The Wondrous World of Creating Constitutional Law

Senator Mike Duffy is suing the Senate for the pay he lost when he was suspended from the Senate. His lawsuit raises the constitutional issue of parliamentary immunity, on the basis of which Justice Sally Gomery of the Ontario Superior Court dismissed his claim. Duffy’s appeal is based on the loss of Senate immunity if it has engaged in wrongdoing, as the Senate did, he says, in taking its direction from the executive (Prime Minister Stephen Harper). (For this story, see The National Post).

For no particular reason whatsoever, this case made me think about how so much of constitutional jurisprudence is the result of people — sometimes scoundrals, sometimes angels — seeking to avoid the consequences of the law. The constitutional claim is incidental. Yet, in other cases, the constitutional issue raised is the core point, directed very specifically at resolving or advancing significant constitutional matters.

When I taught first year constitutional law, I began the course by providing the students a list of situations that had led to major constitutional cases. I wanted them to appreciate that no matter how significant the constitution and constitutional law are, the cases that comprise the law stem frequently from people charged with crimes or civil offences seeking “to get out from under” their problems by raising a constitutional challenge, whether based on division of powers, an infringement of the Canadian Charter of Rights and Freedoms or other constitutional provisions. And of course the constitution and constitutional law are ways by which people assert their rights against the state or against other private individuals when legislation is involved. My points were constitutional law is not esoteric, as it seemed to so many of them, and we sometimes forget how close the constitution is to the fates of “ordinary people”.

Constitutional law isn’t all about the momentous conceptional frameworks governing our political, social and economic systems, although it is that. These cases can be admirable (admittedly, not always) to read (and I expect challenging and stimulating to write) and they do tell us something about ourselves, but one wonders how helpful they might be when put to the test. For example, the Secession Reference is a wonderful compilation of abstract notions and it addresses probably the most fundamental question about the potential future of Canada. But it’s never been applied: how well would it stand up in practice? With some luck, we’ll never know.

There are plenty of the “big” constitutional cases, but I’ll refer to only one other in addition to the Secession Reference: the Persons Case (Edwards v. Canada (Attorney General). It in fact decided a quite narrow question, whether women were “persons” for the purpose of being called to the Senate under section 24 of the Constitution Act, 1867 (then the BNA Act, 1867), something that in itself affected few women. It’s now celebrated as a crucial case in recognizing the equality of women. Perhaps it’s unfair to wonder whether we women would still not be persons if it had been left up to the Supreme Court of Canada (see Reference re meaning of the word “Persons” in s.24 of British North America Act).

We continue to page homage to the Persons Case today not only for its central point, but for the principle of interpretation that got the Privy Council there, that of the constitution as a “living tree”, which has played a powerful role in Canada’s constitutional jurisprudence. This principle was also a step along the road to Canada’s independence, “so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs”. (Privy Council, p.107)

There are plenty of these showy flora, that begin from rather large rhizomes, but more often, the cases that ultimately form the body of constitutional jurisprudence develop from what might be considered a small bulb or a seed. These can take different forms. One way is for an individual to create a fact situation that permits recourse to an important constitutional issue. Another way is simply a tool for a party to win its case, something that takes it off the hook, or gives it the upper hand over the other party, but by the time it reaches the Supreme Court of Canada, is ripe to take its place amid the pantheon of constitutional jurisprudence and earning a place in constitutional texts.

I refer to just two cases of the first type, for example committing an offence in order to bring a constitutional issue to the fore.

Sometimes the seeds seem minor indeed when taken out of context. When Georges Forest challenged a parking ticket for $5 and costs because it was only in English, he intended to turn that everyday event into a challenge to Manitoba’s Official Language Act, contending it was unconstitutional because it abrogated rights in the The Manitoba Act, 1870, which was part of the constitution.

Forest faced hurdles in reaching his goal, as Freedman J., speaking for the Manitoba Court of Appeal, explained at para.1:

Georges Forest’s Odyssey towards an authoritative judgment dealing with the validity or invalidity of the Official Language Act … is now approaching an intermediate goal. En route he has had to move with care between a present-day Scylla and Charyb-dis, these being sometimes of his own making, oftener erected in his course by others. His prolonged effort in an important cause lawfully merits the judgment of this Court, and I would not deny it to him.

The Supreme Court held the Official Language Act to be unconstitutional. However, it took a Reference to finally address the issue and express the Court’s opinion that all English-language only Manitoba laws were invalid (along with the ramifications of the laws). Because this had enormous consequences, the SCC suspended the declaration of invalidity (the period of suspension decided subsequently after submissions of the parties), leading to the paradoxical situation in which the illegal laws were permitted to stand (for a period) in order to ensure the rule of law. The SCC discussed this commonsense solution at length in the Manitoba Language Reference, but has become commonplace when legislation requires amending or replacing. But in this iteration (since there had been several previous decisions finding the Manitoba Official Languages Act unconstitutional), it all began with a parking ticket.

More recently, the “beer case”, a case attracting more public interest than we often see, illustrates how deliberate action, albeit a relatively minor type, is destined to add to constitutional interpretation, even when it fails. Gerard Comeau purchased beer in Quebec and crossed into New Brunswick with it; the amount of beer exceeded that allowed under New Brunswick’s Liquor Control Act. The RCMP stopped him and issued a fine of $240, costs and the victim surcharge levy. Comeau contended that the Liquor Control Act contravened section 121 of the Constitution Act, 1867, which appears to require free trade between the provinces. Comeau was not as fortunate as Forest, however, since he not only had to pay a victim surcharge levy, but also the SCC held that restricting cross-border trade is not the primary purpose the Liquor Control Act, but incidental to it. This decision put a damper on those who thought section 121 has not reached its full potential.

Much of the law recognizing Indigenous rights over the last years, since the advent of section 35 of the Constitution Act, 1982 (“The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”), has arisen from defences to charges. For example, Ronald Sparrow was charged under the Fisheries Act of fishing with a drfit net longer than that permitted by the Musqueam Indian Band’s food fishing licence. The case provided the SCC with the opportunity to develop an elaborate process of interpretation of section 35, although this did not result in Sparrow’s acquittal (or confirmation of conviction), since there was insufficient evidence to decide the case; rather the SCC ordered a new trial. However, the SCC’s two-stage test for determining whether section 35 had been infringed became a crucial foundation for subsequent cases in which different contexts were considered as part of the reconciliation process (prior to the fundamental reconciliation project arising from the Report of the Truth and Reconcilation Commission of Canada and its “calls to action”).

In the other category of cases, the constitution is analogous to any other means that a party rely on; the party is not particularly interested in the outcome except as it affects them, but this does not mean that the decision’s pertinence is restricted to those facts only.

This is what happened when the Toronto Electric Commissioners had a dispute with some of its employees about the conditions of work. The dispute was governed by the federal Industrial Disputes Investigation Act, which applied to public utilitities, among other industries, and under which the Minister of Labour appointed a Board of Conciliation. The Commissioners argued the Act was ultra vires the federal government. The Privy Council agreed and, rejecting grounds under which the legislation might be validly enacted by the federal government, decided that the subject matter was within the provincial authority over property and civil rights, section 92(13) of the Constitution Act, 1867.

Thus was born the new and expansive presumption that labour relations fall under provincial authority and only exceptionally under federal authority, not because the Commissioners thought in a perfectly configured confederation labour relations most appropriately was addressed by the province, but because they wanted to avoid the consquence of the Industrial Disputes Investigation Act. (See Toronto Electric Commissioners v. Snider. )Some constitutional commentators have argued, on the other hand, the Privy Council did have a predisposition to local deliberations, thereby upending the apparent intention of the constitutional drafters. Here again, we see the Privy Council or at least certain members, in the course of deciding the specific issue, elaborating on the meaning of other constitutional powers (such as the federal trade and commerce power).

When General Motors of Canada challenged the constitutional validity of civil actions permitted by the federal Combines Investigation Act (now the Competition Act), it wasn’t concerned about the integrity of the distribution of powers, but with defending itself against a civil action by City National Leasing. In the end, General Motors did not benefit from its efforts, but its desire to avoid City National Leasing’s civil suit provided an opportunity for the Supreme Court to amplify the doctrine of “necessarily incidental” when assessing particular provisions of a larger statute.

Finally on this point, while cases under the Canadian Charter of Rights and Freedoms are diverse, involving assertions of rights against government or against private actors (through challenges to legislation), one of the most important cases, Oakes, arose in a criminal case in which the accused claimed the reverse onus provision in the Narcotic Control Act contravened section 11(d) of the Charter (“Any person charged with an offence has the right…to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”). David Oakes had been charged with trafficking in a narcotic, but was found to be in possession of a narcotic; however, the Act then required him to show that he was not trafficking in order not to be convicted of trafficking.

Once the Supreme Court of Canada determined that the reverse onus did infringe section 11(d), it had to decide whether the infringement was justified under section 1 of the Charter. It developed a somewhat complicated test that involved two parts, with the second part having three components, and found that the reverse onus provision did not pass muster, thus alleviating Oakes himself of the more onerous conviction. Thus the Oakes test, although developed in a criminal case, is applied regardless of the Charter provision at issue, criminal or otherwise.

Of course, in many of these cases, the party using the constitution to achieve its own ends (and why not?) might win the battle, but may well lose the war, since if it faces a similar problem again, it will face valid legislation, assuming the other jurisdiction enacted it. But the principles established in what may have been a narrow case will be applied again and again as part of the interpretation of the constitution, often subject to evolution in subsequent cases. The bulwarks of constitutional jurisprudence usually do not care who was responsible for the beginning steps; it is only the end that matters.

The Constitution Acts, 1867 and 1982 are malleable instruments: they are fundamental in shaping the parameters of our society (and in turn are influenced by prevalent principles governing the society), but they also provide a vehicle for individuals against the state and in their disputes with other private individuals. The jurisprudence in all these cases, regardless of origin, have the potential for influence far beyond their immediate context. Sometimes that is intended, but sometimes individuals (or corporations or other organizations) start a process with no intention of contributing to the body of constitutional law. It is the alchemy of the constitution that it can serve all these goals.