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The Principles of Fundamental Justice and the “Societal Consensus” Requirement

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The Principles of Fundamental Justice and the “Societal Consensus” Requirement by Tara Mrejen A thesis submitted in conformity with the requirements for the degree of Master of Laws Faculty of Law University of Toronto © Copyright by Tara Mrejen (2016) The Principles of Fundamental Justice and the “Societal Consensus” Requirement Tara Mrejen Master of Laws Faculty of Law University of Toronto 2016 Abstract The Supreme Court of Canada’s test for delineating the principles of fundamental justice requires that a proposed norm enjoy “significant societal consensus that it is fundamental to the way in which the legal system ought to fairly operate”. The author examines the considerations that count in favour of recognizing that a proposed norm satisfies this requirement; they include: the standard employed—be it normative or empirical, the types of sources relied upon and the way a proposed norm is framed or reframed by the Court. The author argues a normative standard is preferable because it allows the Court to retain full competence to deal with those egregiously unfair outcomes that fall under section 7 but are unpredictable ex ante. It is the better standard for a liberal-democratic state which values dialogue as between the Court and Parliament. As for reformulating proposed principles, the author argues procedural safeguards should be introduced. ii Acknowledgments I would like to thank my supervisor Professor Hamish Stewart for his meaningful feedback, encouragement and kind offer to provide supervision while on sabbatical. I would also like to thank Assistant Professor Vincent Chiao and Adjunct Professor Nader Hasan for the several helpful and enjoyable discussions on the topic of section 7. Finally, I am grateful to my family and Daniel for unconditional support during my graduate studies. This thesis is dedicated to my late father. iii Table of Contents 1. Introduction ............................................................................................................. 1 2. The Empirical Standard .......................................................................................... 5 3. The Normative Standard ....................................................................................... 15 4. Reformulating Proposed Principles of Fundamental Justice ........................... 20 5. So What? ................................................................................................................ 25 How the Standard Applied under Section 7 Matters ............................................ 25 Independence and Dialogue ................................................................................ 30 6. Alternative Proposed Norms and the Need for Procedural Safeguards .......... 35 7. Conclusion ............................................................................................................. 38 iv 1. Introduction Section 7 of the Canadian Charter of Rights and Freedoms states that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”1 Section 7 protects individuals’ most basic interests—their life, liberty and security—but only if state action which affects those interests is fundamentally unjust. And there is much at stake in determining what are the “principles of fundamental justice.” The state is otherwise free to take away some part of an individual’s life, liberty and security, if he or she cannot point to a relevant principle of fundamental justice and then prove it has been infringed in a constitutional challenge under section 7.2 We now know that the principles of fundamental justice are both procedural and substantive.3 We also know that the Supreme Court of Canada’s test for delineating the principles of fundamental justice requires a proposed norm to meet three characteristics. The norm in question must: (i) be “a legal principle”; (ii) enjoy “significant societal consensus that it is fundamental to the way in which the legal system ought to fairly operate”; and (iii) be sufficiently precise so as to “yield a manageable standard against which to measure deprivations of life, liberty or security of the person.”4 In this paper, I focus on the second of these three characteristics, which I refer to as the “societal consensus” requirement. 1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 1, s 7 [Charter]. 2 But see Hamish Stewart, “Bedford and the Structure of Section 7” (2015) 60:3 McGill LJ 575. Stewart has suggested that the structural relationship between section 7 and section 1 has been fundamentally altered after Canada (A.G.) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, opening the possibility that violations of section 7 may be saved under section 1. 3 Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 SCR 486 [B.C. Motor Vehicle Reference]. 4 R v Malmo-Levine, 2003 SCC 74 at para 113, [2003] 3 SCR 571 [Malmo-Levine]; R v D.B., 2008 SCC 25 at para 125, [2008] 2 SCR 3 [ R v D.B.], Chaoulli v Quebec (Attorney General), 2005 SCC 35 at para 208, Binnie J and LeBel J, dissenting, [2005] 1 SCR 791[Chaoulli]. Canadian Foundation for Children, Youth and Law v Canada 1 Hamish Stewart has remarked that this requirement is the most difficult of the three characteristics to understand and apply.5 Peter Hogg on the other hand, has argued that the Court never intended to take the “societal consensus” requirement seriously. In his view, it is unclear how parties can go about proving “societal consensus” as a phenomenon and many of the currently recognized principles of fundamental justice lack popular support. Taken at the extreme, his view asserts that “judges will decide for themselves (and no doubt often disagree) on whether a societal consensus exists for a proposed principle of fundamental justice”.6 And finally, Nader Hasan has noted the idea of societal consensus is a “legal fiction” and appears “oxymoronic” to the purpose of the Charter.7 But what are the considerations that count in favour of recognizing that a proposed principle of fundamental justice satisfies the “societal consensus” requirement? The answer depends on the standard employed, the sources relied upon and the way a proposed principle is either framed by party submissions or reframed by the Court. First, it appears that the Supreme Court has implicitly rejected the possibility that the “societal consensus” requirement can be met by applying an empirical standard. In Rodriguez, (Attorney General), 2004 SCC 4 at para 8, [2004] 1 SCR 76 [Canadian Foundation for Children, Youth and Law]; Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519 at 590 [Rodriguez] (Rodriguez features different wording: there must be sufficient consensus that the proposed principle is “vital or fundamental to our societal notion of justice”). See also most recently Canada (Attorney General) v Federation of Law Societies of Canada v Canada) 2015 SCC 7 at para 87, [2015] 1 SCR 401 [Federations of Law Societies of Canada]; Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62 at para 147, [2014] 3 SCR 176 [Kazemi Estate]. Hamish Stewart has observed that these three characteristics form the first real unified structured methodology or test for recognizing principles of fundamental justice, emanating from an older version enunciated in Rodriguez, nearly 8 years after the Court rendered Re B.C. Motor Vehicle Act: Hamish Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law, 2012) [Stewart, Fundamental Justice] at 106. Peter Hogg has made a similar observation: See Peter Hogg, “The Brilliant Career of Section 7 of the Charter” (2012) 58 SCLR (2d) 195 [Hogg, “The Brilliant Career of Section 7”] at 199. 5 Stewart, Fundamental Justice, ibid at 108. 6 Hogg, “The Brilliant Career of Section 7”, supra note 4 at 201. 7 Nader R Hasan, “Three Theories of ‘Principles of Fundamental Justice’” (2013) 63 SCLR (2d) 339 at 367. Hasan notes that most average people in Canadian society would be unable to answer the question of what is a principle of fundamental justice? Relying on R v Collins, [1987] 1 SCR 265 Hasan suggests that the question of delineating the content of Charter rights should not be dependent on what the majority of the public thinks, since the Charter is designed to protect unpopular minorities such as the accused. 2 Malmo-Levine and Chaoulli, the criterion is explicitly associated with a standard of “general acceptance among reasonable people”.8 Like several other areas of the Charter, this assertion suggests the standard employed is normative as it involves a version of an objective legal standard.9 Under such a standard, the facts of a particular case do not alone determine the outcome and what ought to be the governing view in a reasonable Canadian society plays a role in the inquiry.10 But the section 7 caselaw reveals the Supreme Court has not always remained faithful to the normative standard. In some cases, the Court actually resorts to applying an empirical standard and the focus of the inquiry is on ascertaining what are the relevant attitudes of Canadians toward the proposed principle of fundamental justice at issue. The empirical- normative inconsistency is not something new. In the context of section 8 of the Charter, Hamish Stewart has shown the Court to oscillate between an empirical-centric approach and a normative-centric approach
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