Myth of the Sacred : The Charter, the Courts, and the Politics of the Constitution in Canada [1 ed.] 9780773570573, 9780773524347

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© McGill-Queen’s University Press 2002 isbn 0-7735-2434-7 (cloth) isbn 0-7735-2435-5 (paper) Legal deposit fourth quarter 2002 Bibliothèque nationale du Québec

Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free. This book has been published with the help of a grant from the Humanities and Social Sciences Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Book Publishing Industry Development Program (bpidp) for our publishing activities.

National Library of Canada Cataloguing in Publication Data Main entry under title: The myth of the sacred: the charter, the courts and the politics of the constitution in Canada / edited by Patrick James, Donald E. Abelson, Michael Lusztig Includes bibliographical references. isbn 0-7735-2434-7 (cloth) isbn 0-7735-2435-5 (paper) 1. Political questions and judicial power–Canada. 2. Civil rights–Canada. 3. Canada. Canadian Charter of Rights and Freedoms. I. James, Patrick, 1957– II. Abelson, Donald E. III. Lusztig, Michael, 1962– ke4381.5.m98 2002

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The Myth of the Sacred

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The Myth of the Sacred The Charter, the Courts, and the Politics of the Constitution of Canada e d i te d by patri ck j am e s, d o n al d e . a b e l so n , an d mi ch ae l l u s z t ig

McGill-Queen’s University Press Montreal & Kingston · London · Ithaca

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© McGill-Queen’s University Press 2002 isbn 0-7735-2434-7 Legal deposit fourth quarter 2002 Bibliothèque nationale du Québec

Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free. This book has been published with the help of a grant from the Humanities and Social Sciences Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Book Publishing Industry Development Program (bpidp) for our publishing activities.

National Library of Canada Cataloguing in Publication Data Main entry under title: The myth of the sacred: the charter, the courts and the politics of the constitution in Canada / edited by Patrick James, Donald E. Abelson, Michael Lusztig Includes bibliographical references. isbn 0-7735-2434-7 1. Political questions and judicial power–Canada. 2. Civil rights–Canada. 3. Canada. Canadian Charter of Rights and Freedoms. I. James, Patrick, 1957– II. Abelson, Donald E. III. Lusztig, Michael, 1962– ke4381.5.m98 2002

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Dedicated to Benjamin and Patrick

Patrick James

Stephanie, Rebecca, and Seth

Donald Abelson

Chrissy

Michael Lusztig

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Contents

Acknowledgments Contributors

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Introduction: The Myth of the Sacred in the Canadian Constitutional Order 3 patrick james, donald e. abelson, and michael lusztig part 0ne

judicial review and group status

1 Judicial Rationalism and the Therapeutic Constitution: The Supreme Court’s Reconstruction of Equality and Democratic Process under the Charter of Rights and Freedoms 17 anthony a. peacock 2 Judicial Supervision of the Political Process: Canadian and American Responses to Homosexual Rights Challenges 67 mark e. r ush 3 The Supreme Court of Canada and the Complexity of Judicial Activism 97 james b. kelly

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part two the constitution and rational choice theory 4 Canada’s Three Constitutions: Protecting, Overturning, and Reversing the Status Quo 125 tom flanagan 5 Strategic Behaviour and the Canadian Charter of Rights and Freedoms 147 christopher p. manfredi Part Three Non-Governmental Players in the Constitutional Arena 6 Think Tanks, Public Policy, and Constitutional Politics in Canada 171 donald e. abelson 7 Cooperation and Conflict: Group Activity in R. v. Keegstra 189 shannon ishiyama smithey Part Four The Culture of ConstitutionMaking in Canada 8 Deeper and Deeper: Deep Diversity, Federalism, and Redistributive Politics in Canada 207 Michael Lusztig 9 Is a “True” Multination Federation the Cure for Our Ills? 219 Hudson Meadwell Bibliography 239

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Acknowledgments

Without the assistance of a number of people and organizations, this book would not be possible. We would like to thank Ian Brodie, Christine Carberry, and Alex Tuckness for helpful comments in the preparation of the manuscript. Philip Cercone of McGill-Queen’s University Press was extremely supportive in helping to guide this project to completion. The book could not have been completed without a Canadian Embassy Grant, which permitted the contributors to meet and discuss the project. The Association for Canadian Studies in the United States provided the forum for the contributors to present the initial drafts of their papers. Finally, we also thank Daniel Merriman and Gina van den Burg for research assistance and Darlene Brace, Barb Marvick, Cindy Stuve, and Joyce Wray for word processing and other assistance in the preparation of the manuscript.

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Contributors

donald e. abelson is professor of political science at the University of Western Ontario. He received his PhD from Queen’s University and has been a member of the Department of Political Science at Western since 1993. He is the author of Do Think Tanks Matter? Assessing the Impact of Public Policy Institutes (2002) and American Think Tanks and Their Role in U.S. Foreign Policy (1996). His articles on various aspects of domestic and foreign policy have appeared in several journals, including the Canadian Journal of Political Science, Canadian Public Administration, Global Society, and the Presidential Studies Quarterly. tom flanagan is professor of political science at the University of Calgary. He received his PhD from Duke University and has taught political science at the University of Calgary since 1968. He is the author of many publications on Canadian politics and history. His most recent book is First Nations? Second Thoughts (2000). He was elected to the Royal Society of Canada in 1996. patrick james is professor of political science at the University of Missouri, Columbia. He is the author of eight books and over eighty other scholarly publications. Among his honours and awards are the Louise Dyer Peace Fellowship at the Hoover Institution of Stanford University, the Milton R. Merrill Chair in Political Science at Utah State University, the Lady Davis Professorship of International Relations at the Hebrew University of Jerusalem, and the Thomas O. Enders Professorship in Canadian Studies at the University of Calgary.

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James is editor of the International Studies Quarterly and serves on the governing councils of the International Studies Association and the Association for Canadian Studies in the United States. james b. kelly is assistant professor of political science at Brock University. He received his PhD from McGill University in 1999 and joined the faculty of political science at Brock University in 2000. His areas of academic specialization are Canadian politics, federalism, public law, and comparative judicial systems. He has authored or coauthored articles in Canadian Public Administration, the Canadian Journal of Political Science, the Canadian Journal of Law and Society, the Osgoode Hall Law Journal, and the Saskatchewan Law Review. Currently he is completing a book on judicial review in Canada. m i c h a e l l u s z t i g is associate professor of political science at Southern Methodist University. He received his PhD from McGill University in 1994. Specializing in both international trade and comparative constitutional politics, he is author of Risking Free Trade (1996). His second book, The Limits of Rent-Seeking, will be completed in 2002. He has also authored or co-authored a number of articles in academic journals such as World Politics, Comparative Politics, Publius, the Canadian Journal of Political Science, International Interactions, the Review of International Political Economy, and Nations and Nationalism. christopher p. manfredi is professor and chair of the Department of Political Science at McGill University. He received his PhD in government from the Claremont Graduate University (California) in 1987 and has been a member of the Department of Political Science at McGill since 1988. His academic specializations are Canadian politics, public law, and comparative legal systems. He is the author of Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (2d ed., 2000) and The Supreme Court and Juvenile Justice (1997). His research on constitutional and legal issues has been published in World Politics, the Law & Society Review, the Review of Politics, the Osgoode Hall Law Journal, the Canadian Journal of Political Science, Canadian Public Administration, the American Journal of Comparative Law, and the Canadian Journal of Law and Society. He has also served as a consultant to the Canadian Department of Justice and acted as an expert witness in constitutional litigation. hudson meadwell is associate professor of political science at McGill University. He writes primarily on nations and nationalism, and

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his work has appeared in a number of journals in the field of comparative politics. anthony a. peacock is assistant professor of political science at Utah State University and a member of the Bar of Ontario. He is the editor of Rethinking the Constitution: Perspectives on Canadian Constitutional Reform, Interpretation, and Theory (1996) and Affirmative Action and Representation: Shaw v. Reno and the Future of Voting Rights (1997). mark e. r ush is professor of politics at Washington and Lee University in Lexington, Virginia. He received his PhD from Johns Hopkins and his ab from Harvard. He teaches courses on constitutional law, American politics, comparative politics, and elections. He is the author of numerous articles and books on voting, redistricting, and Canadian and American constitutional law. His most recent work, Fair and Effective Representation?, co-authored with Richard Engstrom, was published in 2001. shannon ishiyama smithey is assistant professor of justice studies at Kent State University. She holds a ba and an ma from Southern Methodist University and a PhD (1994) from Ohio State. She has published articles in a variety of journals on American, Canadian, and comparative judicial politics, focusing on the expansion of judicial power, the relationship between courts and publics, and attitudes toward crime and punishment. She currently has a book contract with Peter Lange Press for a book about the strategic assertion of judicial power in six political systems (Canada, the United States, Israel, Germany, South Africa, and the European Union).

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Preface

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The Myth of the Sacred

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2 The Myth of the Sacred

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3 Introduction

Introduction: The Myth of the Sacred in the Canadian Constitutional Order PATR IC K JA MES, D O NA L D F. A BE L SO N, and MIC HAEL LUSZT I G

A popular belief, perhaps even an ontology, associates Canadian constitutional construction with an overarching objective to create a society that is more “fair.” Nowhere is this concept more manifest than in the Canadian Charter of Rights and Freedoms. Born of the Trudeauvian objective to construct the “just society,” of which a codified bill of rights was always a part, the Charter has been popularly conceived as an institution that rises above politics. The sense is, in other words, that politics takes place in the legislative arena, whereas justice is the domain of the constitutional. A myth of the sacred, then, informs the constitutional dialogue as it pertains to judicial interpretation of the Charter. So entrenched has this perception become that the legislative override provision (section 33, popularly known as the “notwithstanding clause”) has become vilified as a taint on the constitutional process. Former prime minister Brian Mulroney, for example, denounced section 33 as the “major fatal flaw of 1981,” suggesting that any constitution “that does not protect the inalienable and imprescriptible rights of individual Canadians is not worth the paper it is written on” (quoted in Manfredi 1993, 202). Similarly, Quebec cabinet minister Clifford Lincoln’s resignation speech, after Quebec invoked the notwithstanding clause in the aftermath of the Supreme Court of Canada’s Sign Law decision, claimed (to great popular acclaim) that “a right, is a right, is a right” (Cohen 1990, 200). Indeed, Manfredi seems to be on fairly solid ground when he suggests that Quebec’s use of section 33 after the Sign Law decision has rendered the clause functionally obsolete. In

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other words, it now is seen as illegitimate for an elected legislature to assert its will over an unelected judiciary (Clark 1999).1 The latest major study of the Court pronounces the Charter era as one of “constitutional supremacy verging on judicial supremacy” (Morton and Knopff 2000). What are the implications of this myth of the sacred? Answering that question is the task of this book. Collectively, we arrive at two answers. First, in what has come to be known as the micro-constitutional arena, the courts are engaged in strategic behaviour that serves primarily the ends of institutional (and hence personal) self-aggrandizement. Justice, from this perspective, is but a subordinate consideration. Second, with respect to formal constitutional amendments, the socalled mega-constitutional theatre, interest groups – which putatively seek justice by attempting to level the playing field – actually engage in attempts to slant the plane in their favour, through either pursuit of new rights or redefinition of existing ones.2 More precisely, to use the terms that we define in a moment, these groups disguise redistributive activities as efficient ones. A right may be a right, may be a right, according to Clifford Lincoln, but the analysis here is more in line with Graglia’s (1992) dictum that “a right is a constitutionally protected interest, an interest immune from change through the ordinary political process.” Rights, we collectively argue, serve the interests of those who receive them, as well as those who bestow them. To take our analysis to its logical conclusion, the Canadian public is being hoodwinked; lurking behind the camouflage of justice is a game of redistributive politics that is just as dirty, narrow, and self-interested as the game played in the legislative arena. This conclusion can be reached regardless of whether an observer might favour the claims put forward by any one or more of the groups involved in the process. Much of the theoretical literature that informs constitutional politics in Canada may be divided into two rough classifications – political philosophy and, increasingly, rational choice theory. These categories are not, of course, exhaustive; nor, manifestly, are they mutually exclusive. However, historically these approaches have spoken to generally different audiences. We address both approaches in this book, and the overarching arguments can be made in ways that are familiar to adherents of both schools. Specifically, in terms of traditional political philosophy, the specious commitment to pursuit of justice might be described as the “Rawlsian paradox” in Canada. From the rational choice perspective, as hinted at above, the issue reduces to one of redistribution versus efficiency. We discuss each of these approaches in turn.

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t h e r awls ian parad ox One of the great works of philosophy in the last century, with continuing relevance today, is A Theory of Justice (1971) by John Rawls.3 This exposition, which created a vocabulary for contractarian liberalism in subsequent decades, is almost without peer among modern works with respect to its influence on philosophical thinking. Among the most important ideas in Rawls’s frame of reference are justice as fairness, the original position, the veil of ignorance, and the difference principle. The purpose of introducing Rawls into the discussion of Canadian constitutional politics is to show how his ideas, when misapplied, can wreak havoc. Thus a brief exegesis of his justice as fairness, with reference to the other concepts also noted above, is presented at this point to facilitate its use in the Canadian context. Rawls departs from a utilitarian philosophy by asking what people would want if they did not know their station in society. By creating an “original position,” in which those deciding on the nature of government and society will have a dialogue behind a “veil of ignorance,” he sees a natural convergence among participants on the idea of justice as fairness. This is realized through application of the “difference principle.” Since no person deliberating behind the veil of ignorance knows what role he or she will occupy in society once it is set in motion, each is expected to seek improvement in the position of those who will be worst off. The difference principle asserts that, in order for society to be just and fair, it must do everything feasible to improve the lot of those who are most in need. Since that could end up being anyone, the original position is expected to bring out a concern for maximizing society’s ‘floor’ with respect to social welfare. What, then, is the Rawlsian paradox? The paradox refers to the use of Rawlsian reasoning intended for the original position when the key conditions, referring in particular to the veil of ignorance, are violated. Rawlsian logic breaks down when it is used by those who already know their lot in society.4 It is possible to identify at least three aspects of the paradox – the meaning of justice, measurement, and feasibility – that seem especially relevant to the evolution of constitutional politics in Canada. Each is summarized in turn. Perhaps the most fundamental problem concerns the meaning of fairness in a society with more than a century of history behind it. Consider the Charter in the context of the Rawlsian statement of “ideal justice” as described by Michelman (1989, 320): “The crucial assumption of ideal theory is that the principles of justice (whatever ones are under examination) are generally and explicitly acknowledged, accepted and on the whole applied in the society. It is on that assumption

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that the implications and consequences of the principles are worked out and appraised.” The Charter is, to say the least, problematic from that point of view. In particular, its designation of particular groups for recognition – perhaps for elevation from downtrodden status, in a Rawlsian frame of reference – is anything but a matter of consensus in Canadian society. These groups are not simply noted “X” and “Y,” for example, where it is understood behind the veil of ignorance that they are certain to rank lower than the rest of society on an agreed-upon index of well-being. Instead, X and Y have real names and track records in Canada’s bitter redistributive politics during the Charter era (see both Lusztig and Flanagan in this volume). Efforts by women’s groups, Aboriginals, and others who either have been granted or continue to seek special constitutional status inspire reactions ranging from applause to contempt. In post-Charlottetown Canada, no consensus appears within sight on any number of group-related conflicts over the identification of who “deserves” a favourable redistribution. Instead, the court cases accumulate, and if anything, fundamental disagreements have intensified (see Peacock, Rush, Smithey, Kelly, and Manfredi in this volume). Another fundamental problem concerns the measurement of social welfare. Rawls (1971) uses ideal conditions to generate effectively other-regarding behaviour from assumed rational agents. When people behind the veil of ignorance agree that society should make an effort to maximize the welfare of those who are identified as worst off, that desire can be traced to an attempt to protect themselves in the possible scenarios where they end up among the unfortunate. Thus, in practice, other- and self-regarding choices end up being merged together. When political history is already underway, as in the case of Canada in the era of the Charter and beyond, what does it mean to say “worst off”? Is it possible to identify a single dimension of welfare, such as pecuniary wealth, and grant that pride of place? The assumption of a single good might work in a philosophical argument (e.g., Michelman 1989, 337), but not in a functioning society. For the sake of argument, let us suspend disbelief about relying on a single commodity for the measurement of welfare and begin from this somewhat easier point of departure. Things still end up in a dead end. If some group is to be designated as “worst off,” then presumably its members must be rather tightly distributed around a low and compelling average level of endowment for the commodity of interest. Put differently, what if a group ranks last on average, but at least some of its members are “outliers,” with endowments significantly above the mean and even in excess of people at the low end of one or more other groups that are,

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on average, better off? For such reasons, the measurement of welfare distribution becomes problematic, whether or not multiple dimensions must be considered. This problem is more than just one of abstraction. At the current time of writing, bitter conflict continues in the Atlantic provinces about special fishing privileges for Aboriginals. Non-Aboriginal fishermen do not welcome seeing their fishing rights restricted in order that income be redistributed toward Aboriginals. Those who favour Aboriginal claims, in this instance and in others, automatically assume that they are helping those “worst off.” But surely the practical difficulties of measurement of both average levels and within-group distribution come to the forefront in a case such as the one just mentioned. Does anyone have command of authoritative data on income distribution or, for that matter, any reasonable range of indicators that would “prove” who, if anyone, should receive a particular special privilege in resolution of the fishing dispute? Even if somehow such information could be obtained, how much of an advantage should be granted to one group in relation to others? These questions continue to go unanswered, and not only in the context of the example just noted.5 Another problem concerns feasibility. In the abstract world of the original position, any means might be deemed worthwhile in order to raise the position of those most disadvantaged. When this idea is translated into a functioning economy, however, the situation is altered in a dramatic way. Redistribution of resources always requires administration, which is costly. How much should be allocated to nonproductive activities in order to make things better for those at the bottom? For example, assume that a society has three groups of approximately equal size, and the average level of income enjoyed by the groups is 10, 9 and 3 units, respectively. Would it be “just” for the economy to be reorganized so that everyone receives precisely 3.01 units? The answer might be “yes” if that exact value happened to be the threshold for survival. What about a regime where everyone somehow could receive 11 units? This question would seem to answer itself; so perhaps it is just a matter of exploring examples and finding out inductively what works. This idea, however, makes no sense in practice. Real interest groups are made up of individuals who do not possess identical incomes. Tinkering with an economy in the presumed interest of those who are most disadvantaged might even have the effect of making virtually everyone, including the intended beneficiaries, worse off than before. Macroeconomics continues to challenge the understanding of the best specialists in academe and government, so there is no reason to think that a “Rawlsian economic plan” could be implemented and achieve

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its intended goal without considerable risk. In the case of Canada, at least some impressionistic evidence exists that the misplaced Rawlsian mindset, most notably present in the Charter, is having harmful side effects in any number of areas (see James and Lusztig 2001). The current health care crisis might be cited as one example. Is society better off if, in order to ensure strict equality, the average level of service sinks low enough to become dangerous? While no attempt will be made at this point to provide systematic data on this or other possible illustrations, intuition supports the idea of placing some limitations on the pursuit of egalitarianism when the level that might be achieved in one or more areas is inadequate across the board. Rawls, of course, is no more to blame for the Rawlsian paradox than Marx would be for the excesses committed in the name of Marxism.6 Rawls (1971) created a brilliant normative theory of justice that, when transported to the specific context of Canadian constitutional politics, creates a mindset which is nothing short of pernicious. Interest groups wrap themselves in the banner of justice and pursue self-interest in the name of making life better for those who are “worst off.” They also have a habit of appropriating for themselves the right to decide what being worst off happens to mean. Not surprisingly, advocates for one group or another compete for status – and all in the name of fairness. Given the fact that the Charter would seem beyond repeal, the Rawlsian paradox is likely to remain well entrenched in Canadian constitutional discourse. A dialogue intended for the original position takes place instead through largely judicially focused rent-seeking by interest groups. As will become apparent from the next section, the implications of this outcome for the long-term health of the body politic are far from favourable.

ef fic iency v ers us re d ist r ibu t io n The Rawlsian paradox may be restated in language more familiar to rational choice theorists. The ideal-typical concepts of efficiency and redistribution come from public choice theory, as it pertains to the construction of institutions that, axiomatically, determine the distribution of public resources.7 If we consider any mega-constitutional arrangement a de facto set of institutions, and all constitutional jurisprudence to be an interpretive modification of those institutions, this dichotomy provides insightful analytical purchase. It also helps to illustrate the redistributive nature of both the micro- and megaconstitutional arenas in Canada. Efficient institutions are those that conform most closely to what we might call justice. Tsebelis (1990, 104) defines efficient institutions as

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those that “improve (with respect to the status quo) the condition of all (or almost all) individuals or groups in a society.” More formally, efficient institutions produce policy outcomes closer to the Pareto frontier (Tsebelis 1990, 110). Efficiency, then, can be associated with the construction of a constitutional settlement that serves no interest save that of justice. It is to the institutional world what the free market is to the economic: the institutional structure is as neutral as possible with regard to the allocation or redistribution of benefits. An efficient institutional structure, to relate the concept to the preceding discussion, is what we would expect to emerge from behind the veil of ignorance. Redistributive institutions, by contrast, are “those that improve the conditions of one group in society at the expense of another” (Tsebelis 1990, 104). They serve, in other words, narrow, rather than general, ends. To maintain the economic analogy, redistributive institutions are politically akin to state intervention in the economy. The philosophical analysis also holds: redistributive institutions are what we would expect when the veil of ignorance breaks down. To a large extent in Canada, various components of the constitution operate as private goods that distribute resources in the direction of those groups most capable of wresting control of the bargaining process or who have succeeded in using the judicial system to their advantage. Such propriety over provisions of the constitution is what Cairns (1990) means when he talks about “constitutional minoritarianism.” Further and obviously, this has a socially disintegrative effect on the country. A large number of highly committed actors are engaged in what is effectively a one-shot prisoner’s dilemma game. There is not a great incentive for these groups to form coalitions with other groups. Rather, both the micro- and mega-constitutional arenas are adversarial. Put differently, the minimum winning litigative coalition is a single group or even an individual.8 Redistributive institutions also provide niches for judges to serve as interest brokers. If politics is about who gets what where and when, then redistributive institutions are by definition political. If the constitution features redistributive institutions, then the constitutional process is political. And since courts, by virtue of their broad interpretive powers, serve as the gatekeepers to constitutional resources, it is tough to get around the conclusion that they are political institutions as well. This latter perception is reinforced by the fact that Canadian justices in recent years have moved beyond the traditional powers of judicial review and have sought to rewrite statutes. That is, rather than striking down laws which, save for certain unconstitutional provisions, meet with their favour, they mandate amendments

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to existing legislation. Again, encroaching on what is the province of the legislative branch serves as further evidence of the redistributive role of the courts. The Rawlsian paradox, then – the idea that, under the guise of universal fairness, justice-seekers actually promote an agenda of redistribution over efficiency – constitutes the central theme of this book. We explore this idea and its implications in a number of ways, from the traditions of both political philosophy and rational choice theory. We look at the role of the courts, which have skilfully sought to expand their own sphere of political influence. We also examine the role of justice-seekers, many of whom have aligned themselves with judicial policy-makers. Finally, we explore the very foundation of Canada’s constitutional underpinnings, examining the relationship between individually and collectively based bases of representation. The book is divided into four sections. In the first, entitled “Judicial Review and Group Status,” three scholars examine how the Canadian courts have in recent years used the Charter of Rights and Freedoms to play an increasingly active role in the political process. Rather than simply interpreting laws to remedy injustices committed against disadvantaged groups, they claim that the courts have taken advantage of several recent cases, including Vriend v. Alberta (1998) and M. v. H. (1999), to pass judgment on the democratic process itself. Anthony Peacock pursues that theme in the first chapter in this section. Among other things, he demonstrates how the Supreme Court’s emphasis on human dignity as a constitutional mandate and its contention that the Charter allows the judiciary to scrutinize the “democratic process” provide ample evidence that the Court has moved from protecting minority rights to pursuing its own political interests. As Peacock argues, “judicial review under the Supreme Court’s profligate Charter jurisprudence has altered the liberal democratic equation in Canada. With the aim of achieving substantive equality and removing social deviancy from the political landscape, democracy under the Charter has become therapy and the Court a rehabilitative clinic.” Mark Rush provides further ammunition for Peacock’s argument in his chapter on judicial supervision of the political process in Canada and the United States. In examining several recent cases involving homosexual rights challenges, including Romer v. Evans, he maintains that, while the Supreme Courts in both countries have singled out homosexuals as the prototypical “discrete and insular minority” for whom the courts ought to be especially solicitous, they have set forth radically different visions of political fairness. According to Rush, while the American courts have demonstrated a willingness to tolerate

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majority rule and the passage of zero-sum partisan legislation, the Canadian courts, distrustful of legislative majorities, have sought to substitute their own vision of fairness for that of any government not sympathetic to the demands of political minorities. The result, he claims, is that Canadian courts have in effect hijacked the political process for their own purposes. In the last chapter in this section, James Kelly puts the two previous chapters in a broader theoretical context by considering the relationship between judicial review and liberal constitutionalism in a modern democratic state. A central question that emerges from his study is, Does non-interpretivism – the practice whereby judicial actors interpret the constitution based on original understanding – ultimately weaken the judiciary as an effective check on majoritarian politics? Using the Canadian Charter of Rights and Freedoms as a case study, Kelly sheds light on why scholars continue to debate over whether non-interpretivisim or judicial activism – the practice whereby judges consider larger social, political, and philosophical questions in interpreting the Constitution – enhances or undermines the democratic character of the state. The second section of the book, “The Constitution and Rational Choice Theory,” introduces readers to an approach that is gaining considerable exposure in the literature on constitutional politics in Canada – rational choice theory. In the first of two chapters in this section, Tom Flanagan applies the McKelvey chaos theorem, which emphasizes the importance of structure-induced equilibrium in political decision-making, to Canada’s three constitutions: the original regime of checks and balances established in 1867; the practice of executive dominance that evolved in the twentieth century; and the new system of dual power ushered in by the Constitution Act of 1982, which made judicial power a formidable competitor to that of the executive. In applying spatial models originally designed to analyze separation-of-powers and committee-legislature games in the United States to Canada’s three constitutions, Flanagan demonstrates how this approach can produce promising results for scholars studying the interaction between the courts and executives in Canada. In the section’s second chapter, Christopher Manfredi also relies on elements of rational choice theory to study key players in constitutional affairs. In his analysis of strategic behaviour and judicial decision-making, he explores how changes in institutional constraints affect judicial behaviour. More specifically, he uses a strategic model of judicial decision-making to analyze the distribution of votes in two decisions by the Supreme Court of Canada involving the morally contentious issues of abortion and sexual orientation. Although these two

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decisions (Morgentaler (2) [1988]; Vriend [1998]) generated superficially similar outcomes, they differed markedly with respect to the Court’s willingness to impose future policy constraints on legislative actors. If judges are political actors in the fullest sense, and if strategic behaviour is a universal characteristic of decision-making by institutionally constrained political actors, then the strategic model should yield some interesting insights into these particular instances of judicial decision-making. Part 3 of the book, “Non-Governmental Players in the Constitutional Arena,” shifts from a discussion of the role of the Court in constitutional affairs to a broader assessment of the involvement of various non-governmental organizations in supporting or opposing the government’s efforts to promote constitutional change. The section begins with a chapter by Donald Abelson on the involvement of think tanks during a series of constitutional conferences organized by the federal government in the winter of 1992. In what was dubbed the “Renewal of Canada” initiative, five think tanks were contracted to help generate public discussion on a series of constitutional reform measures recommended by the Mulroney government. In examining why the federal government enlisted the support of think tanks and why these so-called independent and credible public policy organizations were apparently willing to sacrifice their autonomy in the process, Abelson argues that, rather than acting as policy experts, the think tanks served as policy instruments of the government. In so doing, they unintentionally raised serious questions regarding the role and integrity of think tanks in the policy-making process. In the second chapter of this section, Shannon Smithey takes an even closer look at how different groups have sought to influence the outcome of Charter decisions. But rather than assuming that Charter supporters are a unified group, she argues that divisions exist even among those groups who actively seek to uphold the Charter. Smithey contends that much can be gained by distinguishing between liberal and post-liberal proponents of the Charter. While liberals advocate limitations on state power to preserve freedom, post-liberals prefer the state to intervene to counteract societal inequality. Though liberal and post-liberal groups sometimes work together, they tend to oppose one another when liberty and equality rights clash. This phenomenon occurred, according to Smithey, when the Supreme Court of Canada was asked to decide, in R. v. Keegstra (1990), whether laws punishing “hate speech” were acceptable under the Charter of Rights and Freedoms. The case pitted libertarian arguments about freedom of speech against egalitarian arguments in support of government censorship. By exploring the arguments made by the interveners on both sides of

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the case, Smithey illustrates the ways that groups use courts and constitutional interpretation to promote policy outcomes that comport with their broader ideological commitments and the expectations of their members. Finally, in part 4, “The Culture of Constitution-Making in Canada,” two observers of the Canadian constitutional process explore some of the many complex and intriguing social, political, and philosophical debates underlying constitutional construction in Canada. In the first chapter in this section, Michael Lusztig examines how, in pursuit of the codification of communal rights in the constitution, individuals and groups undermine not only the public interest but also many of the objectives they ostensibly seek to advance. To understand better why this phenomenon occurs, Lusztig draws on the concept of “deep diversity,” and he argues that conservative commentators on the constitution have been too quick to dismiss it as a solution to the constitutional impasse. Rather, he suggests that deep diversity, despite its appeal to constitutional social engineers, logically reduces to old-style federalism. In the second chapter, Hudson Meadwell shifts the focus from how individuals and groups try to use the process of constitutional construction to advance their own interests to the broader question of how to resolve ongoing political disputes over Canada’s constitutional blueprint. He contends that Will Kymlicka’s solution for resolving the constitutional impasse – the creation of a multination federation – would, if anything, further exacerbate existing tensions between Quebec and the rest of Canada. As Meadwell points out, Kymlicka draws us out of one impasse, only to land us in another. Meadwell’s critical assessment of Kymlicka’s analysis raises several interesting questions about the relationship between liberalism and multinationalism, and thus about the desirability of a multinational federation. In the pages that follow, students of Canadian politics will be introduced to a number of competing theories and visions about the nature and process of constitution-making in Canada. It is our hope that the various chapters will stimulate interest and debate among those who read, digest, and interpret the authors’ findings.

not es 1 Fletcher and Howe (2000, 11), moreover, find that, by a margin of more than 2 to 1, Canadians believe that it should be the courts and not the legislature which should have the final say when disagreements arise as to the constitutionality of Charter-related issues.

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2 For more on this type of activity, see Manfredi and Lusztig 1998. 3 The literature generated by Rawls 1971 is vast. The current exposition will rely on Michelman 1989, Kukuthas and Pettit 1990, and Rawls 1993 as the works most relevant to the questions at hand. 4 Kukuthas and Pettit (1990, 130) identify three stages beyond the choice of principles of justice in the original position: “the parties move to a constitutional convention establishing the rights of citizens, then to a legislative stage where the justice of laws and policies are considered, and finally to the stage of judicial interpretation of particular cases.” These three stages can be expected to produce convergent thinking and desirable results only if the principles have been worked out beforehand by those who are unbiased by their knowledge of later developments. 5 Employment equity, an example with more general relevance, could be assessed in much the same way. The basic question of whether to assess group membership through objective or subjective designation creates difficulty from the outset. 6 Indeed, Rawls (1993, 233–4, 251) tries to sort out the problematic relationship involving the courts and “public reason” in a very careful way. This exposition is devoid of the extremism that characterizes redistributive politics as practised in Canadian post-Charter jurisprudence. 7 We borrow the terms from Tsebelis (1990, 104–15). 8 This point is subject to some qualification. Groups might have some incentive to move beyond the minimum winning litigative coalition in that a larger coalition might seem more legitimate in the eyes of the court. See Smithey in this volume and Brodie 1996.

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part o n e Judicial Review and Group Status

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1 Judicial Rationalism and the Therapeutic Constitution: The Supreme Court’s Reconstruction of Equality and Democratic Process under the Charter of Rights and Freedoms1 A NTHONY A . PEA CO CK

In the late 1990s the Supreme Court of Canada found itself embroiled in a host of controversial decisions. At the heart of the disputes was the Court’s apparent partiality for certain political constituencies. In Delgamuukw v. British Columbia (1997) and R. v. Marshall (1999), the Court generously construed aboriginal land claim and treaty rights. The Court’s construction in Marshall was so generous that the public outcry sparked by the decision was apparently sufficient to spur the Court to take the rare step of issuing a subsequent ruling clarifying that the treaty rights granted did not extend as far as many might have believed (R. v. Marshall, 533). As controversial as these decisions were, two contemporaneous cases decided under section 15 of the Charter may have inflamed public hostility even more. In Vriend v. Alberta (1998), a unanimous Court declared the Alberta Individual Rights Protection Act2 unconstitutional because it failed to provide for “sexual orientation” as a prohibited ground of discrimination. The majority remedied this deficiency by reading sexual orientation into the irpa, precisely what the Alberta government had refused to do, despite explicitly considering the matter on six separate occasions between 1986 and 1992 (O’Byrne and McGinnis 1996, 893). One year after Vriend, in M. v. H. (1999), the Court declared that the failure of the province of Ontario to include same-sex couples in its definition of “spouse” under section 29

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of the Family Law Act similarly contravened section 15(1) of the Charter and could not be saved by section 1. Section 29 deemed couples that had lived together for at least three years or in relationships of some permanence to be spouses. The Ontario government had argued that the section was intended to deal with inequalities between heterosexual couples, not homosexual couples. It also claimed that incremental progress had been made throughout the history of the fla toward making the act more inclusive. These arguments were to no avail. Not unexpectedly, Vriend and M. v. H. generated significant controversy, flaming popular demands that the Alberta and Ontario governments invoke their prerogatives under section 33 of the Charter and override the Supreme Court’s decisions. Although neither government took this dramatic step, the controversy surrounding the cases highlighted the highly political nature of the Supreme Court’s Charter jurisprudence generally and equality rights jurisprudence in particular. Ever since the Court’s seminal exposition of section 15(1) in Andrews v. Law Society of British Columbia (1989), the Court had developed an expanding list of judicial doctrines that provided it with increasing power to strike down legislation it found constitutionally infirm. Homosexual rights were exemplary in this regard (179–83). In Egan v. Canada (1995), the Court determined that sexual orientation was an analogous ground of discrimination under its “enumerated or analogous grounds” approach to section 15, developed in Andrews. The justices made this finding despite the Charter’s architects having specifically excluded sexual orientation from the language of section 15 in the face of numerous requests to include it.3 In Vriend and M. v. H. the Court went a step further, utilizing its “underinclusive” doctrine to impugn both the irpa and the fla on grounds that inadequate protections and benefits had been provided to homosexuals. In Vriend the Court utilized its broad remedial powers of “reading in” to rewrite the irpa. In M. v. H. the Court declared section 29 of no force and effect, and suspended application of the declaration for six months to allow the Ontario legislature time to assess the implications of the ruling. This was a good idea: M. v. H. had the potential to affect more laws than all the Court’s previous Charter jurisprudence put together (Morton and Knopff 2000, 14).4 The Court in Vriend added that the Charter allowed the judiciary to scrutinize the “democratic process” to ensure that the interests of minorities were given sufficient consideration in the legislative arena. The implication was that minority plaintiffs now had two potential causes of action under the Charter: one claiming a denial of constitutional rights, the other claiming a denial of fair democratic process.

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Following Vriend and M. v. H., the question initially raised after Egan – How far would the Court extend constitutional rights to homosexuals? – was reduced to a single issue: Would the Court apply the M. v. H. ruling to married couples as well as unmarried couples? For advocates of gay rights, this outcome would have consummated the logic of the Court’s equality rights jurisprudence, extending to homosexuals, as one advocacy group put it, “the same range of relationship options as heterosexuals.”5 For the Court’s critics, extending M. v. H. to married couples would merely have brought to completion the judicial re-engineering of the Canadian family. In this chapter I explore the Court’s section 15 jurisprudence with a view to illustrating how it reflects an emergent judicial rationalism. This rationalism, employed by the Court in its section 15 and related section 1 analyses, assumes a knowledge of moral, social, and political phenomena that the Court cannot, with its limited resources and capacities, possess (Hayek 1960, 22–4). I mean by the term “judicial rationalism” what Friedrich Hayek roughly defined “constructivist rationalism” to mean: a legal and political vision that assumes that all social institutions are or ought to be the product of deliberate design and that government – here the judiciary – possesses the knowledge necessary to achieve that design (Hayek 1973, 5, 8-34). In the case of section 15, the rationalist doctrines developed under the section have transformed the provision from a formal or legal guarantee focusing on discrimination and individuals into a substantive equal rights objective focusing on disadvantage and groups. The Court’s rationalist reconstruction of section 15 reflects a theoretical shift of concern from discriminatory conduct to independent principles of distributive justice (Blumstein 1983, 635), on the one hand, and from discriminatory treatment to mandates of moral neutrality regarding contentious social issues, on the other. At a deeper level, it reflects a transformation in the meaning of equality and democratic process in Canadian constitutionalism. Adopting a class-based analysis of contemporary society and an accompanying redistributive model of political and legal power that is more akin to Marxism or deconstructionism than it is to pluralism or liberal constitutionalism, the Court has undermined the notions of reason and limited government at the heart of the Canadian liberal democratic order. In addition, it has undermined the presuppositions that form the foundation of judicial review and a charter of rights. How precisely these developments have occurred and what exactly they mean for Canadian law and politics will be discussed below. The first two sections of the chapter examine Andrews and its reconstruction of section 15. The next four sections consider a number of

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doctrines – rationalist doctrines – that the Court has developed in its section 15 analyses, problems of evidence relating to these, the Court’s decision in Vriend, and how the expansion of the meaning of discrimination in Canadian law has contributed to the increasing control that the judiciary has exercised over Canadian social and political life. In addition, the Court’s construction of section 32 of the Charter and the role of legal academic opinion, as exemplified in Vriend, is also investigated. The seventh section reviews in detail the democratic process argument developed in Vriend. Both it and the following section examine the problems presented by substantive equality and judicial rationalism more generally. The penultimate section of the chapter looks at a new development in section 15 law, the emergence of a therapeutic ethos, another element complementing the Court’s judicial rationalism. The therapeutic ethos is the animating feature of a broader social phenomenon that scholars have referred to as “the therapeutic state.” I adapt this discussion of the therapeutic state to the Supreme Court’s equality rights jurisprudence. Under the pretext of interpreting section 15, the Court has created a therapeutic constitution. The implications of this section, as well as of the preceding sections, are reviewed in a concluding section. The overarching theme of this chapter is that the Court’s judicial rationalism in constitutional equality rights law is antithetical to the principles and spirit of liberal constitutionalism. Liberal constitutionalism presupposes a firm distinction between the public and the private world. It separates the public and the private not merely because it seeks to preserve a domain free from government regulation but also because government is presumed to lack the knowledge necessary to regulate that private domain save in rare circumstances. This lack is especially true of the judicial branch of government. My argument is that the Court’s section 15 analyses and Justice Iacobucci’s democratic process theory, advanced in his discussion of section 1 in Vriend, are based on an erroneous intellectualism. Ironically, in the name of achieving constitutional equality, the Court has created an inequality of political power. Substituting its own judgment for that of the legislative branches of government, as it did in Vriend and M. v. H., it has displaced what F.L. Morton and Rainer Knopff have referred to as “government by discussion” by government by coercion (Morton and Knopff 2000, 157–66). The consequence has been to inflate hostility on issues that only extremists on each side of the homosexual rights debate cared to resolve. The majority of Albertans and Ontarians, not to mention their governments, were apparently content to leave these contentious issues alone.6 Judicial rationalism, with its demands for orthodoxy, facilitates

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immoderate politics, the antithesis of the liberal constitutional regime. In the case of section 15 law, the origin of judicial rationalism is Andrews v. Law Society of British Columbia.

t h e supreme court c o n st r u e s sec t ion 1 5 (1 ) Andrews represented the Supreme Court’s first comprehensive interpretation of section 15(1). The Court, speaking through Justice McIntyre, determined that the section applied both to those grounds enumerated and to grounds analogous to those named. Since many of the problems with section 15(1) jurisprudence originate in Andrews, it is worth taking a close look at the Court’s reasoning, which canvassed both the history and the purposes of the Charter’s equality rights guarantees. In his reasons for judgment, Justice McIntyre began by arguing that section 15 did not guarantee an abstract or general equality, but applied to the formation and application of the law; the Charter did not apply to private interactions between individuals (Andrews v. Law Society of British Columbia, 163–4 and 171). This said, section 15(1) was not restricted to mere formal equality or the equal treatment of individuals similarly situated. Legal history in both Canada and the United States had revealed the inadequacy of this approach to equality rights jurisprudence. The U.S. Supreme Court’s “separate but equal” doctrine7 and several cases decided under the Canadian Bill of Rights presented notorious examples of the application of formal equality. In light of this history, what mattered under section 15(1) was not whether a law operated equally upon those to whom it applied – formal equality.8 Rather, the focus of the section was the impact that a law had on an individual or a group – substantive equality.9 The key issue was not whether any legal distinctions between individuals and groups could be established. Rather, it was which distinctions contravened section 15(1) and which did not (Andrews v. Law Society of British Columbia, 164–71). To answer this question, Justice McIntyre adopted the purposive approach to Charter construction set out in R. v. Big M Drug Mart Ltd. (1985). What were the specific purposes of section 15(1) and what interests was it intended to protect? Recognizing that the concept of equality was elusive and, more than any other provision of the Charter, lacked clear definition (Andrews v. Law Society of British Columbia, 164), McIntyre nevertheless was able to determine that section 15(1) embraced two broad objectives. First, it was intended to overcome the shortcomings of the Canadian Bill of Rights. Two cases in particular exemplified what the Charter was intended to overcome.

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In Attorney General of Canada v. Lavell (1974), the Supreme Court had upheld a provision of the Indian Act depriving women but not men of membership in their Native band. Justice Ritchie had suggested that had section 1(b) of the Bill of Rights, which guaranteed equality before the law, extended to equality under the law, the plaintiff might have succeeded.10 In Bliss v. Attorney General of Canada (1979), a pregnant woman had been denied unemployment benefits because she was of a class – “pregnant persons” – which could only apply to women. Justice Ritchie, again writing for the Court in a challenge to the federal legislation, determined that the “benefits” received under law were not subject to equality rights review under the Bill of Rights. “Any inequality between the sexes in this area is not created by legislation but by nature” (Bliss, 422). Ritchie’s opinions infuriated feminists and others, causing groups such as the National Advisory Council on the Status of Women to lobby Parliament to include in the Charter language that would overcome these deficiencies in Bill of Rights jurisprudence. These groups were successful. Section 15(1) accordingly allowed for broad equality rights protection, providing for both equality “before and under the law” and the right to “equal protection and equal benefit of the law” (Andrews v. Law Society of British Columbia, 169–71; see also Hogg 1997, 1231–4, 1240–1; Knopff and Flanagan 1990, 42–3; Romanow, Whyte, and Leeson 1984, 253–5). In addition to overcoming the shortcomings of the Canadian Bill of Rights, the second purpose of section 15(1), according to McIntyre, was to incorporate the principles of human rights legislation as these had been developed in recent case law (see Ontario Human Rights Commission and O’Malley v. Simpson-Sears Ltd.; Bhinder v. Canadian National Railway Co.; and Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), also referred to as Action Travail des Femmes). Along with his finding that section 15(1) protected against both enumerated and analogous grounds of discrimination, McIntyre’s finding that the expansive concept of discrimination developed in human rights law applied to discrimination under section 15(1) was perhaps the most significant ruling in Andrews. What it meant was that section 15(1) applied to systemic discrimination11 in addition to direct discrimination. Discriminatory intent was not a necessary condition for establishing a section 15(1) violation. As McIntyre had framed the issue, following the example of human rights law, section 15 was intended to be primarily remedial in nature, not punitive. Whether the adverse effects of a legislative distinction on a protected group were intended or not was irrelevant to the issue of discrimination under section 15.

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This interpretation had important implications, as McIntyre recognized: there were numerous legislative distinctions that would have adverse effects on protected groups. Given the open-ended language of section 15(1), if any legislative distinction, adverse or otherwise, was considered actionable, this might eviscerate the section. As one lower court justice had pointed out, if every legislative distinction constituted a violation of fundamental rights, it would force legislatures to run the gauntlet of section 1 with only passing reference to section 15. Even if actionable claims were reduced solely to those having adverse effects, they would still result in a cascade of litigation challenging legislative classifications not intended to be covered by the Charter. In order to limit the coverage of section 15(1), McIntyre therefore restricted its application to enumerated and analogous grounds of discrimination. He also required proof of actual harm or prejudice to the claimant by the legislative distinction being challenged (Andrews v. Law Society of British Columbia, 170–83; see also Knopff and Flanagan 1990, 220). Andrews thus created a legal standard that recognized the necessity for a “broad and generous” construction of section 15(1) (Andrews v. Law Society of British Columbia, 175). At the same time, it narrowed the application of section 15 in such a way that it did not erase the legal significance of the section and force courts to immediately proceed to a section 1 analysis.

a nd th e rec o n st r u c t io n o f sec t ion 1 5

ANDREWS

As much as McIntyre may have attempted to constrain the reach of section 15, the Court’s adoption of substantive equality as the purpose of the section effectively undermined this objective. By shifting the focus of concern from acts of direct discrimination to the adverse effects of legislative activity independently of any concern with intent, McIntyre effectively moved attention in section 15 analysis away from prospective decision-making that might have unintended consequences to retrospective decision-making that would involve judges weighing the desirability or undesirability, benefits and burdens, of these unintended consequences. The focus of concern under section 15 shifted from undesirable human actions to the undesirable consequences of actions. Those who intentionally discriminated would be treated in the same way as those who did not – a violation of the equal treatment that was arguably the very purpose of section 15 (Knopff and Flanagan 1990, 29, 146–7). The presumption underlying McIntyre’s construction was that

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courts had not only the authority but also the capacity to assess which adverse consequences were constitutional and which were not. Operating in lieu of legislative bodies, the presumption was that courts possessed the knowledge necessary to reassess and redistribute the benefits and burdens of law. Section 15 had been transformed from a provision focusing on discrimination to one focusing on disadvantage and redistributive justice. The seeds of judicial rationalism had been planted. They would subsequently grow as the Court began to cultivate the many subtle implications of Andrews in later cases. But was Andrews based on a confusion between two distinct equality rights initiatives, both referenced in section 15? Had it misconstrued section 15? The principles underlying anti-discrimination policy are not the same as those underlying policies intended to remedy disadvantage. Anti-discrimination policy is aimed at eliminating irrelevant considerations in decision-making as well as irrational prejudice. Policies aimed at eliminating disadvantage seek to redistribute income or opportunities or other tangible goods. In the same way that providing remedies for adverse effects or disproportionate outcomes will not prevent or overcome discriminatory treatment or attitudes, so preventing or overcoming discrimination will not ameliorate conditions of disadvantage (Blumstein 1983, 635). In addition, equal opportunity will translate into inequality of results because people – and they include groups – exercise opportunities unequally. To achieve equality of results or substantive equality will mean that courts will have to treat individuals unequally or impose formal inequality in constitutional law. We have already seen examples of this in a number of section 15 cases.12 The combining of prohibitions on discrimination with the objective of overcoming disadvantage, common in section 15 jurisprudence since Andrews,13 arguably contravenes the plain language of the Charter. Section 15(1) prohibits “discrimination” and refers to “every individual.” It makes no reference to “disadvantage” or to “groups.” Section 15(2), by contrast, makes no reference to “discrimination” but does make reference to “disadvantage” and to “groups” in addition to individuals. Section 15(1) thus explicitly excludes “disadvantage,” while section 15(2) specifically includes it. The reference to disadvantage and to groups and the absence of discrimination in section 15(2) is not accidental: section 15(2) is intended to protect affirmativeaction programs. Affirmative action is a group-based policy; its index of reference is groups, not individuals, even though individuals may be the designated beneficiaries of the programs. The original purpose of affirmative action may have been to remedy discrimination through

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the dissemination of information about employment and other opportunities, but that objective has long since been eclipsed by a different objective, which measures opportunities in terms of equal group representation or results.14 The political and moral legitimacy of affirmative action originally depended on a rhetoric of “discrimination” (Knopff 1985, 102–4) and a pathology of shame or guilt (Steele 1998; Mansfield Jr 1991, 84–97). In the absence of invidious discrimination against legally protected groups, however, advocates of affirmative action have had to adopt additional defences for the policy. Dale Gibson provides a case in point. According to Gibson, affirmative action is a “no-fault” initiative, like workers’ compensation and no-fault automobile insurance. It is not addressed primarily, if at all, to discrimination. In Gibson’s words, affirmative action is “a remedy that focuses on need, rather than causation.” It provides disadvantaged groups with a means of catching up to average Canadian standards, regardless of who, if anyone, may be responsible for the disadvantage of the group concerned (Gibson 1985, 132). The primary aim of affirmative action is not the elimination of prejudice or the promotion of discussion but to provide “a supplement to anti-discrimination laws which attempts to advance equality of opportunity by positive, no-fault means.” Failing to distinguish this objective has led to much confusion about affirmative action. However, the framers of the Charter were under no such disillusion, as Gibson emphasizes. Section 15(2), “which gives constitutional recognition to affirmative action, says nothing about discrimination or prejudice. Instead, it describes the ‘object’ of affirmative action as ‘the amelioration of conditions of disadvantaged individuals or groups’” (Gibson 1985, 133; emphasis in original).15 In the same way that section 15(2) explicitly provides for remedies to disadvantage, not discrimination, section 15(1) appears to explicitly provide against discrimination, not disadvantage. The broad language of section 15(1) – providing equality “before and under the law” as well as the “equal protection and equal benefit of the law” – does not change this fact. The Supreme Court’s importing of the elimination of group disadvantage into the purposes of section 15(1) would seem to be improper. What the Charter’s framers intended as constitutionally acceptable public policy under section 15(2) has now been incorporated as a constitutional mandate, permitting judicial remedy, under section 15(1). In fact, we can go further: because the framers of the Charter created section 15(2) as an exception to the general requirement of non-discrimination against individuals (affirmative action discriminat-

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ing against non-beneficiaries), by importing the purposes of section 15(2) into the construction of section 15(1), the Court has effectively reversed the objective of equality rights under the Charter. Since individual rights now depend in whole or in part upon a complainant’s status as a member of a disadvantaged or advantaged group, individuals will be treated differently – which is to say, unequally. This outcome will be particularly true in the Court’s contextuality16 and democratic process jurisprudence.

c ont ext ua lit y, demo c r at ic p r o c e ss, a nd th e pr oblem of e v id e n c e In Andrews, Justice McIntyre described non-citizens, the classification at issue, as a “good example of a ‘discrete and insular minority’” (Andrews v. Law Society of British Columbia, 183). The phrase “discrete and insular minority” was a legal term of art from footnote 4 of United States v. Carolene Products Co. (1938). In Carolene Products, Justice Harlan Stone had described discrete and insular minorities as a class of individuals who might get heightened judicial protection if such minorities could demonstrate that “the operation of those political processes ordinarily to be relied upon to protect minorities” was seriously curtailed on account of “prejudice” (United States v. Carolene Products Co., 152–3n4). Stone’s comments would later serve as the basis for the U.S. Supreme Court’s strict-scrutiny doctrine in equal protection law.17 They were also viewed by some as a constitutional theory that focused on democratic process or procedure as the touchstone of judicial review. The most famous proponent of judicial review as the protection of democratic process has been John Hart Ely. Drawing significantly from the implication of Stone’s remarks,18 he argued that the courts were particularly well suited to scrutinize democratic process because they were experts on process. More importantly, they were political outsiders, less susceptible to corruption and bias than those directly involved in politics, who had to worry about getting reelected. Appointed judges were concerned with “continuance in office only very obliquely.” They were therefore in a position to objectively assess whether elected representatives, “either by clogging the channels of change or by acting as accessories to majority tyranny,” were “not representing the interests of those whom the system presupposes they are” (Ely 1980, 103). The key term here was “interests.” It signified, as Ely recognized, a different approach to judicial review than one that focused on “substantive goods or values deemed fundamental” – what we might call “rights.” In tradi-

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tional judicial review, fundamental values or rights were considered “so important that they [had to] be insulated from whatever inhibition the political process might impose.” By contrast, constitutional theories that focused on participation denoted a form of judicial review which was concerned “with how decisions effecting value choices and distributing the resultant costs and benefits [were] made” (Ely 1980, 75 and 75n). Unlike a fundamental values- or rights-based approach to judicial review, the political process approach examined those aspects of political participation and representative government that were considered essential (that is, constitutionally required) in any properly functioning liberal democracy. One such essential component was the extent to which minority interests were represented in the democratic process. The degree to which such interests were accounted for provided a barometer of how well the system was operating. Ely’s theory is important in the Canadian context because it has been cited by proponents for both the contextuality analysis under section 15 (Andrews v. Law Society of British Columbia, 152)19 and the democratic process theory of Charter review announced in Vriend. Writing in Vriend, Justice Iacobucci remarked that “a democracy requires that legislators take into account the interests of majorities and minorities alike, all of whom will be affected by the decisions they make. Where the interests of a minority have been denied consideration, especially where that group has historically been the target of prejudice and discrimination, I believe that judicial intervention is warranted to correct a democratic process that has acted improperly” (Vriend v. Alberta [D.L.R.], 448). Contextuality analyses invite judges to examine the power relationships implicit in legal disputes (Morton 1998, 54), a corollary of the Court’s opinion in Andrews, which suggested that the groups protected by section 15 are defined by their disadvantage and powerlessness (Hogg 1997, 1264–6). The democratic process theory developed in Vriend would appear to create a second cause of action in Charter litigation. Allowing complainants to advance process-related actions in addition to rights-based actions, the democratic process argument, like contextuality analyses, introduces novel considerations into traditional forms of constitutional review. In particular, evaluations of social and political phenomena – the weighing of interests and assessments of the fairness of representational process – are involved. Contextuality and democratic process analyses invite us to ask whether courts have the capacity to measure either the relative power and vulnerability of groups within Canadian society (Hogg 1997, 1266) or the comparative advantage or disadvantage of specific

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interests. The institutional restraints that litigation places on the ability of courts to assess social policy are legion.20 The selective presentation of witnesses and the limited number of parties involved in litigation, the parties’ emphasis on winning at all costs, the restricted opportunity to canvass social, as opposed to adjudicative, facts adequately and the related problem of judicial competence to assess such facts,21 the reduction of complex political issues to tidy legal formulae, and the inability to respond to the undesirable consequences of judicial policy-making, save for the follow-up lawsuit, which may take years or even decades to reach the Supreme Court, all militate against the sort of judicial review that contextuality and democratic process analyses invite. If such analyses are to be serious and not a mere pretext for the imposition of judicial preferences in social policy, judges will have to sift through a vast amount of literature recounting the genealogical, sociological, political, economic, and even psychological interactions between diverse groups. They will have to compare the relative treatment of affected groups not only historically but also currently. The salience of political interests and how these interests fare at all levels of government will have to be assessed. So too will judges have to anticipate the myriad consequences that rules delivered in individual cases will have on politics and social processes more generally. The judiciary’s task will be duly complicated by the fact, recognized by Justice Wilson in Andrews, “that the range of discrete and insular minorities has changed and will continue to change with changing political and social circumstances” (Andrews v. Law Society of British Columbia, 152). Groups once recognized as discrete and insular minorities may have to be de-recognized, and new categories of disadvantaged claimants may have to be granted preferred status as time progresses. Do courts have the analytical tools and institutional capacity to engage in such broad adventures in social and political inquiry? Probably not. The implication is that establishing section 15 violations or democratic process claims will likely depend more on fashionable or orthodox opinion than on concrete or tangible proof (Peacock 1996, 123–4, 152). It was apparently the opinion of the Alberta Court of Appeal that orthodoxy was at the centre of the dispute in Vriend. When hearing Delwin Vriend’s application in the original instance, Judge Anne Russell of the Alberta Court of Queen’s Bench (as she then was) had no facts before her proving discrimination against homosexuals. Nevertheless, she held that discrimination against gays and lesbians was “so notorious” that it was appropriate to “take judicial notice of [this fact] without evidence” (Vriend v. Alberta [Q.B.], 421;

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see also Vriend v. Alberta [D.L.R.], 403). Reversing Russell on appeal, Justice John Wesley McClung of the Alberta Court of Appeal noted that there was nothing in the record which proved that the condition of homosexuals would be exacerbated by the exclusion of sexual orientation as a prohibited ground of discrimination from the irpa (Vriend v. Alberta [C.A.], 603). More importantly, the assumption of judicial notice failed to address the specific meaning of discrimination as it needed to be assessed if the Charter was not to become a mere vehicle through which disaffected political constituencies could avoid – and, arguably, subvert – the political process by pitching their claims to a receptive judicial audience in the language of rights.22 McClung expressed concern about the dominant social and political role the Charter had assumed in Canada (see, for instance, Vriend v. Alberta [C.A.], 614–15 and 620–1). He took “no view” on Russell’s assumption of judicial notice, since the issue of discrimination against homosexuals had “been overtaken, at least in law, by the intervening judgments of the Supreme Court of Canada in Egan v. Canada” (Vriend v. Alberta [C.A.], 611). McClung’s qualification “at least in law” suggested that he was unconvinced that what was at issue in Vriend was necessarily discrimination. The dispute between Vriend and the Alberta government involved complex social and political issues. To reduce these issues to the antitheses of discriminatory versus non-discriminatory conduct was to oversimplify the political reality giving rise to the dispute and arguably to assume away the most important question in the case. McClung suggested that the judicial construction of the Charter had commanded social phenomena to capitulate to the demands of a judicial orthodoxy which had precipitated, in the name of equality and fairness, an immoderate politics. Judicial review under the Charter had a propensity to eschew compromise or simple acquiescence in the face of difficult social conflicts. “[J]udicial solutions are forced choices; ... they are all-or-nothing formulae ... [O]nce issued, they can become unwelcome, even, corrosive, interventions into the equilibrium of the community” (Vriend v. Alberta [C.A.], 615).23 Granting Vriend’s claim would displace an attempt by the Alberta government to mediate between two antithetical – arguably, irreconcilable – camps with a judicial imperative that delivered categorical victory to one side in a delicate and volatile controversy. The judiciary had intruded into a social conflict that neither it nor government need have, nor perhaps should have, entered. “Is it constitutionally inexcusable,” McClung queried, “for the Alberta government to decline to choose between the platforms of the divinely driven right and the rightseuphoric, cost-scoffing left, by refusing to order people of either

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sexual base to listen to government as to when they must forget that sexuality and contract together?” (Vriend v. Alberta [C.A.], 606–7). VRIEND

befor e t h e su p r e me c o u rt

The outcome of Vriend when it arrived at the Supreme Court of Canada was never in doubt. With the exception of Justice John Major, who dissented only with respect to the majority’s remedy of reading in, the Court unanimously reversed the Alberta Court of Appeal’s decision. Justice Iacobucci, who co-authored the Court’s opinion with Justice Cory, rejected McClung’s assessment that granting Vriend’s application would decide the issue in favour of one party. To the contrary, the Alberta government had not been placed in the awkward position of having to moderate between the interests of religious freedom and those of homosexuals.24 The irpa itself had provisions that allowed defendants to plead either that their differential treatment of protected groups was “reasonable and justifiable in the circumstances” or that it was excusable on grounds that a bona fide occupational requirement (bfor) was involved. These qualifications in the irpa, balancing the rights of claimants, ensured that no conferral of rights under the act was absolute (Vriend v. Alberta [D.L.R.], 435). The position that the government of Alberta had assumed was not one of neutrality. It had effectively granted victory to one side of the dispute: those opposed to homosexuality and to Vriend. Or had it? Iacobucci’s concession that there may be reasonable circumstances or occupational requirements warranting differential treatment of gays and lesbians implied that the social treatment of these groups was not necessarily tantamount to discrimination. Justice Cory had condemned the exclusion of sexual orientation from the irpa because it suggested “that discrimination on the ground of sexual orientation is not as serious or as deserving of condemnation as other forms of discrimination” (Vriend v. Alberta [D.L.R.], 427–8). But sexual orientation questions raise issues of distinction that may be qualitatively distinct from issues of distinction raised, for instance, by such traditional grounds of discrimination as race and ethnicity – grounds that will generally not allow for reasonable accommodation or bfor defences (Flanagan 1985, 118). We have seen evidence that sexual orientation is not like traditional categories of anti-discrimination law in disputes that have erupted over issues such as gays in the military and the use of books promoting homosexuality as an acceptable alternative lifestyle in public school curricula.25 In the United States, disputes

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over whether same-sex marriage should be legally recognized were among the most contentious issues that courts in Hawaii, Alaska, and Vermont had to deal with in the 1990s.26 The Court in Vriend had found that the harmful effects of the exclusion of sexual orientation from the irpa were the lack of recourse to remedies which the act afforded homosexuals and the damage imposed on “the dignity and perceived worth of gay and lesbian individuals,” harms that constituted “a particularly cruel form of discrimination” (Vriend v. Alberta [D.L.R.], 428). For critics of expansive homosexual rights, however, lack of approval of the dignity and perceived worth of gay and lesbian lifestyles was arguably the very point of social customs and laws which failed to condone or solemnize homosexual practices and which in some cases even proscribed them – for example, prohibitions on same-sex marriage. In the opinion of some Canadians, protecting sexual orientation under the Charter or human rights codes represented not so much an attempt to shield individuals from discrimination, or at least not this alone, as an attempt to protect them from the social disapprobation that attached to deeply ingrained rules of conduct (Flanagan 1985, 114). It may well have been good policy to have granted the concessions that the Court was now demanding. Justice Cory had outlined examples of abhorrent behaviour toward homosexuals in his dissent in Egan: public harassment, verbal abuse, and crimes of violence (Egan v. Canada, 674). Yet as clear as it may have been that these activities should be punished, it was equally clear they were qualitatively distinct from those more difficult cases in which what was at issue was a fundamental moral dilemma. By displacing the source of decision-making power over such delicate matters of policy, as it had done in Vriend, the Court undermined not only the constitutional division of powers but also the principle of judicial review that was intended to uphold that division. This last issue spoke to two final aspects of Vriend worth mentioning here. First, Vriend further contributed to the erasing of the publicprivate distinction that had been inaugurated in earlier Charter cases. Second, Vriend exemplified the extent to which Charter jurisprudence has been buttressed by Canadian legal academic scholarship. Iacobucci’s contention that the conflict in Vriend between religious freedom and sexual orientation could be resolved under the irpa by its balancing provisions, however defensible, nevertheless had the effect of exhuming such controversies from the private, immediate world of the parties affected and placing these in the abstract, legal world of human rights dispute resolution. Iacobucci declared that

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“expanding the list of prohibited grounds of discrimination in the irpa [by adding sexual orientation] allows this Court to act in a manner which, consistent with the purposes of the Charter, would augment the scope of the irpa’s protections” (Vriend v. Alberta [D.L.R.], 442). By augmenting the scope of protections for homosexuals, however, the Court arguably decreased the scope of protection for religious beliefs afforded under the act. Granting to Vriend the right to challenge his employer, King’s College (a Catholic school), under the irpa raised the spectre that the religious beliefs of the college might not prevail. In the name of a referent – sexual orientation – that was explicitly rejected by the drafters of both the Charter and the irpa, the Supreme Court had undermined three referents – religious belief, religious freedom, and associational rights – that were explicitly protected by the drafters of the Charter and the irpa.27 Iacobucci had speculated about the potential “deleterious impact” on the “thrust of the legislation” that adding sexual orientation to the act would have: “All persons covered under the current scope of the irpa would continue to benefit from the protection provided by the Act in the same manner as they had before the reading in of sexual orientation” (Vriend v. Alberta [D.L.R.], 444). This, however, was an outcome difficult to comprehend in light of the fact that those whose religious beliefs did not approve of homosexuality or homosexual practices would now be subject to having their faith assessed for its reasonableness before human rights personnel under the legislation. The problem involved here was that balancing rights did not amount to the simple, arithmetic procedure of adding more and more rights to a seemingly endless constitutional ledger. How did the Supreme Court propose to resolve delicate conflicts of interest like those at issue in Vriend in future? For the Court’s core constituencies, answering this question may not have mattered. What was important were the results. Displeasure with the Alberta Court of Appeal’s decision had been widespread among Canada’s legal elites, particularly the legal academic community. As chilly as the Supreme Court’s reception of the Alberta Court of Appeal’s decision may have been, it was not to be outdone by the equally frigid reception that Justice McClung’s opinion received in the law schools: not a single Canadian law review or case comment published between the time of the Alberta Court of Appeal’s decision and the release of the Supreme Court’s opinion in Vriend supported his judgment. The sole exception was political scientist F.L. Morton, who applauded McClung’s decision as the “first sustained critique from the bench of the new Charter-based jurocracy” (Morton 1996, 123).

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Legal academics and lawyers, by contrast, were critical of McClung to the point of vilification. Two critics (O’Byrne and McGinnis 1996) likened his decision to the most notorious cases in U.S. Supreme Court history, Plessy v. Ferguson (1896) and Dred Scott v. Sandford (1857). A third concluded that McClung appeared to be blind to “rudiments of liberal political and legal theory” (DeCoste 1996, 961), that “throughout his judgment” he had displayed “an attitude towards homosexuality which can only be described as homophobic” (ibid., 978). William Black, who found McClung’s language “sometimes disturbing” (Black 1996, 126) and whose article relied heavily upon the work of Ely, referred to earlier,28 critiqued the justice’s narrow construction of judicial review, arguing that the Alberta government’s “ongoing refusal to consider lesbians and gays to be equally deserving of legislative consideration” was tantamount to “a systematic malfunction of the democratic process” (ibid., 129). McClung’s “concerns about protecting our democratic system” were therefore “not apposite” (ibid., 128). The judiciary was warranted in intervening on Vriend’s behalf, the remedy here being not a balancing of the rights of a minority against democratic principles but the correcting of defects in the democratic process itself (ibid., 132). The chorus of legal academic criticism of the Court of Appeal’s ruling was not lost on the Supreme Court, which drew heavily on academic scholarship. Like Andrews, Egan, and M. v. H., Vriend highlighted three further elements that distinguished equality rights jurisprudence in Canada: the ever-expanding meaning of discrimination under Canadian law; the concurrent expansion of judicial and administrative control of Canadian social and political life, exemplified by the Court’s “underinclusive” and “mirroring doctrines,” as well as the democratic process argument announced in Vriend; and the wedding of legal academic scholarship to judicial reasoning, of knowledge to power, a well-integrated coalition that has proven to be a juggernaut in Canadian constitutional litigation.29

t h e expa ns ion of th e me a n in g o f discriminat ion in c a n a d ia n l aw The Supreme Court’s reconstruction of equality and democratic process under the Charter has been the product of a confluence of factors. One of the principal factors has been the expanding meaning of discrimination in Canadian law. As Justice McIntyre noted in Andrews, a good barometer of how this meaning has changed can be found in the development of human rights legislation. As we saw earlier in this chapter, many of the changes that occurred in the

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judicial construction of human rights law influenced the interpretation of section 15. Of particular importance in this transformation were those changes that took place in the mid-1980s. Modern anti-discrimination law began to take shape in Canada around the end of the Second World War. Legislation such as the Ontario Racial Discrimination Act (passed in 1944) and the Saskatchewan Bill of Rights (passed in 1947) utilized a quasi-criminal law approach to equality rights enforcement. This approach was abandoned in the 1950s in favour of an administrative model of enforcement. Around the same time, special-purpose statutes protecting particular areas of activity such as housing and employment on specific grounds of discrimination such as sex and race were also developed. These statutory measures were abandoned in the 1960s in favour of comprehensive human rights codes prohibiting discrimination on a number of grounds and in many areas of activity (Tarnopolsky and Pentney 1994, 2.2–2.8.1; Knopff and Flanagan 1990, 35–40). Human rights statutes were originally conceived to address direct discrimination against racial and ethnic minorities. Prohibiting discrimination on a limited list of grounds, they were easy to comprehend. By 1985, however, they had expanded into a broad substantive equality rights initiative covering thirty prohibited grounds of discriminatory conduct nationwide (Flanagan 1985, 109). Following the lead of American civil rights jurisprudence,30 human rights law had by the mid-1980s embraced the adverse effects model of discrimination. Rejecting the requirement of proof of discriminatory intent and thus abandoning the idea that anti-discrimination law should seek to punish a moral wrong (Knopff and Flanagan 1990, 49), the adverse effects model of discrimination broadened the scope of human rights jurisprudence by applying the remedial benefits that any complainant enjoyed in a single case to all those who shared the relevant characteristic and were similarly situated (Tarnopolsky and Pentney 1994, 4–56.2). When the growth in the number of heads of discrimination under human rights codes was combined with the Supreme Court’s adoption of the adverse effects model of discriminatory conduct,31 the consequence was a wholesale transformation in the meaning of discrimination in Canadian law. The changes that occurred to human rights codes through the mid1980s were not merely quantitative; they were also qualitative. By 1985, human rights legislation had evolved from initiatives focusing on biological or personal characteristics definitive of racial or ethnic identity to what Thomas Flanagan has referred to as “life cycle” and “lifestyle” criteria – criteria that were distinct from traditional grounds

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relating to race or ethnicity and that reflected a change in the nature of the discriminatory conduct being addressed (Flanagan 1985, 109–14). Of particular note were the protections afforded to lifestyle traits such as criminal record, sexual orientation, drug and alcohol dependence, and political belief. Applying human rights law to these criteria represented a broadening of discriminatory categories, with the evident intent of promoting an attitude, on the part of government and private individuals, of moral neutrality toward certain unpopular lifestyle choices (Manfredi 1993, 126). The fact that the doctrines of reasonable accommodation and bona fide occupational qualification were commonplace in disputes involving lifestyle and life-cycle traits but were not so in cases involving allegations of discrimination on the basis of traditional criteria, such as race and ethnicity, was an indication that such prohibited criteria were not completely irrelevant to employment relationships, tenancy arrangements, and other activities covered by human rights legislation (Flanagan 1985, 118). By applying such legislation to these new forms of conduct, legislatures and courts did not so much outlaw the activity concerned as set up an external review process by which third parties – lawyers, judges, boards of inquiry, commissions – could assess the applicability of the discriminatory criteria in particular cases. What this meant was that an increasing number of private interactions would be reviewed by people who had no financial or personal stake in the outcome of the disputes at issue and who may have had little appreciation for the concrete difficulties involved vis-à-vis the parties directly affected (Flanagan 1985, 118). In other words, private decisions based on the material or empirical foundation of immediate experience and intimate knowledge were being increasingly displaced by administrative and judicial decisions removed from such experience and knowledge. This move away from private decision-making was the implication of Vriend when the Court ordered sexual orientation to be included in the irpa. It was also the implication of Haig. v. Canada (1992), when the Ontario Court of Appeal, anticipating Egan, ruled that sexual orientation was an analogous ground under section 15(1) and had to be included in the Canadian Human Rights Act. Vriend and Haig, in addition to the recent developments in human rights law outlined above, are part of a broader trend in Canadian politics. Like these other developments, constitutional equality rights and anti-discrimination policy have moved away from a liberal notion of rights predicated upon a zone of private freedom protected by a political domain responsive to consent toward an understanding of rights that shows an increasing propensity to exchange political equality for social equality and private freedom for public

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administration (Knopff and Flanagan 1990, 31). Such an incarnation of rights is inconsistent with the idea of natural rights or the notion that written constitutions place limits on governmental activity. Substantive equality and the adverse effects model of discrimination are not merely inconsistent with the liberal constitutional understanding of limited government; they are antithetical to it. Using constitutional rights to expand governmental activity rather than to limit it, they undermine the rule of law and the idea of reason at the heart of the liberal constitutional order. By allowing for the differential treatment of individuals as time and circumstance change, they assume a knowledge of social and political phenomena which modern liberalism denies is attainable and which is the precondition for the rule of law. “The rule of law – the rule of reason – requires limited government because human reason itself is limited. It is this recognition of both the limits of politics and the limits of the human condition that furnishes the grounds for prudence in limited government” (Erler 1991, vii). The new understanding of equality in Canadian law is a species of judicial rationalism. Like the presumptions underlying social fact evidence, where the judiciary is assumed to possess broad powers of comprehension and full mastery of the concrete (Hayek 1973, 1:33), the judicial rationalism sponsored by the Supreme Court in recent equality rights litigation presumes to know the intricacies of social process: what animates private and public actors and how they will interact, how legislative and judicial regulation will play out in the social world, and what curative measures are needed to correct deviancies in social behaviour. As indicated in the introduction to this chapter, the new rationalism is not pluralist or liberal constitutional – what Americans would call “Madisonian.” Rather, it is Marxist or deconstructionist in nature. It does not assume that social processes are indeterminate, comprised of a multiplicity of conflicting, heterogeneous, and unpredictable interests. Rather, the assumption is that social process is more or less unequivocal – predicated, for instance, upon class-based divisions between “historically disadvantaged groups” and others. Under the new dispensation, constitutional rights are allocated not so much on the basis of a close reading of the text or language of the Charter as on the basis of transitory and contingent visions of history – on social, political, and historical circumstances or on one’s group status as the Court perceives this. The corollary to this understanding of equality is that Canadian society can be deconstructed and rebuilt in accordance with a preconceived design. What began as a relatively firm division between the public and the private, state and society, under the Charter has been progressively

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erased in the name of social and redistributive justice. The Court has gone so far at points as to suggest that the division between the public and private worlds is a false dichotomy. The transition in the nature and meaning of constitutional rights and of the relationship between the state and society has taken place under the auspices of a number of provisions of the Charter in addition to section 15. Of particular importance in this regard has been section 32, where the scope of governmental exposure to Charter attack has been widely disputed since the Charter was proclaimed. Although controversies respecting the meaning of section 32 originated in the mid-1980s, they continued thereafter and were at the centre of attention in Vriend.

sec t ion 3 2 , legal ac a d e mic o p in io n , a nd th e er os ion o f t h e p u b l ic -p r ivate distinction In R.W.D.S.U., Local 580 v. Dolphin Delivery (1986), Justice McIntyre established reasonably clear lines of demarcation between public and private activity, between those actions to which section 32 of the Charter applied and those to which it did not. Section 32 applied only to the legislative, executive, or administrative actions of government. These included both actions originating from legislation and those originating from principles of the common law.32 Two years prior to Dolphin Delivery, Justice Dickson had similarly emphasized that the Charter “is intended to constrain governmental action inconsistent with [Charter] rights and freedoms; it is not in itself an authorization for governmental action” (Hunter v. Southam Inc., 650). The non-application of the Charter to private activity was subsequently reaffirmed in Tremblay v. Daigle (1989) and in McKinney v. University of Guelph (1990). Following these decisions, the trend in Charter jurisprudence was away from a firm separation between private and public activity. Even in McKinney, where the plurality ostensibly reaffirmed the separation, there was evidence of a crack in this doctrine. McKinney and subsequent cases would pave the way for Vriend and M. v. H., where the Charter would be deemed to apply not only to government activity but also to government inactivity or omissions. Private interactions would now be regulated under the pretext that this was required by constitutional law. In McKinney the plurality, speaking through Justice La Forest, and Justice Wilson, dissenting, sparred over the meaning of the Charter and its relationship to the Canadian state and to private activity.33 Dolphin Delivery had generated significant controversy, particularly

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among legal academics, many of whom rejected the hard line of demarcation that McIntyre had established between the public and the private and consequently what was exposed to Charter scrutiny. Wilson empathized with the critics but was not entirely persuaded by them. The critics had argued that it was either too difficult to distinguish public from private activity or that section 32 did not place any limits on the application of the Charter to such action. But as Wilson observed, there were provisions in the Charter (such as sections 1 and 33) that clearly indicated that section 32 applied to government action only (McKinney v. University of Guelph, 569–70). In addition, there obviously remained in Canada a broad domain of fully private activity (McKinney v. University of Guelph, 582). The difficult question for Wilson was what precisely constituted “government action” under section 32. In particular, should this language be construed narrowly? In contradistinction to Justice La Forest, who responded to this question in the affirmative, Wilson sought a broad construction of government on the basis of a broad theory of the Canadian state and of the judiciary’s role in this new blueprint for the social democratic regime. La Forest had adopted the position enunciated by Justice McIntyre in Dolphin Delivery. For La Forest, it was government that had the power to enact and enforce rules against individuals, and it was therefore government that constituted the principal threat to individual freedom. Recognizing that private actors did have the ability to infringe the rights of individuals, particularly in the economic order, where democratic institutions did not operate, La Forest responded that government nevertheless had the authority to regulate these forces. Among other things, human rights legislation could be used to police discriminatory conduct, providing more flexible techniques than the Charter for dealing with such problems while avoiding those undue restraints on the exercise of democratic rights that have proven so difficult to balance. To expose all private action, in addition to public activity, to judicial review might not only “strangle the operation of society,” the very object it was the purpose of the Charter to preserve; it might leave entire areas of settled jurisprudence vulnerable to challenge. Moreover, the institutional problems courts would face, inundated as they would certainly be with a tide of litigation if private action were exposed to Charter challenge, might prove insurmountable (McKinney v. University of Guelph, 634–5). Rejecting La Forest’s “constitutionalism” as an anachronism, Justice Wilson demurred that the idea of a constitution serving as a

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firewall between the state and society, with government presenting the principal threat to individual liberties, was no longer current in Canada, if indeed it ever was (McKinney v. University of Guelph, 572). Examining Canadian and American history, Wilson observed that although the liberal constitutional notion of a restricted state was dominant in the United States and had been the animating spirit behind the American Bill of Rights, it was not a part of Canadian history, nor was it consistent with the distinct features of modern Canadian public life. “Minimal state” approaches to the Charter neglected the definitive characteristics of the modern Canadian state. Unlike the American experience, Canadians had not embraced laissez-faire political thought to any significant degree (McKinney v. University of Guelph, 581). On the contrary, it was “the accumulation of social, political, and legal power in private entities” that Canadians had come to regard as the great threat to human rights and individual liberty. Government in Canada had served a salutary function, having been enlisted in a variety of contexts and at many levels in the service of preserving individual freedom against attacks from private actors. This regulatory activity had been imposed with a view to “the Canadian conception of a just society,” and it was in this context that the Charter had to be understood (McKinney v. University of Guelph, 580). For Wilson, the Charter was a compendium of constitutional norms that were to aid in the realization of social justice. Although the Charter’s object was to preserve individual freedom and personal autonomy, these were not to be achieved, as the plurality had suggested, by creating private spheres of activity immune from government interference. Rather, the constitution established basic norms “which government should be compelled to respect when structuring important aspects of citizens’ lives.” The Charter, in effect, was an instrument of social democratic reform that it was the judiciary’s obligation to enforce. If the impact of the Charter was not to be limited and its protections abated, the restricted interpretation of government action proposed by the plurality would have to be abandoned in favour of a more generous construction sensitive to the variety of roles that government had come to play in the modern Canadian state (McKinney v. University of Guelph, 581–4). The dispute in McKinney had centred on whether universities were governmental bodies. Employing a narrow construction of government, the plurality had determined that they were not. Wilson concluded that they were. The plaintiffs had challenged four Ontario universities’ mandatory retirement policies, as well as section 9(1)(a) of the Ontario Human Rights Code, on the grounds that both were

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contrary to section 15(1) of the Charter. Section 9(1)(a) of the ohrc restricted employment discrimination protection on the basis of age to individuals eighteen or older and younger than sixty-five. Despite their disagreement on the meaning of section 32 and the characterization of universities, the plurality and Justice Wilson nevertheless agreed that section 9(1)(a) violated section 15 because its age limitations were underinclusive. The remaining justices (Sopinka, Cory, and L’Heureux-Dubé) agreed on this issue, affirming the Court’s unanimous commitment to substantive equality. The Court’s discussion of section 32 revealed that, despite their differing positions regarding the role of the Charter in private life, the plurality and Justice Wilson were nevertheless united in their rejection of a strict separation between the public and private spheres. La Forest had objected to a broad role for the judiciary under section 32, not because he believed that there was a private sphere of human activity free in principle from government regulation (a limited government approach). Indeed, he took pains to emphasize that he disagreed with Wilson, not because he was committed to what she had labelled his “constitutionalism” – a view that, if correct, should have resulted in a broad, not a narrow, construction of “government action.” Rather, stressing that he did not subscribe to the notion of a confined role for government or the idea that the social and economic order should be trusted to private hands, La Forest drew the opposite conclusion from what Wilson had surmised on the basis of the historical evidence: there was less need for the judiciary to scrutinize the public-private ordering of social and economic life precisely because government had now accumulated powers broad enough to intervene in the private world. What McKinney revealed in the context of section 32 was, then, a consensus that a dividing line existed between regulatory activity which was properly within the scope of the Charter and that which was not, even though the reasons for this division were not strictly consistent with a liberal constitutional view of government. The Court found section 9(1)(a) of the ohrc contrary to section 15, but both the plurality and Justice Wilson, as well as Justice L’Heureux-Dubé, dissenting (McKinney v. University of Guelph, 691), were reluctant to extend this notion of underinclusiveness too far. La Forest had highlighted the importance of leaving the policing of private discriminatory conduct to the more flexible mechanisms of human rights initiatives. Wilson concurred: “I do not believe that the Charter was intended as an alternate route to human rights legislation for the resolution of allegations of private discrimination” (McKinney v. University of Guelph, 571).

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The problem in Haig and Vriend was that the complainants appeared to be asking for precisely this – using the Charter to resolve issues of private discrimination. Flanagan and others have demonstrated that many contentious anti-discrimination criteria had been incorporated into federal, provincial, and territorial human rights codes through the mid-1980s. However, in no jurisdiction was a code ever required to adopt criteria created or adopted in other jurisdictions. The implication in Haig and in Vriend seemed to suggest the opposite: any criterion that might qualify as an analogous ground under section 15(1) would have to be incorporated into human rights legislation and possibly every other anti-discrimination law in Canada.34 Was this not tantamount to using the Charter as an alternative route to resolving allegations of private discrimination? Justice McClung and his colleague on the Alberta Court of Appeal, Justice O’Leary, thought so. Having raised the spectre that the underinclusive doctrine and the judiciary’s power to rewrite legislation under the Charter left few practical or legal limits to the prerogatives of judicial review, McClung had complained in Vriend that to apply section 32 of the Charter to cases of legislative silence was to get the purpose of the Charter perfectly backwards. A refusal to act was not identical to a consciously chosen course of action. The Charter “was not adopted by the provinces to promote the federal extraction of subsidiary legislation from them but only to police it once it is proclaimed – if it is proclaimed” (Vriend v. Alberta [C.A.], 609).35 Even if it was conceded that section 32 did apply to the irpa, as Justice O’Leary allowed, a distinction had to be made between those effects attributable to the legislation and those that existed independently of it.36 To fail to make this distinction, as O’Leary pointed out, had serious consequences for Canadian federalism, not the least of which was that it would “force all federal and provincial human rights legislation, as well as countless other pieces of benefit or protection conferring legislation, to not only not offend s.15(1), but to mirror it. That is, all legislation would have to provide benefits and protections equally to everyone (except legislation which could be “saved” under s.1 or s.15(2)). In turn, the effect would be that s.15(1) of the Charter would directly govern private activity, by defining all that must be included in human rights and other legislation” (Vriend v. Alberta [C.A.], 630; emphasis in original). O’Leary recounted Justice McIntyre’s admonition in Andrews: “[Section 15(1)] is not a general guarantee of equality; it does not provide for equality between individuals or groups within society in a general or abstract sense, nor does it impose on individuals or groups an obligation to accord equal treatment to others” (Andrews v. Law

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Society of British Columbia, 163–4). Was this – or something close to it – not what Vriend was asking? What the Ontario Court of Appeal had demanded in Haig? And what was to limit the broad remedial powers now granted to judges in section 15? Other controversial subjects such as euthanasia, abortion, and genetic engineering touched on fundamental rights covered by the Charter. Was there anything to insulate public policy from judges implanting their preferences in legislation bearing upon issues such as these as well? (See Vriend v. Alberta [C.A.], 606 and 616, McClung J.A.) When Vriend arrived before the Supreme Court, Justice Cory affirmed that the language of section 32 of the Charter was not restricted to positive acts. The relevant section referred to “matters within the authority of the legislature” and made no reference to explicit legislative action. In a critique of the Alberta Court of Appeal’s opinion, Dalhousie law professor Dianne Pothier had argued that it was time to address the issue that had been left in abeyance since Dolphin Delivery and McKinney: the problem of legislative silence. The focus of the Court’s attention had to shift from action to laws since where legislation was silent, it was not the identity of the actor that mattered – the issue in Dolphin Delivery and McKinney – but rather, the fact that the actor had not acted (Pothier 1996, 113). Cory agreed with Pothier’s assessment, arguing (in her words) that section 32 is “worded broadly enough to cover positive obligations on a legislature such that the Charter will be engaged even if the legislature refuses to exercise its authority” (Pothier 1996, 115; quoted in Vriend [D.L.R.], 414). The failure to include legislative omissions within the language of section 32 would result in placing legislative form over legislative substance, an outcome that Andrews and its progeny had affirmed was incommensurate with the broad purposes of section 15 and the Charter. On Cory’s reading, the irpa denied both formal and substantive equality to homosexuals: formal equality because homosexuals were not provided specific protection on the ground most directly tied to their status as a disadvantaged group (sexual orientation); substantive equality because, when the omission of sexual orientation from the irpa was examined “in the context of the social reality of discrimination against gays and lesbians” (Vriend v. Alberta [D.L.R.], 421), the disproportionate impact on homosexuals, as opposed to heterosexuals, was evident. Cory again enlisted legal academic authority to fortify this latter point, this time from Wayne Renke, a law professor at the University of Alberta. Renke had argued that where “discrimination is visited virtually exclusively against persons with one type of sexual orientation, an

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absence of legislative remedies for discrimination based on sexual orientation has a differential impact.” Although heterosexuals and homosexuals may have recourse to the same remedies under the irpa, on the one ground where homosexuals may suffer discrimination – sexual orientation – no such remedy is available. “Seen in this way, the irpa does distinguish between homosexuals and heterosexuals” (Renke 1996, 942–3; quoted in Vriend [D.L.R.], 421–2). Renke’s and Cory’s argument raised the problem that Justice O’Leary had canvassed in the Court of Appeal. Would it not require every piece of anti-discrimination legislation (and perhaps all other legislation conferring benefits or protections) to mirror all the protections, enumerated and otherwise, in section 15(1)? If lack of recourse to a remedy on every potentially actionable ground of discrimination constituted a violation of section 15(1), the implication was that section 15 required precisely the general or social equality that Justice McIntyre admonished in Andrews it did not – and could not – provide. In response to this objection, Cory advanced two arguments, neither of them very persuasive or reassuring. First, the irpa purported to provide comprehensive anti-discrimination coverage to all individuals in Alberta. It was not limited in terms of the type of discrimination it sought to cover. Accordingly, it could not selectively exclude one group from comprehensive protection once it had settled on such a purpose. Cory cited Justice L’Heureux-Dubé’s dissenting opinion in McKinney in support of his argument: “‘if the provinces chose to enact human rights legislation which only prohibited discrimination on the basis of sex, and not age, this legislation could not be held to violate the Charter’” (Vriend v. Alberta [D.L.R.], 426, quoting McKinney v. University of Guelph, 691). Such limited legislation, Cory argued, was constitutionally acceptable and distinct from the irpa. But the example did not work. L’Heureux-Dubé was not talking about legislation that was distinct from the irpa but legislation that was virtually identical in purpose and coverage: the Ontario Human Rights Code. Her point was not about the comprehensive or noncomprehensive purposes of anti-discrimination law; it was about classifications made within such legislation once those purposes had been resolved. In McKinney the issue respecting section 9 concerned limitations within a specific category of discrimination (limiting age protections to persons between eighteen and sixty-five). As L’HeureuxDubé emphasized in the sentence immediately following the passage cited by Cory (which he failed to include), “where, as in the present case, the legislation prohibits discrimination on the basis of age, and

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then defines ‘age’ in a manner that denies this protection to a significant segment of the population, then the Charter should apply” (McKinney v. University of Guelph, 691; emphasis added). Why, constitutionally or otherwise, should a legislature be restrained, once it had determined to provide comprehensive anti-discrimination legislation, from excluding certain grounds of discrimination it considered inappropriate? Would such a requirement not serve as a disincentive to create anti-discrimination laws, contrary to the objectives of the Charter?37 The distinction between the ohrc in McKinney and the irpa in Vriend was between legislation that already included the ground at issue and legislation that did not. In Vriend, Justice O’Leary had argued that the irpa did not discriminate on the basis of sexual orientation. At most, the legislation simply distinguished between specified prohibited grounds of discrimination and all potential grounds of discrimination (including sexual orientation) that had not been specified but might have been (Vriend v. Alberta [C.A.], 627). Cory’s reasoning appeared to require that comprehensive anti-discrimination legislation mirror the Charter’s enumerated and analogous grounds of protection. He denied, however, that this was the case: “[T]he notion of ‘mirroring’ is too simplistic. Whether an omission is unconstitutional must be assessed in each case, taking into account the nature of the exclusion, the type of legislation, and the context in which it was enacted ... If a provincial legislature chooses to take legislative measures which do not include all of the enumerated and analogous grounds of the Charter, deference may be shown to this choice, so long as the tests for justification under section 1, including rational connection, are satisfied” (Vriend v. Alberta [D.L.R.], 429). This second response to the “mirroring” argument was also problematic because of the ambiguity of the requirements of justification under section 1. The Alberta government had defended the irpa in Vriend as a sensible compromise between the competing interests of religious freedom and the claims of homosexuals. The Ontario government had similarly defended section 29 of the fla in M. v. H. as a reasonable attempt to remedy the inequalities between the sexes that emerge in long-term heterosexual relationships – inequalities that do not arise in similar relationships between same-sex couples. These arguments and others advanced by the Alberta and Ontario governments were to no avail before the Supreme Court, leaving legislators to speculate just what would satisfy the judiciary in similar cases in future.

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judic ial rat ionalism, d e mo c r at ic proc es s, and t h e ba l a n c in g o f polit ic al inter es t s Vriend and M. v. H., like Haig, provide further evidence of the augmenting scope of judicial rationalism in Canada. The new approach to Charter review in equality rights prefers rationalist principles to the more empirical concerns that legislators must attend to, sensitive as they have to be to the multiplicity of interests which make up Canadian society and which must be accommodated in any legislative initiative. That said, not everyone can be accommodated in every legislative initiative, including the irpa and the fla. Rainer Knopff has observed that, over the last two decades, representative government in Canada has come under assault from two quarters: populism, which has attempted to move power from Canada’s elected representatives to the people; and the politics of rights under the Charter, which has displaced power from elected representatives to appointed judges (Knopff 1998, 683; also Morton and Knopff 2000, 154). Vriend and M. v. H. are consistent with this latter development, further augmenting the Charter’s catalogue of rights. Vriend, ironically did so in the name of representational process itself. In Vriend, Justice Iacobucci took the remarkable position that the omission of sexual orientation from the irpa was, among other things, a denial of “democratic process” because the interests of gays and lesbians had been denied consideration by the Alberta government (Vriend v. Alberta [D.L.R.], 447–8). Not only was this view inaccurate – the Alberta government had considered the claims of gays and lesbians but chose not to prefer them over those of others – but Iacobucci’s theory of democratic process was a judicial prerogative without limit. If, as he was suggesting, minority plaintiffs now had a potential cause of action against government because legislation failed to meet the requirements of the representational process, what restrictions could be placed on this novel doctrine and what was the precise meaning of legitimate or fair representational process? Since it is in the very nature of democratic government to rule by majorities, on what grounds in future would the Court intervene to protect minority interests and what interests would count in the representational calculus that the Court had now deemed was a constitutional mandate of equality rights jurisprudence? At bottom, the Court was going to have to distinguish between a “right” and an “interest.” Iacobucci provided little guidance as to how this dilemma was to be resolved.

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By introducing the distinction between constitutional claims based on “rights” and constitutional claims based on “interests,” the Court had now cast itself into the political thicket of having to determine which interests counted in the representational process and which did not.38 Although it had already entered this political thicket of representational fairness in voting rights cases, determining that section 3 of the Charter provided a right to “effective representation,”39 its jurisprudence under section 3 has been restricted to questions concerning electoral practices and procedures. What Iacobucci was proposing in Vriend was a constitutional doctrine with much broader potential application. To open questions of democratic process to judicial inquiry had the potential to expose virtually every level of Canadian government – federal, provincial, and municipal – to delicate and probing questions concerning what was an appropriate or inappropriate balance of power, by courts whose very existence presupposed that such questions had already been resolved (Elliott 1974, 83). Iacobucci’s democratic process theory had followed approaches to representative government developed by legal scholars such as William Black (1996), John Hart Ely (1980), and Patrick Monahan (1987). But there were problems with both his theory and his sources, as Mark Rush demonstrates in his contribution to this book. Black’s position, for instance, contradicted Ely’s theory, and Iacobucci himself misconstrued Ely’s argument: Ely accepted the very sort of political outcome at issue in Vriend in the co-authored brief he filed in Romer v. Evans (1996).40 The democratic process theory developed in Vriend is not really about process anyway. It is about substance, as a number of commentators have already pointed out regarding Ely’s theory.41 In having to choose between competing political constituencies, democratic process evaluations have to weight interests and choose among competing theories of representation. Constituting a potentially broad sweeping judicial doctrine that invites disaffected groups to dodge the political process in pursuit of the more immediate and unaccountable results of judicial review, Iacobucci’s new approach to constitutional interpretation will undermine coalition-building, the facilitation of deliberative majorities, and compromise. With the potential to create legislative impediments that interfere with the ability of governments to carry out promised agendas and that may exacerbate tensions between identifiable groups, the new theory of judicial review announced in Vriend could hamstring the very democratic process that Iacobucci sought to facilitate. By removing incentives to minorities to moderate their political demands, the Charter will hang like a sword of Damocles over the heads of Canada’s legislators in the event they do

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not comply with the sure-to-be increasingly intransigent claims of specific, powerful, litigious constituencies.42 As the foregoing suggests, the equality rights cases we have examined, particularly the homosexual rights cases, evince an increasing brazenness toward legislative attempts at balancing delicate interests. In Egan the Court recognized sexual orientation as an analogous ground of discrimination but refused to apply the term “spouse” under the Old Age Security Act to unmarried same-sex couples because such couples failed to meet the “fundamental social objectives” promoted by Parliament that only heterosexual couples could meet (Egan v. Canada, 627). In Vriend the Court abandoned the incremental approach to section 1 recommended by Justice Sopinka in Egan and proceeded to write sexual orientation into the irpa.43 Nevertheless, the Court claimed to maintain a position of neutrality between the demands of homosexuals and those opposed to such claims by leaving the resolution of such conflicting demands to the internal mechanisms of the irpa, set up to balance rival concerns (Vriend v. Alberta [D.L.R.], 435). In M. v. H. the Court abandoned the restrained position it had adopted in Egan and the apparent neutrality it had assumed in Vriend, and rejected the Ontario government’s legislative objectives of promoting equality between heterosexual couples. Refusing to limit the meaning of “spouse” under section 29 of the fla to heterosexual couples only, the act was now deemed to violate the human dignity of same-sex couples, contrary to section 15(1) (M. v. H. [D.L.R.], 620–1). All these developments took place within a span of four years.

t h e imposs ibilit y o f sub stant ive equa l it y Egan, Vriend, and M. v. H. highlight the many problems with substantive equality under the Charter. In addition to the problems outlined above, the underinclusive and mirroring doctrines leave ambiguous just how far the imperative of acting or legislating on behalf of certain constituencies has to be taken. Both doctrines dictate legislative agendas by compelling legislatures to give priority to the demands of “discrete and insular minorities.” When this requirement is combined with the Court’s contextualization jurisprudence under section 15(1), which leaves potential discrete and insular minorities unknown until after litigation, the result is political instability. How are legislatures to know whether they are violating the rights or interests of a constitutionally protected minority prior to a Charter challenge being advanced (see Rush in this volume)? When Delwin Vriend began his

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action against the Alberta government, sexual orientation had not been recognized as an analogous ground of discrimination by the Supreme Court. By the time the Alberta Court of Appeal decided his case, it had. Uncertainty of this sort means that legislating in delicate areas, where the interests of potential Charter litigants may be involved, may be best dealt with by being avoided altogether. Ironically, the Court’s holding in Vriend may discourage legislatures from dealing with the very issues that it invited them to take up more stridently in future. Further objections can be raised with respect to the elements of the discrete and insular minority doctrine in addition to the adverse effects model of discrimination wedded to this doctrine under the Charter. First, Canadian legislation at the turn of the twenty-first century is not inclined to be invidious or to directly discriminate against any discrete or insular group. Indeed, any move in this direction would signal a serious crisis in Canadian law. In future, Canadian courts will be occupied, as they have been since Andrews, with legislation that has unintended consequences or adverse effects (Manfredi 1993, 152). Second, the problem with the adverse effects model of discrimination remains, determining what adverse effects will constitute discriminatory treatment. The Court has made it clear that in a section 15 action a complainant must establish that a legislative distinction has been created between him or herself and others on the basis of a “personal characteristic” enumerated or analogous to those in section 15(1). In addition, the legislative distinction must result in discrimination; it must impose a burden, obligation, or disadvantage not imposed on others, or withhold or limit access to some benefit or advantage available to others.44 Given the numerous personal characteristics that may be adversely affected by legislation, particularly in light of the open-ended nature of the analogous grounds approach to section 15, the number of groups that might claim constitutional status is significant. The scope of claimants to be considered is too broad to allow all potentially affected groups to be legally recognized. Only certain groups will be able to enjoy special constitutional status under the adverse effects model of discrimination, and courts will therefore have to be selective. The groups that will tend to be recognized will typically be those that are the most vocal and politically influential (Knopff and Flanagan 1990, 28), raising the obvious question: In just what sense are these groups insular? Even if we accept that there are groups in Canadian society which are discrete, it is difficult to argue that there are many which do not enjoy some access to the political process. Given the broad constitu-

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tional protections afforded to political activity and the existence of universal voting rights, groups in Canada are rarely incapacitated from voicing their political concerns or advancing their particular interests in a public or political forum. Even groups, such as refugees and other non-citizens, which have few resources or who cannot vote usually have advocates with the means to advance their interests (Manfredi 1993, 146–7).45 Moreover, the Supreme Court has now constitutionalized the right to effective representation under section 3 of the Charter, with the specific intent of providing, among other things, greater protection for minority interests (Reference Re. Saskatchewan Electoral Boundaries, 39). Why, then, make section 15 claims conditional, even if only in part, on establishing discrete and insular status? The difficult question for advanced democracies is not so much the protection of minorities but the creation and maintenance of sustainable majorities given the myriad of overlapping cleavages such democracies must endure (Morton 1998, 44–5). Criticizing the U.S. Supreme Court’s “discrete and insular minority” doctrine, Edward Erler (1991 312; emphasis in original) has remarked: “American politics has never produced monolithic majorities and insular minorities ... Majorities in American life are formed from the diverse elements and groups that make up society as a whole. These majorities have been accurately described as, in reality, shifting coalitions of minorities. The constituent elements change from election to election so that, over the long run, there is no permanent majority and, hence, no permanent minority.” Erler adds that those who have argued that the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were passed to protect discrete and insular minorities, in particular Blacks, neglect the fact that the Black urban vote, which switched from Eisenhower (a Republican) to Kennedy (a Democrat) in 1960, was a critical element to Kennedy’s New Frontier program and Johnson’s Great Society program. The power of the Black urban vote provides dramatic evidence that Black Americans, even if discrete, were hardly insular throughout this critical part of American civil rights history. They were an integral part of the majoritarian politics that underlay the civil rights initiatives of the 1960s, as they have remained ever since (Erler 1991, 312–13). Can this same argument be applied to discrete and insular minorities in Canada? Does the success of the feminist lobby in determining the language of section 15 of the Charter, for instance, not suggest, contrary to the Court’s assertion in numerous cases, that women are a powerful and influential group in the Canadian political process? That even if they were “historically disadvantaged,” they no longer remain so? That to perpetuate this illusion is in effect to treat individuals

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unequally under the Charter? And does this same argument not apply to other minorities who enjoy – and might in future enjoy – protection under the Charter? The problem with substantive equality as the Court has developed this doctrine since Andrews is that it cannot be fulfilled. The adverse effects model of discrimination is exemplary of what I have termed “judicial rationalism.” It is similar in nature to what Thomas Sowell has described as the “unconstrained vision” of social process (1987)46 or the notion of “cosmic justice” (1999): the idea that society can be rationally controlled and reconstructed by proper mechanisms of social and legal manipulation. In the case of section 15 jurisprudence and human rights legislation, it is the judiciary that is the mechanism charged with the responsibility for such change. The Supreme Court has taken upon itself, in both constitutional and non-constitutional equality rights litigation, the role of social guardian, policing federal and provincial legislation for deviations from the fulfillment of social justice as the Court understands this.

t h e t h erapeut ic c o n st it u t io n In addition to the Court’s judicial rationalism, a new approach consistent with this rationalism has recently emerged in equality rights jurisprudence, revealed in, among other things, the language in which constitutional infractions have been framed over the last decade. This new development is one aspect of a broader social phenomenon scholars such as Christopher Lasch (1995)47 and James Nolan (1998) have referred to as “the therapeutic state.” As Nolan summarizes the features of this new phenomenon, the therapeutic state is animated by a therapeutic ethos, an intellectual and moral vision that has pervaded American culture from civil law to criminal law,48 to public education, to welfare policy, to the very legitimation of the state. Constructed on an epistemological foundation that denies traditional intellectual and moral orders which originate, for instance, in natural law doctrines and revealed religion (Nolan 1998, 22–45), the therapeutic ethos promotes an open-ended progressivism. The therapeutic state’s roots are in neither philosophy nor religion but in psychology and more precisely in psychoanalytic theory; further, Nolan emphasizes that the psychoanalytic theory underlying the therapeutic state is not traditional or Freudian theory, which attempts to integrate individuals into society through a therapy of adaptation. Rather, it is client-centred theory, professing liberation and seeking to replace traditional culture with a new culture dominated by impulses and emotions. With the goal of freeing the individual from inhibitions

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and restraints, this new ersatz therapy, applied in so many domains of public discourse and activity, operates on the basis of modalities that are purely instrumental and self-gratifying. As social institutions no longer bind or determine the individual, objective reference points give way to subjective references or self-referencing (Nolan 1998, 2–7). Michel Foucault could describe the power of psychological knowledge, exercised in the eighteenth and nineteenth centuries, as confined to the enclosed walls of the asylum and the prison (see Foucault 1988, 1995). Today such knowledge and its accompanying lexicon are universally recognized. The authority of the therapeutic expert, no longer confined to its traditional, limited domain, has infused every aspect of public and private life (Nolan 1998, 298–9). Like religion, however, therapeutic knowledge is not neutral. It provides a source of power through which individuals may be controlled. Since therapeutic knowledge is culturally salient, the forms of social control it has facilitated are largely accepted, even if they go unnoticed. The adoption by the state of the therapeutic impulse as a form of legitimation is indicative of a transformation both in the nature of the state and in the way it exercises its authority over citizens (Nolan 1998, 307–8). In Vriend and M. v. H. we see elements of this new therapeutic ethos in the Court’s construction of equality rights, reflecting again its receptiveness to progressive intellectual trends. In Vriend, Justice Cory remarked that the most important adverse effect of the exclusion of sexual orientation from the irpa was arguably its invitation of a “psychological harm” or “[f]ear of discrimination” that would “logically lead to concealment of true identity,” a concealment that would “be harmful to personal confidence and self-esteem” (Vriend v. Alberta [D.L.R.], 428). In M. v. H., Cory similarly condemned the exclusion of same-sex couples from the term “spouse” under section 29 of the fla because, among other things, it exacerbated “significant pre-existing disadvantage and vulnerability,” violated the “human dignity” of gays and lesbians, and contributed “to the erasure of their existence” (M. v. H. [D.L.R.], 619–21.) In Law, Justice Iacobucci, writing for a unanimous court, defined human dignity in terms of feeling states and subjective reference points, rendering section 15(1) an analogue of the therapeutic ethos. In a judgment that sounded at points more like a sensitivity seminar than a court reflecting on principles of law, Iacobucci defined the purpose of section 15(1) as the protection of human dignity, and he then had this to say: Human dignity means that an individual or group feels self-respect and selfworth. It is concerned with physical and psychological integrity and empower-

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ment ... Human dignity is harmed when individuals are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law? (Law v. Canada, 24)

Iacobucci stressed that the appropriate perspective in section 15(1) analyses was not that of a “reasonable person” or a reasonable person alone. The reason was that such a perspective could, “through misapplication, serve as a vehicle for the imposition of community prejudices. The appropriate perspective is subjective-objective. Equality analysis under the Charter is concerned with the perspective of a person in circumstances similar to those of the claimant, who is informed of and rationally takes into account the various contextual factors which determine whether an impugned law infringes human dignity, as that concept is understood for the purpose of s. 15(1)” (Law v. Canada, 26–7). Justice Cory’s and Justice Iacobucci’s jointdissenting opinion in Egan 49 had now become the opinion of a unanimous court in Law. In describing section 15 analysis as “subjective-objective,” Iacobucci’s approach was more subjective than objective because it was the perspective of people like the claimant that was now the standard of analysis under section 15. Arguing that the adoption of a purely objective or social standard might result in the imposition of community prejudice, Iacobucci affirmed a therapeutic approach to section 15 both in the language he used and in his insistence that equality rights law be subjective and relativistic. In the same way that the meaning of equality under section 15 was subjective and open to interpretation, determined by how a complainant legitimately felt, legal truth – the truth about what constituted discrimination – was simply what the claimant or those like him claimed it was. Equality rights were affirmed, as with the Court’s other section 15 doctrines, to be relative concepts; they were mutable, subject to the whims of time, circumstance, and perspective. The terms of the therapeutic lexicon used here – feeling states such as “self-respect,” “self-worth,” “psychological integrity,” “empowerment,” how “a person legitimately feels,” and so on – were consistent with what Nolan described as the self-creative freedom that individuals now enjoy in the therapeutic state. Today “truth is grasped through sentiment or feeling” (Nolan, 1998, 6; quoting Bell 1976, 72). Individuals are at liberty to control and re-

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create their inner selves in the same way that industry and technology enable people to control and re-create the natural world around them. The therapeutic language indigenous to the therapeutic state “gives us new metaphors and new words to describe ourselves. As such, one’s understanding of oneself is not limited by references to things outside of the self. It is largely self-created and mutable to new creations. Again, there are no limits” (Nolan 1998, 285). And this is the key to understanding the new language used in section 15 law. Whatever one thinks about the Court’s use of the therapeutic ethos in framing section 15, its therapeutic language of “human dignity,” referring to the self and being defined by the self, is virtually meaningless and thus open to a wide array of constructions. With terms of reference that are empty vessels into which the Court, like complainants, can pour any meaning they wish – terms such as “self-esteem,” “self-worth,” or how one “legitimately feels” – being the touchstones of section 15 analyses, the Court has preserved once again its broad prerogatives of discretion under the Charter. Iacobucci’s emphasis on the subjective perspective of the complainant as the litmus test in section 15 analyses means that the therapeutic ethos will further judicial rationalism under the Charter. It will allow the Court, again, to control more and more of the social and political agenda of Canadian life, redistributing political power and social and economic resources as the Court sees fit.

c onc lusion On the face of it, the Supreme Court’s holdings in Vriend and M. v. H. fit many of the characteristics political commentators have described as definitive of the elite-driven politics of advanced Western democracies. In both cases, the rights of religious freedom and freedom of association, as well as the prerogatives of the Alberta and Ontario governments, were arguably subordinated to the interests of a powerful political community that represented only one side in a heated, divisive cultural conflict, a conflict that has been typified by immoderate claims on all sides of the argument. The Court’s broad generalizations in these cases, its willingness to engage in evidentiary conclusions that lacked hard empirical proof, and the confidence with which it ascertained that the exclusion of sexual orientation from the irpa and same-sex spouses from section 29 of the fla could only be the result of discrimination, was of a piece with Thomas Sowell’s description of the vision of the anointed: of a pervasive doctrinairism that obviates the need for concrete evidence or adequate explanation when indulging in legal and political reforms that have the correct results (Sowell 1995, 1–6).

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Perhaps the results in these cases were correct. Perhaps the reluctance to include sexual orientation under the irpa or to include homosexual couples as spouses under section 29 of the fla simply reflected the irrational prepossessions of conservative legislators in Alberta and Ontario.50 On the other hand, perhaps the positions taken by the Alberta and Ontario governments reflected what the majority of Albertans and Ontarians, in addition to their representatives, thought was best at the time. Whatever outcome was correct in these cases, there is little dispute that the issues involved were matters of policy which the framers of the Charter contemplated to be within the prerogative of legislators to decide. Janet Ajzenstat has suggested that the Charter has raised doubts not only about the ability of Parliament to protect minorities but about the very appropriateness of partisan debate to determine policies beneficial to the nation as a whole (Ajzenstat 1997, 648). Is this what Vriend and M. v. H. portend? Do they undermine the condition for free speech that underwrites liberal constitutionalism: that there can be no privileged arguments in Canada’s deliberative assemblies?51 On the other hand, do they reflect what Morton and Knopff have referred to as the influence of the “Court Party,” a coalition of social interests that have utilized, as well as promoted the growth of, judicial power? (Morton and Knopff 2000, 21, 24–32). Although pluralism is alive and well in Canada and the influence of elite-based politics may have little salience in the legislative arena, it is dominant in the insulated world of judicial review. As Lino Graglia has noted, U.S. Supreme Court rulings of unconstitutionality have not been random. With few exceptions, they have enacted the policy agenda of the American left. This fact explains the popularity of judicial review among American academics and other members of its educational and cultural elite. “It would be only a small exaggeration to say that the American Civil Liberties Union never loses in the Supreme Court, even though it does not always win” (Graglia 1997, 411). So too in Canada. Groups such as leaf and egale may suffer momentary setbacks, but they are left free to try again and have had a tremendous record of success relative to the conservative groups that have opposed them. egale was only able to achieve recognition of sexual orientation as an analogous ground in Egan and failed to have the legislation challenged overturned, but four years later in M. v. H. it achieved unqualified victory. The Court’s opinion in M. v. H. bristled throughout with references to egale and leaf, accepting virtually all of their arguments on the most important issues. Perhaps this outcome was to be expected. Judges are influenced by interest groups, journalists, legal academics, and other members of

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the intelligentsia. The influence of legal scholars as important partners in the growth and development of Charter law has been well documented (Morton and Knopff 2000, 138; see, generally, 129–47). The emergent judicial rationalism in Charter jurisprudence also requires reliance on the articulated rationality of intellectuals to provide the foundations for social reform that are to guide the judiciary in its program of social and political reconstruction. The elaborate constitutional arguments offered up to the Supreme Court of Canada by legal academics after Justice McClung’s indictment of the liberal judicial activism of the Canadian judiciary are precisely what we would expect in today’s legal and educational climate. Lynn Wardle has remarked that the judiciary is particularly susceptible to academic opinion because “[j]udges are the most library-dependent public officials” (Wardle 1996, 24). Insulated from the pressures of public opinion by life-tenured appointments, removed from the corridors of executive and administrative power, where serious policy error is prevented by special expertise and political accountability, the judiciary relies more than these other branches of government on academic and elite opinion (Wardle 1996, 24–6). This departure is particularly evident where, as in cases such as Vriend and M. v. H., what is at issue are broad questions of social policy and legislative and historical development, matters with which judges are not very conversant. In the case of homosexual rights, enlisting academic opinion may have been particularly advantageous since legal scholars appear to favour a broad construction of such rights.52 In Vriend the opinions of Justices Cory and Iacobucci were fortified throughout by legal academic authority, helping to pave the way for the Court’s expansive interpretation of both sections 15 and 32. The same was true of the Court’s democratic process theory. Originating most notably in Ely’s Democracy and Distrust, this theory was almost entirely an academic concoction. The therapeutic constitution redistributes political power and social and economic resources in the name of an equality that can never be perfected, leaving open the possibility of potentially unlimited judicial intervention on behalf of those constituencies which the Court believes to be vulnerable to psychological injury and mistreatment at the hands of the statistical majority. Should Justice Cory’s admonition that harm to “personal confidence” and “self-esteem” or Justice Iacobucci’s evocation that how a person “legitimately feels” become touchstones for section 15 jurisprudence, Canadian courts will be very busy in future accommodating the claims of groups that do not succeed in the rough-and-tumble world of democratic politics. The Court in Vriend suggested that the Alberta government had recourse to

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section 33 of the Charter if it was unhappy with the outcome of the decision. But given the political unpalatability of the override, described by Christopher Manfredi in chapter 5 of this book, this solution is impractical. Combined with Justice Iacobucci’s declaration that Canadian courts are now to act as judicial censors, weighing and balancing not only constitutional rights but also the broad array of political interests that constitute democratic politics in Canada, the Court’s opinions in Vriend, M. v. H., and Law have the potential to precipitate judicial intervention in Canadian representational politics of an unparalleled variety. Although there have been assurances that the Court’s new powers will be exercised responsibly and with restraint, Egan, Vriend, and M. v. H. reveal a unidirectional judicial rationalism increasingly impatient with Canada’s liberal constitutional form of government, with those institutions and procedures that facilitate deliberative democracy, political compromise, incremental social change, and coalition-building on a broad base. In the name of a trenchant egalitarian justice that has filtered popular prejudices from the political landscape and that now proposes to purify the democratic process itself, the Supreme Court’s profligate equality rights jurisprudence has rendered politics a species of pathology and judicial review an instrument of therapeutic reform.

not es 1 I would like to thank the editors, Mark E. Rush, Christopher P. Manfredi, Rainer Knopff, Ray Bazowski, Gretchen A. Gimpel, Iain T. Benson, and the anonymous reviewers of this book for their comments on earlier drafts of this chapter. I would also like to thank T. Alan Russell, George B. Martin, Emilio J. Pacheco, Douglas J. Den Uyl, and the directors and staff of Liberty Fund, Inc., of Indianapolis for their generous support during a leave of absence from Utah State University in 1999–2000, when this chapter was originally written. The opinions expressed in the chapter are my own and are not those of Liberty Fund, its directors, or staff. 2 The act is now known as the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 1980, c.H-11.7. 3 See Morton 1998, 50–1; Manfredi 1993, 138; Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and House of Commons of the Constitution of Canada, 32nd Parliament, 1st Session (cited in Manfredi 1993, 138n55); and Vriend v. Alberta, 617 (Alta. C.A.). I should note that although I agree with James Kelly, in this volume, that the distinction between judicial activism applied to elected public officials and judi-

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cial activism applied to unelected public officials, such as the police, may make a difference respecting the effect of judicial activism on liberal constitutionalism, I disagree with his critique of interpretivism. In particular, I believe that Kelly places too much emphasis on party discipline and executive control of legislative committees during majority government. Accordingly, he understates the significance of the Special Joint Committee in providing evidence of Charter intent. The idea that “Trudeau’s vision” could serve as an adequate guide for Charter jurisprudence fails to account for how vague such a theory is. It would provide little, if any, guidance regarding how to construe particular constitutional provisions and would allow judges to make of the Charter what they wanted. Morton and Knopff estimate that M. v. H. had the potential to affect fifty-eight federal statutes in addition to hundreds of provincial ones. This is listed as one of the guiding principles regarding relationship recognition for Equality for Gays and Lesbians Everywhere (egale), one of the principal interveners in Vriend and M. v. H. See egale 1999. Morton and Knopff (2000, 201n44) note that the “Klein Government’s own surveys after the Supreme Court’s ruling in Vriend indicated that only 1 per cent of Albertans identified ‘human rights’ or ‘gay rights’ as a ‘main issue of concern’ in response to an open-ended question. See ‘Report of the Ministerial Task Force,’ 3 March 1999: 5 [unpublished].” This doctrine was first developed in Plessy v. Ferguson (1896). According to McIntyre, formal equality would overlook discriminatory legislation in the name of an abstract formalism. Moreover, it might work to render unconstitutional legislation that differentiated between individuals for perfectly legitimate reasons. He pointed to various provisions of the Charter – section 27 (multicultural heritage), section 2(a) (freedom of conscience and religion), and section 25 (Aboriginal rights and freedoms), in particular – as evidence that certain legislative classifications which distinguished between individuals were constitutionally acceptable. In addition, section 15(2), permitting legal classifications that had as their object the amelioration of the conditions of the disadvantaged, was further evidence of a recognition that identical treatment could produce serious inequality. In Law v. Canada (Minister of Employment and Immigration), 14, Justice Iacobucci observed that in Andrews Justice McIntyre had “explained that the determination of the impact of legislation, by its nature, must be undertaken in a contextual manner, taking into account the content of the law, its purpose, and the characteristics and circumstances of the claimant, among other things. Hence, equality in s. 15 must be viewed as a substantive concept.” “ ‘[E]quality before the law,’ ” Ritchie wrote, “is to be treated as meaning equality in the administration or application of the law by the law

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enforcement authorities and the ordinary courts of the land.” (Attorney General of Canada v. Lavell, 1366). See Knopff and Flanagan 1990, 42. 11 See Hogg 1997, 1270–1: Systemic discrimination is caused by a law that does not expressly employ any of the categories prohibited by s.15, if the law nevertheless has a disproportionately adverse effect on persons defined by any of the prohibited categories. In other words, a law that is neutral (nondiscriminatory) on its face may operate in a discriminatory fashion; if it does, the discrimination is systemic. An example is a law imposing height or weight requirements on persons entering the police force. If such a law had the effect of excluding women from entry to the force, it would count as discrimination on the basis of sex, even though the law made reference only to height or weight, and said nothing about sex. Systemic discrimination may be unintended, as would be the case in my police example if the framers of the height or weight requirements believed the requirements to be bona fide occupational requirements for a police officer. Systemic discrimination may also be intended, as would be the case if the height or weight requirements were a covert device to exclude women from the police force. Because intention is not an ingredient of discrimination under s.15, it is not necessary to make any judgment about whether a case of systemic discrimination is intended or not. The mere fact that the law has the effect of discriminating against persons defined by a prohibited category is enough to establish the breach of s.15. 12 In Weatherall v. Canada (1993), 210, for instance, a male inmate challenged a federal penitentiary’s practice of allowing female guards to perform frisk searches and to observe the cells, including washroom facilities, of male prisoners. Female inmates were not visited with the same treatment by male guards. Summarizing with approval the holding in Weatherall, Justice Iacobucci in Law v. Canada (1999) remarked on behalf of a unanimous court: “in Weatherall ... it was stated that the decision to permit cross-gender prison searches of male prisoners but not of female prisoners likely did not violate s. 15(1), because such a difference in treatment was appropriate in light of the historical, biological and sociological differences between men and women” (Law v. Canada, 30–1; see also Hogg 1997, 1268). The rights of males and females were conditional, dependent on the status of the respective groups in society as the Court perceived this status. A similar line of reasoning had been developed four years prior to Weatherall in R. v. Turpin (1989), where Justice Wilson had argued, again

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for a unanimous court, that mere legal disadvantage was insufficient to establish a claim for analogous grounds status under section 15. A complainant would also have to prove that disadvantage existed “apart from and independent of the particular legal distinction being challenged” (R. v. Turpin, 1322). Plaintiffs would have to establish “the context of the place of [their] group in the entire social, political and legal fabric of our society,” in addition to the “context of the law which is subject to challenge” (ibid., quoting Andrews v. Law Society of British Columbia, 152, per Wilson J.). Although the Court in 1999 disavowed the existence of a strict dichotomy between advantaged and disadvantaged groups within which each claimant had to be classified (Law v. Canada, 29, per Iacobucci J.), it emphasized that “pre-existing disadvantage, vulnerability, stereotyping, or prejudice” was “probably the most compelling factor favouring a conclusion that differential treatment imposed by legislation is truly discriminatory” (ibid., 27). 13 Two years after R. v. Turpin (1989), where Justice Wilson described the purposes of section 15 as being to remedy or prevent “discrimination against groups suffering social, political and legal disadvantage in our society” (R. v. Turpin, 1333), Chief Justice Lamer repeated similar objects for section 15. See R. v. Swain, 992, Lamer remarking that the overall purpose of section 15 is “to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage, and political and social prejudice in Canadian society.” In Eaton v. Brant County Board of Education (1997), Justice Sopinka described the purpose of section 15(1) as “not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society” (Eaton, 405). Most recently Justice Iacobucci summarized the purpose of section 15(1) in these terms: that it is to remedy “such ills as prejudice, stereotyping, and historical disadvantage” (Law v. Canada, 19). 14 See Sowell 1980, 1311–12; 1984, 38–42. Sowell notes that the first use of “affirmative action” was in the 1935 Wagner Act, a federal statute in the United States that attempted to provide remedies to union organizers and members harassed by employers (1980, 1310). It was not until the 1960s that affirmative action was applied to promote opportunities for racial and ethnic groups. By the 1970s its purpose had been changed to promoting numerical outcomes in employment and education for protected classes of citizens. Now defended more as a remedy for disadvantage than for discrimination, affirmative action since the 1960s has shifted, in a manner reminiscent of section 15 jurisprudence, from a prospective policy focusing on individual equal opportunity to a retrospective policy focusing on increasing statistical parity between desig-

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nated classes of beneficiaries in employment, education, and other specified areas. See Sowell 1984, 40–2. 15 See also Peacock 1996, 133: It is precisely the inability to prove discrimination that makes affirmative action such an appealing remedy over and above the traditional safeguards to minority rights. Whereas anti-discrimination laws concentrate on individual cases and require a finding of liability on the part of the responding party to invoke a remedy, a process that can be inefficient and costly, affirmative action focuses on disadvantages that can be statistically proved to be suffered by certain groups, ameliorating the condition of collectivities regardless of the facts of any individual case. Affirmative action avoids the expense and ostentatious morality associated with prosecuting anti-discrimination cases while providing those unfortunate minorities with the employment opportunities and income they otherwise would not have. 16 Contextuality analyses are those section 15 investigations where the Court assesses the social, legal, and historical context of a claimant’s group. 17 The strict scrutiny test requires that state and federal laws that create “suspect classifications” or infringe “fundamental rights” be upheld only if they advance a compelling governmental interest and are narrowly tailored to meet that interest. For a discusssion of the levels of constitutional review in American equal protection law, see Rossum and Tarr 1999, 453–72. 18 Ely (1980, 87) described his theory as “a participation-oriented, representation-reinforcing approach to judicial review.” 19 In Andrews, for instance, Justice Wilson, citing Ely, elaborated on Justice McIntyre’s remarks about discrete and insular minorities. Non-citizens, she observed, were “a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated.” 20 See, generally, Horowitz 1977, 1–67, 255–98; Morton and Knopff 2000, 107–47; Wolf 1981, 251–82; Huber 1991, 9–23, 194–228; Glendon 1991, 18–46, 171–83; and Peacock 1996, 123–4, 152. 21 See Horowitz 1977, 45: social or legislative facts “are the recurrent patterns of behavior on which policy must be based,” whereas adjudicative or historical facts “are the events that have transpired between the parties to a lawsuit.” As Horowitz demonstrates, courts are well suited to resolving questions of adjudicative or historical fact but not social or legislative fact. See also Morton and Knopff 2000, 142–3: Th[e] new reliance on social facts to resolve Charter cases introduces a myriad of problems. The adversarial process was not designed to elicit

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or test the reliability of social facts, since there is no guarantee that the relevant social facts will be brought before the court. Even when they are, there is a question whether judges will understand them ... These problems are not academic. Both sides have a vested interest in presenting self-serving accounts of the policy problem before the court. There are many social scientists willing to work as expert witnesses who, for a price or out of ideological conviction, will present skewed or misleading evidence to the court. The hired-gun syndrome was a problem prior to the Charter, but the recent trend toward selfproclaimed advocacy research in policy studies has exacerbated it. Anyone who has participated in Charter litigation knows this syndrome only too well. 22 McClung emphasized that permitting the judiciary to resolve contentious issues of moral and social consequence allowed legislators to avoid responsibility for making such decisions themselves and dealing with the consequences at elections. This was hardly a recipe for responsible government. See Vriend v. Alberta [C.A.], 607. 23 See also Vriend v. Alberta [C.A.], 614: “enthroned judicial solutions, even in Charter matters, are generally less responsive to daily societal problems than law and policy when they are made by either of the twin parliamentary levels of the Canadian polity.” 24 Rush (1998) discusses the conflict in Vriend between sexual orientation protections and religious belief, religious freedom, and associational rights. 25 In M. v. H. the majority’s narrow construction of the social, legal, and political implications of same-sex unions prompted Justice Gonthier, who had joined the Court in Egan, to dissent. He remarked that the majority’s construction of the fla was insensitive to the legitimate position taken by the Ontario government and failed to appreciate the “elemental social and legal issues” raised by the appeal. According to Gonthier, the decision marked a potential “watershed” in Canadian law that would have “far-reaching effects.” (M. v. H. [D.L.R.], 647). Justice McClung had raised a similar concern in Vriend when he expressed diffidence toward “any judicial approach which finds a Charter-barred distinction by identifying (or assuming) adverse effects on an individual or a group from an apparently neutral statute which neither confers nor denies benefits to, or withdraws protection from, any Canadian.” Such a constitutional adventure had “no rational limits” and “would place impossible shackles upon provincial or territorial legislatures.” (Vriend v. Alberta [C.A.], 610). 26 Coolidge (1997, 38) has pointed out, in the context of the same-sex marriage dispute in Hawaii: “All sides in the debate agree that a society’s legal definition of marriage represents a tremendous source of influence

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upon the experiences, expectations, and actions of individuals, relationships, organizations, and government itself. Without a doubt, its ripple effects permeate the social order. That is why it is a subject of such intense and widespread interest.” See the discussion of this conflict of referents in Rush (1998), referred to at note 24. As Rush in this volume points out, Black misinterprets Ely, contradicting him (see esp. note 10). Similarly, Justice Iacobucci misapplies Ely’s theory. Ely would not have objected to the Alberta government’s refusal to include sexual orientation in the irpa as a malfunction of the democratic process. For a discussion of the relationship of knowledge to power in Canadian judicial politics, see Morton and Knopff 2000, 129–47. As the authors summarize, “The role of legal academics in promoting the Charter, and thus judicial power, represents the confluence of several factors: the collective self-interest of lawyers, the recent independence of Canadian law schools from the legal profession, and the new postmodern orthodoxy that has captured the universities, and especially the law faculties, in the past decade” (130). The most important case here was Griggs v. Duke Power Co. (1971), where the U.S. Supreme Court incorporated a discriminatory effects test into Title vii of the Civil Rights Act of 1964. According to Walter Tarnopolsky, the earliest Canadian case to apply an effects definition of discrimination was Tharp v. Lornex Mining Corporation Ltd. (B.C., 1975); see Tarnopolsky 1982, 114. Tarnopolsky discusses Griggs at 89–92. See, for instance, Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. and Bhinder v. Canadian National Railway Co. The word “government” in section 32 was to be construed narrowly, referring “not to government in its generic sense – meaning the whole of the governmental apparatus of the State – but to a branch of government” (R.W.D.S.U., Local 580 v. Dolphin Delivery, 194). To the extent that the Charter applied to the common law, it did so “only in so far as the common law is the basis of some governmental action which, it is alleged, infringes a guaranteed right or freedom” (ibid., 195). The following analysis of McKinney relies heavily upon Manfredi’s (1993, 147–52) analysis of the case. Hogg (1997, 930–1) has observed that the remedy proposed by the Court of Appeal in Haig was “a good deal more radical than Krever J.A. [the author of the court’s opinion] acknowledged. The Court’s reasoning would apply to all grounds of discrimination that are analogous to those listed in s. 15 of the Charter of Rights. We know, for example, that ‘citizenship’ is an analogous ground, and other grounds will in due course be recognized by the courts. Thus, the Court’s decision to read

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into the [Canadian Human Rights] Act the added ground of sexual orientation has the potential to extend the scope of the Act in ways that are difficult to predict.” 35 See also Justice Dickson’s remarks in Hunter v. Southam, Inc. (1984) that the Charter was “not in itself an authorization for governmental action” (quoted earlier at 37). 36 See Vriend v. Alberta (C.A.), 628, O’Leary J.A. concurring, following the argument of Hollinrake J.A. in Eldridge v. British Columbia (Attorney General) (1995), 339; emphasis in original. See also Vriend v. Alberta (C.A.), 610, McClung J.A., citing with approval Iacobucci J. in Symes v. Canada (1993), 559. 37 As L’Heureux-Dubé remarked in McKinney (691), “The Charter should serve to prevent overt discrimination in human rights legislation, but it should not be applied in such a manner as to discourage the use of such legislation by the provinces, or to interfere with a legitimate provincial decision not to provide rights in a given area.” 38 In Colgrove v. Green (1946), 556, Justice Felix Frankfurter referred to “unfairness in districting” as a “political thicket” into which “[c]ourts ought not to enter.” 39 In Reference Re. Saskatchewan Electoral Boundaries Commission (1991) 35, the Court ruled that section 3 of the Charter provided a right to effective representation, in addition to the right to cast a ballot. 40 See Rush in this volume, quoting the brief of Lawrence Tribe, John Hart Ely, et al. in Romer v. Evans: “States have no affirmative duty to enact or retain special laws for each group that might be victimized by discrimination, just as they may well have no affirmative duty to enact or retain laws directed at other forms of mistreatment. But it is quite another matter for a state absolutely to preclude, for a selected and specified set of persons, even the possibility of protection under any state or local law from an entire category of injurious conduct at least some of which is concededly wrongful rather than privileged” (emphasis added). In Romer, what was at issue was a Colorado state constitutional amendment prohibiting state and local governments from extending special protections to homosexuals. 41 Robert Bork and Christopher Wolfe have criticized Ely’s theory on such grounds. According to Bork (1990, 196), Ely’s theory does not reinforce democratic representation so much as the “judicial power to redistribute the polity’s goods.” Wolfe (1994, 351–2) has written: The question is whether Ely’s conception of “representation,” especially in the form that requires “equal concern and respect” for all, does not lend itself to justifying virtually any decision that a judge would feel strongly about on substantive grounds. One suspects that if Ely’s theory of judicial review became widely accepted by the judiciary,

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it would frequently be used to strike down cases over his objections that it was not being used properly ... Even to the extent that it did succeed in imposing some limits on judges, the scope of judicial review [under Ely’s theory] would still be so broad as to raise the democratic objections that he himself elaborates against fundamental values judicial review. 42 Rush again refines the arguments in this paragraph in compelling detail in his chapter. 43 The Court did so on the grounds that no progress toward recognition of homosexual rights had been made, despite numerous attempts by homosexual rights advocates to have sexual orientation included in the irpa (Vriend v. Alberta [D.L.R.], 433–4). Iacobucci added (434): [I]n Egan, writing on behalf of myself and Cory J. [dissenting], I took the position that the need for governmental incrementalism was an inappropriate justification for Charter violations. I remain convinced that this approach is generally not suitable for that purpose, especially where, as here, the statute in issue is a comprehensive code of human rights provisions. In my opinion, groups that have historically been the target of discrimination cannot be expected to wait patiently for the protection of their human dignity and equal rights while governments move toward reform one step at a time. If the infringement of the rights and freedoms of these groups is permitted to persist while governments fail to pursue equality diligently, then the guarantees of the Charter will be reduced to little more than empty words. 44 For a summary of the inquiries that must be made in a section 15(1) analysis, see Law v. Canada, 19. 45 This access has also been facilitated by the Court Challenges Program, which has provided public funding for Charter challenges. See Morton 1998, 36–7. 46 The distinction between “constrained” and “unconstrained” visions of social process is developed by Sowell (1987, 99–105). 47 Lasch (1995, 6) argues that the word “democracy ... has come to serve simply as a description of the therapeutic state.” He describes the elements of this state throughout his book. See, in particular, his discussion of the “therapeutic world view” in chapter 12 (213–29). 48 On the role of psychiatric and psychological evidence and how it has undermined responsibility in American criminal law, see Wilson 1997. 49 Egan v. Canada, 677, per Cory J. (dissenting): “Ultimately it must be remembered that the question as to whether or not there is discrimination should be addressed from the perspective of the person claiming a Charter violation.”

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50 Mark Rush points out in his chapter that, shortly after Vriend, over threequarters of Albertans surveyed approved of including sexual orientation in Alberta’s human rights legislation. A bare majority supported same-sex marriage. In the face of these facts, how compelling is the argument that the actions of the Alberta legislature reflected the deep-seated opinions of the majority of Albertans? 51 Ajzenstat 1997, 661; see also 654: “Freedom of political speech is possible only where the rule of law obtains. Debate is free only if there are no privileged arguments in the political arena, no political issues or beliefs that the citizens cannot examine, criticize, reject. The best guarantee that there will be no privileged arguments lies in the idea that no one is above the law, that is, that no parties or persons are able on the basis of race, origin, creed, birth, to claim privileged status for their demands.” 52 “In legal academia,” writes Graglia (1997, 427), “gaining full approval of homosexuality is the cause celebre of the day, the current litmus test of the correctness of one’s thought and the strength of one’s commitment to necessary ‘social change.’” Documenting the ideological predisposition of American law journals and periodicals addressing same-sex marriage, Wardle (1996, 18–20) found: Between 1970 and 1975, the record was somewhat balanced; three of ... eight law review publications about same-sex marriage (38%) criticized or opposed same-sex marriage. In contrast, between 1990 and June 1995, only one of seventy-two articles, notes, comments, or essays focusing primarily on same-sex marriage (only 1.4%) fully defended the heterosexuality requirement for marriage (though it did so on religious, rather than legal grounds). Only two other law review pieces about same-sex marriage published during that period primarily criticized constitutional arguments for same-sex marriage, while at least as many others attacked marriage as an institution for same-sex, as well as heterosexual, couples. All of the other (sixty-nine) pieces advocated, supported, or were generally sympathetic to samesex marriage. Thus, the defense of the unique legal status of heterosexual marriage clearly has not been fairly or adequately presented in the law reviews. Greener (1997) has found a similar imbalance in Canadian legal academic opinion on the subject of the family. As Morton and Knopff (2000, 142), report, Greener’s 1997 study of 22 law review articles discussing the definition of the family (all published since 1982) found ... [that w]hile the broader literature revealed a lively debate about the merits of the

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family, including defenses of the traditional family, the law journal articles were “uniformly critical of ‘familial ideology’ ... [especially] the ‘traditional family,’ ” which was portrayed as “the ideological centrepiece of heterosexual supremacy.” The only serious disagreements in this literature was whether to seek a partial deconstruction of the heterosexual definition of the family so as to allow homosexual marriage, or to pursue “a more radical deconstruction that aims to abolish any meaningful distinctions between family and non-family.” (Citing Greener 1997, 9, 51, and 7). Perhaps, then, the universal condemnation of McClung’s opinion in the law schools following the Alberta Court of Appeal’s decision should have been expected. As Wardle hypothesizes about writing unpopular opinions unsympathetic to gay and lesbian goals: “Why write such articles if they are going to be hard to place for publication and if publication of them will result in hostility, professional blackballing, ostracization, retaliation, and other punitive acts of intolerance for breaking the code of silence?” (Wardle 1996, 22–3).

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2 Judicial Supervision of the Political Process: Canadian and American Responses to Homosexual Rights Challenges MAR K E. R USH

In two recent cases addressing homosexual rights challenges to Canadian provincial legislation and an amendment to an American state constitution, the respective nations’ Supreme Courts declared that the challenged actions infringed upon the plaintiffs’ right to participate equally in the political process (Vriend v. Alberta and Romer v. Evans). Both Courts based their decisions on the writings of John Hart Ely (1980), who singled out homosexuals as the prototypical “discrete and insular minority” for whom courts ought to be especially solicitous. These decisions raise important issues concerning the “countermajoritarian difficulty” that inheres in the exercise of judicial review (see, e.g., Ely 1980; Bickel 1978; Tushnet 1995) and the scope of rights to participate in the political process. While judicial review of legislation is naturally controversial, its counter-majoritarian impact is diminished when challenged legislation runs afoul of clearly stated constitutional rights. But when judicial review is exercised on the basis of expansive or questionable interpretations of constitutional provisions, it is more controversial because the constitutional transgressions (and therefore the basis for judicial negation of a statute) are not clear. The decisions in the homosexual rights cases are especially controversial because the two Courts struggle – with little success – to clarify the conception of political fairness on which they justified their intervention in the political process. This situation arises, I argue, because the nature of the judicial process itself forces courts to look, not at the

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political or electoral process, but instead at only a discrete component of it. That is, by definition, any process – including the political process – is ongoing. However, adjudication requires courts to distill cases down to discrete rights claims (see Bickel 1978; Horowitz 1980). Therefore the fairness of a political process cannot be accurately assessed on the basis of a discrete phase of political conflict on which a rights claim is based. In fact, I suggest that judicial establishment of a discrete rights claim (based on an isolated event in an otherwise continuous political process) actually miscasts the nature of the political process that Ely would have courts preserve. A jurisprudence of the political process needs to be predicated on a clear vision – perhaps a theory – of political conflict, such as that set forth by James Madison in Federalist 10. Insofar as “the seeds of faction are sown in the nature of man,” Madison argued that individuals will naturally seek to pursue their common interests in terms of policy outcomes that will inevitably be partisan. They will therefore be zero-sum as far as their political opponents are concerned. Even if policies are not intentionally partisan, any such policy – even one that has unanimous legislative support – will embody a certain element of bias either from the point of view of those who are not represented in the legislature or, perhaps, from future legislatures or generations of citizens (see Shepsle and Bonchek’s discussion of Arrow’s theorem, 1997, 63–80). Ely’s theory embraces the Madisonian vision of political conflict: majorities are entitled to govern – even at the expense of competing minority political agendas – so long as the governing party does not obstruct the channels of political change. The American Court’s decision in Romer embraces this vision of political conflict and the liberal theory of freedom on which it is based. For liberals, freedom is best guaranteed by restraining the power of the government. As Hanna Pitkin notes, in Madison’s government, “the danger is action and the safeguard is stalemate, or, as he would have it, balance.” For Madison, “representation is a means of stalemating action in the legislature, and thus in society, until wisdom prevails [over the naturally egoistic factional interests]” (1967, 195–6). As I shall discuss, the Romer decision remains faithful to both Madison and Ely. The Canadian Court cited Ely and the Romer decision in Vriend, but it arrived at a conclusion antithetical to Ely’s and the American Court’s reasoning. This outcome was due not only to its misreading of Ely but also to its embracing visions of a fair political process and freedom with which he and Madison would disagree. As Shannon Smithey notes in this volume, the Canadian Court is caught in a battle between

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what Thomas Bateman (1998) describes as liberal and post-liberal visions of constitutionalism. Whereas the former emphasizes individual liberty and embraces governmental restraint, the latter emphasizes equality and sees positive government action as a necessity for, not a threat to, the protection of individual freedom. Anthony Peacock’s discussion in this volume indicates that, in the wake of the Charter, the Canadian Court has come to advocate the post-liberal constitutional vision. Echoing Tocqueville’s celebration of limited government in Democracy in America, critics such as Peacock contend that this position is at best unfortunate and at worst a threat to democracy. In this chapter, I argue from a slightly different perspective. The Canadian Court’s post-liberal mindset is based on a vision of political conflict – and a corresponding vision of the judicial role – which is at odds with the liberal vision of limited government that informs not only Tocqueville but also Madison and Ely. The “stalemate” vision of Madisonian democracy described by Pitkin inevitably favours the more powerful interests in a society. In the absence of governmental action, the more powerful or better organized are more likely to succeed than their weaker counterparts. So long as the government is never colonized by – and therefore becomes the discrete apparatus of – a Madisonian majority faction, liberal constitutionalism allows majorities to govern freely. The post-liberal vision imposes on the government the responsibility to act on behalf of interests that disagree not only with the government’s action but, in the case of Vriend, with its inaction as well. Thus a post-liberal court is willing not only to strike down legislation that offends clearly stated constitutional provisions but also to alter the substance of legislation on behalf of particular minority interests that may not be accommodated by the majority agenda. Were we to regard courts as the apolitical interpreters of law described by Alexander Hamilton in Federalist 78, the judicial activism that accompanies a post-liberal constitutionalism might be uncontroversial or at least unremarkable, despite its counter-majoritarian impact. However, political science analyses of judicial behaviour (e.g., Epstein and Knight 1998; Segal and Spaeth 1993; see also Manfredi, this volume) describe judges and courts as politically motivated, strategic actors that seek to advance their own individual and collective agendas. Judges do not, as Hamilton argued, merely “declare the sense of the law” (Rossiter 1961, 469). They cannot help but interpret it in keeping with their own political agendas. This vision forces observers to reconsider the role that courts play when striking down legislation or, in the Canadian case, reading meaning into it in order to accommodate the demands of political groups that challenge the legislative majority. If courts are indeed

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political actors, then we cannot assume (and their members cannot contend) that they have a better sense of constitutions or statutes than their legislative counterparts. Instead, we must regard courts as naturally political actors that proffer rival – not necessarily better – constitutional visions (see, e.g., Fish 1999). In the same spirit, however, we cannot assume that courts would be capable of pursuing the clearly efficient (as opposed to distributive) constitutional vision advocated by the editors in the introduction to this volume. This statement is not meant to sound nihilistic; I mean only to suggest that we cannot dispense with one assumption without dispensing with the other. The editors argue that the Canadian Court is trapped by the tension between social choice literature on the one hand and a “Rawlsian paradox” on the other. They distinguish between the role that the Court has assumed and the role that it should play. The latter is in keeping with Ely’s theory of judicial review insofar as the judiciary would police the political and representative processes to ensure that they operated in a fair – that is, in our editors’ terms, efficient – manner. In this respect, the judiciary would serve as a disinterested referee of the political process. Instead, the editors argue, the Canadian Court has become a biased actor, interfering in the inherently partisan distributive politics of the legislative process and substituting its own distributive vision for that of the legislature. As a result, it is concerned with more than simply ensuring that the political processes of bargaining and negotiation are conducted on fair terms. Its decision in Vriend indicates that the majority of the justices deny that the fairness of the political process and the resolution of any discrete political conflict can be assessed on the basis of any clear set of ground rules. Instead, the Court’s standard of fairness is a conditional one that depends upon the nature of the parties to a particular conflict and the substance of the outcome of a political conflict. While the American Court’s resolution to Romer v. Evans appeared to be as favourable to the homosexual litigants’ agenda as the Canadian cases, the decisions are in fact quite dissimilar in their assessment of the scope they assign to the right to participate in the political process. The result of this divergence is a stark difference in (1) the two courts’ definitions of a fair political process; (2) the number and type of group for whom the respective courts ought to be especially solicitous; and (3) the role the two courts choose to play as a countermajoritarian force in their respective constitutional systems. In Romer the American Court struck down an amendment (passed by popular initiative) to Colorado’s constitution that would have removed sexual orientation as a basis for filing a discrimination suit.1 The Court stated that the amendment singled out homosexuals and

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took away rights that heterosexuals still retained. As a result, the Court concluded that it infringed upon homosexuals’ right to participate equally in the political process. Vriend embodied a different set of circumstances. Instead of denying specific rights to homosexuals, Alberta’s Individuals Rights Protection Act (irpa) simply failed to extend certain benefits to them. Thus, instead of singling out homosexuals and discriminating against them (as Colorado’s Amendment 2 did), the irpa simply identified other groups that Alberta sought to protect against discrimination. The government of Alberta had argued that the irpa was not an act of discrete discrimination. Instead, it was a legislative attempt to resolve some – but not all – issues of discrimination. As a result, homosexuals and any other group that were not mentioned in the irpa were not given the same protections or causes of legal action afforded to the statutorily enumerated groups. Despite the formal differences in the two cases, the Canadian Court declared that the government’s failure to accommodate homosexual demands and include them in the statute was comparable to the discrimination embodied in Amendment 2. But instead of simply declaring the offending parts of the irpa unconstitutional, it essentially rewrote the act by “reading in” sexual orientation as a protected group.2 The practice of reading substance into existing legislation is controversial for several reasons. In the context of the Peacock and Smithey contributions to this volume, we see that reading in is a classically post-liberal judicial action. While this conclusion may not, in itself, be remarkable, the practice, in connection with the Canadian Court’s willingness to alter legislation on behalf of groups that are not designated by the Charter but are, in its words, “analogously situated,” adds an element of unpredictability to constitutional interpretation that undermines the government’s capacity to legislate. As Peacock extensively documents in this volume, the Canadian Court has been solicitous toward claims made by an ever-expanding number of political groups that are not designated in the Charter. Since these groups arise in response to legislative losses, their political salience is not clear – until they suffer a legislative loss. However, since, as Peacock documents, the Court’s solicitousness is group-specific, the legislature cannot anticipate whether or how a piece of legislation might run afoul of the Court. This situation results in what Mark Tushnet (1995) describes as “democratic debilitation.” A governing majority is “debilitated” to the extent that it legislates strategically, in order to minimize the likelihood of judicial action, and therefore does not freely pursue its partisan agenda. While this limitation would appear to be part of the cost of doing business in a consti-

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tutional system, the debilitation is exacerbated if the legislature is unable to anticipate or predict the conditions under which the Court will strike down legislation. In this respect, I suggest that the Canadian Court has undermined one of the key elements of the legitimacy of the common-law tradition: jurisprudential predictability. As Oliver Wendell Holmes noted, “the law is what the courts will do in fact, and nothing more pretentious” (Smith 1952, 173). Since the Canadian Court’s approach to minority rights includes recognition of claims by groups that have not been statutorily or constitutionally enumerated, the legislature cannot possibly know whether a particular group will gain the Court’s favour. Beginning with Andrews v. Law Society of British Columbia, the Canadian Court has steadily expanded the doctrine of standing to include not only traditional groups that are enumerated in the Charter but also any other group that it regards as being “analogously situated in Canadian society.”3 The problem with this expansion along “analogous” lines is that a legislative majority cannot know whether a group has standing to challenge legislation such as the irpa or the Family Law Act of Ontario (fla) until, first, it refuses to incorporate the minority’s agenda into legislation and then the group subsequently wins the Supreme Court’s sympathies. Under such circumstances, there is no incentive for a legislative minority group to moderate its demands because there exists the chance that it can enlist the Court to force the government to accede to its demands, even if they are antithetical to the majority’s agenda.4 In Vriend, for example, Justice L’HeureuxDubé suggested that, in addition to the groups enumerated in the Charter and those that the Court had heretofore granted “analogous” status, any other group ought to be able to challenge legislative insensitivity or inaction. [E]very legislative distinction (including, as in this case, a legislative omission) which negatively impacts on an individual or group who has been found to be disadvantaged in our society, the impact of which deprives the individual or group of the law’s protection or benefit in a way which negatively affects their human dignity and personhood, does not treat these persons or groups with “equal concern, respect and consideration” ... The s. 15(1) analysis should properly focus on uncovering and understanding the negative impacts of a legislative distinction on the affected individual or group, rather than on whether the distinction has been made on an enumerated or analogous ground. In my view, to instead make the presence of an enumerated or analogous ground a precondition to the search for discriminatory effects is inconsistent with a liberal and purposive approach to Charter interpretation generally, and specifically, to a Charter guarantee which is at

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the heart of our aspirations as a society that everyone be treated equally. (Vriend [S.C.R.], pars. 184–5)

As Tushnet notes, if a legislature knows that it is contending with an activist Court, it will certainly condition its outputs in order to minimize the possibility of judicial opposition. Since the Court is willing to assign analogous status after the fact, the homosexual rights decisions strip all predictability from its jurisprudence. In contrast, the American Court’s resolution of Romer was more solicitous of the majority’s right to govern in the absence of clear constitutional restraints on its power. Whereas the Canadian Court’s Vriend decision suggests that majorities must accommodate minority demands in crafting legislation, the American Court allows majorities to govern in what are essentially partisan (and therefore zero-sum or exclusive) terms so long as doing so does not result in the transgression of a constitutionally enumerated right. The American Court’s respect for legislative prerogatives is grounded on an appreciation for the inevitability of political conflict that echoes the theory set forth by E.E. Schattschneider in The Semisovereign People (1983). Schattschneider distinguished between the agenda and motives of the government and those of pressure groups. The former seeks to pass legislation with an eye on the longer-term goal of getting re-elected. Pressure groups, in contrast, enter the political system with a much narrower, shorter-term agenda and are characterized by an inescapably unrepresentative, upper-class bias (1983, 32). The difference in the implications of the two Courts’ decisions can be cast in terms of their tolerance for political conflict and the extent to which they do or do not appreciate the nuances of Schattschneider’s discussion. In Vriend, the Canadian Court intervened to resolve – and therefore terminate – the process of political conflict in favour of homosexual plaintiffs. In contrast, the American Court rejected Amendment 2 as an unjust termination of political conflict by the people of Colorado. Insofar as “competitive power relations are the key to politics” (Schattschneider 1983, 121), the American Court’s resolution of Romer preserves what Schattschneider described as the equilibrium of an unresolvable political conflict (113). The people of Colorado did not necessarily have to endorse the agenda of the homosexual plaintiffs, but they could not, even by constitutional amendment, cut off the homosexuals’ ability to engage in political conflict. In contrast, the Canadian Court’s decision to alter legislation by “writing in” content that the legislature had rejected destabilizes the

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pluralist equilibrium that exists among competing political groups. The result, in the Canadian context, is to do more than debilitate the majority’s capacity to govern. Instead, it imposes a resolution of political conflict on a majority that is antithetical (but in no way superior) to its partisan agenda. Drawing upon Schattschneider’s approach to political conflict, I consider the role of the Canadian Court in a slightly different manner from the editors. Since all legislation is by definition redistributive, the editors’ approach to the Court’s role implies that, while redistributive, inefficient legislation may be unfortunate (insofar as it creates winners and losers), it is the natural province of the legislature. The Court, they suggest, should therefore interpret the Charter in a manner that ensures that redistributive activity occurs in a political environment governed by ground rules that approximate efficiency as closely as possible. It should not, however, reject a legislatively enacted redistributive scheme in favour of a judicially created one that it prefers, because there is no prima facie justification for rendering one such scheme superior to another. Cast in this light, the editors’ criticism of the Canadian Court, I suggest, makes sense when seen in terms of the liberal, Madisonian constitutional vision that informs John Hart Ely’s work. However, to the extent that the Canadian Court has clearly embraced the postliberal constitutional vision discussed by Smithey and Bateman, its attempt to ground its homosexual rights decisions on Ely is clearly illogical. I think, nevertheless, that when we combine what we know from the attitudinal model of judicial behaviour with the social choice vision that underpins the editors’ criticism of the Canadian Court, we encounter a conundrum. Despite their advocacy of an efficient method of constitutional interpretation, it is clear that efficiency can be regarded as just another attitudinal structure. Accordingly, it is therefore obvious and inescapable that judicial rejection of legislation will be based in part on a rival constitutional vision. Furthermore, it is important to note that the Charter is a distributive document. Section 15 prohibits discriminatory legislation unless it is designed to remedy past discrimination. That is a pretty clearly distributive mandate. Accordingly, while we might criticize the Canadian Court for pursuing this distributive mandate with too much zeal, such a criticism really is aimed, not at the Court, but at the fact that it is indeed upholding clearly stated constitutional tenets. The only way for the Court to advance a more efficient constitutional vision would be to ignore the clearly distributive spirit that informs the Charter. In this spirit, I suggest that there is no point trying to base the Canadian Court’s homosexual rights decision on Ely’s theory. His vision is

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antithetical to the post-liberal mindset that informs the Court’s jurisprudence. As a practical matter, the Court still must thrash out a clear vision of political conflict that is cast, not in terms of discrete political defeats or victories, but instead in terms of an ongoing process of bargain and compromise. In this respect, I suggest that an attempt to set forth efficient ground rules for the political process would still resonate with the distributive spirit of the Charter.

polic ing t h e demo c r at ic p r o c e ss: ely and t h e princip l e o f p o l it ic a l equa lit y In seeking to resolve the counter-majoritarian difficulty inherent in judicial review, Ely lays out a path that would focus a court’s inquiry on policing the process of representation and making sure that discrete and insular minorities are not subjected to undue discrimination. Anyone familiar with his work knows that it has generated mountains of analysis, criticism, and commentary, most of which focuses on the difficulty of developing, in one commentator’s words, a non-substantive definition of procedural prejudice. Thus, for example, Daniel Ortiz (1991, 29) pointed out that while Ely’s support of the Court’s one-person, one-vote rule in Reynolds v. Sims would appear to be based a process-oriented rationale, it was a substantive choice among myriad democratic theories. As a result, his theory is subject to different interpretations, depending on the vision of democracy that a particular court advocates. Ely’s theory is easily utilized when it deals with minority groups that are statutorily recognized, such as the racial and linguistic minorities protected in the American Voting Rights Act or those groups cited in section 15(2) of the Canadian Charter of Rights and Freedoms. It becomes much more controversial and difficult to apply when judges must decide whether a group that is not statutorily recognized is entitled to the same sort of special protections as statutorily protected groups receive. Thus much of the criticism of his theory addresses the difficulty of generating a genuinely “unsubstantive” theory of prejudice that enables a court to distinguish between a mistreated discrete and insular minority and a group that is politically inept or unable (or unwilling) to jump on a legislative bandwagon (see, e.g., Klarman 1991, 784–5). Substantive issues notwithstanding, a key problem haunts Ely and his critics: at which phase of an ongoing political conflict ought a court to determine whether the political process has gone awry? Insofar as the process of bargaining and negotiating among interests

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is continuous, it may appear at any given point that a group has suffered a terrible, if not unjust, partisan legislative defeat. The difficulty confronting Ely is that of determining whether the process leading to that defeat – not the actual defeat itself – is so unfair or corrupt that it warrants judicial repeal of the successful legislative agenda or initiative. Ely argues that, in the absence of a clearly defined violation of a right, courts must inquire into the legislature’s motives to assess whether the challenged legislation is the product of discriminatory motives. “Where the government is simply obliged to respect a certain right, it must do so, and the reasons why it didn’t are constitutionally irrelevant. Where the good or right whose distribution is in issue is not one whose provision or accommodation is affirmatively required, however, it nonetheless remains true that the government, in distributing that good, must be neutral as among political faiths, just as it must be neutral among races and religions. In such cases, official motivation becomes critical” (1980, 141). This statement presumes that the aggrieved group in question is a prototypical “discrete and insular minority” (1980, 148 ff.) which suffers a political loss not only as a result of its size but also because of discrimination by a corresponding majority. In such cases, Ely would have judges declare that the process of representation had gone awry because the minority’s voice had been muted for the wrong reasons. He therefore distinguishes between the “inflict[ion] of inequality for its own sake” on “groups we know to be the object of widespread vilification” (153) and inequality or suspect classifications that are incidental to the rational pursuit of a substantive policy goal (154). In some cases, such as the gerrymandering of minority voters by the transformation of the square border of Tuskegee into a twenty-sevensided figure (Gomillion v. Lightfoot, 1960), the challenged legislative practice is so obviously discriminatory that divining the intentions of the governmental actors is quite easy. On the other hand, Ely contrasts the Tuskegee gerrymander to a situation in which a prison warden temporarily (and justifiably) separates inmates by race in order to avoid or quell a riot (1980, 148) or to criminal laws. Ely says that burglars “are certainly a group toward which there is widespread societal hostility, and laws making burglary a crime certainly do comparatively disadvantage burglars.” But, he says, burglary laws “plainly should survive” because “there is so patently a substantial goal ... of protecting our homes by penalizing those who break and enter them” (154). Thus, the class of burglars may be subjected to discrimination because (1) criminal laws apply to everyone, (2) burglars do not meet Ely’s criteria for discrete and insular minority status, and

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(3) burglary laws do not, by their very existence, create a distinct class of persons who will suffer discrimination or punishment. Instead, one must choose to become a burglar. Ely’s approach requires a two-step analysis. First, a court must determine the nature of the plaintiff group – just how discrete and insular is it? Second, it must determine whether the plaintiff group is (1) the victim of malicious discrimination, (2) just an inept political operative that is unable to engage in the pluralist bargaining process, or (3) merely suffering incidental impact from an otherwise valid law. Of course, once a majority is formed, there is no benefit (or rational basis for) to bargaining or negotiating any further with minorities. Therefore a group cannot cry foul because it was too slow to join a minimum winning coalition. [I]t is the essence of democracy to allow the various persons and groups that make up our society to decide which others they wish to combine with in shaping legislation. We are not all the same in all respects, and on certain subjects our interests in fact do differ substantially. There is thus no way to exclude a priori ... the possibility that there may exist particular groups or interests with which others will refuse to combine politically for perfectly respectable reasons ... the minority in question [must therefore] be one that is barred from the pluralist’s bazaar, and thus keeps finding itself on the wrong end of the legislature’s classifications, for reasons that are in some sense discreditable. (1980, 152)

A key and problematic component of Ely’s vision is that it conceives of political conflict in dualistic terms: a discrete minority has been denied some right by an insensitive, unresponsive, or hostile government that represents a politically antithetical majority. While this scenario may sometimes be accurate, it is by no means generally applicable. First, as Richard Posner suggests, Ely’s vision assumes that elected representatives are “perfect agents” of the electors (1991, 646). The facts in Romer, for example, contradict this assumption because the electors used the initiative process to override the actions of their agents in the legislature. Second, Ely’s approach overlooks the realities of interest group politics. A compact, well-organized interest group, says Posner, “will often be able to use the political process to transfer wealth to itself from a larger, more diffuse group – consumers or taxpayers, for example – whose members are, as a practical matter, helpless to protect themselves against this mulcting” (ibid.). As I explain, Ely’s vision is ideally suited for resolving disputes such as Tuskegee-like gerrymanders. But as Justice Scalia indicates in his Romer dissent (and the same reasoning applies to Vriend), the conflicts

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between the homosexual plaintiffs and the people of Colorado (and the Alberta legislative majority) can be cast simply as discrete phases of an ongoing clash of competing, antithetical agendas.

bac k ground to VRIEND : a p p ly in g e ly ’s th eory in EVANS V. ROMER The “immediate objective” of Amendment 2 to Colorado’s constitution had been “to repeal existing statutes, regulations, ordinances, and policies of state and local entities that barred discrimination based on sexual orientation.”5 Colorado had defended Amendment 2 on two grounds. First, it was necessary to protect “other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality.” Second, it was necessary to preserve the state’s interest in “preserving resources to fight discrimination against other groups” (see Romer, 635). The Colorado Supreme Court had rejected this contention and pointed out that the impact of the amendment was much broader: The right to participate equally in the political process is clearly affected by Amendment 2, because it bars gay men, lesbians, and bisexuals from having an effective voice in governmental affairs insofar as those persons deem it beneficial to seek legislation that would protect them from discrimination based on their sexual orientation. Amendment 2 alters the political process so that a targeted class is prohibited from obtaining legislative, executive, and judicial protection or redress from discrimination absent the consent of a majority of the electorate through the adoption of a constitutional amendment ... Prior to the passage of this amendment, gay men, lesbians, and bisexuals were, of course, free to appeal to state and local government for protection against discrimination based on their sexual orientation. Thus, like any other members of the electorate, the political process was open to them to seek legislation or other enactments deemed beneficial in the same way it was open to all others. Were Amendment 2 in force, however, the sole political avenue by which this class could seek such protection would be through the constitutional amendment process. (Evans v. Romer, 1285–6)6

The United States Supreme Court agreed that Amendment 2 did far more than simply deny “special” rights to homosexuals. Instead, it imposed “a special disability on those persons alone” (Romer, 631). The Court acknowledged that it is a “practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons” (ibid.). Nonetheless, Amendment 2 failed to meet even the minimal requirements to pass equal protection

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muster because “it is at once too narrow and too broad. It identifies persons by a single trait and then denies them equal protection across the board” (633).

ely ’s inf luenc e on

ROMER

The Romer decision closely reflected the arguments made by John Hart Ely in the amicus brief he co-authored. He focused on the important distinction between legislation that was insufficiently inclusive and the explictly exclusive act that had been perpetrated by the people of Colorado in Amendment 2. States have no affirmative duty to enact or retain special laws for each group that might be victimized by discrimination, just as they may well have no affirmative duty to enact or retain laws directed at other forms of mistreatment. But it is quite another matter for a state absolutely to preclude, for a selected and specified set of persons, even the possibility of protection under any state or local law from an entire category of injurious conduct at least some of which is concededly wrongful rather than privileged. (Brief of Laurence Tribe, John Hart Ely, et al., Romer v. Evans; available: Lexis/Nexis)

A key to this distinction is whether the plaintiff group can show that it was specifically identified by the challenged legislation – as opposed to being one of many different groups that were affected by it. Put differently, Ely distinguishes between laws that create and then unfairly discriminate against discrete and insular minorities and ones that simply fail to take their interests into account. In this respect, his theory allows the majority to pursue its own, presumably partisan agenda, despite or even at the expense of its opposition. As he stated: Rendering some persons facially ineligible for the protection of the state’s laws from a certain type of wrong, as Amendment 2 does, is different in character from passing generally applicable laws that merely burden the practice of activities in which such persons tend to engage, or create extra (and potentially insuperable) hurdles that must be cleared prior to the enactment of categories of legislation that those persons would tend to favor. A state constitution that prohibits local rent control ordinances, for example, or even one that bars rent control legislation entirely – perhaps proclaiming that the privilege of landlords and tenants to agree upon whatever rent they wish is an aspect of their freedom of contract under the state constitution – might be said to injure tenants more than landlords, or to disadvantage renters more than owners. But such a differential disadvantage, provided it meets a test of rationality, does not work a deprivation of the equal protection of the laws.

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(Brief of Laurence Tribe, John Hart Ely, et al., Romer v. Evans; available: Lexis/Nexis)

On this basis, Ely distinguished between Colorado’s Amendment 2 (which singled out homosexuals and denied them privileges or rights available to others) and legislation that simply failed to extend benefits to them.

c onc ept ua l prob lems The problem with applying Ely’s theory to homosexual rights cases was articulated by Justice Scalia in his Romer dissent. He challenged the majority’s (and therefore Ely’s) logic on two grounds. First, he argued that the Court had failed to distinguish Amendment 2 from other legislation that singled out particular groups for disparate treatment. Second, echoing Posner’s criticism, he argued that it was inaccurate to regard Amendment 2 as an isolated rights violation. Scalia’s first criticism addressed the standard of a group’s “independent identifiability.” The Court and Ely distinguished between legislation that had a disparate impact on some groups (such as sodomy laws) and legislation that essentially created a group and singled it out for special, discriminatory treatment (such as a racial gerrymander). Scalia argued that there was no difference between the two types of disparate impact. He contrasted the Court’s analysis in Romer to that in Davis v. Beason. Ely had distinguished Amendment 2 from laws such as those sustained in Davis v. Beason (1890), where the Court upheld an Idaho law denying the franchise to convicted polygamists; Richardson v. Ramirez (1974), where the Court upheld a California law denying the franchise to felons; and Bowers v. Hardwick (1986), where the Court upheld a Georgia law that criminalized sodomy. He argued that these precedents permitted states to criminalize or punish behaviour even if it was associated with a discrete group. Thus Davis sustained the proposition “that polygamy can be criminalized, and those engaging in [it can be] deprived of the vote” (Romer, 650). Richardson permitted states to withhold rights and privileges from those who break certain laws. Scalia therefore saw no distinction between such laws and a constitutional amendment that similarly denied a privilege to a group whose behaviour violated social norms because, he argued, all these laws created and then punished classes of individuals. Scalia’s challenge would be more compelling if Colorado had actually criminalized homosexual behaviour. In each of the cases he cited, the group to whom rights were denied had been previously identified

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by a pre-existing criminal statute. Accordingly, the denial of rights did not, in and of itself, single out a group in the manner described by Scalia. Instead, the group’s existence was independent of the challenged statutes. Since homosexuality is not a crime in Colorado, Amendment 2 stigmatized a group whose existence was dependent solely on the amendment’s text. In this respect it did not compare to the statutes or decisions cited by Scalia. His syllogism is therefore flawed. He argued: that the court had sustained criminal laws which singled out particular groups; accordingly, it was constitutional to criminalize sodomy and polygamy (Bowers, Davis, Reynolds v. United States) – apparently in the same manner that burglary laws were constitutional; further, that the court had also upheld laws that withheld rights and privileges (such as the franchise) from convicted felons (Davis, Richardson v. Ramirez). Therefore, Scalia argued, Colorado’s Amendment 2 ought to withstand judicial scrutiny because it (like the statutes in Richardson and Davis) withheld certain privileges from groups of people whose behaviour was not legally condoned. The Court majority’s response to Scalia was founded on the difference between groups whose behaviour is not condoned, groups whose behaviour is criminal, and members of those groups who have been convicted under criminal statutes. The Court stated: A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense ... In Davis, the Court approved an Idaho territorial statute denying Mormons, polygamists, and advocates of polygamy the right to vote and to hold office because, as the Court construed the statute, it “simply excludes from the privilege of voting, or of holding any office of honor, trust or profit, those who have been convicted of certain offences, and those who advocate a practical resistance to the laws of the Territory and justify and approve the commission of crimes forbidden by it.” To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable. (Romer, 634, emphasis added)

While the Court’s reasoning is clear, it creates at best a very formal and technical distinction between the statutes in Scalia’s precedents and Amendment 2. Had sodomy been rendered a felony offence in Colorado (as it had been in Georgia), the denial of rights to homosexuals

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(or anyone else) convicted of the felony would have met the Court’s description of the otherwise acceptable scenario in Richardson. Thus, while Scalia’s comparison of Amendment 2 to Beason and Hardwick is not appropriate, he raises an important question concerning the Court’s “independent identifiability” standard.

c onc ept ua lizing the p o l it ic a l p r o c e ss The flaws in Scalia’s logic notwithstanding, the Court’s assertion that Amendment 2 represented a perversion of the political process requires further elaboration. As the Court noted (Romer, 626), the controversy could have been cast in the terms described by the state: balancing the equality rights of homosexuals with the property rights of all citizens. Viewed in this manner, the Romer controversy can be regarded simply as a pro-property rights majority defeating a prohomosexual rights minority. If this is a fair conceptualization of the Romer conflict, then the case was just another step in a political battle over property rights where the ante had been raised. Amendment 2 – and the litigation that ensued – was just another round in a political battle between homosexual rights advocates and property owners that had gone on for some time. At the statewide level, the property owners won (via initiative). However, at the local level, property owners had lost – to highly motivated, well-organized homosexual rights groups, who were able to pressure local governments to pass sympathetic legislation.7 Whereas Amendment 2 could be cast in terms of a discriminating majority’s attempt to marginalize a discrete and insular minority, it could also be cast in terms of the popular majority’s rejection of legislation passed by legislators who had abandoned their electors in favour of an influential, well-organized special interest.8 In this light, Amendment 2 was the Colorado electorate’s last-resort effort to rein in an exceptionally powerful pro-homosexual interest that had hijacked local legislatures in the manner described by Posner (1991, 646). If this is an accurate – or at least, reasonable – description of the political conflict leading up to Amendment 2, then the Court’s decision in Romer to re-establish the status quo ante did nothing more than award a political victory to a powerful minority at the expense of the lessorganized popular majority. Thus, despite the flaws in his analysis, Scalia raises an important issue. If the passage of legislation that is antithetical to the policy preferences of a discrete minority is indicative of a malfunctioning legislative process, then judicial frustration of the majority on behalf of minority legislative preferences must be at least equally malfunctional.

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Ely speaks to this point quite clearly when he says that, if a court strikes down legislation, “it just doesn’t make sense to protect the minority against the value judgments of the majority by imposing on the legislature what purport to be the value judgments of the majority” (1996, 23).

a politic a l loc k u p ? Put differently, Amendment 2 can be regarded as an attempt by a popular majority to override or force accountability upon a legislature that has forsaken its responsibilities to its constituents in favour of the interests of a client group. In this sense, the hijacking of local legislatures by the powerful homosexual lobby is comparable to what some scholars describe as a “lock-up” of the political process. Under “lockup” conditions, the legislative majority can no longer be said to represent the electoral majority’s interests. Under such circumstances, the electoral majority is either voiceless or forced to use extraordinary means (such as initiatives, referenda, or recall) to rein in the unfaithful legislators (see Issacharoff and Pildes 1998; Klarman 1997). One could respond that local homosexual rights legislation in Colorado was simply generic affirmative-action legislation in which the majority had “handed back” some of its power to a minority. Ely says that such reverse discrimination can be justified, while anti-minority discrimination cannot. He explains: When the group that controls the decision making process classifies so as to advantage a minority and disadvantages itself, the reasons for being unusually suspicious, and, consequently, employing a stringent brand of review, are lacking. A white majority is unlikely to disadvantage itself for reasons of racial prejudice; nor is it likely to be tempted either to underestimate the needs and deserts of whites relative to those of others, or to overestimate the costs of devising an alternative classification that would extend to certain whites the disadvantages generally extended to black (Ely 1996, 272)

This reasoning makes sense, however, only if we can assume that the legislative majority really is the “perfect agent” that Posner suggested. Under such circumstances, it can be argued that policies designed to help minorities are justifiable because the popular majority needs no protection against discrimination by its legislative counterpart – if we assume that the legislative majority is actually acting on behalf of its majority constituency. If we cannot do so, then pro-minority legislation takes on the same form as special interest legislation. The situation in Colorado neatly fits the lock-up scenario: a popular

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majority felt compelled to override what it saw as legislative pandering to special local interests. This was not a case of the majority’s agreeing to hand power over to a minority. Instead, it was a case of the legislative majority’s sacrificing the interests of its electoral constituency for that of an influential client group. Under these circumstances, the electoral check is of limited use because the voters must wait until the next election to employ it and because of the power of incumbency. As a result, voters (or, at least, a popular majority) could be forced to contend with laws which they did not want or which sacrificed their interest for that of a disproportionately powerful interest such as railroads, bankers, mayors’ brothers-in-law who happen to be in the paving business, or homosexuals (see Romer, 647, Scalia dissenting). The people therefore resorted to the only weapon they had – direct democracy. Romer can thus be conceived as another phase of a protracted struggle among the legislators of Colorado, the majority of the residents of the towns that had passed human rights legislation, and the Supreme Court. When the local legislatures refused to respond to the majority’s desires, the people chose an alternative political route. When the homosexual lobby lost that battle, it resorted to litigation. The result of the battle was simply a confirmation that the federal and state Supreme Courts did not sympathize with the policy preferences of a majority of the people of Colorado. The American Court resolved the clash of rights between property owners and homosexuals in favour of the latter and in a manner as antithetical to a majority of the state’s voters as the constitutional amendment was to the homosexual plaintiffs. However, it is important to note that the Court made clear that its decision was based on the procedural improprieties that had been visited upon homosexuals by Amendment 2, not because it believed the homosexuals’ rights claims trumped those of property owners.

t h e c a nadian conte x t : a pplying ely a nd ROMER to

VRIEND

The controversy surrounding Romer can be attributed to the American Court majority’s casting Amendment 2 as an isolated assault on minority rights, not as part of an ongoing political struggle. Yet its reasoning indicated that the substance of Amendment 2 was not the issue. Ely’s contention about the means by which it came about was the core of the Court’s opinion. In the Canadian constitutional context, problems associated with the lock-up thesis and the relationship between a legislative majority

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and its electoral constituency are less problematic (though no less controversial) because affirmative-action programs are explicitly permitted in section 15 (2) of the Charter of Rights and Freedoms.9 This provision therefore allows a legislative majority to redistribute political influence regardless of or despite its electoral constituents’ protests. In Vriend, however, the Canadian Supreme Court read this provision as essentially requiring such minority accommodation. In Vriend v. Alberta (1998) the Canadian Supreme Court sustained a challenge to Alberta’s Individual Rights Protection Act (irpa). Delwin Vriend had admitted to being homosexual and was subsequently fired from his job as a laboratory coordinator at King’s College because, based on its Christian founding principles, the college did not condone homosexuality. Since the irpa did not include sexual orientation as a protected ground for discrimination suits, Vriend’s appeal to the Alberta Human Rights Commission was dismissed. He then challenged the constitutionality of the act’s omission of sexual orientation as a protected class.10 Whereas Romer involved a reaction by the voters of Colorado to legislation passed by local councils, Vriend involved legislative inaction – or, more accurately, the refusal of a legislative majority to accede to the demands of a minority. Despite the fact that, in his Romer brief, Ely distinguished the scenario in Vriend from that in Colorado, the Canadian Court cited Ely (see Vriend [S.C.R.], 577) and the Romer decision (ibid., para. 98) to strike down the challenged part of the irpa. The Court argued that the Alberta legislature’s refusal to include sexual orientation in its list of protected classes (see Flanagan in this volume) was tantamount to legislating against homosexual interests. In this respect, it rejected Ely’s distinction: “While [Romer] concerned an explicit exclusion and prohibition of protection from discrimination, the effect produced by the legislation in this case is similar. The denial by legislative omission of protection to individuals who may well be in need of it is just as serious and the consequences just as grave as that resulting from explicit exclusion” (Vriend [S.C.R.], 549).11 The Court therefore decided to rectify the irpa’s unconstitutionality by “reading sexual orientation in” to its text. In so doing, the Court essentially equated “consideration” of a minority’s demands or interests with “acquiescing to them.” In this respect, the Canadian Court advanced the post-liberal vision of democracy described by Smithey.12 In its discussion, the Vriend court stated that minorities are entitled to more than mere protection of their constitutional rights. They also have rights not only to be represented and participate in the political process but also to have their demands met (regardless of majority opposition). As Justice Iacobucci explained,

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[T]he process by which the Alberta Legislature decided to exclude sexual orientation from the irpa was inconsistent with democratic principles. Both the trial judge and all judges in the Court of Appeal agreed that the exclusion of sexual orientation from the irpa was a conscious and deliberate legislative choice ...13 [T]he concept of democracy means more than majority rule ... [A] democracy requires that legislators take into account the interests of majorities and minorities alike, all of whom will be affected by the decisions they make. Where the interests of a minority have been denied consideration, especially where that group has historically been the target of prejudice and discrimination, I believe that judicial intervention is warranted to correct a democratic process that has acted improperly. (Vriend [S.C.R.], 577–8; emphasis added)

The Canadian Court therefore rejected alternative interpretations of the process that had generated the irpa, such as the possibility that the act might have been the result of a compromise among competing interest groups mediated by the legislature (Vriend [S.C.R.], 559–60). This impatience with – or outright rejection of – legislative incrementalism and bargaining is exemplified as well in the Court’s decision in Attorney General for Ontario v. M. & H., (1999) (M. & H.), where it declared that section 29 of Ontario’s Family Law Act (fla) violated section 15 of the Charter because it did not extend the definition of common-law marriage to homosexual couples. The act defined “spouse” only in terms of “persons of the opposite sex.” Originally, the fla alluded only to legally married couples. However, subsequent amendments extended the definition of “spouse” to include unmarried, cohabiting heterosexuals who had lived together for at least three years. The Court ruled that since the amended act allowed cohabiting heterosexuals to sue for spousal support, the legislature’s failure to extend the right to make such claims to homosexual couples could not withstand constitutional scrutiny. Ontario had argued that, homosexual challenges notwithstanding, the law was intended to protect women, who suffered disproportionate economic hardship in the wake of divorce and separation (M. & H., 110–19). In this respect, it was not intended to discriminate against homosexuals. Instead, it was designed to address a discrete social problem concerning the welfare of women. Justice Gonthier accepted the province’s explanation that the legislature’s decision to extend benefits to certain aggrieved groups created no additional responsibility to extend it to other groups. Legislatures operate incrementally and therefore cannot be held accountable for failing to pass laws that benefit all possible groups (M. & H., 129–35).

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Speaking for the Court, Justice Iacobucci reasserted the Vriend position and argued that the legislature’s failure to amend the Act to include homosexual couples manifested a discriminatory intent (M. & H., 69–73). He concluded that incrementalism was just another way of not legislating. It therefore could not justify a constitutional violation. Accordingly, he dismissed the province’s assertion that, over time, the legislature had indeed expanded the scope of the fla because the expansion had done nothing to cater to the demands of homosexuals: [Ontario] contends that the decision to provide equal status to both sexes under the flra, followed by the extension of the right to claim support to opposite-sex common-law couples and the further broadening of the definition of “spouse” under the fla by reducing the requisite period of cohabitation from five to three years, is significant evidence of incremental progress toward the ideal of equality. Therefore, it is submitted that this Court ought to be wary of interfering with the existing legislation. I disagree. None of the reforms cited by [Ontario] has addressed the equal rights and obligations of individuals in same-sex relationships. In fact, there is no evidence of any progress with respect to this group since the inception of the spousal support regime. If the legislature refuses to act so as to evolve towards Charter compliance then deference as to the timing of reforms loses its raison d’être. (M. & H., 81)

Thus, despite the Canadian Court’s claim to have relied upon Ely and the Romer decision, only Justice Gonthier’s opinion resonates with either. Both the irpa and the fla meet the description of acceptable legislation set forth in Ely’s Romer brief. The contrast with the American Court’s reasoning is stark. The Canadian Court’s logic would render the American Voting Rights Act unconstitutional – or at least subject to judicially imposed revision – because it identified only a limited number of racial and linguistic minorities. In fact, the American Court rejected such a challenge, brought by Hasidim against the Voting Rights Act in UJO v. Carey (1973). As controversial as this decision was and continues to be, the American Supreme Court nonetheless respected Congress’s desire to identify and remedy problems that afflicted specific groups, regardless of the existence of similar problems or similarly situated groups elsewhere. Thus Congress’s desire to ensure the representational opportunities of Black and Hispanic voters did not compel it to extend similar protections to other groups. Similarly, in Geguldig v. Aiello (1974) the Court sustained California’s

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state health insurance program, despite the fact that the state had decided not to cover pregnancy. Although this omission was challenged as invidiously discriminatory against women, the Court sustained the legislature’s desire to develop the program’s coverage incrementally: a State may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind ... The legislature may select one phase of one field and apply a remedy there, neglecting the others ... Particularly with respect to social welfare programs, so long as the line drawn by the State is rationally supportable, the courts will not interpose their judgment as to the appropriate stopping point. The Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all. (Geguldig v. Aiello, 417 U.S. 484, 495; internal citations omitted)

This reasoning clearly contradicts the Canadian Court’s logic in M. & H. Iacobucci’s rejection of legislative incrementalism not only prevents governments from deliberating; it also denies them the flexibility to pass specific legislation to remedy discrete group problems.

polit ic al conf lic t a n d ef fic ient polit ic al p r o c e ss The Canadian Court’s regard for the legislative process and minority rights is especially threatening to majority rule and representative government when viewed in conjunction with its solicitousness to rights claims by virtually any group whose political salience derives only from a political or legislative loss and their ability to persuade the Court that they too are analogous to the groups enumerated in the Charter (see Peacock in this volume). Supporters of the Canadian Court’s decisions in Vriend and M. & H. – and the role it has assumed – might find solace in contemporary public opinion polls indicating that Albertans now support the inclusion of sexual preference in the provincial human rights code. In the Alberta Civil Society Survey (funded by the Donner Foundation, the Canada West Foundation, and the Calgary Herald in December 1998 and January 1999),14 just over three-quarters of Albertans supported adding sexual orientation to the list of prohibited grounds of discrimination in Alberta’s Human Rights Act. A bare majority (51 per cent) said that gays and lesbians should be allowed to marry.15 But the Canadian Court’s decision to alter the irpa and the fla was grounded upon its conception of which minorities

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were entitled to legislative concessions, not its consistency with current or future public opinion. Furthermore, even though the Canadian Court claimed that it had to step in because the political process had been conducted “improperly” (Vriend [S.C.R.], 578), its imposition of a minoritarian agenda is certainly as problematic as the majority rule that the Court challenges. If we assume that courts are political actors, then the Canadian Court cannot make a stronger case for catering to the minority at the majority’s expense than the majority can in favour of its own partisanship. The key distinction between the two Supreme Courts lies in their regard for minority rights and the nature of the political process. The American Court asserted that minorities have no entitlement to extract concessions from the legislature. Majorities – that is, governments – are entitled to do so, even at the expense or despite the protests of minorities, so long as they do not cut off the latter’s access to the political process. In this respect, Colorado’s Amendment 2 is a classic manifestation of the sort of legislation at the core of Ely’s discussion (see 1980, 145). The decision suggests that courts can base their decisions on Ely’s theory without posing an excessive threat to majority rule. Insofar as social choice literature leaves us at an impasse regarding the preferability of judicial or legislative policy-making, I suggest that the wisdom of the American framers provides a way out of the political thicket created by the Canadian Court. The electoral mechanism at least provides a prima facie basis for the legitimacy of even the most partisan majority policy-making – so long as the electoral marketplace remains open and competitive (see Issacharof and Pildes 1998). But the American Court’s failure to address Scalia’s concerns in sufficient detail leaves important questions unanswered. Certainly, prior to the passage of Amendment 2, local electoral majorities who had seen their property rights sacrificed on behalf of homosexual interests clearly comprised what might be described in Issacharoff and Pildes’s words as a “locked out” majority. Lacking the ability to recall legislators or use the initiative process, they were forced to abide by laws with which they clearly disagreed and which were as much the product of special interest pandering as any other “corrupt bargain” struck between legislators and their special interest clients. As Posner notes, if a minority group is well organized, it might be able to use its influence to force the legislative majority to forsake its constituents’ interests. Thus, in the same way that critics may charge a legislature with being corrupt for selling out to the railroads or robber

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barons, it would be no less corrupt for selling out to a disproportionately influential (yet no less discrete and insular) minority such as the homosexuals. In one case, the public trust is violated by the making of sweetheart deals with big business; in the other, it is violated by the passing of legislation at the expense of particular majority interests such as Coloradans’ property rights. In the three homosexual rights cases, the political salience of the plaintiffs had as much to do with the stage of the political conflict as it did with the form taken by the challenged legislation. That is, the “rights” claim was cast in terms of a denial of equality to a particular group whose salience was determined by its loss of a battle at one stage of an ongoing process of political negotiation and bargaining. The Romer decision focused on the form of the means chosen to resolve the conflict. Essentially, the American Court ruled in favour of sustaining the process of political bargaining and deliberation. It therefore struck down Amendment 2 because it had, for all intents and purposes, put an end to the bargaining process unfairly and cut off homosexual access to Ely’s “pluralist’s bazaar.” In contrast, the Canadian Court truncated the process of bargaining and deliberation, and resolved an ongoing political conflict by declaring a rights violation and imposing a remedy in favour of the homosexual minority. The American Court’s decision resonates with the approach it has taken thus far in partisan gerrymandering cases such as Davis v. Bandemer (1986) and Badham v. Eu (1989), where the Court allowed challenged districting plans to stand. In both cases, it employed an expansive vision of the political process. It concluded that, despite assertions by Republican plaintiffs that the districting plans (in Indiana and California, respectively) resulted in their under-representation, the plaintiffs’ success in other elections belied any claim that they had been shut out of the political process (see Karlan and Levinson 1996). Clearly, the political power of homosexuals does not compare with major political parties. On the other hand, the plight of the homosexual litigants in Canada did not compare with that of the homosexuals who had been shut out of the Colorado political and legal process by Amendment 2. Is a loss on a discrete piece of legislation such as the irpa comparable to being denied the right to petition the government for redress of grievances? The irony of the Canadian decisions should not be lost on the reader: the Canadian Court’s decisions in Vriend and M. & H. actually embody the factors on which the American Court struck down Colorado’s Amendment 2. The American Court contended that legislation could not, in one step, create a distinct political group and punish it. The Canadian Court’s reasoning is exactly the opposite: in one step,

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it recognized a group and struck down (or rewrote) legislation because the legislature failed to create (or, more accurately, recognize) a group and reward it.

judic ial s upervisio n o f t h e polit ic al pr ocess in c a n a da : “magnific ent failu r e ? ” 1 6 o r a “r edef inition of d e mo c r acy” 1 7 In Vriend the Canadian Court asserted the revolutionary nature of the Charter: it redefined democracy and established a process by which the legislature and the judiciary would engage in a dialogue over the meaning and scope of the new constitution (Vriend, 564 ff.). Critics might take solace in the Court’s recognition that section 33 of the Charter “establishes that the final word in our constitutional structure is in fact left to the legislature and not the courts” (ibid., 565). As Manfredi notes in this volume, this is at best a hollow promise because section 33 has atrophied for all intents and purposes. Regardless of the status of the dialogue between the courts and legislature in Canada, the homosexual rights decisions indicate that a political process theory of jurisprudence cannot be grounded simply on the protection of discrete and insular minorities. In addition, it must embody a tolerance for ongoing political conflict. The divisions in both Supreme Courts indicate that Amendment 2, the irpa, and the fla could have been conceived in terms of three distinct scenarios: (1) a clash of rights claims, (2) a clash of legislative agendas, or (3) denial of a minority group’s rights by a majority. In the absence of a constitutional hierarchy of rights or constitutionally prescribed procedure for balancing competing legislative agendas, there is no non-arbitrary basis for a court to decide in favour of the minority in either scenario 1 or 2. As well, at least in these three cases, it is clear that there is no non-arbitrary basis for deciding which scenario most accurately described the controversies in the cases. Alexander Bickel anticipated this threat more than twenty years ago. In The Supreme Court and the Idea of Progress, he chastised the Warren Court for interfering too much with the workings of the political process on behalf of minority interests. The adjudicatory process, he said, is inherently unfit for such inquiries because “it is too principleprone and principle-bound ... it is too remote from conditions, and deals, case by case, with too narrow a slice of reality” (1978, 175; see also Horowitz 1977, 35–9). He therefore concluded that, “in dealing with problems of great magnitude and pervasive ramifications, problems with complex roots and unpredictably multiplying offshoots ...

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the society is best allowed to develop its own strands out of tradition” (Bickel, 1978, 175). Judicial supremacy, he said, is simply not possible in matters of political process. The homosexual rights cases confirm Bickel’s observations. Adjudication forces courts to distill political process controversies down to discrete, rights-based claims and to make arbitrary – and inherently political – choices among competing visions of democratic theory. Insofar as this reduction results in the truncation of the political bargaining process and judicially imposed resolution to political conflict, it undermines the integrity of the political process that both Courts sought to preserve, while simultaneously upsetting the equilibrium that may exist among conflicting parties.

c onc lusion The Canadian Supreme Court’s activism has been the cause for ongoing and widespread commentary. Substantive criticisms such as Peacock’s focus not only on the Court’s willingness to overturn legislation but also on its expansive interpretation of rights. The result is an activist court that has a clear political agenda. Critics such as Peacock lament what they regard as a shift to an imperial judiciary.18 An activist judiciary is a threat to majority rule and, as Tushnet notes, legislative initiative. Once we regard the Court as a political actor, however, it is harder to challenge the substance of the Court’s agenda because it goes without saying that any decision to declare legislation unconstitutional will reflect the Court’s collective biases. Critics such as the editors raise a different question: whether the Canadian Supreme Court can develop a jurisprudence based on an efficient vision of justice. As I interpret Ely’s theory, it is possible for a judiciary to seek to circumscribe an otherwise distributive legislative process with rules of the political game that are as informed as possible by a spirit of efficiency. However, the Canadian Court is bound to uphold a Charter that embodies distributive principles. There is no doubt that the Charter’s designation of particular groups for recognition is a matter of dissensus in Canadian society. However, social choice literature indicates that there would be no such thing as a purely efficient constitutional principle. Any principle is bound to favour some interest at the expense of others. I have sought to navigate a course between substantive criticism and analyses of efficiency. From a practical point of view, I believe the Canadian Court is actually undermining the integrity of the democratic process that it seeks to protect by creating incentives for legislators

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to ignore popular majorities. The Court’s political process jurisprudence short-circuits not only the legislative bargaining process but also the processes of representative government by which voters may hold their elected legislators accountable (see, e.g., Knopff 1998). If the judicially altered legislation is unpopular, the people have no recourse. If the legislative majority does not wish to address the demands of particular minorities, it now knows that it can count on the judiciary’s willingness to consider reading new substance into legislation. Thus the constitutional dialogue described by the Court in Vriend can actually be cast in terms of a symbiotic relationship between a legislature that now has an incentive to avoid unpopular or controversial decisions and a judiciary that is more than willing to have such unpopular legislative decisions foisted upon it. Ironically, then, what may appear to be a judicial attempt to serve constituents and ensure the responsiveness of the government when a legislature is unwilling to do so becomes a recipe for even less legislative accountability.

not es 1 Romer was an appeal from the Colorado Supreme Court (Evans v. Romer 854 P. 2d 1279 (Colo. 1993) “Evans i” and Evans v. Romer 882 P. 2d. 1335 (Colo. 1994) “Evans ii”). The amendment had been passed by a vote of 813,966 to 710,151 (53.4 per cent to 46.6 per cent). Amendment 2 read: No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing. 2 The Alberta legislature had specifically rejected the proposal to include sexual orientation in the irpa. See Thomas Flanagan’s discussion in this volume. 3 See, generally, Manfredi 1993, 120–57; Lepofsky 1992; Smith 1992. 4 Manfredi actually anticipated this development (1993, 152–3).

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5 See Aspen, Colo., Mun. Code, § 13-98 (1977) (prohibiting discrimination in employment, housing, and public accommodations on the basis of sexual orientation); Boulder, Colo., Rev. Code, §§ 12-1-2 to -4 (1987); Denver, Colo., Rev. Mun. Code, art. iv, §§ 28-91 to -116 (1991); Executive Order no. d0035 (10 December 1990) (prohibiting employment discrimination for “all state employees, classified and exempt,” on the basis of sexual orientation); Colorado Insurance Code, § 10-3-1104, 4A C.R.S. (1992 Supp.) (forbidding health insurance providers from determining insurability and premiums based on an applicant’s, a beneficiary’s, or an insured’s sexual orientation); and various provisions prohibiting discrimination based on sexual orientation at state colleges (from 854 P.2d 1284–5). 6 The Colorado court based its decision on a line of United States Supreme Court precedents running from Hunter v. Erickson (1969) through Gordon v. Lance (1971) in which the U.S. Court had established a right to an equal opportunity to participate in the political process. While I suggest that the Romer court relied on this line of cases, others argue that it did not. See, for example, Issacharoff, Karlan, and Pildes 1998, 688–9; see also Karlan 1997. 7 Scalia’s description of the Colorado controversy echoed Posner’s description (1991, 646) of interest group politics: “the problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality)...that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, have high disposable income, and of course care about homosexual-rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance of homosexuality” (Romer, 646). 8 Scalia argued, for example, that the initiative by which Amendment 2 was passed was a response to “both the geographic concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a singleissue contest for both sides. It put directly, to all the citizens of the State, the question: Should homosexuality be given special protection? They answered no” (Romer, 647). 9 Section 15 reads: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Subsection (1) does not preclude any law, program, or activity that has as its object the amelioration of conditions of disad-

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vantaged individuals or groups, including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 10 Criticisms of Vriend focus in part on the Supreme Court of Canada’s solicitousness toward groups who, having lost political battles, seek legal means to advance their agendas (see generally Knopff and Morton 1992, 1996; Morton and Knopff 2000). Critics point out that the Court’s solicitousness toward group rights claims under the Charter is fundamentally at odds with the intentions of the Charter’s framers (Morton 1996; Peacock 1996). In Canada the Supreme Court has followed a path concerning the expansion of equality rights to unenumerated political groups similar to the American Court’s, but it has cast the terms of its debate differently. Starting with the B.C. Motor Vehicle Act Reference decision (1986) and proceeding through Egan and Nesbit v. The Queen (1995) and finally Vriend, the scc also added substance to the notion of due process in the Charter of Rights and Freedoms, declaring that it would not be bound by a narrow, procedurally focused interpretation of section 7 (see Morton 1996). The Charter specifically promotes multiculturalism and enumerates particular types of groups entitled to protection. Section 27 reads: “ This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” As a result, the Canadian Court has been spared the controversial task of having to develop a list of such groups on its own (as Justice Stone of the American Court did in the 1938 Carolene Products decision). Thus, in contrast to the American Court’s developing a sliding scale of scrutiny to assess the rationale underlying legislation, the Canadian Court has been able to work from a pre-existing listing of which groups count for special constitutional protection. However, in Andrews v. Law Society of British Columbia (1989), the scc took the controversial step of expanding the list of groups that it would recognize (Smith 1992, 222–3). In addition to recognizing discrimination that might be based on sex, disability, age, national origin, or ethnicity (the criteria set forth in section 15 of the Charter), the Court concluded that groups or individuals who suffered analogous discrimination would also have standing to challenge litigation (see Andrews, 171–5). 11 Drawing specifically on Pothier (1996), the Court concluded that the irpa’s non-inclusion of sexual orientation as a protected class created an unconstitutional distinction between homosexuals and heterosexuals (Vriend [S.C.R.], 532–3, 541–2). The Court therefore rejected arguments made by Justice McClung of the Alberta Court of Appeal, who had argued that since the Alberta legislature had refused to include sexual orientation as part of its human rights code, no Charter violation had

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12

13

14

15 16 17 18

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occurred (Vriend v. Alberta [C.A.], 607) because legislative inaction did not qualify as “legislation,” as described in section 32 of the Charter. In response, the Supreme Court stated that section 32 “is worded broadly enough to cover positive obligations on a legislature such that the Charter will be engaged even if the legislature refuses to exercise its authority ... The application of the Charter is not restricted to situations where the government actively encroaches on rights” (Vriend [S.C.R.], 532). The post-liberal vision also is echoed historically by John Calhoun’s advocacy of government by concurrent majority and Lani Guinier’s critique of American voting rights law (Guinier 1991, 1136). See, generally, Rush 1994; Lence 1992; Guinier 1993. At this point, Iacobucci cites Black 1996 and Ely 1980, among others. The problem is that Ely does not agree with Iacobucci’s conclusion and Black (1996, 128) contradicts Ely: “All of the judges in Vriend [1996] agreed that the exclusion of sexual orientation was a conscious legislative choice made on several successive occasions. Justice McClung sees this fact as a reason for the Courts to refuse to intervene. From the point of view of Ely and Monahan, the deliberate nature of the decision may point in the other direction. It raises the possibility of an unwillingness to give equal consideration to the interests of the group, whether due to attitudes within the legislature or to perceptions that a majority of voters have pejorative attitudes about lesbians and gay men that legislators would be punished at the polls for supporting.” Centre for the Study of Civil Society, University of Calgary. The Angus Reid Group (www.angusreid.com) also conducted surveys in 1996 that indicated a general sympathy toward homosexual rights claims. See Manfredi in this volume. Similarly, critics of Scalia might note that the Supreme Court of Georgia finally overturned that state’s sodomy law (Powell v. State 1999). See Posner’s description (1991, 650) of Ely’s theory. See Vriend, 564 ff. For the most recent, systematic criticism of the Supreme Court, see Morton and Knopff 2000.

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3 The Supreme Court of Canada and the Complexity of Judicial Activism JAMES B . K ELL Y

The state, as a concept in political science, has been the subject of considerable debate among scholars for years. Interestingly enough, the conception of state actors involved in Charter review has generated minimal debate among scholars who analyze the implications of the Supreme Court of Canada’s Charter jurisprudence for liberal constitutionalism. This is a serious limitation since state actors involved in Charter challenges include a mixture of both elected and unelected public officials, most notably the police. Therefore the relationship between judicial activism and liberal constitutionalism may vary, depending on the state actor involved in a Charter challenge. In many respects, the debate has been cast as a competition between judicial and democratic actors for the control of public policy. Indeed, many of the contributions in this volume, particularly the studies by Peacock, Rush, Flanagan, and Manfredi, question the approach to Charter review taken by the Supreme Court of Canada. The debate, to put it simply, is over whether judicial activism undermines liberal constitutionalism and facilitates the emergence of judicial supremacy in Canada. However, this normative conception of the debate has been demonstrated to be an empirically limited dimension of Charter challenges (Kelly 1999a), a majority of Charter cases decided by the Supreme Court of Canada now involving the conduct of police officers (Kelly 1999a). As such, the Charter debate has yet to fully explore the complexity of judicial activism and whether judicial review of different state actors can produce different effects on liberal constitutionalism (Kelly 1999b).

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This chapter, unlike the others in this volume, advances the “myth of the sacred” as it attempts to demonstrate how judicial activism can facilitate the emergence of a “just society” by redefining the relationship between state and society through an activist legal rights jurisprudence on the part of the Supreme Court of Canada. In effect, as James, Abelson, and Lusztig observe in the introduction to this volume, the “myth of the sacred” is suggested to obscure a more problematic and debatable effect of Charter review by the Court. Specifically, this chapter challenges the “myth of judicial supremacy” and the suggestion that a paradigm shift away from constitutional supremacy has been the predominant institutional outcome of Charter review. Taking up the theme of redistributive institutions advanced by James, Abelson, and Lusztig, this chapter suggests that a redistribution of power has occurred as a result of Charter review, but not in the manner suggested by the Rawlsian paradox (James, Abelson, and Lusztig in this volume). Rather, a significant part of redistribution has been away from the discretionary power of the police, formerly constrained by common-law practices, and toward Canadian citizens through a constitutionalization of legal rights provisions that requires a stricter adherence to the rule of law by the agents of law enforcement. The purpose of this chapter is to examine the relationship between judicial activism and liberal constitutionalism by providing a more nuanced approach to state actors involved in Charter challenges. In this sense, I agree with Tom Flanagan, who cautions against the assumption of unfettered judicial supremacy in his chapter. Here I argue that judicial activism does not necessarily lead to judicial supremacy, or to the decline of democratic politics in Canada. Rather, there is a paradox associated with judicial activism which suggests that the relationship between judicial review and liberal constitutionalism varies depending on the state actor at the centre of a Charter challenge. This paradox is as follows: judicial activism that challenges the conduct of police officers does not threaten liberal constitutionalism; nor does it lead to judicial supremacy. Rather, it advances liberal constitutionalism since it serves to check the discretionary conduct of the police, an unelected and largely unaccountable state actor. In fact, the greatest threat to liberal constitutionalism and democracy in Canada is not unelected judicial actors exercising discretionary power. On the contrary, the greatest threat is posed by police officers, who frequently masquerade as street-level judges and juries exercising discretionary power over Canadian citizens. By redefining the relationship between citizens and state actors through an activist legal rights jurisprudence in the area of criminal procedure, the Supreme Court of Canada has

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not undermined liberal constitutionalism. It has advanced it by evaluating the actions of the police against a constitutionally entrenched Charter of Rights that allows for the exclusion of evidence when police officers violate the legal rights and protection of Canadians (Young 1996). Paradoxically, then, activism on the part of an unelected judiciary can serve as a check against another unelected actor. In so doing, the judiciary can strengthen and improve the relationship between citizens and the state in a democratic society (Gold 1996, 16; Russell 1987). To demonstrate that different state actors produce different effects on liberal constitutionalism, this chapter will focus on judicial activism in the area of legal rights by the Supreme Court of Canada between 1982 and 1999. There are a number of reasons for limiting the analysis to this period. First, of the 366 Charter cases decided by the Court between 1984 and 1999, 110, or 30 per cent, involved cases of judicial activism. Furthermore, 74 per cent of all activist Charter decisions by the Court pertained to the area of legal rights. Perhaps more importantly, legal rights are distinct from all other sections of the Charter of Rights and Freedoms because of the multiple relationships they create between state and judicial actors during a Charter challenge. Specifically, legal rights represent the only area of Charter adjudication where constitutional challenges involve statutes, thus creating a direct relationship between the judiciary and democratic actors. This situation also creates a direct relationship between the judiciary and the police when the conduct of public officials is challenged. In this sense, legal rights jurisprudence by the Supreme Court of Canada provides a unique opportunity to investigate whether judicial activism produces different effects on liberal constitutionalism when a distinction is made between state actors at the centre of a Charter challenge. This chapter is divided into three sections. The first critiques the interpretivist model and its application in Canada by identifying limitations when judicial review is evaluated along an activist-restrained dichotomy (Hogg 1987; Perry 1994, 54–5). Specifically, it is argued that this approach cannot capture the paradoxical nature of judicial activism once the relationship moves beyond a direct one between judicial and legislative actors (Greene et al. 1999). Indeed, it is suggested that judicial review creates a competitive relationship between judicial and legislative actors in a minority of Charter cases. The focus then shifts to a discussion of the impact of judicial activism on the conduct of the police. Among other things, the second section investigates Charter cases before the Supreme Court where evidence has been excluded pursuant to section 24(2) of the Charter. In this review, it will become clear that the exclusion of evidence does not facilitate the

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emergence of judicial supremacy; nor does it result in the substitution of the crime control model for the due process model in Canada, as has been previously contended (Manfredi 1993, 104; Morton 1987, 33, 37). In the final section, some consideration is given to legal rights cases involving challenges to statutes and regulations. This section suggests that, while several examples of judicial activism that nullified sections of the Criminal Code, for instance, are problematic, the narrow basis of many of the nullifications indicate that minor legislative amendments can ensure the constitutionality of invalidated acts (Manfredi and Kelly 1999, 520–1). This latter characteristic of legislative responses to judicial activism deepens the complexity of Charter review and its relationship to liberal constitutionalism.

t h e limitat ions of t h e int erpr etiv is t mod e l in c a n a da There are theoretical and empirical limitations associated with the interpretivist model that question its application to Canada. The interpretivist model has been advanced by Charter skeptics such as F.L. Morton, Rainer Knopff, and Christopher Manfredi, who argue that the Supreme Court of Canada should limit itself to interpreting the Charter in a purposeful manner consistent with the framers’ intent (Knopff and Morton 1990, 533–4). Indeed, Manfredi furthers this position in his chapter in this volume, which suggests that departure from the framers’ intent has seen the Court emerge as a strategic political actor advancing an autonomous policy agenda. This call for the Court to bind itself to original understanding is problematic, largely because Charter skeptics have not satisfactorily demonstrated what the framers’ intent in constructing the Charter was. Specifically, since the Charter was a central component of Pierre Elliott Trudeau’s political agenda (Cairns 1995, 197–8; Laforest 1995, 126–7), can we equate the framers’ intent with the Trudeauvian vision of a fair and just society? If we do, then a strong argument can be made that the framers’ intent has in fact characterized the Court’s Charter jurisprudence. Its initial activism, for example, struck down sections of Quebec’s language and educational policy. In doing so, the Court interpreted the Charter in a manner consistent with Trudeau’s goals (Trudeau 1968). This is an important consideration not addressed by Charter skeptics and Canadian interpretivists. Instead, the Canadian interpretivists have located the framers’ intent within the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, which made recommendations and amendments to the draft

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Charter of Rights and Freedoms. In many regards, Charter skeptics assume that the committee and its hearings reached a compromise on the fundamental values of Canadian society which is reflected in the final wording of the Charter. As a result, they argue that since this compromise represents a consensus reached by elected officials, the Court must confine itself to this type of democratic consensus when interpreting the Charter. There are several problems attached to locating the framers’ intent within the Special Joint Committee. First, does the committee constitute the framers’ intent or the intent of Liberal partisan framers, who enjoyed a legislative majority in both houses of Parliament during this legislative session? If it is the partisan framers’ intent, this fact does not limit the value of the suggestion by Charter skeptics that the Court should restrict itself to the democratic consensus. But it does require them to show how the framers’ intent is not Trudeau’s framers’ intent. Doing so is necessary, given the extent of party discipline in the Canadian context and the executive’s control over legislative committees during majority governments. The precise content of the framers’ intent in a parliamentary system that displays strong party discipline may not be located within the legislative committee that debated the Charter, but may be traced to the centre of power in Canada’s parliamentary democracy, the prime minister and his or her cabinet (Savoie 1999, 71–6). Indeed, the framers’ intent envelops notions of sovereignty in a political system because its legitimacy is linked to the idea that this democratic consensus is a societal one at the time of codification. However, equating the Special Joint Committee in Canada with the framers’ intent is problematic because sovereignty does not reside in the people in Westminster systems but in Parliament itself. And because Parliament was not supreme before 1982, but dominated by the political executive, relying on sovereignty as the justification for the framers’ intent leads us back to Trudeau’s vision of the Charter. There is a more serious limitation with the interpretivist model. Specifically, it is the conceptualization of the relationship between the judiciary and state actors that is implicit throughout interpretivism. In this context, the state is equated with elected officials, and judicial activism is problematic when it invalidates state action in all its forms. This debate, however, does not consider that the legitimacy of judicial review may rest on a range of relationships within the democratic state and not simply on the restrained-activist dichotomy that is advanced by Charter skeptics. The Charter does not create a single relationship between the judiciary and the state for the simple reason that state actors also include the police and Crown prosecutors, who form part of the administrative state. While the interpretivist model’s

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Judicial activism by the Supreme Court of Canada, 1982–1999

Charter section

State actor

Legal rights (conduct cases) Legal rights (statutes) Fundamental freedoms Mobility rights Democratic rights Equality rights Minority language and education rights

police officers elected officials elected officials elected officials elected officials elected officials elected officials

Total

n/a

Number of cases

Percentage of total

59 23 15 1 1 8 3

53.6 20.9 13.6 0.9 0.9 7.3 2.7

110

100

conceptualization of the relationship between the judiciary and the state is parsimonious, it is limited because it applies the same standard in evaluating the legitimacy of Charter challenges that involve legislation to those that involve the conduct of the police and Crown prosecutors. The normative limitations of the interpretivist model are compounded when activist judgments by the Supreme Court of Canada are categorized by Charter section and the type of state actor at the centre of a constitutional challenge. Table 3.1 reveals that very few sections of the Charter create a direct relationship between the police and judicial actors, but that 53.6 per cent (59/110) of all activist judgments by the Court have involved the conduct of police officers. There is a difference between Charter decisions that are problematic for liberal constitutionalism and those that make law enforcement and criminal prosecution more difficult for the Crown. This distinction, however, is not evident in the critique of the Court’s Charter jurisprudence by Charter skeptics, where decisions that increase the onus on the police or the prosecution in criminal cases are interpreted as placing undue burdens on state actors, thus placing a strain on liberal constitutionalism. Indeed, because the interpretivist model is such a rigid one, it cannot capture the shades of activism within liberal constitutionalism, or within the Court’s Charter jurisprudence. In evaluating the legitimacy of judicial activism and whether it compromises liberal constitutionalism, a distinction has been made within democratic politics between core and peripheral realms of activities engaged in by political actors and the type of state actor at the centre of a Charter challenge. These important distinctions have been employed for several reasons. First, this chapter makes the important assumption that not all forms of judicial activism are prob-

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lematic – only those that occur within the core areas of legislative agendas, such as socio-economic policy, language, and educational policy. These are policy areas that are central to democratic politics in Canada and issues that are entangled in the politics of federalism. More importantly, since the Supreme Court has fluctuated between activism and restraint in its Charter jurisprudence, the interpretivist model has limited utility in evaluating the relationship between judicial activism and liberal constitutionalism (Hogg 1987, 90–1, 96). The combination of activism and restraint by the Court is the result of the complexity of the Charter and a reflection of the multiple relationships between the judiciary and state actors created through Charter challenges. In effect, there are two components to the model employed to evaluate the impact of judicial review on liberal constitutionalism: first, the core-periphery distinction within democratic politics, and second, the type of relationship created between the judiciary and state actors through a Charter challenge. Judicial activism that challenges the conduct of the police can be consistent with liberal constitutionalism and the concern that unelected actors exercise discretionary power in a responsible manner. The advantage of this model is that it can address the democratic critique of the Court by evaluating judicial activism along a spectrum within democratic politics. Clearly, an activist Court that continually challenges the legislative choices of political actors in important areas of public policy would bring into question the legitimacy of judicial review, because this activism would be at the core of democratic politics. However, what is revealed about the Court’s activism is that it largely resides at the periphery and declines in intensity and frequency when it moves toward core elements of democratic politics in Canada. Table 3.1 captures this important characteristic of judicial activism, as nearly 75.1 per cent (82/110) of all successful Charter cases decided by the Supreme Court of Canada involve legal rights. These Charter rights reside at the periphery of democratic politics because the impact of judicial activism in this area is offset by two important characteristics that prevent the emergence of judicial supremacy. First, legal rights cases create a direct relationship between the judiciary and the police in 54.1 per cent (59/110) of all activist Charter decisions and in 72 per cent (59/82) of legal rights cases. Second, legal rights represent a policy area where, arguably, the judiciary has the institutional capacity to be an effective policy actor. A large part of judicial activism in this area involves police conduct and the procedural rights of individuals (Strayer 1988, 355–6; Russell 1994, 37–9). Thus judicial activism in criminal procedure and legal rights does

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complicate law enforcement and criminal prosecution, but it does not discolour Canadian democracy or place undue stress on liberal constitutionalism. Even more revealing about judicial activism is the limited concentration of Charter decisions within sections classified as positive rights, such as equality rights and minority language education rights. Indeed, a minority of judicial activism cases surrounding Charter sections involve positive rights. Equality rights and minority language education rights comprise 39.1 per cent (11/28) of judicial activism when legal rights are excluded. In fact, negative rights constitute a large majority of judicial activism beyond legal rights and the periphery of democratic politics, with fundamental freedoms, mobility, and democratic rights constituting 61.1 per cent (17/28) of all successful Charter challenges between 1982 and 1999. At a 1998 conference on the Charter at Osgoode Hall, leading practitioners and academics labelled the Supreme Court of Canada’s Charter jurisprudence as confusing and suggested, “There is a lack of any principle to explain patterns of activism or deference in the past year” (Makin 1998). The distinction between state actors at the centre of a Charter challenge and the location of a policy area along the coreperiphery spectrum of democratic politics is an attempt to make sense of judicial review by the Court and to understand the relationship between Charter review and liberal constitutionalism.

sec t ion 2 4 (2 ) and t h e e xc l u sio n of ev idenc e: judicia l ac t iv ism a gains t th e police When determining whether evidence obtained as a result of a Charter violation should be excluded, the Court applies the three-part Collins test. Under Collins, the Court considers (1) the effect of the administration of justice on the fairness of the trial, (2) the seriousness of the Charter breach, and (3) the effect of excluding the evidence on the reputation of the administration of justice. In this test, evidence is broken down into two categories – real evidence and conscripted – but more importantly, the test largely rests on the type of evidence that the Charter violation produces. In particular, conscripted evidence is held to undermine the fairness of the trial and sees the Court almost always exclude the evidence, whereas real evidence does not effect the fairness of the trial, and thus it involves a balancing of the Collins test (Rosenberg 1996, 185–6). The exclusion of real evidence, however, normally occurs when the rights violation has been so flagrant as to necessitate its exclusion to protect the reputation of the administration of justice.

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Evidence

Category

R. v. Therens, [1985] 1 S.C.R. 613 R. v. Clarkson, [1986] 1 S.C.R. 383 R. v. Collins, [1987] 1 S.C.R. 265 R. v. Pohoretsky, [1987] 1 S.C.R. 945 R. v. Manninen, [1987] 1 S.C.R. 1233 R. v. Dyment, [1988] 2 S.C.R. 417 R. v. Leclair, [1989] 1 S.C.R. 3 R. v. Genest, [1989] 1 S.C.R. 59 R. v. Black, [1989] 2 S.C.R. 138 R. v. Brydges, [1990] 1 S.C.R. 190 R. v. Greffe, [1990] 1 S.C.R. 755 R. v. Hebert, [1990] 2 S.C.R. 151 R. v. Kokesch, [1990] 3 S.C.R. 3 R. v. Evans, [1991] 1 S.C.R. 869 R. v. Elshaw, [1991] 3 S.C.R. 24 R. v. Broyles, [1991] 3 S.C.R. 595 R. v. Mellenthin, [1992] 3 S.C.R. 615 R. v. Dersch, [1993] 3 S.C.R. 768 R. v. Borden, [1994] 3 S.C.R. 145 R. v. Bartle, [1994] 3 S.C.R. 173 R. v. Prosper, [1994] 3 S.C.R. 236 R. v. Pozniak, [1994] 3 S.C.R. 310 R. v. Cobham, [1994] 3 S.C.R. 360

breath samples incriminating statements narcotics blood samples incriminating statements blood samples police lineup weapon incriminating statements incriminating statements narcotics incriminating statements narcotics incriminating statements incriminating statements incriminating statements narcotics blood-alcohol test hair and blood samples incriminating statements breath samples breath samples refusal to provide breath samples incriminating statements weapon incriminating statements teeth impressions, hair samples, swabs incriminating statements, fingerprints bloody shirt, shoes, cigarettes, money incriminating statements

conscripted conscripted real conscripted conscripted conscripted conscripted real conscripted conscripted real conscripted real conscripted conscripted conscripted real conscripted conscripted conscripted conscripted conscripted conscripted

R. v. Burlingham, [1995] 2 S.C.R. 206 R. v. Burlingham, [1995] 2 S.C.R. 206 R. v. Calder, [1996] 1 S.C.R. 660 R. v. Stillman, [1997] 1 S.C.R. 607 R. v. Feeney, [1997] 2 S.C.R. 358 R. v. Feeney, [1997] 2 S.C.R. 358 R. v. Cook, [1998] 2 S.C.R. 597

conscripted real conscripted conscripted conscripted non-conscripted conscripted

The Court’s approach to section 24(2) changed in 1997 with a new formulation of the Collins test developed in R. v. Stillman.1 This new approach to section 24(2) was necessitated because the existing distinction between real and conscripted evidence was unsuitable in situations where real evidence such as dna samples was taken without the accused’s consent. Based on the older classification scheme, this evidence would not have affected the fairness of the trial, and the Court would have proceeded to the next analytical stage in the Collins test. In

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the majority decision (6 to 3), Justice Cory articulated a new evidentiary scheme for the Collins test. In particular, evidence would now be considered to be either conscripted or non-conscripted, with the first branch of the Collins test – fairness of the trial – only affected by conscripted evidence. In this decision, the majority stated that evidence would be conscripted “when an accused, in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of body samples” (R. v. Stillman, 655). Only Justice L’Heureux-Dubé failed to find that Stillman’s right against search and seizure was violated, and that the sanctity of the person was violated by the taking of teeth indentations and other bodily fluids (ibid., 697–8). An important pattern emerges in the Court’s use of section 24(2) which suggests that the relationship between judicial activism and liberal constitutionalism can be offset by factors in addition to the state actor at the centre of a Charter challenge, thus questioning the arguments advanced by Peacock, Rush, Flanagan, and Manfredi in this volume. For instance, the Court has refused to exclude evidence in a majority of cases. Between 1982 and 1999, it rejected 57 per cent (39/69) of section 24(2) claims (Kelly 1999c; 1998, 108).2 Table 3.2 outlines cases in which the Supreme Court of Canada excluded evidence when an individual’s Charter rights had been infringed by the police. In particular, the type of evidence obtained during a Charter challenge has largely been conscripted evidence. Seventy-seven per cent (23/30) of cases where the Court has been activist in section 24(2) have involved a type of evidence that does not exist independent of the Charter violation. “Conscription” is the term that compendiously describes the process which, contrary to adjudicative fairness, involves an agent of the state, without lawful authority meeting constitutional prerequisites, extracting from a detainee or a “person charged” evidence that owes its existence to the conscription process. In effect, it is a situation where the detainee or “person charged” is compelled to self-incriminate (Watson 1990, 174).” In the seven remaining cases where the Court excluded real or non-conscripted evidence, the Charter violation by the police was considered so severe as to outweigh the production of real evidence and to bring the administration of justice into disrepute. The primary impact of the Court’s activism in section 24(2) has been to require the police to place greater emphasis on informing individuals of their Charter protections and a greater professionalism on the part of law enforcement agents. Some of the more questionable practices employed by the police have been found to be inconsistent with the Charter: for instance, the use of deception in securing

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convictions, approaching waivers as blanket provisions when an accused voluntarily sets asides Charter protections for a specific offence, seizing blood samples from unconscious suspects, and allowing intoxicated individuals to waive their Charter rights. While these general trends in section 24(2) cases do complicate crime prevention and the ability to secure quick convictions, they have a limited effect on the balance between judicial and democratic actors in liberal constitutionalism. These trends are illustrated below. In R. v. Brydges a unanimous Court ruled on the informational component of section 10(b) and whether the failure by the police to inform an accused of the availability of legal aid violated the right to counsel (R. v. Brydges, 206). Speaking for the Court, Chief Justice Lamer reconfirmed the decision in R. v. Manninen and ruled that section 10(b) imposed two duties on the police: “First, the police must give the accused or detained person a reasonable opportunity to exercise the right to retain and instruct counsel,” and secondly, “the police must refrain from questioning or attempting to elicit information from the detainee until the detainee has had that reasonable opportunity” (R. v. Brydges, 203). In this case, the accused felt that the right to counsel was contingent on the ability to afford legal advice, and because this impression was not corrected by the police, the Court ruled that the accused had not properly exercised his right to counsel, and thus section 10(b) of the Charter was violated. In its decision, a unanimous Court excluded the accused’s incriminating statements and restored the acquittal against second-degree murder since the statements used as evidence were conscripted, thus undermining the fairness of the trial (ibid., 218). The effect of the decision in Brydges was to expand the informational component of section 10(b), and Chief Justice Lamer concluded that Brydges required “the police to inform detainees of the existence and availability of duty counsel services and legal aid plans” (ibid., 216–17). To allow the police to conform with this decision, the Court suspended the Brydges duty counsel requirement for thirty days to permit the production of new statements outlining Charter rights read to those detained by the police (ibid., 217). While the outcome in this case is difficult to accept – setting aside a murder conviction – the future onus placed on the police is minimal, both from what it adds to the informational component of section 10(b) and from the fiscal implications of conforming to this decision (Burgess 1994, 38). In Prosper the Court addressed the related issue whether section 10(b) of the Charter imposed a substantive constitutional obligation on governments to provide free and immediate legal aid to detainees (R. v. Prosper). In a unanimous judgment, the Court ruled that a

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substantive obligation did not exist, and it based this judgment on two factors. First, speaking for the Court, Chief Justice Lamer concluded that the framers of section 10(b) had rejected the inclusion of free duty counsel as part of the protection, and secondly, “[t]he fact that such an obligation would almost certainly interfere with governments allocation of limited resources by requiring them to expend public funds ... is a further consideration which weighs against this interpretation” (ibid., 267). This decision is significant because it illustrates the distinction within the Court’s activism in the area of legal rights between cases that increase the onus on the police and those that are problematic for liberal constitutionalism. In particular, the Court is most comfortable with checking the discretionary power of police officers, such as increasing the informational requirement of section 10(b), but clearly less interested in extending its activism in directions that force governments to spend limited resources. Judicial activism has also increased the procedural requirements on the police when they investigate crimes and question suspects. For instance, the Court has not accepted as valid, the actions of intoxicated detainees who waive their Charter right to counsel, an issue that arose in R. v. Clarkson and R. v. Black. In Clarkson the Court ruled that the incriminating statements made by the accused should be excluded as conscripted evidence because the voluntary waiver was made by an individual who did not appreciate the consequences of her actions: “While this constitutional guarantee cannot be forced upon an unwilling accused, any voluntary waiver in order to be valid and effective must be premised on a true appreciation of the consequences of giving up the right” (R. v. Clarkson, 395–6). An even more questionable approach to the issue of waivers arose in Black, where the police elicited incriminating statements from an intoxicated individual known to the police to be an alcoholic with a grade four education (R. v. Black, 153). In this case, the Court excluded the incriminating statements made by this individual in connection with a murder investigation as conscripted evidence, but included the knife found when the police searched the murder scene. This case illustrates the Court’s complex approach to section 24(2) and how the paradox of judicial activism in the area of legal rights has allowed it to balance an effective Charter with the needs of effective law enforcement. Specifically, the police must properly dispense Charter rights when interacting with individuals and must ensure that individuals appreciate the consequences of their actions when they decide to waive the right to counsel. Efficient law enforcement has also been complicated by judicial activism in respect to the right to silence. Indeed, the Court has

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narrowed the discretionary conduct of the police because it has refused to accept as legitimate, investigatory practices that circumvent the right to silence through the use of deception or trickery while an individual is in police custody.3 In R. v. Hebert the Court ruled that the right to silence is infringed when undercover police officers are placed in the cells of individuals who refuse to make statements to the police. In an unanimous judgment and speaking for six of the eight justices who heard this case, Justice McLachlin argued that the right to silence was “beyond the narrow formulation of the confessions rule” (R. v. Hebert, 152) and that “under section 7, the state is not entitled to use its superior power to override the suspect’s will and negate his choice to speak to the authority or to remain silent” (ibid., 153). In the case at hand, because the evidence used in the conviction was based on statements made by the accused to the undercover police officer, the Court excluded the statements as conscripted and restored the acquittal against the robbery charges (ibid., 209). This decision was expanded in R. v. Broyles, where the Court prohibited the use of private individuals to secure incriminating statements made while an individual was in police custody. Here the police arranged a prison visit between the accused and a friend who wore a wiretap and recorded incriminating statements for use by the criminal prosecution. In a unanimous judgment, Justice Iacobucci concluded that “the right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement” (ibid., 617). As in Hebert, R. v. Elshaw, and R. v. Calder, the evidence was excluded because it was conscripted and undermined the fairness of the trial proceedings (R. v. Broyles, 617). The Court’s decision in R. v. Feeney applied the new standard for section 24(2) articulated in Stillman, and it has been criticized as evidence of the Court’s preoccupation with the rights of the accused to the detriment of effective law enforcement.4 While Feeney is an example of judicial activism, the new exclusionary rule did not determine the outcome in this case; rather, a series of procedural violations by the police necessitated that real evidence be excluded. First, the police did not secure a warrant before entering Feeney’s trailer, where they discovered a bloody shirt, shoes, cigarette package, and money. Secondly, they did not properly dispose of the Brydges duty counsel requirements, failing to cite the availability of free duty counsel. At this time, the police asked Feeney several questions, which he answered, thus incriminating himself in the murder. Finally, after bringing him to the police station, where he continued to make incriminating statements, the police obtained fingerprints and secured a search warrant for his trailer (R. v. Feeney, 15–17).

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The majority (5 to 4) in this case concluded that sections 8 and 10(b) had been violated by the police, and it excluded the conscripted evidence, the fingerprints, and the incriminating statements, because this evidence was manufactured as a result of procedural violations by the police. Speaking for the majority, Justice Sopinka ruled that the non-conscripted evidence must be excluded because of the seriousness of the section 10(b) violation: “the fact that the appellant did not speak with a lawyer for 2 days following his detention yet the police did not cease in their efforts to gather information, indicates a lack of respect for the appellant’s rights displayed by the police” (ibid., 68). There is a distortion produced, however, by reading Stillman and Feeney as a trend toward more rigorous constraints on law enforcement because the Court limited the use of warrantless searches. Immediately following the decision in Feeney, the Department of the Solicitor General began to construct a new search warrant to address the constraints placed on the police by this decision: “[w]e recognize that cases like Feeney will in the short term create problems for effective law enforcement, but Feeney is not viewed as having a long-term negative impact.”5 This is an important statement because the federal department responsible for law enforcement in Canada is confident that it can create new search warrants to minimize the impact of the Court’s decision in Feeney. The exclusion of real or non-conscripted evidence by the Court has taken place in only 23 per cent (7/30) of section 24(2) cases between 1982 and 1999. Unlike conscripted evidence, which undermines the fairness of the trial and sees the first branch of the Collins test fail, real evidence does not undermine the fairness of the trial. Its exclusion is determined by the second branch of the Collins test, which considers the seriousness of the Charter breach. For instance, the Court excluded narcotics found after an unreasonable search in R. v. Greffe, where the detained individual was subjected to a body-cavity search by medical personnel under the supervision of the police. Greffe had been suspected of smuggling heroin and had been subjected to a strip search at the Calgary Airport, where Canada Customs failed to discover the contraband substance. After arresting Greffe for traffic warrants, the police informed him that he would be subject to a body-cavity search at the hospital, which produced the heroin. In its decision, the Court excluded the real evidence because of the seriousness of the Charter breach and the Court’s judgment that the police did not have reasonable and probable grounds to execute a body-cavity search because the search was conducted in connection with the arrest for traffic warrants (R. v. Greffe, 757). Specifically, the Court ruled that the “administration of

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justice would be brought into greater disrepute if this Court were to condone, taking the record as it is given by the police and the prosecution, the practice of using an arrest for traffic warrants as an artifice to conduct a rectal examination of an accused who the police do not have reasonable and probable grounds to believe is carrying drugs” (ibid., 758–9). In essence, the seriousness of the Charter breach was considered so severe as to necessitate excluding real evidence, which is a pattern that emerges in the cases where the Court has found it necessary to exclude real evidence as essential to protect the reputation of justice. The limited number of cases where the Supreme Court of Canada has excluded real evidence illustrates the complexity of judicial review by the Court and the flexibility that various judicial tests provide for state actors to justify activities that exceed constitutional protections. Indeed, real evidence allows Crown prosecutors to engage in a normative debate that the probative value of the real evidence necessitates its inclusion because a Charter violation has not been serious. Between 1990 and 1997 the Court refused to exclude real evidence in 81 per cent (26/31) of cases where protected rights and freedoms were violated during criminal investigations, a value that declines slightly to 69 per cent (27/39) for the 1982–99 period (Kelly 1999c, 240). This pattern suggests that the Court’s greater propensity to exclude real evidence occurred in a period of judicial review characterized by a high degree of judicial activism, illustrated by the high success rate for Charter claimants, the large number of statutes nullified and the high number of section 24(2) cases where the Court did exclude evidence. The primary impact of the Court’s activism in section 24(2) cases has been to exclude conscripted evidence, and thus the Court has censored practices by law enforcement agents that weaken the reputation of justice. Interpretivism is an attempt to constrain judicial power by holding it accountable to original understanding (Arthur 1995, 3–4). Thus at the heart of the Canadian interpretivist critique is the concern that the Supreme Court of Canada should bind itself to the Charter framers’ intent as a method of judicial accountability. Where the Canadian interpretivists’ analysis loses force in their criticism of the Court’s activism in criminal procedure is the assumption that the democratic state is able to hold the police, another arm’s length agency, accountable. This is a questionable assumption by Charter skeptics, given the problems of accountability with other agencies operating at armslength to government. More importantly, it is an assumption that limits the recognition that judicial activism in the area of criminal procedure can advance the primary theoretical justification of interpretivism – that unelected actors be held accountable for their actions.

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For this reason, this activism has had a marginal impact on liberal constitutionalism because of its indirect effect on democratic actors. What is perhaps most important is that this form of activism has been consistent with the moorings of liberal constitutionalism and its concern that unelected actors do not use discretionary powers in a fashion that undermines the democratic character of a polity. In the case of section 24(2), the Court has strengthened liberal constitutionalism by limiting the potential for the discretionary conduct of police officers to bring the administration of justice and the rule of law into disrepute.

a direc t relat ions h ip b e t w e e n judic ial and legisl at iv e ac to r s in th e area of legal r ig h t s The Court’s activism in the area of legal rights has seen twenty-three sections of statutes involving criminal policy struck down, in whole or in part, on the grounds that the Charter was violated and that the infringement did not constitute a reasonable limitation. This activism is noteworthy because it places the judiciary and legislative actors in direct competition in the area of criminal policy, and thus it creates a potential legitimacy crisis for unelected actors in liberal constitutionalism. What emerges from an analysis of the Court’s application of section 1 in these twenty-three cases is the Court’s refusal to accept as a reasonable limitation sections of the Criminal Code and the Narcotics Control Act that deny certain defences for individuals facing criminal prosecution, or sections that are overly broad in prohibiting activities. In many respects, the denial-versus-limitation approach to section 1 is an implicit dimension of the Court’s approach to the Oakes test in legal rights cases. Further, the Court has also rejected sections of the Code that decreases the burden on state actors from proving guilt beyond a reasonable doubt in select crimes, such as murder and attempted murder. The evolution of the Oakes test has seen the emergence of a bifurcated test where the Court applies a less stringent standard when the state is engaged in a balancing of interests, such as in socio-economic policy. It, however, applies a more stringent standard for demonstrating the reasonableness of a limitation when the state is the singular antagonist and attempts to deprive an individual of his or her liberty, such as in legal rights cases (Dassios and Prophet 1993, 290–1). The bifurcated approach to the Oakes test is a discretionary instrument applied by the Court, but the purpose of this approach is to create a “margin of appreciation” for the policy choices of legislative actors in core areas of democratic politics (Hogg 1991/1992). Secondly, the

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113 The Supreme Court and Judicial Activism Table 3.3 Cases involving legal rights nullified by the Supreme Court of Canada, 1982–1999

Case Hunter v. Southam, [1984] 2 S.C.R. 145 Singh v. Canada, [1985] 1 S.C.R. 177 B.C. M.V.A Ref., [1985] 2 S.C.R. 486 R. v. Oakes, [1986] 1 S.C.R. 103 R. v. Smith, [1987] 1 S.C.R. 1045 R. v. Vaillancourt, [1987] 2 S.C.R. 636 R. v. Morgentaler, [1988] 1 S.C.R. 30 Corp. Prof. des Médicins du Quebec v. Thibault, [1988] 1 S.C.R. 1033 R. v. Martineau, [1990] 2 S.C.R. 633 R. v. Logan, [1990] 2 S.C.R. 731 R. v. Nguyen, [1990] 2 S.C.R. 906 R. v. Swain, [1991] 1 S.C.R. 933 R. v. Seaboyer, [1991] 2 S.C.R. 577 R. v. Sit,[1991] 3 S.C.R. 124 R. v. Bain, [1992] 1 S.C.R. 91 R. v. Généreaux, [1992] 1 S.C.R. 259 R. v. Morales, [1992] 3 S.C.R. 711 Baron v. Canada, [1993] 1 S.C.R. 416 R. v. Laba,[1994] 3 S.C.R. 965 R. v. Heywood, [1994] 3 S.C.R. 761 Ref. Re Remuneration of Judges of the Prov. Court of P.E.I., [1997] 3 S.C.R. 3 R. v. Campbell, [1997] 3 S.C.R. 3 Provincial Judges Assoc. v. Manitoba [1997] 3 S.C.R. 3

Section 1 decision (limitation/denial) n/a unreasonable limitation excessive limitation

Charter dialogue negative (act repealed and replaced) positive (section amended)

excessive limitation

negative (act repealed and replaced) negative (act repealed and replaced) negative (act repealed and replaced) negative (section repealed)

excessive limitation

negative (no legislative sequel)

unreasonable limitation

negative (act repealed and replaced)

excessive limitation

negative (no legislative sequel)

excessive limitation

negative (no legislative sequel)

denial

positive

(section amended)

overbreadth

positive

(section amended)

denial

positive

(section amended)

excessive limitation unreasonable limitation unreasonable limitation overbreadth

negative (no legislative sequel) negative (section repealed)

excessive limitation excessive limitation

unreasonable limitation unreasonable limitation overbreadth

negative (legislative prequel) negative (no legislative sequel) positive

(section amended)

negative (no legislative sequel) negative (legislative prequel)

unreasonable limitation

positive

(section amended)

unreasonable limitation overbreadth

positive

(section amended)

negative (read-down)

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bifurcated test loosely aligns itself behind judicial and legislative roles, with the Court more activist in legal rights and demonstrating greater deference in policy sectors that balance competing interests (Monahan 1994, 116). This approach to section 1 demonstrates the Court’s complex approach to the Charter. But more importantly, it has contributed to the rebalancing of liberal constitutionalism after the Court’s initial activist Charter jurisprudence – a period, incidentally, marked by the Court’s uniform and rigid application of section 1. There are a number of characteristics present in nullified statutes that serve to offset the implications of judicial review for liberal constitutionalism and to further reveal the complexity of judicial activism in Canada. Specifically, table 3.3 outlines judicial activism in the area of legal rights and considers both the nature of the rights violation and whether Charter dialogue has taken place between judicial and legislative actors. Hogg and Bushell (1997) developed the original Charter dialogue concept and have suggested that dialogue exists where legislative sequels follow judicial nullification of statutes and regulations. They suggest that this process occurs in two-thirds of nullified statutes (Manfredi and Kelly 1999, 520–1). The operationalization of this dialogue metaphor has been challenged by Manfredi and Kelly, who suggest that not all legislative sequels are evidence of Charter dialogue. Instead, they argue that a positive action on the part of Parliament and the provincial legislatures is essential to advance dialogue, and that legislative sequel must constitute minor amendments of existing statutes and regulations. Table 3.3 reveals that positive legislative sequels resulted in 30 per cent (7/23) of cases where the Supreme Court of Canada nullified statutes and regulations, and thus Charter dialogue has served to reduce the anti-democratic critique against Charter review in important cases such as Singh v. Canada, R. v. Nguyen, and R. v. Seaboyer. There is, however, a more important dimension of Charter review by the Supreme Court of Canada which questions whether judicial activism leads to judicial supremacy and the decline of democratic politics in Canada. In particular, the Court’s use of section 1 has been taken as a gauge of judicial discretion and the compatibility between judicial review and liberal constitutionalism. For instance, the Court’s acceptance that a limitation is reasonable in a free and democratic society is considered compatible with liberal constitutionalism, whereas the its refusal to accept that a right has been minimally infringed is suggested to be far more problematic and can question the legitimacy of judicial review (Morton, Russell, and Riddell 1995). The statistical evidence between 1982 and 1999 suggests that the Court has shown great reluctance to uphold the constitutionality of

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Rejected section 1 defences, 1982–1999

Nature of the limitation

Number of cases

Marginally exceeds minimal impairment Overbreadth (vague and imprecise) Excessive (total lack of proportionality) Limitation constitutes a denial Total

8 4 8 2 22*

Percentage of cases 36.4 18.2 36.4 9.1 100

*Hunter v. Southam did not include a section 1 analysis.

statutes that infringe protected rights and freedoms, since 62 per cent (47/76) of section 1 defences have been rejected by the Court (Kelly 1999c). Table 3.4 questions this dichotomous approach to understanding the Supreme Court’s use of the reasonable limits clause by placing rejected section 1defences along a spectrum that considers whether an infringement marginally exceeds minimal impairment or whether the limitation in fact constitutes a denial of a Charter right, and thus cannot be justified on section 1 grounds. This spectrum reveals that there are important nuances within rejected section 1 defences which also reduce the anti-democratic critique against judicial activism. For instance, only 36 per cent (8/22) of nullified statutes marginally exceeded minimal impairment. By contrast, 64 per cent (14/22) of nullifications involved statutes that either suffered from overbreadth, were excessive limitations, or constituted a complete denial of a protected right and freedom. This is a significant observation, since it questions whether section 1 is a highly discretionary judicial instrument or whether statutes that are nullified are so seriously flawed that it would be unreasonable for the Court to uphold their constitutionality through a section 1 analysis. Clearly, then, there are characteristics, in addition to the type of state actors at the centre of a Charter challenge and the institutional capacity of judicial actors, which illustrate the complexity of judicial activism and its relationship to liberal constitutionalism. The remainder of this chapter considers important characteristics of judicial review which create a direct relationship between judicial and legislative actors and which prevent the emergence of judicial supremacy. In R. v. Martineau the majority decision (6/1), with L’HeureuxDubé dissenting, found that section 231(a) of the Criminal Code infringed sections 7 and 11(d) of the Charter because it “expressly eliminates the requirement for proof of subjective foresight” in a

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murder conviction (R. v. Martineau, 635). Relying on the judgment in R. v. Vaillancourt, Justice Lamer for the majority stated that it was a principle of fundamental justice “that before a person could be convicted of murder there must be proof beyond a reasonable doubt of at least objective foreseeability of death” (ibid., 643) and that “a special mental element with respect to murder is necessary before a culpable homicide can be treated as murder” (ibid., 646). More importantly, the majority did not consider section 213(a) to be a minimal impairment on section 7. In reaching this conclusion, it argued that convicting someone of murder “who did not intend or foresee death unnecessarily stigmatizes and punishes those whose moral blameworthiness is not that of a murder, thus it unnecessarily impairs the rights guaranteed by s.7 and s.11(d)” (ibid., 647). Similarly in R. v. Logan the Court considered the constitutionality of section 21(2) of the Code, which allowed for the conviction of parties who knew or “ought to have known” the outcome of an unlawful purpose (R. v. Logan, 738). This unanimous decision was delivered the same day as Martineau, and in its judgment the Court found section 21(2) to be constitutional except for a few offences. In particular, the Court reiterated Vaillancourt’s ruling that the state must prove guilt beyond a reasonable doubt for murder and extended the requirement of subjective foresight of death to attempted murder (ibid., 744). As Martineau, Logan, and R. v. Sit demonstrate, the Court has refused to accept as a reasonable limitation, sections of the Criminal Code that reduce the evidentiary and prosecutorial burden on the state in serious crimes. Further, this set of cases shares an important characteristic of section 1 rulings by the Court evident in R. v. Oakes, R. v. Smith, and the B.C. Motor Vehicle Act Reference: specifically, that the infringement greatly exceeded the constitutional protection, thus preventing the Court from upholding legislation found to undermine protected rights and freedoms. Despite the serious limitations of the Court’s approach to legal rights in this set of cases, an important question remains as to who bears the burden of judicial activism in this dimension of legal rights. Principally, it is Crown prosecutors who must argue cases in an environment that demands higher thresholds of proof before guilt can be established. Perhaps what is most important is that, as a result of judicial activism in legal rights cases, the burden placed on non-elected state actors greatly outweighs that placed on democratic actors. This outcome occurs because the Crown and the police have no other recourse to judicial decisions except compliance, and thus they are directly affected by judicial activism. The impact of judicial activism in legal rights on elected officials,

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however, is not as direct as that on Crown prosecutors or the police. Indeed, the impact is only direct if legislative actors cannot respond to judicial activism through legislative sequels and they achieve the same legislative objective in a new guise by introducing minor legislative changes. In the case of Martineau et al., Parliament has not responded with amendments to the Criminal Code. As a result, the constraints placed on Crown prosecutors remain, and judicial activism has reduced the effectiveness of criminal prosecution in cases involving murder and attempted murder and other serious offences. Judicial activism, however, has not been an enduring feature of the Supreme Court’s activism in all legal rights cases. In R. v. Nguyen a majority decision (5 to 2) ruled that section 146(1) of the Code, which prohibited sexual intercourse with a female younger than fourteen, violated the principles of fundamental justice because “the provision expressly removes the defence that the accused bona fide believed that the female was 14 years of age or older” (R. v. Nguyen, 913). Speaking for the majority, Justice Wilson did not accept that section 146(1) was a minimal impairment because it did not make a distinction between the “mentally innocent and mentally guilty” and “at a minimum the provision must provide for a defence of due diligence” (ibid., 926). In R. v. Daviault the majority decision (6 to 3) stated that the common-law rule that the mental element of general intent cannot be negated by extreme drunkenness violated both sections 7 and 11(d) of the Charter (R. v. Daviault, 74). For the majority, Justice Cory reiterated the position that eliminating the mental aspect of a crime violated the principles of fundamental justice, and thus the common-law rule could not be considered a reasonable limitation: “to deny that even a minimal mental element is required for sexual assault offends the Charter in a manner that is so dramatic and so contrary to the principles of fundamental justice that it cannot be justified under section 1 of the Charter” (ibid., 74). In essence, Nguyen and Daviault illustrate the Court’s stringent approach to section 1 in legal rights cases and its refusal to accept as reasonable the state’s denial of an avenue of defence for the accused. More importantly, in both cases, Parliament has amended the Criminal Code to address the Court’s rulings, and has thus responded to judicial activism by introducing legislative responses to these decisions.6 In addition, the Court has not accepted as reasonable, sections of the Criminal Code that provide for indeterminate incarcerations or blanket provisions prohibiting certain activities. In fact, the Court’s implicit argumentation throughout such cases is that this approach to criminal policy is inconsistent with the principles of fundamental justice because it suffers from overbreadth. By refusing to accept

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sections of the Code that demonstrate these characteristics, the Court is demanding precision by legislative actors in the drafting of criminal policy. Several cases demonstrate this concern with precision as a necessary condition to satisfy the Charter. In R. v. Swain the Court ruled in a majority decision (6 to 1, with L’Heureux-Dubé dissenting) that section 542(2) of the Code, which allowed the Crown to detain a person found not guilty by reason of insanity to be in violation of sections 7 and 9 of the Charter (R. v. Swain, 934). In its section 1 analysis, the majority employed the stringent application of the Oakes test, and thus section 542(2) fell because it was not deemed to represent a minimal impairment on both sections 7 and 9 of the Charter. Chief Justice Lamer concluded that section 542(2) resulted in an indeterminate period of incarceration which did not conform to minimal impairment because “the Oakes test requires that insanity acquittees be detained no longer than necessary to determine whether they are currently dangerous due to their insanity” (ibid., 1018–19). In reaching this conclusion, the chief justice referred to other sections of the Criminal Code which “provided for remands of a fixed duration for psychiatric observations” to demonstrate the lack of proportionality within section 542(2) (ibid.). In a majority decision (5 to 4) in R. v. Heywood, Justice Cory ruled that section 179(1)(b) which prohibited convicted sexual offenders from loitering in public places, was inconsistent with the principles of fundamental justice. In particular, it was drawn too broadly, and “it applies without prior notice to the accused, to too many places, to too many people with no possibility of review” (R. v. Heywood, 790). Thus, because of the characteristics of overbreadth in the definition of public loitering and the lifetime ban, the majority rejected section 179(1)(b) as a minimal impairment on the right to liberty of convicted sexual offenders. This decision, however, was somewhat of a moot issue because Parliament had already enacted section 161 of the Code, which Justice Cory considered “a good example of legislation which is much more carefully and narrowly fashioned to achieve the same objective as s.179(1)(b)” (ibid., 804). The Supreme Court’s decisions in Swain and Heywood illustrate several limitations in concluding that judicial nullification of legislation necessarily facilitates judicial supremacy. Recognizing that nullifying section 542(2) in Swain would release insanity acquittees en masse into the general public, the Court suspended its decision for six months to allow Parliament time to reflect on the inadequacy of the section and rewrite it to conform with the Charter. Furthermore, the Court’s activism has been tempered through a two-level dialogue with democratic actors. The first level of dialogue exists when the Court

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indicates within a decision how a violation can be addressed in a legislative sequel to ensure compliance with the Charter. Justice Cory’s comments in Heywood illustrate this dimension of dialogue. The second level exists when legislative actors respond to nullifications by introducing positive legislative sequels that marginalize the impact of judicial activism. Obviously, this is an awkward dialogue, with the two actors appearing to engage in a monologue. But it is a dialogue because of the symbiotic relationship that the Charter creates between judicial review and legislative politics. For instance, in Swain there was a legislative sequel in 1991 when Parliament introduced section 672.12 of the Criminal Code to provide for review boards and mental assessment hearings to determine whether insanity acquittees should be detained and for how long (Hogg and Bushnell 1997, 118). As in Nguyen and Daviault, the Court’s activism has been tempered through legislative sequels that address procedural violations in the Criminal Code which infringe the Charter. More importantly, by crafting legislation in a more precise fashion in legislative sequels, Parliament has addressed the Court’s preoccupation with vagueness and overbreadth as inconsistent with the principles of fundamental justice. It appears, then, that the complexity of Charter review extends beyond the paradox of judicial activism to include the direct relationship between judicial and legislative actors when statutes are nullified. Indeed, a significant element of judicial activism has been offset by the introduction of positive legislative sequels and the emergence of genuine Charter dialogue between judicial and legislative actors. Such additional considerations are important because positive legislative sequels cast doubt on the notion of judicial supremacy, and as Alan Cairns points out (Cairns 1995, 203), the Charter “gives an imperialist answer to the future by narrowing the range of allowable choices of generations not yet born.” More importantly, positive legislative sequels have resulted in cases where the Court’s activism was roundly criticized, particularly in Swain, Daviault, and Nguyen. This fact is significant because in situations where judicial activism has placed the judiciary and legislative actors in direct competition, legislative actors have been able to address nullifications through Charter dialogue. With respect to the Court’s approach to section 1 in the area of criminal policy, its activism has been tempered by the reasons it has adopted, namely, its distaste for overbreadth and the ability of Parliament to respond by employing greater precision in drafting amendments to the Criminal Code. Further, the small number of cases where the infringement marginally exceeded a reasonable limitation are overshadowed by the large number of failed section 1 defences where the limitations are excessive and possibly functioned, not simply as

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limitations, but as denials of Charter rights. This outcome suggests that a complex Charter review does exist, and thus judicial activism and judicial supremacy are checked by the paradox of judicial activism and positive legislative sequels introduced by political actors.

c onc lusion The complex relationships created between state actors and the Supreme Court of Canada during Charter review question the assumption held by Canadian interpretivists that judicial activism threatens liberal constitutionalism and facilitates the emergence of judicial supremacy. This chapter has challenged the conception of state actors held by Canadian interpretivists and has argued that the impact of judicial activism varies, depending on the state actor at the centre of a Charter challenge and the institutional capacity of the judiciary in a particular policy area. These important distinctions have revealed that much of judicial activism creates a direct relationship between the judiciary and the police and involves criminal procedure, a policy area where, arguably, the judiciary possesses the institutional capacity to be an effective policy actor. Moreover, instead of undermining liberal constitutionalism by transferring decision-making authority from the political to the judicial realm, judicial activism has checked the discretionary power of the police. This outcome has strengthened the relationship between societal and state actors in Canada. The paradox of judicial activism, therefore, illustrates the limited application of the interpretivist model in Canada because that model cannot capture the multiple relationships that Charter review creates between state actors and the judiciary. Nor can it accurately capture the link between judicial activism and liberal constitutionalism once the relationship between state actors and judicial review progresses beyond a direct one involving elected officials and the judiciary. The Court’s use of two highly discretionary Charter instruments – the exclusion-of-evidence rule and the reasonable limits clause – deepens the paradox of judicial activism and further questions whether it undermines liberal constitutionalism. Specifically, a distinct pattern emerged in the Court’s approach to both section 24(2) and the reasonable limits clause which suggests that the effect of judicial activism on liberal constitutionalism may not facilitate the emergence of judicial supremacy, even when Charter review creates a direct relationship between judicial and legislative actors. For instance, the Court has overwhelmingly excluded conscripted evidence. In doing so, it has strengthened the reputation of the administration of justice, because questionable police practices that undermine the fairness of

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the trial process are no longer considered acceptable encroachments on protected rights and freedoms. A more interesting feature of judicial activism, however, was identified in legal rights cases involving statutes and regulations. In essence, judicial activism does not necessarily lead to judicial supremacy, but can be offset by two important characteristics when statutes and regulations are nullified: first, whether a positive legislative sequel has occurred in response to judicial nullification by the Court and, second, the nature of the rights violation found to be unreasonable in a free and democratic society. The analysis of legal rights demonstrated that a significant number of nullified statutes were accompanied by positive legal sequels. Perhaps more importantly, a large majority of failed section 1 defences involved statutes that did not simply exceed what is considered a reasonable limitation, but involved excessive limitations that bordered on complete denials of protected rights and freedoms. This fact suggests that even when Charter review places the judicial and legislative actors in direct competition, important variables emerge which heighten the complexity of judicial activism and the relationship between judicial review and liberal constitutionalism. A central question in comparative politics is the application of theoretical models in countries possessing distinct institutional structures and whether such models are transportable to new institutional contexts. In several important respects, the interpretivist model and its application to Canada demonstrates the limitations of applying an American debate in Canada without first assessing the compatibility of this debate in a Westminster system that displays strong party discipline. In essence, Canadian interpretivists have uncritically applied this model in Canada without first assessing whether the unique institutional features of Canadian constitutionalism and Charter review allow for its application in Canada. The complexity of judicial activism and the paradox of judicial review by the Supreme Court of Canada result because of the unique features of the Charter of Rights and Freedoms and the distinctive Canadian constitutional environment. An American debate therefore holds limited value in understanding the impact of judicial activism by the Court and the relationship between Charter review and liberal constitutionalism.

not es I would like to acknowledge financial assistance from the Social Sciences and Humanities Research Council of Canada (Standard Research Grant 410-2002-0854), which made this research possible.

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122 James B. Kelly I gratefully acknowledge permission to incorporate material from the following publication: James B. Kelly and Michael Murphy, “Confronting Judicial Supremacy: Judicial Activism and the Supreme Court of Canada’s Legal Rights Jurisprudence,” Canadian Journal of Law and Society 16 (2001): 2–37. 1 There were a number of shifts in the Collins test before Stillman, particularly in Mellenthin and Burlingham, which blurred the categories of evidence. However, Stillman represents the most significant shift because of its concern with dna evidence. 2 The Court considered two section 24(2) cases between 1998 and 1999, excluding the evidence in one of the cases. 3 A critical analysis of the Supreme Court of Canada’s decision to exclude cell statements is provided in Gibson 1990, 381. 4 Interview with senior government official, Ottawa, 2 October 1997; and Fine 1997. 5 Interview with senior government official, Ottawa, 1 October 1997. 6 In response to Nguyen, Parliament revised the Criminal Code, replacing the term “rape” with “sexual assault” and restricting the defence that an accused believed the complainant was fourteen years or over to those who “took all reasonable steps to ascertain the age of the complainant.” In response to Daviault, Parliament introduced Bill C-72, which effectively reverses the Court’s decision. Section 33.3(1) states: “It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the basic intent or voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).” See Litkowski 1996, 283.

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part two The Constitution and Rational Choice Theory

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124 Anthony A. Peacock

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4 Canada’s Three Constitutions: Protecting, Overturning, and Reversing the Status Quo T OM FLA NAG A N

Richard McKelvey’s chaos theorem has become so well known that, along with other concepts from rational choice, it is now finding its way into introductory textbooks in political science (Booth, James, and Meadwell 1993). Shepsle and Bonchek summarize it in Analyzing Politics: “In multidimensional spatial settings, except in the case of a rare distribution of ideal points (like radial symmetry) that hardly ever occurs naturally, there will be no majority rule empty-winset point. Instead there will be chaos – no Condorcet winner, anything can happen, and whoever controls the order of voting can determine the final outcome” (Shepsle and Bonchek 1997, 101). On issues where choices can be arrayed along a single dimension, there will be an equilibrium outcome at the ideal point of the median voter. But many issues are not unidimensional. Moreover, as William Riker has shown at length, democratic politicians are experts in converting unidimensional issues into multidimensional ones (Riker 1988: 209). In their never-ending quest to break up existing coalitions, politicians learn how to introduce new aspects into seemingly stable issues or how to link previously disparate issues in multidimensional packages. The real world of politics, however, is not nearly so kaleidoscopic as the chaos theorem implies because institutional rules of agendaformation and decision-making filter out disruptive options and rearrange them into new single dimensions. As I wrote elsewhere, “Political institutions act like filters for removing options and like funnels for directing choices into binary alternatives and single

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dimensions so that equilibria nominally supported by majorities can emerge” (Flanagan 1998, 124). A striking example is the modern parliamentary system, which reduces diverse issues sprawling across many dimensions to matters of party discipline. Because the only issue that matters in Parliament most of the time is whether you vote with your party or not, politics becomes a polarized struggle between government and opposition. It may not be edifying, but neither is it chaotic. Responsible government with disciplined parties is an example of the more general phenomenon of “structure-induced equilibrium,” as it is often called in the literature today (Ordeshook and Shepsle 1982). Fortunately (from the standpoint of this conservatively minded author), the decision-making and agenda-setting rules that induce equilibrium tend to protect the status quo, making it hard for innovations to be adopted until they have gathered high levels of support. Below are some examples of rules and procedures that favour the status quo: • supermajority rules for decisions considered particularly important, such as the unanimity rule for jury convictions in criminal cases; ratification procedures for constitutional amendments, which are almost always more demanding than the passage of simple legislation; bicameralism, which requires passage of legislation in two different chambers; and the executive veto; • mandatory delays, for example, three readings in a legislative chamber or the suspensory veto exercised by the British House of Lords; such periods of delay encourage “sober second thought” and give opposition a chance to develop; • the amendment procedure almost universally followed in legislative chambers, which requires that the status quo not be voted upon until the end, when it becomes the default option against the bill as amended; this order of consideration gives an advantage to the status quo because amendments that might lead a majority to prefer the amended bill over the status quo may be defeated earlier in the process (Riker 1988, 69–73);1 this outcome, of course, applies in legislatures only when party discipline does not prevail; • constitutionalism and the rule of law, which prevent many innovative options from being considered without prior amendment of the constitution; • judicial review, which, in its classical form, allows courts to nullify legislation or executive action, thus causing a reversion to the status quo ante; however, to the extent that contemporary judicial review encourages courts not simply to nullify legislation but to substitute

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their own understanding of the law, it loses its conservative character and allows courts to create a new status quo by judicial fiat. I recently published a case study of the Mulroney government’s attempts to pass new abortion legislation after the 1988 Morgentaler decision of the Supreme Court of Canada (Flanagan 1997). The upshot of the analysis was that the government’s intention to legislate was frustrated by ill-advised strategic voting on the pro-life side, combined with parliamentary decision-making rules favouring the status quo. The median voter in both the House of Commons and the Senate almost certainly wanted to see some degree of legislative action, and the government had committed itself to get legislation passed, but in the end nothing happened. This was an interesting example of the general phenomenon of structure-induced equilibrium, but its importance was limited because it applied only to the unusual case of free votes in the Canadian Parliament. In this chapter I want to use the concepts of the status quo and structure-induced equilibrium more broadly, as tools to understand the development of the Canadian constitution since 1867. My working hypothesis is that a fruitful way of interpreting a constitution is to analyze how its ensemble of decision-making rules and procedures treats the status quo. Using this approach, I find a historical succession of three Canadian constitutions: the first, based on separation of powers among multiple authorities; the second, based on almost total dominance of the executive over the legislative power; and the post1982 dual system of power, in which the executive retains control over the legislature but is now confronted by an increasingly powerful and assertive judiciary. I conclude with some suggestions for further study of this dual system, which will be Canada’s operating constitution for the foreseeable future. the first constitution: checks and balances The first Canadian constitution, embodied in the British North America Act (now the Constitution Act, 1867) and supported by the political conventions of the day, was a remarkably fragmented system of power designed to protect the status quo and make innovation difficult. The federal Parliament and all provincial legislatures were bicameral, with each chamber having equal power to refuse legislation. According to MacKay (1963, 95), the Senate rejected 2.4 per cent of government bills between 1867 and 1960 (102 out of 4,200). Sir John A. Macdonald lost 6 per cent of government bills in the

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Senate in the years 1867–73, even though that body had a Conservative majority in those years. The rejection rate was 10 per cent (32 government bills) from 1921 to 1930, when Mackenzie King’s Liberal government introduced controversial legislation to nationalize railways. In contrast, the Senate turned back no laws at all between 1940 and 1960 (MacKay 1963: 96, 101–9). Since then, the Senate has occasionally rejected important bills, almost always when different political parties controlled the two houses of Parliament; but fear of losing legislation in the Senate is not ordinarily a major concern of the federal government. At the time of Canada’s founding, political lines of division were blurry and party discipline was relatively weak, so that cabinets could not simply push legislation through the House of Commons. According to Roman March (1974, 56), “Sir John A. Macdonald’s government was defeated five times on government bills in the first four sessions after 1867 … Certainly during the nineteenth century there were many members of the House of Commons who promised their electors that they would exercise an ‘independent’ judgment on all legislation.” March calculates the rate of independent voting in the Commons in 1867 to be about 20 per cent, compared to the modern rate of 1 per cent or less (1974: 59). Even if a bill managed to run the obstacle course of loosely organized parties in a bicameral legislature, there was still the possibility of executive veto. Ottawa used its power of disallowance against 112 provincial statutes in the years 1867–1942. Most of these cases occurred in the first half-century of Confederation, although there was a final flurry of disallowance in the late 1930s and early 1940s to invalidate Alberta’s Social Credit legislation (La Forest 1955, 83–101). Reservation was employed 69 times, again with a final flurry against Alberta’s unconventional initiatives (La Forest 1955, 102–15). The constitution gave Whitehall similar powers vis-à-vis federal legislation, and they were used for a few years after Confederation. Twenty-one bills were reserved between 1867 and 1878 (fifteen of these ultimately received royal assent), and one bill was disallowed in 1873 (Hogg 1992, 46n4). Neither reservation nor disallowance has been employed against federal legislation since 1878, when the royal instructions were changed; and the use of both at the federal level (i.e., against federal legislation) was formally discontinued after the Imperial Conference of 1930, although they remain in sections 55–7 of the Constitution Act, 1867. Executive government was also constrained, albeit in different ways. The weakness of party discipline meant that governments had to view loss of support in the House of Commons as a realistic possibility, as

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happened to Sir John A. Macdonald over the Pacific Scandal in 1873. By modern standards, the executive in early post-Confederation Canada presided over few employees and disposed of little revenue. The political culture of the day opposed income taxes, and the technology to collect mass-consumption taxes did not exist. In practice, the federal government relied on customs and excise duties, while provincial governments depended on federal subsidies, supplemented by licences and fees, property taxes, resource revenues, and the sale of public lands. Another formidable barrier to innovation was the division of powers between Parliament and the provincial legislatures.2 Except for a few concurrent powers, the two levels of government could legislate only within the jurisdictions assigned to them by sections 91 and 92 of the Constitution Act, 1867. The division of powers was policed by the courts, which from the beginning had the power to declare legislation ultra vires if it crossed jurisdictional lines. Although it could arbitrate federal conflicts, the judiciary was not supreme because it was also constrained in several ways. The theories of parliamentary sovereignty and legal positivism then dominant in British jurisprudence encouraged judicial deference, not activism. Canadian courts were reluctant to strike down legislation unless a good argument could be made that it went beyond the assigned powers of the legislature. If Canadian judges became adventurous, there was always the possibility of appeal to the Judicial Committee of the Privy Council. In practice, the decisions of the jcpc tended to reinforce the division of powers, thus making it more difficult for elected politicians to enact large-scale changes to the status quo (Cairns 1988, 58–66). Finally, the Constitution Act, being imperial legislation, was beyond the power of Canadian authorities to amend. Canada quickly developed the practice of using a joint address of the House of Commons and the Senate to ask the British executive to introduce amending legislation into the imperial Parliament, but approval could not simply be taken for granted in these early years (Gérin-Lajoie 1950). Moreover, the convention soon arose that support from the provinces would have to be obtained for amendments affecting their rights. Since any request for an amendment had to come from Ottawa but also had to have provincial support, politicians had to build considerable consensus before employing constitutional amendment to change the status quo. All in all, this was a system of checks and balances at least as extensive as the American constitution of the same era. By modern standards, it may seem miraculous that government got anything done at

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all. Most Canadians now take it for granted that government will have many employees, large revenues, and the ability to pass legislation almost at will. But in spite of the very limited ability of Canadian governments to change the status quo, Canada prospered in the first halfcentury after Confederation. The country expanded from the Atlantic to the Pacific to the Arctic, built transcontinental railways to facilitate the agricultural development of the West, and quickly assimilated massive immigration from many countries. Canada proved its maturity by making a large contribution to the victory of the Allies in the First World War. The war effort put a strain on national unity, leading to political convulsions in both Quebec and the West, but there were no important separatist movements after the suppression of the second Riel Rebellion in 1885. Whatever their grievances, Canadians – western and eastern, English and French – wanted to improve Canada, not dismember it.

t h e sec ond c onstit u t io n : c a b inet dominat ion Unlike the first constitution, the second was not created at one stroke. It emerged through a series of piecemeal changes, reaching its apogee in the early 1980s. It still exists, though it is now overlaid by a third constitution created by the Constitution Act, 1982. A short chapter cannot do justice to a century of constitutional evolution. Let me simply indicate schematically the major changes whose joint impact converted the first constitution into the second: • rise of party discipline: it gave the elected executive virtually complete control over the passage of legislation while freeing majority governments from the fear that they might have to resign because of loss of confidence among their own supporters; • decline of bicameralism: the provinces abolished their second chambers, while the federal Senate ceased to exercise its veto over legislation, except in rare circumstances; • atrophy of the executive veto: reservation and disallowance were not applied to federal legislation after 1878, while the federal authorities used these powers less and less frequently, and not at all after 1942, against provincial legislation; • appropriation of revenue: British Columbia introduced a personal income tax in 1876, Prince Edward Island in 1894, and the federal government as a “temporary” measure in 1917; five more provinces followed suit between 1923 and 1939 (Hogg 1992, 136–7); income taxes have immeasurably expanded the fiscal horizons of govern-

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ment and made possible the administrative state that affects so much of modern life. Some of these developments were part of worldwide trends as government in general tilted toward executive power in the twentieth century. The preceding changes also created the foundation for a more activist government. Moreover, everywhere that the doctrine of responsible government has been implemented, it has led to Cabinet dominance of the legislative process through the exercise of party discipline. There are minor variations on this theme, such as the ability of the Conservative Party caucus in Britain to change its leader or the requirement within the New Zealand Labour Party that caucus elect Cabinet members before the prime minister appoints them to specific portfolios; but the general picture of Cabinet dominance is pretty much the same everywhere. Other Canadian developments, however, grew to some degree out of flaws in the design of the first constitution. As John Stuart Mill remarked in Representative Government, second chambers have to represent some force in society to be effective (Mill 1926, 98). The British House of Lords represented an aristocracy that was still important in nineteenth-century Britain, but there was no corresponding class in Canada. In North American circumstances, choosing senators by appointment rather than election meant that they represented nothing but the power of prime ministerial patronage. Hence the Senate’s inevitable loss of political legitimacy over time. Similarly, the executive veto in Canada had no social base. The lieutenant-governors were patronage appointments of the prime minister; and the governors general were members of the British royal family or aristocracy, also without any independent source of political legitimacy in Canada. It is thus not surprising that the executive veto atrophied almost immediately at the federal level and more slowly but inexorably at the provincial level. Were it not for the constitutional division of powers, these developments might have converted both the federal and provincial governments into elective despotisms. However, the strict interpretation of the division of powers elaborated by the Judicial Committee of the Privy Council (“watertight compartments”) made the two levels of government balance each other, putting real limits on the ability of either level to overturn the status quo by introducing new plans, programs, or policies. As late as the 1930s, it was still arguable that Canada’s constitution was a greater restraint on government initiatives than was the vaunted American system of checks and balances. Franklin Roosevelt

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got his New Deal though Congress and then managed to intimidate the Supreme Court into letting it stand, whereas most of R.B. Bennett’s New Deal foundered on the shoals of Canadian federalism and judicial review. The constraints of federalism were partially overcome, however, by constitutional amendments allowing the federal government to create unemployment insurance and pension plans.3 An even bigger factor was the rise to prominence of the federal “spending power,” which allowed the federal government to use revenue as both carrot and stick to induce provinces to participate in national programs of welfare, health care, and advanced education. Also assisting the expansion of federal jurisdiction was the abolition of appeals to the Judicial Committee of the Privy Council in 1949. Once the Supreme Court of Canada, whose members are chosen by the prime minister, became the highest appellate court, its decisions tended to favour federal over provincial jurisdiction. By the 1960s, these developments had come together to convert the practical Canadian constitution into one of cabinet dominance and executive federalism, in which the federal government used its greater control over revenue to steer the provincial governments. The stage was set for Pierre Trudeau, whose Liberal government inaugurated Canada’s second century, ruling from 1968 to 1984 with only one brief interruption. By coordinating legislation, executive action, and fiscal transfers to the provinces, even though Trudeau himself had previously opposed the federal spending power (Trudeau 1968, 100), his government manifested an unprecedented ability to change the status quo in the Canadian society, economy, and polity. Among other initiatives, Trudeau • redefined the Canadian state as bilingual and multicultural; • replaced the venerable imperial weights and measures with the metric system; • changed the immigration stream to Canada from almost entirely white to mostly non-white; • created a national health care program that outlawed private health insurance for services offered by the public plan (the only oecd country to do so); • launched the National Energy Program, a virtual takeover of the oil and gas industry, including confiscation of assets, comprehensive export controls, national price-setting, and the creation of a mammoth Crown corporation. It is hard to conceive of the Canadian government carrying out any of these initiatives under the first constitution, yet the Trudeau govern-

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ment was able to do all of this, and much more, in only fifteen years. In some ways, the trend toward concentration has continued to intensify since then. Cabinet government as a collective form of decisionmaking has largely disappeared because the cabinet has become little more than a focus group for the prime minister. In Donald Savoie’s words (1999, 106–8), “prime ministers leading a majority government can drive virtually whatever initiative or measure they might favour ... The most significant limit on the prime minister’s political power is time, or lack of it.” With his usual elegance, Jean Chrétien, the current prime minister, has confirmed Savoie’s assessment of the reduced role of Cabinet ministers: “I am telling you that in my case, my wife has a lot of influence in what I am doing ... My wife has not one staff, no nothing. But she has sometimes more influence than all of you [media]. And sometimes perhaps more than most of the ministers. But she keeps her advice directly to me” (Alberts 1999). The proudest achievement of the second constitution was the creation of the Canadian welfare state, jointly funded and administered by the federal and provincial governments, with Ottawa taking the lead in creating the legislative framework and transferring funds. Ironically, however, this achievement led to a new set of restraints upon governmental power. Twenty years of chronic deficit spending built up public debts that forced all governments in Canada to trim their sails and forgo major new initiatives. Government indebtedness made international money markets almost part of the constitution – perhaps now the most effective check on the government’s power to overturn the status quo. Similar effects arise out of Canada’s participation in international trade agreements such as nafta and the wto. Both treaties deter cabinets from undertaking protectionist initiatives that might otherwise be politically attractive and offer facilities for reversing such initiatives when they are undertaken (e.g., the fate of Ottawa’s efforts to protect Canadian magazines from American competition). Of course, to the extent that protectionism is historically entrenched, the treaties may lead particular aspects of the status quo to be overturned (e.g., the possible long-term fate of supply management in Canada’s dairy and poultry industries). Another factor is the rise of separatism in Quebec, spurred on by federal intrusions into provincial jurisdiction under the second constitution. Fear of separatism has led to concessions to Quebec, which in turn embolden the other provinces to try to recover their lost jurisdictions. Such trends suggest that the second constitution was inherently self-limiting. Its unchecked centralized power was bound to go too far, thus causing reactive forces to arise and impose new limits.

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t h e t h ird cons t itu t io n : judic ial s upr emacy v e r su s c a b inet dominat ion The so-called patriation of the constitution carried out in 1982 created a third constitution as an overlay upon the second, and the relationship between the two is still in the process of evolution. What I call the third constitution, then, is not really a successor to the second, in the way that the second constitution followed upon the first. Rather, the third constitution is a new decision-making process coexisting with the second. In part, the third constitution was an idiosyncratic outcome of Pierre Trudeau’s desire to entrench his newly created bilingual status quo beyond the power of future generations to overturn. Not content with legislation, he wanted bilingualism written into a constitution that would be difficult to amend. But to achieve this goal, he had to gather support from many quarters, including official-language minorities, multiculturalists, feminists, and Aboriginals, thus opening the door to the package of amendments enshrined in the Constitution Act, 1982. As noted in the introduction to this volume, the accumulation of interests led to redistribution of political power and resources in a manner consistent with the Rawlsian paradox. Specifically, those who know their lot in society – unlike Rawls’s decision-makers, who deliberate behind a veil of ignorance – are able to constitutionalize interest group politics with an unprecedented degree of success. Additional factors must have been at work, however, for judicial power has been on the increase almost everywhere in the democratic world in the late twentieth century. Donald S. Lutz writes: “There has been a general and significant move in constitutional democracies towards a ‘rights consciousness.’ Rights consciousness has involved two more or less equal sub-trends – one toward group rights and one toward individual rights. In some countries, as in Canada, both subtrends have been intertwined. Longer and more complex bills of rights, more active national courts, and political mobilization through normal politics have all become more prominent.” (Lutz 1999, 9) A related development has been the rise to prominence of judicial philosophies such as legal realism and critical legal studies, which analyze law in terms of power relations. If law is nothing but power, and you have the power to redefine the law by means of judicial decison, why not use it? The size and complexity of the modern state are also undoubtedly involved. No matter how concentrated and unopposed the power of the executive over the legislative branch of government becomes, there is simply so much to attend to that most proposals for change will never be

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able to get onto a permanently overcrowded political agenda, thus tempting would-be reformers to seek reversals of the status quo through the judicial process. The fiscal crisis of the welfare state may also play a role. Budget deficits and taxpayer resistance have disciplined conventional government expenditures, but they also encourage political activists to turn to the judicial system to pursue objectives that financially strapped governments would not undertake voluntarily. Whatever the exact causes may be, the consequences are clear. The 1982 amendments elevated judicial power to a status far higher than anything previously seen in Canada. The courts received the power to nullify legislation not only on division-of-power grounds, which they already possessed, but also on the basis of a long list of expansively worded rights in the Canadian Charter of Rights and Freedoms. Moreover, section 24 of the Charter authorized them to go beyond mere nullification of legislation to impose “such remedy as the court considers appropriate and just in the circumstances” (Manfredi 1994). Thus the Rawlsian paradox comes into play with a vengeance – rentseeking dressed up in judicial robes and with a high degree of success. The importance of this latter point is becoming more evident as time goes by. Nullification of legislation is a negative veto; it creates a new status quo in the sense of wiping the slate clean, of producing a legal vacuum. Sometimes this vacuum will endure, as in the aftermath of the Morgentaler decision (1988), but it can also be an invitation to the legislature to try its hand again. Other remedies, in contrast, are more positive in character, much closer to passing than nullifying legislation. This outcome is most obvious, as in the Vriend decision (1998), when the courts choose to “write in” amendments to existing law rather than to declare the law, or parts of it, ultra vires (see Peacock in this volume). Other judicial actions can have much the same effect. In the field of Aboriginal law, for instance, the courts are now reinterpreting treaties in the light of extrinsic evidence, including both historic documents and oral traditions. The most recent example is the Marshall case, in which the Supreme Court of Canada held that a 1760 treaty provision guaranteeing the right to trade at a “truck house” should now be read as guaranteeing the right of the Mi’kmaq, Maliseet, and other eastcoast Natives to derive a “moderate livelihood” from catching and selling seafood without regard to provincial license requirements, catch limitations, and closed seasons (Donald John Marshall v. the Queen, par. 59). Rulings of this type have the effect of rewriting treaties without the consent of both parties (sometimes without the consent of either). Treaties are part of the constitution, according to section 35 of the Constitution Act, 1982, so that any changes to the status quo

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obtained by judicial interpretation of treaties will be practically impossible to overturn, given the difficulty of employing Canada’s procedures for amending the constitution. Of course, the courts have always had the function of interpreting legislation, treaties, regulations, and other legal instruments, but their interpretations are becoming freer than ever before. In Marshall the Supreme Court overturned its own rule, promulgated eleven years before in the Horse decision, that extrinsic evidence would be used to interpret treaties only when the text was ambiguous (R. v. Horse, 201). In fact, the Court had never strictly followed the Horse rule, even in the decision in which it was laid down; but now it repudiated the rule altogether. In the various gay rights decisions culminating in Vriend, the courts simply ignored the obvious evidence that the framers of the Constitution Act, 1982, had consciously chosen to omit sexual orientation from section 15. Svend Robinson moved to include sexual orientation, but his motion was defeated in committee by a vote of 22 to 2. Nonetheless, the courts went on to find that sexual orientation was included by implication in section 15 of the Charter, and that human rights legislation must include sexual orientation in order to conform to the Charter. At least some of the 1982 framers were concerned about the prospect of judicial supremacy, and such concern led to the insertion of section 33, which allows Parliament or a provincial legislature to declare that its legislation “shall operate notwithstanding” a judicial ruling that it violates section 2 or sections 7–15 of the Charter. The notwithstanding clause, however, is at least temporarily in desuetude, as a result above all of its use in Quebec to override the Supreme Court of Canada’s Ford decision on the province’s sign law. That led to Prime Minister Mulroney’s famous outburst that “the constitution was not worth the paper it is printed on” because of the notwithstanding clause (see Manfredi in this volume). More seriously, Quebec’s actions led to reactions in other provinces that eventually caused the Meech Lake Accord to fail. Although the notwithstanding clause is still in the constitution, politicians are now extremely reluctant to invoke it. In March 1998 the Alberta attorney general announced that the government would use section 33 to protect a piece of legislation involving compensation for those sterilized by order of the province’s Eugenics Board; he then retracted his announcement the next day after negative reaction in the media (Manfredi in this volume). Although a careful quantitative study remains to be done, my impression is that the Supreme Court’s judgments became bolder and more sweeping in the 1990s as section 33 came to seem more and more like a dead letter. For example, the Court endorsed the practice of “reading in” in the 1990 Schacter case, just a few years after it had rejected invi-

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tations to do the same thing in cases such as Hunter v. Southam (1984) and Singh (1985) (Hogg 1992, 906–7; Manfredi 1994, 448). The tools for responding to judicial decisions exist in theory, but they are hard to use in practice. Those who have triumphed in court obtain the advantage of a new status quo, couched in the emotively powerful language of rights. Depending upon the legal situation, contrary action by the legislature may require a constitutional amendment (virtually impossible), invocation of the notwithstanding clause (extremely risky), or introduction of new legislation (often costly in terms of public opinion as well as disruption to other priorities). Another important fact about judicial changes to the status quo is that they may come very suddenly, arising out of little-noticed developments in legal philosophy or changes in the personnel sitting on the bench. Governments may be presented with a sudden fait accompli, as in the Marshall decision, where the Supreme Court overturned not only the Nova Scotia Court of Appeal but also its own approach to the interpretation of treaties recently promulgated in Horse. Connoisseurs would have known that the Horse doctrine was under strong attack by Aboriginal advocates (Royal Commission on Aboriginal Peoples 1996, 2: 28–9), but the ordinary mp or even cabinet member would have had little hint of what was at stake. In contrast, legislative changes to the status quo take years to achieve. They are always preceded by some combination of advocacy by political parties, investigation by legislative committees, and public discussion of executive reports and draft legislation. Debate in the House of Commons and Senate generates coverage by the media. The public, therefore, is much less likely to be taken by surprise by legislative than by judicial innovation. We must be careful, however, not to exaggerate the importance of judicial supremacy. As Kelly (in this volume) points out, the largest share of the Supreme Court’s Charter jurisprudence affects public administration, especially police, prosecutors, and other workers in the criminal justice system. To the extent that these branches of the state are not always well controlled by executive and legislative authorities, the new role of the courts may constitute an enhancement of liberal democracy. Also, although courts are more influential now than in the past, their powers are not unlimited. Because they must wait for actions to be brought before them, they do not control their own agenda (although in an increasingly litigious society, the wait is apt not to be very long). As well, the courts still have little leverage over raising and spending public revenue or designing and implementing government programs. For example, Kelly’s contribution to this volume shows how the Supreme Court has refused to order provinces to create legal-aid programs. Once programs exist, courts can change

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them through judicial decision (e.g., decreeing that gays must be included in benefit packages for government employees), but they cannot conjure them into existence (e.g., requiring governments to offer a particular form of insurance as part of their employee benefits package). Or, to return one last time to the impact of the Marshall decision, the Supreme Court can rule that signatories to a certain treaty can fish without licence or seasonal limitations, but they cannot design the conservation regulations which, according to their own decision, government is authorized to impose (Donald John Marshall v. the Queen, par. 61). Of course, in some future iteration of the game, they might invalidate such regulations in whole or in part, but their power would still be fundamentally reactive. The enhancement of judicial power, therefore, has not made the courts truly supreme, but it has introduced a kind of dual power onto the scene as Canada’s second and third constitutions coexist. Recognizing the existence of such dual power, interest groups that used to focus on electoral, legislative, and executive politics now also sponsor strategic litigation and intervention in the judicial arena (Smithey in this volume). What I have called the “third constitution” may be a fragmentation of power in comparison to the cabinet domination of the second constitution, but it would be a misinterpretation to see it as a return to classical checks and balances. The first constitution protected the status quo by deliberately making initiatives difficult to carry out. Legislation required gathering support from independentminded mps and senators or provincial legislators. The executive veto might be used to withhold royal assent from legislation. The federal and provincial governments were confined within their own fields of jurisdiction, so that joint action required genuine cooperation. It was a conservative constitution in the sense that the status quo was robust, innovations were difficult to achieve, and fairly wide agreement had to be obtained before anything could happen. The majority could rule, but only slowly and with much effort. There are also checks and balances in the dual power of the contemporary regime, but they are of a different type. Subject to the fiscal constraints described above, cabinets still use party discipline to dominate representative assemblies that are legally or effectively unicameral, as in the second constitution; thus that system of unlimited, almost despotic power is still in place, albeit constrained by international agreements and fiscal realities. But cabinets are also increasingly faced with sudden, unpredictable overturns in the status quo arising out of the judicial system. Whereas the first constitution was characterized by fragmented power and slow decision-making, and the second by executive dominance and grand program-building, the

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third is vulnerable to erratic disruption. Courts may overturn the status quo in some field of policy, after which governments must struggle to design a replacement, subject to further review in the courts. At best there may be constructive dialogue among executive, legislative, and judicial authorities, but at worst there may ensue a series of spastic, uncoordinated actions and reactions, marked by sudden reversals and periods of disorder.

modelling t h e dua l sy st e m: b eyond th e “dialo g u e ” In a widely cited paper, Peter Hogg and Allison Bushell claim that the ascendancy of the courts is not as great as it seems, that they are really engaged in “dialogue” with legislatures. “Judicial review is not a ‘veto over the politics of the nation’ [citing Ronald Dworkin], but rather the beginning of a dialogue as to how best to reconcile the individualistic values of the Charter with the accomplishment of social and economic policies for the benefit of the community as a whole” (Hogg and Bushell 1997: 105). The Supreme Court itself endorsed the dialogue metaphor in its 1999 Mills decision (par. 57). F.L. Morton, however, argues that legislative contributions to the “dialogue” in the 1990s have usually amounted to drafting legislation in anticipation of what the courts will hold or amending it to incorporate the substance of judicial decisions. He claims there have been few cases, such as Mills, where the legislature has acted to overturn what the courts have done. In Morton’s view, the “dialogue” is more like a judicial “monologue” (Morton 1999). Manfredi and Kelly (1999) agree that, in many cases, legislative responses to court decisions amount simply to admitting that the court has won, whereas Hogg and Thornton (formerly Bushell; 1999) continue to uphold the dialogue metaphor. Beyond the dialogue debate, which involves a large component of value judgment about judicial activism, lies the empirical task of understanding the relationship between Canadian courts and legislatures (which are largely controlled by executive authorities). Useful tools for this purpose will be found in the spatial models pioneered in American political science for the study of decision-making in Congress (Shepsle and Boncheck 1997, 115–29). In that setting, the interaction between gate-keeping committee and parent body is of paramount importance. Consider the following simple model illustrated in figure 4.1, in which SQ represents the status quo; X(M) is the ideal point of the median voter in the parent body; the line segment SQ–X(M) is the winset of the median voter (i.e., those points that the median voter prefers to the status quo); X* is the right boundary of

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X(M)

X*

X(C)

Figure 4.1 Legislature-committee spatial model

the winset; and X(C) is the ideal point of the median voter on the gatekeeping committee. Assuming that the issue under consideration is unidimensional, the median voter theorem will apply, so that the ideal point of the median voter in both the legislative chamber and the committee can be taken as representing the ideal points of those bodies as a whole. The equilibrium of the game depends upon the rules of procedure. One possibility is the so-called closed rule, in which the parent body can only accept or reject a motion proposed by the committee. If the closed rule applies, the parent body would reject the committee’s ideal point X(C) because it lies outside the median voter’s winset. The best that the committee can do is to propose a point just to the left of X*, which the parent body would accept because it is marginally closer to its ideal point than SQ is. The other procedural possibility is the open rule, under which the parent body can consider amendments to whatever is proposed. Under the open rule, the equilibrium will become X(M) if the committee opens the gates by making a motion; if not, the equilibrium will be SQ. In this instance, the committee would regard X(M) as an improvement over SQ and should therefore propose it (or anything else; if the procedure is truly open, the parent body will amend any proposal to coincide with the ideal point of its median voter at X(M)). If, however, X(C) were moved to the left of SQ, while X(M) remained to the right, the committee would leave the gates shut because any point in the winset of the parent body is further away from the committee’s ideal point than SQ is. Several American authors have tried to convert this approach into a “separation of powers” model to study the relationship between the Supreme Court and Congress (and/or the president), treating the Court, in effect, as a gate-keeping committee (Epstein and Knight 1998, 139–45). This approach assumes that, at least some of the time, judges on the Court vote strategically in order to locate their decision within the winset of Congress (or the president) rather than opting for their own ideal point. They presumably fear that, if they decide outside the congressional winset, they may provoke Congress (or the president) into contrary action that might diminish the Court’s prestige and overturn the effect of its decision. It has been pointed out in the American context that such models make heroic assumptions about perfect information. Supreme Court justices deciding strategically have to be able to estimate the ideal

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points of the president, the median voters in the Senate and the House of Representatives, and the median voters of one or more key gate-keeping committees (and sometimes subcommittees) for each house of Congress, a task that seems beyond human power. Perhaps because of these difficulties, one attempt at empirical verification of a separation-of-powers model came up with mostly negative results (Segal 1997). The information requirements of the Canadian situation, however, are a good deal simpler. Because of executive dominance of the legislative branch, the Supreme Court only has to estimate the ideal point of the head of government – the prime minister in the case of federal legislation, a premier in the case of provincial legislation, both in the case of a jurisdictional conflict within the federal system. Any judge who follows politics through the daily media can take a reasonable stab at this sort of estimation. Also, because of the complexity of the American judicial system, lawmakers are sometimes uncertain whether their legislative outputs will be challenged in state courts, federal courts, or both. With fifty state supreme courts and eleven federal appellate courts churning out decisions, the United States Supreme Court can accept onto its docket only the tiny subset of appeals that it considers most vital and that lie within its constitutional jurisdiction. In Canada, in contrast, the judicial system is unified at the peak in the Supreme Court of Canada. No judicial matter is outside its reach; it only has to consider the output of ten provincial courts of appeal and one federal court of appeal; and some appeals are still taken to the Supreme Court as a matter of right. In estimating the reaction of the judiciary, then, lawmakers can focus on the Supreme Court. One way to advance the empirical study of the third Canadian constitution would be for political scientists to pay systematic attention to the separation-of-powers games played between and among the prime minister, the premiers, and the courts, especially the Supreme Court of Canada. The unifying theme of such research is the concept of strategic behaviour. It must be assumed that executives act in anticipation of how courts will decide, and judges decide in anticipation of how executives will react. It may well be true that judges attempt to interpret the law as they understand it, and that executives pursue the common good as they see it. But to the extent that executives and judges think strategically – that is, rationally – about the consequences of their decisions and actions, we can also model their interaction using rational choice tools. In his contribution to this volume, Manfredi offers a case study of how judges anticipate executive reaction. Rather than duplicate his

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X(C)

X*

X(P)

Figure 4.2 Spatial model of legislative drafting

efforts, let me discuss some of the ways in which executive leaders take account of anticipated judicial reactions. At one level, this process is now routine. Legal specialists draft all legislation, both federal and provincial, and the drafting process normally includes an attempt to “Charterproof” the bill before it is introduced into the legislature. Within the federal government, all draft legislation is evaluated against a “Charter check list,” and the “Memorandum to Cabinet” presenting the bill must include a Charter analysis (Kelly 1998, 353–4). The socalled dialogue between Parliament and the courts thus begins with the executive making an effort at anticipation. Prime ministers or premiers will rarely incorporate their own ideal point into legislation if they are warned that it will be struck down at the first judicial challenge. Figure 4.2 adapts the legislature-committee model presented above to one possible situation of legislative drafting. X(C) now represents the ideal point of the median voter on the Supreme Court, while X(P) is the ideal point of the premier or prime minister. It is assumed that the Court will operate under the closed rule, which represents the traditional understanding of judicial review, namely, that the courts can nullify legislation but do not rewrite it. Thinking strategically, the head of government will see that his or her ideal point lies outside the court’s winset. If the head of government insists on legislating it, the court will strike it down, thus returning the system to the status quo ante. X*, the outer boundary of the court’s winset, is the most that the head of government can hope to obtain, and it will still be an improvement, from his or her point of view, over SQ. The head of government should therefore introduce legislation incorporating X*, or perhaps a point slightly to the left of X*, to allow for the difficulty and imprecision of estimating the court’s winset. Beyond these everyday considerations lie more refined strategies for making political use of the judiciary. Some of the most famous games in Canadian political history have involved governments making strategic use of the reference procedure, manipulating the courts into taking responsibility for controversial decisions. In October 1935, William Lyon Mackenzie King’s newly elected Liberal government referred eight pieces of R.B. Bennett’s New Deal legislation to the Supreme Court of Canada. Snell and Vaughan write in their history of the Supreme Court: “The opposition Liberal Party, confident of victory in the approaching general election, opted not to challenge the New Deal in Parliament for fear that by doing so they would

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appear to be anti-reform; instead, the courts would be allowed to assess, and presumably to strike down, the statutes ... To ask the Supreme Court to rule on the entire legislative package of a recent government was to require the Court to perform more a political than a judicial function” (Snell and Vaughan 1985: 175) Another famous case occurred in 1946, when Ernest Manning’s Alberta government made one final try at introducing Social Credit legislation. At his insistence, the bill itself contained a clause referring the legislation to the Alberta Supreme Court before proclamation. When the court nullified the legislation for trenching upon federal jurisdiction, Premier Manning appealed to the Supreme Court of Canada but declined to appeal further to the jcpc (Flanagan and Lee 1992, 191). He then moved against the Social Credit true believers, expelling several from the party because of their overt anti-Semitism. Getting the court to declare once again that Social Credit monetary reform was incompatible with the federal heads of power in the British North America Act was a crucial step in helping Manning to get control of his party and steer it in a more conventional direction, which he would later call “social conservatism” rather than “Social Credit.” A more recent manipulation of the reference procedure took place in the Chrétien government’s reference of the Bertrand case to the Supreme Court of Canada. Guy Bertrand was seeking a judicial declaration from the Superior Court of Quebec that a unilateral declaration of independence would be unconstitutional because a constitutional amendment is required before a province can separate from Canada. The federal government had several options at its disposal. The prime minister, for example, could have made a declaration that his government would uphold the rule of law and enforce the requirement for a constitutional amendment. Or he could have introduced either a resolution or a bill to that effect into Parliament. Instead, he chose to accelerate the judicial process by referring the Bertrand case (1998) to the Supreme Court. The Court, as expected, upheld the necessity of a constitutional amendment for separation, but it also surprised the federal government by discovering (some would say “inventing”) a constitutional obligation for Canada to negotiate in good faith after a provincial referendum in which a “clear majority” was obtained in response to a “clear question” proposing separation. It also restored much of the obscurity of the status quo ante by emphasizing that political actors would have to determine the clarity of questions and majorities by themselves without further recourse to the courts. I model the preferences underlying these events in figure 4.3. SQ is the status quo, which was unclear because the constitution has no

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144 Tom Flanagan X(Q)*

X(Q)

SQ X(SC)’

X(SC) XC

X(C)*

Figure 4.3 Spatial model of the secession reference

explicit provision on separation. X(Q) is the ideal point of the Quebec government, which we know to be an easy separation procedure – indeed, a unilateral right of separation for Quebec. X(C) is Jean Chrétien’s ideal point, which we know to be a difficult separation procedure involving a federally approved question, a referendum majority greater than 50 per cent + 1, negotiations involving the possible partition of Quebec, and a constitutional amendment involving provincial approval. X(SC) is the ideal point of the median voter on the Supreme Court as perceived by Chrétien – well within his own winset and probably near his own ideal point. X(SC)’ is the somewhat surprising position taken by the Supreme Court, which, by invoking a constitutional obligation to negotiate, made the separation procedure easier than the prime minister would have liked and allowed Quebec to claim at least a partial victory afterwards. X(C)* is the hypothetical right boundary of Chrétien’s winset. Beyond X(C)* would lie the position, advanced by writers such as the columnist Andrew Coyne, that Canada is one and indivisible, that separation is legally impossible, and that the federal government must resist it by any and all means, including military force (Coyne 1996). Chrétien may in fact believe in this position privately, but his public statements do not go as far. The winsets of Quebec and Canada do not overlap, and they touch only at the status quo. There was therefore no way for the Supreme Court to satisfy both governments simultaneously if it was going to answer the reference question. It might have avoided answering by proclaiming the question to be political or non-justiciable, but that precedent might have reduced its institutional capacity to deal with difficult questions in the future. Although there is no way to know for certain, it looks as if the Court acted strategically so as to reduce the loss for Quebec. By discovering a constitutional obligation to negotiate, the Court made separation easier than if it had merely stated the legally obvious conclusion that a constitutional amendment is required. The moral of the story is that, when governments use the reference procedure to get the courts to do their political heavy-lifting, they should anticipate that the courts may react strategically, taking account of the winsets of other actors in the game. Apart from the reference procedure, executive governments have many other opportunities for acting strategically in the judicial process. Whenever government is a party to litigation involving serious issues of legal interpretation, the minister of justice will often have to

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decide whether to appeal. Sometimes a government accepts defeat so early that one has to ask whether in fact it does not welcome the reversal. A case in point was the decision made by the Mulroney government in 1989 not to appeal a Canadian Human Rights Tribunal order to integrate women soldiers into all combat units except those serving on submarines (Laframboise 1999). Although it is unlikely that the Canadian government would have taken the initiative to introduce such a policy, which differs from the practice of our close military allies, letting a human rights tribunal impose it seemed more attractive. Similarly, the Mulroney government chose not to appeal when the Ontario Court of Appeal ruled in 1992 in the Haig case that the Charter of Rights required reading sexual orientation into the Canadian Human Rights Act (Falardeau-Ramsay 1993, 64). The government had earlier promised to amend the act to include gay rights, but it had never acted because of opposition within its own caucus. Allowing a judicial decision to stand without appeal was one way of keeping its promise to change the law without having to win the fight within its own ranks. At a less visible level, governments also can make decisions about what arguments they will make in court. In Haig the Mulroney government chose not to contest complainants’ position that sexual orientation was embraced in the wording of section 15(1) of the Charter – “... without discrimination and, in particular without discrimination based on ...” – even though it was not enumerated in the following list of nine prohibited criteria. The foundation stone of the gay rights legal edifice was thus put into place without any serious debate before the court because the government chose not to argue the point. It would have been politically risky at the time for the government to advance the view that the Charter included gay rights because, only a few years before, the framers of the Charter had voted to exclude gay rights from the enumerated grounds. But because of the low political visibility of a trial hearing, it was much less risky for the government to remain silent in that forum. Again, it let the courts do the heavy-lifting. Even when a government contests an issue in court, it may do so less than energetically. A prime example is the Delgamuukw case, in which the Supreme Court of Canada held that Aboriginal rights have never been extinguished in most of British Columbia. The province had actually won a resounding victory on all issues at trial before Chief Justice McEachern of the British Columbia Supreme Court. The newly elected ndp government then discharged the legal team that had won this victory and appointed new lawyers with instructions to be more conciliatory during the appeals process. The British Columbia Court of Appeal took the unusual step of appointing the original law firm

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amicus curiae to ensure that the arguments being challenged in the appeal would get decent representation (Smith 1995, 133). British Columbia eventually lost on all significant points of law, and one has to suspect that the defeat was not unwelcome to the ndp government in Victoria.

c onc lusion Canadian political science has traditionally been focused on the mechanics of parliamentary government and upon the interrelationship of the national and provincial parliamentary governments in the federal system; but the discipline, like the polity, now has to come to grips with the reality of dual executive and judicial power. I have given a few examples of the complex games that courts and executive authorities play with each other under Canada’s prevailing constitutional system of dual power. Recent developments in game theory and rational choice will help Canadian political scientists to analyze these games by developing formal models and testing them against empirical evidence. This program of research can help to triangulate findings from other approaches, such as political philosophy. The gamesmanship described in this chapter, most notably under the third constitutioanl regime, provides further confirmation that the Rawlsian paradox is in operation throughout the Canadian political system.

not es 1 Apart from legislatures, democratic procedures sometimes involve voting on the status quo before considering other alternatives. Examples would be the recall, in which the question is whether an incumbent should be removed from office; and the periodic confirmation votes used in some American states for sitting members of the judiciary. 2 See Lusztig in this volume for a modern restatement of the rationale for federalism. 3 The Constitution Act, 1867, ss. 91(2a) and 94a, added in 1940 and 1951 respectively.

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5 Strategic Behaviour and the Canadian Charter of Rights and Freedoms C HRIST OPHER P. MA NF R E D I

In this chapter I challenge the idea that Canadian Charter of Rights and Freedoms litigation represents the triumph of justice over politics, which is one of the sacred myths of Canadian constitutionalism that emerged after patriation in 1982. I pursue this objective by elaborating on the following themes. The Supreme Court is a political institution that makes policy, not as an accidental by-product of its legal function, but because it believes that certain legal rules will be socially beneficial (Feeley and Rubin 1998, 5). The Charter increases the opportunity for judicial policy-making because it expands the range of social and political issues subject to the Court’s jurisdiction. Like all rules, however, constitutional rights are not neutral. They impose constraints on political behaviour, and these constraints operate systematically to favour particular interests and outcomes. In this sense, Charter litigation is a game of institutional design in which the objective is to alter the range of potential policy outcomes by modifying existing rules (Tsebelis 1990, 92–118). From this perspective, Charter litigation is an instrument for changing the dynamics of political power and altering the status of competing interests. Charter rights, in other words, are valuable resources that state-based actors (courts) distribute, and for which society-based actors compete, to serve their respective policy interests. To adopt the language employed by the editors in the introduction to this volume: Charter litigation is a redistributive institution. This chapter develops these themes by analyzing the political behaviour of a crucial player in the Charter-based game of institutional

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design: the Supreme Court of Canada itself. More specifically, it uses a strategic model of judicial decision making to analyze the judgments in two decisions by the Court involving the morally contentious issues of abortion and sexual orientation. Although these two decisions (Morgentaler (2) [1988]; Vriend [1998]) generated superficially similar outcomes, they differed markedly with respect to the Court’s willingness to impose future policy constraints on legislative actors. If judges are rational political actors in the fullest sense, and if strategic behaviour is a universal characteristic of decision-making by institutionally constrained political actors, then the strategic model should yield some interesting insights into these particular instances of judicial decisionmaking.

from nullif ic at ion to imp o sit io n : a s t r ategic model o f ju d ic ia l b e h av io u r On 2 April 1998 the Supreme Court of Canada delivered its judgment in Vriend v. Alberta. At issue was the constitutionality of Alberta’s Individual Rights Protection Act, which did not include sexual orientation in its list of prohibited grounds of discrimination.1 The Court’s judgment that the omission of sexual orientation violated section 15(1) of the Charter of Rights and Freedoms and that the “appropriate and just” remedy for this violation was to read sexual orientation into the act, was a bold assertion of judicial power (see Rush in this volume).2 “Reading in” is a rarely used and relatively intrusive remedy that imposes specific policy choices on legislatures. The impact of this remedy was particularly evident in Vriend, where the omission of sexual orientation was a conscious choice, rather than a mere oversight, by the Alberta legislature. Its application in this instance thus extended the jurisdiction of the Alberta Human Rights Commission in a manner explicitly rejected by the legislature. The assertiveness of the Court’s approach to the contentious issues raised in Vriend stands in stark contrast to its cautious foray only a decade earlier into the politics of abortion. To be sure, in 1988 the Court abandoned its earlier view that it should play no role in “the loud and continuous public debate on abortion” (Morgentaler (1) 1976, 671) and declared the Criminal Code’s abortion provisions unconstitutional under section 7 of the Charter (Morgentaler (2) ).3 However, only one justice was willing to base this judgment on a conception of liberty broad enough to encompass reproductive freedom and render the criminalization of abortion unconstitutional under almost all circumstances. Inspired by the chief justice, who declared that it was “neither necessary nor wise” to “explore the broadest implications” of

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liberty in analyzing the abortion provisions (Morgentaler (2), 51), a plurality of the Court focused on the impact of the statute’s administrative structure. According to these four justices, administrative deficiencies produced unjustified delays in securing abortions that infringed security of the person in both its physical and its psychological dimensions. In addition, two justices (including the chief justice) found that these deficiencies created unequal access to a criminal defence, in violation of the principles of fundamental justice. While these procedural grounds were sufficient to nullify the existing law, they were narrow enough to leave room for the re-establishment of the criminal regulation of abortion under a different administrative scheme. Why did the 1998 Vriend court choose to exercise judicial review more aggressively than the 1988 Morgentaler (2) court? One obvious explanation is entirely attitudinal: changes in the Court’s composition – eight of nine justices turned over between 1988 and 1998 – produced an institution that was collectively more willing to exercise judicial review aggressively. Although this explanation cannot be entirely ignored, evidence concerning the individual voting behaviour of the 1998 and 1988 justices in Charter cases suggests that it is insufficient (Kelly 1998, 67–153). Although the 1998 court did not include any justice as restrained as William McIntyre, neither did it include any as activist as Bertha Wilson. In the aggregate, support for Charter claims by the 1988 (36.8 per cent) and 1998 (34.1 per cent) courts is remarkably similar. Where the two courts do differ is in cohesiveness, with the 1988 justices much more divided than their 1998 counterparts. Therefore individual voting patterns may explain why the Vriend court coalesced around a single judgment while the Morgentaler (2) court fractured into four separate judgments. However, these patterns do not explain why the judgment around which the Vriend court coalesced imposed greater constraints on legislative actors than all but one of the Morgentaler (2) judgments. The explanation for the latter phenomenon, I suggest, lies in the two courts’ strategic reaction to different sets of institutional constraints. Although the strategic and attitudinal models of judicial behaviour begin from a similar premise (Segal 1997, 30) – that judges are goal-oriented actors who seek to advance their interests through legal judgments – they differ on the extent to which judges are free to follow their sincere policy preferences. The attitudinal model asserts that this freedom is quite high, for two reasons (Segal and Spaeth 1993; Baum 1997, 64, 69; Segal 1997, 28). First, cases reach these courts precisely because the applicable legal rules are ambiguous, and legal ambiguity frees justices to decide disputes according to their policy preferences. Second, institutional provisions such as security of

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tenure and formal independence insulate justices from the obstacles that other political actors face in articulating their sincere preferences. A strategic model of judicial behaviour asserts, by contrast, that the freedom of justices to advance their interests through legal decisions is subject to institutional constraints. These constraints – which force justices to consider other actors’ preferences, the choices they expect others to make, and the context in which they operate (Epstein and Knight 1998, xiii) – produce strategic behaviour on two distinct levels. First, justices are constrained internally by rules that govern their interactions with colleagues. Most obviously, the successful transformation of individual policy preferences into law on multi-member appellate courts requires coalition-building to produce majority support for particular decisions. Second, justices are constrained externally by rules that govern the relationship between courts and other political institutions. In other words, since the achievement of immediate policy goals depends to a significant degree on a court’s institutional power and prestige (Baum 1997, 123), courts must minimize threats to their institutional legitimacy in the process of maximizing their policy preferences. They must therefore be cognizant of the capacity of other institutions to negate specific policy decisions or to challenge the legitimacy of the court itself. These internal and external institutional constraints generate a wide range of strategic behaviour, including internal bargaining, prospective thinking, agenda manipulation, and strategic opinion writing (Epstein and Knight 1998, 59–107). This strategic model of judicial behaviour suggests that one explanation for different levels of remedial activism in Morgentaler (2) and Vriend is the judicial assessment of the potential for successful legislative resistance to the Supreme Court’s judgments. In essence, the model suggests that the level of remedial activism increased from Morgentaler (2) to Vriend because the justices perceived fewer institutional constraints in the latter case on their ability to assert constitutional supremacy over the legislative and executive branches of government. In the remainder of the chapter, I explore this hypothesis by examining the institutional context in which each case was decided and then by analyzing how changes in that context may have affected the justices’ strategic calculations.

t h e instit utiona l c o n t e x t The model of judicial behaviour laid out in the preceding section suggests that the doctrinal outcomes in Morgentaler (2) and Vriend represent different strategic responses to the institutional context in which

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the Supreme Court was operating. In each case, the Court had to assess the long-term impact of its intervention in an immediate policy dispute by posing the following question: How far can we intervene before provoking a negative reaction from other political actors? The answer to this question depends on the constitutional rules governing the exercise of judicial review and the relationship between the Court and other branches of government. In this section, I summarize important differences in the institutional constraints facing the Morgentaler (2) and Vriend courts. Table 5.1 summarizes the chronology of key events that affected the strategic environment faced by the Court, but the unfolding of these events merits further elaboration. The story begins on 8 September 1980, when the Liberal government, under Pierre Trudeau’s leadership, presented a constitutional reform package to a meeting of provincial premiers. Four days of meetings failed to produce an agreement on constitutional change, and on 2 October Trudeau announced that his government would proceed unilaterally. On 6 October the Liberal government placed a package of amendments to the constitution, which included, among other items, a domestic amending formula and a constitutionally entrenched charter of rights, before the House of Commons for its approval. Eight days later (14 October), five provinces (British Columbia, Alberta, Manitoba, Quebec, and Newfoundland) announced that they would challenge the legality of unilateral amendment in the courts of three provinces. Prince Edward Island would subsequently join the legal challenge, but Nova Scotia and Saskatchewan remained neutral; only Ontario and New Brunswick supported the federal government. The federal government responded by establishing a joint committee of the Senate and House of Commons to undertake public hearings on the constitutional reform proposals. The political purpose of these hearings, which ran from November to February, was clear: to undermine provincial government opposition by generating popular support for Trudeau’s self-styled “People’s Package” of entrenched rights and freedoms. Not surprisingly, most of the groups that testified before the committee supported the charter in principle and lobbied for one “with terms which were as broad and potent as they could be” (Romanow et al. 1984, 248). As the federal government pursued its political strategy of public hearings, the dissenting provinces were mounting their legal challenge in the courts of appeal of Newfoundland, Manitoba, and Quebec. This legal strategy produced mixed results: in February the Manitoba Court of Appeal narrowly supported the federal government; in March the Newfoundland court unanimously supported the

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Chronology of key events, 1980–1998

Date

Event

8–12 September 1980

First ministers’ conference on constitutional reform: fails to produce agreement Trudeau announces unilateral patriation with Charter, amending formula, and other items; places unilateral patriation before House of Commons Five provinces – British Columbia, Alberta, Manitoba, Quebec, Newfoundland – decide to challenge legality of unilateral patriation in the courts of three provinces. Prince Edward Island joins challenge later. Nova Scotia and Saskatchewan hold out. Ontario and New Brunswick support federal government Hearings of the Special Joint Committee of Senate and House of Commons begin Manitoba Court of Appeal supports federal government by a majority of 3 to 2 Special Joint Committee reports to Parliament Nova Scotia and Saskatchewan join the six dissentient provinces, creating the “Gang of Eight” Newfoundland Court of Appeal unanimously supports provinces Quebec Court of Appeal supports federal government by a majority of 4–1 Vote in Parliament on final amendments to federal constitutional package; eight dissentient provinces sign a constitutional accord opposing the package Supreme Court judgment that federal unilateralism is legal but contrary to constitutional convention First ministers’ conference on the constitution; agreement reached on constitutional changes; inclusion of s.33 (legislative override or “notwithstanding clause”) makes agreement possible; Quebec dissents Constitution Act, 1982, including Charter, proclaimed in force Quebec passes Bill 62, attaching s.33 to all existing provincial laws; begins practice of attaching s.33 to all legislation Saskatchewan attaches s.33 to back-to-work legislation for public sector employees Quebec (under Liberal government) stops practice of attaching s.33 to all legislation Supreme Court hearings in Morgentaler Alberta Labour Reference: Supreme Court holds that freedom of association does not encompass a constitutional right to strike First ministers agree to a constitutional amendment (Meech Lake Accord) that satisfies Quebec’s requirements for approval of the 1982 constitution Morgentaler decision: Supreme Court nullifies Criminal Code abortion provisions on procedural grounds

2–6 October 1980

14 October 1980

6 November 1980 3 February 1981 13 February 1981 February 1981 31 March 1981 15 April 1981 16 April 1981

28 September 1981 2–5 November 1981

17 April 1982 23 June 1982 31 January 1986 6 March 1986 7–10 October 1986 9 April 1987

2–3 June 1987

28 January 1988

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(continued)

Date

Event

28 July 1988

Government seeks non-binding advice from House of Commons on legislative response to Morgentaler; pro-life resolution receives most votes (105) Ford decision: Supreme Court nullifies Quebec sign law, but rejects substantive review of legislative overrides under s.33 Quebec government announces that new sign law will be implemented and contain a legislative override Manitoba government withdraws Meech Lake ratification resolution from legislative consideration Andrews decision: Supreme Court adopts substantive equality and acknowledges that list of protected groups in s.15 is not exhaustive Prime Minister Mulroney condemns s.33 as the “fatal flaw” of the 1982 constitution Newfoundland rescinds ratification of Meech Lake Accord House of Commons passes Bill C-43; maintains distinction between legal and illegal abortions, but further liberalizes the process for obtaining legal abortions Ratification period for Meech Lake Accord ends without ratification Bill C-43 defeated in Senate by tie vote Schacter decision: Supreme Court accepts “reading in” as an “appropriate and just” remedy for some Charter violations Egan decision: Supreme Court incorporates sexual orientation into s.15 Supreme Court hearings in Vriend Alberta introduces bill to compensate victims of provincial eugenics laws in 1929–72; proposes to use s.33 to prevent victims from suing province for additional compensation; Alberta withdraws eugenics compensation bill under intense public pressure Vriend decision: Supreme Court orders Alberta to include sexual orientation in human rights statute

15 December 1988 18 December 1988 19 December 1988 2 February 1989

6 April 1989 6 April 1990 29 May 1990

3 June 1990 31 January 1991 9 July 1992 25 May 1995 4 November 1997 10–11 March 1998

2 April 1998

provinces; and in April the Quebec court supported the federal government. During these judicial hearings, Nova Scotia and Saskatchewan ended their neutrality and joined the dissenting provinces, creating what came to be known as the “Gang of Eight.” These provinces signed a constitutional accord opposing the federal government’s action on the same day (16 April 1981) that Parliament voted on final amendments to the constitutional reform package. The mixed outcome of the appellate court decisions and the continued political stalemate over constitutional amendment ensured that the

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issue would go before the Supreme Court of Canada, which between 28 April and 4 May heard arguments on the federal government’s right to proceed unilaterally. Almost five months later, on 28 September, the Court held that federal unilateralism was legal but contrary to constitutional conventions. The Court’s judgment, which gave each side a partial victory, created the conditions for a return to the federal-provincial bargaining table. Consequently, in a first ministers’ conference held in early November, the premier of Saskatchewan proposed to break the stalemate by incorporating into the charter of rights a legislative override provision that would apply to everything except language rights, democratic rights, and fundamental freedoms (Romanow et al. 1984, 193–215). Attracted by this proposal, the other dissenting provinces pushed for its extension to fundamental freedoms. Sensing the opportunity for an agreement, Trudeau accepted the proposal on condition that the premiers agree to a five-year limitation clause on any specific use of the legislative override. This “classic example of raw bargaining” (ibid., 211) produced section 33 of the Charter, which allows the federal and provincial governments to declare that a law shall operate “notwithstanding” the Charter’s fundamental freedoms, legal rights, or equality rights provisions. As a result, every province with the exception of Quebec was now willing to support constitutional change. The inclusion of section 33 in the Charter meant that the Constitution Act, 1982 was deliberately ambiguous about the institutional source of authoritative constitutional meaning with respect to rightsbased challenges to government action. On the one hand, section 52 of the act declares the principle of constitutional supremacy and authorizes courts to nullify unconstitutional statutes. Moreover, section 24(1) of the Charter gives “anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied” the right to “apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” On the other hand, section 33 gives legislatures the authority to override judicial decisions, or even to immunize legislation from judicial review under the Charter altogether. As the federal justice minister argued during the House of Commons debate on the matter, the notwithstanding clause was a “safety valve” to ensure that “legislatures rather than judges would have the final say on important matters of public policy.” Section 33, the minister continued, would allow legislatures “to correct absurd situations without going through the difficulty of obtaining constitutional amendments” (Canada 1981, 13042–3).” This ambiguity of constitutional authority is a crucial element of the institutional environment in which the Court would render its Morgentaler (2) judgment.

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Not surprisingly, the one province that withheld its consent to the 1982 constitution was the first to use section 33. On 23 June 1982, Quebec passed Bill 62, which attached a notwithstanding clause retroactively to all existing provincial laws, and it began the practice of attaching such a clause to all legislation. Quebec remained the only jurisdiction, however, to use section 33 until 1986, when Saskatchewan attached a notwithstanding clause to legislation forcing public sector employees back to work during a labour dispute. Concerned that the courts might find such interference with the collective bargaining process contrary to “freedom of association,” the province declared that its Saskatchewan Government Employees’ Union Dispute Settlement Act would operate notwithstanding section 2(d) of the Charter. The use of section 33 by these provinces generated criticism among constitutional scholars (Scott 1982; Arbess 1983; Greschner and Norman 1987), but there was little publicly visible opposition that might have undermined the legitimacy of a constitutional provision initially proposed by a politically progressive premier and supported by most provincial governments. Thus, although a new Quebec government stopped the practice of attaching section 33 to all legislation in March 1986, the legislative override was a viable component of the constitutional order when the Supreme Court heard oral arguments in Morgentaler (2) from 7 to 10 October 1986. Indeed, perhaps in recognition of the institutional authority granted to legislatures by section 33, the Court transformed the principle underlying Saskatchewan’s use of the notwithstanding clause into constitutional law in 1987 when it held that freedom of association does not encompass the right to strike. The political legitimacy of section 33 began to unravel on 15 December 1988, less than eleven months after the Morgentaler (2) judgment of 28 January. In Ford v. A.-G. Québec the Court nullified provisions of Quebec’s language law that prohibited the use of English on commercial signs. However, in an indication of the Court’s own assessment of the legislative override’s legitimacy, it rejected the argument that the use of section 33 should be subject to substantive review. Three days after the judgment, the Quebec government announced that a new sign law, shielded from judicial review by the notwithstanding clause, would be passed and implemented. The judgment, and Quebec’s reaction, occurred in the midst of a second process of constitutional amendment (the Meech Lake Accord) intended to secure the province’s agreement to the 1982 constitution. Quebec’s decision to override the Court’s Ford judgment provoked a hostile reaction from the Manitoba government, which withdrew its resolution ratifying the accord from legislative consideration on 19 December. With

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the accord now in political trouble because of Quebec’s action, Prime Minister Brian Mulroney attempted to shift the blame toward the earlier compromise that had resulted in the inclusion of section 33 in the Charter. Speaking in the House of Commons, he called section 33 “that major fatal flaw of 1981, which reduces your individual rights and mine.” This provision, he continued, “holds rights hostage” and makes the entire constitution “not worth the paper it is printed on” (Canada 1989, 153). Despite Mulroney’s rhetorical effort, the damage was done. Public support for the accord slipped from 56 per cent in June 1987 to 30 per cent in June 1989; and in April 1990 Newfoundland rescinded its earlier ratification of the Accord. The deadline for ratification (3 June 1990) arrived without the unanimous consent required to make the accord part of the constitution. The decline in support for section 33 caused by its role in the demise of the Meech Lake Accord was reflected in the change in attitude toward it by the important constitutional analyst Patrick Monahan. In his 1987 book on the Charter, Monahan disagreed with those who criticized section 33 as a “constitutional anomaly” that trivialized rights. He argued that it was instead a “powerful and blunt expression” of confidence in the political process and the principle that government action is not necessarily a threat to individual liberty. Section 33, Monahan argued, does not “legitimate tyranny” but merely ensures “that the political process will not be subject to unreasonable or perverse judicial interpretations” (Monahan 1987a, 118–19). However, writing four years later about the collapse of the Meech Lake Accord, he concluded that “the inclusion of the notwithstanding clause in the 1982 constitution was clearly a very serious mistake” (Monahan 1991, 169). Indeed, the Meech Lake episode so undermined the political legitimacy of section 33 that one scholar argued that a binding constitutional convention against using it had begun to crystallize (Heard 1991, 147). As support for section 33 waned, two other sets of events were contributing to changes in the institutional environment faced by the Supreme Court. First, the Mulroney government was finding it impossible to respond legislatively to the Morgentaler (2) judgment (Flanagan 1997). Six months after the decision, the government asked members of the House of Commons to indicate their position on several possible revisions to the Criminal Code’s abortion provisions in a set of non-binding votes. The proposal that garnered the most support (105 votes) was a pro-life resolution that would have restricted access to abortion even more than the law the Court had nullified. No other proposal, including the government’s preferred position, received

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more than 76 votes. Chastened by the outcome, the government waited until after its re-election in November 1988 to raise the issue a second time. On 29 May 1990 the House of Commons finally passed Bill C-43, which redressed the procedural deficiencies of the nullified statute while maintaining the regulation of abortion within the Criminal Code. However, on 3 January 1991 the bill failed to gain Senate approval as a result of a tie vote (43 to 43). The government subsequently announced that it would not attempt to enact new abortion legislation, leaving it unregulated at the national level. The second set of events consisted of a series of Court decisions that would prove highly relevant for the Vriend decision (see Peacock, this volume). In 1989 the Court decided its first equality rights case, Andrews v. Law Society of British Columbia. In this judgment it adopted a theory of substantive equality and declared that the list of groups explicitly protected under section 15 of the Charter was not exhaustive. Three years later the Court delivered its judgment in Schacter v. Canada (1992), in which it acknowledged that reading additional benefits into legislation is an “appropriate and just” remedy for certain Charter violations. Finally, in Egan v. Canada (1995) it incorporated sexual orientation into section 15 and came within one vote of extending spousal benefits under the Old Age Security Act to same-sex couples. From the preceding narrative, one can discern two critical moments in the evolution of the strategic environment in which the Court decided Morgentaler (2) and Vriend. The first was the initial decision to include a legislative override provision in the Charter. Unlike the rather clumsy instruments available in the United States, such as impeachment or congressional control over appellate jurisdiction, section 33 of the Charter provides a precise, textually grounded instrument with which legislatures may overrule judicial decisions. The presence of this clause makes it more difficult for the Court to assert final authority over the articulation and enforcement of constitutional rights because it provides a clear institutional mechanism for legislatures to resist assertions of judicial constitutional supremacy. The second critical moment was Quebec’s decision to invoke the legislative override in the midst of a constitutional ratification process designed to secure that province’s acceptance of the 1982 constitution. This decision produced two casualties: the proposed constitutional amendment itself and the political legitimacy of the legislative override. With this institutional check on judicial supremacy significantly weakened, the Court was in a position to assert its authority more boldly. In the next section I elaborate on how these two critical moments may have affected the Court’s strategic choices in Morgentaler (2) and Vriend.

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SC

Defer

Nullify

Impose

L

SQ

L Defer CI

Defer

V

Legislate

SQ’

Override SQ!

Override

SQ!

Figure 5.1 Model of the relationship between the Supreme Court and the legislatures under the Charter

instit utiona l c ont e x t a nd judicia l strate g y How might changes in the institutional context have affected judicial strategy in Morgentaler (2) and Vriend? Two preliminary steps are necessary before we explore this question in detail. The first is to provide a somewhat formalized model of the strategic relationship between the Supreme Court and legislatures under the Charter. As figure 5.1 indicates, it is possible to depict this relationship as a game in extended form, with SC representing the Court and L representing the relevant legislative body. In brief, the game begins when a group or individual challenges the constitutionality of legislation. The game’s first move belongs to the Court, which has a choice among three options. It can defer to the legislature, uphold the legislation, and leave the status quo (SQ) intact. Alternatively, it can declare the legislation unconstitutional and either nullify it under section 52 or impose a different policy under section 24(1). If the Court nullifies or imposes, the next move belongs to the legislature. In the event of nullification, the legislature can defer to the Court, pass an alternative law, or override the Court’s judgment by invoking section 33. Legislative deference produces a policy vacuum (V), alternative legislation produces a new status quo (SQ’) that could be challenged later, and an override produces a reinforced status quo (SQ!) that is immune to Charter review for at least five years. In the

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CI > SQ’ > V > SQ > SQ!

Canada

SQ > SQ’ > V > SQ! > CI

CI SQ V SQ’ SQ!

constitutional right to abortion Criminal Code, s.251 no criminal regulation liberalized access under Criminal Code, s.251 existing law + s.33 override

Vriend (1998) Court:

CI > + SQ’ > SQ > V > SQ!

Alberta

SQ > SQ’ > CI > V > SQ!

CI SQ V SQ+ SQ!

irpa + unqualified protection for sexual orientation irpa no human rights statute irpa + qualified protection for sexual orientation irpa + s.33 override

Figure 5.2 Preference orderings in Morgentaler and Vriend

event of judicial policy imposition, legislative choice is reduced to two: deference or override. The first choice produces the Court’s ideal policy (CI), while the second produces a reinforced status quo (SQ!). The second preliminary step is to specify the players’ preferences with respect to these various outcomes in each case. As figure 5.2 indicates, the players’ most preferred outcome remains stable in both cases. The most valuable outcome for the justices is always CI; for legislatures, the SQ always trumps all other alternatives. The justices’ least preferred outcome – SQ! – also remains stable in both cases. The explanation for this consistency is that legislative override represents a double blow to the achievement of judicial goals. On the one hand, it negates the effects of the Court’s immediate intervention in the policy process; on the other, it challenges the Court’s long-term institutional authority by immunizing an issue from judicial review. The most important phenomenon indicated by figure 5.2, however, is the change over time in the least preferred legislative outcome. In 1988 CI was the least preferred outcome, but by 1998 SQ! had fallen to that position. The explanation for this change is clearly the decline

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in the legislative override’s political legitimacy described in the preceding section. As that discussion suggests, the political cost of invoking section 33 is perceived to be so high that legislatures are willing to defer to judicial policy preferences. With these preliminary steps out of the way, we can turn in more detail to the Court’s strategic calculations in Morgentaler (2) and Vriend. The institutional constraints operating in Morgentaler (2) created a strategic dilemma for the Court. On the one hand, maintaining its Charter-based institutional authority to participate in controversial policy debates meant that the Court could not simply avoid the abortion issue, as it had in 1975. Reversing his earlier view that the Court should not participate in the public debate over abortion, Chief Justice Dickson solemnly declared that it had to assume its “added responsibilit[y]” of ensuring that legislative initiatives “conform to the democratic values” inherent in the Charter (Morgentaler (1), 671; Morgentaler (2), 46). On the other hand, faced with uncertainty about whether judicial nullification of the federal abortion policy would trigger a legislative override, the justices confronted the possibility that the Court might “lose” its first direct confrontation with Parliament over a highly visible policy issue. In the long-term, this outcome could have seriously undermined any future claims the Court might make to constitutional supremacy. The existence of a still politically viable notwithstanding clause during the Court’s abortion deliberations between 1986 and 1988 meant that the risk of legislative reversal was more than minimal. Exacerbating this risk were the particular circumstances surrounding Morgentaler (2). It was only the forty-ninth Charter case decided by the Court, and it was arguably the first case to engage the Court in an issue of broad public visibility and controversy. Moreover, unlike the nineteenth-century statute overturned by the U.S. Supreme Court in Roe v. Wade (1973), the provision under review in Morgentaler (2) was a liberalizing one that was less than twenty years old. Finally, the government in power was a politically conservative one with a significant number of members who supported stricter regulation of abortion. Public opinion over abortion was also divided (Bozinoff and Turcotte 1992). In 1975 only 23 per cent of Canadians surveyed by the Gallup organization supported unrestricted access to abortion. This figure declined to 16 per cent in 1978 before gradually rising to 28 per cent in a poll conducted shortly after the Morgentaler (2) decision. Significantly, in only two polls conducted between June 1988 and October 1992 has a majority of Canadians ever accepted simple agreement between a woman and her physician as an acceptable circumstance for a legal abortion. Clearly, the Court was functioning in a

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climate of public opinion that supported some, and perhaps even extensive, legislative regulation of abortion. There was at least the possibility that the conservative government of the day could find public support to override a Roe-type declaration of a constitutional right to abortion.4 These institutional factors created an uncertain strategic environment for the Court’s engagement in the abortion issue, which exacerbated the existing lack of coherence among the Morgentaler (2) justices. The seven justices produced four separate reasons for judgment, ranging from support for the status quo (upholding the constitutionality of the existing law) to nullification based a novel interpretation of liberty (right to reproductive freedom). Justices William McIntyre and Gérard La Forest, who voted to support the existing law, based their judgment on the Charter’s silence on the question of abortion rights. According to McIntyre, “the proposition that women enjoy a constitutional right to have an abortion is devoid of support in the language of s.7 of the Charter or any other section” (Morgentaler (2), 143). Without such support, he argued, there was no constitutional reason to nullify the abortion law. Justices Beetz and Estey focused their attention on the delays that women faced in securing permission for a legal abortion as a result of the procedural mechanisms contained in section 251 of the Criminal Code. In their view, these delays created an additional risk to women’s health and thus threatened their section 7 right to security of the person. Chief Justice Dickson and Justice Lamer broadened this procedural approach to include psychological and emotional integrity within the meaning of security of the person. Examining the procedural operation of section 251, Dickson characterized it as “a law which forces women to carry a foetus to term contrary to their own priorities and aspirations and which imposes serious delay causing increased physical and psychological trauma to those women who meet its criteria” (Morgentaler (2), 63). Only Justice Wilson argued that the right to liberty enumerated in section 7 of the Charter included reproductive freedom, which was essential to “modern woman’s struggle to assert her dignity and worth as a human being” (Morgentaler (2), 172). This interpretation meant that all government regulation of abortion during at least the early stages of pregnancy would be prohibited. The Dickson-Lamer judgment, which is particularly important given the Chief Justice’s unique responsibility for the Court’s institutional integrity, aptly illustrates that the solution to the strategic dilemma was to nullify the existing law while maximizing the feasible set of alternatives to legislative override. The overall structure of the judgment was

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such that Parliament could set a new abortion policy anywhere to the right of the Dickson-Lamer judgment and be reasonably confident that it would survive future constitutional scrutiny under the doctrine articulated in Morgentaler (2).5 Had the overall doctrine been set closer to Justice Wilson’s ideal point, Parliament would have had much less room to manoeuvre. In fact, the plurality judgment in Morgentaler (2) excluded only two choices from Parliament’s feasibility set: the existing law and recriminalization of all abortions. With the exception of these two options, however, Parliament retained relatively wide power to regulate abortion after Morgentaler (2). The result in Morgentaler (2), therefore, was judicial nullification followed by an attempt to enact new legislation. The calculations leading to this outcome can be understood by applying the technique of backward induction to the extended game depicted in figure 5.1. To start with the three choices available to the legislature after nullification, SQ! and V are both inferior in value to SQ’, eliminating deference and override as possible reactions to nullification. When we move to the choices available after imposition, SQ! is clearly preferable to CI for the legislature, thus eliminating deference as a legislative choice following imposition. However, since SQ! and SQ are both less desirable to the Court than SQ’, the method indicates that the Court would choose nullification over deference or imposition. To summarize, the Court will nullify and the legislature will attempt to pass alternative legislation, resulting in both players’ receiving their second outcome preference. The Court did not face nearly the same dilemma or uncertainty in Vriend, as a result of both the decline in legitimacy of the legislative override and the politics of sexual orientation and human rights legislation. To begin with, public opinion was much less ambiguous about extending sexual orientation rights in the late 1990s than it was about extending abortion rights in the late 1980s. In a national poll conducted in 1996 (Angus Reid Group 1996b) a majority of Canadians (55 per cent) supported same-sex spousal benefits. In addition, 49 per cent supported legal recognition of same-sex marriages, a figure that represented an increase of 12 percentage points over a poll conducted in 1993. Only on the issue of gay and lesbian adoptions was a majority of Canadians (52 per cent) clearly opposed to extending sexual orientation rights. More relevantly, in a separate 1996 poll, 59 per cent of Canadians supported amending the Canadian Human Rights Act to protect gays and lesbians from discrimination on the basis of sexual orientation (Angus Reid Group 1996a). Rather than alienating Canadians, the Court’s decision in Vriend had a positive impact, with 75 per cent of those surveyed shortly after the decision supporting the inclu-

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sion of sexual orientation in human rights legislation (Angus Reid Group 1998). A second important factor is that Vriend concerned a provincial, rather than a federal, statute. Since final courts of appeal tend to favour central governments and national standards (Bzdera 1993; Feeley and Rubin 1998, 171–7), the Court may have been more confident about interfering with a provincial human rights statute than with a federal abortion law. This interpretation may have been particularly true, given that Alberta was one of only three provinces not to have included sexual orientation in its human rights code (Newfoundland and Prince Edward Island were the others). In this sense, judicial intervention against Alberta’s policy could be understood as a vindication of national normative standards against a recalcitrant subnational jurisdiction of the federal system. Indeed, this was one of the political objectives underlying the Charter’s creation (Russell 1983; Knopff and Morton 1985), and the Court could count on national political support to counter provincial opposition. A final factor was an event that occurred in March 1998. On 10 March Alberta introduced a bill to compensate victims of provincial eugenics laws that were in place between 1929 and 1972. One element of the bill was a provision to prohibit victims from suing for additional compensation, and the government proposed to shield that provision from judicial review through the notwithstanding clause. One day later the provincial attorney general withdrew the bill under intense political pressure. Alberta’s premier explained the decision in the following terms: “It became abundantly clear that to individuals in this country the Charter of Rights and Freedoms is paramount and the use of any tool ... to undermine [it] is something that should be used only in very, very rare circumstances” (Edmonton Journal Extra 1998). Alberta’s rapid reversal on using the legislative override in the face of negative public opinion confirmed the fact that the notwithstanding clause was a weak, and perhaps even inoperative, obstacle to assertions of judicial supremacy. The result in Vriend was an exceedingly intrusive judgment over only minor dissent. The decision encompassed three judgments, with Justices Cory and Iacobucci splitting the task of articulating the Court’s overall judgment. Cory presented its unanimous judgment that provincial human rights acts must prohibit discrimination on the basis of sexual orientation in order to comply with section 15(1) of the Charter. According to Cory, the exclusion of this category from the Alberta statute constituted a “particularly cruel form of discrimination” because of its harm to the dignity and perceived worth of gays and lesbians (Vriend v. Alberta [S.C.R.], 551). Iacobucci dealt with the

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remedial elements of the judgment, holding that sexual orientation be read into the Alberta law and defending the democratic character of this remedy. Justice L’Heureux-Dubé wrote a separate judgment that essentially agreed with the Cory-Iacobucci position. Finally, although accepting Cory’s part of the joint judgment, Justice Major dissented from Iacobucci’s remedial declaration. In essence, the Vriend judgment minimized the feasible set of alternatives available to Alberta by presenting the province with a dichotomous choice between accepting the Court’s human rights policy preference or invoking the notwithstanding clause. The Court was able to do so because the institutional context – the notwithstanding clause’s declining legitimacy, a provincial law apparently inconsistent with national norms, and a less-divisive moral issue – was conducive to an assertion of judicial supremacy. The Court could thus choose the most activist doctrinal option available to it. Ironically, it justified this choice in part by the presence of the notwithstanding clause, which “establishes that the final word in our constitutional structure is left to the legislatures” (Vriend v. Alberta [S.C.R.], 565). However, the Vriend justices must have recognized the reality expressed by their retired colleague Gérard La Forest, who told a newspaper interviewer that lack of public support prevented governments from using the notwithstanding clause (National Post 1999, A2).6 The Vriend court could thus be reasonably confident that its invitation to override its activist judgment would not be accepted. Once again, backward induction makes these strategic choices clearer. In Vriend the Alberta legislature would have preferred SQ’ to both V and SQ! in the wake of judicial nullification, eliminating deference and override as responses. However, in contrast to Morgentaler (2), the Alberta legislature preferred CI to SQ! as the outcome following judicial imposition, which also eliminated override as a feasible legislative reaction. Since the Court preferred CI to all other outcomes, it had no obstacle in achieving that outcome by imposing a policy on Alberta through the remedial technique of “reading in” a new legislative provision. The strategic explanation elaborated in this analysis of Morgentaler (2) and Vriend presumes, of course, that the two sets of justices evaluated the political status of the notwithstanding clause and used that evaluation to determine the extent to which their actual decisions could reflect their ideal policy preferences. Justice La Forest’s public statement provides at least some evidence that Supreme Court justices are not entirely unaware of the political context in which they operate. Further evidence can be found in a speech delivered five months after the Morgentaler (2) judgment by Justice Bertha Wilson. She noted that

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the notwithstanding clause had “only rarely been invoked, presumably because it might spell political suicide for any government that invoked it!” (Wilson 1988, 375).7 This statement suggests that Wilson had reflected on the notwithstanding clause’s political status and concluded that there was a low probability of its being invoked. This interpretation may explain why she chose a rationale for nullifying the abortion law that left Parliament with the option of either withdrawing from abortion regulation or invoking the notwithstanding clause to override a declaration that the Charter protects a woman’s right to reproductive freedom. In her calculation, the probability that the government would select the second option was low enough that she could risk setting her judgment very close to her ideal point. That she was not so imprudent as to consider the probability of legislative override to be zero is perhaps indicated by her willingness to allow regulation of late-term abortions. These statements by La Forest and Wilson are at least circumstantial evidence that Supreme Court justices are cognizant of the political capacity of governments to challenge the institutional authority of courts to make rights-based policy. Although Wilson believed that this capacity was already low early in 1988, it is obvious that it declined during the period between Morgentaler (2) and Vriend. In particular, as La Forest’s statement suggests, and as the Alberta government discovered in March 1998, public opinion supports a rule against “hard” legislative review of judicial decisions through the notwithstanding clause.8 At best, legislatures can engage in “soft” review through “legislative sequels,” in which they attempt to preserve their principal policy objectives by incorporating judicially crafted rules into new statutes (Hogg and Bushell 1997). Consequently, the Court can be less restrained in exercising rights-based judicial review.

c onc lusion The inclusion of a legislative override provision in the Charter of Rights and Freedoms generated an element of uncertainty about the institutional locus of constitutional supremacy. For a Supreme Court vested with newly expanded powers of judicial review, this uncertainty created the conditions for the strategic use of those powers to avoid a political confrontation that might undermine its long-term institutional status. Consequently, when the Court entered the moral and political minefield of abortion policy, a majority of the justices chose a rationale for nullification that left Parliament with several options short of legislative override. However, the unfolding of events after December 1988 gradually shifted the balance of power toward the

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courts. Justice Iacobucci’s assertion of the Court’s broad remedial powers in the Vriend judgment highlights the magnitude of this shift. The preceding analysis of the shift from nullification to imposition in two morally contentious policy areas underscores three characteristics of modern rights-based judicial review. First, it explicitly directs our attention to the political nature of judicial decision-making, even in the absence of electoral imperatives. Judges, this approach argues, pursue their personal and institutional goals in an environment characterized by uncertainty over outcomes. Although they must justify their decisions in legal terms, their choice among a wide array of alternative legal outcomes and justifications is the product of strategic considerations. Second, “institutional structures matter” in the sense that different institutional constraints affect the nature of strategic judicial behaviour (Segal 1997, 42). As the likely use of section 33 declined, the assertion of judicial power increased. Finally, the relationship between the Court and other branches of government should be characterized, not so much as a dialogue, but as a strategic interaction between different political actors who compete to establish rules that will structure outcomes in a manner favourable to them (Knight and Epstein 1996, 90–2). Rights-based judicial review is redistributive on two levels: it redistributes power among society-based actors and between different components of the state. The rhetoric of democratic humility so prevalent in many of the Supreme Court of Canada’s recent judgments masks the reality of an institution whose growing control over constitutional interpretation means that public policy will always be set closer to judicial than to legislative preferences (Flanagan in this volume; but see Kelly in this volume for an opposing view).

not es 1 The act’s list of prohibited grounds includes race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, and family status. 2 Section 15(1) of the Charter prohibits discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. Section 24(1) of the Charter allows individuals whose Charter rights have been infringed or denied to “apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” 3 Section 7 of the Charter reads as follows: “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.”

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167 Strategic Behaviour and the Charter 4 The Roe decision granted women an unconditional right to abortion during the first trimester of pregnancy, but allowed states to impose health-related regulations during the second trimester and to prohibit third trimester abortions altogether. However, the right to abortion did not include an obligation for public funding of the procedure. 5 This conclusion assumes, of course, stability in terms of the Court’s membership and the individual justices’ attitudes toward abortion. 6 In the interview, La Forest conceded that governments have the power to overrule court judgments, but that “generally speaking it [section 33] is not a clause that the population has wanted any wide use of. I suspect that is why they [governments] have not used it.” 7 The exclamation mark appears in the published text of her speech. 8 To put this summation slightly differently, the post-1988 institutional environment indicated to legislatures that if they violated the rule against “hard” review, they would be sanctioned by negative public opinion. On this aspect of institutions, see Knight 1992, 17.

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part th re e Non-Governmental Players in the Constitutional Arena

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6 Think Tanks, Public Policy, and Constitutional Politics in Canada D ONALD E. ABELSO N

The active involvement of interest groups in constitutional politics and in Charter cases has been the subject of considerable debate in recent years. While some scholars have examined the efforts of interest groups to shape specific provisions in the constitution (Pal 1993; Russell 1993), others have paid even closer attention to how these organizations have sought to influence the outcome of important Charter cases (Brodie 2001; Morton and Knopff 2000; Rush, Peacock, and Smithey in this volume). The result has been a rich body of literature that provides useful insights into how interest groups rely on the courts as well as policy-makers to advance their political agendas. In this chapter, my concern is less with the specific motivations of interest groups and their desire to create what may or may not constitute a just society. Rather, my interest here is to broaden the discussion about non-governmental organizations and constitutional politics by focusing on the role of public policy institutes or think tanks, as they are more commonly called. Unlike interest groups, which have elected to rely on judicial intervention as a preferred strategy to influence policy-making, think tanks, including the C.D. Howe Institute, the Fraser Institute, the Institute for Research on Public Policy, and the Canada West Foundation, to name a few, depend on their reputations as policy research institutes to capture the attention of policy-makers. However, as this chapter will demonstrate by examining the involvement of a select group of think tanks in the 1992 constitutional conferences, despite their willingness to offer policy expertise on how to reform the constitution, think tanks did not leave

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an indelible mark on Canada’s constitutional blueprint. On the contrary, like many interest groups, which have willingly accepted Ottawa’s invitation to challenge specific provisions in the Charter, some of Canada’s most visible think tanks have at times served as policy instruments of the government. For some think tanks, the decision to promote the government’s interests, particularly in the months leading up to the Charlottetown Accord, may at the time have seemed like an optimal strategy. After all, by participating in the constitutional conferences, they could not only take credit for serving the public interest, but could enhance their own exposure in the policy-making community. Yet, as I will argue in this chapter, regardless of whether think tanks were motivated to serve the public’s interests or their own, their involvement in the so-called mega-constitutional theatre has been anything but stellar. Indeed, as will become clear, their strategy to inform discussions about the constitution has not been optimal or efficient. In the winter of 1992, five think tanks – the C.D. Howe Institute, the Institute for Research on Public Policy (irpp), the Canada West Foundation, the Niagara Institute, and the Atlantic Provinces Economic Council (apec) – were unexpectedly thrust into the public debate over the future of constitutional reform in Canada. Although some of these institutes had written extensively on various aspects of the constitution, it was not a particular publication or a speech given by a staff member that propelled them into the spotlight. Ironically, it was the collapse of a parliamentary committee established to consult with Canadians on the proposed changes to the constitution leading up to Charlottetown that brought them national attention. When the committee proved incapable of carrying out its assigned responsibilities, Prime Minister Mulroney and Joe Clark, then minister of constitutional affairs, turned to a select group of think tanks to help revive public interest in the constitution. In what was dubbed the “Renewal of Canada,” think tanks were contracted to organize a series of constitutional conferences focusing on specific themes and recommendations outlined by the federal government in its 1991 report Shaping Canada’s Future Together. The think tanks involved were not expected to contribute policy ideas, their raison d’être, but to help transmit those of the government to an increasingly despondent and disillusioned public. By serving as policy instruments of the government, they not only established a more legitimate forum for public discussion, but played a critical role in preventing the constitutional reform process from being completely derailed. Unfortunately, in the process of providing this crucial public service, some of the think tanks involved compromised their own legitimacy as independent centres for research and analysis.

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Despite growing interest in the role of think tanks in Canada and their involvement in the policy-making process, few scholars have considered what, if any impact, these organizations have had in shaping public opinion and public policy. Indeed, with the exception of Evert Lindquist’s detailed examination of the efforts of a handful of think tanks to influence tax policy, energy policy, and pension reform (1989) and Allan Tupper’s assessment of the contribution of think tanks to the debate over public debt in Canada (1993), few studies have sought to evaluate the nature of think-tank influence. The reluctance of scholars to measure their impact can in large part be attributed to the difficulties often encountered in trying to trace the origin of an idea or policy proposal to a particular individual or organization (Abelson 1999). As many have claimed, every successful policy idea has a hundred mothers and fathers; every bad idea is an orphan. Moreover, trying to isolate the involvement of an organization at a particular stage of the policymaking process creates its own set of problems. In fact, as the policy research community becomes increasingly crowded, it is often difficult to ascertain who may or may not have been responsible for initiating, shaping, and refining an idea. At times, it is even difficult to determine all the relevant organizations in a particular policy debate. The participation of think tanks in the constitutional conferences in 1992 provides scholars with a unique opportunity to bypass some of these fundamental obstacles. Unlike the vociferous debate over free trade and the goods and services tax (gst), when several think tanks and other non-governmental organizations sought to convey their views through various governmental and non-governmental channels, only a handful of think tanks were responsible for organizing the Renewal of Canada initiative. In short, identifying the think tanks involved does not pose a problem, nor does isolating the distinguished group of scholars who were seconded to the Federal-Provincial Relations Office (fpro) in 1991 to draft the government’s twenty-eight recommendations on constitutional reform. In addition to the fact that it avoids some methodological hurdles, this case has been selected because it offers valuable insights into the role that think tanks played in what might be the most important public policy debate in the past quarter-century. Indeed, with the exception of the Canada-U.S. Free Trade Agreement (fta) and the North American Free Trade Agreement (nafta), it is difficult to think of another policy issue to which the Mulroney government assigned a higher priority. If think tanks with expertise in constitutional issues could not play an important role in shaping the outcome of this critical policy debate, when could they be expected to have an impact? Put simply, the involvement of think tanks in the constitutional conferences provides a unique opportunity to evaluate their influence at the height of their public visibility.

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Although scholars must resist the temptation to base their observations about the nature of think-tank influence on one case study, much can be gained by looking more closely at the primary role these organizations played during the constitutional conferences. After considering what motivated the government to turn to think tanks to participate in the constitutional conferences and the various factors that may have convinced them to revive the constitutional reform process, this study will address one major question. If the federal government was not looking to think tanks to help generate policy ideas but simply to transmit theirs, what does this fact tell us about the role of policy research institutes in policy-making? In the first section of this paper, background information on the events leading up to the creation of the constitutional conferences is provided. The focus then shifts to a discussion of the role of think tanks in public policy. This section highlights the various functions that think tanks provide, as well as how they seek to reach various audiences. In the final section, an assessment of the contribution that think tanks made in the constitutional conferences is provided. plan b: the creation of the constitutional conferences In September 1991 the federal government released Shaping Canada’s Future Together, a blueprint containing twenty-eight recommendations or proposals for constitutional reform that would, if implemented, “revise the rules that shape the country’s political life” (fpro 1991, iii).1 The proposals, as the government pointed out in the preface to its fifty-ninepage report, were “intended to give focus to a national dialogue”(Department of Finance 1992).2 To ensure that Canadians would have sufficient opportunity to react to the government’s vision of a new constitutional framework, something the government had been harshly criticized for not doing prior to the Meech Lake negotiations, a Special Joint Committee of the House of Commons and the Senate (Castonguay-Dobbie Committee, later to become the Beaudoin-Dobbie Committee) was established. The committee, as Kroeger points out (1992, 1) “was to hold hearings across the country and submit a report by February 28 [1992]. The government would then make decisions about constitutional changes, taking into account the Committee’s findings.” Shortly after the committee began its public hearings, however, it appeared that it might not be able to spark the interest of citizens, who had grown tired of what seemed like a never- ending debate over the constitution. Moreover, as David Milne observes, the government’s desire to engage the public in a comprehensive and constructive dia-

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logue on constitutional reform was threatened by the committee’s “carnival of blunders.” He notes: “After an ill-prepared plunge into ‘townhall’ meetings in several provinces that seemed to offer either empty halls or ready platforms for redneck comments damaging to national unity, after consequent demands for the resignation of co-chairperson Ms. Dobbie, and the departure of her counterpart, respected Quebec Senator Claude Castonguay, the Parliamentary Committee had literally sputtered to a complete stop” (Milne 1992, 29). Peter Russell (1993, 175) offers an equally scathing indictment of the constitutional hearings. In assessing the committee’s work, he states, “The trail of Canada’s constitutional odyssey is littered with the wreckage of constitutional vehicles that went off the rails, but for sheer disaster nothing can top the miserable performance of the Castonguay-Dobbie Committee.” By early November, it appeared that the committee had come to a complete standstill when no one showed up to its hearings in Manitoba. According to Milne, at that stage, “the government needed to reassert its control over the constitutional process, or face irreparable damage to the constitutional package and its own reputation. Politically, the question was not simply one of finding some other vehicle for testing public attitudes, but rather of finding a means of restoring public confidence in the constitutional process itself” (Milne 1992, 29). The Mulroney government clearly understood the important role the parliamentary committee had been asked to play and the potential repercussions its implosion could bring. Public input into the constitutional reform process was vital for the Conservative government, which was harshly criticized for alienating Canadians from discussions leading up to the Meech Lake Accord. Sensitive to these and similar criticisms, Mulroney recognized the importance of generating public interest and views on constitutional reform. But equally critical for the government was arriving at an accord that was acceptable to both Quebec and the western provinces, two key constituencies for Mulroney. The Meech Lake Accord was not only unpopular with the West, but its failure spurred a growth in separatism in Quebec, where Mulroney’s promise of constitutional reform had secured his electoral victory in 1984 and 1988 (Russell 1993). Since he was faced with these considerable pressures leading up to an election, it is clear not only why it was urgent for him to arrive at a deal but why the collapse of the Castonguay-Dobbie Committee was nothing short of a disaster. While the government recognized the need to restore public confidence in the constitutional reform process, which according to most observers had become almost completely unravelled, it also acknowledged that it had little time to reflect on what had gone wrong. With the parliamentary committee’s 28 February deadline approaching,

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Mulroney had to quickly reconsider his options. Cancelling the public hearings would be suicidal for the government, but so would allowing the parliamentary committee to continue playing to sparsely attended audiences. By mid-November the government had made its decision. Instead of terminating the faltering hearings, the government decided to help resuscitate them by organizing five constitutional conferences on five consecutive weekends in five different major cities across the country. Referred to by Peter Harrison as “Plan B,” the constitutional conferences were intended to provide a more legitimate forum for public discussion on the constitution (Harrison 1992, 1). The Cabinet took a major step toward organizing the conferences on 14 November, 1991 by inviting Arthur Kroeger to assume lead responsibility for the initiative. In conveying the government’s invitation to Kroeger, Paul Tellier, secretary to the Cabinet, indicated that although many of the details had to be worked out, five independent organizations or public policy institutes had been contracted to help share in the management of the conferences. The government’s formal announcement regarding the creation of the constitutional conferences followed on 2 December. The “News Release” from the Privy Council Office read in part, “The Right Honourable Joe Clark, Minister of Constitutional Affairs and President of the Privy Council, today announced that arrangements have been made to hold a series of conferences on constitutional renewal in early 1992. Each of the first four conferences will be sponsored by an independent institute, and will deal with a particular set of the Government’s constitutional proposals. It has been agreed that the institutes will be responsible for the conferences, including selection of the participants, chairpersons and rapporteurs” (pco 1991). Clark’s “News Release” provided the names of the five institutes that had been contracted to help organize the conferences and when the particular sessions would be held. Surprisingly, however, it made no reference to why the five had been selected, or why, for that matter, the government had decided to enlist the support of think tanks. Indeed, other than identifying the organizations as “independent institutes,” no explanation for this change in the constitutional consultative process was given. Why did the government elect to rely on a select group of think tanks to save the sinking constitutional ship? Were think tanks a logical choice to assume this role? Or could the government have turned to other public or private organizations to perform this function? And why did they select think tanks such the Atlantic Provinces Economic Council and the Niagara Institute, organizations not generally known for their expertise on constitutional matters? At first glance, the government’s decision to turn to think-tanks to help run the conferences does appear logical. As organizations

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committed to influencing public opinion and public policy, think tanks frequently organize conferences on various themes and invite policy-makers, academics, journalists, and representatives from the private sector to participate. In doing so, they decide on the format of the conference, arrange for speakers, and determine whether and in what form to publish the proceedings. Although few think tanks had organized conferences on a scale as large as the constitutional ones, the arrangements that had to be made were not completely foreign to them. Still, it is unlikely that their ability to organize conferences was sufficient to entice the government to invite think tanks to participate. Indeed, as will be discussed in more detail in the third section of this chapter, since the individual think tanks lacked the resources to effectively run the conferences, the government had to create a Constitutional Conferences Secretariat at a cost of $8.96 million to provide “logistic and operational assistance, ... and information on the policy substance of the proposals” (pco 1991, 2) In short, not only was the secretariat expected to play a critical role in ensuring that the conferences ran smoothly, but it was also responsible for providing the participants with background papers on the various constitutional proposals under consideration.1 If the think tanks were not expected to assume full responsibility for running the conferences or even to supply the participants with independent appraisals of the constitutional proposals,2 why did the government solicit their assistance? The simple answer is that what the government desperately needed was something that consulting firms and a host of other organizations capable of organizing conferences could not provide – instant credibility and legitimacy with the public.3 As independent, non-profit, non-partisan organizations, think tanks such as the C.D. Howe Institute and the Canada West Foundation have cultivated reputations as institutions that operate at arm’s length to the government. In the process, they have attempted, though not always successfully, to portray themselves to the public, the media, and policy-makers as organizations committed to improving governmental decision-making, not to advancing a particular ideological agenda or the interests of any one political party. It is this perception of think tanks that Clark and Tellier hoped would play particularly well to the media which had seized on the total breakdown of the Castonguay-Dobbie Committee to predict the imminent failure of future constitutional negotiations. They also hoped that selecting think tanks to help manage the conferences might not only reignite public interest in the constitutional reform process but, at least in the short term, provide a new focus for the media. To their delight, it did both. Once the decision to enlist the support of think tanks was made, deciding which ones would sponsor the individual conferences did

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not likely create much difficulty. Unlike in the United States, where policy-makers must rely on directories to keep track of the hundreds of think tanks operating inside and beyond the Beltway, in Canada less than three dozen independent think tanks exist. Of these, only a handful of those specializing in domestic policy have made their presence felt in key policy-making circles (Abelson 1999). According to Ronald Watts, who served as a constitutional adviser to Joe Clark during this period, after the government identified the limited pool of think tanks it could draw on, there were two important criteria that influenced the selection process: credibility and regional representation (Watts 1999). Although it is unclear what factors policymakers considered in determining which think tanks were deemed credible and which ones were not, it is not surprising that they wanted to avoid selecting organizations such as the Fraser Institute, which is often portrayed in the media as the loyal guardian of conservatism. In selecting the C.D. Howe Institute (Toronto), the Institute for Research on Public Policy (Montreal), the Canada West Foundation (Calgary), the Atlantic Provinces Economic Council (Halifax), and the Niagara Institute (Niagara-on-the-Lake), the government satisfied both criteria. It found think tanks that generally attract favourable exposure in the media and ones that could offer sufficient regional representation. The government’s decision to pursue Plan B proved to be an important one. Not only did organizing five constitutional conferences save the parliamentary hearings from imminent disaster, but it renewed public interest in the debate over constitutional reform. By relying on think tanks to serve as conference facilitators, the government achieved what it had clearly set out to do. It was able to significantly influence the public consultation process, something the parliamentary committee had been incapable of doing, while creating the impression that “independent institutes” were running the show. However, in the process of making the conferences a more legitimate public relations exercise for the government, the think-tanks involved sacrificed some of their own independence. Ironically, by doing so, they may have enhanced their credibility with policy-makers and the media, a subject which that will be pursued in more detail in the third section of this chapter. What motivated think tanks to participate in these conferences? Was it increased public exposure for their institutes that appealed to them, or were there other factors that influenced their decision? Before we can delve into the motivations of the think tanks involved, we should devote more attention to understanding their role and function in the policy-making process.

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a closer look at c anada’s think-tank community Although there is no consensus among scholars as to what constitutes a think tank (McGann and Weaver 2000), those who have studied the think-tank community in Canada generally acknowledge that they exhibit four basic characteristics (Lindquist 1993). First, think-tanks are a diverse set of organizations that vary considerably in terms of their mission statements, institutional resources, research outputs, and ideological orientation. For instance, some are committed to improving social welfare policy in Canada, while others are committed to ensuring that Canadians are well informed about foreign affairs. Moreover, some think tanks are considered extremely liberal, while others have developed reputations as being extremely conservative. In addition, they vary enormously in terms of the number of staff they employ to the types of publications they produce. Secondly, the majority of think tanks in Canada have modest financial resources (approximately $1 million). In fact, several must rely on budgets barely exceeding a few hundred thousand dollars. One of the few exceptions is the Conference Board of Canada, which has an annual budget exceeding $20 million (Abelson and Carberry 1998, 534). Thirdly, think tanks enjoy different degrees of institutional independence. Most in Canada, including the Institute for Intergovernmental Relations (at Queen’s University), are based at universities. While they often raise funds from external sources, the majority of university-based think tanks rely heavily on internal support to maintain their operations. There are also close to three dozen private think tanks, such as the C.D. Howe Institute and the Fraser Institute, which are run like independent corporations, and a handful of government or public think tanks, which are created and funded almost entirely by government. Included in the latter category are the National Council of Welfare, the Canadian Centre for Foreign Policy Development, and the former Economic Council of Canada and Science Council of Canada. And fourthly, while think tanks assign different priorities to performing specific functions such as research and political advocacy, they share a common desire to shape and mould public opinion and the policy preferences and choices of policy-makers. The channels that think tanks rely on to advance their goals and the various factors that motivate their behaviour may vary, but their ultimate goal remains the same – to influence public policy. These observations become clearer when we look more closely at the five think tanks that became involved in the constitutional conferences.

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The Chosen Few Of the five think tanks invited to help organize the constitutional conferences, the Atlantic Provinces Economic Council is the oldest. Created in 1954 “as a partnership between the provincial governments and the private sector,” apec has as its objective “to promote the Economic Development of the Atlantic Region of Canada.”4 With a research staff of five and two administrative assistants, apec draws on a modest budget to analyze and evaluate current and emerging economic trends and policies. Prior to its involvement in the constitutional conferences, it had published approximately a dozen newsletters and background papers on how new constitutional arrangements could affect the Atlantic region. apec is not generally known for its expertise in constitutional affairs, but the Canada West Foundation is. From its offices in Calgary, the cwf has been a strong advocate for promoting and protecting western Canada’s economic, political, and social interests in the Canadian federation for over two decades. Founded in 1970, it draws on support from various corporations, foundations, and government departments to maintain its active research program. In 1996, the cwf also received two endowments totalling $1.5 million.5 By the time that David Elton, former president of the cwf, had been invited to participate in the Renewal of Canada initiative, his institute had released close to two dozen publications on constitutional issues, ranging from how to reform the Canadian Senate to the possible repercussions of Quebec separation, and had organized a handful of major conferences on constitutional reform. The Niagara Institute, established in 1971, stands in stark contrast to the cwf. Unlike the Calgary organization, it does not claim to have expertise in constitutional affairs – or in any specific policy area, for that matter. Although it has clearly benefited from the various research programs undertaken by the Conference Board of Canada, with which it merged in 1994, the institute does not engage in public policy research. Rather, the Niagara Institute seeks “to enhance the quality of Canadian leadership in business, government and nongovernmental organizations [by offering] specialized programs designed to help leaders identify, understand and address the issues of our time.”6 Of all the think tanks involved in the conferences, the Niagara Institute was clearly the anomaly. The two remaining institutes, the C.D. Howe Institute (1973)7 and the Institute for Research on Public Policy (1972), have very similar institutional profiles. Both have a staff complement of around fifteen and budgets in the $2 million plus range. However, unlike C.D. Howe, irpp can draw on a sizable endowment to support its activities. More-

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over, both institutes were created to improve public policy in Canada by providing objective and sound analysis of timely policy issues. Of the two, the C.D. Howe Institute enjoys far greater public exposure, a result no doubt of its more extensive research program. With respect to research on constitutional issues before it became involved in the conferences, C.D. Howe published no less than twenty studies, more than twice the number of monographs produced by irpp. This brief overview is intended simply to illustrate the diversity of the organizations that participated in the constitutional conferences. Before I discuss what likely influenced their decision to accept the government’s invitation, some consideration of how think tanks see their role in the policy-making process is in order. Creating Their Niche: The Roles of Think Tanks Originally coined during the Second World War to refer to a secure room or environment where defence scientists and military planners could meet to discuss wartime strategy, the term “think tank” has since been employed to describe various institutions engaged in research and analysis. But even this use of the term is misleading since think tanks often perform functions unrelated to research. As a result, rather than simply stating that the role of think tanks is to provide expertise to policy-makers, it may be more appropriate to discuss the many roles they assume. A useful point of departure is to regard think tanks as educational institutions with multiple target audiences. For some think tanks, their primary audience is policy-makers, who often look to the external policy research community for independent information and advice. Recognizing the needs of and time constraints facing elected members of Parliament, think tanks such as C.D. Howe and irpp make use of brief newsletters and commentaries to highlight the advantages and disadvantages of pursuing different policy options. Moreover, although these and other institutes realize that policy-makers rarely have the time or the inclination to read book-length studies, they nonetheless produce them in the hope that they will reach legislative aides or bureaucrats in a position to advise mps. At times, some think tanks, including the Canadian Centre for Policy Alternatives, prefer to convey their ideas to other audiences, including university students, academics, interest and advocacy groups, and various non-governmental and international organizations that might benefit from their research. In this sense, think tanks see themselves less as institutions generating knowledge and more as advocates for particular issues. This fact may in part explain why many

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think tanks assign a high priority to gaining access to the media (Abelson 1999). Think tanks assume other roles as well. For instance, some institutes see themselves as research brokers that help bridge the gap between the academic community and policy-makers. In so doing, they seek to reduce complex policy issues to an easily digestible form for policymakers to consume. Furthermore, there are some think tanks, such as the Public Policy Forum (ppf), which attempt to enhance the dialogue between government and the private and non-profit sectors. The ppf regards itself more as an honest broker willing to bring representatives from different sectors together in the hope of improving public policy than as a traditional policy research institution. As the marketplace of ideas becomes increasingly crowded, think tanks have attempted to create their own niches. For some, such as the Canadian Tax Foundation and the Mackenzie Institute, this has meant specializing in a particular policy area. For others, such as the Fraser Institute and C.D. Howe, which examine both domestic and international issues, it has meant creating a one-stop policy shop. The niches that think tanks define for themselves clearly have an impact on the priorities they assign to performing specific functions. For instance, since the ppf does not view itself as a research institution but as a forum to stimulate discussion, it devotes 20 per cent of its budget to research and 60 per cent to organizing conferences. Conversely, the C.D. Howe Institute and the Institute for Research on Public Policy, which do regard themselves as research institutions, devote 90 per cent and 68 per cent of their respective budgets to conducting research and analysis.8 By better understanding the roles and priorities of think tanks, we can obtain additional insights into what motivates their behaviour. However, as the involvement of the five think-tanks in the constitutional conferences illustrates, policy institutes can and often do assume different roles to advance their institutional interests. A Tempting Offer? Think Tanks and the Constitutional Conferences When the federal government approached the five independent institutes to help organize the constitutional conferences, it made its expectations clear. It did not expect or ask the institutes to produce independent appraisals of the twenty-eight proposals on constitutional reform, nor did it expect them to assume full responsibility for running the conferences. As noted, a Constitutional Conferences Secretariat was established to provide logistical and administrative support for the institutes. Rather, the institutes were contracted to

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perform six specific functions: to define conference agenda/format, identify chairs and co-chairs for conference sessions, select appropriate participants, prepare conference material, offer on-site support, and submit a conference report (Harrison 1992, pco 1991). Initially, it appeared that the functions assigned to the institutes would allow them to exercise considerable independence in organizing the conferences, something they had apparently demanded in exchange for agreeing to participate. A closer look at the government’s criteria for organizing the conferences, however, reveals that, in several instances, the government dictated how it wanted the conferences run. In addition to determining which of the twenty-eight proposals would serve as the “primary thematic focus of each conference” (the conference agenda), the government had considerable input into the types of individuals who would be invited to participate. According to the 2 December 1991 “News Release,” The institutes are to invite to the Conferences on an ex-officio basis: • all members of the Joint Parliamentary Committee; • two individuals selected respectively by each of the caucuses of the three federal political parties with Parliamentary status; • two individuals from each province and territory, to be selected by the Premier/Head of Government; and • one representative of each of the four national aboriginal organizations. (pco 1991, 3) Moreover, the government specified that, although the “Institutes are responsible for determining the manner in which [members of the public] are selected ... individuals selected should have a demonstrated interest in, and some knowledge of constitutional matters, and should have a significant record of service to their communities.” Furthermore, it indicated that “experts invited by the Institutes to participate in panels and workshops must, taken together, represent a broad and balanced cross-section of views” (ibid.). The government also went to great lengths to outline the format of the conferences. Among other things, it stated that at each conference, institutes had to provide “an opportunity for a government spokesperson to outline the constitutional proposals and underlying rationale with particular reference to those which are the subject of each conference” (ibid.). Apparently, it had little confidence in the ability of experts from independent think tanks to explain the nature of the constitutional proposals under discussion. Government officials did not demonstrate much confidence in their ability to prepare final reports on the conference proceedings either. The Constitutional Conferences

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Secretariat arranged with the Privy Council and Federal-Provincial Relations offices “to have a team of ‘note-takers’ available at each conference.” As Harrison observes, “in summarizing what had been the gist of discussion in the various forums, [t]his assisted rapporteurs in providing summaries to plenary sessions, and report writers in pulling together the sense of the conferences” (Harrison 1992, 16). When we look at the arrangements that had been agreed to before the conferences began, it is clear that the institutes would not be permitted to exercise complete independence. Yet despite the amount of government intervention, they continued to insist that they, not Ottawa, were ultimately in charge. According to a report on the constitutional conference it helped organize, the Canada West Foundation stated: “The Conference was organized and managed by the Canada West Foundation, with assistance from a Conference Secretariat set up by the Government of Canada to aid in logistics and media coverage. Canada West Foundation exercised complete independence in the selection of conference participants, the organization of the program, the setting of the agenda, the selection of co-chairs and speakers, the preparation of pre-conference materials, and the writing of final report. There was no interference or direction, direct or indirect, on the part of the government” (Canada West Foundation 1992, 1). While these and similar statements were no doubt comforting to the government, the institutes were deluding themselves if they believed they had complete independence (Milne 1992, 30). But for the think tanks involved, sacrificing some independence may have been a small price to pay in return for the potential benefits that could be derived from their participation, including establishing greater credibility with the government. Becoming more firmly entrenched in key policymaking circles could pay handsome dividends for think-tanks committed to shaping public policy. Moreover, by helping to organize the conferences, the institutes were able to attract considerable media exposure, an indicator that many rely on to assess their own effectiveness in the policy-making community. The importance of generating media attention cannot be understated. Not only does increased media coverage help to foster the illusion of policy influence, but directors of several think tanks can often parlay their organization’s media visibility into corporate and private donations (Abelson 1992). Generating free publicity for their institutes was only one factor that likely motivated their decision. Being centre stage at what might be the most important public policy debate in the past quarter-century likely also weighed heavily on the minds of institute directors. For organizations committed to influencing public policy and public opinion, the opportunity to help put the constitutional reform process

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back on track would be difficult to pass up. Although they ran the risk of participating in conferences that had the potential of becoming a public relations disaster, the government, not the institutes, would likely have been held accountable for any additional problems in the public consultation process. On the other hand, if the conferences succeeded, the think tanks would forever be linked to a pivotal period in Canada’s constitutional development. The financial rewards of accepting a generous government contract may have also convinced think tanks to make an important public service contribution. For its efforts, the Atlantic Province Economic Council received $314,000.9 The C.D. Howe Institute and the Institute for Research on Public Policy shared $200,00 for co-organizing a conference, and the Canada West Foundation received $315,000. These figures, however, pale in comparison to the $760,000 paycheque the Niagara Institute received.10 But perhaps even more lucrative than accepting the government’s offer was the potential of obtaining additional contracts in the future, an enormous benefit not lost on the majority of Canada’s think tanks, which constantly struggle to keep afloat. Each institute may have been motivated to participate in the Renewal of Canada conferences for different reasons, but in the final analysis they all shared the government’s commitment to move the constitutional process forward. The potential benefits and some of the costs associated with this decision have been outlined. What needs to be discussed, however, is what contribution think tanks made to this critical public policy issue. Although it is premature to assess the longterm impact of the constitutional conferences, it is possible to evaluate the role the institutes played at critical stages leading up to and during the conferences. some c ause for concern: an assessment of the impact of think tanks Well before the federal government made its twenty-eight proposals on constitutional reform known, most of the think tanks that participated in the constitutional conferences had given considerable thought to the future of the Canadian federation. Indeed, with the exception of the Niagara Institute, the institutes had all published several studies detailing the economic, social, and political consequences associated with fundamentally changing the constitution. In examining several controversial issues ranging from the potential consequences of introducing a Triple-E Senate to granting Quebec distinct status within the constitution, the institutes had made their views clearly known. The “independent credible organizations” that the

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government was hoping would provide greater legitimacy to the public consultation process on constitutional reform had already staked out their positions. Nevertheless, when the government began thinking about how to reform the constitution after the failure of the Meech Lake Accord, it did not turn to these think tanks to draft a new blueprint, but to a small group of academics in universities. Shortly after Ronald Watts was seconded from Queen’s University to the Federal-Provincial Relations Office in April 1991 to serve as a constitutional adviser to Joe Clark, a select group of constitutional experts consisting of Kathy Swinton (University of Toronto), Roger Gibbins (University of Calgary), Peter Leslie (Queen’s University), and Doug Purvis (Queen’s University) were called upon to assist him in drafting the government’s discussion paper, Shaping Canada’s Future Together. In addition to preparing this document, Watts was asked to edit a series of background papers that were intended to explain in a clear and straightforward manner the government’s proposals to reform the constitution. In this instance, when the government was formulating its vision of a new federation, the views of a handful of academics were clearly heard. The recommendations of private think tanks, on the other hand, were barely noticed. Directors of think tanks often credit their institutes with helping to formulate government legislation and initiatives, but in this particular case they appeared to have little impact. Indeed, it was not until the parliamentary hearings on the constitution failed that the presence of think tanks began to be felt. And when they did become part of the consultation process, they could not legitimately claim that their ideas mattered. It was not as transmitters of knowledge but as conference organizers and facilitators that their real impact was felt. Think tanks made a difference in this phase of constitutional discussions, but not in the way that one might imagine. The absence of think tanks during this critical stage of policymaking raises some important questions regarding their role in the policy research community. If policy-makers were aware of the research the institutes undertook on various constitutional issues after Meech Lake, why were they not asked to help draft the government’s proposals? Did policy-makers question the quality of their publications or the credentials of their staff? If such was the case, why did the government regard them as credible organizations producing policy-relevant research? Were they selected simply because they were perceived by the media as credible institutions? Alternatively, if the government was unaware of the research the institutes had produced, what does this ignorance say about the ability of think tanks to convey their ideas?

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For several of the think tanks, the government’s decision to invite them to hold a series of constitutional conference was a mixed blessing. Sponsoring the conferences may have allowed them to increase their exposure, but it did little to advance their reputations as scholarly research organizations. If anything, what their involvement demonstrated was that, at times, some of the country’s most talkedabout think tanks have little influence in shaping key policy issues. Despite the apparent success of the constitutional conferences and the highly visible role played by the think tanks, the government wasted little time eliminating several publicly funded research institutions in its February 1992 budget. Acknowledging that there were research institutes in Canada which were capable of supplementing the policy capacity of government (a reference, no doubt, to the five think tanks involved in the constitutional conferences), Mulroney argued that it no longer made sense financially to support such institutes as the Economic Council of Canada, the Science Council of Canada, the Law Reform Commission, and the Canadian Institute for International Peace and Security (Abelson and Lindquist 1997). What he failed to point out was that the majority of private think tanks in Canada lacked the resources to mount the extensive research programs undertaken by the close to two dozen institutes the government was disbanding. Mulroney may not have been concerned about the potential implications of eliminating several sources of policy expertise, but his successor apparently is. The Chrétien government has recently indicated a strong interest in strengthening relations with the external policy research community through the Privy Council Office’s Policy Research Initiative (pri). Not surprisingly, a number of think tanks have figured prominently in several of the pri’s meetings. How important a role think tanks play in enhancing the policy capacity of various government departments and agencies remains to be seen. The role of think tanks in the constitutional conferences requires scholars to think more critically about the contribution that research institutes make to public policy. If think tanks are simply expected to serve as policy instruments of government and provide tantalizing morsels of information to the media, then there should be little cause for concern. On the other hand, if they are expected to serve as important sources of policy expertise, than their participation in the Renewal of Canada conferences should raise some eyebrows. At the very least, scholars should begin to pay more attention to how and to what extent think tanks exercise influence. Only then can we make more informed observations about their role in the policy-making process.

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notes 1 A series of background papers on the various themes explored in Shaping Canada’s Future Together were released by the Federal-Provincial Relations Office (fpro) before the constitutional hearings began in the fall of 1991. The papers were edited by Ronald Watts, director of the Institute for Intergovernmental Relations at Queen’s University, who had been seconded to the fpro in April 1991. The background papers were intended to provide additional information and insights into the many constitutional reform proposals outlined by the federal government. Among the titles released were Responsive Institutions for a Modern Canada, Canadian Federalism and Economic Union, and Aboriginal Peoples, Self-Government, and Constitutional Reform. 2 The C.D. Howe Institute, unlike the other think tanks involved, did distribute background papers prior to the conferences. 3 This observation is confirmed by Harrison (1992, 5), who stated: “If the conferences were to be based on openness, then it was paramount that the process used to develop them be as neutral as possible. A key decision in this regard was the decision to invite five independent institutes to sponsor the first four conferences ... It could be argued that the only way in which potential concerns about ‘manipulation’ could be minimized was by handling considerable authority to these outside bodies.” 4 Information about mission statement obtained from apec’s home page, www.apec-econ.ca. 5 Canada West Foundation, Annual Report 1997, 6. 6 Niagara Institute home page, www.niagarainstitute.com. 7 The origins of the C.D. Howe Institute can be traced to the creation in 1958 of the Private Planning Association of Canada (ppac), which was established “to undertake research on educational activities and economic policy issues.” In 1973 the ppac merged with the C.D. Howe Memorial Foundation to become the C.D. Howe Research Institute (hri). In 1981, the hri was dissolved and the Foundation and the reconstituted ppac became the C.D. Howe Institute. 8 Data obtained from survey distributed by author to Canadian think tanks in the fall of 1997. 9 The apec’s entire budget in 1998 was $593,722. 10 Figures quoted in a news release, “Constitutional Conference Costs,” issued by the Constitutional Conferences Secretariat, 14 January 1992.

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7 Cooperation and Conflict: Group Activity in R. v. Keegstra SHA NN ON ISHIYA MA SMI T H E Y

The adoption of the Charter of Rights and Freedoms brought many changes to Canadian politics. A number of the chapters in this volume document the extent of those changes. Constitutional politics has been democratized in some respects, by reducing the role of regional bargaining and elite accommodation and encouraging political activity of interest groups.1 Groups that were formerly excluded from or marginalized during legislative debates can now pursue their policy agendas through the courts. While these changes are viewed as positive by some scholars, they are rejected as negative developments by a range of others, including many in this volume.2 Whatever one’s view of Charter litigants, it should be recognized that important aspects of Charter litigation are a continuation of typical political behaviour by interest groups. The Charter served as a catalyst for change among some groups, but I argue that it should be seen as accelerating, rather than transforming, some standard aspects of interest-group behaviour. There are a number of standard interest-group behaviours that continue in the Charter era. To begin with, groups participate in politics, including political litigation, for a number of reasons. At base, they do so because they perceive it to further their interests. They seek to influence public policy, but they may also “have a variety of priorities, many of which have nothing to do with influencing policy” (Baird 1999). Groups may participate in politics in order to gain status (Brodie 1996) or to express a commitment to a particular “organizational mission” (Caldeira and Wright 1988). They may also use political

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participation to maintain their organization by demonstrating their utility to members, either by achieving material benefits for members or by providing solidarity through the pursuit of members’ ideological goals (Sorauf 1976; Wilson 1973). And, groups may form coalitions when doing so seems to enhance their chances of achieving their goals (Hojnacki 1997). Though it expanded the opportunities for interest groups to pursue their goals in court, the Charter did not invent Canadian political litigation. Interest groups had litigated for political purposes prior to the Charter’s adoption (Epp 1998; Roach 1993). The Charter, and the Court Challenges Program, which provided funds for constitutional lawsuits, spurred interest-group litigation. It did not, however, change the most basic reasons for interest groups to participate in litigation. Groups are litigating under the Charter to further their own goals – to influence public policy, to express their ideological commitments, and to cater to the expressive interests of their members. This fact is clearly evident in the group activity surrounding the case of R. v. Keegstra (1990). In that case the Supreme Court of Canada was asked to decide whether the laws punishing “hate speech” were acceptable under section 2 of the Charter. A significant number of groups intervened in the case. The patterns of interaction between these groups and the arguments they offered in their facta provide ample illustration that interest groups continue to pursue the same kinds of goals through Charter litigation as they have pursued through other forms of political activity. While it would be pointless to deny that significant change has occurred, it is also important to recognize that the Charter has widened political opportunities for interest groups, without necessarily revolutionizing the nature of interest-group politics in Canada.

t h e lib eral/pos t -lib e r a l d e bate Much of the debate over the Charter has been described as taking place between those who consider it a good thing (Charterphiles) and those who reject it (Charter skeptics). This division does not, however, capture the full nature of disagreements over the utility of the Charter. Interest groups cannot invariably be classified as Charter supporters or Charter detractors. Though some may reject the Charter as a whole, it would be wrong to assume that they do so for the same reasons. Similarly, it would be wrong to assume that those who generally like the Charter all want it interpreted in the same ways. There are significant disagreements among supporters and among detractors of the Charter which flow from differences in their goals. Charter detractors

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on the left offer different objections than those presented by detractors on the right.3 There are also strong differences among Charter supporters, who disagree about the goals that the constitution should be interpreted to meet. I argue that these differences emerge from the different ways that groups see the Charter affecting their ability to realize their goals through the Charter. In this chapter I address one of the key disagreements among the Charter’s supporters – the conflict between liberal and “post-liberal” views of Charter rights. The liberal view is based on a fear of state power. Liberal groups argue for Charter interpretations that promote individual freedom by limiting the state. In contrast, post-liberal groups espouse an egalitarian argument. They contend that state action is often essential to counteract societal inequality. Therefore they want the Charter interpreted to support state action when they perceive the government to be protecting disadvantaged groups. This difference among Charter supporters is well illustrated by the group conflict in R. v. Keegstra. By asking the Supreme Court to decide on the constitutionality of laws punishing hate speech, the case pitted libertarian interest groups (who express a commitment to freedom of speech) against egalitarian groups (who support targeted government censorship). The case attracted a significant number of interveners, who lined up on opposite sides of the liberal/post-liberal debate. By analyzing the arguments they made in Keegstra, I hope to demonstrate how group participation was guided by group commitments to achieving symbolic goals and furthering the expressive goals of their members. Bateman (1998) has argued that there are two competing constitutional visions in Canada, one liberal and the other post-liberal. The liberal view considers the state a threat to individual freedom because it has the power to deprive individuals of their ability to make choices for themselves. The liberal approach argues that freedom results when state power is limited. Rights, therefore, are seen as trumps against government interference. They can be used to stop the government but not to compel it to provide anything. The emphasis is on keeping individuals free by keeping government in check. From the liberal perspective, the Charter’s role is to protect individuals by restraining the government.4 The post-liberal view is quite different. Post-liberals view rights in a more socially constructed way, with government serving a facilitator, rather than a threat, in many instances. They contend that social interaction, especially in a market economy, leaves individuals subject to a great deal of inequality. State inaction, enforced through rights-astrumps, does nothing to remedy that inequality. Post-liberals want the

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state to intervene in order to ameliorate social conditions. For them, as Bateman (1998, 6) argues, “the assertion of rights is associated not only with limiting state power but also with extending it.” Justice Bertha Wilson provided one example of this view in McKinney v. University of Guelph (1990) when she argued, “It is, in my view, untenable to suggest that freedom is coextensive with the absence of government. Experience shows the contrary, that freedom has often required the intervention and protection of government against private action” (582–3). Post-liberals want the Charter interpreted to provide positive as well as negative rights, particularly when it comes to ensuring greater protection for traditionally disadvantaged groups. They are very concerned with the inequalities that have been experienced by women, indigenous peoples, ethnic minorities, homosexuals, and the physically handicapped. They want the Charter interpreted in ways that will benefit these groups in particular, in order to establish a more “just” society.5 Because of their ideological commitments, post-liberal groups will be neither universally supportive nor universally hostile to Charter claims. We should expect them to oppose the government when they consider it hostile toward their view of equality, but to defend government action when policies embody their “progressive” agenda.6 The groups with which they align themselves in constitutional cases will vary along these same lines. We should not assume that liberal and post-liberal groups will always be at odds. Liberals object when the government actively discriminates on the basis of “irrelevant” characteristics such as race, sex, religion, or ethnicity.7 Therefore, in cases where government policy passed out benefits to men but not to women, or to whites but not to blacks, or to Christians but not to Jews, liberals and post-liberals would be allies, attacking the government for violating the equality provisions in section 15.8 The two sides would also be allies in attacking government policies perceived to be oppressive. For example, both sides could agree on Charter claims brought against the police for violating the rights of criminal defendants, particularly if the defendants belong to minority communities.9 However, when Charter cases bring individual liberty into conflict with claims for equality and multiculturalism, liberals and post-liberals will find themselves aligned against one another because of differences in their organizational commitments.

t h e h ate s peech c o n t r ov e r sy R. v. Keegstra is just this sort of case. James Keegstra, a public school teacher and Holocaust denier, regularly made anti-Semitic remarks to

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his students. They were expected to base their exam answers on his remarks; those who did not received low grades (Mahoney 1997, 98). Alberta prosecuted Keegstra for violating the Criminal Code prohibition against wilful promotion of hatred against a group on account of its colour, race, religion, or ethnic origin. After being convicted at trial, Keegstra appealed, arguing that section 2(b) of the Charter of Rights and Freedoms protected his right to express his views.10 Alberta countered that the Charter allows governments to censor the expression of racist views in order to promote multiculturalism and equality for all. Thus the case directly pitted liberal arguments for free speech against post-liberal arguments for egalitarian censorship. Liberals defend freedom of speech without regard to the views that are being expressed. Freedom of speech is a key liberal value.11 For liberals, the free exchange of ideas is essential to the development of individual capacity to reason and make choices. Robust debates present individuals with an essential opportunity to develop the capacity to think productively, and to learn from mistakes, by requiring individuals to defend their ideas and choose among alternatives. All ideas, however wrong, must be allowed to compete in the marketplace of ideas because censorship will disrupt the learning process. Allowing the government to exclude ideas from the competition creates the possibility that society will be deprived of the truth (if the government is wrong) and deprives individuals of the opportunity to realize their full intellectual potential by defending the truth against false ideas (if the government is right). The answer to “bad” speech is more “good” speech, never censorship. Censorship endangers society’s capacity for democracy because it blunts the ability of individuals to make choices as part of the process of self-government.12 Speech is another area where liberals see freedom as maximized by government inaction. Post-liberals, on the other hand, see a greater role for government in maintaining “meaningful” freedom of expression. In the abstract, the absence of censorship may seem to allow everyone to participate in the debate. In reality, however, everyone is not equally free to be heard. Societal inequalities mean that opportunities to participate in the debate are distributed unequally. For example, candidates who can afford more television advertisements enjoy more effective freedom of speech. Post-liberals also argue that certain kinds of expression are inconsistent with democratic self-government. Democratic governments need not tolerate all manner of anti-democratic expression in order to foster self-government. In fact, the expression of anti-democratic views may undermine democracy by encouraging intolerance for other members of society. This argument is particularly clear in the post-liberal approach to hate speech. Post-liberals argue

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that members of vulnerable groups are often silenced by vitriolic attacks from racists and sexists. They contend that government ought to take an active role “to discriminate among certain types of speech to exclude that which is degrading to vulnerable groups” (MacKay 1997, 73). By intervening to outlaw hate speech, the government will actually improve the quality of public debate by ensuring that vulnerable groups are not effectively excluded from the marketplace of ideas. The disagreement among the parties in the Keegstra case nicely illustrates the liberal/post-liberal divide over hate speech. James Keegstra relies squarely on liberal arguments for free expression. He argues that the state must be neutral in its approach to expression, allowing individuals to assess the validity of arguments for themselves. Permitting the government to silence speakers based on their point of view creates a dangerous precedent that leads down the slippery slope to censorship of ideas merely because they displease those in power (Keegstra’s factum, 6). This process presents a clear threat to the ability of the people to govern themselves. Keegstra also argues that “it is more consistent with both equality and respect for individual dignity that the law tolerate all expression rather than appear favourable to one or the other” (ibid., 13). Echoing John Stuart Mill, he also contends that speech should only be regulated if it is harmful to society – for example, if it leads directly to “breech of the peace.” In defence of the law, Alberta makes a series of post-liberal arguments. It contends that individual members of vulnerable groups are harmed by hate speech. Because of its extreme nature and the damage it does, hate speech should not be considered part of the expression protected by the Charter. The province urges the Court to interpret section 2(b) in light of section 27’s commitment to “multiculturalism,”13 so that hate speech would be excluded by definition from Charter protection. Freedom should be interpreted in light of the need to respect the rights and dignity of other members of society. Outlawing hate speech would allow the province to promote a greater sense of equality and mutual respect by protecting vulnerable racial and religious minorities from verbal attack. Provincial inaction would do nothing to combat the serious threat that Alberta considered hate speech to be.

int ervener argume n t s The controversial nature of the case attracted a number of interveners, who lined up on opposite sides of the liberal/post-liberal debate. Ten parties filed facta as interveners before the Supreme Court. These

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Arguments offered in facta against the law in Keegstra

Arguments Offered by Both Keegstra and the CCLA Hate Speech is not a significant problem in Canada. The state should be allowed to censor only when direct harm is involved. Minority views are more likely to be silenced if the state is allowed to censor. Censorship allows the state to silence good speech along with bad. Hate speech laws lead people to censor themselves. The definition of hate speech is impermissibly vague. Arguments Made by Keegstra Only Censorship undercuts respect for equality and dignity. Keegstra honestly believes the truth of his statements. The truth or falsity of a claim should be considered when allowing regulation of speech. Hateful statements are not bad per se, but merely opinion. Laws against hate speech did not prevent the Nazis from enacting laws against minority groups. Arguments Made by the CCLA Only Canada should foster an active marketplace of ideas. Laws intended to limit speech should be per se invalid under section 2(b). Free speech is a very high priority in a democracy. Allowing censorship allows the government to limit the opportunities for minority views to compete effectively in the political process. Multiculturalism can be protected without reliance on censorship Prosecution of hate-mongers calls more attention to them than merely ignoring them would.

facta represent an attempt to influence the direction of public policy, essentially by lobbying the Supreme Court to write the filer’s view of the Charter into official constitutional doctrine.14 In its factum, each intervening group laid out legal and philosophical arguments designed to lead the Court in a particular constitutional direction. Only one of the interveners, the Canadian Civil Liberties Association (ccla), filed a factum in opposition to the law. The others filed in support of Alberta’s position. The interest groups in support of the law included B’nai Brith Canada, the Canadian Jewish Congress (cjc), the Women’s Legal Education and Action Fund (leaf), and a group called Inter Amicus. The attorneys general of Canada, New Brunswick, Manitoba, Ontario, and Quebec also intervened on Alberta’s behalf. This pattern of conflict and cooperation was not based on long-standing loyalties or antagonisms between the parties, but instead reflected their particular ideological and policy commitments.

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The ccla’s support of Keegstra flowed directly from its commitment to liberal values. The organization was founded as a protest against proposed increases in police powers that many considered excessive. Its primary mission is to protect individual rights from abrogation by the state, particularly in the areas of expression and procedural rights. This position clearly reflects the suspicion of state power that is common to liberal thought. The organization’s motto, “The freedom of no one is safe unless the freedom of all is safe,” reiterates the liberal argument that the state should not be allowed to play favourites when it comes to regulating individual rights.15 This perspective is evident in the arguments the ccla offered in its factum in the Keegstra case (see table 7.1). At no point does the ccla endorse Keegstra’s anti-Semitism. While Keegstra attempts to defend his views as true, the ccla grants that the sentiments he expresses are examples of bigotry. The key to its argument is that this is irrelevant. Because free speech is an essential democratic value, no law that sets out to limit speech (whatever its nature) should pass constitutional muster. Allowing the government to discriminate based on viewpoint creates a dangerous precedent. Once the principle of viewpoint discrimination is established, the government will have gained the power to skew the public debate so that disfavoured groups (such as racial and religious minorities) can be excluded. For this reason, the ccla argues that multiculturalism (something James Keegstra certainly does not support) is best protected by assuring everyone equal access to the marketplace of ideas, not by allowing the government to selectively exclude would-be participants. The ccla also argues that the most effective way to combat hate speech is to ignore it, rather than draw attention to it through prosecution, or to let it be defeated in the marketplace. The arguments offered only by the ccla demonstrate the strength of the organization’s liberal commitment to freedom of expression. A variety of parties intervened in opposition to the ccla’s position. The coalition of government attorneys and private interest groups offered a series of reinforcing post-liberal arguments in favour of upholding the law (see table 7.2). The national government and four provinces came to Alberta’s defence. This support makes intuitive sense, given that all the provinces have human rights code and that they share authority under the Criminal Code to punish hate speech. Supporting Alberta’s position helps them maintain their own power to regulate expression. This approach is consistent with provincial behaviour in other cases, in which attorneys general have “urged the Court to adopt the interpretive choices that would minimize the vulnerability of their legislation to Charter challenges” (Riddell and Morton 1998, 474). This general pattern should not be interpreted to mean

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Arguments offered in facta in support of the law in Keegstra Alta Can Man NB Ont Que BB CJC IA LE

Hate speech is anti-democratic Freedom of speech is not an absolute S. 2 “expression” should not be interpreted to include hate speech The Court should rely on s. 27 when defining expression Hate speech is a real problem in Canadian society Hate speech victimizes vulnerable groups Hate speech threatens the equality guaranteed in s. 15 Freedom must be exercised with respect for the freedom of others Hate speech conflicts with concerns for personal dignity of all people International treaty support for equality supports laws against hate speech The law should be allowed because it protects vulnerable groups

X

X

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X X

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Alta = Alberta; Can = attorney general of Canada; Man = Manitoba; NB = New Brunswick; Ont = Ontario (which was jointly filed for the case of R. v. Andrews); Que = Quebec; BB = B’nai Brith; CJC = Canadian Jewish Congress; IA = InterAmicus; LE = Women’s Legal Education and Action Fund X = argument appears in the factum

that the provinces inevitably support one another in Charter cases. For example, Ontario has intervened, along with the national government, in language rights cases to oppose the policies of the other provinces (Riddell and Morton 1998, 475). Here, however, there is a great deal of overlap between the human rights commitment of the various governments, which makes them constitutional allies. Since government attorneys tend to support state authority against Charter challenges, the positions they take often bring them into conflict with post-liberal groups. For example, in defendants’ rights cases, government attorneys usually intervene to support state power, while post-liberals generally argue for broader Charter rights. Even in equality cases, government have come into conflict with post-liberal egalitarianism. For example, in Andrews v. Law Society of British Columbia (1989), five provinces intervened in support of a British Columbia law that limited the right to practise law to Canadian citizens, based on a

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narrow interpretation of section 15’s equality provision. In opposition, leaf and the Coalition of Provincial Organizations of the Handicapped intervened to argue that the Court should produce a broad definition of equality, so that governments would be forbidden to discriminate on the basis of many characteristics that were not listed in section 15 (Roach 1993). Often, then, we can expect governments and post-liberal groups to square off against one another. However, as Riddell and Morton (1998, 475) note in the context of arguments over section 1, Charter interpretation is “not a simple game of interest groups versus governments.” Though it may seem obvious to say so, what matters most is whether governments and groups share policy goals or not. Post-liberal interest groups supported the governments’ position in Keegstra because their policy goals were the same. Each of the interest groups supporting Alberta has a strong commitment to fighting discrimination (against women and/or religious and ethnic minority groups).16 The law against hate speech is consistent with this goal. Since provincial policies embodied the preferences of leaf, B’nai Brith, the cjc and InterAmicus, the groups assisted in their defence. Provincial and group preferences converged, so they found themselves on the same side. The idea of policy convergence does not, however, explain the groups’ choice to intervene in the first place. If obtaining preferred policy outputs is the primary group goal, why should groups intervene to support a policy that is already being defended by government attorneys? Governments have “enjoyed substantial success in Charter litigation,” and they have significant legal and financial resources to bring to bear (Roach 1993, 175). In contrast, group resources are scarce. Why, then, should group leaders choose to make a significant commitment of resources when they can “free ride” off the efforts of the government? Even though Canadian interest groups receive government funds to support their litigation activities (Epp 1998; Morton and Knopff 2000), there are still real constraints on their resources that might mitigate against redundant claims.17 It is possible that certain groups think they have something extra to offer, so that they intervene to make arguments which the government attorneys do not. Some evidence from the United States supports this idea. The U.S. Supreme Court’s rules for amicus curiae encourage groups to provide arguments that do not duplicate those of the parties to the case (Spriggs and Wahlbeck 1996). Epstein and Kobylka (1992) suggest that U.S. amici routinely follow this dictate by raising important issues that were not raised by the parties, which have influenced the development of law. Behuniak-Long (1991) also found that groups provided a number of arguments which were not present in

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the party briefs and that some of these worked their way into the Court’s opinion in Webster v. Reproductive Health Services (1989). So perhaps leaf, B’nai Brith, the cjc, and InterAmicus intervened to provide something that was missing from the various government facta. In fact, analysis of the arguments offered in Keegstra does not support the idea that groups were motivated to intervene by the desire to add independent information. What leaps out from the data is the significant degree of overlap among the facta of all the parties (see table 7.2). The interest groups do not provide a single argument that cannot also be found in very similar form in at least two of the government facta filed. Instead of specializing in specific types of arguments, most of the participants weighed into the dispute in similar ways on similar issues. Though there may have been slight differences in emphasis (B’nai Brith and the cjc put more emphasis on the damage done by anti-Semitism than did leaf, for example), the overall impression is one of “piling on,” rather than of issue specialization. This pattern is consistent with more recent studies of U.S. amicus curiae behaviour, which have concluded that “amici arguments largely replicate those of the parties on the key points” (Epstein, Segal, and Johnson 1996, 849). The degree of redundancy makes the interest-group intervention seem somewhat irrational from a resource perspective,18 if we assume that policy outputs are the key factor motivating litigation. The evidence suggests that these groups had goals that transcended the particular dispute. This conclusion underlines the point that Charter litigation serves a number of purposes for groups besides securing favourable public policy. Groups may litigate for a host of reasons that have little to do with the instant case. They may take on cases out of a sense of organizational mission or to please their members (Caldeira and Wright 1988; Sorauf 1976). Litigation may help groups achieve such symbolic goals even when judges decline to adopt their preferred policy position. The groups fulfilled a series of symbolic goals through their participation in Keegstra. Each of these groups is characterized by its expressive commitment to a particular set of social values. Their members join, based on shared philosophical commitment.19 B’nai Brith and the cjc have organizational commitments to combating anti-Semitism. Their members expect them to weigh in on cases that involve direct threats to the Jewish population. Similarly, leaf is committed to fighting discrimination against women through section 15 litigation. It has therefore chosen to participate in cases that have implications for the interpretation of section 15, even when women are not directly

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involved in the case. This was true in Andrews, and it was true in Keegstra. Keegstra presented all these groups with an opportunity to provide their members with symbolic representation by expressing their values through constitutional litigation. The behaviour of these post-liberal groups is consistent with the idea that bringing suit, or intervening in existing litigation, is driven by ideological commitment and membership concerns. It is also consistent with Pal’s point (1993, 119–20) that “Charter politics have mobilized Canadians in terms of more specific identities.” Participating in constitutional litigation is one way for groups to express their sense of identity and to reinforce the idea that the group is a worthwhile representative of its community (Wilson 1973). On these grounds, there is some benefit to be gained from intervention, even if one’s arguments merely reiterate those offered by government attorneys. Groups with a liberal orientation have pursued a liberal vision of the Charter, while organizations committed to post-liberal egalitarianism have pursed a post-liberal vision of constitutional equality. Litigation has clearly been one way for organizations to reinforce their group identity, satisfy their members, and act upon their ideological commitments.

c onc lusion Cooperation and conflict among interveners in R. v. Keegstra reflected the various goals of the interest groups participating in the case. Mirroring differences in their ideological commitments, their arguments were arrayed along a liberal/post-liberal divide. While some observers tend to lump all Charter-supporting groups together, this study illustrates the shifting nature of coalitions among interveners. Some cases will bring liberal and post-liberal groups together to argue against government programs, and others will realign the debate, so that liberals find themselves opposing government attorneys, and post-liberals find themselves cooperating with them. R. v. Keegstra is an example of the latter sort of case. It pitted liberal free-speech interests against more post-liberal interests in social equality. This same division is evident in a number of other Charter cases that set liberal values at odds with egalitarian policies. For example, in R. v. Seaboyer (1991) the Supreme Court heard a challenge to a “rape shield” law that automatically excluded evidence of a rape victim’s sexual history from trial. In the case, the defendant made the liberal argument that he should be allowed to use all potentially relevant information to defend himself against the criminal charge. The law’s

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supporters argued that the introduction of a victim’s sexual history assumed sexist notions about women’s sexuality and served to prolong the suffering of rape victims by effectively putting them on trial. In that case, the ccla took the classically liberal position by stressing the importance of due process rights for the accused. In defending the law, leaf emphasized the feminist position that sexual assault is one of a number of aspects of aggression against women in society. Again, the ccla and leaf found themselves on opposite sides, thanks to the liberal commitments of one and the post-liberal commitments of the other. A similar division arose in R. v. Butler (1992), when the Supreme Court decided the constitutionality of laws criminalizing obscenity. In that case the ccla again made the libertarian argument that expression which does not directly incite violence should be protected by section 2(b). In contrast, leaf once again put forth the egalitarian argument in support of regulation. In Bulter it argued that women and children are exploited and “objectified” by pornography. On this basis, leaf contended that pornography encourages men not to treat women like full members of the community, thereby undermining the possibility of equality for women. Once again, liberals and post-liberals, who are often allies when opposing the government, find themselves divided by divergent ideological commitments.20 The Supreme Court may have helped continue the debate between liberal and post-liberal groups because it has not come down definitively on either side. In Keegstra and Bulter the Court sided primarily with the post-liberal groups. However, the justices did not go as far as the post-liberal interveners asked them to. The Court rejected postliberal requests to declare that hate speech and pornography were not “expression” within the terms of section 2(b). In both cases it acknowledged the ccla’s claim that there was a great deal of societal benefit to be derived from maintaining a system of free expression. The Court found that both laws infringed section 2(b), but then went on to uphold the laws as reasonable limitations under section 1. The majority was persuaded in both instances that expression should be limited to further societal equality (see, for example, Mahoney 1997). This outcome is clearly very encouraging for leaf and the other equalityseeking groups. However, the Court sided with the liberal position in Seaboyer, deciding that the rights of the accused should predominate over government attempts to protect rape victims.21 Thus, by accepting a number of arguments offered by both sides and by giving an occasional win to each, the Court has effectively encouraged the debate to continue.

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not es 1 See, for example, Cairns 1991; Dobrowlsky 1997; Epp 1998. 2 Peacock is particularly condemning of the ways in which Supreme Court justices have altered the workings of the Canadian political process by acting on conceptions of social reform and substantive equality. 3 Charter skeptics on both sides argue that the Charter departs from democracy by empowering unaccountable judges. However, right-wing skeptics (e.g., Knopff and Morton 1991; Morton and Knopff 2000) claim that the Charter has given too much power to “equality seekers,” while left-wing skeptics (e.g., Bakan 1997; Mandel 1989) argue that the Charter is a source of significant inequality in Canada. For more on this discussion, see Sigurdson 1993 and Smithey 2001. 4 The Charter’s liberal overtones have attracted criticism from left-wing Charter skeptics, who argue that the Charter has unwisely imported liberal individualism from the United States, thereby inhibiting the government’s ability to redress societal inequalities (for example, see Mandel 1989; Bakan 1997). 5 What post-liberals see as eliminating disadvantage to bring about equality, others view as gaining special advantages. On this basis, some commentators have argued that post-liberals are claiming special (rather than equal) status, since they often demand extra consideration. The debate over homosexual rights, discussed by Mark Rush in this volume, often turns on whether anti-discrimination laws that protect gays are according them the same rights as everyone else has or special rights that others lack. For a more general discussion of “special” status under the Charter, see Brodie 1996. 6 For more on this point, see Riddell and Morton 1998 and Brodie 1996. 7 Liberals argue that success should be based on individual merit. Individuals should not suffer discrimination on account of an accidents of birth (such as race or sex). Racial prejudice resembles the “ascribed status” that liberals found so unsatisfactory about aristocratic forms of government. For more on this point, see Ball and Dagger 1999. 8 Section 15 (1) declares: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” 9 For further discussion of “liberal constitutionalism” and defendants rights, see James Kelly’s chapter in this volume. 10 Section 2 declares: “Everyone has the following fundamental freedoms ... (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

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203 Group Activity in R. v. Keegstra 11 This discussion owes much to John Stuart Mill’s argument in On Liberty. Other liberal theorists have expanded on Mill’s arguments, but most of their claims echo his concerns. 12 On this point, see Meickeljohn 1961. 13 Section 27 declares: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” 14 Interest groups use facta, also known as briefs, when seeking judicial influence because it is the primary avenue available (unlike the many opportunities that groups have to lobby legislators, group access to court is strictly limited). Judges often “borrow” arguments from party and group facta when they explain the reasons for their decision. In addition to providing justification, briefs help judges (and give influence to groups) by cutting judges’ information costs. Rather than examining issues “tabula rasa,” judges can draw on the analysis presented in briefs. Briefs also provide judges with some indication about sources of political support and opposition to potential decisions (for example, see Epstein and Knight 1998). In this way, facta can be an important indicator of a court’s strategic environment. For more on courts and their strategic considerations, see Manfredi’s chapter in this volume. 15 For more on the ccla’s commitments, see www.ccla.org/. 16 leaf declares that it is a “national non-profit group working to promote equality for women and girls in Canada [u]sing the equality provisions from section 15 of the Canadian Charter of Rights and Freedoms as a basis to advance women’s rights” (www.leaf.ca/leaf01.html). The cjc declares that one of its primary objectives is “to investigate anti-Semitism and to devise means of overcoming its influence universally and in Canada in particular; and to promote the growth of a spirit of toleration, understanding and goodwill between all segments of society within a multicultural Canada” (www.cjc.ca/cjcaims.htm). B’nai Brith declares that the organization “is dedicated to combating antisemitism, racism, and bigotry” and that its objectives include “the protection of human rights of all Canadians, the development of positive inter-community relations and the elimination of racial discrimination and antisemitism” www.bnaibrith.ca/league/league.htm. 17 The problem of scarce resources is particularly troublesome for expressive groups, such as those that intervened in Keegstra. Hojnacki (1997, 70) notes, for example, that “compared to those organizations representing tangible or corporate interested, groups representing expressive interested generally must work harder to raise funds, maintain the support of a relatively amorphous clientele and keep the public and decision makers focused on their concerns.” 18 On the other hand, it is possible that group leaders feel that judges are

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204 Shannon Ishiyama Smithey more likely to accept arguments they hear from a variety of sources (Behuniak-Long 1991). Hojnacki (1997) suggests that this same logic may apply in group decisions about lobbying. The appearance of broad support, particularly when it combines support from the national government, the provinces, and several major interest groups, may have a significant impact on judicial assessments of the strategic context of decisionmaking. Judges may be more willing to back policies that enjoy a wider range of support. This strategic argument would, however, provide more insight into why groups might want to recruit government interveners than why they would intervene subsequent to government involvement in a case. 19 For a discussion of the distinctions between material and expressive groups, see Jenkins-Smith, St. Clair, and Woods 1991, Hojnacki 1997. The expressive groups discussed here seem primarily interested in achieving symbolic victories related to their status in the community, rather than in getting courts to redistribute material benefits in their direction. However, one may argue that court decisions which involve issues of group status (such as coverage by section 15) have a direct bearing on the redistribution of resources. In the age of affirmativeaction programs, groups that are deemed to have been discriminated against in the past are awarded advantages that others, which lack such official status, are denied. 20 A similar disagreement occurred along liberal/post-liberal lines in the United States when the American Civil Liberties Union clashed with feminists over the constitutionality of pornography laws (Kobylka 1991). Differences in constitutional provisions in the United States and Canada, as well as public attitudes toward equality in the two countries, may explain why the U.S. Supreme Court has rejected egalitarian efforts at censorship while the Canadian Supreme Court has sometimes been willing to balance away libertarian speech interests in the name of protecting women’s equality. 21 The Court also took a liberal position in R. v. Zundel, [1992] 2 S.C.R. 731, in which it invalidated, on free-expression grounds, the conviction of a Holocaust denier for “spreading false news.”

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part f o u r The Culture of ConstitutionMaking in Canada

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8 Deeper and Deeper: Deep Diversity, Federalism and Redistributive Politics in Canada MIC HA EL LUSZT IG

Canada’s historic fascination with constitutional tinkering over the past seventy years has rarely been fruitful. Implicit have been laudable objectives, including the construction of a national sense of community and the resolution of the “Madisonian dilemma,” the quest to reconcile minority protection with majority rule. The putative objective, then, in the language employed in this volume, is to construct a “just” or “efficient” set of institutions. In Canada the contemporary manifestation of these objectives is the attempt to protect and/or foster diversity in terms of culture, race, gender, sexual orientation, and a host of other ascriptive and ideologically based classifications within a liberal democratic (majoritarian) polity. The principal proponents have spawned a school of thought known variously as “difference theory”, “multicultural citizenship,” and “deep diversity.” This chapter makes two claims. First, the codification of communal rights based on characteristics other than those that offer free and full mobility are destructive to a country’s national sense of community, and hence undermine a large part of the agenda that its adherents seek to advance. Put differently, it is very difficult to limit logically the contagion of group-specific rights to a wide range of groups seeking redistributive benefits. Second, conservative (depicted here as procedurally liberal) commentators on Canada’s constitutional problems have been too quick to dismiss the arguments of “deep diversity’s” proponents. Instead, a variant of deep diversity that does afford full and free mobility – that is, a stronger commitment to federalism and provincial autonomy – is consistent with conservative opposition

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to social engineering and centralized control of the policy-making apparatus. This chapter unfolds in four sections. First, it lays out the objectives of the “deep diversity” school. Specifically, it discusses the rationale for, and means by which, a national sense of community that resolves the Madisonian dilemma is realized. The second part examines the underlying inconsistencies of the deep-diversity school. The third advocates a re-evaluation of conservatives’ wholesale dismissal of deep diversity. And finally, the conclusion summarizes the findings and highlights their implications.

deep diver sit y The concept of deep diversity is most clearly associated with its articulator, Charles Taylor, although it is consistent with other authors who seek to expand the definition of liberalism to encompass protection of minority groups through specific institutional arrangements.1 Deep diversity demands the recognition that individuals can belong to the larger society in a number of different ways. Taylor (1993, 181–4) suggests that some Canadians, largely in English Canada, have insisted on what he calls “first-level diversity,” which demands that all Canadians’ sense of country – their patriotism, or means of belonging to the larger society – be uniform. By contrast, deep, or second-level, diversity recognizes a more plural means of defining a sense of country. Operationally, it entails recognition that, for some, a sense of belonging involves being a bearer of individual rights; whereas for others, that sense of belonging is manifested in the recognition that rights can be held by minority cultures (see also Taylor 1992). By extension and at its core, deep diversity expounds the logic that liberalism is more elastic than many Western cultures, including coq (Taylor’s omnibus classification for Canada outside Quebec) are willing to concede. Expanding on Ronald Dworkin’s (1978) ideas, Taylor suggests that traditional liberalism operates according to the principle of proceduralism. That is, it institutionalizes the idea that individuals are best able to determine the life choices that will maximize their personal utility functions; as a result, they should enjoy autonomy to pursue the good life as they see fit. The state’s role is passive; it should not substitute a socially/collectively determined conception of the good life for the individual. Indeed, the state should advocate few ends, instead serving only to protect the means or procedure through which individually determined goals can be achieved. But this procedural lens is too limiting, according to Taylor. Liberal society need not focus on individual autonomy to the exclusion of

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socially determined conceptions of the good life. Indeed, how could it? If society were truly an aggregation of individually constituted utility functions, aspects of social coordination necessary for social life would be absent. Societies need certain foundational rules – official language or languages, common weights and measures, and road rules applicable to all, to cite just a few examples. Game theoreticians might argue that such rules, because they are in the interest of all, will arise spontaneously in what are known as “assurance games.” But even such basic rules as these will have to be regulated or enforced by the state. And moreover, even basic rules are rarely content-neutral. They will have a constituency dedicated to their preservation and constituencies, often minority ones, opposed to them. Constituencies dedicated to the preservation of certain road rules might be trivial; those dedicated to language of instruction in schools are not. Institutions, in other words, have the propensity to reflect the values of their creators, who in turn tend to represent the dominant culture in society. As a consequence, because all societies implicitly promote certain core values through their institutional structure, different conceptions of liberalism acquire meaning. All liberal societies, in other words and within prescribed limits, restrict individual autonomy in the name of preserving core values. One need look no further than conscription during times of war to make the point. For majority communities, cultural preservation is not an issue. Market forces, if we may call them that, ensure that the institutional preferences of the majority prevail.2 In other words, there is no imperative for the state to limit individual autonomy as a means to protecting a cherished way of life (a way of life, more specifically, that constitutes the basis of our identities and values), save for grave emergencies such as war. As a result, procedural liberalism does not come at the price of risking cultural survival. For minority cultures, however, market forces are insufficient to protect a cherished way of life. Language and other cultural attributes may be threatened in the face of an institutional structure that reflects majority preferences. Minority cultures, then, may have to be more explicit in the articulation and protection of core values than do majority cultures. These cultures, according to Taylor, may tend to operate according to the principle of substantive or end-oriented liberalism. This dichotomy between procedural and substantive liberalism provides the basis for Taylor’s justification of special status for Quebec. Quebec’s claim for special status is born merely of a differential interpretation of liberalism. Canada’s core constitutional problem is really one of misunderstanding. coq, locked into a mindset of procedural liberalism, is seen by Quebec as culturally imperialistic. Quebec, committed as it is to substantive liberalism, is seen as anti-liberal by coq.

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Mutual acceptance of the fact that liberalism comes in two forms, Taylor suggests, would ease suspicion. Such acceptance may well necessitate two distinct institutional structures. In other words, all Canadians must recognize the need for an asymmetrical form of rights and representation that recognizes the deep diversity inherent within two conceptions of the good society.

prob lems with deep d iv e r sit y Deep diversity has attracted a good deal of support within Canada. This support has come almost exclusively from the political left. The right has eschewed the concept, largely because of its inherent logical and logistical flaws. Probably the toughest part of deep diversity to swallow is the dichotomous view of liberalism inherent in the procedural-versus-substantive divide. There are two problems here. First, procedural and substantive liberalism are not dichotomous concepts; they are continuous. Second, substantive liberalism is not liberalism at all, but a qualification or negation of liberalism.3 I address these points in turn. While liberalism is an elastic concept, at its core is the notion of individual autonomy. Liberalism is based on the idea that individuals are pre-social, endowed with certain inalienable or natural rights. Given the well-known shortcomings of life in a state of nature (where individual autonomy is complete), individuals sacrifice autonomy for the security and protection afforded by social living. All such social living, then, constitutes a limitation on individual autonomy in the name of some socially/collectively derived conception of the good life. In other words, a truly liberal (or a truly procedurally liberal) society is an unattainable objective outside a state of nature. Moreover, and as noted above, social living inevitably entails more than a limitation on autonomy in the name of safeguarding our natural rights. All societies articulate and advance core values at the expense of the individual. Taxes for the construction of roads protect no natural rights, except in the most indirect way, but they constitute an obvious limitation on individual autonomy. Another way of putting this point is that all societies have illiberal qualities; all societies feature aspects of “substantive liberalism.” Societies that reflect majority, or non-threatened, cultures are afforded the luxury of fewer limitations on liberalism. Minority cultures, by contrast, and for the reasons articulated in the last section, are not. This is not a normative statement, but an empirical one: Quebec, by the logic supplied by Taylor, is not a differently liberal society; it is a less liberal one. But this conclusion does not obviate Taylor’s point. If

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liberalism is a continuous, rather than a dichotomous, good, the degree of liberalism necessary for enjoyment of the good life is a matter of taste. If the majority in Quebec prefers a less liberal society, who is coq, with its own limitations on individual autonomy, to determine for Quebec the optimal degree of liberalism to allow? But, some will argue, limitations on individual autonomy in less liberal societies tend to take the form of a secondary evil: discrimination. Discrimination can be defined as differential limitations on individual autonomy, often based on ascriptive characteristics. Certainly, Quebec is guilty of discrimination, and to a degree distasteful to most in coq. But coq also features differential limitations on individual autonomy. To take just a few examples, the constitution institutionalizes differential limitations on individual autonomy through affirmative-action provisions in section 15(2). A “progressive” income tax has the same effect. So, while discrimination based on language might be distasteful, it differs from other forms of discrimination inherent in more procedurally liberal societies in form, not in fact. In large part, it seems to me, conservative objection to Taylor’s notion of deep diversity lies in the language he employs. Certainly, to suggest that substantive liberalism is but another, morally equivalent form of liberalism is an attempt to obfuscate the fact that Quebec is a less liberal society than most in coq would prefer. But this statement should not be taken to mean that the coq-Quebec divide is one based on wholly incompatible conceptions of how to limit individual autonomy. Rather, it is based on a difference about where to draw the line on the limitation of autonomy. A more serious problem for Taylor, one that he skirts in “The Politics of Recognition,” is that of which minority cultures to privilege with institutional structures dedicated to their preservation. In trying to make the claim that Quebec is deserving of special status, he introduces a logic that appears to be applicable to a far wider range of minority cultures. This is the most difficult problem with which difference theorists must come to terms. Many fail to articulate a decision rule that extends beyond personal preference (often disguised as “context”; see Lusztig 1999).4 Indeed, this problem may be reconceptualized as the Rawlsian paradox, discussed in the introduction to this volume as well as in Hudson Meadwell’s contribution. The absence of a decision-rule that determines which minority cultures to privilege obliges difference theorists, if a play on pop culture jargon is permitted, to “think outside the veil.” That is, it requires apparently arbitrary decisions as to how efficient institutions should be replaced with redistributive ones. I think that Taylor would reject the idea that he be obliged to articulate a general decision-rule as to why some minority cultures are

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eligible for special protection. For him, substantive liberalism requires only that minority cultures are provided the means to defend themselves within reasonable bounds. Conversely, other difference theorists – and to his mind, this is the principal pathology of the multiculturalists – oblige us to “recognize the equal value of different cultures; that we not only let them survive, but acknowledge their worth”(Taylor 1992, 64). In part, then, Taylor buys into the free-market aspects of liberalism. Cultural survival is a product of demand (assuming that we can ensure the supply). Our obligation ends there. We need not determine which cultures are deserving of admiration. Indeed, we are not capable of making such an evaluation, rooted as we are in our own cultural norms. Our choices are either evaluation based on chauvinism or, as the multiculturalists would have us do, to determine that all cultures are of equal merit. The former is axiomatically undesirable; the latter is insincere and hence condescending. Taylor, at least in “The Politics of Recognition,” thus appears to sidestep the imperative of justifying why Quebec, but not all other cultures, should be privileged with explicit recognition. He is not saying this at all (he could justly claim). He merely suggests that reasonable protection be afforded minority cultures. After this criterion is satisfied, let the chips fall where they may. By this logic, special status for Quebec is not based on the recognition that that its culture is superior to any other. Rather, it is founded on the imperative that the dominant English-Canadian culture not choke off the institutional lifeblood necessary for Quebec’s cultural survival. In some of Taylor’s other writings, however, he is more affirmative in justifying special status for Quebec. Here there is the assumption that Quebec is constitutive of Canada, and that the basis of the country’s founding, as well as the imperative of its survival, supplies its own logic for Quebec’s special status. He invokes the compact theory of Confederation to suggest that la nation canadienne-française entered into Confederation as a means of national protection. Insofar as dualism constituted a raison d’être of the original constitutional settlement, its continued existence need not be justified (see especially Taylor 1993). Taylor appears to present a moving target. There are two distinct arguments here. Argument A, from “The Politics of Recognition,” is that liberalism is sufficiently elastic to require that substantively liberal minority cultures be afforded reasonable levels of protection in order to ensure their survival. There is no mandate for selecting – and indeed, no basis to select – deserving minority cultures. Argument B is that national self-interest and historic compromise dictates Canada’s obligation to recognize (and privilege) Quebec’s distinctiveness. Of

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the two, argument A is the less defensible. There are two inherent problems here. First, how much protection is necessary to ensure survival of cultural minorities? Second, why does Taylor privilege culture as the basis for the protection of collectivities? The first question is merely a rearticulation of an earlier question: Which minority cultures are we to privilege? The degree of cultural protection necessary to ensure the survival of one minority culture may be insufficient to protect another. The survival of the FrenchCanadian nation, a logistical proxy for which is the province of Quebec (Taylor 1993, 163), requires far less institutional reconstruction than would, for example, the survival of the myriad Native cultures sprinkled throughout the land. Even more complex would be an institutional structure that guaranteed the survival of non-status Indians’ culture(s); and again more complicated would be one to protect the Métis culture. My point is that there is no uniform policy prescription that would satisfy the criteria demanded by substantive liberalism – the guarantee of (minority) cultural supply – applicable to all minority cultures. By definition, then, protection of minority cultures demands a priori determination of which cultures are to be protected. Taylor’s argument in “The Politics of Recognition,” in other words, does not relieve him of the imperative to articulate a decisionrule as to which cultures are to be privileged. The second, larger, problem with argument A is that to equate substantive liberalism with cultural protection is to limit the logic of the argument arbitrarily. Put differently, Taylor pitches his tent on the slippery slope of deep diversity, but seems wilfully blind as to the consequences. He concedes, but then fails to amplify, that argument A can be extended to the realm of other marginalized groups. However, the thrust of his thesis is that (ethnic) culture provides the lens through which individuals make sense of their world. Culture, then, is foundational; it is constitutive of identity, and identity is the basis for meaningful life choices. Surely, though, other lenses exist with which to provide context (or foundation) for identity and life choice.5 By this logic, special institutional arrangements should be available for groups whose members’ identities are shaped by other ascriptive characteristics. Marx, for example, made the case that social class, and not culture, was the foundational basis of true identity. As a result, the institutional structure of the modern state should (and would) be organized to reflect this fact. Feminists argue that gender is the lens through which our social and political life is best understood. This position is the basis for their demand for special status for women. Natives, the disabled, and homosexuals have made similar claims for explicit recognition and special status under the

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equality provisions of the Canadian Charter of Rights and Freedoms, as have more esoteric groups, such as the “environmentally sensitive” (Brodie 1996, 259). In short, any rent-seeking group advocating special institutional – and indeed, constitutional – arrangements can use Taylor’s logic as the basis for its own assertion as to the foundational nature of its pet ascriptive characteristic and its subsequent claim for group-specific institutional or constitutional rents.6 Taylor’s logic, in other words, creates the foundation for an infinite range of groups seeking redistributive benefits in the name of group protection. Argument B also is not problem-free. For example, Taylor’s assertion that Quebec is entitled to special status as a consequence of the original founding compact is without historical basis. Not only do the Confederation debates falsify the myth that Canada originated as the locus of two great nations, but the logic that colonies had the sovereignty to enter into such a compact is remarkably tenuous. It is made more so by the fact that the legislatures of both New Brunswick and Nova Scotia rejected the Confederation compact, thus undermining any mandate that the governments of these two colonies had to act as sovereign entities.7 The fact that Quebec, the locus of la nation canadienne-française, did not even have status as a colony in the founding process makes the so-called two-nations compact theory even less compelling. However, other aspects of argument B are more intruiging. Specifically, two points emerge. First, Quebec is necessary for the survival of the country. And second, the terms of the constitutional founding do provide the institutional basis for the satisfaction of Quebec’s core institutional demands.

deep diver sit y : wh at c a n w e sa lva g e ? The underlying objective of this chapter is to illustrate that the logic of Taylor’s deep-diversity argument is not wholly inconsistent with the arguments put forward by (procedurally) liberal commentators, and indeed, it may constitute the basis for a solution to Canada’s seemingly intractable constitutional problems. To summarize, traditional liberal opponents of the deep-diversity school take umbrage at two aspects of Taylor’s argument(s). First, they tend to disagree with his position that Quebec, a substantively liberal society, is merely “differently liberal.” And second, they typically reject the idea that it is entitled to special constitutional or institutional status. I have already dealt with the first objection. If we accept two points – that no society is wholly liberal and that Quebec is less liberal than coq – we can sidestep the issue of substantive-versus-procedural liberalism. If no society is wholly (procedurally) liberal, then the

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Canada/coq distinction is merely one of degree, not kind. The second objection is also easily met. Special status for Quebec is reconcilable with a (procedurally) liberal framework. It is consistent with the guarantee of community autonomy inherent in federalism. Federalism, by its very nature, is dedicated to the protection of cherished ways of life adopted by regional communities that feature voluntary membership. It is consistent, then, with the fundamental liberal tenets of free agency and individually derived conceptions of the good life. It is also about special status for Quebec – and for every other province in the country. And although Taylor (1993, 164–5) makes the claim that special status for Quebec works best in tandem with centralized government in coq, the logic of his position is just as compelling if the requisite of centralized government in coq is removed. The most appealing elements of Taylor’s arguments – A and B – may be nested in the framework of federalism. The logic of federalism is consistent with the proposition in Argument B that Quebec is constitutive of Canada, but it provides superior justification for Quebec’s special status than does his reliance on the compact theory of Confederation. Federalism emerged (and evolved) as an institutional foundation of Canada to deal with some of the same issues that we are grappling with today. How do we protect the rights of minority cultures in the context of a democratic (majoritarian) system of government? In other words, federalism was put forth as one means of solving the Madisonian dilemma. It allowed for the maintenance of the cultures associated with the geographic communities that were constitutive of Canada at the time of its founding. No matter what the (unspoken and unwritten) intentions of the founders were, in other words, federalism as a basis for special status was constitutionally entrenched through a series of nineteenth-century decisions of the Judicial Committee of the Privy Council. The compact theory of Confederation enjoys no such legitimization. Federalism also is consistent with Argument A, insofar as it allows for the protection of minority cultures where sufficient demand for such protection exists.8 However, the logic of federalism is more discriminating than that advanced by difference theorists. It provides the institutional basis for the protection of a discrete number of minority cultures. While this provision might seem arbitrary to some, it is no more so than the prescriptions put forth by most difference theorists: special status based on whatever ascriptive characteristic(s) strikes the proponent as socially relevant. Moreover, federalism is less arbitrary than its opponents might claim. Indeed, it is consistent with the logic of argument A that society need only provide the institutional basis for minority culture

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protection, and afterward let the chips fall where they may. Special status for minority cultures based on geographic representation allows for two important considerations: a degree of mobility that ascriptively based representation does not and a clear indication of who belongs to the minority group and who does not. Mobility is extremely important. Liberalism mandates that individuals enjoy sufficient autonomy to articulate and act upon their own conceptions of the good life. At a minimum, this involves allowing individuals the choice of moving into communities that are most conducive to their pursuit of the good life and out of communities that are less so. Status-holding communities that are based on geography obviously offer greater levels of such mobility than are communities based on more ascriptive criteria, such as gender, skin colour, or bloodlines. Thus we come to the second important consideration. Geographically based communities offer clear guidelines as to membership. Reside in the geographic limits of the community and you are a member of that community; don’t and you are not. Ascriptively constituted communities are far more ambiguous and potentially more chauvinistic. The graceless response to defeat by leaders of the Parti Québécois following the 1995 referendum helps to make this point. A number of ranking pq ministers, including party leader Jacques Parizeau himself, suggested without subtlety that outsiders within Quebec (folk who were not among the “peuple Québécois, nous”) had distorted the referendum vote, and that in the absence of “money and the ethnic vote,” the result might have been different (Mackie 1995). The obvious implication was a dual standard for community membership – those who were ethnically part of the “peuple Québécois, nous,” and those residents of Quebec who constituted “money and the ethnic vote.” True community membership in this case, then, was conceptualized in ethnic terms, rather than on geographic considerations.

c onc lusion Throughout this chapter I have made the argument that procedural liberals are too dismissive of Taylor’s arguments. Perhaps the point could be better made by suggesting that deep diversity adds very little to the traditional logic of “states’ rights” inherent in federalism. Subnational units, by their very nature, constitute the locus of minority communities, and each community, again axiomatically, produces its own (minority) culture. In essence, federalism does what Taylor demands from arguments A and B. More to the point in the context

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of this volume, it is consistent with an efficient institutional framework – one that could be expected to emerge from behind the veil of ignorance. Equally important is what the logic of federalism does not do. It does not provide the basis for a universal logic of constitutional redistribution. The logic of federalism does not provide the rationale for gender-based representation. It does not supply the justification for a patchwork of racial and ethnic fiefdoms. It is not a recipe for chauvinism and bigotry disguised as minority protection. Federalism is a free-market means of protecting minority communities, including Quebec. If Quebec society wishes to maintain aspects of illiberalism that are unappealling to other Canadians, federalism allows it to do so. Is it right? Taylor is correct in saying that commentators in coq are unqualified to say. Indeed, he is correct in suggesting, along with Kymlicka, that liberalism demands that we not force greater degrees of liberalism on less liberal societies. So long as certain broad parameters – those consistent with natural rights, including free and full geographic mobility – are met, less liberal (or substantively liberal) societies must enjoy a degree of autonomy. Geographic mobility is critically important here. Not only does this mobility ensure that the standards of fairness and voluntary association inherent in liberalism are met, but it encompasses a dynamic element. Societies featuring free and full mobility will change over time. As societies become more advanced, they create and cling to values that we associate with procedural liberalism. Chauvinism, then, is less likely to remain institutionalized when market forces associated with free and full mobility expose it to superior modes of community identity. It is probable that Taylor recognizes the inherent similarities of his arguments to federalism. This is likely the reason that he goes out of his way to distance himself from the logic of federalism in “Shared and Divergent Values.” Indeed, he suggests that special status for Quebec should not come at the expense of the virtues of centralized government in coq. His prescription therefore is asymetrical federalism, with Quebec enjoying powers not available to the other provinces (Taylor 1993, 164–5). This logic is specious and very difficult to defend. If we are not in the habit of picking and choosing those who deserve special status, then the logic that bestows such status should apply uniformly. To Taylor’s mind, the cultural differences between Alberta and Ontario may be non-apparent. They are more obvious to others, who bristle at the very idea that coq shares a uniform history and culture. In the end, despite the sophistication of the presentation, there is nothing very new about deep diversity’s justification of special status

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for Quebec. It is a good argument, but only because its core reflects a more traditional one. Stripped of ad hoc justifications, it is reducible to the solution put forth, to the mirth of many, by former bc premier William Vander Zalm: Give Quebec special status – and make sure the other nine provinces get it as well.

not es 1 Among the most prominent of these are Young (1990) and Kymlicka (1989; 1995). 2 Implicit in this statement is a debate about the nature of institutions. Some, such as Riker (1980), argue that institutional structures are sufficiently dynamic to reflect the underlying preferences of the majority within society. Others – Sheplse (1986) is the best example – suggest that institutions reflect the frozen preferences of those who created them at the time they were created. Dynamic social preferences versus “structureinduced equilibrium” constitutes a debate that need not concern us here. In either case, majority preferences ultimately inform the institutional structure of the polity. 3 Meadwell makes a similar point in his contribution to this volume. 4 Others, such as Young (1990), suggest that oppression writ large is the normative basis for special treatment. Only a few – Kymlicka (1995) is the best example – attempt to provide decision-rules that limit the logical universality of their prescriptions. Even Kymlicka’s work, however, is not free from logical anomalies (see Meadwell in this volume; Kukathas 1995; Walker 1997; Lusztig 1999). 5 My argument here is not original. Walker (1997) makes the same point in criticizing Kymlicka’s conceptualization of culture as foundational. 6 Even in the very volume in which “The Politics of Recognition” appears, one commentator expresses mild disappointment that Taylor is not more sensitive to his argument’s applicability to gender (Wolf 1992). 7 Instead, as Vipond (1989) points out, the compact theory of Confederation has been propogated merely as a means of justifying provincial autonomy (see also Rogers 1931). 8 This is the rationale for a federal system of government: constituent units “must desire to be united, but not to be unitary” (Wheare 1953, 36). The fact was recognized in Canada in the 1840s. One of Lord Durham’s recommendations, the reunification of Upper and Lower Canada, was premised on the desire to assimilate French Canadians into English language and culture.

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9 Is a “True” Multination Federation the Cure for Our Ills? HUD SON MEA D WE L L

Is identity politics compatible with a form of liberalism that is superior to liberal constitutionalism? Some defenders of identity politics argue that the political recognition of (at least some) group-specific identities is thoroughly liberal. From their point of view, core liberal commitments of individual freedom and social equality can be met in the diversely plural societies of the contemporary world only when the political recognition of group (collective) rights occurs. Liberal constitutionalists, however, are reluctant to concede the liberal high ground to arguments that endorse this type of political recognition. These debates have played out in interesting and important ways in Canada. Aboriginal populations, old-stock European immigrants, and new stocks of twentieth-century immigrants have created a variegated mix of groups and individuals. Various kinds of new social movements have raised other issues of diversity, unrelated to multiculturalism or multinationalism. What political arrangements should we support in this society? In this chapter, I focus on only one dimension of this complex debate, but it is a central part of the larger question. Imagine Canada without Quebec and Quebec without Canada. The secession of Quebec would reshape, in unpredictable ways, the field of political forces that currently influence these debates within Canada about how political regimes are to be constructed and public policies fashioned in the face of diversity. As a consequence, I want to examine an important argument about how the country can be kept intact – an argument that directly takes up the challenge for liberalism posed by the politics of identity.

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Will Kymlicka (1998b) has argued that there are only two options to consider if we are to succeed in resolving our current impasse. One is to paper over differences between Quebec and Canada through the continuing reliance on ambiguous constitutional language. The other is to create the institutions of a multination federation. He chooses the latter. In this chapter, I critically discuss the arguments made by Kymlicka to support this choice. I do not engage in this exercise for the sake of supporting the first option. Rather, I want to suggest that multinational federalism is not feasible; indeed, it is not obvious how much multinational federalism is desirable. I do not claim that this discussion undercuts every argument that might be used to support multinational federalism.1 Since Kymlicka has been so influential, however, questioning his justifications might pose problems for a wide range of arguments that draw on his work. Kymlicka’s work is a fine illustration of some of the issues that arise in work inspired by the Rawlsian conception of liberal justice. The work of John Rawls, from A Theory of Justice (1971) through Political Liberalism (1993) and The Law of Peoples (2000), has been austerely analytical. Proper names rarely appear. Kymlicka works in this tradition of liberalism and of analytical technique. In the course of his work, unlike Rawls, however, he has moved dramatically toward the concrete. His writing is peppered with names – of cultures, of nations, of states and of persons – both real persons and archetypical individuals who represent cultures and nations. His work has become more applied – not an application of analytical technique to a particular issue rather than to a comprehensive framework (although it is this as well), but analytical philosophy as applied to a particular case, Canada, and, in lesser detail, to other cases. Rawls (1993, 27), it might be noted, sees continuity between his own work and Kymlicka’s first book on liberalism and culture (1989), and Kymlicka sees little continuity between his own work and the “communitarian” criticisms made of Rawls. Rather, Kymlicka extends Rawls’s work by explicitly posing for a liberal theory of justice the problem of multicultural and multinational societies. He sees himself as working within a liberal tradition. And he does something that no pure analytical philosopher does – he turns to examine the historical world. He does so in a fairly stylized way: the history is glossed and put in the service of normative themes that could be and have been explicated in analytical philosophy and political philosophy without reference to proper names. As the introduction to this volume proposes, there is no original position in the historical world and no veil of ignorance, at least in the Rawlsian sense. Rather, there is politics – not justice as fairness, but justice as politics. Claims about justice are political claims when they

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are made in a historical context. Kymlicka has a political claim to make about Canada. It is this: a multination federation in Canada is both desirable and feasible. There are at least two challenges to the arguments made by Kymlicka in support of the claim that a multination federation is feasible. The first involves a consideration of how he puts the Canadian case in comparative perspective. One way to imply that a multination federation is feasible is to assert that it has occurred elsewhere and has been reproduced over time. Kymlicka does assert something like this. But this move appears to be more of a rhetorical device than an analytical argument. Hence this question: How reliable is the comparative assessment of multinational federalism provided by Kymlicka? Although the second issue to consider is not strictly a comparative problem, it is not exactly a normative issue either. Can we say what the dynamics of the nationalist movement in Quebec must be like if a multination federation is to be achieved and reproduced? Kymlicka does have a model of these dynamics, a model that leads him to conclude that a multination federation is feasible. Hence this second question: How compelling is this model? I take up these two issues in the next two sections of the paper. Finally, I will need to address Kymlicka’s argument that multinational federalism is desirable. His argument about its desirability rests on the claim that multinational federalism is liberal. In the final section of the chapter, I dispute the way in which this claim is made. Kymlicka argues that no multination federation in the West has fallen apart. He is clearly thinking of Switzerland and Belgium. I agree that these are relevant cases, but for rather different reasons. Certainly, the West seems an appropriate reference point for comparison with Canada. These cases within the West may provide a more appropriate comparative context than multination federations such as Russia or India because fewer controls need to be introduced to make comparison possible. Within the West, moreover, Belgium and Switzerland seem more relevant than plurinational Spain, which is not yet a federation, and federal Germany, which is not multinational. Switzerland and Belgium are federations, but are they multinational? Kymlicka’s treatment of Switzerland is echoed by Brendan O’Leary, who calls the Swiss case “an embarrassment” (1998, 45, 64) for Ernest Gellner’s (1983) theory of nationalism, and for largely the same reasons why Kymlicka endorses the Swiss case: Switzerland, they both argue, is multinational, liberal, and stable. Neither Kymlicka nor O’Leary, however, establishes that it is multinational. So Switzerland may not at all be the “anomaly” (O’Leary 1998, 65) for Gellner’s

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theory, which, if it were true, would make plausible Kymlicka’s endorsement of Swiss politics. Rather, it may be a nation stratified by subnational differences. That is, it might be multicultural or multilingual but not multinational. This analysis is not inconsistent with Gellner’s theory. He is clear that not all languages or cultures will or can become nations (e.g., 1983, 48) and not all cultures are “independence-worthy” (1983, 119). If Swiss life has these qualities, then the Swiss case is evidence against Kymlicka. If Switzerland is the model to emulate, and if it is a nation stratified by subnational differences, then this should be the normative model for Canada, rather than multinational federalism. The territorialization of language communities does not entail the presence of a nation in any strong sociological sense. So the same question could be raised for the linguistic communities of Belgium. Have only the Flemish in Belgium made the full transition to nationhood? Leaving aside the Walloons, a linguistic group rather than a nation, even the Flemish people have made this transition in a distinctive way. Flemish nationalism has elements of irredentism; otherwise, why do the Flemish occasionally refer to themselves as “lost Dutch,” and why does the program of the Vlaams Blok describe a desire to be reintegrated into the Dutch lands? Further, Belgium has been federal for only a handful of years, and it is deeply embedded in the European Union. The claim that democratic multination federations are remarkably resilient therefore rests on little or nothing: the claim is limited to the West, and within the West, there are no cases. And there is another case to consider, Great Britain, which kept intact the composite structure of England, Scotland, and Wales for centuries and is still some distance away from federalism, despite the recent creation of legislatures in Wales and Scotland. This case belies Kymlicka’s claim that only a democratic federation can keep a multination state together. Why, then, does he use this comparative evidence? His discussion seems to imply that, because multination federation has been achieved elsewhere, it can be achieved in Canada. One can easily turn this device on its head. If multination federation has not been achieved elsewhere, why should we think that it can be instantiated and reproduced here? In Kymlicka’s version, Canada merely duplicates an existing pattern. It is so much like these other cases, the subliminal argument goes, that there are no reasons why it cannot be politically organized just like them – as a multination federation. Thus his reader can more easily entertain the possibility that multination federation is feasible. Let us consider what we can argue if we turn his comparative claim on its

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head. Once we do so, and if we want to claim that multination federation is feasible in Canada, we are led to argue that Canada is very unusual – so unusual that it will be the first case where a multination federation has been achieved and reproduced. We have to argue for a thesis of Canadian exceptionalism. From this point of view, it does not matter whether multination federation has been instantiated and reproduced elsewhere. If we accept the thesis of exceptionalism, we will be the first and will lead the way for others. Many Canadians derive a sense of satisfaction and superiority from their intuition that we are exceptional. I do not believe that the comparative evidence supports Kymlicka’s largely rhetorical claim about the feasibility of multinational federalism. There is no evidence that multination federations are stable. So what other grounds can be offered in support of multinational federalism in Canada? For the moment, however, there are other empirical matters to consider. Even if his rhetorical claim about the comparative evidence is abandoned, Kymlicka still has an argument about the dynamics of the nationalist movement in Quebec and why these dynamics will contribute to the stability of multinational federalism. He contends that Canada is not yet (what I call) a “true” multination federation, even if its institutions provide more self-government to Québécois than do the institutions of any other state in the developed West vis-à-vis their minority nations. He further argues that a true multination federation would be stable. To become such a federation, Canada must more thoroughly accommodate Québécois nationalism. And doing so would entail convincing English Canadians to accept a multination conception of federation. Kymlicka has moved some distance from an earlier argument: “[T]here seems to be no natural stopping point to the demands for increasing self-government. If limited autonomy is granted, this may simply fuel the ambitions of nationalist leaders ... Democratic multination states which recognise self-government rights are, it appears, inherently unstable for this reason” (1995, 182). He argued in this passage that there was a trade-off between justice and stability, similar to the trade-off recognized by liberal theorists with regard to minority rights (1995: 68). Multinational federalism was not in conflict with liberal principles, but it was unstable. Having made these points about multination states, however, Kymlicka did not like where they left him. “We are now back at John Stuart Mill’s argument that a stable liberal democracy must be a nation-state, with a single national culture” (1995, 186). Kymlicka had in mind here the famous passage from chapter 16 of Considerations of

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Representative Government (1862) in which Mill argues that a necessary condition of free institutions is that the boundaries of governments coincide with the boundaries of nationalities.2 He was a little nonplussed that his arguments had lead him in this direction, since he set out initially to distance himself from Mill (Kymlicka 1995, 49–74). Why in the space of three years did Kymlicka so fundamentally reverse positions? In 1995 he stated there was no natural stopping point to the demands that could be made in the name of self-government. In 1998 he advised Canadians to agree to further accommodation of Quebec. Did he present new evidence that would support the more recent claim that multination federations are stable? He did not re-examine evidence used earlier in order to justify new conclusions. But in order to avoid ending up in Mill’s position, Kymlicka no longer invoked the arguments that there is no natural stopping point to the demands for increasing self-government, that limited autonomy will fuel the ambitions of nationalist leaders, and that democratic multination states are inherently unstable. There are, he now believes, grounds for cautious optimism, and he points to supporting empirical evidence. “[T]he experience gained to date in Canada and abroad suggests that democratic multinational federations are remarkably resilient” (Kymlicka 1998b, 171). Apparently we are no longer stranded alongside Mill. There are limits to the demands for self-government that will arise within a multination federation. This reference to “experience” seems to largely abandon the earlier claim that “democratic multination states which recognise selfgovernment rights are … inherently unstable for this reason” (1995, 182), which had left him back at Mill’s position and therefore nonplussed and dissatisfied. The cases captured in the phrase “Canada and abroad” are apparently unstable and resilient at the same time. These cases are not terminally unstable. In his work specifically on Canada, in support of his optimism, Kymlicka argues that “countries like Switzerland, Belgium and Canada have not only managed their conflicts (so far) in a peaceful and democratic way, but have secured prosperity and individual freedom for their citizens” (1998b, 128). Elsewhere, however, referring to two of these same cases, he writes “even though they live in prosperous liberal states, with firm guarantees of their basic civil and political rights, the Flemish and Québécois may be moving down the path of independence” (Kymlicka 1998a, 112).3 On the one hand, Kymlicka argues, we can conclude optimistically that these states will endure as multination federations; on the other hand, they may be terminally unstable because some of their parts are moving toward independence. Perhaps they can be construed as

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moving toward independence because they are not yet genuine multination federations. In that case, however, the claim that these cases demonstrate remarkable resilience should be abandoned. On the other hand, if they are resilient and are not the genuine thing (a true multination federation), then surely we can ask why we need a true multination federation. In fact, Kymlicka needs to do more than simply modify the sense he attaches to these cases, which appears to be motivated by the desire to make a case for cautious optimism, thereby avoiding Mill’s “pessimism.” All that his reversal of positions does is to change causal assumptions about the empirical consequences of multinational federalism from causing instability to contributing to durability. If the secession of Quebec is consistent with liberal principles, why lament the instability of a multination federation? What is lost, in normative terms, when multinational federalism quickly leads to an independent Quebec, if you believe that this secession would be a liberal one? A multination federation would be stable, Kymlicka now argues, because it would preserve a direct sense of connection to, and participation in, pan-Canadian institutions for the minority nation. This is a great virtue of multinational federalism (1998b, 177–8). On the other hand, a true multination federation is also intrinsically asymmetrical. And the Canadian federation, since it is an incomplete multination federation, according to Kymlicka, must become more asymmetrical than it currently is. Increased asymmetry would accommodate the Québécois desire for self-government. Yet, according to him, such a desire generically “reflect[s] a desire to weaken the bonds with the larger community, and to assert the primacy and inherence of the minority’s national rights” (119). This is an awkward position. How can multinational federalism simultaneously preserve and weaken the bonds with the larger community? Entrenching asymmetry in order to satisfy the desire for selfgovernment would work to weaken the connection to pan-Canadian institutions. Québécois’ desire for self-government is intrinsically a desire for weaker bonds with the larger community. How can Kymlicka be “inclined to think that moving towards a multination federalism would not erode the existing bonds of social unity in Canada, and could indeed strengthen them” (180) when asymmetrical federalism – designed to accommodate Québécois nationalists through increasing self-government – would have the consequence of weakening panCanadian bonds? The answer may lie in his perspective on the dynamics of the Québécois nationalist movement that I examine below. Let me acknowledge, before moving on, the point he made that even weak bonds can endure. Presumably, however, strong bonds can be

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expected to have more durability than weak ones. And as bonds are weakened, they do become more fragile because they are easier to break altogether. At some point, weak bonds are really no bonds at all. Kymlicka makes a classic cognitive split between the good Québécois people and their bad leaders. Of course, he argues, Bouchard and Parizeau had a vested interest in maintaining that federal reform is impossible, but they do not speak for all Quebecers. Most sincerely want a renewed federation. They seek good-faith negotiations. Despite the continued rejection of their constitutional demands, they have twice voted against secession (1998b, 168, 180). Suppose that Quebecers do not want secession. I believe that such is the case. An unambiguous question about secession and independence would have failed far more dramatically than the 1980 or 1995 referendum questions. Why is it, then, that Quebecers have lost control of their leaders? Why are their leaders separatists, while they support a renewed federation? Why were their leaders allowed to set ambiguous questions? It is precisely this situation that is implied by this split between the good people and their machiavellian leaders – that the rank and file have lost the ability to control their political agents.4 How is it that elected leaders can so wilfully misrepresent the preferences of their constituency and yet have not been replaced? There are two explanations. They combine to rule out Kymlicka’s optimism about the stability of a multination federation. First, the leaders do not misrepresent the preferences of their constituency, as long as that constituency is nationalist. And that, of course, is the precondition for his analysis. He warns us that if Canada is to survive, we need to take nationalism much more seriously (1998a, 128). So let us take it seriously. And by his definition of nationalism, nationalists prefer more self-government, rather than less. So if political nationalists are not secessionists, they have settled for the second-best (less selfgovernment) because of constraints that make secession (which would supply more self-government) too costly. Second, even if their preferences are constrained, they can still agree to use the threat of secession in order to improve the degree of self-government that they possess. Of course, threats are useful only if they have some credibility. The public institutions of Canada encourage the use of the threat of secession within Quebec. They help to make the threat credible. If, in the last instance, voters pull back from going all the way, they still tacitly or explicitly endorse a secessionist public stance by their leaders because they believe this stance can improve the degree of self-government they hold. It is the public institutions of Quebec – its advantage in institutional capacity compared to the capacity of other minority nations in the West – that make this

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threat credible. Further moves toward asymmetrical federalism, and thus toward a true multination federation, would increase the institutional capacity of this nation, and thus the credibility of the threat to secede (although even credible threats can be rejected). Further moves also would eliminate some of the obstacles to, and constraints on, secession. A true multination federation will not solve the current impasse in Canada. But I do agree with Kymlicka that his first option (to “concoct a constitutional formula so vague and ambiguous as to allow the two sides to interpret it in dramatically opposite ways” [1998a, 146]) is not useful. So his analysis draws us out of the impasse only to land us in another. How did Kymlicka end up in this predicament? Despite his exhortation to take nationalism seriously, he sets limits on its importance. Despite their desire to be self-governing, he assumes that nationalists will settle for a multination federation even though independence would provide more self-government. Kymlicka argues that true multinational federalism is desirable and feasible. He spends time trying to persuade readers that the weak bonds of a true multination federation are durable. In this exercise in persuasion, he may concede that if multinational federalism is not feasible because its bonds are not durable, then it should not be pursued. But what is it about multination federation that makes it desirable and that leads him to engage in this analytical and rhetorical exercise in the first place? Kymlicka tailors his liberal theory to what he takes to be a brute sociological fact: the relevant society for most individuals seems to be their nation (1995, 92). The desirability of a multination federation is dependent on the desirability of liberal nationalism. “[L]iberals,” he argues, “should recognize the importance of people’s membership in their own societal culture, because of the role it plays in enabling meaningful individual choice and in supporting self-identity” (1995, 105); “access to societal culture is essential for individual freedom” (1995, 107), and the members of a liberalized nation have a deep attachment to their own language and culture (105). It is the nation and the nation alone that enables individual freedom. Notice that this line of argument provides no special warrant for liberal multinationalism. It does not supply exactly what Kymlicka needs. There is nothing in these claims that rules out “liberalized nation[s],” each located in a nation-state of its own. The passages quoted above are as much a justification for the latter as they are for liberal multinationalism. This is a problem for Kymlicka, as his perplexed response to his own argument, pointed out earlier, suggests. In

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order to get to where he wants to go analytically, he has to introduce a special plea that dramatically reverses his earlier arguments. Now he argues that there are limits to the demands for increasing self-government, if members of liberalized nations are to live within the same state. To this point, I have challenged this line of argument by rejecting the special plea. There is no evidence that multination federations are stable, and there are good reasons to think that the further accommodation of Quebec counselled by Kymlicka would simply fuel demands for even more autonomy up to outright independence. If such is the case, Kymlicka needs to address the question of Quebec secession: Are its justifications consistent with liberal principles? Having arrived back at Mill, Kymlicka conceded that perhaps he should take secession more seriously (1995, 186). Yet he does not; in the same passage, he states that liberals should not automatically oppose peaceful secessions, particularly when the result is two healthy liberal democracies where there used to be one (1995, 186). What does this argument mean, however? Does it mean that, after reflection, we could discover liberal reasons to argue that secession in such cases (he is thinking of Norway and Sweden and Quebec and Canada)5 is not justified? Or does he think that, even upon reflection, we would conclude that secession in these cases is justified by liberal reasons? At the end of the day, it does not seem to matter. Kymlicka’s ultimate justification for resisting secession depends on a claim about the political ecology of international society. “In general, there are more nations in the world than possible states, and since we cannot simply wish national consciousness away, we need to find some way to keep multination states together” (1995, 186). It is not obvious that this justification rests on any discriminating normative foundation. Is it uniquely liberal, for example? If secession is justified in normative terms for some set of cases because it is consistent with liberalism, must secession be forgone in these cases because it upsets the steady state or carrying capacity of international society? Moreover, some states cannot be reformed without making territorial fragmentation a very likely outcome of regime change. The very moment of reform may enable minority nations to break away. Should we give up reform in these cases in order to avoid the creation of new states? And the ecological argument needs further elaboration. How many states, of what modal size, can international society support? Perhaps Kymlicka’s argument about the carrying capacity of international society is not meant to have this kind of scope. Perhaps he simply means that secession should be avoided wherever possible. One reworked version of the argument might take this form: In all societies

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in which new state formation is not required to secure liberal values, secession should be resisted. I cannot claim that this is his position. However, something like it needs to be introduced to deal with the problem raised earlier. Taken at face value, his ecological argument would imply that we should place stability above liberal freedoms. Note how the reworked position differs from the original argument. The language is normative, rather than ecological. But for what normative reasons is secession resisted? Kymlicka does not address this question. He has never really come to normative terms with the act of secession. We could combine ecological and normative arguments. A simple form might be the following: Secession can be supported when liberal reasons can be invoked to justify the act of secession and when the new state would be viable without disturbing the carrying capacity of international society. Leave aside the difficulties in establishing the import of the latter criterion. And leave aside whether these arguments can be so easily combined: What, for example, are the implications for liberalism of telling a people that they should give up an option dear to them, and an option which is justified, because it is judged by others not to be viable? However these issues are addressed, we still need a liberal theory of secession to assess acts of secession, something that Kymlicka does not have. We do not need such a theory only if the normative dimension drops out completely, such that all that is left is the ecological argument. But how can the normative dimension disappear in work that was explicitly designed to provide an assessment of the normative bases of cultural and political institutions? The absence of an assessment of secession from the point of view of liberalism is a serious problem. This question would require a discussion of the normative literature on secession, since there are competing justifications for it. The dominant normative theory of secession is, in fact, liberal. It is associated with the arguments of Allen Buchanan. He was among the first entrants into this field, and his work has set out the parameters of discussion. His basic argument is that there is a qualified moral right to secede consistent with liberalism. There are two key steps in the argument. One is to show that group rights are consistent with liberalism. Group rights have two characteristics: they are ascribed to collections of individuals and can only be exercised collectively (Buchanan 1990, 74), and the goods they secure are collective goods. Group rights protect the value that individuals find in group membership (Buchanan 1990, 75ff.). This characteristic is entirely compatible with liberalism, Buchanan argues, as long as liberalism is understood as a moral, not an ontological, doctrine (1990, 80). Since the right to

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secede is a group right, it too is consistent with liberalism. The second step in the argument is to specify those justifications of secession that are consistent with liberalism. Not all justifications have this quality, but there is a qualified right to secede consistent with liberalism. This right is a remedial one and a remedy of last resort for serious injustice, specifically in the face of “persistent and serious violation of individual human rights,” “past unredressed unjust seizure of territory,” and “regional exploitation” (Buchanan 1997b, 310). Buchanan distinguishes his theory from “primary right theories” of secession, under which a group may have a “(general) right to secede even if it suffers no injustices, and hence it may have a (general) right to secede from a perfectly just state” (1997a, 40). An illustration of a primary right theory might take this form: “I would be inclined to support separation whenever separation is demanded by a political movement that, as far as one can tell, represents the popular will. Let the people go who want to go” (Walzer 1994, 197). There is a great deal of voluntarism in such a position, and no particular further moral justification is required if the popular will is to separate. Walzer’s moral threshold for the justification of separation is easier to satisfy than Buchanan’s threshold for secession. The primary criterion that must be met is not liberal, nor does Walzer place as much emphasis on the independent importance of territory and the state as does Buchanan. Instead, the basic criterion that must be satisfied if withdrawal is to be justified is democratic, and the result is much more permissive. Moreover, no particular further moral justification is required if the popular will is to separate. This criterion – the popular will – holds over a group. The group is the essential element of social and political organization and of moral justification. Territory is relevant only in relation to the community (Walzer 1983, 42–55). The state is simply the institution that maintains the boundaries between spheres of distribution (Walzer 1983, 15, 281; Miller 1995, 4). The first question that Walzer asks about distributive justice, for example, is how a group is constituted. “The primary good that we distribute to one another is membership in some human community” (1983, 31). Only as members “somewhere” can individuals share in other social goods. If these communities are to be full-blooded “communities of character,”6 moreover, they must be able to control admission and exclusion, actions that are the core of communal independence. Just as distributive justice cannot be a moral guideline in international society because international society is not a community of character, so it cannot hold in a domestic society that is not a community of character. If the community is so divided that no single citizenship is

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possible, then its territory must be divided because these acts of inclusion and enclosure – essential to self-determination – cannot be stably performed (Walzer 1983, 62). Distributive justice could not govern relations between these divided societies; the only moral principles that would do so are those that govern relations within international society – mutual aid and humane treatment – and these are not relations of justice (Walzer 1995, 293; 1993, 33–5). Boundaries and community must coincide; otherwise questions of justice cannot arise. The significance that Buchanan attaches to boundaries is different from the significance that flows from Walzer’s position. Boundaries count within Buchanan’s liberal position, even if they are arbitrary from the point of view of the distribution of communities. The right to secede, in his analysis, ranges not just over groups; it also ranges over territory, and territory has independent implications for the right to secede.7 Buchanan’s work has left some liberals, who want the right to secede to be something more than a right of last resort (a remedial right), in a dilemma. At this point, there is not yet a normative account of secession that is both different from Buchanan’s and also liberal. Comprehensive alternatives to his work tend to be presented particularly as democratic (rather than liberal) theories of secession, (e.g., Beran 1998; Copp 1997; Wellman 1995; Philpott 1995).8 The central question about Quebec that is not systematically addressed in Kymlicka’s Finding Our Way is whether the secession of Quebec is justified. It is not obvious that Quebec secession would be consistent with liberalism. Perhaps it would be consistent with a democratic account of the justification for secession. Recall, however, that Kymlicka’s theoretical agenda is to rework liberalism. And on the most important normative account of liberal secession, the conditions that produce a remedial right to secede may not apply in Quebec. There is some textual evidence from Multicultural Citizenship, however, to suggest that Kymlicka thinks that Quebec secession would at least not violate liberal principles because it would probably leave two healthy liberal democracies (1995, 186) and, we should add, two nation-states. In taking this position, he endorses (what he takes to be) Mill’s position. Yet he wants to disassociate himself from Mill. He wants to argue that a multination federation is superior to a nation-state. If Kymlicka is going to consistently reject his version of Mill’s position, he should reject the normative attractiveness of the nation-state. He cannot; he believes that liberalism and nations are connected because of how we are constituted as humans (an ontological claim) and because of the distribution and salience of different types of cultures (a sociological claim about the world). Still, not much is said about the

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legitimacy of secession. Kymlicka wants to argue for the normative superiority of multinational federalism despite the importance he is forced to attach to a liberal nation-state. It is better to be in a multination federation than in a nation-state, he wants to argue, but at the same time he argues for the liberal relevance of the nation-state. It appears that he does not have a coherent normative argument to justify the superiority of a multination federation. I want now to try to go a little further. To do so, I need to dispute Kymlicka’s premise that it is nations that enable individual freedom. It is this position that lands him in the predicament I have been pointing. to. This premise is equally compatible with a multination state and a nation-state. Kymlicka’s argument about the desirability of liberal nationalism has two problems. On the one hand, it is very permissive. It is one thing to argue that persons need access to a societal culture to be free, and another to claim that this culture must be a national culture, let alone that this must be a particular national culture. The requirement that we need to be embedded in culture in order to make meaningful choices should be satisfied by any societal culture. And Kymlicka’s solution to this problem is not really a solution. He seeks to avoid this problem by asserting that “societal cultures are almost invariably national cultures” (1995, 80). If we require societal culture to be free, and societal cultures are always nations, then almost by default we require nations to be free. There are simply no societal cultures that are not nations. And further, cultures that are not societal cultures are inferior. They are not complete enough to provide the context of choice required in order to make meaningful choices and to live a life of liberal freedom. Nations, in other words, are the absolutely fundamental bedrock of the social world. On what, however, does the assertion that societal cultures are invariably nations rest? It sounds like an empirical claim, but Kymlicka adduces no evidence to support it. The assertion appears to rest on little more than an arbitrary definition: societal cultures are nations, and nations are societal cultures. Moreover, the notion of societal culture is deployed in some places in his work (2001a, 25n18) in order to describe what is essential to modern liberal forms of governance. Here he sings the praises of the ‘“thinness” of a societal culture. But surely a national culture does far more; surely any national culture worthy to be described as such does too much for individuals to be described as a societal culture in this “thin” sense. Further, if societal cultures are “almost invariably” national cultures, then there is little likelihood that a common societal culture will be, or can be, shared across different nations. And so “modern liberal forms of governance” (Kymlicka 2001a, 25), because

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they depend on a societal culture that is common, also depend on a national culture. This conclusion would seem to drive a fatal wedge between liberalism and multinationalism. On the other hand, then, Kymlicka’s argument is also restrictive. It is not just that we need access to a societal culture to be free. His argument seems to draw on a broader claim, based in philosophical anthropology, that we need access to culture to be human (and, one might assume, access to a relatively complete culture at that). This claim is roughly that culture is constitutive of personhood – we are only individuated as persons within cultural systems of meaning. Let me assume here that there are societies in which persons are more or less unfree and societies in which persons are more or less free. Call them illiberal and liberal societies respectively. What makes these societies what they are as societies is inscribed at a more fundamental level than those qualities that make them liberal or illiberal. We do not need societal culture in order to be liberal in the same sense that we need societal culture in order to be constituted as human, unless the claim is that only humans can be liberal. It is true that Kymlicka is critical of other types of arguments that invoke constitutive relations as part of a philosophical anthropology. He distances himself from communitarianism, for example, because it posits a constitutive relationship between ends and identity (1998b, 91–2). However, he also argues that the differences between his views and those of communitarians are partly just a matter of scope (1998b: 92). People are bound to their cultures, whether these cultures are more or less illiberal or liberal. Societal cultures have to have these binding qualities (which approach the power he associates with constitutive relations); otherwise, individuals could disengage themselves from “contexts of choice” and move too freely from one culture to another for identity politics to be a concern at all. So against communitarianism, Kymlicka argues that individuals can and do revise their deepest ends. They can and do stand back and revise particular values or beliefs. They can abandon their most fundamental ends, perhaps because they can fall back on their national cultures, to which they are, therefore, even more deeply bound than to the constitutive ends invoked by communitarians. National culture is their bedrock. What a person can do with regard to his or her deepest values, that person cannot do with regard to his or her national culture. But again, as I pointed out above, Kymlicka (2001a, 25) also wants to claim that a national culture, because it is a societal culture and because a societal culture is not “thick,” serves (must serve) a lesser function than this. As they stand, these arguments seem to me to be incoherent. Liberal nationalism, it turns out, however, is consistent with some of

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our deepest needs, and it is for this reason that liberalism should be tailored to nationhood. Perhaps we should be comforted by this result. Notice, though, that in the last instance the result turns, not on a sociological fact or on a normative claim, but on an argument about nature – our nature as humans – and on an ontology that expresses what this nature is. “[T]he causes of this attachment [people’s bond to their own culture] lie,” Kymlicka suspects, “deep in the human condition, tied up with the way humans as cultural creatures need to make sense of their world, and … a full explanation would involve aspects of psychology, sociology, linguistics, the philosophy of mind, and even neurology” (1998b, 90). What does trimming liberalism to fit this picture say, other than that these creatures can sometimes be liberal? National identity is an appropriate basis for liberal politics, according to Kymlicka, precisely because it does not rest on shared values (1995: 92). (But what, then, does it rest on?)9 He makes a point of emphasizing that national identity lies outside the normative sphere (following the work of Yael Tamir [1993], see Kymlicka 1995, 105). But this is to concede that there is nothing inherently desirable, in normative terms, in national culture. Indeed, two national cultures could contain exactly the same values10 and still be individuated as different national cultures. Now, why do we need national culture in order to be liberals if liberal values can be identified independent of national culture? If being liberal means being committed to liberal values, and it means supporting those public institutions which preserve liberal values, the culture we need is a liberal one, and that culture can be identified and individuated independently of national culture. Kymlicka’s claim that “liberals should recognize the importance of people’s membership in their own societal culture, because of the role it plays in enabling meaningful individual choice and in supporting self-identity” (1995, 105) is beside the point. This recognition, when it means the acknowledgment of membership in a national culture or some other group-specific culture, is not essential to liberalism. “[T]he members of a (liberalized) nation [may] still have a deep attachment to their own language and culture” (1995, 105), but this is not what makes them liberal. What makes them liberal, very simply, is their attachment to liberal values and institutions – that is, to liberal culture. And since, according to Kymlicka, two national cultures can be equally liberal, individuated only by their different national identities, it cannot be national culture that makes persons liberal, even if every person who is liberal also has a national identity. The liberal point of view is not a point of view from nowhere; it is, rather, a point of view that is not intrinsically national and which does not depend in any philosophical sense on national culture.

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There are liberals in India and in Canada. “I am liberal and Canadian; she is liberal and Indian.” The values that we share as liberals have nothing to do with national identity. They are transnational and arise out of shared experience, stemming from the diffusion of a liberal tradition based in persons, books, political acts and institutions, myths, and memories – in short, this shared experience is rooted in a public culture that does not depend on national boundaries in order to be identified or experienced as liberal culture. Neither I nor this imagined Indian interlocutor are so shaped by our national cultures that we cannot identify what we share as liberals independently of our national identities. Of course, it is true that there is far more distance between this Canadian and this Indian than between an AngloCanadian and a francophone Quebecer. The latter share a history in ways that Indians and Canadians do not. But this fact makes no difference to the principle. And the principle is this: liberal commitments hold, independent of national culture. National identity is irrelevant to liberal practice and ideals. The institutions of a liberal public culture cannot be justified by invoking national identity, because liberalism does not depend in a philosophical sense on national culture. Liberal institutions are in place, not to protect a national culture, but to protect the practices of a liberal culture that can be identified independently of national culture. There is, Kymlicka claims, a great deal of convergence in values between Quebec and the rest of Canada. If this convergence is liberal, their public institutions express similar liberal values. The national identities of Quebecers and other Canadians are strictly irrelevant in assessing the liberal commitments expressed in their institutions and cultures. What difference does it make to liberalism that Quebec has a different national culture? The desire to preserve a separate and culturally distinct society, the urge to satisfy national identity and the desires it produces, may be a justification for a demand for greater self-government, but to offer these desires as grounds to justify such a demand is to invoke nationalism. It is not to offer a liberal justification. Culture may enable meaningful individual choice, and it may support self-identity. It may make the context of choice intelligible. However, “the insistence by the Québécois that their national autonomy and identity be protected, even though they share the same values as English-speaking Canadians” (Kymlicka 1998b, 151–2) is still a nationalist, rather than a liberal, commitment. Kymlicka wants to extend a liberal theory of justice by posing the problem of multicultural and multinational societies. In the process of

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extending liberal theory, he has descended from the heights of theoretical abstraction to the world of justice as politics. As they stand, however, his arguments do not provide support for multinational federalism in Canada. These are not the only arguments in defence of a true multination federation, but they are clearly among the most influential and the best. More needs to be done before a liberal should endorse a multination federation along the lines Kymlicka proposed.

not es 1 Michael Lusztig in this volume examines another influential set of arguments in the debate about Quebec – those of Charles Taylor. Kymlicka is far more critical of Taylor’s work on nationalism than he is of Taylor’s work on multiculturalism (see Kymlicka 1997, 2001a). And he has always been critical of Taylor’s dismissal of Rawlsian liberalism (Kymlicka 1989). For his part, Taylor has argued that Kymlicka works from a “basis that is firmly within a theory of liberal neutrality” (1992, 40–1, cf. Taylor 1994, 251). Kymlicka’s reworking of the liberal tradition, and of its greatest twentieth-century expression in the work of Rawls, is meant to be more of an internal critique than is Taylor’s criticism of liberalism. From Kymlicka’s point of view, however, Taylor does not provide a compelling alternative to a reworked liberal theory of justice. On Taylor and liberalism, recall that Rawls has proposed that the origins of liberalism are primarily Protestant (Rawls 2001, 8). Taylor’s Catholicism (which also suggests that he is not really a civic republican, given the historical hostility of republicanism to Catholicism) heavily influences his take on liberalism. On the religious dimension of Taylor’s work, consider his statement that “a purely cultural account of religion would be like Hamlet without the Prince” (1997, xv) and the penultimate paragraph of The Sources of the Self, where he affirms “the hope implicit in Judaeo-Christian theism and in its central promise of a divine affirmation of the human, more total than humans can ever attain unaided” (1989, 521; cf. Taylor 1994, 226–7). 2 There is this famous passage, but consider another passage where Mill argued something different. He approved of the composite structure of the United Kingdom in these terms, in referring to the union with Scotland: “a totally different system of law and very different administrative institutions may exist in two portions of a country without being any obstacle to legislative union.” “[L]ocal peculiarities and antecedents render considerable diversities desirable in the details of their government” (Mill 1991 [1862], 333, 335). This is not an argument that effec-

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3

4 5

6

7

tive free government depends on nationalism. Nor does it seem to be truly an argument for a “single national culture.” Do these “local peculiarities and antecedents” not constitute another culture and, in the Scottish case, a nation? This is not an endorsement of nationalism. If nationalism rests on the principle that the national and the political should be congruent, then these arrangements do not instantiate this principle. The Scottish nation did not possess its own political institutions, nor did the Welsh or the English. Further, British political institutions did not rest on a nation-state. In a more recent reprint of this paper, Kymlicka has made some revisions to this claim. He now includes the Scots and states that, “even though they live in prosperous liberal states, with firm guarantees of their basic civil and political rights, the Flemish, Scots and Québécois all have strong independence movements” (2001b, 92). Stairs (2000, 55) raises some interesting questions about constituency instruction. These are two very different cases of separation. The transition in the Swedish-Norwegian case was relatively easy because the Swedish government consented to the change. The Canadian government is obviously actively resisting. It has far more to lose than Sweden did. Consider the Swedish point of view at the time: “The principal object of Sweden in establishing the Union, was to obtain a safe frontier to the West. History shows that this frontier was repeatedly attacked from the Norwegian side, while Sweden was engaged in war to the east.” The union became less attractive when Norway claimed “separate diplomacy and separate Ministries for Foreign Affairs” (Sweden, Rikstag 1905, 9, 10). The union was something more than a defence pact, since shared political institutions were created, but it was not much more than that. These are “historically stable, ongoing associations of men and women with some special commitment to one another and some special sense of their common life” (Walzer 1983, 62). The distinction between domestic hierarchy and interstate anarchy, which is central to much of international relations theory, is doing some of the theoretical work in Buchanan’s writing. This is perhaps the reason why Pogge (1994, 113, 121n34) argues that Buchanan takes for granted the current system of sovereign states and adjusts his theory of secession accordingly. Buchanan’s perspective on international society is statecentric, but it is more Lockean than Hobbesian (Buchanan 1999). See also Freeman’s discussion (1996, 757–9) of Buchanan as a liberal realist and Rawls’s discussion (2000a, 360–2) of Hegel, where he distinguishes something like the liberal realism of Hegel from a “liberalism of freedom” in which a state has no substance of its own, but “is simply a

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238 Hudson Meadwell people living within an established framework of political and social institutions and making its political decisions through the agencies of its free constitutional government” (361). 8 But I should point out that the distinction between remedial and primary rights theories may not map completely onto the distinction between democratic and liberal theories. Wellman (1995, 143) calls Buchanan’s arguments liberal, but Buchanan (1997a, 39–40) argues that his theory is a primary rights theory. There may or may not be a democratic theory that is not a primary rights theory. If there is, whether such a theory is a remedial rights theory is another question. I leave these issues to one side in this chapter. 9 On this question, see Harty 1999. 10 In Finding Our Way (1998b, 150–2) Kymlicka refers to shared values, political principles, and political values. I refer simply to values.

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