v. Supreme Court of : Reference re Senate Reform, Reference re Supreme Court Act, Canada v. Bedford

Kirsten Andersen Ph.D. Candidate, York University

Canadian Political Science Association Annual Congress 2017 31 May 2017 Ryerson University, Toronto

Table of Contents

I. Introduction 1 a. Calgary School Members 2 b. Principles 2 II. The Cases: 4 a. Reference re Senate Reform 4 b. Reference re Supreme Court Act 6 c. Canada (Attorney General) v. Bedford 10 III. Conclusion 15 Works Cited 16

“[W]e will not cease from mental fight, till we have built a Hayekian Jerusalem in Canada’s green and pleasant land.”1

-Tom Flanagan, ‘Advice to Progressives From the Calgary School’

I. Introduction This quotation is intentionally absurd, however, it also reflects the most extreme attitudes of a group of Canadian conservative thinkers and political actors known as the Calgary School (‘the School’). Referred to as “a rambunctious, Rocky Mountain brand of that has become synonymous with ,” the Calgary School advocates limited govern- ment, powerful provinces, and unfettered democracy.2 This paper will take the Calgary School perspective and apply it as an analytical lens for examining three decisions by the (‘the Court’) that illustrate the rela- tionship between Parliament and the judiciary at the tail-end of the Harper era. First, the paper will consider Reference re Senate Reform (hereafter the Senate Reference), where the federal government referred questions to the Court concerning potential changes to the Senate of Cana- da. Second, the paper will consider Reference re Supreme Court Act, ss. 5 and 6 (hereafter Supreme Court Reference), which addressed and rejected the attempted appointment of the Hon- ourable Marc Nadon to the Court. Third, the paper will consider Bedford v. Canada (Attorney General) (hereafter Bedford), where three provisions concerning prostitution in the Criminal Code were struck down as unconstitutional. Each of these judgments reflects an area of disagreement between the federal government and the Court that generated a significant degree of political contention. Interpretations of earlier and similarly controversial rulings were offered by the Calgary School following the introduction of the Charter of Rights and Freedoms (hereafter the Charter) in 1982. The School had probed these Court decisions to determine their political precipitants and consequences, and overall im- plications for policy. The analysis undertaken here will unpack the School’s conceptualization of democracy and its particular concerns with the legitimacy of judicial contributions to policy for- mation processes. The School’s notions of individual liberty, government accountability, and rep- resentative democracy are a distinctly Canadian adaptation of classical liberal theory’s most en- during ideas. Far from losing their relevancy, the School’s interpretations of Canadian constitu- tional jurisprudence are helpful for explaining both the outcomes and political circumstances precipitating three politically charged Supreme Court judgments from the past few years. The hegemonic ideologies animating the School are still widely held today by powerful political ac- tors, and for this reason, must be robustly understood. Only then may they be meaningfully chal- lenged and alternatives proposed. This paper will proceed by first explaining the views and ideological underpinnings of the Calgary School by providing an overview of writing by some of its members. The paper will then turn to my selection of the Court’s constitutional judgments, and interpret them using the School’s lens. These interpretations will give equal consideration to the judiciary’s actions and

1 A sardonic excerpt from Flanagan’s ‘Advice to Progressives From the Calgary School’ as featured in Literary Re- view of Canada magazine, December 2010. 2 Mcdonald, Marci, ‘The Man behind ’, The Walrus, Web, 29 Sept 2014

!1 those of the relevant elected representatives. There will be no attempt to moderate or justify the School’s convictions.3 a. Calgary School Members Much like members of any ‘school’ of thought, adherents of the Calgary School do not always explicitly identify themselves as such. While there are numerous students of the School, its founders and most prolific members are an assortment of political figures, academics, and elected representatives. Situated at the School’s centre are its thinkers and educators, namely Barry F. Cooper, Tom Flanagan, , , and David Bercuson. The School’s unofficial (but widely recognized) members include mainly right-wing Western Canadian politi- cal actors. These include former federal Official Opposition Leader and former Alberta Official Opposition leader, .4 As a partisan of the aptly named Reform party, former Prime Minister Stephen Harper established himself politically in the company of the Calgary School members. While it would be misleading to designate Harper as an adherent of the School, the School's beliefs and activities have had an undeniable influence on him. No- tably, Harper’s former chief of staff, Ian Brodie, is claimed by the School’s members as one of their own.5 b. Principles The Calgary School’s principles are most clearly articulated in the writings of its thinkers that have taken up the issues of Meech Lake, sovereignty, Aboriginal rights, and the ‘problem’ of judicial activism. Concerning the last issue, the School’s opinion is expressed in Ted Morton and Rainer Knopff’s cri de coeur: The Charter Revolution and the Court Party. In this book, Morton and Knopff articulate some of the School’s central ideas that inform the analysis undertaken here. They suggest that following the entrenchment of the Charter, interest groups and government institutions have heightened the Supreme Court’s influence and political power to unprecedented levels. This has facilitated judicial activism and led to a powerful Court capable of making impactful political decisions that come at the price of a well-functioning democracy.6 It is impossible to overstate the legal, political, and social significance of the Charter within Canada. Indeed, the School’s rise to prominence followed that of the Charter—towards which the School maintains a strong suspicion. Rather than the quiet judicial aura that surrounds post-Charter jurisprudence, the School prefers the “sound and the fury” of legislative debate.7

3 Rather, it is some of the School’s more problematic ontological and epistemological commitments that are high- lighted here. My critique considers their most prominent and visible examples. This assessment expresses the hypo- thetical opinions of the Calgary School, regardless of whether they are explicitly and/or consistently identified as such. Opinions presented as belonging to the School are the product of both actual and imagined responses by its members. 4 Supra note 1. 5 Ibid. 6 Review of The Charter Revolution and the Court Party. Canadian Justice Review Board 7 F. L. Morton, and Rainer Knopff, The Charter Revolution and the Court Party, (Peterborough, Ont.: Broadview, 2000) p. 13, 158

!2 Understanding what the School stands for first requires an understanding of what it de- cries. In The Charter Revolution and the Court Party, the terms “Charter revolution” and “Court Party” are used in an exclusively pejorative manner. The Charter revolution refers to a move- ment away from a parliamentary supremacy towards a constitutional supremacy, or, what the School sees as a problematic move towards is “judicial supremacy.”8 The School’s general con- cern is court engagement in policy decisions that subvert existing government legislation. Such subversions are undemocratic because they result in non-elected judges changing the policies of elected representatives. Since judges are not elected, their policymaking cannot be regarded as legitimate. The introduction of the Charter brought with it a judiciary that became more politically active and policy-influencing than ever before.9 Such a judiciary engages in judicial activism. Defined sympathetically, judicial activism is the “inclination by the court to be fairly bold about striking down laws and policies that contravene the constitution.”10 However, Morton and Knopff set out a more severe definition, and refer to judicial activism as the judiciary’s readiness to veto the policies of other government branches (particularly Parliament and legislatures) rather than defer to them. Simply put, the Charter revolution lies in the judicialized, legalized, and rights-based vernacular that defines contemporary policymaking.11 As the former Supreme Court Justice Bertha Wilson put it:

Thus, the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass. The role of the courts is to map out piece by piece, the pa- rameters of the fence.”12

The Court Party is best understood in reference to its participation in the Charter revolu- tion. Morton and Knopff state that the Charter revolution “is characterized by the rising promi- nence in Canadian public life of both a policy-making institution (the judiciary) and its partisans (the Court Party).13. The Court Party’s political interests can be broken into five “distinct (albeit overlapping) categories:” national unity advocates, civil libertarians, equality-seekers, social en- gineers, and post-materialists.14 The impact of the Charter revolution and the emergence of the Court Party on Canadian constitutional law and politics is not limited to Charter litigation. The Charter revolution has brought about an increase in the judiciary’s power and influence relative to other governmental actors that has permeated all government-court interactions. With the federal government’s sanc- tion the Charter has shifted the power dynamic between the different branches of government

8 The Charter Revolution and the Court Party, supra note 7, p. 13 9 Ibid. 10 Robert J. Sharpe and Kent Roach, The Charter of Rights and Freedoms (Toronto: Irwin Law, 2013), p. 441 11 Supra note 7, p. 15, 21 12 Justice Bertha Wilson, R. v. Morgantaler [19880 1 S.C.R. 30 at pg 164 13 Supra note 7, p. 24 14 Supra note 7, p. 31

!3 decidedly in favour of the courts. During the Harper era the executive appears to make a concert- ed effort to regain some of its former power from the judiciary with varying degrees of success.

II. The Cases: a. Reference re Senate Reform Summary Pursuant to section 53 of the Supreme Court Act, “the government may refer directly to the court questions of law or fact concerning the interpretation of the constitution, or the consti- tutionality of any legislation.”15 In the Senate Reference, the federal government referred six questions to the Supreme Court regarding Parliament’s ability to amend the Senate Act without amending the Constitution, pursuant to section 91 of the Constitution Act, 1987, or section 44 of the Constitution Act, 1982. The two major issues of the Senate Reference were the possible introduction of term lim- its for senators, as well as the institution of province-wide, non-binding plebiscites to nominate potential Senate appointments. The Court answered these two proposed questions with a re- sounding ‘No’. The upshot of the Senate Reference was that Parliament cannot bring about any of the proposed Senate reforms without fulfilling the 7/50 general amending procedure, nor abol- ish it entirely without the unanimous consent of the provinces.16 Similar to the criteria laid out by the Court in Reference re Secession of Quebec, the Court’s decision on the Senate renders the prospect of its reform virtually nil. While constitutionally possible, provincial unanimity on any single issue is extraordinarily rare. Unquestionably, the issue of the Senate reform would be no exception.

Reference as Deference As is consistent with its democratic ideals, the Calgary School has long supported elect- ing Senators to serve their goal of increased accountability. The Alberta legislature passed the Senatorial Selection Act in 1987 to determine its preferred Senate elect and achieve exactly what Harper government hoped to establish nationwide. Alberta formally supports the establishment of a “Triple-E Senate – one that is elected, equal and effective,” and the nomination process is a way in which this mandate is partially achieved.17 Calgary School member and former Reform party leader Preston Manning contributed to the development of the idea of the Tripe-E Senate. As Manning remarked a few months after the Senate Reference was submitted:

Making the Senate democratically accountable through the direct or indirect election of Senators is the one reform that needs to be undertaken before Cana-

15 Supra note 10, p. 444 16 The ‘7/50’ procedure refers to the requirement that “amendments to the must be autho- rized by resolutions of the Senate, the House of Commons, and legislative assemblies of at least seven provinces whose population represents, in the aggregate, at least half of the current population of all the provinces.” See: Para. 34 of Reference re Senate Reform, [2014] 1 S.C.R. For a detailed explanation of ‘unanimous consent’, see: Para. 40 of Reference re Senate Reform. 17 It is relevant that in 1998, Calgary School member and former Albertan cabinet minister Ted Morton was nomi- nated as a one of Alberta’s ‘senators-in-waiting’. He was never appointed to the Senate.

!4 dians can fairly judge whether the institution can be made sufficiently worthy and useful to justify retention, rather than abolition.18

Harper’s efforts to stay true to his Reform roots by pursing Senate reform as a goal is clearly in line with the School’s objectives. However, the means by which this was attempted did not ad- here to the School’s preferred manner. Indeed, the School would be greatly disappointed by both the government's choice of method and the Senate Reference outcome. Rather than opening a debate on the prospect of Senate reform or abolition amongst elected representatives, Harper merely paid lip service to the idea. This is not to suggest that the outcome would have been dif- ferent had the issue been taken up in the House of Commons. Even the Calgary School was aware that, “[s]ome changes, such as adjusting the number of senators allocated to each prov- ince, can only be made by amending the Constitution.”19 But by deferring entirely to Court opin- ion on what is an inherently political issue the legislative and executive branches relinquished what, if any, influence they had over reforming the Senate. Before the Senate Reference, the boundaries of the authority conferred to Parliament by section 44 were unknown and, as such, could have been pushed further through legislative action. After the Senate Reference the bound- aries were determined and this option was removed.

Seductive Statutes Section 44 of the Constitution Act, 1982, unequivocally gives Parliament the ability to unilaterally amend the Constitution in relation to the Senate. However the section’s ambiguous language made the scope of this power was unclear prior to the Reference. As noted by Manning in a 1998 Globe and Mail op-ed, when Parliament fails to ensure that a constitutional statute’s language is crystal clear in its intent, “it effectively invites the courts to reinterpret or remake the law [… ] Unclear or poorly worded statutes transfer power by default from the Parliament to the courts.”20 Such is the case in section 44, where Parliament is precluded from altering the “fun- damental nature and role” of the Senate without specifically explaining what that would entail.21 Statutory interpretation is one of the means by which courts can pursue a desired policy outcome. The School holds that the courts have succumbed to this “seduction of power,” and in so doing, have seized the opportunity to become agents of policy reform.22 In referring to a study that interviewed judges between the years of 1991-1995, nearly all appellate judges admitted to having some lawmaking role, but only half of them were comfort- able with this new role.23 For the School, this discomfort is recognition of the ‘crisis of legitima-

18 Preston Manning, "Reform, Not Abolition, Is the East’s Interest,” (10 June 2013). Morton makes a similar claim, see: Ted Morton, “Abolish the Senate, Then Reform It” The , (4 July 2013) 19 Preston Manning, "Albertans Should Elect Senator on Standby, Says Manning: Albertans Made History by Giving Canada Its First Elected Senator: They Should Seize the Day and Do It Again, Argues Preston Manning, Leader of the Official Opposition,” The Calgary Herald (5 March 1998) 20 Preston Manning, “Parliament, Not Judges, Must Make the Laws of the Land,” The Globe and Mail, (16 June 1998) 21 Senate Reference, supra note 17, para. 19 22 Supra note 7, p. 22-3 23 Ibid., p. 17

!5 cy’ that is created when unelected members of the government behave as if they were. In con- trast, none of the SCC Justices interviewed felt they had taken on a similar role.24 Thus the ‘cri- sis’ is not simply in existence but also dismissed by those most directly involved in it. The Calgary School would hold up the Senate Reference as an example of illegitimate policymaking in two ways. Firstly, the Senate Reference witnessed an unelected branch of the government securing the continued unelected status of another government body. Secondly, this occurred contrary to the explicit goals of democratically elected representatives. Taken together, these two policymaking examples constitute a gross violation of the School’s vision of democrat- ic representation. b. Reference re Supreme Court Act Summary Unlike the Senate Reference, which addressed a hypothetical scenario, the Supreme Court Reference was requested after the actions under consideration had already been taken. The Supreme Court Reference posed two questions to the Court: 1) Can a person who was at any time, an advocate of at least 10 years standing at the Barreau du Québec be appointed to the Court as a member from Québec pursuant to sections 5 and 6 of the Supreme Court Act?; 2) Can Parliament enact legislation requiring that a person who was at any time, an advocate of at least 10 years standing at the Barreau du Québec, be eligible of appointment to the Court as a member from Québec? These two questions were posed following two federal government actions. First, the at- tempted appointment to the SCC of of Appeal judge, the Honourable Marc Nadon. Second, the subsequent enactment of legislation that amended section 5 and section 6 of Supreme Court Act. At issue was the relationship between section 5 and section 6 of the Supreme Court Act, which enumerate the criteria for general appointment to the Court and criteria for Court ap- pointments from Québec, respectively. The amendments in question are declaratory provisions in clauses 471 and 472 of the Economic Action Plan 2013 Act, No. 2 that clarify the temporality of the language used in section 5 and section 6 of the Supreme Court Act to include both current and former Québec advocates of at least ten years standing at the Barreau du Québec. With regard to Question 1—a question of statutory interpretation—the Court answered in the negative. With regards to Question 2—a question of the powers of Parliament to amend the Supreme Court Act—the Court answered in the affirmative for clause 471, and in the negative for clause 472.25 The upshot of the Supreme Court Reference is that section 6 of the Supreme Court Act is amended to the effect that appointing Justice Marc Nadon to the Supreme Court as a mem- ber from Québec is ultra vires as a unilateral Parliament action. In the future, such an appoint- ment would require amending the Constitution.

An Adverse Appointment Prior to examining the decision itself, it is necessary to consider the School’s response to the government resorting to the reference mechanism in the first place. Much like the Senate Ref- erence, the School would commend the government’s attempt to regain legislative control from the courts, particularly legislation regarding courts. Question 2 of the Senate Reference was the

24 Ibid. 25 Reference re Supreme Court Act, ss.5 and 6, [2014] 1 S.C.R. 433, at para. 7, 8, 11

!6 manifestation of one such an attempt by the government, and is consistent with the School’s preference of elected representatives over courts and their judges. For this reason, the Supreme Court Reference appears to be a shift away from what the School considered to be years of colli- sion between the federal government and the courts to empower the latter. One of the ways this collusion occurs is through strategic, politicized Court appoint- ments.26 Preston Manning, a longtime advocate of reforming the judiciary, has been particularly vocal on the issue of closed-door judicial appointments. In a 1998 op-ed in the Globe and Mail, Manning proposed the establishment of a judicial review committee which would hold hearings to discuss the qualifications and “judicial philosophy” of proposed SCC justice appointments. The establishment of the committee would be one of a series of steps to hold the judiciary more accountable.27 Unfortunately, Harper’s attempted appointment of Nadon gives the impression that he had all but forgotten his Reform (and School) roots, since it was clearly motivated by political considerations. Evidence of this is the number of government actions that are most effectively explained by politicking. There was no shortage of qualified candidates in Quebec from which Harper could have selected a justice,28 and yet the Prime Minister went to extreme lengths to se- cure his choice candidate's appointment. Furthermore, the government clearly anticipated the po- tential nomination challenge and responded accordingly. Prior to the announcement of Nadon’s selection, the government secured support for the legality of his appointment from a number of prominent members of the legal community. Former SCC Justice, the Honourable wrote a memorandum arguing that the Supreme Court Act permitted the appointment of Federal judges to the Court. This opinion was corroborated by both former SCC Justice, the Honourable Louis Charron, and constitutional law expert Peter Hogg.29 Despite these considerable efforts, Nadon’s appointment was challenged, and the government opted for a less conspicuous response. Fifteen days after Nadon’s swearing in, the government introduced the Economic Action Plan 2013 Act, No. 2, which contained amendments to the Supreme Court Act.30 Quietly slipping these amendments into the final clauses (471 and 472) of a finance bill is a clear sign of the ulterior political motives that the School would not let escape without accusations of executive-judiciary collusion.

Purposive or Plain According to the School, post-Charter courts at all levels have been applying the law in a manner that appears to have policy outcomes at the forefront of their considerations. This is demonstrated by the Court’s selective application of legislative intent and purposive interpreta- tions in judgments. Previously, the Privy Council announced that the method of interpreting the Constitution according to its original legislative intent was “inconsistent with the idea of an en-

26 Supra note 7, p. 27, 112, 127, 135 27 Supra note 22 28 The use of the word “qualified” here is in reference to a candidate’s literal satisfying of the minimum requirement criteria laid out in section 5 and section 6 criteria of the Supreme Court Act. 29 Michael Plaxton and Carissima Mathen, "Purposive Interpretation, Quebec, and the Supreme Court Act,” Consti- tutional Forum Constitutionnel 22.3 (2013), p. 15 30 Supreme Court Reference, supra note 25, at para. 9, 11

!7 during constitution.”31 This sentiment has been echoed by the current judiciary a number of times, and the judiciary has declared original intent a hindrance to the growth of a “living tree” Constitution.32 In Reference re Same-Sex Marriage the Court “unanimously rejected the idea that Parliament’s jurisdiction over marriage … was limited to marriages as understood at the time of Confederation.33 In view of this, one might expect the Court to never utilize original intent in its reasoning. However, Morton and Knopff argue that, “[f]ar from being a constraint on judicial discretion, original intent has itself become a matter of judicial discretion.” They explain that not only has original intent method of interpretation continued to be employed by the Supreme Court, but that it has been done so inconsistently with the intention of realizing a specific policy outcome.34 Instead of original legislative intent, the Supreme Court claims to have taken up the “pur- posive” method of interpretation. As the name suggests, the method looks for purpose by “delv- ing into the fundamental and underlying reason for a law or constitutional guarantee.”35 Morton and Knopff challenge this understanding of ‘purposive analysis’ by defining it as the “selective abstraction of highly general concepts from the tradition of liberal democracy in order to trans- form actual practice.” Purposive analysis, they contend, “enhances the ability of courts to act as agents of policy reform.”36 By explicitly relying on a purposive analysis, the Court provides it- self a blanket justification to interpret legislative statutes as it chooses. Instead of looking to the intention of legislative crafters to give a statue meaning, the interpretation of legislation is trans- ferred to the judiciary. This is problematic because the persuasive power of legislation derives from its connection to a sovereign people through the elected representatives that enacted it. From this it follows that in order to be considered legitimate, a statute’s purpose and meaning must flow from the representatives that enacted it. For this reason, the School would consider it potentially undemocratic to leave the interpretation of the Supreme Court Act to the very body it pertains to. The Supreme Court Reference ruling makes an argument for Court initiated policy re- form. The Court makes clear that it considers both a “plain meaning” (i.e. textual) and purposive interpretation of section 6.37 In its interpretation of the Supreme Court Act, the Court indeed uses a purposive method, while its interpretation of the Part V of the Constitution Act, 1982 refers to original intent. Part V of the Constitution Act, 1982 sets out how changes to the Court are to be made, including its composition. The Court notes that “[t]he textual origin of Part V was the ‘April Accord’ of 1981 … [and the] explanatory notes to this Accord confirm that the intention was to limit Parliament’s unilateral authority to reform the Supreme Court [emphasis added].”38 Determining the legislative intent behind Part V of the Constitution Act, 1982 was itself part of the process of determining that the Supreme Court Act (including section 5 and section 6), and

31 Supra note 10, p. 53 32 Reference re Same-Sex Marriage [2004] 3 SCR 698, para. 22 33 Supra note 10 p. 54 34 Supra note 7, p. 48-49 35 Supra note 10, p. 444 36 Supra note 7, p. 50 37 Supra note 25, para. 38, 59 38 Ibid., para. 92

!8 thus the Supreme Court, are part of the Constitution.39 The significance of these conclusions is powerful. As Ian Peach explains, “[i]n declaring for the first time that ss. 5 and 6 of the Supreme Court Act are part of Canada’s constitution, the Court secured some level of constitutional pro- tection for itself.”40 This conclusion bolsters the argument by the School that the Supreme Court has (and continues to) expand the scope of its influence through the enhancement of its status. The Court’s conclusion that its composition is constitutionally protected is a powerful act of self- security that is firmly in line with what the School would anticipate of the institution.

The Devil is in the Details A thorough analysis of the judgement requires considering the opinions of both the ma- jority and the sole dissenting judge, Justice Moldaver. The key contention was how the relation- ship between section 5 and 6 should be interpreted. The majority states that section 6 “reflects the historical compromise that led to the creation of the Supreme Court,” and this compromise in- forms their interpretation of the purpose of section 6.41 They conclude this purpose is ensuring “Québec's…social values are represented on the Court.”42 Related to this purpose is the objective of section 6, which the majority hold “is to protect Québec's civil law tradition and inspire Québec's confidence in this Court.”43 This conceptualization of ‘confidence’ is substantially more broad and abstract than the dissent’s. To ensure this confidence, section 6 must be understood as further limiting the criteria laid out in section 5. This understanding leads to the conclusion that a Supreme Court justice from Québec must be a current member of the Barreau du Québec. In contrast, the dissent perceived the “legislative objective underlying s. 6 is…and always has been, to ensure that a specified number of this Court’s judges are trained in civil law and represent Québec.”44 The dissent favours a literal interpretation of the text, and attempts to understand the relationship between the two sections in view of the context under which they were conceived. “Parliament,” Moldaver argues, “made a deliberate choice to include only objective criteria in ss. 5 and 6. Importing social values—140 years later—is unsupported by the text and history of the Act.”45 Given that a concern for the ‘social values’ of Québec is not explicitly or implicitly im- plied by the text or historical interpretation of section 6, there appears to be no reason to refer to it in the ruling.

Ruling Reaction Commentary on the decision generally supports the Court’s decision. In his article, ‘Ref- erence re Supreme Court Act, ss 5 and 6’, Ian Peach refers to the 1886 amendments to the sub- section of Supreme Court Act that would eventually become section 5. These amendments changed the temporality of the criteria to appoint Court justices so as to include former as well as

39 Supra note 25, para. 100 40 Ian Peach, "Reference re Supreme Court Act, ss 5 and 6 - Expanding the Constitution of Canada,” Constitutional Forum Constitutionnel 23.3 (2014), p. 4 41 Supra note 25, para. 48 42 Ibid., para. 18 43 Ibid., para.146 44 Ibid., para.145 45 Ibid.

!9 current advocates. The choice to not modify the language of the subsection that would become section 6 of the act, Peach argues, indicates an intention to exclude former advocates.46 Michael Plaxton and Carissima Mathen level a similar criticism against former Court Justice Binnie’s memorandum in their article on the purposive interpretation of the Supreme Court Act, taking aim at Justice Binnie’s argument from absurdity.47 Along with Peach, Plaxton and Mathen's ar- guments are consistent with the Court majority that the relationship between section 5 and sec- tion 6 is one in which the latter restricts the former. Ultimately, the strength of the legal argu- ments advanced by the majority and dissent relative to each other is not relevant to the purposes of this paper. Of greater importance to the School is Courts failure to agree upon a single method of statutory interpretation and its indication of the extrajudicial determinants influencing the de- cision, namely, challenging the policy of elected officials. c. Canada (Attorney General) v. Bedford Summary In Canada (Attorney General) v. Bedford (hereafter Bedford) the Court found three provi- sions of the Criminal Code that prevented public nuisances and the exploitation of prostitutes to be unconstitutional. The three provisions criminalized living in, owning, leasing, occupying or being inside a common bawdy-house; living off the avails of prostitution; and public communi- cation for the purpose of prostitution. The Court found that the provisions deprived the claimants of their Charter-protected section 7 right to security of person. While laws found that limits to Charter rights may be justified under section 1 of the Charter, the provisions in question were found to violate the claimants’ section 7 right by imposing dangerous conditions on prostitutes by preventing them from taking steps to protect themselves. Consequently, the laws were not in accordance with fundamental principles of justice and could not justifiably infringe on the the section 7 right. The Court determined that while Parliament does possess the legislative authority to draft the three provisions, the exercising of this authority could not come “at the cost of the health, safety and lives of prostitutes,” and granted Parliament one year to draft new legislation before the invalidity of the provisions would take effect.48

Desirable Dialectics The School asserts that political debate and the legislative process cobble together a more desirable synthesis, or, “messy compromise,” that judicial rulings simply cannot.49 By nature of their decision-making apparatus, courts are not capable of nuanced rulings and there will always be ‘winner’s and ‘losers’. When courts attempt to moderate between two sides of particularly contentious moral issues they identify approval with toleration, and ultimately achieve neither.50 By presenting toleration and hatred as thesis and antithesis, such rulings only push the two view- points further apart. Contrastingly, presenting toleration and hatred as “two sides of a single

46 Supra note 40, p. 2 47 Supra note 29, p. 21 48 Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, p. 1106, para. 4, 6, 16, 61-69 49 “Courts Don't Make Good Compromises,” Judicial Power and Canadian Democracy. Ed. Peter H. Russell and Paul Howe, (, Que.: McGill-Queen's UP, 2001) 89-90 50 Ibid.

!10 coin,” encourages individuals to tolerate what they hate.51 When these rulings are intrinsically political in nature (as is always the case in constitutional law), court engagement in making or breaking policy creates a particularly adversarial atmosphere. This atmosphere precludes any meaningful political discussion or cooperation amongst elected representatives. As Morton and Knopff suggest, “[r]epresentative institutions facilitate this fundamental democratic disposition; judicial power undermines it.”52 Correlated to this deficiency is the tendency of those advocating one side of a divisive social debate to frame it as a constitutional or rights-based issue. This has the consequence of creating animosity where it need not exist and, on occasion, overstating the issue's significance to an extent that it undermines the unity of a sovereign people.53 Despite legally permitting the act of exchanging sex, the laws surrounding prostitution prior to Bedford overwhelmingly represented the beliefs of those who advocate for prostitution’s prohibition. This departure from the status quo renders the striking down of three prostitution related provisions symbolically powerful. The clear ‘winners’ of Bedford are those who support sex work and its decriminalization, since the ruling by and large recognizes the infringed upon rights of sex work- ers in a manner that is consistent with the view of these ‘winners’. The adversarial quality of courtrooms is exaggerated in Charter cases. In the context of Charter litigation, the “judicial arena encourage[s] extremists to claim constitutional trumps rather than engage in government by discussion.54” This contention cuts both ways, as both the sex work advocates and the federal government played—to varying degrees of success—the ‘constitutional trump’ card.55 The Bedford media coverage overlooked to the three provision’s context and failed to capture the nuance of the case’s juridical reasoning. Instead, Bedford was presented as being emblematic of women’s rights, specifically, those of female sex workers, and the relative legitimacy of sex work. The inevitable result was the case’s absorption into the ongo- ing debate over the criminality or legitimacy of sex work, resulting in a symbolic victory for whichever side was successful regardless of the specific legal issues under consideration. The aura surrounding the media coverage was further sensationalized by the leather-donning, whip- wielding claimants’ threat to release the names of politicians who “supposedly avail themselves of the world’s oldest profession.”56 Certainly Terri-Jean Bedford, the “most famous dominatrix in Canada,”57 was herself successful in challenging traditional notions of sex workers and their livelihood. In doing so, Bedford sparked a public discussion on society’s morals and mores re- garding prostitution. While the emergence of this discourse would be to the School’s liking, they would bemoan that the discussion was not taken up in the House of Commons. The bill Parlia- ment responded to the ruling with (explored in greater depth below) was criticized for being fast-

51 Ibid., p. 90 52 Supra note 7, p. 149 53 Supra note 7, p.161-2 54 Supra note 7, p. 158-9 55 Stephanie Levitz, "‘Famous’ Dominatrix Kicked Out of Senate Hearing After Threatening to Expose Politicians Who Hire Prostitutes,” The National Post, (10 Sept. 2014) 56 Ibid. 57 Josh Wingrove, “ Prepare to Fast-track Prostitution Bill through Parliament,” The Globe and Mail, (21 Sept. 2014)

11! tracked, and thus deprived of the time required for thoughtful consideration and active debate.58 School member Preston Manning previously lamented politicians’ adversity to discussing and legislating morally contentious issues for fear of the “political trouble they cause.” With the three provisions struck down, the government was given an opportunity to open a discussion amongst parliamentarians about prostitution, and craft an entirely new set of laws. Unfortunately, the issue was swept under the rug in hopes of removing the spotlight on prostitution altogether. Manning and the rest of the School surely would have urged the government to “be not afraid,” and open a debate, just as they were surely disappointed by the government’s failure to do so.59

Politics Is As Politics Does Discussing controversial moral issues while legislating renders the resulting legislation vulnerable to the influence of politicking. The Calgary School accepts this reality and has argued that it is the very political motives underlying an issue that ought to inform revenant policy. As explained above in relation to statutory interpretation, the judiciary’s understanding of a policy should be second to Parliament’s. Indeed, the School shows a great deal of leniency for manifest- ly political and/or elected actors. Accordingly, the majority of the School’s criticism is directed towards the courts and those members of the so-called ‘Court Party’ that look to courts, rather than politicians, to advance their political agenda. The School adopts a variation of rational actor theory that embraces self-evident political bias. Implicit in their understanding of politics is that its actors will consistently seek to advance and enhance their own agenda. The courts, however, ought not to engage in the dirty business of politics, else they partake in “eroding the habits and temperament of representative democracy.”60 The School fears that the courts are recklessly straying into the political arena. This is evidenced by a reduced reliance on the previous ap- proach of responding to unconstitutional laws with negative remedies, and an increased use of judicially ordered affirmative remedies. The courts, the School claims, understand legislative in- action in a divisive policy area as an invitation to exercise a policy-determining prerogative. Rather than creating a vacuum to be filled by the courts, legislatures avoiding legislating on con- troversial issues are actually standing up for the status quo.61

Contested Constitutionality Much like the situation that arose following Québec v. Ford et al.,62 the Bedford ruling meant that the federal government’s preferred stance towards prostitution—maintaining the sta- tus quo—had suddenly become politically untenable. No longer able to claim to simply be up- holding a law created long before the Conservative Party’s rise to power under Harper, the Court created a legal obligation for the federal government to construct a prostitution law consistent with the Charter. Put in a position where it neither wanted to be perceived as compromising on

58 Preston Manning, “Be Not Afraid,” The Globe and Mail, (2 Nov. 2004) 59 Ibid. 60 Supra note 7, p. 149 61 Supra note 7, p. 19 62 Québec v. Ford et al. struck down the provisions of a provincial bill that banned English-language signs, (See: Morton and Knoff, p. 61.) Before the SCC ruling, the Québec government was allegedly prepared to soften the law. However, following the judgement the government did not want to appear to be appeasing Ottawa’s policy demands, thus delaying the eventual moderation of the law (See: Knopff’s “Courts Don’t Make Good Compromises,” p. 91).

!12 its principles nor as behaving unconstitutionally, the government risked the latter. The result of this new legal obligation is Bill C-36 (Protection of Communities and Exploited Persons Act). Bill C-36 is clear in its socially conservative objective to “reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible.”63 In a supposed attempt to address the concerns of those seeking prostitution’s decriminalization (i.e. sex workers’ safety), Bill C-36 targets those responsible for the demand of sexual services in hopes of better ensuring the security of those offering these ser- vices. Although Bill C-36 is “informed” by the ruling and ostensibly seeks to satisfy the constitu- tional requirements exposed in Bedford, its constitutionality came into question almost immedi- ately following its proclamation into force 6 December 2014.64 One of the more prominent voic- es indicating skepticism is Ontario Premier Kathleen Wynne. After expressing “grave concern that the so-called Protection of Communities and Exploited Persons Act will protect neither ‘ex- ploited persons’ nor ‘communities’,” she requested the advice of Ontario’s Attorney General in assessing Bill C-36’s constitutionality.65 Much like abortion pre-Morgantaler, prostitution pre- Bedford was “deemed wrong in theory but available in practice.”66 Perhaps the most notable as- pect of Bill C-36 is while purporting to address the constitutional shortcomings of the previous law, “Bill C-36 criminalizes, for the first time in Canadian criminal law, the purchase of sexual services.”67 Unlike Bedford, which was resolved entirely on section 7 grounds, Bill C-36 has the potential to create a Charter challenge that re-engages the Court with its 1990 Reference Re Prostitution decision, which was resolved entirely on section 1 and section 2(b) grounds.68 The School argues there is a tendency for judicially-created policy to favour the extreme views of a minority opinion. Perhaps familiar with this phenomenon, the Harper government defiantly cre- ated a law that could ultimately prove equally, if not more, unconstitutional than its predecessor.69 The significance of Premier Wynne’s intervention is its implicit rejection of a federal law that engages with the Charter. To understand the true significance of Premier Wynne’s request, the Attorney General of Ontario will first have to conclude her assessment. If it is deemed uncon- stitutional and Premier Wynne instructs her Attorney General (‘AG’) to not prosecute in accor- dance with the Bill C-36, she may set a precedent that, if followed by the other provinces, could collectively “nullify” the law.70 However without a reference or challenge based Supreme Court ruling addressing Bill C-36, any abstention from prosecutions by Ontario would be groundbreak- ing, and send a powerful message that the School would not welcome. The Premier’s deference

63 Minister of Justice and Attorney General of Canada, “Bill C-36, An Act to Amend the Criminal Code in Response to the Supreme Court of Canada Decision in Attorney General of Canada v. Bedford and to Make Consequential Amendments to Other Acts,” , (1 Dec. 2014) p. 3 64 Supra note 63, p. 3 65 John Ivison, "Provinces Could Kill New Prostitution Law by Refusing to Enforce It,” The National Post (8 Dec. 2014) 66 Supra note 7, p. 162 67 Supra note 63, p. 5 68 Supra note 49, para. 40, 47 69 Supra note 7, p. 163 70 Supra note 65

!13 to the Bedford ruling is precisely the type of ‘collusion’ between politicians and the courts that Morton and Knopff allude to in their book. While it is true that the School favours autonomous and vocal provinces to an oppressive and centralized power in Ottawa, they did not intend to provide a blanket justification for recalci- trant action. The School has its roots in the perceived political alienation experienced by the westernmost provinces in Canada, a reality from which it cannot be ideologically divorced. The so-called ‘Charter Revolution’ is motivated by inherently ‘progressive’ and liberal social values, the very kind that Wynne, the leader of the “political heartland of the Court Party,” could be per- ceived to represent.71 The School would perceive this activism to be a gross misapplication of their principle that provinces ought to challenge Ottawa’s legislative overreach. If collective action by the provinces with the intent to nullify Bill C-36 were taken, it is unlikely the School would be the only objectors. While it can be reasonably asserted that most Canadians recognize a number of problems with the former and current laws surrounding the criminality of sex work, it does not follow from this that a majority of Canadians wholesale re- ject these laws in general, nor the three provisions struck down in particular. In keeping with their understanding of inaction as a show of support for the status quo, the School would insist that democracy ought to guide policy, not the courts. Even if a free vote in the House of Com- mons or provincial legislatures were held over the legal status of sex work, it is no guarantee that the results would be honoured by the courts. Such was the case in Ontario surrounding discrimi- nation against same-sex couples following a free vote in the legislature, when a Superior Court judge dismissed the result's validity on the basis that it was motivated by “perceived gains and losses in the then pending election.”72 According to the School, this observation by the judge meant that the representatives were paying attention to voters’ view, which is a praiseworthy jus- tification of government policy. Thus, rejecting the results on such grounds would appear mani- festly undemocratic.

Unaccounted Accountability According to the School, cooperating with the courts and Court Party is a significant way through which governments attempt to avoid being held accountable. The Charter Revolution and the Court Party presents a palpable disgust with the unprecedented intimacy between two groups that have historically made strange bedfellows: politicians and the courts. The School’s concern stems from a traditional understanding that state powers ought to be divided throughout the government branches, rather than combined. From this it follows that any active cooperation between the two branches as a means to a specific policy end is a disturbing affront on democra- cy that serves to widen the existing accountability disjuncture between politicians and a sov- ereign people. Courts ought to be beholden to the law and politicians to their constituents’ be- liefs. The School’s demands from courts an objectivity that is never defined and appears to be little more than complete acquiescence to Parliamentary whims. Accordingly, courts have specif- ic functions in Canadian society from which they should not depart: complementing—and never countering—parliamentary function, and acting as a check against perceived executive govern- ment overreach. Morton and Knopff make numerous allegations of collusion between both elect- ed and unelected government officials with the courts and Court Party members. This collabora-

71 Supra note 7, p. 139 72 Ibid., p. 119

!14 tion occurs under circumstances where, instead of appealing the rulings of lower courts that struck down laws, politicians who dislike a law use the courts to bypass repealing or changing it in a legislature.73 Indeed, Morton and Knopff argue that “[a]t the provincial level, Ontario has the most public record of crown lawyers cooperating with Court Party groups by refusing to defend public policy.”74 Perhaps Premier Wynne’s preemptive challenge to Bill C-36 should not come as such a surprise after all.

III. Conclusion Despite being a product of events that occurred in Canada some thirty years ago, this pa- per has demonstrated that the ideologies embraced by the Calgary School of political science have retained their much of their salience. Criticisms similar to the School’s were made in re- sponse to each of the rulings considered here. By dissecting the School’s perspective and internal logic we can better glean what ideas and attitudes lay at the heart of these criticisms. The School’s theoretical commitments to libertarianism and populist conceptions of democracy rep- resent the interests of those dominant members of Canadian society. The existing political repre- sentative institutions in Canada are effective means through which those with the greatest con- centration of power and capital can maintain their positionality. The School’s dismissal of the rights-based claims made by marginalized and disempowered groups is resistance to their in- creased access to previously closed channels for exercising power and political influence. Efforts by courts and judges to advocate on behalf of communities un/under-represented in formal polit- ical institutions challenge the existing distribution of power. Accordingly, the School scorns at- tempts to rupture the power structures that sustain and reproduce this status quo. The Calgary School’s conservativism is an example of theorizing that advances the inter- ests of those groups and individuals represented and invested in the Canadian political system in its current form. This is especially true of the system as it existed prior to Charter and types of rights-based claims it enabled. The School asserts that the Charter revolution has been undemoc- ratic, anti-majoritarian, and corrosive to representative democracies. Using this discourse, the School promotes its vision of “national unity” in favour of extreme views of minority activists.75 This mode of thinking attempts to silence voices that speak out against oppressive government practices and the policies within which they are located and justified. In order to be identified in their present and future formulations, perspectives like the Calgary School’s must recognized and analyzed in their past manifestations. By meaningfully engaging with the School’s perspective and recent Supreme Court decisions, this analysis undertaken here hopes to create an opening through which interventions like those by the School may be understood and responded going forward. Such understanding is a necessary first step to introducing more equitable and just al- ternatives.

73 Supra note 7, p. 119 74 Ibid., p. 118 75 Supra note 7, p. 149

!15 Works Cited

Cases/Court Files

Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101

R. v. Morgantaler, [1988] 1 S.C.R. 30

Reference re Same-Sex Marriage [2004] 3 SCR 698

Reference re Senate Reform, [2014] 1 S.C.R. 704 [hereinafter “Morgentaler”]

Reference re Supreme Court Act, ss.5 and 6, [2014] 1 S.C.R. 433

SCC File No. 34788. “Factum of the Intervener, The Evangelical Fellowship of Canada”: The Supreme Court Of Canada. 3 Dec. 2012. Web. 11 Dec. 2014. .

Books

Knopff, Rainer. "Courts Don't Make Good Compromises." Judicial Power and Canadian Democracy. Ed. Peter H. Russell and Paul Howe. Montreal, Que.: Published for the Institute for Research on Public Policy by McGill-Queen's UP, 2001. 87-93. Print.

Morton, F. L., and Rainer Knopff. The Charter Revolution and the Court Party. Peterborough, Ont.: Broadview, 2000. Print.

Sharpe, Robert J., and Kent Roach. The Charter of Rights and Freedoms. 5th ed. Toronto: Irwin Law, 2013. Print.

Journal Articles

Peach, Ian. "Reference re Supreme Court Act, ss 5 and 6 - Expanding the Constitution of Canada." Constitutional Forum Constitutionnel 23.3 (2014): 1-6. HeinOnline. Web. 30 Nov. 2014.

Plaxton, Michael, and Carissima Matthen. "Purposive Interpretation, Quebec, and the Supreme Court Act." Constitutional Forum Constitutionnel 22.3 (2013): 15-26. HeinOnline. Web. 30 Nov. 2014.

Government Publications

!16 Canada. Department of Justice. Minister of Justice and Attorney General of Canada. “Bill C-36, An Act to Amend the Criminal Code in Response to the Supreme Court of Canada Decision in Attorney General of Canada v. Bedford and to Make Consequential Amendments to Other Acts.” Government of Canada, 1 Dec. 2014. Web. 10 Dec. 2014.

Websites

"Alberta Senate Nominee Elections." International and Intergovernmental Relations: Govern- ment of Alberta, n.d. Web. 13 Dec. 2014. .

"Alberta to Continue to Prosecute Certain Prostitution-related Charges." Announcements: Government of Alberta, 4 Feb. 2014. Web. 11 Dec. 2014. .

Flanagan, Tom. "Advice to Progressives from the Calgary School." Editorial. Literary Review of Canada Dec. 2010: n. pag. Literary Review of Canada. Web. 12 Dec. 2014. .

“Prostitution-Related Cases Will Continue in B.C.” Criminal Justice Division Media Statement: Government of British Columbia, 17 Feb. 2014. Web. 11 Dec. 2014. .

Rev. of The Charter Revolution and the Court Party. Canadian Justice Review Board: Book Review. Web. 29 Sept. 2014.

Newspaper Articles

Ivison, John. "Provinces Could Kill New Prostitution Law by Refusing to Enforce It." The National Post. Postmedia Network Inc, 8 Dec. 2014. Web. 11 Dec. 2014.

Levitz, Stephanie. "‘Famous’ Dominatrix Kicked out of Senate Hearing after Threatening to Expose Politicians Who Hire Prostitutes." The National Post. Postmedia Network Inc, 10 Sept. 2014. Web. 12 Dec. 2014.

MacKinnon, Bobbi-Jean. "Ontario Joins N.B. in Move Away from Prostitution Prosecutions." CBC News. CBC, 6 Feb. 2014. Web. 11 Dec. 2014.

Manning, Preston. "Albertans Should Elect Senator on Standby, Says Manning: Albertans Made History by Giving Canada Its First Elected Senator: They Should Seize the Day and Do It Again, Argues Preston Manning, Leader of the Official Opposition." The Calgary Herald [Calgary] 5 Mar. 1998, Comment sec.: A15. ProQuest Central. Web. 30 Nov. 2014.

!17 Manning, Preston. "Be Not Afraid." The Globe and Mail. Phillip Crawley, 2 Nov. 2004. Web. 30 Nov. 2014

Manning, Preston. "Parliament, Not Judges, Must Make the Laws of the Land." The Globe and Mail [Ottawa] 16 June 1998: A21. ProQuest Historical Newspapers. Web. 30 Nov. 2014.

Manning, Preston. "Reform, Not Abolition, Is the East’s Interest." The Globe and Mail. Phillip Crawley, 10 June 2013. Web. 30 Nov. 2014.

Morton, Ted. "Abolish the Senate, Then Reform It." The National Post. Postmedia Network Inc, 4 July 2013. Web. 13 Dec. 2014.

Morton, Ted. "Ten Years to Achieve Reform, or It's Lights Out on the Red Chamber." The National Post. Postmedia Network Inc., 28 Jan. 2014. Web. 13 Dec. 2014.

Wingrove, Josh. "Tories Prepare to Fast-track Prostitution Bill through Parliament." The Globe and Mail. Phillip Crawley, 21 Sept. 2014. Web. 11 Dec. 2014.

Other Sources

Lawrence, Andrew. "Legal Rights Sections 7-14." Canada (AG) v Bedford: Canada's Prostitution Laws Found Unconstitutional. University of Alberta Centre for Constitutional Studies, 25 June 2014. Web. 1 Dec. 2014. .

Snyder, Lorraine. "Federalism." Reference Re Senate Reform (2014): The Supreme Court Clarifies the Senate Reform Process. University of Alberta Centre for Constitutional Studies, 20 June 2014. Web. 1 Dec. 2014. .

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