[on the Supreme Court of Canada being ‘the most progressive in the world’] I would say so, yeah, and I must say I’m very proud of that.
– Richard Wagner, Chief Justice of the Supreme Court of Canada (June 2018)
In an article for LawNow a few years ago, I was staggered to see how quickly the Supreme Court of Canada had changed its own test for sniffer dog evidence in interpreting the Charter of Rights “search and seizure” provision (section 8). Four new judges had joined the Court, and quietly the Court significantly changed the law in the next case only five years after its first pronouncement. There was no acknowledgement by three of the judges from the earlier case that they had even changed their position, much less any reasons for doing so.
In 1901 the Supreme Court of Canada decided it was not bound by its previous decisions. Obviously, the Court occasionally will need a do-over but the Court’s modern near indifference to its own precedent is a concern. We need stability, certainty and predictability, especially in Charter cases where human rights are enduring and not subject to frequent change. The Court cannot give and take rights away according to whim and changing ideologies of new judges. Respect for both the Charter and the Court will decline and litigation will rise steeply if rights depend more on the politics of judges than Charter text. Precedent is a foundational pillar of our legal system, indispensable to the Rule of Law. It must be venerated.
Our top Court is theoretically accountable to no one. The judges decide the scope of their work, their workload and their pace. They interpret the very legislation under which they are appointed. They can overrule an appointment by the prime minister to their Court. They have a hand in all aspects of our lives.
The legislatures may have wiggle room to override some decisions under s. 33 of the Charter but, in practice, this has become an illusion. The judges of the Supreme Court of Canada effectively possess complete discretion and final say about the Charter without the burden of real checks and balances. For example, they can set out the principles of mootness (when a case should not be heard) and yet freely hear and decide their choice of moot cases.
They enjoy personal immunity for their work and tenure to age 75. They let their decisions speak for themselves, which decisions are not always easy to penetrate even for lawyers. For example, in Thomson Newspapers v Canada, the five judges on the case gave five different opinions on the applicable “basic tenet” of the legal system, which was “fundamental justice”.
Virtually everyone in the legal system – lawyers, litigants, lower court judges, journalists, parties, law clerks, academics, staff, politicians – desire to please this Court. They hesitate to challenge or cross it. Indeed, the legal profession may punish lawyers for being too critical of the Court.
Canada has a Supreme Court where as few as four or five individuals unilaterally fashion and preside over enormous social change.Although our Constitution Act, 1867 preamble calls for us to have “a Constitution similar in Principle to that of the United Kingdom”, our top court invalidates far, far more democratically-enacted legislation than its British counterpart, or any other court in the world. The Supreme Court of Canada is not invested in finality like the UK Supreme Court, where judgments are the law of the land until and unless varied by Parliament.
Our Supreme Court shows rather meagre deference to lower court judges and to each other on the same Court. It is not surprising, then, that it fails to show deference to elected legislators. To other judges in the western world, the degree to which our Supreme Court invalidates or re-writes legislation is astounding.
When the Court so frequently re-interprets and re-declares Charter rights, did the Court get it wrong the first time(s) or is it essentially and arbitrarily legislating over time? In both cases, we should be uneasy with judicial activism – when such a small number of unaccountable judges on the Court wield so much governance power over our society.
Judging is about respect for the democratic process, sound objective principles and the Rule of Law, which includes valuing judicial precedent. The judges’ personal political ideologies should not overrule precedent. In other words, who the judge is should not ultimately determine what the law is.
This article provides some examples of the Supreme Court of Canada disregarding its own precedent. We see how this contributes to the impression that decision-making is driven by judicial ideology.
The Court Reverses Itself
Shortly after the Charter came into effect, the Court declared in Re British Columbia Motor Vehicle Act that it can disagree with and overturn the very substance of a law or regulation. Judges could enter contested public debates and replace legislation with their own judgment. This led to as few as four or five judges imposing on the whole country the most compelling social policy without vote or debate.
In a LawNow article two years ago, we cited five examples of the Supreme Court doing a complete about-turn on its own rulings. Across all legal subjects, the Court has overruled itself more than five hundred times, and in several thousand instances when one includes the Court’s shifts from previous doctrine. Ten percent of the reversals have come in the last decade.
In 1901 the Supreme Court of Canada decided it was not bound by its previous decisions.In the Charter realm alone, in addition to sniffer dog evidence, the Court has reversed itself in collective bargaining and freedom of association, in physician-assisted suicide (which was first not a Charter right but was later found to be so), and in workplace strikes (which were first not a Charter right but then they were). The framework for criminal trials within a reasonable time was also massively overhauled.
Prostitution-related crimes used to be Charter-compliant but later the same crimes were tossed out for violating the Charter. Christian teachers from Trinity Western University were accredited but later Christian lawyers from the same institution were not.
Do equality rights (s. 15) in the Charter apply to government discretion delegated by law? First, a unanimous Supreme Court of Canada declared ‘no’ in two companion decisions. Only six months later, the same Court shredded these precedents. Comprised of the same judges, the Court reversed itself and held that any action taken under the authority of law is subject to equality protection. The Court did not even refer to its two recent cases that came to the opposite conclusion much less explain the about-face. Years later, it went even further and ruled that the mere grant of discretion to government violated the Charter.
Brooks overturned Bliss (a Bill of Rights case that pre-dated the Charter by three years) on equal compensation for those who missed work due to pregnancy. The Court was unsympathetic to same sex rights in Egan in 1995 where it upheld the traditional definition of “spouse” in the existing Old Age Security Act. The Court wrote:
Marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions. But its ultimate raison d’être transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual.” (emphasis added).
Four years later, the Court was virtually unanimous in concluding that the same definition of ‘spouse’ in other legislation was unconstitutional.
Much of this social revolution occurs by stealth. In the 2018 Vice Media decision, five judges purported to tweak two 1991 precedents, again without robust explanation. Arguably, the tweaks were substantial. There was the pretence of following precedent while quietly amending it. The remaining four judges, while concurring in the result, would have abruptly (and without it having being argued in the courts below) carved out a new distinctive “right for the press” even though the Charter does not do that explicitly. It is a matter of time before a majority of the Court unearths and proclaims that new right.
Since the Charter was enacted in 1982, we have seen the rise and the further rise of the judicial role in policy-making.The Court has denounced the “frozen concepts” approach to constitutional interpretation of social policy but readily upholds to frozen concepts in trade, institutions and commerce. Precedent is “not a straitjacket that condemns the law to stasis,” Chief Justice McLachlin wrote in Carter. Only social policies must be freed from their historical straitjackets.
While the Supreme Court of Canada decrees consistency and predictability as “principles of fundamental justice”, the Court has been inconsistent and unpredictable with respect to its own Charter interpretations. In every case, the Court consistently and predictably moved to the ideological left – to become more socially progressive – a development about which the current Chief Justice is “very proud”.
Charter Rights versus Charter Values
The Charter contains written rights that the Court must interpret and apply. This is critical work but the Court also has birthed and nurtured the philosophy of “Charter values” to add to constitutional interpretation. These values include “respect for the inherent dignity of the human person, commitment to social justice and equality …” – starting points which reflect the changing moral and social fabric of the country.
Such unfettered authority and dubious sourcing of these apocryphal “Charter values” reminds one of the Australian film classic, The Castle. There the lawyer pleading his case channeled: “It’s the vibe of it. It’s the Constitution, it’s justice, it’s law, it’s the vibe. And … no, that’s it! It’s the vibe. I rest my case.”
Recommendations and Conclusion
An aphorism reckons that one really does not want to know “how laws and sausages are made”. The Court reverses itself for a variety of reasons, including changing social norms, turnover of judges, slim majorities in the original precedents, undesired impacts, an emerging sense that the precedent was wrong, activism to effect change, and new arguments, evidence and issues that arise after the precedent was made.
Nevertheless, stare decisis is the quasi-constitutional principle that the law “stands decided” when declared by the highest court(s) in the country. The authority of the Supreme Court of Canada, indeed the orderly functioning of our legal system, depends on courts following their decisions.
The Supreme Court of Canada, by the instrument of the Charter, has become the dominant lawmaker over complex social issues in the last four decades in Canada. We are governed in these matters by a tiny clutch of progressive judges who are practically unaccountable to any broad electorate.
To other judges in the western world, the degree to which our Supreme Court invalidates or re-writes legislation is astounding.Other countries engage national debates, referenda and elections on big social issues. Canada has a Supreme Court where as few as four or five individuals unilaterally fashion and preside over enormous social change. This work is not technical “black letter law” but policy – putting into effect their own worldviews to a degree seen nowhere else on the planet. Do judges have the capacity or the moral legitimacy to make the kinds of policy decisions they are making?
Since the Charter was enacted in 1982, we have seen the rise and the further rise of the judicial role in policy-making. Judges can choose restraint or activism. Rather than following the law or deferring to the legislature in policy-making, activist judges ordain the law to conform to their own progressive ideology. Our judges will occasionally profess “deference to the legislature”, but they have not embedded this as constitutional principle and there is rather little in practice. The reality of the Court “changing its mind” is often due to judges rotating and bringing with them new independence and ideology and less fondness for – and commitment to – the views of their predecessors.
The Supreme Court of Canada could take steps to ensure it does not become a runaway court. When the Court changes its mind about what a Charter right entails, it should expressly state this. Under Charter section 52(1), it should declare that its previous pronouncement was “inconsistent with the provisions of the Constitution … and of no force or effect”. The Court declares this to legislatures when it finds they acted unconstitutionally. It should equally and honourably declare its own unconstitutional miscalculations.
When the Court seeks to amend its precedent in any way, it should only be able to do so with an enriched two-thirds majority (six of the nine judges on the Court). If it seeks to reverse one of its previous rulings, it should only do so unanimously. This is consistent with all other constitutional change, which obliges an enriched majority in support of the change.
Minimal deference to the democratic legislative process must be elevated to constitutional status. The Supreme Court should not re-write or strike legislation without this two-thirds majority or unanimity on the Court, respectively.
None of these changes require formal constitutional amendment. They all represent easy retrenchment from powers the Court has voluntarily chosen to arrogate to itself to date.