Constitutional
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Centre for Constitutional Studies Centre d’études constitutionnelles
Volume 15, Number 3, 2006
Constitutional Forum constitutionnel
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107 Canada’s Native Languages: The Right of First Nations to Educate Their Children in Their Own Languages David Leitch
121 An Opportune Moment: The Judicial Appointment Reforms and the Judicial Credentials Demanded by the Charter Daniel Nadler
135 Charter Rights and Public Policy Choices: The Supreme Court and Public Finance Hugh Mellon
147 Invalidity and Retrospectivity Under the Irish and Canadian Constitutions Ailbhe O’Neill
Constitutional Forum constitutionnel Volume 15, Number 3, 2006
Canada’s Native Languages: The Right of First Nations to Educate Their Children in Their Own Languages
David Leitch*
Introduction Now, there is no more distinguishing feature of most cultures than their languages. Nor is Canada used to consider itself not only there a more meaningful way for a country to a bilingual, but also a bicultural country.1 recognize and preserve any of its constituent Biculturalism was based on the idea that cultures than to constitutionalize the right to Canada had two founding cultures, the educate children in the language of that culture French-language culture dominant in Quebec at public expense. That is precisely the right and the English-language culture dominant that Mr. Trudeau delivered to the English and everywhere else, with French and English French minorities of Canada through section minorities scattered across the country. This 23 of the Canadian Charter of Rights and view of Canada obviously failed to recognize Freedoms.4 Moreover, as will been seen, the both the Aboriginal cultures that existed Supreme Court of Canada has unequivocally prior to European contact and the cultures of affirmed that the main purpose of this right is those immigrants who came to Canada with to preserve and promote the cultures associated no knowledge of French or English or with with those languages. knowledge of those languages but otherwise distinguishable cultures. In other words, Canada’s brand of multiculturalism does not place all cultures Prime Minister Pierre Trudeau appeared on an equal footing. The Charter may protect to announce the death of biculturalism in 1971 all cultures and languages from governmental when his government introduced the policy of interference,5 but it only explicitly gives the right multiculturalism. He declared at that time that to publicly funded education to Canada’s official Canada no longer had any “official” cultures.2 language minorities, that is, the anglophone But this only replaced the old fiction with a minority inside Quebec and the francophone new one. In the same term of office in which minorities located in other provinces and Mr. Trudeau denied the existence of official territories. cultures, he passed a law recognizing French and English as Canada’s official languages.3 Despite what is provided for in the Charter, this paper nevertheless asks whether Canada’s First Nations also have the constitutional right to educate their children in their own languages
Constitutional Forum constitutionnel 107 at public expense. It attempts to answer this Further, Her Majesty agrees to pay the salary question by examining the following sub- of such teachers to instruct the children of said issues: Indians as to Her Government of Canada may seem advisable, when said Indians are settled 1. How has education in Aboriginal languages on their Reserves and shall desire teachers.9 been governed since Confederation? The vagueness of the historical treaties is 2. Even if it is not their constitutional right, explained by a comment found in the body of can and should Canada’s First Nations have Treaty No. 10, signed in 1906: the legislated right to educate their children As to education, the Indians were assured in their own languages at public expense? that there was no need for special stipulation 3. Does section 35 of the Constitution Act, over and above the general provision in the 1982 constitutionalize this right? treaty, as it was the policy of the government to provide in every part of the country as far as 4. If so, what is the value of this constitutional circumstances would permit, for the education right to First Nations? of the Indian children, and that the law provided for schools for Indians maintained The paper refers briefly to the international and assisted by the government.10 law implications of the question posed, but Despite the vagueness of the historical proposes an answer based entirely on Canadian treaties, the federal government had very constitutional law. That choice is deliberate: definite ideas about the kinds of schools it while the reader might disagree with the intended to provide. Under predecessors to the paper’s interpretation of domestic law, there current Indian Act,11 the government embarked can be no dispute that, properly interpreted, upon a century-long attempt to assimilate native that law applies in Canada and binds Canadian children by placing up to one third of them governments.6 (approximately 100,000) in residential schools under the direct control of Anglican, Catholic, How Has Education in Aboriginal Presbyterian, and Methodist churches. Over 100 such schools were established in all but Languages Been Governed Since two provinces. Contrary to the treaties, these Confederation? schools were not always located on reserves. Even if they were, Aboriginal children were Pre-confederation treaties between Ab- isolated from their families and communities, original and non-Aboriginal peoples were for were forbidden to speak their native languages, peace and friendship. Upon Confederation in and were severely punished for doing so. The 1867, the federal government acquired exclusive Annual Report of the Department of Indian jurisdiction over “Indians, and Lands reserved Affairs in 1895 outlined the goal of residential for the Indians.”7 Between 1871 and 1923, the schools: “If it were possible to gather in all the federal government entered into an addition- Indian Children and retain them for a certain al thirteen treaties with First Nations, eleven period, there would be produced a generation numbered treaties and the two “Williams” trea- of English-speaking Indians, accustomed to the ties. The text of these historical treaties8 dealt ways of civilized life.”12 primarily with the creation of Indian reserves and the maintenance of Aboriginal hunting Since the closing of the last residential and fishing rights. Education for Aboriginal schools in the early 1980s, the federal children was mentioned only in the numbered government has not passed any legislation treaties, and then only in the vaguest of terms recognizing the right of First Nations to and never with any reference to the language of educate their children in their own languages. instruction. Treaty No. 7 was typical: It has, instead, allowed Indian school boards greater control over the 500 or more on- reserve schools. This increased autonomy has
108 Volume 15, Number 3, 2006 been achieved through a combination of block silent on the language of education. Of course, funding arrangements13 and bilateral transfer since the Supreme Court of Canada’s decision agreements between individual bands and the in Marshall 1,16 the interpretation of treaties Department of Indian Affairs and Northern is no longer restricted to the written text. Development. Canadian Heritage, another Extrinsic evidence of the historical and cultural branch of the federal government, also funds context, as well as oral representations and Aboriginal language initiatives undertaken by understandings, may be also considered even both local and national Indian organizations. in the absence of any ambiguity on the fact of These bureaucratically controlled measures the treaty. It would, therefore, be open to a First have permitted some First Nations to educate Nation to present oral evidence establishing their children in their own languages. They have that on its understanding of the agreement not, however, given First Nations an enforceable reached, the treaty included its right to educate right to educate their children in their own its children in its own language. languages, and they have not imposed on the federal government an enforceable obligation to However, it must be acknowledged that fund such education. such evidence might not be available, might prove to be ambiguous, or might even suggest Since education is a matter of provincial or the opposite conclusion. In the Thomas case, territorial jurisdiction in Canada,14 it may be the trial judge observed: thought that any federal legislation establishing those kinds of rights and obligations would In the present case, evidence was given by the Chief of the Peguis Band, that according to oral be unconstitutional. It would not. Aboriginal tradition, the purpose of the education clause languages are incontrovertibly located at the in Treaty No. 1 was to provide educational core of “Indianness.” Education of Aboriginal services to the Indians to enable them to children in those languages has, therefore, compete with non-Indians in the post-Treaty always remained within the primary, if not the era.17 exclusive, authority of the federal government. Yet, the federal government has never asserted This type of evidence would, arguably, its full legislative authority in this area. On the support a finding that the First Nation contrary, the federal government has equipped understood and accepted that its children would itself with the power to effectively delegate learn things that would “enable them to compete this authority to the provinces and territories. with non-Indians,” including, presumably, Under section 88 of the federal Indian Act, the non-Indian languages. Indeed, the historical federal government can simply adopt, without context might also support a finding that, at any federal legislation, “all laws of general the time the treaty was entered into, the First application in force from time to time in any Nation was still unaware of both the potential province” and make those laws “applicable threat to the survival of its own language and to and in respect of Indians in the province.” the potential need, generations later, to ensure According to the Supreme Court of Canada, the survival of the language by teaching it to this section authorizes the federal government children in schools established under the treaty. to “incorporate by reference” provincial laws of In any event, even if a court accepted that oral general application even when the application or other evidence supported a finding that an of those laws to Indians alters or impairs their historical treaty included the First Nation’s right “Indianness.”15 Section 114 of the current Indian to educate its children in its own language, that Act still permits the federal government to enter finding would be based on the evidence in that into agreements with provinces and territories case and would not necessarily assist other First for the education of Indian children. Nations. It would clearly not assist First Nations who never entered into treaties with Canada or It is true that section 88 does not permit the United Kingdom. provincial laws to override treaty rights but, as noted, the text of the historical treaties was
Constitutional Forum constitutionnel 109 It is also true that recent education and any one or more of the languages recognized self-government agreements in three provinces under official languages statutes. There are ten have recognized the right of First Nations to official languages in the Northwest Territories: determine the language of education of their Cree, English, French, Gwich’in, Inuinnaqtun, children. Here again, however, the implementa- Inuktitut, Inuvialuktun, North Slavey, South tion of that right is achieved through a combi- Slavey, and Taîchô. There are eight official nation of federal and provincial laws, which are languages of Nunavut: Chipewyan, Cree, limited to the Indian bands and the provinces Dogrib, English, French, Gwich’in, Inuktitut, in question. Not unexpectedly, the result is a and Slavey. In the Yukon, the Minister of patchwork of laws across the country that may Education may authorize an educational be summarized as follows. program or part of an educational program to be provided in an Aboriginal language after In seven of the ten provinces, English and receiving a request to do so from a School French are the only languages of instruction Board, Council, school committee, Local in public schools. This is the case in Alberta, Indian Education Authority or, if there is no Manitoba, New Brunswick, Newfoundland and Local Indian Education Authority, from one of Labrador, Ontario, Saskatchewan, and Prince the Yukon First Nations recognized under the Edward Island. In these provinces, Aboriginal federal Yukon First Nations Self-Government languages may be the subject of study in publicly Act.27 funded schools attended by Aboriginal children, but First Nations have no right to educate their children in their own languages. Even If It Is Not Their In three of the ten provinces — Nova Scotia, Constitutional Right, Can and British Columbia, and Quebec — agreements on Should Canada’s First Nations Have education or self-government give certain First the Legislated Right to Educate Nations the right to determine the language of education of their children in publicly funded Their Children in Their Own schools. In Nova Scotia, this is accomplished Languages at Public Expense? through a federal statute and a provincial statute, First Nations are not properly regarded as both called the Mi’kmaq Education Act.18 In “minorities” in Canada. They are instead peoples British Columbia, it is accomplished through whose ancestors inhabited North America long a federal statute and a provincial statute, both before European contact. Indeed, this fact was called the Nisga’a Final Agreement Act,19 and accepted as the foundation of Aboriginal rights through the federal Sechelt Indian Band Self- by the Chief Justice of the Supreme Court of Government Act20 and the provincial Sechelt Canada in 1996 the leading case of R. v. Van der Indian District Enabling Act.21 In Quebec, it is Peet: accomplished through the federal Cree-Naskapi 22 (of Quebec) Act, the provincial Act Respecting In my view, the doctrine of aboriginal rights Cree, Inuit and Naskapi Native Persons,23 and exists, and is recognized and affirmed by the provincial Charter of the French Language.24 s. 35(1), because of one simple fact: when First Nations in these three provinces who Europeans arrived in North America, are not covered by these laws have no right to aboriginal peoples were already here, living in educate their children in their own language in communities on the land, and participating publicly funded schools.25 in distinctive cultures, as they had done for centuries. It is this fact, and this fact above There are three territories in Canada: all others, which separates aboriginal peoples the Northwest Territories, Nunavut, and the from all other minority groups in Canadian society and which mandates their special legal, Yukon. Under the education statutes of both 28 the Northwest Territories and Nunavut,26 the and now constitutional, status. language(s) of instruction are determined by District Education Authorities, who may choose
110 Volume 15, Number 3, 2006 This paper will presently turn to the ques- French-language schools and, in one province, tion of whether section 35(1) of the Constitution prohibited instruction in French for a period of Act, 198229 constitutionalizes the right of First time.33 Immigrant children have always been re- Nations to educate their children in their own quired to learn, if they did not already know it, languages at public expense. However, it must the language of instruction of Canada’s public first be emphasized that even if, contrary to the schools. But residential schools were again dra- views expressed later in the paper, this right matically different. They did more than teach has not been constitutionalized, it still can and Aboriginal children English or French; they should be recognized through ordinary federal isolated those children from their families and and provincial legislation. communities for the express purpose of destroy- ing their knowledge of their own languages and In theory, this kind of legislation would be cultures. In these circumstances, it is not enough open to attack by minority languages groups on that residential schools were eventually closed or the ground that it violates their right to equality that some residential school victims may even- 30 under the Charter. In practice, section 25 of the tually recover damage awards for their language Charter pre-empts such attacks by stipulating losses.34 First Nation communities should now that the Charter cannot be used to “abrogate or be given the legislated right to educate their chil- derogate from any aboriginal, treaty or other dren in their own language at public expense. rights . . . that pertain to the aboriginal peoples of Canada.”31 This means that even if the right There is a third reason to accord First Nations of First Nations to educate their children in their this right. By doing so, Canada would conform to own languages is not a constitutional right, it the emerging international standards set by other is still possible for that right to be created and countries with indigenous populations, such as implemented by ordinary federal and provincial the United States, Finland, and New Zealand.35 legislation and, hence, included in the expression “other rights . . . that pertain to the aboriginal peoples of Canada.”32 As such, the legislated right Does Section 35 of the Constitution would be sheltered from attack by other minority Act, 1982 Constitutionalize the language groups seeking the same right. Right of First Nations to Educate As for the reasons why Canada’s First Nations Their Children in Their Own should have the legislated right to educate Languages? their children in their own languages at public expense, there are at least three. First, of Canada’s Our topic requires us to examine the import fifty-three native languages, all but three – Cree, of the first three subsections of section 35 of the Inuktitut, and Obijway – are extinct or will soon Constitution Act, 1982,36 as set out below. The cease to exist unless they are taught to the children fourth and last subsection of section 35 reads as and grandchildren of the dwindling numbers of follows: “Notwithstanding any provision of this people who still speak them. These languages may Act, the aboriginal and treaty rights referred to also be spoken in the United States, but are under in subsection (1) are guaranteed equally to male equal, if not greater, threat of extinction. The and female persons.”37 While this provision is near-death status of most Aboriginal languages obviously important, it is not, in the present makes their situation dramatically different from context, capable of generating serious legal that of other languages in Canada, all of which debate. are spoken elsewhere in the world. Second, the precarious state of most Ab- original languages is a direct result of residen- tial schools. No other cultural group in Canada has been subject to a state-sponsored attempt to eradicate its language. English-speaking pro- vincial governments have often refused to fund
Constitutional Forum constitutionnel 111 (A) Section 35(1): “The existing aboriginal The Court also required that the pre-contact and treaty rights of the aboriginal peoples practice, custom, and tradition “have continuity of Canada are hereby recognized and with” the present-day practice, custom, and 43 affirmed.” tradition claimed as an Aboriginal right. According to the Supreme Court of Canada’s Since every human society has created 1990 decision in R. v. Sparrow, this subsection its own language, it might be argued that an constitutionalizes “existing aboriginal and Aboriginal society’s need to communicate treaty rights.”38 Given the potential difficulties was equivalent to its need to “eat to survive,” and limitations of arguments based on treaty and that its language could not, therefore, be rights, as noted above, this paper focuses on described as distinctive to its culture. However, whether First Nations still possess “existing in Van der Peet, the Court was careful to aboriginal rights” to educate their children in emphasize that Aboriginal rights are defined by their own languages. This question raises two their “distinctiveness,” not their “distinctness.” issues: (1) Did First Nations ever have that It gave the following example drawn from its “Aboriginal right”?; and (2) Did they still have it previous decision in Sparrow: in 1982, when section 35(1) was adopted? Certainly no aboriginal group in Canada (i) Did First Nations ever have the could claim that its culture is “distinct” or “Aboriginal right” to educate their children in unique in fishing for food; fishing for food is their own languages? something done by many different cultures and societies around the world. What the The leading case on the definition of Musqueam claimed in Sparrow . . . was rather “Aboriginal rights” is again the Supreme Court that it was fishing for food which, in part, made of Canada’s 1996 decision in R. v. Van der Peet.39 Musqueam culture what it is; fishing for food The Court there noted that Aboriginal rights was characteristic of Musqueam culture and, were recognized by the common law prior therefore, a distinctive part of that culture. to 1982. The Court stated that their further Since it was so it constituted an aboriginal right under s. 35(1).44 recognition under section 35(1) was “directed towards the reconciliation of the pre-existence It might also be argued that the education of aboriginal societies with the sovereignty of children in schools was foreign to Aborigi- of the Crown.”40 For constitutional purposes, nal societies prior to contact with Europeans. the Court adopted the following definition of This may well be true, particularly in relation to Aboriginal rights: “the practices, traditions and reading, writing, and other academic subjects. It customs central to the Aboriginal societies that is nonetheless certain that Aboriginal societies existed in North America prior to contact with educated their children in their own languages the Europeans.”41 in their own ways, successfully transmitting those languages from generation to generation Beyond this basic definition, the Court held prior to European contact. According to the that in order to be “central” to the Aboriginal Van der Peet decision, Aboriginal rights are not society in question, the activity had to be to be denied just because Aboriginal societies “integral” to its “distinctive culture”: “adapted” their practices, customs, and tradi- The court cannot look at those aspects of tions in response to the arrival of Europeans. the aboriginal society that are true of every It is only “where the practice, custom or tradi- human society (e.g., eating to survive), nor tion arose solely as a response to European in- can it look at those aspects of the aboriginal fluences” that it fails to meet the standard for society that are only incidental or occasional recognition as an Aboriginal right.45 Looked at to that society; the court must look instead from this perspective, Aboriginal societies are to the defining and central attributes of the 42 entitled to adapt their teaching methods with- aboriginal society in question. out losing their Aboriginal right to continue teaching their children in their own languages. As the Court observed:
112 Volume 15, Number 3, 2006 The evolution of practices, customs and decisions in this area have always emphasized traditions into modern forms will not, provided the link between the right to educate children that continuity with pre-contact practices, in a particular language and the maintenance customs and traditions is demonstrated, 46 of the distinctive culture associated with that prevent their protection as aboriginal rights. language. The most eloquent description of that Moreover, when considering the effect of link is found in the 1990 decision of Mahe v. 49 residential schools, it is important to note the Alberta, in which Dickson Chief Justice wrote Court’s willingness to overlook certain breaks and quoted as follows: in “continuity” between pre-contact and The general purpose of s. 23 is clear: it is to present-day practices, customs, and traditions. preserve and promote the two official languages The Court rejected the need for proof of “an of Canada, and their respective cultures, by unbroken chain of continuity,” stating: ensuring that each language flourishes, as far as possible, in provinces where it is not It may be that for a period of time an aboriginal spoken by the majority of the population. group, for some reason, ceased to engage in a The section aims at achieving this goal by practice, custom or tradition which existed granting minority language educational rights prior to contact, but then resumed the to minority language parents throughout practice, custom or tradition at a later date. Canada. Such an interruption will not preclude the establishment of an aboriginal right.47 My reference to cultures is significant: it is based on the fact that any broad guarantee of Finally, the Van der Peet decision makes it language rights, especially in the context of impossible to argue that Aboriginal rights can education, cannot be separated from a concern only be asserted in relation to physical resources for the culture associated with the language. such as land, game, or fish, and not in relation Language is more than a mere means of to intellectual resources such as languages. The communication, it is part and parcel of the Court wrote: identity and culture of the people speaking it. It is the means by which individuals Aboriginal rights arise from the prior understand themselves and the world around occupation of land, but they also arise from them. The cultural importance of language the prior social organization and distinctive was recognized by this Court in Ford v. Quebec cultures of aboriginal peoples on that land. In (Attorney General): considering whether a claim to an aboriginal right has been made out, courts must look at Language is not merely a means or both the relationship of an aboriginal claimant medium of expression; it colours the to the land and at the practices, customs content and meaning of expression. It and traditions arising from the claimant’s is, as the preamble of the Charter of the distinctive culture and society. Courts must French Language itself indicates, a means not focus so entirely on the relationship of by which a people may express its cultural aboriginal peoples with the land that they identity.50 lose sight of the other factors relevant to the identification and definition of aboriginal There is no reason to believe that the rights.48 Supreme Court of Canada would regard education in Aboriginal languages as less It must be acknowledged that the Supreme important for the distinctive cultures of First Court of Canada has yet to comment on the Nations than education in English and French status of Aboriginal languages under section for the distinctive cultures of Canada’s official 35(1). It has, however, decided numerous cases language minorities. involving section 23 of the Charter. As will be recalled, this is the section of the Charter (ii) Did First Nations still have the that gives official language minorities the “Aboriginal right” to educate their children in constitutional right to educate their children in their own language in 1982, when section 35(1) their own language at public expense. The Court’s was adopted?
Constitutional Forum constitutionnel 113 Section 35(1) constitutionalizes only “ex- case of Delgamuukw v. British Columbia, the isting aboriginal . . . rights.” Since there were Supreme Court held that even when provincial no relevant constitutional amendments prior laws are “adopted” by the federal government to 1982, the Aboriginal rights of First Nations under section 88 of the Indian Act,54 that continued to exist thereafter unless they were section “does not evince the requisite clear and extinguished prior to 1982 either by treaty or by plain intent to extinguish aboriginal rights.”55 federal legislation. Dealing first with extinguishment by (B) Section 35(2): “‘[A]boriginal peoples of treaty, it is settled law that any ambiguities or Canada’ includes the Indian, Inuit and Métis doubtful expressions in the wording of trea- peoples of Canada” ties must be resolved in favour of the Indians. This subsection is of particular significance In its 1996 decision in R. v. Badger, the Court for the Métis, people of mixed Aboriginal and reiterated that “any limitations which restrict European ancestry. The Van der Peet decision the rights of Indians under treaties must be anticipated that the Aboriginal rights of this 51 narrowly construed.” The historical treaties group would have to be defined differently contemplated the establishment of schools, but than those of the Indian and Inuit peoples. In they placed no restrictions on the language of its 2003 decision in R. v. Powley,56 the Supreme instruction and did not, therefore, extinguish Court confirmed that because the Métis people the right of First Nations to educate their chil- developed their own identity and ways of life dren in their own languages. after the European arrival, their Aboriginal As for pre-1982 federal laws, the Sparrow rights could not be fairly defined using the pre- decision held that such laws could extinguish European contact test adopted in Van der Peet. Aboriginal rights only if they manifested a Instead, the Court enunciated the following test “clear and plain intention” to do so.52 Just as for the definition of Métis Aboriginal rights: there has never been a federal law recogniz- [Their] unique history can most appropriately ing the right of First Nations across Canada to be accommodated by a post-contact but pre- educate their children in their own languages, control test that identifies the time when neither has there ever been a federal law ex- Europeans effectively established political and pressly extinguishing this right. The policies legal control in a particular area. The focus of residential schools were obviously inconsis- should be on the period after a particular tent with the exercise of that right, but these Métis community arose and before it came were policies, not laws, and they did not affect under the effective control of European laws all First Nations in the same way. Indeed, in and customs. This pre-control test enables us to identify those practices, customs and Sparrow, the Court held that even valid federal traditions that predate the imposition of laws restricting or regulating Aboriginal rights European laws and customs on the Métis.57 did not extinguish those rights. The Court ob- served that incorporating such laws into a sec- The Métis language, Mitchif, a blend of tion 35 analysis would freeze a “constitutional French, Cree, Ojibway, and Dene is, therefore, patchwork quilt” reflecting nothing more than an Aboriginal language for the purposes of the the different ways the Aboriginal rights of dif- present inquiry. ferent First Nations happened to be regulated in 1982 or before. The Court again declared: (C) Section 35(3): “For greater certainty, “The phrase ‘existing aboriginal rights’ must be interpreted flexibly so as to permit their in subsection (1) ‘treaty rights’ includes evolution over time.”53 rights that now exist by way of land claims agreements or may be so acquired” Finally, in view of the importance of This subsection, added in 1983, anticipates provincial laws as explained above, it must the signing of “modern” treaties or “land be emphasized that such laws are incapable of claims agreements,” and appears to recognize extinguishing Aboriginal rights. In the 1997
114 Volume 15, Number 3, 2006 their constitutional status. As noted above, the right of First Nations to educate their children federal government has, in fact, signed various in their own languages. What value would that transfer, educational, and self-government constitutional right have to First Nations? agreements with First Nations since 1982 and has also passed enabling legislation in three provinces and one territory. However, the What is the Value of This federal government has not been prepared to Constitutional Right to First acknowledge the constitutional status of these Nations? arrangements without the participation and agreement of the province concerned, as was On one view of the matter, this Aboriginal/ obtained in the Nisga’a Final Agreement.58 constitutional right would have little value to The Federal Policy Guide on Aboriginal Self- First Nations. True, the federal government Government states: could no longer legislate that right out of existence, but First Nations already have As a general principle, existing self-government protection against that remote possibility agreements will continue to operate according through the Charter’s guarantee of freedom to their existing terms. If requested by the 61 Aboriginal groups concerned, and with the of expression. Moreover, according to the full participation of the province or territory Supreme Court’s decision in Sparrow, the concerned, the federal government would federal government would still be entitled be prepared to explore issues related to to regulate or otherwise infringe upon the constitutional protection of aspects of the right so long as it could meet a standard of self-government arrangements set out in the justification involving proof of the following: Sechelt Indian Band Self-Government Act that the regulation was for a “compelling in British Columbia, the Cree-Naskapi (of and substantial” objective, that it respected Quebec) Act, and the Yukon First Nations Self- “the special relationship of trust” between Government Act. Any changes or amendments the Crown and Aboriginal peoples, that it to existing arrangements, however, would only infringed as little as possible on the right, and be made with the full agreement of all parties that it was implemented in consultation with concerned.59 First Nations.62 Provincial laws of general It should be noted that in the same docu- application would also be allowed to regulate ment, the federal government acknowledged or infringe upon the right under the authority that Aboriginal self-government should extend of section 88 of the Indian Act,63 subject to “to matters that are internal to the group, inte- the same standard of justification. Finally, the gral to its distinct Aboriginal culture”60 and, in Aboriginal/constitutional right recognized that regard, specifically mentioned Aboriginal by section 35 would not include an explicit languages and education. guarantee of public funding for Aboriginal language education; that kind of guarantee has Ironically, since self-government negotia- only been given to Canada’s official language tions deal with all sorts of other matters beside minorities through section 23 of the Charter. language rights and tend to be very protracted, they have effectively prevented First Nations These observations may be legally accurate, from establishing their constitutional right to but they do not provide a proper measure of the educate their children in their own language. potential value of the Aboriginal/constitutional That is because while these negotiations have right at issue. Such an appraisal requires an produced very few constitutionally recognized analysis of the right from two additional treaties including that right, they have discour- perspectives: (1) the nature of the right, and (2) aged First Nations from asserting that right its relationship with the Royal Proclamation of in the courts. Let us nevertheless assume that 1763. the Supreme Court of Canada has just decided that section 35 does recognize and affirm the Aboriginal and, therefore, the constitutional
Constitutional Forum constitutionnel 115 (A) Nature of the Right that the freedom to choose is meaningless in the absence of a duty of the State to take positive Supreme Court jurisprudence to date has steps to implement language guarantees.64 only analyzed Aboriginal/constitutional rights in the context of access to physical resources Addressing specifically the Charter right such as land, game, or fish. First Nations have to educate children in the official languages of asserted their rights in these cases in order to Canada, the Supreme Court’s 1990 decision in stop governments from authorizing activities Mahe stated: that threatened to eliminate or reduce their access to those resources. The provision provides for a novel form of legal right, quite different from the type of In constitutional law terms, this kind of legal rights which courts have traditionally right is often called a “negative” right. It operates dealt with. Both its genesis and its form are to negate the authority of any government evidence of the unusual nature of s. 23. Section to extinguish or infringe upon Aboriginal/ 23 confers upon a group a right which places constitutional rights, though, as just noted, positive obligations on government to alter or develop major institutional structures.65 infringements are still possible on proof of justification. Most of the provisions contained Moreover, there is no doubt that the in the Charter operate in the same way. They provincial and federal governments of Canada negate the authority of any government to already have positive obligations to provide deprive citizens of certain rights and liberties, funds for the education of all children, whether such as equality, freedom of expression, or Aboriginal or not, and whether covered freedom of association, unless those violations by treaties or not. Are those governments can be justified under section 1 of the Charter. relieved of any duty to respect the Aboriginal/ constitutional right of First Nations to educate Now, in the present context, freedom of their children in their own languages merely expression is not just another right guaranteed because that right, unlike the right given by by the Charter. On the contrary, it guarantees, section 23, is not accompanied by an explicit among other things, the right of all citizens guarantee of public funding? Sections 16 to 20 to educate their children in their own, non- of the Charter contain no explicit reference to official, languages at their own expense. It public funding either, but there is nevertheless would, therefore, make little sense to regard the no doubt that the Governments of Canada and Aboriginal/constitutional right of First Nations New Brunswick are constitutionally bound to educate their children in their own languages to provide the funding necessary to fulfill the as merely a reaffirmation of the “negative” right positive language obligations imposed upon they already possess under the Charter. It makes them by those provisions. more sense to regard that right as a “positive” right intended not to negate governmental authority, but rather to impose governmental (B) The Royal Proclamation of 1763 responsibility. As previously explained, the federal gov- This view, in fact, is concordant with the ernment could have asserted direct legislative Supreme Court of Canada’s views about the authority over the education of Aboriginal chil- nature of language rights generally. In its 1999 dren in Aboriginal languages across Canada, decision in R. v. Beaulac, a majority of the Court but has never done so. Again, on one view of the wrote: matter, government inaction of this kind was, and still is, constitutionally acceptable because Language rights are not negative rights or no government is required to fully exercise its passive rights; they can only be enjoyed if the legislative authority. That authority is permis- means are provided. This is consistent with the sive, not mandatory. Where Aboriginal rights notion favoured in the area of international law are concerned, however, there is a competing view, one that traces its origins back to the Roy- al Proclamation of 1763.
116 Volume 15, Number 3, 2006 The British had just defeated the French for this right can be characterized as contrary to control over most of North America, but had both logic and law: logic, because the continued inherited a new and urgent problem. To colo- exercise of this right does not require the nize this vast territory, they needed first to come reversal of any land cessions, and law, because to terms with the still-powerful Aboriginal na- only the continued exercise of this right permits tions who did not consider themselves bound its “evolution over time.” by the British victory, but who were prepared to recognize the British Crown if that would help Moreover, if this right was constitutionalized to stem the steady encroachment of settlers onto in 1982, it can be further asserted that the their lands. The solution adopted by the Royal federal government has, since then, had Proclamation of 1763 offered something for ev- a double fiduciary duty to act to protect eryone: it asserted British sovereignty over all Aboriginal languages hovering on the brink of lands not already “ceded” by Aboriginal nations, extinction. The submission would be that since i.e., most of the continent; it promised Aborigi- the federal government can no longer pass a nal nations “who live under our Protection” un- law extinguishing an Aboriginal language right disturbed possession of these lands; and it cre- recognized under section 35 of the Constitution 68 ated a process for further settlement, but only Act, 1982, it can also no longer fail or refuse to through future land surrenders to the Crown. pass a law designed to protect that right from This third feature forced local governments and imminent extinction. settlers to acquire lawful title directly from the No doubt, the federal government would Crown, thus facilitating more peaceful colo- still maintain that it has acted, both by funding nial expansion. But it also created a monopoly Aboriginal language initiatives and by allowing over the terms on which Indians surrendered many First Nations greater control over education their lands, as they were specifically prohibited generally. It might also dispute the need for from transferring their lands to anyone but the federal legislation, alleging that such legislation Crown. On Confederation, control of this mo- could never accommodate the differing needs nopoly passed from the British Crown to the and attitudes of all First Nations. Government of Canada. However, where language education rights More than two hundred years after the are concerned, a government can comply with Royal Proclamation, in the 1984 case of Guerin its minimal constitutional obligation only by v. Canada, the Supreme Court of Canada held enacting laws turning that obligation into an that the Crown-only surrender requirement enforceable right. This was made clear by the “and the responsibility it entails” were “the Supreme Court of Canada’s decision in Mahe, source of a distinct fiduciary obligation owed by 66 regarding section 23 of the Charter. That the Crown to the Indians.” The Supreme Court section does not specifically require provincial then expanded the scope of the fiduciary duty legislatures to pass laws implementing the in Sparrow by agreeing with a lower court that constitutional right. Yet, the Court described the the federal government has the “‘responsibility constitutional obligation of those legislatures as . . . to protect the rights of Indians arising from follows: the special trust relationship created by history, treaties and legislation.’”67 [T]he government should have the widest possible discretion in selecting the institutional It can, therefore, be asserted that the federal means by which its s. 23 obligations are government has, and has always had, a fiduciary to be met; the courts should be loathe to duty to protect the Aboriginal right of First interfere and impose what will be necessarily Nations to educate their children in their own procrustean standards, unless that discretion languages. That right was clearly part and parcel is not exercised at all, or is exercised in such of their Royal Proclamation right to undisturbed a way as to deny a constitutional right. Once possession of unceded land. Any suggestion that the Court has declared what is required in subsequent land cessions somehow diminished Edmonton, then the government can and must do whatever is necessary to ensure that
Constitutional Forum constitutionnel 117 these appellants, and other parents in their Notes situation, receive what they are due under s. 23. Section 23 of the Charter imposes on provincial * David Garth Leitch, LL.B, LL.M, can be reached legislatures the positive obligation of enacting at [email protected]. The author wishes precise legislative schemes providing for to thank Judith Garber, Deborah Hawken, and minority language instruction and educational Delia Opekakew for their comments on an earlier facilities where numbers warrant. To date, the version of this paper. The opinions expressed can legislature of Alberta has failed to discharge be attributed only to the author. that obligation. It must delay no longer in 1 In 1963, the government of Prime Minister Lester putting into place the appropriate minority B. Pearson appointed a public enquiry known language education scheme.69 as the Royal Commission on Bilingualism and Biculturalism. Its mandate was to recommend ways to recognize the equality of Canada’s “two Conclusion founding peoples.” 2 House of Commons Debates (8 October 1971) at This paper has asked whether Canada’s 8545 (Right Hon. P.E. Trudeau). First Nations also have the constitutional 3 The federal government he led introduced the right to educate their children in their own firstOfficial Languages Act in 1969. See Official th language at public expense. The word “also” Languages Act, R.S.C. 1985, c. 35 (4 Supp.). acknowledges the fact that section 23 of the 4 Part I of the Constitution Act, 1982, being Charter70 specifically gives that constitutional Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter]. Section 23 provides: right to Canada’s official language minorities. It (1) Citizens of Canada is clear that First Nations do not have exactly a) whose first language learned and still the same right as official language minorities; understood is that of the English or the latter right is, for example, subject to the test French linguistic minority population of “where numbers warrant.” The pedagogical of the province in which they reside, challenges facing First Nations would also be or very different than those facing official language b) who have received their primary school minorities. instruction in Canada in English or French and reside in a province where Still, this paper has proposed a positive the language in which they received that instruction is the language of answer to the question posed. It has done so the English or French linguistic by reading the Supreme Court of Canada’s minority population of the province, jurisprudence in relation to Aboriginal rights have the right to have their children receive primary and secondary school together with its jurisprudence in relation to instruction in that language in that section 23 of the Charter. The opinion expressed province. is that Parliament can be obliged to adopt (2) Citizens of Canada of whom any child legislation implementing the constitutional has received or is receiving primary or right of First Nations to educate their children secondary school instruction in English in their own languages. Such legislation would or French in Canada, have the right to have all their children receive primary give First Nations an enforceable right and and secondary school instruction in the would permit the courts to measure and evaluate same language. that right against constitutional standards. The (3) The right of citizens of Canada under paper has also expressed the opinion that even subsections (1) and (2) to have their if federal legislation implementing this right children receive primary and secondary is not constitutionally required, it would still school instruction in the language of the be within the joint legislative authority of the English or French linguistic minority population of a province federal and provincial governments, it would be justified, and it would survive Charter scrutiny. a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and
118 Volume 15, Number 3, 2006 b) includes, where the number of those ainc-inac.gc.ca/pr/trts/trty10_e.html>. children so warrants, the right to have them receive that instruction in 11 R.S.C. 1985, c. I-5. minority language educational facilities 12 Canada, Dominion of Canada Annual Report provided out of public funds. of the Department of Indian Affairs (Ottawa: Queen’s Printer, 1895) at xxiii, online: Library and 5 Ford v. Quebec (Attorney General), [1988] 2 S.C.R. Archives Canada Constitutional Forum constitutionnel 119 34 Cloud v. Canada (Attorney General) (2004), 73 (1988), 28 O.A.C. 201 at para. 44 (C.A.), Blair J.A. O.R. (3d) 401, 2004 CanLII 45444. The recent 68 Supra note 4. Indian Residential Schools Settlement Agreement 69 Supra note 49 at 393 [emphasis added]. of 8 May 2006 does not provide specific 70 Supra note 4. compensation for loss of language. It provides instead a “common experience payment” for all losses resulting from attendance at residential schools except sexual and serious physical abuse for which losses are assessed individually. See Official Court Notice, online: 120 Volume 15, Number 3, 2006 An Opportune Moment: The Judicial Appointment Reforms and the Judicial Credentials Demanded by the Charter Daniel Nadler* In 2005, Minister of Justice Irwin Cotler • Diversity within the framework of merit. proposed and tabled in Parliament a number “[T]he Supreme Court of Canada bench of reforms to the federal judicial appointment should to the extent possible reflect the process. These reforms were designed to diversity of Canadian society.”2 increase the transparency and enhance the accountability of the procedures by which judges • Accountability and nonpartisanship are appointed to federally operated Canadian through two-pronged transparency. “First, courts, including the Supreme Court of Canada. ensuring the process is publicly engaged, Included in the reform package was a Code of known and understood. Second, structuring Ethics for members of the judicial appointment the process to bolster public confidence that committees, as well as a directive to publish on decisions are made for legitimate reasons an annual basis the identity of the members that are not linked to political favouritism 3 of the judicial appointment committees, the or other improper motives.” number of total applications for judicial office, While speaking with the Honourable Irwin and the number of that total that have been Cotler at a mid-2006 conference,4 I asked him recommended or highly recommended by about the future of those reforms, given the the committee. Crucially, a set of guidelines federal election of the Conservative Party for the operation of the judicial appointment several months earlier. Though he remained committees was provided, which outlined the confident that the reforms could improve overriding principles that committee members public understanding of and confidence were to consider during the appointment in the appointment process by increasing advisory process. These principles included: transparency and accountability, whether the • Merit as the terminal objective. “The reforms would be adopted, implemented, and overriding objective of the appointments entrenched by the current government and process is to ensure that the best candidates successive administrations remained an open are appointed, based on merit.”1 question for him. Constitutional Forum constitutionnel 121 His uncertainty was not surprising. In the hearing, which was not part of the original Cotler winter of 2006 the “Cotler procedure” was proposal, was in the end conducted like a Soviet given its first — albeit partial — application arraignment — intentionally theatrical and after Supreme Court Justice John C. Major inconsequential. Before the first questions were retired from the bench. Justice Minister Cotler even asked, Harper emphasized that the ad hoc and the outgoing Liberal government had committee would have absolutely no veto power formed a nomination committee prior to their over the Prime Minister’s nomination, and the departure from power. From the “long list” committee members were asked to refrain from provided by Mr. Cotler, that committee had asking the nominee to discuss his personal produced a “short list” of three candidates for views on particular moral controversies or his the replacement of the retiring justice. During stances on subject areas that were, or could my conversation with Mr. Cotler, he stressed become, areas of Supreme Court jurisprudence that the three “short list” candidates who were (i.e., “To what extent would the nominee give forwarded to Stephen Harper, the new Prime further effect to the rights and guarantees Minister, were to the greatest extent possible contained within the Charter?”6). Canadian selected by a committee formed in accordance representatives in Parliament learned little with, and operating through, the procedures and about Harper’s nominee other than that when guidelines advocated by the Cotler proposals it came to judicial appointments, the Prime tabled in Parliament in 2005. Minister’s “man” was still untouchable. Though the tenor and tempo of the new appointment Initially, the Harper government showed procedure harmonized well with the byzantine encouraging signs of their willingness to movements of Canada’s high court appointment validate, entrench, and give continuity to history, it stood in jarring juxtaposition to the the Cotler procedure by incorporating it Conservative rhetoric of “transparency” and into the practices of their own government, “accountability” in the judicial appointment thereby taking the first necessary steps of process. And as if to add insult to injury, the “institutionalizing” it as a procedural tradition Prime Minister’s Office released a statement and, eventually, as a constitutional convention. cautioning momentarily heartened reformers: Harper ultimately selected Federal Court of “The hearing by the Ad Hoc Committee to Appeal Justice Marshall Rothstein, one of the Review a Nominee for the Supreme Court of three “short list” candidates advanced by the Canada was an interim process designed to nomination committee that had been guided by fill the specific vacancy left by Justice Major. the “Cotler procedure.” Following up on election Full details of a process to fill future vacancies promises to “reform” a “unilateral” appointment will be announced at a future date.”7 The first procedure that he and the Conservative party performance of the Cotler procedure was had long been critical of, Harper created an botched, and the audience told that they might Ad Hoc Committee to Review a Nominee for never see a second attempt. the Supreme Court of Canada — the first of its kind in Canadian history — which placed The Conservative government now has a the Prime Minister’s nominee before members unique, but temporal opportunity to declare of Parliament, and their putatively searching, that judicial appointment reform is not just American-style judicial hearing questioning, the limited initiative of one former justice though the system was never presented or minister and a motley crew of special interest generally perceived as an American import. groups and legal academics, but a nonpartisan national priority. In the immediate term, the Although Prime Minister Harper boasted best way for the current government to achieve that “‘[t]he way in which Justice Rothstein was this is to openly and avowedly appropriate Mr. appointed marks an historic change in how Cotler’s reforms, with the declared intention we appoint judges in this country,’” bringing of institutionalizing their practice as a binding “‘unprecedented openness and accountability constitutional convention that could only be 5 to the process,’” the parliamentary judicial ignored at a steep political price. Examined 122 Volume 15, Number 3, 2006 below is the exigent need for the entrenchment that yet another shared objective is increased of these and even greater reforms — including, transparency and accountability.”12 Mr. Cotler I argue, making an applicant’s predisposition also explained to the House what was at stake to give full force and effect to the Charter and in the success or failure of creating a judicial the rights contained therein an important appointment process in which the Canadian barometer in the consideration of his or her nation had confidence: “merit.” This aspect and goal of Canadian judicial appointment reform has been conspicuously [T]he review of the appointments process is a task of great importance to our country, given absent from the recent literature. Existing that the Supreme Court is at the pinnacle of studies and proposals for reform of the judicial our court system and that our court system appointment process have been deficient in that is a fundamental pillar of our constitutional they fail to connect: democracy. It is the court of last resort for all legal disputes in Canada, most notably those • the primary role and activity of a federally- involving questions of federal and provincial appointed justice, jurisdiction under the Constitution as well as those concerning rights violations under the • the new institutional role and mandate of Charter . . . .13 the Canadian courts in the Charter era, and For Mr. Cotler, the strength or weakness of the appoint system is the strength or weakness • the relevant criteria to be considered during of “a pillar of our constitutional democracy.”14 the judicial appointment process. This is likely: the growing judicialization Parts of the subsequent discussion will thus of politics, and the transfer into the judicial reiterate and develop upon Lorraine Weinrib’s sphere of national-status questions, restorative lonely dissenting voice,8 in an attempt to focus justice formulae, and — with the advent of debates about judicial appointment reform on the Charter, the fundamental dilemmas of a the new considerations, needs, and realities of political community, have empowered what our Charter era. critics like Ran Hirschl deride as an unelected “juristocracy” that plays a growingly decisive Over the last decade, public confidence in role in determining, defining, and resolving the Canadian federal court system — and the the workings of the Canadian polity.15 These appointment process in particular — has been criticisms must not remain unanswered. tenuous. Indicators such as the 2001 Ipsos- Determining how we get who we get on the Reid poll that showed 84 percent of Canadians federally operated courts influences no less believed that the Supreme Court was “influenced than the final character of our democracy. by partisan politics”9 are familiar to academic I have thus sought to identify three and media circles. This cynicism is not limited broad criteria for evaluating a high court to the general public; members of Parliament, appointment process: including those who sat on the House of Commons Subcommittee on the Process for • politicization of the process, Appointment to the Federal Judiciary, have • transparency of the process, and called for ways to “ensure that merit is the only consideration when people are appointed to • representational-effectiveness the bench.”10 One member of that committee of the process and result. stated in the House: “‘We need the best minds, the best individuals and the most qualified Subsequently, I define and delineate persons comprising the bench at all levels.’”11 these criteria using normative, theoretical, He was not endorsing the existing reality. In and jurisprudential frameworks, using these recognition of these public and professional categories to evaluate the current appointment sentiments, Mr. Cotler acknowledged, before process. This exercise reveals low to moderate the House of Commons, that “[w]e would agree performance across all three indicators. I Constitutional Forum constitutionnel 123 then look to the potential for reform. While under the Charter, the appointment of judges “import” mechanisms such as judicial should be more transparent and democratically elections and inquisitorial review offer means controlled.”20 of “democratizing” the judicial appointment 21 process, the Canadian political system is an Hirschl argues that there has been a environment more conducive to moderated gradual yet veritable structural shift in Canadian reforms that have some historical precedent and other Westminster-style democracies away or grounding in our legal and political from the principle of parliamentary supremacy traditions. The most viable and sensible of and towards the reality of constitutional and such reforms would be the creation of potent judicial supremacy — a movement that, coupled nominating commissions, a goal towards with highly arbitrary, discretionary, and which Mr. Cotler’s reforms are a crucial first politicized appointment systems, grates at the step. democratic character of these polities. Hirschl sees the elected Canadian political sphere transferring “the most pertinent and polemical The Necessity of Democratizing the moral dilemmas and political controversies a Third Branch of Government democratic polity can contemplate”22 to the purview of unelected judges, a process he calls In one of the seminal works of the judicialization, and which is derivative of political literature, constitutional scholar Peter Russell “self-interested hegemonic preservation.”23 As called the Supreme Court of Canada the “third conniving as it sounds, hegemonic preservation branch of government.”16 The public desire to involves threatened, yet power-wielding, “democratize” the federal judicial selection political elites attempting to maintain and process became salient following the adoption develop their political hegemony by insulating of the Charter, and is now reaching a crescendo their policy making from the “vicissitudes” with the growing understanding and awareness of majoritarianism and democratic politics. of the seemingly limitless opportunities that the They do this by initiating the establishment Charter provides for the expansion of the high of institutions that promote judicial intrusion court’s dominion of justiciabilty. This awareness into the prerogatives of executives and is made palpable by the conspicuous transfer of legislatures, resulting in elite-favoured and national status questions and seminal moral often immutable outcomes. For Hirschl, these and political controversies such as Reference seemingly sinister and certainly undemocratic re Secession of Quebec17 and Reference re motivations “are important reasons for the Same-Sex Marriage18 to the judicial sphere, expansion of judicial power in Canada during and ultimately to the Supreme Court. Russell the last two decades.”24 The problem, however, connected judicialization with the demand for with a judicial-constitutional tower built on democratization of judicial appointments as odiously undemocratic foundations is the early as 1987: “[A]s the power and discretion of prospect of consistent countermajoritarian judges comes to be more broadly recognized, norm-creation and the maintenance of a a deeper democratic urge for more openness cultural “metanarrative” that advances and and accountability in their selection arises.”19 protects the agenda of ruling political elites and On the twentieth anniversary of the Charter, that, unlike traditional legislative, ministerial, former Supreme Court Justice Frank Iacobucci and bureaucratic decision-making, leaves observed, “Alongside the increased public behind an almost indelible political-ideological interest in the judiciary and Charter there framework under the constraints of which the has been much commentary and numerous Canadian polity must operate. This danger proposals regarding the appointment of judges. is why Hirschl and other scholars argue that The debate is based upon the argument that while the Canadian Supreme Court is making since the judiciary has been greatly empowered “substantive political choices”25 such as Reference re Secession of Quebec,26 “[d]emocracy requires 124 Volume 15, Number 3, 2006 that the choice of substantive political values be That the relevant jurisprudence also made by elected representatives rather than by demands a transparent and accountable unelected judges.”27 process is neither tangential nor trivial. In Valente v. The Queen,34 the Supreme Court If one accepts that with the Charter era elaborated an indirect constitutional guarantee now roaring, the prospects for narrowing of “judicial independence” and specified the scope of justiciability in the Supreme “institutional independence” as its necessary Court of Canada look both untenable and corollary. Four years later in Edmonton undesirable, then answering the devastating Journal v. Alberta (Attorney General),35 the critiques of skeptical democratic libertarians Court fettered “institutional transparency” to like Hirschl requires a judicial appointment the concept of “judicial independence.” Taken system that, to every extent possible, together, these rulings began a jurisprudential minimizes arbitrariness, unchecked elite framework for the liberation of the federal discretion, and crass politicization. This is judicial appointment process from the at-her- still fanciful in Canada. Yet there are scarcely Majesty’s-pleasure-and-prerogative system of few other ways to intelligently respond to the unchecked and highly politicized executive questioning of critics like Hirschl, who ask discretion that essentially characterized the how an appointment process that advances twentieth century Canadian system. “unelected, unaccountable judges”28 with “questionable democratic credentials”29 who are “not likely to hold policy preferences that Evaluation of System-Specific are substantially at odds with those held by Deficiencies the rest of the political elite”30 (since they were appointed by an “explicitly political Having established the normative nomination process”)31 can be reconcilable with and public demand for the reformation of our traditional democratic commitment to the an appointment process that is roundly openness, transparency, and accountability of perceived as undemocratic, we can return the most powerful governmental institutions. to exploring the specific weakness and issue This call for democratization of the judicial areas most in need of attention and reform: appointment process is not just appealing to transparency, representational effectiveness, civil libertarians, it also resounds forcefully and politicization. with those on the “left” who feel that the courts — whose appointees have always Representational effectiveness been emblems of the center of the Canadian politico-ideological spectrum — have not gone Representational effectiveness is broadly de- far enough in imbuing the Charter with force, fined as the extent to which the selection pro- weight, and meaning.32 cess incorporates and reflects the multifarious demographic, ethnic, religious, racial, gender, It is thus not difficult to hear a concordant, and regional diversity of the Canadian nation. bipartisan demand for the democratization The nomination and appointment process for of the judicial appointment process, which Canada’s highest court should be construed as a Greene calls “‘a front-end mechanism of vehicle for recognition by the Canadian nation accountability.’”33 Put another way, neither of its cornucopian demography and, moreover, the interests of Charter Canadians nor the as an opportunity to extend a declaratory — interests of Charter skeptics — no interests, normatively prescriptive — imprimatur to it. save the institutional demands of nepotism, cronyism, and corruption — are advanced by Regional and gender equality at the Supreme maintaining the current system of judicial Court level are the only areas of representational appointment. success. Completely representative provincially, the Court has also progressed from a male-only institution, prior to Justice Bertha Wilson’s appointment in 1983, to near-gender equality Constitutional Forum constitutionnel 125 by 2004, with a four-to-five ratio of female- from our customs . . . .”’40 The federal track to-male justices (including a female Chief record of successive politicized appointments Justice). This process of gender equalization at the provincial level inspires little confidence has also transcended the declaratory level of in their handling of the Supreme Court Canadian Supreme Court appointments: in appointment process; between 1905 and 1970, fact, between 1989 and 1994, female applicants “94.8 percent of the former politicians appointed to federal courts more than doubled, from 12 to by Liberal governments to Ontario courts were 26 percent.36 However, effective representation Liberals.”41 In what Russell called “the orgy of ends there. Not a single member of Canada’s patronage appointments”42 that took place in over one million Aboriginals, 700,000 African- 1984, the Liberals appointed six professional Canadians, or three million Asian-Canadians politicians to judicial posts, of whom “one has ever been appointed to the Supreme Court, or two could be defended on their merits . . . , leaving over 17 percent of Canada’s population [though] it is doubtful that anyone would say without ever having been “represented” at this that each . . . meets Lang’s standard of the “third branch of government.” Later, I discuss ‘best possible choice.’”43 According to Weinrib, whether attempts to ameliorate this failure of “while the appointees have of late possessed representativeness can be balanced against the much better credentials, many still have had demands of a merit-based appointment system. professional, governmental and personal ties to leading figures in the government.”44 Russell Transparency and Ziegel have noted that party politics also heavily influenced the appointment process of We can understand transparency as the the Mulroney Government.45 In 1973, Prime extent to which the selection process is open to Minister Trudeau abrogated a constitutional public scrutiny and accountability. In Edmonton convention and appointed Bora Laskin to the Journal, the Supreme Court firmly articulated position of Chief Justice, although he was not the necessity of transparency, stating that “the the most senior sitting justice and had only courts must be open to public scrutiny and three years experience on the Supreme Court. to public criticism of their operation . . . .”37 Unmistakably, he was elevated because of his Logically this openness should also extend to the national unity, pro-federalist ideology, and his process that in the first place decides who will decade-long chief justiceship was instrumental sit on the bench. However, according to Russell, in centralizing the Canadian nation through “[W]e know so little about what lies behind the assignment of ever-broader powers to the the [Canadian Bar Association] committee’s federal government. The argument that the verdicts” on judicial candidates that “it is cabinet has taken a “neutrality” approach difficult to judge the fairness or appropriateness to potential Supreme Court appointees’ of its assessments.”38 Indeed, according to their stances on federalism is not aided by the fact own report, the Canadian Bar Association’s that between 1997 and 2002, “the federal review process is enveloped in a “mystique of government won seventeen significant victories secrecy.”39 and lost only three substantive appeals to provincial governments,”46 or by the fact that Politicization the Supreme Court has expressed an “explicit anti-secessionist impulse”47 in every Quebec- Politicization can be understood as the extent related ruling. Moreover, according to Russell, to which the selection process is influenced “Partisanship in recruiting the federal judiciary by factors other than the aptitude, experience, has, to be sure, systematically excluded and merit of the candidates. As early as 1922, supporters of third parties.”48 Indeed, “Behind a Canadian Bar Association report observed the closed door of a cabinet meeting, the “‘that the vicious system of making judicial considered recommendation of the Minister of nominations rather as rewards for political Justice or Attorney General may go for nought services than for the professional qualifications in the face of . . . partisan, personal or other of candidates shows no sign of disappearing considerations.”49 According to a Manitoba 126 Volume 15, Number 3, 2006 Law Commission report in 1994, the effect of a threat to merit than did historical decisions this extreme politicization on public confidence that at times reduced the selection pool to in the legal system “could be corrosive,”50 and white, Anglican males. Conversely, decreasing the report argued that the politicization of the the politicization of the appointment process appointment process “may precipitate the belief could involve a commensurate deterioration among the public and the legal profession that in the representational effectiveness of . . . judges, having attained their position as a the appointments. Decisions made on the result of the governments favor, are therefore basis of “apolitical,” merit-based criteria obligated to the government . . . . ”51 Indeed, might diminish the competitiveness of by 2001, 70 percent of Canadians surveyed disadvantaged ethnic, regional, racial or socio- believed that partisan politics influenced economic groups vis-à-vis the established, the decisions of the Supreme Court, which, well-educated and predominantly white, according to respondents, would probably urban intellectual elite. Likewise, greater “line up on the side of the federal government transparency might increase politicization because the judges were appointed by it.”52 as prime ministers and cabinets begin to see Weinrib concurs that the present system is “at the new appointment process as a vehicle for times heavily influenced, to its detriment, by demonstrating to constituents that they are partisan political considerations.”53 She holds selecting candidates with the “right values” the “partisan use” of the appointment power — pandering showmanship that is of slightly responsible for the “damage to the public less concern in an opaque and unaccountable perception of the impartiality of the bench and selection process. Thus a holistic construction the mixed quality of judicial appointments.”54 of “democratization” must be applied to From the classical institutional and structural any appointment reform proposal, since perspectives on divided, checked, and balanced meaningful and progressive change of a court government, one must also immediately deplore appointment system necessitates a nuanced as inappropriate politicized intrusion a federal balancing of: cabinet being given carte blanche in appointing members of a high court that is entrusted with • increased transparency, a solemn responsibility to invalidate, when • increased representational-effectiveness, necessary, legislation advanced by that very cabinet. • decreased politicization, and Apologies for such egregious deficiencies are • sensitivity to the unique dynamism of the as uncommon as they are politically contrived. Canadian nation. Nevertheless, increasing performance across all three indicators — representational effectiveness, The Cotler proposal to Parliament in 2005, politicization, and effectiveness — is by no means discussed earlier in this article, constitutes a complementary, self-reinforcing process. Often an excellent first step to sensibly balancing these areas of needed reform make demands at these criteria and considerations. One reason cross-purposes with one another. The decision is that any reform package that successfully to redress the gender imbalance of the courts balances and incorporates the four above- at times resulted in a 50 percent reduction in mentioned criteria would likely feature at its the size of the candidate pool55 — a bargain core the adoption of a vitalized nominating that when made regularly and over time (in commission containing representatives from any direction, whether privileging males or both levels of government, empowered to females) probabilistically comes at the expense actively seek out suitable candidates and of merit when merit means selecting the best make ranked recommendations that could of the qualified candidates. Further pressure only be ignored at a steep political cost. to make the Court a vehicle for declaratory Lederman, the Canadian Bar Association 56 representation — whether racial, ethnic, and the Canadian Law Teachers, as well as linguistic, or religious — will pose no less of many other reports and findings (e.g., those Constitutional Forum constitutionnel 127 made by Friedland and Russell) have been narrow, centrist sliver of the full Canadian proposing some variation of such a system legal-ideological spectrum — operates at for at least the past two decades. According the expense of what should now be the to these proposals, a specially constituted raison d’être of the Supreme Court of council, staffed by the sitting Chief Justice of Canada: giving fuller force and effect to the court to which the appointment is being the Charter and the revolution it inspired. made, representatives of the Canadian Judicial This task would require unfurling the Council, the federal Minister of Justice, the Charter’s concise and limited language and Canadian Bar Association, the general public, transfiguring the result into a rich panoply and, crucially, the attorneys general of the of legal norms, and a case-law discourse of concerned provinces, would hold primary nuanced jurisprudential distinctions. Doing responsibility for federal court nominations.57 this will not just take judicial leadership Under such a system, the general public, — it will require jurisprudential prescience provincial bars and governments, and and an almost preternatural socio-political members of the opposition could all submit sensitivity. How an appointment process names for consideration. Although pursuant can discover and select justices with these to section 96 of the Constitution Act, 1867,58 qualities — the qualities required of a and the Supreme Court Act,59 Cabinet Charter justice — demands consideration. would still make the final Supreme Court appointment, a political convention would presumably develop whereby the political costs Judicial Appointment for the of ignoring the commission’s recommendations Charter Era would be prohibitive.60 This system has three distinct advantages: The last decade has shown that neither culture wars fought on constitutional • broadening participation in the selection battlegrounds nor the related decline of merit as process to include both levels of government the criterion to be considered in an appointment and a greater diversity of interests, to the nation’s highest court are endemic to the backgrounds, and political agendas, which United States. The Canadian federal judicial would likely broaden the demographic appointment system has, to date, categorically representation and ideological spectrum declined the opportunity to establish, as a of the nominees; norm, the incomparable importance of raw skill to the act of adjudicating the meaning of • increasing the transparency of the selection the Constitution Act and the Charter. Instead of process by producing nominees that are using the appointing power as a symbol of the ranked according to a publicly known association between merit and the demands of schema; and judging, the pre-2006 system of federal judicial • decreasing the arbitrary and patronage- appointments in Canada — up to and including based aspects of the current politicized Supreme Court appointments — became process, and decreasing to some degree the complicit in the denigration of the national hegemonic preservation of the governing status of public law by leaving out individual elite’s ideological agenda61 through their faculty and ability from the list of traits and partisan selection of amenable judicial qualifications most immediately considered in ears and voices. the judicial appointment process. It failed to comprehend that seemingly obvious — even The decrease in politicization that an platitudinous — imperative to look for the best empowered nomination commission would of the best when making appointments to the produce would also further the expansion national court system. Individual faculty and of the Charter. The current ideological- ability must become the primary considerations brokerage model of judicial appointments of an empowered nominating commission, — appointing candidates who represent a which understands the strong association 128 Volume 15, Number 3, 2006 between those character traits and success as about which teams he wants to win. But the role a Charter-entrenching Canadian justice. What of a Supreme Court justice in a constitutional does it imply about the seriousness with which order- and rights-based polity — and the various the Canadian nation pursues the rule of law roles of a Canadian Charter justice in particular, and the aspiration to a categorical commitment must be demythologized. The role of the justice to constitutionally protected rights when past is not situational “objectivity,” and the putative affiliation with the federal Liberal Party62 attainability of this epistemically phantasmal is a more reliable historical predictor of position — not to speak of its desirability — appointment to the federally operated court must be met with the same ruthless skepticism system — including the Supreme Court — in legal theory that its metaphysical counterpart than is proven experience in solving complex encounters in all post-Nietzschean philosophical legal problems, and the documented ability discourse. The justice is only “disinterested” to harmonize innovatively the competition in the narrowest and most procedural sense; between conventional precedents and rights normatively, the Charter justice should want claims putatively undergirded by layered textual one team to win. He or she represents a value guarantees? The high court in any nation sets system and a moral order, attempts to advance the standard for the entire judicial system, and it and to empower it, and stands as its guardian. indubitably, making merit the most important The justice understands that constitutions,64 criterion for appointment to the Supreme Court in general, and bills of rights — including the of Canada — and all other federally operated Charter — in particular, were on the one hand courts — as Mr. Cotler’s reform package enacted against the grain of majoritarianism prescribed, would elevate the performance — in order to mitigate and preempt its excesses standard at every level of the judicial system. — and on the other, crafted as guarantees that the democratic character of our most important Justice Rosalie Abella, who currently sits political institutions would not become diluted. on the Supreme Court, once noted that “‘every A Canadian Charter justice thus has an decision-maker who walks into a court room to acute historical sense and is at every moment hear a case is armed not only with the relevant reminding him or herself of the fragility and legal text, but with a set of values, experiences, vulnerability of democracy, and of the mystique and assumptions that are thoroughly embed- and allure of intolerance, hate, and fanaticism. 63 ded.’” During the late twentieth century, The justice understands that she or he must successive Canadian federal governments, in spend every waking hour standing sentry against their failure to avowedly associate a candidate’s the first movements of tyranny and oppression, predisposition to advance the Charter’s “set and that the justice’s only instrument is the of values” with the “meritoriousness” of that mind — the ability to reason, compellingly and candidate, declined the opportunity to seriously convincingly. The justice knows he or she must take up the Charter on its own premise. never be seduced by optimistic views of human progress, knows not to naively place faith in the The Credentials Demanded by the unaided success of truth in the market place of ideas, knows a descent into barbarism is not just Charter possible — it is called for and demanded on a The polemic over the relevant credentials to daily basis, in every dark corner of every nation. be considered during the judicial appointment He or she invests no hope in “inherent human and selection process has been fecklessly defined goodness,” for the justice knows that there will and hopelessly obfuscated by the mythology of always exist the inveterately malicious, rapacious, the Supreme Court Justice as objective arbitrator. and ignorant — and those who want nothing In this view, the Court Justice is merely the more than to denigrate and debase the dignity flesh embodiment of Lady Justice, blindly and of other human beings. This is the Canadian disinterestedly weighing scales, or an erudite Charter justice, and this is whom any and every soccer referee who has not thought even fleetingly nomination process must seek out in earnest: a tireless sentry whose singular and unending Constitutional Forum constitutionnel 129 devotion to a value system, to a moral order, point,”68 which to the many is obscured or makes a falcon of a human — one who perceives occluded by the perspective that any particular at a mile’s range, the first scurrying movements historical moment affords. The person who of tyranny in the valley of the nation. is timely in his or her untimeliness thus has a historical sense that is in fact “transhistorical.” Thus, great statesmen and revolutionaries The Timely Untimeliness of a — such as Napoleon and Bismarck, Bolivar Rights-Era Jurist: Opportune and the American Founders — by necessity Moments and the Historical Sense possess an acute historical sense. Avant-garde artists, whether visual, musical, or literary, as As President of the Supreme Court of well as philosophers and theorists who deal Israel, Aharon Barak took a meager and in the historically contingent, all, almost by timid parliamentary allotment of Basic Laws, definition, possess a historical sense — though in a country without a written constitution, their historical medium may be predominantly and developed them into the most elaborate aesthetic and only concomitantly political (but jurisprudential framework for civil and often reverse is often true). And as Thomas human rights in the entire Middle East. Kuhn argued in his enormously influential The He has described the rights-based, socially Structure of Scientific Revolutions,67 “paradigm transformative balancing act that high courts shifts” in the sciences — movements away from attempt in the following way: or against the previously dominant and accepted theory or scientific worldview — do not occur In many cases, the job of a supreme court is to as a direct, immediate, or inevitable result reflect a deep public consensus. But sometimes a court must crusade for a new consensus. of new experimental evidence (new or old). Brown v. Board of Education, in which the Rather, they happen through the appearance U.S. Supreme Court outlawed segregation in of a new, more cogent contextualization of the public schools, is a good example. A supreme evidence that more seamlessly accounts for and court would not survive public misgivings if integrates past, present, and future occurrences it announced a new Brown every week. But a in that field of understanding. The individuals supreme court will also not survive misgivings most responsible for major paradigm shifts have if it fails to seize the opportunity to decide a a deep historical sense. Brown.65 The greatest jurists are no different. They So a justice is a tightrope walker and a are timely in their untimeliness, and can be tumbler, one who achieves balance, moderation, so because of their acute historical sense. The and stability while still moving forward — like judicial greatness of John Marshall and Earl that falcon over a valley — through his or her Warren was located in their historical sensitivity ability to see and perceive. What does this mean — in their ability to perceive the critical moment precisely? when the undesired precedent was weakest or most vulnerable, and to act in response The rights-era jurist, like the constitution- — introducing something unprecedented entrenching jurists who came before, breathes and “untimely” at a time when it stood the at the pace of John Marshall, for he or she is greatest chance of being received, accepted, and timely in untimeliness. Timely untimeliness followed. is a sensitivity to opportune moments for the introduction of something largely The realization that legal sensibility requires unprecedented at or near the critical moment extralegal senses goes at least as far back as when the precedent is almost indiscernibly — Oliver Wendell Holmes’ The Common Law.68 but veritably — weakest or most vulnerable. The Holmes argued that every time a judge decides person who is sensitive to opportune moments, a major constitutional question (especially who is timely in his or her untimeliness, is in the area of rights) he necessarily chooses necessarily one of the few who can discern between contending legal theories and legal- this almost or initially imperceptible “tipping 130 Volume 15, Number 3, 2006 philosophical outlooks. Thus the true decisive Fulfilling the promise of theCharter will require considerations in such a decision are very often the appointment of men and women with these drawn form outside the law — from what we now same qualities. might call the political realm. The example of Brown, the greatest American civil rights case of Judges who could anticipate or perceive the twentieth century, is particularly illustrative. opportune moments though an acute historical- Robert G. McCloskey, in his influential classic political sense did far more for the advancement The American Supreme Courtwrites: and entrenchment of civil liberties and basic human rights than those who could not. Those [O]ne should note that Southern segregation who understand that the Supreme Court of Canada was an international embarrassment in the is the engineer and builder of the architecture cold war being entered into with the Soviet of the Charter must urgently ensure that timely Union and its allies, who pointed up the unjust political untimeliness, and an acute historical treatment of African-Americans whenever sense, become important criteria in the selection Western anticommunists criticized what was and appointment of judges. happening in Eastern Europe. In its brief to the Court in Brown, the United States One way to predict whether a candidate will explicitly brought up “the problem of racial excel in this domain might be to administer a discrimination . . . . in the context of the present “test” that gives the candidate an opportunity world struggle between freedom and tyranny” and noted segregation’s “adverse effect” on to demonstrate his or her historical-situational America’s winning that struggle.69 reasoning. Such a test might ask the candidate to select what they consider to be a presently A new Brown or R. v. Big M Drug Mart70 amorphous or narrowly developed — or cannot be announced every week, and a Supreme misguidedly developed — right (or aspect of a Court justice’s ability to pick the right week — right) guaranteed by the Charter, and to provide or year, or decade — and not miss the moment an argument for why the present historical or get it wrong and set back the effort, depends moment is opportune for the broad reception on his or her extralegal, political sensitivity and and implementation of a fuller — or differently awareness. As Charles Epp argues in The Rights directed — development of that right, as the Revolution, the American rights revolution United States was in the early 1960s, prior to developed out of a broader “support structure for the Brown decision. Requiring this additional legal mobilization,” which was what ultimately argument in writing would not be a tremendous “propelled new rights issues onto the Supreme departure from the one criteria by which Court’s agenda,” and “although judicial policies judicial candidates are already evaluated — their undoubtedly contributed to the development of written legal rulings — but unlike lower-court that support structure, changes in the support written opinions, would showcase their ability structure have typically resulted from forces that to articulate and defend a judicial desire for are broader than the Court’s policies alone.”72 In an abstract social or political end. Following a the 1950s - 60s in the United States, the Warren “black market” principle — if something will Court not only wrote Brown, it orchestrated a continue to exist inevitably and inexorably, the simultaneous metamorphosis across multiple best policy is to bring it into the daylight, regulate areas of constitutional rights (including due it, and gain some modicum of control over it — process, freedom of the press, freedom of since the Court will go on making the kinds of speech, civil rights, and the right to privacy), distinctly political decisions mentioned herein, and thus transformed the place and program of it is only sensible that the appointment process the American constitution in American political at least ensure that they are capable of making life. It succeeded because of its justices’ acute political decisions well. The written argument political-historical sensitivity to those broader requirement would provide nomination and forces — because of their timely untimeliness. appointment commissions with a valuable insight into a candidate’s political-historical sensitivity Constitutional Forum constitutionnel 131 and, ipso facto, their potential for giving the 9 Neil Seeman, “Taking Judicial Activism Seriously” Charter a greater chance at effective, balanced, Fraser Forum (August 2003) 8. and exhaustive implementation. 10 Department of Justice Canada, “Speaking Notes for the Honourable Irwin Cotler, Reforms to In its attempt to increase the accountability the Judicial Appointments Process,” online: and transparency — the democratic credentials Department of Justice Canada Newsroom 132 Volume 15, Number 3, 2006 189. court reflecting the gender balance of society. 28 Ibid. at 222. However, what actually occurs at the political 29 Ibid. level on all too many occasions is the felt need 30 Ibid. at 80. to replace a female vacancy with a female 31 Ibid. appointment — lest the Prime Minister be 32 See, for example, Allan C. Hutchinson, “Process charged with deconstructing the gender balance to bring judicial politics into public view” The of the Court. Once “restorative justice” becomes Lawyers Weekly (23 September 2002), online: the appointment order of the day, all candidates, http://www.lawyersweekly.ca/index.php?section= save the eligible members of the previously article&articleid=155. unrepresented demographic, will on particular 33 Quoted in Martin Friedland, A Place Apart: occasions be all but excluded from serious Judicial Independence and Accountability in consideration. Canada (Ottawa: Canadian Judicial Council, 56 See Friedland, supra note 33; Russell, supra 1995) at 233 [Friedland]. note 16; W.R. Lederman, Continuing Canadian 34 [1985] 2 S.C.R. 673, 1985 SCC 25 (CanLII). Constitutional Dilemmas: Essays on the 35 [1989] 2 S.C.R. 1326, 1989 SCC 20 (CanLII) Constitutional History, Public Law and Federal [Edmonton Journal]. System of Canada (Toronto: Butterworths, 1981); 36 Cheryl Thomas & Kate Malleson, “Judicial Canadian Bar Assocation, Report of the Canadian Appointments Commissions: The European Bar Association on the Appointment of Judges and North American Experience and the in Canada (Ottawa: Canadian Bar Foundation, Possible Implications for the United Kingdom” 1985); Canadian Association of Law Teachers (1997) Discussion Papers, Lord Chancellor’s (CALT), Judicial Selection in Canada: Discussion Department, Research Secretariat, London, s. 5. Papers and Reports (CALT Special Committee on 37 Supra note 37. the Appointment of Judges, 1987). 38 Supra note 16 at 119. 57 Supra note 15 at 132. 39 Ibid. at 132. 58 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, 40 Quoted in Weinrib, supra note 8. reprinted in R.S.C. 1985, App. II, No. 5. 41 Supra note 15 at 115. 59 Supreme Court Act, R.S.C. 1985, c. S-26. 42 Ibid at 116. 60 Ibid at 134. 43 Ibid at 116, 120. 61 It is an ideological agenda that tries, incoherently 44 Weinrib, supra note 8. and inefficiently, to synthesize the social left with 45 Peter H. Russell & Jacob S. Ziegel, “Federal the economic right: Reference re Same-Sex Marriage Judicial Appointments: An Appraisal of the First and R. v. Morgentaler with Dolphin Delivery Ltd. Mulroney Government’s Appointments and the v. R.W.D.S.U., Local 580 and Chaoulli v. Quebec New Judiciary Advisory Committees” (1991) 41 (Attorney General). See supra note 18; [1993] 3 University of Toronto Law Journal 4. S.C.R. 463, 1993 SCC 158 (CanLII); [1986] 2 S.C.R. 46 Ibid at 81. 573, 1986 SCC 5 (CanLII); and [2005] 1 S.C.R. 791, 47 Ibid. 2005 SCC 35 (CanLII), respectively. 48 Supra note 16 at 117. 62 And now the Conservative Party, which has 49 William Angus quoted in Russell, ibid. at 113. wasted no time in making flagrant partisanship 50 Quoted in Friedland, supra note 33 at 233. the salient qualification for appointment to 51 Ibid. federally operated provincial superior courts. 52 Hirschl, Towards Juristocracy, supra note 15 at 63 Quoted in “Convenient judges for Liberal aims” 82. Hirschl quotes from Kirk Makin, “Canadians Calgary Herald (27 August 2004), reprinted feel Supreme Court tainted by partisan politics: in Fraser Institute, “Commentaries,” online: poll.” Globe and Mail (3 July 2001) A1 [Makin]. Constitutional Forum constitutionnel 133 Grodzins’ work on demographics in the 1960s, and the 1970s economic work of Nobel laureate Thomas Schelling, and Mark Granovetter’s threshold model of collective behavior) must be investigated and clarified in the realm of judicial decision making and the interplay between high court legal reasoning and public sphere politics. 67 Thomas S. Kuhn,The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1962). 68 Oliver Wendell Holmes, The Common Law (Boston: Little, Brown, 1881). 69 The American Supreme Court (Chicago: University of Chicago Press, 2000) at 149. 70 [1985] IS.C.R 295, 1985 SCC 69 (CanLII). 71 Charles Epp, The Rights Revolution, Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998) at 69. 134 Volume 15, Number 3, 2006 Charter Rights and Public Policy Choices: The Supreme Court and Public Finance Hugh Mellon* Introduction At issue were competing claims to primacy arising from an executive assertion of a public Over the past two decades there have been finance emergency and a union assertion of numerous highly charged court cases involving Charter-based demands for equal treatment claims that government program offerings of female public employees. In its decision and public spending fail to satisfy guarantees the Court sided with the Newfoundland and entrenched in the Canadian Charter of Rights Labrador government and its assertion that and Freedoms.1 Calls for enhanced appeal the public finance case must prevail. Justice mechanisms in refugee determination,2 Ian Binnie wrote the judgment on behalf of provincial health care coverage of hospital a unanimous Court. While that judgment translation services for the deaf,3 equal leave resolved the case at hand, the judicial reasoning provisions4 for both adoptive and birth parents, and commentary left room for significant government coverage of autism treatment future discussions. The Court’s reasoning regimes,5 and access to health care provision tolerates a surprising degree of discretion for a rather than access to a waiting list6 all illustrate political executive to declare financial necessity the intersection of the Charter with the allocation and is vague about the guidelines for applying of the public purse. Government cries about the relevant words “crisis” and “emergency.” fiscal limits and competing choices do not always Given the perseverance of federal and prevail; judicial reasoning in these cases is often provincial government debts, not to mention complicated and sometimes inconsistent. Re- the possibilities of future serious recessions or examination of this jurisprudence is imperative depressions, it would be prudent to foster larger in light of growing national debates over health debate and examination of Justice Binnie’s care spending and program delivery as well as reasoning and its implications for balancing over judicial scrutiny of government.7 Charter rights with fundamental constraints. The judges of the Supreme Court of Canada Contemporary debates about the existence addressed a case that was relevant to these issues and nature of an institutional “dialogue” in Newfoundland (Treasury Board) v. N.A.P.E.8 between courts and legislatures9 reflect They were called upon to assess the demands competing perspectives on the “dialogue” of governmental financial exigency relative metaphor. However, a common theme is to prior government commitments to equal that the Supreme Court uses its decisions to treatment via payments designed to remedy alert the legislature to dangerous actions or gender-based pay differentials according to an decisions, and that the legislature may then agreed-upon timetable. respond. In the words of Kent Roach, “[T]he Court, assisted by the efforts of aggrieved litigants, starts the conversation by drawing Constitutional Forum constitutionnel 135 the attention of the legislature to fundamental adjusting and adapting their constitutional values that are likely to be ignored or finessed system.”13 In this quieter period of adjustment in the legislative process.”10 In Newfoundland there exists an opportunity to review the v. N.A.P.E., the opposite scenario played out — deeper issues raised by the judicial reasoning in the Government of Newfoundland persuaded N.A.P.E. Better we think about these issues now the Court that its financial fundaments could than in a period of deep economic malaise. not be “ignored or finessed.” For a variety of reasons there must be more examination and analysis of instances where declarations of The Case ofNewfoundland public finance needs prevail. First, the literature (Treasury Board) v. N.A.P.E. about such situations is lacking. Second, there are various commentators suggesting a judicial The central issue raised in Newfoundland retreat from the judgments of Supreme Courts (Treasury Board) v. N.A.P.E. is actions taken past that upheld the Charter. Sheila McIntyre, by the Government of Newfoundland in 1991 for example, has recently asserted “that some in responding to public finance challenges members of the Court, including the Chief arising in part from an unexpected shortfall in Justice, are trying to appease critics of so- federal fiscal transfers. This same government called judicial activism by retreating from the had several years earlier agreed to address Dickson-Lamer legacy.”11 Further examination incrementally, over a number of years, pay of the N.A.P.E. decision will assist in the broader inequities endured by female health care discussions over dialogue and alleged judicial employees. On 24 June 1988, an agreement was retreat. struck involving the provincial government and various public sector unions covering affected It will be argued that the judgment, while female employees. The assessment of the size clear on the disposition of the case before it, is of the inequity took longer than expected, and vague in regard to several potentially important it was not completed until early 1991. At that matters. These matters include the operational time, the estimated cost of implementing the definition of “crisis” and “emergency,” the agreement was $24 million. extent of the governmental evidence required to prove a crisis or emergency, and the task of Coincident with the completion of balancing rights with finances according to the these calculations was the already-noted wording of some related past decisions; all leave major shortfall in provincial finances. The more room for speculation than might seem Newfoundland government responded by 14 prudent in an important institutional dialogue. passing the Public Sector Restraint Act, which Attention should also turn to the significance contained a provision to delay implementation of the financial amounts involved in a rights of the pay equity award. It cancelled payments claim and delineating the principled basis for for the period starting 1 April 1988 until 31 the Supreme Court’s apparent favouring of less March 1991, thus negating the just-calculated expensive claims. Questions persist about who $24 million in payments. The incremental should get to calculate, what is considered less salary adjustments were also altered so that expensive (and therefore more likely affordable), the first adjustment would not be 1 April and how to establish the correct approach to 1988, but rather 31 March 1991. Ultimately, this calculation. affected employees were left without the anticipated reimbursement money for 1988 to In Constitutional Odyssey, Peter Russell 1991. Grievances emerged that led ultimately suggests that Canada is returning to to the Supreme Court case discussed in this “constitutional normalcy” after several decades article. While the case edged its way through of absorption in a quest for grand constitutional the courts, the provincial government and the agreements.12 He declares that “Canadians have Newfoundland and Labrador Association of shifted gears and fallen back on older, quieter, less conflictual, and more piecemeal ways of 136 Volume 15, Number 3, 2006 Public and Private Employees worked out a “emergency.” Finally, a concluding portion will revised pay equity arrangement in accordance highlight the perceived limits in Justice Binnie’s with the government restraint legislation.15 analysis and set out the need for further study of several important points that require broader The union complaint went forth through attention and debate. various stages. The dispute was carried on through an Arbitration Board, the Newfoundland Supreme Court, Trial Division, What Constitutes a “Crisis”? and the Newfoundland Supreme Court, Court Section 1 and Justice Binnie’s of Appeal before landing on the Supreme Court of Canada’s doorstep.16 The Chief Justice of Judgment the Supreme Court of Canada set out three Section 1 analysis involves judicial assess- constitutional questions arising from the case ment using the Oakes Test. It was the task of the 17 on 29 October 2003. The first asked if the Supreme Court in this case to review the chal- provision mandating the cancellation and lenged legislation and the history of the case, go- adjustment of the pay equity benefits violated ing back to the initial debates at the Arbitration the equality rights in section 15(1) of the Board.21 There was the burden upon the govern- 18 Charter of Rights and Freedoms. This led to ment to make the case that their legislative ob- the second question — if an infringement was jective was evident and pressing. Yet the govern- found to exist, would it constitute a reasonable ment was not generous in providing supporting limit meeting the conditions of section 1 of the material. Justice Binnie himself acknowledges Charter? The third question related to an element some difficulty with the government’s case, in the Newfoundland Court of Appeal judgment describing their section 1 material as “casually calling for courts to explicitly recognize the introduced.”22 In his reasons, Justice Binnie separation of governmental powers doctrine at upholds at length the provincial government’s each stage of section 1 analysis. This last point legislation but admits that its case had notable would, if accepted, have been an additional to limitations. Furthermore, he appears to wish the customary judicial assessment of section 1 to judge the severity of the financial crisis and set out in the Supreme Court’s decision in R. v. supplement the provincial justification. Taken 19 Oakes. together, Justice Binnie’s concessions regarding The following commentary will proceed the limitations of the province’s presentation through four sections. First, it will examine the and the way in which he chose to characterize judgment’s treatment of the province’s section the state of provincial public finances undercut 1 justification. Justice Binnie used charged the clarity of the judgment and its usefulness as terms like “crisis” and “emergency” without a precedent. the imposition of a significant evidentiary Complications begin with reference to the burden on the Newfoundland government government’s justification, the starting point of and without definitional rigour. Second, it a section one analysis. Justice Binnie states: will analyze Justice Binnie’s comments on the amount of money involved in the legal dispute. The only evidence before the Board consisted Comparison will be made with the Eldridge of an extract from Hansard and some budget case from British Columbia regarding services documents. The government witnesses were for deaf individuals, in order to draw out not employed in the relevant policy group at several apparent judicial assumptions.20 Third, the time. it expands the comparison to other widely noted Ordinarily such a casually introduced s. 1 cases wherein the balancing of expenditures record would be a matter of serious concern. and Charter and/or other constitutional claims However the essential subject matter of the s.1 was involved. Justice Binnie asserts a clear and justification in this case consists of the public consistent lineage, albeit through reference to accounts of the Province that are filed with loaded words like “prohibitive,” “crisis,” and the House of Assembly, and comments by the Minister of Finance and the President of the Constitutional Forum constitutionnel 137 Treasury Board as to what they thought the dimension that elected governments must be amounts disclosed and what they proposed accorded significant scope to take remedial to do about it, which are reported in Hansard. measures, even if the measures have an adverse This is all material of which courts may take effect on a Charter right, subject, of course, to judicial notice . . . . 23 the measures being proportional both to the fiscal crisis and to their impact on the affected Judicial notice is the principle that courts Charter interests. In this case, the fiscal crisis may accept matters that are obviously true was severe and the cost of putting into effect and accurate — in N.A.P.E., judicial notice pay equity according to the original timetable was taken that there was a financial crisis in was a large expenditure ($24 million) relative the province. Whether financial crisis should even to the size of the fiscal crisis.25 have been assumed to be the issue in this case Justice Binnie thus asserts the existence is not at all clear. Justice Binnie himself goes on of a “crisis” on the basis of his interpretation to “agree with the Board that the government of the provincial government’s presentation ought to have called witnesses who were better of financial information. He suggests that the placed to explain the governmental accounts “crisis” will impact on the provincial credit and ministerial observations” regarding rating, government borrowing, and expenditure Newfoundland’s situation.24 However, the lack choices.26 His commentary suggests the Court of clarity is manifested most dramatically in is doing more than simply taking notice of a the various phrases chosen by Justice Binnie lower court finding of fact. He offers his own to describe the Newfoundland government’s conclusion and sets out his train of thought. financial circumstances. This is especially important because the Court is not simply The immediate questions for further upholding a tribunal’s or lower court’s finding debate are clearly evident. What are the legal of a crisis. He instead asserts a crisis based on prerequisites for something being called a his own assessment of the situation. “crisis,” let alone an “emergency”? What are the other categories or economic labels? Is such a There is a fundamental difference between judgment within the purview of Justice Binnie’s accepting the accuracy of financial figures and professional expertise in an instance where accepting the alleged or presumed implications he himself admits that the government case is of those same figures. Justice Binnie, however, “casually” made? Delineating the definitional conflates these concepts in the course of boundaries of a “crisis” is not attempted by the his decision, despite his criticisms of the justice. Newfoundland government’s presentation of their evidence. He not only recognizes the figures Over the course of the decision, Justice Binnie offered by the Newfoundland government, but uses various phrases to set out his understanding he also accepts, without expressing any doubt, of the condition of Newfoundland public that a public finance emergency situation existed finances in 1991. There is, in fact, reference to that necessitated dramatic government action. an even more charged phrase than “crisis” — The criteria for, or definition of, an emergency namely, “financial emergencies.” He cautions are neither stated nor established; rather, there that “the courts cannot close their eyes to the is ready acceptance that one existed. Given periodic occurrence of financial emergencies the situation of affected workers and their loss when measures must be taken to juggle priorities of equity payments, it is striking that Justice to see a government through the crisis.”27 Justice Binnie required such a limited supporting case Binnie reports that in reaching his assessment from the province. he considered potential job losses and the size of the financial amounts involved.28 He also goes Justice Binnie does make a distinction on to accept the Newfoundland government’s between so-called “normal” and “crisis” times: reference to the province’s financial hardship in The spring of 1991 was not a “normal” time in the finances of the provincial government. At some point, a financial crisis can attain a 138 Volume 15, Number 3, 2006 the 1930s and relegation to trusteeship29 under or perspectives on economic situations, a a British Commission of Government until it tendency that is particularly troubling in a joined confederation.30 contemporary era of debate about resource allocation and government policy options in Even if a lenient observer might accord fields such as health care delivery and child the Court the opportunity to characterize care. something as a “crisis,” it would be hard to make a similar case for “emergency.” For most observers “emergency” would imply situations The Characterization of Costs: such as: a serious break-down in social order, Comparison with Eldridge loss of voting rights and the practice of self- government as carried out for decades, the Justice Binnie’s endorsement of the impending resignation of a government, Newfoundland government’s “crisis/ widespread and uncontrolled contagion, emergency” claim leads us to the question of the uncontrolled crime, and/or the near absence size of the financial amount at issue. At what of vital government services. Newfoundland financial point does a crisis start? How big do public finances in 1991 were in complicated government expenditures have to be before they straits, but whether they truly approached are contributing to a problem? What is the basis “emergency” condition is not demonstrated in for evaluating possible expenditures at a time any kind of serious and sustained way in the of crisis? These are all questions deserving of Court’s ruling. attention. There is earlier Canadian jurisprudence One element of the Oakes Test is that if a about the assertion of emergencies, primarily measure is justified in limiting a right under in relation to the “Peace, Order, and Good section 1, the right may only be impaired in a Government” clause of the Constitution Act, minimal way. Deference to government plans 1867.31 This jurisprudence addresses occasional is considered acceptable if there is evidence federal government arguments that the clause that minimal impairment was a major concern gives it the right to act even in areas otherwise and alternatives to impairment were examined accepted as provincial jurisdiction. Perhaps (assuming, of course, that adherence to the the clearest case of such a disputed economic other parts of the Oakes Test). Efforts to weigh emergency relates to the Anti-Inflation the degree of impairment will obviously require Reference32 in 1976. A majority of Supreme the Court to weigh governmental budgetary Court justices upheld the Trudeau government decisions. Assessment and measurement initiative to control prices and wages in order to questions abound. stem inflationary pressures. Taken together, the judicial reasons on the questions raised by the One way to illustrate the existence of case remain a source of legal controversy. Baier seemingly alternative ways to approach these portrays it as “an ambivalent collage of reasons methodological challenges is to compare the 35 and dissents that offered no clear interpretation analysis of Justice LaForest in Eldridge with of POGG as a justification for the exercise of that of Justice Binnie in N.A.P.E. Both cases federal power in matters of national concern.”33 involved government health and social service Russell, Knopff, and Morton offer the following budgets, but they featured very different lines of pithy critique of the judgments centralizing reasoning. Whereas Justice Binnie first assessed tendencies: “[T]he Court’s willingness to the overall state of provincial finances, Justice sustain the Anti-Inflation Act as emergency LaForest considered the Charter guarantees of legislation had frightening implications for the equality and the inequities that pervade society. provinces.”34 Justice Binnie’s use of the charged Only then did Justice LaForest deal with the words “crisis” and “emergency” without costs at issue, and he treated them as an isolated, definitional rigour shows a persistent judicial separate group of expenses. These fundamentally reluctance to enunciate underlying assumptions Constitutional Forum constitutionnel 139 different strategies speak to a lack of clarity and were to distinguish between translation offer alternative approaches rather than clear, services for the deaf from services for those who generally applicable principles. speak non-official languages, Justice LaForest dismissed the point as “purely speculative.”38 At issue in Eldridge was the denial of public When the issue was raised of a possible “ripple” funding for medical translation services for the effect caused by the recognition of this claim hearing impaired. More specifically, the cases in a sea of claims, he countered by declaring: stemmed from a debate over provision of sign “These arguments miss the mark.”39 Justice language interpreters for clients of the health LaForest found that “effective communication” care system. Without interpretation services, for the hearing impaired was not only a vital individuals without private access to interpreters precondition for enjoying guaranteed health encounter communication difficulties and may services, it was also inexpensive,40 suggesting be vulnerable to serious misunderstandings. that the provincial government could not justify The severe difficulties experienced by people failing to pay such a small cost. due to the lack of such services are obvious. Yet, the B.C. Court of Appeal found no requirement The ultimate point for the justices inEldridge on the part of the provincial government to was their perception that medical translation fund such translation services. Equality rights services for the hearing impaired had a small seen from this vantage point existed to ensure price tag: equal application of laws, rather than a more expansive understanding wherein government [T]he government has manifestly failed to demonstrate that it had a reasonable basis had a duty to act positively to make society for concluding that a total denial of medical more equal and just. interpretation services for the deaf constituted In the Supreme Court judgment, Justice a minimum impairment of their rights. As previously noted, the estimated cost of LaForest wrote for a unanimous Court of the providing sign language interpretation for the social challenges of deafness and the value of whole of British Columbia was only $150,000 or equality: approximately 0.0025 percent of the provincial 41 The evidence clearly demonstrates that, as a health care budget at the time. class, deaf persons receive medical services The implication is that the government was that are inferior to those received by the too stingy to fork over the measly $150,000. While hearing population. Given the central place of good health in the quality of life of all persons this may or may not be a correct interpretation in our society, the provision of substandard of the government’s recalcitrance to provide the medical services to the deaf necessarily translation funding, the estimated amount is diminishes the overall quality of their lives. indeed far smaller than the amount involved in The government has simply not demonstrated the Newfoundland pay equity dispute. However, that this unpropitious state of affairs must be our questions about how judges approach the tolerated in order to achieve the objective of making of such an assessment and whether the limiting health care expenditures.36 absolute amount involved is the right foundation for this calculation persist. This judgment evidences a broad-minded sense of equality, linking the right to ready We might be well advised to bear in availability of translation services with good mind the cautionary words offered by the health, quality of life, and equality.37 Honourable Marshall Rothstein to the Faculty of Law at the University of Manitoba. Reflecting The respondents inEldridge were the British upon Eldridge, Justice Rothstein declares: Columbia Attorney General and the provincial “In assessing the financial implications, Medical Services Commission. Among their significant subjectivity often creeps into the arguments were financial pressures and cost court’s minimum impairment analysis.”42 issues. Justice LaForest was not sympathetic. The treatment of the translation costs as an When the respondents queried how the courts isolated, stand-alone budget item concerns 140 Volume 15, Number 3, 2006 him. Troubling future possibilities might be of program costs. Attention now turns to a put into play, as “Charter rights claimants may larger matter — the complicated history of bring claims incrementally in order to avoid a jurisprudence regarding competing claims significant comprehensive cost argument by that emanate from budgetary necessities and the government.”43 Justice Rothstein also cited Charter rights. In the mid-1980s, Justice Bertha the added justification burden placed upon Wilson had an opportunity to relate Charter governments if this situation were to come and budgetary claims in the case of Singh v. to pass. Proving that rights are infringed in a Minister of Employment and Immigration.47 This minimal fashion presumably would require a case addressed a dispute over the requirements context with generally agreed-upon assumptions of justice in the context of immigration and about costs and their calculation. refugee determinations. Government practices were challenged on the principle that the In N.A.P.E., Justice Binnie makes reference to Charter should apply to people seeking entrance the reasoning in Eldridge and the reliance upon to Canada, and that it should be mandatory 44 the limited financial amount at issue. What for hearings on this point to allow claimants distinguishes the Newfoundland case from the to hear the case against them. Justice Wilson Eldridge approach is Justice Binnie’s acceptance denounced the very idea that matters of cost of a crisis situation. Government calculations at and administrative convenience might triumph crisis times are to be accorded “a large ‘margin over rights: of appreciation’ within which to make choices.”45 Working from his declaration of a crisis, Justice Certainly the guarantees of the Charter would Binnie characterizes the government’s response be illusory if they could be ignored because it as “proportional.”46 Such a description is built was administratively convenient to do so. No on an uncertain foundation. Bear in mind two doubt considerable time and money can be critical points not resolved clearly by either of saved by adopting administrative procedures which ignore the principles of fundamental the two cases considered here. One is that the justice but such an argument, in my view, boundaries of what constitutes a financial crisis misses the point of the exercise under s. 1.48 are not made clear. Second, at what point do costs of desired social spending programs cease Justice Wilson’s only real expression of to be understood as independent stand-alone interest in cost and administrative factors comes spending increments? near the end of her opinion. Justice Binnie refers us to this brief section as he attempts to It is time now to expand the analysis and find room within which to move away from the look at a broader cross-section of Supreme Court spirit of the bulk of the commentary in Singh.49 judgments involving claims of constitutional However, Justice Wilson’s acknowledgement is infringement and consideration of the associated grudging and the burden of proof is high: “Even costs. The opening paragraph of this article if the cost of compliance with fundamental made reference to several of these kinds of cases. justice is a factor to which the courts would give Those seeking clear guiding principles, let alone considerable weight, I am not satisfied that the the foundations of an institutional dialogue Minister has demonstrated that this cost would between the judiciary and the executive, will be so prohibitive as to constitute a justification likely be frustrated. with the meaning of s. 1.”50 She then says that it would be “unwise” to speculate upon what that Further Comparisons kind of situation would amount to sufficient justification.51 In relation to the general issue of the judicial approach to government budgetary prerogatives, It is difficult to conceive of an institutional there are various cases that could be reviewed dialogue when the judiciary can avoid committing here. The point of drawing uponEldridge in the itself on what legal status accord “compliance previous section was to point to the existence cost” considerations. Bear in mind the phrases of alternative approaches to the assessment “even if” and “prohibitive.” Presumably, there Constitutional Forum constitutionnel 141 should be a benchmark for something that Caution aside and the limits of the section 1 is not just onerous or demanding but, rather, case noted, the value of Clarke’s insights are seen “prohibitive.” For the record, the Singh decision perhaps most vividly in paragraph seventy-five led not only to added administrative workload of Justice Binnie’s judgment, where he asserts but also millions of dollars in added expenses. that the provincial government had a range of In the pithy words of Michael Mandel, “[W]hat difficult choices before it as to priorities and Justice Wilson had contemptuously dismissed public needs: as mere ‘administrative inconvenience’ turned out to be an immense bureaucratic knot that The government in 1991 was not just debating rights versus dollars but rights versus hospital would take millions of dollars and years of 52 beds, rights versus layoffs, rights versus jobs, labour to untie.” rights versus education and rights versus social Here, reference should be made to the welfare. The requirement to reduce expenditures, and the allocation of the necessary cuts, was arguments of Jeremy Clarke on the Court’s undertaken to promote other values of a free sensitivity to federal considerations in the and democratic society . . . .56 judicial assessment of N.A.P.E. and other cases.53 Newfoundland is not presented as Those accustomed to portraying the courts simply any province enduring public finance as aloof from the complexities of administrative concerns; Justice Binnie is aware that it is a imperatives and tough political choices will province with a history of past problems and draw comfort from these words. However, persistent fiscal weakness when compared to these trade-offs happen daily in the corridors other provinces. Clarke points out “that if and of government. When are these governmental when judges allow for a differential application arguments compelling? What are the legal of the Charter’s national standards, they are principles defining when deference to this responding to federalist interpretations of the governmental defence applies? Justice Binnie’s Charter contained in provincial factums before judgment offers little in the way of a broader the Court . . . . ”54 The implications of this answer. response and the emerging federalist dialogue cited by Clarke bears watching, for if this Apparent confusion about the proper emerging trend continues, the framing of pan- approach toward financial factors and budget Canadian Charter arguments will need to be far requirements is also seen in Auton (Guardian more nuanced. ad litem of) v. British Columbia (Attorney General)57 and Figueroa v. Canada (Attorney Clarke senses a judicial willingness to let General).58 In the former case, families pursuing provincial communities sort out particular Medicare coverage of emerging autism issues in distinctive ways. There is recognition of treatments found themselves unseated at the “the need or desire of provincial communities to Supreme Court after victories at earlier court build or sustain themselves based on their own levels. The B.C. government’s policy choices conceptions of rights.”55 This is an illuminating about what treatments to cover were deemed argument, but in the Newfoundland case the non-discriminatory. provincial government rationale is much less about a developed conception of rights and The Chief Justice set out the Court’s more about the combination of a distinctive understanding of the central issue, that the provincial history of financial limits coupled services sought were beyond those covered with recurring weakness. Given Justice Binnie’s by the provincial health care system. Autism reprimand of the provincial government for treatment, unlike translation services, was not sloppy section 1 presentation, the possibility seen as a precondition for taking advantage of a developed provincial conception of rights of services covered by the system. Instead, the being at work might be approached cautiously request was for service expansion, allegedly in this particular case. beneficial but not approved for coverage, within the province of British Columbia: 142 Volume 15, Number 3, 2006 The issue is rather whether the British party and the privileges that went with it. Reasons Columbia Government’s failure to fund these for the rule were to protect the integrity of the services under the health plan amounted tax system (given that contributions to political to an unequal and discriminatory denial of parties and candidates were at the time given benefits under that plan, contrary to s. 15 of favourable tax advantages), and the efficiency of the Charter. Despite their forceful argument, electoral administration. The common issue is the petitioners fail to establish that the denial of benefits violated the Charter.59 the balance of financial and budgetary measures with constitutional and/or Charter concerns. At Clearly, attention is paid to whether or not issue were measures that had applied over several there exists the denial of a legislated benefit elections and that had, up to the time of the court under the B.C. Medicare arrangements. Cost case, never been seriously challenged. Here data and the benefits of treatment for purposes again the lower court decision was overturned of potential “effective communication” are not at the Supreme Court level. In this instance, the the issue. The issue is not what care should be Supreme Court advocated an expanded notion provided, but rather whether a benefit is being of democratic rights. They went on to indicate denied that is legislatively set out for others. that they were not persuaded by the arguments about protecting the tax system and budgetary The Court distanced itself from the ruling necessities. in Eldridge by asserting that “this case is concerned with access to a benefit that the law The cases discussed in this section vary from has not conferred.”60 Translation services, on the the N.A.P.E. case in a number of ways. What other hand, were understood as prerequisites for the cases have in common is how the Supreme consultations with physicians and other already Court balances financial imperatives and publicly insured health benefits. Whereas the executive budget authority (taxes and spending) ruling in Eldridge spoke of health and the with claims of rights and/or constitutional quality of life, the decision in Auton narrowed requirements. The high court seems to apply in on legislative purpose and the complexities a diverse set of approaches to this balancing of defining a comparison group for analysis.61 task. As a result, it is difficult to understand the While laws which gave a specific group inferior judicial message about how much autonomy treatment were wrong, “a legislative choice not to government budgetary restraint may have in accord a particular benefit absent demonstration instances of budgetary matters or in making of discriminatory purpose, policy or effect does choices between Charter/constitutional not offend this principle and does not give rise requirements and budgetary trade-offs. Those to s. 15(1) review.”62 Further, the Court pointed searching for judicial direction in the form of out that few provinces ensured the particular a judicial-parliamentary dialogue face a judicial new treatments at issue at the time of the record open to a variety of interpretations; legal action, and that the case for the parents not so much a dialogue as a wait for the next had not sufficiently acknowledged the “recent instalment of a long-running serial. and emergent” nature of the treatment.63 Those seeking some consistency with the expansiveness of Eldridge are disappointed by Concluding Observations the more circumscribed judicial outlook in In the N.A.P.E. case the Supreme Court Auton. Expectations of emphasis on the quality found for the provincial government based on of life of autistic children under new treatment assumptions of “crisis” and “emergency.” These regimes are unsatisfied. labels were affixed despite a weak section 1 Meanwhile, in Figueroa a common issue presentation by the government and the lack was raised in very different circumstances. of definitional or measurement qualification. Governmental rules required political parties Concern over this uncritical acceptance of the to field candidates in at least fifty electoral government’s position led in other cases to an constituencies to retain the status of political examination of judicial reasoning where rights or constitutional requirements ran counter Constitutional Forum constitutionnel 143 to budgetary and financial decisions of the offers helpful insights. See,e.g. , at 48-54. More executive. Reference to a number of these cases scrutiny of how contemporary courts assess revealed the apparent co-existence of different public finance limitations within their overall ways of assessing the costs involved, as well as weighing of rights and duties is needed. different ways of balancing out the financial 8 2004 SCC 66, [2004] 3 S.C.R. 381 (CanLII) and the constitutional and rights concerns. [N.A.P.E.]. 9 See Kent Roach, “Constitutional and Common This raises questions about uncertain judicial Law Dialogues Between the Supreme Court and guidance and the need for further national Canadian Legislatures” (2001) 80:1 & 2 Canadian policy discussion. Given the prevailing rights- Bar Review 481. consciousness that exists in Canada, and given 10 Ibid. at 530-31. the likelihood of continued tough government 11 “The Supreme Court and Section 15: A Thin and budgetary choices, more attention needs to be Impoverished Notion of Judicial Review” (2006) paid to the various elements of this judicial 31:2 Queen’s Law Journal 731 at 767. Also see n. record. Most governments may now be in a 114 at 767. period of increasing surpluses, but this should 12 Peter H. Russell, Constitutional Odyssey: Can not lull us into avoiding the need to grapple Canadians Become a Sovereign People?, 3d. ed. with the Supreme Court’s rulings and shifting (Toronto: University of Toronto Press, 2004) at approaches. 272. 13 Ibid. at 272. 14 Public Sector Restraint Act, S.N. 1991, c. 3, s. 9, Notes as rep. by Public Sector Restraint Act, 1992, S.N. 1992, c. P-41.1. * Hugh Mellon, PhD, Associate Professor, 15 N.A.P.E., supra note 8 at para. 10. Department of Political Science, King’s University 16 Newfoundland (Treasury Board) v. Newfoundland College at The University of Western Ontario, Association of Public Employees, 162 Nfld. & [email protected]. The author would like to note P.E.I.R. 1 (Nfld. T.D.), aff’d 2002 NLCA 72, the helpful advice offered by Prof. S. Noel, as well 220 Nfld. & P.E.I.R. 1 (N.L. C.A.), online: as the editor and reviewers for this journal. The CanLII 144 Volume 15, Number 3, 2006 23 Ibid. at paras. 55-56. 57 Supra note 5. 24 Ibid. at para. 58. 58 2003 SCC 37, [2003] 1 S.C.R. 912 (CanLII). 25 Ibid. at para. 64. 59 Auton, supra note 5 at para. 2. 26 Ibid. at paras. 60, 75. 60 Ibid. at para. 38. 27 Ibid. at para. 72. 61 Ibid. at paras 48-56. 28 Ibid. at paras. 72, 75 62 Ibid. at para 41. 29 Ibid. at para. 75. 63 Ibid. at para 56. 30 See Melvin Baker, “The Tenth Province: Newfoundland Joins Canada” (1987) 10:111 Horizon 2641. 31 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5, s. 91 [POGG]. 32 Re: Anti-Inflation Act, [1976] 2 S.C.R. 373, 1976 CanLII 16. 33 Gerald Baier, “Judicial Review and Canadian Federalism” in Herman Bakvis & Grace Skogstad, eds., Canadian Federalism: Performance, Effectiveness, and Legitimacy (Don Mills: Oxford University Press, 2002) 24 at 26. 34 Russell, Knopff & Morton,supra note 19 at 163. 35 Eldridge, supra note 3. 36 Ibid. at para. 94. 37 For elaboration, see Bruce Porter, “Beyond Andrews: Substantive Equality and Positive Obligations AfterEldridge and Vriend” (1998) 9:3 Constitutional Forum Constitutionnel 71. 38 Eldridge, supra note 2 at para. 89. 39 Ibid. at para. 92. 40 Ibid. at para. 92. 41 Ibid. at para. 87. 42 “Section 1: Justifying Breaches of Charter Rights and Freedoms,” (2000) 27:2 Manitoba Law Journal 179. 43 Ibid. at 181. 44 Supra note 8 at paras. 83, 84, 87. 45 Ibid. at para. 84. 46 Ibid. at para. 85. 47 Supra note 1. 48 Ibid. at 218-19. 49 N.A.P.E., supra note 8 at para. 66. 50 Singh, supra note 2 at para. 73. 51 Ibid. 52 Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada, rev. ed. (Toronto: Thompson Educational Publishing, 1994) at 243. 53 “Beyond the Democratic Dialogue, and Towards a Federalist One: Provincial Arguments and Supreme Court Responses in Charter Litigation” (2006) 39:2 Canadian Journal of Political Science 293. 54 Ibid. at 296. 55 Ibid. at 311. 56 N.A.P.E., supra note 8 at para. 75. Constitutional Forum constitutionnel 145 Invalidity and Retrospectivity under the Irish and Canadian Constitutions Ailbhe O’Neill* Introduction The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent The question of the temporal effect of a with the provisions of the Constitution is, to finding that a statute is unconstitutional has the extent of the inconsistency, of no force or arisen in a number of common law jurisdictions. effect.1 In any legal system that allows its superior courts The provision upon which judges rely in the to strike down legislation, certain practical context of pre-1937 statutes in Ireland is article problems will inevitably emerge. This article 50.1 of the 1937 Irish Constitution, which explains this aspect of Irish constitutional provides as follows: interpretation and compares the manner in which these difficulties have been addressed Subject to this Constitution and to the extent under the Canadian and Irish constitutions. It to which they are not inconsistent therewith, notes that the Supreme Court of Canada was the laws in force in Saorstát Éireann [Irish required to address these practical problems Free State] immediately prior to the date of the directly at an early stage and thus developed coming into operation of this Constitution a more doctrinally coherent approach to shall continue to be of full force and effect findings of constitutional invalidity than the until the same or any of them shall have been Irish Supreme Court. The article goes on to repealed or amended by enactment of the Oireachtas [National Parliament].2 analyze a recent decision of the Irish Supreme Court that has highlighted the difficulties with While the provisions of both constitutions the approach adopted in that legal system and are similar, they have been interpreted quite concludes with some reflections on the relative differently as far as the effect of a finding of merits of the Canadian approach to findings of unconstitutionality is concerned. The Supreme invalidity. Court of Canada decided early on that it had the jurisdiction to suspend the effect of a finding of unconstitutionality. The Irish Supreme Court The Canadian and Irish adopted a more absolutist approach to this Constitutional Provisions issue, adopting and adhering to the “void ab initio doctrine.” The next section explores some The Canadian and Irish constitutions have of the early Irish cases in which this approach broadly similar provisions requiring laws to was taken. It will be seen that it was clear from be compatible with the provisions thereof. In the outset that certain potentially chaotic Canada, the Constitution Act, 1982 provides consequences could arise from this approach. that: Constitutional Forum constitutionnel 147 Irish Cases on Invalidity: The “Void State (Byrne) v. Frawley,11 the applicant had been tried and convicted by a jury selected ab initio Doctrine” in accordance with the Juries Act, 1927 in The superior courts in Ireland3 have taken December 1975. The Supreme Court had the view that the meaning of article 50.1 is that handed down its judgment in de Burca during any law found by a court to be inconsistent with the course of his trial, but the applicant had not the 1937 Constitution is deemed to be void from raised the issue at that stage. The trial resulted the enactment of the Constitution. This doctrine in his conviction and he took an appeal to the — the “void ab initio doctrine” — creates some Court of Criminal Appeal. Again, he failed to obvious practical problems. In particular, it raise any issue in respect of the jury. It was only raises a question mark over the validity of acts after this appeal failed that he institutedhabeas carried out in reliance on a statute that is later corpus proceedings under article 40.4.2° of declared to be unconstitutional. the 1937 Constitution on the grounds that his detention was not in accordance with law. This problem was identified by the The Supreme Court refused him relief on the dissenting judge in the 1972 case of McMahon basis of “preclusion or estoppel,” or the lack of v. Attorney General.4 In that case, a majority permission to relitigate an issue. The Court of the Irish Supreme Court found that the went on to point out that it was unnecessary legislation governing ballot papers — which to determine the position of a convicted person had been used in Dáil elections since 1923 not in similar circumstances to Frawley who — was unconstitutional.5 Justice Fitzgerald, might have raised the issue after conviction. in dissent, pointed out that the finding of the majority “raises or could raise the issue as to Justice Henchy delivered the majority whether all elections and by-elections since 1923 judgment in Frawley. He pointed out that were unconstitutional.”6 No litigant sought to two years had passed since de Burca, and pursue this issue, and the Irish Supreme Court concluded: has never had to rule on it. Such retrospective acquiescence in the The question again arose in the 1976 case mode of trial and in the conviction and its of de Burca v. Attorney General.7 Here, parts legal consequences would appear to raise 8 an insuperable barrier against a successful of the Juries Act, 1927, which excluded from challenge at this stage to the validity of such a jury service persons other than ratepayers who conviction or sentence.12 held land above a minimum rateable valuation and exempted all women other than those who In these early cases, the Supreme Court made a specific application to be considered for was thus able to avoid the potentially chaotic jury service, were found to be unconstitutional. sequelae of its interpretation of article 50.1. A Striking down these provisions of the Act, number of members of the bench, however, Chief Justice O’Higgins noted in passing that adverted to the difficulty the Court was storing the possible impact of the decision on the up by adopting the void ab initio doctrine. In thousands of criminal trials that had taken a later case, Murphy v. Attorney General,13 a place in front of juries selected under the Act, minority of the Irish Supreme Court voiced had caused him “some concern.”9 He went on their concerns about the void ab initio doctrine, to make the obiter comment that any argument preferring a doctrine of prospective rather than that criminal trials concluded in front of juries retrospective invalidity.14 selected under the Act would be invalidated by “[t]he overriding considerations of an ordered As will be seen in the next section, the Court society.”10 in Murphy placed some temporal limitations on the remedies available to litigants in the wake The judgment in de Burca was followed by of a finding of invalidity. a case involving a litigant trying to rely on the invalidity of the legislation. In that case, The 148 Volume 15, Number 3, 2006 Murphy: The Temporal Imitation of Similar cases involving the statute books of Saskatchewan19 and Alberta20 followed, and the Redress Court again used this mechanism to prevent the The Murphy case gave rise to the striking creation of a legal vacuum in those provinces.21 down of certain taxation legislation, a decision The Court used the “deemed temporal with potentially wide-ranging disruptive results. validity” approach in a number of subsequent Rather than suspend the effect of the ruling, cases concerning violations of Charter22 rights. the Supreme Court chose to focus on the issue Most of these cases arose in the context of the of redress. A majority of the Supreme Court criminal justice system. In R. v. Brydges,23 the endorsed the void ab initio doctrine, but they Court provided for a thirty-day transitional limited the redress available to the plaintiffs to period during which police cautions that the recovery of tax paid since the commencement breached Charter rights could continue to of the constitutional action. The Court also be given.24 In R. v. Bain,25 the majority struck indicated that only those third parties who had down provisions of the Criminal Code26 that raised the issue of the constitutionality of the allowed the Crown but not the accused to legislation before the statute was struck down “stand by” prospective jurors on the basis that could recover. Justice Henchy stated that while it was contrary to section 11(d) of the Charter.27 the general rule must be to allow corrective legal In this case, the Court allowed for a six-month proceedings,15 “the law has to recognize that period of validity to provide an opportunity there may be transcendent considerations which for Parliament to remedy the situation if it make such a course undesirable, impractical, or considered it appropriate to do so.28 In R. v. impossible.”16 Swain,29 the Supreme Court struck down certain The minority, as noted above, stated a provisions of the Criminal Code that required a preference of abandoning the void ab initio person acquitted on the grounds of insanity to doctrine in favour of a prospective ruling of be detained in a psychiatric institution. These invalidity. As can be seen from the next section, provisions were found to violate sections 7 and this is very close to the approach developed by the 9 of the Charter.30 The Court held that there Supreme Court of Canada in its jurisprudence. should be a six-month “period of temporary validity” to prevent the release of all such detainees.31 The Canadian Approach and Apart from the cases concerning the “Temporary Validity” criminal justice system, the Canadian courts Unlike the Irish Supreme Court, the also faced the issue in the context of the electoral Supreme Court of Canada was forced to system. In 1989, in Dixon v. British Columbia consider the practical problems with findings (Attorney General),32 Supreme Court of British of invalidity in an early constitutional case that Columbia Chief Justice McLachlin found that raised the issue quite starkly. In the well-known provincial legislation prescribing electoral case of Reference re Manitoba Language Rights,17 districts for the province of British Columbia the Supreme Court of Canada found that all was unconstitutional. The statute violated statutes and regulations of the Province of section 3 of the Charter because of the disparity Manitoba that were not printed and published in of the voting populations of various districts. both English and French were constitutionally She noted that nullification of the legislation invalid. Recognizing the catastrophic results would leave the province without any means of that the immediate striking down of these laws holding elections, and took the view that in any would have, the Court made a novel ruling that system of responsible government it was possible gave “deemed temporary validity” to all of the for elections to be held at any time. Chief Justice laws affected by the decision. The Court justified McLachlin also compared the emergency in the this action on the basis of the need to preserve case at hand to the situation in the Manitoba the rule of law.18 case and held that the unconstitutional laws Constitutional Forum constitutionnel 149 would “stay provisionally in place to avoid the would pose a danger to public, threaten the rule constitutional crisis which would occur should of law, or result in the deprivation of benefits a precipitate election be required.”33 from deserving persons. The legislation was to remain in place for as TheSchachter decision was cited by the Irish long as “may reasonably be required to remedy” Supreme Court in its most recent decision on it with the actual time limit to be fixed by a the effect of finding legislation unconstitutional, subsequent court order.34 In later proceedings,35 but the judges, with one (qualified) exception,43 such an order was sought but rejected on the rejected the Canadian approach and endorsed basis that the legislature ought to be left “to do once again the void ab initio doctrine. This what is right in its own time.”36 decision is set out in more detail in the next section. Consolidating the Canadian Position: Schachter v. Canada Introduction to the A. Case: The Irish Courts Revisit the Issue of In Schachter v. Canada,37 the Supreme Court of Canada found that a provision of Invalidity 38 the federal Unemployment Insurance Act The Irish Supreme Court recently revisited violated the guarantee of equality in section the question of the effect of a finding of 15(1) of the Charter by giving more generous unconstitutionality in A. v. The Governor of child care benefits to adoptive than to natural Arbour Hill Prison.44 This case arose out of a 39 parents. Chief Justice Lamer pointed out that habeas corpus application by a man who had striking down the statute would simply deprive pleaded guilty to an offence of unlawful carnal everyone of the benefits, and found that “[t]he knowledge of a girl under fifteen contrary to logical remedy is to strike down but suspend the section 1(1) of the Criminal Law Amendment declaration of invalidity to allow the government Act, 1935,45 and who received a three-year to determine whether to cancel or extend the custodial sentence. An unrelated individual, 40 benefits.” C.C., charged with the same offence, challenged Chief Justice Lamer emphasized that such the constitutionality of section 1(1) in a case an order should only be resorted to where less taken approximately eighteen months after Mr. A began serving his sentence. In its judgment in extreme solutions such as severance or reading 46 down were found to be inappropriate.41 He the C.C. case, the Irish Supreme Court declared also explored some of reasons why “deemed the offence to which Mr. A had pleaded guilty to temporal validity” ought to be a remedy of be inconsistent with the 1937 Constitution on last resort. He pointed out that such a ruling the basis that it precluded a defence of honest maintains in force an unconstitutional statute and reasonable mistake. The Court made a and that it involves a “serious interference” declaration to that effect under article 50.1 of with the legislative process because it “forces the 1937 Constitution, effectively striking down the matter back onto the legislative agenda at a section 1(1) of the Criminal Law Amendment time not of the choosing of the legislature, and Act, 1935. within time limits under which the legislature After the judgment in C.C. was handed 42 would not normally be forced to act.” down, Mr. A made an application to the The decision in Schachter revisited the High Court under Article 40.4.2° of the 1937 earlier Canadian case law on this issue and set a Constitution, seeking his release from custody on the grounds that there was no lawful basis number of limitations on the circumstances in 47 which rulings of temporary validity would be for his detention. His argument was that made. Such rulings were only to be made where the application of this approach to findings the striking down of a law with immediate effect of invalidity meant that the offence for which he was convicted had never actually existed. 150 Volume 15, Number 3, 2006 In the High Court,48 Justice Laffoy delivered a claiming damages for unlawful detention in the short judgment ordering the immediate release past (which would be analogous to Murphy). of the respondent from custody. The judgment Rather, he was claiming that the state could not relied heavily on the void ab initio doctrine, and justify continuing to deprive him of his liberty noted that the offence “ceased to have legislative after that deprivation had been found to be existence in 1937” when the 1937 Constitution constitutionally infirm. Despite the findings of came into force.49 the High Court on this point, each member of the Supreme Court adopted this two-step test in A. Retrospectivity and Continuing Detention There was, however, some variation in the way that each Supreme Court judge explored One of the curious aspects of the A. the second issue. The Chief Justice took the case is the fact that so much emphasis was view that the doctrine of res judicata precluded placed on the troubled question of the effect the reopening of the applicant’s conviction. of a finding of invalidity on the conviction This is a novel approach to Irish constitutional and sentencing of the applicant at the time interpretation, as the doctrine of res judicata is these occurred. This focus on the question of a common law doctrine that had never before “retrospectivity,” as it was framed by the Court, been relied upon in the context of constitutional was arguably misguided. Article 40.4.2° of the precedent, and no justification is offered in the 1937 Constitution requires the state to justify judgment for this sudden transplantation. the continuing detention of a habeas corpus applicant. The resolution of this issue does not The Irish courts, as with many of their necessitate finding that the original conviction common law counterparts, tend to rely on a 51 and sentence were constitutionally frail, only variety of interpretive tools when analyzing 52 that their continuation in force cannot be the 1937 Constitution. One of the prevalent justified so as to allow for an existing and future approaches in recent constitutional jurisprudence 53 deprivation of liberty. Despite this, the Supreme is the “harmonious approach.” In A., Chief Court unanimously assumed that a finding Justice Murray relied on this interpretive in favour of the applicant would involve some method in his judgment, where he emphasized element of retrospectivity and approached the the importance of interpreting article 50.1 in case on that basis. light of the constitution as a whole. He referred in his judgment to the competing constitutional considerations. Interestingly, Chief Justice The Judgments in the Supreme Murray identified these considerations as being Court comprised of the rights of the applicant and the interests of justice, including the rights One of the key aspects of the judgments of the victim. What is striking about this in the A. case was the parsing of the question interpretation is that there is little emphasis “what is the effect of striking down a statute?” placed on the constitutional right to liberty, into two issues: (1) the time from which the which is one of the fundamental rights in the statute is ineffective, and (2) the issue of redress. Irish constitutional order.54 Justice Hardiman, This approach had also been taken inMurphy .50 who also took a harmonious approach, also Whatever the validity of the approach in that avoided reference to this competing value. case — and it is arguably inconsistent with a In his judgment, he made reference to the strict void ab initio approach — the situation Preamble of the 1937 Constitution, which refers in the two cases as regards redress were not to the promotion of the “common good” and comparable. In Murphy, the approach operated the attainment of “true social order.” The same so as to prevent litigants claiming restitution paragraph of the Preamble also refers to the of invalidly paid tax. The applicant in the A. case was in a different position — he was not Constitutional Forum constitutionnel 151 assurance of “the dignity and freedom of the a measure void, may state which of the effects individual,” but again no emphasis is placed on of the regulation that it found void are to be this value. definitive. The Chief Justice referred to the ECJ’s practice (similar to that of the Supreme Court of Canada) of maintaining the impugned provision in effect until a new valid measure Apart from this interpretive tool, Chief 65 Justice Murray and Justice Hardiman also made was adopted. 55 reference to “transcendent considerations” that Finally, Justice Denham also made some rendered complete or absolute retrospectivity reference to the Canadian case law66 and the inappropriate. The source and content of jurisdiction of the Supreme Court of Canada these “transcendent considerations” was not to suspend findings of invalidity, but ultimately articulated, but the phrase was used by the Chief did not approve of the adoption of that approach Justice to refer to public policy considerations in Ireland. and the fact that “many things of great public or private significance may have taken place by virtue of an impugned measure.”56 Justice Reflections on the Canadian and Hardiman’s judgment took a similar approach Irish Approaches in this regard. Both judges referred to earlier case law such as McMahon,57 in support of The approach taken by the Irish Supreme the limitations of retrospectivity. In fact, the Court in the A. case can be criticized for its question of redress did not arise for judgment arguable lack of consistency with earlier case law in those cases so that any conclusions drawn in and its overreliance on obiter dicta from such the judgments in that regard were obiter. case law. It can also be criticized for insisting on the continued adoption of the void ab initio doctrine while compounding the incoherence in A Comparative Excursus the doctrine arguably first exposed in Murphy. The Chief Justice was the only member of While it has been argued here that the A. case the Court to engage in an extensive comparative did not require the Court to adopt a position survey of other legal systems, referring to the on retrospectivity and limitation of relief, the jurisprudence of the European Court of Human Court nonetheless ruled on these issues and Rights,58 the Supreme Court of India,59 the some reflections on the alternative Canadian United States Supreme Court,60 and the Supreme approach merit discussion. 61 Court of Canada in passing. As far as the The Canadian approach is not latter jurisdiction was concerned, the Schachter uncontroversial, and has even been described 62 case was not referred to in his judgment, but as “radical,”67 but one of the advantages of the reference was made to Bain. Canadian approach is that it has a consistency In fact, the jurisdiction on which the most to it that is arguably lacking in the Irish jurisprudence. The consolidation of the case law analysis focused was the European Court of 68 Justice (ECJ) rulings on the interpretation of in the Schachter decision refined the situations the European Community Treaties.63 Chief in which the Court would exercise this tool of Justice Murray’s comparative survey started “deemed temporal validity,” and confined it to with the European Union.64 He noted that discrete categories of cases. the jurisprudence on requests for preliminary Indeed, some of the Irish case law on ruling under article 235 of the EC Treaty reveal invalidity pre-A. involved situations that could that the ECJ sometimes limits the retroactive usefully have been dealt with under the Canadian effect of its ruling and sometimes allows those approach post-Schachter by the suspension of a who have brought proceedings prior to the finding of invalidity. For example, electoral cases ruling to maintain them. Article 231 of the such as McMahon69 would clearly fall under EC Treaty provides that the ECJ, in declaring the rule of law category. On the other hand, 152 Volume 15, Number 3, 2006 the Schachter criteria are themselves malleable Notes and their precise extent can vary from case to * Dr. Ailbhe O’Neill, Barrister and Lecturer in Law, case. Thus, what constitutes a “threat to the Trinity College Dublin, [email protected]. public” may not always be clear. Depending on 1 Constitution Act, 1982, s. 52(1), being Schedule B the breadth of meaning given to that concept, to the Canada Act 1982 (U.K.), 1982, c. 11. 70 the application of Schachter in C.C. might 2 Constitution of Ireland, art. 50.1, online: not necessarily have put Mr. A in any better a Department of the Taoiseach Constitutional Forum constitutionnel 153 [Charter]. Upon complaint being made by or on behalf of any person to the High Court or any judge 23 [1990] 1 S.C.R. 190, 1990 CanLII 123. thereof alleging that such person is being 24 See also R. v. Askov, [1990] 2 S.C.R. 1199, 1990 unlawfully detained, the High Court and CanLII 45. any and every judge thereof to whom such 25 [1992] 1 S.C.R. 91, 1992 CanLII 111 [Bain]. complaint is made shall forthwith enquire 26 R.S.C. 1985, c. C-46. into the said complaint and may order the person in whose custody such person is 27 Section 11(d) provides that “[a]ny person charged detained to produce the body of such person with an offence has the right to be presumed before the High Court on a named day and to innocent until proven guilty according to law in certify in writing the grounds of his detention, a fair and public hearing by an independent and and High Court shall, upon the body of such impartial tribunal.” person being produced before that Court and after giving the person in whose custody he 28 Supra note 25 at 165. is detained an opportunity of justifying the 29 [1991] 1 S.C.R. 933, 1991 CanLII 104. detention, order the release of such person 30 Section 7 provides that “[e]veryone has the right from detention unless satisfied that he is being to life, liberty and security of the person and detained in accordance with the law. the right not to be deprived thereof except in 48 A. v. The Governor of Arbour Hill Prison, [2006] accordance with the principles of fundamental IEHC 169 (BAILII), Laffoy J. justice.” Section 9 provides that “[e]veryone 49 Ibid. has the right not to be arbitrarily detained or 50 Supra note 13. imprisoned.” 51 The Irish courts have evolved a number 31 Supra note 29 at 1021 and 1037. of techniques of interpretation since the 32 (1989), 59 D.L.R. (4th) 247, 1989 CanLII 248 Constitution was promulgated in 1937. These (B.C.S.C.). include the literal approach, the historical 33 Ibid. at 284. approach, the broad or purposive approach, 34 Ibid. and the natural law approach. For an excellent 35 Dixon v. British Columbia (A.G.) (1989), 60 D.L.R. summary of the case law relating to Irish (4th) 445 (B.C.S.C.). constitutional interpretation, see Gerard Hogan 36 Ibid. at 448. & Gerry Whyte, eds., J.M. Kelly: The Irish 37 [1992] 2 S.C.R. 679, 1992 CanLII 74 [Schachter]. Constitution, 4th ed. (Markham, ON: LexisNexis 38 Currently the Employment Insurance Act, S.C. Butterworths, 2003) at 3-38. 1996, c. 23. 52 Supra note 2. 39 Section 15(1) of the Charter, supra note 22 53 Dillane v. Ireland, [1980] I.L.R.M. 167 is the provides that “[e]very individual is equal before earliest example of the application of this method and under the law and has the right to the equal of interpretation. protection and equal benefit of the law without 54 Personal liberty is protected under Article 40.4.1° discrimination and, in particular, without of the 1937 Constitution and provides that “[n]o discrimination based on race, national or ethnic citizen shall be deprived of his personal liberty origin, colour, religion, sex, age or mental or save in accordance with law.” physical disability.” 55 The phrase is borrowed from the judgment of 40 Supra note 37 at 716. Henchy J. in Murphy, supra note 13. See also the 41 In Ireland, “reading down” is the preferred judgment of Hardiman J. in A., supra note 44. approach to statutes that post-date the 1937 56 A., ibid. Constitution, supra note 2, as these enjoy a strong 57 Supra note 4. presumption of constitutionality. See East Donegal 58 Marckx v. Belgium (1979), 2 E.H.R.R. 330, [1979] Co-Operative Livestock Mart Ltd. v. Attorney E.C.H.R. 2 (BAILII). General, [1970] I.R. 317. 59 India Orissa Cement Ltd. v. State of Orissa [1991] 42 Supra note 37 at 716-17. Supp. (1.) SCC 4330. 43 Justice Denham alone advocated prospective 60 The U.S. Supreme Court decision ofChicot overruling. See discussion below. County Drainage District v. Baxter State Bank, 44 [2006] IESC 45 (BAILII) [A.]. 308 U.S. 371 (1940) (FindLaw) had already been 45 (Ire.), No. 6/1935. referred to by Henchy J. in Murphy, and Murray 46 C.C. v. Ireland, [2006] IESC 33 (BAILII) [C.C.]. C.J. referred to this decision and three later 47 Article 40.4.2° of the 1937 Constitution, supra decisions in A.: Linkletter v. Walker, Warden, note 2, specifically provides forhabeas corpus 381 U.S. 618 (1965) (FindLaw); Tehan, Sheriff v. applications to the High Court as follows: United States (Ex. Rel. Shott), 382 U.S. 406 (1966) 154 Volume 15, Number 3, 2006 (FindLaw); and Stovall v. Denno, Warden, 388 U.S. 293 (1967) (FindLaw). 61 Bain, supra note 25; and R. v. Wigman, [1987] 1 S.C.R. 246, 1987 CanLII 1. 62 Supra note 37. 63 See European Union, Consolidated Version of the Treaty on European Union and of the Treaty Establishing the European Community, [2006] O.J.C 321/1. 64 In Murphy, supra note 13, reference was made to the ECJ’s decision in Defrenne v. Sabena, [1976] 2 CMLR 98. 65 C-178/03 Commission v Parliament [2006] ECR 1-0. 66 Bain, supra note 25; Schachter, supra note 37; and Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, 1999 CanLII 687. 67 See Hogg, supra note 18. 68 Supra note 37. 69 Supra note 4. 70 Supra note 46. 71 Hogan & Whyte, supra note 51 at 906. 72 Supra note 44. 73 Ibid. 74 See Sinnott v. Minister for Education, [2001] 2 I.R. 545, [2001] IESC 63 (BAILII) for an example of the separation of powers doctrine in its most rigid guise. Constitutional Forum constitutionnel 155