Tag Archives: Canada

Bradley Miller: Some Problems in Constitutional Architecture

B-Miller-webAs my house approaches its centenary, it becomes harder to deny that some architectural designs age better than others.   No doubt it all looked great in 1930, but some of the roof lines have proved better than others at keeping the melting snow away from the foundation. Not to mention that some of the house’s later additions – though addressing real needs – employed questionable craftsmanship and don’t really cohere with the rest of the design.

Similarly, some parts of the Canadian constitution are holding up better than others.

Grégoire Webber and I have each argued that the Charter of Rights and Freedoms – a 1982 addition to the Canadian constitution – suffers from an overarching design flaw: its limitation clause. Like all limitations clauses (whether generalized, as in the Canadian, New Zealand, and South African examples, or contained in individual rights provisions such as in the European Convention on Human Rights) it has provided an environment congenial to several interpretive pathologies: chief among them a proportionality doctrine and a two-stage adjudicative structure that first asks whether a person’s right has been “violated” before inviting government to marshal reasons to justify the “violation”.

A feature of this analytical division is that the first instance the focus is to be entirely on the rights holder and no one else. (Set aside, for present purposes, whether it is actually possible to assess whether a person’s right to equality has been “violated” without considering the situation of others.) Thereafter, the onus shifts on the government to establish that the violation (better, “limitation”) of the right is justified. Thus we have the absurdity that legislation can be conceptualized as being at once fully justified and a violation of someone’s rights. Webber and I have both drawn criticism for thinking that this is a problem, and Webber has recently provided a characteristically careful and elegant response in “On the Loss of Rights”, a chapter in Proportionality and the Rule of Law, Rights, Justification, Reasoning(CUP 2014), a new collection of essays edited by Grant Huscroft, Bradley Miller, and Grégoire Webber.

I won’t summarize Webber’s arguments here, but will instead illustrate one way in which the problem that we insist is real is manifesting itself in Canadian constitutional law.

In practice, the two-stage division between limitation and justification has proven to be highly unstable. Some sections of the Charter, like the right to freedom of expression, have simply become speed bumps on the way to s.1’s justification phase. Almost no analytical work is done at the first stage. Other sections, like s.7’s guarantee that any deprivation of life, liberty, and security of the person accord with principles of fundamental justice, have gone the other way, with all of the work taking place at the first stage and s.1 becoming functionally irrelevant.

Given the criticisms that Webber and I have brought against the two-stage process, you might think I would welcome its collapse as a step in the right direction. But like my back deck, this collapse has a curious asymmetry about it, one that further deforms rights adjudication.

Consider the history of s.7 adjudication. Straight out of the gate, the Supreme Court of Canada announced that it would not ask itself what constitutional settlement the drafters or ratifiers of s.7 meant to enact through the words ‘principles of fundamental justice’. That settlement, had the Court been interested, was accessible enough: the principles of fundamental justice were entirely a matter of procedural fairness. Having rejected that proposition, the Court set a course for deep water. The idea that s.7 was intended to authorize judges to strike down laws on the basis of their non-conformity to some substantive theory of justice has some obvious drawbacks. Which theory? Who decides? Sensibly enough, the Court searched for some limiting principles, and rejected the ‘harm principle’ and other candidates as too controversial and insufficiently legal. The principles of fundamental justice had to be found within the fundamental tenets of the legal system, it held, as opposed to free-standing, controversial political philosophies.

So where to ‘find’ these legal, fundamental principles of justice without having to delve into contested political moralities? The Court’s strategy has been to adopt, incrementally (and quietly), principles adapted from the proportionality test used to give effect to the limitation clause. (Leave to one side my argument in ‘Proportionality’s Blind Spot’ in Huscroft, Miller, and Webber (eds) that the proportionality analysis that the court uncrated from the European Court of Human Rights came pre-loaded with the commitments of Rawlsian liberalism.) So the requirement that legislative means be rationally connected to its ends yields the principle that law must not be arbitrary. The requirement that legislation must be minimally impairing of rights yields the principle that law not be overbroad. And the requirement of proportionality stricto sensu yields the principle that law not be grossly disproportionate to its ends.

So now we have, in effect, the principles of proportionality doing double-time as the principles of fundamental justice. I address some of the drawbacks of the use of proportionality analysis in limitations clauses in Huscroft, Miller, and Webber (eds). These criticisms apply equally to their deployment in the context of s.7. But what is of more immediate concern is the redundancy of s.1. After all, could it make any sense for a court, having determined that a statute limits a person’s liberty in a way that is grossly disproportionate to its ends, then proceeding to ask whether that restriction on rights is nevertheless proportionate? So it is not at all surprising that where the Court has concluded that a s.7 right has been limited, it has never found that limit to be justified under s.1.

Recently addressing this issue in Canada (AG) v. Bedford(2013), the Court defended the two-stage analysis, in terms that fail conceptually:

[125]   Section 7 and s. 1 ask different questions. The question under s. 7 is whether the law’s negative effect on life, liberty, or security of the person is in accordance with the principles of fundamental justice. With respect to the principles of arbitrariness, overbreadth, and gross disproportionality, the specific questions are whether the law’s purpose, taken at face value, is connected to its effects and whether the negative effect is grossly disproportionate to the law’s purpose.  Under s. 1, the question is different — whether the negative impact of a law on the rights of individuals is proportionate to the pressing and substantial goal of the law in furthering the public interest.

What the Court is suggesting is that there is a difference between a law’s purpose (in s.7 analysis) and its public interest goal (in s.1). If this isn’t nonsense, then the distinction that the Court must have in mind – and it only hints at it – is quite troubling: that s. 1 justification, unlike the more principled s.7 analysis, allows for ‘quantitative’ (read ‘utilitarian’) justifications for the ‘greater public good’. Webber and I have each argued at length as to how such a reading of a limitation clause rests on a poor conception of the common good, one which is contrary to the dominant stream of the Court’s s.1 adjudication as exemplified in Newfoundland (Treasury Board) v. N.A.P.E. (2004).

In any event, the telling fact is that 30 years out, the returns of cases where the Court has found a s.7 limitation to have been justified under s.1 are still a null set.

Why isn’t this effective collapse of the two-stage analytical structure happy news to Webber and me? Perhaps it would be better to call it a partial collapse. After all, the Court remains committed to the proposition that it is in fact engaged in a two-stage enquiry. What is entailed by this commitment is that in what is deemed to be the first stage – but is in effect the only stage – the Court remains focussed entirely on the rights-holder. There is to be no consideration, at this stage, to the needs of other persons living in community with the rights-holder. Justice and justification are to be considered from one side only. All other considerations are to be postponed to the second stage that never comes.

To be sure, the Court throws out three paragraphs in Bedford under the requisite heading of s.1, in which it repeats some of its s.7 analysis, but there is no real work being done. Bedford demonstrates how the Charter’s architecture has resulted in s.7 and s.1 doctrines that make it profoundly difficult for the AG Canada to find any analytical space in which to articulate the reasoning behind much criminal legislation. Unless the s.7 doctrine is reformed, the persons and interests that protective legislation is meant to serve will not be present – or at best present dimly – in the minds of judges.

Bradley W Miller is an Associate Professor at the Faculty of Law, the University of Western Ontario.

(Suggested citation: B. Miller, ‘Some Problems in Constitutional Architecture’ U.K. Const. L. Blog (30th April 2014) (available at: http://ukconstitutionallaw.org)).

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Robert Leckey: Constitutionalizing Canada’s Supreme Court

Professor Robert Leckey CROSS-POSTED FROM THE I.CONNect BLOG.

A dispute over the legality of a politically questionable judicial appointment has resulted in what pundits call a stinging defeat for Canada’s prime minister and a bold assertion by the Supreme Court of Canada of its independence and constitutional status.

Recently, in Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, the Court advised that Conservative Prime Minister Stephen Harper’s appointment of the Honourable Mr. Justice Marc Nadon to the Supreme Court of Canada was void. He had been sworn in five months earlier. On a six-judge majority’s reading of the Supreme Court Act, Justice Nadon was unqualified to fill one of three spots reserved for jurists trained in the law of Quebec. Quebec is the federation’s sole civil-law jurisdiction and the only province with a French-speaking majority.

In addition, the Court opined that the Parliament of Canada’s ex post amendments to the Supreme Court Act purporting to clarify that Justice Nadon was eligible were unconstitutional. They amounted to a constitutional amendment requiring the unanimous consent of Parliament and all provinces.

While many had criticized the political wisdom of the prime minister’s selection of a semi-retired judge on nobody’s shortlist, the constitutional issues turn on the interpretation of the Supreme Court Act and of the country’s constitutional amending formula.

General qualifications for appointment appear in section 5 of the Supreme Court Act. It refers to current and former judges and to a person who “is or has been” a lawyer of at least ten years standing at the bar of a province. The controversy bore on section 6’s specification that three justices be drawn “from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” Justice Nadon came instead from the Federal Court of Appeal. Although formerly a member of the Quebec Bar for more than ten years, he was no longer a member. Using a process set out in the Supreme Court Act, the federal executive referred questions to the Court for its opinion.

The validity of the initial selection of Justice Nadon turned on the relationship between the Act’s general and specific provisions and the significance, if any, of the different wording in sections 5 and 6 (“is or has been,” “among”). The majority of the Court concluded that Quebec appointments needed to be current judges of the named Quebec courts or current members of the Quebec Bar. Those judges stated the primary basis for their decision to be the Act’s plain meaning and the differences in wording. A single judge dissented.

It is striking for an apex court—even when the government asks it to weigh in—to reject an appointment to its ranks on the basis that the government had misinterpreted the relevant statute. But the Court went further. It grounded a formalistic exercise of statutory interpretation turning on the niceties of “is or has been” versus “among” in the historic compromise guaranteeing one-third of the Court’s judges to Quebec. For the majority justices, their interpretation of section 6 advanced the “dual purpose of ensuring that the Court has civil law expertise and that Quebec’s legal traditions and social values are represented on the Court,” maintaining that province’s “confidence” in the Court (para. 18).

Exaggerating the opinion’s political salience would be difficult. At a moment when Quebec is governed by a separatist party, and less than three weeks before Quebecers vote in a provincial general election, the Supreme Court of Canada explicitly declared itself to be an institution that guarantees a voice for Quebec’s “social values” in federal institutions. Commentators read the entire judgment as a declaration of the Court’s independence from a prime minister and executive perceived as disdainful towards democratic institutions and tone-deaf regarding Quebec. By implication, the majority’s reasoning made the choice of Justice Nadon not only formally invalid, but also substantively disrespectful of Quebec. One can speculate on the depth of the majority’s commitment to this substantive point by asking whether it would have upheld the appointment had the federal government named Justice Nadon to an eligible Quebec court the day before appointing him to the Supreme Court.

The opinion’s most enduring contribution, though, arises from its answer to the question concerning Parliament’s attempt to amend the Supreme Court Act. Parliament had created the Court by statute in 1875. The Court did not replace the Judicial Committee of the Privy Council as the federation’s tribunal of last resort for nearly three-quarters of a century. In its final legislative exercise for Canada, the Parliament of the United Kingdom brought into life the Constitution Act, 1982. The latter lists instruments that the Constitution of Canada includes, but does not mention the Supreme Court Act. Nevertheless, the new constitutional amending formula refers twice to the Supreme Court. The Court appears among the “matters” amendable by Parliament with the consent of a majority of provinces. Its “composition” figures among the “matters” amendable only on unanimous consent of Parliament and the provinces.

In opining that Parliament’s attempt to modify the Supreme Court Act to clear the way for Justice Nadon was unconstitutional, the majority stated that reference to the Court’s “composition” in the amending formula constitutionalized sections 5 and 6 of the Act. By implication, it also constitutionalized the Court’s continuing existence, “since abolition would altogether remove the Court’s composition” (para. 91). The majority added that the more general reference to the Court constitutionalized its “essential features … understood in light of the role that it had come to play in the Canadian constitutional structure by the time of patriation” (para. 94). In effect, the amending formula drastically reduced the scope for change to the Supreme Court by ordinary federal statute.

Moreover, the Court confirmed that the sources of the Constitution of Canada now include not only the previously known hodge-podge of royal proclamations, imperial statutes and orders in council, federal statutes, and unwritten principles. Those sources also include parts of another federal statute, the Supreme Court Act—some provisions identified by number as well as whatever might in future be determined to embody the Court’s “essential features.” Indeed, by referring to the “role” that the Court has come to play, the majority judges hint that the Court’s constitutionalized features may not track directly to specifiable legislative provisions, instead arising from practice. Presumably the same applies to other institutions that the amending formula constitutionalized, such as the Senate of Canada, on which the Court will pronounce in due course.

Whatever the political fallout for the prime minister, the Court’s advisory opinion merits careful attention by those who study sources of constitutional law, amending formulae, and how institutions’ constitutional status may change over time.

Robert Leckey is an Associate Professor of Law and William Dawson Scholar at the Faculty of Law, McGill University. He is scheduled to speak in the United Kingdom and South Africa about his forthcoming book Bills of Rights in the Common Law on the following dates in 2014: King’s College London – 12 May; Oxford University – 13 May; Unisa, Pretoria – 15 May; Cape Town – 19 May; University College London – 17 June; London School of Economics – 29 October. Further details for these talks may be obtained from the venues hosting the talks.

(Suggested Citation: Robert Leckey, Constitutionalizing Canada’s Supreme Court, Int’l J. Const. L. Blog, Mar. 25, 2014, available at: http://www.iconnectblog.com/2014/03/constitutionalizing-canadas-supreme-court  or R. Leckey, ‘Constitutionalizing Canada’s Supreme Court’ U.K. Const. L. Blog (1 April 2014) (available at http://ukconstitutionallaw.org/)).


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Robert Leckey: Suspended Declarations of Invalidity and and the Rule of Law

Professor Robert LeckeyIn December 2013, the Supreme Court of Canada declared the constitutional invalidity of three major provisions in the domestic criminal law on sex work. Specifically, in Canada (Attorney General) v Bedford, the Court struck down prohibitions against keeping a bawdy-house, living on the avails of prostitution, and communicating for the purposes of prostitution. The judges accepted argument by current and former prostitutes that the challenged provisions deprived them of their security of the person in a way incompatible with the principles of fundamental justice, contrary to s 7 of the Canadian Charter of Rights and Freedoms. For the Court, the challenged provisions constrained sex workers’ ability to take steps to protect themselves. Sex work itself being legal, those prohibitions exacerbated its risks in a way that marked them as grossly disproportionate or overbroad.

Although the decision’s substance offers much for scholars of fundamental liberties to chew on, my present concern is the order issued and its implications for constitutional review. Whilst s 4 of the Human Rights Act 1998 merely empowers judges to declare that primary legislation infringes rights, without affecting its legal force, s 52(1) of Canada’s Constitution Act, 1982 affirms the Constitution of Canada’s ‘primacy’. It stipulates that any law inconsistent with the Constitution, of which the Charter is part, ‘is, to the extent of the inconsistency, of no force or effect’. On prevailing readings, this provision empowers the Court to strike down legislation it determines to be unconstitutional. Thus, although taxonomists of Bills of Rights debate the precise implications of the Charter’s distinctive elements, such as its derogation or ‘notwithstanding’ clause, the Canadian form of constitutional review appears to be relatively strong.

In Bedford the Supreme Court declared the challenged provisions to be invalid, but suspended its declaration of invalidity for one year. The Court expects Parliament to avoid an eventual regulatory void by enacting replacement legislation before that year elapses. Indeed, the Government of Canada has already launched online consultations.

This delayed remedy is doubly significant. Most concretely, it means that despite their ostensible legal victory, sex workers will continue to suffer risks to their safety seen by the Court as severe enough to make the provisions incompatible with fundamental rights. Early experience indicates that local authorities are enforcing the provisions to varying extents. Indeed, this state of legal uncertainty arguably undermines the rule of law. Still, strictly speaking, the provisions remain in force.

In addition, the suspended remedy in Bedford represents the culmination of judges’ reshaping of their role under the Charter. The initial position in Canadian law was that declaring legislation to be inconsistent with the Constitution made it immediately invalid. The first major exception arose in 1985, when the Supreme Court of Canada concluded that a century’s lawmaking by a provincial legislature was invalid for failure to follow a constitutional manner-and-form requirement to enact laws in French as well as English. The Court invoked the rule of law – its imperative to avoid a legal vacuum – in order to deem the legislation valid for the time required to translate and reenact the provincial statute book.

A few years later, in its leading judgment on constitutional remedies, the Court contemplated that, exceptionally, it might suspend a declaration of invalidity made under the Charter. A delay would be warranted where striking down legislation with nothing in its place would threaten the rule of law or pose a danger to the public.

The Court has never disavowed that discussion, but it has subsequently changed its approach. The judges have developed the habit of suspending declarations of invalidity in Charter cases. In doing so, they commonly refer not to threats to the rule of law or to the public, but to the appropriateness of making space for a legislative response. For some commentators, this approach fosters a democratically healthy ‘dialogue’ between judiciary and legislature.

Speaking comparatively, the Canadian judges have fashioned for themselves a remedial discretion that the Constitution of South Africa bestows on its judges. Section 172(1)(b)(ii) of the South African constitution contemplates that the judges may make ‘an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect’.

The Supreme Court of Canada’s brief remedial discussion in Bedford merits scrutiny. The Court takes it as ‘clear that moving abruptly from a situation where prostitution is regulated to a situation where it is entirely unregulated would be a matter of great concern to many Canadians’. In contrast, ‘leaving the prohibitions … in place in their present form leaves prostitutes at increased risk for the time of the suspension – risks which violate their constitutional right to security of the person’. The judges hold that the ‘choice between suspending the declaration of invalidity and allowing it to take immediate effect is not an easy one’. They do little, however, to show themselves grappling with the difficulty. Without any explicit effort to weigh the opposing considerations or to compare their foreseeable costs and benefits, the Court concludes that the unconstitutional law should remain temporarily in force.

In effect, the Supreme Court of Canada has turned 180 degrees from its position twenty years ago. Danger used to be a reason for, exceptionally, suspending a declaration of invalidity. Now the Court suspends a declaration – in deference to the ‘great concern’ of ‘many Canadians’ and to Parliament’s prerogative to tackle a policy issue – in the face of evidence that the unconstitutional laws daily imperil the vulnerable class of sex workers.

More broadly, then, Bedford crystallizes the Court’s shift from using orders under the Charter to cease the effect of laws violating rights to using them to identify legislative priorities. To be sure, there are non-negligible political effects to the Court’s declaration that the prostitution laws harm their intended beneficiaries and to its 12-month countdown for Parliament. Still, that the sex workers should exit the courthouse as ‘victors’ while continuing to bear the brunt of laws shown to violate their fundamental rights suggests that the judges have used the remedial discretion they ascribed to themselves so as to weaken constitutional review in Canada.

The Canadian judges’ apparent underuse of their constitutional powers invites further study. Might this phenomenon countermand democratic theorists’ disappointment about how rarely Canadian parliamentarians have used their legislative override? It may also be a counterexample to the hunch – think of American judges’ recognition of the right to privacy in the penumbra of the First Amendment – that when judges reach beyond the constitutional text, they do so to expand rather than to restrain their powers.

For me, the crucial methodological takeaway – whatever your politics on rights, courts, and legislatures – is how partial a story about the character of judicial review emerges from a Bill of Rights’ text. To understand the political impact of a Bill of Rights, we need to scrutinize the procedural dimensions of its application by judges – matters too often dismissed as lawyerly ‘technicalities’. I contribute to this endeavour in my forthcoming book, Bills of Rights in the Common Law.

Robert Leckey is an Associate Professor of Law and William Dawson Scholar at the Faculty of Law, McGill University. He is scheduled to speak in the United Kingdom and South Africa about his forthcoming book on the following dates:  King’s College London – 12 May;  Oxford University – 13 May; Unisa, Pretoria – 15 May; Cape Town – 19 May; University College London – 17 June; London School of Economics – 29 October.  Further details for these talks may be obtained from the venues hosting the talks.

(Suggested citation: R. Leckey, ‘ Suspended Declarations of Invalidity and the Rule of Law’ U.K. Const. L. Blog (12th March 2014) (available at http://ukconstitutionallaw.org/)).

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Richard Ekins: Defying the law: a reply to Daly

RichardEkins_profileI’m grateful to Paul Daly for bringing to my attention the Irish High Court’s Fleming decision and the Ménard Report.  However, I think he is wrong to censure the former (at least, as harshly as he does) and to laud the latter.

Should the High Court have granted the application to order the Director of Public Prosecutions (DPP) to promulgate an offence-specific policy, with a view to providing ‘foreseeability and accessibility’?  That is, should the High Court have followed Purdy, in which the House of Lords made just such an order (in relation to a different DPP of course)?  Daly implies as much, saying that the High Court had to ‘twist away from Purdy’ and saying elsewhere that ‘the High Court wriggled out of Purdy in unconvincing fashion’.  But the decisions of the House of Lords do not bind the Irish High Court and Purdy is not at all persuasive.  No need then to wriggle out, for the decision should instead just be flatly rejected.

The House of Lords ordered the DPP to promulgate an offence-specific policy in order to guide Ms Purdy in determining whether her husband would be likely to face prosecution if he were to assist her in committing suicide, the relevant act of assistance being the act of helping her to travel to Switzerland in order to there be assisted in committing suicide.  The rationale for the Lords’ decision was that the ban on assisted suicide constituted an interference with Ms Purdy’s private life, per Art 8(1), which interference had to be in accordance with law if it was to satisfy the demands of Art 8(2).  Their Lordships held that the DPP’s code, which framed the exercise of the discretion to prosecute, formed part of the law in question.  As law-abiding persons need guidance as to the legal consequences of their actions, so Art 8(2) required the DPP issue an offence-specific policy.

However, there was never any lack of clarity in the law governing assisted suicide.  Section 2(1) of the Suicide Act 1961 unequivocally proscribed the acts in question (assisting a person to travel to a jurisdiction to commit suicide).  Contra Jeremy Waldron the proviso in s 2(4) that no prosecution was to be brought without the DPP’s consent did not entail that the ban on assisting suicide was unclear or in need of specification.  Rather, this provision, like the 130 or so other equivalent provisions found elsewhere in the law, authorised the DPP to exercise a supervisory control over which prosecutions were to be brought.  The House of Lords ordered the DPP to promulgate an offence-specific policy to help a would-be law breaker in calculating the risk of prosecution.  Thus, Purdy privileges a very odd conception of the law-abiding person.  In truth, a law-abiding person is one who does his or her duty and does not commit offences; the odds of detection and prosecution are irrelevant to him or her.  That is, citizens should do what the law says they should, rather than estimate their chances.

The legal duty was always entirely clear: do not assist suicide.  In granting the application, the court sought to help people decide whether to flout their legal duty, which aims are contrary to the rule of law.  John Finnis makes out this critique of the Purdy decision with illuminating care, first in his ‘The Lords’ Eerie Swansong: A Note on R (Purdy) v Director of Public Prosecutions’, and then in more detail (replying in part to Waldron and considering the DPP’s interim and final policy promulgated in the wake of the Purdy decision) in a paper entitled, ‘Invoking the Principle of Legality against the Rule of Law’, published in my edited collection Modern Challenges to the Rule of Law (LexisNexis, 2011) and, more accessibly, in [2010] New Zealand Law Review 601.

Prosecutorial guidelines are not a specification of the criminal law, providing that, whatever the substantive criminal law may say, some acts are not truly criminal at all.  They are guidelines for prosecutors, not for law-abiding citizens, for whom the criminal law itself is the relevant guide.  It would be unsound to move to stop a prosecution on the grounds that the prosecutor had not followed the guidelines in question; the guidelines are not a de facto defence on which to block a criminal charge.  The DPP does not flout the rule of law if he or she changes the guidelines with immediate effect, such that they apply to cases where the alleged offending predates the guidelines.  Indeed, that a person relies on guidelines to flout the criminal law is itself a reason to prosecute, for the act would involve brazen defiance of – by virtue of calculating disdain for – the criminal law.  And for this reason, if ordered to promulgate offence-specific guidelines the DPP should aim to reserve the option to prosecute any offence, such that the guidelines do not encourage law-breaking.

What of the Ménard Report?  As Daly outlines it, the report’s recommendation seems to me to defy federal criminal law and to flout the constitutionally mandated separation of powers.  I make no prediction as to whether the stratagem would succeed, but take Daly’s own scepticism about its prospects to be telling.  The stratagem should fail because it is flatly unconstitutional and contrary to the rule of law.  It remains somewhat unclear then why Daly lauds the report’s approach, in contrast to the Irish High Court’s approach (refusing to order the DPP to undermine the criminal law).  The reason seems to be that it is ‘the only means to give effect to the desire of the population to permit assisted suicide.’  However, the people of Quebec are not entitled to permit assisted suicide.  The constitution makes the Parliament of the people of Canada as a whole responsible for decision on point.

The merits of assisting suicide aside, which I think irrelevant to the present discussion, there seems much to commend the Irish High Court’s refusal to be party to an effort to undermine the rule of law, and little to be said for the Ménard Report’s apparent attempt to flout the constitution of Canada and federal criminal law.

Richard Ekins is a Fellow of St John’s College, Oxford.

Suggested citation: R. Ekins ‘Defying the law: a reply to Daly’ UK Const. L. Blog (23rd May 2013) (available at http://ukconstitutionallaw.org)


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Paul Daly: Death, Democracy and Delegation


Decisions on when to end one’s life are unquestionably of the greatest intimacy. Yet there is a clear public interest in ensuring that these decisions are carefully regulated to ensure the safety of the vulnerable. Accordingly, quite what legal framework should govern end-of-life-decisions — if, indeed, there should be any framework at all — is a contested question.

Recent developments in Ireland and the Canadian province of Québec offer a new angle on the question. An interesting contrast can be perceived between the decision taken by the Irish High Court in Fleming v. Ireland, [2013] IEHC 2, and the “Ménard report” commissioned by Québec’s Parliament. In Fleming, the High Court dismissed as undemocratic guidelines which would structure the discretionary power to prosecute. Whereas the Ménard report concluded that prosecutorial guidelines would be the only way to give effect to the Québec Parliament’s desire to legalize assisted suicide within defined parameters.

In Fleming, the High Court, and subsequently the Supreme Court ([2013] IESC 19), upheld the provisions of the Criminal Law (Suicide) Act, 1993 against constitutional challenge. One aspect of the case — which was not appealed to the Supreme Court — was whether the Director of Public Prosecutions could be obliged to issue guidelines explaining the factors to be taken into consideration in deciding whether or not to prosecute the offence of assisted suicide.

As I have explained elsewhere, the High Court did not follow the decision of the House of Lords in Purdy v. Director of Public Prosecutions, 2009 UKHL 45. There, the House of Lords addressed a materially identical prohibition on assisted suicide which left discretion to prosecute in the hands of the Director of Public Prosecutions. The failure to set out in published guidelines the considerations which would be weighed in the balance in deciding whether or not to prosecute was held to violate the legality principle of the European Convention on Human Rights: the necessary foreseeability and accessibility were lacking. Significant contortions were required for the High Court to twist away from Purdy and towards its ultimate (quite odd) conclusion that the Director of Public Prosecutions has no power at all to issue guidelines (a fact which doubtless came as a shock to the Director of Public Prosecutions, who issued a set of general guidelines several years ago).

More remarkable still was another conclusion: that it would be undemocratic for the Director of Public Prosecutions to issue guidelines. This conclusion rested on Article 15.2 of the Irish Constitution. As judicially interpreted, this provision has functioned as a “non-delegation” clause. Sweeping grants of discretion to administrative decision-makers are unconstitutional. Principles and policies must be specified in the governing legislation. In the High Court’s view, requiring the Director of Public Prosecutions to issue guidelines would violate the democratic principle of Article 15.2:

It seems clear to this Court that the effect of any direction requiring the Director to issue guidelines of the kind now sought by the plaintiff would infringe these basic constitutional principles. While the plaintiff asserts that she is seeking no more than a statement of factors which would influence the decision of the Director whether or not to prosecute, the reality of course is that, for her own very good reasons, she wishes to know that the Director will not in fact prosecute in her case. Whatever the stated objective of seeking guidelines may be, there can be no doubt but that the intended effect of obtaining such relief would be to permit an assisted suicide without fear of prosecution. No amount of forensic legerdemain can alter that fact. For, absent such effect, one is driven to ask what practical purpose or value lies in seeking such guidance? There is, in truth, none. It follows therefore that in this context ‘effect’ is every bit as important as ‘object’…Once guidelines may be characterised as having the effect of outruling a prosecution, they must be seen as altering the existing law and must therefore fall foul of Article 15.2 of the Constitution…

This conclusion is implausible. The High Court was presented with two options: maintain the status quo, or order guidelines. The status quo involves essentially unreviewable decisions taken behind closed doors in the office of the Director of Public Prosecutions. As a rule, reasons are not given (although a pilot project has been mooted).

Guidelines would involve (possibly) public consultation and (certainly) release to the public of the factors considered relevant in deciding to prosecute. The publication of guidelines could foment public debate. If public opinion were to pitch decisively one way or another, the Irish Parliament could always intervene to more carefully delineate the Director of Public Prosecutions’ discretion. It is very difficult to see how the status quo is more democratic than a world with guidelines. And this is quite apart from the benefits to affected individuals of increased foreseeability and accessibility.

Indeed, the High Court recognized that the Director of Public Prosecutions was bound to take some factors into account in exercising prosecutorial discretion. It suggested that the U.K. guidelines should be taken into account, as well as factors laid out by a Canadian judge. But it did not explain how taking into consideration guidelines developed in another jurisdiction and factors identified by a foreign judge would be more democratic than ordering the Director of Public Prosecutions to issue guidelines.

Of course, this was probably just about as much as the plaintiff could hope for, in the absence of an order striking down the Act altogether. Not appealing was probably prudent, even though the High Court’s reasoning was questionable.

The contrast with the Ménard report is stark. Québec operates in a different legal environment. In Canada, criminal law is the domain of the federal government and s. 241 of the Criminal Code prohibits assisted suicide. This prohibition was (narrowly) upheld by the Supreme Court of Canada in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. More recently, it was struck down by a British Columbia trial court (Carter v. Canada (Attorney General), 2012 BCSC 886), a decision which is under appeal and is likely to wend its way to the Supreme Court of Canada. This process could take some time, however, and the ultimate outcome is uncertain.

In the meantime, Québec is anxious to find some means of giving effect to a policy of permitting assisted suicide, within carefully defined parameters. The process that culminated in the Ménard report began in 2009. A special commission was struck and set about sounding public opinion. Its recommendations were adopted unanimously by the Québec Parliament in 2012. Subsequently, the three authors of the Ménard report were tasked with providing a legal framework in which the recommendations could be implemented.

The path taken in the Ménard report is interesting, though unlikely to survive constitutional challenge.

In the division of powers set out in Canada’s Constitution Act, 1867, criminal law falls in the domain of the federal government, but health care is indisputably a provincial concern. Accordingly, Québec could certainly pass legislation regulating end-of-life care. But in doing so, it could not impede federal criminal prohibitions. Legislation legalizing, or seeking to legalize, assisted suicide would be plainly unconstitutional.

The ingenious suggestion in the Ménard report is to capitalize on the provincial power over “administration of justice”. Although criminal offences in Canada are set out in the federal Criminal Code, provincial attorneys general are responsible for prosecution. Prosecutorial discretion is, moreover, reviewable only in very limited circumstances.

Accordingly, the Ménard report suggests (albeit without being clear on the precise means of implementation) that Québec could introduce guidelines cabining prosecutorial discretion. These would not be binding and thus would not displace the federal prohibition on assisted suicide. They would seek to regulate provincial discretion, not to undermine federal law. Something similar to the U.K. guidelines is envisaged.

The contrast with the Irish position is stark. Where the Irish High Court rejected guidelines as undemocratic, in Québec, guidelines are proposed as the only means to give effect to the desire of the population to permit assisted suicide.

That is not necessarily to say that the approach taken in the Ménard report will be successful. The precise means of implementation are left unclear by the authors, but would have to be carefully calibrated. The slightest misstep would take Québec into the exclusively federal territory of criminal law. Moreover, given the generous Canadian approach to standing, the courts are unlikely to be impressed by an argument based on the unreviewability of prosecutorial discretion. A general challenge to the existence of such guidelines, on the basis that the provincial attorney general simply had no authority to issue them, would probably receive a sympathetic hearing.

Any Québec attempt to liberalize the rules on assisted suicide is likely to run into significant constitutional difficulties. In Canada, federal law is paramount over provincial law.  Provincial laws (or actions) which frustrate the purpose of federal laws are inoperative. And of course, the very purpose of the provisions — binding or not — envisaged by the Ménard report is to frustrate the operation of the federal prohibition on assisted suicide.

Whatever its ultimate fate, the Ménard report’s orientation is preferable to that of the Irish High Court. Legislators cannot foresee every eventuality. A legitimate response is to vest discretion in administrative actors. Once this has been done, however, decision-making with a public aspect is preferable (from a democratic point of view) to decision-making behind closed doors. Moreover, published guidelines can provoke popular debate and legislative reaction, thereby playing a democracy-enhancing role. Even if the Ménard report proves legally flawed, it has highlighted the democratic potential of administrative guidelines.

Paul Daly is a member of the Faculty of Law at the Université de Montréal. He can be reached at paul.daly@umontreal.ca. He blogs at administrativelawmatters.blogspot.com.

Suggested citation: P. Daly, ‘Death, Democracy and Delegation’  U.K. Const. L. Blog (14th May 2013) (available at http://ukconstitutionallaw.org).

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Paul Kildea: Reforming Australia’s federation: The People Lead the Way

As another fractious year in politics comes to an end, Griffith University has released the results of its third biennial survey on how Australians view their federal system. It reveals a public that is losing faith in both the current structure of the federation and the ability of different tiers of government to work together to solve national problems. But the poll also reveals a public appetite for reform to which political leaders should pay close attention.

The survey finds that 38 per cent of Australians believe that the current three-tiered federal system – made up of federal (national), state and local government – does not work well. This is up from 30 per cent of respondents when the poll was first taken in 2008.

State governments are seen to be the worst performers. While their rating has improved slightly since 2010, it is apparent that the recent move to conservative rule in Victoria, New South Wales and Queensland has not altered many people’s dim view of state government. Indeed, a mere 14 per cent of Queensland residents view state government as the most effective level – just months after the Liberal National Party’s landslide victory in the March election.

Local government is now rated as the most effective level. This is in large part due to a massive collapse of faith in the national level of government, which until this year had been rated as the most effective level by a handsome margin. Four years ago it was viewed as the best performer by half of Australians, but fewer than a third of people (29 per cent) now hold this view. The deep unpopularity of both federal leaders – Prime Minister Julia Gillard and Opposition Leader Tony Abbott – and the fierce partisanship of the hung parliament (elected in August 2010) have no doubt played a part here.

But if many Australians are unhappy with individual levels of government, they also feel that the federal system is suffering due to a lack of cooperation between the federal, state and local tiers. Australians overwhelmingly see intergovernmental collaboration as a desirable feature of a federal system – more than 90 per cent have said as much in successive surveys. But fewer and fewer people think that the system actually delivers on this – only a third feel that it does collaboration well, down eight points since 2008. Perhaps more worryingly, two-thirds of Australians feel that the federal and state governments are not working well together. On this measure, Australians are less satisfied with their federal system than their counterparts in the United States, Canada and Germany.

This last finding is concerning because intergovernmental cooperation is arguably more important in the Australian federal system than in these other federations. This is because the division of legislative and financial powers, while favouring the central government, gives rise to a high degree of overlap between the federal and state governments. As a result, some of Australia’s most pressing problems – whether in health, education, water management, disability or Indigenous wellbeing – cannot be addressed in the absence of effective collaboration across different tiers of government.

The last year has seen a number of public spats between Canberra and the states that have no doubt shaped people’s views about the amount of cooperation taking place in the federation. Disagreements about the collection of state mining royalties, the distribution of consumption tax (GST) revenue and the funding of major disability and education initiatives have all escalated over the last several months. These conflicts have been sharpened by partisan divisions – while government at the national level is held by Labor, Australia’s four largest states are now governed by conservative Coalition parties.

But it would be a mistake to dismiss the public’s dissatisfaction with federal-state collaboration as a superficial response to passing quarrels. The better view is that public opinion is responding to very real problems in Australia’s federal system that prevent effective cooperation occurring – and that the time has come to address them.

For some years now there has been a steady stream of reports and commentary pointing to the need to strengthen intergovernmental institutions so that they better foster federal-state collaboration. In particular, there is an emerging consensus on the need to reform the Council of Australian Governments (COAG). Despite being the hub of intergovernmental relations in Australia for over 20 years, COAG still has no formal legal status and remains in the grip of the Prime Minister – meaning that is vulnerable to being ignored when it does not suit the federal government.

Building institutional structures through which different levels of government can cooperate is not only an Australian problem. Similar challenges arise in Canada where its First Ministers’ Conference also lacks a permanent institutional base. Reform ideas floated in both Canada and Australia range from forging political agreements on improved processes, through to constitutional recognition of key intergovernmental bodies. The South African constitution goes some way towards the latter by recognising several principles of ‘cooperative government and intergovernmental relations’. The need for constitutional change along similar lines has been discussed in Australia, particularly in light of a view expressed in the High Court that ‘cooperative federalism’ is no more than a ‘political slogan’ with no part to play in constitutional interpretation.

Giving COAG formal legal status, with improved processes, would go a long way to improving federal-state cooperation. But for many members of the public, the Australian federation needs to undergo more fundamental reform. Indeed, a full two-thirds of Australians would like to see the federal system being structurally different in 20 years’ time, with the strongest preference being for a stronger system of regional government.

With their stomach for major federal reform, Australians are way out of ahead of their political representatives. In recent years governments have shown themselves reluctant to consider minor changes to cooperative arrangements, let alone the much larger task of structural reform.

It is time for the political elites to start taking seriously the views of Australians on the shape of their federation. As the lead researcher on the federalism survey, AJ Brown, wrote last week, national and state leaders need ‘to show more tangible commitment to charting the future of the federal system’. And with a federal election looming next year, there is no better time for them to start.

Dr Paul Kildea is a Lecturer in the Faculty of Law at the University of New South Wales, and Referendums Project Director at the Gilbert + Tobin Centre of Public Law

Suggested citation: P. Kildea, ‘Reforming Australia’s federation: The People Lead the Way’ UK Const. L. Blog (29th November 2012) (available at http://ukconstitutionallaw.org).


Filed under Australia, Comparative law

Paul Daly: Clinging to Gun Data

On the afternoon of December 6, 1989, Marc Lépine entered the École Polytechnique in Montréal. Over the course of about 30 minutes, Lépine prowled the corridors, classrooms and cafeteria, rifle in hand. He shot and killed fourteen women before turning his gun on himself. Fourteen others were wounded.

That horrific event still has significant political salience in the province of Québec. It forms something of a backdrop against which to consider a dispute between Québec and Canada’s federal government. The dispute centres on whether information about rifles and other long-guns should be stored in a database which can be accessed by the authorities for law-enforcement purposes.

Nobody seriously questions the requirement that gun owners be licensed. Nor does anybody seriously question the registration – or outright prohibition – of handguns and automatic weapons. The current dispute is about one thing only: the registration of long guns.

Registration of these weapons by the federal authorities began only in the late 1990s, under the Firearms Act. That legislation established an interlocking scheme: both federal and provincial officials contributed to the scheme’s operation. An agreement between the federal and provincial governments regulated how data was collected, used and accessed.

Last year, Stephen Harper’s Conservatives were returned to the federal Parliament with a majority. One of the planks of their platform was the abolition of the long-gun registry. Its critics decried the registry as ineffective in combating crime and effective only at exposing law-abiding citizens to criminal sanctions. Defenders of the registry countered that it is used by police officers on a daily basis. And in Québec the lingering psychic effects of the Polytechnique massacre mean that stringent registration requirements have significant symbolic value.

Earlier this year, Bill C-19 was introduced in the federal Parliament. It received Royal Assent in April. The legislation, entitled An Act to amend the Criminal Code and the Firearms Act, prospectively abolished the requirement to register long guns. More dramatically, section 29 provided for the destruction “as soon as feasible” of all the data that had been collected during the operation of the long-gun registry.

The Québec government sprang into action, attacking the constitutionality of the federal legislation, with the ultimate goal of establishing its own long-gun registry. Shortly after passage of the legislation, it successfully invoked the inherent jurisdiction of the Québec superior court and obtained an injunction preventing the destruction of the data. After a subsequent hearing on the merits, section 29 was held to be unconstitutional, but only as it applied to data from Québec: Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 1734.

Meanwhile, in Ontario, a charitable organization unsuccessfully sought a more radical injunction compelling the federal government to maintain the long-gun registry: Barbra Schlifer Commemorative Clinic v. HMQ Canada, 2012 ONSC 5271.

My focus here will be on the latter two decisions. Of those, the Québec decision is of greater importance: the federal government has already appealed to the Québec Court of Appeal. Review by the Supreme Court of Canada is a strong possibility.

One final preliminary remark is necessary. Canada is a federation. Jurisdiction is regulated by the provisions of the Constitution Act, 1867, especially sections 91 and 92. Section 91 sets out the powers of the federal government: trade and commerce, creation of criminal laws, and banking are some representative examples. Those of the provinces are set out in section 92: for example, taxation within the province, solemnization of marriage and – broadest of all – property and civil rights in the province.

Guns fall comfortably within the very broad understanding of property and civil rights in the province. From where, then, did the federal government get the authority to establish the long-gun registry in the first place? In 2000, the Supreme Court of Canada upheld the constitutionality of the Firearms Act on the basis that it was a legitimate exercise of the federal government’s power to pass criminal laws. Regulation of firearms was said to have a “double aspect”. Accordingly, it was open to either the federal or provincial authorities to enact legislation, under the criminal law and property and civil rights jurisdictions respectively.

For the Québec and Ontario courts, the questions raised by the data-destroying legislation were novel, revolving around the federal government’s power to decriminalize some types of behavior (i.e., not registering one’s weapon) and to undo unilaterally a registry which had been created, in reliance on the double aspect doctrine, in cooperation with the provinces.

In Québec (Procureur général) c. Canada (Procureur général), Québec claimed that the federal government had no jurisdiction to destroy the long-gun registry data. The federal government’s response was straightforward: just as it could invoke the criminal law power to establish the long-gun registry in the first place, so too could it invoke the criminal law power to repeal the existing law.

Unfortunately for the federal government, Conservative politicians had crowed rather too loudly about the destruction of the long-gun registry. Blanchard J. seized on remarks which suggested that the whole purpose of Bill C-19 was to prevent the provinces from creating their own long-gun registries. Given that gun registration clearly falls within provincial jurisdiction over property and civil rights, these remarks revealed a naked attempt on the part of the federal government to interfere in the governance of the provinces. This rendered the purported exercise of the criminal law power ultra vires the federal government.

Moreover, Blanchard J. held that the unilateral destruction of the long-gun registry data violated the principle of cooperative federalism. This principle aims at harmonious coexistence between the federal and provincial governments, and indeed underpins the double aspect doctrine that allowed the federal government to create the long-gun registry in the first place. For one level of government to deliberately stand in the way of another to prevent it from legislating within its area of competence was to violate the principle of cooperative federalism.

Finally, Blanchard J. considered the question of ownership of the long-gun registry data. Striking down the provision authorizing the destruction of the existing data would have represented merely a symbolic victory for Québec. To establish its own long-gun registry, it needed in addition an order compelling the federal government to transfer the data to it. Blanchard J. concluded that the agreement between the federal government and the provinces did not identify any “owner” of the data. However, he held that because of its contribution to the collection of the data, Québec had as much of an interest in the data as any other entity. Accordingly, Blanchard J. ordered the federal government to transmit them to Québec.

Meanwhile, in Ontario, the Barbra Schlifer Commemorative Clinic, a body set up in memory of an Osgoode Hall law student murdered in the 1980s, did not fare so well in Barbra Schlifer Commemorative Clinic v. HMQ Canada.

With the other provinces shying away from asserting claims to ownership of the long-gun registry data, the Clinic’s claim was inevitably different in nature. It was also weaker.

The Clinic relied on the Canadian Charter of Rights and Freedoms: section 7, which protects life, liberty and security of the person, and section 15, which guarantees equal treatment. The Clinic argued that the abolition of the long-gun registry imperiled bodily integrity, and in a way that would disproportionately impact on women, because long-guns are instruments of domestic violence.

Just as Québec had initially done, the Clinic sought an injunction to prevent the federal government from destroying the data. This fell to be analyzed under the familiar American Cyanamid principles – serious case, irreparable harm and balance of convenience – which apply universally in Canada. The federal government countered with a motion to strike the Clinic’s claim.

The federal government successfully characterized the logical conclusion of the Clinic’s argument as the imposition of a positive obligation to maintain a long-gun registry. This was an entirely novel argument. If the Clinic were to demonstrate that prospective abolition of the long-gun registry breached sections 7 and 15 of the Charter, the federal government would have to legislate for the registration of long guns. At such an early stage of the litigation, Brown J. was reluctant to strike the Clinic’s claim entirely. Nevertheless, the federal government’s characterization of the Clinic’s claim influenced Brown J.’s decision not to grant an injunction.

After a thorough analysis of the Clinic’s arguments and the statistical evidence adduced in support, Brown J. held that the Clinic had raised a serious question to be tried, but only just: the statistical evidence it could muster was weak. Domestic homicides have been, on Brown J.’s reading of the statistics, on a long decline to which the long-gun registry seemed not to have contributed. The weakness of the statistical evidence also tended to suggest that no irreparable harm would be suffered were the injunction to be denied.

Brown J. also noted that, if the Clinic succeeded on the merits in imposing a positive obligation to maintain a long-gun registry, the result would be a financial burden on the taxpayer rather than the infliction of irreparable harm.

Finally, for the purposes of the balance of convenience analysis, the Clinic could not demonstrate any public interest that would be furthered by granting the injunction. This conclusion may seem odd, but Brown J. noted that legislation is presumed to promote the public interest for the purposes of the balance of convenience analysis. Critically, unlike Québec, the Clinic could not demonstrate any ownership interest in the data, and it did not itself have any authority to create or recreate a long-gun registry.

One nuance that can be perceived in Blanchard J.’s judgment does not appear to have influenced his Ontario counterpart, Brown J. There is arguably a distinction between imposing a prospective positive obligation to criminalize acts or omissions and imposing a restriction on destroying existing data. Indeed, a restriction on destroying existing data can stand independently of a prospective positive obligation. The significance of the distinction is that if the present federal government were prevented from destroying the existing data, it would leave the door open for a future federal government of a different ideological bent to repatriate the data to the provinces or to reanimate the long-gun registry. This might have been enough to ground a sufficient ownership interest in the existing data. Since these decisions were handed down, however, the October 1 deadline to commence destruction of the data has passed. The data having been destroyed, the point is now moot.

We have thus reached the anomalous position that all of the long-gun registry data has been deleted, except for that relating to the province of Québec. This data remains in the hands of the federal government. Its ultimate fate will lie in the hands of the Québec Court of Appeal and Supreme Court of Canada.

Paul Daly is a member of the Faculty of Law at the Université de Montréal. He can be reached at paul.daly@umontreal.ca. He blogs at administrativelawmatters.blogspot.com.

Suggested citation: P. Daly, ‘Clinging to Gun Data’, UK Const. L. Blog (22nd November 2012) (available at http://ukconstitutionallaw.org).

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