Constitutional Politics in Canada and the United States

State University of New York Press 2004 Hardcover Buy here

Book Review
Reviewed by Mark Milke

Americans who think they have an activist court reading new and occasionally controversial rights into their constitution should gaze up north for a peek at the Supreme Court of Canada (SCC). While the 1973 Roe v. Wade decision in the United States was one of the more obvious examples of a judicial invention of rights, the reasoning of which is rendered even more absurd in light of advancing medical technology which pushes back the date of viability even further into early pregnancy, Canada’s highest court has met that revolution and gone one further: the recent decision by Canada’s parliament to legalize gay marriage was not the result of reading into the constitution a right on which it had been silent as in Roe. It was the result of increasing pressure due to lower court decisions that found sexual orientation to be a Charter right despite explicit, original, and public intentions by framers to the contrary. (When Canada’s Supreme Court ruled on the matter last December, it avoided answering whether gay marriage was a constitutional right.)

But that one-upmanship is not wholly the result of justices intent on re-knitting the social and cultural fabric of Canada, as some on the political right assert. As several authors argue in Constitutional Politics in Canada and the United States (edited by Stephen Newman, an associate political science professor at Toronto’s York University), Canada’s 1982 constitutional changes partly mandate a more activist court. 

For example, as Ran Hirschl points out, Canada’s constitution explicitly mandates minimum “group” rights: “Whereas no collective rights are directly protected by the U.S. Supreme court, at least three categories of such rights — minority language and education rights, rights of aboriginal peoples, and a constitutional shield for affirmative action programs — are recognized and affirmed by the Canadian Constitution Act, 1982, and have been further established by the SCC’s Charter-based constitutional rights adjudication.” 

That addendum -- “further established by the SCC’s Charter-based constitutional rights adjudication” -- is an important clue as to how the powers of the courts have developed in Canada over the last 23 years since Canada repatriated its constitution from Britain. In 1982, Canada added a new amending formula and a Charter of Rights and Freedoms. And while those actions can be praised, blamed, or more usefully interpreted with nuance, there’s little doubt that the courts have gone further on some social issues that any politician would dare. Whether one wants to praise or critique such developments, Canadians have more activist courts because they have a more activist constitution.

Though the Canadian Charter of Rights goes further than its American equivalent in allowing for judicial activism, Canadian courts have taken an arguably further leap from any constitutionally justified perch. To use one example from recent headlines, gay marriage, the lower courts' decisions over the past decade are themselves the result of interpreting Canada’s Charter of Rights and Freedoms to find sexual orientation as a protected Charter category, similar to freedom of worship, association, and expression. However, the difference between those categories of Charter protection and sexual orientation is that the former are explicitly stated as rights categories; in contrast, sexual orientation was explicitly rejected as a Charter-protected category in talks leading up to the 1982 constitutional reforms along with private property. Curiously, the courts have been happy to recently read sexual orientation into the Charter as a right, not so the protection of private property. That the Supreme Court in particular has a bias on what it will read into the Charter as a new right is nowhere clearer than the division between how those two politically rejected categories have been treated.

The reason for the distinction – the success of some groups in succeeding in the courts versus the dearth of advances for, say, ranchers interested in more robust protection of their private property, has to do with what Ian Brodie and F.L. Morton call the embedded state. The term was originally coined by Alan Cairns and it refers to the “fragmentation in Canada of state and society, and the emergence of a fragmented state that is ‘embedded’ in an equally fragmented society. Various nodes of the state and their interested public shape each other. Fragments of the state fragments can act as independent political actors.”

The key point for Brodie and Morton is that “Battles between state actors and their associated fragments of society may shape policy outputs more than battles between social actors.” In short, those on the “in” of the fragmented state help craft the landscape on which battles will be fought (i.e., defining an issue as a “right” as opposed to a mere political position which may or may not be desirable), then push for those from the inside and out. By the time an issue makes it to the courts, the groundwork for the likely direction of judicial policy has already been well-laid in academia, in interest group litigation (heavily funded by the state in Canada), and in the mainstream press.

But while sexual orientation battles are one high-profile example of activism, there are two others, one of which will horrify most American observers as it already does most Canadians. And the other example highlights the differing approach to rights in the mainstream political and legal discourses of both countries as it concerns free speech. 

The first is a landmark decision involving child pornography in Sharpe (2001). The case resulted from a Vancouver man charged under the Criminal Code with two counts of possession of child pornography which he intended to distribute and sell. Sharpe’s response was that his constitutionally guaranteed freedom of expression was being infringed upon, which the Crown admitted but argued was justifiable under the section of the Charter that allowed such infringement where such an activity could be proved harmful to the public good -- in this case, children.

The Supreme Court agreed that Sharpe’s freedom of expression was infringed upon but also that it was justified. However, the court then went on to gut the law by ruling that where child pornography is created and depicted (i.e., drawings or essays but not actual visual images of a real child) and held by the person alone, and so long as it is for personal use and not distribution, the Criminal Code ban went too far. 

But if such moral sewage is now permitted on the absurd and weak court claim that such individual child erotica is not proved to be harmful to society, the Canadian court took a vastly different view of nasty speech and decided that unlike pre-pubescent pornography, citizens are in danger of becoming Nazis.

On free speech, Stephen Newman compares the 1992 decision by the U.S. Supreme Court (R.A.V. v. St. Paul) with the 1990 decision by Canada’s Supreme Court (R. v. Keegstra). In the American case, the city of St. Paul made it a crime to display certain symbols including a burning cross or a Nazi swastika and others that are known to arouse “anger, alarm or resentment.” The high court disallowed the municipal ordinance on the basis (via a majority decision written by Scalia) because, as Newman writes, it was “tainted by content discrimination: only symbolic displays specifically targeting a person’s race, color, creed, religion, or gender were proscribed.” 

Newman notes the oddity of the Scalia position, the logic of which “would in effect compel St. Paul to ban all fighting words in order to reach the injuries specifically associated with hate speech.” Newman argues that this means, perversely, that greater restrictions on free expression would have been required of St. Paul in order to pass constitutional muster. It’s fair comment.

But if the U.S. court’s decision set up strange incentives in its method for preserving free expression, the Canadian Supreme Court already had a lower threshold for any government interested in restricting speech. Governments in Canada can go much further in suppressing freedoms; in Canada, the test for limits on a right or freedom guaranteed by the Charter are subject to the Oakes test. In R. v. Oakes (1986) the highest court established that for a government to justify infringement of rights in a free and democratic society, it must pass three tests: Newman outlines the criteria:

First, it must be demonstrated that the impugned measure is rationally related to the state’s legitimate objectives. Second, the impugned measure must be demonstrated to impair the right of freedom in question “as little as possible.” Third, there must be proportionality between the effects of the impugned measure and the compelling objective that justifies infringing a protected right or freedom.

Unlike the U.S. where free expression is viewed by many as a sacred right regardless of content, Canadian courts have taken a far less protective view of speech. So in Keegstra, then Chief Justice Brian Dickson saw the Oakes test criteria as having been met by the federal government and its ban on hate speech. Dickson saw that the state had a “pressing and substantial concern” in the protection of minorities. As Newman notes, Dickson argued that “emotional damage” needed to be prevented lest it be inflicted on the group by hate-mongers.

But Newman rightly spots the clever reasoning employed by the Chief Justice, unconvincing to some. As part of the narrow majority that backed up the federal hate crimes law in this case, Dickson argued there was a danger of nasty speech and further theorized that such speech was matched “by the possibility that prejudiced messages will gain some credence [within the general public], with the attendant result of discrimination, and perhaps even violence, against minority groups in Canadian society.”

The “perhaps” is key. If Dickson had argued that hurtful and hateful speech equaled discrimination equaled violence, he would have had a much tougher time justifying upholding a hate crimes law that can conceivably trap anyone with a forceful, dissenting opinion on conceivably any subject. By gently introducing the possibility that somewhere, someone, might be influenced by speech which could lead to unfair treatment and even violence, Dickson avoided a straight-on challenge to his logic. He instead dressed his intolerance of free speech in the language of compassion, concern and prevention of violence. It also allowed Dickson to use the kind of concept so common in environmental debates: the precautionary principle. That principle is often used as a way to stop, for example, the spread of GMO crops in case someone, somewhere might discover a deleterious side effect in the future. Similarly for Dickson, the absence of proof that hateful speech is inextricably linked to action is taken as a reason to be ever more vigilant in the event that “perhaps” such a link might occur.

But if hard cases make bad law, using exceptional circumstances to prevent speech that is odious to almost everyone (Holocaust denial) will and does catch -- as part of the price -- other forms of debate which will be no less heated now and in the future: one could apply hate crimes law to participants in debates over proper levels of immigration, abortion, Terry Schiavo, gay marriage, or stem cell research. It’s almost unnecessary to point out that the precautionary principle so obvious in the justification for restrictions on hate speech, was not used in the case of self-created child pornography where it arguably is more applicable. Of such ironies is public dissatisfaction with courts created.

But if Canadian governments and courts go much further in suppressing speech than do their American counterparts, or in introducing rights to child pornography in a manner that would make even the very liberal Warren court blush and where now, there is one Canadian constitutional device that American governments might consider introducing as part of their response to any over-reaching judicial activism. In Canada, courtesy of the 1982 constitutional changes, federal and provincial governments can use the so-called “notwithstanding clause” to nullify court rulings.

The clause, which obtains its name from Section 33 of the Canadian Charter of Rights and Freedoms, allows the federal parliament or a provincial legislature to declare a piece of legislation effective “not withstanding a provision” which is otherwise considered a constitutional right under other sections of the same charter. The clause was pressed into the Constitution by premiers who were (justifiably, as it turns out) concerned about possible over-reaches by the courts. The clause allows a government to simply pass a law disallowing a particular court ruling. The catch is that it must be renewed every five years. So far it has been used mainly by Quebec on issues of language in order to thwart Supreme Court rulings which decreed some provincial laws to be discriminatory against minority language groups in the mainly French-speaking province. 

Still, ignoble as that particular use of the notwithstanding clause is, the logic of its existence is undeniable. Defenders of rampant judicial activism (as opposed to arguably necessary application of constitutional rights to current realities) often argue that constitutions are living trees, ever growing and evolving. There is a very legitimate argument that justices and courts must not be subject to popular whim, an assertion with which I would heartily agree.

But the reality of politics also must intrude upon theory and intellectual desires lest democracies be so in name only and not practice. A necessary attention to independence and the rule of law and not electoral populism of the moment must also be set in concrete with the necessity of courts to restrain their own powers which are much more difficult to check than are parliaments, legislatures, and senates. Thus, a necessary constitutional reform in not only the United States but elsewhere would sensibly include a version of Canada’s notwithstanding clause, perhaps even with the five-year expiry date. That allows legislatures a temporary veto to assert their necessary interpretation of rights while not sacrificing the necessary argument about whether such an action is in fact proper. 

The notwithstanding clause is barely discussed in Constitutional Politics in Canada and the United States, which is more than unfortunate and is one of the most glaring omissions in the collection of otherwise useful essays that shed light on American-Canadian constitutional differences. Such a clause should be made more known to Americans. Its implementation in the constitutional “toolbox” down south would also actually promote the dialogue between courts and parliaments which has become increasingly one-sided in both countries: the justices speak while everyone else listens. That a legislative response in that dialogue is necessary is made nowhere more obvious than when a court allows for self-created child pornography.