Constitutional Dialogue v2.0? Contentious Government Responses to the Supreme Court of Canada

—Jonathon Penney, Dalhousie University and University of Oxford

Constitutional “dialogue” used to be the fashion in Canadian legal circles. From the late 1990s  to mid-to-late 2000s, legal scholars engaged in contentious debates on the topic and the Supreme Court of Canada itself invoked the metaphor in a series of judgments to describe, and theorize, the relationship between the Court and legislatures in constitutional adjudication. The concept has since fallen out of favour in Court’s jurisprudence, though academics still analyze and debate it. But in light of some recent Supreme Court decisions, and the Government’s responses, dialogue theory may be set for a revival, though potentially in an even more contentious and confrontational form.

Setting the Stage for New Dialogue

Canadian constitutionalism has had an eventful winter and spring, to say the least. In a wide range of complex and contentious cases, the Supreme Court issued a number of landmark rulings, often with the Government on the losing end.  In December, the Supreme Court struck down Canada’s anti-prostitution laws in the Bedford case, a unanimous ruling, leaving the Government to draft new laws that would better respect the rights and interests of sex workers. In March, it issued its advisory opinion concerning the Prime Minister’s appointment of the Honourable Mr. Justice Marc Nadon to the Supreme Court of Canada, finding the appointment was void and, at least in part, constitutionalizing the judicial appointments process itself.  Another landmark advisory opinion was issued soon after in April, this time with Court dashing the Government’s hope to unilaterally reform the Senate. The Court ruled, among other things, that Senate reforms like using elections to appoint Senators was subject to the 7/50 rule, that is, it required approval of the House of Commons, the Senate, and seven provinces representing 50 per cent of the population.  Also in April, the Court struck down parts of the Conservative Government’s “tough on crime” legislative agenda, finding offenders could receive extra credit for time served before sentencing. The Supreme Court was not done, however. In its Spencer decision handed down in June, the Court found warrantless police requests to Internet Service Providers  (ISPs) for user data violated the Canadian Charter of Rights and Freedoms.

These decisions have been viewed as “major” losses for the Government, setting the stage for a number of important federal responses— via both legislative and executive action. Today, some of those responses have taken shape, with the government seemingly taking a hard line, foreshadowing some further contentious constitutional dialogue in the months and years ahead.

Rejecting Spencer’s Privacy Principles

The first notable federal response to these cases involves the Spencer decision which, as noted, found warrantless requests to ISPs to disclose subscriber information a section 8 Charter. This was an important privacy decision, that brought some clarity to the legally obscure and increasingly complex relationship between governments, private sector telecommunications providers, and citizen/subscriber rights. To be clear, Spencer was a nuanced decision, offering flexibility for law enforcement to carry out appropriate investigations and, in fact, the seriousness of the offences in Spencer— possessing and making available child pornography— led the Court to find the evidence unconstitutionally obtained by police admissible.Even so, Spencer still stands as a seminal ruling recognizing the threats to privacy posed by discrete data sets and unregulated sharing with important implications for government and private sector data sharing.

Yet, the Government nevertheless appears ready to forge ahead with Bill S-4, the Digital Privacy Act, a piece of legislation with some questionable provisions, especially in light of Spencer. Bill S-4, if passed as is, would add new provisions to Canada’s private sector privacy statute (the Personal Information Protection and Electronic Documents Act or PIPEDA) arguably making it permissible for Canadian companies to disclose subscriber information, without a warrant or court order, not only to police, but also other companies investigating mere breach of contract. This would seem to clearly run counter to the spirit of the Court’s decision in Spencer. To be clear, in dialogue theory Parliament only “speaks” when it finally legislates; and there is still time for Bill S-4 to be improved and these problematic provisions dropped.  But,as Michael Geist has argued, the Government has so far indicated it “rejects” Spencer’s privacy principles, and instead aims to expand warrantless disclosure of personal information and data. If right, and it seems so, that is a confrontational response from the Canadian Government.

A Narrow View of Bedford

A second noteworthy Government response to a loss at the Supreme Court involves the Court’s Bedford decision. In early June, after several months, the Minister of Justice introduced the Government’s new anti-prostitution laws Bill C-36, formulated in response to the Supreme Court’s ruling in December striking down existing prostitution laws. Essentially, the Court ruled in Bedford that previous criminal laws on prostitution infringed the section 7 Charter rights of prostitutes by depriving them of “security of the person in a manner that is not in accordance with the principles of fundamental justice”. The operation and impact of the laws had a significantly negative effect on the s. 7 rights of sex workers, a harm the Court found that was “grossly disproportionate” to the Government’s modest objective to “prevent public nuisance”. Yet, despite the Court’s obvious concerns for the rights and interests of sex workers— and ensuring laws do not operate to endanger them— Bill C-36 re-criminalizes sex workers in ways that, as Emmett MacFarlane has observed, makes it difficult for them to safely carry on their trade, raising some of the same concerns that led the Supreme Court to invalidate existing anti-prostitution laws in Bedford. If enacted as is, it will be challenged and MacFarlane doubts the Government “will like the outcome”. Michael Plaxton has recently argued that we should not pre-judge the constitutionality of Bill C-36 but at the same time admits that it is “reasonable” to question its constitutionality in light of Bedford. At best, the Government has taken a narrow view on the scope of Bedford, leaving itself a difficult road ahead to defend the legislation; at worst, it has ignored key principles in Bedford in order to take a hard line on prostitution.

Questioning Nadon and the Chief Justice

Even more controversial was the “dialogue” between the Federal Government and the Supreme Court in the weeks after the Court’s advisory opinion in Nadon. The Court held that section 6 of the Supreme Court Act required that any Quebec judicial appointments to the Court must be chosen from the Quebec Court of Appeal or Superior Court or among current members of the Quebec bar. Despite initially indicating that the Government would “respect” the Court’s decision, government sources cited in media stories alleged Chief Justice of the Supreme Court Beverly McLachlin had “lobbied” against Justice Marc Nadon, leading to an highly unusual public exchange between the Chief Justice and the Government. The exchange included a statement issued by the Prime Minister insinuating the Chief Justice had acted inappropriately, though these suggestions were later debunked. Still, the statement, which implicitly questioned the Chief Justice’s personal integrity, was unprecedented in Canadian legal history, leading the Canadian Bar Association and international experts to call on the Government to apologize and withdraw the allegations. With a legal challenge now filed against the Government’s subsequent appointment of Justice Robert Mainville from the Federal Court of Appeal to the Quebec Court of Appeal— which could be interpreted as the Government attempting to manoeuvre around the Nadon decision— another confrontation between the Supreme Court and Government on the issue seems inevitable.

A Contentious New “Dialogue”?

When constitutional dialogue first emerged in Canadian legal scholarship, the theory described a cooperative endeavour between two co-equal branches; in practice, however, it sometimes led to tense confrontations between Parliament and the Courts, as with the Mills and Sauvé cases, wherein either the Government (Mills) or the Supreme Court (Sauvé) staked a confrontational constitutional position more authoritative than dialogic. Yet, even then, a level of deference and decorum as between the two branches was maintained, and constitutional crisis avoided, despite heated disagreements about important questions.

The Government’s “replies” to this recent series of important, at times landmark, Supreme Court of Canada rulings foreshadow a potentially new, even more contentious form of constitutional dialogue in the months and years ahead as challenges to these federal responses make their way through the courts. Whether this will ultimately revive the dialogic metaphor in constitutional jurisprudence is an interesting question, but less important than the broader concern that any constitutional dialogue, however heated or contentious, leads to settlement and stability rather than confrontation and crisis.

Suggested Citation: Jonathon Penney, Constitutional Dialogue v2.0? Contentious Government Responses to the Supreme Court of Canada, Int’l J. Const. L. Blog, Aug. 13, 2014, available at: http://www.iconnectblog.com/2014/08/constitutional-dialogue-v2-0-contentious-government-responses-to-the-supreme-court-of-canada