The Supreme Court Goes Graphical

The Supreme Court of Canada plays a special role in our constitutional democracy, but it’s often one that is not fully understood by the public, or even the legal profession.

Over 20 years ago, Lorraine E. Weinrib stated in “The Supreme Court of Canada in the Age of Rights,”

Democracy does not trump the other principles; nor is it the
raison d’etre of the Constitution. One can sum up the Court’s analysis with the following statement from an Israeli judgment elucidating the Israel’s new rights-protecting system, which is, in part, modelled on Canada’s Charter:

“true” democracy recognizes the power of the constitution – fruit of the constituent authority – to entrench the fundamental human rights and the basic values of the system against the power of the majority. Such limitation of majority rule does not impair democracy but constitutes its full realization.”

Respect for the democratic function within the postwar framework of the constitutional state is respect for constitutional democracy, not for legislative sovereignty based on majoritarian process. Temporarily elected governments are not sovereign. Rather, they are subject to the Constitution, which both mandates the protection of specific rights and imposes duties of compliance with the rule of law and with other constitutional principles. Interpretation of the Charter that resists this transformation undermines the coherence not only of our system of rights-protection but of our entire constitutional structure, both written and unwritten. Indeed, it undermines the coherence of every aspect of public and private law that lies in the hands of the judiciary. In deferring to the ordinary democratic process out of respect for the supposed sovereignty of the legislature, judges risk a greater transgression of the constitutional order. They risk usurping the constituent authority, which has now expressly subordinated the ordinary legislative function to a system of rights-protection. They also expose themselves to the very critique that their deference is designed to avoid – that they are not adjudicating as independent actors, according to established legal rules and principles, but entering into the merits of the impugned law, choosing (in Justice Scalia’s words) to “impede modernity”, and/or preserving a preferred structure of legal authority.

Whether the Court ultimately achieved its role in our democracy as Weinrib envisioned, through Judges Remuneration Reference and the Secession
Reference, is questionable. However, the dynamics she describes of the Court’s limited role in policy-making, coherence of institutional roles, and political opposition, are still highly relevant to this day,

The premiers would have defeated the Charter project but for one feature of the conflict. The people of Canada, especially those
who, in an increasingly multicultural and pluralist society, had failed to command equal concern and respect from their governments, made clear their desire for a country responsive to the imperative of the age of rights. They did not put their trust in the majoritarian processes of Canadian legislatures. They put their trust in the judiciary. They attributed the past performance of the courts, in repudiating the “implied bill of rights” and in rendering the statutory Canadian Bill of Rights ineffective, to the inadequacies of the legal system, not to the judges. The people of Canada therefore demanded constitutional restructuring of that legal system. They understood that the only way to constrain state power to the norms of the postwar world was to create a constitution that gave rights enforceable priority over ordinary political preferences.

In order for the public to maintain this support for the judiciary and its role in our democracy, the courts themselves must be transparent, accessible and comprehensible. This is especially true for the highest court, which receives the greatest amount of attention from the public, on issues of national importance.

In 2015, the Court created a Twitter account, which releases updates on decisions in real-time. In 2018, the Court started releasing plain language summaries of decisions, to make them more accessible to the media and members of the public.

In 2021, the Court has released a decision in R. v. Albashir, which includes a graphic. This might seem like a small step, but accompanying text-heavy decisions with some graphical depictions may go a long way to making the law more accessible.

The decision involves an accused who was charged with offences arising from an escort operation, following the suspension of the validity of s. 212(1)(j) of the Criminal Code in Canada (Attorney General) v. Bedford. That decision failed to indicate whether the declaration would apply retroactively following the period of suspension, or would be purely prospectively. The Court in Albashir was therefore left with determining the application of these laws to the accused.

The majority dismissed the appeal, upholding the Court of Appeal’s decision that the suspension never came into effect because the remedial legislation pre-empted any retroactive effect. The dissent indicated that the constitutional defect could not be remedied by remedial legislation, and the counts against the accused should therefore be quashed.

The dissent, written by Justice Rowe, relied extensively on the characterization of how laws are treated under Section 52(1) of the Constitution Act, 1982, once there is a constitutional declaration of invalidity. He cited Canada (Attorney General) v. Hislop at para 53, and R. v. Big M Drug Mart Ltd. at pp 313-314, to explain that accused individuals argue against convictions by pointing to the unconstitutionality of the laws they are charged with. The invalidity of the law is not limited to its declaration, but also its operation, making retroactivity the default position.

However, there are also exceptions to the retroactive approach, with prospective declarations and suspended declarations. This was explained by Justice Rowe in graphic format as follows,

[85] When a declaration comes into effect (immediate or suspended) and what the temporal effect of the declaration is once it does come into effect (retroactive or prospective) are two separate questions. Thus, there are four possible temporal effects of a declaration of constitutional invalidity:

a) An immediate retroactive declaration of invalidity renders the law invalid from the date of the declaration, back to the date the law was enacted (or to the date the constitutional provision under which it is invalid came into force, whichever came after).

b) suspended retroactive declaration of invalidity does the same thing, but not until the suspension period expires: the law is treated as valid for the period of the suspension, but when the suspension period expires, it is as though the law had always been invalid.

c) An immediate prospective declaration of invalidity renders a law invalid from the date of the declaration forward into the future, but not back into the past. When there is a prospective declaration of invalidity, the law was and remains valid from the date it was enacted until the date of the prospective declaration.

d) prospective declaration of invalidity with a suspension, often called a “transition period”, works in a similar way to an immediate prospective declaration, except that the declaration becomes effective only when the transition period ends.

Justice Rowe emphasized the implications of these forms of declaration, as suspended declarations have the potential to pose a threat to the very idea of constitutional supremacy by allowing an unconstitutional state of affair to exist. Declarations of invalidity should therefore be deliberate and explicit to avoid confusion.

While the plain language summary doesn’t include Justice Rowe’s graphics, these summaries generally only focus on the majority decision regardless. The use of graphics to accompany a decision may certainly enhance the accessibility of the Court’s decisions.

The use of graphics in a decision may also result in greater ambiguity and misunderstanding, especially by subsequent courts attempting to interpret a decision, much as the Court was doing here with Bedford. While novel and perhaps uncontroversial in their use in this case, it will be interesting to note how graphics continue to be used in the future, and how they are treated by those interpreting those graphics accompanying any decision.

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