Constitutions as ‘Living Trees’ A Defense

1. Constitutions as ‘Living Trees’ A Defense

2. Chartersand the Circumstances of Politics • Advocates and Critics • Shared Assumption • stable, fixed point of agreement on and pre-commitment to appropriate moral limits to government power • Critics: fixed points not possible; not desirable • Advocates: fixed points both possible and desirable

3. “The Circumstances of Politics” defined • “…the felt need among the members of [pluralistic societies] for a common framework or decision or course of action on some matter, even in the face of disagreement about what that framework, decision or action should be.” (Law and Disagreement, 102) • “disagreement all the way down” (Ibid., 295) • “Copernican revolution” (WJW)

4. The Critics’ Case • 1. The Argument from Democracy • 2. Judges as Platonic Kings & Queens • 3. The Threat of Radical Dissensus: Ulysses and the Mast • 4. Obsession with Words

5. The Argument from Democracy A.G. of Ontario in Re: B.C. Motor Vehicle Act “... the judiciary is neither representative of, nor responsive to the electorate on whose behalf, and under whose authority policies are selected and given effect in the laws of the land.” (p. 199)

6. The Argument from Democracy, cont’d Lamer, C.J. in Re: B.C. Motor Vehicle Act “This is an argument which was heard countless times prior to the entrenchment of the Charter but which has in truth, for better or for worse, been settled by the very coming into force of the Constitution Act, 1982. It ought not to be forgotten that the historic decision to entrench the Charter in our Constitution was taken not by the courts but by the elected representatives of the people of Canada. It was those representatives who extended the scope of constitutional adjudication and entrusted the courts with this new and onerous responsibility. Adjudication under the Charter must be approached free of any lingering doubts as to its legitimacy.” (p. 199)

7. The Argument from Democracy, cont’d “Judicial review of governmental action long predates the adoption of the Charter.  Since Confederation, courts have been required by the Constitution to ensure that state action complies with the Constitution.  The Charter has placed new limits on government power in the area of human rights, but judicial review of those limits involves the courts in the same role in relation to the separation of powers as they have occupied from the beginning, that of the constitutionally mandated referee.  As the Court affirmed in Vriend v. Alberta, [1998] 1 S.C.R. 493, at para. 56, “. . . it is not the courts which limit the legislatures.  Rather, it is the Constitution, which must be interpreted by the courts, that limits the legislatures.  This is necessarily true of all constitutional democracies.”  (437)

8. Judges as Platonic Kings and Queens • According to Marshall, J.A in Newfoundland Treasury Board “. . . it cannot be said that s. 1 endows the judiciary with licence to stand in the shoes of the other branches of government as ultimate arbitrator of which policy choices were in the best interests of the governed…the Oakes proportionality requirements court such a risk.  Accordingly, it seems that some revisitation of them is in order.” (p. 436)

9. The Threat of Radical Dissensus: Ulysses and the Mast • Ulysses rationally justified in arranging, in advance, a restriction on his freedom to choose and act later; enforced, on Ulysses’ behalf by his sailors • We, as a people, rationally justified in tying ourselves to the mast of entrenched Charter rights and their enforcement, on our behalf, by judges • Waldron: We can’t locate mast

10. Obsession with Words • We need institutional mechanisms for protecting rights which are “free from the obsessive verbalism of a particular written charter.” (Law and Disagreement, 221.) • “It is sometimes liberating to be able to discuss issues like abortion directly, on the principles that ought to be engaged, rather than having to scramble around constructing those principles out of scraps of some sacred text, in a tendentious exercise of constitutional calligraphy. (Law and Disagreement, 290)

11. The Living Tree and the Common Law Conception • H.L.A. Hart, The Concept of Law • Two competing needs: fixityversusadaptability • Moral and Epistemic limitations • Open texture • Edwards (Persons Case): Constitutions as “Living Trees” • The “purposive approach”

12. Interpreting Charter Rights: The Purposive Approach Interpretation should be: • “a generous rather than a legalistic one” • “aimed at fulfilling the purpose of the guarantee” and • “securing for individuals the full benefit of the Charter’s provisions’ • “placed in its proper linguistic, philosophic and historical contexts.” (Big M Drug Mart, 56-7)

13. TheCommon Law & The Rule of Law • Common Law reasoning • Long history of combining Hart’s two needs: flexibility & adaptability • Fixity: Must follow precedent…unless • Adaptability: Distinguishing and Overruling precedents to adapt to new & unforeseen factors and avoid significant injustice

14. Common Law Jurisprudence of Moral Rights • Charter sets the stage for a kind of common-law jurisprudence of the entrenched moral rights it enshrines • Court decisions re: Charter rights set precedents

15. Common Law Conception of Charter Rights • Charter: recognition of epistemic limitations regarding rights • Charter: promise to address crucial moral questions when later appear to arise in concrete cases

16. Some Advantages • The Objection: Dead hand of the past & force of precedent – Binnie’s “legal strongbox” • The Reply • constitutional amendment possible • Consensus re: rights chosen for inclusion • Even dissenters agree “reasonable choice” • S. 1 and 33 • distinguishing & overruling precedents possible – a notable example…..

17. Labaye ,S.C.C., 2005Montreal “Swingers Case” • Jean‑Paul Labaye of Montreal charged with operating a "common bawdy-house,” in violation of section 210(1) of the Canadian Criminal Code • 210(1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years

18. Labaye, cont’d • "common bawdy-house" means a place that is (a) kept or occupied, or (b) resorted to by one or more persons for the purpose of prostitution or the practice of acts of indecency”(CCC, 197)

19. Labaye, cont’d • Labaye owner of club l'Orage • Persons (and their guests) who pay membership fees can engage in various consensual sexual activities including group sex • Members pay club membership fees, but members do not pay each other in exchange for sex • Labaye convicted of “keeping a common bawdy house” and fined $2,500

20. Labaye, cont’d • Question: What constitutes “indecency” – i.e. an “act of indecency”? • Precedents establish: “community standards of tolerance test”

21. Labaye, cont’d CCC, Sec. 163 (8) – re: obscene publications “For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.”

22. Labaye, cont’d Towne Cinema and Community Standards • “To determine ‘undueness’ one of the tests to be applied is whether the accepted standards of tolerance in the contemporary Canadian community, taken as a whole, have been exceeded. In applying the community standard of tolerance what matters is not what Canadians think is right for themselves to see. What matters is what Canadians would not abide other Canadians seeing because it would be beyond the contemporary Canadian standard of tolerance to allow them to see it.” 

23. Labaye, cont’d Labaye – New Test (via Butler, Little Sisters, etc.) “Indecent criminal conduct will be established where the Crown proves beyond a reasonable doubt the following two requirements:   “1. That, by its nature, the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example: 

24. Labaye, cont’d (a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or (b) predisposing others to anti-social behaviour; or (c) physically or psychologically harming persons involved in the conduct, and 2. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.

25. Mclachlin C.J., Labaye “As the above makes clear, the categories of harm…are not closed…” “Developing, a workable theory of harm [in applying the Court’s new harm-based test of obscenity and indecency] is not a task for a single case. In the tradition of the common law, its full articulation will come only as judges consider diverse situations and render decisions on them. Moreover, the difficulty of the task should not be underestimated. We must proceed incrementally, step by cautious step.” (par. 26)

26. Lamer in B.C. Motor Vehicle Act “Consequently, [s. 7’s] words cannot be given any exhaustive content or simple enumerative definition, but will take on concrete meanings as the courts address alleged violations of s. 7” (202)

27. Labaye, cont’d Moral of the story in Labaye? • Conception of “harm” developed in case-by-case, incremental manner • Common law reasoning • SCC departs significantly, over time, from precedents on “obscenity” • Community standard of tolerance to harm • Balance between fixity and adaptability

28. SomeAdvantages of Common Law Conception, cont’d • Waldron: written Charter still too restrictive: speech v. expression; troublesome precedents • WJW: Entrenchment of important human rights worth the cost • Solidify commitment to rights • Public statement of rights commitment • Symbolic value of Charters

29. Some Advantages, cont’d • Unelected judges versus elected legislators • Different contexts of decision • Judges better situated to encourage rights protections? • Political forces not as strong • Common Law reasoning and incremental change • Case-by-case development of moral rights more rational in situations of epistemic limitation w/r to nature and scope of rights

30. Partnership • Partnership between judges and legislators • Judges not claiming superior expertise or moral insight (Platonic Kings & Queens objection) • Different contexts; different tasks; different questions • Legislators: What are the best laws? • Judges: Are (legislator’s) laws consistent with Charter rights?

31. Binnie in Newfoundland Treasury Board v N.A.P.E. • “No one doubts that the courts and the legislatures have different roles to play, and that our system works best when constitutional actors respect the role and mandate of other constitutional actors…” (437, emphasis added)

32. Lamer in B.C. Motor Vehicle Act • “In neither case, be it before or after the Charter, have the courts been enabled to decide upon the appropriateness of policies underlying legislative enactments. In both instances, however, the courts are empowered, indeed required, to measure the content of legislation against the guarantees of the Constitution.” (198)