New Norms in Constitutional Law: Reflections of a Non-Lawyer

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By Ken Fox

“One Law for the Lion and Ox is Oppression” – William Blake

Sheila Tucker presented at the Canadian Association of Law Libraries 2016 annual conference in Vancouver on The Connections of Constitutional Law. She spoke movingly, without speaking notes or visual aid, about three recent constitutional rulings (two in which she served as counsel) that create “new norms” in Canadian law, and by extension, Canadian life.

I don’t have a great grasp of constitutional law, but since it is the duty of every citizen to understand as best they can the laws of the land, I will do my best to summarize some of what Sheila spoke about.

Canada’s constitutional law differs from that of the U.S. in a small number of fundamental ways. Perhaps most importantly, Canada has developed a substantive approach to equality rather than a merely formal one. The U.S. Constitution, according to Tucker, ensures formal equality – a law must apply equally to all of the people in its scope. A substantive approach, by contrast, ensures not just that a law applies equally, but that the substance of the law itself benefits everyone, even if it means treating “different different” rather than everyone the same.

The substantive approach to equality implies using the purposive approach to interpreting the Canadian Charter of Rights and Freedoms (Part I of Canada’s Constitution Act, 1982). According to the Supreme Court of Canada, in R v Big M Drug Mart Ltd, [1985] 1 SCR 295:

The 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 protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore … be placed in its proper linguistic, philosophic and historical contexts.

The substantive approach is embodied in Section 7 of the Charter, which identifies “fundamental justice” as the test for any legislative impediments to liberty:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

For the purposes of interpreting Section 7, the courts have identified three aspects of fundamental justice. Arbitrariness applies where there is little or no positive relationship between the law and its objective. Overbreadth occurs when the law may serve some of its intended purpose, but has additional negative effects on society. Finally, the law is said to be grossly disproportionate in extreme cases where it’s negative effects are totally at odds with the state’s objectives.

Insite

The Insite litigation examined the question of whether or not the drug trafficking and possession provisions of the Criminal Code and Controlled Drugs and Substances Act (CDSA) contravened a person’s section 7 right to use a safe injection site to protect their health.

Beginning in 1997, and many times since then, the Vancouver downtown eastside has been declared a public health emergency due to epidemics of poverty, infectious disease and drug overdose. Recognizing that much of the danger of injection drugs comes from the injection process (as opposed to the drug itself), Insite, aka the Vancouver Safe Injection Site, operated from 2003 until 2008 under a special exemption from the CDSA.

Normally, the social effects of such a legislative experiment would be reviewed before either ending it or making it permanent. But in July 2008, the federal government ended the exemption without reference to any studies or even anecdotal evidence as to Insite’s effect on the community.

The government’s actions were challenged as infringing on section 7 rights, and the BC Supreme Court granted Insite an exemption from the drug laws. The government’s appeal was dismissed, so they further appealed to the Supreme Court of Canada in Canada (Attorney General) v. PHS Community Services Society 2011 SCC 44. The Supreme Court received as evidence more than 30 peer-reviewed studies showing that Insite saves many lives and hurts no one.

In its Section 7 analysis, the Supreme Court found that in not renewing Insite’s exemption, the Health Minister’s actions were both arbitrary, because they had no relation with the CDSA’s purpose to improve public health, and grossly disproportionate, because the clear evidence of the social value of Insite vastly outweighed any positive benefits of uniformly-enforced drug laws.

In Tucker’s view, the substantive approach to constitutional law enabled the court, rather than just reviewing law and procedure, to hear testimony from many of Insite’s users, whose stories served to illustrate that they are not “Keith Richards partying with medical-quality heroin,” and in many cases, having fallen into drug use and prostitution at a very young age, did not “make bad choices.” In other words, the court found that drug addiction is a physical illness, not a moral one.

According to Tucker, a finding of gross disproportionality by the court is like saying, “this is the wrong law – and you know it.”

Bedford

In Bedford (Canada (Attorney General) v. Bedford, 2013 SCC 72) three Ontario sex workers challenged three sections of the Criminal Code. Before Bedford, prostitution itself was legal, but the code criminalized many activities around it, making it dangerous to practice, and exposing the workers to risk of prosecution.

Specifically, section 210 (bawdy-house) effectively made sex work illegal indoors. This provision pushed the work into more dangerous locations and made the workers less likely to call police when attacked. Section 212 (1)(j) made it illegal to live off of the income of another person’s sex work, preventing workers from hiring bodyguards, or using their income to support roommates, friends or loved ones. And section 213(1)(c) (communicating) forced sex work to happen in secret, pushing it into obscure, hidden places, and prevent workers’ escape routes, again making it more dangerous.

Except for a few isolated instances, the purpose of Canada’s criminal law is not to legislate morality, but to protect public health and safety and prevent social disorder. As with Insite, the government argued that health and safety risks of sex work were inherent to the profession, and therefore the law did not violate the Charter. The Ontario Superior Court disagreed, finding that all three code provisions violated sex workers’ section 7 rights to security. The Ontario Court of Appeal upheld the decision with respect to the bawdy-house law and the “living on the avails” law, but ruled that the communication law was constitutional.

Again, the Supreme Court heard the case, and was able to review not just law but material facts. The respondents (ie, the original plaintiffs) presented 88 volumes of evidence showing that violence against sex workers can be prevented, as well as legal evidence from other countries demonstrating that Canada’s laws were too harsh.

The court ruled that the s.212 had some relation to the code’s objectives of health and safety, but was overbroad in its application. Sections 210 (bawdy-house) and 213 (communication) were both ruled grossly disproportionate to their aims.

In their ruling, the SCC analogized the unconstitutional provisions to laws that would make it illegal for cyclists to wear helmets, which would be justifiable, from the government’s perspective, because riding a bike is inherently risky.

Tucker didn’t talk about statutory amendments on the prostitution law that has been passed since the Bedford decision, amendments that according to some recriminalize sex work in a way very similar to the unconstitutional pre-Bedford laws.

Carter

The law puts me in a position where I need to kill myself next week, because after that I will not be able to – although I can still live.

Thus Tucker characterized the situation of some of the witnesses in the Carter case (Carter v. Canada (Attorney General), 2015 SCC 5) which concerned a provision in the Criminal Code that eliminated consent as a defence to homicide:

241. Every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

When a mentally competent adult is irremediably ill, and intolerably suffering, death can be seen as a form of health care. But before Carter, providing such care implied the risk of criminal charges, whether it be a doctor, a nurse, or a caring family member.

Thus, in 2011 the British Columbia Civil Liberties Association challenged the law as violating a person’s section 7 right to life, liberty, and security of the person. The Supreme Court of British Columbia ruled in favour of the BCCLA, but their decision was overturned by the BC Court of Appeal in a split (2-1) decision in 2013. So the BCCLA appealed to the Supreme Court of Canada, with Tucker acting for the appellants.

In Tucker’s view, the court needed to understand people’s suffering. As such, 70 expert witnesses gave testimony on the nature of suffering in the case of, for example, spinal stenosis, or amyotrophic lateral sclerosis (ALS), or bowel cancer. As well, laws in foreign jurisdictions were examined for their effects. But once again, the trial was driven by factual evidence, in this case about the benefits of informed consent, combined with a lack of disproportionate impact on vulnerable groups.

In order for the SCC to allow the appeal, it needed to revisit its previous ruling on physician-assisted suicide, the case of Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519. In that case, the court found that section 241 did not violate Charter rights, because the prohibition against suicide reflects fundamental values of society.

In this case, the court ruled differently, finding that the prohibition on physician-assisted death has positive social benefits, but it also negatively affects people outside the class of persons it is designed to protect: it is overbroad and therefore in violation of section 7.

But wouldn’t a reversal of the Rodriquez decision violate the doctrine of stare decisis? Don’t the lower courts need to follow the higher courts? And doesn’t the SCC need to follow its own ruling? Here is what the nation’s highest court said on that point:

[44] The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations:  (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate” (Canada (Attorney General) v. Bedford, 2013 SCC 72 (CanLII), [2013] 3 S.C.R. 1101, at para. 42).

So as well as providing a new authority on the law of physician-assisted dying, in Carter the Supreme Court of Canada has ruled that the court can change its mind.

What are the circumstances that have changed to allow the court to change? I doubt the nature of illness changed radically between 1993 and 2013 – so what changed? I’m not a lawyer, but it seems that what has changed is us – the people. Our dislike of suffering has outgrown our old taboo against self-murder.

In the Carter decision, the court found it unnecessary to rule on gross disproportionality – but in both Insite and Bedford, at least one provision of our criminal law found to be grossly disproportionate. In the Insite ruling, the court said that

The connection between the draconian impact of the law and its object must be entirely outside the norms accepted in our free and democratic society.

“New norms” is a funny kind of a thing to wrap one’s head around. By definition, a norm is what is long established, broadly accepted, and rarely questioned: a rule. Norms can only change gradually and imperceptibly. But legally speaking, they must change publically, and quickly, in response to a particular incident. I find some comfort in the idea that our laws are able to adapt to new norms when we need them to, and the substantive approach to equality seems to be a formal mechanism to achieve that adaptability.

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