Constitutional Roundtable

Constitutional Roundtable with Professors Kerri Froc and Jean-Christophe Bédard-Rubin on the QCCA decision in Hak v. Attorney General of Quebec

The Asper Centre Constitutional Roundtables are an annual series of lunchtime discussion forums that provide an opportunity to consider developments in Canadian constitutional theory and practice. The series promotes scholarship and aims to make a meaningful contribution to intellectual discourse about Canadian and comparative constitutional law.

We are pleased to host Associate Professor Kerri Froc (UNB Law) in conjunction with Assistant Professor Jean-Christophe Bédard-Rubin (U of T Law) for a Constitutional Roundtable on March 13, 2024 in the Solarium, Falconer Hall, Faculty of Law.

Professors Froc and Bédard-Rubin will break down the Quebec Court of Appeal’s decision in Hak et al. c. Procureur général du Québec, concerning the constitutionality of Bill 21, An Act Respecting the Laicity of the State. This appeal concerns freedom of expression, freedom of religion and equality rights, as Muslim women in Quebec who wear religious symbols such as the niqab or hijab would be prohibited from working in certain professions and in most parts of public administration, and prevented from benefitting from some public services because the law requires them to do so with their faces uncovered. The government of Quebec also pre-emptively used the override clause to prevent any constitutional challenges to the legislation. This Constitutional Roundtable will cover what this decision means for Charter rights, gender equality, and state use of the “notwithstanding clause.”

Kerri Froc is an Associate Professor at UNB Law, as well as a Trudeau and Vanier Scholar. She has taught courses at Carleton University, Queen’s University and University of Ottawa on feminist legal theory and various aspects of public law, among others.

Kerri received her PhD from Queen’s University in 2016 and holds a Master of Laws from the University of Ottawa, a Bachelor of Laws from Osgoode Hall Law School and a Bachelor of Arts from the University of Regina.

Before completing her doctorate, she spent 18 years as a lawyer, as a civil litigator in Regina, a staff lawyer for the Women’s Legal Education and Action Fund (LEAF), and as a staff lawyer in the areas of law reform and equality at the Canadian Bar Association. She is a member of the Saskatchewan and New Brunswick bars.

Assistant Professor Jean-Christophe Bédard-Rubin’s work explores Canadian constitutional culture from historical and comparative perspectives. He studied law, political science, and philosophy at Université Laval, Yale University, and the University of Toronto. During his doctoral studies, Jean-Christophe was the McMurty Fellow of the Osgoode Society for Canadian Legal History and a Joseph-Armand Bombardier Scholar. He has done consultancy work on constitution-building for International IDEA and, prior to his graduate studies, he worked in litigation for the Quebec Department of Justice.

Bédard-Rubin currently pursues two main research projects. The first is an intellectual history of the foundations of public law in French Canada. This project seeks to reconstruct the intellectual networks in which French Canadian public lawyers participated to excavate the transatlantic influences on the formation of Quebec’s legal syncretism. This genealogical reconstruction recovers the conceptual and theoretical innovations that allowed French Canadians to articulate a genuine theory of the state outside of the revolutionary framework. In so doing, this work sheds a different, somewhat oblique light on Canada’s constitutional experience and questions its status in comparative constitutional scholarship.

The second research project investigates judicial bilingualism in Canada. Using mixed social science methods, this project explores the various empirical impacts of bilingualism on judicial behaviour, the normative significance of legal bilingualism for the authority of judicial decisions, and the ways in which language shapes the dominant conception of the judicial role in Canada’s French and English public spheres.

Jean-Christophe’s work has been published in English and French in the Review of Constitutional Studies, the Canadian Journal of Law & Society, the Osgoode Hall Law Journal, the Bulletin d’histoire politique, and the International Journal of Canadian Studies, amongst others.

All are welcome * Light lunch provided * No registration required

Overcoming Challenges to Implementing UNDRIP in Canada

Posted on by Tal Schreier

By Julia Nowicki

Implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law will not be without challenges, and will require both hard-work and great care, said Kerry Wilkins at the Asper Centre’s first Constitutional Roundtable for the 2020/2021 academic year. Held virtually on Wednesday, October 28th, 2020, Wilkins, who is an adjunct professor at the University of Toronto Faculty of Law, presented his upcoming journal article–“So You Want to Implement UNDRIP…”–set to be published in the University of British Columbia Law Review in the near future.

UNDRIP was adopted by the United Nations General Assembly in 2007. The resolution outlines within it “the rights of indigenous peoples” and “establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world”, according to the UN website. Although initially voting against its adoption, the Canadian government eventually issued a Statement of Support endorsing the principles in UNDRIP and in 2015, announced its full, unqualified support. However, the international resolution is not legally binding in Canada, and requires domestic implementation for the rights and obligations of the State to be realized. In the prior two throne speeches, the Governor General of Canada promised full implementation of UNDRIP, stating in 2020 that “[t]he Government will move forward to introduce legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples before the end of this year.”

Implementation, as alluded to previously, does not come without its challenges, says Wilkins. “[F]irst, Canadian law isn’t especially well designed to welcome enforceable UNDRIP rights and obligations into it. And second, the colonial experience, mainstream law and governance, has done a great deal already to fragment and to disaggregate ancestral Indigenous communities, destabilize their relationships with traditional territories, and suppress and marginalize key features of their cultures.”

However, Wilkins says that the very “impediments to implementation are among the reasons why implementing the United Nations Declaration in Canadian law is so important”, and putting off implementation will in no way help the process. Sections 27, 38, and 40 of UNDRIP assign the process of implementation to the States, according to Wilkins’ paper. Article 38, for example, provides that “States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.”

In considering how meaningfully to implement UNDRIP, attention must be drawn to two overarching issues, including what Wilkins refers to as the “what” and the “how” of implementation. These questions refer, respectively, to the substantive and procedural issues that may underlie the process.

The instrument leaves undefined certain key features, including who qualifies as Indigenous peoples, how to distinguish traditional lands or territories, and which practices and features can be subject to cultural protection rights. Wilkins suggests that, if left to their own devices, courts and Parliament may revert to applying the metrics with which they are already familiar. Unfortunately, in doing so, or if left to define key concepts within UNDRIP unilaterally, governments and courts run the risk of trivializing the rights that would otherwise be protected. Non-Indigenous governments, for instance, do not have particular experience in thinking about indigeneity. Bands or First Nations as defined by the Indian Act outline criteria that would be “neither necessary nor sufficient to qualify as an Indigenous peoples for the purposes of UNDRIP”, Wilkins says. In reference to rights related to traditional lands or territories, Courts may be tempted to apply the law of Aboriginal Title, reverting to a process that is not only time consuming but likewise reduces the rights contained in UNDRIP to those already protected under the Canadian Constitution. Similar considerations run true for Aboriginal rights.

Various procedural issues must likewise be taken into consideration, namely, by which vehicle implementation should occur. Wilkins provides in his paper two such avenues, including by way of treaty and by legislation. Both have certain benefits and disadvantages, however the Canadian government as mentioned previously, has promised legislation as a means of implementation. Although legislation may provide for uniformity across the country, it can likewise be tailored to apply to specific groups. However, rights contained within legislation implementing UNDRIP, unlike treaties, would not receive constitutional protection. Further, legislation is subject to being overridden, not only by subsequent or more specific legislation, but likewise is subject to potential repeal by subsequent governments which may differ in their constituency and platform. Such potential conflict must be taken into careful consideration when drafting UNDRIP legislation, to ensure that subsequent laws are subject to UNDRIP unless explicitly stated within said legislation, UNDRIP legislation cannot be replaced by subsequent governments unless by certain manner and form requirements such as a supermajority vote, or by including explicit provisions that bind both federal and provincial Crowns.

“It’s important as we embark on the project of implementation to acknowledge at the outset the difficulties that it’s going to involve,” Wilkins said. “But it’s equally important not to let the existence of those difficulties count as a reason not to make the effort at implementation.”

Julia Nowicki is a 2L JD student at the Faculty of Law and is currently an Asper Centre work-study student.

Access recording of the Constitutional Roundtablewith Kerry Wilkins HERE.

 

Courts Without Cases: The Law and Politics of Advisory Opinions

Posted on by Tal Schreier

By Kylie de Chastelain

The Asper Centre recently hosted Professor Carissima Mathen, author of Courts Without Cases: The Law and Politics of Advisory Opinions (2019), for a dynamic Constitutional Roundtable about her new book, with Professor Lorraine Weinrib as discussant.

Professor Mathen’s book, described by Professor Weinrib as a “milestone” in Canadian Constitutional writing, explores the under-studied but vitally important institution of Supreme Court references. References are opinions given in the absence of a live case. They are put forward to the Court by the executive branch and the opinions that result are called “advisory opinions.” Those who have studied constitutional law will be familiar with references, but what many don’t realize is that some of Canada’s most important judicial decisions did not emerge from cases, but from references. Same-sex marriage, assisted human reproduction, Senate Reform, Quebec secession and patriation are only some of the landmark opinions that have emerged from references. In Professor Mathen’s words, each constitutes an important “constitutional moment,” and yet, references have remained chronically unexplored by legal scholars. Mathen has sought to change that through her book, which is the first focused examination of references in Canadian legal scholarship.

References are not uniquely Canadian but the way they are handled by our judicial system sets Canada apart from other Anglo-American countries. In South Africa, Israel, India, and numerous European countries, specialist “constitutional courts” address a variety of issues through references. As Professor Mathen emphasized, what is notable about the Canadian context is that the Supreme Court performs “both an adjudicative and an advisory function.” This function was enumerated in the Supreme and Exchequer Court Act, which created the Supreme Court of Canada, in 1875.

Professor Weinrib suggested that the reference phenomenon was institutionalized “by accident,” but that it was much needed, in part because Canada’s formal written constitution was initially fragmented and incomplete. In particular, the lack of a domestic amending formula made it very difficult for the federal government to govern. The reference function allowed federal and provincial governments to raise questions and discern the legal elements of political issues before bringing them back to the legislature; effectively using the court to establish a guiding framework for the nation’s development. This dynamic also allowed the executive to pre-emptively explore important legal issues before a case emerged and a decision was handed down in a conventional trial.

However, in the present day, Professor Mathen has argued that references and advisory opinions pose two potential problems with regard to Canada’s federal system. The separation of powers is essential to how the Canadian state operates, but by vesting courts with the ability to do more than adjudicate cases, references might be viewed as extending the judicial function beyond its optimal boundaries. In addition, because references can only be put forward by the executive branch, they arguably align the judiciary and the executive and exclude the legislature, even though the issues addressed in references are often very salient to the legislative context. Further, this arrangement could give the impression that the court is subservient to the executive; threatening the idea that the judiciary is independent. Courts are expected to address the references put forward to them, but as Professor Mathen explained, the Supreme Court is not always so accommodating.

On several occasions, the Supreme Court has refused to engage with the references put to them by the executive. Sometimes, the Court has rejected the requests outright, and in other cases it has re-interpreted the questions asked. By way of illustration, Professor Mathen pointed to the Patriation Reference, where the executive asked whether there was a constitutional problem with amending the constitution without provincial consent. In its opinion, the Court divided on its interpretation of the question, exploring whether all provinces – or only some provinces – had to agree with a constitutional amendment in order for it to pass.

Most interesting in Professor Mathen’s view is the fact that the Supreme Court has never explained why it sometimes chooses to refuse reference requests. Section 53(4) of the Supreme Court Act stipulates that the court has a duty to hear and consider all references, but despite this, the Court reserves the right to ignore references outright or to ignore sub-questions in a given reference, as it did in the Same-sex Marriage Reference.  Here, the Court refused to answer Question 4 of the reference, which asked if the opposite-sex requirement for marriage for civil purposes was consistent with the Charter. ostensibly because it was concerned about any “confusion” that could emerge if it answered in the negative.  More specifically, the Court stated that it would “exercise its discretion” not to answer the question, in part because the federal government had “stated its intention to address the issue of same-sex marriage legislatively regardless of the Court’s opinion” and that answering Question 4 could potentially undermine the government’s “stated goal of achieving uniformity in respect of civil marriage across Canada” if it answered the question affirmatively. Mathen suggested that the Court’s refusal to answer demonstrates the intention of the Court to retain first and foremost a legal role, as the chief constitutional arbiter, and the primary interpreter of its norms.

Here lies a final and fascinating point about Supreme Court references: they are not legally binding. References are only advisory and technically co-exist with treatises, textbooks, and other scholarly legal works that have no authoritative control over judges and their decisions. But practically speaking, we do not treat references in this way. As Professor Weinrib pointed out, references serve an incredibly important function in establishing norms. Indeed, we treat references as legally binding decisions; they are taught in law schools alongside other case law, and are treated by legislatures and governments with the same gravity as a binding Supreme Court decision. This could be, as Professor Weinrib suggested, because references sometimes feel more methodologically sophisticated; more conceptual and holistic. References help to develop a rule of law that reflects fundamental constitutional principles from the outset. This is undeniably a strength of the dynamic that exists in Canada.

Ultimately, Professor Mathen has produced an accessible and engaging account of the reference power in Canada, which, for all its curiosities, is undoubtedly an integral aspect of Canadian judicial practice and legal development.

Kylie de Chastelain is a 1L student of law at the University of Toronto and the current Asper Centre work-study student.

 

Recapping Brandon Garrett’s Constitutional Roundtable on Wealth, Equal Protection, and Due Process

Posted on by Tal Schreier

by Kylie de Chastelain

On Wednesday, October 2nd, 2019 the Asper Centre hosted Professor Brandon Garrett for a Constitutional Roundtable titled “Wealth, Equal Protection and Due Process.”

Professor Garrett presented work from a recent paper exploring “equal process” – a term he coined to describe the intersection between the Equal Protection and Due Process Clauses in the United States Constitution. “Equal process” claims have already arisen from Supreme Court and lower court cases where the main issue is wealth inequality, but courts have been wary of engaging with constitutional issues on a cumulative or intersectional basis. Garrett argues that the “equal process” approach should be more widely implemented to help address a series of pressing civil right issues, including the constitutionality of fines, loss of voter rights or driver’s licenses, and detention for inability to pay cash bail.

To illustrate the damaging effects of “punishing the poor,” and the need for an “equal process” approach, Garrett presented findings from a compelling empirical research study he conducted at Duke Law’s JustScience Lab. The study examined driver’s license suspensions in North Carolina from 1996-2018. In North Carolina, licenses can be suspended for a failure to pay traffic tickets or failure to appear in court. Many states have similar legislation. However, in North Carolina, as elsewhere, insufficient public transit options make driving a necessity. The loss of one’s license can have substantial material effects on livelihood and employment.

Garrett and his team found that approximately 1 out of 7 driving-age individuals in North Carolina currently have suspended licenses, for a total of 1,225,000 active suspensions. Of these, 827,000 are for a failure to appear in Court, 263,000 are for a failure to comply with orders to pay traffic fines or court fees, and 135,000 are for both. This data was further analyzed against race and class metrics to find that driver’s license suspensions occur disproportionately in low-income and non-white populations. In other words, license suspension and legal procedure of this kind punish people for poverty; something the Equal Protection Clause explicitly aims to prevent.

Historically, U.S. courts have been unwilling to examine constitutional issues such as these in creative ways, preferring to examine constitutional matters in isolation. This clause-by-clause tactic, Garrett argues, fails to adequately address the complex issues arising from poverty. An interdisciplinary approach yields better results.

For example, in Bearden v Georgia, 461 U.S. 660 (1983), a man who was sentenced to probation and ordered to pay $750 in fines but could not afford to do so eventually had his probation revoked. The Bearden Court explicitly merged Equal Protection and Due Process analyses in this case, noting that a classic procedural approach – where fine amounts are automatic regardless of ability to pay – was inherently unjust. Instead, the Court examined why the man could not pay and explored whether alternative measures could equally serve the state’s interest. Implementing a delayed payment plan, reducing the fine, or ordering time in public service could all fulfill requirements for punishment and restitution without unduly compounding the effects of poverty in this man’s life. Like this, the “equal process” approach could empower courts and litigators to raise joint claims and establish more just modes of penalty.

In this way, Professor Garrett argues, Bearden provides courts and lawyers with a strong basis for raising and trying joint claims. Adopting an “equal process” approach could empower courts to re-examine their objectives and interests in handing down punishment to society’s most vulnerable.

Following Professor Garrett’s presentation, Professor Vincent Chiao offered his comments and insight into the Canadian context. R v Boudreault, 2018 SCC 58 is a recent notable case where the Supreme Court of Canada struck down the mandatory victim surcharge provision of the Criminal Code on the basis that it was unconstitutional. As Chiao noted, the Court’s analysis in Boudreault did not focus on due process or equality but on gross disproportionality and cruel and unusual punishment as per s. 12 of the Charter.

The decision in Boudreault marked a clear departure from R v Tinker 2017 ONCA 522, where the Court reinstated victim surcharges against appellants on the basis that they were “rationally connected” to aims regarding remedy for criminal activities and accountability to victims. In Tinker, s. 12 arguments addressing cruel and unusual punishment were dismissed. But in Boudreault, as in Bearden, the Court acknowledged that victim surcharges compound the effects of poverty, effectively creating ongoing debts that are impossible for offenders to repay. Chiao emphasized that although the result in Boudreault was encouraging, Professor Garrett’s “equal process” approach could help elucidate intersectional, equality-focused jurisprudence in Canada moving forward.

Kylie de Chastelain is a 1L JD student at the Faculty of Law and is the current Asper Centre work-study student.

Democrats v USSC: The Constitutionality of Court-packing

Posted on by Student

By: Jasmit De Saffel

The Asper Centre’s first Constitutional Roundtable of the year transported the room two years ahead into a hypothetical future where the Democrats have won the U.S. 2020 election. In a world where the Democrats control Congress and the White House, how would they navigate a Supreme Court standing in ideological opposition to them?

This is the question explored in a draft chapter of Professor Mark Tushnet’s upcoming book, written for a general audience, which was the focus of this Roundtable presentation. Distinguished visiting Professor Tushnet also gave this year’s Wright lecture at the University of Toronto Faculty of Law and is the William Nelson Cromwell Professor of Law at Harvard Law School. He is a leading scholar of U.S. constitutional law and legal history. Professor Tushnet was joined by Professor Yasmin Dawood as a discussant. Professor Dawood is the Canada Research Chair in Democracy, Constitutionalism, and Electoral Law, and an Associate Professor at the University of Toronto Faculty of Law.

Professor Tushnet’s book posits that 2020 will be a turning point in the American political and constitutional landscape, one that could take either a “Trumpist” path or one more strongly socially democratic than recent Democratic leaders have taken. He discussed the obstacle the US Supreme Court (USSC) will pose to the Democrats if they do manage to win and try to implement socially democratic policies and programs. In particular, Professor Tushnet focused on court-packing as a potential response to this inevitable resistance from the judiciary that the Democrats should seriously consider.

Court-packing refers to increasing the size of the bench, a practice that is not technically unconstitutional in the United States. The two objections elaborated on in the discourse were that there is a constitutional convention against court-packing and that doing so would reduce the legitimacy of the USSC.

The constitutional convention argument is based on President Roosevelt’s failed attempt to court-pack in 1937 and the lack of attempts to do so by any subsequent administration. The thought is that there has thus been a constitutional convention against court-packing in place since the early 20th century. Professor Tushnet contends that there is not enough evidence to call this a convention, as one failed attempt in 1937 is insufficient to ground a constitutional convention. He argues that it is problematic to ascribe decisions made by past administrations to a normative idea like a constitutional norm, as there are a multiplicity of reasons and motivations for an administration to make the decisions they do. He suggests that there has simply been a practice of non-expansion because there has been no need to court-pack, until now.

The legitimacy of the Court argument holds that changing the composition of the Court with the express purpose of altering outcomes will undermine the belief that the court is engaged in legal interpretation, and thereby deprive the judiciary of its legitimacy. If the definition of legitimacy is deference to decisions simply because they emanate from the Court, the question asked was whether the court even has legitimacy. Additionally, Presidential appointments to the judiciary have already blurred the law/politics distinction. So, would a slight further reduction in legitimacy even matter? Professor Tushnet expressed the view that the public observing USSC decisions with a more critical eye would be a good thing for democracy.

The final concern raised by Professor Dawood was the potential “constitutional hardball” that would ensue following a decision by the Democrats to court-pack. As Prof Dawood explained, constitutional hardball (a term which Prof Tushnet already wrote about several years ago) is played when politicians make claims or act in ways that are not technically constitutional but go against established norms and practices. It is seen as unfair for undermining the public’s understanding of the constitutional system. The concern is that if the Democrats do court-pack, the Republicans will retaliate when they have power again, essentially spiraling into a “tit-for-tat” battle. Professor Tushnet pointed out that hardball/tit-for-tat is actually the preferred strategy in game theory. It is how to escape the Prisoner’s Dilemma equilibrium and get back “on course.” This game of hardball is exactly what has been going on in the conflicts over the last few USSC appointments. On a practical note, hardball can only be played when the reigning party controls all of Congress and the White House, which is not likely to happen very fast after the next regime change. Professor Tushnet argues that elected politicians do not make such long-term decisions and will not care about the repercussions for their decisions in 4/8/12 years.

Overall, the Roundtable discussion involved a lot of speculation, as court-packing is only relevant in the scenario where the Democrats win Congress and the White House in 2020. In these uncertain times that could very well not be the outcome of the election. Nevertheless, Professor Tushnet raises an important point and suggests a potential tactic Democrats could use to combat a bench that is not likely going to be amenable to their policy agenda. The Roundtable presented a fascinating glimpse into the constitutional questions being raised by our neighbours to the south.

Jasmit De Saffel is this year’s Asper Centre’s work-study student and a 1L JD candidate at UTLaw.