The Supreme Court and “Unwritten Principles”

We all know when Canada got its original constitution.

On July 1, 1867, the British North America Act (now called the Constitution Act, 1867) united the colonies of Nova Scotia, New Brunswick and Canada (Ontario and Quebec) into a federal country. Canada’s First Constitution still sets out the form of our executive, legislative and judicial branches of government. It divides legal powers between the provinces and Ottawa. Every year, we celebrate its anniversary with a long summer weekend.

And we all know that on April 2, 1982, Canada got a new supplementary constitution. The Constitution Act, 1982 sets out a written Charter of Rights, a commitment to regional equalization, guarantees for Aboriginal people and a made-in-Canada amending formula. There is no long weekend, but commemorations of the Second Constitution are common enough, especially in the legal and political professions.

But unless you are a specialized observer of constitutional law, you probably don’t know about Canada’s Third Constitution. Its tenth anniversary, next September, will pass without fanfare. This revolution was not the subject of public debate or political negotiation. No document – other than obscure passages in law reports – embodies it. But it may in the end have as big an effect on the country as the other two.

The First Constitution basically left lawmaking up to Parliament in Ottawa and the legislatures in the provincial capitals. The courts could strike down a law primarily if the wrong level of government enacted it. If the federal Parliament passed a law in an area that should be dealt with only by provincial legislatures, or vice versa, the courts could act. But subject to this principle, and with some minor exceptions set out in the written text, the elected legislatures were sovereign within their spheres.

The Second Constitution gives courts more latitude. It allows them to strike down laws that in their view conflict with the freedoms and rights set out in the text and do not constitute “reasonable limits prescribed by law” on those rights and freedoms. However, with some exceptions, the 1982 Constitution gives legislatures the power to immunize laws from judicial scrutiny by declaring that they operate “notwithstanding” the Charter of Rights.

What the First and Second constitutions had in common was that they limited judicial interference with lawmaking to the vindication of the written constitutional text. A clear hierarchy of texts underpinned the whole system: the written constitution was supreme, followed by statutes (laws passed by Parliament or the provincial legislatures), followed by regulations and subordinate legislation, followed by the interstitial judicial lawmaking that makes up the common law. Each level of law could be invalid only if it was inconsistent with a more fundamental level of law. In particular, statutes could be invalid only if they conflicted with the text of the constitution.

But on September 18, 1997, while adjudicating a compensation dispute between provincial court judges and provincial governments, the Supreme Court of Canada decided that it could strike down laws not only if they were appropriately within the sphere of a different level of government or conflicted with an entrenched right in the constitutional text, but also if they were contrary to “unwritten constitutional principles … exterior to the particular sections of the Constitution Acts.” The justices did this even though it had not been suggested by any of the 32 experienced lawyers arguing before them. In a scorching dissent, retiring Justice Gérard La Forest – the only constitutional scholar on the Court at the time and a former Assistant Deputy Attorney General of Canada – warned that the Court was “imperilling its legitimacy.”

If so, it has not prevented the Court from doing the same thing again. The opening case in the new revolution dealt with the salaries and benefits of provincial court judges, a matter of great concern to them and to provincial finance ministers but not of enormous political significance. But a year later, in the Secession Reference, the Court once again used “unwritten” principles to invent an amending formula for the secession of Quebec quite different from the one found in the Constitution Act, 1982.

Since then, courts have been asked to overturn changes to Saskatchewan’s public crop insurance scheme, statutory cabinet privilege for certain documents and the appointment of unelected senators in Alberta, and even to refuse a constitutional amendment abolishing public funding of denominational schools in Newfoundland. These challenges proved unsuccessful. But last Christmas, in Christie, the British Columbia courts struck down that province’s social services tax on legal bills on the grounds that it created obstacles to the poor obtaining justice, citing the “unwritten principle” of “access to justice.”

At almost the same moment, Chief Justice Beverley McLachlin delivered a speech in New Zealand which proposed bringing matters such as “medical neglect” and “degradation of the environment” within the judicial ken under the rubric of unwritten principles. Osgoode Hall Law Dean Patrick Monahan has proposed that the protection of contractual rights (and thereby much of the free enterprise economic order) should be considered an aspect of the unwritten principle of the “rule of law.” A former McLachlin clerk has written that the “independence of the bar” should count as an unwritten principle. Other academic commentators have called for “social rights” to be recognized, and in her speech McLachlin seems to have left the door open for these as well. At its maximum extent, the Third Constitution might take all health, economic and social policy within its scope. Although this maximalist vision is unlikely to be given effect soon, there is no doctrinal bar preventing a willing court from doing so.

In 1848, Karl Marx and Friedrich Engels proudly declared “the Communists disdain to conceal their views and aims.” The principles of our current revolution are set out in rather less fiery prose, and the views and aims of its proponents remain obscure. To the extent that the revolution is discussed at all, it is in the dry jargon of the legal profession. But because it represents nothing less than a fundamental shift in the locus of sovereignty in our system, the Third Constitution needs to be seriously discussed outside law schools and judicial conferences and bar association meetings. It needs to be a matter of political and journalistic debate. Unfortunately, the early signs suggest that the chances of this happening are not good.

“Godlike powers” and the crime of blasphemy: The strange case of Maurice Vellacott, MP

Political junkies will dimly recall the brief notoriety and rapid fall of Maurice Vellacott, Conservative MP for Saskatoon–Wanuskewin since 1997 and, for a few months in the spring of 2006, Chair of the House of Commons Committee on Aboriginal Affairs. His “gaffe” – remarks critical of Chief Justice McLachlin and her endorsement of the Third Constitution – was the talk of Parliament Hill for a week last May, an early setback for the new Harper government’s goal of relentless message discipline. Like all such stories, it quickly faded from the spotlight after Vellacott’s resignation, to be replaced by other causes of short-term indignation. Unlike most of them, it tells us a lot about the deeper structure of our system of government and how it has changed in just a decade.

Vellacott is a former evangelical pastor and chair of the all-party Pro-Life Caucus. In a May 6 interview with CBC reporter Christina Lawand on the subject of the new government’s intentions, Vellacott took a swipe at McLachlin’s New Zealand speech. This speech, dedicated to the memory of Lord Cooke – a New Zealand judge opposed to the Westminster principle of parliamentary supremacy and supporter of judicial invalidation of legislation for violating “unwritten principles” – is the closest thing to a manifesto for the Third Constitution available anywhere. Vellacott’s words were as follows:

Beverley McLachlin herself said actually that when they step into this role all of a sudden there’s some mystical kind of power comes over them by which everything that they ever decree then is not to be questioned. They actually have the discerning and almost prophetic abilities to be able to plumb and know the mind of the public and take on almost these Godlike powers.

The Court reacted within the next news cycle. By Sunday evening, the national media had in their hands a press release from the Supreme Court which “categorically denied” that McLachlin had said what was attributed to her. On the contrary, “She has always said it is a judge’s role to interpret and apply the law … but those choices are always made in accordance with legal precedents and with the laws laid down by Parliament and the legislatures.”

Vellacott put out his own press release saying that he had not intended to give the impression that the Chief Justice had literally used the words he attributed to her, and that they were his rhetorical summary of the remarks. He tried to turn the discussion to McLachlin’s text. To no avail. The national media, without much exception, regarded Vellacott’s comments purely through the prism of scandal and gaffe.

Vellacott received some support in the niche right-wing media, as well as from Allan Hutchinson, a former associate dean at Osgoode, in the Globe and Mail. But for most of the media, as well as opposition MPs, the Canadian Bar Association, Aboriginal leaders and those Canadians with little sympathy for evangelicals from Saskatchewan, the attack was not a matter for debate. Vellacott was guilty of sin, not error. CBA President Brian Tabor, long vigilant about criticism of the judiciary in the public sphere, said Vellacott’s remarks “demonstrate an inability to play a leadership role on any matter related to the administration of justice.” Within the week, presumably after a visit from imposing staffers at the Prime Minister’s Office, Vellacott resigned his position as chair.

Were Vellacott’s statements beyond the pale? The words Vellacott attributed to the Chief Justice clearly were not a verbatim quotation from her. He could have been more careful, and as an experienced politician, he should have been.

But it would be the height of literalism to dismiss Vellacott because his choice of words was intemperate. At bottom, Vellacott was not accusing the Chief Justice of saying something, but of doing something: of claiming to speak on behalf of the people with more authority than those the people elect (and can vote to remove). He was accusing her of claiming a final say on matters of public policy that the constitution does not grant. He was alleging that the Court claims the power to define its own power – something a religious person might see as properly restricted to the divine.

Regardless of whether we have personal sympathy for Vellacott’s brands of religion or politics – and I do not – we should be uneasy about his fate. Because he raised a serious issue that was not dealt with seriously. And because he may have been right.

Is it a revolution?

As Marx pointed out in the opening of The Eighteenth Brumaire of Louis Napoleon, every revolution presents itself as a restoration. Revolutionaries “anxiously conjure up the spirits of the past to their service, borrowing from them names, battle slogans, and costumes in order to present this new scene in world history in time-honoured disguise and borrowed language.” Judicial revolutions are especially likely to claim to be conservative. There is therefore a tendency on the part of the defenders of the Provincial Court Judges Reference and its progeny to deny that any real change has taken place. The first question, therefore, is whether this claim of continuity is correct. Is the “Third Constitution” really new?

The simplest form of denial of change was exhibited by the Court’s press release in response to Vellacott. It claimed that the Chief Justice had always asserted that judicial decisions must be made in accordance with legal precedents and the laws laid down by Parliament and the legislatures. Were this true, then nothing new would be going on. Unfortunately, the press release is incorrect, at least if the term “precedent” is understood to have a referent reaching further back into the past than the fall of 1997.

In the very first paragraph of her New Zealand speech, Chief Justice McLachlin acknowledged both that she was talking about overturning the “laws laid down by Parliament and the legislatures” and that doing so was novel:

A few years ago, a new subject emerged on the hot list of legal academe – unwritten constitutional principles … But what gives judges the right to set forth constitutional principles capable of invalidating laws and executive acts, when Parliament has not seen fit to set these principles out in writing in the nation’s constitution?

One looks in vain for an example before 1997 of a Canadian court striking down legislation for any reason other than alleged conflict with the written constitution. On the other hand, statements of the complete sovereignty of the legislature in the British tradition (carried on to Canada, except as modified by the Constitution acts) are legion. Among the most brutal is this statement by an Ontario judge in the 1909 case of Florence Mining:

In short, the Legislature within its jurisdiction can do everything that is not naturally impossible, and is restrained by no rule human or divine. If it be that the plaintiffs acquired any rights, which I am far from finding, the Legislature had the power to take them away. The prohibition “Thou shall not steal,” has no legal force upon the sovereign body. And there would be no necessity for compensation to be given.

On appeal, neither the Supreme Court of Canada nor the Judicial Committee of the Privy Council saw anything odd about this statement. On the contrary, both tribunals repeatedly reaffirmed the complete sovereignty of the legislatures within their respective spheres. Multiplying examples of these affirmations is easy, if tedious.

In the Judges Reference, then–Chief Justice Antonio Lamer confused the issue with his correct, but irrelevant, remark that the British (and following it, the Canadian) constitution has always contained a number of unwritten principles. That is perfectly true, but as Justice La Forest pointed out, the paramount such principle was that the courts must give effect to any statute validly passed by Parliament.

Other principles used by courts either in the interpretation of legislation or in the control of executive acts could be called constitutional. Principles that Parliament itself was obliged (but not by the courts!) to respect could be called constitutional. So, for example, it has long been an unwritten part of the British constitution that the executive can only act with specific legal authority, and that discretion granted to a public official is to be exercised in the public interest. In the 1950s, the Supreme Court of Canada used this principle to prevent Quebec Premier Maurice Duplessis from removing a liquor licence from a bar owner for political and religious reasons. But in the British system, as it has been understood since at least the 17th century, the final word on what the law is has resided with Parliament. Executive officials could be checked by the judiciary, but a properly enacted statute was final. And Canada, when it adopted a constitution “similar in principle to that of the United Kingdom,” also adopted a system of legislative supremacy.

Because of our federal system, the sovereignty of each legislature was limited by that of the other. Because of our colonial status, imperial statutes passed by the paramount sovereign British Parliament – such as the British North America Act itself – could be enforced when inconsistent with Dominion or provincial ones. Once we dropped that colonial status, we retained a number of these imperial statutes as our written constitution. But we never dropped the unwritten principle of legislative supremacy within the bounds of that constitution.

Chief Justice Lamer invoked the “implied bill of rights” jurisprudence under the First Constitution in which the Supreme Court of Canada took on conservative-authoritarian governments in mid-century Alberta and Quebec. In 1938, Chief Justice Lyman Duff held that Alberta legislation prohibiting press criticism of Social Credit economic policy was contrary to the “right of public discussion” implicit in a parliamentary system. He and two other judges held that it was within the federal sphere to preserve public discussion, and that the legislation was therefore unconstitutional, even though there was no explicit guarantee of free speech in the BNA Act (the rest of the court also struck down the legislation, but on a narrower basis). These arguments were taken up by various Supreme Court justices in relation to laws used against Communists and Jehovah’s Witnesses in Quebec in the 1950s – the laws were struck down, but not on these grounds – and a law passed by the British Columbia government of W.A.C. Bennett restricting the use of union dues acquired through the Rand formula for political purposes, which was upheld by the majority.

There are three things to note about this episode in Canadian constitutional history. First, the doctrine of an implied (unwritten) bill of rights never received majority support in any case. Second, with the sole exception of Justice Douglas Abbott, every supporter of the implied bill of rights considered it as a restriction on provincial jurisdiction only. Third, the whole doctrine was, in the eyes of most legal observers, definitively overruled by the Supreme Court in the Dupond v. Montreal decision in 1977. In that case, the majority, led by Justice Jean Beetz, dismissed a challenge to a municipal bylaw on the grounds that it interfered with a right of assembly, asserting clearly that the First Constitution did not protect that right, or those of speech, the press and religion, from legislation.

So by 1997, Chief Justice Lamer was laying claim to a doctrine that had never enjoyed the majority support of the Court, had been overruled 20 years previously and had never contemplated denying both levels of government the power to do things not inconsistent with a specific provision of the written constitution. Against that doctrine stood the principle of legislative supremacy asserted or assumed in thousands of cases over four centuries in the Anglo-Canadian tradition.

Whatever the merits of the proposition that a court could strike down a law for a reason other than its inconsistency with the written text of the constitution, it is no older than Maurice Vellacott’s tenure as MP for Saskatoon–Wanuskewin. Any honest debate on the merits of the change needs to start by recognizing the fact that it is a change.

Nuremberg and natural law: The revolution rationalized

Lawyers rightly value continuity and stability in the law, especially the fundamental law, and are therefore suspicious of court-initiated change. But if we take a broader view, we can hardly say that every constitutional innovation is a bad thing. Brown v. Board of Education, the U.S. Supreme Court decision forbidding racial segregation in schools, was not consistent with precedent, but we all now think it was the right decision. Granting that the Third Constitution is an innovation, is it a good innovation?

Some of the objections are obvious. Vesting the courts with a power to overturn a law enacted by the people’s representatives is extraordinary enough in a democracy; allowing them to do so without any textual warrant is potentially tyrannical. The information available to judges is limited to what the parties to a dispute provide to them, which is rarely enough to make sensible decisions about matters affecting large groups of people. Both judges and politicians can make mistakes, but while there is an obvious process for repealing bad laws, no such process exists for judicial decisions with negative consequences. When judicial decisions have fiscal effects – as both the Judges Reference and the Christie case have – the judges who say yes to an expenditure or no to a tax are not obliged to find the money elsewhere, as politicians are.

Christie illustrates the practical problems when courts engage in fiscal policy. The initial ruling created massive uncertainty within the legal profession in British Columbia about what taxes were to be collected. This was calmed when the Court of Appeal stayed the decision pending an appeal to the Supreme Court of Canada. But then the Court of Appeal exempted “low income persons” from this stay, without trying to define that term, let alone deal with the standard public policy issues of means-tested benefits.

The Second Constitution risked some of these problems. But in section 1, which allows governments to demonstrate that restrictions on rights are “reasonable limits prescribed by law,” and in section 33, which allows legislatures to override judicial decisions, the drafters of the Second Constitution provided for checks on judicial power. At least in its original conception, the 1982 Constitution was designed to keep some areas of public policy out of the judicial sphere. “Unwritten principles” may be invoked to bring them in – and they might not even be subject to constitutional amendment.

Further, unwritten principles are, of course, unwritten. Once “discovered,” they apply retroactively. So in addition to their undemocratic quality, they are also contrary to the rule-of-law values of promulgated, prospective laws. Enforced, as they must be, by a unitary judiciary, they potentially threaten federalism as well.

So what justifications were provided for this novel power, and are they sufficient to overcome the democratic deficit that the new constitution creates?

Neither Chief Justice McLachlin in her New Zealand address nor her predecessor, Chief Justice Lamer, in the Provincial Court Judges Reference gave practical reasons why Canadians should welcome this fundamental change to their constitution. Their statements in justification are academic, rather than grounded in the cases before them or in any crying social need. As already noted, Chief Justice Lamer’s statements in the Provincial Court Judges Reference were not based on any argument made to him. Lamer’s one reference to social need for “unwritten principles” was the claim that the Constitution Act, 1867 does not require that members of Parliament or of the provincial legislatures be elected. In fact, section 37 does just that. No other justification was given for rejecting hundreds of years of constitutional tradition. There was no discussion of the obvious tension with democratic principles. Remarkably, especially given the gravity of what the court was doing and the inordinate length of the decision, there was not a word of response to Justice La Forest’s fiery dissent.

To be fair, the Secession Reference did raise a more practical difficulty. The constitution of Canada is quite clear on how it is to be amended. A referendum victory for independence, no matter how overwhelming, has no legal standing: an amendment would require resolutions of the federal Parliament and, at minimum, the legislatures of seven provinces representing more than 50 per cent of the Canadian population.

However, it is arguably politically unacceptable to say this in Quebec. The Court’s solution – that a “clear majority on a clear question” in favour of secession would require the other governments to negotiate sovereignty – may be a sensible one politically. But it has no basis in the text. The invocation of “unwritten principles” was useful to the court in dispensing with the inconvenient written amending formula. Still, how the unwritten principles invoked – rule of law, federalism, democracy and respect for minorities – lead to the Court’s favoured process for secession remains a mystery to those trained in conventional logic. Many countries exhibit all four while having other procedures for lawful secession, or none at all.

I would concede some political wisdom in what the Court did in the Secession Reference. There was reason to tell English Canada that a referendum win for sovereignty would require it to negotiate, while telling Quebec that the question and majority should be clear. But the Court need not have claimed that these were legal requirements. Following the 1981 Patriation Reference, it could have, and should have, said that they were conventional in nature. In the earlier case, the Court refused to pretend that it could draw out the “right” amending formula by legal deduction. There is no reason to think this was any more possible 16 years later.

In short, neither of the two major Supreme Court of Canada cases that introduced the Third Constitution set out much in the way of reasons for it. If we seek a reasoned explanation of the need for the Third Constitution from a senior Canadian judge, therefore, we must turn to Chief Justice McLachlin’s address in New Zealand that so exercised Mr. Vellacott.

McLachlin started by asserting that the idea of unwritten constitutional principles is a contemporary form of “natural law,” a tradition going back to classical and medieval philosophy and recently defended by legal philosopher John Finnis. McLachlin cited Thomas Aquinas, but got him wrong on a number of fronts. In fact, natural law theory is of no assistance in justifying a judicial power to strike down ordinary statutes on the basis of unwritten norms. Aquinas specifically rejected the idea that the existence of principles of natural law meant that law need not be promulgated. He defined natural law as the self-evident principles of practical reason, which he believed were inscribed in every human mind by God. However, natural law is not “theological” as the Chief Justice thinks: for Aquinas, it is available to the unassisted human reason, including those outside the Christian faith. Natural legal principles are those accessible to (although not necessarily followed by) everyone, by virtue of human reason.1

Modern psychological and anthropological research suggests that the human mind does contain intuitive concepts of justice, and that these are used in legal and political debate. Some dispute the existence of such principles, arguing that all but the most tautological of legal principles are culturally specific. Whatever its scientific or philosophical merits, though, the natural law tradition does not resolve the constitutional question of who should have the final say in defining the positive law. As Aquinas noted, principles of justice self-evident to every human mind are not sufficient to govern the actual workings of a particular society. It may be a universal that there will be private property, but someone still has to create land title offices. All societies may ban murder or incest, but the mode of trial and the prescribed punishment vary.

For Aquinas, natural law provided that there must be someone with the legitimate authority to set out the positive law. That authority is bound by the natural law, but the binding is an internal one. No external body can regularly review the positive law so prescribed for compliance with natural law without becoming the ultimate authority itself. So the first major jurist in the English legal tradition, Henri de Bracton, asserts that the King is subject to the law, but at the same time that no mortal can question his interpretation.

If we look at our modern dispute, the same point arises. Natural law may be binding, but at least for some body in the polity its force must be internal rather than external. When interpreting constitutional or statutory texts, the Supreme Court of Canada is “bound by the law,” but if it gets the law “wrong,” no one else can overrule it, no matter how cogent their critique may be. The Supreme Court is bound internally, not externally. Similarly, in the British system, while Parliament is “bound” not just by universal natural law but by the fundamental customary constitution of the country, this binding too is internal. In a system with any human authority at all, this problem can only be transferred, not eliminated. If instead of the legislatures and Parliament being bound merely internally by natural or customary law, the courts review them, then the courts must be bound merely internally by natural law.

After her brief foray into natural law, McLachlin claims that judges can derive the “unwritten principles” from the “culture, values and history of the nation.” Here she finds a thicker brew than human universals can provide. But there is an obvious objection, one that Vellacott put voice to: how can judges, purposely isolated from the struggles of national life and accountable to no one but their own consciences, claim to know the culture, values and history of the nation better than its elected representatives? What discerning and prophetic abilities allow them to plumb and know the mind of the public?

McLachlin says that unwritten principles with constitutional force must be confined to those supported by a consensus of the relevant society. It is hard to see how anyone would argue with consensus values like racial, gender and religious equality, protection of life or bodily autonomy. But, of course, what we disagree about is the application of these principles and how much weight should be given to each “consensus value” when they conflict. We all abstractly support the protection of life and the right of individuals to make their own medical decisions, but both end-of-life and abortion controversies show that we disagree about how to apply these abstractions to the reality of what are often ethically troubling conflicts. The fact that a judge can claim that the principle under which he or she is acting has consensus support in the abstract hardly implies that the same is true of the judge’s application of the principle. Indeed, if there were a consensus in favour of the judge’s solution, then the legislature would surely have already enacted it. Resolution of tragic choices requires wisdom, not logic, and there is no reason to think judges are particularly endowed with wisdom.

In the course of her discussion of natural law principles, McLachlin adopts a tactic familiar to those who participate in Internet debates – she invokes the Nazis:

The real debate, it seems to me, is not about whether judges should ever be able to rely on basic norms to trump bad laws or state action. At least in some circumstances they must be able to do this. If a state were to pass a genocidal law, for example, I think it would clearly be the duty of the judges to deny the law’s validity on the grounds it offended the basic norm that states must not exterminate their people. If we agree on this – and I suspect most of us would – then the debate is not about whether judges should ever use unwritten constitutional norms, but rather about what norms may justify such action.

But if a state is engaging in genocide, it is not incumbent merely on judges to find ways to undermine the genocidal program, but on everyone. Frankly, it is difficult to believe that, in such a regime, it would be the judges of the highest court leading the resistance. Of course, they ought to do so, and no positivist theory of law would justify them if they collaborated. But this is not the basis of a theory of the proper constitutional locus for ultimate authority in a legitimate regime. It is the point, familiar in the Western tradition, that some degree of injustice makes the otherwise legitimate authority no longer worthy of obedience. McLachlin has hit on the right of revolution.

But the mainstream Western tradition has also held that revolution is justified only in extreme circumstances. In the words of David Hume:

But tho’ on some occasions, it may be justifiable, both in sound politics and morality, to resist supreme power, ’tis certain, that in the ordinary course of human affairs nothing can be more pernicious and criminal; and that besides the convulsions, which always attend revolutions, such a practice tends directly to the subversion of all government, and the causing an universal anarchy and confusion among mankind … The common rule requires submission; and ’tis only in cases of grievous tyranny and oppression, that the exception can take place.2

It simply does not follow from the possibility that a parliament should be resisted that there are “principles” which a court should apply to determine the appropriate moment of resistance. If there is an unelected official charged with preserving the democratic nature of the regime against a coup, it is the governor general, not the Supreme Court. But really, the only guarantee of continuing liberal democracy lies in the people themselves. Judicial review, on the basis of publicly promulgated and accepted constitutional principles, may reinforce the democratic nature of a political culture, or it may detract from it. But it is sheer hubris to imagine that the guarantee of a legitimate regime lies with the judges.

What are the consequences for Canada?

There is considerable cognitive dissonance when we move from the lofty abstractions put forward by the Chief Justice to the actual results of the Third Constitution so far. It would be obscene to compare the trimming of judicial pensions in PEI or the extension of the Social Services Tax to legal bills in British Columbia to the Holocaust.

Indeed, it may be time for a healthy dose of cynicism about the whole project. A public choice theorist, or a vulgar Marxist, might note that, so far, unwritten principles have only been invoked to increase the incomes of persons with law degrees. It is hard to know whether judicial compensation committees will lead to better provincial courts, but it is clear that they will increase court compensation. It is hard to conclude that the removal of sales tax from lawyers’ bills will provide an overall benefit to the poor (I rather doubt it), but there is no doubt that there is one less tax wedge affecting legal incomes.

It might properly be objected that the Third Constitution is the least of the worries of those concerned with judical overreach. The tobacco companies were unable to persuade the courts to extend the Third Constitution to prevent retroactive legislation affecting their civil liability, leading many in the cognoscenti to question the significance of the whole development. On the other hand, the inclusion of “substantive due process” in section 7 of the Charter of Rights and Freedoms against the clearly expressed intentions of its framers has had dramatic effects, most recently by judicializing the health care system (see Allan Blakeney’s comments in the Winter/Spring 2006 issue of Inroads).

The focus of debate about judicial power will be the Second Constitution, rather than the Third, for a while. But it is worth keeping an eye on both. The Chief Justice’s extrajudicial pronouncement last year implies that environmental policy will soon become a matter of constitutional litigation. Again, we should be cynical about how much this will benefit the environment: no OECD country provides more legal remedies in regard to the environment or the medical system than the United States, yet no OECD country has such an oversize environmental footprint or such an expensive and inadequate health system.

But whatever the consequences in policy outcomes (and I doubt they will be good), there can be no doubt that the Third Constitution reduces the scope for our democratic self-government. The further it goes, the more it will do so.

A pessimist might finally object that there is little that ordinary citizens, or even politicians, can do about this. Untethered by a text, courts can order what they want, and the elected branches can do nothing without triggering a constitutional crisis. But pessimism can be overblown. In the end, history suggests that courts are susceptible to public opinion.

But first there must be a public opinion. At this point, there is virtually no public awareness that the Third Constitution even exists. This can only change if non-lawyers – journalists, politicians and academics – enter the debate. Now is the time to start.


1 See Thomas Aquinas, Summa theologica, Art. 90, Q. 4; Art. 91, Q. 2; Art. 94, Q. 4.

2 David Hume, A Treatise of Human Nature, Bk. 3, X.

Gareth Morley is Legal Counsel in the British Columbia Ministry of Attorney General. The opinions expressed in this article are those of the author only, and do not reflect the views of the B.C. Ministry of Attorney General.