Courts Without Cases: The Law and Politics of Advisory Opinions

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.

 

R v Barton and the Role of Interveners in Criminal Litigation

By Keely Kinley

The Supreme Court released its highly anticipated decision in R v Barton on May 24, 2019.

In 2011, Cindy Gladue was found deceased in the bathtub of Bradley Barton’s hotel room with a fatal 11-cm gash in her vaginal wall. Barton admitted to accidentally causing Ms. Gladue’s death during what he characterized as rough but consensual sex and was acquitted by a jury on charges of first-degree murder and manslaughter. The trial was subject to much public criticism for the frequent reference to Ms. Gladue as a native girl and prostitute by counsel and the trial judge, and for the Crown’s introduction of a piece of Ms. Gladue’s preserved pelvic tissue as evidence. Feminist and indigenous groups, in particular, decried the discriminatory and dehumanizing manner in which Ms. Gladue was treated throughout the process.

On appeal (R v Barton, 2017 ABCA 216), the Alberta Court of Appeal found that the trial judge should have heard a section 276 application to determine whether evidence about Ms. Gladue’s sexual history was admissible and overturned Mr. Barton’s acquittal. Barton had paid Ms. Gladue $60 for sex the night before her death and testified that Gladue “knew what she was coming for” when she met him for sex again the following night. Section 276 of the Criminal Code, otherwise known as the “rape shield” law, prevents evidence of a complainant’s sexual history from being presented unless it is deemed relevant in a separate hearing without the jury present. Barton appealed to the Supreme Court.

Writing for the majority, Justice Moldaver found that a new trial was necessary because a section 276 hearing was never conducted. Such a hearing may have helped prevent Ms. Gladue’s previous sexual relations with Mr. Barton and history of sex work from being used to make her seem less credible or making Barton’s belief in consent seem more reasonable.

Moldaver J also emphasized that if an accused did not take reasonable steps to ascertain communicated consent to a particular sexual activity, “the defence of honest but mistaken belief [will] afford him no shelter” and should not be put to the jury. The Barton decision affirms that there is no defence of implied consent, an accused cannot point to a complainant’s sexual history to bolster a claim of belief in consent, an individual cannot consent to sexual activity in advance, and express consent must be given for each and every sexual act.

Ultimately, the court ordered a new trial on the charge of manslaughter. The majority was not convinced that the jury would have come to a different conclusion on the first degree murder charge even if the trial had been conducted properly. The dissent would have ordered a new trial on both charges.

In addition to questions about the meaning of consent and the proper application of s. 276, one of the issues raised at the Supreme Court concerned the role of interveners in criminal justice proceedings. In its decision to overturn Barton’s acquittal, the Alberta Court of Appeal drew extensively from an intervener factum submitted jointly by LEAF and IAAW. Barton objected to the weight that ABCA gave to the joint-interveners’ submissions. The Asper Centre intervened at the Supreme Court to comment on the role of interveners in public interest litigation.

In its factum, the Asper Centre pointed out that the Crown has a distinct obligation to represent and safeguard the general public interest in criminal cases,which sometimes overrides the interests of disadvantaged and marginalized members of society. Criminal proceedings should be open to the arguments of intervener groups to the extent that a case involves the interpretation of the Criminal Code or potential changes to the common law. The Barton proceedings themselves are evidence of the diverse array of interests that can be implicated in criminal litigation;  fifteen advocacy and special interest groups were granted leave to intervene at the Supreme Court. While Justice Moldaver devoted few words to the role of interveners in criminal appeals in his reasons (see paras 52-53), the critical role that interveners can – and do – play in such appeals is apparent in his decision.

Justice Moldaver took a feminist, Indigenous position on several key issues, urging judges to acknowledge and discourage prejudice against Indigenous women and girls in their instructions to juries, and emphasized that “everyone is equally entitled to the law’s full protection and to be treated with dignity, humanity, and respect.” Explicit recognition of the discrimination experienced by Indigenous women in the Canadian justice system may not have occurred without the submissions of Indigenous and feminist interveners highlighting the extent to which racist and sexist stereotypes about Indigenous women, particularly those involved in the sex trade, were at play in Barton’s original trial.

The Barton ruling should be considered a victory for interveners. While it would have been encouraging to see interveners’ contributions expressly acknowledged in the decision, as Dr. Emma Cunliffe commented shortly after the decision was released, Justice Moldaver’s “analysis of s. 276, reasonable steps and consent to the activity in question comes straight from LEAF and IAAW’s work;” the decision was “massively enriched and expanded by the work of Indigenous women’s organizations before the SCC, as well as Aboriginal Legal Services, [the Asper Centre], the Assembly of First Nations, the MMIWG Inquiry.”

Keely Kinley is the Asper Centre’s Summer Research Assistant.

Beyond freedoms: the administrative underbelly of the Trinity Western decision

By Sara Tatelman

The Supreme Court of Canada may have divided 7-2 on whether law societies must accredit Trinity Western University’s proposed law school, but the split was much narrower when it came to the nitty-gritty of administrative law. While the five-justice majority accepted the Doré/Loyola framework for judicial review of administrative law decisions, the other four justices called for varying degrees of reform.

The Doré framework applies when courts are reviewing the constitutionality of an administrative decision, such as one by a human rights tribunal, an immigration and refugee board, or a law society. Reviewing courts give considerable deference to the original decision-maker, given their subject matter expertise, and only over-turn their decisions if they are not reasonable.

On the other hand, when courts are determining whether a Charter-infringing law is nonetheless constitutional, the Oakes test applies. Unlike Doré, it clearly places the onus of proving the law is proportional on the government.

“The framework set out in Doré and affirmed in Loyola is not a weak or watered down version of proportionality – rather, it is a robust one,” the majority wrote (para 80).

“But saying [the framework is robust] does not make it so,” Côté and Brown J.J. snapped back in their dissent (para 304).

McLachlin C.J. (concurring) and Rowe (concurring), Côté and Brown (dissenting) J.J. all argued that judicial review of administrative law decisions should ask whether an individual’s Charter rights were infringed, rather than the more nebulous Charter values of the Doré framework and the majority’s decision. While rights are clearly outlined in constitutional documents, the majority suggests Charter values are those “the state always has a legitimate interest in promoting and protecting,” such as democracy, equality and human rights (para 41, citing Loyola at para 47).

Furthermore, rights are clearly distinct from other values. “To denominate an interest as a right is to recognize its normative primacy,” the Asper Centre noted in its 2013 intervention in Divito v. Minister of Public Safety and Emergency Preparedness. “As such, a Charter right intrinsically ‘weighs’ more (by virtue of being a right) than something called an interest, value or entitlement. A Charter right, once established, also possesses normative priority. A rights bearer need not justify protection of a Charter right; rather, the state must justify infringing it.”

Côté and Brown J.J. pointed out that Charter values are unsourced, amorphous and undefined, subject to each judge’s personal interpretation and nothing but “mere rhetorical devices by which courts can give priority to particular moral judgements” (para 309).

The dissenting (Côté and Brown J.J.) and the concurring (McLachlin C.J. and Rowe C.J., in separate in decisions) justices were divided over whether the Doré framework was salvageable. The latter argued it was, as they saw strong parallels between Doré and Oakes.

Under Doré, the decision maker must find reasonable the balance between the Charter values and the statutory objective, which of course involves identifying that objective, Rowe J. wrote. This corresponds to the first step of the Oakes test, which is ensuring the rights-infringing statute has a sufficiently pressing and substantial objective.

The second step of Doré is determining whether the decision proportionately balanced the relevant Charter protections, he added. This corresponds to the proportionality test in Oakes, which analyzes rational connection, minimal impairment and the balance between beneficial and deleterious effects.

McLachlin C.J. added that the Doré analysis usually comes down to the minimal impairment and balancing questions.

The dissenting justices, however, were troubled there was no clear rationale as to why judicial review of administrative decisions requires a separate framework. They noted courts had used the Oakes analysis before Doré was decided, as well as several times since.

“… [T]he orthodox test — the Oakes test — must apply to justify state infringements of Charter rights, regardless of the context in which they occur,” Côté and Brown J.J. wrote. “Holding otherwise subverts the promise of our Constitution that the rights and freedoms guaranteed by the Charter will be subject only to “such reasonable limits prescribed by law as can be demonstrably justified” (para 304).

The four justices were once again united when the question of burden of proof came up. They all found Doré, which has remained “conspicuously silent” on that issue (para 195), especially unsatisfactory in this regard.

In most administrative law decisions, applicants shoulder the burden of proof. But in Charter disputes, the four justices argue – as did the Asper Centre in Attorney General of Canada on behalf of the Republic of India v. Surjit Singh Badesha — that the justificatory burden must fall to the state actor. Otherwise, the Doré framework would provide significantly less protection than Oakes (para. 117, 197, 313).

And that, surely, is intolerable. As McLachlin C.J. wrote, “Canadians should not have to fear that their rights will be given different levels of protection depending on how the state has chosen to delegate and wield its power” (para 116).

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.

Selected responses to R v Comeau

By Sara Tatelman

Beer remains imprisoned by provincial borders. In 2012, Gerard Comeau of Tracadie, N.B. was fined nearly $300 for bringing 15 cases of beer and three bottles of spirits from Quebec to New Brunswick. His battle against the law behind that fine has finally wound its way up through the courts.

Last month, in the final word on the matter, the Supreme Court of Canada reversed the trial judge’s decision and found constitutional s. 134(b) of the New Brunswick Liquor Control Act, which limits the amount of extra-provincial Canadian alcohol individuals can bring into the province. The Court determined laws that aim to curtail the inter-provincial passage of goods, whether directly through tariffs or indirectly through fines, violate s. 121 of the Constitution Act, 1867, which states that all items manufactured in any province must be “admitted free” into the other provinces. But laws with different aims that incidentally curtail such passage do not violate s. 121. In this case, the Court noted the legislation aims “not to restrict trade across a provincial boundary, but to enable public supervision of the production, movement, sale and use of alcohol within New Brunswick” (para 124). Furthermore, the impugned provision targets black market bourbon and Fredericton-brewed rotgut, as well as cheap Quebec beer and crisp Okanagan Pinot Gris. So the liquor limits are byproducts of another regulatory scheme, and therefore permissible.

Before addressing the constitutionality of s. 134(b), the Court “deliver[ed] a benchslap to the trial judge” for disregarding its 1921 decision in Gold Seal Ltd. V Attorney-General for the Province of Alberta, as Professor Leonid Sirota of the Auckland University of Technology Law School wrote on his blog, Double Aspect. Based on the Bedford and Carter exceptions to vertical stare decisis, the trial judge ignored precedent because of a new historical assessment of the intent behind s. 121. The Court determined this wasn’t sufficient, since “the underlying social context that framed the original legal debate [must be] profoundly altered” (para 31) and such a re-assessment doesn’t do so.

Ironically, Sirota argues, the Court doesn’t uphold Gold Seal either. In that decision, outright tariffs on inter-provincial trade are banned. But post-Comeau, provinces could impose tariffs as long as they’re rationally connected to a regulatory scheme with a non-trade objective. “So much for stare decisis,” he writes.

In a commentary in the National Post, Professor David Schneiderman of the University of Toronto Faculty of Law notes it’s unsurprising the Court gives little weight to the historical context, “to some imagined framing moment derived almost exclusively from the pen of a single British draftsperson.” That is, under the “living tree” interpretation of the Constitution, purported intentions don’t matter all that much.

Professor Malcolm Lavoie of the University of Alberta Faculty of Law argues in a CBC column that the Court could have reached a fairer balance between federal and provincial powers by simply mandating a test more robust than rational connection, such as a test of necessity. “Under this approach, the government of New Brunswick would have had to establish that its prohibition on outside liquor was truly necessary to achieve objectives relating to public health and safety, a much higher bar than the one the Court applied,” he writes.

Furthermore, Lavoie points out that the Court’s interpretation of s. 121 renders it obsolete: under s. 91 of the Constitution Act, 1867, interprovincial trade is a federal head of power. That is, it was already impossible for provincial governments to directly impose tariffs on goods coming in from other provinces.

In the Toronto Star, Dr. Maria Banda, a visiting fellow at the University of Toronto Faculty of Law, has a more positive view of the decision. Comeau ensures that provinces with higher environmental or health standards, for example, don’t risk “being dragged down to the lowest common denominator by those with lax or inexistent regulations,” she writes.

This decision will likely reverberate throughout the country, including in Alberta and British Columbia’s pipeline dispute. Those provinces should see Comeau as a warning “that they’re not going to be able to rely on their own jurisdiction under the Constitution to do things that will either interfere in federal jurisdiction or will interrupt the free flow of natural resources that is normally supposed to occur without discrimination between provinces,” Professor Carissima Mathen of the University of Ottawa Faculty of Law, said in an interview in Maclean’s.

For his part, Schneiderman argues it’s now less likely Alberta’s Bill 12 will be held to be constitutional. The principle aim of the bill, which requires government permission to export petroleum resources, is “to economically harm a recalcitrant province for interfering with Alberta’s ability to get its oil to port,” he writes. And under Comeau, that cannot be countenanced.

So is it time to #FreeTheBeer, #FreeTheGrapes and #FreeTheOil?

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.

Asper Centre Clinic Student Reflects on Drafting the Bird Intervention Factum

by Becky Lockert

This past fall, the Supreme Court of Canada granted the Asper Centre leave to intervene in R v Bird, a case that ties questions of access to justice and constitutionalism to the doctrine of collateral attack. The question at the heart of the case is, from the Asper Centre’s perspective, whether a court applying the collateral attack doctrine must explicitly consider countervailing factors to ensure that administrative orders are Charter compliant.

Mr. Bird, the appellant, was labelled a long-term offender and, upon the completion of his prison sentence, was subject to certain supervisory conditions. Although he had requested that he be released into his First Nations community, the Parole Board ordered Mr. Bird to reside in a community correctional facility. Notably, this community correctional facility is the same one where he served the end of his prison sentence.

On a January evening two years ago, Mr. Bird left his assigned correctional facility and did not return. Police apprehended Mr. Bird several months later, leading to a charge of breaching a long-term supervision order and the threat of up to ten years in prison.

At trial, Mr. Bird successfully argued that the imposition of the residency condition was contrary to s. 7 of the Charter and outside the statutory authority of the Parole Board, because continued incarceration cannot be a condition imposed by a long-term supervision order. Allowing the appeal, the Saskatchewan Court of Appeal held that Mr. Bird was precluded from challenging the legality of the supervision order condition. To make such an attack, the Court of Appeal concluded, would be allowing a collateral attack and contrary to legislative intent.

The Supreme Court granted leave to intervene to the Asper Centre in September 2017. The intervention team, consisting of Cheryl Milne (Asper Centre Executive Director) , Breese Davis (the Asper Centre’s 2017-18 Constitutional Litigator-in-Residence), and five clinic students, had six weeks to prepare our intervenor factum. Our task was to craft an argument that the Court, when determining whether to bar a collateral attack, should consider both the constitutionality of the administrative order and access to justice.

Cheryl and Breese immediately gave the reins to our small group of students. Gaining familiarity with the subject-matter was our first step; we assigned out research and set off to produce memos. Meeting regularly and communicating constantly, the group narrowed our issues and determined our approach. We would advocate for adding two branches to the collateral attack framework (from the Supreme Court’s judgment in R v Consolidated Maybrun Mines Ltd.).

First: courts cannot be complicit in the enforcement of unconstitutional administrative orders by refusing collateral attack against them. This would be contrary to the rule of law and the principle of constitutionalism. Especially in this case, where Mr. Bird’s liberty interest is at stake, compliance with the Charter cannot be left out from the Court’s analysis.

Second: courts should take note of access to justice challenges that make judicial review of administrative orders essentially inaccessible. Charter protections cannot be rendered meaningless by an effective inability to challenge potentially unconstitutional conditions.

Having determined our strategy, the drafting process began. For a number of us, this was to be our first factum. Cheryl and Breese put great faith in the group to craft the Centre’s written argument, providing helpful (and at times, challenging) feedback to our work-in-progress. The ability to maximize on Cheryl’s expertise in drafting intervenors’ facta and Breese’s wealth of knowledge as a seasoned criminal defence lawyer was immeasurably helpful. There were a series of late nights at the Faculty, including line-by-line group editing sessions where we wrote and re-wrote sections of the factum.

Following a series of drafts, more line-by-line edits, and finally a submission to Cheryl and Breese, we had our finished product. A few final tweaks on their end, and the factum was submitted to the Court and out of our hands.

The prospect of the Supreme Court reading our writing is a daunting one for students – daunting, but exciting. The Court will be hearing oral submissions on the case this upcoming March, and many of our student group will be coming along to see our arguments in action. How will the Court approach our arguments? Is our position persuasive, and will the Court accept the position that access to justice and constitutionalism must be considered?

Having this opportunity to draft an intervenor factum has been invaluable for our student group. On a personal note, I can attest to this being the most meaningful and challenging part of my law school career thus far. Being surrounded by four other dedicated and bright law students and having guidance from highly skilled supervising lawyers has resulted in a piece of work and an experience that I am proud to have been a part of.

Becky Lockert is a 2L JD Candidate at the Faculty of Law and was a student in the Asper Centre Clinical Legal Education Course.