Constitutional Roundtable with Akis Psykgas

by Ryan Howes

On January 31, 2018, the Asper Centre Constitutional Roundtable Series hosted Athanasios (Akis) Psygkas, Lecturer in Law at University of Bristol and Visiting Scholar at the University of Toronto. His presentation was titled: “The hydraulics of constitutional claims: Four models of democratic constitutionalism and same-sex marriage.” Professor Brenda Cossman, Director of the Bonham Centre for Sexual Diversity Studies, joined as discussant.

There are many actors involved in constitutional interpretation. Psygkas identified a bottom-up process of constitutional evolution wherein multiple actors raise claims with constitutional implications. To articulate this “hydraulics” process, he conducted a case study of the legal recognition of same-sex marriage in four countries: the US, Spain, the UK, and Ireland.

In Obergefell v Hodges, the US Supreme Court held that the Fourteenth Amendment of the US Constitution requires state to issue marriage licenses to same-sex couples. The decision focused on liberty. Justice Kennedy, writing for the majority, provided a list of social actors (“central institutions in American life”) that contributed to the evolving debate of constitutional interpretation regarding same-sex marriage and argued that this debate had now reached a stage of deliberative maturity that permitted the Court to channel this into constitutional law.

In Spain, same-sex marriage was recognized through the legislature, beginning first at the regional level before being formalized in national legislation. In further contrast to the US, the petitions that were put forth in support of legalizing same-sex marriage focused on equality, not liberty. When challenged, the Spanish Constitutional Court stated that it cannot remain “aloof from social reality” and cited statistics concerning Spanish attitudes toward same-sex marriage in making its decision to recognize same-sex marriage.

In the UK, the process to recognize same-sex marriage was largely legislative and proceeded in stages. First, homosexual activity was decriminalized for persons over 21 years of age in 1967. But this provoked some backlash: legislation prohibiting promotion of homosexuality remained in place until 2003. Civil partnerships were created in 2004, which permitted homosexual couples legal recognition. Formal recognition of same-sex marriage came into effect in 2014. Throughout these stages, there was no electoral manifesto concerning same-sex marriage; rather, the process occurred organically through public consultations and hearings at the committee stage of the legislative process. The debate continues in Northern Ireland, where a married, English same-sex couple is challenging the state’s refusal to recognize their marriage.

The Republic of Ireland has direct citizen involvement in constitutional change through referendums, especially when change concerns fundamental laws, like constitutional amendments. The consensus in Ireland, however, had long been against recognizing same-sex marriage. This social attitude had influenced how politicians and the judiciary interpreted relevant legislation and articles of the Irish Constitution, especially Article 41, which concerns family. In 2013, a referendum on same-sex marriage was conducted and by a 62% approval vote brought the 34th Amendment of the Irish Constitution into existence, granting same-sex marriage legal recognition.

Each of these four examples demonstrate the varied systems and means through which social actors influence constitutional interpretation and change. The predominate direction of influence was bottom-up.

Professor Cossman argued that in Canada same-sex marriage recognition was a predominantly court-centric process, with Charter dialogue dominating the arguments. Parliament responded to Supreme Court of Canada (SCC) rulings by changing legislation. This process began with the SCC ruling that the common law definition of marriage as between one man and one woman violated section 15 of the Charter (Halpern v Canada). The Same-Sex Marriage Reference soon followed in 2004. This appears to be an exception to the hydraulics process that Psygkas observed in the four countries discussed. Although there were many activist groups active at this time, the Canadian experience of recognizing same-same marriage appears to have been more of a top-down process and did not exemplify the same hydraulics process Psygkas observed elsewhere. The SCC interpreted the Charter and Parliament followed. Invariably, some bottom-up processes were at play in the Canadian same-sex marriage debate: our Charter is young and reflects Canadian values, and our judges are, after all, from the citizenry.

Psygkas argued that the driving force in this “hydraulics” process is a bottom-up demand for a specific constitutional position within complex institutional structures; the exact form it takes varies depending on the constitution and the institutions present. What implications does this have for when we observe social backlashes or rising sentiments that we perceive to be moving our society in the wrong direction? Current political preoccupations with the so-called “populist” wave are perhaps an instance of this process.

Ryan Howes is a JD Candidate at the Faculty of Law and is the Asper Centre work-study student.

Constitutional Roundtable Recap

By Ryan Howes


Alistair Price on “The Relationship between Constitutional and Tort Damages for State Failures to Protect in Canada, England, and South Africa”

On November 29, 2017, the Asper Centre Constitutional Roundtable hosted Alistair Price, Associate Professor in Law, University of Cape Town. Price’s presentation was titled “The Relationship between Constitutional and Tort Damages for State Failures to Protect in Canada, England, and South Africa.” Richard Stacey, Assistant Professor, University of Toronto Faculty of Law was the discussant.

What is the appropriate legal approach to damages caused by public officials failing to meet their state-mandated positive duties?  Public law compensation often grants little or no monetary remedy for damages when it is available at all.  Tort is a more viable legal recourse for adequate monetary remedy. However, the standard for tort liability vis-à-vis public officials differs in Canada, England, and South Africa.  Each has adapted a unique approach in adopting tort law to the context of public wrongs.

On the conservative pole of the spectrum, English law has preserved the traditional torts approach. There is no positive legal obligation in tort required of public officials beyond that which is also ascribed to a private citizen. As defendants in tort, English law applies the same standard to public officials and private citizens.

South Africa is positioned at the opposing pole of this spectrum. Public officials are obliged to adequately perform their public duties. They are liable for damages flowing from omission or negligent performance of their ascribed positive responsibilities. Public officials are distinct from private citizens, held to a higher standard.

Canada has taken a middle approach. Price argues that this evades the excesses of the South African approach and the deficiencies of the English approach.

In South Africa, the basic relational structure of tort liability has been altered in adapting the legal system to address public wrongs. In England, this relational structure is persevered but the legal system fails to recognize that public officials occupy a status of categorical superiority relative to private citizens by virtue of their position. Applying the traditional private law approach of basic equality between the parties fails to recognize the judicial inequality that exists between the parties in the context of public damages.

In Canada, failure to perform positive public duties is actionable in tort law, but the basic relational structure still exists. The public official’s duty must have been a duty to this plaintiff at the material time. This often manifests in the context of policing. The Jane Doe v Metropolitan Toronto (Municipality) Commissioners of Police case is one such instance.

In commenting on Price’s paper and presentation, Richard Stacey offered a different perspective, one more favourable to the South African approach. Whereas Price finds laudable moderation in the Canadian approach, Stacey adopts a more categorical perspective wherein Canada is straddling the distinct paradigms embodied by England and South Africa. Canada is in a state of transition, moving toward the South African approach.

Stacey likened the current Canadian position to the geocentric model before the paradigm shift to a heliocentric model. Anomalies amass. Sub-theories grow in number to keep the theoretical framework coherent until the threshold is met and a paradigm shift occurs.

The paradigm shift is from merely applying traditional tort principles to adopting public law solutions for damages caused by public officials failing to fulfill their positive duties. The dissent and majority judgements in the Paradis Honey Ltd v Canada (Minister of Agriculture and Afri-Foods case represent the debate between these approaches within the context of Canadian law.

What accounts for these differences? Price posits that the constitutional culture of each country plays a role.

The constitutional culture in South Africa is deliberately transformative. The constitution is perceived as an instrument for social change. Damages from public negligence is just one more domain to which it is applied. By contrast, English constitutional culture is more conservative in bent.

Canadian constitutional culture contains elements of both, each contributing to the fertile soil of our living tree. How a disbalance will affect its continued development remains to be seen.

Ryan Howes is a 1L JD Candidate at the Faculty of Law and is currently the Asper Centre’s work-study student