Justification, Community and Judgment in Section 7 of the Canadian Charter

MAKING SENSE OF WHO WE ARE: JUSTIFICATION, COMMUNITY AND JUDGMENT IN SECTION 7 OF THE CANADIAN CHARTER

Geoffrey Baines Conrad Faculty of Law McGill University February 2019

A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of

DOCTOR OF CIVIL LAW

ã Geoffrey Baines Conrad, 2019 McGill University ABSTRACT/RÉSUMÉ

The principle of proportionality dominates Le principe de proportionnalité domine la the theory and practice of constitutional théorie et la pratique du contrôle judiciaire de rights adjudication around the world. Many l’action étatique qui porte atteinte aux droits authors seek to explain and defend constitutionnels. Plusieurs auteurs expliquent proportionality review for the obligation it et défendent ce modèle de contrôle judiciaire imposes on the state to substantively justify en insistant sur l’obligation qu’il impose à every constitutional rights limitation. On this l’état de justifier toute atteinte à un droit view, the requirement of substantive constitutionnel eu égard à des raisons justification is the essence of proportionality substantielles. Cette perspective fait du review and the source of its normative appeal. critère de justification substantielle l’essence However, the academic literature that lauds même du modèle judiciaire fondé sur la proportionality analysis for promoting a so- proportionnalité et son principal attrait called “culture of justification” suffers from a normatif. Or, la doctrine qui louange le shortcoming. It does not pay sufficient modèle de la proportionnalité en raison de la attention to the importance of local practices « culture de justification » qu’il promeut of legal argument and disagreement over souffre d’une lacune. Elle ne tient pas compte what constitutes a persuasive justification. suffisamment de l’importance des pratiques These omissions are especially striking given locales d’argumentation juridique, nie de la that contemporary justice debates are beset possibilité de désaccord sur ce qui constitue by uncertainty about who counts, what values une justification convaincante. Ces omissions matter, and how disagreements ought to be sont d’autant plus frappantes étant donné les resolved. Mindful of those shortcomings, the nombreuses incertitudes qui pèsent sur les author examines the practices of justification débats contemporains sur la justice. Celles-ci associated with one concrete manifestation of concernent les personnes et les valeurs constitutional rights adjudication: the substantielles dont on devrait tenir compte, et interpretation and application of the la manière de résoudre ces différends. principles of fundamental justice enshrined in Conscient de ces lacunes, l’auteur examine section 7 of the Canadian Charter of Rights les pratiques justificatives caractéristiques and Freedoms. The author argues that the d’un contexte concret de l’exercice du ostensibly rational and objective standard of contrôle judiciaire : celui de l’interprétation justification currently associated with the et l’application des principes de justice principles against arbitrariness, overbreadth fondamentale reconnues par l’article 7 de la and gross disproportionality, which mimics a Charte canadienne des droits et libertés. logic of proportionality, is shaped by L’auteur argumente que la norme de contingent historical and jurisprudential justification supposément objective et factors, and is linked closely with judicial rationnelle que l’on associe désormais aux understandings of community. principes de justice fondamentale s’opposant au caractère arbitraire, à la portée excessive et à la disproportion totale de l’action étatique, qui correspond à une logique de proportionnalité, est influencée par des facteurs historiques et jurisprudentielles fortuits. Au surplus, cette norme est étroitement liée à l’appréciation par les juges de l’identité de la collectivité.

ii Those factors lead judges hearing cases Compte tenu de ces facteurs, les juges qui involving principles against arbitrariness, tranchent des différends reliés aux principes overbreadth and gross disproportionality to ci-dessus ont tendance à retenir des privilege justifications that meet a justifications qui répondent à une norme de decontextualized standard of rationalism, rationalité décontextualisée, qui reposent sur rely on empirical evidence, and emphasize des preuves empiriques, et qui mettent measurable impacts on individuals. Although l’accent sur les conséquences mesurables de this approach is compatible with l’atteinte sur les individus. Bien que cette justifications that all citizens might approche soit compatible avec des reasonably accept, it offers no principled justifications que tous citoyens jugeraient basis on which to distinguish persuasive from raisonnablement acceptables, elles unpersuasive justifications for constitutional n’établissent aucun principe pour distinguer rights limitations. Moreover, it tends to les justifications d’atteintes aux droits conceal and normalize the understandings of constitutionnels qui sont convaincantes de community that underpin fundamental justice celles qui ne le sont pas. Par ailleurs, elle judgments. Drawing notably on Hannah contribue à dissimuler et à normaliser les Arendt’s writings, the author proposes an visions de la collectivité qui sous-tendent les alternative, aesthetic, account of judgments jugements en matière de justice that invoke the principles of fundamental fondamentale. Faisant appel aux écrits de justice against arbitrariness, overbreadth and Hannah Arendt, l’auteur propose une gross disproportionality. That account, which conception alternative, esthétique, des would view the validity of such judgments jugements constitutionnels liés aux principes intersubjectively, is consistent with greater de justice fondamentale s’opposant au judicial modesty and candour about the caractère arbitraire, à la portée excessive et à contingent foundations of persuasive la disproportion totale. Cette conception, qui justifications. It would accordingly foster an analyserait la validité de ces jugements sous environment in which courts could respond une perspective intersubjective, est conforme more thoughtfully to the challenges that à un comportement judiciaire qui fait preuve plural understandings of justice and de davantage de modestie et de franchise vis- community pose to constitutional rights à-vis des fondements fortuits des adjudication. justifications convaincantes. Elle favoriserait donc l’essor d’un milieu qui permettrait aux tribunaux de répondre d’une manière plus réfléchie aux défis que posent l’existence de conceptions plurielles de la justice et de l’identité de la collectivité au contrôle judiciaire de l’action étatique qui porte atteinte aux droits constitutionnels.

iii ACKNOWLEDGEMENTS

I would not have been able complete this doctoral thesis were it not the support and encouragement I received from so many. My supervisor, Alana Klein, has accompanied me every step of the way, and I am thankful to her for her encouragement, emotional support and the thoughtful feedback she gave me on every single aspect of the thesis. I am also extremely grateful to the two other members of my supervisory committee, Daniel Jutras and Robert Leckey. Not many doctoral students can claim to have the Dean on their supervisory committee, let alone two! Their high standards, insightful comments and unremitting demands for simpler, clearer prose have left an indelible mark on my work. It was a privilege to have them on my committee.

Many other faculty members at McGill have left a lasting impression on my approach to legal scholarship and on this project. Mark Antaki’s course on theoretical approaches has been an endless source of inspiration and continues to shape my intellectual engagement with law. René Provost, Shauna Van Praagh, Hoi Kong and Nandini Ramanujam provided superb teaching mentorship. Angela Campbell was a wonderful Associate Dean during my middle years as a doctoral student; her dedication and commitment led me to academic opportunities that were of enormous benefit. Lara Khoury was kind enough to invite me to participate in several French language health law conferences, which helped me to engage with research from a novel perspective. I should also thank the supervisor of my Master’s thesis at the University of Victoria, Benjamin Berger, who played a key role setting me on my academic path 8 years ago and who continues to be a wonderful source of inspiration and support.

I am also incredibly thankful to my DCL colleagues at McGill. The law faculty is blessed to have such a brilliant, committed, and supportive group of doctoral students. I have been continually inspired, impressed and frankly humbled by my DCL peers: always ready with a helping hand, a kind word, a sympathetic ear or a keen insight. And always ready for lunch at Thomson House too! My experience as a doctoral student was incredibly enriched by sharing it with such wonderful people and scholars. I am especially appreciative to Blair Major, Laura Dehaibi, Francis Lord, Marika Samson, Jeff Kennedy, Sarah Richardson, Jodi Lazare and Stef Carsley for being such good intellectual and social company. Thanks also goes to my family and friends outside the walls of the faculty. Though I suspect they often wondered what precisely I was doing all these years, and why I was doing it, their encouragement, patience and understanding never wavered. More generally, I also owe a debt of gratitude to the law faculty at McGill and to the Social Sciences Humanities Research Council of Canada for their generous financial support that allowed me to undertake this project.

Lastly, I would like to thank my wife Kristina and our two children, Charlie and Margot. This doctoral thesis has proven to be a long road. Longer than I originally foresaw, and with more ups and downs too. Through it all, Kristina has been by my side. She has been nothing short of incredible. As for Charlie and Margot, they have helped to remind me each day that there are more important things in life than constitutional rights adjudication. Their love and silliness fill me with joy. I cannot imagine travelling this doctoral road without all three of them.

iv TABLE OF CONTENTS

ABSTRACT/RÉSUMÉ ...... II ACKNOWLEDGEMENTS ...... IV TABLE OF CONTENTS ...... V INTRODUCTION ...... 1 I. THE PROBLEM OF PERSUASIVE JUSTIFICATIONS ...... 1 II. THE APPROACH: THEORY & METHOD ...... 6 III. THE CASE-STUDY ...... 12 IV. THE ARGUMENT ...... 18 CHAPTER 1 A PLURAL APPROACH TO THE CULTURE OF JUSTIFICATION ...... 22 I. PROPORTIONALITY REVIEW AND THE CULTURE OF JUSTIFICATION ...... 24 A. Proportionality Review: An Overview ...... 24 B. The Culture of Justification: A Requirement for Legitimate Law ...... 28 1. The Culture of Justification as an Explanation of Proportionality Analysis ...... 30 2. The Culture of Justification as a Defence of Proportionality Analysis ...... 32 II. THE CULTURE OF JUSTIFICATION AND DEMOCRATIC THEORY ...... 35 A. Legitimate Law and the Public Use of Reason: Bases in Democratic Theory ...... 36 B. Public Reason and Inclusive Discourse ...... 38 C. Democratic Theory and Proportionality Scholarship: Critical Insights ...... 42 1. Inclusion and Abnormal Justice ...... 42 2. Limitations of “the” Culture of Justification ...... 44 III. THE CULTURE OF JUSTIFICATION’S SUBSTANCE: CO-EXISTING ACCOUNTS IN PROPORTIONALITY SCHOLARSHIP ...... 47 A. Proportionality as Public Reason: Kumm ...... 47 1. Kumm’s Account of Public Justification ...... 47 2. Rawlsian-ish Public Reason? ...... 49 B. Proportionality as Fact-Based Adjudication: Beatty ...... 52 C. Variations on a Theme: Public Reasons ...... 55 D. Proportionality as Incompletely Theorized Adjudication ...... 60 IV. THE CULTURE OF JUSTIFICATION’S METHOD: AN ABSTRACT AND UNIVERSALIST PERSPECTIVE ...... 65 A. Casuistry and Abstract Problems ...... 66 B. The Idea of Proportionality ...... 72 V. CONCLUSION ...... 75 CHAPTER 2 FROM JUSTICE TO JUSTIFICATION: A GENEALOGY OF THE PRINCIPLES OF FUNDAMENTAL JUSTICE ...... 77 I. THE HISTORICAL GENESIS OF SECTION 7: THE PRINCIPLES OF FUNDAMENTAL JUSTICE IN CONSTITUTIONAL CONTEXT ...... 79 A. Canada’s “Due Process” Clause ...... 80 B. Natural Justice ...... 85 C. A Canadian Bill of Rights Composite ...... 88 II. HISTORICAL DEVELOPMENT OF THE PRINCIPLES OF FUNDAMENTAL JUSTICE: THE EARLY PERIOD ...... 92 A. The Motor Vehicle Reference: Incremental, Specific and Morally Substantive Principles of Fundamental Justice ...... 93 B. The Aftermath of the Motor Vehicle Reference...... 101 III. THE RODRIGUEZ/MALMO-LEVINE TEST: BETWEEN PAST AND FUTURE ...... 110 A. The Emergence of the Rodriguez/Malmo-Levine Test...... 110 B. Looking Backwards: A Collective Search for Moral Justice ...... 113 C. Looking Forwards: From Justice to Justification ...... 118

v IV. HISTORICAL DEVELOPMENT OF THE PRINCIPLES OF FUNDAMENTAL JUSTICE: THE MODERN PERIOD ...... 122 A. The Origins of Proportionate Standards: A Section 7 Counter-Narrative ...... 123 B. Towards Abstract Norms: The Ascendance of Proportionality ...... 133 V. CONCLUSION ...... 138 CHAPTER 3 SECTION 7’S CULTURE OF ARGUMENT AND COMMUNITY UNDERSTANDINGS: A CASE STUDY ...... 140 I. CONSTITUTIONAL ADJUDICATION AS AN EXPRESSION OF COLLECTIVE IDENTITY ...... 142 A. Constituting Collective Identity through Law ...... 143 B. Constitutional Adjudication: Generating Collective Identity ...... 147 II. THE ROLE OF COMMUNITY UNDERSTANDINGS IN MODERN SECTION 7 JUDGMENTS ...... 150 A. Community and Rational Justification: A Mutually Constitutive Relationship ...... 150 B. Contingent Understandings of Community: Introducing the Case Study ...... 158 III. COMMUNITY JUDGMENT: HOW DO “WE” DECIDE? ...... 161 IV. COMMUNITY VALUES: WHAT MATTERS TO “US” ...... 171 A. Competing Approaches: The Relative Importance of Moral Wrongs and Concrete Harms ...... 171 B. The Modern Conception’s Compatibility with Harm-Based Justifications ...... 177 V. COMMUNITY MEMBERSHIP: WHO COUNTS? ...... 182 A. Extending the Limits of Community ...... 183 B. Inclusion, Exclusion and Contingent Understandings of Community ...... 185 VI. CONCLUSION ...... 194 CHAPTER 4 DOING JUSTICE TO “OUR” COMMUNITY: TRACES OF AESTHETIC JUDGMENT IN SECTION 7 ...... 197 I. ARENDT, JUDGMENT AND ADJUDICATION ...... 199 A. Arendt’s Account of Judgment ...... 199 1. Background and Context ...... 199 2. Intersubjective Validity ...... 203 3. Judging Impartially According to Taste ...... 205 4. Judging as a Member of a Community ...... 208 B. Aesthetic Judgment and Adjudication ...... 210 II. THE AESTHETIC FEATURES OF FUNDAMENTAL JUSTICE JUDGMENTS ...... 218 A. The Meaning of Particulars...... 218 B. Judging the Constitutional Fit ...... 226 III. REDEEMING SECTION 7’S CULTURE OF ARGUMENT ...... 234 A. Modesty, Candour and Better Judgment ...... 235 B. Plural Approaches to Justification ...... 242 1. Examples and Analogies...... 242 2. Narrative Understandings of Who “We” Are ...... 246 IV. CONCLUSION ...... 251 CONCLUSION ...... 254 I. LOOKING BACKWARDS: THEMES, OBJECTIVES, LIMITATIONS...... 254 II. LOOKING FORWARDS: BROADER IMPLICATIONS AND UNANSWERED QUESTIONS ...... 260 BIBLIOGRAPHY ...... 273

vi INTRODUCTION

I. THE PROBLEM OF PERSUASIVE JUSTIFICATIONS

This thesis is a contribution to the scholarly debate about the normative foundations of constitutional rights adjudication involving the principle of proportionality. Judges around the world rely on forms of proportionality review to determine whether government action that abridges rights is constitutional. Approaches to constitutional rights adjudication that centre on the principle of proportionality tend to structure the inquiry into the justification of rights limitations around three questions.

Presuming that a government is pursuing a legitimate and sufficiently important objective, a court will proceed roughly as follows. It will ask, first, whether the government has chosen means that are rationally connected to that objective. In other words, are the chosen means suitable?

Second, it will ask whether those means impair the right as little as possible. In other words, are the chosen means necessary and appropriately circumscribed? Third, it will ask whether the public interest advanced by the government action outweighs its negative effects. In other words, has a fair balance been struck overall between the public interest and private right?1 If all the questions can be answered in the affirmative, the rights interference is proportionate and justified. If any of the questions is answered in the negative, the rights interference is not.

As the principle of proportionality has come to dominate the theory and practice of constitutional rights adjudication around the world, many academics have sought to explain and defend proportionality for the obligation it imposes on the state to provide a good substantive

1 See e.g. Grant Huscroft, Bradley W Miller & Grégoire Webber, “Introduction” in Grant Huscroft, Bradley W Miller & Grégoire Webber, eds, Proportionality and the Rule of Law: Rights, Justification, Reasoning (New York: Cambridge University Press, 2014) 1 at 2. Introduction justification for every limit on a constitutional right. On this view, the requirement of substantive justification is the essence of proportionality review and the source of its normative appeal.

This thesis revolves around a pair of questions related to that account. First, how does a judge decide whether an alleged justification is persuasive enough to permit constitutional rights to be limited in a modern, diverse, liberal democratic polity like Canada’s? And second, how should she? Or to state the problem slightly differently, what distinguishes justifications that are persuasive enough for a court to find that state action limiting rights is rationally connected to its objective, appropriately circumscribed and fairly balanced – in other words, proportionate – and justifications that are not?

This thesis’s inquiry into practices of justification in constitutional rights adjudication is motivated and structured by current work in political and legal theory about the contested meaning of justice and justification in a plural and interconnected world, which I discuss in detail in Chapter

1. People living in a community together have always disagreed about how to order their common lives fairly, and always will. However, in the western liberal democracies where constitutional rights adjudication is dominated by proportionality review, conversations about justice that occur outside of the courtroom are frequently beset by controversies and conflicts about the basic parameters of debate. An imaginary dinner table conversation with your in-laws about the governance of prostitution in Canada, in the wake of the Supreme Court of Canada’s decision in

Canada (Attorney General) v Bedford,2 is helpful to illustrate how difficult it can be even for closely connected people to agree on the terms of debates about justice, and also about the kinds of disagreement that justice issues can engender.

2 Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 [Bedford].

2 Introduction

First, some disagreements can be traced to diverging views about whose interests and concerns fall to be considered. Your partner’s grandmother Irena, for instance, who immigrated to

Canada as a young adult from Latvia, might dwell on the plight of vulnerable girls from Eastern

Europe lured into the sex trade in the west. Meanwhile, her son Ervin, who lives in an upscale

Montreal neighbourhood, is concerned about the unsavoury types that come and go at all hours of the night from the brothel that seems to operate with impunity around the corner from his house.

In other words, you might rightfully ponder how widely or narrowly to construe the scope of the issue – is the appropriate scale of the problem a global one of alleged sex trafficking rings, or the local one of nuisances and neighbour relations? Alternatively, preoccupations about the justice of sex work regulation might be oriented towards differently situated participants and stakeholders – street sex workers, so-called escorts, pimps, johns, those providing services to sex workers such as bodyguards, drivers or accountants, neighbours, police officers, etc.

Second, some disagreements can be traced to contradicting views about the values that the normative order ought to uphold. Assuming that you and Uncle Don are both concerned about apples and apples – the plight of street sex workers in downtown Montreal – you might still argue about the substantive criteria that should be used to assess the justice of any particular legal framework governing prostitution. Should policy be aimed at promoting the health and safety of sex workers, as your cousin Martha who works in public health insists, or to denounce the commodification of women’s bodies (“why just women?” someone else pipes in) through the sale of sex? Different alternatives can also reflect differing perceptions of the legitimate moral constraints that should limit government action. Don’s wife Alana, who teaches humanities at a local CEGEP, is adamant that it is “never ok” to treat a person as a means to an end; “I don’t care what Bentham and Mill have to say about it,” she adds. In other words, different governance

3 Introduction schemes in relation to prostitution might plausibly pursue and advance a variety of goals through a variety of means, and each scheme is likely to reflect a different ordering of values and principles.

Third and finally, some disagreements can be traced to diverging views about the decision- making frameworks and processes used to resolve the underlying disputes. The disagreement could be institutional. Aunt Vanessa might be convinced that only a democratically elected legislature is equipped to address the complex policy issues, while you might think a democratic majority is unlikely to take seriously the interests and rights of marginalized sex workers, many of them trans, indigenous and racialized, or all three, and that judicial review in such circumstances is exactly what’s required. Your brother-in-law Hoi, who researches collaborative problem-solving by city mayors at grad school, is partial to an approach that allows municipalities considerable leeway to develop and implement contextualized, bottom-up solutions. Even assuming that Canadian courts have a legitimate role to play, it is not clear how a judge confronted to a challenge about the constitutionality of prostitution laws should conceive of her task. For family friend Soudeh, one thing is certain: judges should steer well clear of politics by applying the letter of the law. Your cousin Charlie, meanwhile, is insistent that a judge should base her decision above all on the scientific evidence. “Why should we care what a text that is 30 or 40 or 150 years old has to say about prostitution. This is 2018.” Charlie’s sister Margot, who is FaceTiming in for the occasion from Oaxaca, Mexico, where she teaches English, can’t help antagonizing her brother: “please – you can make the so-called evidence say anything. This is about taking a moral stand based on what’s right and wrong, and prostitution is just plain wrong.”

The various concerns and perspectives sketched out in this fictitious dinner conversation evoke themes running through contemporary legal and political theory preoccupied with better understanding the challenges of public decision-making in the face of plural justice discourse. The

4 Introduction prevalence of rights-talk, the importance of but also scepticism towards regional and global institutions of governance and trade, widespread cultural and religious pluralism, the transformation of patterns of social and professional interaction and perceptions of proximity that result from the use of modern communication technologies: these are only some of the key legal, social, cultural, political and technological developments that have led scholars to reconsider taken-for-granted assumptions about justice.

Efforts by scholars to theorize justice in light of these developments come with a variety of labels: “political liberalism”, “value pluralism”, the “idea of justice”, “abnormal justice”,

“constitutional fragments”, the “global multiplicity of public spheres”, the “postnational constellation”, the “post-metaphysical era”, the “network society”.3 Despite their diverse orientations, these efforts all seek to re-examine critically who should be considered when making decisions about justice, what justice requires, and how disagreements about justice ought to be resolved. In short, political and legal theorists seem to agree on disagreement: the “who”, the

“what” and the “how” of contemporary justice are up for grabs.

My thesis builds on the intuition that scholarship on constitutional rights adjudication must take account of the uncertainty surrounding justice discourse. Specifically, scholars who favour proportionality because it contributes to reasoned justification must wrestle with the intrinsically

3 See e.g. John Rawls, Political Liberalism, paperback ed (New York: Columbia University Press, 1996); Linda Zerilli, “Value Pluralism and the Problem of Judgment: Farewell to Public Reason” 40:1 Political Theory 6; Amartya Sen, The Idea of Justice (Cambridge, Mass: The Belknap Press of Harvard University Press, 2009); Nancy Fraser, Scales of Justice: Reimagining Political Space in a Globalizing World (New York: Columbia University Press, 2009); Nancy Fraser, “Abnormal Justice” (2008) 34:3 Critical Inquiry 393; Gunther Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford: Oxford University Press, 2012); James Tully, “On the Global Multiplicity of Public Spheres” in Christian J Emden & David Midgley, eds, Beyond Habermas: Democracy, Knowledge and the Public Sphere (New York: Berghahn Books, 2013) 169; Jürgen Habermas, The Postnational Constellation: Political Essays, trans and ed by Max Pensky (Cambridge, Mass: MIT Press, 2001); Jürgen Habermas, Between Facts and Norms, trans by William Rehg (Cambridge, Mass: MIT Press, 1996) [Habermans, BFN]; Manuel Castells, “The New Public Sphere: Global Civil Society, Communication Networks, and Global Governance” (2008) 616:1 The ANNALS of the American Academy of Political and Social Science 78.

5 Introduction plural character of justifications. Disagreements about the “who”, “what” and “how” of justice are not merely a theoretical curiosity. Because its partisans frequently link proportionality analysis with general moral reasoning, those disagreements may have significant implications for the adjudication of constitutional rights disputes structured around it.

A judgment about the soundness of the justification provided for a government measure that limits rights will depend on a number of factors: how the purpose of the measure is construed, how widely or narrowly its scope is defined, which persons it is deemed to concern, the criteria used to assess its effects, the perceived importance of differing normative priorities and the public decision-making body’s understanding of its institutional role, to name only some of the most salient. At first blush, however, proportionality review does not seem to offer any privileged answers to these questions that intersect with the “who”, “what” and “how” of justice. For those concerned about the normative foundations of judgments of proportionality, I argue that the silence of proportionality on these points is significant. It suggests that further inquiry into the forms and practices of justification that support judgments about what is proportionate is required.

II. THE APPROACH: THEORY & METHOD

Scholarship and practice in constitutional rights adjudication might seem to have an appealingly straightforward answer to the questions posed above. Rights limitations are justified when the reasons advanced to support them meet the requirements of the principle of proportionality – when state action to achieve a sufficiently important objective is rationally connected to that objective, appropriately circumscribed and fairly balanced. Such an answer may be propositionally correct, and useful to separate proportionality review from other interpretive approaches to constitutional rights adjudication that place greater emphasis on legal texts.

However, the mechanical recital of proportionality’s component steps says virtually nothing about the character, quality or content of persuasive justifications for permissible interferences with

6 Introduction constitutional rights.4 It is accordingly of little use given the object of my inquiry, which relates to the exercise of judgment itself. Indeed, my concern is to understand what allows judges to conclude that the abstract standards of proportionality review have been met or breached, especially when the parameters of justice discourse that inform their decisions are contested and poorly defined.

Nor are the dominant modes of scholarly inquiry into proportionality review likely to help understand how the burden of justification is met. Much of that scholarship is devoted to making or refuting the normative case for approaches to constitutional rights adjudication featuring the principle of proportionality. But that type of scholarship tends to dwell on the theoretical rationality of proportionate judgment considered in the abstract, rather than on the arguments deployed by parties and judges to support or refute claims of justification in litigated disputes. Scholars who engage with balancing and proportionality on these terms frequently endorse one of two views of what courts are doing when they determine that a rights limitation is proportionate and hence justified. Proponents tend to portray proportionality analysis as a value-neutral, and hence legitimate, method for arriving at rationally defensible, and sometimes even objectively verifiable, judgments about what the constitution requires. On this view, proportionality analysis is the faithful and unerring handmaiden of constitutionalism and the rule of law in an age of pluralism.5

Conversely, critics tend to portray proportionality analysis as a misguided and illegitimate exercise in judicial policy-making, given uncertainty or unknowability about what the constitution requires.

4 See e.g. Francisco Urbina, “Is it Really that Easy: A Critique of Proportionality and ‘Balancing as Reasoning’” (2014) 27:1 Can JL & Jur 167 at 188-190. 5 See e.g. Robert Alexy, A Theory of Constitutional Rights, trans by Julian Rivers (Oxford: Oxford University Press, 2002); Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (Cambridge, UK: Cambridge University Press, 2017); Luc B Tremblay, “Le fondement normatif du principe de proportionnalité en théorie constitutionnelle” in Luc B Tremblay & Grégoire Webber, eds, La limitation des droits de la charte : essais critiques sur l’arrêt R. c. Oakes / The Limitation of Charter Rights: Critical Essays on R. v. Oakes (Montréal: Éditions Thémis, 2009) 77.

7 Introduction

On this view, proportionality analysis is little more than amateur moral philosophy,6 or worse still, politics in disguise.7

Cutting against the grain of much comparative constitutional rights scholarship, this thesis seeks to undo the dichotomy between these two views to provide a persuasive answer to the research question posed above. The key to undoing that dichotomy is not to analyze proportionality review as a conceptual, abstract and universally applicable constitutional doctrine. Instead, this thesis will focus on the meaning and significance of one local variant of proportionality review. It locates proportionate judgments within a particularized context in which parties, lawyers and judges exchange arguments about justifications for government action.

My decision to study the burden of justification imposed by proportionality review in a particular legal context cannot be understood apart from the theoretical conception of law that underpins my research project. In sympathy with scholars such as Paul Kahn, Ben Berger, Clifford

Geertz and Pierre Legrand, my thesis endorses a cultural view of law. The meaning of culture is capacious and contested, almost elusive,8 so I will elaborate briefly on how I understand the term.

When I suggest that law is cultural, I mean it in a thick, anthropological sense that implies several interrelated claims.9 To begin with, law is inextricably linked with local ways of life. Pierre

Legrand, among others, has promoted this kind of thick understanding of culture within legal scholarship. Writing about the importance for comparative legal scholars to consider law’s unique

6 See e.g. Stavros Tsakyrakis, “Proportionality: An Assault on Human Rights” (2009) 7:3 Intl J Const L 468. 7 See e.g. Habermas, BFN, supra note 3 at 259. 8 Pierre Legrand, “Book Review of Comparing Legal Cultures by David Nelken, ed” (1997) 56:3 Cambridge LJ 646 at 646-647; Benjamin L Berger, Law’s Religion: Religious Difference and the Claims of Constitutionalism (Toronto: University of Toronto Press, 2015) at 35-36. 9 See generally Clifford Geertz, “Local Knowledge: Fact and Law in Perspective” in Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology, 3rd ed (New York: Perseus Books, 2000) 167; and Clifford Geertz, “Ethos, Worldview and the Analysis of Sacred Symbols” (1957) 17:4 The Antioch Review 421 [Geertz, “Ethos, Worldview”]; see also generally Berger, supra note 8.

8 Introduction cultural setting, Legrand says the following about culture: “I understand the notion of ‘culture’ to mean the framework of intangibles within which a community operates, which has normative force for this community (even though not completely and coherently instantiated), and which determines the identity of a community as community.”10 This first claim therefore calls attention to the intimate link between law, culture and community.

In addition, law is itself a cultural form. To say that law is linked to culture, understood as a framework of community intangibles, only partly recognizes its cultural character. By emphasizing the diverse practices of justification that may underpin judgments about the proportionality of rights limitations, my aim is not merely to make comparative constitutional rights scholarship sensitive to local cultural contexts. More than that, I seek to emphasize there is no hard and fast dividing line between law, on the one hand, and culture on the other. In short, law is culture.11 This view resists the tendency to dichotomize law and culture and helps to undermine the reified distinction between proportionality analysis and context that I critique in Chapter 1.

In adopting such a perspective, I wish to contribute to a kind of legal scholarship about the principle of proportionality whose purpose is qualitatively distinct from the predominant approach, an approach I will review in greater detail in Chapter 1. The contours of that kind of scholarship are laid out by Paul Kahn in The Cultural Study of Law.12 Kahn urges scholars not to equate legal scholarship with law reform, and to temporarily suspend their commitment to and belief in the rule of law. Kahn puts it this way: the question for a cultural study of law “is not whether law makes us better off, but rather what it is that the law makes us.”13

10 Legrand, supra note 8 at 647 [Emphasis in original]. 11 Berger, supra note 8 at 37. 12 Paul W Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago: The University of Chicago Press, 1999). 13 Ibid at 6.

9 Introduction

As this quotation suggests, a cultural approach recognizes not only that law is experienced in different ways according to local practices and ways of thinking.14 It also recognizes that law is a worldview that constitutes and gives meaning to human experiences. To see the world through the eyes of the law is accordingly to see a particular conception of the world. That conception is at once contingent – being one among several possible views – and potentially all-encompassing

– deriving its explanatory and normative force from its ability to account for both how things are and how they ought to be. As Clifford Geertz said of religion, so it could reasonably be said of law: “[t]he source of its moral vitality is conceived to lie in the fidelity with which it expresses the fundamental nature of reality. The powerfully coercive ‘ought’ is felt to grow out of a comprehensive factual ‘is’….”15 Returning to Legrand’s definition, to understand law and legal discourse as cultural forms is therefore to recognize the extent to which law is entwined with, and generative of, the intangibles that frame a community’s experience of reality.

Finally, law’s cultural character leads to a discursive understanding of constitutional rights adjudication and the forms of argument that underpin it. In this regard, my cultural approach to proportionality review is influenced by Jacco Bomhoff’s comparative legal scholarship on balancing. In Balancing Constitutional Rights,16 Bomhoff focuses on balancing not as an abstract technique or principle, but as a discourse whose meaning depends on local practices and understandings of legal argument.17 Bomhoff emphasizes that judges in many places use the language of balancing to describe what they do when adjudicating constitutional rights disputes;

14 Berger, supra note 8 at 37. 15 Geertz, “Ethos, Worldview”, supra note 9 at 421. 16 Jacco Bomhoff, Balancing Constitutional Rights: The Origins and Meaning of Postwar Legal Discourse (Cambridge, UK: Cambridge University Press, 2013) [Bomhoff, Balancing]. 17 See also Jacco Bomhoff, “Beyond Proportionality: Thinking Comparatively about Constitutional Review and Punitiveness” in Vicki C Jackson and Mark V Tushnet, eds, Proportionality: New Frontiers, New Challenges (Cambridge, UK: Cambridge University Press, 2017) 148.

10 Introduction he stresses, however, that judges are not everywhere doing the same thing when they use the same language. Drawing attention to the opposite understandings of balancing that emerged in post-

World War II Germany and the United States, Bomhoff insists that balancing is something that judges say they do, rather than something that has a definite, underlying essence beyond the disparate ways in which judges invoke balancing discourse. My review of comparative constitutional scholarship will point to a similar realization in respect of proportionality discourse more widely (which of course encompasses balancing).18 What legal propositions about the principle of proportionality mean – as rules, judgments, arguments or simply rhetoric – depends on how they are used, understood and acted upon by a community of interpreters.

Considering this cultural view of law, let me state clearly that this thesis is not about the concept of proportionality analysis tout court. Instead, my thesis is concerned with argumentative discourses used to support judgments of proportionality in concrete, localized settings. My methodological decision to examine one locally-situated manifestation of proportionality review, discussed in detail in the next section, follows from this concern. That focus is intended as a counterpoint to comparative constitutional rights scholarship that frequently approaches balancing and proportionality review from a global perspective, minimizing its intrinsically discursive character and its embeddedness within local argumentative contexts.19

In adopting this approach, I am not suggesting it is the only reasonable one for studying proportionality review. Bomhoff’s work shows, for instance, that comparative inquiry can be

18 Bomhoff recognizes that balancing is closely linked proportionality, acknowledging that “the two categories are clearly part of the same broad family of discourse”: Bomhoff, Balancing, supra note 16 at 2. However, he is also careful not to conflate the two, highlighting the contested nature of the relationship between proportionality and balancing in legal thought: Bomhoff, Balancing, supra note 16 at 19-20. His book is addressed specifically to balancing. 19 Robert Leckey has made a similar point about comparative constitutionalism on gay rights: Robert Leckey, “Thick Instrumentalism and Comparative Constitutionalism: The Case of Gay Rights” (2009) 40:2 Colum HRLR 425.

11 Introduction fruitful, as long as the comparisons undertaken are tailored to the objectives pursued. But when it comes to the relationship between proportionality review and plural forms of justification, a rush to compare or to generalize risks misunderstanding the local meaning of the principle of proportionality, or overlooking the possibility of multiple meanings contained in local practices.

That is why I believe it is important – before undertaking comparisons across jurisdictions – to attend carefully to the argumentative culture that prevails in any local legal tradition, and the contested understandings of persuasive justifications it may encompass.

III. THE CASE-STUDY

In keeping with this approach, this thesis focuses on practices of justification relied on in disputes involving section 7 of the Canadian Charter of Rights and Freedoms. Section 7 reads:20

7. Everyone has the right to 7. Chacun a droit à la vie, à life, liberty and security of la liberté et à la sécurité de the person and the right not sa personne; il ne peut être to be deprived thereof porté atteinte à ce droit except in accordance with qu’en conformité avec les the principles of principes de justice fundamental justice. fondamentale.

For those familiar with Canadian constitutional law, the choice to focus on section 7 might seem a curious one. After all, the justification of Charter rights limitations in Canada is primarily associated with the so-called Oakes test, a variant of proportionality review conducted under the

Charter’s general limitations clause found in section 1.21 However, proportionate standards now feature prominently in constitutional adjudication involving section 7’s principles of fundamental

20 Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 7. 21 The English version of section 1 reads: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The proportionality test relied on to apply section 1 was first elaborated by the Supreme Court of Canada in R v Oakes, [1986] 1 SCR 103. Academic commentary on Oakes has been extensive. For a small sampling, see Tremblay & Webber, eds, supra note 5.

12 Introduction justice as well,22 and several characteristics of section 7 jurisprudence make it an attractive focal point for my inquiry.

My selection of section 7 as a case study can be attributed partly to theoretical concerns.

Case law and commentary relating to section 7 engage at once with the meaning of “justice” and the justification of interferences with constitutional rights. The questions enunciated above by political and legal theorists about the “who”, “what” and “how” of justice are being posed at a time when Canadian constitutional lawyers and judges have also been grappling with uncertainties about the meaning of justice – in particular, the meaning of the principles of fundamental justice enshrined in section 7. As one retired Supreme Court of Canada justice said, section 7 case law has always been concerned with “the challenge to define justice: what it is, and what it should be.”23 How to make the principles of fundamental justice meaningful, while also setting workable limits on them, has been a constant interpretive conundrum.

Lately, section 7’s preoccupation with the meaning of justice has been coupled with an increasing judicial emphasis on rational justification. In a string of judgments issued over the last decade and half, the Court has altered its approach to the substantive guarantee of fundamental justice contained in section 7. The genesis and evolution of section 7 jurisprudence forms the object of my discussion in Chapter 2, so I will not go into great detail about this transformation here. The important point is that the inquiry into compliance with the principles of fundamental justice under section 7 now turns frequently on the rationality and quality of the justifications underpinning government action.

22 Nader R Hasan, “Three Theories of ‘Principles of Fundamental Justice’” (2013) 63 SCLR (2d) 339 at 365 at 368-374; Peter W Hogg, “The Brilliant Career of Section 7 of the Charter” (2012) 58 SCLR (2d) 195 at 201-208. 23 Frank Iacobucci, “Some Reflections on Re BC Motor Vehicle Act” (2011) 42:3 Ottawa L Rev 305 at 322.

13 Introduction

Principles against arbitrary, overbroad and grossly disproportionate government conduct – which correspond to proportionality’s concerns with suitability, necessity and balance, and indeed justification in general – have become central to section 7 jurisprudence.24 Deprivations of life, liberty and security of the person notably breach the principles of fundamental justice when they fail a test of instrumental rationality of government action – in other words, when the means selected to achieve government objectives are insufficiently related to, or out of all proportion, to desired ends. This approach largely subsumes the principles of fundamental justice within a more abstract logic of proportionality review and its corresponding emphasis on justification.25

Justice and justification are thus linked in section 7 adjudication in a way that is reminiscent of political theorists’ attempts to grapple with the challenges of plural justice discourse by focusing on democratic deliberation and public reasoning. The parallels between these developments in contemporary political theory and Canadian constitutional adjudication suggest that a case study of section 7 is well suited to an inquiry about the contested meanings of justice and justification in a plural and interconnected world, and its implications for approaches to constitutional adjudication that incorporate forms of proportionality review.

My focus on the emergence of proportionality review in section 7 is also linked to methodological concerns. Section 7 is likely to be a fruitful case study for my inquiry because the interpretation of the principles of fundamental justice has evolved to embody a constitutional criterion of proportionality and rational justification. As I describe in Chapter 2, in the first two decades of Charter jurisprudence, Canadian courts tended to interpret the principles of fundamental

24 Alana Klein, “The Arbitrariness in ‘Arbitrariness’ (And Overbreadth and Gross Disproportionality): Principle and Democracy in Section 7 of the Charter” (2013) 63 SCLR (2d) 377; Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 [Carter]. 25 Moshe Cohen-Eliya & Iddo Porat. “Proportionality and the Culture of Justification” (2011) 59:2 Am J Comp L 463.

14 Introduction justice rather differently, patterning them on narrow, substantive principles, even doctrines or adages. The interpretive shift that occurred within section 7 is a vivid reminder of the diverse ways that requirements of justice can be understood in law. But more importantly, the contrast between approaches represents an excellent opportunity to explore the distinctiveness of constitutional rights adjudication that relies on a logic of proportionality. These approaches were used at different times by the same court, in the same social and constitutional order, to apply the same constitutional provision. An examination of section 7 may help to identify and understand the benefits and difficulties that arise when courts adjudicate constitutional rights disputes by assessing the persuasiveness of the substantive justifications for government action.

Considering the cultural understanding of law on which my thesis is based, section 7 also has the advantage of being a feasible case study. As I explained above, my research into the plural discourses that support proportionality assessments values rich description and close study of local instances of legal argument and adjudication. This type of inquiry requires depth as opposed to breadth of focus, to which an examination of section 7 is well-suited. The set of leading cases that has linked the interpretation of the principles of fundamental justice with rational justification, as well as applicable academic commentary, constitutes a rich but manageable case study of judgments and legal discourse that I use to ground my inquiry.

Furthermore, the Supreme Court of Canada’s distinctive association of the principles of fundamental justice with the principle of proportionality is likely to be doctrinally and practically significant. Given the vital interests it protects and the ringing justice rhetoric it contains, legal commentators have never shied away from emphasizing section 7’s importance for Canadian constitutional law.26 As one scholar has put it, because “[j]udicial choices under section 7 engage

26 Consider e.g. Benjamin L Berger’s description of section 7 as “the heart of the Charter” in Sean Fine, “Stephen Harper’s Accidental Legal Legacy”, The Globe and Mail (November 6, 2015), online:

15 Introduction core beliefs about the Charter and the Court’s mandate of review…any theory about section 7 is necessarily a theory about the Charter.”27 It stands to reason, therefore, that how the Court navigates the challenges of plural justice discourse in its interpretation of the principles of fundamental justice may well have implications beyond the confines of section 7. The apparent migration of the principle of proportionality from section 1’s Oakes test, where it serves a limiting function, to section 7, where it has become integrated as a component of the guaranteed right, only adds to the potential significance of recent fundamental justice jurisprudence in Canadian constitutional law.28

The essential role played by section 7 of the Charter in Canada’s constitutional rights architecture is matched by its potentially far-reaching consequences for public policy.29 Since embracing standards of means-ends rationality within section 7, the Supreme Court has repeatedly struck down government action relating to matters that were once assumed to lie beyond the scope of judicial review, or at least to command judicial deference. Examples include delivery mechanisms for universal health care, supervised drug consumption sites, the regulation of prostitution, the criminalization of physician-assisted dying, and access to medical marijuana.

Section 7 jurisprudence has accordingly proven to be a lightning rod for controversies about the merits and legitimacy of constitutional rights adjudication in Canada.

Finally, despite my previously expressed concerns about superficial or facile legal comparisons, I hope that a detailed examination of recent developments may prove to be of interest

https://www.theglobeandmail.com/news/national/stephen-harpers-accidental-legal- legacy/article27150950/; Carissima Mathen, “Section 7 and the Criminal Law” (2013) 62 SCLR (2d) 49 at 49. 27 Jamie Cameron, “From the MVR to Chaoulli v. Quebec: The Road Not Taken and the Future of Section 7” (2006) 34 SCLR (2nd) 105 at 108. 28 Klein, supra note 24 at 377. 29 Consider Guy Régimbald & Dwight Newman, The Law of the Canadian Constitution, 2nd ed (Toronto: Lexis Nexis Canada, 2017) at 690-696.

16 Introduction to constitutional rights scholars beyond Canada’s borders. Just as section 7 occupies a leading place in Canadian constitutional law, so too do Canadian jurisprudence and scholarship occupy a position of relative prominence within the global judicial and scholarly discourse about constitutional rights adjudication involving the principle of proportionality. Canada was, after all, the first parliamentary democracy in the common law world to entrench a bill of rights and to authorize courts to invalidate government action that fell afoul of its guarantees. And outside of continental Europe, the Supreme Court of Canada was one of the first apex courts to turn to the principle of proportionality to assess the constitutionality of rights limitations.30

Considering these firsts, the Court’s interpretive approach to constitutional rights violations has tended to be influential internationally.31 Canada’s extensive judicial experience with proportionality-based rights review is matched by the sustained engagement of Canadian scholars on the issue, with some of the foremost proponents and critics of proportionality coming from this country.32 Under the circumstances, the direction in which Canadian legal practice and

30 Barak, supra note 5 at 182; Antoine Guilmain, “Sur les traces du principe de proportionnalité: une esquisse généalogique (2015) 61:1 McGill Law Journal 87 at 110-112. It is notable that Canada’s vanguard position with respect to proportionality analysis tends to be recognized not just domestically but abroad as well. Consider Vicki C Jackson & Mark Tushnet, “Introduction” in Jackson & Tushnet, eds, supra note 17, 1 at 1. 31 Sujit Choudry, “So What is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section 1” (2006) 34 SCLR 2d 501 at 501-502. The influence of Canadian constitutional rights adjudication is particularly strong in the commonwealth world where public law is generally derived from the same British heritage. For example, the general limitations clause in New Zealand’s bill of rights was modelled closely on section 1 of the Canadian Charter: New Zealand Bill of Rights Act 1990, (NZ) 1990/104 at s 4. Consider also how prominently Canadian section 7 case law has featured in some commonwealth debates about end-of-life decision making: Seales v Attorney General [2015] NZHC 1239 (New Zealand); R (Nicklinson) v Ministry of Justice [2014] UKSC 38. Canadian jurisprudence on proportionality analysis is also influential in Ireland. See generally Brian Foley, “The Proportionality Test: Present Problems” [2008:1] Judicial Studies Institute Journal 67. 32 David M Beatty’s The Ultimate Rule of Law (Oxford: Oxford University Press, 2004), and Grégoire Webber’s The Negotiable Constitution (Cambridge, UK: Cambridge University Press, 2009) are seminal English-language works on the principle of proportionality in constitutional rights adjudication.

17 Introduction scholarship is headed when it comes to proportionality review may stimulate novel insights for scholars whose primary expertise lies in other jurisdictions.

IV. THE ARGUMENT

The argument running through this thesis boils down to a set of interrelated claims. First, as the experience of section 7 of the Charter will show, judges rely on a sense of who counts, what

“we” value, and how “we” ought to decide to distinguish between persuasive and unpersuasive justifications – between reasons that are good enough to find that a given rights limitation is rationally connected to its objective, appropriately circumscribed and fairly balanced – and those that are not. Second, that judicial sense of who “we” are is not an ontological question that can be discovered through an impartial and supposedly objective empirical inquiry into the nature of our community – however well-intentioned and careful such an inquiry may be. Rather, a judicial sense of who “we” are, and by extension a sense of what government conduct is justified, is continually constituted and re-constituted by the culturally-specific particularities of constitutional adjudication. Finally, these contingencies of persuasive justifications are not shortcomings or flaws to be eliminated from proportionality review. It is imperative to recognize not only that concrete cultural features of communities give meaning to constitutional norms of justification, but also that they ought to do so.

I will develop that argument as follows. Chapter 1 consists of both a literature review of scholarship on proportionality-based constitutional rights adjudication, and an extended critique of premises that underwrite the dominant perspectives of that scholarship. The chapter highlights an ambiguity in academic literature that lauds proportionality analysis for promoting a so-called

“culture of justification.” The scholarly pre-occupation with an undifferentiated culture of justification ignores the importance of situated practices of legal argument and obscures disagreement over what counts as a good justification. These oversights are significant given that

18 Introduction contemporary justice debates are beset by disagreement about who counts, what values matter, and how public decisions ought to be made. My primary aim in the chapter is to show that existing scholarship has not addressed what counts as a good justification, and that it cannot do so solely through abstract theoretical inquiry. What counts as a good justification can only be answered by examining the contextualized settings in which proportionate justifications are advanced and adjudicated.

In Chapter 2, my attention shifts to one such setting: disputes involving the principles of fundamental justice referred to in section 7 of the Canadian Charter. The chapter focuses on evolving judicial approaches to the interpretation of the principles of fundamental justice. My historical account emphasizes how interpretive challenges relating to the principles of fundamental justice were shaped by contingent intellectual, political and legal circumstances. The central claim

I advance in that account is descriptive. The historical narrative shows that the Court’s early approach to the principles of fundamental justice, which privileged the incremental recognition of a plurality of specific, morally substantive principles inherited from the English common law, has been supplemented, and largely overshadowed, by today’s modern approach in which abstract proportionate standards have emerged as the paradigmatic principles of fundamental justice. It also underscores that legal arguments about the interpretation and application of the principles of fundamental justice have been inextricably linked to enduring concerns over the institutional legitimacy of judicial review that implicates guarantees of substantive fairness.

In Chapter 3, I complement my historical inquiry with an examination of the distinctive characteristics of legal arguments that feature in the current, modern, approach to section 7’s principles of fundamental justice. The chapter is organized around a case study of the trilogy of

Supreme Court of Canada judgments that cemented the modern turn of section 7 adjudication

19 Introduction towards proportionate standards: Canada (Attorney General) v PHS Community Services

Society,33 Canada (Attorney General) v Bedford,34 and Carter v Canada (Attorney General).35

Through the case study, I describe how contextual factors underpinning the modern approach colour the prevailing conception of good justification in section 7 of the Charter. This conception emphasizes the importance of decontextualized standards of rationality and empirical evidence.

My claim draws on and promotes an account of constitutional adjudication that is linked to understandings of collective identity. The features of section 7’s culture of justification here described reflect and privilege views of “our” community that focus on objectively measurable and empirically verifiable impacts on individuals, with justificatory reasons to match.

These observed tendencies have mixed implications for my inquiry. On the one hand, they highlight that certain kinds of reasons are necessary to meet a threshold commitment to legitimacy in a plural constitutional democracy, which is a continuing concern for section 7 judgments. On the other hand, beyond that threshold, they seem to provide no sound basis for distinguishing persuasive from unpersuasive reasons to uphold constitutional rights limitations. The promotion of certain kinds of justifications under the modern approach to the principles of fundamental justice partly reduces, but also partly reinforces, contingency in judging under section 7.

Chapter 4 builds on my previous findings to suggest how that contingency ought to be perceived and addressed. I propose a novel portrayal of constitutional judgments involving the principles of fundamental justice inspired by Hannah Arendt’s work. That portrayal presses an analogy between judgments of proportionality and Arendt’s conception of political judgments, emphasizing the so-called aesthetic features that they have in common. I argue that judgments

33 Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134. 34 Bedford, supra note 2. 35 Carter, supra note 24.

20 Introduction involving the modern principles of fundamental justice are similar to well-formed opinions that appeal to a sense of taste, whose validity can only ever be established intersubjectively, i.e. between (inter-) members of a judging community. By seeking to recognize and even cherish these traces of aesthetic judgment in section 7 adjudication, my approach encourages a more candid and modest judicial attitude towards the contingent features of “our” community and their impact on assessments of good justification. Among other things, such an attitude would encourage judges to appeal to community-specific exemplars and analogies that give meaning to abstract standards of proportionality, and place greater weight on prior decisions that establish the relative priority of community commitments in concrete instances.

A greater sensitivity to the contingent foundations of section 7 judgments would create an environment in which courts and critics could better examine and justify or question those foundations. Courts and citizens would thus be able to respond more thoughtfully to the challenges that plural understandings of “our” community – and justification – pose to judicial decision- making in section 7 and potentially beyond.

21 CHAPTER 1

A PLURAL APPROACH TO THE CULTURE OF JUSTIFICATION

Scholars noting a global turn of constitutional and human rights courts towards proportionality review have recently tended to embed proportionality analysis within a broader

“culture of justification.”1 That turn of phrase is referenced by authors describing how judges make decisions using proportionality as an analytical framework and arguing about whether proportionality review is a legitimate framework for adjudicating constitutional rights. Proponents and critics tend to agree that, as a part of a broader culture of justification, proportionality analysis gives courts the responsibility to ensure that rights limitations are substantively justified by good reasons. However, they frequently disagree about whether the “pull of justification”2 inherent in proportionality analysis makes it a good or a bad thing.

In this chapter, I contend that the debate between proponents and critics over the normative desirability of the culture of justification is partly misguided. Scholars who tout or disparage proportionality for contributing to a global culture of justification fail to attend sufficiently to the nature of justifications that can carry the day when the principle of proportionality is invoked in specific places and contexts. In so doing, they overlook a significant challenge that proportionality analysis poses for contemporary judges. That challenge consists in determining what counts concretely as a good justification, when the bases for making such determinations are plural and contested.

1 See e.g. Grant Huscroft, Bradley W Miller & Grégoire Webber, eds, Proportionality and the Rule of Law: Rights, Justification, Reasoning (New York: Cambridge University Press, 2014), particularly the contributions contained in Part III of that volume. 2 David Dyzenhaus, “Proportionality and Deference in a Culture of Justification” in Huscroft et al, eds, supra note 1, 234 at 242. Chapter 1 – A Plural Approach to the Culture of Justification

To confront that challenge, I contend that there is a need to pluralize the culture of justification that features so centrally in current debates about proportionality analysis. To understand how the principle of proportionality interacts with the legitimacy of constitutional rights adjudication under conditions of normative pluralism, and ultimately to understand how judges navigate the challenges arising from that interaction, proportionality scholarship must stop emphasizing proportionality’s culture of justification in the singular. Instead it must examine the unique cultures of justification – in the plural – in which courts are immersed in particular normative communities.

My argument will proceed as follows. Part I begins by presenting proportionality analysis and the culture of justification with which it is increasingly associated in comparative constitutional scholarship. In doing so, I highlight links between the culture of justification and democratic legitimacy that purport to underpin the case for proportionality analysis. Part II tests the solidity of those links through a more sustained interdisciplinary inquiry. In light of the posited connection between the culture of justification and democratic legitimacy, I consider a body of literature in democratic theory that questions how public decision-makers can justify laws when constituents disagree not only about what is right and wrong, and good and bad, but also about the terms on which such arguments should proceed. Given that contemporary judges adjudicate constitutional rights cases against a background of similarly uncertain premises about what justice means in their normative community, I express scepticism about the ability for a singular approach to justification to explain or sustain a case for or against constitutional rights adjudication that incorporates proportionality review.

Part III then considers whether scholarly accounts of proportionality analysis side-step this problem by converging implicitly on a common understanding of persuasive justifications for

23 Chapter 1 – A Plural Approach to the Culture of Justification rights limitations. As it turns out, different scholarly portrayals of proportionality analysis correspond to contrasting approaches to the public justification of law in democratic theory.

Widespread enthusiasm for a culture of justification conceals ambiguities and disagreements about what counts as a good justification in the context of proportionality analysis. Finally, Part IV examines some characteristic methodological features of scholarship on the principle of proportionality and finds that it tends towards abstraction and universalism. As a result, that scholarship has not adequately confronted the problem that plural conceptions of justification pose to proportionality analysis and is not currently well-placed to do so.

In light of these shortcomings, I favour a methodological approach that engages more deeply and more narrowly with specific, local cultures of justification that incorporate forms of proportionality review. I undertake such an inquiry in the subsequent chapters of my thesis, focusing on section 7 of the Canadian Charter. My critique of existing literature on proportionality review in this chapter therefore lays the methodological and theoretical groundwork for my thesis’s overall argument.

I. PROPORTIONALITY REVIEW AND THE CULTURE OF JUSTIFICATION

A. Proportionality Review: An Overview

The assessment of the constitutionality of rights interferences according to the principle of proportionality has become a nearly ubiquitous feature of judicial review of government action around the world.3 Following its modern incorporation into the jurisprudence of the German

Federal Constitutional Court in the 1950s, the principle of proportionality has seen its intellectual and institutional influence on constitutional rights adjudication spread enormously. Today, it is a central feature of constitutional rights adjudication across continental Europe and beyond,

3 David M Beatty, The Ultimate Rule of Law (Oxford: Oxford University Press, 2004) [Beatty, Ultimate Rule] at 159-161.

24 Chapter 1 – A Plural Approach to the Culture of Justification including common law countries such as Canada, the UK, South Africa and New Zealand, and the mixed jurisdiction of Israel.4

As I touched on at the outset of this thesis, judges assessing the proportionality of a rights interference follow a model that is often described as having three steps.5 Assuming a government objective has been identified that is important enough to justify interfering with a constitutional right, a court will proceed as follows. At the first two steps – suitability and necessity – judges ask, first, whether the means chosen are rationally connected to the desired ends and, second, whether those means that interfere least with constitutional rights have been chosen.6 At the final step – proportionality in the narrow sense – the question is whether the concrete interference with the constitutional right is justified overall when compared against the importance of the desired ends; in other words, has a fair balance been struck been the public interest and the private right?7

In some places and contexts, courts formulate the governing doctrinal test by reference to the importance of objectives; in other places and contexts, courts emphasize beneficial effects. At times, courts insist on a systematic, sequential analysis; at other times, the proportionality inquiry calls for a global rather than mechanical judgment. Still, the family resemblances remain. The editors of a recent collection on the phenomenon of proportionality in rights adjudication rightly

4 For a description of the worldwide migration of the principle of proportionality across jurisdictions, see generally Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge, UK: Cambridge University Press, 2012) [Barak, Proportionality] at 181-210. 5 Some authors describe the preliminary question i.e. whether the ends of the challenged government conduct are important enough to warrant an interference as a step in its own right, and therefore describe proportionality analysis as having 4 steps in total. See e.g. Grant Huscroft, Bradley W Miller & Grégoire Webber, “Introduction” in Huscroft et al, eds, supra note 1, 1 [Huscroft, Miller & Webber, “Introduction”] at 2. 6 Robert Alexy, “Constitutional Rights, Balancing, and Rationality” (2003) 16:2 Ratio Juris 131 [Alexy, “Constitutional Rights”] at 135. For a general discussion of the principles of suitability and necessity, see Robert Alexy, A Theory of Constitutional Rights, trans by Julian Rivers (Oxford: Oxford University Press, 2002) [Alexy, Theory] at 397-401. 7 For a discussion of the role that balancing plays at the strict proportionality step, see Robert Alexy, “On Balancing and Subsumption: A Structural Comparison” (2003) 16:4 Ratio Juris 433 [Alexy, “On Balancing”] at 436-437.

25 Chapter 1 – A Plural Approach to the Culture of Justification point out that, “[d]espite variations in the full articulation of the proportionality doctrine, some or all of the…proportionality questions commonly feature in the assessment of rights claims. Few moral-political debates implicating rights escape proportionality analysis.”8 Given the worldwide prevalence of proportionality analysis and the balancing step with which it is closely associated, it is no surprise that so many scholars take for granted that constitutional law has entered an “age of balancing.”9 Proportionality is the dominant idea in the contemporary theory and practice of constitutional rights adjudication.

Despite some variation in local formulations of proportionality review, rights inflation is an undeniable feature of this so-called age of balancing.10 The principle of proportionality tends to go hand in hand with a broad conception of rights, and the heart of the adjudicative analysis accordingly shifts away from the interpretation of rights and towards the assessment of the reasonableness of rights interferences.11 In other words, judges interpret rights generously, then turn to the principle of proportionality, specifically means-ends rationality and balancing, to

8 Huscroft, Miller & Webber, “Introduction”, supra note 5 at 3-4. Some authors refer to the approach to rights review centred on the principle of proportionality as “proportionality analysis” while authors tend to favour “proportionality review”. Though the two expressions may have slightly different connotations, here I use them interchangeably. 9 Grégoire Webber, “Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship” (2010) 23:1 Can JL & Jur 179 at 179. Alexander Aleinikoff appears to have been the first to coin the expression “age of balancing”: T Alexander Aleinikoff, “Constitutional Law in the Age of Balancing” (1987) 96:5 Yale LJ 943. 10 Kai Möller, “US Constitutional Law, Proportionality and the Global Model” in Vicki C Jackson and Mark V Tushnet, eds, Proportionality: New Frontiers, New Challenges (Cambridge, UK: Cambridge University Press, 2017) 130 at 134. 11 Kai Möller and Grégoire Webber represent opposite poles in the debate over rights inflation, respectively praising and condemning it: see e.g. Kai Möller, “Proportionality and Rights Inflation” in Huscroft et al, eds, supra note 1, 155; and Grégoire Webber, “On the Loss of Rights” in Huscroft et al, eds, supra note 1, 123. For their longer contributions to the debate over proportionality analysis, see Kai Möller, The Global Model of Constitutional Rights (Oxford: Oxford University Press, 2012); and Grégoire Webber, The Negotiable Constitution (Cambridge, UK: Cambridge University Press, 2009).

26 Chapter 1 – A Plural Approach to the Culture of Justification determine whether rights limitations are justified.12 Given the emphasis this model places on the reasonableness of rights limitations, courts answer constitutional rights disputes without needing to determine the “correct” interpretation of constitutional provisions. David Beatty, a prominent supporter of the model, goes so far as to argue that judges attempting to determine what any given provision requires as a matter of textual interpretation mistake the judicial role.13

Most scholars agree descriptively that rights inflation and a correlative emphasis on the assessment of rights limitations are indissociable from proportionality review. However, proponents and critics part company over the desirability of such an approach to constitutional adjudication. When proponents proudly proclaim that proportionality analysis requires that all alleged rights interferences be scrutinized on the basis of proportionality, however doubtful the right and however minor the interference, critics are sceptical. For them, an expansive view of rights not only misconstrues the special nature of rights, it also leads to irrational and illegitimate outcomes. Zeroing in on the final step of proportionality, critics frequently assert that it is impossible meaningfully to weigh and balance incommensurable values against one another, which makes proportionality analysis irrational, subjective and ad hoc.14 They see and lament an approach to judicial review that reduces the importance of constitutionally recognized rights, makes rights interferences seem normal, and sows uncertainty and arbitrariness into the determination of rights disputes.

12 Mattias Kumm “Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the Point of Judicial Review” (2007) 1:2 Eur J Leg Studies 153 [Kumm, “Institutionalising”] at 161-163. 13 Beatty, Ultimate Rule, supra note 3 at 182-183. 14 Consider e.g. Jürgen Habermas, Between Facts and Norms, translated by William Rehg (Cambridge, Mass: MIT Press, 1996) [Habermas, BFN] at 259. A recent contribution to that debate is Timothy Endicott, “Proportionality and Incommensurability” in Huscroft et al, eds, supra note 1, 311.

27 Chapter 1 – A Plural Approach to the Culture of Justification

B. The Culture of Justification: A Requirement for Legitimate Law

Faced with these types of indictments, proponents have gravitated towards arguments that not only explain the popularity and prevalence of proportionality analysis, but seek to defend its rationality and normative legitimacy. Cue the “culture of justification,” an expression coined by

Etienne Mureinik to describe the foundations on which South Africa’s post-apartheid constitution should be built. Writing in 1994, Mureinik defined a culture of justification by opposition to the culture of authority (to say nothing of authoritarianism) that characterized apartheid-era law. For

Mureinik, a constitutional culture of justification was a good to be valued and protected: it was a

“culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command.”15

Mureinik never linked the culture of justification to proportionality. However, scholars defending the normative legitimacy of proportionality have begun to emphasize the central role it attributes to reasoned justification as a basis of constitutionality.16 In this context, Moshe Cohen-

Eliya and Iddo Porat connect Mureinik’s insight with what they view as the “essence of proportionality.”17 According to Cohen-Eliya and Porat, a culture of justification requires that governments “provide substantive justification for all their actions, … justification in terms of the rationality and reasonableness of every action and the trade-offs that every action necessarily

15 Etienne Mureinik, “A Bridge to Where? Introducing the Interim Bill of Rights” (1994) 10:1 SAJHR 31 at 32. 16 See e.g. Mattias Kumm, “The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review” (2010) 4:2 L & Ethics Hum Rts 141 [Kumm, “Idea”]. 17 Moshe Cohen-Eliya & Iddo Porat, “Proportionality and the Culture of Justification” (2011) 59:2 Am J Comp L 463 [Cohen-Eliya & Porat, “Culture of Justification”] at 474.

28 Chapter 1 – A Plural Approach to the Culture of Justification involves, i.e., in terms of proportionality.”18 Likewise, David Dyzenhaus has insisted that the doctrine of proportionality in all facets of public law is fundamental to an understanding of the legal order as a culture of justification.19 Stressing its role as a cornerstone of public law legitimacy,

Dyzenhaus says that proportionality promises both “legitimate rights analysis in administrative law and legitimate rights analysis in constitutional law.”20 Viewed through the lens of the culture of justification, the task for judges applying proportionality is to assess the quality of the reasons justifying a rights interference.

Supporters can point not only to constitutional practice, but also to the text of constitutions themselves, to defend such an understanding of proportionality. The analytical framework associated with proportionality analysis is rarely – if ever – articulated within constitutions or bills of rights. However, human rights instruments drafted after World War II tend to share a common structure. The Canadian Charter of Rights and Freedoms is a representative example.21 The

Charter provides in its section 1 that the rights and freedoms it protects are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”22 The emphasis of such a formulation on “what is justified” in a free and democratic society is characteristic of most modern bills of rights.23 Supporters of proportionality analysis are

18 Ibid at 463 [emphasis added]. See also Moshe Cohen-Eliya & Iddo Porat. Proportionality and Constitutional Culture (Cambridge, UK: Cambridge University Press, 2013) [Cohen-Eliya & Porat, Constitutional Culture] at 111-112, 115. 19 Dyzenhaus, supra note 2 at 234. 20 Ibid at 237. 21 Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 22 Ibid at s 1. 23 The striking exception to this observation is the United States Bill of Rights, which famously has no such limitations clause. In turn, although balancing has long played a role in constitutional rights adjudication in the United States (see e.g. Aleinikoff, supra note 9, its judiciary has on the whole resisted the global trend to place proportionality at the heart of its constitutional jurisprudence: Iddo Porat, “Mapping the American Debate over Balancing” in Huscroft et al, eds, supra note 1, 397 at 415-416. See also Paul W Kahn, “Comparative Constitutionalism in a New Key” (2003) 101:8 Michigan Law Review 2677 at 2699, 2702, 2705.

29 Chapter 1 – A Plural Approach to the Culture of Justification keen to point out that such a structure “amounts to an authorization by the text to downplay the text, i.e., to engage in the assessment of justification, rather than textual interpretation.”24 To determine whether an interference with a constitutional right is justified, constitutional judges around the world are arguably encouraged by the constitution to assess the quality of the reasons underpinning the conduct in issue. The framework prescribed by proportionality facilitates that endeavour, providing a sort of judicial cheat sheet that helps judges to “balance all relevant considerations”25 when assessing the justifications provided for impugned laws.

References identifying proportionality analysis as an inherent part of a culture of justification have since proliferated in the academic literature.26 Stephen Gardbaum summarizes the trend: “[r]ecent scholarship sympathetic to proportionality analysis as a near-universal feature of contemporary constitutionalism has tended to embed it – for explanatory or normative purposes

– in a broader culture of justification.”27

1. The Culture of Justification as an Explanation of Proportionality Analysis

The culture of justification can be relied upon to explain several of things about proportionality analysis. For one, the culture of justification is frequently invoked to describe what proportionality analysis is. Cohen-Eliya and Porat, for instance, insist that the essence of proportionality is “a requirement for justification;”28 they also contend that proportionality is “the

24 Cohen-Eliya & Porat, supra note 17 at 489-490. 25 Kai Möller, “Proportionality: Challenging the Critics” (2012) 10:3 Intl J Const L 709 [Möller, “Challenging”]. 26 For instance, in addition to Dyzenhaus’s contribution, four other essays in Huscroft et al, eds, supra note 1, approach proportionality in whole or in part through the frame provided by the culture of justification : see Huscroft (chapter 9), TRS Allan (chapter 10), Stephen Gardbaum (chapter 12) and Mark Antaki (chapter 13). 27 Stephen Gardbaum, “Proportionality and Democratic Constitutionalism”, in Huscroft et al, eds, supra note 1, 259 at 261; consider also Mattias Kumm, “Is the Structure of Human Rights Practice Defensible? Three Puzzles and their Resolution” in Jackson & Tushnet, eds, supra note 10, 51 [Kumm, “Three Puzzles”] at 52, 64-65. 28 Cohen-Eliya & Porat, supra note 17 at 474.

30 Chapter 1 – A Plural Approach to the Culture of Justification central legal device to ensure the flourishing of [the culture of justification].”29 In a slightly different vein, the culture of justification is relied on to explain the spread of proportionality analysis to jurisdictions around the world. Again, Cohen-Eliya and Porat’s work is a case in point.

Their argument is partly that proportionality analysis is popular because it fits so well within the culture of justification that emerged after World War II in Europe and which today defines constitutionalism around the globe.30

Either way, comparativists interested in describing, explaining and analyzing constitutional rights adjudication across jurisdictions have a useful ally in the culture of justification. Portraying proportionality analysis as essentially an exercise in reasoned justification allows scholars to point to a common underlying logic used by courts to adjudicate constitutional rights claims in the age of balancing.31 Moreover, the culture of justification encourages them to do so without attending much to jurisdictional boundaries. By emphasizing a common culture of justification having a global scope, scholars are able to look past doctrinal discrepancies and idiosyncrasies to identify what adherents sometimes describe as “the idea” or “the essence” of proportionality:32 the requirement that all alleged rights interferences, however doubtful the right and however minor the interference, be substantively justified. The proportionality framework simply assists in that endeavour.

In other words, the assessment of justifications according to the principle of proportionality is “largely an exercise of general practical reasoning, without many of the constraining features

29 Cohen-Eliya & Porat, supra note 17 at 482. See also Dyzenhaus, supra note 2 at 235, 237. 30 Cohen-Eliya & Porat, supra note 17 at 467, 482ff. 31 Kahn, supra note 23 at 2684. 32 See e.g. Möller, “Challenging”, supra note 25, and Cohen-Eliya & Iddo Porat, supra note 17 at 474. Comparative constitutional scholars might refer to function.

31 Chapter 1 – A Plural Approach to the Culture of Justification that otherwise characterize legal reasoning.”33 From the perspective of the culture of justification, the receding importance of constitutional texts for judges signifies the receding importance of local constitutionalisms.34 Distinctions between Canada’s constitution and Germany’s, for instance, become less and less meaningful. Viewed in this light, proportionality analysis is, as Kai Möller suggests, a form of structured analysis that directs judges around the world to justify their decisions using a specific kind of moral reasoning.35 That justificatory exercise is taken to be essentially similar whether a judge is hearing arguments in Ottawa, Strasbourg, Jerusalem or Johannesburg.

2. The Culture of Justification as a Defence of Proportionality Analysis

Supporters who link proportionality-based constitutional adjudication with a culture of justification argue that judicial review that relies on the principle of proportionality is compatible with and even essential to liberal democracy. There are two steps to this argument. The first makes a case for the rationality of proportionality analysis to defend the institutional legitimacy of constitutional rights adjudication. The second goes on to argue that proportionality-based constitutional rights adjudication is essential for the democratic legitimacy of coercive law generally in a plural society.

33 Mattias Kumm, “Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement” in George Pavlakos, ed, Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Oxford: Hart Publishing, 2007) 131 [Kumm, “Political Liberalism”] at 140; see also Kumm, “Idea”, supra note [x] at 147, 150; 34 My argument in this regard should not be confused with the one briefly canvased in Cohen-Eliya & Porat, supra note 17, at 472-473. The authors wonder whether proportionality’s appeal for constitutional courts its connected to its ability to serve as a judicial lingua france in an increasingly transnational legal environment. They conclude that the argument does not fully explain proportionality’s prevalence, asking rhetorically why proportionality is more well-suited to being a judicial lingua franca than some other categorical approach to human rights adjudication. Although I might make several replies to their rhetorical question, my argument is different: I suggest that the widespread association of proportionality with a culture of justification reinforces a scholarly lingua franca that is helpful to scholars keen to engage in conversations about constitutional rights adjudication around the world that incorporates the principle of proportionality. 35 Möller, “Challenging”, supra note 25 at 726; see also Kumm, “Three Puzzles”, supra note 27 at 64.

32 Chapter 1 – A Plural Approach to the Culture of Justification

As to the first step, by characterizing proportionality analysis as above all an exercise in reasoned justification, proponents seek to rebut arguments that balancing is subjective and irrational, and hence that judicial review that relies on proportionality is illegitimate. As discussed above, critics of balancing often allege that it is impossible to measure the weights of relevant values, rights and interests and make meaningful comparisons between them. The sting of those critiques is lessened, however, when references to balancing are understood figuratively to represent a legalized form of moral or practical reasoning, rather than an approach that requires judges literally to quantify incommensurable values and compare them against each other.36

Having disposed of arguments alleging that proportionality itself is irrational, proponents rely on the culture of justification to make a further claim that goes to the very foundations of democratic legitimacy in a plural society. Proportionality analysis is necessary not just to ensure the institutional legitimacy of judicial review, but also the democratic legitimacy of all public decision-making. This argument holds that proportionality is indispensable to deliberative or discursive democracy under conditions of pluralism because it too is underpinned by an emphasis on public discourse and reasoning.37 In fact, proponents argue that it does one better: it institutionalizes a practice of disinterested, rational reason-giving as the basis of public decision- making in a democracy. In other words, proportionality analysis gives citizens the opportunity and right to contest acts of public authorities and demand an acceptable substantive justification for

36 Moller, “Challenging”, supra note 25 at 715-716, 721, 722; Kumm, “Three Puzzles”, supra note 27 at 64-65; see also Francisco J Urbina, “Is it Really that Easy: A Critique of Proportionality and ‘Balancing as Reasoning’” (2014) 27:1 Can JL & Jur 167 at 168-169. 37 Although his work mostly predates the scholarly turn towards the culture of justification, Robert Alexy was among the first to address this connection: Robert Alexy “Balancing, Constitutional Review, and Representation” (2005) 3:4 Intl J Const L 572 [Alexy, “Balancing, Constitutional Review”] at 577-578. See also generally Pavlakos, ed, supra note 33. I discuss specific links between conceptions of justification and democratic theory in Part III of this chapter below.

33 Chapter 1 – A Plural Approach to the Culture of Justification those acts: a justification in terms of public reasons. The culture of justification thus provides a check on the existence, quality and nature of reasons invoked to support coercive laws.38

Although it has only recently been expressed using the language of the culture of justification, this line of argument has been influential in the literature on proportionality for some time. Indeed, part of the appeal of proportionality analysis has been the complementary relationship it appears to enjoy with conceptions of democracy that have public discourse at their centre. To cite but a few prominent examples outside of the work of Cohen-Eliya and Porat, discussed already,39 Aharon Barak describes proportionality as fundamental to democracy,40

Robert Alexy considers it necessary to realize constitutional rights within a discourse theory of law,41 and Kai Möller says proportionality is contiguous with more or less constrained general reasoning of the kind that ought to be practised in a democracy.42

Mattias Kumm’s work is especially notable in this regard. Kumm was one of the first and comparative constitutional scholars to defend the legitimacy of proportionality-based rights adjudication by linking it with deliberative or discursive conceptions of democracy originating in political philosophy. According to Kumm, constitutional adjudication that relies on proportionality is intrinsically democratic and should be considered among the most basic institutional commitments of a liberal democracy.43 That is because the point of rights-based proportionality review, he says, is to institutionalize a practice of “Socratic contestation” and a commitment to justification oriented toward public reasons.44 An exercise of authority must be demonstrably

38 See e.g. Kumm, “Political Liberalism”, supra note 33; Cohen-Eliya & Porat, supra note 17 at 480-481. 39 Cohen-Eliya & Porat, supra note 17 at 480-481 40 Barak, Proportionality, supra note 4 at 1-3, 214-226; see also generally Aharon Barak, The Judge in a Democracy (Princeton: Princeton University Press, 2006) [Barak, The Judge]. 41 Alexy, “Balancing, Constitutional Review”, supra note 37 at 577-578. 42 Kumm, “Idea”, supra note 16 at 165-170; Möller, “Challenging”, supra note 25 at 726. 43 Kumm, “Idea”, supra note 16 at 165; Kumm “Institutionalising”, supra note 12 at 156 and 172ff. 44 See generally Kumm, “Idea”, supra note 16 and Kumm “Institutionalising” supra note 12.

34 Chapter 1 – A Plural Approach to the Culture of Justification justified to the persons who bear the burden of that exercise in terms of public reason i.e. “reasons that are appropriate in a liberal democracy.”45 Kumm and others therefore couple proportionality review with a constitutional culture of justification, portraying the former as a sort of judicial analogue to deliberative public decision-making in the legislative and executive branches of government.

The case for proportionality analysis that results is an appealing one. But is it convincing?

In the next section, I argue that it is at least incomplete. The primacy of reasoned justification in proportionality analysis distinguishes it from other descriptions of constitutional rights adjudication that emphasize textual interpretation.46 However, to establish the normative case for proportionality analysis while taking challenges of democratic legitimacy seriously, the particular types of justifications envisioned by its proponents must be scrutinized.

II. THE CULTURE OF JUSTIFICATION AND DEMOCRATIC THEORY

In this part, I evaluate arguments that link proportionality analysis, justification and democratic legitimacy by situating those arguments within a wider body of interdisciplinary literature. Contemporary democratic theorists have grappled at length with the idea that the public use of reason might be relied on to legitimize law in a plural society. Legal scholarship that emphasizes the culture of justification insightfully links that idea with the “pull of justification” inherent in proportionality review. However, its engagement with the idea of justification in democratic theory is relatively superficial. Democratic theorists tend to be preoccupied by challenges that arise for reasoned deliberation and public justification in a normative landscape

45 Kumm, “Idea”, supra note 16 at 150. 46 Consider e.g. Kumm “Three Puzzles” supra note 27 at 51, 58ff; Cohen-Eliya & Porat, supra note 17; Möller, “Challenging”, supra note 25; Urbina, supra note 36 and more generally Huscroft et al, eds, and in particular the contributions from David Dyzenhaus, Grant Huscroft, Mark Antaki and Stephen Gardbaum. Although some of these authors do not explicitly refer to a “culture of justification”, all associate proportionality closely with the requirement to substantively justify rights interferences.

35 Chapter 1 – A Plural Approach to the Culture of Justification characterized by value pluralism, plural and fluid senses of collective identity, and competing conceptions of the public good. But those challenges are largely ignored by constitutional scholars who invoke the idea of public justification to support the legitimacy of proportionality analysis.

What counts as a good, legitimate justification in a contemporary normative community is more complicated, and deserves more sustained attention, than legal scholars writing about the culture of justification seem to contemplate.

A. Legitimate Law and the Public Use of Reason: Bases in Democratic Theory

As mentioned above in section I.B, many proponents of proportionality analysis highlight a connection between proportionality’s culture of justification and discursive and deliberative conceptions of democracy. Those conceptions of democracy have their basis in a particular theoretical account of democratic legitimacy, which I explain next.

Discursive and deliberative conceptions of democracy have emerged as central to contemporary democratic theory primarily as a response to the challenges that social and cultural pluralism pose to the legitimacy of law. Liberal conceptions of legitimacy tend to begin from the premise that, to be legitimate, coercive laws must be publicly justified on a basis that reasonable persons could reasonably accept. In a world characterized by deep pluralism, philosophers working in the liberal tradition have questioned how this criterion of legitimacy could be respected. In a nutshell, in a society characterized by cultural diversity and social complexity, a citizen could be forgiven for wondering: “why should I obey a law that has been enacted without regard for my worldview or my understanding of what makes life worth living?”47 Confronted with this challenge, political philosophers have gravitated towards theories of democracy that emphasize

47 Variations of these questions underlie John Rawls’s Political Liberalism, paperback ed (New York: Columbia University Press, 1996) [Rawls, Political Liberalism] at xlvi and xxvii; and Habermas’s BFN, supra note 14 at ix-xiv.

36 Chapter 1 – A Plural Approach to the Culture of Justification the role of public discourse to justify coercive law. Amongst liberal thinkers, Jürgen Habermas and John Rawls have probably done more than anyone else to place the public use of reason at the forefront of contemporary political philosophy.

Habermas’s philosophical efforts to reconcile democracy with the plural worldviews of modernity have centred on public discourse. Between Facts and Norms,48 Habermas’s sweeping discourse theory of law and democracy, is at the heart of his thought on this topic. For Habermas, legitimate norms must be generated through genuinely discursive processes aimed at reaching so- called rational outcomes to which all possibly affected persons could agree, as participants in the discourse. On the condition that appropriate procedural conditions are met, the legitimacy of outcomes is disconnected from metaphysical or religious truth claims. Instead, they depend on a rationality that is dialogical and intersubjective – in Habermas’s parlance: “communicative”.49

Rawls approaches the problem of legitimacy in a plural society from a slightly different perspective, which leads him to a slightly different conclusion about the relationship between the public use of reason and legitimate law.50 Rawls, mainly in Political Liberalism, argues that the foundations of legitimate law in a plural society rest on the adoption by citizens of shared practices of public deliberation. On Rawls’s view, in a society characterized by a diversity of reasonable but irreconcilable comprehensive worldviews, citizens and legislators owe each other the obligation to deploy only certain kinds of reasons in public discussion. The reasons offered to justify coercive laws – what he called public reason – should be stripped of metaphysical underpinnings so as to

48 Habermas, BFN, supra note 14. 49 Ibid at 437. 50 Rawls, Political Liberalism, supra note 47; see also John Rawls, The Idea of Public Reason Revisited” (1997) 64:3 U Chi L Rev 765; and Jürgen Habermas, “Reconciliation through the Public Use of Reason: Remarks on John Rawls's Political Liberalism” (1995) 92:3 J Phil 109.

37 Chapter 1 – A Plural Approach to the Culture of Justification resonate with all reasonable members of the polity.51 Reasons that fail to meet this criterion should not be relied on in public debate. In short, both Habermas and Rawls ground their idealized conceptions of legitimate law and public justification in a plural liberal democracy in the exchange of reasons that fellow citizens ought to find reasonably acceptable.

B. Public Reason and Inclusive Discourse

Rawls’s and Habermas’s contributions to democratic theory have dominated contemporary political philosophy and marked scholarly engagement with the challenges modern pluralism poses to justice and legitimate law. Reactions vary. But whether embraced by deliberative democrats such as James Bohman and Seyla Benhabib, challenged by agonistic pluralists such as Chantal

Mouffe, or maligned by critics anxious to preserve a space for religious political arguments, such as Jeffrey Stout and Nicholas Wolterstorff,52 few reject the inherent connection highlighted by

Rawls and Habermas between public discourse and democratic legitimacy. To the contrary, critiques of Habermas’s and Rawls’s models of public reasoning in a democracy tend to underscore the importance of robust and inclusive practices of discursive contestation as a means of ensuring legitimate public decision-making.

51 The precise content of public was to be informed by a freestanding political conception of justice that ought to form the object of an overlapping consensus. It is freestanding because it purports to be independent of any particular religious or metaphysical beliefs. It is political because it comprises substantive political but not moral principles. Its freestanding and political character is in turn what allows it to be shared by all citizens. Atheists, Utilitarians, Buddhists, Muslims and Christians, for instance, should be in a position to affirm the political principles that make up the freestanding conception of justice without contradicting their most fundamental beliefs. 52 See e.g. James Bohman & Henry Richardson. “Liberalism, Deliberative Democracy and ‘Reasons All Can Accept’” (2009) 17:3 J Pol Phil 253; Seyla Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton: Princeton University Press, 2002) at 133-146; Chantal Mouffe, “Deliberative Democracy or Agonistic Pluralism?” (1999) 66:3 Social Research 745; Jeffrey Stout, Democracy and Tradition (Princeton: Princeton University Press, 2004); Nicholas Wolterstorff, “The Role of Religion in Decision and Discussion of Political Issues” in Robert Audi & Nicholas Wolterstorff, Religion in the Public Square: The Place of Religious Convictions in Political Debate (Lanham, Md: Rowman & Littlefield, 1997).

38 Chapter 1 – A Plural Approach to the Culture of Justification

This abiding concern to legitimate law by making public reasoning more inclusive has elicited three types of responses. The first relates to the way people should reason, as an ideal, when debating issues of public concern. The second relates to the legal, political and social institutions within which the public exchange of reasons, and public decision-making, should and does occur.53 The third relates to the persons who have a stake in public decision-making, and the channels of communication through which they exchange reasons.

As regards the first response, many theorists have questioned the desirability of public reasoning as envisioned by Rawls and Habermas. They contend that reasoning about justice is value pluralist.54 Different disputes about what is just implicate different values; moreover, a dispute about what is just can be considered in light of different values, giving rise to different outcomes, all of which may reasonably lay claim to being just. It follows that in a diverse society, substantive limitations placed on the public use of reason, even as a regulative ideal, ought to be relaxed.55 Other than requiring reasons to be motivated by a genuine concern for the public interest, however understood, any constraints imposed on public reasoning should be primarily procedural, relating to the civil manner and respectful spirit in which reasons are presented, rather than to their content. In today’s plural societies, the argument continues, the quality of public sphere deliberation and of democracy is enhanced by engaging with dissonant perspectives.

As for the social, political and legal institutions necessary to support an inclusive public sphere, here too critics have argued their design should enhance the ability of diverse constituents

53 Benhabib, supra note 52 at 133. 54 Notable value pluralist accounts of public reasoning include Amartya Sen, The Idea of Justice (Cambridge, Mass: Belknap Press of Harvard University Press, 2009), especially at Inroduction and Chapters 15-18; Linda Zerilli, “Value Pluralism and the Problem of Judgment: Farewell to Public Reason” (2012) 40:1 Political Theory 6; and Stout, supra note 52, especially at Chapters 10-12. 55 See e.g. Bohman & Richardson, supra note 52 and Wolterstorff, supra note 52, who despite proceeding from very different premises, tend to converge on a procedural model of public reason.

39 Chapter 1 – A Plural Approach to the Culture of Justification to reason meaningfully with each other in public and participate on an equal footing in public decision-making.56 To overcome participation barriers stemming from cultural and socio- economic differences, critics have imagined a host of institutional improvements that might strengthen the role that inclusive, rational discourse plays in democratic decision-making.57

Fostering sites of public interaction within disenfranchised groups, institutionalizing legislative or judicial power-sharing arrangements, supporting multicultural or multilingual media organs: these are only a handful of the many suggestions advanced to “widen the democratic inclusion of underrepresented minorities.”58

With that same concern in mind, lately, a third strand of criticism has become influential in debates concerning the ability of public reasoning to serve as the critical and effective rational force democratic theorists hope it to be. That criticism has cast doubt on a premise that long underpinned the work of Habermas, Rawls and many of their critics listed above: the assumption that the state was the exclusive or even pre-eminent forum within which public reasons were to be exchanged.59 That assumption has given way to a realization that there exists within and across national borders a multiplicity of sub- and trans-national networks of public discourse that cannot be ignored when assessing the legitimacy of public decision-making in plural societies. These networks, which are fluid, overlapping and have little regard for international boundaries, have

56 Consider Michael Warner, “Publics and Counterpublics” (2002) 14:1 Public Culture 49; see also the articles listed by Nancy Fraser in Scales of Justice: Reimagining Political Space in a Globalizing World (New York: Columbia University Press, 2009) [Fraser, Scales of Justice] at 82, footnote 13. 57 Nancy Fraser, “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy” (1990) No. 25/26 Social Text 56 [Fraser, “Rethinking”] at 63-65. 58 Ibid at 65-70; see also Warner, supra note 56 at 85-87; Benhabib, supra note 52 at 147-149; Iris Marion Young, Inclusion and Democracy (Oxford: Oxford University Press, 2000) at Chapter 2. 59 See e.g. Stephen Elstub, “Overcoming Complexity: Institutionalising Deliberative Democracy through Secondary Associations” (2007) 16:1 Good Society Journal 14 at 14.

40 Chapter 1 – A Plural Approach to the Culture of Justification been described by James Tully as a “global multiplicity of public spheres.”60 That global multiplicity has added a further layer to the conventional social and cultural pluralisms that shaped political and social theory from the Reformation until today.

This global multiplicity is composed of public spheres that come in almost infinite varieties. Nancy Fraser has pointed out that democratic theory must pay attention to subnational sites of public discourse composed of members of subordinated social groups such as women, workers, gays and lesbians, or people of colour.61 Other authors have turned their minds to the increasingly transnational character of justice concerns and public reason-giving, fostered notably by economic globalization, the authority of supranational and international institutions of governance, and social communication networks.62 These networks can in turn give rise to publics that coalesce around different nodes: cultural affinities, ideological commitments, professional roles, social status, and issue of common concern.63 The constituencies united in these networks do not necessarily, and in many cases necessarily do not, track national geographic boundaries, or any geographic boundaries at all.64 Moreover, as any given individual participates within different

60 James Tully, “On the Global Multiplicity of Public Spheres”, in Christian J Emden & David Midgley, ed., Beyond Habermas: Democracy, Knowledge and the Public Sphere (New York: Berghahn Books, 2013) 169 [Tully, “Global Multiplicity”]. 61 Fraser, “Rethinking”, supra note 57 at 67-68, 70. Fraser’s insights have sowed the seeds for a plethora of scholarly work that lauds the potential of those publics to foster novel ideas, and explores the systemic obstacles that cause their members to be excluded from equal participation in the wider public. Consider for instance, Warner, supra note 56; or Robert Asen & Daniel C Brouwer, eds. Counterpublics and the State (Albany: State University of New York Press, 2001). 62 See e.g. Jürgen Habermas, “The Postnational Constellation and the Future of Democracy” in Jürgen Habermas, The Postnational Constellation: Political Essays, translated and ed by Max Pensky (Cambridge, Mass: MIT Press, 2001); and Manuel Castells, “The New Public Sphere: Global Civil Society, Communication Networks, and Global Governance” (2008) 616:1 The ANNALS of the American Academy of Political and Social Science 783; Elstub, supra note 59. 63 Bernhard Peters, “National and Transnational Public Spheres” in Harmut Wessler, ed, Public Deliberation and Public Culture: The Writings of Bernhard Peters, 1993-2006 (Basingstoke, UK: Palgrave Macmillan, 2008) 185 at 185-187; Roger Cotterrell, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (Aldershot, UK: Ashgate, 2006) at 68-70. 64 Peters, supra note 63 at 185-187.

41 Chapter 1 – A Plural Approach to the Culture of Justification publics in different times and places, sometimes all at once, public spheres are not merely layered and overlapping in a geographic sense, but also at the level of the individual.

C. Democratic Theory and Proportionality Scholarship: Critical Insights

1. Inclusion and Abnormal Justice

In the context of my present inquiry, two important insights ought to be taken away from this brief overview of the political philosophical literature addressing the relationship between public reasoning, democratic legitimacy and the public justification of law. In the first place, the theorizing of political philosophers is dynamic and evolving. My overview was admittedly brief, and only scratched the surface of a rich and complex set of theoretical questions about how coercive law ought to be publicly justified in plural societies. However, it probed deeply enough to reveal the complex efforts at theoretical critique and reconstruction undertaken by democratic theorists who sympathize with Rawls and Habermas, but who disagree with the precise accounts of legitimacy they propose. Those efforts suggest fundamental challenges for accounts of democratic legitimacy premised on the public use of reason, not settled answers. Accounts of proportionality analysis that do not take seriously the complexities of democratic legitimacy are accordingly likely to misunderstand and misconstrue the requirements of justification it imposes.

The second insight is more substantive. The critiques canvassed above do not necessarily converge on a common prescription to ensure the democratic legitimacy of law in plural societies.

Still, those critiques are animated by common themes. There is, above all, the concern to ensure that the public discourse that underpins legitimate public decision-making in a democracy is appropriately inclusive. As the multiplicity of critiques suggest, inclusion can take various forms: it can be considered from the perspective of the contents of public reasoning, the design of decision-making institutions and procedures, or the territorial and conceptual scope of analysis.

42 Chapter 1 – A Plural Approach to the Culture of Justification

Nancy Fraser’s work on public sphere theory offers a helpful frame to make sense of these differing forms of inclusion. In Scales of Justice, Fraser argues that current public discourse in matters of justice is beset by uncertainty and disagreement about the basic terms of debate.65 First, people disagree about the substantive values and principles ought to guide decision-makers.

Second, they disagree about the methods and procedures that decision-makers ought to follow.

Third, they disagree about whose opinions and interests decision-makers ought to consider.

According to Fraser, then, disagreements about controversial public issues that raise justice concerns can frequently be traced back to meta-disagreements about these terms – about the

“what”, “how” and “who”. Fraser describes this state of affairs as one characterized by abnormal justice discourse.66

Fraser’s questions about the “what”, “how” and “who” of justice can be mapped onto the concerns with different forms of inclusion described in the previous section. Critiques about the contents of public reason reflect differing views about what substantive values persons ought to consider when reasoning together in public. Institutional critiques reflect differing views about how public decisions ought to be made. Critiques that relate to reconfigured patterns of public discourse reflect underlying uncertainties about who ought to reason together in matters of public concern. These differences about the criteria for assessing the inclusiveness of public discourse, and ultimately the legitimacy of law, underscore an ambiguity about the underlying terms of debates about whether government action is justified. In the next subsection, I explain how these insights shed light on the challenge to justification that is important for proportionality analysis.

65 Fraser, Scales of Justice, supra note 56 at 52-57. See also Nancy Fraser, “Abnormal Justice” (2008) 34:3 Critical Inquiry 393 [Fraser, “Abnormal Justice”] at 397-400; and Nancy Fraser “Who Counts? Dilemmas of Justice in a Postwestphalian World” (2010) 41:s1 Antipode 281. 66 See generally Fraser, “Abnormal Justice”, supra note 65 and Fraser, Scales of Justice, supra note 56 at 48-75.

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2. Limitations of “the” Culture of Justification

Recall now the close connection between proportionality analysis and a culture of justification, canvassed in Section I.B above. As I there described, the scholarly turn towards a culture of justification sees proportionality-based rights review as a means of ensuring the democratic legitimacy of coercive law. It institutionalizes the right for citizens to contest the acts of public authorities that interfere with constitutional rights and demand a public reasons-based justification for that interference. The importance of these correctives is heightened by perceived shortcomings of the political process. When politics falters, judicial decision-making safeguards the rule of rational discourse in public decision-making and with it the legitimacy of law in plural liberal democracies. However, the claims to democratic legitimacy made by scholars of the culture of justification are notable for what they do not include. Those claims do not acknowledge or reference the complicated and contested character of public justifications that characterizes the literature in democratic theory to which they are ostensibly connected.

This omission leads to two observations. In the first place, arguments that rest the legitimacy of proportionality analysis on its capacity to institutionalize a culture of justification cannot be assessed against a monolithic conception of public reason and public justification. Those arguments should be considered against the intricate tapestry of public reasons described above.

Scholarship that embeds proportionality analysis within a culture of justification helpfully highlights the potential for proportionality-based rights review to buttress or complement the democratic legitimacy of law in the face of the challenges of pluralism. But the degree to which constitutional adjudication actually contributes to legitimate public decision-making, by promoting inclusive and rational public discourse, is another thing altogether. That contribution will depend on the myriad factors that influence the give and take of reason-giving in constitutional adjudication: what reasons are presented to judges in the context of proportionality-based

44 Chapter 1 – A Plural Approach to the Culture of Justification constitutional adjudication, who presents them, how judges respond to those reasons, and how the overall exchange of reasons interacts with the plural approaches to justification contemplated in the political philosophical literature.67

In the second place, scholars who embed proportionality analysis within a broader culture of justification must consider what the theoretical contest over legitimate public justification means for constitutional adjudication. Granted, the adjudicative setting with which comparative constitutional scholars are primarily concerned may have a normalizing and constraining impact on debates about justice, especially when compared to the relatively unconstrained character of justice discourse in the global multiplicity of public spheres. But it would be a mistake to emphasize too heavily the force of that constraint when it comes to constitutional adjudication in general and proportionality review in particular.

Nancy Fraser herself has drawn attention to the possibility of disagreements over the basic premises of legal debates about justice. She mentions the controversy over the use of foreign sources of law that has dogged the United States Supreme Court for at least the last decade and a half.68 Judges have argued with each other over the admissibility, relevance and authority of non-

US legal materials in judicial decision-making. This debate – about what counts as a good justification – provides one concrete example of a meta-disagreement about justice that has been transposed to the world of constitutional adjudication.69

67 One recent critical effort that has sought to uncover links between proportionality and particular conceptions of public reasoning and political morality is Bradley W Miller, “Proportionality’s Blind Spot: Neutrality and Political Philosophy” in Huscroft et al, eds, supra note 1, 370 at 383-394. 68 See e.g. Roger P Alford, “In Search of a Theory for Constitutional Comparativism” (2005) 52:3 UCLA L Rev 639; Mark Tushnet, “Referring to Foreign Law in Constitutional Interpretation: An Episode in the Culture Wars” (2006) 35:3 Balt L Rev 299; Richard A Posner, “Foreword: A Political Court” (2005) 119:1 Harv L Rev 31 at 84-90. 69 Fraser, Scales of Justice, supra note 56 at 50.

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Constitutional courts in other jurisdictions are even more likely to be susceptible to meta- disagreements about the terms of their justice debates. Indeed, the disagreement referenced by

Fraser unfolded at the US Supreme Court, a court that much more than its counterparts in other countries, including in Canada, endorses a textual, categorical, approach to constitutional adjudication.70 When courts apply proportionality tests, substantive constraints on legal discourse are less strict. Equated with the culture of justification, proportionality analysis emphasizes an expansive understandings of rights; it minimizes the importance of constitutional and legal texts; it ties the legitimacy of judicial review to democratic theory; it analogizes balancing to general moral reasoning that is more or less constrained. It identifies proportionality analysis overall with public justification simpliciter. This prevailing scholarly approach to proportionality analysis erases conceptual (but not pragmatic) distinctions between constitutional adjudication and law- making more generally. Since arguments marshalled to demonstrate that this or that rights interference is justified are freed from many of the conventional constraints of legal discourse, questions about the what, how and who of justice and justification seem poised to resurface in the courtroom. ef

Courts making constitutional rights decisions confront a fractured and unstable normative landscape in which the bases of good justifications are plural and contested. If scholars of proportionality-based constitutional rights adjudication wish to hitch its legitimacy and validity to the public justification of law in a liberal democracy, they must consider the challenges such an approach raises. In plural normative communities, the premises that underpin debates about justice and justification – what values matter, how disputes ought to be resolved, and whose interests and

70 Cohen-Eliya & Porat, Constitutional Culture, supra note 18 at 58.

46 Chapter 1 – A Plural Approach to the Culture of Justification viewpoints count – are contested. They do not form the object of a social consensus and cannot be asserted by reference to constitutional and legal texts. The uncertainty of these premises poses an important challenge for judges who rely on the principle of proportionality to decide constitutional rights cases, and ultimately threatens the legitimacy of their decisions. However, the singular frame of reference suggested by the culture of justification is unlikely to help shed light on that challenge.

III. THE CULTURE OF JUSTIFICATION’S SUBSTANCE: CO-EXISTING ACCOUNTS IN PROPORTIONALITY SCHOLARSHIP

Scholarly literature that embraces the culture of justification does not appear well positioned to address the challenges that abnormal justice discourse poses to proportionality analysis. But before attempting to address those challenges substantively in my thesis, another possibility should be considered. Though that scholarship may not explicitly address the question of what justifications proportionality permits, tolerates or requires under conditions of abnormal justice, it may still implicitly converge on a stable and predictable account of legitimate justification. To test that hypothesis, this part surveys how justification is portrayed by some influential scholars of proportionality. I highlight similarities and differences among those portrayals themselves, and between those portrayals and accounts of legitimate public justification in democratic theory. My survey indicates that scholars’ depictions of justification under proportionality tend to be ambiguous or in contradiction with one another. I conclude that the unity implied by a singular culture of justification does not exist.

A. Proportionality as Public Reason: Kumm

1. Kumm’s Account of Public Justification

The conception of proportionality – and justification – found in Mattias Kumm’s work is a convenient place to begin. As described in section I.B, Kumm argues that constitutional adjudication that relies on proportionality is intrinsically democratic and should be considered

47 Chapter 1 – A Plural Approach to the Culture of Justification among the most basic institutional commitments of a liberal democracy.71 The “point” of rights- based proportionality review, he says, is to institutionalize a practice of “Socratic contestation” and a commitment to justification oriented toward public reasons.72

What kind of justification does Kumm have in mind? Kumm provides the beginning of an answer when he ventures that an exercise of authority must be demonstrably justified to the persons who bear the burden of that exercise in terms of public reason i.e. “reasons that are appropriate in a liberal democracy.”73 But this answer merely suggests a second question: what types of justifications are appropriate in a liberal democracy? That question is a tricky one for Kumm. He enthusiastically embraces the association of proportionality with justification, largely equating proportionality with general practical reasoning.74 His portrayal leaves little work for the constitutional text to do to determine what reasons are appropriate or reasonably acceptable in a liberal democracy. However, Kumm also insists that the right to justification institutionalized through proportionality is more than merely formalist or pragmatic;75 it implies a “particular conception of legitimate legal authority.”76

Kumm resolves this conundrum by providing an account of justification under proportionality that draws liberally on the conception of public reason developed by Rawls – despite the sustained criticism of that conception by democratic theorists discussed above.77

Repeatedly echoing Rawlsian language, Kumm argues that a valid justification for coercive law

71 Kumm, “Idea”, supra note 16 at 165. 72 See generally ibid and Kumm, “Institutionalising”, supra note 12. 73 Kumm, “Idea”, supra note 16 at 150; Kumm, “Institutionalising”, supra note 12 at 162. 74 Kumm, “Idea”, supra note 16 at 147, 150; Kumm, “Political Liberalism”, supra note 33 at 140; Kumm, “Institutionalising”, supra note 12 at 154, 159, 162. 75 Kumm, “Idea”, supra note 16 at 147; Kumm, “Institutionalising”, supra note 12 at 159. 76 Kumm, “Idea”, supra note 16 at 143. 77 Ibid at 150 (and at footnote 16), and at 159-160 (footnote 46). Despite the numerous parallels, and as discussed below, Kumm never explicitly endorses Rawls’s particular conception of public reason.

48 Chapter 1 – A Plural Approach to the Culture of Justification must be one that citizens “might reasonably accept.”78 In contrast to other authors who highlight proportionality’s potential for complete moral agnosticism, Kumm sees in proportionality a minimal substantive core that mirrors the values embodied in political liberalism’s commitment to principles of justice.

The reasons that Rawls excludes79 seem to be those that Kumm considers inappropriate in a liberal democracy to support public decision-making. For example, Kumm singles out as inappropriate reasons based on uncritical preferences, traditions and conventions; reasons that rely on “comprehensive” doctrines, i.e. conceptions of the good life; reasons with insufficient grounding in empirical realities; and partial reasons – reasons that are invoked to confer benefits on particular interest groups without regard for the collective good.80 As Kumm stresses, none of these reasons would meet Rawls’s substantive requirements for public reason, since they make no attempt to justify legal action in terms that all citizens, “as free and equal partners in a joint enterprise of law giving”81 might reasonably accept. Following Rawls, Kumm’s account of the culture of justification appears to be this: given the fact of reasonable pluralism, and the requirement of universal reciprocity, the type of justification proportionality requires is constrained conceptually and substantively by liberal democratic values.

2. Rawlsian-ish Public Reason?

Kumm’s account of reason-giving that is compatible with proportionality-based rights review is but one among many competing theoretical visions of justification, as I will shortly show.

But before contrasting Kumm’s account of justification with other notable ones, I would briefly like to consider his account on its own terms. On that basis alone, what counts as a justification

78 Ibid at 168, 169, 171; Kumm, ““Institutionalising”, supra note 12 at 177. 79 Rawls, Political Liberalism, supra note 47 at l-li and 226ff. 80 Kumm, “Idea”, supra note 16 at 157-164. 81 Ibid at 168-169.

49 Chapter 1 – A Plural Approach to the Culture of Justification capable of legitimizing law in a plural society is revealed to be at best ambiguous, and at worst contradictory.

Despite the strong echoes of Rawls in his work, Kumm maintains that his fundamental claim – that the point of proportionality-based constitutional rights adjudication is to institutionalize a right to Socratic contestation – is independent of any particular conception of public reason.82 According to Kumm, proportionality merely provides a structure for considering what reasons are relevant in the circumstances and what reasons are not and should be excluded.83

This apparently minor clarification provided by Kumm is significant. If Kumm is not committing himself to Rawls’s conception of public reason in particular (or any other conception, for that matter), then much remains to be resolved about what justifications are “public” enough to be invoked to support judgments about what is proportionate. As my review of the critical scholarship in Part II suggests, democratic theorists continue to be concerned about the types of reasons, addressed to whom, that can support legitimate law in a liberal democracy.

Kumm’s position presents a conundrum. A reader can either infer that, notwithstanding his statements to the contrary, Kumm posits a necessary connection between proportionality analysis and a conception of justification that is substantively constrained by liberal democratic values, along the lines drawn by Rawls. Viewed thus, proportionality’s culture of justification filters the reasons available for consideration in constitutional rights adjudication substantively.

82 Ibid at 160, and Kumm’s n 46, in which Kumm specifically insists that his argument does not hinge on the endorsement of any of Rawls’s particular claims in that regard: “Even though the basic structural features of the Rawlsian idea of public reason are compatible with the idea of proportionality based reasoning about rights, the argument presented here does not depend on the specific claims John Rawls makes in Political Liberalism or in ‘Public Reason Revisited’ about the scope and operation of the idea of public reason.” 83 Kumm, “Idea”, supra note 16 at 160.

50 Chapter 1 – A Plural Approach to the Culture of Justification

Alternatively, a reader can take Kumm at his word when he says that proportionality analysis is merely a forum – but not a criterion – for determining when justifications are legitimate.

Both variations of his claim present difficulties. If equated to Rawls’s position, his claim is contentious for the burden it imposes on cultural and religious minorities in plural societies. I have already discussed the disproportionate character of those burdens and the criticisms they have attracted from theorists of public decision-making and deliberative democracy since Political

Liberalism was published. Conversely, if proportionality analysis is nothing but a starting point or framework for discussing what reasons are relevant in the circumstances, Kumm’s claim is striking for its modesty. In fact, I argue it is too modest to underpin the normative case for proportionality review. The question of what the culture of justification stands for is ironically evacuated from the comparative constitutional scholarship that places proportionality at the centre of the culture of justification and the culture of justification at the centre of proportionality. Proportionality’s “core” or “point” or “essence” – public justification – ends up being an empty vessel.84

In short, Mattias Kumm, one of proportionality analysis’s leading proponents, provides an account of substantive justification that privileges links with John Rawls’s political liberalism and his idea of public reason. Even so, Kumm’s account turns out to be rather uncertain and capacious.

It leaves open the possibility of plural perspectives on “appropriate” reasons, and accordingly says little about the kinds of justifications proportionality encourages, tolerates or requires.

84 Kumm himself seems to hesitate between these two positions, not only within “Idea”, supra note 16 but across his scholarship on constitutional rights adjudication. Compare Kumm, “Political Liberalism”, supra note 33 with Mattias Kumm & Alec D Walen, “Human Dignity and Proportionality: Deontic Pluralism in Balancing” in Huscroft et al, eds, supra note 1, 67 at 68-69 and with Kumm, “Three Puzzles”, supra note 27 at 65, 69. As Miller suggests, supra note 67, at 389, Kumm’s overall view of the relationship between proportionality and political liberalism continues to be ambiguous.

51 Chapter 1 – A Plural Approach to the Culture of Justification

B. Proportionality as Fact-Based Adjudication: Beatty85

Other scholars have different perspectives on proportionality’s culture of justification. If one were to construct a spectrum of conceptions of justification under proportionality, David

Beatty’s would in many ways lie at the opposite end from Kumm’s. Like Kumm, Beatty is a champion of proportionality analysis. But unlike Kumm, his conception of justification under proportionality is rather anti-theoretical. For Beatty, proportionality does not merely ensure that justifications are logically tested and neutral between different conceptions of the good. In addition, proportionality seems to promise judicial decision-making that will be faithful to reality and so deliver objectively valid results.

In The Ultimate Rule of Law, Beatty sets out to systematically assess the performance of constitutional courts around the world in light of what he calls the ultimate rule of law: the principle of proportionality.86 Beatty’s argument is ambitious: he claims that all constitutional rights disputes can be properly and objectively resolved only using the principle of proportionality.87

Espousing like Kumm the turn from interpretation to justification, Beatty rejects explanations of constitutional adjudication that emphasize its interpretive or semantic character. To attempt to distil the true meaning of constitutional provisions and then apply those provisions to concrete disputes is a misguided enterprise that depends on judicial preferences and leads to illegitimate and incorrect outcomes.

Proportionality review, in contrast, promises objectivity and legitimacy in constitutional

85 Portions of this section are based on a summary of Beatty’s work that figures in my LLM thesis: Geoffrey Conrad, Exemplars or Exceptions: Imagining Constitutional Courts in a Religiously Diverse Society (LLM Thesis), University of Victoria Faculty of Law (2012) [unpublished] at 74-77. 86 Beatty, Ultimate Rule, supra note 3; see also David M Beatty, “In Praise of Casuistry: Making Hard Cases Easier” in Vicki C Jackson & Mark Tushnet, eds, Proportionality: New Frontiers, New Challenges (Cambridge, UK: Cambridge University Press, 2017) 273 [Beatty, “Casuistry”]. 87 Beatty, Ultimate Rule, supra note 3 at 171.

52 Chapter 1 – A Plural Approach to the Culture of Justification adjudication because it turns judges’ attention away from textual authorities and towards the concrete impacts of contested laws:

Proportionality transforms judicial review from an interpretive exercise, giving meaning to the words of a constitutional text, into a very focused factual inquiry about the good and bad effects of specific acts of the state. Cases are decided on their individual merits, one at a time, rather than on the basis of categorical definitions divined by textual exegesis.88

Beatty continually insists on the determinative importance of the factual inquiry. At the balancing stage of proportionality, he explains that the job of the judge is simply “to assess whatever hard empirical evidence throws light on the question of how significant the law under review is to those it affects the most.”89 Proportionality analysis compels judges to reason through constitutional rights disputes by paying close attention to the facts.

How does this fact-centred account of proportionality analysis line up with the political philosophical literature on discursive justice? The short answer is it does not. Beatty displays little interest in the challenges posed by normative pluralism for just and legitimate public decision- making. This disinterest makes sense given his premises. Beatty portrays proportionality analysis as so resolutely objective that justifications for rights interferences are insulated from politics.

Beatty’s treatment of same-sex marriage claims in a variety of jurisdictions helps to illustrate the vision of justification he associates with proportionality analysis. Despite the moral and legal questions entwined with constitutional challenges to opposite-sex definitions of marriage

– such as the meaning and limits of family, liberty, equality, human dignity and religious freedom in plural societies – Beatty insists that a pragmatic proportionality-based approach turns these into

88 Ibid at 182-183. 89 Ibid at 93.

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“straightforward and relatively easy”90 cases. According to Beatty, it is “a matter of fact”91 that laws that enshrine opposite-sex definitions of marriage have much more significance for the lives of homosexual couples than they do for others. As a result, such laws are obviously unconstitutional.92

This empirical and pragmatic orientation – which allows proportionality analysis to access an external reality of “hard” facts without regard for moral and normative commitments – gives to the culture of justification an objective, scientific shape that transcends the questions of legitimacy and political morality that preoccupy political philosophers.93 Beatty’s approach to justification decries a false legal science of textual exegesis. But ironically, it seems to affirm a true (social) legal science of empiricism. The facts speak for themselves when it comes to constitutional judging within a proportionality framework.

As a consequence, justification under proportionality analysis looks different from Beatty’s perspective than it does from Kumm’s. Although both cheer proportionality’s turn from interpretation to justification, and see in that turn a guarantee of either neutrality or objectivity, they picture justification in different terms. Kumm’s account of justification under proportionality is highly theorized, inspired by a political philosophical conception of justice and legitimacy and imposes substantive constraints on the reasons that can justify legitimate interferences with constitutional rights. In this guise, proportionality’s culture of justification is contiguous with

90 Ibid at 114 91 Ibid. 92 Ibid at 114-115; see also Beatty, “Casuistry”, supra note 86 at 284. 93 Beatty, “Casuistry”, supra note 86 at 286-287. Beatty’s influential depiction of proportionality analysis has been the object of numerous criticisms by legal scholars, by proponents and critics of proportionality analysis alike. Although not directly concerned with Beatty’s work, Suzanne B Goldberg is one author that has forcefully demonstrated that practices of adjudication described as “fact-based” inevitably conceal thick normative judgments, a point to which I will return in Chapter 3 of this thesis. See Suzanne B Goldberg, “Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication” (2006) 106:8 Colum L Rev 1955.

54 Chapter 1 – A Plural Approach to the Culture of Justification liberal political and moral reasoning under conditions of normative pluralism, with all the legitimacy challenges that entails. In contrast, Beatty’s account, developed primarily in The

Ultimate Rule of Law, is pragmatic. He depicts and defends a justificatory culture in which facts are determinative and empirical scrutiny ensures not just legitimate but objectively valid judgments. In this guise, proportionality’s culture of justification has little reason to preoccupy itself with challenges of normative pluralism.

C. Variations on a Theme: Public Reasons

Robert Alexy and Aharon Barak are probably the most well-known advocates and proponents of proportionality analysis. Because their understandings of proportionality analysis also resemble each other in key respects, I discuss their conceptions of justification together in the present section.

Alexy and Barak each characterize proportionality-based justifications in terms that share some features with Kumm’s account and others with Beatty’s. Like Kumm, they associate proportionality analysis with liberal political philosophical approaches to discursive justification.

Like Beatty, they insist on the importance of the facts of the case. Unlike Kumm, however, neither

Alexy nor Barak implies a necessary link between proportionality and any particular conception of liberal justice. And although they embed proportionality review within a culture of justification, unlike Kumm and Beatty both, they continue to attribute some weight to normative commitments embodied in local constitutional texts, practice and values. Their accounts of proportionality analysis are accordingly compatible with differing approaches to justification across political communities,94 even if they are committed overall to reasons oriented towards public justification.

94 At least in theory. In practice, their accounts end up resembling Kumm’s portrayal of public reason in a liberal democracy.

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Alexy’s conception of proportionality and justification is bound up with his approach to constitutional rights developed in A Theory of Constitutional Rights.95 According to Alexy, constitutional rights are not rules to be followed but principles that ought to be realized to the greatest extent possible.96 Moreover, constitutional principles are not limited to individual constitutional rights and are found throughout the legal system.97 Faced with any alleged rights interference, the role of a court exercising powers of constitutional review is not to interpret but to optimize. It must ensure that all constitutional principles at issue on the concrete facts of a case – be they individual rights, or principles embodied in countervailing legislative goals – are fulfilled as completely as possible given all the circumstances, factual and legal.98 Expressed in the negative, interferences with constitutional rights, as with other constitutional norms, are intrinsic to the act of governing and inevitable.99 Courts are therefore under the imperative to ensure that those interferences with constitutional principles are minimized.

Aharon Barak, meanwhile, has had an enormous influence on the practice of proportionality review in constitutional rights adjudication around the world, through both his judicial and scholarly writings. His approach to proportionality analysis and justification owes much to Alexy’s.100 Preferring to frame the requirement imposed by the principle of proportionality in negative terms, Barak suggests that a court’s role when adjudicating constitutional rights disputes is to ensure that interferences with constitutional rights are minimized

95 Alexy, Theory, supra note 6. 96 Ibid at 47-48, 80-81; Robert Alexy, “Constitutional Rights”, supra note 6 at 135; Alexy, “Balancing, Constitutional Review” supra note 37 at 572-573. 97 See generally Alexy, Theory, supra note 6 at 351-365 98 Alexy, “Constitutional Rights”, supra note 6 at 135; Robert Alexy, “Proportionality and Rationality” in Jackson & Tushnet, eds, supra note 10, 13 [Alexy, “Proportionality and Rationality”] at 14-15. 99 Alexy, “On Balancing”, supra note 7 at 436. 100 And vice versa. Barak summarizes the principal differences between his views and Alexy’s in Barak, Proportionality, supra note 4 at 5-6, 364. Alexy discusses similarities and differences between his and Barak’s views in Alexy, “Proportionality and Rationality”, supra note 98 at 14-20.

56 Chapter 1 – A Plural Approach to the Culture of Justification as much as possible, and only occur at all when justified by important countervailing interests, values and public benefits.

What justifications will satisfy courts that constitutional principles are optimized and interferences with them are minimized? The answer to that question has several components. First,

Alexy and Barak both insist that justifications should be directed specifically to the relative severity of concrete interferences with constitutional principles on the facts of a given case, not at the abstract importance of the principles involved. Because they emphasize the concreteness of interferences, their approaches share an affinity with Beatty’s. What matters are not abstract commitments to liberty or dignity or equality. What matters is how well those commitments are realized in the instant case.101

Second, Alexy and Barak emphasize that the relative importance of interferences must be determined through discursive argument. Alexy’s theory of constitutional rights explicitly adopts the language of discursive constitutionalism.102 The democratic legitimacy of judicial review involving proportionality analysis stems from its institutionalization of argumentative discourse as a form of public decision-making.103 Barak is more circumspect about the link between public discourse, constitutional argument and the assessment of justifications for rights interferences, but that link remains present. As an overarching point, Barak argues that proportionality provides a

101 With specific regard to balancing, Alexy describes this proposition as follows: “The greater the degree of non-satisfaction of, or detriment to, one principle, the greater the importance of satisfying the other.” Alexy, “Balancing, Constitutional Review”, supra note 37 at 573; Alexy, Theory, supra note 6 at 102; Barak expresses a similar idea using the language of marginal social importance: Barak, Proportionality, supra note 4 at 350ff. 102 Alexy, “Balancing, Constitutional Review”, supra note 37 at 572. Alexy also insists that the rationality of balancing in particular, and hence proportionality analysis in general, stems from the rationality of practical discourse used to justify the severity of interferences with constitutional principles, the importance of satisfying those principles, and the relationship between them (Ibid at 579, 582). 103 Ibid at 574-577; see also Robert Alexy, “Rights, Legal Reasoning and Rational Discourse” (1992) 5:2 Ratio Juris 143 [Alexy, “Rational Discourse”] at 148-151.

57 Chapter 1 – A Plural Approach to the Culture of Justification uniform framework for all government actors to follow when considering the constitutionality of rights interferences, though the discretion afforded to each branch may vary.104 By implication, the judicial assessment of justifications for rights interferences is an exercise that is closely linked to public discourse and public decision-making in a democracy more generally. That link is reinforced when Barak recognizes that the language of balancing in particular is metaphorical and that the exercise of balancing is moral in nature.105

The connections that Barak and Alexy contemplate between proportionate justification and practical and moral reasoning are reminiscent of Kumm’s conception of proportionality. However, their approaches display a greater conceptual openness towards normative pluralism than Kumm’s does. Alexy and Barak begin from the premise that proportionality is essentially formal and agnostic.106 As Barak acknowledges, “[r]easons and…justifications in and of themselves…are extrinsic to the concept of proportionality. Proportionality is unable to resolve those issues.”107

Contrary to Kumm’s substantive core, but contrary also to Beatty’s no-jurisdiction-in-particular objective outcomes, Alexy and Barak allow that local constitutionalisms inform the justifications that may be sanctioned by proportionality analysis.

In return, they give weight to normative commitments embodied in local constitutional texts, practice and values. Both Alexy and Barak rely on these devices to limit the risk of incommensurability in balancing. Alexy does not focus his account of proportionality and justification on a conception of public reason theoretically derived in Rawlsian fashion from first principles of justice or political morality. But he does not ignore questions of political morality

104 Barak, Proportionality, supra note 4 at 458-460 105 Ibid at 342, 346 106 Robert Alexy, “Thirteen Replies” in Pavlakos, ed, supra note 33, 333 [Alexy, “Thirteen Replies”] at 341, 344. 107 Barak, Proportionality, supra note 4 at 459-460; see also Miller, supra note 67 at 384.

58 Chapter 1 – A Plural Approach to the Culture of Justification altogether. Rather, Alexy rests the rationality and legitimacy of public justification on the minimum grounding of reasons in constitutional text and precedent. According to Alexy, this common constitutional point of view, a view that is extrinsic to proportionality,108 ensures that proportionality in general, and balancing in particular, overcomes charges of incommensurability and proceeds rationally.109 The question of what reasons are “appropriate” in a liberal democracy

– a question that Kumm wrestles with at length, but Beatty not at all – is, for Alexy, important but not perplexing. As Alexy says, the constitution “does not allow for everything.”110 Only reasons plausibly linked with constitutional principles are appropriate to justify an interference with a constitutional right.111

For Barak, the common denominator to resolve value conflicts is provided by the social importance of the benefits and harms under consideration. That importance is informed, but not governed exclusively, by the constitutional order. Such a criterion has twin advantages. Judges may appreciate and distinguish between the importance of different constitutional rights themselves, and not merely interferences with those rights. Furthermore, it broadens the judicial perspective, allowing judges to rely on factors extrinsic to the legal system when assessing questions of social importance.112 This perspective implies a potentially wide-ranging and open-

108 Alexy, “Thirteen Replies”, supra note 106 at 340-342. 109 Alexy, “On Balancing”, supra note 7 at 442-443; Bernard Schlink has similarly emphasized the need for a common referent on which to base judgments of proportionality, although he specifically leaves open what such a reference point may be: Bernard Schlink, “Proportionality (1)” in Michel Rosenfeld and András Sajó, eds, The Oxford Handbook of Comparative Constitutional Law (Oxford: Oxford University Press, 2012) 719 at 719-720 110 Alexy “Balancing, Constitutional Review”, supra note 37 at 580; however, one must not forget that it allows for a lot. As note above, Alexy has a very expansive view of constitutional principles that is not confined to individual constitutional rights. 111 The version of legitimate public justification he sees instantiated in proportionality thus appears to be a form of what Frank Michelman has called “legitimation by constitution.” Frank Michelman, “Legitimacy, the Social Turn, and Constitutional Review: What Political Liberalism Suggests” (2015) 98:3 Critical Q Legislation & L 183. 112 Barak, Proportionality, supra note 4 at 349; see also Barak, The Judge, supra note 40 at 59-60, 71.

59 Chapter 1 – A Plural Approach to the Culture of Justification ended inquiry: “[social importance] is derived, inter alia, from different political and economic ideologies, from the unique history of each country, from the structure of the political system and from different social values. The legal system at issue should be observed as a whole.”113 The myriad legal, social, historical, political and cultural factors that may influence the assessment of reasons under Barak’s view form a nebulous picture of proportionality’s culture of justification and thus places considerable responsibility on judicial shoulders.

For both Alexy and Barak, therefore, proportionality derives its substantive content from constitutional, legal and social values that are particularized in specific normative communities.

The culture of justification associated with this form of proportionality is not constrained in the abstract, and does not claim to produce outcomes that are objectively verifiable outside the particular normative context in which it operates. Much more than Kumm’s or Beatty’s, this type of approach to justification appears to contemplate a readiness to engage with culturally specific forms of constitutionalism and normative ordering – at least to the extent that these are co- extensive with the boundaries of political communities. Alexy’s and Barak’s depictions of proportionality emphasize justifications oriented towards public reasons but appeal more thickly to values and principles embodied in the constitution, and in Barak’s case society more generally, to constrain argumentative discourse.

D. Proportionality as Incompletely Theorized Adjudication

A final account of proportionality stresses its ability to manage conflict in plural societies by privileging forms of justification that do not require full agreement on rights, principles and values. Benjamin Berger has recently suggested that it would be useful to understand

113 Barak, Proportionality, supra note 4 at 349.

60 Chapter 1 – A Plural Approach to the Culture of Justification proportionality-based reasoning in this light.114 To make his case, he draws on Cass Sunstein’s work highlighting the virtues of incompletely theorized agreement in constitutional adjudication.115

Berger argues that a potential virtue of proportionality review is its tendency to promote justifications that avoid grand theorizing and focus instead on questions of fact and mid-level principle.116 His nuanced appraisal of the attributes of proportionality review focuses on questions involving religious difference. Berger suggests that proportionality is particularly amenable to justifications that eschew fundamental theoretical commitments.117 Because of its emphasis on the factual circumstances of specific cases, proportionality encourages judges to reason through concrete disagreements about rights while deciding as little as possible. Called upon to determine whether a particular limitation is justified, courts may settle contentious disputes without having to state absolutely what is right or good, how competing values should be finally ordered, or for that matter what types of reasons are acceptable to justify constitutional rights.

On this view, proportionality is not only capacious enough to be compatible with different theories of constitutional and human rights from one jurisdiction to another, as Alexy and Barak contemplate, but flexible enough to do so within specific jurisdictions, from one dispute to another.

114 Benjamin L Berger “The Virtues of Law in the Politics of Religious Freedom” (2014) 29:3 JL & Religion 378 [Berger, “Virtues”]. 115 Cass R Sunstein, “Incompletely Theorized Agreements” (1995) 108:7 Harv L Rev 1733; Cass R Sunstein, “Constitutional Agreements without Constitutional Theories” (2000) 13:1 Ratio Juris 117. 116 It is important to note that in other work Berger has expressed reservations about some aspects of proportionality review. He has notably called into question liberal law’s claim to be culturally neutral, casting doubt on the ability of proportionality analysis to deliver on promises of rationality and legitimacy in adjudication, especially when confronting issues of religious difference. See e.g. Benjamin L Berger, “Law’s Religion: Rendering Culture” (2007) 45:1 Osgoode Hall LJ 277; Benjamin L Berger, “The Cultural Limits of Legal Tolerance” (2008) 21:2 Can JL & Jur 245; Benjamin L Berger, “Section 1, Constitutional Reasoning and Cultural Difference: Assessing the Impacts of Alberta v. Hutterian Brethren of Wilson Colony” (2010) SCLR (2d) 25. 117 Berger, “Virtues”, supra note 114 at 389. Cohen-Eliya and Porat canvas a similar argument in “Culture of Justification”, supra note 17 at 469-472, although they are more sceptical about its merits.

61 Chapter 1 – A Plural Approach to the Culture of Justification

Berger therefore associates proportionality with a mode of judicial decision-making that is strategically agnostic, and resists or avoids fully theorized conceptions of what justice requires, and what just (and legitimate) reason-giving permits.118

The contrast between this view and the conceptions of justification already canvassed turns on the search for a common denominator to decide what is proportionate. Kumm’s conception seeks out a common denominator by excluding certain classes of reasons from legal consideration, consistent with a Rawlsian view of political morality. Beatty’s conception insulates proportionality from political morality altogether: the validity of proportionate judgments is assured by the objective appraisal of facts. As for Alexy and Barak, their conceptions of proportionate justification emphasize a common constitutional or societal point of view, potentially ignoring or suppressing the realities of pluralism. Conversely, what recommends proportionality analysis to

Berger is its potential to resolve disputes without having to identify a shared set of values or principles – whether philosophical, scientific, constitutional or social – that cuts across ideological, cultural and religious fault lines.

As with other accounts of proportionality analysis, the distinctive character of this approach is especially noticeable when considered in the light of political and democratic theory. Berger’s portrayal of incompletely theorized justifications shares an affinity with value pluralist approaches to public reasoning such as the one developed by Amartya Sen. In his Idea of Justice, Sen proposes an idea of justice that contrasts pointedly with Rawls’s conception.119 Like Rawls, Sen considers democracy, public reasoning and justice to be intertwined.120 But unlike Rawls, he considers it

118 Berger “Virtues”, supra note 114 at 389. 119 Sen, supra note 54. Although the book as a whole is a response of sorts to Rawls’s “transcendental institutionalist” approach, Sen draws the contrast explicitly in the Introduction at 5-12. 120 Ibid at 44, 324-327 and more generally at Chapter 15.

62 Chapter 1 – A Plural Approach to the Culture of Justification impossible to specify at the outset what justice is, or even to agree on an order of political and constitutional values that would govern public decision-making in every case.

To put the point otherwise, Rawls approaches public decision-making by asking what ideal justice requires, and would rely on his famous veil of ignorance and the principles of political justice that flow from it – all reflected in his conception of reason – to arrive there. In contrast, Sen centres public decision-making more modestly on the relative justice of different alternatives.

Among the courses of action available, which one appears to be most just in this case? The title of

Sen’s book is telling in this regard. He pointedly styles his project an “idea” – not a theory – of justice, disavowing attempts to formulate a fully worked out ideal theory.121 Sen’s account of public reasoning in a democracy is accordingly flexible and compatible with plural value commitments.

Value pluralist approaches to public decision-making like Sen’s resonate strongly with a conception of constitutional adjudication that emphasizes the virtues of incompletely theorized agreement.122 For value pluralists, plausibly just resolutions of particular disputes can be achieved by bracketing fundamental controversies about ideal justice and moral absolutes. Following

Sunstein, Berger similarly points out that agreement or, more modestly still, “a workable truth” can often be arrived at in specific constitutional cases by avoiding claims of comprehensive truth.

The implications of such a value pluralist, non-transcendental approach for constitutional adjudication are more than theoretical. Transposed to the world of interferences with constitutional rights, such an approach widens the scope of justifications that proportionality can sanction.

Because Berger’s vision of proportionality analysis avoids fundamental truth claims, and

121 Ibid at 5-7. 122 Other authors have presented similar value pluralist conceptions of public reasoning in reaction to Rawls’s work. See generally Zerilli, “Value Pluralism and the Problem of Judgment”, supra note 54 and Stout, supra note 52 at Chapters 10-12.

63 Chapter 1 – A Plural Approach to the Culture of Justification recognizes that justice problems may implicate different values and ends depending on the circumstances, it is more receptive to arguments that stand outside dominant theoretical or social perspectives. Members of the same community may have conflicting notions of the good life, conflicting conceptions of what justice is, and endorse conflicting values. Yet, they may be able to agree that a certain course of government action is a common step in the direction of justice even if the ultimate paths they would have the community follow diverge. Incompletely theorized agreement allows disagreement about ultimate principles to subsist even as judges might convincingly assert, relying on mid-level principles, that specific government actions are justified. ef

The survey just completed underscores the plural approaches to justification implicit in proportionality scholarship, focusing by way of example on the work of Mattias Kumm, David

Beatty, Aharon Barak, Robert Alexy and Benjamin Berger. All of the authors place the substantive justification of rights interferences at or near proportionality’s analytical core. This focus on the substantive reasons justifying rights interferences distinguishes proportionality analysis from textual approaches to constitutional rights adjudication, and links proportionality analysis with discursive and deliberative conceptions of democracy. Yet, when their pictures of good justification are mapped onto the world of democratic theory, it becomes plain that Kumm’s picture differs from Beatty’s, which differs from Alexy’s and Barak’s, which differs from

Berger’s. Those pictures differ in their theoretical underpinnings, their criteria for determining what reasons are appropriate, and ultimately, what those reasons looks like. One might say that the scholarly convergence on the culture of justification is itself incompletely theorized.

The co-existence of rival accounts points to a shortcoming of proportionality scholarship: the failure to examine more closely the challenge that plural approaches to justification pose for

64 Chapter 1 – A Plural Approach to the Culture of Justification constitutional rights adjudication. Different accounts of proportionality analysis vary in their openness and flexibility towards plural values. They also vary in their willingness to engage with disagreements about the “what”, “how” and “who” of justice discourse. However, those challenges remain mostly unaddressed by scholarship that identifies proportionality with a culture of justification. Further inquiry is necessary to understand how courts that rely on proportionality review resolve disputes in the face of competing accounts of persuasive justifications.

IV. THE CULTURE OF JUSTIFICATION’S METHOD: AN ABSTRACT AND UNIVERSALIST PERSPECTIVE

This part argues that the tendency to imagine the culture of justification as uniform is reinforced by scholarship that privileges an ostensible perspective from nowhere and ignores the cultural specificity of legal discourse and constitutional adjudication. Such a perspective makes it difficult to notice and describe the plural forms of justification encompassed by proportionality- based rights review, which in turn makes it difficult to understand how constitutional courts resolve

– or avoid resolving – contests between competing approaches to justification. To develop this argument, I examine characteristic features of the debate about the merits of proportionality-based constitutional adjudication. Instead of focusing on what scholars say about proportionality analysis and the culture of justification, I focus on how they say it.

I am not the first person to comment on methodological aspects of proportionality scholarship. Kai Möller has drawn attention to the perceived tendency of critics to resort to casuistry and to concentrate on distorted versions of proportionality:

If there is one theme running through this essay, it is this: the risk in criticizing proportionality is that a critic confuses author A's theory or court C's approach (or worse, court C's one decision D) with the principle of proportionality itself. The fact that A's theory, C's doctrine, or decision

65 Chapter 1 – A Plural Approach to the Culture of Justification

D are wrong shows only this – that a mistake happened. It does not show that proportionality itself is an unattractive doctrine.123

To remedy these shortcomings, he has urged critics to avoid outlying examples and straw man arguments, and to level their claims against the strongest possible version of proportionality.124

Möller is surely on to something when he points out that a handful of judgments hardly discredits proportionality review in its entirety.125

However, Möller fails to point out that proponents contribute to their own misconceptions about proportionality review. If critics are guilty of equating a particular variant of constitutional rights adjudication with proportionality review, proponents frequently rely on decontextualized and abstract arguments that gloss over the different ways that jurists and judicial institutions employ the principle of proportionality in relation to actual legal disagreements. As I discuss next, this occurs in two ways. First, scholars focus overwhelmingly on stylized versions of “hard” cases.

The normative disagreements they use as examples to highlight the merits of proportionality review therefore lack texture. Second, proponents reinforce a distinction between distorted judicial applications of proportionality review and an idealized, and reified, “idea” or “concept” of proportionality that has no real-world counterpart, or no real world counterpart worthy of the name.

A. Casuistry and Abstract Problems

First, scholarship about proportionality analysis ignores the local complexity and texture of arguments about persuasive justification by relying on different forms of casuistry. One of the

123 Möller, “Challenging”, supra note 25 at 710. Kumm has levied similar charges. See e.g. “Institutionalising”, supra note 12 at 166-167. 124 Möller, “Challenging”, supra note 25 at 710-711, 718, 722, 730. See also Kai Möller, “Constructing the Proportionality Test: An Emerging Global Conversation” in Liora Lazarus, Christopher McCrudden & Nigel Bowles, eds, Reasoning Rights: Comparative Judicial Engagement (Oxford: Hart Publishing, 2014) 31 [Möller, “Constructing”] at 32. 125 Critical observations of that kind may still contain important insights about particular practices of judicial decision-making and perhaps even about constitutional rights adjudication more generally. But critics who handpick one or two cases risk ignoring the numerous variations and manifestations of judicial decision-making that bear the labels of, or approximate, balancing and proportionality.

66 Chapter 1 – A Plural Approach to the Culture of Justification signal virtues of proportionality-based rights review is supposed to be its attention to local circumstances. However, how proponents actually defend the virtues of justification under proportionality casts doubt on that claim. Just as critics gravitate towards a few key examples, proponents frequently use examples of difficult problems to highlight the merits of proportionality analysis, but present those problems to readers stripped of most distinguishing features.

These problems come in different varieties. To begin with, there are the philosophically- inflected moral dilemmas. A recent essay authored by Kumm and Alec D. Walen126 is illustrative.

Kumm and Walen make a claim in their essay about proportionality-based constitutional rights adjudication that relates to its ability to account for varying deontological constraints. Virtually the entire article is focused on the so-called trolley problem, which also features in an earlier essay authored singly by Kumm.127 For those not familiar with the trolley problem, it is an ethical thought experiment that puzzles over the moral difference between various fact scenarios in which a person must decide whether to intervene to prevent a runaway trolley from killing the five people on board, knowing her intervention will endanger the lives of others.128

The trolley problem may be a compelling problem in moral philosophy, but it remains precisely that: a philosophical quandary, not a concrete legal problem. As a device intended to highlight proportionality’s ability to integrate deontological constraints coherently within constitutional adjudication, it seems a strange choice. But it is not so unusual when compared to other examples routinely invoked by proportionality scholars. Indeed, Kumm and Walen’s focus

126 Kumm & Walen, supra note 84. 127 Kumm, “Political Liberalism”, supra note 33 at 153ff. 128 Kumm & Walen, supra note 84 at 71.

67 Chapter 1 – A Plural Approach to the Culture of Justification on the trolley problem typifies broader efforts to defend the rationality of proportionality review through a discussion of moral-philosophical quandaries.129

A second variety is composed mainly of legal “hard” cases that are used to illustrate proportionality’s ability to resolve apparently complex and controversial legal issues, such as common prayer, same-sex marriage, euthanasia, the inclusion of LGBTQ persons in the military, or the war on terrorism.130 Robert Alexy’s influential work on proportionality illustrates this second approach. Across his body of work, Alexy relies on relatively few examples to buttress a key argument about the rationality of balancing. The same two judgments of the German Federal

Constitutional Court – what he refers to as the Tobacco and the Titanic cases – continually reappear. The Tobacco case involved the constitutionality of a requirement that tobacco producers affix a health warning to their products; the Titanic case involved a paraplegic member of the military who alleged that a satirical magazine named Titanic had violated his human dignity when it referred to him as a “born murderer” and a “cripple.” Alexy’s descriptions of the supposedly all- important facts of these cases are memorable for containing virtually no other significant details.131

As with Kumm and Walen’s use of the trolley problem, Alexy’s approach to examples is hardly an outlier in legal scholarship on proportionality overall. For example, in a recent volume on comparative constitutional rights adjudication, three successive essays considered the merits of

129 Other such problems include the ticking time bomb and the organ transplant case. See e.g. Kumm, “Political Liberalism”, supra note 33 at 160-162; Möller, “Challenging”, supra note 25 at 715, 719; see also Aharon Barak, Proportionality, supra note 4 at 29-30 (discussing the trolley problem). 130 See e.g. Kumm, “Political Liberalism”, supra note 33 at 143-144; Kumm, “Institutionalising”, supra note 12 at 159-161, 168-169; Beatty, Ultimate Rule, supra note 3 at 114-115 and 182-183; Alexy, “Rational Discourse”, supra note 103 at 149-151. 131 See Alexy, Theory, supra note 6 at 402-403; Alexy, “Constitutional Rights”, supra note 6; Alexy, “On Balancing”, supra note 7, Alexy, “Balancing, Constitutional Review”, supra note 37; Alexy, “Proportionality and Rationality”, supra note 98 at 21.

68 Chapter 1 – A Plural Approach to the Culture of Justification proportionality analysis through the lens of the “unarmed trespasser” case, which queries whether the use of force would be justified against an unarmed intruder on your property or in your home.132

These stylized philosophical and jurisprudential problems share a contrived artificiality. In the former variety, the problems that proportionality review is enlisted to resolve have the look and feel of abstract intellectual dilemmas with no connection to the contingent features of the human world, as if in a philosophical or mathematical treatise. In the latter variety, they resemble judgment headnotes, law school fact patterns, or the types of threadbare factual summaries one might find in a student casebook. This tendency to concentrate on problems cast a high level of generality and abstraction hints at a universalist bias inherent in talk about proportionality and its singular culture of justification.133

The decontextualizing effect produced by relying on stripped-down moral and legal problems is compounded by the analytical question that these problems often set up: given this challenging question, how should a constitutional court rule?134 By referring to “a” constitutional court rather than any one in particular, this way of talking about proportionality analysis further abstracts away from local practices of justification. Such an approach is emblematic of an intellectual project Paul Kahn ascribes to many comparative constitutionalists: to find the hidden

132 Möller, “Constructing”, supra note 124 at 35-38; Jochen von Bernstorff, “Proportionality Without Balancing: Why Judicial Ad Hoc Balancing is Unnecessary and Potentially Detrimental to the Realization of Individual and Collective Self-Determination” in Lazarus et al, eds, supra note 124, 63 at 75ff; and David Bilchitz, “Necessity and Proportionality: Towards A Balanced Approach” in Lazarus et al, eds, supra note 124, 41 at 60. For earlier references to the “unarmed trespasser” see Dieter Grimm, “Proportionality in Canadian and German Constitutional Jurisprudence” (2007) 57:2 UTLJ 383 at 396; and Aharon Barak, Proportionality, supra note 4 at 30, 342-343. This casuistry is reinforced by the tendency for writers tend to pick up on seminal examples relied upon by leaders in the field including Alexy, Barak and Grimm. For example, in the article referenced just now, Bilchitz also discusses Alexy’s “Tobacco Case” at 45. 133 Mark Antaki has referred to this tendency as a form of “worldlessness”: Mark Antaki, “The Rationalism of Proportionality’s Culture of Justification” in Huscroft et al, eds, supra note 1, 284 at 287ff. 134 See e.g. Kumm, “Political Liberalism”, supra note 33 at 143.

69 Chapter 1 – A Plural Approach to the Culture of Justification science of constitutionalism that transcends parochial differences.135 From Kumm to Möller, from

Barak to Beatty, constitutional rights scholars frequently debate the merits of proportionality review without examining the argumentative discourses used to support judgments of proportionality in local practice. The values and principles that are constitutionally recognized in particular communities, the nature of community membership and tradition-specific approaches to judicial decision-making – the “what”, “how” and “who” of justice – are implicitly dismissed as unimportant.

Insufficient justification for the selection of examples and cases also contributes to the disconnect between proportionality scholarship and concrete practices of justification. Proponents and critics who engage with real cases are prone to cherry-pick cases from across constitutional time and space. Academics focused on proportionality analysis tout court underscore the primacy of a singular culture of justification by moving back and forth between different jurisdictions, courts, eras and rights. A scholar might in rapid succession reference applications of the principle of proportionality in cases decided by the Supreme Court of Canada, the House of Lords, the

European Court of Human Rights, the Israeli Supreme Court and the German Constitutional Court.

In addition, two cases from the same jurisdiction might be referenced indistinguishably, despite being separated by 30 years or more of constitutional rights jurisprudence during which time the meaning, purpose and practice of proportionality review may have changed considerably. In short, examples seem to be enlisted ad hoc to support an argument about proportionality and justification that transcends any legal time or place, rather than to serve some explicit methodological or comparative purpose.136

135 Kahn, supra note 23 at 2684 136 There are notable exceptions to this style of argument. Both David Dyzenhaus and TRS Allan have written about proportionality in a way that seems invested in understanding the approach to justification exemplified in English jurisprudence. See Dyzenhaus, supra note 2, and TRS Allan, “Democracy,

70 Chapter 1 – A Plural Approach to the Culture of Justification

Finally, scholars who recognize that varying contexts inform proportionality analysis frequently do not consider those contexts’ legally and socially constructed character. The facts that make up the context are assumed to be empirically verifiable and taken to be objectively true – exactly as they arrive in the briefs delivered to judges sitting on appellate courts. David Bilchitz makes a move of this sort when he flips the unarmed trespasser example around. “Yet,” he says,

“it is equally possible that – in a context of widespread theft and robbery – courts would reach the opposite conclusion.”137 When discussing the thorny question of common prayer, Kumm similarly acknowledges that “the resolution of the issue [according to proportionality] would, of course, depend on the particular features of the social world to which it applies.”138 But how are courts to judge whether theft and robbery are widespread? How do features of the social world influence perspectives on common prayer? Even as Kumm and Bilchitz seek to account for community differences, their approaches imply that facts and context are neutral, objective elements of an external reality to which the law has privileged access.

In short, much comparative constitutional scholarship about proportionality analysis glosses over the culturally embedded character of legal norms and arguments. In the hands of proportionality’s proponents, multi-faceted legal questions embedded within complex, culturally- specific normative orders are transformed into abstract philosophical queries or contrived legal examples. Although writers may acknowledge that the correct resolution of rights disputes depends

Legality and Proportionality” in Huscroft et al, eds, supra note 1, 205. Another example is Jacco Bomhoff’s Balancing Constitutional Rights: The Origins and Meaning of Postwar Legal Discourse (Cambridge, UK: Cambridge University Press, 2013) [Bomhoff, Balancing Constitutional Rights]. Taking the culturally embedded character of legal discourse seriously, Bomhoff looks beyond the shared references to balancing in American and German jurisprudence in the aftermath of World War II in order to understand the meaning of the discourses that underlay academic commentary and judicial practices. 137 Bilchitz, supra note 132 at 60. 138 Kumm, “Political Liberalism”, supra note 33 at 144-145.

71 Chapter 1 – A Plural Approach to the Culture of Justification on the relevant context, context is viewed as little more than a list of objectively ascertained “facts” from which texture, nuance and disagreement have been erased.

B. The Idea of Proportionality

Comparative constitutional rights scholarship oriented towards the culture of justification also detracts attention from culturally embedded forms of legal discourse by falling back on an abstract and idealized version of proportionality. Proponents who lament the casuistry and opportunism of critics whittle away at the essential core of proportionality to the point where they are in a position to defend little more than an abstract concept that has no embodied equivalent.

Their argument is self-defeating: their defence of proportionality ignores the fundamental discursive character of legal argument that is supposed to be a hallmark of proportionality’s culture of justification.

Kai Möller’s self-described challenge to critics of proportionality, touched on above, exemplifies this phenomenon. Focusing especially on the work of Grégoire Webber and Stavros

Tsakyrakis, Möller insists that critiques lobbed in the direction of proportionality find their mark only in cases in which proportionality has been misapplied or misconstrued. The language of

Möller’s repeated pleas in this regard is revealing. His article admonishes critics over and over for not fairly levelling their arguments at “proportionality itself,”139 or “the concept of proportionality itself,” 140 or “‘the’ principle of proportionality,”141 or “the idea of proportionality itself.”142

Möller’s attempts to distinguish the concept of proportionality from so many erroneous conceptions of proportionality is especially striking, but others echo his approach. Proponents routinely maintain that the true version of proportionality is untouched by the critiques misdirected

139 Möller, “Challenging”, supra note 25 at 710. 140 Ibid at 711. 141 Ibid at 718, 722. 142 Ibid at 718, 728, 730.

72 Chapter 1 – A Plural Approach to the Culture of Justification at outlying examples or poorly elaborated conceptions of proportionality. In doing so, scholars generalize or abstract up from concrete applications of the principle when judges manage interferences with constitutional rights.143 Along similar lines, when scholars recognize the existence of a plurality of conceptions of proportionality review, those conceptions often serve as a foil to illustrate that their preferred version is the correct one and ought to prevail universally.144

Just as agreement as to what proportionality means is “acquired through abstraction and superficiality,”145 disagreement is frequently elided through a process of reification or conceptualization. Proportionality is equated to the rote recital of methodological steps, or to a nebulous ideal specifying only that rights interferences are constitutional when they are proportionate and they are proportionate when they are substantively justified.

But defending proportionality-based constitutional rights adjudication by insisting on the

“idea of proportionality itself” – as distinguished from any particular conception or application of proportionality analysis – is of limited usefulness. For one thing, as Jacco Bomhoff has argued with regard to balancing,146 the “emerging global conversation”147 on proportionality may be more apparent than real. What everyone refers to as “proportionality” may not be the same thing. For another thing, even jurists keen to join issue on the “idea of proportionality” as defended by Möller and others face a conundrum: how is it possible to wrestle with the normative implications of that idea other than through specific applications of proportionality review in judicial decision-making?

143 Bomhoff, Balancing Constitutional Rights, supra note 136 at 2, 7, 9. See also Jacco Bomhoff, “Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law” (2008) 31:2 Hastings Intl & Comp L Rev 555 [Bomhoff, “The Global and the Local”]. 144 See e.g. Martin Luterán, “The Lost Meaning of Proportionality” in Huscroft et al, eds, supra note 1, 21 at 21-22, 36. 145 Ibid at 21. 146 See generally Bomhoff, Balancing Constitutional Rights, supra note 136; Bomhoff, “The Global and the Local”, supra note 143. 147 Möller, “Constructing”, supra note 124 at 31, 40.

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The “concept” or “idea” of proportionality may be a worthy pursuit of philosophical inquiry.

However, when it comes to judging actual constitutional rights claims, that idea or concept risks becoming meaningless if separated from the way that proportionality is invoked as a norm by lawyers and judges making legal arguments in concrete normative communities.148

The practice of constitutional rights adjudication bears this out. Within legal doctrine, the principle of proportionality aspires to be, and is in fact, much more than a mere idea or a concept.

Aharon Barak’s textbook-like treatment of proportionality in Proportionality: Constitutional

Rights and Their Limitations, published in 2012, is evidence of these aspirations. The goal of the book, as described by Barak in its introduction, is “to present an analytical model of the legal institution dubbed proportionality.”149 Barak aims to show that his model is not merely of theoretical interest, cut off from legal reality as it were, but something that is reflected and accepted in the practice of constitutional adjudication in legal systems around the world.150 In short, proportionality – as doctrine, rule, methodology – is in fact invoked and applied by judges to decide constitutional rights cases. Those judges operate on the assumption that proportionality is something more than a bare idea. They cannot help but ascribe a much richer meaning to proportionality than any reductive, propositional description of the idea of proportionality that proponents might defend.

148 This way of thinking about proportionality has connections to James Boyd White’s literary approach to law. Like language, law and legal concepts cannot be understood as simply a reductive system of linguistic signifiers, whose meaning can be determined apart from the way in which they are used in a discourse: James Boyd White, Justice as Translation (Chicago: University of Chicago Press, 1990). 149 Barak, Proportionality, supra note 4 at 5. 150 Ibid at 4-5; see also Aharon Barak, “A Research Agenda for the Future” in Jackson & Tushnet, eds, supra note 10, 322 at 329ff, in which Barak discusses “issues in proportionality doctrine that require further examination.”

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To summarize, debates about proportionality review often fail to situate it within its social, discursive and normative contexts. If critics are sometimes guilty of attacking a straw-man, proponents are sometimes guilty of defending a disembodied spectre. Abstract and decontextualized legal and philosophical problems figure prominently in their arguments, as do references to a rarefied “idea” of proportionality that transcends any concrete and particularized applications of the principle. Despite their differences, both poles in the debate reinforce a singular view of proportionality that is cut off from, and transcends, the argumentative practices used to justify constitutional rights interferences in specific places and contexts. This portrayal has consequences. It limits the ability of proportionality scholarship to address the challenges of normative pluralism carefully or adequately. It risks misunderstanding local forms of proportionality. Finally, it provides little guidance to constitutional courts who must determine what counts as a good justification in concrete cases.

V. CONCLUSION

Scholars writing about proportionality-based constitutional adjudication increasingly approach what is peculiar and characteristic about proportionality through the lens of substantive justification. I have argued here that the scholarly predominance of the culture of justification in the singular glosses over important features of constitutional rights adjudication involving proportionality, and limits the ability of that scholarship to address a fundamental challenge confronting proportionality-based constitutional adjudication. Courts making constitutional rights decisions in a culture of justification confront a fractured and unstable normative landscape in which the bases of good justifications are plural and contested. Foundational premises about justice in “our” community – about what values matter, how disputes ought to be resolved, and whose

75 Chapter 1 – A Plural Approach to the Culture of Justification interests and viewpoints count – neither form the object of a social consensus nor can they be asserted by referring to constitutional and legal texts. The contested character of these premises therefore poses an important challenge for judges who rely on the principle of proportionality to decide constitutional rights cases, and ultimately threatens the legitimacy of their decisions in those cases.

However, scholarly attention to the culture of justification mostly ignores the contested character of legitimate justification in plural societies. It also ignores the situated, embodied character of legal arguments relied on by constitutional courts when assessing justifications for interferences with constitutional rights. Granted, the types of problems facing contemporary courts and the doctrinal frameworks used to address them share similarities across legal systems. Despite those similarities, I argue that it would be unwise to dismiss as unimportant the forms of legal argument that structure the exchange of reasons in concrete adjudicative settings. To understand what is stake when any particular form of proportionality appears to have been embraced by constitutional courts in any particular community, it is imperative to attend to the local practices of constitutional adjudication with which it is associated.

In short, to address the challenge posed to constitutional adjudication by disagreement about basic premises of good justifications, I argue for a shift in scholarly orientation. Rather than emphasizing a single homogeneous culture of justification, scholarship on proportionality should appreciate that proportionality-based rights review may be supported by a plurality of cultures of justification, and tailor its inquiries accordingly. It should focus on the concrete ways in which arguments are deployed to determine what is proportionate in particularized adjudicative contexts.

It is to this type of scholarly exercise that I turn in the next chapter.

76 CHAPTER 2

FROM JUSTICE TO JUSTIFICATION: A GENEALOGY OF THE PRINCIPLES OF FUNDAMENTAL JUSTICE

The previous chapter concluded on a methodological note. I suggested that scholars seeking to understanding what is stake in the worldwide convergence of constitutional rights adjudication on proportionality analysis ought to focus less on the culture of justification in the singular. Instead, they ought to focus more on the substance and form of legal arguments that incorporate discourses of proportionality in particular settings. To better differentiate these two concepts – the culture of justification in the singular, which refers in the scholarship to a generic obligation to give reasons structured around the principle of proportionality, from cultures of justification in the plural, by which I refer to culturally-situated understandings of what counts as a good justification – I will in this chapter refer to the latter as a culture of legal argument, or argumentative culture.

In this chapter, I take up the methodological challenge described above by zeroing in on the culture of legal argument characteristic of section 7 of the Canadian Charter of Rights and

Freedoms,1 which today incorporates the logic of proportionality analysis. The Supreme Court of

Canada’s 2013 judgment in Canada (Attorney General) v Bedford2 cemented the importance of the principle of proportionality in today’s section 7 case law. Prior to Bedford, individual norms proscribing arbitrary, overbroad and grossly disproportionate state action, which correspond roughly to the steps of proportionality review, had been recognized separately as principles of

1 Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 2 Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 [Bedford]. Chapter 2 – A Genealogy of the Principles of Fundamental Justice fundamental justice. However, the Court in Bedford went further by both underscoring the importance of those three principles and emphasizing their common rationale.

Each of the principles, said the Court, was intended to capture a different kind of failure of instrumental rationality.3 Endorsing a view put forward by Hamish Stewart, the Court specified that such failures amounted to a flawed relationship between the desired ends of state action and the means selected to achieve them.4 According to the Court, the principles against arbitrariness and overbreadth caught situations in which there was no connection (in whole in the case of arbitrariness or in part in the case of overbreadth) between the ends and the means. As for the principle against gross disproportionality, it caught situations in which the effects of the chosen means were out of sync with the ends they were intended to serve.5 Each of the three principles therefore required the Court to conduct a review of the merits of state action in terms that were functionally similar to the component steps of proportionality review: suitability, necessity and proportionality in the narrow sense.

This chapter’s principal aim is to show that the Court’s interpretation of the principles of fundamental justice in Bedford is part of a more thoroughgoing transformation of the culture of legal argument characterizing section 7 of the Charter. To grasp the extent of that reshaping, and see why and how it is significant, the chapter takes a historical look back to the place and time where that culture originated, and examines the road travelled to get from there to here.

Part I describes the historical origins of section 7’s principles of fundamental justice, highlighting their links with culturally-specific understandings of civil liberties protections in the

Anglo-Canadian legal tradition. Part II continues the chronology, tracing the early doctrinal

3 Ibid at para 107. 4 Ibid; Hamish Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law, 2012) at 151. 5 See Bedford, supra note 2 at paras 107-123.

78 Chapter 2 – A Genealogy of the Principles of Fundamental Justice development of principles of fundamental justice in the first two decades of Charter jurisprudence and commentary, from its coming into force in 1982 roughly until the 2003 decision of the

Supreme Court of Canada in R v Malmo-Levine; R v Caine.6 My analysis focuses on the key features of the culture of argument relating to section 7 during that period, in which lingering doubts about the institutional legitimacy of section 7 adjudication were addressed through the incremental recognition of narrowly-construed, morally-substantive principles of fundamental justice.

Part III focuses on a pivotal doctrinal development in section 7 adjudication: the crystallization of a test for recognizing novel principles of fundamental justice. As I show, the test that gradually emerged between the Court’s decisions in Rodriguez v British Columbia (Attorney

General)7 and Malmo-Levine cemented the conception of principles of fundamental justice that marked the Court’s early period, but also signalled the beginning of the end for that conception.

Finally, Part IV chronicles the emergence of proportionate principles of fundamental justice, from

Malmo-Levine onwards, and the shifting approach to which those principles corresponded. That period ushered in what I will refer to as the Court’s modern approach to fundamental justice, which mimics the logic of proportionality by embracing a standard of rational justification.

I. THE HISTORICAL GENESIS OF SECTION 7: THE PRINCIPLES OF FUNDAMENTAL JUSTICE IN CONSTITUTIONAL CONTEXT

Of all the rights enshrined in the Charter, section 7 can arguably trace its legal ancestry back the farthest. This part emphasizes the impact of three influences upon the formulation settled upon by the drafters of the Charter, and ultimately upon the whole culture of argument that emerged around section 7: the heritage of American and English civil liberties, the principles of

6 R v Malmo-Levine; R v Caine, 2003 SCC 74, [2003] 3 SCR 571 [Malmo-Levine]. 7 Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519 [Rodriguez].

79 Chapter 2 – A Genealogy of the Principles of Fundamental Justice natural justice at common law, and the Canadian Bill of Rights.8 As I explain, the exemplary and precedential characters of these bodies of law show that section 7’s culture of argument was and remains inextricable from historic concerns to constrain judicial review of legislative action.

A. Canada’s “Due Process” Clause

The qualified life, liberty and security of the person interests enshrined in section 7 of the

Charter are hardly unique. Parallels can be noted between section 7 and many human rights instruments that preceded the Charter, including the Universal Declaration of Human Rights,9 the

European Convention on Human Rights10 and the International Covenant on Civil and Political

Rights.11 That said, the historical record and legislative history leading up to the patriation of the

Canadian constitution underscore the extent to which the United States Bill of Rights’ due process protections were at the forefront of the framers’ minds. The 5th and 14th amendments to the United

States Constitution guarantee the rights of person not to be deprived “of life, liberty, or property, without due process of law.”12 These due process protections, respectively enshrined in the US

Constitution in 1791 and 1868, in turn have their origins in the civil liberties tradition that began to take shape in England’s tumultuous 17th century.

8 Canadian Bill of Rights, SC 1960, c 44. 9 Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, Supp No 13, UN Doc A/810 (1948) 71. 10 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953). 11 International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 12 US Const amend V, XIV. The 14th Amendment, which substantially replicates significant portions of the text of the 5th Amendment, was passed after the American Civil War and extended due process protections to the individual states.

80 Chapter 2 – A Genealogy of the Principles of Fundamental Justice

The Petition of Right13 of 1628, whose roots can be traced back to England’s Great Charter of Liberties, the Magna Carta,14 is usually considered to have enshrined the first meaningful guarantee of due process in English law. In 1627-1628, the English Parliament was confronted with a series of actions taken by King Charles I that it considered arbitrary, unlawful and in violation of Magna Carta. Parliamentarians were galled by the King’s exercise of the royal prerogative to imprison five English knights who had refused to consent to a forced loan, which the King justified citing only reasons of state. Parliament responded by passing the Petition of

Right, claiming to clarify the meaning of Magna Carta’s guarantees of liberty.15 Among other things, the petition declared the rights of men not to be killed, imprisoned, or have their property taken except “by the law of the land”16 or “by due process of law.”17 According to the Institutes on the Laws of England, whose author Sir Edward Coke was also one of the Petition of Right’s drafters, the two formulations – law of the land and due process of law – had by then become synonymous in English law.18 The English tradition of due process protection was born.

In English law, due process, as embodied in Magna Carta, the Petition of Right and later constitutional statutes, had an essentially procedural vocation, ensuring that deprivations of life,

13 Petition of Right 1628 (UK), 3 Car 1, c 1 [Petition of Right] at ss III, IV, X. The due process protections affirmed in the Petition of Right were expanded upon and specified later in the century in the Habeas Corpus Act 1679 (UK), 31 Car II, c 2 and in the Bill of Rights 1689 (UK), 1 Will & Mar Sess 2, c 2. On these links, see Steve Bachmann, “Starting Again with the Mayflower…England’s Civil War and America’s Bill of Rights” (2000) 20:2 Quinnipiac L Rev 193 at 243-245. 14 Magna Carta 1215 (UK). 15 On this episode, see Amanda L Tyler, “A ‘Second Magna Carta’: The English Habeas Corpus Act and the Statutory Origins of the Habeas Privilege” (2016) 91:5 Notre Dame L Rev 1949 at 1958-1963. 16 Petition of Right, supra note 13 at ss III, X; this language was reproduced from chapter 39 of the original Magna Carta sealed by King John in the year 1217, supra note 14. Upon being reissued in 1225, chapter 39 became chapter 29. 17 Petition of Right, supra note 13 at ss IV, X; this language was reproduced from an Act of Parliament passed in 1354 that itself purported to confirm the guarantee contained in Magna Carta’s chapter 39: Liberty of Subject Act 1354 (UK), 28 Edw III, c 3. 18 See Edward Coke, The Second Part of the Institutes of the Laws of England, 6th ed (London: W Rawlins, 1681) [originally published: 1628] at 50; Coke’s Institutes uses the modified numbering of 1225. See footnote [xx] supra.

81 Chapter 2 – A Genealogy of the Principles of Fundamental Justice liberty and property could be effected by the state only in accordance with the applicable procedural legal rules.19 That common law tradition was inherited in the Canadian legal system and remained alive in its law relating to civil liberties at the time the Charter was drafted.20 In the

United States, however, judicial interpretations of “due process” eventually allowed courts to review the substantive content of legislation. The chequered history of this substantive branch of due process, exemplified in the popular legal imagination by the infamous American case of

Lochner v New York,21 gave Canadian politicians and civil servants pause as they worked on a constitutional bill of rights for Canada.22

The first significant political step towards the realization of that project was taken in a federal policy paper published under Pierre Trudeau’s name in 1968, who was then serving as the

Minister of Justice in Lester B. Pearson’s federal cabinet. The paper advocated the adoption of a constitutional bill of rights and included a discussion of the various rights such a bill might contain.

The portion of the paper dealing with rights to life, liberty, security of the person and property canvassed the judicial treatment of due process in the United States, and expressed some scepticism about substantive “due process” review.23 Having regard to the US experience, Trudeau concluded:

[S]ubstantive due process as applied to “liberty” of contract and to “property” has created the most controversy. It might therefore be possible

19 Luc B Tremblay, “Section 7 of the Charter: Substantive Due Process?” (1984) 18:2 UBC L Rev 201 at 205. 20 Ibid at 205; Laskin J explicitly referenced these English roots when interpreting the due process guarantee contained at s 1(a) of the Canadian Bill of Rights, supra note 8, in Curr v The Queen, [1972] SCR 889 [Curr] at 897-898 and 902. See also Section I.C below. 21 198 US 45 (1905) [Lochner]. The United States Supreme Court in Lochner said that a New York law that set the maximum number of hours bakers could work violated the due process clause because it interfered with freedom of contract. 22 Sujit Choudry, “The Lochner Era and Comparative Constitutionalism” (2004) 2:1 Intl J Const L 1 [Choudry, “Lochner Era”] at 16-27; see also Walter S Tarnopolsky, “The Canadian Bill of Rights from Diefenbaker to Drybones” (1971) 17:3 McGill LJ 437 at 474-475. 23 Pierre Trudeau, A Canadian Charter of Human Rights (Ottawa: Queen’s Printer, 1968) at 19-20.

82 Chapter 2 – A Genealogy of the Principles of Fundamental Justice

to apply the due process guarantee only to “life”, personal “liberty” and “security of the person”. …In this fashion the possibility of any substantive “due process” problems would be avoided.24

Trudeau’s emphasis on US precedent was to be emblematic of the drafts and discussions that led to section 7’s ultimate formulation. Building on Trudeau’s assessment, early versions of the Charter proposed by the federal government in 1969 and 1978 replicated the language of “due process” found in the US Bill of Rights but eschewed any reference to a right to property.

Successive special joint committees of the Senate and House of Commons formed in 1970 (the

Molgat-MacGuigan Committee) and 1978 (the Lamontagne-MacGuigan Committee) to study possible amendments to Canada’s constitution heard repeatedly from federal civil servants and legal experts about the drawbacks of American-style substantive due process.25 In light of those concerns, the 1972 final report of the Molgat-MacGuigan Committee contained the first formal proposal to substitute “principles of fundamental justice” for “due process of law” in a new charter of rights for Canada.26 That proposal, which originally fell on deaf ears, was justified by the latter expression’s “unfortunate interpretation in the United States under substantive due process.”27

The spectre of substantive review of the wisdom of legislation, patterned after Lochner, also loomed large at the negotiating table bringing together the federal and provincial governments. Provincial representatives strongly resisted the incorporation of a US-style

24 Ibid at 20. 25 Choudry, “Lochner Era”, supra note 22 at 17-22. 26 Canada, Parliament, Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Final Report (March 1972) (Co-chairs: Gildas Molgat and Mark MacGuigan) at 18, 19-20, 96. 27 Ibid at 19.

83 Chapter 2 – A Genealogy of the Principles of Fundamental Justice substantive due process clause in any eventual Charter, fearful of the important check on provincial

(and federal) power such a constitutional provision might entail.28

Faced with these recurrent fears and opposition, the federal government in October 1980 proposed a revised draft of the clause that would become section 7 of the Charter. The wording in that draft, which would ultimately be incorporated verbatim in the Charter, adopted the qualifier suggested in the Molgat-MacGuigan report eight years earlier, replacing “due process of law” with

“the principles of fundamental justice.”29 The rationale for the change was explained by Barry

Strayer, then Assistant Deputy Minister of Justice and the person with primary responsibility for drafting the Charter. In a 1981 hearing of another parliamentary committee studying the most recent federal constitutional proposal (the Hays-Joyal Committee), Strayer testified that the substitution of principles of fundamental justice for due process was intended to encompass within section 7 only the procedural, but not the substantive, branch of due process.30 The Deputy Minister of Justice as well as then Minister of Justice, Jean Chrétien, likewise testified that the principles of fundamental justice were meant to be strictly procedural in scope, implicitly contrasting section

7 with its counterpart provisions of the 5th and 14th Amendments to the US Constitution.31

The spirit of due process would prove harder to jettison than the words. Despite the deliberate omission of any reference to “due process” in the final version of the Charter included in the Constitution Act, 1982, early academic commentary pertaining to section 7 frequently

28 John D Whyte, “Fundamental Justice: The Scope and Application of Section 7 of the Charter” (1983) 13:4 Man LJ 455 at 456-457; Barry Strayer, Canada’s Constitutional Revolution (Edmonton, AB: University of Alberta Press, 2013) at 258. 29 Strayer, supra note 28 at 258. 30 Canada, Parliament, Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Minutes of Proceedings and Evidence, 32nd Leg, 1st Sess, Vol 4, No 46 (January 27, 1981) (Co-chairs: Harry Hays and Serge Joyal) [Hays-Joyal Committee, Proceedings and Evidence] at 32. See also Choudry, “Lochner Era”, supra note 22 at 23-24. 31 Cited in Re BC Motor Vehicle Act, [1985] 2 SCR 486 [Motor Vehicle Reference] at 505.

84 Chapter 2 – A Genealogy of the Principles of Fundamental Justice attempted to divine the meaning of that section in light of – or in distinction from – American doctrine and case law on due process.32 At times, commentators and even judges have continued to refer to the provision colloquially as a due process clause.33 As I will discuss shortly, when the meaning and scope of the principles of fundamental justice were first tested before the Supreme

Court of Canada, the interpretation given to them by Lamer J’s majority opinion quickly revived and exported to Canada the US controversy over substantive due process that the architects of section 7 of the Charter had studiously attempted to avoid.34

B. Natural Justice

Natural justice was another important part of the intellectual heritage that led to the enshrinement of section 7. If substantive due process represented one fixed reference point for constitutional lawyers considering the potential implications of section 7, natural justice represented another, opposite, one. Like “due process,” natural justice has a long history in the

English legal system, and accordingly had a familiar ring to Canadian constitutional and public lawyers. It developed as a legal concept in English law mainly in the context of administrative

32 See e.g. Whyte, supra note 28; Morris Manning, Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982 (Toronto: Emond-Montgomery, 1983) at 255-264; Tremblay, supra note 19. 33 See e.g. Manning, supra note 32 at 271: “…there will be no need to accord what is essentially a ‘due process’ provision in section 7 the wide interpretation given its counterpart in the American Bill of Rights.” In 1988, Christopher Manfredi, albeit writing for an American audience, described section 7 as “functionally similar to the due process clauses of the fifth and fourteenth amendments” of the US Constitution: Christopher P Manfredi, “Comment - Fundamental Justice in the Supreme Court of Canada: Decisions Under Section 7 of the Charter of Rights and Freedoms, 1984-1988” (1990) 38:3 Am J Comp L 653 at 653. In 2006, Jamie Cameron still referred to section 7 as a “‘due process’ analogue”: Jamie Cameron, “From the MVR to Chaoulli v Canada: The Road Not Taken and the Future of Section 7” (2006) 34 SCLR (2d) 105 [Cameron, “MVR to Chaoulli”] at 110. In Charkaoui v Canada (Citizenship and Immigration), the Supreme Court itself noted, twenty-five years after the Charter was proclaimed, that “the protection of due process…lies at the heart of s. 7 of the Charter.”: 2007 SCC 9, [2007] 1 SCR 350 at para 27. 34 Jamie Cameron, “The Motor Vehicle Reference and the Relevance of American Doctrine in Charter Adjudication” in Robert J Sharpe, ed, Charter Litigation (Toronto: Butterworths, 1987) 69.

85 Chapter 2 – A Genealogy of the Principles of Fundamental Justice decision-making in the 19th and 20th centuries.35 Natural justice connotes the imperatives for decision-makers acting in a judicial or quasi-judicial capacity to avoid bias and to allow affected persons to be heard.36 These imperatives embody the right to a fair and impartial hearing, overlapping with the procedural branch of due process applicable in the criminal context. As

Lamer J would recognize early on when interpreting section 7, natural justice was very much “a known term of art”37 in Canadian law at the time the Charter was drafted.

As noted above, the federal government officials responsible for the wording of section 7 were convinced that the principles of fundamental justice guaranteed procedural protections only.

Moreover, every representative of the federal government who was questioned on the meaning of section 7 before the Hays-Joyal Committee in 1980-1981 defended that view by invoking natural justice. Fred Jordan, a senior member of the Department of Justice, testified that there was no difference between natural justice and fundamental justice.38 Strayer stated that “the term

‘fundamental justice’ appears to us to be essentially the same things as natural justice”39 and insisted that both terms guaranteed only procedural fairness.40 Their boss, the Deputy Minister of

Justice, backed up their assessment:

35 David Phillip Jones & Anne S de Villars, eds, Principles of Administrative Law, 6th ed (Toronto, On: Carswell, 2014) at 218-219. 36 Ibid at 217-218, 263, 410. These imperatives are associated respectively with the latin maxims nemo judex in sua causa debet esse, which translates literally as “no one shall be the judge in his own cause,” and audi alteram partem, which translates literally as “hear the other side.” For a historically contemporary account of natural justice, see JM Evans et al, eds, Administrative Law: Cases, Text, and Materials, 2nd ed (Toronto: Emond-Montgomery, 1984) at 27ff. 37 Motor Vehicle Reference, supra note 31 at para 32; see also Patrice Garant, “Vie, liberté et justice fondamentale (Article 7)” in Gérald-A Beaudoin & Errol Mendes, Canadian Charter of Rights and Freedoms, 4th ed (Markham, Ontario: LexisNexis Canada, 2005) 457 at 500-502 and Mark Carter, “Fundamental Justice in Section 7 of the Charter: A Human Rights Interpretation” (2003) 52 UNBLJ 243 at 247. 38 Hays-Joyal Committee, Proceedings and Evidence, supra note 30, Vol 4, No 46 (January 27, 1981) at 32-33. 39 Ibid at 38. 40 Ibid at 32, 38-39

86 Chapter 2 – A Genealogy of the Principles of Fundamental Justice

We assume that the Court would look at that [the principles of fundamental justice] much like a Court would look at the requirements of natural justice, and the concept of natural justice is quite familiar to courts and they have given a good deal of specific meaning to the concept of natural justice. We would think that the Court would find in that phraseology principles of fundamental justice a meaning somewhat like natural justice or inherent fairness.41

Jean Chrétien suggested for his part that not much turned on the choice of “fundamental” as opposed to “natural” justice; in the government’s view, the two terms were virtually interchangeable and either was suitable.42 The central point here is not that each of these persons understood the section 7 guarantee to be essentially procedural, rather than substantive. Rather, the point is that all four of these federal representatives drew on the familiar intellectual heritage of the common law tradition to convey the purportedly limited scope of section 7 to committee members. Natural justice shaped the work of the drafters of section 7 of the Charter; furthermore, those drafters explicitly sought to drive home the procedural character of the guarantee by assimilating the principles of fundamental justice to natural justice.

Ultimately, the phrase “natural justice” – like due process – was forsaken in the final draft of the Charter. In a recent memoir, Strayer, who went on to become a distinguished Federal Court judge, explained the choice to avoid the language of natural justice in section 7 on the basis that natural justice was, as noted above, primarily a requirement that applied in the administrative law context.43 Whether that ex-post facto justification is accurate or not, the historical record does not show. But that choice, like the choice to avoid due process language, does not diminish the important role that the familiarity of lawyers with natural justice played in section 7’s genesis.

Moreover, despite the Supreme Court of Canada’s eventual rejection of the equivalence between

41 Cited in the Motor Vehicle Reference, supra note 31 at 505. 42 Hays-Joyal Committee, Proceedings and Evidence, supra note 30, Vol 4, No 46 (January 27, 1981) at 37-38. 43 Strayer, supra note 28 at 259.

87 Chapter 2 – A Genealogy of the Principles of Fundamental Justice the principles of fundamental justice and natural justice, that heritage would come to influence not only the prevailing understanding of the appropriate scope to be given to section 7, but the methodology the Court would use to assess claims for compliance with the principles of fundamental justice.

C. A Canadian Bill of Rights Composite

The final contextual element that is relevant to section 7’s culture of legal argument, this one more immediate, is the Canadian Bill of Rights.44 Passed in 1960, the Bill of Rights was the first federal legal instrument – statutory or constitutional – expressly to declare and guarantee civil liberties for Canadians.45 Indeed, it was the first prominent example of a statutory bill of rights in the common law world.46 Two of the clauses in the Bill of Rights, sections 1(a) and 2(e), served as the home-grown models for the Charter’s section 7. Section 1(a) recognizes and declares “the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law” [emphasis added]. Section 2(e), meanwhile, specifies that “…no law of Canada shall be construed or applied so as to…(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations” [emphasis added]. When fused together, the underlined portions of those provisions make up the final text of section 7 of the Charter: [everyone has] the right…to life, liberty [and] security of the person…and the right not to be deprived thereof except…in accordance with the principles of fundamental justice.47

44 Canadian Bill of Rights, supra note 8. 45 Saskatchewan was the only Canadian jurisdiction, federal or provincial, to have an earlier bill of rights. In 1947, it passed the Saskatchewan Bill of Rights Act, SS 1947, c 35. 46 Jeremy Webber, “A Modest (but Robust) Defence of Statutory Bills of Rights” in Tom Campbell, Jeffrey Denys Goldsworthy & Adrienne Stone, eds, Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia (Aldershot, UK: Ashgate, 2006) 263 at 265. 47 The French version of section 7 of the Charter does not track the corresponding French versions of sections 1(a) and 2(e) of the Bill of Rights nearly as closely. Section 1(a) describes the protected right in

88 Chapter 2 – A Genealogy of the Principles of Fundamental Justice

These provisions of the Bill of Rights had both been judicially considered by the Supreme

Court of Canada when the Charter was being drafted and discussed. In 1972, in Curr v The

Queen,48 a case in which the defendant was charged for refusing to comply with a police officer’s request to undergo a breathalyzer test, the Court interpreted the scope of the “due process of law” guarantee included in section 1(a). Laskin J (as he then was), in reasons endorsed by seven out of nine judges, carefully distinguished the Canadian from the American experience.49 He emphasized the statutory and not constitutional character of Canada’s Bill of Rights and alluded to the risky

“bog of legislative policy-making”50 into which courts may enter when reviewing the substance of democratically-enacted law. Primarily in light of those considerations, Laskin J ultimately declined what he described as “the invitation to take the phrase ‘due process of law’ beyond its English antecedents and to view it in terms that have had sanction in the United States.”51 However, he did not foreclose the possibility of doing so in the future if the right case presented itself, in which compelling reasons were advanced and objective manageable standards proposed that could guide the power of judicial review.52

In Duke v The Queen,53 a decision issued the same year as Curr that also involved a criminal charge related to drunk driving, the Court interpreted the phrase “principles of

these terms: “le droit de l’individu à la vie, à la liberté, à la sécurité de la personne ainsi qu’à la jouissance de ses biens, et le droit de ne s’en voir privé que par l’application régulière de la loi.” The relevant parts of section 2(e) read: “…nulle loi du Canada ne doit s’interpréter ni s’appliquer comme…(e) privant une personne du droit à une audition impartiale de sa cause, selon les principes de justice fondamentale, pour la définition de ses droits et obligations.” See Canadian Bill of Rights, supra note 8. Section 7 of the Charter, supra note 1, departs from those precedents by substituting “sécurité de sa personne” for “sécurité de la personne” and by introducing the novel formulation “il ne peut être porté atteinte à ce droit qu’en conformité avec…” the principles of fundamental justice. 48 Curr, supra note 20. 49 Ibid at 897-903. 50 Ibid at 902. 51 Ibid at 897. 52 Ibid at 899-900; Laskin J reiterated that position a few years later in Morgentaler v The Queen, [1976] 1 SCR 616 at 632-633, dissenting but not on this point. 53 [1972] SCR 917 [Duke].

89 Chapter 2 – A Genealogy of the Principles of Fundamental Justice fundamental justice” as employed in section 2(e) of the Bill of Rights. The entire court concurred with the majority opinion of Chief Justice Fauteux, who said the following about section 2(e):

Under s. 2(e)…no law of Canada shall be construed or applied so as to deprive him of “a fair hearing in accordance with the principles of fundamental justice.” Without attempting to formulate any final definition of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case.54

A similar, strictly procedural, interpretation of section 2(e) was endorsed subsequently by several

Canadian appeals courts.55

In light of these decisions, it was common ground in Canadian law at the time the Charter was drafted that the guarantees embodied in sections 1(a) and 2(e) of the Bill of Rights were procedural – a fact of which the drafters of the Charter were well aware. Yet, here again the effect of prior judicial pronouncements on the interpretation of the Charter equivalent to sections 1(a) and 2(e) was ambiguous. First, the Supreme Court of Canada was widely criticized in the 1960s and 1970s for its timid approach to the interpretation of the Bill of Rights; only once in those decades did the Supreme Court of Canada declare a federal statute inoperative for failing to comply with the Bill.56 The government explicitly justified the need to constitutionalize a charter of rights because of perceived inadequacies of the Bill of Rights and its interpretation.57

Second, as Laskin J made clear in Curr, the restraint the Court showed when interpreting the Bill of Rights was in large part tied to its statutory, and not constitutional, status. As described

54 Ibid at 923. 55 Armstrong v Wisconsin (State) [1973] FC 437 (FCA) at paras 4-5; Potma v The Queen (1983), 41 OR (2d) 43 (Ont CA) [Potma, Ont CA] at para 13. 56 R v Drybones, [1970] SCR 282; see Walter S Tarnopolsky, The Canadian Bill of Rights (Toronto: McClelland and Stewart, 1975); and Peter W Hogg, Constitutional Law of Canada, 2017 student ed (Toronto: Thomson Reuters Canada, 2017) [Hogg, Constitutional Law 2017] at pp 35-10 to 35-11. 57 Trudeau, supra note 23 at 13-14.

90 Chapter 2 – A Genealogy of the Principles of Fundamental Justice above, Laskin J may have forcefully rejected the contention of the appellant in Curr that section

1(a) should be given an expansive reading along lines familiar to American due process jurisprudence. However, he left open the possibility that in the right circumstances, and if given a clear constitutional mandate, courts might be justified in engaging in the judicial review of the substance of legislation, and not merely its procedural aspects.

Finally, amalgamating sections 1(a) and 2(e) of the Bill of Rights into a single Charter guarantee meant that neither the Court’s holding in Curr nor its holding in Duke governed the interpretation of section 7. The relevance of Laskin J’s reasons in Curr to the interpretation of section 7 was mitigated by the fact that the due process qualifier was not replicated in section 7.

As for the Court’s comments in Duke, those were directed to the interpretation of the general guarantee of a fair hearing provided by section 2(e) of the Bill of Rights, not to the principles of fundamental justice tout court. Divorced from the adjudicative context contemplated by section

2(e), it was less clear that the reference to the principles of fundamental justice in section 7 of the

Charter should imply only a procedural guarantee. The bottom line is that the phrase “principles of fundamental justice” had no settled meaning when the Charter came into force.58 ef

The combined effects of the American and English due process doctrines, Anglo-Canadian familiarity with rules of natural justice, and the linguistic similarity between section 7 of the

Charter and sections 1(a) and 2(e) of the Canadian Bill of Rights, meant that the culture of legal argument associated with section 7 that was to emerge in the early days of the Charter would hardly do so in a vacuum. The protection of individual civil liberties through a constitutionally enshrined

58 Manning, supra note 32 at 255-256; Whyte, supra note 28 at 460; Hogg, Constitutional Law 2017, supra note 56 at pp 47-19 to 47-20.

91 Chapter 2 – A Genealogy of the Principles of Fundamental Justice bill of rights was a significant development for Canada and indeed for the whole British

Commonwealth,59 but it was not a rupture. As Luc Tremblay wrote in 1984, “our common law traditions provide a starting point for the courts in defining the scope of the principles of fundamental justice. …[F]uture growth will be based on historical roots.”60 Despite the novelty of a constitutionally entrenched rights instrument, debates about the meaning of section 7 would inevitably bear the imprint of a long, rich but also ambiguous heritage of legal discourse about civil liberties in the common law tradition. As I will show next, the impression left by that heritage would be shaped for many years by the Supreme Court of Canada’s first significant decision regarding the scope and meaning of the principles of fundamental justice: Re BC Motor Vehicle

Act, also known as the Motor Vehicle Reference.61

II. HISTORICAL DEVELOPMENT OF THE PRINCIPLES OF FUNDAMENTAL JUSTICE: THE EARLY PERIOD

The Supreme Court of Canada’s judgment in the Motor Vehicle Reference would go a long way towards resolving the ambiguity and speculation – but not the controversy – surrounding the interpretation to be given to section 7’s open-ended language. As I show in this part, the approach pioneered by Lamer J in the Motor Vehicle Reference would give rise to a conception of the principles of fundamental justice that confronted the ongoing concerns over the legitimacy of so- called substantive review in section 7 by recognizing principles incrementally and portraying those principles as specific and morally substantive rules. That conception would dominate section 7 jurisprudence for roughly the Charter’s first two decades. Under that conception, the method for recognizing a legal principle as a principle of fundamental justice embodied a common law style

59 In 1982, neither the United Kingdom, Australia, New Zealand nor South Africa had a bill of rights that was entrenched either constitutionally or even through a manner and form requirement akin to that of the Canadian Bill of Rights, supra note 8. 60 Tremblay, supra note 19 at 254. 61 Motor Vehicle Reference, supra note 31.

92 Chapter 2 – A Genealogy of the Principles of Fundamental Justice of adjudication, even as the content of the principles departed from purported precedents in

American, Canadian and English public law.

A. The Motor Vehicle Reference: Incremental, Specific and Morally Substantive Principles of Fundamental Justice

Following the proclamation of the Charter on April 17, 1982, it did not take long for clashes over the meaning of the principles of fundamental justice to be litigated.62 These clashes drew heavily on the intellectual influences described above. The simmering interpretive dilemma reached its boiling point before the Supreme Court of Canada in 1985, by way of the British

Columbia Court of Appeal. The BC Court of Appeal had been asked in a reference by the provincial government whether section 94(2) of the BC Motor Vehicle Act violated section 7 of the Charter.63 When combined with the section preceding it, the effect of section 94(2) was to create an absolute liability offence for driving with a suspended driver’s licence, an offence to which a minimum penalty of 7 days imprisonment was attached. A defendant charged for driving with a suspended driver’s licence would therefore have no opportunity to defend himself by showing, for instance, that her action was due to an honest and reasonable mistake of fact or that she acted diligently – in short, that she lacked a guilty mind. Whether she knew or should have known that her licence was suspended was immaterial to obtain a conviction. The immediate constitutional question was posed succinctly: did a criminal offence combining absolute liability

62 See e.g. Potma v The Queen (1982), 37 OR (2d) 189 (Ont H Ct J); appeal dismissed Potma, Ont CA, supra note 55. The Ontario High Court of Justice decision was issued only 12 days after the coming into the force of the Charter. In dismissing the appeal, the Ontario Court of Appeal reviewed American due process case law in considerable detail and concluded that “…the record of evidence in this case fails to provide any foundation for the conclusion that the disposition of the ampoules in question denies this appellant due process or the right to a fair trial in accordance with the principles of fundamental justice.” It did so after having disposed of the issues relating to the Canadian Bill of Rights, supra note 8. In Cadeddu v The Queen, (1982) 40 OR (2d) 128 (Ont H Ct J). Potts J considered the meaning of the principles of fundamental justice in light of natural justice and the administrative law duty of fairness but distinguished the Canadian Bill of Rights case law. 63 Reference re Section 94(2) of the Motor Vehicle Act (1983), 147 DLR (3d) 539 (BCCA).

93 Chapter 2 – A Genealogy of the Principles of Fundamental Justice with a mandatory penalty of imprisonment violate section 7 of the Charter? The Court’s answer would require it to clarify the meaning of the principles of fundamental justice and their relationship to the various guarantees, substantive and procedural, Canadian and foreign, that formed the contextual background so important to the genesis of section 7.

The majority judgment concluded that the BC Motor Vehicle Act contravened section 7 of the Charter. Writing for five out of seven judges, Lamer J held that it was a fundamental principle of “our systems of laws that the morally innocent not be punished.”64 Absolute liability offences threaten to capture the morally innocent, he said, denying those charged with the opportunity to defend themselves by showing that they committed the prohibited act unknowingly or while exercising all due care. On that basis, Lamer J concluded that “absolute liability in penal law offends the principles of fundamental justice”65 and that, therefore, absolute liability coupled with imprisonment violates section 7 of the Charter.

In so doing, the Court famously answered the question that had dominated discussions about section 7 from its earliest drafts: the principles of fundamental justice reached beyond fair procedure. Lamer J dismissed the US experience with due process that had cast such a long shadow over the work of the Charter’s drafters.66 He then resolved the ambiguity inherent in section 7’s reference to the principles of fundamental justice by drawing on textualist and purposive arguments. Textually, Lamer J interpreted the open-ended language of section 7 in light of similarities but especially differences with the phrasing of legal protections contained in other rights instruments and legal principles familiar to the common law.67 His interpretation of section

7 also stressed its placement under the “Legal Rights” heading of the Charter. Lamer J stressed the

64 Motor Vehicle Reference, supra note 31 at 513. 65 Ibid at 514. 66 Ibid at 497-498 67 Ibid at 503-504, 511

94 Chapter 2 – A Genealogy of the Principles of Fundamental Justice importance of ensuring coherence between section 7 and the other guarantees enumerated under that heading, some of which contain substantive elements.68 Purposively, Lamer J emphasized the explicitly constitutional vocation of the Charter overall, as distinguished from ordinary statutes and even the Bill of Rights,69 as well as the vital importance of the interests protected by section

7: life, liberty and security of the person.70 A large and liberal interpretation befitting a constitution, not a narrow technical one, would be preferred.

Several elements of the vision staked out by Lamer J would come to shape not just the content of the fundamental justice guarantee, but also how claims relating to it would be litigated and adjudicated in the Charter’s first two decades. It is useful to reproduce Lamer J’s summary of the essential elements of his approach:

Sections 8 to 14…are…illustrative of the meaning…of “principles of fundamental justice”; they represent principles which have been recognized…as essential elements of a system for the administration of justice which is founded upon the belief in the dignity and worth of the human person and the rule of law.

Consequently, the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system.

…Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.

Consequently, those words cannot be given any exhaustive content or simple enumerative definition, but will take on concrete meaning as the courts address alleged violations of s. 7.71

68 Ibid at 502-503; Charter, supra note 1, at ss 7-14. 69 Motor Vehicle Reference, supra note 31 at 499, 502, 509-511. 70 Ibid at 501. 71 Ibid at 512-513 [Emphasis in original].

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Three features of that approach deserve to be examined in further detail. According to Lamer J, the principles of fundamental justice were to be interpreted incrementally; they were portrayed as specific constitutional norms; and they were ascribed content that was morally substantive.

First, Lamer J’s refusal to give the “principles of fundamental justice” exhaustive content is consistent with an incremental, bottom-up vision to the principles of fundamental justice. What the words “the principles of fundamental justice” mean, and indeed what exactly constitutes a principle of fundamental justice, was to be resolved on a case-by-case basis relying on a method familiar to common law judges: inductive, analogical reasoning. Methodologically, therefore, the approach formulated by Lamer J was in line with judicial decision-making in the common law tradition. This was so even if the meaning the Court attached to the principles of fundamental justice signalled a departure from the relatively narrow scope of due process and natural justice guarantees developed at common law.

Lamer J’s analysis of the issue facing the court in the Motor Vehicle Reference – the constitutionality of absolute liability combined with imprisonment – illustrates that approach.

Rather than attempt to formulate an exhaustive test for determining when deprivations of life, liberty and security of the person respect the principles of fundamental justice, and when they do not, the Court in the Motor Vehicle Reference proceeded incrementally. Its conclusion drew significantly on a decision it had rendered seven years earlier in R v Sault Ste-Marie.72 In that case the Court had been called upon to determine, as a matter of statutory construction, what level of mens rea (if any) was required to obtain a conviction for an offence created by a provincial act relating to water pollution. To address the issue, a unanimous court had thoroughly reviewed the justifications for and against various categories of offences. It harshly criticized absolute liability

72 R v Sault Ste Marie, [1978] 2 SCR 1299; Cameron, “MVR to Chaoulli”, supra note 33 at 110.

96 Chapter 2 – A Genealogy of the Principles of Fundamental Justice in terms that would turn out to presage both the language of section 7 and the Court’s judgment in the Motor Vehicle Reference. Justice Dickson cited “a generally held revulsion against punishment of the morally innocent”73 and affirmed that absolute liability “violates fundamental principles of penal liability.”74 Those statements would prove to be stepping stones of the perfect height for

Lamer J in the Motor Vehicle Reference.75

Lamer J’s enunciation of the principle that “the innocent [should] not be punished,”76 and his determination that absolute liability therefore violated the principles of fundamental justice are strikingly similar to its conclusions in R v Sault Ste-Marie.77 The Court in the Motor Vehicle

Reference effectively consolidated – in constitutional terms – a principle that the criminal justice system already invoked to protect the civil liberties of accused persons. Its reasons may have highlighted a myriad of further substantive possibilities for section 7, but the Court’s judgment told a story of continuity. The Court only recognized as a principle of fundamental justice a maxim of interpretation that had a long common law history and upon which it had recently laid considerable weight. Furthermore, its musings about the principles of fundamental justice hardly went further than necessary to invalidate section 94(2) of the BC Motor Vehicle Act.

Second, Lamer J’s approach portrayed the principles of fundamental justice as specific norms. Granted, the Court’s decision in the Motor Vehicle Reference stood as proof that the overall protection offered by the principles of fundamental justice might turn out to be wide in scope – much wider than the authors of the Charter had desired or anticipated. But the implication of Lamer

J’s approach was that that scope would be achieved through the cumulative effect of individual

73 R v Sault Ste Marie, supra note 72 at 1310. 74 Ibid at 1311. 75 Alan Young, “Fundamental Justice and Political Power: A Personal Reflection on Twenty Years in the Trenches” (2002) 16 SCLR (2d) 121 at 128. 76 Motor Vehicle Reference, supra note 31 at 513. 77 Motor Vehicle Reference, supra note 31 at 515.

97 Chapter 2 – A Genealogy of the Principles of Fundamental Justice principles. As noted above, the Court’s interpretation of the principles of fundamental justice emphasized the relationship among the diverse provisions contained in the part of the Charter dealing with “Legal Rights”.78 The principles of fundamental justice referenced in section 7 were to be composed of a multiplicity of individual principles modelled on, and including, the guarantees enumerated in sections 8 to 14 of the Charter.

Examples of these guarantees include the rights to be secure against unreasonable search and seizure and to be presumed innocent, and the rights not to be arbitrarily detained, denied reasonable bail without cause, subjected to cruel and unusual punishment, or tried twice for the same offence. Many of those provisions were inspired by the historic civil liberties that, as discussed above, had emerged in England as a response to episodic clashes between king and

Parliament over the exercise of royal authority. By their own terms, these guarantees tended to apply in certain circumstances only: for instance, on being searched, detained, or charged with an offence. In this respect, then, the Court’s decision to interpret the principles of fundamental justice as specific norms was shaped by the common law tradition of civil liberties, a tradition that had given rise to a bundle of discrete liberties, most of which found application in specific contexts.

That circumscribed, common law approach was reflected in the Court’s articulation of the principle of fundamental justice it invoked to invalidate section 94(2) of the BC Motor Vehicle

Act. As mentioned above, Lamer J stated it was a principle in “our systems of laws that the morally innocent not be punished,” 79 and held on that basis that “absolute liability in penal law offends the principles of fundamental justice.” 80 The norm, as well as it implications for mens rea requirements in penal law, are pitched at a high degree of specificity. Moreover, these

78 Charter, supra note 1 at ss 7-14. 79 Motor Vehicle Reference, supra note 31 at 513. 80 Ibid at 514.

98 Chapter 2 – A Genealogy of the Principles of Fundamental Justice unconditional formulations – allowing seemingly for no exceptions – are such that the identified constitutional norm resembles a concrete, all-or-nothing common law rule more than it does a broad-based principle whose weight depends on the circumstances.81 That rule posits a necessary association between mens rea and criminal liability regardless of the circumstances: no punishment without a guilty state of mind.

Third and finally, the Court’s approach portrayed those individual principles as morally substantive. By describing these principles as substantive, I do not mean to reference the dichotomy between procedural and substantive aspects of due process. Rather, I mean that they would have concrete, not abstract, moral content and they would be justified transparently on moral grounds. Historically, the common law knew no clear dividing line between law and morality,82 and the approach to fundamental justice embodied by the Motor Vehicle Reference would carry forward that connection.

Lamer J’s application of section 7 to section 94(2) of the BC Motor Vehicle Act rests on a moral worldview in several ways. To begin with, Lamer J’s reasoning is premised on the existence of a category of persons that he describes variously as “the innocent”, “the morally innocent” or those who have “not really done anything wrong.” Statements like this appeal to some prior, extra- legal conception of what is right and what is wrong – in other words, a conception of moral blameworthiness or innocence that transcends the legal order.83

81 Ronald Dworkin famously articulated the distinction between rules and principles in “The Model of Rules” (1967) 35:1 U Chicago L Rev 14 at 22-29. 82 Consider e.g. Shaw v Director of Public Prosecutions [1961] All ER 442 (UK HL), [1961] UKHL 1 at 5 (Opinion of Viscount Simonds); see also Yves Caron, “The Legal Enforcement of Morals and the So- Called Hart-Devlin Controversy” (1969) 15:1 McGill LJ 10 at 18, 22. 83 Though one must be careful not to exaggerate the point. Lamer J’s distinction between moral innocence and guilt rests on wilfulness, rather than on the inherent immorality of certain conduct.

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Furthermore, Lamer J portrays the requirement of moral blameworthiness as itself a moral imperative within the criminal justice system. Citing with approval Dickson J’s reasons in Sault

Ste Marie, Lamer J conveys the legal system’s attitude towards the punishment of the morally innocent in strikingly moral terms. “[T]here is a generally held revulsion against punishment of the morally innocent,”84 he says. It is not just that a person who is “morally innocent” should not be punished by the law; more than that, the idea of punishing such a person actually elicits a visceral moral disgust. Fundamental justice requires moral justice. On Lamer J’s approach, therefore, law and morality are entwined in the principles of fundamental justice. The judicial quest to give meaning to the words “principles of fundamental justice” is at one and the same time a quest to understand and specify what justice fundamentally is. The remarks of retired Supreme

Court Justice Frank Iacobucci capture the thrust of the inquiry animating the Motor Vehicle

Reference. The fundamental challenge to which the case addressed itself, and which continued to drive section 7 jurisprudence in the years that followed, was a moral one: “the challenge to define justice: what it is, and what it should be.”85

In short, the Court’s original approach to the principles of fundamental justice, as developed and applied in the Motor Vehicle Reference, addressed concerns of institutional legitimacy by ushering in a culture of legal argument that exhibited three important characteristics derived from section 7’s common law heritage. According to that approach, the principles of fundamental justice should be interpreted and recognized incrementally. They should be conceptualized individually and at a high level of specificity. Finally, debates about what

84 Motor Vehicle Reference, supra note 31 at 514 [emphasis added] 85 Frank Iacobucci, “Some Reflections on Re BC Motor Vehicle Act” (2011) 42:3 Ottawa L Rev 305 at 322; see also pp 308-309. Justice Iacobucci was not a member of the Court when the Motor Vehicle Reference was decided.

100 Chapter 2 – A Genealogy of the Principles of Fundamental Justice constitutes a principle of fundamental justice would be nourished substantively by moral reasoning about what fundamental justice is, what it requires, and what it should be.

B. The Aftermath of the Motor Vehicle Reference

Section 7 jurisprudence in the aftermath of the Motor Vehicle Reference would bear the hallmarks of its common law heritage. The Court’s approach would be reinforced as it confronted a succession of claims asking it to specify in relation to particular criminal offences, and in increasing detail, the degree of fault required to respect the principles of fundamental of justice.

The principle expressed in the Motor Vehicle Reference – that moral innocence ought not to be punished, from which it followed that absolute liability could not be coupled with a penalty of imprisonment – was sufficient to dispose of the reference question posed. But other than in the

“easy case” of straight absolute liability offences – in which a mental element was completely absent – the ratio from the case provided little useful direction to courts below. The Supreme

Court’s emphasis on moral innocence, combined with its fundamental justice methodology, meant that questions involving minimum fault requirements in criminal cases would need to be addressed on a continuing basis. These cases dominated the Court’s so-called substantive section 7 docket in the decade that followed.86

In R v Vaillancourt, R v Martineau and R v Logan,87 the Court boldly confirmed that the principles of fundamental justice required not just objective, but indeed subjective, foresight of death to ground a criminal conviction for murder or attempted murder. Lamer J, again writing for the majority, formulated the operative principle in Martineau as follows: “it is a principle of

86 On the Court’s minimum mens rea jurisprudence from this period, see Simon France, “Gains and Lost Opportunities in Constitutional Minimum Mens Rea” (1995) 20:2 Queen’s LJ 533; Nancy K Thomson, “Fundamental Justice, Stigma and Fault” (1994) 52:2 UT Fac L Rev 379; Louise Viau, “La Charte et la nouvelle conception de la mens rea” (1995) 26:1 RGD 81. 87 R v Vaillancourt, [1987] 2 SCR 636; R v Martineau, [1990] 2 SCR 633; R v Logan, [1990] 2 SCR 731.

101 Chapter 2 – A Genealogy of the Principles of Fundamental Justice fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death.”88 To reach that conclusion, the court emphasized the social stigma attached to murder, but it also invoked a more general precept of the criminal law – “that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result.”89 On the basis of such remarks, some jurists reading the tea leaves of the court’s decisions might have surmised that the principles of fundamental justice would eventually require foresight – maybe even subjective foresight – of all the consequences of an offence as a constitutional minimum for mens rea.

The court soon clarified, however, that the foresight requirement in criminal cases would not be interpreted that strictly. The cases of R v DeSousa, R v Hundal and R v Creighton all dealt with the constitutionally required mens rea for criminal offences other than murder in which the criminal charge, and the severity of the sentence to be applied, depended in part on unforeseen consequences of a prohibited act.90 In what ended up amounting to a series of failed constitutional challenges, the Court hedged previous statements about minimum fault requirements and the principles of fundamental justice.

In R v DeSousa, a unanimous panel of the Court circumscribed the impact of its prior section 7 judgments by emphasizing that a constitutionally mandated minimum mens rea was a feature of special offences only – offences such as murder or attempted murder that have high level of social stigma.91 As applied in DeSousa, this meant that the principles of fundamental justice

88 R v Martineau, supra note 87 at 646. 89 Ibid at 645. Lamer J summarized the ratio in Vaillancourt similarly: “…it is a principle of fundamental justice that before a person [can] be convicted of murder there must be proof beyond a reasonable doubt of at least objective foreseeability of death” (ibid at 643). 90 R v DeSousa, [1992] 2 SCR 944; R v Hundal, [1993] 1 SCR 867; R v Creighton, [1993] 3 SCR 3. 91 R v DeSousa, supra note 90 at 962-963.

102 Chapter 2 – A Genealogy of the Principles of Fundamental Justice would not prevent a person from being convicted of the offence of unlawfully causing bodily harm even when that person may not have foreseen that any harm could arise from her unlawful act.92

In R v Hundal, none of the judges was convinced by the claim that a conviction for the criminal offence of dangerous driving causing death would require subjective foresight of death, or even of harm. The principles of fundamental justice required some kind of guilty mind to uphold a criminal conviction. But that criterion could me made out objectively or subjectively, depending on the circumstances.93 The members of the Court seemed moreover to take for granted that foresight of death was not relevant to the mental state required for the offence.

Finally, in R v Creighton, a case that turned on the constitutionality of unlawful-act manslaughter, the Court backed off even further. Both Lamer J and McLachlin J, each of whom was writing for four judges, seized the opportunity to declare that certain alleged principles were not principles of fundamental justice. According to Lamer J, “there is no general constitutional principle requiring subjective foresight for criminal offences.”94 Meanwhile, McLachlin J rejected the contention “that the principle of absolute symmetry between mens rea and each consequence of a criminal offence is…a principle of fundamental justice which sets a constitutional minimum.”95

Beyond the Court’s treatment of mens rea requirements for criminal offences, few cases in this period engaged the so-called “substantive due process” branch of section 7.96 Even in the 1988 case of R v Morgentaler, which put the contentious issue of abortion directly before the Court, a

92 Ibid at 968. 93 R v Hundal, supra note 90 at 871-872 (McLachlin J), 876 (La Forest J), 882 (Cory J). 94 R v Creighton, supra note 90 at 18. 95 Ibid at 50. 96 Several other fundamental justice cases in this period also concerned mens rea requirements: see e.g. R v Hess, [1990] 2 SCR 906; R v Wholesale Travel Group, [1991] 3 SCR 154; R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606 [Nova Scotia Pharmaceutical]; R v Finlay, [1993] 3 SCR 103; R v Naglik, [1993] 3 SCR 122; R v Daviault, [1994] 3 SCR 63; R v Pontes, [1995] 3 SCR 44.

103 Chapter 2 – A Genealogy of the Principles of Fundamental Justice majority of judges joined opinions that declined to adjudicate the case in terms of substantive due process.97 Dickson CJ and Beetz J each authored reasons that focused on ostensibly procedural deficiencies in the administrative scheme set up by the government to grant or refuse authorization to perform a therapeutic abortions, which together earned the support of four out of seven judges.98

For Dickson CJ, the principle at stake was that “when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory.”99

For Beetz J, the shortcoming in the administrative structure overall, which posed significant procedural obstacles to many women seeking therapeutic abortions, rendered the contemplated process manifestly unfair.100 In Rodriguez v British Columbia (Attorney General), the Court demonstrated a similar reserve regarding the substantive reach of section 7. The Court declined to recognize a constitutional right to assisted suicide, since no violation of the principles of fundamental justice was made out. A majority of judges deemed that the criminal prohibition was consistent with fundamental social values and was not substantively unfair.101

The approaches that prevailed in Morgentaler and Rodriguez are consistent with the incrementalism pioneered in the Motor Vehicle Reference, and also with criticisms linked to enduring concerns over the legitimacy of substantive review in section 7. Most of the Court’s pronouncements on principles of fundamental justice in the first decade of the Charter related to procedural questions or the functioning of the criminal justice system, both matters in which the judiciary could claim historic expertise. Drawing on the long common law tradition discussed in the previous section, the Court specified numerous principles of fundamental justice ensuring that

97 R v Morgentaler, [1988] 1 SCR 30 [Morgentaler, 1988]. 98 Ibid at 63 (Dickson CJ) and 81-82 (Beetz J). 99 Ibid at 70 (Dickson CJ); see also Eric Colvin, “Section Seven of the Canadian Charter of Rights and Freedoms” (1989) 68:3 Can Bar Rev 560 at 569-570. 100 Morgentaler, 1988, supra note 97 at 115, 120, 121-122 (Beetz J). 101 Rodriguez, supra note 7 at 605-608.

104 Chapter 2 – A Genealogy of the Principles of Fundamental Justice targets of criminal convictions would benefit from fair procedures, such as the right to be presumed innocent,102 the right of an accused or detained person to remain silent,103 a principle against self- incrimination,104 the right to a fair hearing,105 and the right of an accused to make full answer and defence.106 These were frequently modelled and inspired by the legal rights enumerated in sections

8-14 of the Charter.

Though the recognition and application of these kinds of rights and principles in specific circumstances could be hotly debated, the Court’s implicit claim to be their authoritative interpreter tended to be less controversial than their substantive due process counterparts. The

Court’s pronouncements and its overall interpretive methodology therefore reflected its relative level of institutional confidence navigating matters of procedural rather than substantive fairness.107

Despite these signs of institutional self-restraint, many commentators lamented the inconsistency and unpredictability of the Court’s decisions in that period. In 1993, Dennis Klinck drew attention to numerous ambiguities in the Court’s “substantive” section 7 judgments, producing a long list of unresolved problems arising from the jurisprudence.108 A decade later, in the 2003 edition of his Constitutional Law of Canada, Peter Hogg remarked that section 7 decisions following the Motor Vehicle Reference suggest “little agreement as to what are the basic tenets of the legal system or even as to the sources from which the basic tenets might be

102 R v Pearson [1992] 3 SCR 665 at 682-688 (Lamer J), at 702-703 (Gonthier J) and 703 (McLachlin J, dissenting but not on this point). 103 See generally R v Hebert, [1990] 2 SCR 151. 104 R v S (RJ) [1995] 1 SCR 451 at 468 (Lamer J) and at 486, 512 (Iacobucci J). 105 R v Lyons, [1987] 2 SCR 309 at 362. 106 R v Stinchcombe, [1991] 3 SCR 326 at 336; Dersch v Canada (Attorney General), [1990] 2 SCR 1505 at 1514. 107 A Young, supra note 75 at 128. 108 Dennis Klinck, “The Charter and Substantive Criminal ‘Justice’” (1993) 42 UNBLJ 191 at 207.

105 Chapter 2 – A Genealogy of the Principles of Fundamental Justice derived.”109 Jamie Cameron was even more blunt in a 2006 article. She described the Supreme

Court’s section 7 jurisprudence up until that point as “obtuse, even impenetrable.”110

Critics were right to complain that the Motor Vehicle Reference and its progeny provided jurists with few clues to predict what laws would conform to the substantive requirements imposed by the principles of fundamental justice, and what laws would not. But despite that shortcoming,

Lamer J’s opinion did leave a coherent methodological legacy when it came to section 7’s culture of legal argument. In the aftermath of the Motor Vehicle Reference, the Court proceeded incrementally, with the direction of its case law over that time ebbing and flowing according to the facts of the cases.111 Its approach, compounded partly by frequent concurring and dissenting opinions, led to an inductive and gradual specification of the meaning of the words “principles of fundamental justice.” Narrowly defined principles of fundamental justice were bootstrapped to the circumstances of individual cases in a manner reminiscent of the traditional bottom-up approach of the judge at common law.112 Lamer J’s forecast in the Motor Vehicle Reference, that the words

“principles fundamental justice” could not be interpreted exhaustively or defined enumeratively but would instead take on concrete meaning as individual cases were decided, turned out to be accurate.

In addition, despite frequent disagreement about what the principles of fundamental justice stood for, and even more frequent disagreements about what they required in any given case,

109 Hogg, Constitutional Law of Canada, 2003 student ed (Scarborough: Thomson Carswell, 2003) [Hogg, Constitutional Law 2003] at 989. Referring to the muddled opinions of the Court relating to minimum fault requirements, he continued laconically at 1001: “it is not easy to summarize the present state of the law.” 110 Cameron, “MVR to Chaoulli”, supra note 33 at 105. 111 Some judges and commentators did criticize Lamer J for overreaching: consider e.g. the opinion of Sopinka J in R v Martineau, supra note 87 at 682. 112 Denise G Réaume, “Of Pigeonholes and Principles: A Reconsideration of Discrimination Law” (2002) 40:2 Osgoode Hall LJ 113 at 117-118.

106 Chapter 2 – A Genealogy of the Principles of Fundamental Justice judges in those years were united in appealing to arguments that sounded in a moral register. In the face of continuing concerns about the propriety of the substantive review of government action, judicial efforts to set appropriate limits on judicial review involving the principles of fundamental justice looked for guidance in the perceived moral content of those principles.

Attempts to differentiate between criminal offences that were so-called “true crimes” as opposed to mere regulatory ones, to work out the role to be played by moral innocence in the criminal law, and to discern the social stigma associated with specific offences – i.e. the moral opprobrium that attached to labels such as “murderer” and “thief” – were fixtures of the judicial analysis. This preoccupation was shared by academic commentators: however confusing the answer, the great jurisprudential question of that era seemed clear, and would not have seemed out of place in a moral philosophy class: what is justice?113 Dennis Klinck, for instance, justified his critique of section 7 case law on the premise that section 7 “explicitly requires reflection on

‘justice.’”114 In 2003, Mark Carter articulated the common thread of section 7 jurisprudence: despite their contradictory opinions, for better or for worse the courts took for granted that they

“must somehow solve one of the greatest and thorniest philosophical issues of all time” – in other words, how to define the “concept of justice.”115 Although Carter took exception to the conception of justice that emerged from the case law, his corrective was not to turn away from the exercise altogether, but rather to theorize justice differently.116

Finally, the Court’s piecemeal vindication of narrow principles and its moral inquiry into the meaning of justice slowly gave rise to a discernible constellation of individuated principles of

113 Klinck, supra note 108 at 206-208; Iacobucci, supra note 85 at 308, 322; M Carter, supra note 37 at 244. 114 Klinck, supra note 108 at 192. 115 M Carter, supra note 37 at 244. 116 Ibid at 254ff.

107 Chapter 2 – A Genealogy of the Principles of Fundamental Justice fundamental justice. Though controversy about the substantive protections offered by section 7 persisted, some form of substantive review of government action appeared to be here to stay. Faced with that reality, jurists sought to rationalize, consolidate and synthesize the burgeoning case law on fundamental justice.

As the cases accumulated, legal scholars sought to catalogue which basic tenets of the legal system had been constitutionally sanctioned as “principles of fundamental justice” and which had not. In keeping with the approach developed in the Motor Vehicle Reference, these cataloguing efforts portrayed the principles of fundamental justice as a diverse collection of particularized principles, rather than a unified constitutional standard. The principles were not easy to classify.

Some jurists distinguished principles that were substantive from principles that were procedural in nature, replicating a distinction inherited from the due process debates.117 Others separated the principles according to categories familiar from professional practice and law school: those relevant to criminal settings, on the one hand, and those relevant to civil disputes, on the other.118

Still others organized the principles thematically according to the legal concept to which they were related: for instance absolute and strict liability; murder; unforeseen consequences of criminal acts; involuntary acts.119

In short, legal scholars and practitioners coped with the uneven results of the Court’s section 7 judgments by abandoning attempts to find an overarching conceptual apparatus to make sense of the multiplicity of individuated principles. Like a pigeon-hole approach to tort liability at common law, this approach rested on the assumption that the starting point for a successful section

117 See e.g. Klinck, supra note 108 at 192. 118 Jodie van Dieen, “The 20th Anniversary of the Charter: Developments in Criminal Law under Section 7 of the Charter” (2002) 21 Windsor YB Access Just 129. 119 Hogg, Constitutional Law 2003, supra note 109 at 994-1040.

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7 claim was to identify a principle of fundamental justice breached by the state.120 By 2005, when the 4th edition of the collection entitled Canadian Charter of Rights and Freedoms was published under the direction of Gérald-A. Beaudoin and Errol Mendes, this approach was well-established.

Tasked with penning the chapter on the Charter’s section 7, Patrice Garant presented a 6-page bullet list of principles that members of the Supreme Court had articulated as principles of fundamental justice.121 Later authors would adopt a similar strategy.122

The Court’s jurisprudence in the wake of the Motor Vehicle Reference remained concerned about the legitimacy of the adjudication of section 7 claims, especially when they involved the review of the substantive content of legislation. Partly to address those concerns, the Court favoured an incremental, specific and morally substantive approach to the principles of fundamental justice that embodied a common law style of judicial-decision-making and linked the principles of fundamental justice conceptually with the historic lineage of civil liberties in the common law tradition. The culture of argument to emerge in this so-called early period of section

7 jurisprudence would bear the hallmarks of the common law genealogy of Canada’s “due process” clause. Consistent with this tack, section 7 litigation and adjudication tended to focus on the recognition of principles as principles of fundamental justice, as opposed to their application.

Claims that engaged the interests protected by section 7 of the Charter frequently turned on

120 For a time in the 1990s, some members of the Court did flirt with the idea that the collection of particularized, concrete principles of fundamental justice should co-exist with a generalized balancing standard of fundamental justice, a view that was most clearly articulated by La Forest J in Godbout v Longueuil (City), [1997] 3 SCR 844 [Godbout]. I discuss that minority view in more detail in in Sections III.B and IV.A below. 121 Garant, supra note 37 at 516-521. 122 Despite the overall shift in the culture of argument discussed below, many accounts of the principles of fundamental justice still categorize and enumerate principles in this way. See e.g. Carissima Mathen, “Section 7 and the Criminal Law”, (2013) 62 SCLR (2d) 49 at 63-91; Margot Young, “The Other Section 7” (2013) 62 SCLR (2d) 3 at 31-39; and Stewart, supra note 4.

109 Chapter 2 – A Genealogy of the Principles of Fundamental Justice whether an alleged principle – couched in concrete and relatively narrow terms – should be recognized as a principle of fundamental justice in light of its nature, sources, rationale and role.123

III. THE RODRIGUEZ/MALMO-LEVINE TEST: BETWEEN PAST AND FUTURE

The development of a formal test to determine what constitutes a principle of fundamental justice would mark an important shift in the Supreme Court’s approach to section 7 adjudication.

As I explain in this part, the test, which I call the Rodriguez/Malmo-Levine test after the principal cases in which it originated, is notable for its attempt to resolve what had long been considered a riddle of section 7 jurisprudence: conflicting accounts of the role of societal interests in the fundamental justice analysis. But it also constituted a methodological tipping point that would reshape section 7 case law and the culture of argument that supports it. Even as the test focused analytical attention on the recognition of individual principles of fundamental justice, the stringent standard it imposed made the recognition of novel principles much more difficult in practice. The predominance of the Rodriguez/Malmo-Levine test would consequently spell the beginning of the end for openly moral reasoning in the fundamental justice analysis, opening the door for the turn of section 7 adjudication towards a proportionality approach.

A. The Emergence of the Rodriguez/Malmo-Levine Test

As jurists strove to make sense of the existing section 7 case law, the Supreme Court of

Canada made its own efforts to streamline and standardize its fundamental justice analysis. The centrepiece of those efforts would turn out to be a formal test for courts to follow when deciding whether an alleged principle should be recognized as a principle of fundamental justice. As discussed in the last part, the Court’s approach up to this point had emphasized the incremental recognition of individual principles of fundamental justice. However, that approach provided little

123 Motor Vehicle Reference, supra note 31 at 513.

110 Chapter 2 – A Genealogy of the Principles of Fundamental Justice guidance to courts who had to determine when an alleged principle was a basic tenet of the legal system, and a principle of fundamental justice, and when it was not. The split decision of the

Supreme Court in Thomson Newspapers, which centred on an inquiry by the federal competition authority into the possible commission of an offence by the defendant corporation, represented probably the high (or low, depending on one’s perspective) point in that regard. All five judges on the panel authored separate opinions purporting to articulate a different principle of fundamental justice applicable to the case.124 Such confusion had done little to put to rest lingering doubts about the legitimacy of constitutional adjudication under section 7 – doubts that originated in the substantive due process controversy.

An organizing framework began to emerge with the majority judgment of Sopinka J in

Rodriguez v British Columbia (Attorney General),125 discussed above. Sopinka J offered several clarifications about what constitutes a principle of fundamental justice:

[P]rinciples upon which there is some consensus that they are vital or fundamental to our societal notion of justice are required. Principles of fundamental justice must not, however, be so broad as to be no more than vague generalizations about what our society considers to be ethical or moral. They must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result. They must also, in my view, be legal principles.126

These comments would eventually crystallize into a 3-pronged test.127 As restated by Gonthier and

Binnie JJ in Malmo-Levine, a rule or principle would have to meet three criteria to constitute a

124 Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 SCR 425 [Thomson Newspapers]. 125 Rodriguez, supra note 7. 126 Ibid at 590-591. 127 See e.g. R v Ruzic, 2001 SCC 24, [2001] 1 SCR 687 at para 28; Malmo-Levine, supra note 6 at para 113; Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4, [2004] 1 SCR 76 [Canadian Foundation for Children] at para 8; R v DB, 2008 SCC 25, [2008] 2 SCR 3 at para 46; R v Anderson, 2014 SCC 41, [2014] 2 SCR 167 at para 29; Canada (Attorney General) v Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 SCR 401 [Federation of Law Societies] at para 87.

111 Chapter 2 – A Genealogy of the Principles of Fundamental Justice principles of fundamental justice: (1) it must be legal in character; (2) there must exist a consensus as to its importance for the legal system, or alternatively a consensus that the principle is vital or fundamental to our societal notion of justice; and (3) it must be able to generate a manageable standard of review.128

The persuasive force of the criteria developed in Rodriguez and Malmo-Levine rested in part on their ability to explain prior decisions of the Court recognizing principles of fundamental justice. As such, the form of the test ushered in by Rodriguez and Malmo-Levine partly reinforced and re-articulated the conception of the principles of fundamental justice developed in the Motor

Vehicle Reference.

By focusing on the process for recognizing principles of fundamental justice, the test underscored the Court’s commitment to an incremental approach. As contemporary critics suggested, efforts to rationalize the existing section 7 case law or enunciate limits on the judicial power to review the substance of government action could have taken other forms. The Court might have articulated a common rationale underpinning the court’s powers of review under section 7;129 it might have clarified the relationship between the principles of fundamental justice and pragmatic policy considerations;130 it might have developed a more theoretically sophisticated account of justice;131 or, it might have explained how existing standards should be consistently applied. Instead, the Court elected to reframe its jurisprudence in a way that centred attention on the novel recognition of principles of fundamental justice, doubling down on an incremental, inductive approach. This choice appeared to suggest that the case-by-case recognition of individual principles of fundamental justice was where the action was and would continue to be.

128 Malmo-Levine, supra note 6 at para 113. 129 See e.g. Colvin, supra note 99 at 561. 130 See e.g. Klinck, supra note 108 at 207-211. 131 See e.g. M Carter, supra note 37 at 254-257.

112 Chapter 2 – A Genealogy of the Principles of Fundamental Justice

Compounding this overall structural emphasis, the criteria highlighted the disparate, particularized character of the principles. By requiring that principles of fundamental justice be legal principles, capable of being identified with precision and yielding manageable standards, the

Court underscored their specificity. This specificity was consistent with the conception of principles of fundamental justice that dominated case law and academic commentary.132

As for the substantively moral character of the principles of fundamental justice, here the new test cut both ways. On the one hand, the test emphasized that to be a principle of fundamental justice, a principle must be “vital or fundamental to our societal notion of justice.”133 Couched in these terms, future efforts to identify principles of fundamental justice would continue to involve a judicial exploration of the meaning of justice. On the other hand, the view that principles must be more “than vague generalizations about what our society considers moral or ethical”134 signalled that the Court might be more circumspect about the ethical or moral imperatives that appeared to justify a principle of fundamental justice, a point to which I will return in Section III.C.

B. Looking Backwards: A Collective Search for Moral Justice

Despite its apparent endorsement of the incremental, specific and morally substantive conception of the principles of fundamental justice, the emergence of the Rodriguez/Malmo-

Levine test would prove to have far-reaching consequences on the argumentative culture characteristic of section 7. As discussed in Part I, the “substantive due process” controversy that formed the backdrop to the development of section 7 reflected enduring fears that the court would be transformed into a super-legislature empowered to review the wisdom of legislation – effectively second-guessing Parliament’s appreciation of what is in the common good and how

132 Consider A Young, supra note 75 at 129, discussing the challenges inherent in the “search for specific principles of fundamental justice.” 133 Rodriguez, supra note 7 at 590. 134 Ibid at 591.

113 Chapter 2 – A Genealogy of the Principles of Fundamental Justice best to advance it. Such a role for the courts was perceived by many to be antithetical to the traditional conception of the common law, whose autonomous logic was habitually concerned with the protection of the interests of individuals, not the furtherance of the public interest.135

The proper role of social interests in substantive section 7 judgments was a conundrum that could be discerned even in the Motor Vehicle Reference. In that case, Lamer J suggested that

“requirements of the ‘public interest’”, including considerations of administrative expediency, should not be relevant at the stage of establishing a section 7 violation, but should properly be dealt with under section 1.136 However, his morally-laden inquiry into the justice of absolute liability, as well as his recurring appeals to the first-person plural – to the basic tenets of our legal system, our common law, our judicial process, our system of laws137 – seemed to suggest that community perspectives would have some role to play when identifying and applying the principles of fundamental justice.138 The seeds of disagreement that lay dormant in Lamer J’s reasons in the Motor Vehicle Reference would not remain hidden for long. How to account for legislative objectives, the public interest, and collective understandings about what is just – and how these things were different from one another – would be a continuing source of disagreement between judges hearing section 7 cases.139

La Forest J, for one, championed a distinct view. On his approach, policy objectives and the public interest were to form part of the principles of fundamental justice analysis, and should not be left to section 1 of the Charter. In his majority opinions in R v Lyons and R v Beare, La

135 Alan Brudner, The Unity of the Common Law (Berkeley, CA: University of California Press, 1995) at 2-3. 136 Motor Vehicle Reference, supra note 31 at 517-518. 137 Ibid at 503, 512, 513. 138 Iacobucci, supra note 85 at 309-310. 139 See generally Thomas J Singleton, “The Principles of Fundamental Justice, Societal Interests and Section 1 of the Charter” (1995) 74:3 CBR 446; and Klinck, supra note 108 at 207ff.

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Forest J relied on the state interests implicated – respectively the protection of the public, and the public interest in effective law enforcement – to conclude that no principle of fundamental justice had been violated.140 In Cunningham v Canada, a relatively short judgment relating to the criteria for granting parole, La Forest J’s approach seemed to carry the day. A unanimous Supreme Court wrote that the “principles of fundamental justice are concerned not only with the interest of the person who claims his liberty has been limited, but with the protection of society. Fundamental justice requires that a fair balance be struck between those interests, both substantively and procedurally.”141

Other judges continued to insist that the public interest should be considered only in the context of section 1.142 Perhaps not surprisingly, given the overall uncertainty surrounding the interpretation of the principles of fundamental justice, a decade of constitutional litigation had done little to clarify if, when and how societal interests should be considered by courts assessing section 7 claims. It is against this backdrop of uncertainty about the role played by societal interests, and underlying concerns about the legitimacy of substantive review, that the significance of the Rodriguez/Malmo-Levine test should be appreciated.

Through its articulation and subsequent refinement of the test for recognizing novel principles of fundamental justice, the Court clarified when judges ought to refer to society-wide perspectives in legal arguments involving section 7. The approach it finally settled on, which

140 R v Lyons, supra note 105 at 334. R v Beare; R v Higgins, [1988] 2 SCR 387 [Beare] at 404. La Forest J’s emphasis on state interests later became a transparent appeal to judicial balancing in Thomson Newspapers, supra note 124 at 539: “What these practices have sought to achieve is a just accommodation between the interests of the individual and those of the state, both of which factors play a part in assessing whether a particular law violates the principles of fundamental justice; …[t]he interests in the area with which we are here concerned involve particularly delicate balancing…”. 141 Cunningham v Canada, [1993] 2 SCR 143 [Cunningham] at 151-152. McLachlin J continued at 152: “The first question is whether, from a substantive point of view, the change in the law strikes the right balance between the accused’s interests and the interests of society.” 142 See e.g. R v Swain, [1991] 1 SCR 933 at 977 (Lamer J).

115 Chapter 2 – A Genealogy of the Principles of Fundamental Justice emerged gradually in the decade between the Court’s decisions in Rodriguez in 1993 and Malmo-

Levine in 2003,143 effectively split the difference between the two views described above. Its approach distinguished functionally between the role played by societal perspectives at different stages of the constitutional analysis.

Appeals to the public interest to justify a purported breach of fundamental justice, and the balancing approach that went hand in hand with those appeals, were to be excluded from the section 7 analysis. Such arguments were germane to section 1. However, social perspectives would be relevant to determine whether an argued-for principle was fundamental enough to be recognized constitutionally. In other words, recourse to the collective consciousness was part and parcel of the Courts’ ongoing inquiry into what justice is. As the majority put it in Malmo-Levine:

The balancing of individual and societal interests within s. 7 is only relevant when elucidating a particular principle of fundamental justice. …The delineation of the principles of fundamental justice must inevitably take into account the social nature of our collective existence. To that limited extent, societal values play a role in the delineation of the boundaries of the rights and principles in question.144

According to that approach, the perceived existence or absence of a social consensus about what is fair would militate for or against the recognition of a principles of fundamental justice. But in contrast to La Forest J’s discredited balancing approach,145 public interest considerations would

143 During that time, the Court continued to equivocate on the role that balancing would play in section 7 adjudication. See e.g. A Young, supra note 75 and Cameron, “MVR to Chaoulli”, supra note 33 at 154- 157. The clearest expression of support for a balancing approach to fundamental justice came in Godbout, supra note 120, in which La Forest J asserted the existence of two parallel tracks of fundamental justice analysis. The first, following the approach in the Motor Vehicle Reference, supra note 31, centred on concrete, particularized principles of fundamental justice. The second would have recognized balancing as a distinct principle of fundamental justice. Although the entire court agreed with La Forest J’s disposition of the case on the merits, fully 6 members of the panel would have declined to address the section 7 issues. The Court began to sound a retreat from the balancing approach in R v Mills, [1999] 3 SCR 668 at paras 65-68 and R v White [1999] 2 SCR 417 at para 38. 144 Malmo-Levine, supra note 6 at paras 98-99. 145 As I discuss in Section IV.A below, despite the overall rejection of a balancing approach, the Court continued to endorse a form of section 7 balancing in deportation and extradition cases.

116 Chapter 2 – A Genealogy of the Principles of Fundamental Justice not be invoked directly to find that the principles of fundamental of justice had been violated. Nor could they be invoked to neutralize what would otherwise be a violation of a duly recognized principle of fundamental justice.

By affirming that social perspectives were relevant to the recognition of principles of fundamental justice, the Rodriguez/Malmo-Levine test acknowledged a limited but essential collective dimension of fundamental justice. The test envisaged that the answer to the question at the centre of the early period of section 7 jurisprudence – “what is justice?” – depended upon the society in which it was posed. The morally-laden, justice-seeking discourse that marked the

Court’s early approach to section 7 would serve to identify and recognize those discrete norms that were fundamental to a societal conception of justice. However, once a principle had been recognized, the moral inquiry into the collective meaning of justice would be over, and that principle would thereafter be applied straightforwardly to safeguard the interests protected by section 7. A collective understanding of justice would inform the recognition of principles of fundamental justice themselves, but not findings that they were violated.

That affirmation was striking for endorsing a deontological conception of justice. Indeed, the distinction emphasized by the Court, between the role played by societal interests in section 7 as opposed to section 1, accentuated a further distinction between different kinds of social perspectives, not merely their functional role in constitutional adjudication. Because they concerned the justification of government action more broadly, the societal interests associated with section 1 – or with judicial balancing writ large – encompassed goal-oriented considerations.

Not merely Charter values were at issue in the Oakes test, but also questions of administrative expediency, and the desirability of government objectives and policy. In contrast, because they concerned the meaning of justice, the societal “interests” relevant to the recognition of principles

117 Chapter 2 – A Genealogy of the Principles of Fundamental Justice of fundamental justice in section 7 would be circumscribed. Only interests that expressed or underpinned a society’s sense of what a just legal system required would have a role.

The Court pressed the distinction between the advancement of the community’s interest, understood pragmatically, which was not and should not be relevant to section 7, and a narrower concern with a community’s sense of moral justice as reflected in the rules of legal system, which was and should be. Societal consensus was relevant to elucidating what constituted a universal rule of fundamental importance to the morality of the legal system; societal consensus was not relevant to determining whether it would be convenient, practical or desirable for such a rule to give way to important public interests pursued in specific cases. In other words, the development of the

Rodriguez/Malmo-Levine test signified that the search for principles of fundamental justice in section 7 would aim to be agnostic about the merits of government ends. However, what deontological norms were deemed vital to a society’s notion of justice would continue to depend on a community’s understanding of what is morally just.

Looking backwards, therefore, the introduction of the formalized Rodriguez/Malmo-

Levine test consolidated the specific, morally substantive conception of principles of fundamental justice that followed from the Motor Vehicle Reference. It also recognized that the incremental recognition of principles of fundamental justice – the case-by-case effort to ascribe concrete meaning to the words of section 7 – was an inherently deontological but collective project.

C. Looking Forwards: From Justice to Justification

The explicit emphasis on the collective dimension of moral justice would not be the only novelty of the Rodriguez/Malmo-Levine test. The test would also help to usher in a new, modern, period in section 7 adjudication. The Court’s growing reliance on the test criteria laid the groundwork for the turn of section 7 away from a plurality of narrowly-defined, concrete principles and towards a small subset of norms cast at a high level of abstraction. This consequence might

118 Chapter 2 – A Genealogy of the Principles of Fundamental Justice seem counter-intuitive, since the Rodriguez/Malmo-Levine test rejected balancing, and appeared to reinforce an incremental, specific and morally substantive approach to the recognition of principles of fundamental justice. However, the Court’s strict application of the criteria would effectively put an end to the gradual proliferation of individuated principles of fundamental justice.

Despite the test’s ambiguity,146 the Court consistently invoked its criteria to withhold recognition of new principles. In Rodriguez, for example, Sopinka J found that one principle alleged as a basis for Ms. Rodriguez’s claim – the imperative to respect the human dignity and autonomy of individuals – was not specific enough to serve as a manageable standard. It could not therefore be recognized as a principle of fundamental justice. In Malmo-Levine, the harm principle failed to meet any of the test criteria to be recognized as a principle of fundamental justice. It was not a “legal” principle, there was no consensus that it was fundamental to a societal notion of criminal justice, and it did not constitute an objective and manageable standard against which a section 7 deprivation could be measured.147

One year later, in 2004’s Canadian Foundation for Children, a majority of the Court dismissed the contention that “the bests interests of the child” was a principle of fundamental justice.148 Despite a mountain of examples of judicial and regulatory recourse to the best interests of the child, the Court found that it was not fundamental to a societal notion of justice, since it could “be subordinated to other concerns in appropriate contexts.”149 In addition, it was not precise enough to provide the judiciary with a manageable standard for its application.150

146 Mathen, supra note 122 at 60-63. 147 Malmo-Levine, supra note 6 at paras 114-129. 148 Canadian Foundation for Children, supra note 127 at paras 7-12. 149 Ibid at para 10. 150 Ibid at para 11.

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The Court’s restrictive application of the test criteria in these and other cases made plain that it would henceforth act cautiously before recognizing principles of fundamental justice for the first time.151 Since Malmo-Levine, the novel recognition of principles of fundamental justice has become an infrequent occurrence.152 Given the Court’s prudence, the malleable grouping of principles of fundamental justice, whose composition had grown steadily as the Court addressed alleged violations of principles of fundamental justice, began to assume the appearance of a fixed constellation. The incremental recognition of individual principles of fundamental justice, through inductive, analogical reasoning, was mostly a thing of the past.

The emergence of the Rodriguez/Malmo-Levine test would also reduce the importance of openly moral reasoning in the continuing search for the meaning of principles of fundamental justice. For one thing, the crystallization of the “specific” and “legal” criteria for recognizing a principle of fundamental justice meant that the normative justification for an alleged principle of fundamental justice was less frequently a decisive issue. As discussed just now, the Court’s interpretation of those requirements was a high bar for litigants. Alleged principles of justice inspired from moral philosophy, such as the harm principle in Malmo-Levine, were filtered out from consideration, since such principles could be dismissed as vague or “not legal” without considering their underlying justification. As a result, a sustained and honest engagement with the moral basis of a candidate principle would seldom be necessary to resolve section 7 claims. The judicial preoccupation with “what justice is”, which seemed to be the golden thread linking together an otherwise dispersed body of early section 7 case law, would no longer figure as prominently.

151 See also R v Anderson, supra note 127. 152 Nader R Hasan, “Three Theories of ‘Principles of Fundamental Justice’” (2013) 63 SCLR (2d) 339 at 365 and 367.

120 Chapter 2 – A Genealogy of the Principles of Fundamental Justice

The Court’s interpretation of the second doctrinal requirement of the test, relating to the existence of a social consensus, would also contribute to the decline of moral argument in subsequent fundamental justice cases. Whereas the aftermath of the Motor Vehicle Reference was characterized by a normative inquiry into the fundamental importance of a principle for the legal system, the inquiry contemplated by the Rodriguez/Malmo-Levine had an empirical flavour. The decision to recognize a principle as a principle of fundamental justice would no longer centre directly on the normative justification of a principle, having regard to the “nature, sources, rationale and essential role of that principle within the judicial process and in our legal system.”153

Instead, judges applying the second requirement of the test would inquire about the existence of a societal consensus, or general acceptance among reasonable people, about the essential character of the principle within the legal system. The normative justification for a principle would only indirectly factor into the analysis, which would focus instead on society’s view of the validity or importance of the normative justification.154 The difference is a subtle but important one.

Even though attempts to ascertain society’s view would come with their own challenges, grounding fundamental justice in a purported social consensus could alleviate enduring doubts about the legitimacy of substantive review under section 7. As the Court pointed out in Malmo-

Levine, “[t]he requirement of ‘general acceptance among reasonable people’ enhances the legitimacy of judicial review of state action, and ensures that the values against which state action is measured are not just fundamental ‘in the eye of the beholder only’.”155 This judicial concern to eliminate the perceived subjectivity of constitutional adjudication would gradually reduce the role

153 Motor Vehicle Reference, supra note 31 at 513 [emphasis in original]. 154 For better or for worse, this approach invites parallels with the community standard of tolerance test historically associated with criminal obscenity and indecency, in which an empirical inquiry is used to specify a normative standard. See e.g. Little Sisters Book and Art Emporium v Canada (Minister of Justice), [2000] 2 SCR 1120. 155 Malmo-Levine, supra note 6 at para 113 [emphasis in original].

121 Chapter 2 – A Genealogy of the Principles of Fundamental Justice of moral reasoning in section 7 argument, as courts focused on the purported existence of a societal consensus instead of the normative justifications underpinning the societal view.

The narrow construction of principles of fundamental justice, cast at a low level of abstraction, would be the final casualty of the Rodriguez/Malmo-Levine test. As stated above, the

Court’s stringent application of the test for recognizing new principles would limit jurisprudential growth.156 In addition, the existing cast of principles, most of which had been defined concretely and narrowly from the outset, were hardly fertile ground for expansion. The principles discussed already that emerged from Martineau – “that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death” – or from Morgentaler –

“that when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory”157 – are illustrative. One avenue, however, remained open. As I discuss next, the Court’s turn away from a multiplicity of narrow, morally- substantive principles was also a turn towards a smaller subset of morally-neutral norms cast at a high level of abstraction.158 This change would leave a lasting impression on legal argument characteristic of section 7 adjudication.

IV. HISTORICAL DEVELOPMENT OF THE PRINCIPLES OF FUNDAMENTAL JUSTICE: THE MODERN PERIOD

The advent of the Rodriguez/Malmo-Levine test for recognizing principles of fundamental justice would in time lead to a profound re-shaping of the culture of argument in section 7 of the

Charter. With little further possibility of recognizing novel principles, litigants and judges began

156 Hasan, supra note 152 at 365 and 367. Despite this overall trend, the Court has sporadically recognized new principles of fundamental justice that fit the narrow and concrete paradigm of the early period. Two examples of recent vintage are Federation of Law Societies, supra note 127 and R v Cawthorne, 2016 SCC 32, [2016] 1 SCR 98. 157 Morgentaler, 1988, supra note 97 at 70 (Dickson CJ). 158 Hasan, supra note 152 at 368.

122 Chapter 2 – A Genealogy of the Principles of Fundamental Justice to re-examine the existing body of principles of fundamental justice. Norms cast a high level of abstraction that had been relied on only sparingly by litigants and judges, and in some cases had never been clearly articulated by the court, began to take centre stage in section 7 jurisprudence.

This development drew on a counter-narrative about section 7 adjudication that was also influenced by concerns over legitimacy, but would deal with those concerns very differently from the approach that developed from the Motor Vehicle Reference.

A. The Origins of Proportionate Standards: A Section 7 Counter-Narrative

A counter-narrative about the principles of justice, which would privilege norms cast in abstract, morally-neutral terms, begins with the Motor Vehicle Reference as well, but not with the seminal judgment of Lamer J. Instead, that narrative has its source in the concurring reasons of

Wilson J.159 Whereas Lamer J’s interpretive approach to fundamental justice drew on the common law tradition of civil liberties protections, Wilson J’s reasons exemplify a contrasting approach.

Methodologically, her approach is deduced from grand theory and cast at a high level of abstraction and generality. Wilson J commenced her analysis of the issue – whether “attaching a mandatory term of imprisonment to an absolute liability offence…offends a principle of fundamental justice” – from a standpoint diametrically opposed to Lamer J’s: “I believe,” she wrote, that “we must turn to the theory of punishment for the answer.”160 She appealed to the authority of “what is generally accepted among penologists” – not lawyers – and supports her

159 Although Justice Wilson was noted for frequently writing separate opinions in Charter cases, and is sometimes remembered as a “great dissenter” (see e.g. James Macpherson, “Canadian Constitutional Law and Madam Justice Bertha Wilson: Patriot, Visionary and Heretic” (1992) 15:2 Dalhousie LJ 217 at 236), the conception of the principles of fundamental justice she develops in the Motor Vehicle Reference, supra note 31, has received little attention. It is uncommon in biographical assessments of Wilson J’s contributions to constitutional and Charter adjudication, as it is in scholarly treatments of section 7, to find reference to the content of Wilson J’s concurring opinion in the case. 160 Motor Vehicle Reference, supra note 31 at 532.

123 Chapter 2 – A Genealogy of the Principles of Fundamental Justice position with a statement from a working paper of the Law Reform Commission of Canada.161

Social theory and reformist inclinations ere her starting points, not inductive common law reasoning.

The contrast with Lamer J’s approach is reinforced when one considers the operative principle of fundamental justice she identifies. Wilson J rested her findings on a generally expressed principle of “fitness” or “proportionality” between offence and penalty:

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. …[T]here is a scale of offences and punishments into which the particular offence and punishment must fit.162

Considering the nature of the offence, and the possibility that a person might be convicted for it who acted unknowingly, Wilson J concluded that a sentence of imprisonment would shock the conscience of the court because it would be “grossly excessive” and “totally disproportionate.”163

In arriving at that conclusion, she pointedly did not describe any particularized relationship between guilt and punishment as a principle of fundamental justice, even if that meant that her fitness principle would not be applicable with precision. Her proposed principle of fundamental justice accordingly resembled a broad-based sentencing standard rather than a black and white rule.164 Wilson J’s reasons in the Motor Vehicle Reference are rarely referenced, except as an affirmation of a basic sentencing principle in criminal law.165 However, her opinion hints at a possible counter-narrative about the principles of fundamental justice.

161 Ibid at 532-533. 162 Ibid at 533. 163 Ibid. 164 Ibid at 533-534; see again Dworkin, supra note 81 at 22-29. 165 See e.g. R v M (CA), [1996] 1 SCR 500 at para 40. The case was purely about basic principles of sentencing. It did not involve a section 7 claim, or indeed a Charter claim of any kind.

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In the years that followed, Wilson’s J’s posited association between fundamental justice and proportionality was occasionally echoed by other members of the court. The string of cases working out the constitutional requirements of mens rea for different criminal offences, for instance, sometimes referenced an overarching concern with proportionality. In Martineau, Lamer

J drew on the rhetoric of proportionality to support his conclusion that fundamental justice required subjective foresight for murder. Invoking HLA Hart as an authority, he wrote that “punishment must be proportionate to the moral blameworthiness of the offender.”166 A few years later,

McLachlin J would similarly inscribe constitutional mens rea requirements within an encompassing theme of proportion. Though she rejected the contention that perfect symmetry between actus reus and mens rea is always necessary, she suggested that, to satisfy the principles of fundamental justice, “the seriousness of the offence must not be disproportionate to the degree of moral fault.”167

The Court’s flirtation with judicial balancing, discussed previously, also overlaps with proportionality analysis’s emphasis on substantive justification. In opinions that advocated a balancing approach, judges tended to focus less on specifying the meaning of justice, or identifying individual principles of justice consistent with that meaning, and showed more interest in striking an overall satisfactory balance between the interests of the individual and those of the state.168

166 R v Martineau, supra note 87 at 645-646. Lamer J’s reference to HLA Hart, Punishment and Responsibility (Oxford: Clarendon Press, 1968) at 162 is somewhat puzzling. In the work cited, Hart’s critique of strict liability offences does not rest primarily on a theory of proportion. In fact, he consistently expresses scepticism about theories of punishment that centre on notions of fitness or proportionality between the seriousness of the crime and the severity of the sentence (ibid at 162-163, 170-173, 185). 167 R v Creighton, supra note 90 at 53 [emphasis added]; McLachlin J also insists, at 55, on the importance of commensurability between the gravity of an offence and the required level of moral fault. 168 R v Lyons, supra note 105 at 329, 334; Beare, supra note 140 at 404; Thomson Newspapers, supra note 124 at 539; Cunningham, supra note 141 at 151-152. See also Cameron, “MVR to Chaoulli”, supra note 33 at 154-157.

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Traces of a counter-narrative could also be discerned in the occasional cases that linked violations of section 7’s principles of fundamental justice with normative considerations that were reminiscent of the sequential stages of proportionality review: suitability, necessity and proportionality in the narrow sense; or, as they tend to be referred in Canada, the rational connection, minimal impairment and balancing stages of the Oakes test.

Take for instance the concern to ensure the rationality of the connection between means and ends. This concern would eventually be embodied in section 7 case law by a principle against arbitrariness. In Morgentaler, both Dickson CJ and Beetz J wrote opinions describing procedural requirements imposed by the legislative scheme governing therapeutic abortions as manifestly unfair.169 Neither judge identified manifest unfairness let alone arbitrariness as a principle of fundamental justice; as discussed above, their reasons labelled the violation of fundamental justice as an instance of procedural unfairness. But the so-called procedural defects they seized upon were far from traditional concerns about natural justice.170 Both judges took issue with the imposition of superfluous requirements that prevented women who were otherwise eligible for therapeutic abortions from accessing those very services legally and in a timely fashion. In other words, the requirements were at cross-purposes with the objectives the legislative scheme was designed to achieve; the means did not support the ends.

That concern is especially apparent in the reasons of Beetz J. Although his conclusion described the fundamental justice violation as an instance of manifestly unfair procedure – akin to a failure of procedural due process – he repeatedly invoked the language of substantive justification familiar to proportionality analysis. Requirements of the legislative scheme “serve[d] no real

169 Morgentaler, 1988, supra note 97 at 72 (Dickson J) and at 115, 120, 122 (Beetz J). 170 Colvin, supra note 99 at 565-566, 568-569.

126 Chapter 2 – A Genealogy of the Principles of Fundamental Justice purpose,”171 were “unnecessary to meet [the] objective,”172 lacked a plausible “justification,”173 medical or otherwise, or were simply “not justified”174 in the circumstances.

A concern for the substantive justification of section 7 deprivations, having notably regard to the alignment of means and ends, remained implicit in Morgentaler, but it would be explicitly acknowledged in Rodriguez. Picking up on themes in an academic article published by Eric

Colvin,175 both Sopinka J, for the majority, and McLachlin J, in dissent, stressed that the judgment in Morgentaler turned on the relationship between the state objective pursued and the means chosen to carry it out.176 As Colvin put it, judicial review under section 7 should act as check on the “means of pursuing social ends, not…the ends towards which these means are directed.”177

This reading emphasized that limits on section 7 interests that do little or nothing to advance the state interest, or are not related to or inconsistent with that interest, are arbitrary and in violation of the principles of fundamental justice.178 Such an approach lends itself to a language of substantive justification, as the opinions of Sopinka and McLachlin JJ in Rodriguez show.

Although they arrive at different conclusions, both opinions assess the rationale or justification supporting the criminal prohibition of assisted suicide, as Beetz J did in relation to the abortion scheme.179 Despite its importance in Rodriguez, arbitrariness received little further attention from

171 Morgentaler, 1988, supra note 97 at 120 (Beetz J). 172 Ibid at 119 (Beetz J); see also 121-122 (Beetz J). 173 Ibid at 115 (Beetz J). 174 Ibid at 116, 119 (Beetz J). 175 Colvin, supra note 99. 176 Rodriguez, supra note 7 at 594 (Sopinka J); and at 619-620 (McLachlin J). 177 Colvin, supra note 99 at 585. 178 Rodriguez, supra note 7 at 594-595 (Sopinka J); and at 618-621 (McLachlin J). 179 Ibid at 606 (Sopinka J). In this regard, however, Sopinka equivocates in his analysis. In keeping with the dominant conception of the principles of fundamental justice, the remainder of his reasons concentrate on the moral justification for the prohibition generally i.e. a concern to preserve the sanctity of human life. McLachlin J in contrast focuses specifically on the rational justification for the means selected to uphold the state interest: 620, 621, 624.

127 Chapter 2 – A Genealogy of the Principles of Fundamental Justice the Court until after the crystallization of the Rodriguez/Malmo-Levine test checked the incremental recognition of specific and concrete principles of fundamental justice.

A handful of other principles of fundamental justice, invoked sparingly by the Court in the two decades following the Charter’s proclamation, also belong to the section 7 counter-narrative characterized by abstract, morally-neutral and comprehensive norms. Two such principles, the principles against vagueness and overbreadth, relate to concerns addressed by the second step in proportionality analysis: that the means selected to achieve a given objective be appropriately circumscribed. In the Prostitution Reference and Nova Scotia Pharmaceutical, the Supreme Court confirmed that vagueness ought to be recognized as a principle of fundamental justice;180 a law would be deemed unconstitutionally vague if “it so lacks in precision as not to give sufficient guidance for legal debate.”181 Then in R v Heywood, the Supreme Court cited overbreadth as a distinct ground giving rise to a violation of the principles of fundamental justice.182

The Court in Heywood described both overbreadth and vagueness as instances of means- ends review: “both are the result of a lack of sufficient precision by a legislature in the means used to accomplish an objective.”183 Whereas in the case of vagueness, the means are flawed because they are ill-defined or their boundaries are unclear, in the case of overbreadth, the means are flawed because they are too sweeping. As the Court put it, if “the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason.”184 Interestingly, the Court was circumspect about whether overbreadth was a mere

180 Reference re ss 193 and 195.1(1)(c) of the Criminal Code (Man), [1990] 1 SCR 1123 [Prostitution Reference] at 1141, 1156; Nova Scotia Pharmaceutical, supra note 96 at 626. 181 Nova Scotia Pharmaceutical, supra note 96 at 643. 182 R v Heywood, [1994] 3 SCR 761. 183 Ibid at 792. 184 Ibid at 792-793.

128 Chapter 2 – A Genealogy of the Principles of Fundamental Justice analytical tool or whether it constituted a principle of fundamental justice in its own right.185 When discussing overbreadth, it sometimes referred to it “…as a principle of fundamental justice,”186 but it also described overbreadth review as an example of the type of balancing the Court might conduct in the section 7 context, in the absence of an asserted violation of any independent principle of fundamental justice.

Like the Court’s enthusiasm for balancing generally, its endorsement of vagueness and overbreadth as distinct principles of fundamental justice would soon be qualified. The next year, in a case that was argued before its decision in Heywood had even been handed down, the judges of the Court invoked interpretive devices such as the presumption of constitutionality of legislation, the irrelevance of reasonable hypotheticals to vagueness analysis, and legislative deference more generally to restrict the applicable scope of the two doctrines.187 Given this muted judicial enthusiasm, and the awkward fit between them and the early conception of principles of fundamental justice, Alan Young was likely not alone in his 2002 view that vagueness and overbreadth were “toothless.”188 Young’s assessment of vagueness has been borne out; it has rarely been invoked successfully as a principle of fundamental justice.189 As for overbreadth, one would have to wait until after the judgment in Malmo-Levine for the Court to breathe new life into the doctrine, as discussed in the next section.190

185 The Court’s discussion of the relationship between vagueness and overbreadth in Nova Scotia Pharmaceutical, supra note 96 at 632, suggested that overbreadth was not a principle of fundamental justice: “What is referred to as ‘overbreadth’…remains no more than an analytical tool to establish a violation of a Charter right. Overbreadth has no independent existence.” 186 R v Heywood, supra note 182 at 790, 793, 187 See generally Ontario v Canadian Pacific Ltd, [1995] 2 SCR 1031. 188 A Young, supra note 75 at 143; see also Peter W Hogg, “The Brilliant Career of Section 7 of the Charter” (2012) 58 SCLR (2d) 195 at 203. 189 Mathen, supra note 122 at 68, 70-72. 190 R v Demers, 2004 SCC 46, [2004] 2 SCR 489.

129 Chapter 2 – A Genealogy of the Principles of Fundamental Justice

One other subset of fundamental justice cases from the Court’s early period relates to the last step of proportionality analysis: proportionality in the strict or narrow sense. Those cases shared a unique factual context. They centred on alleged section 7 violations tied to the extradition or deportation of claimants to face criminal proceedings or punishments – notably the death penalty or torture – in foreign countries. The norm that gained acceptance in this line of cases was borrowed from section 12 of the Charter:191 the decision to extradite or deport would violate the principles of fundamental justice if it “shock[ed] the conscience” of Canadians.192

These types of cases were difficult to classify within the prevailing discourse of principles of fundamental justice. On the one hand, they fit within the narrative established by Lamer J in the

Motor Vehicle Reference, which insisted that the meaning of section 7 should be informed by the specific illustrations of principles of fundamental justice in sections 8-14 of the Charter. Though section 12’s prohibition on cruel and unusual punishment was not considered to be directly applicable to these kinds of claims,193 the section 7 judgments borrowed liberally from both pre- and post-Charter jurisprudence on cruel and unusual punishment. Those words had originally been coined in the English Bill of Rights 1689, were reproduced in the 8th Amendment of the US

Constitution, and were enshrined in the Canadian Bill of Rights.194

As courts repeatedly underscored, a decision that was “so excessive as to outrage standards of decency” or “abhorrent” – two alternative ways of expressing the Canadian norm for deeming

191 Section 12 of the Charter, supra note 1, provides: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” 192 M Young, supra note 123 at 35-36; see e.g. Kindler v Canada (Minister of Justice) [1991] 2 SCR 779 [Kindler] at 831-832, 849. 193 The contemplated punishment would not be inflicted by the Canadian state and was therefore too causally remote from the impugned act of the state (the act of surrender) to trigger the protection of section 12. See e.g. Kindler, supra note 191 at 845-847 and US v Burns 2001 SCC 7, [2001] 1 SCR 283 at paras 56-57. 194 Bill of Rights 1689 (UK), supra note 13; US Const amend VIII; Canadian Bill of Rights, supra note 8 at 2(b).

130 Chapter 2 – A Genealogy of the Principles of Fundamental Justice a punishment cruel or unusual195 – would usually also “shock the conscience” of Canadians, thus violating the norm applicable to the section 7 claim. The common appeal of these standards to a person’s affective reactions – indicated by words such as “outrage”, “decency”, “shock”,

“conscience” and “abhorrent” – is telling. Like Lamer J’s invocation of a category of morally innocent persons to invalidate section 94(2) of the BC Motor Vehicle Act, the quest to capture what is fundamentally unfair about an extradition or deportation order appeals to a visceral moral standard that transcends the legal system.

On the other hand, the Court’s interpretation of the “shock the conscience” standard in individual cases distanced it from the predominant conception of principles of fundamental justice.196 Although the standard was sometimes referred to as an independent principle of fundamental justice, functionally it required reviewing courts to balance all relevant factors.197 The difference between the “shock the conscience” standard and plain balancing was therefore only a matter of degree. For a violation of the principles of fundamental justice to be made out, the consequences flowing from a deportation or extradition would have to be so excessive or extreme as to overwhelm a conventional balancing analysis.198

Over time, the Court eventually aligned the functional understanding of the normative standard with the language used to describe it. In a shift in discursive emphasis, the Court in Suresh first described previous unconstitutional decisions to extradite and deport as “per se

195 See e.g. Miller et al v The Queen, [1977] 2 SCR 680 at 688; R v Morrissey, 2000 SCC 39, [2000] 2 SCR 90 [Morrissey] at para 26. 196 See e.g. Canada v Schmidt, [1987] 1 SCR 500 at 522-529; Kindler, supra note 191 at 831-832, 849. 197 Kindler at 837 and 849-850. See also US v Burns, supra note 193 at paras 72-132. 198 US v Burns, supra note 193 at paras 68-69. The distinction echoes the difference between “mere disproportionality” and “gross disproportionality” in section 12 jurisprudence: Morrissey, supra note 195, at para 26.

131 Chapter 2 – A Genealogy of the Principles of Fundamental Justice disproportionate.”199 By characterizing government decisions as “per se disproportionate” rather than “conscience-shocking,” the Court distanced itself from a morally-inflected and embodied inquiry, ostensibly linked to the community, about what justice required in the circumstances of extradition and deportation. It gravitated instead towards an abstract normative standard described in objective terms. Like overbreadth and arbitrariness, the object of the standard reflected proportionality’s concern with relationships between means and ends, similar to the final stage of proportionality analysis. However, because the standard remained applicable only in the extradition and deportation contexts where section 12 was unavailable, the practical impacts of that shift in tone were limited, or so it seemed.

In short, for the better part of two decades, there were few judicial indications that a proportionality counter-narrative might eventually achieve its current prominence. When those standards were considered by the Court, they were applied with deference, set a high bar for claimants, and connected to distinctive factual contexts. Moreover, the abstract and potentially sweeping standards of rationality that surfaced from time to time in the case law seemed to impose few institutional constraints on courts: instead of limiting the courts’ authority to review the substantive content of legislation, they seemed to contemplate it unreservedly. An increasing reliance on abstract normative standards appeared likely to exacerbate rather than allay traditional concerns over the institutional legitimacy of constitutional adjudication under section 7 – concerns about why the courts should be the branch of government that should resolve questions about the meaning of justice, rather than the legislature. Be that as it may, the seeds of proportionality had been sown. As I will discuss in the next section, the culture of argument that would develop in the years following Malmo-Levine would nourish those seeds and help them to flourish.

199 Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3 [Suresh] at para 47 [italics in original].

132 Chapter 2 – A Genealogy of the Principles of Fundamental Justice

B. Towards Abstract Norms: The Ascendance of Proportionality

In the Court’s early period of section 7 jurisprudence, which lasted roughly until its judgment in Malmo-Levine, the appearances made by proportionate standards and means-ends analysis were infrequent, and often peripheral and fact-dependent. That transience, not to mention the scepticism with which constitutional scholars greeted those appearances, gave little indication that within ten years principles against arbitrariness, overbreadth and gross disproportionality would come to dominate the section 7 landscape.200 But so they would. In a series of decisions beginning with Malmo-Levine in 2003, the Court began to interpret the abstract standards of rationality liberally and robustly, and deploy those standards in cases having little factual connection to the circumstances in which they had originated. The characteristic approach to arguing and adjudicating section 7 claims would be profoundly reshaped as a result.

The Court’s treatment of gross disproportionality as a principle of fundamental justice in

Malmo-Levine marked the beginning of that shift.201 As discussed in Part III above, the Court in that case cemented the importance of the Rodriguez/Malmo-Levine test for recognizing new principles of fundamental justice. But even as that test sought to curtail La Forest J’s wholesale balancing approach to fundamental justice, the Court in Malmo-Levine ironically drew on its section 7 jurisprudence from extradition and deportation cases to endorse a “more general”202 principle of fundamental justice against gross disproportionality.

200 Peter Hogg’s treatment of fundamental justice in Hogg, Constitutional Law 2003, supra note 109, makes virtually no mention of principles against arbitrariness or gross disproportionality. He strongly criticizes the “shock the conscience” (at 991-992) and “overbroad” (at 1015-1019) standards. See also June Ross, “R. v. Heywood: Overbreadth in the Law or Judgment” (1995) 6:3 Const Forum Const 88 and A Young, supra note 75 at 143. 201 Malmo-Levine, supra note 6. 202 Ibid at 169.

133 Chapter 2 – A Genealogy of the Principles of Fundamental Justice

The Court broadened the prevailing understanding of the principle of gross, or per se disproportionality, in several ways. In the first place, the Court’s discussion of gross proportionality abstracted away from the extradition and deportation context in which the “shock the conscience” standard had initially been welcomed into section 7 case law. For the first time, the Court took for granted that the principle could be applied regardless of the cause of the alleged deprivation of life, liberty or security of the person. The principle against gross disproportionality could henceforth apply in virtually limitless situations. In addition, the Court indicated that assessments of gross disproportionality ought to consider the full gamut of consequences flowing from state action, not merely the threat of criminal penalties, such as imprisonment, torture, or the death penalty.203

The Court’s 2004 judgment in R v Demers similarly affirmed and expanded the scope of the principle against overbreadth.204 As described above, the Court had previously hesitated to describe overbreadth as a principle of fundamental justice in its own right.205 In Demers, however, the entire Court took for granted that overbreadth was indeed a principle of fundamental justice as it struck down the Criminal Code scheme governing the detention of accused persons deemed unfit to stand trial. The majority opinion introduced its fundamental justice analysis matter-of-factly:

“[i]t is a well-established principle of fundamental justice that criminal legislation not be overbroad.”206 Stated as a categorical proposition, the Court felt no need to justify the merits of overbreadth by reference to moral standards or societal conceptions of justice, or its role as a basic tenet of the legal system. Nor did it seek to nuance or circumscribe the meaning of overbreadth in

203 Ibid at para 171-183. 204 R v Demers, supra note 190. 205 See also Ontario v Canadian Pacific Ltd, supra note 187 at paras 85-86. 206 Demers, supra note 190 at para 37.

134 Chapter 2 – A Genealogy of the Principles of Fundamental Justice light of its application in previous cases. Like gross disproportionality, overbreadth suddenly appeared to be a capacious and far-reaching constitutional principle.

Chaoulli v Quebec (Attorney General) represented the next significant step in section 7’s shift towards the principle of proportionality.207 If Malmo-Levine was a tipping point in section 7 jurisprudence, Chaoulli showed that the scales had swung decidedly in the direction of abstract, normative standards and revealed the full implications of such a swing. The case involved a controversial challenge to Quebec’s statutory prohibition on private health insurance for services covered by the public health care plan. The prohibition was aimed at maintaining the integrity of the public health care plan, by promoting a single-tier health care system and preventing scarce heath care resources from being diverted outside of the public plan. The Court struck down the prohibition, and three of the four judges in the majority would have done so on the basis of section

7 of the Canadian Charter. They reasoned that the provincial prohibition on private health care insurance arbitrarily deprived patients of their security of the person, violating section 7 of the

Charter.208 That determination provoked an uproar in Canadian legal circles. That unelected judges might strike down an integral component of a scheme for the delivery of universal healthcare – a cherished social program – was difficult for many legal observers to stomach and recalled shades of American substantive due process.209 But it is upon the case’s impact on the understanding of arbitrariness as a principle of fundamental justice, rather than the outcome of the case more generally, that I wish to focus.

207 Chaoulli v Quebec (Attorney General), 2005 SCC 35, [2005] 1 SCR 791 [Chaoulli]. 208 Ibid at paras 152-153. 209 See generally Colleen Flood, Kent Roach & Lorne Sossin, eds, Access to Care, Access to Justice: The Legal Debate Over Private Health Insurance in Canada (Toronto: University of Toronto Press, 2005) and in particular Sujit Choudry, “Worse than Lochner?” at 75-100.

135 Chapter 2 – A Genealogy of the Principles of Fundamental Justice

The plurality opinion of McLachlin and Major JJ in expanded the scope of arbitrariness in much the same way that Malmo-Levine and Demers had done for gross disproportionality and overbreadth, respectively. “It is a well-recognized principle of fundamental justice that laws should not be arbitrary,”210 the two judges wrote as they opened their section 7 analysis. The proposition that such a principle was “well-recognized” may have been arguable, but it was true at least that both the majority and minority in Rodriguez had conducted a form of arbitrariness analysis to determine whether the prohibition on assisted suicide was in accordance with the principles of fundamental justice.

The novelty of McLachlin CJ and Major J’s approach was tied to its expansive understanding of state conduct that qualifies as arbitrary, giving the normative standard a potentially sweeping scope. The Court’s arbitrariness analysis had formerly adopted a broadly deferential posture towards legislative choices. In Rodriguez, the finding that there existed some relationship between the prohibition on assisted suicide and the state interest to protect the vulnerable had been sufficient for the Court to conclude that the prohibition was rationally defensible, and hence not arbitrary.211 Moreover, in Rodriguez and in Malmo-Levine, the justification advanced by the government to support the impugned measures depended on a reasonable apprehension of harm.212 In contrast, McLachlin CJ and Major J in Chaoulli indicated that legislative choices would be held to a higher standard. Failing proof of actual harm to the state interest, and an empirically demonstrated and not merely theoretical connection between the state interest and the means selected to protect it, laws would not meet the constitutional requirement of rationality imposed by the principles of fundamental justice.213

210 Chaoulli, supra note 207 at para 129. 211 Rodriguez, supra note 7 at 595, 608. 212 Ibid at 608; Malmo-Levine, supra note 6 at para 136. 213 Chaoulli, supra note 207 at paras 138, 149-150

136 Chapter 2 – A Genealogy of the Principles of Fundamental Justice

If there remained any doubts, following Malmo-Levine, Demers and Chaoulli, about whether the turn to abstract normative standards in principles of fundamental jurisprudence would be sustained, those doubts would soon be dispelled. In PHS,214 Bedford,215 Carter216 and others,217 standards of arbitrariness, overbreadth and gross disproportionality, and a vocabulary of means- ends rationality and justification more generally, would prove to be mainstays of constitutional adjudication involving the principles of fundamental justice. In Carter, the Court recognized the pre-eminence of the proportionate standards: “While the Court has recognized a number of principles of fundamental justice, three have emerged as central in the recent section 7 jurisprudence: laws that impinge on life, liberty or security of the person must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object.”218 The turn to proportionate standards in section 7 was complete. Section 7’s culture of argument had become an instantiation of proportionality’s broader culture of justification. ef

The ascendance of arbitrariness, overbreadth and gross disproportionality contributed to a profound reshaping of all three characteristic features of section 7’s culture of legal argument.

214 Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134 [PHS] 215 Canada (Attorney General) v Bedford, supra note 2. 216 Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 [Carter]. 217 Notable fundamental justice cases before the Supreme Court that have recently involved proportionate standards also include: R v Smith, 2015 SCC 34, [2015] 2 SCR 602; R v Moriarty, 2015 SCC 55, [2015] 3 SCR 485; R v Appulonappa, 2015 SCC 59, [2015] 3 SCR 754; R v Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 SCR 180; R v Boutilier, 2017 SCC 64, [2017] 2 SCR 936. 218 Carter, supra note 216, at para 72. Newer Canadian constitutional law treaties reflect this predominance. Consider Guy Régimbald & Dwight Newman, The Law of the Canadian Constitution, 2nd ed (Toronto: Lexis Nexis Canada, 2017) which emphasizes the newfound importance of “general” principles of fundamental justice at 678-685, and singles out their far-reaching implications for specific policy issues at 690-696. Nader Hasan has referred to the principles of fundamental justice against arbitrariness, overbreadth and gross disproportionality as the “proportionality triumvirate”: Hasan, supra note 152 at 368-374.

137 Chapter 2 – A Genealogy of the Principles of Fundamental Justice

Instead of characterizing principles of fundamental justice narrowly and linking their meaning to the specific facts of the case in which they were recognized, the Court would embrace broad and abstract characterizations of proportionate standards, at a remove from manifestations of the principles in concrete cases. Instead of proceeding incrementally to recognize novel principles of fundamental justice through inductive and analogical reasoning, the Court would resolve section

7 cases by applying a small set of principles deductively to different fact scenarios. Finally, substantive moral inquiry about fundamental justice would be mostly supplanted by an inquiry into the adequacy of the fit between means and ends.

V. CONCLUSION

The current predominance of proportionate standards in section 7 jurisprudence is more than simply evidence of the popularity of, or preference for, some principles of fundamental justice as opposed to others. Understood in historical context, the emphasis on proportion and justification in fundamental justice case law has reshaped section 7’s culture of argument. In the early period of section 7 jurisprudence, the Court confronted enduring doubts about the legitimacy of so-called substantive review by incrementally recognizing narrowly-construed, morally-substantive principles of fundamental justice. The question animating the Court’s section 7 jurisprudence in that time was: “what is justice?”

The latter period’s turn toward proportionate standards transformed this approach to fundamental justice adjudication. Although doubts about the legitimacy of substantive review never disappeared, the Court increasingly began to confront those doubts by espousing a culture of argument in which moral discourse figures less prominently. That culture now appeals to a small subset of abstract, morally-neutral standards that can be applied again and again to different fact situations. Instead of wondering about the meaning of justice, the Court asks: “when is state conduct rationally justified?”

138 Chapter 2 – A Genealogy of the Principles of Fundamental Justice

The progression from the early to the modern approach to fundamental justice has allowed the court to address the legitimacy concerns endemic to section 7 while injecting a measure of conceptual coherence into section 7 jurisprudence. However, the embrace of rational justification as the primary normative touchstone for deprivations of life, liberty and security of the person comes with its own challenges. In particular, the Court’s turn to proportionate principles of fundamental justice means that it must reckon with the problem of persuasive justifications that I identified in the introduction to this thesis. As I discuss in the next chapter, it must determine what constitutes a good enough justification for a section 7 deprivation in the face of plural and contested premises about “our” community – about who counts, what values matter, and how public decisions ought to be made.

139 CHAPTER 3

SECTION 7’S CULTURE OF ARGUMENT AND COMMUNITY UNDERSTANDINGS: A CASE STUDY

The purpose of this chapter is primarily to describe and explain how judges understand the requirement of good justification that goes hand in hand with the modern association between proportionality and the principles of fundamental justice. To echo the question posed in the introduction to this thesis: how do courts distinguish between justifications capable of persuading them that deprivations of interests protected by section 7 of the Charter1 are rationally connected to their objectives, appropriately circumscribed and fairly balanced – justifications that are proportionate enough – and those that are not? To answer that question, this chapter’s analytical focus returns to the relationship between persuasive justifications and community understandings that both emerged from and informed my analysis in Chapter 1.

As I will show, the relationship between persuasive justifications and community understandings is pivotal because the turn to proportionate standards within section 7 makes judicial perceptions of collective identity normatively important, but does little to constrain or limit those perceptions. The Supreme Court’s modern approach to fundamental justice fills that gap by shaping the perceptions of community that inform judgments about what is rationally justified. On the one hand, judges deciding section 7 claims tend to judge what is proportionate by privileging empirical knowledge and a universalist rationalism, by avoiding moral arguments, and by emphasizing individual rather than collective harms. On the other hand, those features of section

7’s culture of argument contribute to the understandings of community that underpin perceptions about what is rationally justified.

1 Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] at s 7. Chapter 3 – Section 7’s Culture of Argument and Community Understandings

To make that argument, the bulk of this chapter consists of a case study examining how understandings of collective identity are generated and reflected in section 7 adjudication. Parts I and II lay the conceptual groundwork for that case study. Part I emphasizes the indissociable relationship between collective identity and constitutional adjudication in general, drawing on the work of Hans Lindahl. Part II then describes the role for community understandings contemplated specifically by the modern approach to fundamental justice. Parts III, IV and V proceed to examine how understandings of collective identity interact with section 7 judgments in concrete cases, concentrating on a recent trilogy of section 7 disputes – Canada (Attorney General) v PHS

Community Services Society,2 Canada (Attorney General) v Bedford3 and Carter v Canada

(Attorney General).4 Each of these parts investigates a different facet of community understanding that corresponds to nodes of disagreement about justice that I identified in Chapter 1. Part III scrutinizes the epistemological commitments attributed to the judging community by section 7’s culture of argument – premises about how “we” ought to resolve justice disputes. Part IV and V focus respectively on the substantive values attributed to the community and the persons included within it – in other words, premises about what values matter to “our” community, and who counts as a member.

This chapter’s case study approach and its focus on community furthers the overall development my thesis in several ways. My analysis of section 7’s culture of argument substantiates and complements the theoretical and methodological claims I made in Chapter 1, by showing how talk of the culture of justification in the singular is reductionist and limitative. What

2 Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134 [PHS SCC] 3 Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 [Bedford SCC] 4 Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 [Carter SCC]

141 Chapter 3 – Section 7’s Culture of Argument and Community Understandings counts as a good justification consistent with the principles of fundamental justice is a product of the normative setting in which justifications are assessed.

As a subsidiary point, this chapter shows that although the approach to good justification that prevails in section 7 may be a reasonable response to the unique challenges of that section, it also implies costs. For one thing, the failure to justify why some kinds of reasons are more important than others leaves constitutional rights adjudication itself vulnerable to allegations of subjectivity, arbitrariness and illegitimacy. For another, by translating normative problems into empirical ones while shaping the judicial perceptions of “our” community that underpin their resolution, section 7’s culture of argument glosses over the contested character of collective identity. Doing so arguably makes it more difficult for courts to reason thoughtfully about the justice implications of different understandings of community. Finally, my critique in this chapter prepares my argument in Chapter 4. That chapter will propose an alternative reading of the requirement of good justification in section 7, one that makes better use of the resources internal to section 7’s culture of legal argument.

I. CONSTITUTIONAL ADJUDICATION AS AN EXPRESSION OF COLLECTIVE IDENTITY

Hans Lindahl’s theoretical work highlighting the relationship between law and collective identity is my starting point for examining how community understandings interact with judgments of proportionality in section 7 adjudication. As I explain in this part, Lindahl emphasizes that a community’s identity is constituted when it responds to claims that challenge the established limits of its legal order. Though Lindahl’s work is pitched ambitiously at legal normativity in general, it contains relevant insights for my inquiry into the relationship between community understandings and the modern approach to principles of fundamental justice. As I argue here, Lindahl shows that judicial responses to constitutional claims define both the interests that the community holds in

142 Chapter 3 – Section 7’s Culture of Argument and Community Understandings common and who has a stake in them.5 What’s more, in a liberal constitutional democracy, the iterative process through which a community responds to such challenges, in which constitutional adjudication plays a fundamental role, is itself a defining characteristic of collective identity.

A. Constituting Collective Identity through Law

Hans Lindahl’s work can be inscribed within a broader theoretical literature that links constitutional law and collective identity. The expressive character of constitutional law has long been an important theme in American scholarship. Cass Sunstein, for instance, has argued that legal pronouncements have a symbolic and expressive function that is distinct from their immediate consequences as binding norms.6 Mark Tushnet has noted that constitutions and constitutional traditions are ways in which nations define themselves.7 Much of Bruce Ackerman’s work on the history and evolution of American constitutionalism can likewise be understood as a story about that country’s ongoing struggle over its collective identity.8 In short, many authors have pointed out that constitutions and constitutional law express a community’s most profound values and commitments.9

Sociologists of law such as Roger Cotterrell have also emphasized the essential relationship between law and community, though they have done so from a different perspective.10 Cotterrell,

5 Hans Lindahl, “The Paradox of Constituent Power: The Ambiguous Self-Constitution of the European Union” (2007) 20:4 Ratio Juris 485 [Lindahl, “Paradox”] at 497-498; see also 503. 6 Cass R Sunstein, “On the Expressive Function of Law” (1996) 144:5 U Pa L Rev 2021. 7 Mark Tushnet, Weak Courts, Strong Right: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton: Princeton University Press, 2008) at 12, 14; Mark Tushnet, “The Possibilities of Comparative Constitutional Law” (1998) 108:6 Yale LJ 1225. 8 Bruce Ackerman, We the People: Foundations (Cambridge, Mass: Harvard University Press, 1991); Bruce Ackerman, We the People: Transformations (Cambridge, Mass: Harvard University Press, 1998); see also John E Finn, “Transformation or Transmogrification: Ackerman, Hobbes (as in Calvin and Hobbes) and the Puzzle of Changing Constitutional Identity (1999) 10 Constitutional Political Economy 355 at 355. 9 See also Richard Albert, “The Expressive Function of Constitutional Amendment Rules” (2013) 59:2 McGill LJ 225. 10 Roger Cotterrell, Law’s Community: Legal Theory in Sociological Perspective (Oxford: Clarendon Press, 1995); Jiří Přibáň, “Polity as Constitutional Law’s Community: On the Expressive Function and

143 Chapter 3 – Section 7’s Culture of Argument and Community Understandings for instance, is critical of romanticized and nostalgic conceptions of communities that equate them to morally cohesive collectivities, or associates them with the modern nation state. However, even as Cotterrell endorses a fluid and varied understanding of what community is, he maintains that law expresses community.11

Lindahl’s approach to law and community has commonalities with each of these accounts, but his differs in ways that help to illuminate the relationship between constitutional adjudication and community understandings.12 Lindahl’s first key contribution for the purposes of my argument is to show that a community’s identity is constituted by its legal responses, and that particular conceptions of identity always include and exclude at the same time. That is, when community members act together, they do more than merely endorse and attribute particular values to themselves. In distinction, then, from expressive accounts of constitutional law that assume the pre-existence of a unified people, Lindahl shows how legal acts that are attributed to a collective

– such as the enactment of a constitution, the adoption of legislation, or the adjudication of a constitutional claim – actively construct the identity of the collective and set its limits. Those legal acts posit not only what interests the community holds in common, but also who has a stake in

Symbolism of National and Transnational Constitutions” in Richard Nobles & David Schiff, eds, Law, Society and Community: Socio-Legal Essays in Honour of Roger Cotterrell (Farnham, UK: Ashgate, 2014) 95. 11 Roger Cotterrell, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (Aldershot, UK: Ashgate, 2006) at 28, 66-67. Cotterrell goes on to describe the varying kinds of communities that can be expressed through law at 68-70. 12 The fullest expression of Lindahl’s theoretical approach appears in his 2013 monograph Fault Lines of Globalization: Legal Order and the Politics of A-Legality (Oxford: Oxford University Press, 2013) [Lindahl, Fault Lines]. Lindahl has addressed similar themes in several essays. See e.g. Hans Lindahl, “Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood” in Martin Loughlin and Neil Walker, eds, The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford: Oxford University Press, 2007) 9 [Lindahl, “Reflexive Identity”]; Lindahl, “Paradox”, supra note 5; Hans Lindahl, “A-Legality: Postnationalism and the Question of Legal Boundaries” (2010) 73:1 Modern L Rev 30; Hans Lindahl, “Possibility, Actuality, Rupture: Constituent Power and the Ontology of Change” (2015) 22:2 Constellations 163.

144 Chapter 3 – Section 7’s Culture of Argument and Community Understandings them.13 They therefore always imply a first-person plural perspective: they call into existence a

“we” who is said to be their author, and for whose sake they are undertaken.14

Lindahl is primarily concerned with a community’s reflexive identity. Reflexive identity, also called “collective selfhood”, refers to the community to which members subjectively view themselves as belonging when they act together, on behalf of and for the sake of each other; it provides an answer to the question “who are we?”15 For instance, when in 2016 the polity called

“Canada” enacts legislation regulating physician-assisted dying, enters into the Comprehensive

Economic and Trade Agreement with the European Union, or negotiates treaties with indigenous peoples, these acts presuppose understandings of the collective that are different from the one that prevailed at Confederation in 1867. The declining influence of Christian religious precepts in

Canadian law, ongoing efforts to liberalize trade, and efforts to reconcile state sovereignty with indigenous claims to self-government reflect evolving values and commitments attributed to the collective, and an evolving understanding of the collective’s membership.

To illustrate how legal acts constitute the reflexive identity of a collective, it is helpful to examine the case of foundational constitutional moments, a context that Lindahl draws on repeatedly. Take for instance the constitution of the United States of America, by which I mean both the act of constitution-making and the constitutional document in which it is recorded. The

US Constitution’s fabled preamble – which begins and ends with “We the People of the United

13 Lindahl, “Reflexive Identity”, supra note 12 at 19; Lindahl, “Paradox”, supra note 5 at 497-498, 503. 14 Lindahl’s conception is focused on legal acts, but it has parallels with undersandings of collective identity as constituted by political discourse. Consider e.g. Hanna Pitkin, Wittgenstein and Justice (Berkely: University of California Press, 1972) at 208. See also Maurizio Passerin d’Entrèves, The Political Philosophy of Hannah Arendt (London: Routledge, 1994) at 155-156. 15 Lindahl, “Reflexive Identity”, supra note 12 at 15-16. Lindahl contrasts reflexive identity with a conception of of identity as sameness, which answers a separate question: “what are we?” At its most basic, that conception of identity denotes the ability for a collective to identify itself objectively as the same one acting over time; i.e. the group that performed act A is the same group that performed act B, that performed act C and so on (ibid at 14-15).

145 Chapter 3 – Section 7’s Culture of Argument and Community Understandings

States of America…do ordain and establish this Constitution”16 – is notable for invoking the first- person plural, proclaiming itself to be an act of the collective that originates a novel constitutional order.

Lindahl’s account highlights several distinctive features of the community generating character of this constituent act. In the first place, and as mentioned above, the first-person plural perspective excludes even as it includes. The “we” of the preamble is impliedly limited by the posited interests of the collective. Those interests identify and empower some individuals as members of the political community and exclude others. The result is the constitution of one collective identity among so many alternative possibilities – a “we” that included white propertied men and excluded black slaves, for instance.

Furthermore, the act that distinguishes between the people and interests included in the community, and those that are excluded, is what calls into existence the collective. As Lindahl says, “there is no first-person plural perspective in the absence of an act that effects a closure by seizing the political initiative to say what goal or interest joins together the multitude into a people, and who belongs to the people.”17 A community only emerges as a result of a legal act.

In addition, since a “we” can never act directly, claims to act on behalf and for the sake of a “we” are always equivocal. The constitution of collective identity depends on whether and how community members take up and carry forward acts carried out in their name. Accordingly, the political community originated in a constituent act is only brought into being retroactively, once

16 US Const. 17 Lindahl, “Reflexive Identity” supra note 12 at 18 [Emphasis in original]; see also Lindahl, “Paradox”, supra note 5 at 491, 495.

146 Chapter 3 – Section 7’s Culture of Argument and Community Understandings community members regard past actions as authentically theirs and not imposed by some other, external authority – once a claim to act on behalf of our “we” is recognized and treated as such.18

B. Constitutional Adjudication: Generating Collective Identity

This section emphasizes that who “we” are as a community is revealed not just in constituent moments, but every time someone questions the actions and interests that ought to be attributed to the collective.19 The constitution of community through law is accordingly iterative and always incomplete, and this incompleteness has implications for constitutional adjudication.

The American constitutional experience is again illustrative. The first-person plural perspective that prevailed at the founding of the United States – the “we” that privileged white property holders and excluded black slaves – was enlarged by constitutional amendment following the American Civil War to include formerly disenfranchised blacks.20 The place of blacks within the American “we” would shift again as legal acts de-normalized or revised existing understandings of the community’s common interests and values.21 Lindahl puts it this way: “the collective must incessantly relate to its possibilities, determining time and again what interests are

18 Lindahl, “Reflexive Identity”, supra note 12 at 19 [Emphasis in original]. The importance of this recognition is more than theoretical. In the US case, scholars generally reocognize that the constitutional convention of 1887 did not have the constitutional authority to simply jettison the Articles of Confederation and enact a new constitution. However, because its claim to act for “We the People” was recognized and treated as legitimate, the US Constitution was retroactively validated as an original constituent act. Consider Bruce Ackerman, “Constitutional Politics/Constitutional Law” (1989) 99:3 Yale LJ 453 at 456-457. 19 This view of identity calls to mind Hannah Arendt’s understanding of action of individual human beings as disclosing who someone is. See Hannah Arendt, The Human Condition, 2nd ed (Chicago: University of Chicago Press, 1998) at 178 and Hans Lindahl, “Give and Take: Arendt and the Nomos of Political Community” (2006) 32:7 Philosophy and Social Criticism 881. 20 US Const, amend XIV, § 1. The citizenship clause of the 14th amendment essentially nullified the decision of the United States Supreme Court in Dred Scott v Sandford, 60 US 393 (1856), which had denied the status of United States citizens to descendants of African slaves. 21 Consider for example, Plessy v Ferguson, 163 US 537 (1896), in which the USSC first sanctioned the doctrine of “separate but equal” status for blacks in the Southern states, or Brown v Board of Education, 347 US 483 (1954), in which the USSC ultimately deemed that doctrine unconstitutional, or the Civil Rights Act of 1964, Pub L No 88-352, 78 Stat 241, which outlawed discrimination based on race.

147 Chapter 3 – Section 7’s Culture of Argument and Community Understandings its own and who is a member of the political community.”22 In short, the first-person plural perspective is not merely present in self-described constituent moments. It is continually at stake when community members articulate and justify distinctions between who and what is included in a community, and who and what is excluded.23

This continual process of reflexive questioning points to a more general lesson about the relationship between community self-understanding and constitutionalism. As Lindahl notes, constitutional democracies are characterized by their openness to the give and take that occurs when the limits of the legal order are questioned.24 The institutionalization of this dynamic of question and response distinguishes a constitutional democracy committed to the rule of law from other forms of political organization. The constitutive closure implicit in a claim to act for and on behalf of “us” is not only equivocal, it is also inherently contestable and revisable.

Putting a dialogic process of question and response at the heart of constitutional democracy’s collective identity has important implications for the expressive character of constitutional adjudication. For one thing, constitutional adjudication is by definition liminal.

Constitutional claims challenge and aim to redefine boundaries between legal/illegal conduct, or redraw the limits of the legal order. In the act of responding to constitutional claims, a community perennially performs an understanding of its own identity, instantiating, revealing and potentially transforming its collective self. Like original constituent acts, constitutional adjudication therefore participates in a process through which collective identity is revised – re-shaping the understanding

22 Lindahl, “Reflexive Identity” supra note 12 at 20. On constitution as a “first-person plural concept”, see Lindahl, Fault Lines, supra note 12 at 99-101. 23 Lindahl, “Paradox”, supra note 5 at 492-495; see also Ferdinando Menga, “A-Legality: Journey to the Borders of Law. In Dialogue with Hans Lindahl” (2014) 16:2 Etica & Politica – Ethics & Politics 919 at 927-929. 24 Lindahl, “Reflexive Identity”, supra note 12 at 21 [emphasis in original]; Lindahl, “Paradox”, supra note 5 at 503.

148 Chapter 3 – Section 7’s Culture of Argument and Community Understandings of who “we” are as a community, so that it encompasses a different set of values, interests and members.25

As a more general point, the separation of powers in a constitutional democracy, and particularly the power of judicial review, recognizes and affirms the essential dynamic of question and response. It does so by providing an institutional mechanism through which a claim to act on behalf of the collective can be contested. Constitutional adjudication ensures that equivocal claims to carry forward the interests of the political community and to speak on its behalf, made by the legislative and executive branches, the administrative state, or by the judiciary itself, can be tested.

In short, when courts address constitutional challenges, collective identity emerges both from the substantive values their decisions endorse, and from the process of addressing constitutional challenges. ef

To summarize, Lindahl’s approach to collective identity and constitutionalism holds several lessons that are relevant to my inquiry in this chapter. First, a community’s reflexive identity is elicited by the process of responding to claims that challenge the limits of the legal order. Second, in a constitutional democracy, the process of question and response is itself characteristic of collective identity. No claim imposing a closure on the legal order, giving an answer to who “we” are, ever exhausts the possibilities of a community’s self- understanding. These insights have implications for constitutional adjudication. Constitutional adjudication participates in the development of community self-understanding by responding substantively to claims that challenge the established limits of the legal order. In addition,

25 The understanding of constitutional adjudication as an ongoing constituent act is a central theme in Lindahl, “Paradox” supra note 5.

149 Chapter 3 – Section 7’s Culture of Argument and Community Understandings constitutional adjudication is an institutional reflection of the process of question and response that defines a democratic community’s collective identity.

It is with these considerations in mind that I return to the problem at the heart of this thesis: how courts distinguish between reasons that are persuasive enough to justify government actions that trench on constitutional rights, and reasons that are not. Though Lindahl draws attention to the indissociable relationship between constitutional adjudication and community self- understandings, he stops short of exploring how different forms of constitutional adjudication structure interactions with community understandings, and with what consequences. The next question that therefore needs to be addressed to move forward and join my inquiries from Chapters

1 and 2 is how section 7’s culture of argument manages the relationship between judgments about what is proportionate and justified, on the one hand, and understandings of community, on the other. In other words, what conceptual role do community understandings play in section 7’s modern approach to justification?

II. THE ROLE OF COMMUNITY UNDERSTANDINGS IN MODERN SECTION 7 JUDGMENTS

A. Community and Rational Justification: A Mutually Constitutive Relationship

To address that question, but before embarking on the case study in Parts III, IV and V, this section examines the Supreme Court of Canada’s description of its modern approach to fundamental in Canada (Attorney General) v Bedford26 in light of Lindahl’s insights about the expressive and constitutive character of constitutional adjudication. I will describe the mutually constitutive but ultimately uncertain relationship between understandings of community and

26 Bedford SCC, supra note 3, remains the fullest exposition to date of the requirement of means-ends rationality imposed on government action by the principles of fundamental justice. In total, the Court devotes over 20 pages in the Supreme Court Reports to the interpretation and application of the principles of fundamental justice, at sections IV.B.(3) and IV.B.(4). In contrast, in PHS SCC, supra note 2, the Court deals with the compliance of the Minister’s decision with the same principles of fundamental in a mere three pages, at paras 127-135.

150 Chapter 3 – Section 7’s Culture of Argument and Community Understandings constitutional adjudication contemplated by Bedford. On the one hand, through a recurring appeal to “our basic values”, section 7’s modern culture of argument implicitly acknowledges the importance of collective identity to judgments about what is justified.27 On the other hand, the modern approach refuses to say much about what “our basic values” are, beyond a basic commitment to rational justification. I therefore read the turn to values in section 7 as a signal of the Court’s intention to manage the relationship between constitutional adjudication and community understandings by leaving it to individual cases to say who “we” are as a community.

In Bedford, the Supreme Court introduces a rhetoric of basic values to justify and synthesize the turn of the principles of fundamental justice towards proportionate standards.

Reaching back to the canon of section 7 jurisprudence, the Court asserts that “the Motor Vehicle

Reference recognized that the principles of fundamental justice are about the basic values underpinning our constitutional order.”28 Despite the asserted link to the Motor Vehicle Reference, that case offers little support for the Court’s proposition. Lamer J famously located the principles of fundamental justice in the basic tenets of the legal system, not in values.29

When Lamer J does use the word “value” in his seminal opinion, he is not referring to the principles of fundamental justice at all. In one instance, he uses “value” in the singular to describe the essence of what judges must do when they must determine the pith and substance of legislation in division of powers cases: distill the “constitutional value” or true meaning of challenged

27 I am not contending that the modern approach mandates a collective or aggregate analysis of section 7 violations. The Supreme Court excludes that possibility when it insists that “the question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad”: Bedford SCC, supra note 3 at para 123. Despite the Court’s insistence that the impact of an inherently bad law on one person is enough to make out a section 7 violation, whether a law is inherently bad to begin with remains bound up with the idea of community. 28 Ibid at para 96. 29 Re BC Motor Vehicle Act, [1985] 2 SCR 486 [Motor Vehicle Reference] at 503. See also at 512 (ibid): “…the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system.”

151 Chapter 3 – Section 7’s Culture of Argument and Community Understandings legislation.30 Alternatively, he uses “values” in the plural to refer to the range of issues subject to judicial review. After the Charter, he says, “the values subject to constitutional adjudication now pertain to the rights of individuals as well as the distribution of governmental powers.”31 Or, in the sole other use of “values” in the Motor Vehicle Reference, Lamer J raises the spectre that the

“rights, freedoms and values embodied in the Charter” might become undesirably frozen in time, should the wrong interpretive approach be adopted.32

None of these references concerns the meaning of the principles of fundamental justice.

Furthermore, none of the Court’s rulings prior to Bedford dealing with section 7’s substantive fundamental justice guarantees relies on a discourse of values.33 But that does not deter the Court in Bedford from placing values at the heart of its modern narrative about fundamental justice. The

Court repeatedly invokes the basic values of our constitutional order and often simply “our basic values” to substantiate the modern approach to fundamental justice and its associated emphasis on instrumental rationality, proportionality and substantive justification.34

The turn from tenets to values in Bedford is not only novel; it also sheds light on the fraught relationship between judgment and community that is characteristic of section 7’s modern approach. That relationship is marked by two opposing tendencies. First, the Court’s insistence that the principles of fundamental justice are about our basic values affirms the importance of community to the adjudication of fundamental justice claims. “Values” is a distinctive keyword of

30 Ibid at 496. 31 Ibid. 32 Ibid at 509. 33 The only meaningful caveat to this statement relates to Sopinka J’s opinion in Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519 [Rodriguez]. As discussed in the previous chapter, Sopinka J adverts to a loose connection between principles of fundamental justice and social values when he suggests that there must exist some level of consensus or general acceptance for a norm to be recognized as a principle of fundamental justice. See in particular pages 590, 607, 608. Sopinka J nonetheless resists equating the principles of fundamental justice to values. 34 Bedford SCC, supra note 3 at paras 96, 98, 101, 103, 105, 106, 116.

152 Chapter 3 – Section 7’s Culture of Argument and Community Understandings proportionality’s global culture of justification,35 so its centrality highlights the links between section 7 adjudication and approaches to rights adjudication centred on the principle of proportionality. In so highlighting, the Court distances the modern conception of fundamental justice from doctrinal or textual approaches to constitutional adjudication.36 Instead, it emphasizes a flexible, all-things-considered assessment of means-ends rationality that is attentive to local circumstances and potentially able to account for a community’s particularities and ethical objectives.37

The importance of community is underscored by the repeated use of the first-person-plural to describe those values. Consistent with Lindahl’s theoretical perspective, that first-person plural voice represents an ontological claim about our collective existence. These basic values belong to

“us” and it follows that a tangible “we/us” exists who possess them. Moreover, given the repeated insistence on their basic, fundamental character, it would hardly be overstating the case to say that the Court portrays these values as constitutive of our community’s identity. Our basic values make

“us” who and what “we” are.

Conversely, the apparent centrality of community to the modern approach is lessened once one scratches the surface of the Court’s reasons. The Court uses the expression “our basic values” in two senses. At times, the Court implies that basic values are something intangible that transcends rules against arbitrariness, overbreadth and gross disproportionality. This meaning predominates

35 See generally Mark Antaki, “The Turn to Values in Canadian Constitutional Law” in Luc B Tremblay and Grégoire Webber, eds, The Limitation of Charter Rights: Critical Essays on R. v. Oakes (Montreal: Thémis, 2009) 155 [Antaki, “Values”]. 36 On proportionality’s turn away from textual interpretation, see Moshe Cohen-Eliya & Iddo Porat, “Proportionality and the Culture of Justification” (2011) 59:2 Am J Comp L 463. 37 Jacco Bomhoff, “Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law” (2008) 31:2 Hastings Intl & Comp L Rev 555 at 575-576. As Bomhoff insists in his scholarship, however, proportionality scholarship tends to be beset by contradictions that stem from a failure to distinguish between types of balancing that strike a different balance between commitments to universalism and particularity.

153 Chapter 3 – Section 7’s Culture of Argument and Community Understandings when the Court equates laws that run afoul of our basic values to “inherently bad laws,”38 and describes arbitrariness, overbreadth and gross disproportionality as ways in which laws may so run afoul.39 At other times, our basic values are equated more mundanely to rules against arbitrariness, overbreadth and gross disproportionality.40

Leaving aside issues of consistency, both usages raise questions about what our basic values mean. In the first sense, our basic values are never defined or described, despite being the supposed lodestar guiding the adjudication of section 7 claims since the Motor Vehicle Reference.

In the second sense, they inject little content into the normative standards. If our basic values are precisely rules against arbitrariness, overbreadth and gross disproportionality, it is begging the question to say that laws violate our basic values when they are arbitrary, overbroad and grossly disproportionate,41 just as it is to say that laws are grossly disproportionate when they violate our fundamental norms – those norms having been defined to include a basic norm against gross disproportionality.42

The Court’s discussion of the principles of fundamental justice therefore suggests that its resort to “our basic values’” is essentially rhetorical as well as circular. Though it insists on a notional idea of community, the Court’s ambiguous rhetoric says little about what “we” value, or about those to whom “our” values belong. Ultimately, that rhetoric leads the principles of fundamental justice straight back to the means-ends analysis that is intrinsic to proportionality

38 Bedford SCC, supra note 3. See e.g. paras 96, 101, 105, 116, 123. 39 Ibid. See e.g. paras 96, 101, 106. 40 Ibid. For example, at para 96, the court states: “In this case, we are concerned with the basic values against arbitrariness, overbreadth, and gross disproportionality.” 41 Ibid at paras 96 and 105. 42 Ibid at para 109, 120.

154 Chapter 3 – Section 7’s Culture of Argument and Community Understandings review.43 In short, the Court’s repeated insistence on “our basic values” is pregnant with meaning but empty of content.

That paradox encapsulates the fraught relationship between proportionality review and community that is ignored by a singular focus on justification. Every assessment of proportion relies on judicial understandings about “our” community to say what is justified. However, proportionality review provides little normative guidance to judges about how to appreciate and understand who “we” are as a community.

Judicial references to “our basic values” in Bedford are therefore partly a reminder that judgments of proportionality can be neither rational nor legitimate except insofar as they are grounded in community.44 To resolve disagreements about what is justified, courts must consider what is a right state of affairs in a concrete community.45 They must accordingly “situate the would-be right-holder in a community of other actual and potential right-holders,”46 even if proportionality’s global culture of justification often glosses over this point. Judges called upon to say what is proportionate and, in the case of section 7, what is fundamentally just, must be able to imagine – indeed cannot judge without imagining – “our” community’s distinct features in terms of its membership, its commitments, and approach to resolving disagreements. These features mirror the questions posed by Nancy Fraser about contemporary justice that I reviewed in Chapter

43 I am not suggesting that arbitrariness, overbreadth and gross disproportionality, as principles of fundamental justice, lack normative content. Those standards capture notions of fairness that have an important tradition in Canadian judicial decision-making and the Court’s explanation of those norms in terms of instrumental rationality, following the work of Hamish Stewart and Peter Hogg, is also meaningful: see Bedford SCC, supra note 3 at paras 107ff. My reflections relate to the link between community and proportionate standards contemplated by “our basic values”. 44 Mark Antaki, “The Rationalism of Proportionality’s Culture of Justification” in Grant Huscroft, Bradley Miller & Grégoire Webber, eds, Proportionality and the Rule of Law: Rights, Justification, Reasoning (New York: Cambridge University Press, 2014) 284 [Antaki, “Rationalism”]. 45 Grégoire Webber, “On the Loss of Rights” in Huscroft et al, eds, supra note 43, 123 at 131. 46 Ibid at 130.

155 Chapter 3 – Section 7’s Culture of Argument and Community Understandings

1: what values matters, how disputes ought to be resolved, and whose interests and viewpoints count.47 “Our basic values” serves as a reminder that the principle of proportionality, notably as now embodied in the principles of fundamental justice, cannot be disassociated from community.

Conversely, the emptiness of the Court’s appeal to basic values in Bedford, referring as it does to no values in particular, underscores how difficult such a task is. In the face of pervasive disagreement about what justice should look like, imagining “our” community’s justice commitments is a colossal endeavour that is magnified by the disassociation of constitutional adjudication from text characteristic of proportionality review.48 Authorized and encouraged to

“downplay the text”49 of the constitution, judges determining whether means and ends are aligned and balanced receive little guidance about how to perceive and portray “our” community.

In declining to authoritatively endorse any specific values, the Court’s association between fundamental justice, basic values and proportionate standards gives rise to a peculiar relationship between section 7 adjudication and collective identity. Despite being linked to the overall rise in values-talk that characterizes constitutional adjudication modelled on proportionality,50 the invocation of values in Bedford is a departure from dominant approaches to proportionality review in constitutional rights cases. Like most other constitutional and human rights courts, the Supreme

Court of Canada has normally depicted values as objects of proportionality judgments to be weighed in the balance.51

47 See generally Nancy Fraser, Scales of Justice: Reimagining Political Space in a Globalizing World (New York: Columbia University Press, 2009) at 48-75. See also Chapter 1 above at Part II. 48 Cohen-Eliya & Porat, supra note 36 at 489-490. 49 Ibid at 490. 50 See generally Antaki, “Values,” supra note 35. 51 Such a conception of values has been central to Charter adjudication in Canada at least since R v Oakes [1986] 1 SCR 103. See Oakes at 119 and 136.

156 Chapter 3 – Section 7’s Culture of Argument and Community Understandings

In contrast, what the Court in Bedford presents as valuable are the component elements of proportionality review themselves. Taken together and expressed affirmatively, our so-called basic values against arbitrariness, overbreadth and gross disproportionality are essentially proportionality conceived as a value. Proportionality is transformed from a metric – an approach to assessing whether government conduct is rationally justified having regard to a variety of extraneous constitutional values – to a telos or value unto itself. In the process, reference to some meta-constitutional perspective on what is justified in this community – even for instance one as flexible and variable as a basket of Charter values – is elided. Granted, the Court’s approach is far from a renunciation of principles entrenched in the Canadian constitution. But the centrality of values in Bedford ironically ends up re-affirming a purportedly value-neutral conception of proportionality as it applies to section 7.52 The picture of justice that emerges from “our basic values” is thus an agnostic one, cautious about endorsing the substantive values of a concrete normative community and aligned instead with a commitment to rational justification pure and simple.

In short, by acknowledging the importance of community to its modern approach, while declining the opportunity to specify its limits and character, the Court’s insistence on “our basic values” signifies a deferral of, rather than a response to, the challenge of saying who “we” are as a community. “Our basic values” points section 7 adjudication at once towards and away from community, giving rise to a fuzzy picture of justice that says little in advance about what is right for this community in this specific case. This deferral leads me to the next step in my argument.

52 Alana Klein, “The Arbitrariness in ‘Arbitrariness’ (And Overbreadth and Gross Disproportionality): Principle and Democracy in Section 7 of the Charter” (2013) 63 SCLR (2d) 377 at 396-397.

157 Chapter 3 – Section 7’s Culture of Argument and Community Understandings

B. Contingent Understandings of Community: Introducing the Case Study

There is evidently much at stake for proportionality review in the answer to the questions of how “our” community ought to decide justice disputes, what values matter to “us”, and whose interests and viewpoints count as “our” own. The rest of the inquiry in this chapter will describe how section 7’s contemporary culture of argument answers these questions in concrete cases. It will focus on the trilogy of judgments issued by the Supreme Court of Canada between 2011 and

2015 that consolidated its modern approach to the substantive principles of fundamental justice.

Those cases are PHS,53 Bedford54 and Carter,55 and the purpose of the present section is to introduce them.

The dispute in PHS concerned the continued existence of Insite, the supervised injection site in Vancouver’s Downtown Eastside. The case as argued raised federalism and Charter issues, but I will only examine the latter. Viewed through the lens of section 7, the issue was whether the criminal prohibitions contained in the federal Controlled Drugs and Substances Act56 (CDSA) violated the claimants’ rights to life, liberty and security of the person because they prevented them and other drug users from accessing Insite’s potentially life-saving health care services, without good reasons for doing so.

The Supreme Court ruled that Insite could stay open. It found that the Minister of Health exercised his discretion unconstitutionally when, in the face of evidence that Insite saved lives, he

53 PHS SCC, supra note 2. 54 Bedford SCC supra note 3. 55 Carter SCC, supra note 4. At the time of writing, these three judgments remained the seminal expressions of the Court’s modern approach to the principles of fundamental justice. Supreme Court subsequent to Carter SCC (ibid) that involve the modern principles of fundamental justice include: R v Smith, 2015 SCC 34, [2015] 2 SCR 602; R v Moriarty, 2015 SCC 55, [2015] 3 SCR 485; R v Appulonappa, 2015 SCC 59, [2015] 3 SCR 754; R v Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 SCR 180; R v Boutilier, 2017 SCC 64, [2017] 2 SCR 936. 56 Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA].

158 Chapter 3 – Section 7’s Culture of Argument and Community Understandings declined to renew Insite’s exemption from the application of provisions of the CDSA criminalizing drug possession and trafficking.57 The Minister’s decision was deemed inconsistent with the purposes of the enacting legislation. The public health and safety benefits tied to his decision would be dwarfed by the adverse impacts on drug users caused by the denial of access to Insite.

Bedford involved a challenge to Canada’s patchwork of Criminal Code provisions restricting prostitution. The primary issue was whether three prohibitions – against keeping or being found in a common bawdy-house (section 210), living on the avails of prostitution (section

212(1)(j)), and communicating in public for the purposes of prostitution (section 213(1)(c)) – infringed the claimants’ section 7 rights.58 Much as in PHS, the key question was whether the provisions deprived the claimants of their rights to security of the person without good reason. The

Court declared all three provisions invalid.59 It ruled that the provisions exposed sex workers to grave harms and could not be justified considering their ascertained purposes: to curtail the public nuisances associated with prostitution and, in the case of the living on avails provision, to protect sex workers from exploitation.

Finally, Carter involved a challenge to Canada’s criminal prohibition against assisted suicide that required the Supreme Court to revisit its ruling 23 years earlier in Rodriguez upholding the same laws.60 Consistent with the Court’s modern approach to the principles of fundamental justice, the primary section 7 issue was whether the prohibition against assisted suicide was instrumentally rational: did the deprivations of life, liberty and security of the person resulting

57 Ibid, ss 4-5. 58 Criminal Code, RSC 1985, c C-46, ss 210, 212(1)(j), 213(1)(c). A secondary issue was whether the prohibition on communicating in public violated the claimants’ right to freedom of expression. Given its findings with respect to section 7, the Court did not address that issue in its judgment. 59 Those declarations of invalidity were suspended from one year from the date of the decision: Bedford SCC, supra note 3 at para 169. 60 Rodriguez, supra note 33.

159 Chapter 3 – Section 7’s Culture of Argument and Community Understandings from the prohibition bear an appropriate relation its purpose? The Court concluded that the criminal prohibition was overbroad and therefore not in accordance with the principles of fundamental justice. Although intended to protect only vulnerable people, the prohibition interfered with the autonomy of competent individuals with a sincere and rational desire to end their lives. This regulatory overreach caused significant psychological and physical harm. The

Court went on to conclude that the rights limitation flowing from the prohibition could not be justified in accordance with the Oakes test because it was not minimally impairing.61

These case studies exemplify the process of question and response that generates community identity in a constitutional democracy, and show how section 7’s culture of argument manages that process. The legal controversies surrounding the governance of sex work and drug use lend themselves especially well to such an inquiry. Arguments about state regulation of these practices have historically relied on tropes about community – about who is included in “our” community, and who and what is properly excluded.62

Perhaps because of these tropes, criminal prohibitions targeting sex workers and drug users have already been theorized from the perspective of community. Angela Campbell, for instance, has reflected on the association between understandings of community and the historical categorization of sex work activities as a form of public nuisance. She points out that “juridical perceptions of nuisance are premised on presumptions about the boundaries that surround a community, and about acts that transgress the norms and codes of conduct within those lines,

61 Carter SCC, supra note 4 at paras 94-123. 62 The short titles given to the federal legislation responding to the Supreme Court judgments in PHS and Bedford, respectively the Respect for Communities Act, SC 2015, c 22 and the Protection of Communities and Exploited Persons Act, SC 2014 c 25, offer a telling reminder of those tropes.

160 Chapter 3 – Section 7’s Culture of Argument and Community Understandings which merit state suppression.”63 Likewise, Desmond Manderson has argued that historical prohibitions on drugs, especially opium, were connected symbolically with efforts to protect society against the violation of the boundaries of the existing social order.64 To the extent that criminal law approaches to sex work and drug use are tied up with premises about the boundaries that surround a community, judgments of proportionality express constitutional approval or disapproval of those premises.

Presumptions about community boundaries are also at issue when courts adjudicate claims about the regulation of physician-assisted suicide. Whether its prohibition is justified by the intrinsic immorality of the practice, or by a desire to keep the practice out of public view, or simply for pragmatic reasons, the state’s decision to target it using the criminal law stands to be sanctioned constitutionally through an assessment of means-ends rationality. That assessment, in which the principle of proportionality is the organizing thread, represents a claim about what does and does not belong in “our” community and by extension a claim about who “we” are. In short, as Lindahl’s work reminds us, courts making constitutional determinations about what is proportionate and justified sanction limits that constitute “our” community, regardless of the social practice being regulated and the motivation for doing so.

III. COMMUNITY JUDGMENT: HOW DO “WE” DECIDE?

My analysis in the remaining parts of this chapter will revolve around two intertwined questions. First, what features and commitments does the Supreme Court of Canada attribute to

“our” collective and its members as it decides section 7 cases? Second, how do those

63 Angela Campbell, “Sex Work’s Governance: Stuff and Nuisance” (2015) 23:1 Feminist Leg Studies 27 at 36; see also, but less explicitly, Hester Lessard, “Jurisdictional Justice, Democracy and the Story of Insite” (2011) 19:3 Const Forum Const 93. 64 Desmond Manderson, “Symbolism and Racism in Drug History and Policy” (1999) 18:2 Drug & Alcohol Rev 179 [Manderson, “Symbolism”] at 182, 185.

161 Chapter 3 – Section 7’s Culture of Argument and Community Understandings understandings of community interact with section 7’s modern culture of argument to shape judgments about the principles of fundamental justice? My answers to those questions are organized thematically around three nodes of community understandings that I identified in

Chapter 1. In the final three parts of this chapter, I successively address how those understandings of community emerge from and inform the Court’s judgments in PHS, Bedford and Carter.

Turning first to how “we” decide, two epistemological features of section 7’s modern culture of argument stand out. The case studies reveal that judicial understandings of “our” community – and judgments of proportionality – are shaped by commitments to empirical evidence and a universalist rationalism that is detached from the surrounding normative context.65 The result is an approach to justification that tends to merge normative and empirical questions.

The empiricism of section 7’s culture of argument is evident in the decisive importance of factual determinations for the resolution of constitutional questions. This importance manifests in different ways. In PHS, the legal debate over the future of Insite occurred against the backdrop of research that assessed its effectiveness at combatting health and safety problems tied to injection drug use in the Downtown Eastside. The Supreme Court canvassed that scientific and social scientific evidence in detail to evaluate the rationality of the Minister’s decision not to renew

Insite’s permit. The Court’s factual findings concerning the immediate, proximate effects of government policy on drug users decisively impact its constitutional conclusions, and the availability of empirical evidence determines the Court’s factual findings.

65 These features of section 7’s culture of argument are anticipated partly by Mark Antaki’s critique of proportionality-talk more generally: Antaki, “Rationalism”, supra note 43. Considering my scepticism about the culture of justification in the singular, I should make clear that my claim is not that all forms of proportionality review exhibit these characteristics.

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Though the Court goes out of its way to insist that it is not being asked to determine “the best approach to resolving illegal drug use,”66 its judgment rests on empirical findings that effectively answer that question – at least for residents of the Downtown Eastside. Addressing the relative effectiveness of approaches to the perceived problem of drug addiction, the Court asserts that “traditional criminal law prohibitions have done little to reduce drug use in the [Downtown

Eastside]…,” that the risks to drug users are “reduced when they inject in the presence of a health professional…,” and that “the presence of Insite did not contribute to increased crime rates, increased incidents of public injection, or relapse rates in injection drug users.”67

Those factual conclusions are not especially controversial. However, it is notable that they end up deciding the constitutional outcome. At trial, Justice Pitfield of the British Columbia

Supreme Court (BCSC) acknowledged the relative uncertainty and controversy about the causes of addiction and the actors responsible for it.68 Drug addiction, he said, was a disease brought about by “a complicated combination of personal, governmental and legal factors.”69 In the face of this uncertainty, but compelled to resolve a conflict linked to opposing approaches to drug use, Pitfield

J turned to empiricism to find solid footing for his judgment.

In so doing, Pitfield J derived the limits of “our” community for the purposes of the constitutional assessment of rational justification from the availability of empirical evidence. Since all the research that had examined the impact of Insite had concentrated on the immediate, proximate, measured effects of supervised injection in the Downtown Eastside, so did Pitfield J.

The potential impact of Insite on the normalization of drug use beyond the Downtown Eastside,

66 PHS SCC, supra note 2 at para 105. 67 Ibid at para 131. 68 PHS Community Services Society v Attorney General of Canada, 2008 BCSC 661, 293 DLR (4th) 392 [PHS BCSC] at para 88. 69 Ibid at para 89.

163 Chapter 3 – Section 7’s Culture of Argument and Community Understandings for instance, was rendered irrelevant. Although the expert advisory report about Insite prepared for the Minister of Health expressed doubt about such impacts, it also noted the limitations of existing research on this point: “concerns that SISs ‘send the wrong message’ to non-users by suggesting that drug use can be safe cannot be addressed with the existing data.”70 The point is not that these concerns ought to have prevailed. The point is that the contingent availability of empirical evidence defined the contours of the judicial analysis.

The novelty of such an approach to fundamental justice, which equates good justification with the demonstrated proof of an empirical assertion about the effectiveness and instrumental rationality of government policy, is magnified by comparing it with the approach the Court favoured in R v Malmo-Levine; R v Caine. In that case, the Court concluded that the government ban on marijuana possession accorded with the principles of fundamental justice considering the prohibition’s intended purpose: to express society’s collective disapproval of conduct that constitutes an apprehended harm.71 Distancing itself from that approach, the Court in PHS assesses the persuasiveness of the justification for government conduct using a rationalist, quasi-scientific, paradigm in which the measurability of effects is paramount.72 As McLachlin CJ and Major J said in Chaoulli, gesturing towards the emerging modern conception of fundamental justice, what

70 Health Canada, Vancouver's INSITE Service and Other Supervised Injection Sites: What Has Been Learned from Research? - Final Report, by the Expert Advisory Committee on Supervised Injection Site Research (Ottawa: Health Canada, March 31, 2008) at “Research Conclusions and Limitations” section 6.iv, online: Health Canada < https://www.canada.ca/en/health-canada/corporate/about-health- canada/reports-publications/vancouver-insite-service-other-supervised-injection-sites-what-been-learned- research.html#drug>. [Health Canada, Insite Report] 71 R v Malmo-Levine; R v Caine, 2003 SCC 74, [2003] 3 SCR 571 [Malmo-Levine] at para 136. 72 PHS SCC, supra note 2 at 131. In contrast, drawing on jurisprudence relating to section 12 of the Charter, in Malmo-Levine the Court seems at times to equate the test of gross disproportionality with what Canadians would find “abhorrent”, suggesting a standard more closely connected to moral intuition (disgust, repugnance) than rational detachment: Malmo-Levine, supra note 71 at para 136.

164 Chapter 3 – Section 7’s Culture of Argument and Community Understandings matter are facts, not theory.73 Or, to put the distinction differently: empirically-validated social science, not speculative inferences or intangible consequences.

The judgments of the Court in Bedford and Carter also demonstrate the modern conception’s preference for empirically-validated decision-making, though in a different way. The sprawling factual inquiries conducted by the judges at first instance provided the empirical grounding for the constitutional conclusions in both cases. The task for both judges was colossal.

In Bedford the record at trial ran to 25,000 pages, compiled in 88 volumes, including affidavits and oral testimony from numerous social science experts on prostitution and research methodology, as well as numerous written reports about prostitution, some of which had been previously commissioned.74 In Carter, over 50 experts gave evidence, including philosophers, ethicists, psychologists, law professors, sociologists, as well as medical doctors specializing in palliative care, psychiatry, genetics, medical ethics, urology, cardiology, neurology, geriatrics and family medicine.75 Most of their testimony related to the ethics of end-of-life decision-making, experiences with euthanasia in other jurisdictions, and the feasibility of various safeguards designed to protect vulnerable persons from being induced to commit suicide. Existing government reports on assisted suicide were also produced into the record. The expert evidence played a central role in both first instance rulings that the principles of fundamental justice had been violated.76

Despite that central role, the portions of the Supreme Court judgments in Bedford and

Carter that relate to arbitrariness, overbreadth and gross disproportionality make only cursory references to the evidentiary record. This may seem to undermine my argument about the modern

73 Chaoulli v Quebec (Attorney General), 2005 SCC 35, [2005] 1 SCR 791 [Chaoulli] at paras 136-138. 74 Justice Himel references the size and contents of the record in her trial judgment: see Bedford v Canada (Attorney General), 2010 ONSC 4264, 102 OR (3d) 321 [Bedford Ont Sup Ct J] at para 84ff. 75 Carter v Canada (Attorney General), 2012 BCSC 886, 287 CCC (3d) 1 [Carter BCSC] at para 160. 76 Bedford On Sup Ct J, supra note 74 at paras 377ff.

165 Chapter 3 – Section 7’s Culture of Argument and Community Understandings conception’s emphasis on the factual and not merely theoretical connection between government means and ends.77 However, I read the perfunctory application of the principles of fundamental justice in Bedford and Carter by the Supreme Court as a telling sign of just how decisive empirical questions have become under the modern approach.

The constitutional conclusions of the first instance judges in Bedford and Carter rely on adjudicative and legislative facts about the effects of government policy on section 7 interests, the demonstrated links between those effects and government objectives, and the relative magnitude and importance of effects as opposed to objectives. This emphasis on factual questions leaves little room for further disagreement about whether government action complies with the principles of fundamental justice. The trial judge in Carter found as a fact that Gloria Taylor was a competent disabled person whose persistent wish to end her life was fully informed and formed free of coercion. Hence the Supreme Court agreed that the prohibition of physician-assisted suicide was overbroad.78 The application judge in Bedford found as a fact that moving to an indoor location would improve the safety of sex workers, and also that nuisance complaints about indoor sex work are rare. Hence the Supreme Court agreed that the harmful effects of the prohibition of common bawdy-houses were disproportionate to the deterrence objective of the provision.79

In both cases, the normative issue – whether the alleged deprivation of life, liberty and security of the person is in accordance with the principles of fundamental justice – is nearly conflated with the empirical ones – the observed correspondence between the effects and the objectives of government policies. As in PHS, judges purport to resolve questions of arbitrariness, overbreadth and gross disproportionality simply on the facts of the matter – without articulating

77 Chaoulli, supra note 73 at paras 136-138. 78 Carter SCC, supra note 4 at para 86. 79 Bedford SCC, supra note 3 at paras 134-135.

166 Chapter 3 – Section 7’s Culture of Argument and Community Understandings the social or moral importance of the values underlying the government objective, the alleged harms, or their relative importance.

A modern tendency to perceive the scope of empirical questions widely also contributes to their merger with normative ones. The contrast between the Supreme Court’s two judgments on assisted suicide, Carter and Rodriguez, helps to illustrate this point. In Carter, the persuasiveness of the distinctions drawn between different kinds end-of-life practices – such as those where death is intended and those where death is merely foreseen as an incidental consequence, or between active and passive forms of euthanasia – was determined at trial largely on the basis of expert evidence. The constitutional standard of means-ends rationality is treated almost as if it were a question of medical ethics, whose correct answer is discoverable through an empirical inquiry.80

In contrast, Justice Sopinka, writing for the majority in Rodriguez, maintains that it is the judge who ought to be the arbiter of the legal implications of ethical and logical arguments.81

Sopinka J contemplates but ultimately rejects the contention that the constitutionality of different end of life practices is an empirical matter, or a matter of pure rationality. The question, he says, is whether the kinds of distinctions described in the previous paragraph are based on rationales that are “constitutionally supportable.”82 Having regard to practices and commitments intrinsic to the legal system, he concludes that the distinctions above can be persuasively defended and are therefore constitutional. In short, whereas Sopinka J in Rodriguez insists on differentiating constitutional norms from empirical and logical truths, section 7’s modern culture of argument tends to collapse the two.

80 Carter BCSC, supra note 75 at paras 161-358. 81 Rodriguez, supra note 33 at 605-608. 82 Ibid at 605-606.

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The deference owed to findings of legislative and social facts by appellate courts further conflates normative and empirical considerations in fundamental justice judgments. Overruling the Ontario Court of Appeal on this point, the Supreme Court in Bedford clarified that appellate courts owe deference to all findings of fact made by trial judges, even when those findings concern society at large and are based on complex social science evidence.83 In Bedford, this meant that deference was owed not only to adjudicative facts, such as the circumstances under which Terri

Jean Bedford and the other claimants worked. It was also owed to social and legislative facts connected to sex work, including the incidence of homicide among street sex workers, the importance of screening for their safety, or the degree to which prohibitionist policy contributes to their displacement to remote, secluded locations.

This deferential posture towards expert evidence makes factual questions even more salient further limiting space for normative disagreement within section 7’s modern culture of argument.

As discussed just now, that culture of argument already focuses the constitutional standard of justification on the empirically-demonstrated connection between facts, leaving relatively less room for argument about their legal significance. The attitude of deference towards findings of social and legislative facts whittles away still more at the matters to be decided by legal arguments.

The universalist and decontextualized rationalism that characterizes section 7’s culture of argument further accentuates the merger between empirical and normative questions.84 As Mark

83 Bedford SCC, supra note 3 at paras 48-56. For the relevant passage of Ontario Court of Appeal judgment, see Canada (Attorney General) v Bedford, 2012 ONCA 186, 109 OR (3d) 1 at paras 126-131. In support of its approach, the Supreme Court argued that: legislative and adjudicative facts are inextricably intertwined; it would be inefficient and unproductive to have appellate court judges engage in a de novo review of evidence concerning legislative and social facts, which can constitute the bulk of the evidence in public interest constitutional challenges; and the trial judge is best placed to assess credibility and reliability of expert evidence. See also David Paciocco, “Taking a Goudge Out of Bluster and Barney: Evidence-Based Approach to Expert Testimony” (2009) 13:2 Can Crim L Rev 135. 84 See on this point Paul W Kahn, “Comparative Constitutionalism in a New Key” (2003) 101:8 Mich L Rev 2677 at 2682, 2701-2702.

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Antaki says of scholarly depictions of balancing, so it is with section 7’s test of instrumental rationality: each assessment “is so attached to the specific context of its specific facts that it abstracts completely from the broader context that includes constitutional commitments and precedent.”85 In other words, the factual universe used to assess the proportionality and rationality of means and ends in section 7 is cut off from the surrounding normative world.

This normative decontextualization has several aspects. First, the modern approach to assessing compliance with the principles of fundamental justice is self-contained. The legislative end of the government initiative under review is accepted as fixed, and thus provides an internally- generated standard against which to measure compliance with the principles of fundamental justice. Moreover, as I explained in Part II, constitutional commitments inherent to our political and legal traditions more generally – be they Charter values, such as dignity or equality; or unwritten precepts of Canadian constitutional law such as democracy and the rule of law, federalism, and the protection of minorities; or common law principles – are not directly relevant to the modern fundamental justice analysis.

Second, section 7’s modern culture of argument is relatively decontextualized vis-à-vis judicial precedent. This decontextualization is particularly evident in the judgments of the Supreme

Court in Bedford and Carter, in which it had to confront the impact of its prior judgments in the

Prostitution Reference and Rodriguez dealing with similar legal and factual issues. Clarifying the role of stare decisis in constitutional cases, the Court declared that a precedent can be revisited

(including by a lower court) “if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.”86 In the result, it considered neither precedent binding. When

85 Antaki, “Rationalism” supra note 44 at 298-299 (footnote 75). 86 Bedford SCC, supra note 3 at para 42; see also Carter SCC, supra note 4 at paras 44-47.

169 Chapter 3 – Section 7’s Culture of Argument and Community Understandings coupled to the factuality of section 7’s modern culture of argument, this approach gives courts latitude to revisit or overrule earlier decisions, and not only because the ascendance of proportionate norms constitutes a significant development in the law. More than that, the empirical emphasis of section 7’s modern culture of argument – which obscures normative judgments under the guise of factual determinations – means that every alleged breach of the principles of fundamental justice calls to be decided anew on its own facts. As such, the modern approach to fundamental justice adjudication tends to be relatively ahistorical. As Robert Alexy says, each assessment of proportionality is a fresh exercise in optimizing the factual and constitutional possibilities, given the unique adjudicative, social and legislative circumstances.87 ef

Whether expressed in terms of arbitrariness, overbreadth or gross disproportionality, the conception of substantive fundamental justice elaborated by the Supreme Court, in PHS, Bedford and Carter holds government actions that interfere with life, liberty or security of the person to a decontextualized rational-evidentiary constitutional standard, merging empirical and normative questions. These features of section 7’s modern approach to fundamental justice call to mind David

Beatty’s defence of proportionality review as entailing a “very focused factual inquiry about the good and bad effects of specific acts of the state.”88 However, they also call to mind a critique that

Mark Antaki has levied at judicial and scholarly discussions of proportionality analysis: its tendency to privilege a mode of judgment that is preoccupied at once with rationalist objectivity and empiricist certainty.

87 Robert Alexy, “Proportionality and Rationality” in Vicki C Jackson and Mark V Tushnet, eds, Proportionality: New Frontiers, New Challenges (Cambridge, UK: Cambridge University Press, 2017) 13 at 14; Robert Alexy, A Theory of Constitutional Rights, translated by Julian Rivers (Oxford: Oxford University Press, 2002) at 47–49. 88 David M Beatty, The Ultimate Rule of Law (Oxford: Oxford University Press, 2004) at 182-183.

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The narrow focus of these inquiries, which ostensibly point adjudicators to the objectively correct conclusion, means that depth of field is lost. The incongruous image of a constitutional judge lifting the world by a lever held in his right hand, while simultaneously examining a single spot of that world through a microscope held up to his eye with his left, illustrates the shortcomings of such a perspective. It isolates constitutional adjudication from, and makes it blind to, the distinctive features of the surrounding cultural, normative and adjudicative landscape in which people argue about the meaning of rights and justice.89 In the next two parts, I consider how this approach to how “we” decide interacts with judicial perceptions about what values matters and whose interests and viewpoints count in the context of proportionality review.

IV. COMMUNITY VALUES: WHAT MATTERS TO “US”

This part examines the kinds of substantive values that the modern section 7 approach supports. I show how the collapse of normative and empirical questions discussed in the previous part means that courts favour harm-based governance approaches over approaches that rely on a language of right and wrong.

A. Competing Approaches: The Relative Importance of Moral Wrongs and Concrete Harms

The fundamental justice disagreements in PHS, Bedford and Carter were legal manifestations of policy arguments over competing governance approaches to drug use, sex work and end-of-life decision-making. In this section I explain that those competing approaches reflect distinct discourses about the regulated practices, some of which are oriented primarily towards prohibiting moral wrongs, and others towards reducing concrete harms to individuals. These approaches are linked to different understandings of what ought to matter in “our” community and suggest contrasting frames for assessing fundamental justice claims.

89 Antaki, “Rationalism”, supra note 44 at 298-299.

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Prohibitionist approaches view drug use primarily through the eyes of the criminal law. On this view, drug use is wrong and drug users deserve reprobation and social stigma. Drug use is intrinsically anti-social, corrosive of moral agency, and destructive of public order, and the decision to use drugs is a matter of individual choice and responsibility. Founded on the pillars of abstinence and criminal prohibition, this kind of approach has underpinned the American “war on drugs” over the last half-decade. It was supported by government policy in Canada and around the world for the better part of the 20th century, essentially since the dawn of drug regulation.90 The goal of such an approach is ultimately to stamp out the scourge of drug use.

Conversely, other governance approaches to drug use emphasize the physical and mental well-being of individuals. Harm reduction approaches, for instance, view drug use primarily through the eyes of public health policy, human rights or both. Drug use is either considered akin to a chronic condition whose prevalence is influenced by social, environmental and genetic factors, or more controversially an activity pursued like any other that is not inherently harmful.91

Regardless, drug use should not stand in the way of a healthy and safe life. Harm reduction advocates suggest that instead of stigma, drugs users are deserving of compassion and respect.

Drug users, like other citizens, ought to be able to participate in the community and benefit from the rights and privileges of membership. They should notably be given opportunities to define and

90 Walter Cavalieri & Diane Riley, “Harm Reduction in Canada: The Many Faces of Regression” in Richard Pates & Diane Riley, eds, Harm Reduction in Substance Use and High-Risk Behaviour: International Policy and Practice (Chichester, UK: Wiley-Blackwell, 2012) 382 at 382-383, 385-386; for a critical appraisal of the origins of prohibitive drug policy in Australia, see Manderson “Symbolism”, supra note 64 at 179-182; see also Desmond R Manderson, “From Zero Tolerance to Harm Reduction: ‘The Asylum Problem Problem’” (2013) 32:4 Refugee Survey Quarterly 1 at 3-4. 91 There are many different pardigms of harm reduction and these provoke considerable disagreement among harm reduction advocates. For instance, those who support a human right to drug use criticize the disease/illness model for pathologizing drug use and stigmatizing drug users, and not recognizing that the harms associated with drug use are inherently socially and legally constructed. See generally Eliot Ross Albert, “Harm Reduction: Contribution to a Critical Appraisal from the Perspective of People Who Use Drugs” in Pates & Riley, eds, supra note 90, 124.

172 Chapter 3 – Section 7’s Culture of Argument and Community Understandings contribute to their own health and well-being. As harm reduction advocates sometimes put it, “drug users are people too.”92 Consistent with such a view, the aim of harm reduction policies is “to reduce the health, social, and economic costs of legal and illegal psychoactive drug use without necessarily reducing drug consumption” [emphasis in original].93

Alternative approaches to the regulation of sex work also place greater or lesser emphasis on moral wrongs as opposed to concrete harms. Like their drug policy counterparts, prohibitionist approaches view sex work primarily through the eyes of the criminal law. Prostitution, on these readings, is inherently wrong, and the purpose of criminal prohibitions is to eradicate the practice completely. Motivations behind prohibition differ. Conservative attitudes towards sex, often rooted in puritan religious beliefs, have frequently cast prostitution as sinful and reprehensible conduct.94 On this view, prostitutes and johns alike are to blame for engaging in promiscuous conduct that violates basic standards of morality. A different variant of prohibitionist approaches to sex work, called abolitionist, is linked with radical feminist beliefs.95 Abolitionists are not primarily concerned about sexual degeneracy and promiscuity, but about the misogynistic and exploitative character of prostitution. Prostitution, typically associated with males purchasing females for sex, commodifies and objectifies women at the hands of men. The gender asymmetry

92 See e.g. Richard Elliott et al, “Harm Reduction, HIV/AIDS, and the Human Rights Challenge to Global Drug Control Policy” (2005) 8:2 Health & Human Rights 104 at 116; and Andrew D Hathaway, “Shortcomings of Harm Reduction: Toward a Morally Invested Drug Reform Strategy” (2001) 12:2 Intl J Drug Policy 125 at 135. 93 This definition is taken from the website of Harm Reduction Journal, a peer-reviewed journal specializing in harm reduction published online: . The same definition is reproduced in Dan Small, “Canada’s Highest Court Unchains Injection Drug Users; Implications for Harm Reduction as Standard of Health Care” (2012) 9:34 Harm Reduction Journal, DOI: at 2, online: . 94 Annette Jolin, “On the Backs of Working Prostitutes: Feminist Theory and Prostitution Policy” (1994) 40:1 Crime & Delinquency 69 at 71-72. 95 See e.g. Melissa Farley, “Bad for the Body, Bad for the Heart: Prostitution Harms Women Even if Legalized or Decriminalized,” (2004) 10:10 Violence Against Women 1087; Andrea Dworkin, Pornography: Men Possessing Women (New York: Plume, 1989).

173 Chapter 3 – Section 7’s Culture of Argument and Community Understandings of these arrangements is representative of pervasive male oppression of women. Whether prostitutes are prepared to acknowledge it or not, they are exploited victims.96

Other approaches to sex work governance de-emphasize the morality of the practice and focus instead on the safety and well-being of sex workers. These increasingly prominent approaches may view sex work through the eyes of public health policy or labour rights.97 Though advocates of these models frequently acknowledge and condemn gender and social inequalities that cause women to turn to sex work, they reject the characterization of prostitution as morally wrong and of sex workers as victims. They seek to promote environments where sex work can be engaged in safely and productively. Whatever a person’s motivations for participating in sex work, that participation should not stand in the way of a person participating fully in her community and living a fulfilling, healthy life.

These kinds of approaches are antithetical to criminal law prohibitions. Granted, some harms associated with sex work may be inherent: for example, an increased risk violence or exposure to sexually transmitted diseases.98 However, these models tend to emphasize that criminal prohibitions cause and exacerbate many harms.99 Prohibitionist approaches stigmatize sex work and sex workers, contributing to anti-social attitudes towards them. They also drive practices of prostitution underground and towards shadowy spaces that are – literally and figuratively – out of public view.100 Advocates who focus on sex workers’ rights accordingly

96 Jolin, supra note 94 at 73-76. 97 Consider e.g. Michael L Rekart, “Sex Work Harm Reduction” (2005) 366:9503 Lancet 2123; Emily van der Meulen, “When Sex is Work: Organizing for Labour Rights and Protections” (2012) 69 Labour/Le Travail 147; and Teela Sanders, “‘It’s Just Acting’: Sex Workers’ Strategies for Capitalizing on Sexuality” (2005) 12:4 Gender, Work & Organization 319. 98 Rekart, supra note 97 at 2123. 99 See e.g. Teela Sanders & Rosie Campbell, “Designing Out Vulnerability, Building in Respect: Violence, Safety and Sex Work Policy” (2007) 58:1 British J Sociology 1 at 3-5. 100 A Campbell, supra note 63 at 40ff; see also generally Leonard Cler-Cunningham & Christine Christensen, Violence against Women in Vancouver’s Street Level Sex trade and the Police Response

174 Chapter 3 – Section 7’s Culture of Argument and Community Understandings suggest a variety of structural policies and individual strategies to destigmatize sex work, ensure better and safer working conditions for sex workers, and promote their agency more generally.101

These measures include, but are not limited to, decriminalizing sex work and related activities.

The historically dominant approach to the governance of sex work in Canada combined concerns with moral wrongs and concrete harms. That approach was rooted in the criminal law but was not fully prohibitionist in the sense described above; it criminalized and controlled only some activities relating to prostitution, treating them as public nuisances.102 Viewed through a nuisance lens, what the criminal law aims to suppress is not prostitution itself, but the offence to the community caused by its exposure to morally repugnant conduct. The legal attitude is one of grudging tolerance. Prostitution, although troublesome, was perceived to serve a social function, giving men a sexual outlet that preserved the chastity of a community’s respectable women.103 Or, since prostitution was a practice that could never be entirely eradicated, criminal prohibitions could at least be used to keep prostitution out of view, safeguarding the upstanding community from moral corruption. The popularity of this nuisance approach ebbed and flowed historically according to the relative influence of more militant perspectives,104 but it remained embedded within the legislation governing prostitution until the reform that followed the Supreme Court’s decision in Bedford.105

(Vancouver: Pace Society, 2001), online: . 101 Rekart, supra note 97 at 2125ff. 102 A Campbell, supra note 63 at 30-35; Canada, House of Commons, Standing Committee on Justice and Human Rights, The Challenge of Change: A Study of Canada’s Prostitution Laws (December, 2006) (Chair: Art Hanger) at 37. 103 Jolin, supra note 94 at 70-71. 104 Ibid at 71-72. 105 The criminal prohibition against “living on the avails” (s 212(1)(j)) does not fit exactly within a nuisance model, since it specifically targets the moral wrong of exploitation: R v Downey, [1992] 2 SCR 10 at 32-34. However, it is compatible with an overarching regulatory scheme whose attitude is one of grudging tolerance, since it makes no effort to suppress prostitution itself. Its only concern is with a supposedly incidental activity that the community deems morally objectionable.

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Competing views about physician-assisted suicide also place greater and lesser emphasis on supposed moral imperatives as opposed to concrete harms to individuals.106 Those who would maintain prohibitions on assisted suicide often cite the need to condemn the intentional taking of the life of another, as a way of expressing our society’s commitment to safeguard the intrinsic moral worth of human beings. On this view, every intentional killing is immoral because it degrades and devalues our respect for every human’s life, regardless of whether that killing is done consensually. It should be avoided unless absolutely necessary. Although the underlying foundations of these objections can be difficult to articulate – sometimes resting on religious but sometimes also secular worldviews – the objections themselves tend to be framed in moral terms.107

In contrast, criticism of the prohibition adopts a vocabulary that places greater emphasis on concrete harms to individuals.108 Granted, the ultimate ground for legalizing physician-assisted dying is generally understood to rest on the moral value of personal autonomy or liberty. In a

106 A third strand of debate relating to physician-assisted suicide, which is less relevant to my analysis, revolves around slippery slope, or “wedge” arguments. Critics who invoke these arguments are prepared to concede that physician-assisted suicide can be morally permissible in some circumstances. However, they simultaneously contend that allowing the practice in those permissible instances will inevitably lead – either conceptually, or over time as a matter of cause and effect – to impermissible instances of the practice.106 Slippery slope arguments fit uneasily in the harm/morality dichotomy described above. The slippery slope objection does not rest necessarily or purely on moral grounds. At the same time the harm said to flow from the legalization is speculative not concrete. For more on slippery slope arguments as they relate to physician-assisted suicide, see the still influential debate between Yale Kamisar and Glanville Williams: Yale Kamisar “Some Non-Religious Views Against Proposed ‘Mercy-Killing’ Legislation” (1958) 42:6 Minnesota L Rev 969; Glanville Williams, “‘Mercy-Killing’ Legislation – A Rejoinder” (1958) 43:1 Minnesota L Rev 1. More recently, these kinds of arguments were canvassed in Udo Schüklenk et al, “End-of-Life Decision-Making in Canada: The Report by the Royal Society of Canada Expert Panel on End-of-Life Decision-Making” (2011) 25:S1 Bioethics 1 at 48-50. 107 Schüklenk et al, supra note 106 at 44-45; See also Ronald Dworkin, Life’s Dominion: An Argument about Abortion, Euthanasia and Individual Freedom (New York: Alfred A Knopf, 1993) at 25-27. Dworkin argues that the cases for and against euthanasia both rest on ideas about the sacred or inviolable character of human life. He develops this argument in detail in chapters 7-8. 108 Patrik S Florencio & Robert H Keller, “End-of-Life Decision-Making: Rethinking the Principles of Fundamental Justice in the Context of Emerging Empirical Data” (1999) 7 Health LJ 233 at 234-235.

176 Chapter 3 – Section 7’s Culture of Argument and Community Understandings liberal constitutional democracy, the idea that persons should be able to decide for themselves about questions of fundamental personal importance, especially those involving their own bodies, borders on axiomatic. But the prohibition on physician-assisted dying – in contrast to the sometimes intangible quality of interferences with freedom of expression, religion, association or equality – is notable for causing direct personal harm.

That harm can assume different forms. It can be physical: the extended pain suffered by a person who wishes to die, or even the premature death of someone who elected to commit suicide earlier than she otherwise would have. It can also be psychological: the depression or loss of self- esteem suffered by persons who, due to their acute and advanced illness, can no longer take care of themselves. Or, it can arise from the paternalism of the law itself, when one is told, at a moment that holds tremendous, perhaps even ultimate, significance,109 that the end-of-life choice she would make is not open to her. Some of these harms are subjectively felt and their magnitude can be difficult to convey. But in all cases these harms are vivid and tangible.110

B. The Modern Conception’s Compatibility with Harm-Based Justifications

The terms of the legal contests in PHS, Bedford and Carter over the validity of justifications for government conduct reflected the competing governance frameworks described in the preceding section. In all three instances, the Supreme Court’s rendering of the factual context privileged harm-based justifications. As I now show, that portrayal is tellingly linked to the standard of rational justification described in Part III above. Empirically-provable harms caused or exacerbated by legal regulation weighed heavily in the Court’s analyses of arbitrariness, overbreadth and gross disproportionality.

109 Schüklenk et al, supra note 106 at 34. 110 Florencio & Keller, supra note 108 at 234-235.

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The discussion of the principles of fundamental justice in PHS is exemplary. The Court denies that the case requires it to endorse or select any particular approach to drug addiction policy.

Recognizing that reasonable people may disagree on how best to approach the complex problem of drug use and addiction, the Court goes out of its way to assert that “[i]t is for the relevant governments, not the Court, to make criminal and health policy.”111 It continues: “the issue before the Court…is not whether harm reduction or abstinence-based programmes are the best approach to resolving illegal drug use.”112 Yet, it is difficult for the Court’s reasoning in respect of the disproportionality of the Minister’s decision not to do implicitly what it disclaims, by favouring one contextual narrative about drug use rather than another. The Court’s conclusion in PHS that the Minister’s decision fails to comply with the principles of fundamental justice turns on its factual finding about how well a blanket prohibition on drug possession serves the ends of public health and safety, as compared to a policy that provides for an exemption for the harm reduction programme at Insite.113

Considering the modern approach’s orientation towards facts and a decontextualized rationalism, it is not surprising that the Court privileges harm-based justifications over moral ones.

As my historical review in Chapter 2 highlighted, constitutional courts have little interest in appearing to choose sides in controversial matters, such as the establishment of supervised injection sites. The fairness of substantive policies that encourage or limit harm reduction initiatives fall beyond traditional understandings of due process guarantees at common law, and judicial forays into these kinds of issues can invite charges of judicial activism and comparisons

111 PHS SCC, supra note 2 at para 105. 112 Ibid at para 105. 113 Ibid at paras 131, 133.

178 Chapter 3 – Section 7’s Culture of Argument and Community Understandings with Lochnerism, as Chaoulli did.114 Moreover, in a plural society, the Court is understandably reluctant to wade into moral, political, and philosophical controversies that are difficult to separate from religious and metaphysical claims about what it means to live a good life – even when those controversies are debated in secular terms. But decide the Court must. And when it does decide, the Court’s judgment of what is instrumentally rational not only reflects its approach to how “we” ought to decide. It also expresses the values it perceives as fundamental to “our” community.

If the Court’s judgment in PHS emphasizes an approach to drug use governance that focuses on objective, physical harms rather than moral ones, that result points to a complementarity between such an approach and the modern culture of argument’s epistemological commitments to empiricism and decontextualized rationalism. The benefits of harm reduction strategies in the

Downtown Eastside are decisive because they can be easily expressed in terms that match the rhetorical resources characteristic of the modern approach to fundamental justice. The public health lens through which the Court in PHS views drug use, inspired by harm reduction approaches, lends itself to constitutional evaluation using a means-ends rationality framework centred on the effects of government policy.

The Court’s decision-making approach to fundamental justice under section 7 and the public health approach to drug use premised on harm reduction rest on similar foundations. The effectiveness of harm reduction approaches to drug use are validated empirically; the fundamental justice of the Minister’s decision to withhold the exemption for Insite is assessed having regard to the soundness of its evidentiary basis. Measurable medical outcomes determine what treatment a doctor should recommend for the health of his patient; measurable social scientific outcomes

114 Sujit Choudry, “Worse than Lochner?” in Colleen Flood, Kent Roach & Lorne Sossin, eds, Access to Care, Access to Justice: The Legal Debate Over Private Health Insurance in Canada (Toronto: University of Toronto Press, 2005) 75.

179 Chapter 3 – Section 7’s Culture of Argument and Community Understandings determine what means the government should rely on to safeguard the welfare of its citizens. The

Court relies on an empirically-based, objectively rational and morally agnostic approach to fundamental justice to vindicate an approach to the governance of drug use that is also portrayed as empirically-based, objectively rational and morally agnostic.115 In the process, the Court curtails the use of the criminal law to express collective moral disapproval, a use that it endorsed in the early period of fundamental justice jurisprudence.116

As it is for drug use, so it is for prohibitionist approaches to sex work and physician-assisted suicide. The epistemological commitments characteristic of section 7’s modern approach give precedence to arguments that rely on a language of measurable, individual harms. In Bedford, fears and doubts about harms to the community writ large, the moral victimization of prostitutes or the commodification of sex, gain little traction. In Carter, justifications for criminal law prohibition founded on the purported moral imperative to preserve human life, or speculative slippery slope arguments, are easily dismissed as unpersuasive. There are benefits to such an approach: by focusing on objective harms, constitutional adjudication can lower the temperature of heated public debates by separating legal disputes from foundational moral claims.117 However, such an approach comes with costs.

115 In pointing out this compatibility in the case of PHS, it is important to acknowledge that not all harm reduction approaches to drug use are morally agnostic, nor do they all privilege a medical and scientific outlook. In fact, as I noted in foonote 91 supra, and as I discuss further in Part V below, such an approach is deeply contested within the field of harm reduction. Many harm reduction advocates connect drug use with human rights, and aim to portray it as a morally justified choice. Consider Hathaway, supra note 92. Others maintain that harm reduction’s benefits are connected to its value neutrality: Helen Keane, “Critiques of Harm Reduction, Morality and the Promise of Human Rights” (2003) 14:3 Intl J Drug Policy 227 at 232. 116 Malmo-Levine, supra note 71 at para 136: “In particular, criminalization seeks to take marihuana out of the hands of users and potential users, so as to prevent the associated harm and to eliminate the market for traffickers. In light of these findings of fact it cannot be said that the prohibition on marihuana possession is arbitrary or irrational, although the wisdom of the prohibition and its related penalties is always open to reconsideration by Parliament itself.” 117 See generally Benjamin L Berger, “The Virtues of Law in the Politics of Religious Freedom” (2014) 29:3 JL & Religion 378. See also Cass R Sunstein, “Incompletely Theorized Agreements” (1995) 108:7

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The modern approach to the principles of fundamental justice not only pulls judicial reasoning away from questions about the significance a political community ought to place upon intangible norms – for instance, the preservation of human life, the promotion of non-exploitative gender roles, or the non-commodification of the human body. More to my present point, it also devalues those types of normative considerations.118 As a result, attempts to act in the public interest out of a sense of moral justice might well fall prey to section 7’s modern culture of argument.

When it comes to the decisional implications of what matters to “us”, the Chaoulli case is a good counter-example to PHS, Bedford and Carter. It shows that the modern approach’s emphasis on empirical evidence, decontextualized rationalism and objective indicia of individual harm – an approach that emerged in large part from the majority decision – can have impacts whose direction may be unpredictable. In Chaoulli, the intangible moral value that found little purchase within section 7’s modern culture of argument is close to basic ideas about the meaning of justice: that scarce resources should be distributed according to need. Because of this, whereas

PHS, Bedford and Carter seem to further the inclusion of drug users, sex workers and people suffering debilitating illnesses, the judgment in Chaoulli exhibits little concern for the plight of poor and marginalized persons of the community. It safeguards the interests of a class of persons who could afford to purchase private medical insurance.

Harv L Rev 1733 at 1748. For other advantages of fact-based adjudication, see Suzanne B Goldberg, “Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication” (2006) 106:8 Columbia Law Review 1955 at 1994-2003. 118 That is not to say that moral concerns about the public good should always be given greater weight. In some of the case studies under review, the justifications advanced by the government bordered on the disingenuous. The argument in Bedford SCC, supra note 3, for instance, that the criminal prohibitions were intended to protect women, was dubious. Likewise, the government’s intransigence dealing with Insite’s request to renew its exemption to the CDSA suggested the possibility of bad faith: PHS SCC, supra note 2. However, regardless of the strength of those arguments, the point is that section 7’s modern culture of argument has difficulty addressing them meaningfully.

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To summarize, by emphasizing the importance of empirical evidence and decontextualized rationalism, the modern approach to section 7 adjudication tends to privilege views of what matters to “us” that are focused on measurable individual harms, rather than less tangible collective ones.

In the next part, I will discuss how the values and interests favoured by section 7’s modern culture of argument in turn constitutes the limits of community membership in the way Lindahl describes.

V. COMMUNITY MEMBERSHIP: WHO COUNTS?

This part examines the third and final facet of collective identity implicated in section 7’s culture of argument: who counts as a member of “our” community. My discussion builds on my analysis in the previous two parts. I show that the constitutional judgments in all three cases includes some and excludes others in a way that reflects the epistemological and substantive commitments of section 7’s culture of argument. In Lindahl’s terms, the adjudication of disputes in PHS, Bedford and Carter posits not only what interest is held in common by the community but also “who has a stake in that interest, that is, who is a member of the community.”119

To make my argument, I engage in two readings of the judgments in the case studies under review. In the first place, I highlight the ways in which those extend the limits of “our” community to include previously marginalized persons, namely drug users, sex workers and people suffering from debilitating illnesses. In the second place, I complicate that narrative by showing how the judgments in the three cases simultaneously include and exclude, even as section 7’s culture of argument partly conceals the justice implications of alternative understandings of community.

119 Lindahl, “Paradox”, supra note 5 at 497-498; see also 503.

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A. Extending the Limits of Community

In all three cases, the vindication of claims of members of marginalized groups – intravenous drug users, sex workers and to a lesser extent, people suffering from debilitating illnesses – draws attention to the relationship between understandings of community membership and judgments about what is justified. As discussed previously, criminal prohibitions against drug use, sex work and euthanasia are frequently underpinned by narratives that identify the targeted conduct as immoral, offensive to the community or both.120 Those prohibitions underscore the government’s commitment to exclude certain practices and interests from those of “our” community and sends a message of stigmatization to those who would engage in those practices or have an interest in them. Viewed through the lens of Lindahl’s theoretical work, the criminal prohibitions instantiate boundaries about who and does and does not belong in “our” community, thereby constituting collective identity.

Conversely, the judgments in PHS, Bedford and Carter refuse to sanction those established boundaries, widening the circle of persons whose interests are co-extensive with our community’s.

Drug addicts who use Insite, sex workers, sick people who wish to obtain assistance in dying: these are members of the community deserving of concern, respect and compassion, rather than stigma, and they ought to be accounted for meaningfully in public decision-making. In other words, the judgments re-constitute the limits of community, heralding a new understanding of who counts in our “we”.

The significance of these new understanding of collective identity are particularly evident when contrasted with the portrayals of “our” community that emerge from the arguments of parties who sought to uphold the criminal prohibitions. In Bedford, for instance, the federal government’s

120 A Campbell, supra note 63 at 36; Manderson, “Symbolism” supra note 64 at 182, 185.

183 Chapter 3 – Section 7’s Culture of Argument and Community Understandings appellant’s factum uses the language of community to exclude sex workers and their interests from its understanding of collective identity. The factum repeatedly references the “harms to communities” or “harms visited upon communities” caused by prostitution to justify the criminal prohibitions.121 These community harms are juxtaposed to and implicitly distinguished from harms to prostitutes, which are deemed irrelevant.122 On this view, violence suffered by sex workers, sometimes resulting in death, is not intrinsically a matter of public concern. This repudiation of prostitutes plays on the trope of community discussed above that predominates in the public nuisance approach to sex work.123

In PHS, meanwhile, the federal government’s appeal to community is subtler but no less exclusionary. The federal government’s factum instantiates the boundaries of community by framing the analysis of overbreadth and gross disproportionality around the interests of “all

Canadians.”124 “All Canadians” may sound encompassing, since it stresses the priority of the whole over any single constituency and is invoked in the name of preventing “harm and protecting vulnerable groups.”125 However, it is a vision of community that limits who counts as a member.

“All Canadians” conjures an image of a mass of “normal” people that is implicitly contrasted to

121 Bedford SCC, supra note 3 (Appellant’s Factum of the Attorney General of Canada at paras 17-24). These appeals would presage the language of the Protection of Communities and Exploited Persons Act, supra note 62. The description of these types of public good considerations in the language of “harms” by some litigants reflects the privileged status of harm-based approaches within section 7’s culture of argument, and also suggests the harm principle’s so-called “collapse”: Bernard Harcourt, “The Collapse of the Harm Principle” (1999) 90:1 J Crim L & Criminology 109. 122 See e.g. Bedford SCC, supra note 3 (Appellant’s Factum of the Attorney General of Canada at paras 24, 26, 36, 87). 123 It also recalls the nostalgic, romantic vision of communities that Roger Cotterrell has sought to undo: Přibáň, supra note 10 at 98-99. 124 See e.g. PHS SCC, supra note 2 (Appellants’ Factum of the Attorney General of Canada and the Minister of Health of Canada at para 113). This frame picks up on the dissenting opinion of Smith JA of the BCCA: PHS Community Services Society v Canada (Attorney General), 2010 BCCA 15, 314 DLR (4th) 209 at paras 287 and 303. 125 PHS SCC, supra note 2 (Appellants’ Factum of the Attorney General of Canada and the Minister of Health of Canada at para 117).

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“abnormal” drug users,126 serving to justify state action that would deprive them of the full benefits of community membership.

In Carter, the differences between the parties’ understandings of collective identity are less stark but still present. For the claimants, and ultimately for the Court, the prohibition on assisted dying unacceptably deprives people such as Gloria Taylor and Lee Carter of their agency, and ultimately their ability to enjoy the full benefits of community membership. The paradigmatic community member, on this view, is the competent, well-informed, and independent decision- maker whose choice to end her life is unjustly constrained. For the Attorney General of Canada, however, the pain and harm this deprivation of agency causes to some community members is justified because of the enhanced protection the prohibition provides to others in the community who are allegedly vulnerable. The analytical focus is shifted. Viewed through the lens of community membership, the constitutional disagreement over end-of-life decision-making can be traced to a disagreement about whose interests ought to be identified most closely with those of the collective as a whole – about who counts in “our” community.

B. Inclusion, Exclusion and Contingent Understandings of Community

Because the visions of community membership at issue in Carter are nuanced, the case helps to prepare the descriptive argument I emphasize in this section: that every constitutional judgment declaring that some conduct is rationally justified rests on a judicial understanding about the appropriate limits of community membership. As I now describe, sometimes judgments push the limits outwards as they seem to do in PHS and Bedford; at other times they pull them inwards.

In other instances, as in Carter, a straight line might be erased, or one jagged line substituted for

126 This normal/abnormal binary has been critiqued as an aspect of harm reduction approaches to drug use that privilege an epidemiological, public health model: Peter G Miller, “A Critical Review of the Harm Minimization Ideology in Australia” (2001) 11:2 Critical Public Health 167 at 170, 174.

185 Chapter 3 – Section 7’s Culture of Argument and Community Understandings another, leaving some community members on the outside looking in and others on the inside looking out. But in every case, the limits of community sanctioned in constitutional judgments simultaneously exclude and include, and how they do so is partly contingent. That is, the boundaries of community membership associated with judgments of rational justification are not compelled by the norms of the legal system, nor can they be objectively verified. A second look at all the constitutional result and discursive content of all three judgments shows how the modern approach to the principles of fundamental justice partly fills this gap, participating in the process of limit-setting that constitutes particular understandings of community.

When it comes to the judgment in PHS, the analytical frame used by the Court to assess the constitutionality of government action reveals the contingency of community limits. That distinctive frame flows partly from the modern culture of argument’s approach to how “we” decide and what “we” value. In particular, the Court’s analysis zeroes in on the plight of drug addicts as opposed to people who use drugs more generally.127 In addition, the Court focuses on the

Minister’s discretionary decision not to renew the exemption for Insite, as opposed to the effects of the CDSA more broadly – even though the constitutional challenge had been formulated and argued in relation to the latter. Both of these aspects of the analytical frame are compatible with the modern culture of argument’s purported value-neutrality, and its emphasis on empirical evidence and tangible physical harms.

127 PHS SCC, supra note 2 at paras 154-155; see in contrast PHS SCC, supra note 2 (Factum of the Respondent/Cross-Appellant VANDU at paras 35ff) and PHS SCC, supra note 2 (Factum of the Intervener the British Columbia Civil Liberties Association (BCCLA) at paras 18ff). Both VANDU and the BCCLA attack the constitutionality of the CDSA on the basis that it trenches on the liberty and security interests of all drug users in Canada threatened with criminal prosecution. On their analysis, the relevant interests for constitutional purposes relate to the threat of imprisonment for drug possession itself, not the government’s omission to make health care services at Insite available legally.

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The Court’s combined focus on drug addiction and the ministerial exemption means that its embrace of drug users is limited in terms of their identity, location and activity. First, inclusion for intravenous drug users comes at the cost of a sick identity. As the Supreme Court says, reproducing a conclusion of the trial judge, “[a]ddiction is an illness.”128 This sick identity is a premise accepted not only by the courts, but by virtually all participating litigants.129 Pursuant to section 7’s modern culture of argument, and consistent with a medical lens of disease and impaired autonomy, drug users are protected from the reach of the criminal law in their capacity as ill patients. Drug users who are not deemed addicts continue to be exposed to the threat of incarceration and denied opportunities to consume drugs safely, whether they reside within Insite’s immediate catchment areas in the Downtown Eastside or not.

This judicial understanding of “who counts” stands in sharp contrast to the one contemplated by more radical variants harm of reduction that seek to defend the decision to consume drugs as a valid moral choice.130 Such approaches, which seek to improve the health and well-being of users by overturning the depiction of drug use as inherently wrong or harmful, are consistent with a much more robust form of inclusion for drugs users in the political community.131

128 PHS SCC, supra note 2 at para 27; PHS BCSC, supra note 68 at para 87. 129 The Attorney General of Canada is the only litigant that seeks to impute some level of agency to those drug users, albeit in an effort to justify their criminalization. 130 Some of these variants assert that drug use is a human right. Given the rights inflation associated with the theory and practice of proportionality-based rights review, which tends to encourage very broad readings of personal autonomy, such a formulation is hardly inconceivable. See e.g. Kai Möller, Proportionality and Rights Inflation” in Huscroft et al, eds, supra note 44, 155 at 155, 157-159. In Malmo-Levine, supra note 71, an argument linking the use of marijuana with a more general claim to personal autonomy in virtue of section 7 of the Charter was advanced but rejected by a majority of the Court. The court ruled that there “is no free-standing constitutional right to smoke ‘pot’ for recreational purposes.” See paras 84-87 (ibid). 131 For variants on this view, see e.g. Hathaway, supra note 92; Andrew D Hathaway & Kirk I Tousaw, “Harm Reduction Headway and Continuing Resistance: Insights from Safe Injection in the City of Vancouver” (2008) 19:1 Intl J Drug Policy 11; ER Albert, supra note 91.

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However, because those arguments sound in a moral register, they would be harder to reconcile with section 7’s modern culture of argument.

Even for addicts, inclusion is limited geographically, and is dependent on their decision to engage in some activities as opposed to others. Because of the judicial focus on the Ministerial exemption, which relates specifically to the availability of health services at Insite, the only drug addicts that benefit from the protection of the judgment are those that can and do visit the supervised injection site. Drug addicts achieve a measure of dignity and win recognition within the community by submitting themselves to medicalization, by seeking treatment. But to be able to do so, they must live close to Insite and choose to consume their drugs there. Sick addicts who live elsewhere in Canada, or who make efforts to inject drugs safely other than on Insite’s premises, remain in a precarious position, excluded from the benefits of full membership in “our” community. This state of affairs is ironic. Although the unconstitutionality of the Minister’s decision is premised on addicts not having agency, to benefit from the constitutional judgment addicts must exercise agency – by presenting themselves at Insite to consume drugs. Drug addicts may be pathologized by section 7’s culture of argument, but that pathologization is selective.

Outside of Insite, drug users continue to be marginalized.132

My objective in pointing out these limitations is not to suggest that the Court in PHS ought to have reached a different result. The Court’s judgment is a meaningful if partial step towards the inclusion of drug users in the political community – even if section 7’s culture of argument leads to a view of drugs users as objects rather than subjects of public health discourse.133 But whatever

132 Drug users that frequent Insite also remain subject to criminalization in other parts of their life. Since Insite does not supply drugs, users must violate criminal prohibitions to purchase and transport their drugs to the supervised injection site. 133 On the perils associated with a pure public health approach to harm reduction, see generally Hathaway, supra note 92 and Miller, supra note 126 at 172-175.

188 Chapter 3 – Section 7’s Culture of Argument and Community Understandings one thinks of the degree of the inclusion achieved, my primary purpose is to show that section 7 judgments about what is rationally justified always include and exclude at the same time, and how courts constitute the limits of community membership is not itself compelled by legal rules, rationality or empirical proof. Rather, courts delineate community in light of the practices and commitments characteristic of section 7’s modern culture of argument. In the case of PHS, the understanding of community that emerges from the constitutional judgment is coloured by commitments to empirical evidence and decontextualized rationalism, and the associated emphasis on tangible harms to individuals. In Lindahl’s terms, by helping to shape those interests that are

“our” own, section 7’s culture of argument also posits who counts as a member of our community.

In Carter, the extent of the constitutional inconsistency described in the Court’s declaration of invalidity underscores the contingent understanding of community limits, as well as the impact of section 7’s culture of argument on how those limits are drawn. Indeed, the Court in Carter elects to set out what it called “constitutional parameters”134 to guide parliamentary attempts to fashion a remedy for the constitutional breach. This is a distinctive feature of Carter as compared to the other case studies,135 though it is consistent with an overall tendency for contemporary courts to provide relatively detailed advice to legislative drafters when adjudicating constitutional rights cases using proportionality review.136 The Court specifies that the prohibition is void insofar as it applies to “a competent adult person who…clearly consents to the termination of life; and…has a grievous and irremediable medical condition (including an illness, disease or disability) that causes

134 Carter SCC, supra note 4 at para 126. 135 In PHS SCC, supra note 2, the Court’s focus on the ministerial exercise of discretion obviated any need to further specify the extent of the conflict with the principles of fundamental justice, and the Court in Bedford laid low the impugned provisions in their entirety without suggesting explicitly how the constitutional infirmities might be resolved: Bedford SCC, supra note 3 at para 164. 136 Robert Leckey, Bills of Rights in the Common Law (Cambridge, UK: Cambridge University Press, 2015) at 109-115.

189 Chapter 3 – Section 7’s Culture of Argument and Community Understandings enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”137 The Court’s choice to offer such specific remedial guidance gives a clear indication of the kinds of community members the Court’s judgment is intended to vindicate. It does so by singling out what characteristics make people relevantly “like Ms. Taylor”138 – and by implication what persons are entitled to received assistance from a physician to commit suicide.

Such remedial guidance also highlights the influence of section 7’s culture of argument on the judicial understanding of who counts in our community.139 The so-called constitutional parameters set by the Court closely mirror the findings of social and legislative fact that were determined by reference to expert ethical opinion. Though the Court insists that the scope of its declaration is merely intended to respond to the circumstances of the case, it might have elected to describe the extent of the constitutional inconsistency differently or not at all, as the Court’s judgments in PHS and Bedford highlight. For instance, the Court specifies that the prohibition is inconsistent as it applies to competent adults, not minors, but pointedly does not limit its declaration to those people having a terminal illness – even though Ms. Taylor was terminally ill.140 In short, whether the factual circumstances of the case determine the criteria endorsed by the

Court is debatable.

137 Carter SCC, supra note 4 at para 127 [emphasis added]. 138 Ibid at para 126. 139 The exercise of the Court’s discretion in Bedford SCC, supra note 3, and Carter SCC, supra note 4, to suspend the declarations of invalidity temporarily could also be insightfully assessed from the perspective of “who counts” as a member of the community, though that will not be my focus here. By suspending its declaration, the Court effectively allows persons who engage in constitutionally-permitted activities to continue to be the targets of criminal prosecutions, which hardly corresponds to full enjoyment of the rights and privileges of citizenship. Robert Leckey has drawn attention to the significance of exercises of remedial discretion in constitutional rights adjudication, which have often been overlooked by legal scholars. See generally Leckey, supra note 135. 140 The judgment of the Supreme Court does not specify whether Kay Carter, whose daughter and son-in- law joined the constitutional challenge after helping Ms. Carter to commit suicide, was herself terminally ill while suffering from spinal stenosis.

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However, those criteria do reflect the consensus of expert physicians and ethicists about the circumstances in which physician-assisted suicide would be ethical.141 Early on in its opinion, the Supreme Court paraphrases the findings of the trial judge on the ethics of assisted-dying:

“while there is no clear societal consensus on physician-assisted dying, there is a strong consensus that it would only be ethical with respect to voluntary adults who are competent, informed, grievously and irremediably ill, and where the assistance is ‘clearly consistent with the patient’s wishes and best interests, and [provided] in order to relieve suffering’.”142 As it turns out, in keeping with the modern culture of argument’s tendency to merge normative and empirical questions, the Court’s declaration of invalidity delineates the limits of community membership in a way that tracks this expert consensus. The constitutional parameters set by the court are accordingly a reflection of the interests and values privileged by section 7’s culture of argument, which are in turn linked to assumptions internal to that culture about how questions of good justification ought to be decided.

The effect of section 7’s modern culture of argument on the delineation of community is also evident in Bedford, though perhaps less so than in PHS and Carter. Though the Court strikes down the criminal prohibitions in their entirety, its judgment is notable for subscribing to an atomized understanding of who counts in “our” community. Consistent with the modern approach’s emphasis on empirical evidence and physical harms, the Court examines the rationality of means-ends relationships by considering the plight of community members at an individual level,143 and resists arguments that associate characteristics with entire social groups.

141 Carter SCC, supra note 4 at paras 23-24; see also Carter BCSC, supra note 75 at para 358. 142 Carter SCC, supra note 4 at para 24. 143 Hamish Stewart, “Bedford and the Structure of Section 7” (2015) 60:3 McGill LJ at 575 at 592-593.

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In contrast to litigants and interveners that relied on across the board generalizations about sex workers as a class,144 or a subset thereof,145 the Court in Bedford adopts a fine-grained approach to assessments of instrumental rationality that is sensitive to the differential circumstances of sex workers, some of whom may be exploited and victimized, and others who may not.146 The Court’s view is reminiscent of the post-modern feminist approach to sex work referenced in the Simone de Beauvoir Institute’s factum, which does not automatically associate prostitution with violence, victimhood, or coercion: “[l]a présence de violence, d’exploitation ou d’abus dépend de circonstances particulières qu’il ne faut pas généraliser.”147

Consistent with that approach, different representations of sex workers, or combinations thereof, feature more or less prominently in the Court’s reasons depending on what provision it is analyzing, and these representations sometimes clash.148 Concentrating on the bawdy-house provisions, the Court emphasizes the plight of a street sex worker seeking to take advantage of a temporary indoor shelter.149 Turning its attention to the living on the avails provision, the Court evokes the image of an autonomous entrepreneur keen to enhance her working conditions and profitability by hiring drivers, bodyguards, receptionists and accountants.150 When it comes to the communicating provision, the Court reverts to the perspective of marginalized street prostitutes,

144 Consider e.g. Bedford SCC, supra note 3 (Respondent’s Factum on Cross-Appeal of the Attorney General of Ontario at 3) or Bedford SCC, supra note 3 (Factum of the Intervener Women’s Coalition for the Abolition of Prostitution at para 19). 145 Consider e.g. Bedford SCC, supra note 3 (Factum of the Intervener Aboriginal Legal Services of Toronto, Inc; Bedford SCC, supra note 3 (Factum the Intervener Asian Women for Ending Prostitution); and Bedford SCC, supra note 3 (Factum of the Interveners Canadian HIV/AIDS Legal Network, the BC Centre for Excellence in HIV/AIDS, and the HIV/AIDS Legal Clinic Ontario). 146 Bedford SCC, supra note 3 at para 86. 147 Bedford SCC, supra note 3 (Factum of the Intervener Institut Simone De Beauvoir at para 35). 148 The fact that sex work itself is not illegal may also help to explain to why the Court adopts this context-specific analysis. 149 Bedford SCC, supra note 3 at para 136. See also para 64. 150 Ibid at paras 66, 142.

192 Chapter 3 – Section 7’s Culture of Argument and Community Understandings evoking by association with Robert Pickton the risks faced by survival sex trade workers in the

151 Downtown Eastside.

The Court’s resistance to generalizations about sex workers in Bedford is laudable. That approach allows it to acknowledge that sex workers’ choices are constrained, but still insist that their choices ought to be respected, and that their interests matter for public decision-making, regardless of the neighbourhood in which they work, their willingness to engage in risky forms of behaviour, or their decision to do so in certain ways and places as opposed to others.

Be that as it may, the approach’s focus on individuals and the tangible, physical harms they suffer – once again a by-product of section 7’s culture of argument – in its own way reinforces the link between constitutional judgments about what is justified and contingent perceptions of who counts. That is because the inadequacy of the justifications advanced in support of the criminal prohibitions are repeatedly exposed by considering the prohibitions’ detrimental effects on paradigmatic figures of sex workers who might be harmed by the prohibitions. This approach recalls the use of reasonable hypotheticals to test the foreseeable reach of a law subject to constitutional challenge, as the Supreme Court discussed in the case of a section 12 challenge to mandatory minimum sentences.152 As such, the test of constitutionality depends upon the ability of the parties, litigants and judges to imagine reasonable hypothetical community members in relation to whom the challenged law is instrumentally irrational. What hypothetical persons are within the contemplation of the Court, and what hypotheticals are deemed reasonable, reflect judicial perceptions about the appropriate limits of community membership. ef

151 Ibid at para 158. See also paras 69-71, 159. 152 For a discussion of this approach, see R v Nur, 2015 SCC 15, [2015] 1 SCR 773 at paras 47ff.

193 Chapter 3 – Section 7’s Culture of Argument and Community Understandings

What then should be taken away from these alternative pictures of community limits in

PHS, Bedford and Carter, some of which were integrated into the Court’s reasoning and others not? The modern culture of argument’s tendency to collapse empirical and normative questions, and its associated tendency to focus on measurable, physical harms to individuals, rather than intangible moral goods, had different consequences on judicial perceptions of who counts in each case. In PHS, the Court’s judgment of unconstitutionality was largely premised on the attribution of a sick identity to the drug users frequenting Insite. In Carter, the scope of the declaration of invalidity vindicated the position of persons who were ostensibly in the same factual circumstances as the claimants, but also reflected the expert evidence tendered at trial. In Bedford, meanwhile, the Court was relatively circumspect when it came to attributing group characteristics to sex workers, focusing separately on specific depictions. These differences indicate that questions of community membership are discursively resolved and may vary from case to case according to the circumstances. Despite these differences, the existence of empirical evidence showing physical harm suffered by some subset of individuals tends to influence the judicial understandings of “who counts” in our community.

VI. CONCLUSION

The case studies as a whole reveal the myriad ways in which section 7’s modern culture of argument interacts with different understandings of community. One of my principal aims in this chapter has been to show that the Supreme Court of Canada’s fundamental justice judgments and its perceptions of community are mutually constituting. On the one hand, the Court’s assessment of what is justified depends on, and is expressive of, its understanding of “our” community.

Drawing on the work of Hans Lindahl, and a close reading of the narrative of “our basic values” that the Court relied on in Bedford, I showed how the essential relationship between constitutional adjudication and collective identity is reinforced in the case of section 7 judgments.

194 Chapter 3 – Section 7’s Culture of Argument and Community Understandings

On the other hand, the relevant features of “our” community that inform judgments about the arbitrariness, overbreadth or gross disproportionality are not determined by the norms of the legal system, nor can they be objectively verified by an empirical inquiry. The Court’s understandings of “our” community – how “we” decide, what “we” value, and whose interests and viewpoints count as “our” own – are filtered through the approach to good justification that is distinctive of section 7’s modern culture of argument. The case studies suggest that courts tend to judge what is justified, and imagine “our” community, by merging normative questions with empirical ones, and emphasizing the importance of physical, individual harms, as opposed to collective, moral ones. These epistemological and ontological commitments in turn shape perceptions about the persons whose interests ought to be identified with those of the community as a whole.

In other words, the different facets of community self-understanding combine to inform section 7 judgments about what is rationally justified, while section 7’s commitment to rational justification structures and manages the judicial understandings of community that animate its judgments. The result is a dialectic and recursive interaction between modern fundamental justice judgments and judicial understandings of who “we” are.

A subsidiary objective of this chapter was to begin to draw out some normative implications of these findings, which I will address in more detail in the fourth and final chapter of this thesis. For one thing, the Court’s commitment to the component standards of proportionality as principles of fundamental justice seems to underdetermine constitutional outcomes. Without more, the Court’s description of those principles – as representative of “our basic values” and capturing failures of instrumental rationality – does not explain or articulate the distinctive features

195 Chapter 3 – Section 7’s Culture of Argument and Community Understandings of section 7’s culture of argument that allow courts to distinguish between justifications that are persuasive and those that are not.

Another unsatisfying aspect of section 7’s modern culture of argument is its tendency to create in-groups and out-groups without necessarily appearing to do so. Questions of rational justification are embedded in questions about who “we” are as a community. However, the distinctive features of section 7’s modern culture of argument – its emphasis on decontextualized rationalism and empirical evidence, its compatibility with justifications that focus on individual, tangible harms, and its reluctance to engage in openly moral reasoning – tend to normalize the understandings of community that are expressed through, and which underpin, judgments about the principles of fundamental justice. In short, section 7’s culture of argument not only constitutes

“our” community in its image; it also perpetuates a form of blindness to the way in which it does so. The modern culture of argument thus discourages jurists from considering how the limits of community affect the justice of constitutional outcomes, and how those limits might be differently understood.

196 CHAPTER 4

DOING JUSTICE TO “OUR” COMMUNITY: TRACES OF AESTHETIC JUDGMENT IN SECTION 7

This chapter suggests a novel way of understanding the requirement of good justification associated with the modern approach to the principles of fundamental justice referenced in section

7 of the Canadian Charter of Rights and Freedoms.1 I noted in the conclusion to the last chapter that the observed priority given to certain kinds of reasons in section 7’s modern culture of argument, which goes hand in hand with certain understandings of who “we” are, gives rise to a set of problems. Those problems form the starting point for my analysis here.

As discussed in Chapter 1, agreement about the importance of substantive justification for proportionality review conceals disagreement about the possible scope and nature of justifications for limits on constitutional rights. Against this backdrop, the modern association of the principles of fundamental justice with an abstract requirement of instrumental rationality, which I described in Chapter 2, partly insulates section 7 adjudication from charges of illegitimacy. It does so by avoiding openly moral appeals to substantive community values. Yet, that association is not without costs: it offers relatively little guidance about how to identify persuasive justifications in a context where different plausible understandings of justice and community co-exist. The distinctive features of section 7’s culture of argument described in Chapter 3 begin to look like judicial preference, leaving section 7 adjudication once again vulnerable to allegations of subjectivity, arbitrariness and illegitimacy.

As I show in this chapter, in the source of this problem also paradoxically lies its solution.

The argumentative culture that helps judges to separate persuasive from unpersuasive justifications

1 Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 7 [Charter]. Chapter 4 – Traces of Aesthetic Judgment in Section 7 and shapes the resolution of section 7 cases may have emerged from the contingent forces of political history, constitutional doctrine, and ad hoc responses to legal disagreements. But that contingency gives rise to an appearance of arbitrariness in section 7 adjudication only because of judicial efforts to deny that cultural forces are normatively important. It is vital to recognize not only that cultural features of concrete communities give meaning to norms of justification, but also that they ought to do so. Greater candour about the contingent community foundations of section

7 judgments – about how “we” decide, what “we” value, and who counts as a member of “our” community – would mean that courts and critics could more readily examine and justify or critique those foundations. They could then respond more thoughtfully to the challenges that plural understandings of justice and community pose to constitutional adjudication.

To make that argument, my focus in the present chapter shifts from justification to judgment: the activity of deciding whether proposed justifications are persuasive enough to avoid labelling government action as “arbitrary”, “overbroad” or “grossly disproportionate”. In other words, I concentrate on the activity of judging whether rights limitations conform to the principles of fundamental justice, rather than the content of judicial reasons that support those conclusions.

The key to my argument lies in the theoretical approach I use to examine judgments involving section 7’s principles of fundamental justice, which I describe as aesthetic. I argue that the judging activity at the core of section 7, and potentially other settings that rely on the principle of proportionality, shares key features with Hannah Arendt’s understanding of judgment. Arendt’s work, which links judgment to an aesthetic sense of taste, helps to make sense of the relationship between judgment, community and section 7’s modern culture of argument. An understanding of fundamental justice judgments that recognizes their aesthetic features can bolster their claim to

198 Chapter 4 – Traces of Aesthetic Judgment in Section 7 validity, though that validity is different from the objective rationality that section 7’s modern culture of argument seems to reach for.

My argument is divided into three parts. Part I introduces and describes Arendt’s account of judgment and justifies its relevance to judicial decision-making. Part II undertakes an aesthetic reading of judgments about the principles of fundamental justice, explaining how key features of

Arendt’s account of judgment map onto constitutional adjudication in section 7. Part III addresses the normative implications of my proposed reading.

I. ARENDT, JUDGMENT AND ADJUDICATION

A. Arendt’s Account of Judgment

1. Background and Context

Hannah Arendt’s body of work contains a rich but disparate set of reflections about judgment that emphasize its aesthetic qualities. Her reflections alternate between perspectives often considered in tension with one another.2 The first perspective is linked primarily to two early essays entitled “The Crisis in Culture” and “Truth and Politics” gathered in Between Past and

Future.3 These essays examine judgment through the lens of the vita activa – the life of practical politics. Arendt is here primarily concerned with forward-looking judgments that allow a citizen to guide her conduct in the public world, to determine how she should act.4

2 Maurizio Passerin d’Entrèves, “Hannah Arendt” in The Stanford Encyclopedia of Philosophy, Summer 2018 ed by Edward N Zalta, online: [d’Entrèves, “Arendt SEP”] at § 5.1; Ronald Beiner, “Hannah Arendt on Judging” in Hannah Arendt, Lectures on Kant’s Political Philosophy, ed by Ronald Beiner (Chicago: University of Chicago Press, 1992) 89 [Beiner, “Arendt on Judging”] at 92-93; Richard J Bernstein, “Judging – the Actor and Spectator” in Richard J Bernstein, Philosophical Profiles: Essays in a Pragmatic Mode (Philadelphia: University of Pennsylvania Press, 1986) 221 at 221, 234, 237. 3 Hannah Arendt, Between Past and Future: Eight Exercises in Political Thought, intro by Jerome Kohn (New York: Penguin Books, 2006) [Arendt, Between Past and Future]. 4 Hannah Arendt, “The Crisis in Culture” in Arendt, Between Past and Future, supra note 3, 194 at 217- 218, 219-220 [Arendt, “Crisis”]; d’Entrèves, “Arendt SEP”, supra note 2 at § 5.5; Beiner, “Arendt on Judging”, supra note 2 at 101-109.

199 Chapter 4 – Traces of Aesthetic Judgment in Section 7

A different perspective emerges in Arendt’s later work. Arendt died before she had a chance to begin an intended volume devoted entirely to judgment, which was to form the third and final installment of her planned trilogy The Life of the Mind.5 Still, lecture notes published posthumously as Lectures on Kant’s Political Philosophy,6 and scattered references to judging contained in Thinking and Willing, the two completed volumes of The Life of the Mind,7 approach judgment from a different angle. Arendt here considers judging primarily through the lens of the vita contemplativa – the mental life of contemplation and speculative thought. From this perspective, the exemplar of the judging person is no longer the political actor, the statesman deciding what course of action to follow. The judging person is instead likened to the backward- looking poet or historian – a spectator without an interest in the outcome. Through her judgments, this spectator appreciates and ascribes meaning to past events in the public realm.8

Despite the differences in perspective, Arendt’s accounts of judging in both contexts rely on a novel and sometimes disputed reading of Immanuel Kant’s Critique of Judgment.9 Arendt argues controversially that Kant’s treatment of aesthetic judgment in the first part of that work can be extended to political matters, containing the seeds of an undeveloped political philosophy.10

5 Hannah Arendt, The Life of the Mind (New York: Harcourt Brace Jovanovich, 1978). At the time of her death, Arendt had only just completed her draft of Thinking, the second volume of the Life of the Mind (ibid) and had not begun drafting the Judging volume. Many have attempted to divine what her ultimate position on judgment would have been, had she lived to complete her trilogy. I leave that question to others. 6 Hannah Arendt, Lectures on Kant’s Political Philosophy, ed by Ronald Beiner (Chicago: University of Chicago Press, 1992) [Arendt, Lectures]. 7 These texts arguably foreshadow the direction that Arendt’s thought would have taken in the planned third volume of The Life of the Mind on judging: Beiner, “Arendt on Judging”, supra note 2 at 90-91. 8 d’Entrèves, “Arendt SEP”, supra note 2 at at § 5.2; Beiner, “Arendt on Judging”, supra note 2 at 117- 131. 9 Immanuel Kant, Critique of Judgment, trans by JH Bernard (Mineola, NY: Dover Publications, 2005) [English translation first published 1914; published in the original German in 1790] [Kant, CJ]; on Kant’s influence on Arendt, see generally Ronald Beiner, “Rereading Hannah Arendt’s Kant Lectures” in Ronald Beiner & Jennifer Nedelsky, eds, Judgment, Imagination, Politics: Themes from Kant and Arendt (Lanham, Md: Rowman & Littlefield, 2001) 91 [Beiner, “Rereading”] at 92-98. 10 Arendt, “Crisis”, supra note 4 at 216.

200 Chapter 4 – Traces of Aesthetic Judgment in Section 7

Briefly, Kant remarked that judgments in aesthetic matters – judgments about beauty in art and nature – are reflective as opposed to determinant. According to Kant, determinant judgments take the form (to use the example given by Arendt): “all men are mortal, Socrates is a man, hence,

Socrates is mortal.”11 That is, my judgment (Socrates is mortal) is determined by subsuming a particular, (i.e. my observation Socrates is a man), under a pre-given general rule (i.e. all men are mortal). Hence the label determinant that Kant attached to these judgments. In aesthetic matters, in contrast, Kant pointed out that the general attribute (e.g. beauty) is not reducible to a rule. No logical criterion determines whether I should attach the predicate “beautiful” to something I observe. I am left as a judging person to perceive and reflect upon the particular in its uniqueness; the thing itself generates the attribute irrespective of a rule. I look at a rose and – upon reflection

– judge that “this rose is beautiful.”12 Hence the name reflective judgments.

Kant’s work on this second category of judgments – reflective judgments – was the principal inspiration for Arendt’s work. Kant was puzzled at how reflective judgments in aesthetic matters that seem subjective and arbitrary can transcend private conditions to form the object of reasoned public debate.13 Kant resolved that puzzle by arguing that a judgment about beauty is a claim about how other subjects would judge the same object, rather than about any objective quality of the thing that exists independently of the judgments of others.14 That is, to judge validly that “this rose is beautiful,” my opinion about the rose must coincide with my expectation about the considered judgments of others. The capacity to judge particulars well in the absence of a pre-

11 Arendt, Lectures, supra note 6 at 4. 12 Beiner, “Arendt on Judging”, supra note 2 at 119. 13 Kant called this the “antinomy of taste”: Kant, CJ, supra note 9 at 137-13 (§56); Beiner, “Arendt on Judging”, supra note 2 at 120. 14 Douglas Edlin, “Kant and the Common Law: Intersubjectivity in Aesthetic and Legal Judgment” (2010) 23:2 Can JL & Jur 429 [Edlin, “Kant and the Common Law”] at 433.

201 Chapter 4 – Traces of Aesthetic Judgment in Section 7 given rule therefore requires the ability “to see things not only from one’s own point of view but in the perspective of all those who happen to be present.”15

Arendt contends that Kant’s insights about reflective judgments in aesthetic matters, and their communicability to others, holds the key to understanding the faculty of judgment more generally, including its political dimensions. I will elaborate on the key features of Arendt’s conception of judgment in the next subsections, but in short Arendt insists that judgments about political events and actions that lead persons to say “this is right” or “this is wrong” are akin to judgments of beauty and ugliness as Kant depicted them.

Though unconventional, Arendt’s appropriation of Kant on judgment, and her twin interests in its historical and political aspects, is consistent with her more general theoretical preoccupation with the condition of humanity in 20th century. Indeed, the rise of totalitarianism that so concerned Arendt acutely posed the challenge of how to judge events and actions that defy preconceived categories – that nearly defy human comprehension altogether.16 At the same time,

Arendt continually emphasized the dignity and freedom that arises when human beings engage in truly novel political action;17 yet the gift of natality that allows human beings to undertake new and unexpected deeds in the political public realm also raises questions about the validity of judgments about exceptional things and events. In such a light, it easier to understand why Kant’s

15 Arendt, “Crisis”, supra note 4 at 218; see also Hannah Arendt, “Thinking and Moral Considerations” (1971) 38:3 Social Research 417 at 446. 16 Maurizio Passerin d’Entrèves, The Political Philosophy of Hannah Arendt (London: Routledge, 2001) [d’Entrèves, Political Philosophy] at 11-12 and 104-106. On Arendt’s interest in totalitarianism generally, consider e.g. Hannah Arendt, The Origins of Totalitarianism, new ed with added prefaces (New York: Harcourt Brace Jovanovich, 1973); Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Penguin Books, 2006). Arendt herself links her interest in judgment with her reflections on Eichmann in “Thinking and Moral Considerations”, supra note 15 at 417-418, 446 and in her introduction to The Life of the Mind, supra note 5, in vol 1 (Thinking) at 3-5 17 Hannah Arendt, The Human Condition, 2nd ed (Chicago: University of Chicago Press, 1998) at 7; Margaret Canovan, “Introduction” in Arendt, The Human Condition (ibid) at vii, xii.

202 Chapter 4 – Traces of Aesthetic Judgment in Section 7 writings on beauty – which revolve around the problem of judging unique particulars without a determinative rule – might have appealed to Arendt. Those writings form the basis for an account of judgments about the extraordinary in politics, whether those judgments are forward- or backward-looking.18

2. Intersubjective Validity

A distinguishing feature of Arendt’s account of judgment is its peculiar kind of validity.

Arendt seized on Kant’s insight that reflective judgments about particulars – in art or elsewhere – are only ever intersubjectively valid. She was struck by the fact that judgments about politics are similar to judgments about beautiful roses.19 The judgment that this or that political action is right or wrong is a claim about how other subjects would judge the same action, rather than about any objective characteristic or quality of the action itself that can be proven independently of the judgments of other persons.20 As such, the validity of judgments in political matters can only be assessed contextually, as between (i.e. inter-) judging persons. Judgments about politics gain in strength when they can secure the agreement of others; the inability to secure that agreement makes them weak.

The intersubjective validity of judgment is important to Arendt’s account because it contrasts with the mode of asserting validity of other forms of cognition, which includes propositions of factual truth, mathematical logic and even determinant judgments. The validity of

18 Arendt once referred to the challenge of thinking without preconceived categories as thinking “without a banister”: Hannah Arendt, “Understanding and Politics” in Essays in Understanding:1930-1954 (New York: Schocken Books, 2005) 307 [Arendt, “Understanding”] at 321; see also Melvyn A Hill, ed, Hannah Arendt: The Recovery of the Public World (New York: St Martin’s Press, 1979) 323 at 336 and Rodolphe Gasché, “Is a Determinant Judgment Really a Judgment” (2013) 6:1 Wash U Jur Rev 99 at 99. 19 Ronald Beiner & Jennifer Nedelsky, “Introduction” in Ronald Beiner & Jennifer Nedelsky, eds, Judgment, Imagination and Politics: Themes from Kant and Arendt (Lanham, Md: Rowman & Littlefield, 2001) vii [Beiner & Nedelsky, “Introduction”] at xi. 20 Edlin, “Kant and the Common Law”, supra note 14 at 433.

203 Chapter 4 – Traces of Aesthetic Judgment in Section 7 such propositions – for instance that the Supreme Court of Canada released its judgment in Carter on February 6, 2015, that 2 plus 2 makes 4, or that Socrates is mortal – is established objectively, regardless of what others think, and regardless of the audience to whom the claim is addressed.

Purely subjective preferences, meanwhile, are also indifferent to the presence of others and their opinions, though for different reasons. I prefer honey over jam; the fact that someone else prefers jam neither justifies nor undermine my own preference. Arendt’s conception of judgment is notable for requiring the presence of others and the consideration of their points of view.21

Consistent with this mode of asserting validity, Arendt associates judgment with opinion, not claims to truth.22 Although she is adamant that judgments about politics must rest on factual truths, she nonetheless asserts that it is a category error to make truth the ultimate arbiter of those judgments. “The trouble,” she says, “is that factual truth, like all other truth, peremptorily claims to be acknowledged and precludes debate, and debate constitutes the essence of political life.”23

Truth has a domineering character.24 When it comes to political opinions and also to judgments, agreement should not and cannot be compelled. Keen to preserve space for authentic judgment in politics, Arendt insists that “[t]he judging person…can only ‘woo the consent of everyone else’ in the hope of coming to an agreement with him eventually.”25 Intersubjectively valid judgments are persuasive not coercive.

21 Arendt, “Crisis”, supra note 4 at 217. 22 She develops the distinction most fully in Hannah Arendt, “Truth and Politics” in Arendt, Between Past and Future, supra note 3, 223 but it is a theme that pervades her writings on judgment: Beiner, “Arendt on Judging” supra note 2 at 106-108. See e.g. Arendt, Lectures, supra note 6 at 71-72 and Arendt, “Crisis”, supra note 4 at 216-220. The dichotomy between truth and politics corresponds to distinctions between political and rational/philosophical thought, and between persuasion and coercion. 23 Arendt, “Truth and Politics”, supra note 22 at 236-237. 24 Ibid at 236. 25 Arendt, “Crisis”, supra note 4 at 219; see also Arendt, Lectures, supra note 6 at 73.

204 Chapter 4 – Traces of Aesthetic Judgment in Section 7

3. Judging Impartially According to Taste

The intersubjective validity of political judgments is linked to another idea that plays an important role in Arendt’s account of judgment: a sense of taste. Taste is a slippery idea, and

Arendt’s understanding of it differs importantly from Kant’s in one respect, which I will explain in the next subsection. But for both Kant and Arendt, taste, which they also refer to as “community sense”, is the ultimate standard of good judgment.

As the association with community sense may suggest, taste is fundamentally linked to the consideration of the possible judgments of others. As discussed above, the intersubjective, persuasive character of aesthetic judgment is such that it can only be valid in the presence of other persons. Taste is a function of this other-directedness of judgment.26 Specifically, Arendt and Kant speak of taste to denote a feeling of satisfaction that can occur in a judging person’s mind when considering the possible judgments of other.27 When a judging person, reflecting disinterestedly on the possible opinions of others, concludes that others ought to share her judgment, that sensation of fit or correspondence provokes a feeling of satisfaction. That sensation, which comes from perceiving a world that pleases her as she thinks it ought to please others, is taste or community sense guiding judgment.28

People are able to experience this guiding sense of fit because of a prior mental operation that Arendt, after Kant, refers to as the imagination.29 A judging person uses her imagination to present an object or event perceived in the world as an object for the inner senses. The visual

26 Arendt, Lectures, supra note 6 at 68. 27 Ibid at 69-71. 28 Kant, CJ, supra note 9 at 103 (§40); Arendt, Lectures, supra note 6 at 69. 29 See generally Arendt, Lectures, supra note 6 at 65-69; 79-85; Mark Antaki, “The Rationalism of Proportionality’s Culture of Justification” in Grant Huscroft, Bradley Miller & Grégoire Webber, eds., Proportionality and the Rule of Law: Rights, Justification, Reasoning (New York, NY: Cambridge University Press, 2014) 284 at 297.

205 Chapter 4 – Traces of Aesthetic Judgment in Section 7 stimulus of light, shape and colour is re-presented in the mind’s eye as a rose. A stack of word- covered paper is re-presented as a statute. When used in this context, Arendt hyphenates the word

“re-present” to denote the fact that the contemplated representation is not symbolic. Rather, an object perceived by the outer senses is presented anew, i.e. re-presented, to the judging mind.

Understood in this special re-presentative sense, the imagination is crucial to reflective judgment because it arrests or freezes experience, specifying and internalizing a person’s sensory perception of the world. The judging person is thus able to see the object as an object, a singular whole that unites and gives meaning to an otherwise indistinct mass of particulars.30 A messy world of appearances is transformed into something that the human mind can grasp, communicate about and judge.31 The imagination is also significant because it removes a person from the immediacy of sensory stimuli, making it possible for her to reflect disinterestedly and impartially upon the object of her perception.32 The imagination ensures that when a person judges according to taste, she is no longer affected directly by the feel of a puppy’s soft fur, the sound of a melody, the smell or sight of a rose. It is only her reflection on the object re-presented in her mind that can elicit pleasure or displeasure – not the sensory experience itself.33

Arendt’s treatment of taste is closely connected with two other ideas that underpin her account of reflective judgment: exemplary validity and an enlarged mentality. She stresses the importance of examples for good judgments.34 Examples are crucial because they represent norms

30 Arendt, Lectures, supra note 6 at 68; see also 66-67; see also Antaki, supra note 29 at 296. 31 Kant, CJ, supra note 9 at 38 (§9); see also Linda Meyer, “Between Reason and Power: Experiencing Legal Truth” (1999) 67:3 U Cin L Rev 727 [Meyer, “Reason and Power”] at 740-742. 32 Arendt, Lectures, supra note 6 at 79-80; Michael Denneny, “The Privilege of Ourselves: Hannah Arendt on Judgment” in Hill, ed, supra note 18, 263 at 283-284; Maurizio Passerin d’Entrèves, “‘To Think Representatively’: Arendt on Judgment and the Imagination” (2006) 35:3 Philosophical Papers 367 [d’Entrèves, “Representatively”] at 376-377. 33 Arendt, Lectures, supra note 6 at 65, 67; Kant, CJ, supra note 9 at 21 (Introduction, Part VII). 34 Arendt, Lectures, supra note 6 at 76-77, 79-85; d’Entrèves, “Representatively”, supra note 32 at 375- 376.

206 Chapter 4 – Traces of Aesthetic Judgment in Section 7 that cannot be fully articulated. A judgment that something is beautiful, for instance, makes the thing judged an embodiment of beauty.35 It is impossible to say exhaustively what beauty is, or justice, so the meaning of these ideas can only be known through their concrete manifestations.

For similar reasons, examples are needed to guide judgments about those same norms. To judge particulars well, they must be compared to examples of someone or something that personifies or embodies the attribute in question – be it beauty or goodness or courage or, I will argue, justice and proportion.36 To the extent that an example is chosen well, from life or from literature, it can be said to have exemplary validity. As Arendt sometimes reminded readers, in the Western tradition people historically judged goodness by reference to Jesus or St-Francis of Assisi, or courage by reference to Achilles.37

In addition, Arendt’s treatment of taste relates to the state of mind that Kant associated with the maxim of enlarged thought, also called an enlarged mentality. Persons demonstrate an enlarged mentality when they put themselves in the place of other judging persons, when they consider the standpoint of others.38 As Arendt puts it, “the more people’s standpoints I have present in my mind while I am pondering a given issue, and the better I can imagine how I would feel and think if I were in their place, the stronger will be my capacity for representative thinking and the more valid my final conclusions, my opinion.”39 A person’s ability to judge well in aesthetic as in political matters – to exercise their faculty of taste – depends on her capacity to achieve this enlarged mentality.40

35 Kant, CJ, supra note 9 at 34-35, 57 and 148 (§18, §22 and §59). 36 Arendt, Lectures, supra note 6 at 84. 37 Arendt, Lectures, supra note 6 at 84; Arendt, “Truth and Politics”, supra note 22 at 243-244. 38 Kant, CJ, supra note 9 at 102-103 (§40). 39 Arendt, “Truth and Politics”, supra note 22 at at 238. 40 Arendt, Lectures, supra note 6 at 73; Jennifer Nedelsky, “Judgment, Diversity and Relational Autonomy” in Beiner & Nedelsky, eds, supra note 19, 103 [Nedelsky, “Judgment”] at 107-109.

207 Chapter 4 – Traces of Aesthetic Judgment in Section 7

4. Judging as a Member of a Community

Arendt’s account of taste, and her related discussion of enlarged thought, differs from

Kant’s as to the persons whose opinions must be accounted for when making judgments. Arendt emphasizes repeatedly that the enlarged mentality required of judgment is rooted in actual, concrete communities,41 that a person judges always “as member of this community, and not as a member of a supersensible world.”42 Judgments of taste must accordingly account for the views of fellow community members, not rational human beings wherever they are situated, as Kant implied.43

Arendt’s departure from Kant on this point is tied to the importance she places on a shared world as the common ground of judgment in modern times. For Arendt, judging persons are joined together by a shared world, a world of objects and things and human beings. Members of a judging community experience this world in common and through their bodily senses.44 A judgment that something in the world is beautiful or ugly, right or wrong, good or bad, is valid in relation to people who see, feel, or hear that thing too.45 In Arendt’s view, judging is an inherently social activity that involves “sharing-the-world-with-others.”46 In the absence of human plurality – as

41 Arendt, Lectures, supra note 6 at 73; Nedelsky, “Judgment”, supra note 40 at 109; Jennifer Nedelsky, “Communities of Judgment and Human Rights” (2000) 2:1 Theor Inq L 245 [Nedelsky, “Communities”] at 250-251. Hans-Jörg Sigwart, The Wandering Thought of Hannah Arendt (London, UK: Palgrave Macmillan, 2016) at 76ff. That judgment is community-based says nothing about the nature of the required community; it could as conceivably be virtual and global as it could be concrete and local. What is required is the existence of a public sphere that can be viewed in common by community members. 42 Arendt, Lectures, supra note 6 at 67-68. See also 72 and 75 (ibid). 43 For Kant, other persons means everyone else. The upshot of this theoretical view is that although the validity of aesthetic judgments is assessed intersubjectively, Kant holds that good judgments can nevertheless claim to be universal: Kant, CJ. supra note 9 at 90-92 and 98-99 (§30-31 and §37-38); Paul Guyer, Kant and the Claims of Taste (Cambridge, Mass: Harvard University Press, 1979) at 1. 44 Arendt, “Crisis”, supra note 4 at 219. 45 Ibid at 217. 46 Ibid at 218.

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Arendt would say, men, not man – talk about judgment would be meaningless.47 In short, Arendt presents judgment as worldly – grounded in concrete communities of persons that inhabit a shared world – and embodied – dependent on plural human beings’ sensory and perspectival perceptions of that shared world.

These qualities of judging in community have implications for the character of persuasive arguments that support and lead to good aesthetic judgments. They not only reinforce the importance of meaningful community-specific examples for judgment, consistent with the role of aesthetic taste and as discussed in the previous subsection. They also suggest that narrative and affect can help to form good judgments. Indeed, the common world inhabited by community members is not limited to mere physical objects, but also includes events and actions, and the stories and histories that invest all these features of the common world with a shared meaning.

Moreover, because Arendt’s understanding of judgment emphasized its bodily, perceptive aspects, it is compatible with emotional and sensory appeals to what living and breathing human beings feel, and not merely to what rational and cognitive beings ought logically to think.

This community-based understanding of aesthetic judgments brings Arendt’s account full circle, as it gestures back to their special intersubjective validity, discussed at the outset of this part. The key point is that authentic judgments can be assessed as valid or invalid, but not universally so. Their validity is limited to “those who are members of the public realm where the

47 Arendt, Lectures, supra note 6 at 14-15, 20; Arendt, The Human Condition, supra note 17 at 7; Arendt’s emphasis on judging in community is consistent with the conception of human beings that she believes undergirds Kant’s work on aesthetic judgment. Whereas Kant’s Critique of Pure Reason and Critique of Practical Reason were concerned with cognitive, rational beings, wherever they might live and whatever form they might take, Arendt describes the conception of human beings at issue in the first part of the Critique of Judgment as follows: “Men = earthbound creatures, living in communities, endowed with common sense, sensus communis, a community sense; not autonomous, needing each other’s company even for thinking (‘freedom of the pen’).” Arendt, Lectures, supra note 6 at 27.

209 Chapter 4 – Traces of Aesthetic Judgment in Section 7 objects of judgment appear.”48 It is only by imagining herself in the shoes of fellow members of an actual community to achieve an enlarged mentality that a person can free herself from her idiosyncratic, private circumstances and the interests necessarily bound up with those circumstances. Only then can she exercise her faculty of taste to judge well in political matters.

B. Aesthetic Judgment and Adjudication

This section lays the groundwork for my novel extension of aesthetic judgment to section

7 adjudication, by examining scholarship that links aesthetic judgment and common law adjudication, and conceptual links between political and proportionate judgments. On the basis of that examination, I argue that Arendt’s approach to judgment is well-placed to shed light on the adjudication of claims involving the principles of fundamental justice.

It may not seem immediately apparent why Arendt’s aesthetic conception of judgment – she was, after all, a self-styled political and not legal theorist – would be relevant to my analysis of constitutional adjudication involving the principles of fundamental justice. Arendt was only peripherally interested in law, and she tended to depict legislating and judicial decision-making as activities altogether separate from the political public realm that was her primary focus.49 Though

Arendt would not likely have considered her conception of judgment to be relevant to constitutional rights adjudication, several factors lead me to conclude otherwise.

48 Arendt, “Crisis”, supra note 4 at 217. 49 Consider e.g. Arendt, The Human Condition, supra note 17 at 63-64, 194-199 in which she excludes legislation from the category of political action; see also Arendt, “Truth and Politics”, supra note 22 at 254-259, in which she describes the judiciary as a truth-telling institution, locating it outside the political realm. Though very little has been written about the relevance of Arendt’s work for constitutional adjudication, some legal scholars have begun to explore links between her work and legal phenomena generally. See e.g. Hans Lindahl, “Give and Take: Arendt and the Nomos of Political Community” (2006) 32:7 Philosophy & Social Criticism 881 [Lindahl, “Give and Take”]; Marco Goldoni & Christopher McCorkindale, eds, Hannah Arendt and the Law (Oxford: Hart Publishing, 2012) and Christian Volk, Arendtian Constitutionalism: Law, Politics and the Order of Freedom (Oxford: Hart Publishing, 2015).

210 Chapter 4 – Traces of Aesthetic Judgment in Section 7

To begin with, both Arendt and Kant suggested that reflective judgments may be germane to a wide range of human affairs – not just to politics or art. As described above, Arendt and Kant stress that reflective judgments depend on taste, the feeling of pleasure or satisfaction that arises when our considered opinion corresponds with the anticipated opinions of others. As Linda Meyer notes, Kant’s introduction to the Critique of Judgment contemplates that aesthetic taste is

“necessary for good judgment in any field” concerned with particulars.50 Arendt’s appropriation of Kant to ground her account of judgment in political matters highlights the potentially broad relevance of aesthetic taste. If Arendt was able to use Kant’s work on aesthetics to gain insights into political judgment, it seems reasonable to think that Arendt’s own work on politics might be used to gain insights into legal judgment.51

Some common lawyers agree. Michael Denneny first drew attention to the similarity between aesthetic judgment and judicial decision-making in an essay devoted to Arendt’s work.

“If Kant had been an Englishman,” he wrote, “he might have noticed that the same sort of reflective judgment…seems to work in the common-law tradition…; and furthermore, a sense for justice develops through case precedents much as a taste for beauty develops through the appreciation of exemplary models of artistic excellence.”52 The analogy between aesthetic judgment and common law adjudication has since been fleshed out by several scholars.

50 Meyer, “Reason and Power”, supra note 31 at 739 [emphasis added], and 744-745; see also Arendt, Lectures, supra note 6 at 70 where she says, speaking of pleasure of the beautiful: “some such judgment is in every experience we have with the world.” Specific suggestions to this effect can be found at Kant, CJ, supra note 9 at 12-13, 15-21 (Introduction, Parts IV-VII). See also 96-97 (§35) (ibid). 51 Arendt might well have encouraged such an attempt, remarking once that “each time you write something and you send it out into the world and it becomes public, obviously everybody is free to do with it what he pleases, and this is how it should be.” Cited in Canovan, supra note 17 at xx. 52 Denneny, supra note 32 at 282. See also Beiner & Nedelsky, “Introduction”, supra note 19 at xii: “one might say that the case method of the common law is exactly an instance of ‘only the particular [being] given for which the general has to be found.’”52

211 Chapter 4 – Traces of Aesthetic Judgment in Section 7

Meyer, for instance, argues that in the absence of determinative rules, common law judgments about the meaning of particulars rely on an aesthetic sense of taste – a taste for justice.

The judgment that one case is sufficiently like another case to be resolved in the same way, or ought to give rise to a new and unique norm, is not itself rule-governed.53 As in aesthetic matters, common law judges must appreciate the significance of particulars without the benefit of a determinative rule.54

Timothy Edlin, meanwhile, suggests that the common law’s commitments to judicial independence and impartiality, and the practice of communicating signed supporting reasons, give its judgments a validity that is intersubjective.55 Judges’ independence from the other branches of government and from their judicial colleagues ensure that they are the subjective authors of their opinions. Conversely, each of their opinions is also a claim that others ought to agree with it, and the force of that claim depends on its demonstrated impartiality and persuasiveness.56 This mixture of subjective and objective elements is what Kant and Arendt require for valid judgments.

Other researchers link aesthetic judgments and common law judgments because the persuasiveness of both is assessed contextually, within an interpretive community.57 Like Arendt’s conception of judgment and in contrast to rational calculations and logical deductions, common law adjudication is worldly, meaning that judges deliver judgments about events and objects as

53 Beiner & Nedelsky, “Introduction”, supra note 19 at xii.; see also TRS Allan, “Text, Context and Constitution: The Common Law as Public Reason” in Douglas Edlin, ed, Common Law Theory (New York: Cambridge University Press, 2007) 185 [Allan, “Text, Context”] at 187-188. 54 Meyer, “Reason and Power”, supra note 31 at 744-745; Beiner & Nedelsky, “Introduction”, supra note 19 at xii. 55 See Douglas Edlin, “Introduction” in Edlin, ed, supra note 53, 1 at 2. See more generally Edlin, “Kant and the Common Law”, supra note 14 and Douglas Edlin, Common Law Judging: Subjectivity, Impartiality and the Making of Law (Ann Arbor: University of Michigan Press, 2016) [Edlin, Common Law Judging]. 56 Edlin, “Kant and the Common Law”, supra note 14 at 443-444. 57 Nedelsky, “Judgment”, supra note 40 at 109-11; Nedelsky, “Communities”, supra note 41 at 250-251; Graham Mayeda, “Uncommonly Common: The Nature of Common Law Judgment” (2006) 19:11 Can JL & Jur 107 at 115, 118.

212 Chapter 4 – Traces of Aesthetic Judgment in Section 7 they perceive them from their location within their community.58 Their judgments must account only for the viewpoints of others in the community “where the objects of judgment appear.”59

Finally, some authors point out that common law judgments resemble aesthetic ones in the way they seek to woo agreement. Common law judgments are addressed to a community of interpreters that is already familiar with tradition-specific features of judgment,60 so reasons that aim to persuade must account for the expectations of form and content of fellow community members, such as citizens, legal and political commentators, and members of the judiciary. One of the signal features of common law reasoning, moreover, underscores the worldly character of common law judgment: its reliance on concrete examples and analogies.61 To borrow a turn of phrase from Kant, it is no exaggeration to say that “[e]xamples are…the go-cart of judgment”62 in the common law just as they are in aesthetic matters. These scholarly projects lead me to conclude that Arendt’s conception of judgment can shed light on judgments involving the principles of fundamental justice.

Admittedly, section 7’s modern culture of argument is not a perfect analogue for common law adjudication. A significant portion of this thesis has in fact sought to show how the current approach to section 7, with its emphasis on rational justification, has drifted from its methodological origins in the common law. Canadian constitutional rights adjudication also differs from common law decision-making when it comes to the ultimate fount of the norms each invokes.

The common law, though often described as “judge-made law,” was classically conceived as a set

58 Antaki, supra note 29 at 285, 296. 59 Arendt, “Crisis”, supra note 4 at 217. Nedelsky connects this community-based character of Arendtian judgment with judicial decision-making in Nedelsky, “Judgment”, supra note 40 at 109. 60 Edlin, “Kant and the Common Law”, supra note 14 at 443. 61 Meyer, “Reason and Power”, supra note 31 at 745; Linda Meyer, “‘Nothing We Say Matters’: Teague and the New Rules” (1994) 61:2 U Chicago L Rev 423 [Meyer, “Nothing We Say”] at 465ff. 62 Immanuel Kant, Critique of Pure Reason, trans by Norman Kemp, rev 2nd ed (Basingstoke, UK: Palgrave Macmillan, 2007) at 178 (A134; B173-174).

213 Chapter 4 – Traces of Aesthetic Judgment in Section 7 of “rules and ways implicit in a body of practices and patterns of practical thinking ‘handed down by tradition, use [and] experience’.”63 In the words of TRS Allan, it is “an expression of community, a product of shared history and common life.”64 In contrast, Canadian constitutional rights adjudication appeals for its ultimate authority to a canonical text – the Charter – that was formally enacted and proclaimed into law, in the fashion of legislation.

Although these differences are real, they tend to be overstated. The distinction between common law reasoning and statutory interpretation is blurred on the margins. Canonical texts in the form of precedent play a vital role in common law decision-making, with seminal judgments taking on the character of authoritative pronouncements of rules. Conversely, judges interpreting authoritative texts frequently resolve ambiguities by considering unwritten principles and the wider interpretive context, much as in common law reasoning.65 This is notably true of general and abstract constitutional rights guarantees whose interpretation shifts over time as judges decide individual disputes. And just as in common law reasoning, examples and analogies can help to elucidate the meaning and scope of textual norms in difficult cases.66

The jurisprudential evolution I plotted in Chapter 2 underscores the bridge between common law judgment and section 7 adjudication. That evolution testifies to the origins of the principles of fundamental justice in the English tradition of due process, the lasting influence of those origins on the interpretation of section 7, and the relative agency of judges seeking to give meaning to the words “principles of fundamental justice.” The complicated but essential

63 Gerald J Postema, “Classical Common Law Jurisprudence (Part I)” (2002) 2:2 OUCLJ 155 at 167; see also David Dyzenhaus & Michael Taggart, “Reasoned Decisions and Legal Theory” in Edlin, ed, supra note 53, 134 at 141-142. 64 TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001) at 291. 65 Allan, “Text, Context”, supra note 53 at 187-189. 66 Ibid at 189-192; see also HLA Hart, The Concept of Law, 2nd ed (Oxford: Clarendon Press, 1994) at 124-127.

214 Chapter 4 – Traces of Aesthetic Judgment in Section 7 relationship between fundamental justice and community understandings documented in the previous chapters is also relevant. That relationship, which persists notwithstanding the modern approach to fundamental justice, suggests that a public conception of justice, somewhat akin to the common law’s, partly underwrites section 7 adjudication.

What’s more, and as noted above, some of the aesthetic qualities of common law adjudication arise from institutional features of judging in the common law tradition and not from anything distinct about judgments that engage substantively with the common law. The principles and practices that unite subjective and objective elements of judging in the common law tradition

– the practice of individual opinion-writing, the commitment to judicial independence and impartiality, the communication of persuasive reasons to an actual interpretive community – characterize all forms of Canadian judicial decision-making, section 7 judgments included. That is so whether fundamental justice claims are resolved using a common law methodology, or appeal to abstract standards of proportionality.

Arendt’s work on judging is also likely to be a source of insight into section 7 adjudication because of conceptual similarities with proportionate judgments. As discussed above, Arendt approaches judgment sometimes from the backward-looking historical perspective of the vita contemplativa and sometimes from the forward-looking political perspective of the vita activa.

Though political theorists have typically considered these conflicting perspectives as a shortcoming of her work,67 they actually give her conception of judgment a richness that is an asset in relation to proportionality review.68 Proportionality-based constitutional rights adjudication,

67 See e.g. d’Entrèves, “Arendt SEP”, supra note 2 at §5.1; Beiner, “Arendt on Judging”, supra note 2 at 92-93; Bernstein, supra note 2 at 221, 234, 237. 68 Consider Leora Bilsky, “When Actor and Spectator Meet in the Courtroom” in Beiner & Nedelsky, eds, supra note 19, 257; see also Meyer, “Nothing We Say”, supra note 61 at 469, describing judicial decision-making as “between past and future”.

215 Chapter 4 – Traces of Aesthetic Judgment in Section 7 especially when practised by judges in common law jurisdictions, similarly combines the judging perspectives of the story-teller and the public actor.

The judge as story-teller is an idiom that recurs repeatedly in the common law tradition.69

The common law judge must fit her judgment into a narrative about what came before: about her community, its members, and the meaning of their earlier judgments and practices. In this retrospective posture, the judge participates in the telling and re-telling of a story.70 She interprets words and actions much as Arendt suggested a poet or historian might, investing them with meaning. This facet of judging – which is not restricted to judgments of proportionality – exhibits parallels with the vita contemplativa.

At the same time, the words and deeds of judges who decide constitutional cases using the principle of proportionality recall features of the vita activa. Though Arendt would surely have quarreled with attempts to describe legal judges as political “actors” capable of revealing themselves in the public sphere,71 the influence that constitutional judges exert on public policy- making in Canada and other contemporary liberal democracies is difficult to deny. That influence is well-illustrated by the case studies from Chapter 3, in which judges ruled on the constitutionality of norms that criminalized assisted suicide, activities connected to sex work and the establishment of supervised injection sites. In contrast to issues of procedural justice and fairness, these kinds of

69 Law and literature scholars have pressed this metaphor. See e.g. James Boyd White, Justice as Translation (Chicago: University of Chicago Press, 1990) and Martha C Nussbaum, “Poets as Judges: Judicial Rhetoric and the Literary Imagination” (1995) 62:4 U Chicago L Rev 1477. Ronald Dworkin’s well-known description of common law adjudication as a kind of chain novel is another example of the idiom: Ronald Dworkin, Law’s Empire (Cambridge, Mass: Belknap Press of Harvard University Press, 1986) at 228-238. 70 James Boyd White, “The Judicial Opinion and the Poem: Ways of Reading, Ways of Life” (1984) 82:7 Michigan Law Review 1669 at 1674-1676, 1692. 71 See e.g. Arendt, “Truth and Politics”, supra note 22 at 255-256. Public discourse about legal judgment may undermine Arendt’s view. Judicial opinions are sometimes judged as if they were heroic deeds that reveal both the identity of their authors and their political community. Consider e.g. Brown v. Board, 347 US 483 (1954) in the US or Roncarelli v Duplessis, [1959] SCR 121 in Canada.

216 Chapter 4 – Traces of Aesthetic Judgment in Section 7 questions were once viewed as comfortably within the prerogative of the executive and legislative branches of government.72 The constitutional judge invoking proportionality is a far cry from

Arendt’s disinterested truthteller situated outside the political arena.73 She resembles rather the statesman that is the paradigm figure of Arendtian judgment in its prospective, political version.

This link between proportionality review and the vita activa is reinforced by converging models of public decision-making in law and politics. On the one hand, political decision-making increasingly bears the stamp of constitutional rights discourse. In Canada as elsewhere, the resulting legalization of politics has been well-documented.74 On the other hand, the global prominence of the principle of proportionality and its culture of justification has pushed constitutional judges towards all-things-considered judgments. Contemporary political and judicial decision-making accordingly share a similar structure and content: courts and legislatures both consider whether a given course of action strikes an appropriate balance between advancing the public interest and protecting individual rights.75 Because of these similarities, Arendt’s insights into political judgment are likely to be instructive for understanding proportionality-based constitutional adjudication. ef

72 They therefore lie somewhere in between Ran Hirschl’s second and third faces of judicialization: see Ran Hirschl, “The New Constitutionalism and the Judicialization of Pure Politics Worldwide” (2006) 75:2 Fordham L Rev 721 at 725-729. 73 Arendt, “Truth and Politics”, supra note 22 at 257. 74 Andrew Petter, “Legalise This: The Chartering of Canadian Politics” in James B Kelly & Christopher P Manfredi, eds, Contested Constitutionalism (Vancouver: UBC Press, 2009) 33; Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada, rev ed (Toronto: Thompson Educational Publishing, 1994). 75 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge, UK: Cambridge University Press, 2012) at 459-460. See also Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford: Oxford University Press, 2000).

217 Chapter 4 – Traces of Aesthetic Judgment in Section 7

Hannah Arendt’s work offers an innovative but challenging account of judgment in political matters that emphasizes its aesthetic qualities. Despite Arendt’s views of the bright line dividing law from politics, I have argued here that that there are good reasons to think that her conception of judgment can shed new light on Canadian constitutional rights adjudication that incorporates elements of proportionality review, including section 7 adjudication.

II. THE AESTHETIC FEATURES OF FUNDAMENTAL JUSTICE JUDGMENTS

This part proposes an original reading of judgments involving the modern principles of fundamental justice. Drawing on Arendt’s work, I emphasize that these judgments have important, but underappreciated, aesthetic features. I focus first on the judicial appreciation of the adjudicative and legislative facts that informs the entire exercise in rational justification, and then on the ultimate judgments about the arbitrariness, overbreadth and gross disproportionality of government action. These features are such that fundamental justice judgments claim a validity that is largely intersubjective, appeal to a sense of taste, and are meaningful only within an interpretive community.

A clarification is appropriate. I am not contending that Arendt’s conception of judgment offers a perfect and complete account of fundamental justice judgments. More modestly, my claim is that aesthetic and fundamental justice judgments share important similarities, and that recognizing those similarities can lay the groundwork for a better understanding of the activity of judging at the heart of section 7’s principles of fundamental justice.

A. The Meaning of Particulars

When judges appreciate the meaning of the adjudicative and legislative facts that form the backdrop of their analysis of rational justification, they make judgments that have aesthetic features. The challenge for judges at this juncture is to articulate precisely the problem in need of resolution. The answer to this question is a prerequisite for the application of the abstract standards

218 Chapter 4 – Traces of Aesthetic Judgment in Section 7 of means-ends rationality, which I broach in the next section. But it is an answer that the application of no rule can provide. As I will explain, a judge answering the question makes a claim to validity that is intersubjective and largely relies on an aesthetic sense of taste.

The aesthetic character of these kinds of judgments is connected to the abstract and general character of the governing norms. The modern approach to the principles of fundamental justice requires that a judgment of instrumental rationality be made, but the contours of the thing or event that needs to be judged are inherently fuzzy. In fact, when it comes to section 7 adjudication, the thing in need of judgment is not a particular at all, but a complicated interplay of persons, actions, and events whose relevance to an assessment of instrumental rationality is uncertain. There is no readily discernible puppy or rose or melody. Before making disinterested, impartial judgments of constitutionality, judges in section 7 cases must arrest or freeze experience as Arendt suggested to form a coherent whole that they can comprehend and communicate about.76 A messy and potentially infinite world of particular facts must be distilled into a coherent and singular whole.77

However, the modern principles of fundamental justice, like other abstract and general norms, impose few a priori limits on the consideration and weight to be given to various aspects of the factual, social and legislative context.78 A judgment must be made, as Arendt once put it, largely without banisters.79 To gain a fitting understanding of the overall context, without rules that distinguish clearly what matters from what does not, judges must make a series of judgments

76 Linda Meyer, The Justice of Mercy (Ann Arbor: University of Michigan Press, 2010) at 18; see also Meyer, “Reason and Power”, supra note 31 at 736. 77 Mark Antaki has distinguished between particulars and singulars: Antaki, supra note 29 at 296-297. 78 In Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 [Bedford], the Court stresses a few key constraints meant to limit the contextual elements relevant to the modern fundamental justice analysis. In particular, the analysis is to focus on the qualitative and not quantitative impacts on the individual, and ancillary benefits to the general population are not to be considered (ibid at para 123). 79 Arendt, “Understanding”, supra note 18 at 321; Hill, ed, supra note 18 at 336. Such judgments are arguably similar to all-things-considered judgments: Paul Kahn, “Comparative Constitutionalism in a New Key” (2003) 101 Mich L Rev 2677 [Kahn, “Comparative Constitutionalism”] at 2698-2699

219 Chapter 4 – Traces of Aesthetic Judgment in Section 7 about the meaning of the facts, and those judgments display aesthetic features. Among other things, judges rely on taste to construe the relevant adjudicative facts, to articulate government purposes, and to interpret legislative impacts, and each of those judgments combines the re-presentative operation of the imagination and the discerning operation of community sense.80

The characterization of the Minister of Health’s actions in Canada (Attorney General) v

PHS Community Services Society81 as a decision subject to constitutional challenge is one stand- out example of an aesthetic judgment about the adjudicative facts. Though the truth of the essential facts in that case was largely uncontested,82 those facts did not disclose what government action needed to be justified. The parties directed their section 7 challenge throughout the proceedings towards sections 4 and 5 of the Controlled Drugs and Substances Act.83 But in the Supreme Court’s view, the constitutional questions turned on the Minister’s discretion to grant an exemption to those provisions, not the provisions themselves. Even though that issue was not addressed in the parties’ written submissions – it was not clear that the Minister had even made a decision – the

Court premised its analysis of the arbitrariness of the government action on the basis that the

Minister had “made a decision on the request for an exemption, and that that decision was to refuse the exemption.”84

The Court’s novel characterization of government action bears the hallmarks of an aesthetic judgment. The meaning the Court attributes to the facts is an opinion that cannot be

80 Meyer, “Reason and Power”, supra note 31 at 740. 81 Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134 [PHS]. 82 Ibid at para 121. 83 Controlled Drugs and Substances Act, SC 1996, c 19. See PHS, supra note 81 (Appellants’ Factum of the Attorney General of Canada and the Minister of Health of Canada at paras 103-114); and PHS, supra note 81 (Factum of the Respondents PHS Community Services Society, Dean Edward Wilson And Shelly Tomic at paras 98-152). 84 PHS, supra note 81 at para 120.

220 Chapter 4 – Traces of Aesthetic Judgment in Section 7 logically or empirically proved true. Through an act of the imagination, the Court renders the disparate elements of government action as an intelligible ensemble. What’s more, that act of the imagination is not merely re-presentative, as I described in Section I.A, above; it generates and constitutes judicial understandings of the constitutional issues.85 This imaginative, re-presentative function prepares the way for and is complemented by an appeal to community sense. I elaborate on this point below, but for now I will underscore that judges’ opinions about the meaning of particulars in section 7 cases cannot be wholly subjective. To construe the factual context in a way that is persuasive, be it the Minister’s actions or some other event, judges must direct their minds to the possible views of other community members.86

Ambiguities about the appropriate characterization of facts, (including about government action) are not unique to section 7, or even to proportionality-based adjudication. Moreover, those ambiguities are sometimes reduced or resolved by evidentiary rules, constraining and limiting the aesthetic dimensions of factual determinations. But determinations about what the facts are do not always determine their meaning, as the case of PHS shows. When it comes to the modern approach to the principles of fundamental justice, the convergence between fact and law that I described in

Chapter 3 means that judgments about the meaning of the facts are integral to the resolution of section 7 claims.

85 This generative function is also at work in political judgments: Linda Zerilli, “‘We Feel Our Freedom’” (2005) 33:2 Political Theory 158 at 163-164, 173-174. As Zerilli points out, in the absence of a pre- existing concept, it is something of a misnomer to describe the role of the imagination as re-presentative, as Arendt did. 86 Though they pertain primarily to her decision to adjudicate the constitutionality of the exercise of discretion by the Minister, rather than to the characterization of the issues themselves, the grounds invoked by McLachlin CJ are telling. “Justice requires us” to decide the issue, she writes, and “no unfairness arises”: PHS, supra note 81 at para 116. The Court’s reference to what justice and fairness requires highlights the aesthetic sensibility underpinning its judgment – the unruly sense for justice that links common law adjudication and judgments about the principles of fundamental justice. The reference to what justice requires of “us” hints at the community specific-validity of its judgment, and the human beings of which “our” community is composed. Interestingly, the Court has occasionally made similar appeals in private law cases: Bracklow v Bracklow, [1999] 1 SCR 420 at para 48.

221 Chapter 4 – Traces of Aesthetic Judgment in Section 7

The articulation of government objectives that serve as the analytical anchor for assessments of instrumental rationality in section 7 also requires judges to give meaning to particulars through a judgment that has aesthetic features. As the case studies from Chapter 3 illustrate, government responses to complex problems – such as those relating to supervised injection sites, sex work and physician-assisted dying – frequently attempt to strike a difficult compromise between a multiplicity of interests, rights and values. Concerns about public health and safety, individual autonomy, human dignity, morality, and the deterrence and prevention of crime inform the choice and design of regulatory options in each of case. Concerns about drug addiction and treatment, the commercialization of sex, the protection of freedom of conscience and religion, poverty and the control of women’s bodies weigh in the balance in some cases but not others.

Government responses to these problems aim to achieve a mix of values, and compromises between objectives can plausibly be described in any number of ways. The challenge therefore is not merely to cast legislative objectives at an appropriate level of generality, something courts and commentators frequently acknowledge.87 It is also to consider myriad sub-objectives and synthesize a legislative purpose capable of supporting an inquiry of means-ends rationality. Under the circumstances, the articulation of a single legislative end – turning particulars into a singular – requires an imaginative leap that defies evaluation on a standard of true and false.

87 This challenge comes in two varieties: there is, first, the matter of considering government action at the appropriate level of generality, e.g. a single provision, a group of provisions, or the legislation as a whole. See e.g. Henri Brun, Guy Tremblay & Eugénie Brouillet, Droit constitutionnel, 5th ed (Cowansville, Qc: Yvon Blais, 2008) at 978. There is, second, the matter of the generality of the objective itself. See e.g. Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 [Carter] at para 77 and RJR- MacDonald Inc v Canada, (Attorney General) [1995] 3 SCR 199 at 335 to the effect that a broad characterization of the objective may foreordain the result by justifying the use of serious means. Interestingly, Aharon Barak has argued that purposes stated too broadly can foreordain the outcome in the opposite direction, since it becomes easier to identify alternative but less impairing means that further the same general objective: “Proportional Effect: The Israeli Experience” (2007) 57:2 UTLJ 369 at 373.

222 Chapter 4 – Traces of Aesthetic Judgment in Section 7

Commentators therefore have good reason to point out that the articulation of legislative objectives that underpins instrumental rationality assessments is subjective.88 But that subjectivity need not undermine the validity of the entire constitutional analysis.89 My suggestion is that the imaginative leap involved in describing legislative ends implicates an aesthetic judgment that combines subjective and objective elements, and which can be assessed as valid or invalid within a judging community.

The finding in Carter v Canada (Attorney General)90 about the purpose of the prohibition on assisted dying highlights these aesthetic qualities, since the Court’s opinion is notable for self- consciously wrestling with alternative formulations of the legislative objective. The Court seeks guidance from its previous decisions and considers how different formulations of the objective would affect the legal outcome.91 Having regard to these perspectives, the Court concludes that it is most fitting in the circumstances to formulate the objective as protecting vulnerable people from committing suicide in a time of weakness, rather than preserving life.

The relative transparency of the Court’s reasoning in Carter helps show that the ascription of a singular government objective is not simply a description of an inherent attribute of legislation that can be assessed independently of the viewpoints of other community members. Rather, it resembles an opinion about other persons’ perceptions of the norm in question. It is a claim that other persons, were they to judge disinterestedly, considering the situated perspectives of fellow

88 See e.g. Peter Hogg, “The Brilliant Career of Section 7 of the Charter” (2012) 58 SCLR (2d) 195 at 202; Grégoire Webber, “Rights and the Rule of Law in the Balance” (2013) 129:1 Law Q Rev 399 at 411. 89 The articulation of legislative objectives in means-ends review exhibits similarities with the analysis of the pith and substance, or constitutional value, of legislation in federalism cases. 90 Carter, supra note 87. 91 Ibid at 73-78. The Court discusses its prior judgments in Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519 and RJR-Macdonald, supra note 87.

223 Chapter 4 – Traces of Aesthetic Judgment in Section 7 community members, would impute the same end to government legislation.92 They are judgments, then, that express and reflect opinions about who “we” are as a community.

Granted, judgments about government purposes may seem less like opinion in cases where the legislation in question has already been judicially considered and when there accordingly exists an authoritative precedent that purports to settle what the government objective is. However, as

Carter itself shows, the certainty provided by these precedents is relative. Despite the rule against shifting purposes,93 the Supreme Court may depart from an earlier pronouncement. The influence of a precedent also may vary depending on the level of generality at which the court conducts its analysis of the legislative objective, as I discussed earlier. In all cases, therefore, judgments about legislative objectives tend to resemble opinions whose validity rests on institutional commitments of judging in the common law tradition, and the court’s demonstrated engagement with the plausible viewpoints of other judging persons.

Decisions characterizing legislative impacts for the purposes of means-ends review lend themselves to a similar analysis, underscoring the community-specific validity of this aspect of judgment. As I pointed out in Chapter 3, the judges in PHS, Bedford and Carter return frequently to discourses about health and physical harm as they describe the impacts of government actions that underwrite their assessments of instrumental rationality.94 In PHS: drug addiction is an illness and the closure of Insite exacerbates health risks for drug users: preventable illnesses and infections from unsanitary practices and equipment, overdoses, death. In Bedford: sex workers are prevented from taking measures to protect their health and safety, thus aggravating the risks of

92 Arendt, Lectures, supra note 6 at 67-68. 93 R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 334-336. 94 This approach arguably contrasts with the Court’s tendency (before the turn of section 7 towards instrumental rationality) to de-emphasize bodily effects in Charter cases that implicated both section 7 and section 15 claims. See Robert Leckey, “Embodied Dignity” (2005) 5:1 OUCLJ 63 at 79-81.

224 Chapter 4 – Traces of Aesthetic Judgment in Section 7 disease and physical violence from clients and pimps, possibly resulting in death. In Carter: patients are deprived of a treatment alternative that reduces physical pain and suffering.

None of these characterizations is self-evident. An overall emphasis on health is of course consistent with the historic interpretations given to the interests protected by section 7 – namely life and security of the person. However, the portrayal of effects in terms of tangible health consequences also rests on contingent judicial understandings of “our” community – about who counts, what values matters, and how disputes ought to be resolved – which are intertwined with the modern culture of argument’s emphases on empirical evidence, universalist rationalism and tangible, physical harms. If individual health consequences seem to provide an especially apt frame to grasp what is at stake in disagreements about supervised injection sites, the regulation of sex work and physician-assisted suicide, it is partly because such a frame is likely to earn the agreement of community members about the salient features of those practices having regard to these distinctive features of section 7’s modern culture of argument. To claim intersubjective validity, judgments about legislative impacts must therefore embody and champion views about a community’s membership, values and decision-making processes that plausibly account for fellow other persons’ perceptions of a shared world. In this respect, section 7 adjudication “always reflects upon others and their taste, takes their possible judgments into account.”95

Given its other-directedness, an aesthetic reading of the principles of fundamental justice points to a check on the subjectivity inherent in judgments about the meaning of particulars.

Although each community member – members of the judiciary included – occupies a unique place in the world and judges events and things from her unique perspective, those events and things are

95 Arendt, Lectures, supra note 6 at 67; see also Edlin, “Kant and the Common Law”, supra note 14 at 438.

225 Chapter 4 – Traces of Aesthetic Judgment in Section 7 objective in the sense that they are “common to all its inhabitants.”96 The existence of a community of judging persons who share a common, public world, persons viewing the same state conduct from a variety of perspectives, is what makes it possible to deliberate meaningfully about government actions, objectives and impacts in the first place, let alone the fit between them.97

In other words, an aesthetic reading of the principles of fundamental justice subscribes to the view that “[a]ppearance is not the…veil that covers the ‘true world’ but the genuine human mode of access to reality.”98 Judicial attempts to suppress the sensory and worldly character of judgment, which seek some disembodied and wholly neutral vantage point to capture a true picture of reality, perversely risk alienating community members from the shared world that gives judgment its objective quality. When judges ascribe meaning to particulars in section 7’s modern culture of argument, whether those particulars concern adjudicative or legislative facts, they make judgments that are relevantly similar to aesthetic ones. They judge the world of appearances impartially according to taste, and the validity of their judgments can only be assessed intersubjectively within a judging community.

B. Judging the Constitutional Fit

When courts decide whether government action meets the constitutional standard of instrumental rationality that underpins the modern approach to the principles of fundamental justice, they also make judgments having aesthetic features. A possible objection to this claim should be dealt with at the outset. Given the modern approach to the principles of fundamental justice, its associated emphasis on failures of instrumental rationality, its commitments to

96 Arendt, “Crisis”, supra note 4 at 219. See also Canovan, supra note 17 at xiii; Arendt, The Human Condition, supra note 17 at 52. 97 Arendt says that judging “is one, if not the most, important activity in which “sharing-the-world-with- others comes to pass”: Arendt, “Crisis”, supra note 4 at 218; see also Seyla Benhabib, The Reluctant Modernism of Hannah Arendt, new ed (Lanham, Md: Rowman and Littlefield, 2003) at 201-202. 98 Linda Zerilli, A Democratic Theory of Judgment (Chicago: University of Chicago Press, 2016) at 28.

226 Chapter 4 – Traces of Aesthetic Judgment in Section 7 empiricism and decontextualized rationalism, and its preoccupation with tangible, physical harms, it may seem challenging to argue, as I do, that this stage of judgment nonetheless has aesthetic features. Once the adjudicative and legislative facts have been perceived, there is arguably little left for a judge to do but mechanically apply a test of means-ends rationality. This argument has some merit. Judgments about the meaning of the facts impose real constraints on the fundamental justice analysis, and it would be wrong-headed and futile to assert that judges at this stage have no use for logical rules, as they would when gazing upon a rose. But even at this stage, there is a residuary aesthetic quality to judgments that apply the modern principles of fundamental justice.

Despite the tendency for section 7’s modern culture of argument to conflate fact and norm, the ultimate constitutional question posed by the principles of fundamental justice remains distinct from the empirical and logical one asking how means and ends fit together. The question is a second-order, normative one: is the observed fit between means and ends itself constitutionally fitting? The judicial appreciation of particulars, which involves articulating purposes, describing means, and assessing effects, is necessary but incomplete. A judge must still reflect disinterestedly upon the acceptability of the fit between means and ends, considering relevant legal arguments and the opinions of others. Judgments about what is arbitrary, overbroad or grossly disproportionate cannot be equated simply to an empirical assessment of instrumental rationality, even if section 7’s modern culture of argument’s approach to how “we” decide seems to gesture in that direction.

The enduring aesthetic character of judgments of constitutional fit, and the distinction between them and assessments of means-ends rationality, is especially conspicuous when one considers the multi-faceted character of public decision-making. I have already addressed the challenges this causes for judges articulating singular legislative objectives. But even assuming

227 Chapter 4 – Traces of Aesthetic Judgment in Section 7 legislative objectives are well-defined, regulatory schemes that address complex problems are difficult to assess from the perspective of instrumental rationality. That is because governments responding to multifaceted problems operate under conditions of epistemic uncertainty. Though they know that different regulatory options will result in different trade-offs between competing considerations, neither they nor the courts know how those trade-offs may play out in practice.99

Since government responses may prioritize interests and values in virtually infinite combinations, and the practical consequences of any single prioritization are difficult to predict and measure, comparisons between alternatives are challenging, to say the least.100

To judge meaningfully whether means are appropriately connected to the objectives, or

“go too far” by regulating unrelated conduct, courts must rely on something more than empirical proof and universal logic. My aesthetic reading of the modern principles of fundamental justice not only emphasizes that gap, it suggests that a sense of taste, or community sense, goes some way towards filling it. The key indications in that regard are the focus of section 7 judgments on concrete particulars, the ineffability of the applicable constitutional standards, and the link between those standards and the understandings of who “we” are described in the previous chapter.

To begin with, judgments about the arbitrariness, overbreadth and gross disproportionality of government action call in the final analysis for an engagement with the unique circumstances of the case. As the Supreme Court emphasized in Bedford, the ultimate question about the arbitrariness or overbreadth of government conduct concerns the significance of the lack of

99 As Sujit Choudry has pointed out, even the impacts of implemented policies can be difficult to demonstrate empirically: Sujit Choudry, “Worse than Lochner?” in Colleen Flood, Kent Roach & Lorne Sossin, eds, Access to Care, Access to Justice: The Legal Debate Over Private Health Insurance in Canada (Toronto: University of Toronto Press, 2005) 75 at 78-87. 100 John Finnis, “Commensuration and Public Reason” in John Finnis, Reason in Action: Collected Essays Volume I (Oxford: Oxford University Press, 2011) 233 [Finnis, “Commensuration”]; contra see Robert Alexy, “On Balancing and Subsumption: A Structural Comparison” (2003) 16:4 Ratio Juris 433.

228 Chapter 4 – Traces of Aesthetic Judgment in Section 7 correspondence between means and ends, which must be “determined on a case-by-case basis.”101

The same goes for the principle against gross disproportionality.

These case-by-case judgments are made in light of the evidence and logical reasoning but are not determined by them. Neither the judicial conclusions in Bedford that prohibitions against keeping a common bawdy-house and communicating in public for the purposes of prostitution were grossly disproportionate, nor the conclusion in PHS that the Minister had exercised his discretion arbitrarily, were logically compelled by a series of intermediate premises. As in aesthetic matters, decisions that government conduct complies with the principles of fundamental justice require courts to confront what Arendt describes as the chief difficulty of judgment – thinking the particular.102 The overwhelming focus of section 7’s modern culture of argument on the facts, discussed in this and the previous chapter, is consistent with this understanding. Although those facts do not speak for themselves, the Court’s appreciation of the challenged government action in its uniqueness is what justifies its opinions: this is arbitrary, this is overbroad; this is grossly disproportionate. These are close to the authentic judgments that Arendt associated with the political public realm; judgments that must be undertaken without inherited standards and criteria, without banisters.

The role of taste is especially striking in the case of the principle against gross disproportionality since its description and application elude technical, deductive logic. To the extent that the principle against gross disproportionality can be said to sanction failures of instrumental rationality, those failures are only instrumental insofar as one might say, colloquially, that someone selected the wrong tool for the job if she used a sledgehammer to crack a nut.103 But

101 Bedford, supra note 78 at para 119. See also para 118 (ibid). 102 Arendt, Lectures, supra note 6 at 76; Kant, CJ, supra note 9 at 11 (Introduction, Part IV). 103 I borrow this analogy from Julian Rivers, “Proportionality and Variable Intensity Review” (2006) 65:1 Cambridge LJ 174 at 180.

229 Chapter 4 – Traces of Aesthetic Judgment in Section 7 gross disproportionality’s origins in the “abhorrent” and “shock the conscience” common law standards, and its correspondence with the balancing stage of proportionality review, suggest that something more is required to conclude that government action is grossly disproportionate.

After all, using a sledgehammer to crack a nut may not be a rational or logical failure. The sledgehammer gets the job done and may be the only tool available. Still, our so-called better judgment may tell us that using a sledgehammer is not justified when all the circumstances are factored in, including the abilities of the person wielding it, the damage or hurt it is likely to cause

(to the nut or to others), the perceived importance of cracking this particular nut, and alternative courses of action available to us. In other words, better not to crack this nut.

I am not suggesting that judgments like this are wholly aesthetic. As I already acknowledged, a person’s sense of what is justified and proportionate is significantly informed by logical reasoning, especially when it comes to the first two component parts of proportionality review.104 However, logical reasoning is not determinative of the constitutional question. Though influential depictions of balancing and proportionality tend to assimilate these kinds of situated judgments to pragmatic moral reasoning,105 something is lost in that critique: the importance of a judge’s aesthetic, affective response. Judgments about the ultimate constitutional fit appeal to an aesthetic sense of taste connected to the pleasure we experience in beholding a world that makes sense106 – a feeling that, in all the circumstances, using a sledgehammer to crack a nut is fitting or out of sync, right or wrong, considering the possible judgments of other community members.

104 Francisco J Urbina, “Is it Really that Easy: A Critique of Proportionality and ‘Balancing as Reasoning’” (2014) 27:1 Can JL & Jur 167 at 189. 105 Ibid; see also Kai Möller, “US Constitutional Law, Proportionality and the Global Model” in Vicki C Jackson and Mark V Tushnet, eds, Proportionality: New Frontiers, New Challenges (Cambridge, UK: Cambridge University Press, 2017) 130 at 138-139; 106 Meyer, “Reason and Power”, supra note 31 at 738.

230 Chapter 4 – Traces of Aesthetic Judgment in Section 7

The kinds of reasons judges invoke to support conclusions about the arbitrariness, overbreadth and gross disproportionality of government conduct hint at the aesthetic sense of taste that animates judgments about the constitutional quality of the means-ends fit. Despite the scholarly culture of justification’s commitment to rationalism and the modern emphasis on a discourse of instrumental rationality in section 7, judicial and scholarly arguments about instrumental rationality and proportionality frequently reach beyond logic and empirical fact to aesthetic and sensory appeals to what seems fitting.

The opinion of the Supreme Court in Bedford is illustrative. Its ultimate judgments about the fundamental justice of the bawdy-house and communicating provisions reveal an aesthetic sensibility. Judging of the gross disproportionality of the former, the Court concluded: “[a] law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose.”107 Concluding that the communicating provision had effects that were grossly disproportionate to its object, the

Court put the point this way: “If screening could have prevented one woman from jumping into

Robert Pickton’s car, the severity of the harmful effects is established.”108

The sensory idiom implicated by the reference to “lost sight,” the Court’s focus on the concrete particular rather than the abstract universal, the validation of judgment through examples familiar to the judging public: these are all characteristics of aesthetic judgments that appeal to an idea, or taste for proportion, rather than to a hard and fast rule of instrumental rationality. This approach to judgment is in fact consistent with the court’s own self-description of the standard imposed by the principle of gross disproportionality earlier in its reasons: “The rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally

107 Bedford, supra note 78 at para 136. 108 Ibid at para 158.

231 Chapter 4 – Traces of Aesthetic Judgment in Section 7 out of sync with the objective of the measure. This idea is captured by the hypothetical of a law with the purpose of keeping the streets clean that imposes a sentence of life imprisonment for spitting on the sidewalk.”109 The court’s resort to a hypothetical example to capture the standard highlights its inchoate, ineffable character. What falls afoul of the modern principles of fundamental justice is difficult to convey in propositional form.

Finally, the link between understandings of collective identity and judicial conclusions that the principles of fundamental justice have been breached, discussed at length Chapter 3, reinforces the aesthetic dimensions of section 7 judgments about the constitutional fit between means and ends. As Arendt emphasized, a sense of taste is what fits a person into a community, and judgments about the arbitrariness, overbreadth and gross disproportionality of government conduct appeal to this kind of community sense.110 The discourse of decontextualized rationalism characteristic of section 7’s modern culture of argument cannot banish the importance of judicial understandings of community – about who counts, what “we” value and how “we” ought to decide.

Though the association between judgment and community is relevant to the appreciation of particulars, as discussed in the previous section, it is perhaps even more relevant to ultimate judgments about the constitutional quality of the means-ends fit. In part, this is because the standard used to judge the relationship between means and ends is shaped by a considered judicial opinion about a community’s collective identity. As I showed in the previous chapter, the delineation of community membership and the articulation of community values are intertwined with what it means to provide a persuasive rational justification for an interference with a constitutional right. My analysis of the PHS judgment in the previous chapter remains on point. In that case, the judicial emphasis on health stakeholders – drug addicts, patients, doctors, public

109 Ibid at para 120. 110 Arendt, Lectures, supra note 6 at 70-72.

232 Chapter 4 – Traces of Aesthetic Judgment in Section 7 health actors – contributed to an understanding of the norms against arbitrariness and gross disproportionality that focused overwhelmingly on quantifiable health effects as evidenced by scientific and social scientific evidence. The Court’s discursive engagement with community members shaped its understanding of persuasive justification in a way that is reminiscent of aesthetic judgments whose very validity is constituted by the consideration of the viewpoints of differently situated community members.111

Partly too, it is because judicial pronouncements about the constitutional quality of the means-ends fit – judgments that say at once what is justified and what is fundamentally just – most closely resemble the prospective political decision that Arendt viewed as the paradigm of authentic judgments. As Hans Lindahl’s scholarship shows, legal judgments in constitutional cases are privileged sites in which a normative community advances and vindicates claims about who “we” are. When a court sanctions an act purportedly taken on behalf of a collective, its judgment implicitly reconstitutes the identity of the collective in whose name the action is taken. Though all facets of section 7 adjudication implicate retrospective judgments about the common world, it is the ultimate normative decision about whether government action conforms to the principles of fundamental justice that most directly shapes “the manner of action to be taken in it.”112 Here

Lindahl’s and Arendt’s insights merge. Just as individuals disclose their identity in public through their words and deeds, so it is that constitutional judgments about the fundamental justice of government action decide not merely what actions a community is to take, but also how it is to look, and what persons belong in it.113 In short, the relationship between contingent understandings

111 Arendt, “Truth and Politics”, supra note 22 at 238. 112 Arendt, “Crisis”, supra note 4 at 219-220. On the interaction between legal claims, politics and community in Arendt’s thought, see also Benhabib, supra note 97 at 139-146. 113 Compare Arendt, “Crisis”, supra note 4 at 219-220 with Hans Lindahl, “Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood” in Martin Loughlin and Neil Walker, eds, The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford: Oxford

233 Chapter 4 – Traces of Aesthetic Judgment in Section 7 of community and the adjudication of section 7 claims is consistent with an aesthetic understanding of judgment that is dependent on a sense of fit that is meaningful at the level of community.114 ef

Judgments about the meaning of the facts and judgments about the constitutional quality of the fit between means and ends are integral to the modern approach to the principles of fundamental justice, and both kinds of judgment display aesthetic features. They claim a validity that is intersubjective, appeal to a sense of taste and are meaningful only within an interpretive community. Despite some differences, judgments of arbitrariness, overbreadth and gross disproportionality in section 7 therefore bear a strong resemblance to aesthetic judgments as

Arendt depicted them.

III. REDEEMING SECTION 7’S CULTURE OF ARGUMENT

I argue in this part that an aesthetic reading of principles of fundamental justice is not merely descriptively accurate. It can also promote better constitutional adjudication. A more candid recognition of the affinities between section 7 judgments and discursively reasoned, intersubjectively valid opinions would encourage judges and commentators to confront how differential understanding of community affect the resolution of section 7 claims, and engage the viewpoints of community members using a fuller set of argumentative resources. These adjudicative practices would bolster the validity of fundamental justice judgments, though that validity is different from the objective rationality to which section 7’s modern culture of argument seems to aspire.

University Press, 2007) 9 [Lindahl, “Reflexive Identity”] at 19, 22. See also Lindahl, “Give and Take”, supra note 49 and Antaki, supra note 29 at 298. 114 Meyer, “Reason and Power”, supra note 31 at 732, 745.

234 Chapter 4 – Traces of Aesthetic Judgment in Section 7

A. Modesty, Candour and Better Judgment

An emphasis on the aesthetic features of fundamental justice judgments would encourage judges to grapple more transparently with the normative implications of community understandings because it fosters judicial attitudes of modesty and candour, which I will address in turn. In the first place, by associating section 7 adjudication with well-formed opinions, not claims to truth, and by recognizing that the validity of their judgments rests on their ability to woo the agreement of fellow community members, an aesthetic conception of judgment enjoins judges to be more modest about their own views, and show greater respect for those of others. This approach echoes Benjamin Berger’s call for humility to be part of the underlying ethos of Canadian constitutional adjudication,115 or Sujit Choudry’s praise for a so-called “jurisprudence of self- doubt.”116 Whatever it is called, it contrasts with the confidence, even hubris, associated with the modern approach to section 7, in which judgments are implicitly premised on a claim to grasp accurately an objective, empirical reality – to reveal what disputes about constitutional rights are

“really” about.117 Though such an approach has a rapacious appetite for facts and data, it has little need for thoughtful engagement with varied perspectives. The “authority of the obvious”118 replaces a reflective exercise of community sense.

The judicial reliance on quantitative data and empirical evidence to resolve the case studies discussed in Chapter 3 is illustrative. All judgments, including those that implicate life, liberty and

115 Benjamin L Berger, Law’s Religion: Religious Difference and the Claims of Constitutionalism (Toronto: University of Toronto Press, 2015) [Berger, Law’s Religion] at 170, 172-174. 116 Choudry, supra note 99 at 78, 86; see also Wilfrid J Waluchow, A Common Law Theory of Judicial Review (Cambridge, UK: Cambridge University Press, 2007) at 10, 213 and Chapter 6. 117 Paul Kahn, “Comparative Constitutionalism”, supra note 79 at 2684; Antaki, supra note 29 at 291. See also Benjamin L Berger, “The Virtues of Law in the Politics of Religious Freedom” (2014) 29:3 JL & Religion 378 [Berger, “Virtues”] at 379. Interestingly, Berger suggests that properly exercised, proportionate judgment can disclaim the pretense to accurately capture reality, a point I explore in more detail below in relation to fundamental justice judgments. 118 Antaki, supra note 29 at 292.

235 Chapter 4 – Traces of Aesthetic Judgment in Section 7 security interests, must be based on sound and relevant evidence. The courts in PHS, Bedford and

Carter had every reason to rely on empirical sources, as they did in other cases resolved using the modern principles of fundamental justice. However, those judgments tend to do a poor job of acknowledging that those sources shine light on some aspects of the underlying problems better than others, and privileging the interests of some community members as opposed to others. The significance of a fair and equitable distribution of health care resources in Chaoulli v Quebec

(Attorney General),119 for instance, or the symbolic importance of commitments to the preservation of life and the condemnation of drug use, in Carter and PHS, are not amenable to rational proof and are marginalized under the modern approach to fundamental justice.120

The point is not that the latter considerations ought to have prevailed, but rather that no single discourse, method or approach to judicial decision-making, even if founded on a discourse of rationality and universality, can comprehensively render the justice issues that arise in section

7 cases. As Hannah Arendt wrote, discussing the relationship between truth and politics, though facts inform opinions, “opinions, inspired by different interests and passions, can differ widely and still be legitimate as long as they respect factual truth.”121 The bias for certain kinds of arguments that attaches to any single approach to substantive justification – and I use bias here not in a pejorative sense but to denote how characteristic features of argumentative cultures affect perceptions about what is persuasive and fitting – limits the ability of judges to achieve the enlarged mentality required to judge well in aesthetic matters.

119 2005 SCC 35, [2005] 1 SCR 791 [Chaoulli]. 120 See on this point Dwight Newman, “Canadian Proportionality Analysis: 5 ½ Myths” (2016) 73 SCLR (2d) 93 at 100-101. Though empirical data plays a limited role in the reasons of the Supreme Court in Carter, its absence undermines the government’s moral justification for the criminal prohibition on assisted dying. The prohibition can accordingly be dismissed as paternalistic. 121 Arendt, “Truth and Politics”, supra note 22 at 234.

236 Chapter 4 – Traces of Aesthetic Judgment in Section 7

In contrast, an aesthetic conception of the principles of fundamental justice holds that persuasive justifications can only be identified – and are constituted – by considering a problem from the perspectives of differently-situated community members. Arendt’s description of the discursive character of opinion-formation is insightful. “In matters of opinion, but not in matters of truth, our thinking is truly discursive, running, as it were, from place to place, from one part of the world to another, through all kinds of conflicting views, until it finally ascends from these particularities to some impartial generality.”122 The analogies with geographic space, physical movement and views are evocative. By considering different worldly vantage points on a section

7 issue, a judge is apt to a gain a better, more impartial appreciation of the issue before her.

Yet, an aesthetic reading shows that the trick of the imagination in judging “does not consist in an enormously enlarged empathy through which one can know what goes on in the mind of all others.”123 Nor does an aesthetic reading imply that valid judgments must bring other members of an actual interpretive community to agree on the outcome, or for that matter that widespread agreement is achievable. The imperative to view fundamental justice issues from all sides means that judges ought to consider the possible and not only the actual viewpoints of others. That is, the interpretive community that underpins the validity of aesthetic judges is a real one, but the possible opinions with which judges ought to concern themselves are those that are formed under the rights conditions – disinterestedly, by persons who are capable of enlarging their mentality to exercise their community sense.

To put the point slightly differently, a broad-based social consensus is not the measure of intersubjectively valid judgments. An aesthetic conception of judgment recognizes that public

122 Ibid at 238. 123 Arendt, Lectures, supra note 6 at 43; see also Benhabib, supra note 97 at 190 and Zerilli “We Feel Our Freedom’”, supra note 84 at 174ff.

237 Chapter 4 – Traces of Aesthetic Judgment in Section 7 opinion can go wrong as surely as it can go right. Valid judgments require judges to scrutinize critically the judgments of differently situated community members to arrive at the best possible overall view of the problem.124 Because of this, aesthetic judgments that rely on community sense do not automatically imply a deferral to the status quo, or a paralyzing relativism.125 Community sense may not inherently vindicate transformative counter-majoritarian claims, but it is not inherently majoritarian and conservative either, in contrast, for instance, to the community standards test familiar from Canadian criminal law on obscenity and indecency.126 In short, an aesthetic reading of fundamental justice judgments recognizes an important role for counter- majoritarian decision-making institutions, but the validity of individual counter-majoritarian judgments depends on the persuasiveness of the justifications marshalled in support of those judgments, and the ability of judging persons to demonstrate impartiality and an enlarged mentality.

The judicial imperative to account better for the perspectives of differently situated persons is linked to another crucial implication of my aesthetic reading: judges ought to display greater candour about the understandings of community that underpin their judgments. I have stressed repeatedly that judicial understandings about who counts, what “we” value and how “we” ought to decide are indissociable from the content of the norms central to the modern approach to fundamental justice. Moreover, as I described in the previous section, the persuasiveness of justifications in section 7 depends on judicial opinions about the meaning of events and the

124 Arendt, Lectures, supra note 6 at 42. This approach has parallels to Martha Nussbaum’s conception of the literary imagination in adjudication, which draws in turn on Adam Smith’s work on the judicious spectator: Nussbaum, supra note 69 at 1480-1481, 1490-1492 and more generally Adam Smith, The Theory of Moral Sentiments (New York: Augustus Kelley Publishers, 1966) [first published: 1759]. 125 Nedelsky, “Judgment”, supra note 40 at 109-110. 126 See e.g. Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69, [2000] 2 SCR 1120.

238 Chapter 4 – Traces of Aesthetic Judgment in Section 7 acceptability of the constitutional fit that are not rationally compelled They require that a person exercise her community sense, or sense of taste.

One of the principal virtues of this approach is that it embraces the relationship between judgment and community, instead of seeking to conceal or suppress it by engaging in proxy debates about a purportedly self-contained instrumental rationality, thereby perpetuating an untenable narrative about the universality and neutrality of fundamental justice adjudication.127 An aesthetic conception not only acknowledges that the adjudication of claims about the arbitrariness, overbreadth and gross disproportionality of government action is a contextualized exercise in persuasion addressed to a concrete community, and that accordingly relies on community-specific forms of legal argumentation and warrants of validity to woo the agreement of its members. More to the point, it views this community-specificity of section 7 adjudication positively, as an essential condition for the exercise of sound judgments.

This essential link between good judgment and community means that courts ought to be more candid and careful about the understandings of “our” community that shape judicial decision- making. This point overlaps partly with the one made previously about the importance for judges to approach the perspectives of other community members respectfully. Clearly, when the validity of judgments is constituted partly by the perspectives of differently-situated community members, assumptions about community limits need to be carefully scrutinized. Justifications that appear persuasive in one context may suddenly appear wanting when considered in the light of a different understanding of the collective, composed of a different set of persons, having different views about what is rationally justified. I broached this topic in Chapter 3. The perceived failures of instrumental rationality at issue in PHS, Bedford and Carter all turned partly on how the relevant

127 Berger, Law’s Religion, supra note 115 at 168-169.

239 Chapter 4 – Traces of Aesthetic Judgment in Section 7 collective was understood by the Supreme Court, even though the modern approach to the principles of fundamental justice privileges a universalist rationalism that shifts the discursive emphasis away from differential understandings of community. In this regard, the attitude of judicial candour is bound up with views about who counts as a member of “our” community, since judges must account for the right perspectives.

The argument for candour also relates to the relationship between judicial decision-making and the other vectors of community discussed in Chapter 3 – encapsulated by the questions about what matters to “us” and how “we” ought to decide. Specifically, judges ought to make more explicit how a community’s substantive and procedural commitments interact with the substance and form that persuasive constitutional arguments are expected to take – how contingent features of cultures of argument shape perceptions of constitutional fit. This insight is especially important in the case of the modern approach to the principles of fundamental justice, which purports to throw aside the formalist trappings and misleading appearances of legal rhetoric and doctrine to reveal underlying normative truths. As Mark Antaki has pointed out rhetorically, judicial and scholarly discussion that endorses proportionality analysis in constitutional rights adjudication

“usually proceeds as if ‘values’, ‘interests’, ‘balancing’, ‘proportionality’ and the associated lexicon are not themselves historically situated modes of speaking.”128

An aesthetic reading of the principles of fundamental justice gives judges reason to push back against this way of thinking by highlighting that every culture of argument has contingent local foundations. Many features of section 7’s modern culture of argument can be defended as an appropriate response to the historic challenges involved in interpreting fundamental justice in a plural and complex Canadian democracy committed to the rule of law. But that approach to

128 Antaki, supra note 29 at 291; see also Berger, Law’s Religion, supra note 115 at 166-167.

240 Chapter 4 – Traces of Aesthetic Judgment in Section 7 justification is not a neutral mechanism that can capture an objective picture of reality, divorced from metaphysical worldviews. The modern approach to fundamental justice is instead a locally- situated mode of perceiving, expressing and resolving disagreements. An aesthetic reading of fundamental justice judgments insists that, despite the modern culture of argument’s emphasis on universality and rationality, it remains a culture in the thick sense of the word.129

This realization, that the assessment of rational justifications depends on the rootedness of judging persons and objects in concrete, human communities, arguably lays the groundwork for better judgments. In contrast with the modern approach to the principles of fundamental justice, which reaches for an impossible standard of a universally-valid rationality, an aesthetic conception of judgment captures the inherent relationship between section 7 judgments and appeals to a ‘we’ and recognizes that community understandings constitute the standards of judgment – even when those standards are designated by universal labels like arbitrariness, overbreadth, gross disproportionality. As importantly, an aesthetic conception recognizes that, as Lindahl’s work shows, community understandings are not static, but are constituted and shaped by constitutional judgment.130 An aesthetic conception gives courts good reason to scrutinize the understandings of collective identity that are implicit in judgments about the instrumental rationality of government conduct, question how those understandings perpetuate or alleviate injustices in specific cases, and imagine how those understandings might be changed for the better.

129 See Paul W Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago: University of Chicago Press, 1999) [Kahn, Cultural Study]; Kahn, “Comparative Constitutionalism”, supra note 79 at 2677-2680. 130 Lindahl, “Reflexive Identity”, supra note 113 at 19, 22; Nedelsky, “Communities”, supra note 41 at 266.

241 Chapter 4 – Traces of Aesthetic Judgment in Section 7

B. Plural Approaches to Justification

A judicial attitude of respect for the perspectives of others and candour about the situated, community-specific character of cultures of argument is also consistent with a willingness to engage in plural forms of legal argument. Since judgments about fundamental justice must woo the agreement of differently situated persons, an aesthetic reading sees value not merely in the substantive opinions of fellow community members. It also values different ways of arguing.131

An aesthetic reading invites courts and litigants to enlist diverse arguments to distinguish between justifications that are persuasive and those that are not. In the present section, I argue that an expanded role for some argumentative tools undervalued by section 7’s modern culture of argument could enhance the special intersubjective validity of fundamental justice judgments. I focus first on examples and reasoning by analogy, and then explain how courts can engage with community narratives to give meaning to norms of rational justification.

1. Examples and Analogies

An aesthetic reading is consistent with a greater reliance on guiding examples and analogical reasoning to adjudicate section 7 claims. The turn to reasoning by analogy finds support in the community-directedness of aesthetic judgments. As I noted in Part I, above, Arendt stresses that, in the absence of determinative rules, judgments ascribing attributes like beauty, goodness – and, I argue, justice and proportionality – are necessarily informed by well-chosen examples that embody those attributes in a judging community. Each exemplar is a “particular that contains within itself…a concept or a general rule.”132 Since propositional formulations do not capture the full nuance of the modern principles of fundamental justice, well-chosen examples – from leading

131 Wessel Le Roux, “The Aesthetic Turn in Post-Apartheid Constitutional Rights Discourse” (2006) J South African L 101 at 115. 132 Arendt, Lectures, supra note 6 at 84-85; Arendt, “Truth and Politics”, supra note 22 at 243-244.

242 Chapter 4 – Traces of Aesthetic Judgment in Section 7 or similar cases – that embody a sense of proportionate justice ought to play a more central role guiding section 7 judgments.133 This is especially so when courts consider interests, goods and commitments that are not easily quantifiable, as discussed just now. Yet attempts to reason by analogy in modern section 7 cases have been underwhelming.

Though the Supreme Court in PHS, Bedford and Carter gestures toward the importance of reasoning from examples for section 7 judgments, its opinions represent significant missed opportunities in that regard. In PHS, for instance, the Court’s reasoning regarding the arbitrariness of the Minister’s decision seems to anticipate an intellectual engagement with the meaning of the norm embodied in R v Malmo-Levine; R v Caine.134 Like PHS, that case turned on the compliance of the criminal prohibition on possession of narcotics with the principles of fundamental justice.

The Court’s analysis begins in PHS by referencing the appraisal in Malmo-Levine of the relationship between the government means and ends, which had led it to conclude that the prohibition on possession was not arbitrary or grossly disproportionate given the state objective to protect public safety.135 But then the Court simply moves on. After enumerating the key factual and evidentiary findings of the trial judge, the Court draws the opposite conclusion from Malmo-

Levine, without grappling explicitly with the similarities and differences warranting a departure from the earlier judgment. Readers are left to speculate on what factors were decisive.136 The

133 Arendt, Lectures, supra note 6 at 76-77; though a voluminous literature is devoted to the nature and role of analogical reasoning in judicial decision-making (see e.g. Cass R Sunstein, “On Analogical Reasoning” (1993) 106:3 Harv L Rev 741) relatively little attention has been paid to the relationship between it and proportionality-based constitutional adjudication. One exception is Antaki, supra note 29 at 298ff. Consider also Berger, “Virtues”, supra note 117, which draws on Sunstein’s related work on incremental reasoning and incompletely theorized agreement. 134 R v Malmo-Levine; R v Caine, 2003 SCC 74, [2003] 3 SCR 571 [Malmo-Levine]. 135 PHS, supra note 81 at para 130; see Malmo-Levine, supra note 134 at para 136. 136 PHS, supra note 81 at para 131.

243 Chapter 4 – Traces of Aesthetic Judgment in Section 7

Court’s consideration of the principles against overbreadth and gross disproportionality, meanwhile, makes no reference to the facts in other cases.

In Bedford, guiding examples and analogies play a more prominent role in the Court’s analyses of the alleged arbitrariness, overbreadth and gross disproportionality of the impugned provisions. However, the uses to which those examples and analogies are put are limited. The

Court emphasizes the exemplary character of previous judgments as it sets about recasting the common rationale that undergirds the modern approach to the principles of fundamental justice. It dwells on the factual circumstances of particular cases in order to ascend to the more general proposition that the modern principles of fundamental justice are concerned with failures of instrumental rationality.137 This reliance on precedents to find and enunciate a “new” general rule is reminiscent of both the common law methodology originally prized in section 7 and Kant’s portrayal of reflective judgments that so influenced Arendt.138

But this early promise of Bedford is never fulfilled. The Court’s consideration of prior judgments embodying norms against arbitrariness, overbreadth, and gross disproportionality are mere weigh-stations that enable the Court to articulate a set of abstract, rationalist standards disconnected from the concrete disputes from which they purportedly emerged.139 When the Court proceeds to judge the compliance of these impugned provisions with the principles of fundamental justice, its normative touchstone is the abstract, rationalist standard.140 The judicial interest in the contextual embodiments of principles of fundamental justice in prior cases is mostly exhausted.

137 Bedford, supra note 78 at paras 93ff. 138 Beiner & Nedelsky, “Introduction”, supra note 19 at ii. 139 Bedford, supra note 78 at para 110. 140 Bedford, supra note 78. The compliance of each impugned provision with the principles of fundamental justice is examined separately, at paras 133-136 (bawdy-house), paras 139-145 (living on the avails), and paras 148-159 (communicating in public). The Court does emphasize judicial precedents when construing the objective of the impugned provisions (see paras 130, 137-138, 146-147), but this is a matter distinct from the meaning and application of the principles themselves.

244 Chapter 4 – Traces of Aesthetic Judgment in Section 7

An aesthetic conception suggests this is a mistake. Stripped of all their secondary qualities, the particulars giving rise to the general, un-definable principle no longer serve an exemplary role.

They are now subsumed within an abstract concept: proportionality- or instrumental-rationality- in-general. The promised case-by-case determination of laws that violate basic norms,141 which might have implied a significant role for incremental and analogical reasoning, is transformed into a decontextualized application of naked rationality to the facts that is formally detached from community understandings.142 In other words, the overwhelming emphasis is on the single case, rather than the web of decisions taken together. On this approach, recourse to examples and analogies is restricted to thin hypotheticals – the side-walk spitter – or rhetorical nods to current events – the serial-killer Robert Pickton. These examples are not superfluous, but they lack the richness and depth that true exemplars need to embody an undefinable general principle, woo community members and guide aesthetic judgments.

The opinion in Carter tells a similar story, with one exception. The Court applies the principles of arbitrariness and gross disproportionality directly to the prohibition on assisted dying, referring to prior examples only to enunciate the abstract norms of rationality.143 The Court’s overbreadth analysis, by comparison, is one instance in which it seeks to illuminate the application of the modern standard to a new context by drawing an analogy with a previous one. Making an explicit comparison between the circumstances of exploited persons in Bedford and Carter, the

Court concludes that provisions that cast their net widely so as to protect exploited or vulnerable persons fall afoul of the principle against overbreadth, and that such justifications are more germane to the section 1 analysis.144

141 Ibid at para 119. 142 Antaki, supra note 29 at 298-299. 143 Carter, supra note 87 at paras 83-84, 89-90. 144 Ibid at para 88.

245 Chapter 4 – Traces of Aesthetic Judgment in Section 7

The cases of PHS, Bedford and Carter highlight the modern culture of argument’s limited engagement with reasoning by analogy. But they also reveal that abstract standards and exemplary cases are not incompatible, and that more thoroughgoing efforts to reason from well-chosen examples would bolster the validity of judicial opinions about fundamental justice.

2. Narrative Understandings of Who “We” Are

An aesthetic conception of judgment also suggests that fundamental justice adjudication ought to approach community understandings narratively, giving greater regard to a community’s prior normative choices and the reasons that underpin them. The importance of previous decisions for section 7 judgments is tied to the gap Arendt saw judgment occupying between past and future within an ongoing, yet contested, community narrative.145 Though Arendt insists that past tradition does not determine judgments, and judgments have unpredictable consequences for the future, she also insists that judgments are necessarily informed by our view of what has come before and what will come after. The loss of tradition characteristic of the modern human condition means that the normative implications of past practices are uncertain – present judgment can denigrate past practices just as it can venerate them. Yet the past still constitutes an essential component of the shared world that makes it possible to speak of valid judgments at all.

Prior decisions can shape judgments in two ways that have implications for fundamental justice adjudication. First, the importance of narrative for aesthetic judgment suggests that the approach to stare decisis that has emerged with the modern turn of section 7 towards standards of means-ends rationality is flawed. Even when judicial precedents are not formally binding, because

145 See the preface in Arendt, Between Past and Future, supra note 3 at 1-15; see also Arendt, “Truth and Politics”, supra note 22 at 254.

246 Chapter 4 – Traces of Aesthetic Judgment in Section 7 of a change in the law or facts, a posture of judicial modesty entails that prior judgments ought to be treated with a measure of deference requiring a careful engagement with supporting reasons.146

Forced to revisit previously resolved constitutional issues in Bedford and Carter, the

Supreme Court took the opportunity to formulate a new and general approach to judicial precedent, including constitutional cases. It announced in both judgments that trial courts may reconsider settled rulings “where a new legal issue is raised” or “where there is a change in circumstances or evidence that ‘fundamentally shifts the parameter of the debate’.”147 These criteria have been criticized for being unduly discretionary, overly permissive, or sowing uncertainty in constitutional adjudication.148 However, an aesthetic reading takes issue instead with the equivalence the court’s approach implies between the weight to be given to prior judgments and the formal issue of stare decisis – the question of whether and when past judgments should be considered binding. Once a significant enough change in the legal or factual circumstances is established, the approach suggested by Bedford and Carter gives courts a relatively free hand to decide constitutional questions afresh, with little incentive to consider prior judicial reasoning on similar issues.

The trouble with this approach is that it risks trivializing prior reasons. Though a commitment to the rule of law and constitutional supremacy certainly requires courts to overrule prior holdings where circumstances warrant, they ought not to do so without engaging carefully

146 This approach is reminiscent of the attitude of “deference as respect” that courts are expected to adopt when judging the reasonableness of an administrative tribunal’s decision, and which has been endorsed in principle, if not always in practice, by the Supreme Court of Canada. Such an approach centres the task of a reviewing court on the substantive reasons given by the administrative decision-maker: David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy” in Michael Taggart, ed, The Province of Administrative Law (Oxford: Hart Publishing, 1997) 278. 147 Carter, supra note 87 at para 44; see also Bedford, supra note 78 at para 42. 148 Newman, supra note 120 at 103-104. Perhaps as a result of these critiques, the Supreme Court recently sought to narrow the circumstances in which lower courts may revisit settled rulings: see R v Comeau, 2018 SCC 15 at paras 28-43. In contrast to the modern fundamental justice’s fact-based culture of argument, that case centred on the textual interpretation of section 121 of the Constitution Act, 1867, (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, a provision relating specifically to trade barriers between provinces.

247 Chapter 4 – Traces of Aesthetic Judgment in Section 7 with the reasons invoked in the prior judgment. But this is precisely what Bedford and Carter contemplate, when viewed in conjunction with the factuality of section 7’s modern culture of argument.149 Every litigant who can demonstrate a significant change in circumstances is entitled to a new appraisal of the instrumental rationality of government action having regard to the contemporary adjudicative and legislative facts.150 The resolution of the threshold question – that the prior judgment is not binding – risks implying that the reasoning underlying that judgment is spent or irrelevant, along with the contribution it made to our collective identity. Given the aesthetic features of fundamental justice judgments, this implication threatens to undermine their persuasiveness and validity. An approach to precedent that decreases the incentive for courts and litigants to engage with the meaning of prior judgments needlessly destroys or conceals a part of a community’s shared world.151

Second, public decision-making outside of the adjudicative context can also enrich narrative understandings of community and inform judgments about what is justified. As discussed above, government responses to multi-faceted problems are hard to evaluate from the perspective of instrumental rationality, and those difficulties are compounded by epistemic uncertainty. The burdens of judgment in such cases are especially fraught when they are viewed out of sequence with prior decisions and commitments, as John Finnis has shown. Finnis uses the example of highway speed limits to illustrate this problem in an essay on commensurability and public

149 This feature of proportionality reasoning has been described as a built-in form of obsolescence: see Joseph Arvay et al, “Stare Decisis and Constitutional Supremacy: Will Our Charter Past Become an Obstacle to Our Charter Future?” (2012) 58 SCLR (2d) 61 at 77ff. The purported independence of proportionality analysis from precedent has been lauded by David Beatty in The Ultimate Rule of Law (Oxford: Oxford University Press, 2004) at 87-91. See also Vald Perju, “Proportionality and Stare Decisis: Proposal for a New Structure” in Jackson & Tushnet, eds, supra note 105, 197 at 206. 150 See e.g. Newman, supra note 120 at 103-104. 151 Engaging with prior judgments could mean following, distinguishing, critiquing, overturning them. Mark Antaki makes a similar point about appeals to examples when he points out that they are not inherently conservative, but can illuminate different possible ways of being: Antaki, supra note 29 at 297.

248 Chapter 4 – Traces of Aesthetic Judgment in Section 7 reasoning.152 Though the choice of a speed limit may seem banal in comparison to contentious and morally-inflected disagreements about prostitution, drug use, and assisted suicide, it is hardly straightforward. As Finnis points out, speed limits attempt to strike a delicate balance between conflicting objectives that include the free movement of people, the protection of life and safety, and the promotion of economic activity. It is easy to see that higher limits facilitate travel and trade at the expense of safety and lower limits do the reverse. But striking a rationally justified balance between these values is another thing altogether. Viewed apart from a community’s historic practice of regulating vehicle traffic, itself underdetermined by instrumental rationality, it would be difficult to judge meaningfully whether a current speed limit is rationally justified.

Though the imposition of speed limits may or may not engage section 7 interests, many difficult regulatory choices do, and judicial decisions about the arbitrariness, overbreadth, or gross disproportionality of these regulatory choices place judges in an equally difficult predicament. The perceived rationality of these choices is influenced by prior ones. This is especially true of decisions that implicate or carry forward constitutional norms. As Paul Kahn puts it, “legal arguments do not begin by asking about ‘the best outcome, all things considered’”153 – though section 7’s modern culture of argument seems to tend in that direction. The point is that every time a community decides what norms to uphold, its decisions affect the range of future normative choices that will be perceived as rational and logical – what choice represents a fitting and just relationship between means and ends.154

152 Finnis, “Commensuration”, supra note 100 at 237-238, 254-255; see also John Finnis, “Legal Reasoning as Practical Reason” in John Finnis, Reason in Action: Collected Essays Volume I (Oxford: Oxford University Press, 2011) 212 at 223. 153 Kahn, Cultural Study, supra note 129 at 43. See also Berger, Law’s Religion, supra note 115 at 57-60. 154 On the importance of narrative to ethical decision-making more generally, see Alasdair MacIntyre’s Ethics in the Conflicts of Modernity: An Essay on Desire, Practical Reasoning, and Narrative (Cambridge, UK: Cambridge University Press, 2016). Benjamin Berger, for one, has argued that the role

249 Chapter 4 – Traces of Aesthetic Judgment in Section 7

The consequences that can flow from failing to approach public decision-making from a narrative perspective are illustrated by the plurality judgment of McLachlin and Major JJ in

Chaoulli. The judges’ assessment of the arbitrariness of the prohibition on private health care insurance, though extensive, focuses almost exclusively on contemporary data and evidence, including the comparative experience of other western democracies; it pays virtually no attention to the historical sequence of decisions tied to the provision of public health care in Canada, even though that sequence partly constitutes the range of rationally justified regulatory outcomes.155

The uproar generated by the Court’s decision touched on many issues: judicial activism, the suitability of the courts as a forum to decide complex policy questions, distributive justice, the fallout for the public health care system.156 What went largely unnoticed was the plurality opinion’s myopic analytical focus on the present. Chaoulli is a warning that a failure to understand public decision-making narratively may undermine the intersubjective validity of fundamental justice judgments. ef

In closing, let me add two points about my suggestions that judges place greater reliance on felicitous analogies and examples, and narrative understandings of community. First, my analysis indicates that there is room for these kinds of arguments to complement and fill out characteristic features of section 7’s modern culture of argument, not that they should displace

of narrative to individual decision-making is paralleled in social institutions and collective life: Berger, Law’s Religion, supra note 115 at 145-148. 155 Chaoulli, supra note 119 at paras 134-153. In contrast, the dissenting reasons of Binnie and LeBel JJ in Chaoulli begin with an introduction that includes a section entitled “Background to the Health Policy Debate” (ibid, paras 171-176) that situates the constitutional challenge in relation to the historic decision to institute a public health care system. Likewise, the Court in PHS, supra note 81, might have acknowledged that the sequence of decisions made at the local, provincial and federal levels establishing Insite and approving its operations shaped the subsequent range of rationally justified measures available to the Minister. As is, these decisions were part of an influential subtext (ibid, at paras 131-132). 156 For a sampling of scholarly critiques, see Flood, Roach & Sossin, eds, supra note 99.

250 Chapter 4 – Traces of Aesthetic Judgment in Section 7 them. Though the forms of argument just discussed have largely been marginalized by the modern approach to section 7, they are not intrinsically in conflict with norms against arbitrariness, overbreadth and gross disproportionality, or standards of proportionality more generally. To the contrary, the work of Arendt and Kant emphasizes that aesthetic judgment thrives where there is a reciprocal engagement between exemplary cases and general principles.157 Moreover, the unique common law origins of the principles of fundamental justice suggest that section 7 adjudication may be well-suited to precisely that sort of hybrid culture of legal argument.

Second, it is important not to lose sight of my broader point about modesty and candour in judicial decision-making. The pragmatic argumentative strategies outlined just now – the reliance upon concrete exemplars, the respectful consideration of prior decisions on related issues – may diminish the appearance of arbitrariness of section 7 judgments, and strengthen their claim to validity, by grounding constitutional rights adjudication in a public world shared among community members. However, none ensures that judges will in fact exercise their community sense well to make intersubjectively valid judgments. They are best understood as elements in a general normative toolkit that supports judges’ attempts to achieve an enlarged mentality by better articulating the conceptions and limits of community that inform their judgments.

IV. CONCLUSION

At the beginning of this chapter I noted a disconnect between the observed priority of certain kinds justifications in section 7’s modern culture of argument, and the seeming indeterminacy of the standard of justification that arises from the equation of the principles of fundamental justice with proportionate standards. I related that disconnect to dual shortcomings of section 7’s modern culture of argument. That culture tends to conceal how it constitutes the limits

157 Beiner & Nedelsky, “Introduction”, supra note 19 at ii.

251 Chapter 4 – Traces of Aesthetic Judgment in Section 7 of “our” community, even as understandings of who counts, what “we” value, and how “we” decide shape assessments of rational justification. The modern culture of argument’s tendency to privilege certain kinds of justification – which correspond to certain understandings of who “we” are – also threatens to undermine the validity of constitutional adjudication involving the principle of fundamental justice, since it appears to rest on little more than judicial preferences.

To resolve those shortcomings, I proposed a novel reading of judgments about the principles of fundamental justice drawing on Hannah Arendt’s aesthetic account of judgment.

Revisiting section 7’s modern culture of argument from that perspective, I argued that its community-specificity ought to be embraced rather than suppressed. It is vital to recognize not only that contingent features of concrete communities give meaning to standards of justification, but also that they ought to do so.

This approach draws inspiration from Arendt’s conception of human reasoning in matters of judgment and opinion, “in which a particular issue is forced into the open that it may show itself from all sides, in every possible perspective, until it is flooded and made transparent by the full light of human comprehension.”158 Along similar lines, I would reiterate that my aim has not been to provide a conceptually unified account of judgments involving the modern principles of fundamental justice, but to gain a better overall view.

A more candid attitude towards the contingent foundations of section 7 judgments – and, I would suspect, to other cultures of argument involving the principle of proportionality – provides a better view, because it is conducive to an environment in which courts and critics are better placed to examine and justify or question those foundations. By shining a light and even cherishing the relationship between justice and community, court and critics would be able to respond more

158 Arendt, “Truth and Politics”, supra note 22 at 238.

252 Chapter 4 – Traces of Aesthetic Judgment in Section 7 thoughtfully to the challenges that plural understandings of who “we” are pose to constitutional adjudication.

253 CONCLUSION

I. LOOKING BACKWARDS: THEMES, OBJECTIVES, LIMITATIONS

In her 1958 book The Human Condition, Hannah Arendt insists that her task is “very simple: it is nothing more than to think what we are doing.”1 Arendt’s claim of simplicity belies the originality and complexity of her study of the fundamental categories of human activity. Yet,

I cannot help thinking that Arendt’s stated objective, “to think what we are doing,” captures well the spirit in which I have tried to carry out this doctoral thesis. Given that Arendt’s aesthetic conception of judgment plays such a vital role in my thesis, it seems doubly fitting that she should serve as my ultimate inspiration as I look back on this doctoral research project and seek to review

– and judge – what I have accomplished and what I have not.

As I understand it, any attempt to think what we are doing implies three components: the thinking, the doing, and the “we” who is engaged in these activities, so let me explain briefly how my thesis embodies those components. As to the first component, Arendt’s use of the verb “to think” underscores the theoretical and contemplative character of her writings, which she viewed as an antidote to the “complacent repetition of ‘truths’ which have become trivial or empty.”2 My sustained examination of the practice of constitutional adjudication involving section 7 of the

Charter, and the understandings that inform those practices, is intended in a similar intellectual spirit. Though my thesis is not an exercise in grand theoretical construction, it is an exercise in theoretical inquiry in the same dynamic sense that Arendt’s work was. On this view, to theorize is not to present and develop an abstract and unified theory. To theorize is instead to engage in an

1 Hannah Arendt, The Human Condition, 2nd ed (Chicago: University of Chicago Press, 1998) at 5. 2 Ibid. Conclusion intellectual and discursive activity, making the implicit explicit, rendering the familiar strange, to reflect on how and why things are, and how and why they might be otherwise.3

This leads me to discuss the next component of Arendt’s description as it relates to my research project, its declared focus on what we are “doing.” Arendt’s characterization of her objective denotes the importance of examining the practices and habits in which we already engage. The motive in so doing is not necessarily to criticize or disavow those practices and habits, though critique and reform could result. Unthinking adherence to customary ways of doing things may just as likely hide or obscure the good reasons that underpin those ways and the wisdom embodied in them. To the extent therefore that “to think what we are doing” implies speculative, theoretical inquiry, it is a form of inquiry that remains grounded in the mundane and concrete. This doctoral thesis aligns itself with that approach by attending carefully to concrete practices of constitutional rights adjudication, seeking fairly to understand at once what value is in them and where they may be lacking.

Turning now to the final component of Arendt’s description, here my project seeks to turn her reflective but grounded form of inquiry inwards. One of my thesis’s distinguishing features is its commitment to think critically not merely about the “doing” – that is, the modern approach to fundamental justice adjudication – but also about the identity of the collective engaged in that activity. In this regard, Arendt’s assertion is admittedly more of an inspiration than a model, as a concern with collective identity is not explicit in The Human Condition. In Arendt’s oeuvre as a whole, however, the existence of a public space of appearance in which citizens act in concert to bring into being a political community is a an underlying theme, and one that contemplates the

3 I have discussed this conception of theory in my other work. See generally Geoffrey Conrad & Jodi Lazare, “The Lawyer in Context: Reimagining ‘Legal’ Education” in Ruth Sefton-Green, ed, Démoulages: Du carcan de l'enseignement du droit vers une éducation en droit (Paris: Société de législation comparée, 2015) 45.

255 Conclusion essential relationship between public actions and collective identity that is central to my thesis.4

Indeed, one of its central aims is to spell out the nature of this relationship in the peculiar context of fundamental justice adjudication and to better comprehend the challenges it poses for contemporary constitutional judges in the face of contested understandings of collective identity.

This continuing effort “to think what we are doing” – to reflect on the modern practice of fundamental justice adjudication in section 7 of the Charter, and its relationship to conceptions of community – undergirds the substance and method of my thesis. In Chapter 1, I took issue with the abstract and universalist approach to global scholarship about the principle of proportionality, arguing that its focus on an undifferentiated culture of justification was unhelpful to address the challenge posed to constitutional rights adjudication by the plural and contested character of justice discourse. To address that challenge productively, my critique advocated a methodological turn away from an idealized model of proportionality review and towards forms of inquiry grounded in the concrete practices of justification that support findings of proportionality in local contexts.

My historical examination in Chapter 2 of the Supreme Court of Canada’s jurisprudence relating to section 7’s principles of fundamental justice was intended to exemplify and lay the groundwork for just such an inquiry. I began by tracing the emergence of the original interpretive approach to the principles of fundamental justice, which was influenced by the common law and privileged the incremental recognition of a plurality of specific, morally substantive principles. I then documented the shift towards the modern approach that predominates today, which leaves most of the heavy lifting in section 7 cases to a small set of principles of fundamental justice that correspond to the component elements of proportionality review: arbitrariness/suitability, overbreadth/necessity and gross disproportionality/balancing. By juxtaposing but also linking the

4 See generally Maurizio Passerin d’Entrèves, The Political Philosophy of Hannah Arendt (London: Routledge, 1994) at 155-161.

256 Conclusion prevailing, modern approach with the early, common law one, I sought to achieve several related objectives. I aimed to shed light on the legal forms and argumentative structures that infuse normative standards with meaning in specific contexts, to better understand the circumstances and the reasons that led Canadian courts to adopt the modern approach to fundamental justice, and to provide an initial description of that approach.

In Chapter 3, to bring into clearer focus what judges do when they use the modern approach to adjudicate fundamental justice claims, I supplemented the historical perspective with a contemporary case study analysis. I examined three disputes ultimately resolved by the Supreme

Court in judgments that cemented the importance of proportionate norms in fundamental justice jurisprudence. As a descriptive matter, this approach aimed to show how judges in concrete cases distinguish between reasons that are persuasive enough to meet the standard of justification embodied by the modern principles of fundamental justice and reasons that are not. That description emphasized the mutually constitutive relationship between section 7’s approach to persuasive justification and conceptions of community. My analysis showed that judges deciding section 7 claims tend to judge what is proportionate by privileging empirical data and universalist rationalism, avoiding substantively moral arguments, and emphasizing concrete individual harms, rather than less tangible collective ones. At the same time, those features of section 7’s culture of argument contribute to the understandings of who “we” are that underpin their judgments. In other words, section 7 adjudication is informed by understandings of who “we” are, but the Court’s distinctive understanding of proportionate justification tacitly influences the understandings of community upon which its judgments rely.

A subsidiary aim of the chapter was to draw attention to some shortcomings of that approach. By translating normative questions into empirical ones, while simultaneously shaping

257 Conclusion the judicial perceptions of “our” community that underpin their resolution, the modern culture of argument glosses over the important role of collective identity in section 7 adjudication, as well as its contested character. This gloss makes it more difficult for courts, lawyers and critics to reason thoughtfully about the justice implications of different understandings of community, and risks exposing constitutional rights adjudication to allegations of subjectivity, arbitrariness and illegitimacy.

Chapter 4 sought to address those normative shortcomings by bringing together the several strands of argument from the first three chapters – and also the several components of “thinking what we are doing.” Using Arendt’s work on judgment as a theoretical framework, I proposed an alternative account of judgments involving the modern principles of fundamental justice that emphasized the indelible role of aesthetic taste in forming those judgments, and their intersubjective, community-specific validity. My account not only acknowledged that judicial opinions about the arbitrariness, overbreadth and gross disproportionality of government action are contextual exercises in persuasion addressed to a concrete community, and rely on community- specific forms of legal argumentation to woo agreement. More to the point, it viewed this community-specificity of section 7 adjudication positively, as an essential condition for the exercise of sound judgment.

The primary advantage of emphasizing the aesthetic features of fundamental justice adjudication is suggested by the title of this dissertation: to make better sense of who “we” are. In the first place, an aesthetic conception of fundamental justice adjudication does this by recognizing the indissociable relationship between conceptions of collective identity and the meaning of constitutional standards, even when those standards are couched in the abstract, universal terms

258 Conclusion characteristic of proportionality review. In this sense, to judge constitutional cases at all is to articulate and project a vision of who “we” are to the members of our community and beyond.

At the same time, an aesthetic conception of fundamental justice adjudication directs judges’ attention to the contingent community foundations that underpin their constitutional judgments. This direction encourages judges to be more candid and modest about the understandings of community upon which they rely, and aims to provide them with argumentative resources to examine, justify or question those foundations. Notwithstanding the modern approach to fundamental justice, to decide fundamental justice cases well, judges must necessarily make sense of who “we” are. This means using their aesthetic sense of taste to judge what is justified, having regard to understandings of who counts in “our” community, what “we” value, and how

“we” ought to decide, knowing that these understandings are always contestable.

Having reviewed the principal things that I sought to do in this thesis, it is also worthwhile to dwell briefly on some of the things that I did not set out to do. I made this point explicitly in the introduction and I will repeat myself now: this doctoral thesis has been envisioned, conceived and executed as a contribution to a cultural study of law.5 Accordingly, my project’s primary motivation has not been to advance a project of law reform. Instead, my objective has been to explore what it means for one normative community to be committed to a model of constitutional rights adjudication that relies centrally on the principle of proportionality, and which associates norms of fundamental justice with an abstract standard of rational justification.

Nor does my project aspire to make grand claims about the fundamental nature of proportionality review, constitutional rights adjudication, or the legitimacy of judicial review. My methodological critique of dominant trends in comparative constitutional rights scholarship, which

5 See generally, Paul W Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago: University of Chicago Press, 1999).

259 Conclusion tends to see in the global ascendance of proportionality review a uniform constitutional culture of justification, reflects my scepticism about simplifying narratives of constitutional convergence and claims about the purported essence of constitutional adjudication.

Though my project is informed by and seeks to contribute to international and comparative scholarship, I have accordingly sought to avoid categorical assertions about constitutional rights adjudication. Modern fundamental justice judgments have significant aesthetic features; however, they are not perfect analogues for aesthetic ones, as Kant or Arendt understood them. My aesthetic account helps to illuminate how judges distinguish between persuasive and less persuasive justifications using the modern principles of fundamental justice, and offers a promising lens through which to examine and explore other instances of proportionality review. Indeed, I would strongly encourage other scholars to undertake studies examining characteristic practices of justification in other settings. However, it would be premature and reductionist to assert that my aesthetic account is the key to understanding proportionality review tout court.

II. LOOKING FORWARDS: BROADER IMPLICATIONS AND UNANSWERED QUESTIONS

Though these reservations ought to be constantly kept in mind, I am not disinclined to consider connections between different aspects of my work and broader issues related to the theory and practice of constitutional rights adjudication, where warranted. The problem at the heart of my project – the problem of judging the quality of justifications in the face of pervasive and frequently profound disagreements about who counts, what values matter, and how public decisions ought to be made – is is bound up with contemporary concerns in comparative constitutional rights literature. As I mentioned in my introduction, despite my thesis’s focus on the localized culture of argument characteristic of constitutional claims invoking the principles of fundamental justice, it is my hope and conviction that this thesis can help scholars of constitutional rights adjudication, proportionality review, and judicial review more generally, in Canada and around the world, to

260 Conclusion examine their concerns and interests in a new light. I will briefly consider some insights that might be drawn from my project for debates about the theory and practice of constitutional rights adjudication, before identifying some key unanswered questions that my project raises.

For one thing, an aesthetic conception of judgment can highlight and complement misunderstandings about the normative foundations of proportionality review that are exacerbated by an emphasis on a singular culture of justification. As I pointed out in Chapter 1, the purported association between proportionality review and general moral reasoning provides, at best, an incomplete normative defence of the former. That association offers little insight into the distinction between persuasive and unpersuasive justifications. Moreover, as I also pointed out in

Chapter 1, scholarly efforts to supplement or redeem that account tend to fall short: what counts as a good justification cannot be determined by reference to a perfected conception of democratic legitimacy, an idealized form of public reasoning, or quasi-mathematical logic. Nor can good justifications be identified solely through a commitment to a universal and neutral standard of instrumental rationality, of the kind that animates modern section 7 case law, as I showed in

Chapter 3.

But even though the identification of persuasive justifications cannot be entirely governed by rules in the way that proponents of proportionality-based adjudication seem to wish, it is also a misunderstanding of proportionate judgments to dismiss them uniformly as the product of uncritical judicial preferences, or to use that most biting invective among legal scholars, as pure politics.6 Jürgen Habermas’s critique of balancing is representative of this view. Given proportionality’s haste to achieve legal commensurability between all manner of values, rights, interests and principles – a charge to which a singular emphasis on justification is particularly

6 Paul W Kahn, “Comparative Constitutionalism in a New Key” (2003) 101:8 Michigan L Rev 2677 at 2689.

261 Conclusion susceptible – Habermas alleges that proportionality review abandons any attempt at principled or logical conceptualization. Since proportionality review denies that rights are trumps that necessarily ought to be given normative priority, and there are no rational standards by which to assess competing values, judges weigh claims “arbitrarily or unreflectively.”7

Habermas’s critique is not only representative of themes that reappear again and again in scholarship on proportionality review.8 It also encapsulates the sort of dichotomies that an aesthetic conception of the principles of fundamental justice helps transcend. If rights do not have the status of deontological rules, arbitrariness results; or, the absence of rational standards leads to unreflective judgments. These dichotomies are implicitly reinforced by many proponents of proportionality review, too. As I showed in Chapter 1, efforts to justify proportionality review as the best approach to constitutional rights adjudication insist on its objectivity and rationality, with

David Beatty and Robert Alexy being the original standard-bearers of these arguments. Section

7’s modern culture of argument falls prey to precisely this type of binary thinking.

An aesthetic reading of the principles of fundamental justice can help to show that these dichotomies misconstrue the terms of the debate about proportionality review’s normative foundations. On the one hand, section 7 judgments are not entirely rule-governed or rationally compelled. On the other hand, section 7 judgments are not arbitrary or unreflective either. Though section 7 judgments have an essential contingency and subjectivity, as all judgments with aesthetic dimension do, that contingency and subjectivity do not inherently undermine their validity. The

7 Jürgen Habermas, Between Facts and Norms, trans by William Rehg (Cambridge, Mass: MIT Press, 1996) at 259; see also Steven Greer, “‘Balancing’ and the European Court of Human Rights: A Contribution to the Habermas-Alexy Debate” (2004) 63:2 Cambridge LJ 412 at 414. 8 Consider e.g. T Alexander Aleinikoff, “Constitutional Law in the Age of Balancing” (1987) 96:5 Yale LJ 943; Grégoire Webber, The Negotiable Constitution (Cambridge, UK: Cambridge University Press, 2009); Stavros Tsakyrakis, “Proportionality: An Assault on Human Rights” (2009) 7:3 Intl J Const L 468; Francisco J Urbina, “Is it Really that Easy: A Critique of Proportionality and ‘Balancing as Reasoning’” (2014) 27:1 Canadian Journal of Law and Jurisprudence 167.

262 Conclusion example of section 7 shows that attempts to suppress and minimize the importance of local particularities on the meaning of normative standards of proportionality may weaken the validity of constitutional rights adjudication. That validity can be enhanced, not hindered, by recognizing that the sufficiency of justifications depends on a contextualized exercise in persuasion that relies on contingent and community-specific legal arguments.

An aesthetic conception of section 7 adjudication may also help to overcome some perceived difficulties that come from associating section 7’s guarantee of fundamental justice with an abstract standard of rational justification. One such difficulty is conceptual. Indeed, the universalist, value-neutral, and context-independent discourse privileged by the modern approach to the principles of fundamental justice is difficult to reconcile with the existence of a plurality of locally-situated cultures of argument that support judgments of proportionality. An aesthetic view of fundamental justice judgments diffuses that tension. It does so by insisting that section 7’s modern culture of argument is itself a context-specific approach to the justification of government action that interferences with rights.

As I showed in Chapter 2, the distinctive features of section 7’s culture of argument emerged organically as courts responded to the challenge of interpreting and applying fundamental justice guarantees to concrete disputes. The transition away from an incremental, bottom-up, common law approach; the associated convergence between the principles of fundamental justice and proportionate standards; the appeal to a purportedly value-neutral idea of instrumental rationality that focuses on tangible harms to individual – may have been reasonable responses to adjudicative challenges confronted in section 7 cases, but none was inevitable. In short, an aesthetic view of judgment shows that the abstract and universalist discourse at the centre of section 7’s modern approach does not have a monopoly on normative truth. In the process, by

263 Conclusion highlighting the possibility that constitutional questions could be decided otherwise, it also opens up avenues through which the modern approach to fundamental justice adjudication can be disciplined, critiqued and improved.

A second, more practical difficulty, relates to the ambiguous internal relationship between section 7 and the Charter’s general limitations provision, section 1.9 In the early days of Charter adjudication, Lamer J suggested that section 7 interferences might only be justified under section

1 in rare circumstances, such as “cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.”10 As it turns out, no interference with a section 7 right has ever been upheld by a majority of the Supreme Court as a reasonable justification under section 1.11 Yet, even as the Supreme Court has developed an approach to the principles of fundamental justice that mimics the requirements of proportionality review, it has been at pains to explain that its approach does not render the Oakes test of section 1 redundant. To the contrary, the Court has gestured towards the possibility that an interference with life, liberty or security of the person interests may “in the end be found to be proportionate to its objective,”12 meeting the justificatory standard imposed by section 1. The possibility that the apparently similar normative standards of rationality in section 7 and section 1 might lead to different conclusions in the same factual circumstances has puzzled many legal scholars.

9 Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Section 1 reads: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” 10 Re BC Motor Vehicle Act, [1985] 2 SCR 486 at 518. Lamer J offered these comments even before section 1 had been interpreted to require a form of proportionality test. See also Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 SCR 350, at para 66. 11 Peter W Hogg, Constitutional Law of Canada, 2017 student ed (Toronto: Thomson Reuters Canada, 2017) at pp 38-49. In 2015, the Ontario Court of Appeal found that a deprivation of security of the person that breached the principle of fundamental justice against overbreadth was justified under section 1: R v Michaud, 2015 ONCA 585, (2015) 127 OR (3d) 81 at paras 114-145. 12 Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 at 95ff; see also Hamish Stewart, “Bedford and the Structure of Section 7” (2015) 60:3 McGill LJ 575 at 593-594.

264 Conclusion

An emphasis on the aesthetic features of proportionate judgments supports the view that section 7 and section 1 might both play a meaningful role in claims that implicate the modern principles of fundamental justice. It does so by dissociating judgments of proportionality from claims to declare universal normative truths. Once one accepts that the contextual meaning of similar proportionate standards may conceivably differ, diverging results in section 7 and section

1 need not be incongruous or incoherent. Different cultures of argument can and should endorse different understandings of persuasive justifications.

Given the particularities of section 7’s modern culture of argument, which I described in detail in Chapter 3, I would suggest furthermore that such a possibility could be desirable. Hamish

Stewart has lamented the “troubling possibility”13 that violations of the principles of fundamental justice might nonetheless be deemed proportionate and justified according to the Oakes test, as such a development would weaken the protection of individual rights. However, given the tendency for section 7’s culture of argument to conflate empirical and normative questions, to avoid moral discourses and emphasize the importance of measurable harms – and to delineate the limits of community accordingly – I would highlight an opposite concern. Too close an association between proportionate justification in section 7 and section 1 would unnecessarily limit the possibility for courts to justify normative choices that aim to vindicate collective goals and intangible interests that are difficult to quantify and measure. Canada’s overall constitutional rights architecture might benefit from recognizing that section 7 and section 1 have distinctive conceptions of persuasive justification, and ought to behave differently depending on the context.14

13 Stewart, supra note 12 at 594. 14 An important caveat attaches to this view. Distinctive roles for section 1 and section 7 of the Charter when it comes to the assessment of justifications for rights interferences would only be defensible to the extent that judges themselves can acknowledge – consistent with an aesthetic conception – that contextual particularities affect the meaning and not merely the application of proportionate standards. Without such an acknowledgement, conflicting analyses in section 1 and section 7 could lead to consternation.

265 Conclusion

Although this thesis may contribute to greater clarity on some issues in constitutional rights adjudication, it also raises questions and challenges, many of which would benefit from further examination. Here I discuss two sets of challenges: the first concerns the uncertain effects of an aesthetic conception of judgment on the perceived legitimacy of counter-majoritarian judicial review. The second concerns the nature and scope of the interpretive community to whom constitutional judgments are addressed.

An aesthetic conception of the principles of fundamental justice contemplates a role for counter-majoritarian decision-making. As I explained in Chapter 4, the special intersubjective validity of aesthetic judgments rests on the anticipated agreement with the possible and not the actual opinions of other judging persons. As a result, an aesthetic conception of judgment does not assume the existence of a broad-based social consensus, but even if a widely-shared consensus did exist it would not on its own indicate that that consensus was valid. The possible opinions with which a judging person ought to concern herself are those that are well-formed under the right conditions, that is disinterestedly, by persons capable of enlarging their mentality to exercise their community sense, and capable too of motivating their judgments in such a way as to persuade their fellow community members.15 An aesthetic conception of judgment recognizes that the majority can make poor decisions, just as it can make good ones.

My discussion in Chapter 4 also emphasized that many of the institutional conditions that obtain in constitutional rights adjudication – at least in the Canadian context – tend to foster good judgment. An emphasis on the aesthetic features of judging defends the validity of counter- majoritarian decision-making partly on the basis that constitutional and supreme court judges will

15 Hannah Arendt, “Truth and Politics” in Hannah Arendt, Between Past and Future: Eight Exercises in Political Thought, intro by Jerome Kohn (New York: Penguin Books, 2006) 223 [Arendt, “Truth and Politics”] at 237.

266 Conclusion be better placed than the average member of the political majority to exercise a sense of aesthetic taste to arrive at persuasive judgments.

But a recognition of the aesthetic features of constitutional rights adjudication can also undermine the claimed legitimacy of counter-majoritarian decision-making. That is because the claimed validity of such decisions is relatively frail and never settled. Just as public opinion can judge poorly, so can courts. Since the validity of judgments is inherently limited and no individual judgment can be proven universally true, the strength of constitutional judgments is linked to the capacity of constitutional judges to enlarge their mentality to judge well. On this view, the case for counter-majoritarian decision-making is continually dependent on the persuasive quality of constitutional judgments, which rests partly on the motivating reasons, but partly too on their demonstrated and perceived impartiality. This puts the onus on judges as human beings to discharge their judicial functions to the best of their abilities. An aesthetic conception of judgment therefore underscores the fact that, as Alexander Bickel wrote over fifty-five years ago, a supreme court “[labours] under the obligation to succeed,”16 where success means issuing decisions that are capable of wooing the agreement of other judging persons in the community.

This observation leads into the other set of concerns noted above. If constitutional rights adjudication labours under the obligation to succeed by wooing agreement, whose agreement does it actually seek to woo? In other words, is the interpretive community that really matters for the purposes of establishing intersubjective validity composed essentially of an inner circle of elite jurists, such as law professors and appellate court judges? Or members of the legal profession more widely? Or, is the relevant interpretive community a truly encompassing one, composed of all members of the political community, notably persons who lack legal expertise and social, cultural

16 Alexander M Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd ed (New Haven: Yale University Press, 1986) [originally published in 1962] at 239.

267 Conclusion and political influence? There is much that could be said about the nature of the interpretive community implicated by an aesthetic conception of proportionate judgment – much more than I could possibly say here – so I will limit myself to a few key remarks. As a way of framing those,

I will touch on the perceived tendency for constitutional rights adjudication in different settings to converge not just on the form of proportionality review, but on substantive outcomes.17

I have insisted in this thesis that local particularities and the perspectives of differently situated community members do and should inform the meaning of abstract proportionate standards, drawing on the example of section 7 adjudication. However, the narrative of convergence might instead suggest that a global clique of apex courts, influential academics, and prominent lawyers has an outsized influence on judges’ sense of what is constitutionally justified

– regardless of whether those understandings correspond to or conflict with the well-formed views of local community members.

This apparent global trend suggests a tension in my aesthetic account of persuasive justification. However, converging constitutional outcomes are not in themselves incompatible with a robust, community-dependent conception of intersubjectively valid judgments. As I explained just now, an aesthetic conception of judging stresses the constitutive importance of other peoples’ perspectives on valid judgments, and it accordingly does not delegate judgment to public opinion polls. Constitutional judges may justifiably depart from majoritarian preferences, and

17 As I noted in Chapter 1, many scholars of proportionality review emphasize that it has produced similar, and purportedly correct, outcomes in similar cases across jurisdictions. Consider e.g. David M Beatty, The Ultimate Rule of Law (Oxford: Oxford University Press, 2004); David M Beatty, “In Praise of Casuistry: Making Hard Cases Easier” in Vicki C Jackson & Mark Tushnet, eds, Proportionality: New Frontiers, New Challenges (Cambridge, UK: Cambridge University Press, 2017) 273 at 274-275; and Kai Möller, The Global Model of Constitutional Rights (Oxford: Oxford University Press, 2012). Though this narrative of convergence needs to be substantiated by further empirical research, a review of prominent constitutional cases that rely on proportionality review does give the impression of courts in western liberal democracies converging on constitutional outcomes with respect to issues such as same-sex marriage, the inclusion of LGBTQ persons in the military and physician-assisted dying, for example.

268 Conclusion judges in different jurisdictions may each have their own justifiable and persuasive reasons for arriving at similar counter-majoritarian conclusions.

Moreover, the interconnectedness of world economies and communication networks means that many political, social and cultural developments transcend linguistic and geographic borders, jointly shaping the meaning and application of abstract standards of proportionality in local jurisdictions. This could lead to similar outcomes in different constitutional spaces, without necessarily calling into question the local character of the interpretive community to whom proportionate judgments are addressed, and without implying that constitutional courts in western liberal democracies have managed to identify some underlying and universal normative truth

A different explanation for converging on constitutional outcomes is also compatible with a community-dependence conception of normatively valid judgments, though it would suggest that judges may be failing in practice to exercise their aesthetic sense of taste well. Nothing in my argument was meant to suggest that judging is easy. Quite the contrary. As Kant put it:

[J]udgment is a peculiar talent which can be practised only, and cannot be taught…A physician, a judge, or a ruler may have at command many excellent pathological, legal, or political rules, even to the degree that he may become a profound teacher of them, and yet, none the less, may easily stumble in their application.18

Kant said this about all judgments, but the difficulties are even greater for aesthetic ones, in which particulars must be judged without reference to a pre-given universal rule, without a banister.19 It is an exercise filled with stumbling blocks that are only exacerbated when differently-situated

18 Immanuel Kant, Critique of Pure Reason, trans by Norman Kemp, rev 2nd ed (Basingstoke, UK: Palgrave Macmillan, 2007) [English translation first published 1929; published in the original German in 1787] at 177-178 (A133-134; B172-173). 19 Hannah Arendt, “Understanding and Politics” in Essays in Understanding:1930-1954 (New York: Schocken Books, 2005) 307 at 321; Hannah Arendt, Lectures on Kant’s Political Philosophy, ed by Ronald Beiner (Chicago: University of Chicago Press, 1992) [Arendt, Lectures] at 76.

269 Conclusion persons are likely to have conflicting opinions about what values matter, how justice conflicts ought to be resolved, and whose interests and viewpoints count.

Cross-jurisdictional agreement about the appropriate way to resolve similar constitutional rights disputes may point to the facility with which persons who occupy similar judicial offices, and are likely to be representative of similar classes, races and cultures, are able to imagine themselves in the place of their peers, and craft arguments that are capable of persuading them.

Putting themselves in the shoes of an indigenous sex worker in Vancouver’s Downtown Eastside represents a different challenge. In other words, judges may have difficulty enlarging their mentality to see problems from the perspective of persons whose lived reality is radically different from their own, and who do not share a similar educational, professional and socio-economic background.

To that extent, an aesthetic account of judgment underscores the importance of institutional efforts to encourage and help judges to train their imaginations to go visiting, as Arendt once put it.20 Relevant initiatives might include judicial education programs that sensitize judges to unfamiliar social and cultural contexts, or redoubled efforts to diversify the judiciary and the legal profession. A more diverse body of lawyers and judges would not only mean that more of these would tend to bring their own different private perspectives to legal cases they were called upon to resolve. As importantly, greater heterogeneity in the legal profession would foster interactions with differently-situated peers.21 Over time, these interactions might accustom individual judges

20 Arendt, Lectures, supra note 19 at 43. 21 Jennifer Nedelsky has relied on Arendt’s conception of judgment to make a similar point regarding diversity in the legal profession. See Jennifer Nedelsky, “Embodied Diversity and the Challenges to Law” (1997) 42 McGill LJ 91 at 107-108; and Jennifer Nedelsky, “Judgment, Diversity and Relational Autonomy” in Ronald Beiner & Jennifer Nedelsky, eds, Judgment, Imagination and Politics: Themes from Kant and Arendt (Lanham, Md: Rowman & Littlefield, 2001) 103 at 116-117. Arendt herself did not believe that exchanges of views with actual others were necessary to achieve an enlarged mentality. Consider e.g. Hannah Arendt, “The Crisis in Culture” in Arendt, Between Past and Future, supra note 15,

270 Conclusion to consider problems from the standpoints of different others – even when those others are absent.

Both of these initiatives would enhance judges’ ability to distance themselves from their own

“subjective private conditions” and judge disinterestedly according to taste.

A more thoroughgoing consideration of the nature of the interpretive community implicated in constitutional judgments would require further socio-legal or sociological research.

Though I am keen to take up that challenge in future research, and encourage others do so as well, informed especially by grounded research into local cultures of justification, I will not engage in any further conjecture on these issues for the time being. Still, I am not troubled by my aesthetic account’s inability to provide definitive answers to these questions. One of the principal virtues of an aesthetic conception of fundamental justice judgments is that it foregrounds these questions. It requires jurists to pose questions about the nature of the interpretive community to whom constitutional claims of justification are addressed, and in whose name they purport to be made.

Moreover, it requires judges to confront alternative possibilities of community explicitly and directly, and to substantiate their own understandings with persuasive arguments. These twin commitments are reflected in the judicial attitudes of modesty and candour that I described in

Chapter 4 and also in the identity-forming dynamic of question and response that I detailed in

Chapter 3. Together, they underscore how important it is for judging persons to be sensitive to the existing limits of community, and to relate incessantly to the ways in which “our” community could be differently understood – notably in terms of who counts, what “we” value and how “we” ought to decide.

194 at 217: “…the thinking process which is active in judging something is not…a dialogue between me and myself, but finds itself always and primarily, even if I am quite alone in making up my mind, in an anticipated communication with others with whom I know I must finally come to some agreement” [emphasis added].

271 Conclusion

It is primarily on this ground that the conception of persuasive justification that predominates in section 7’s modern culture of argument falls short. By factualizing and decontextualizing normative problems, the modern approach to the principles of fundamental justice reduces the imaginative and critical potential of constitutional adjudication in the face of pervasive disagreement about what counts as a good justification. Facts, after all, admit of no reasonable disagreement; they claim “peremptorily…to be acknowledged”22 or fall to be dismissed summarily as “fake” or “untrue.” My alternative reading of the requirement of justification in section 7 would allow courts to draw on the resources internal to section 7’s culture of legal argument to make sense of who “we” are, and so respond more meaningfully to the challenge that plural understandings of community pose to judgments about what is justified.

22 Arendt, “Truth and Politics”, supra note 15 at 236.

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295