Counsel desired result in White. Exclusion of the applying the principles under s. 24(2).52 arguing Charter cases should not feel un- statements in White was compelled on What is one to do with this body of es- duly constrained by the prevailing model any number of other grounds. For one tablished law? Are s. 24(2) principles to of constitutional analysis. Creative argu- thing, the whole point of the case was to be simply grafted onto s. 24(1), or do ment may well oil the hinges on doors recognize a use immunity for the different rules apply? Is there any bal- that, by virtue of earlier case law, ap- statutorily compelled statements made ancing of factors under s. 24(1)? Does peared to be nailed shut. by Ms. White. A finding of use immunity, “fairness of trial” mean the same thing by its very nature, prohibits the Crown under both subsections? Under s. 24(2), 1 The opinions are those of the au- from using the statements against the the first set of factors is exclusively con- thor only, and do not necessarily re- accused. In other words, the exclusion cerned with conscriptive evidence. Is flect the views of the Ministry of the of the evidence at trial flowed inexora- this the case with s. 24(1), or does it en- Attorney General. bly from the conclusion reached under compass a broader range of considera- 2 See, e.g., R. v. Liew, [1997] S.C.J. 53 s. 7 of the Charter. tions bearing on the fairness of trial? no. 51. Even beyond s. 7, various other Does s. 24(1) have any application to 3 See, e.g.. R. v. White, [1999] 2 mechanisms could have justified exclu- non-conscriptive evidence? Under S.C.R. 417. sion. The courts have consistently rec- s. 24(2), if conscriptive evidence was ognized that, at common law, trial otherwise discoverable, its admission 4 See, e.g., R. v. Mills, [1999] S.C.J. no. judges have the power and discretion to would not affect the fairness of trial. 68; R. v. Rose, [1998] 3 S.C.R. 262. exclude evidence that would render the How does discoverability fit into the 5 See, e.g., R. v. Mills, ibid.; R. v. trial unfair. In R. v. Harrer,49 LaForest J. s. 24(1) framework? Would it have mat- Godoy, [1999] 1 S.C.R. 311; R. v.

42 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 Schreiber, [1998] 1 S.C.R. 841; R. v. Cook, [1998] 2 S.C.R. 597. The introduction of a new exclusionary 6 Above note 4. power under s. 24(1) has the potential to 7 Above note 3. 8 Above note 4. generate vast uncertainty. After years and 9 [1995] 4 S.C.R. 411. years of litigation—and countless Supreme 10 The court observed at para. 22 that “there are several important re- Court of Canada judgments—Canadian law spects in which Bill C-46 differs from the regime set out in O’Connor ….” finally achieved some degree of clarity in 11 For a review of the court’s approach to this issue, see Thomas J. Single- applying the principles under s. 24(2). ton, “The Principles of Fundamental Justice, Societal Interests, and Sec- tion 1 of the Charter” (Sept. 1995), 31 See, e.g., Hill v. Church of Scientol- 42 Baron was one of the cases cited 74 Can. Bar. Rev. 446-73. ogy of Toronto, [1995] 2 S.C.R. 1130; by the court in Mills when discuss- 12 [1991] 1 S.C.R. 933. A.M. v. Ryan, [1997] 1 S.C.R. 157; Re ing the judge’s discretion to con- 13 (1991), 66 C.C.C. (3d) 321 (S.C.C.). Dagenais, above note 18. sider the full range of rights and in- terests. See Mills, above note 4, at 14 (1993), 80 C.C.C. (3d) 492 (S.C.C.). 32 [1991] 1 S.C.R. 311. para. 133. 15 See, e.g., Godbout v. Longueuil 33 This point is amply illustrated by the 43 See, e.g., Smith v. Jones, [1999] 1 (City), [1997] 3 S.C.R. 844, at 898 cases of R. v. Stillman, above note 22 S.C.R. 455. and 900; R. v. Rodriguez, [1993] 3 and R. v. Feeney, [1997] 2 S.C.R. 13. S.C.R. 519. 34 See Don Stuart, “Mills: Dialogue 44 [1999] 2 S.C.R. 417. 16 [1994] 3 S.C.R. 761. with Parliament and Equality by As- 45 See, e.g., R. v. Jones, [1994] 2 sertion at What Cost?” 28 C.R. (5th) S.C.R. 229; R. v. S.(R.J.), [1995] 1 17 R. v. Mills, above note 4, at para. 66. 275; Anil Kapoor, “The Supreme S.C.R. 451; and R. v. Stillman, 18 (1994), 94 C.C.C. (3d) 289 (S.C.C.). Court Recants” Kapoor’s Criminal above note 22. 19 Other modifiers include the refer- Appeals Review, Issue 8, January 17, 46 See, e.g., R. v. Fitzpatrick, [1995] 4 ence to “unreasonable search or sei- 2000 (Q.L.). S.C.R. 154. zure” in s. 8 and “fair trial” in s. 11(d). 35 See Don Stuart, above note 34. In 47 R. v. White, above note 44, at para. 20 (1985), 23 C.C.C. (3d) 289 (S.C.C.). particular, Professor Stuart is critical 89. 21 Ibid. of the court’s failure to apply the 10- 48 [1985] 1 S.C.R. 613. part test set out in Law v. Canada 22 [1997] 1 S.C.R. 607. 49 (1995), 101 C.C.C. (3d) 193 (S.C.C.). (Minister of Employment & Immi- 23 See, e.g., R. v. Dyment (1988), 45 gration), [1999] 1 S.C.R. 497. 50 In this regard, reference may be C.C.C. (3d) 244 (S.C.C.); Schreiber made to R. v. Milne (1996), 107 36 See R. v. Mills, above note 4, at v. Canada (A.G.) (1998), 124 C.C.C. C.C.C. (3d) 118 (Ont. C.A.); R. v. paras. 90-92. (3d) 129 (S.C.C.), at 141; and R. v. Coutts (1999), 136 C.C.C. (3d) 225 Plant (1993), 84 C.C.C. (3d) 203 37 See R. v. Osolin, [1993] 4 S.C.R. 595; (Ont. C.A.). R. v. Seaboyer, [1991] 2 S.C.R. 577. (S.C.C.). 51 See, e.g., R. v. Goldhart (1996), 107 24 [2000] O.J. no. 60 (C.A.). 38 This term was used by McLachlin C.C.C. (3d) 481 (S.C.C.). and Iacobucci, JJ.A. at para. 90. 25 See, e.g., R. v. Fitzpatrick, [1995] 4 52 See R. v. Stillman, above note 22; R. S.C.R. 154; R. v. White, above note 3. 39 The preamble expressly refers to a v. Feeney, above note 33; and R. v. recital that indicates that Parliament 26 Above note 18. Belnavis (1997), 118 C.C.C. (3d) 405. is concerned about the incidence of 53 In R. v. Harrer (1995), 101 C.C.C. 27 Above note 9. sexual violence and abuse in Cana- (3d) 193 (S.C.C.), McLachlin J. (as 28 Above note 4. dian society and, in particular, the she then was) defined a fair trial as prevalence of sexual violence 29 R. v. Plant (1993), 84 C.C.C. (3d) one “which satisfies the public inter- against women and children. 203 (S.C.C.), at 213. est in getting at the truth, while pre- 30 RWDSU v. Dolphin Delivery Ltd., 40 [1996] O.J. no. 4799 (Gen. Div.). serving basic procedural fairness to [1986] 2 S.C.R. 573. 41 [1993] 1 S.C.R. 146. the accused.” (See para. 45.)

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 43 Treaty rights, the Indian Act, and the Canadian Constitution: The Supreme Court’s 1999 decisions

n 1999 the Supreme Court’s constitu- BY KENT McNEIL in the park, but contended that the right Itional decisions involving Aboriginal did not include a right to build a cabin to Kent McNeil teaches law at Osgoode Hall peoples related to treaty rights and the facilitate hunting. The Supreme Court Law School, York University. validity and effect of certain provisions disagreed. Delivering the unanimous of the Indian Act.1 Two substantive deci- judgment, Cory J. held that building shel- sions were handed down in each of The Crown accepted ters was “reasonably incidental” to the these areas. We will start by examining right to hunt and fish, given that the the treaty cases, and then analyze the that Mr. Sundown Joseph Bighead First Nation’s traditional cases involving the Indian Act. method of hunting was “expeditionary”— had a treaty right to that is, the hunters would set up a base THE TREATY RIGHTS CASES camp for up to two weeks, from which Both treaty cases involved the interpre- hunt for food in the they would go out in various directions to tation of treaty provisions relating to park, but contended hunt each day, returning to the camp to hunting and fishing rights. In R. v. Sun- dress and preserve the game and fish down,2 John Sundown was charged that the right did not they caught. This method of hunting re- with violating provisions of the Sas- quires a shelter, originally a moss-cov- katchewan Parks Regulations, 1991,3 include a right to build ered lean-to, later a tent, and today a because he had cut down white spruce small cabin. This evolution of the kind of trees and used them to build a cabin in a cabin to facilitate shelter was, Cory held, consistent with Meadow Lake Provincial Park without the Supreme Court’s rejection of a “fro- provincial consent. His defence was hunting. The Supreme zen-in-time” approach to Aboriginal and that he had a treaty right to hunt and fish treaty rights.9 Moreover, construction of in the park, and that the cabin was nec- Court disagreed. a cabin would not give the First Nation a essary for shelter while he was on hunt- proprietary interest in park land. For one ing and fishing expeditions, and for reason, if hunting became incompatible said Government of the Dominion smoking fish and meat and preparing with the Crown’s use of the land then of Canada, or by any of the subjects hides. He relied on the following provi- hunting would not be allowed, and so thereof duly authorized therefor by sion of Treaty 6, entered into in 1876, any rights in the hunting cabin would be the said government.4 and adhered to in 1913 by the Joseph lost, especially as the treaty itself limits Bighead First Nation of Cree Indians, of This provision was modified in 1930 the hunting right to lands not “required which Mr. Sundown is a member: by paragraph 12 of the Natural Resources or taken up for settlement.” Furthermore, Her Majesty further agrees with Her Transfer Agreement,5 which took away in accordance with the Sparrow test the said Indians that they, the said Indi- the treaty right to hunt commercially but treaty right to hunt would be subject to ans, shall have right to pursue their expanded the geographical area in justifiable regulation for conservation, in- avocations of hunting and fishing which the right to hunt for food could cluding restrictions on the building of throughout the tract surrendered as be exercised.6 This modified treaty right cabins if required to preserve habitat.10 hereinbefore described, subject to was given additional constitutional pro- However, Cory emphasized that, for the such regulations as may from time tection by s. 35(1) of the Constitution infringement to be justifiable, “both the to time be made by Her Government Act, 1982,7 which provides that “[t]he purpose of the regulations and the ac- of Her Dominion of Canada, and existing aboriginal and treaty rights of commodation of the treaty right in issue saving and excepting such tracts as the aboriginal peoples of Canada are would have to be clear from the legisla- may from time to time be required hereby recognized and affirmed.”8 tion.”11 He continued: or taken up for settlement, mining, The Crown accepted that Mr. Sun- The Crown would also have to dem- lumbering or other purposes by Her down had a treaty right to hunt for food onstrate that the legislation does not

44 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 unduly impair treaty rights. The sol- emn promises of the treaty must be Where Indian treaties are concerned, fairly interpreted and the honour of the Crown upheld. Treaty rights extrinsic evidence can be used, even if must not be lightly infringed. Clear evidence of justification would be the written document purports to contain required before that infringement all the terms, to show the historical could be accepted. and cultural context so as to reveal Cory J. acquitted Mr. Sundown be- cause his treaty right to hunt and fish the common intention of the parties. took precedence over provincial legis- lation due to s. 88 of the Indian Act.12 That section makes provincial laws of general application apply to “Indians” s. 88, as, unlike s. 35(1), this is a mere No appearance of “sharp dealing” (as defined in the Act), subject to, statutory provision that can be amended will be sanctioned.... Third, any among other things, “the terms of any by Parliament to include a justification ambiguities or doubtful expressions treaty.” As the provisions of the Sas- test if that is thought to be desirable.16 in the wording of the treaty or docu- katchewan Parks Regulations under While from one perspective it may ment must be resolved in favour of which Mr. Sundown had been charged seem odd that a statute provides more the Indians. A corollary to this prin- conflicted with his treaty right, s. 88 protection to treaty rights than an ex- ciple is that any limitations which re- prevented them from applying to him press recognition and affirmation of strict the rights of Indians under when exercising that right. Cory there- those rights in the Canadian constitu- treaties must be narrowly con- fore found it unnecessary to consider tion, where constitutional rights are strued.... Fourth, the onus of prov- whether s. 35(1) of the Constitution concerned the courts tend to balance ing that a treaty or aboriginal right Act, 1982 would have made the provin- constitutional protection against parlia- has been extinguished lies upon the cial regulations constitutionally inap- mentary sovereignty.17 That balancing Crown. There must be “strict proof plicable in the circumstances. exercise is unnecessary in the case of of the fact of extinguishment” and At the end of his judgment, Cory ob- statutory provisions that do not raise evidence of a clear and plain inten- served that the Crown, in oral argument constitutional issues, as in that context tion on the part of the government but not in its factum, had briefly con- the courts defer to the wisdom of the to extinguish treaty rights.19 tended that the justification test should legislature.18 These principles figured prominently apply to allow provincial infringements The Sundown decision also affirmed in the second Supreme Court case in of treaty rights in the context of s. 88 of and applied principles for the interpreta- 1999 involving treaty rights, R. v. Marsh- the Indian Act, as in the context of tion of treaties that have been repeated all. The Marshall case actually resulted s. 35(1) of the Constitution Act, 1982. by the Supreme Court on numerous oc- in two decisions, the first on the merits The matter had been raised, but left un- casions. Cory J. quoted the following (hereinafter Marshall No. 120) and the resolved, by Lamer C.J. in R. v. Côté.13 summary of these principles from his second on an application for a rehear- While considering the issue to be “im- own judgment in the Badger decision: ing and a stay of judgment (hereinafter portant,” Cory also declined to decide First, it must be remembered that a Marshall No. 221). We will consider it, as there had not been “any significant treaty represents an exchange of each of these decisions in turn. argument” on it.14 What is puzzling solemn promises between the The Marshall case arose out of about this aspect of Cory’s judgment is Crown and the various Indian na- charges laid against Donald Marshall that, as we have seen, he did suggest tions. It is an agreement whose na- Jr., a Mi’kmaq Indian, for using illegal that Mr. Sundown’s treaty right to hunt ture is sacred.... Second, the hon- nets to catch eels in Nova Scotia during could be infringed by provincial legisla- our of the Crown is always at stake the closed season and selling them tion if the infringement could be justi- in its dealing with Indian people. In- without a licence, contrary to regula- fied. But given that he held the right to terpretations of treaties and statu- tions made pursuant to the federal Fish- be protected against provincial laws by tory provisions which have an im- eries Act.22 His defence was based on a s. 88, how could infringement occur if pact upon treaty or aboriginal rights series of similar treaties entered into by there is no justification test implicit in must be approached in a manner the Crown and the Mi’kmaq villages in s. 88?15 This conundrum aside, my own which maintains the integrity of the Nova Scotia in 1760-61, which contained view is that the Court should refrain Crown. It is always assumed that the from reading a justification test into Crown intends to fulfil its promises. Treaty rights, page 46

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 45 Treaty rights continued from page 45 a commitment by the Mi’kmaq parties evidence can be used, even if the writ- the Aboriginal peoples. Binnie did not which was expressed in one of the trea- ten document purports to contain all think that “an interpretation of events ties in this way: the terms, to show the historical and that turns a positive Mi’kmaq trade de- And I do further engage that we will cultural context so as to reveal the com- mand into a negative Mi’kmaq covenant not traffick, barter or Exchange any mon intention of the parties.31 Also, is consistent with the honour and integ- Commodities in any manner but where a treaty was concluded verbally rity of the Crown.”35 with such persons or the managers and then written down by the Crown’s Addressing the Crown’s concern of such Truck houses as shall be ap- representatives, “it would be uncon- that “recognition of the existence of a pointed or Established by His Majes- scionable,” Binnie said, “for the Crown constitutionally entrenched right with, ty’s Governor at Lunenbourg or Else- to ignore the oral terms while relying on as here, a trading aspect, would open where in Nova Scotia or Acadia.23 the written terms.”32 the floodgates to uncontrollable and ex- Binnie J. reached his conclusion that cessive exploitation of the natural re- Mr. Marshall argued that this provi- the treaties included a right to hunt, fish, sources,” Binnie repeated that the right sion incorporated both a right to engage and gather, and to trade the products of was limited to a right to trade for neces- in traditional hunting, fishing, and gath- those activities for necessaries, by exam- saries, which in a modern context ering, and a right to trade the products ining the historical context and the means for a moderate livelihood. Ex- of those activities. record of negotiations of the treaties. panding on this, he said this: Mr. Justice Binnie, delivering the Cape Breton Island and Quebec had A moderate livelihood includes such judgment of the majority of the Su- been taken from the French by the British basics as “food, clothing and housing, preme Court in Marshall No. 1,24 ac- in 1759, and Montreal fell in June, 1760. supplemented by a few amenities,” cepted this argument, but limited the The British were anxious to maintain but not the accumulation of wealth. right to trade to a right to secure “neces- peace with the Mi’kmaq, who had been . . . It addresses day-to-day needs. saries,” which he construed in today’s allies of the French and who could be world as “equivalent to a moderate live- formidable opponents. The British also Government regulations limiting lihood.”25 Because Mr. Marshall had wanted the Mi’kmaq to continue their tra- Mi’kmaq hunting and fishing to what is been “engaged in a small-scale com- ditional economies so they would not required for a moderate livelihood mercial activity to help subsidize or sup- become discontented and would not be- would not violate their treaty right, and port himself and his common-law come a burden on the public purse. so would not have to be justified. But spouse” (the price received for the eels Moreover, when the treaties were en- regulations that went beyond that and was $787.10), Binnie J. held that he had tered into, the Aboriginal leaders asked infringed their right to derive a moder- been exercising his treaty right.26 As for truckhouses (trading posts) where ate livelihood from those activities that right is protected by s. 35(1) of the they could bring their goods to exchange would have to be justified in accordance Constitution Act, 1982,27 and the Crown for the European goods on which they with the Sparrow test. had made no attempt to justify infringe- had become dependent. As Binnie ob- As is well known, Marshall No. 1 ment of the right by the fisheries regula- served, “[i]t cannot be supposed that the sparked not only controversy, but also tions, Mr. Marshall was acquitted. Mi’kmaq raised the subject of trade con- turmoil in the Atlantic fisheries. An important aspect of the Marshall cessions merely for the purpose of sub- Mi’kmaq fishers naturally interpreted No. 1 decision was the court’s use of jecting themselves to a trade restric- the decision as affirming their treaty extrinsic evidence to determine the tion.”33 He concluded: right to fish not just eels, but other spe- terms of the treaties. Binnie J. rejected The trade clause would not have ad- cies as well, for a moderate livelihood. the suggestion made, but not applied, vanced British objectives (peaceful They accordingly began to trap lobsters by Estey J. in R. v. Horse28 that extrinsic relations with a self-sufficient for that purpose without respecting fed- evidence cannot be used where the Mi’kmaq people) or Mi’kmaq objec- eral regulations designed to control the written terms are unambiguous. As tives (access to the European “nec- lobster fishery. The federal government Binnie pointed out, the Supreme Court essaries” on which they had come was apparently unprepared and did not has distanced itself from Estey’s views to rely) unless the Mi’kmaq were as- seem to have any policy in place to deal in a number of more recent decisions.29 sured at the same time of continuing with the situation. In the meantime, Moreover, extrinsic evidence can be access, implicitly or explicitly, to some non-Aboriginal fishers reacted used even in a modern commercial wildlife to trade.34 angrily, resorting in some instances to context to show that a written contract property damage and other violent acts does not contain all the terms.30 Where Moreover, the honour of the Crown that the police apparently did little to Indian treaties are concerned, extrinsic is always involved in its dealings with prevent or stop. In my opinion, this

46 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 amounted to a disgraceful failure by both private citizens and government The problem with the court’s reasoning in officials to respect the rule of law where the constitutional rights of Aboriginal this respect is that the treaty rights of the peoples are concerned. In the judicial forum, one of the Mi’kmaq to fish are constitutionally intervenors in Marshall No. 1, the West protected, whereas any rights Nova Fishermen’s Coalition, applied to the Supreme Court for a rehearing of non-Aboriginal Canadians may have the case and an order staying the court’s judgment in the meantime. The to participate in the fishery are not. Since result was Marshall No. 2. In it the court, speaking unanimously, not only when can rights that are not constitutionally dismissed the application, but also pro- vided clarification of its earlier judg- protected trump those that are? ment. While Marshall No. 2 contains interesting comments on the status of an intervenor to bring such an applica- ments within their respective legisla- with traditionally gathered things tion, we will limit our discussion to the tive fields to regulate the exercise of like wild fruit and berries. court’s clarification of Marshall No. 1. the treaty right subject to the consti- In Marshall No. 2, the court specified The rather cryptic reference to “the tutional requirement that restraints that its earlier judgment dealt only with communal nature of a treaty right” in on the exercise of the treaty right the treaty right to this passage is significant, as it appears have to be justified on the basis of fish, wildlife and traditionally gathered to relate to an earlier observation in the conservation or other compelling things such as fruits and berries. The judgment that “the treaty rights do not and substantial public objectives. word “gathering” in the September belong to the individual, but are exer- 17, 1999, majority judgment was used The court pointed out that the issue cised by authority of the local commu- in connection with the types of re- of what regulations might be justifiable nity to which the accused belongs.” If sources traditionally “gathered” in an was not dealt with in Marshall No. 1 be- the communal nature of a treaty right is Aboriginal economy and which were cause the Crown made no attempt to a limitation on the right, then as the em- thus reasonably in the contemplation justify the application to Mr. Marshall of phasized words reveal it is a limitation of the parties to the 1760-61 treaties. the fisheries regulations under which he that is under the authority of the com- had been charged. Moreover, the issue munity in which the right is vested. This Accordingly, the earlier judgment did of justification cannot be determined seems to mean that the community has not decide whether the Mi’kmaq have apart from a specific context. For exam- the authority to determine, and if neces- any rights to “gather” other resources, ple, even if the court were to determine sary to limit, how the right is exercised such as timber, minerals, and oil and that a closed season was justified for the by its members. If this is correct, then a gas. The court nonetheless observed: eel fishery, that would not mean that a communal right of self-government with It is of course open to Native commu- closed season for the lobster fishery respect to the exercise of treaty rights nities to assert broader treaty rights would be justified. appears to be implicit in the court’s in that regard, but if so, the basis for The court nonetheless went on to re- judgment.36 such a claim will have to be estab- iterate that, as the treaty right in ques- On the extent of the legislative au- lished in proceedings where the is- tion is limited to providing a moderate thority to regulate the treaty right, the sue is squarely raised on proper his- livelihood, regulations restricting it to court referred to the general principles torical evidence, as was done in this that purpose would not infringe it and laid down in its earlier decisions, espe- case in relation to fish and wildlife. so would not require justification. The cially R. v. Sparrow,37 R. v. Badger,38 The rest of the Marshall No. 2 judg- court continued: and R. v. Gladstone.39 The court distin- ment relates mainly to legislative author- Other limitations apparent in the guished, however, between situations ity to regulate the Mi’kmaq’s treaty right. September 17, 1999, majority judg- involving Aboriginal rights, which “by After quoting several passages from its ment include the local nature of definition [were] exercised exclusively earlier judgment, the court concluded: treaties, the communal nature of a by Aboriginal people prior to contact The Court was thus most explicit in treaty right, and the fact it was only with Europeans,” and a treaty right like confirming the regulatory authority hunting and fishing resources to the one at issue, which was never exclu- of the federal and provincial govern- which access was affirmed, together Treaty rights, page 48

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 47 Treaty rights continued from page 47 sive because, at the time the treaty was soning in this respect is that the treaty JJ. McLachlin and Bastarache JJ., entered into, non-Aboriginal people rights of the Mi’kmaq to fish are constitu- Lamer C.J., Cory and Major JJ. concur- were already participating in the com- tionally protected, whereas any rights ring, also delivered a judgment arriving mercial and recreational fisheries.40 Ac- non-Aboriginal Canadians may have to at the same result, but with some differ- cordingly, the court said that infringe- participate in the fishery are not. Since ences in reasoning. As L’Heureux- ment of the treaty right could be justi- when can rights that are not constitution- Dubé’s judgment contains a more de- fied, not only for conservation, but also ally protected trump those that are?45 tailed analysis, and was concurred in on to take account of non-Aboriginal par- some points by McLachlin and Bastar- THE INDIAN ACT CASES ticipation. In that context, the court ob- ache, we will look at it first. While the Marshall case obviously at- served that “[p]roportionality is an im- L’Heureux-Dubé started by examin- tracted the most attention last year, the portant factor.”41 Moreover, as held in ing the preliminary issue of whether the Supreme Court’s decision in Corbiere v. previous cases, consultation with the s. 15(1) analysis should be limited to Canada (Minister of Indian and North- Aboriginal peoples whose constitu- the application of s. 77(1) to the ern Affairs)46 is probably much more im- tional rights are infringed is an impor- Batchewana Band, or deal more gener- portant, in terms of both its practical and tant aspect of the justification test.42 ally with the application of s. 77(1) to all its constitutional significance. In reaching its conclusion that the bands affected by it. She decided that Corbiere involved a direct challenge treaty right to catch and trade fish to ob- the proper approach was to determine to a provision of the Indian Act47 dealing tain a moderate livelihood can be in- first whether s. 77(1) is unconstitutional with qualifications to vote for the chief fringed to take account of other partici- in its general application. Only if the an- and councillors of a band. Section pants in the fishery, the court in fact went swer to this question is no would it be 77(1) provides: beyond Gladstone. In that case the necessary to consider whether the sec- 77.(1) A member of a band who Heiltsuk Nation in British Columbia tion’s application to the Batchewana has attained the age of eighteen proved an Aboriginal right to take herring Band specifically is unconstitutional, years and is ordinarily resident on spawn on kelp in commercial quantities. given their special circumstances.52 the reserve is qualified to vote for a Lamer C.J., for the majority, held that One of the intervenors, the Lesser person nominated to be chief of the valid legislative objectives for infringe- Slave Lake Indian Regional Council, ar- band and, where the reserve for vot- ment of that right are not limited to con- gued that s. 25 of the Charter shields ing purposes consists of one sec- servation, and can include “the recogni- s. 77(1) from s. 15(1). Section 25 pro- tion, to vote for persons nominated tion of the historical reliance upon, and vides: as councillors. participation in, the fishery by non-Abo- 25. The guarantee in this Charter riginal groups.”43 However, in Gladstone Certain members of the Batchewana of certain rights and freedoms shall the Chief Justice explained that the rea- Indian Band in Ontario brought the ac- not be construed so as to abrogate son why the Heiltsuks’ right to herring tion, on behalf of themselves and all or derogate from any aboriginal, spawn does not have complete priority non-resident members, alleging that treaty or other rights or freedoms over non-Aboriginal fishing is that, unlike s. 77(1) violates s. 15(1) of the Cana- that pertain to the aboriginal peo- the right to fish for food in Sparrow,44 the dian Charter of Rights and Freedoms,48 ples of Canada including Heiltsuks’ right has no internal limit be- cannot be justified under s. 1 of the (a) any rights or freedoms that cause it is commercial in nature. But like Charter, and is therefore constitution- have been recognized by the the right in Sparrow, the right to fish in ally invalid. The facts revealed that 67.2 Royal Proclamation of October 7, the Marshall case does have an internal percent of Batchewana Band members 1763; and limit because only so many fish are re- lived off reserve in 1991. Between 1985 (b) any rights or freedoms quired for a moderate livelihood. The and 1991 the numbers of non-resident that now exist by way of land court’s conclusion in Marshall No. 2 members had risen dramatically, mainly claims agreements or may be so that, given that non-Aboriginal people as a result of Bill C-31,49 which conferred acquired. were participating in the fishery at the Indian status on persons who had lost time the right was created, the Mi’kmaq’s or were being denied it as a result of dis- L’Heureux-Dubé held that, while treaty right to fish has never been exclu- criminatory provisions that were previ- “rights or freedoms” in s. 25 is broader sive, is not a convincing explanation for ously in the Indian Act.50 This trend to- than “aboriginal and treaty rights” in allowing infringement of the right today ward non-residency is continuing.51 s. 35,53 and so may include statutory for the purpose of taking the participa- Madam Justice L’Heureux-Dubé de- rights, it had not been shown that tion of non-Aboriginal fishers into ac- livered a judgment that was concurred s. 77(1) provides rights or freedoms that count. The problem with the court’s rea- in by Gonthier, Iacobucci, and Binnie come under the protection of s. 25. In

48 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 her words, “the fact that legislation re- lates to Aboriginal people cannot alone The Corbiere decision also casts doubt bring it within the scope of the ‘other rights and freedoms’ included in on the constitutionality of other provisions s. 25.”54 Moreover, because s. 25 had not been shown to apply, she said that it of the Indian Act that make distinctions would be inappropriate to articulate, in related to residency on reserves. this case, a general approach to s. 25. The Corbiere decision therefore left some very important issues in relation to s. 25 undecided.55 They form part of a “discrete and in- the s. 1 analysis.59 Turning to the sec- Turning to s. 15(1) of the Charter, sular minority” defined by race and ond part of that analysis, she found a ra- L’Heureux-Dubé proceeded through the residence, and it is more likely that tional connection between that objec- three-stage analysis set out by Iacobucci further disadvantage will have a tive and restricting voting to reserve resi- J. in Law v. Canada (Minister of Em- discriminatory impact upon them. dents, as members living on reserve ployment and Immigration).56 She had Second, the distinction in question have a more direct interest in many of a no difficulty concluding that the first re- does not correspond with the char- band council’s functions than those liv- quirement—namely, differential treat- acteristics or circumstances of the ing off reserve. However, the minimal ment—was present because s. 77(1) claimants and on-reserve band impairment requirement in the s. 1 “draws a distinction between band members in a manner which “re- analysis was not met by s. 77(1), as it members who live on-reserve and those spects and values their dignity and was not shown that “a complete exclu- who live off-reserve, by excluding the difference”: Law, supra, at para. sion of non-residents from the right to latter from the definition of ‘elector’ 28.... Third, the nature of the inter- vote, which violates their equality within the band.”57 Although this dis- ests affected is fundamental. rights,” was necessary to give effect to tinction based on reserve residency is the valid legislative objective.60 not an “enumerated ground” under However, L’Heureux-Dubé added As the violation of s. 15(1) had not s. 15(1), she found it to be a new “analo- that her analysis at this third stage “does been justified under s. 1, L’Heureux- gous ground,” thereby meeting the sec- not suggest that any distinction between Dubé found s. 77(1) to be unconstitu- ond stage of the Law analysis. on-reserve and off-reserve band mem- tional insofar as it denies voting rights to However, while concluding that “off- bers would be stereotypical, interfere non-resident band members. reserve band member status” is an with off-reserve members’ dignity, or She then turned to the matter of the analogous ground not only insofar as conflict with the purposes of s. 15(1).”58 appropriate remedy. She decided first of s. 77(1) is concerned, but also “in any She pointed out that Parliament could all that a constitutional exemption that future case involving this combination legitimately treat on and off reserve would exempt only the Batchewana of traits,” L’Heureux-Dubé was careful members differently in situations where Band from application of the unconsti- not to make any “findings about ‘resi- that is appropriate—for example, where tutional portion of s. 77(1) was not ap- dence’ as an analogous ground in con- matters of purely local concern such as propriate, given that the invalidity ap- texts other than as it affects band mem- taxation on reserve or regulation of traf- plied generally to all bands. Nor would it bers who do not live on the reserve of fic are concerned. be appropriate for the court to “read in” the band to which they belong.” L’Heureux-Dubé accordingly con- voting rights for non-residents, as that Proceeding to the third stage of the cluded that s. 77(1) violates the right to would require a detailed scheme that Law analysis—namely, the requirement equality in s. 15(1) of the Charter. would allow them to be voters for some that the differential treatment be dis- Moreover, she held that this conclusion purposes but not others. Instead, criminatory—L’Heureux-Dubé found applies generally; it is not related to the L’Heureux-Dubé concluded that “the that it was in this case. After detailed ex- specific circumstances of the Batche- appropriate remedy is a declaration that amination of this issue, she summa- wana Band. She then considered the words ‘and is ordinarily resident on rized her reasons in a manner that drew whether the violation could be justified the reserve’ in s. 77(1) are invalid, and on her analysis at the second stage: under s. 1 of the Charter. She found that that the effect of this declaration of inva- The people affected by this distinc- the legislative objective behind lidity be suspended for 18 months.” The tion, in general, are vulnerable and s. 77(1)—namely, that “those with the suspension was to give the Canadian disadvantaged. They experience most immediate and direct connection government time to consult with the stereotyping and disadvantage as with the reserve have a special ability to people affected and to respond to their Aboriginal people and band mem- control its future”—is pressing and sub- needs in a way that respects equality bers living away from reserves. stantial, as required by the first part of Treaty rights, page 50

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 49 Treaty rights continued from page 49 rights, and to give Parliament an oppor- tunity to modify s. 77(2) as well, which, If resident band members can avoid L’Heureux-Dubé suggested, suffers from the same constitutional defect.61 taxation while non-resident band members McLachlin and Bastarache JJ., in their judgment in Corbiere, agreed with cannot, this situation would seem to fall L’Heureux-Dubé that s. 77(1) violates within the new analogous ground s. 15(1) of the Charter because it “makes a distinction that denies equal benefit or the court created in Corbiere. imposes an unequal burden” in a way that discriminates on an analogous ground.62 However, they emphasized that once accepted by the court, an the democratic process of elections is be open to claims to Aboriginal govern- analogous ground, like an enumerated necessary.” Accordingly, they found ance rights in the future.66 ground, will always be a marker of dis- that the violation of s. 15(1) equality The Corbiere decision also casts crimination, though legislation that dis- rights had not been justified. They doubt on the constitutionality of other tinguishes on that ground will not nec- agreed that the appropriate remedy was provisions of the Indian Act that make essarily be discriminatory—that depends to declare the words “and is ordinarily distinctions related to residency on re- on the context. resident on the reserve” in s. 77(1) to serves. For example, s. 87(1) exempts Accordingly, they said, “if ‘Aborigin- be constitutionally invalid, but sus- reserve lands and personal property of ality-residence’ is to be an analogous pended the implementation of that dec- Indians and Indian bands situated on ground (and we agree with L’Heureux- laration for 18 months. reserves from taxation. Given that the Dubé J. that it should), then it must al- The Corbiere decision will have a Supreme Court has held that reserve ways stand as a constant marker of po- dramatic effect on band council govern- residency is an analogous ground un- tential legislative discrimination, ments under the Indian Act. In First Na- der s. 15(1) of the Charter, this provi- whether the challenge is to a govern- tions like the Batchewana Indian Band, sion is now open to question, as the im- mental tax credit, a voting right, or a where a majority of band members live position of some taxes, like sales tax, pension scheme.”63 However, one still off reserve, the extension of even lim- can depend on residency in this con- has to determine “whether the distinc- ited voting rights to those non-resident text. If resident band members can tion amounts, in purpose or effect, to members will have a significant impact avoid taxation while non-resident band discrimination on the facts of the case.” on the politics and the power structure members cannot, this situation would Like L’Heureux-Dubé, McLachlin and in those communities. Whether the de- seem to fall within the new analogous Bastarache concluded that s. 77(1) dis- cision will affect Aboriginal govern- ground the court created in Corbiere. If criminates against non-resident band ments established outside the confines so, it would be up to a court to decide if members generally. of the Indian Act remains to be seen. In this differential treatment is discrimina- Having concluded that the residency both judgments in the Supreme Court, tory in the circumstances. requirement in s. 77(1) violates s. 15(1) the justices suggested that it would be Finally, there is the issue of services, of the Charter, McLachlin and Bastar- open to individual First Nations to such as health care, provided by the fed- ache considered the application of s. 1. present evidence that they have an ex- eral government to band members who Like L’Heureux-Dubé, they found a ra- isting Aboriginal right to restrict voting reside on reserves, but generally denied tional connection between the objec- rights. While these observations were by that government to non-resident tive of the legislation and residency, but made in the context of the Indian Act band members. In a federal govern- like her concluded that the requirement electoral provisions, they indicate that ment “Backgrounder” on the Corbiere of minimal impairment had not been the Court is of the opinion that there decision, this statement appears: met. “Even if it is accepted that some may be Aboriginal rights in relation to The Court was very clear that its de- distinction may be justified in order to governance that can take precedence cision relates only to the constitu- protect legitimate interests of band over the statutory regime in the Act.64 tionality of voting distinctions. It members living on the reserve,” they This may be an indication, like the refer- does not address any other issues, said, “it has not been demonstrated that ences to communal rights and Aborigi- such as the extension of entitle- a complete denial of the right of band nal decision-making authority in ments to off-reserve Band members members living off-reserve to partici- Marshall No. 2 and Delgamuukw v. or issues of federal or provincial ju- pate in the affairs of the band through British Columbia,65 that the Court will risdiction.67

50 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 However, while the court did not ad- 10 Ibid., at paras. 34-39. In R. v. Spar- Space for Aboriginal Governments” dress matters like the constitutionality row, [1990] 1 S.C.R. 1075, the Su- (1993) 19 Queen’s L.J. 95. of differential provision of services, it preme Court decided that the Aborigi- 18 See Derrickson v. Derrickson, did hold that reserve residency is now nal rights recognized and affirmed by [1986] 1 S.C.R. 285, at 303. an analogous ground for all purposes. s. 35(1) of the Constitution Act, 1982 19 R. v. Badger, above note 8, at para. Thus, the question whether provision can be infringed by legislation if the 41, as quoted in R. v. Sundown, of services on the basis of reserve resi- Crown can prove a valid legislative above note 2, at para. 24. dency is constitutional should depend, objective such as conservation, and like the voting rights in Corbiere, on can show that the Crown’s fiduciary 20 R. v. Marshall, [1999] 4 C.N.L.R. 161. whether that is discriminatory. If I were obligations to the Aboriginal people 21 R. v. Marshall, [1999] 4 C.N.L.R. 301. advising the federal government, I do in question have been respected. 22 R.S.C. 1985, c. F-14. not think I would be overly confident The Sparrow test was applied to a about the answer. treaty right to hunt in the context of 23 Treaty of Peace and Friendship en- the Alberta Natural Resources Trans- tered into by Governor Charles Law- fer Agreement, which contains a pro- rence on March 10, 1760, which the 1 R.S.C. 1985, c. I-5. vision identical to para. 12 of the Sas- trial judge accepted as applicable to 2 [1999] 2 C.N.L.R. 289. katchewan Agreement (see above the case. 3 R.R.S., c. P-1.1, reg. 6. note 5), in R. v. Badger, above note 8. 24 Lamer C.J. and L’Heureux-Dubé, Cory, and Iacobucci JJ. concurred. 4 Treaty 6, in Alexander Morris, The 11 R. v. Sundown, above note 2, at McLachlin J., Gonthier J. concur- Treaties of Canada with the Indians para. 46. ring, dissented. of Manitoba and the North-West 12 Above note 1. Territories (Toronto: Belfords, 25 Marshall No. 1, above note 20, at Clarke & Co., 1880), 351, at 353. 13 [1996] 4 C.N.L.R. 26 (S.C.C.), at para. 7. para. 87. 5 Entered into by the Saskatchewan 26 Ibid., at para. 8. and Canadian governments, and 14 R. v. Sundown, above note 2, at 27 See above notes 7 and 8 and ac- given constitutional force by the Con- para. 48. companying text. stitution Act, 1930, R.S.C. 1985, app. 15 Perhaps Cory J. meant that provin- 28 [1988] 2 C.N.L.R. 112, at 124-26. II, no. 26. Paragraph 12 provides: cial laws relating to conservation of 29 Marshall No. 1, above note 20, at 12. In order to secure to the Indi- game could infringe treaty rights paras. 13-14, citing R. v. Sioui, [1990] ans of the Province the continuance through the operation of para. 12 of 1 S.C.R. 1025, R. v. Badger, above of the supply of game and fish for the Natural Resources Transfer note 8, and R. v. Sundown, above their support and subsistence, Agreement, without reference to note 2, among other cases. Canada agrees that the laws respect- s. 88, as he had held in R. v. Badger, 30 Marshall No. 1, above note 20, at ing game in force in the Province above note 8. That case involved pro- paras. 10 and 43. from time to time shall apply to the visions of the Alberta Wildlife Act, Indians within the boundaries S.A. 1984, c. W-9.1, which were 31 Ibid., at para. 11. thereof, provided, however, that the clearly game laws within the mean- 32 Ibid., at para. 12, relying on Dickson said Indians shall have the right, ing of para. 12, whereas the regula- J.’s judgment in Guerin v. The which the Province hereby assures Queen, [1984] 2 S.C.R. 335, at 388. to them, of hunting, trapping and tions under which the accused had fishing game and fish for food at all been charged in Sundown were not 33 Marshall No. 1, above note 20, at seasons of the year on all unoccu- game laws as such. However, Cory para. 19. pied Crown lands and on any other suggested in Sundown, above note 2, 34 Ibid., at para. 35. At para. 44, Binnie lands to which the said Indians may at para. 45, that the regulations could relied on R. v. Sundown, above note have a right of access. relate to conservation of game, and it 2, as well as Simon v. The Queen, 6 R. v. Sundown, above note 2, at was in this context that he said that [1985] 2 S.C.R. 387, as authority that para. 8, following R. v. Horseman, infringement might be justified. to make an express treaty right to [1990] 1 S.C.R. 901. 16 Lamer C.J. suggested in R. v. Côté, hunt effective other rights can be im- 7 Being Schedule B to the Canada above note 13, at para. 87, that this is plied (in Sundown, the right to build Act, 1982 (U.K.), 1982, c. 11. an appropriate matter for Parliament shelters; in Simon, the right to carry 8 See R. v. Badger, [1996] 2 C.N.L.R. to consider. a gun and ammunition). 77 (S.C.C.). 17 See R. v. Sparrow, above note 10, 35 Marshall No. 1, above note 20, at 9 R. v. Sundown, above note 2, at and commentary thereon in Kent para. 52. paras. 27-33. McNeil, “Envisaging Constitutional Treaty rights, page 52

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 51 Treaty rights continued from page 51 36 For a similar expression of commu- men, and the children of those 60 Corbiere v. Canada (Minister of In- nal decision-making authority with women received status: for discus- dian and Northern Affairs), above respect to Aboriginal title to land, sion, see Canada, Report of the note 46, at para. 103 (emphasis in see Delgamuukw v. British Colum- Royal Commission on Aboriginal original). bia, [1997] 3 S.C.R. 1010, per Lamer Peoples, vol. 4, Perspectives and Re- 61 Section 77(2) provides: “A member C.J. at para. 115, commented on in alities (Ottawa: Minister of Supply of a band who is of the full age of Kent McNeil, “Aboriginal Rights in and Services Canada, 1996), 24-53. eighteen years and is ordinarily resi- Canada: From Title to Land to Terri- 51 Corbiere v. Canada (Minister of In- dent in a section that has been es- torial Sovereignty” (1998), 5 Tulsa J. dian and Northern Affairs), above tablished for voting purposes is Comp. & Int’l L. 253, at 285-91. note 46, per L’Heureux-Dubé J. at qualified to vote for a person nomi- 37 Above note 10. para. 30. nated to be councillor to represent 38 Above note 8. 52 Ibid., at para. 46. L’Heureux-Dubé that section.” On the meaning of “section” in this provision, see 39 [1996] 4 C.N.L.R. 65. pointed out that, if the court held s. 77(1) to be unconstitutional with s. 74(4) of the Act, providing that re- 40 Marshall No. 2, above note 21, at serves can be divided into electoral paras. 38 and 41. respect to the Batchewana Band rather than generally, the appropri- sections for voting purposes. 41 Ibid., at para. 42. ate remedy would be a constitu- 62 Corbiere v. Canada (Minister of In- 42 Ibid., at para. 43. tional exemption from the applica- dian and Northern Affairs), above 43 R. v. Gladstone, above note 39, at tion of the section to them. note 46, at paras. 4-6. para. 75. For critical commentary, see 53 See above notes 7 and 8 and ac- 63 Ibid., at para. 10. However, Kent McNeil, “How Can Infringe- companying text. McLachlin and Bastarache were careful to point out at para. 15 that ments of the Constitutional Rights of 54 Corbiere v. Canada (Minister of In- the situation of Aboriginal people Aboriginal Peoples Be Justified?” dian and Northern Affairs), above with respect to reserve residence is (1997) 8:2 Constitutional Forum 33. note 46, at para. 52. 44 Above note 10. In Sparrow the court unique, given the profound impor- 55 For analyses of s. 25, see Bruce Wild- tance and effect of what they called held that the Musqueams’ right to smith, Aboriginal Peoples and Sec- fish for food has to be given priority “reserve status”; “[t]hus no new wa- tion 25 of the Canadian Charter of ter is charted, in the sense of finding over commercial and sports fishing, Rights and Freedoms (Saskatoon: so if there are only enough fish for residence, in the generalized ab- University of Saskatchewan Native stract, to be an analogous ground.” their food fishery in a given year af- Law Centre, 1988); William Pentney, 64 L’Heureux-Dubé J. said a band could ter the requirements of conservation “The Rights and Freedoms of the challenge the application of the Act’s have been taken into account, they Aboriginal Peoples of Canada and electoral rules to it by demonstrating are entitled to the entire allowable the Constitution Act, 1982. Part I: The an Aboriginal or treaty right to restrict catch. Interpretive Prism of Section 25” voting rights: ibid., at para. 112. 45 See McLachlin J.’s dissenting judg- (1988), 22 U.B.C. L. Rev. 21. ment in R. v. Van der Peet, [1996] 4 McLachlin and Bastarache said that, 56 [1999] 1 S.C.R. 497, at para. 88. C.N.L.R. 177 (S.C.C.), especially at “[i]f another band could establish an paras. 306-316, where she ques- 57 Corbiere v. Canada (Minister of In- Aboriginal right to restrict voting,... tioned Lamer C.J.’s majority judg- dian and Northern Affairs), above that right would simply have prec- ment in R. v. Gladstone, above note note 46, at para. 57. edence over the terms of the Indian 39, in similar fashion. 58 Ibid., at para. 94 (emphasis in Act”: ibid, at para. 22. 65 See above note 36 and accompany- 46 [1999] 3 C.N.L.R. 19. original). ing text. 47 Above note 1. 59 Ibid., at para. 99. She relied on the approach to s. 1 established in R. v. 66 See also R. v. Pamajewon, [1996] 4 48 Part I of the Constitution Act, 1982, Oakes, [1986] 1 S.C.R. 103, and re- C.N.L.R. 164 (S.C.C.), and discus- above note 7. fined and applied in Egan v. sion of that decision in McNeil, 49 An Act to Amend the Indian Act, S.C. Canada, [1995] 2 S.C.R. 513; above note 36, at 281-85. 1985, c. 27. Eldridge v. British Columbia (Attor- 67 Canada, “First Nation Voting Regula- 50 For example, status was restored to ney-General), [1997] 3 S.C.R. 624; tions to be Amended After Consulta- Indian women who had lost it be- Vriend v. Alberta, [1998] 1 S.C.R. tions,” Backgrounder, December 17, cause they married non-Indian 493; M. v. H., [1999] 2 S.C.R. 3. 1999 (QL).

52 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 The Marshall decision as seen by an “expert witness”

e in Canada may not yet have BY STEPHEN PATTERSON sideration of the many ways in which W come to grips with the full import historical truth can be transmitted or and meaning of s. 35(1) of our constitu- Stephen Patterson is a professor of history communicated. at the University of New Brunswick. tion. It guarantees to aboriginal people Although the Supreme Court is well their existing aboriginal and treaty aware of the constitutional requirement rights, and that short clause carries in it to consult history, I suggest that the much more than words of legal import. [O]ur constitution process by which it carries out this con- It is packed with the stuff of history. It stitutional requirement is still a work in cannot be understood in its particulars requires that progress. The rules are vague, and with without reference to history. The cus- all respect, I would suggest that the rules toms and traditions that define the questions involving are inconsistently applied. In 1985, in rights of aboriginal people have a his- the Simon case involving a Mi’kmaq torical dimension requiring study and aboriginal and from Nova Scotia, the court accepted analysis according to recognized disci- Mr. Simon’s reliance on the Treaty of plinary standards. Treaties, written and treaty rights be 17 52 because the Crown had produced verbal, are historical artifacts. And im- resolved with no evidence to support its claim that the portantly, the customs and treaties that treaty had been extinguished by hostili- are protected by this section are as nu- reference to both ties. The court had been presented merous as the hundreds of First Nations piles of historical documents but no ex- found in Canada today. There is enor- history and law. pert testimony. The decision said that it mous diversity, none of which can be was impossible for the court to deter- comprehended outside of the historical There is no longer a mine what was going on along the east dimensions of time and place. coast of Nova Scotia in 1753. If I may in- The truth of this observation has choice in the matter. terpret this, the court found that the his- been well recognized by Canada’s torical record did not speak for itself. As courts. The Supreme Court in Simon, I read Simon, it warns that raw historical Sioui, Sparrow, Van der Peet, and text. When, as Mr. Justice LaForest says data must be rendered intelligible by Delgamuukw—to name only some of in Delgamuukw, the understanding of someone capable of interpreting it, and the better known cases—has confirmed certain issues is “highly contextual,” he that the court itself will not undertake to the importance of history in determin- is telling us that a most detailed consid- do this on its own. To me, the Simon ing the nature and extent of aboriginal eration of historical information is decision is a wise acknowledgment by and treaty rights. Determining the date needed to solve the problem. the court that, when it comes to inter- of first contact or the time of the asser- In a word, our constitution requires preting history, the court has limits. Yet tion of British sovereignty requires his- that questions involving aboriginal and the recent Marshall decision raises torical knowledge. Ascertaining what treaty rights be resolved with reference questions about such limits, and makes customs or traditions are integral to the to both history and law. There is no me believe that the court needs to de- culture of an aboriginal people can be longer a choice in the matter. As I read cide how it will handle historical ques- done only with reference to history. the constitution, this clause uniquely tions when the evidence provided by Analyzing a treaty to determine the in- constrains the courts, and forces on and through the lower courts is inad- tent of the parties requires an examina- them a constitutional requirement that equate or deficient in some respect. tion of historical context, and perhaps they devise a proper method for collect- Let me outline very briefly some as- even the reconstruction of a substantial ing historical evidence, reading it and pects of the Marshall case to illustrate chunk of history reaching well beyond interpreting it in a fashion that does jus- what I think are some difficulties the the treaty itself. When the court calls tice both to the facts and their full his- courts have in using history to resolve upon us to consider what it calls “extrin- torical context, while at the same time questions of aboriginal and treaty rights. sic evidence,” it is, in fact, requiring a affording a fair hearing of conflicting The focus in the case was on treaties broader examination of historical con- views of that evidence, and a full con- The Marshall decision, page 54

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 53 The Marshall decision continued from page 53 signed by the Mi’kmaq in 1760 and 1761. All of the natives in the region—Mi’kmaq, [B]ad history cannot make good law. Maliseet, and Passamaquoddy—had been fighting against British colonizers The Marshall case represents both for years, and had been particularly ac- tive in colonial wars as allies of France. an honest attempt to blend history and law, After 1758, when France lost its foothold and an illustration of some of the problems in the region, all of the native peoples gradually came in to treat with the Brit- yet to be resolved in doing so. ish. The Maliseet of the St. John River valley were the first to do so, and their treaty was finalized in February of 1760. The Mi’kmaq, a distinctly different peo- such full evidence for the treaty with the ferred to the British in Nova Scotia as ple, lived along the east coast of present- Cape Breton Mi’kmaq because Mr. “your fellow subjects.” In future, he said, day New Brunswick, and throughout Marshall is a member of the Membertou natives and non-natives would fight on present Nova Scotia. They had no cen- Reserve on Cape Breton Island. This is the same side, as brethren, “that your tral government or common chief, but his treaty, so to speak, and the minutes cause of war and peace may be the were organized in about a dozen sepa- of the treaty ceremony form what the same as ours under one mighty Chief rate communities or bands, each cen- Supreme Court calls “extrinsic” evi- and King, under the Same Laws and for tred on a river system or bay that de- dence, or in other words, the historical the same Rights and Liberties.” fined its hunting and fishing territory. context that might help us better under- As I read the document, Belcher’s Recognizing this decentralized struc- stand the intent of the parties. Because words and those of the Cape Breton ture, the British decided to treat with it seemed to be most relevant to the chief provide written evidence of the in- each community separately, and that is question of Mr. Marshall’s treaty rights, tention of the two parties to the treaty the reason we have a series of Mi’kmaq it became an important aspect of my that was signed on June 25, 1761. They treaties, made over a period of months testimony. I was struck, for example, seemed to have a meeting of minds. As beginning in March 1760. that the Cape Breton chief, speaking for additional proof of this, much more evi- The written texts of all the Mi’kmaq all of the others, said: “our intentions dence was presented at trial to show treaties were identical. They began with were to yield ourselves up to you with- that in the years thereafter, the two par- what the British called a “submission.” out requiring any terms on our part.” ties behaved in a manner consistent The Mi’kmaq acknowledged the sover- They made no demands and set no with the notion of a common under- eignty and authority of the British conditions. In his lengthy speech, care- standing. The treaty partners agreed Crown in Nova Scotia and submitted to fully translated by someone who spoke that the Mi’kmaq were British subjects that authority. They promised not to in- the Mi’kmaq language, he made not a and, as such, the Mi’kmaq were to be terfere with British settlers and, where single reference to trade. He concluded governed and also protected by the pre- there were misunderstandings, to “ap- thus: “As long as the Sun and Moon vailing laws of Nova Scotia. A Mi’kmaq ply for redress according to the laws es- shall endure... so long will I be your chief petitioning in 1825 pointed out tablished in his said Majesty’s Domin- friend and ally, submitting myself to the that, despite all of the problems confront- ions.” They also promised not to trade Laws of your Government, faithful and ing him and his people, he had always with the French but rather to confine obedient to the Crown.” been “unwilling to contend against the their trade to British truckhouses to be Nova Scotia’s Chief Justice, Jona- laws which he had pledged himself by established for that purpose. than Belcher, spoke for the Crown on treaty to obey.” But, in addition to the written docu- this occasion. He said “the Laws will be My interpretation of this evidence ments, we also have minutes of discus- like a great Hedge about your Rights and did not go unchallenged at trial. De- sions that took place at the time some of properties.” My interpretation of this fence witnesses presented a differing the treaties were made. The most exten- was that the Mi’kmaq would be treated view, as they should. The process re- sive record is of the treaty ceremony of like all other subjects of the British quires that courts see the evidence from June 25, 1761, at which four Mi’kmaq Crown. Aboriginals would enjoy the as many angles as possible. But my bands, including the Cape Breton com- freedoms all British subjects enjoy, and point here is that the evidence was ex- munity, made their treaty with the Brit- the laws would protect them. Impor- tensive, it was well canvassed at trial, the ish. It seemed fortunate that, in this case tantly, moreover, Belcher put the essen- arguments were heard, and on this ba- involving Donald Marshall Jr., we had tial point into clear language. He re- sis the trial judge made important find-

54 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 ings of fact. And because he also largely accepted my interpretation, it is worth The full evidence would have included my summarizing it here. My interpreta- tion is that the treaties of 1760-61, unlike reports from British soldiers describing earlier treaties, did not contain British promises to the Mi’kmaq nor specifi- their initial contacts with the Maliseet at cally guarantee rights. There is not a the mouth of the St. John River in the fall word about hunting, fishing, or trading as a right. All of these may be implied, of 1759. Here the Maliseet took an oath but they need not be the implications of the treaty itself. Rather they are the logi- of allegiance to the British Crown, cal implications of the rule of British law, the common rights of all British subjects effectively settling the issue of peace and that, in the context of the time, were per- missive rights rather than constitution- submission, long before they went to ally entrenched rights. They were, for everyone, rights limited by whatever Halifax to sign a formal treaty. laws and regulations were in place to maintain order, peace, harmony, secu- rity of the person and of property, and not explicitly stated in any of the trea- be most in contention, and the treaties the greatest good for the greatest ties, it was implicit in them. The proof, of 1760 and 1761. Interestingly, the two number. In my reading of the historical said the majority, was to be found in the expert historians who testified in Mr. evidence, there is not a hint in any of extrinsic evidence related to the Mali- Marshall’s defense carried the context these treaty negotiations in 1760 and seet negotiations, specifically the min- even further. Far from narrowing the 1761 that the Mi’kmaq, while being wel- utes of their meetings with the governor focus of discussion to February 1760, comed as British subjects, were at the and council in February 1760. In these they argued that New England treaties same time granted an exemption from negotiations, says the majority, the Mali- going back to the 1690s provided im- British law. seet demanded a trading right as a con- portant clues to our understanding of Let us turn now to the case as heard dition of their signing the treaty. The both British policy and native experi- by the Supreme Court. To my great sur- British, allegedly fearing the power of ence in dealing with Europeans. It was prise, both the hearing and the majority the aboriginals and eager to bring about weeks into the trial before Mr. Marshall decision revolved not around Mr. an immediate peace, promised such a focused his defence on the treaties of Marshall’s treaty, the treaty of June 25, right in exchange for the treaty. 1760 and 1761. Even then, the Maliseet 1761, and its substantial extrinsic evi- It is my observation that the Su- treaty was given no special attention. dence, but rather around the first treaty preme Court’s ultimate decision fo- It is my observation that Mr. Mar- signed in February 1760, the Maliseet cused on an episode in the treaty pro- shall’s reliance on the Maliseet negotia- treaty. I was surprised because it ap- cess that was not a central aspect of tions of February 1760, as the crux of his peared to me that the Supreme Court’s testimony at the original trial in provin- defence, was advanced first at the Su- highly focused attention on the events cial court, and it was certainly not part preme Court level. This was done by ar- of February 1760 had no parallel in the of Mr. Marshall’s original defence. He gument. The evidentiary base for exam- lower courts. The Maliseet, after all, are originally cast his net widely, claiming ining the question was limited. It had a distinctly different people from the rights under many treaties, especially not been extensively canvassed at trial. Mi’kmaq, and Mr. Marshall is a Mi’kmaq. on the liberal promises of hunting, fish- The majority of the Supreme Court Nevertheless, Mr. Marshall now ar- ing, and trade in the treaty of 1752, the panel decided that the trial judge had gued, through his counsel, that his treaty relied upon by Mr. Simon several erred in law for not examining the ex- treaty right to trade was derived from a years ago. The Crown had to respond trinsic evidence related to the Maliseet British promise to the Maliseet. Because equally broadly in order to respond to treaty. It is not my place to defend the the Maliseet treaty became the model any and all possibilities in what ap- trial judge, but my observation is that he for treaties with the Mi’kmaq, presum- peared to be a very unspecific defence. dealt with the evidence that was placed ably anything promised the Maliseet The Crown’s case was designed to il- before him, and that a full examination was equally promised to the Mi’kmaq. lustrate the rather extensive history of of the extrinsic or contextual evidence The majority of the Court essentially ac- over a dozen treaties signed between related to the Maliseet treaty was not led cepted this reasoning and determined 1725 and 1779, with special emphasis by either the defence or the Crown. that, while the native right to trade was on the treaty of 1752, which seemed to The Marshall decision, page 56

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 55 The Marshall decision continued from page 55 That evidence was not before the court, perhaps because no one had at that Faced with contrary views from a minority time determined that it was the crux of the issue. At least no one openly said of the court, the majority argued... that it that it was. What is most alarming is that there is was the Indians who “first requested more historical evidence on the back- truckhouses. The limitation to government ground of the Maliseet treaty than was led at trial. The full evidence would have trade came as a response to the request for included reports from British soldiers describing their initial contacts with the truckhouses, not the other way around.” Maliseet at the mouth of the St. John River in the fall of 1759. Here the Maliseet took an oath of allegiance to the British Crown, effectively settling the this Maliseet demand is presented as “a side pursued it. Rather than fill in the issue of peace and submission, long be- positive Mi’kmaq trade demand,” al- gaps itself, the court might well have fore they went to Halifax to sign a formal though there is not a piece of evidence phrased unresolved issues as historical treaty. The evidence would also have in- to suggest that the Mi’kmaq ever made questions. Did the Maliseet first raise cluded the orders that went out from such a demand. According to the major- the idea of truckhouses? Did the Mali- Halifax in reply: along with the instruc- ity of the court, it was aboriginals who seet demand trading rights as a condi- tion to bring native chiefs back to Hali- first raised the matter of special tion of their making peace? Did the fax to sign a formal treaty went a pro- truckhouses as the place where the Mi’kmaq likewise demand trading posal from British officials to set up a trade should take place, not the British rights? Were the unwritten promises to truckhouse at the mouth of the St. John who sought to confine trade to the Maliseet, as identified by the major- River to facilitate trade with the natives. truckhouses as a means of preventing ity, communicated to the Mi’kmaq and This came several weeks before the aboriginal trade with the French. It did they therefore become unwritten treaty discussions in Halifax. The avail- therefore was a condition of peace, and promises to the Mi’kmaq? able evidence shows that when the British response was effectively a All of these are historical questions Maliseet delegates arrived in Halifax, promise that the honour of the Crown for which evidence is available. Having they confirmed that they wished an op- demands must be upheld. identified the crucial questions, it seems portunity to trade, effectively taking the These assertions placed the majority to me that the Supreme Court might British up on their offer of a of the Supreme Court in the position of have ordered the matter back to the trial truckhouse. This evidence suggests answering important historical ques- court where expert historical evidence that trade was not a demand of the tions on the basis of very limited evi- might have been called in order to an- Maliseet nor a condition of their treat- dence before it. Faced with contrary swer these questions. Justice did not ing with the British, but simply a re- views from a minority of the court, the demand that the Supreme Court itself quest for an opportunity to trade. But majority argued in paragraph 30 that it grope with inadequate findings of fact, this evidence was not led at trial, or at was the Indians who “first requested nor that it compensate for those defi- least was not presented in detail, and it truckhouses. The limitation to govern- ciencies by attempting to reconstruct a was not available to the Supreme ment trade came as a response to the complex history. Court, perhaps for the very reason that request for truckhouses, not the other But such comments deal with the Mr. Marshall is a Mi’kmaq and details way around.” Marshall decision on the narrow about a treaty the British made with a My response to these findings is that grounds on which it turned—the mean- distinctly different people seemed, at the court needs to rethink what it means ing and significance of the Maliseet trial, to be somewhat peripheral. by “extrinsic evidence.” From a histori- treaty. A full critique of the decision What should the Supreme Court do an’s viewpoint, it means the broad con- would go much further, as the following in a matter such as this? The majority in text of an event, and it should include all brief comments might indicate. For ex- Marshall decided that the evidence be- the available historical information that ample, the court determined that the fore it was sufficient to resolve the issue. is germane to the topic. In this instance, Mi’kmaq treaties of 1760-61 were local They found that the Maliseet demanded there is historical information that was treaties of local application. Presumably a right to trade as a condition of the not led at trial, or at least not examined each protects the rights of successor treaty. By paragraph 52 of the decision, and explained at trial, because neither The Marshall decision, page 59

56 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 The importance of the Marshall decision

nyone who reads newspapers or BY TOM FLANAGAN dence about their occupancy of land Awatches television knows that the before the time when white settlers Supreme Court’s decision in the Mar- Tom Flanagan is a professor of were present to write down their obser- political science at the University of Calgary. shall case has touched off heated quar- vations. In contrast, treaty cases focus rels over the allocation of Atlantic fish on the interpretation of a text, and stocks, leading to problems that are far aboriginal oral traditions recount from being resolved. In the longer run, The courts in the events that are also recorded in con- Marshall also has implications that are ventional documents. Indeed, aborigi- equally far-reaching for the interpreta- last decade have nal peoples had already become at tion of treaties all across Canada. repeatedly looked least partially literate when the later Both the majority and minority opin- treaties were signed. Be that as it may, ions in Marshall agreed in explicitly repu- at historical sources there is little doubt that the courts will diating the rule of interpretation for trea- read Delgamuukw and Marshall to- ties proposed by Justice Estey in the in interpreting gether and will begin to make more ex- Horse case (1988), where he wrote that tensive use of aboriginal oral traditions “extrinsic evidence is not to be used in the meaning of in interpreting treaties. the absence of ambiguity” in the wording The confluence of Delgamuukw of a treaty. It is not surprising that Estey’s treaties, even and Marshall will pose novel chal- rule of interpretation has been over- lenges both to the judicial process and turned; it was always unpopular with abo- where the treaty to the understanding of treaty rights. riginal advocates, and it has never been text seemed plain Aboriginal oral traditions about the consistently followed, not even in the meaning of treaties are often startlingly case in which it was promulgated. The enough on its face. different from what the written text ap- courts in the last decade have repeatedly pears to say. Let me give three exam- looked at historical sources in interpret- ples from current treaty litigation in Al- ing the meaning of treaties, even where berta—cases with which I am familiar as proof of historical facts, the laws the treaty text seemed plain enough on because of my work as a historical con- of evidence must be adapted in or- its face. In that sense, Marshall was only sultant. I am sure that hundreds of der that this type of evidence can a more adventurous application of the similar instances could be adduced be accommodated and placed on current judicial approach to the interpre- wherever treaties have been signed in an equal footing with the types of tation of treaties. Canada. historical evidence that courts are Marshall, however, did not deal familiar with, which largely consists with aboriginal oral traditions. The Su- BENOIT of historical documents. preme Court used conventional histori- No treaty mentions the topic of taxa- cal sources to support the proposition The chief justice was concerned tion. However, the commissioners sent that the parties had an oral under- that, in cases like Delgamuukw, involv- by the federal government to negotiate standing of the treaty not expressed in ing facts from a time when no written Treaty 8 (1899) found many aboriginal the written text. The true importance of records existed, it might be impossible people “impressed with the notion that Marshall for the future does not for native plaintiffs to make out much the treaty would lead to taxation.” They emerge until it is “read together” (as of a case if oral traditions were not therefore reassured the crowd assem- lawyers like to say) with the Supreme given independent weight. bled at Lesser Slave Lake that Treaty 8 Court’s dicta about aboriginal oral tra- There are, to be sure, some impor- “did not open the way to the imposi- ditions in Delgamuukw (1997). In that tant differences between Delgamuukw tion of any tax.” At the same time, they case, Chief Justice Antonio Lamer laid and treaty litigation. In Delgamuukw, emphasized that “whether treaty was down the following principle: there was no text to interpret because made or not, they were subject to the Notwithstanding the challenges there was no treaty; the plaintiffs were law.” The government of Canada has created by the use of oral histories offering their oral traditions as evi- The importance of Marshall, page 58

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 57 The importance of Marshall continued from page 57 always interpreted these reassurances as meaning that Treaty 8 in itself did [T]here is little doubt that the courts not impose any taxes but that Canada retained legislative power to levy taxes will read Delgamuukw and Marshall upon status Indians or to grant tax ex- emptions, as has been done under the together and will begin to make more Indian Act. Now the plaintiffs in the extensive use of aboriginal oral Benoit case are arguing that the com- missioners’ promises are an enforce- traditions in interpreting treaties. able part of the treaty, and that those promises must be interpreted in the light of aboriginal oral traditions that say, in the words of one informant, that ity to hunt, trap, fish and carry out our life. The mountains, the lakes and the “tax was prepaid.” traditional practices.” other areas of the land which the Plains Cree considered to be unsuited RIOALTO SAMSON to agriculture would be left as their ter- According to Treaty 8 (and all the The Samson case has been widely ritory. The ploughshare or plough other numbered treaties), “the said In- publicized because the plaintiffs, the blade metaphor is used by Cree speak- dians do HEREBY CEDE, RELEASE, Samson Cree Nation of Hobbema, al- ers to describe this understanding of SURRENDER AND YIELD UP TO THE lege that the government has misman- sharing by which the whites could use government of the Dominion of aged their natural resource revenues only what was necessary to sustain Canada, and for Her Majesty the for decades, and they are claiming themselves. Queen and Her successors for ever, all over a billion dollars in compensation. These three cases, and many others their rights, titles and privileges what- There is also an important treaty-inter- like them, were all underway before soever” to the lands described in the pretation aspect to the case. Treaty 6 the Supreme Court handed down its treaty, although “they shall have the has a land-surrender clause similar to decision in Marshall. Now, however, right to pursue their usual vocations of the one just cited from Treaty 8. Plain- counsel for plaintiffs in these cases will hunting, trapping and fishing through- tiffs, however, say they only surren- argue that Marshall, together with out the tract surrendered... saving dered the surface of the land, which Delgamuukw, raises the credibility of and excepting such tracts as may be would seem to make them still owners aboriginal oral traditions. It seems that required or taken up from time to time of huge amounts of oil and natural gas for a long time to come, the litigation for settlement, mining, lumbering, beyond the boundaries of their re- community—judges, lawyers, expert trading or other purposes.” Alberta has serve. witnesses, as well as the parties them- always interpreted these words to Elders of Treaty No. 6 will testify that selves—will be grappling with ques- mean that, because aboriginal title has a fundamental basis of the treaty was tions to which at present there are no been surrendered, the province has that the Plains Cree would share the clear answers. To mention only a few: the unfettered ability to grant tenures land with agricultural or farming set- • Who is a credible oral informant? upon Crown lands, even though abo- tlers. However, Treaty No. 6 did not Any band member? Any elder? riginal people may still hunt, fish, and provide for a surrender of any right in Someone whose ancestors were trap there. Plaintiffs in the RioAlto case the land beyond an ability to enjoy a present at treaty negotiations? now say their approval must be ob- plough’s depth to permit white settlers • How does one assess the credibil- tained before the province can allow to till the surface of the soil in order to ity of oral traditions passed down the cutting of seismic lines on so-called be able to farm and feed themselves. over several generations? How traditional lands where band members The Cree belief is that the land, in the much error can be expected to hunt and trap, even though these are sense of the whole country or island of creep in through the process of not reserve lands. According to the Canada, belongs to the Creator. The intergenerational transmission? plaintiffs’ oral tradition, “our people Cree understanding was that the Euro- • How does one decide between have always naturally understood [the peans or white settlers who pursued oral traditions that conflict with one treaty] to mean that the Crown would their different way of life on lands another, as when two different abo- respect our traditional ways and not where crops could be grown would be riginal communities both claim to undertake or approve any activity sharing them with Plains Cree who have used and lived upon a certain which would adversely affect our abil- were following the traditional way of territory? Oral tradition is not a

58 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 monolithic concept. There is no vide information to resolve ambigu- struggles over control of land and natural single oral tradition; rather, there ity but rather directly contradict the resources everywhere in Canada will are many oral traditions, which wording of treaties and statutes? come to outweigh greatly the value of sometimes contradict one another. Donald Marshall’s 463 pounds of eels, or • What weight should be given to As these questions are gradually dealt even the tons of crab and lobster now at oral traditions that do not just pro- with, the importance of Marshall for stake in the Atlantic fishery.

The Marshall decision continued from page 56 communities in territories approximat- ing the territories of the original signing [I]f the court agrees that these are local group. (This at least is the conclusion drawn by government agencies who are treaties, yet in wording they are identical, attempting to implement the decision.) Yet the anomaly of the majority decision it would be logical to assume that is that it was not based on an examina- what makes each a distinctive treaty is tion of the Cape Breton treaty that pre- sumably would protect Mr. Marshall’s its context, including whatever extrinsic rights, but rather on a Maliseet treaty and the first of the Mi’kmaq treaties, evidence there is of oral agreements. both signed months before the Cape Breton treaty. Moreover, Pomquet Har- There was such an oral agreement in bour, the location of Mr. Marshall’s eel fishing, is not on Cape Breton Island, the Cape Breton treaty negotiation. but rather on the Nova Scotia mainland at least 50 kilometers from Cape Breton. Effectively, the Court did not examine Mi’kmaq treaties were identical simply as expert witnesses. The historians did either the local treaty or the relevant ter- because of their written form. Does far more than recite facts; they provided ritory of Donald Marshall Jr.’s commu- this not equally suggest that the extrin- their professional skill in interpreting nity, the Membertou Reserve on Cape sic evidence surrounding the Maliseet difficult material, and they explained Breton Island. treaty has no relevance to the Mi’kmaq the methods they employed in coming Second, if the court agrees that treaties unless it can be demonstrated to the conclusions they made. Both these are local treaties, yet in wording that the Mi’kmaq raised similar con- sides, perhaps, provided far more than they are identical, it would be logical to cerns? If each was in fact a good faith the courts either needed or wanted, and assume that what makes each a dis- negotiation, does each not have to be it may well have been reasonable for the tinctive treaty is its context, including examined in its full context to deter- Supreme Court to narrow the focus as it whatever extrinsic evidence there is of mine what made it a local treaty of lo- did in its final decision. But in doing so, oral agreements. There was such an cal application? the court could have asked for more evi- oral agreement in the Cape Breton There is a constitutional requirement dence in its fullest historical context, and treaty negotiation: a British promise that aboriginal and treaty rights cases sent questions back to a trial court if the that the Mi’kmaq present on this occa- draw on history as well as law. My argu- evidence at hand was insufficient. Mar- sion could practise their Roman Ca- ment is that the two are equal, and shall suggests that the process by which tholicism and that the British would meeting the constitutional test requires history is incorporated into aboriginal help acquire a suitable priest for them. the application of the highest profes- and treaty rights decisions still requires This is what was most important to the sional standards of both disciplines. In some attention. Among other matters, Cape Breton chief. The British willing- a word, bad history cannot make good the court especially needs to rethink ness to listen to such a request and to law. The Marshall case represents both what it means by “extrinsic evidence.” make a promise in reply suggests that an honest attempt to blend history and And it needs to provide clearer links be- they recognized the decentralized pol- law, and an illustration of some of the tween centuries-old treaties and their ity of the Mi’kmaq and the distinctive problems yet to be resolved in doing so. native beneficiaries in the present. The voices of each group. If oral agree- At trial, both the Crown and the de- object, surely, is to ensure that the high- ments are equally part of a treaty, then fence, drawing on the lesson of the est standards of legal and historical in- one must interpret each in its own con- Simon decision, presented hundreds of terpretation are afforded Canadians text and reject the notion that all of the documents through historians serving who rely on s. 35(1) for protection.

Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 59 Defence under attack continued from page 35 political correctness, or by the hue and pect of the legislation to fall below a tion at What Cost?” 28 C.R. (5th) cry of the public for protection from vio- constitutionally acceptable level. This 275, at 277-78. lent crime. Weak legal reasoning will di- was in relation to third-party records 18 Manitoba (Attorney General) v. Met- minish the rights not only of the un- in the possession of the Crown. ropolitan Stores (MTS) Ltd., [1987] popular accused but also those of all 9 Justice Bastarache wrote for the ma- 1 S.C.R. 110. accused, including the innocent. jority, including Justices L’Heureux- 19 Cited at para. 176 of Stone. Dubé, Gonthier, Cory, and McLachlin. 20 The only analogy that comes to A spirited dissent was written by Jus- 1 (1999), 139 C.C.C. (3d) 321 (S.C.C.). mind is in relation to identification, tice Binnie on behalf of himself, 2 (1999), 134 C.C.C. (3d) 353 (S.C.C.). where the trier of fact is sometimes Lamer, Iacobucci, and Major. 3 (1999), 132 C.C.C. (3d) 225 (S.C.C.). warned of the “inherent frailties” of 10 Stone, paras. 173-81. 4 (1995), 103 C.C.C. (3d) 1 (S.C.C.). identification evidence, or that iden- 11 R. v. Parks (1992), 75 C.C.C. (3d) tification evidence has on a number 5 Sections 278.2(2) and (3) 287 (S.C.C.). of occasions proven to be errone- 6 Section 278.4(3). The “insufficient 12 See David Paciocco’s excellent arti- ous. However, the preferable view is grounds” section was upheld by the cle, “Death by Stone-ing: The De- to instruct the jury of the need for court based on an interpretation that mise of Simple Automatism,” 26 caution about identification evi- permitted the trial judge to make a C.R. (5th) 273. See also R. v. dence in the circumstances of the finding of likely relevance where any Balenko, [2000] Q.J. 717. particular case. R. v. Olbey, [1971] one of the listed assertions was made 13 Justice Cory wrote for the majority, 4 C.C.C. (2d) 103 (Ont. C.A.). and supported by the required evi- joined by Justices L’Heureux-Dubé, 21 See notes 12 and 17 above, as well dentiary or informational foundation. Gonthier, McLachlin, Iacobucci, as R.J. Delisle, “Stone: Judicial Activ- However, see the disappointing deci- and Bastarache. Justice Major ex- ism Gone Awry To Presume Guilt,” sion of the Ontario Court of Appeal, pressed the minority view, shared 24 C.R. (5th) 91. R. v. P.E., [2000] O.J. no. 574 (C.A.), by Chief Justice Lamer (as he then where the court held that statements 22 [2000] B.C.J. no. 235 (C.A.). was) and Justice Binnie. to a therapist touching on the issues 23 See Editorial Note, “Rewriting Auto- in the case, close in time to the deci- 14 Smith, para. 100. matism” (1999), 4 Can. Crim. L.R. 119. sion to press charges, did not meet 15 Hunter v. Southam (1984), 14 C.C.C. 24 It is not clear from the judgment the threshold of likely relevance with- (3d) 97 (S.C.C.), at 105-6. whether the court had the benefit of out more. 16 Debra McAllister, Taking the Char- argument on the constitutionality of 7 Section 278.5(2). ter to Court (Toronto: Carswell, reversing the burden of proof. 8 Chief Justice Lamer (as he then 1999), at 2-7. 25 R. v. Ruzic, [1998] S.C.C.A. no. 504. was), was the sole dissenter in Mills. 17 Don Stuart, “Mills: Dialogue with (The author is co-counsel on this However, even he found only one as- Parliament and Equality by Asser- appeal.)

FROM THE EDITORS For further information, contact he papers in this volume were originally presented at the 3rd Annual TCanada Watch Constitutional Cases Conference, held at Osgoode JOANNE RAPPAPORT Hall Law School of York University on April 7, 2000. The Conference was Centre for Public Law attended by 125 registrants from six provinces, along with a number of and Public Policy international participants, including six judges from the Russian PHONE Constitutional Court. (416) 736-5515 Planning is underway for the 4th Annual Canada Watch Constitutional Cases Conference, which will examine the Supreme Court FAX of Canada’s constitutional decisions released in the 2000 calendar year. (416) 650-4321 The conference will be held at Osgoode Hall Law School of York E-MAIL University on April 6, 2001. The keynote speaker will be Chief Justice Beverley McLachlin of the Supreme Court of Canada.

60 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3