Judicial Activism and the Democratic Rule of Law: Selected Case Studies 3030350851, 9783030350857

Citation preview

Sonja C. Grover

Judicial Activism and the Democratic Rule of Law Selected Case Studies

Judicial Activism and the Democratic Rule of Law

Sonja C. Grover

Judicial Activism and the Democratic Rule of Law Selected Case Studies

Sonja C. Grover Faculty of Education Lakehead University Thunder Bay, ON, Canada

ISBN 978-3-030-35084-0 ISBN 978-3-030-35085-7 https://doi.org/10.1007/978-3-030-35085-7

(eBook)

© Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

In honour and in memory of my parents Gina and David Gazan and my brother Albert who knew what democracy truly means and why it must always be cherished and is worth the struggle to defend.

Acknowledgements

I gratefully acknowledge the love and support of my husband Roshan and his unwavering encouragement of my scholarly endeavors. I also express my sincere appreciation for the support and helpful suggestions of Dr. Brigitte Reschke, Executive Editor in Law, Springer. I also thank the fine work of the Springer Project Manager Ms. Krithika Shivakumar and the entire production team.

vii

Contents

1

Judicial Activism and Its Intersection with Democratic Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Introduction: On the Notion of Judicial Activism . . . . . . . . . . . . . 1.2 Case 1: Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 (Quebec Inc. v. Director of Criminal and Penal Prosecutions, Quebec Court of Appeal) (Leave To Be Heard by the Supreme Court of Canada Granted) (A Corporation Alleging Cruel and Unusual Punishment by the State) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.1 Appropriating the Judicial Activism of the Left to Imbue a Corporation with Dignity . . . . . . . . . . . . . . . . . . . . . . . . 1.2.2 Analysis of Quebec Inc. with Reference to Forms of Judicial Activism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.3 Additional Comments on Quebec Inc. v. Director of Criminal and Penal Prosecutions . . . . . . . . . . . . . . . . . 1.3 Case 2: Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal of Canada), SCC Judgment (December 19, 2019) (Docket 37748) (On the Question of the Revocation of Jus Soli Canadian Citizenship of the Children of Russian Spies) . . . . . . . . . . . . . . . . 1.3.1 Textualism and Human Rights Issues in the Vavilov Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.2 ‘Principled Judicial Activism’ in Defense of Human Rights and the Democratic Rule of Law . . . . . . . . . . . . . . . . . . . . 1.3.3 Judicial Activism in Defense of the Vulnerable . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1

7 10 12 22

24 26 40 46 48 48 48 49

ix

x

2

3

Contents

The Supreme Court of the United States and Judicial Activism in the Trump Era . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Case 1: Rucho et al. v. Common Cause et al. No. 18-422. Argued March 26, 2019-Decided June 27, 2019 (United States Supreme Court) (Gerrymandering Electoral Districts to Affect the Vote) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Case 2: Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. 587 U. S. ____ 2019 (Supreme Court of the United States) (An Act Regulating Selective Abortion and the Handling of Fetal Remains) . . . . . . . . . . . . . . . . . . . . . . 2.4 Case 3: Garza (Guardian ad litem for J.D.) v. Hargan (Acting Secretary of Health and Human Services) et al. 874 F.3d 735 (DC Circuit) 2017 (On the Right of an Unaccompanied Undocumented Minor in US Immigration Detention to Access a Safe Abortion) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 The Supreme Court of the United States Holding in Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc. (On the Issue of Stare Decisis) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6 Case 4: Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (United States Supreme Court, 2019) (A Question of Double Jeopardy in Criminal Prosecution) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7 Case 5: American Legion v. American Humanist Association, No. 17-1717 (Decided 20 June, 2019) (United States Supreme Court) (Separation of Church and State) . . . . . . . . . . . . 2.8 Case 6: Wisconsin v. Yoder, 406 U. S. 205 (1972) (United States Supreme Court) (A Judicial Dissent Asserting Children’s Autonomous Educational and Religious Rights) . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. .

51 51

.

53

.

59

.

73

.

76

.

90

. 104

. . . . .

Judicial Activism in Selected Cases Decided by the Supreme Court of Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Case 1: Gillian Frank and Jamie Duong v Attorney General of Canada [Frank v Canada] 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada) (On the Denial of the Vote in Federal Elections to Canadian Citizen Long-Term Non-Residents) . . . . . . . 3.3 Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB 1086; (2004) A.J. No. 570, 2004 ABCA 184 (Court of Appeal of Alberta) (Age Eligibility for the Vote) . . . . . . . . . . . . . . . . . . .

112 122 122 122 123 125 125

129

145

Contents

Case 3: Canadian Foundation for Children, Youth and the Law v Attorney General (Canada) 2004 1 SCC 76 (Supreme Court of Canada) (The s. 43 Criminal Code of Canada Affirmative Defence for Assault of a Child) . . . . . . . . . . 3.4.1 The Canadian Charter s. 7 ‘Security of the Person’ Issue in Canadian Foundation . . . . . . . . . . . . . . . . . . . . . . . . 3.4.2 The Canadian Charter s. 15 ‘Equality Under the Law’ and ‘Equal Benefit of the Law’ Issue in Canadian Foundation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.3 The s. 12 Charter Protection Against Cruel and Unusual Treatment or Punishment Issue in Canadian Foundation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xi

3.4

4

. 173 . 174

. 179

. . . . .

Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Case 1: Case of Golder v. The United Kingdom (Application No. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) (On the Question of an ‘Implied Right’ To Be Afforded Access to the Courts to Determine Civil Claims) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Case 2: Volodina v Russia (Application No. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) (On the Question of a ‘Positive Obligation’ of the State to Protect Against Domestic Violence Constituting Torture, Inhuman or Degrading Treatment) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Case 3: X v The Former Yugoslav Republic of Macedonia (Application No. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) (‘Evolving Common Standards’ for Acceptable State Conduct in the Protection of Newly Recognized Particularly Vulnerable Groups Such As Transgendered Persons) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

185 189 189 189 190 191 191

194

207

214 230 230 230 231

xii

5

6

Contents

‘Principled Judicial Activism’ in Defense of Our Common Humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Case 1: Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. SCC, Docket 37919, Judgment Pending (Supreme Court of Canada, Judgement Pending) (A Multinational Corporation’s Accountability for Extraterritorial Violations of International Customary Law) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Case 2: Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018, 138 S. Ct. 1386 (2018) (Exemption Under the US Alien Tort Statute of a Foreign Multinational Corporation from Liability for Violations of International Peremptory Customary Law) . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Concluding Comment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. 233 . 233

. 236

. . . . .

255 260 260 261 261

. . . . .

263 267 267 268 268

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271

Chapter 1

Judicial Activism and Its Intersection with Democratic Rule of Law

1.1

Introduction: On the Notion of Judicial Activism

Regardless of ideology, it has become a staple of opponents of a particular judicial decision to accuse the court of activism, which is synonymous with an affront.1

In this book the author argues that judicial activism directed to the protection of human rights and dignity and the right to due process is an essential element of the democratic rule of law in a constitutional democracy as opposed to being ‘judicial overreach’. Put differently; protecting human rights, especially of the vulnerable and marginalized, through judicial decision-making in a constitutional democracy is here held not to equate to judges ‘making law’ (as opposed to interpreting law). Rather it represents courts interpreting and explaining what the constitution mandates the statutory and common law in a democratic society is or must be if it is not so already. We will examine some unique cases from various courts that address novel and complex issues and involve various forms of judicial activism or a rejection of judicial activism arguably at the expense of justice. Also discussed is what this author considers U.S. President Trump’s challenge to the American Courts to engage in a particular extreme approach to conservative judicial reasoning and decisionmaking. More specifically, in this instance, an invitation to the American courts, (through the Trump legal actions and promised legal actions) to pursue ‘conservative highly restricted textualism’, consideration of certain legal questions guided by a wildly expansive view of executive power as well as an invitation to overrule liberal Supreme Court ‘super precedent’ such as the landmark case affirming the right to abortion Roe v Wade on grounds potentially no well-reasoned than the original decision.2 The latter such that there would be greatly weakened judicial checks, if any, on President Trump’s carrying out certain of his policy objectives (as articulated legislatively or by executive order) in those cases even potentially when arguably 1 2

Jones (2001), p. 141. Roe v Wade 410 U.S. 113 (1973).

© Springer Nature Switzerland AG 2020 S. C. Grover, Judicial Activism and the Democratic Rule of Law, https://doi.org/10.1007/978-3-030-35085-7_1

1

2

1 Judicial Activism and Its Intersection with Democratic Rule of Law

inconsistent with the democratic rule of law (founded on human rights and human dignity)3 and U.S. foundational constitutional principles. Selected mostly quite recent case law is explored from the US and Canadian Supreme Court as well as US and Canadian lower courts, and the European Court of Human Rights illustrating that these Courts have engaged in judicial activism in the service of providing equal protection of the law and due process to the powerless but have arguably, on the respectful view here, on other occasions, employed legalistic but insupportable strategies to sidestep that obligation. Such an instance is, for example, exemplified in the recent US Supreme Court case of Masterpiece Cakeshop Ltd., et al. v. Colorado Civil Rights Commission et al.4 decided June 4, 2018. In that case the Court held that a baker, who on religious grounds objected to baking a wedding cake for a same-sex couple’s wedding, should prevail. This the Court ruled based on certain administrative law grounds specific to the facts of the case while not in fact answering the vital constitutional question of the proper balancing of the religious conviction of the baker (which the baker held he would be forced to forsake should he be legally compelled to supply the wedding cake) against the equality rights of the same-sex couple. Thus the Court was effectively sidestepping the central issue in the case. Through such approaches and others the Courts in democratic States at times render rulings that, on the view here, erode or even negate fundamental human rights. A reneging of the role of the courts to fill human rights protection lacunae left by the legislature or failure of the courts to override discriminatory policies and laws or unconstitutional, non-democratic actions of the executive, results in unfair treatment by the court system often of the most powerless and oppressed. ‘Judicial activism’ has traditionally been intended as something of a negative epithet in North American legal circles assigned more commonly by the right to more liberal social justice oriented courts. However the case law to be discussed in fact reveals that the allegation that the court has allegedly engaged in overreach and unwarranted judicial activism is a complaint that has in various instances been lodged against both philosophically left (so-called progressive) and philosophically right (more conservative) leaning courts. The claim of ‘judicial activism’ made against the court is in fact something of a Rorschach test for the critics that lodge the accusation revealing something of what are their stakeholder interests. Nevertheless this author will adopt for the sake of some semantic clarity the categorization of forms of judicial activism set out by Keenan D. Kmiec in his paper ‘The origin and current meanings of judicial activism.’5 Whether or not any particular form of judicial activism falling into one or more of those categories described by Kmiec actually applies in the factual and legal context of the cases this author will be discussing is of course a matter likely of debate. Nonetheless it is the daunting task this author has undertaken to respectively argue that such is the case.

3

Grover (2017a). Masterpiece Cakeshop Ltd., et al. v. Colorado Civil Rights Commission et al. 5 Kmiec (2004), pp. 1442–1477. 4

1.1 Introduction: On the Notion of Judicial Activism

3

Kmiec describes the following five presumptive categories of judicial activism: 1. [The Court] “Striking Down Arguably Constitutional Actions of Other Branches” 2. “Ignoring Precedent” [lower courts ignoring precedent set by higher courts (vertical precedent) or courts ignoring their own precedent in cases that are comparable in essential ways (horizontal precedent). Kmiec also references the further complication of whether the precedent is statutory, constitutional or one grounded in the common law] 3. “Judicial Legislation” [replacing the opinion of the court for the preferred policy choice of the legislature] 4. “Departures from Accepted Interpretive Methodology” [Kmiec points out that there is no consensus, for instance, on how to interpret the U.S. constitution leading then to ongoing debate amongst legal scholars and jurists about the proper application of constitutional provisions in a particular fact scenario and often to charges of alleged unjustified judicial activism by those who take a particular opposing interpretive approach]. 5. “Result-Oriented Judging” [engaging in a particular form(s) of judicial activism in order to obtain a predetermined judicial majority preferred result].6 These categories advanced by Kmiec offer a logical and semantic framework for considering claims/attributions to the court of judicial activism (whether informed by left leaning or right leaning judicial reasoning). This Kmiec framework will be applied here as the common framework to all the cases analysed in considering (a) what categories of judicial activism, if any, apply to a particular majority and/or minority court opinion and (b) the implications for the protection of human rights and dignity of the type(s) of judicial activism involved in the case. Thus there is no presumption in the analyses that follow that judicial activism of a certain type(s) as set out by Kmiec is/are necessarily inappropriate in a particular legal and factual context. Rather, the focus will be on determining the occurrence of what Barnett has termed ‘principled judicial activism’7 that arguably (on the view here) serves a democratic purpose: According to principled judicial activists, judges must indeed “follow the law,” but the law extends beyond legislative enactments to embrace substantive rules and standards used by judges in evaluating legislation. . . . In all legal challenges to legislation, judges must choose between imposing the legislative will on an individual and enforcing the individual’s claim that the legislation in question has violated his or her rights. Under the principle of equality of persons no person may violate the rights of another, and this must include legislators acting collectively (and judges too). Legislative action is but a subset of human action that “the law” functions to evaluate and regulate. . . The judiciary therefore cannot avoid responsibility for developing substantive standards by which it chooses between the legislation and the individual’s claim of right.8

6

Kmiec (2004), pp. 1463–1476. Barnett (1987), pp. 273–294. 8 Barnett (1987), pp. 276–277. 7

4

1 Judicial Activism and Its Intersection with Democratic Rule of Law

It is to be noted that notwithstanding whether the judicial activism reflected in a court’s majority or unanimous consensus judicial reasoning/decision-making in a particular case is grounded philosophically on the views of the left or the right; the intent and/or effect may vary from challenging versus preserving a status quo that undercuts the human rights of a particular group or groups. Judicial activism that at times undercuts human rights can manifest, amongst other ways, as (1) a tortured overly restrictive interpretation of statutory or constitutional law (what some have termed conservative textualism9) and even also as (2) reliance on speculation respecting the intent of the original drafters of a legal instrument (i.e. a constitution) even if the drafters lived in a vastly different societal/historical period with particular societal norms that since, in many respects, have been challenged (an approach sometimes referred to in legal academic circles as ‘originalism’): judicial conservatives believe that judicial authority extends only to judicial enforcement of the law enacted by the requisite majority of duly elected representatives, whether that law is a statute or the Constitution. They argue that because any such enactment represents the authoritative voice of the people, it should be “strictly construed” according to the “original intent” of its framers. Any deviation from the original intent lacks authority and is to be condemned as judicial fiat or “lawmaking.”10

The result of such a highly restrictive approach is arguably too often, though not necessarily always, that the political elite in government power and certain other powerful societal groups (particular monied lobby groups, selected corporate interests etc.) are permitted to continue to perpetuate certain discriminatory and unconstitutional practices purportedly under colour of law. Further judicial conservatism, at least of the more extreme variety, has been criticized as running the risk of the majority having its way at the expense of justice: Judicial conservatives do not, however, explain when justice permits judges to rightfully depart from the commands of the legislature, or if it ever does. This tension creates the impression that “justice,” like law itself, is determined solely by reference to majority preferences. It is this ambivalence that gives rise to the charge that judicial conservatism amounts to majoritarianism only weakly fettered by constitutional constraints that are themselves grounded in majoritarianism.11

In contrast, judicial activism purportedly in support of human rights, it is here argued, tends to rely on broad interpretations of legal instruments espousing constitutional principles; and views the Constitution itself as a ‘living instrument.’ However, as will be discussed with case examples, and is important to stress, even the ‘living instrument’ approach to constitutional interpretation and a liberal reading of ordinary statutes does not necessarily provide assurance that the court will seek and/or succeed in properly balancing the competing rights of the powerful versus the powerless in a particular context. Each failure to strike such a proper balance, whether by a left or right-leaning court or a court that cannot be characterized

9

Barnett (1987), pp. 273–294. Barnett (1987), p. 275. 11 Barnett (1987), p. 275. 10

1.1 Introduction: On the Notion of Judicial Activism

5

necessarily as left or right-leaning generally in terms of its majority opinions, it is here contended, is ultimately another assault on the democratic rule of law. To complicate matters further it would appear that in some less common cases the judicial rationale and analytical strategy more commonly of the right (textualism/ originalism as one example) or the rationale more commonly of the left (a liberal reading of Constitution in particular in accord with the ‘living instrument’ perspective) is coopted by the philosophical opposition in support rather of its’ philosophical position. Such is the situation, it is here argued, with the 2019 Quebec Court of Appeal case of Québec Inc. c Directeur des poursuites criminelles et pénales12 discussed below. In that case the Quebec Appeal Court, in a majority decision on the core preliminary matter, ruled that it is possible that the government could unconstitutionally have, by its legislation and/or regulation, violated the s. 12 Canadian Charter of Human Rights and Freedoms13 right of protection against cruel and unusual punishment or treatment even where a corporation (a non-natural but yet legal person in law) is the alleged victim. This author will argue that the majority in that case coopted the ‘living instrument’ rationale to in fact uphold a status quo that, on the facts of the case, favors the powerful and ultimately erodes human rights. The reverse is also possible; namely that an approach more often associated with a rightleaning legal analysis such as ‘statutory textualism’, for instance, is in whole or in part relied on to argue, by more left-leaning jurists, for the rights of the vulnerable i.e. such as children, and for a progressive view of children as autonomous in their rights bearing capacity from the parents.14 We will consider such a case in Chapter 3, namely Canadian Foundation for Children, Youth and the Law v Attorney General (Canada) 2004 1 SCC 76 (Supreme Court of Canada). In sum then this book addresses the proper place and function of ‘principled judicial activism’ in a constitutional democracy to preserve the democratic rule of law grounded on fundamental human rights principles. The selected case law discussed from the various courts considered is here analyzed to lay bare what are, on the author’s view, (a) the ways in which particular forms of judicial activism (with reference to Kmiec’s categories of judicial activism considered in no particular order)15 are engaged in a case by either the majority of the court and/or those judges offering dissenting opinions and (b) whose societal interests are likely to benefit from the specific type, content and scope of the judicial activism embodied in the judicial opinion; namely vulnerable human beings or powerful elites and other collectives including non-natural legal persons (corporations).

12

Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Quebec Court of Appeal. 13 Canadian Charter of Human Rights and Freedoms (1982). 14 Grover (2017b). 15 Kmiec (2004), pp. 1442–1477.

6

1 Judicial Activism and Its Intersection with Democratic Rule of Law

Let us turn then to the Quebec Court of Appeal decision on the preliminary matter in Québec Inc. c Directeur des poursuites criminelles et pénales16 to explore (a) appropriation of the opposition’s analytical approach/strategy; namely liberal constitutional interpretation based on evolving understandings of the constitution (here attributing human rights to a corporation) but in the service of, on the author’s contention, a conservative perspective and hence here considered another type of ‘conservative judicial activism’ albeit masked as not being such and (b) whether that judicial activism was (on the view here) properly directed to protection of the individual and/or collective fundamental human rights also of the vulnerable or to maintaining in effect, in contrast, a status quo that helps reinforce the existing enormous power in the corporate sector. We consider, following that case analysis; the case of Vavilov v Canada (Minister of Citizenship and Immigration)17 to discuss whether the Federal Court of Appeals of Canada properly supported the interests of the vulnerable and the democratic rule of law in relying in its analysis in that case on judicial activism via (a) a reading/interpretation of a statutory provision’s text (pertaining to jus soli Canadian citizenship in a certain unique circumstance) in a larger and purposeful context (thus reflecting liberal or left-leaning judicial activism) along with (b) giving an administrative tribunal little deference regarding what the Court considered the tribunal’s ‘over-inclusive’ statutory interpretation of certain statutory terms. This despite the Court ostensibly applying a ‘reasonableness standard of judicial review’; a conservative approach which generally results in greater not less deference to an administrative body’s decision than does a ‘correctness standard of judicial review’. The ‘reasonableness standard of judicial review’ often leaves much room for conservative judicial activism and arguably excessive judicial restraint in maintaining the administrative ruling. This even where the administrative ruling is unjust in the particular judicial panel’s view but, at the same time, not beyond the range of what, in that court’s opinion, reasonable persons who disagree with that court’s perspective/analysis could yet consider a possible proper outcome. However in Vavilov this deference was avoided notwithstanding the ostensible reliance on a ‘reasonableness standard of judicial review’ as will be discussed. More specifically we consider in Vavilov the legal rights of two distinct groups of children (both groups born in Canada) respecting jus soli Canadian citizenship. The two groups were distinguished insofar as the grant or denial of Canadian citizenship by a Canadian government administrative body only by their parent’s status; namely the two distinct groups were (a) children born to parents representing foreign interests who did not have diplomatic or consular or other comparable immunities and privileges in Canada versus (b) children born to parents representing foreign interests who formally did have those privileges and immunities.

16

Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) (Also here referred to as Quebec Inc.). 17 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132.

1.2 Case 1: Québec Inc. c Directeur des poursuites criminelles. . .

1.2

7

Case 1: Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 (Quebec Inc. v. Director of Criminal and Penal Prosecutions, Quebec Court of Appeal) (Leave To Be Heard by the Supreme Court of Canada Granted) (A Corporation Alleging Cruel and Unusual Punishment by the State)

In this case18 the appellant, a private corporation (a legal person in law but a non-natural one; a non-human, non-living entity), appealed the sentence of the Court of Quebec19 upheld by the Quebec Superior Court, District of Trois-Revieres imposing a minimum mandatory fine for the corporation for its having engaged in carrying out and having carried out as a contractor construction services without a license. The appellant corporation20 had been ordered by the lower court (Court of Quebec) to pay the minimum fine of $30,843 without costs as per the penalty stipulated in the relevant provision of the Quebec Building Act for the transgression at issue as applied to a corporation. The defendant corporation argued that the minimum mandatory fine applied to it as a corporation constituted ‘cruel and unusual punishment’ under s. 12 of the Canadian Charter. While it is established in Canadian law that an excessive fine imposed on a human being is a ‘penalty’ and can constitute cruel and unusual punishment or treatment in certain circumstances,21 whether such could be the case in certain contexts with regard to corporations penalized by a fine is not settled law in Canada and is in fact a novel question. Furthermore “In his analysis of the notes and authorities and arguments of the parties, the trial judge [the Magistrate of the Court of Quebec] notes that neither the Supreme Court nor any Court of Appeal in Canada has invalidated a monetary sentence under section 12 of the Charter, whether for an individual or a legal person.”22 The Magistrate Justice of the Peace (Court of Quebec, the Trial Court) found that the financial difficulties of a corporation (such as bankruptcy) or the consequences of a fine for the shareholder(s) (natural persons) does not serve to allow for considering

18

Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) (Leave to be Heard on Appeal to the Supreme Court of Canada granted 25 July, 2019, Attorney General Quebec and Director of Criminal and Penal Prosecutions (Applicants) v 9147-0732 Québec Inc. (Respondent). 19 Director of Criminal and Penal Prosecutions c. 9147-0732 Quebec Inc., 2017 QCCQ 1632 (Court of Quebec) (CanLII), http://canlii.ca/t/h1r6w (Court of Quebec, Magistrate Gaetan Ratte). 20 No officers of the corporation were defendants in the case only the corporation. The Quebec Building Act provided for different fines depending on whether the offender was a natural or a legal person. 21 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 at para 42 and 48 (Court of Appeal of Quebec). 22 9147-0732 Québec inc. c. Director of Criminal and Penal Prosecutions, 2017 QCCS 5240 (CanLII) (Quebec Superior Court) (J. Dionne) at para 22.

8

1 Judicial Activism and Its Intersection with Democratic Rule of Law

a punishment such as a fine or probation, no matter if a heavy one, imposed on a non-natural ‘legal person’ (a corporation) as constituting cruel and unusual punishment per the meaning of that term as used in s. 12 of the Canadian Charter.23 Further the magistrate opined that: . . .persons who use the corporate screen to profit from it24 can not (sic) deny the legal distinction between them and the legal person25 when that distinction is no longer to their advantage.26

The Magistrate (Trial Court) in this case ruled that the corporate fine imposed on Quebec Inc. was constitutional and did not constitute cruel and unusual punishment since ‘cruel and unusual’ was a very severe standard indeed and the fine imposed did not rise to that level. (“That sentence27 [cruel and unusual] must be so excessive as not to be compatible with human dignity and to be odious or socially intolerable”28). However the Court of Quebec did not address the legal question of whether, in the first instance, s. 12 of the Canadian Charter could, in any scenario such as a grossly disproportionate fine or other penalty, apply to a non-natural legal person i.e. a corporation.29 The magistrate’s decision (Court of Quebec ruling) in this case was appealed to the Quebec Superior Court. The Quebec Superior Court found the corporate fine to be constitutional and furthermore “rejected the appellant’s contention that s. 12 of the Canadian Charter is not limited to the dignity of individuals, but also [applies] to the principle of fundamental justice” such that “the sentence should not be grossly disproportionate to the offense and the offender’s situation” since such a disproportionate sentence as applied to a corporation must then also be considered cruel and unusual punishment and hence a s. 12 Canadian Charter violation of the principles of fundamental justice.30 The Quebec Superior Court held, in contrast, that human dignity applies only to natural persons31 and not to legal (non-natural) persons such as corporations:

23

Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 22. 24 Referring to shareholders. 25 Referring to the corporation as a legal entity in itself. 26 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 22. 27 Referring to a criminal penalty properly deemed cruel and unusual. 28 9147-0732 Québec inc. c. Director of Criminal and Penal Prosecutions, 2017 QCCS 5240 (CanLII) (Quebec Superior Court) (J. Dionne) at para 24. 29 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 24–25. 30 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 26. 31 The Quebec Superior Court judge relied on case law in his grappling with the concept of human dignity citing Iacobacci, Supreme Court of Canada Justice when he stated: “Human dignity means that a person or group feels respect and self-esteem. It is about physical and psychological integrity and personal empowerment. Human dignity is flouted by unfair treatment based on personal characteristics or circumstances that have nothing to do with the needs, abilities or merits of the

1.2 Case 1: Québec Inc. c Directeur des poursuites criminelles. . .

9

Clearly, the concept of human dignity applies only to natural persons and not to legal persons who, strictly speaking, cannot have dignity, that is, an attitude of reserve, gravity, inspired by the nobility of feelings or the desire for respectability.32

The Quebec Superior Court in Quebec Inc. concurred with the view that the corporation does not ‘suffer’ with the imposition of a heavy fine as a criminal penalty33 as, in contrast, does a natural person. The Quebec Superior Court also endorsed the opinion expressed by Lamer J (Supreme Court Justice) in another case that “when criminal law applies to a legal person, it loses much of its “criminal” character and becomes, in essence, an “energetic” form of administrative law. If the possibility of imprisonment is removed and if the stigma attached to the conviction is effectively reduced to the loss of money, the corporation is in a situation quite different from that of a natural person”34 Lamer J. also suggested in a previous case, and the Quebec Superior Court in Quebec Inc. concurred, that any negative effects on natural persons (such as stigma) when there are few shareholders in a company (two or three) and that corporation has been heavily fined must be accepted. This since those same natural persons eagerly accept the benefits of incorporation in those circumstances where it is to their advantage to be incorporated and must thus, in fairness, tolerate the consequences when incorporation is in a particular circumstance a personal disadvantage.35 The Quebec Superior Court concluded that “In the current state of jurisprudence, therefore, legal persons cannot invoke the rights provided for in the Charter when their object is the protection of human dignity (emphasis added).”36 The majority opinion of the Quebec Court of Appeal (Judges Belanger and Rancourt), however, reversed and upheld the appeal of the Quebec Superior Court decision. That appeal was based on the appellant’s novel claim that the minimum mandatory fine stipulated in the Quebec Building Act, and levied against the corporation Quebec Inc., constitutes a violation of s. 12 of the Canadian Charter of Rights and Freedoms prohibiting cruel and unusual treatment or punishment.37 Judge Belanger put the preliminary matter to be decided by the Appeal Court as follows:

person.” (Cited in 9147-0732 Québec inc. c. Director of Criminal and Penal Prosecutions, QCCS 5240 (CanLII) (Quebec Superior Court) (J. Dionne) at para 57. 32 9147-0732 Québec inc. c. Director of Criminal and Penal Prosecutions, 2017 QCCS (CanLII) (Quebec Superior Court) (J. Dionne) at para 58. 33 9147-0732 Québec inc. c. Director of Criminal and Penal Prosecutions, 2017 QCCS (CanLII) (Quebec Superior Court) (J. Dionne) at para 59. 34 9147-0732 Québec inc. c. Director of Criminal and Penal Prosecutions, 2017 QCCS (CanLII) (Quebec Superior Court) (J. Dionne) at para 60. 35 9147-0732 Québec inc. c. Director of Criminal and Penal Prosecutions, 2017 QCCS (CanLII) (Quebec Superior Court) (J. Dionne) at para 60. 36 9147-0732 Québec inc. c. Director of Criminal and Penal Prosecutions, 2017 QCCS (CanLII) (Quebec Superior Court) (J. Dionne) at para 58. 37 Canadian Charter of Human Rights and Freedoms (1982).

2017 5240 5240 5240 5240 5240

10

1 Judicial Activism and Its Intersection with Democratic Rule of Law The appeal raises only one question: can a legal person benefit from the protection provided by section 12 of the Canadian Charter of Rights and Freedoms and invoke the unconstitutionality of a minimum fine?38

The majority of the Appeal Court of Quebec in Quebec Inc. (two of the three member appeal panel) found that s. 12 of the Canadian Charter could be applied to a corporation. The case was then remanded to the lower court to determine whether the actual minimum mandatory fine imposed on the corporation Quebec Inc. in fact violated s. 12 of the Canadian Charter (that is whether the sum of the fine levied rose to the level of a cruel and unusual penalty in being too severe and disproportionate).

1.2.1

Appropriating the Judicial Activism of the Left to Imbue a Corporation with Dignity

Judge Belanger (with concurrence by Rancourt JCA), writing for the Majority of the Court of Appeal of Quebec in Quebec Inc., frames her analysis, in the first instance, in terms of the proposition that a punishment of a minimum mandatory fine or a probation order against a corporation can, in certain exceptional circumstances, be grossly disproportionate.39 That gross disproportionality where it exists, Judge Belanger contends, can potentially trigger the notion of cruel and unusual punishment per s. 12 of the Canadian Charter in reference to a ‘victimized corporation’. Interestingly Judge Belanger in providing the underlying reasoning for this conclusion relies on an approach (a liberal interpretation of constitutional provisions) usually associated with left-leaning judicial opinions when considering the rights of the most vulnerable human beings in society whom the legislature has forsaken. Such liberal interpretations of the Canadian Charter are not generally associated with considerations of the fairness of the justice meted out per specific legislated penalties imposed on non-natural legal persons; namely corporations. This appropriation (so respectfully considered on the view here) of a left-leaning approach to analysis in Quebec Inc. is reflected in the following of Judge Belanger’s opening remarks in the majority opinion regarding determining whether a corporation—if it has received a punishment under legislation that is excessive and disproportionate— has suffered a violation of the s. 12 constitutional provision against cruel and unusual punishment or treatment:

38 The parties agreed that whether on the facts of the case s 12 of the Canadian Charter was actually violated could be a matter to be argued at a later date and that the Court was only deciding currently whether s. 12 of the Canadian Charter could apply to a legal person (a corporation). See Québec Inc. c Directeur des poursuites criminelles et pénales 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 88. 39 Québec Inc. c Directeur des poursuites criminelles et pénales 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 92.

1.2 Case 1: Québec Inc. c Directeur des poursuites criminelles. . .

11

In order to determine the scope of a provision of the Canadian Charter, one must first determine its purpose and identify the interests that the law or freedom seeks to protect. The terms chosen should be examined, as well as the historical origins of the embedded concepts, depending on the meaning and purpose of the other rights attached to them. The interpretation must be broad and liberal (emphasis added)40

Judge Belanger, furthermore, with respect, on the view here, adopts a particular liberal judicial ‘talking point’ in Quebec Inc. as part of her rationale for considering that s. 12 of the Canadian Charter can offer protection to a corporation against excessive penalties.41 This when she states that “the Charter must receive an evolutionary interpretation and be continually adapted to new realities, while taking into account historical, social and legislative contexts (emphasis added)”42 but then applies that interpretation to afford potential protection to the powerful (the corporation Quebec Inc.) rather than the weak (i.e. a vulnerable group of human beings who are not shareholders in a corporation and who do not benefit, in a vast set of circumstances, from incorporation and separation from a legal person entity). It is here contended that the majority Appeal Court of Quebec opinion in Québec Inc. c Directeur des poursuites criminelles et pénales43 reflects, in actuality, judicial activism of the right coopting the interpretive strategies of the left. It is argued that the majority opinion in the case reflected several of the categories of judicial activism set out by Kmiec44 as will be discussed. More specifically then we will consider Judge Belanger’s rationales for her concluding that the s 12 Canadian Charter guarantee of protection from cruel and unusual punishment or treatment can apply also to corporations. We examine whether these rationales reflect various categories of judicial activism45 instituted to the potential benefit of a corporation (a corporation that, it would appear, had not exercised due diligence and could not attribute its violation of a provision of a provincial Building Act to “mistake of error”).46

40

Québec Inc. c Directeur des poursuites criminelles et pénales Québec Inc. c Directeur des poursuites criminelles et pénales 2019 QCCA 373 [9147-0732 Québec Inc.] (Quebec Court of Appeal of Quebec) at para 93 (Belanger, J reasons). 41 Québec Inc. c Directeur des poursuites criminelles et pénales Québec Inc. c Directeur des poursuites criminelles et pénales 2019 QCCA 373 [9147-0732 Québec Inc.] (Quebec Court of Appeal of Quebec) at para 120, 138 (re viewing the corporation as benefitting from the s. 12 Charter protection) (Belanger, J reasons). 42 Québec Inc. c Directeur des poursuites criminelles et pénales 2019 QCCA 373 [9147-0732 Québec Inc.] (Quebec Court of Appeal) at para 103. 43 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec). 44 Kmiec (2004), pp. 1442–1477. 45 Kmiec (2004), pp. 1442–1477. 46 9147-0732 Québec inc. c. Director of Criminal and Penal Prosecutions, 2017 QCCS 5240 (CanLII) (Quebec Superior Court) (J. Dionne) at para 19.

12

1 Judicial Activism and Its Intersection with Democratic Rule of Law

1.2.2

Analysis of Quebec Inc. with Reference to Forms of Judicial Activism

Let us first consider, with an example, the use of alleged relevant case precedent in the majority opinion in Quebec Inc. The Quebec Court of Appeal majority opinion (per Judge Belanger) in the case at bar referred to Supreme Court of Canada precedent in Irwin Toy Ltd. v Quebec47 for the proposition that: To succeed, the corporation must demonstrate that it has an interest that is included in the scope of the guarantee and that accords with the purpose of the provision.48 [Referring to the Canadian Charter guarantee at issue]

That is; the opinion in Irwin Toy,49 according to Judge Belanger, instructs that (a) the corporation (here Québec Inc.) must establish that its interest as a corporation in the circumstance at hand falls within the scope of the Canadian Charter provision at issue (in Quebec Inc. then that the s. 12 Canadian Charter guarantee of protection against cruel and unusual punishment or treatment is implicated in the government punishment of the corporation by way of a minimum mandatory corporate fine) and that (b) safeguarding that corporate interest against the punishment it was subject to (the minimum mandatory fine that was imposed) is consistent with the purpose of the Canadian Charter provision implicated (s. 12 prohibiting cruel and unusual punishment). First some background on Irwin Toy before we consider judicial activism of the majority in Quebec Inc. in terms of how this alleged relevant case precedent was used. In Irwin Toy Ltd. the Supreme Court of Canada considered whether the corporation had violated the provincial Consumer Protection Act (the Act). This by advertising on television to children under age 13 in contravention of the Act or whether, instead, Irwin Toy Ltd. was merely exercising ‘commercial freedom of expression/ speech’ protected by the Canadian Charter s 2 (b) provision regarding ‘freedom of expression’. The Supreme Court of Canada thus had to decide in the Irwin Toy Ltd. case, as a necessary preliminary step, whether s. 2 (b) of the Canadian Charter was even applicable to commercial corporate advertisers.50 On this point the Majority held that the conduct of the advertisers (Irwin Toy Ltd.) “was not excluded from the sphere of conduct protected by freedom of expression (emphasis added).”51 That is; the televised commercial advertising did, according to the majority opinion, convey meaning and hence was, in the view of the majority, a Canadian Charter-protected 47

Irwin Toy Ltd. c. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 SCR 927 at pp. 967–971 and 1001–1004. 48 Québec Inc. c Directeur des poursuites criminelles et pénales 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 94. 49 Irwin Toy Ltd. c. Quebec (Attorney General), 1989 CanLII 87 (SCC). 50 Note that the relevant provisions of the Consumer Protection Act at issue banning advertising to under 13s placed a limitation on the freedom of expression of corporate commercial advertisers and not on any potential communications broadcaster. 51 Irwin Toy Ltd. c. Quebec (Attorney General), 1989 CanLII 87 (SCC) at p. 932.

1.2 Case 1: Québec Inc. c Directeur des poursuites criminelles. . .

13

form of free expression by the corporation Irwin Toy. However, the Majority further found that Irwin Toy’s commercial freedom of expression/speech was not disproportionally impacted by the ban on advertising to children under 13. Rather the Court held that the limitation (the ban stipulated in the Consumer Protection Act against advertising to under 13s), though in the Court’s view a violation of the Canadian Charter right to commercial freedom of expression, was nonetheless (a) a reasonable and proportionate limitation and (b) directed to a proper purpose; namely protecting young vulnerable children from advertising manipulation. Hence the Majority of the Supreme Court of Canada in Irwin Toy concluded that the s. 1 Canadian Charter52 override applied and the advertising ban re under 13s was a constitutional limitation on corporate freedom of commercial expression. The injunction on such advertising applied by the trial court against the corporation was thus upheld.53 On the view here the Supreme Court’s analysis concluding that Irwin Toy—a corporation—was protected by the Charter freedom of expression guarantee focused on what constitutes expression and sidestepped the underlying issue. That underlying issue is whether s 2 (b) of the Canadian Charter was intended to protect expression by a corporation (assuming a corporation can be involved in ‘expression’). Section 2 (b) of the Canadian Charter reads as follows: Everyone has the following fundamental freedoms. . .freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication54

Section 2 (b) of the Canadian Charter, on this author’s analysis, is only applicable to human beings guaranteeing the right of the human being to freely have a thought, belief, or opinion, and then to express those including through media. Corporations as legal persons do not have thoughts, beliefs or opinions though corporate employees and officers engage in expression in the name of the corporation. S. 2 (b) then may have been applicable as a potential defense for officers or other employees of the corporation but they were not parties to the proceedings in Irwin Toy and the penalty had not been imposed on individuals but rather on the corporation. It is suggested then that the corporation’s case was not framed properly insofar as it relied, in part, on a Canadian Charter guarantee and the

52 S. 1 of the Canadian Charter stipulates that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” s. 1 Canadian Charter of Human Rights and Freedoms (1982). 53 Two justices dissented on this point in Irwin Toy and found that the relevant provisions of the Consumer Protection Act did violate s 2(b) of the Canadian Charter and were a disproportionate limitation on the corporation’s freedom of expression. This since, according to these justices, it was not established that the advertising would be detrimental to the children’s welfare and the age barrier set point to such a limitation on advertising being arbitrarily put at age 13 (and below) and hence not a proportional remedy. Irwin Toy Ltd. c. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 SCR 927 at p. 934. 54 Canadian Charter of Rights and Freedoms (1982).

14

1 Judicial Activism and Its Intersection with Democratic Rule of Law

defense involved the corporation appropriating a human right (freedom of expression) essential for human dignity and human development. There was consensus amongst all the justices on the Supreme Court of Canada that the ban on advertising to under 13s did not violate the s 7 Canadian Charter liberty rights of the corporation Irwin Toy in contravention of the principle of fundamental justice. This, for instance, since the wording of the statute—the Consumer Protection Act—was not impermissibly vague (assuming s. 7 of the Canadian Charter was even applicable to a corporation). The Court had in fact addressed as a preliminary matter whether s. 7 of the Canadian Charter—“the guarantee of life, liberty and security of the person”—is applicable to a corporation (a non-human bring). The Supreme Court of Canada in Irwin Toy on the s. 7 Canadian Charter issue held that the guarantee does not apply to non-human legal entities i.e. corporations (recall that in Irwin Toy only, the corporation as a legal entity, a legal person, was a party and not any of the individuals who were corporate officers): In order to put forward a s. 7 argument in a case of this kind where the officers of the corporation are not named as parties to the proceedings, the corporation would have to urge that its own life, liberty or security of the person was being deprived in a manner not in accordance with the principles of fundamental justice. In our opinion, a corporation cannot avail itself of the protection offered by s. 7 of the Charter. First, we would have to conceive of a manner in which a corporation could be deprived of its “life, liberty or security of the person”. We have already noted that it is nonsensical to speak of a corporation being put in jail. To say that bankruptcy and winding up proceedings engage s. 7 would stretch the meaning of the right to life beyond recognition. The only remaining argument is that corporations are protected against deprivations of some sort of “economic liberty”.55

The Supreme Court in Irwin Toy Ltd. also rejected the notion that the corporation had been deprived of economic liberty within the scope of s. 7 of the Canadian Charter as s. 7 makes no reference to ‘property’ but rather to ‘security of the person’: we find the second effect of the inclusion of “security of the person” to be that a corporation’s economic rights find no constitutional protection in that section. That is, read as a whole, it appears to us that this section was intended to confer protection on a singularly human level. A plain, common sense reading of the phrase “Everyone has the right to life, liberty and security of the person” serves to underline the human element involved; only human beings can enjoy these rights. Everyone” then, must be read in light of the rest of the section and defined to exclude corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and include only human beings (emphasis in the original).56

The justices who had dissented and found an unconstitutional violation of the corporation’s right to freedom of expression nonetheless concurred, as mentioned, on the inapplicability of the Canadian Charter s. 7 guarantee to a corporation. The Supreme Court in Irwin Toy Ltd. emphasized the point that the penalty imposed by the lower court for the company’s violation of certain provisions of the Consumer Protection Act was imposed on the company and was not against individuals (the company’s officers) and thus no individuals were parties to the Irwin Toy

55 56

Irwin Toy Ltd. c. Quebec (Attorney General), 1989 CanLII 87 (SCC) at para 282. Irwin Toy Ltd. c. Quebec (Attorney General) Id at para 282.

1.2 Case 1: Québec Inc. c Directeur des poursuites criminelles. . .

15

proceedings: “A corporation, unlike its officers, cannot avail itself of the protection afforded by s. 7”57 (of the Canadian Charter). It would appear then that Justice Belanger’s reference to Irwin Toy Ltd. in the Quebec Inc. case does not address the instance where a Canadian Charter provision/ guarantee is intended to confer rights exclusively on human persons and not on non-natural legal persons such as corporations. The Irwin Toy58 case opinion, as we have discovered, presents a complex picture in that, on the one hand, the Supreme Court of Canada held in that case that the corporation’s advertising to under 13s was a form of expression as that term is understood in s 2 (b) Canadian Charter guarantee of freedom of expression which includes commercial expression (though the majority’s ultimate finding was that the violation of that guarantee by the provincial legislation—the Consumer Protection Act—was in fact justified, proportionate and therefore constitutional). On the other hand; the Supreme Court of Canada justices found that the corporation’s (Irwin Toy’s) interests at stake (given the penalty imposed under the Consumer Protection Act) did not fall within the scope of the s. 7 Canadian Charter guarantee of life, liberty and security of the person. This since it was a corporation and s 7 applies in the view of the Supreme Court of Canada in Irwin Toy Ltd. only to human beings. Hence the Supreme Court found in the first instance that there could be no potential for a s. 7 constitutional violation as applied to a corporation as potential victim. Judge Belanger in the Quebec Inc. case cites Irwin Toy presumably as a vertical precedent regarding her framework for analyzing the central question of the applicability or non-applicability of certain Canadian Charter provisions to corporations. The fact that corporations have been accorded the benefits of some Canadian Charter rights does not support the argument that the s 12 Canadian Charter guarantee would necessarily afford such protection to a corporation such as Quebec Inc. (just as in Irwin Toy s. 7 of the Canadian Charter was found not to apply to corporations/non-human legal entities). It is relevant to note also that in Irwin Toy the Supreme Court first made a finding as to whether a Canadian Charter right (s 2 (b) freedom of expression) could apply to a corporation with regard to commercial advertising as a purported form of freedom of expression potentially covered by the Charter guarantee. Only after determining that the guarantee did, in the opinion of the Court, apply also to corporations did the Court consider whether the injunction imposed on the corporation (an injunction upholding a ban on advertising to under 13s) violated that right by being disproportional. Hence the Court did not consider that should a penalty be considered disproportionate that that would establish a corporate right under the Charter. In Quebec Inc. arguably the majority of the Court of Appeal confounded the question as to whether a penalty (the minimum mandatory fine) was disproportionate with the question of whether the s. 12 guarantee against cruel and unusual punishment or treatment applies to corporations. This by the majority appearing to

57 58

Irwin Toy Ltd. c. Quebec (Attorney General) Id at p. 935. Irwin Toy Ltd. c. Quebec (Attorney General), 1989 CanLII 87 (SCC).

16

1 Judicial Activism and Its Intersection with Democratic Rule of Law

suggest that since some corporations may be subjected to disproportionate penalties; these legal entities must be protected/fall within the scope of the s. 12 guarantee against cruel and unusual punishment or treatment. However as the Dissenting Judge of the Appeal Court (Judge Chamberland) points out a penalty can be disproportionate without being cruel and unusual (“It will only be cruel and unusual if it is excessive ‘to the point of not being compatible with human dignity and disproportionate to the point where Canadians may consider it abhorrent and intolerable’”).59 It is also important to realize further that there is a difference in a corporation attempting to appropriate for itself as a (non-natural) legal person a Canadian Charter right versus instead attacking the constitutionality of a law while not presuming or arguing that the corporation itself possesses the Canadian Charter right(s) or freedom(s) at issue (though the corporation may benefit if the law is struck due to a finding of unconstitutionality): However, if a corporation is defending itself, it is permitted to raise any Charter argument it wants to demonstrate that the law is unconstitutional. In these cases, the corporation is not claiming that it has a right or freedom -- rather, it is claiming that the law cannot stand because it breaches the Charter and therefore, has no force or effect. As an example, in R v Big M Drug Mart Ltd., [1985] 1 SCR 295 a corporation was charged with an offence for operating on a Sunday. The corporation successfully argued that the law requiring it to stay closed on Sunday was unconstitutional because it unjustifiably infringed s. 2(a) of the Charter (freedom of conscience and religion). The law was therefore declared unconstitutional. While a corporation doesn’t have a right to freedom of religion, [a corporation] could not be prosecuted by a law that was unconstitutional.60 (portion in square brackets inserted for clarity)

The majority of the Appeal Court in Quebec Inc. are assigning a quintessentially human right (the right to be protected against cruel and unusual punishment or treatment) to a corporation; a non-natural legal entity. The latter rather than finding a law unconstitutional as applied to humans such that the corporation affected (penalized under the same law) also as a byproduct benefits from that finding of unconstitutionality. Recall that no officers of the corporation Quebec Inc. were parties to the proceeding and the penalty imposed that was appealed was against a corporation not human beings. As the Dissenting Judge in Quebec Inc. (Judge Chamberland) points out s. 12 of the Canadian Charter was inspired by human rights legislation and reflects humanity’s abhorrence of indecent, inhumane, torturous and/or degrading punishment or treatment all of which relate to incivility and suffering and constitute an affront to human dignity.61 The Dissenting Judge in Quebec Inc. held that though

59 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 CanLII [91470732 Québec Inc.] (Court of Appeal of Quebec) at para 27 (Dissenting Opinion of Chamberlain JCA) Citing 9147-0732 Québec inc. c. Director of Criminal and Penal Prosecutions, 2017 QCCS 5240 (CanLII) (J. Dionne) at para 42. 60 Alberta Civil Liberties Research Centre Who can make a Charter claim? (2019) http://www.aclrc. com/who-can-make-a-charter-claim. 61 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 48–51.

1.2 Case 1: Québec Inc. c Directeur des poursuites criminelles. . .

17

s 12 of the Canadian Charter has been liberally interpreted to cover various contexts and not just penal sentences, and includes a prohibition of disproportionate sentences among other things, the Canadian Charter guarantee of protection against cruel and unusual punishment or treatment remains intricately connected to the preservation of human dignity: However, despite this broadening of the scope of s. 12 of the Charter, its evolution is still concerned only with the human being (human dignity) and does not, in my opinion, make it possible to extend the application to legal persons. The assertion that no one is subjected to cruel treatment or punishment is inseparable from human dignity (emphasis added).62 It would be to totally distort the common sense of the words, in my opinion, to say that one can be cruel to a corporate entity, a corporation. Cruelty is directed towards living beings, in flesh and blood, whether they are human beings or animals. And not to corporations. Suffering, whether physical or mental, is peculiar to living beings, and not corporate entities and inanimate objects, without soul or emotional life.63

Justice Belanger of the Quebec Appeals Court in Quebec Inc. points out that 2004 legislative reforms applied to the Criminal Code of Canada have allowed for criminal prosecution of a corporation as a legal entity in itself in certain circumstances. For instance, where there has been corporate negligence resulting in the death of employees.64 Criminal prosecution then raises the issue of sentencing and proportionate sentencing of a company or corporation. However, a disproportionate sentence against a corporation as a legal entity in itself does not result in the experience of cruel and unusual punishment in its subjective experiential dimension for the corporation. This since the corporation per se has no experiences. It is further impossible arguably to separate the subjective assessment from any objective determination of what constitutes cruelty in a treatment or punishment. Thus although the corporate fine (a minimum mandatory fine) was likely to cause the bankruptcy of the corporation this then could not amount to cruelty. One could further argue that a disproportionate sentence for a corporation for a certain offence must be established on a metric; something other than cruel and unusual punishment. Indeed the Quebec Building Act appears to reflect this in that there were different penalties set out for corporations as opposed to individual officers of a corporation for the same offence (i.e. construction without a license). A disproportionate sentence for a human being can include “a sentence so excessive that it becomes incompatible with “human dignity”.”65 Such, for example,

62

Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 59. 63 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 53–56. 64 “a company is presumed to have participated in a crime if it is established that its employees have acted in a manner equivalent to such a crime.” Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 95. 65 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 62.

18

1 Judicial Activism and Its Intersection with Democratic Rule of Law

was the conclusion of the Supreme Court of Canada in R v Boudreault where the Court found that a victim surcharge imposed on criminal defendants (human beings)—to raise money for victim support services and hold the defendants also accountable to the community for their crimes—was a violation of Canadian Charter s. 12. In Boudreault the Supreme Court of Canada majority found that the mandatory victim surcharge stipulated in the Criminal Code of Canada regarding the designated offenders under the Controlled Drug and Substances Act did not take into account the individual circumstances of an offender. It created various harms including creating “a de facto indefinite sentence for some of the offenders, because there is no foreseeable chance that they will ever be able to pay it.”66 The victim surcharge thus caused suffering for certain offenders (who were in that case natural persons; human beings). The Quebec Building Act under which the penalty was imposed on Quebec Inc. sets out, as mentioned, “a different mandatory minimum sentence depending on whether the offender is an individual or a corporation.”67 The penalty imposed in the case was that set out for a corporation. Hence arguably then the corporation cannot as a corporation appropriate the s 12 Canadian Charter right that a natural person (a human being) could have advanced (successfully or unsuccessfully) had a sentence been imposed under the Quebec Building Act relying on a sentencing provision (a specific set fine) that applied only to a natural human being. Thus even if the imposition of a specific mandatory minimum fine set out in particular for natural human beings (under the Quebec Building Act as a penalty for those individuals who engage in construction without a license) constitutes cruel and unusual punishment (on a showing that the fine is an assault on human dignity in the particular circumstance) and is therefore unconstitutional, the separate and different minimum mandatory fine for corporations set out in the Quebec Building Act could still be constitutional. In conclusion one could argue then that the majority opinion of the Quebec Court of Appeal in Quebec Inc.68 reflects at least the following forms of judicial activism (using Kmiec’s69 categories as will be done in all the case analyses and in no particular order as to the Kmiec categories that apply): • ‘Judicial legislation’: This by concluding that a corporation could appropriate the s. 12 Canadian Charter right to protection against cruel and unusual punishment though (a) the statute at issue—the Quebec Building Act—had separate penalties for individuals, human beings (officers of the corporation) versus the corporation as a ‘legal person’ and (b) no individuals were parties to the constitutional challenge of the corporate fine. By deciding that Quebec Inc.’s interests fell 66

R v Boudreault 2018 SCC 58 summary. Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 43. 68 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec). 69 Kmiec (2004), pp. 1442–1477. 67

1.2 Case 1: Québec Inc. c Directeur des poursuites criminelles. . .

19

within the scope of the s. 12 protection guarantee of the Canadian Charter, the majority of the Quebec Court of Appeal in essence, on the view here, invalidated the distinction in law between natural and non-natural ‘persons’ in the legislation (the Quebec Building Act) and created its own judicial legislation. • ‘Ignoring Precedent’: The majority of the Quebec Court of Appeal in Quebec Inc.70 did rely, in part, on its interpretation of the Supreme Court of Canada (SCC) precedent in Irwin Toy71 for guidance on the substantive issue as to whether a corporation could enjoy the protection of a Canadian Charter guarantee or whether those Charter rights and freedoms were to be accorded only to human beings. From this author’s perspective; the majority of the Quebec Court of Appeal in Quebec Inc. appeared, in effect, to oddly ignore the finding of the SCC in Irwin Toy that a corporation could not enjoy s. 7 Canadian Charter rights. The s. 7 Canadian Charter rights guarantee, it will be recalled, protects the “life, liberty and security of the person” from unconstitutional action by the government by law or in any other way through its agents. Since s. 7 of the Canadian Charter pertains in part to ‘security of the person’; it is particularly inconsistent to suggest that a corporation that has no underlying ‘security of the person’ rights or interest under the Canadian Charter (as per the Irwin Toy Ltd. SCC ruling) could be the victim of “cruel and unusual punishment or treatment” due to a violation of s. 12 of the Charter that protects against cruel and unusual punishment or treatment. This since cruel and unusual punishment or treatment is quintessentially an attack on ‘security of the person’. What is a disproportionate punishment or treatment of a human being, and whether it rises to the level of ‘cruel and unusual punishment or treatment’, must be decided on an individual basis as experts on torture and on other atrocities have pointed out. For example, the same punishment or treatment accorded a child or a sick adult may rise to the level of disproportionate and cruel and unusual punishment or treatment while neither may be the case where the victim is a healthy adult (as measured in terms, for instance, of the mental and/or physical suffering resulting and the duration of those effects). Thus a lower bar test applies for determining whether cruel treatment (such as torture) has occurred in the case of child victims which gives proper weight to their vulnerability.72 It strains meaningful semantic interpretation, however, to translate such considerations regarding human suffering into, for instance, taking account of the economic health or security of the corporation when determining whether a penalty against the corporation itself (such as a fine or a probation order or an order to suspend corporate operations for a period etc.) is disproportionate in such a manner as to rise to the level of being cruel and unusual punishment or treatment. A

70

Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec). 71 Irwin Toy Ltd. c. Quebec (Attorney General), 1989 CanLII 87 (SCC). 72 Juvenile ‘Re-education’ Institute vs. Paraguay Judgement of 2 September, 2004 Inter-American Court of Human Rights http://www.corteidh.or.cr/docs/casos/articulos/seriec_112_ing.pdf.

20

1 Judicial Activism and Its Intersection with Democratic Rule of Law

disproportionate penalty on a corporation may cause suffering to officers and other employees of the corporation but not cruelty to the corporation as a legal entity (a ‘legal person’ in itself). Adverse impacts for the corporation are not synonymous with cruelty. Judge Belanger of the Quebec Court of Appeal in Quebec Inc. respectfully, on the view here, seems to equate adverse impacts arising from a penalty under law against the corporation as a legal entity with cruelty. This since she, in effect, adopts a perspective that anthropomorphizes corporate legal persons: the notion of “organization” comes very close to the physical person, especially when a sanction applies to companies or organizations that work for the benefit of their members. For natural persons who would be directly affected by the fact that an excessively disproportionate fine is imposed on their organization and do not have a separate legal personality, it becomes clear that the legal guarantee must apply. Furthermore, I do not see how it would be incorrect to make it possible for legal persons enjoying a separate legal personality to benefit from Article 12 (emphasis added).73

Judge Belanger (on behalf of the majority of the Court of Appeal of Quebec) in Quebec Inc., as discussed, attributes s 12 Canadian Charter human rights to corporations. This then is tantamount to imbuing the corporation with natural human dignity which, on the respectful view here, is a non-sequitur and does not follow from any of the arguments raised by the majority. This in that there is no such thing as inherent corporate dignity though a corporation may garner a positive or negative public reputation through the actions of its officers in their official capacity. The author concurs thus with Rowland: In fact, rights that are not explicitly granted by the state in issuing corporate charters simply do not exist, however conditionally. This is not the case where fundamental rights are claimed by living, breathing, people. These rights, such as the rights to life and liberty, freedom of expression, belief, opinion, assembly, religion, justice, and so on are not granted by the Charter, they are protected by it. The rights pre-exist the state—they are ours to claim simply by virtue of being human beings. For this reason they are often called inalienable, in that we cannot give them away even if we wanted to. Nor can they be withdrawn by the state. . . (emphasis added).74

The Canadian Charter thus, on the contention here, codifies natural inherent human rights that cannot be ascribed to legal fictions such as ‘corporate legal persons’. • ‘Departures from Accepted Interpretive Methodology’: The text of the statute at issue, the Quebec Building Act, was unambiguous in having different minimum mandatory fine penalties for individuals versus the corporation (a legal entity). The majority of the Court of Appeal of Quebec appeared to ignore the interpretation that this textual difference and its purpose implied; namely that a distinction should be drawn in assigning accountability of individual officers of a 73

Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 12. 74 Rowland, Wade Blog Post: Canadian Corporate Rights and Canada’s Supreme Court (posted 13 August, 2011) http://www.waderowland.com/topics/corporations/.

1.2 Case 1: Québec Inc. c Directeur des poursuites criminelles. . .

21

corporation (where they too are parties) versus the corporation. For example, in the case of individuals (different officers of the corporation); there may be variation in responsibility that had to be assessed by the court on a case-by-case basis. In contrast, in Quebec Inc. in respect of the corporation, a specific singular level of accountability would be attributed to the ‘legal person’ by the Court. A penalty is imposed consistent with the corporate culpability and the possible penalty set out in the legislation (if the corporation was found guilty) and the i.e. fine determined accordingly (as per the Quebec Building Act penalty for a corporation). By the Quebec Court of Appeal accepting a s. 12 Canadian Charter human rights defense by the corporation Quebec Inc. as feasible, the majority in Quebec Inc., in effect, eliminated, on the respectful view here, the notion of corporate responsibility. ‘Corporate responsibility’ for offenses cannot be reduced to the sum of the responsibility of the individual officers though in Canadian law “. . . a company is presumed to have participated in a crime if it is established that its employees have acted in a manner equivalent to such a crime. . . .establishing a presumption of criminal participation of organizations (emphasis added).”75 The corporation as a legal person in itself separately owes a fiduciary duty to the public to honor the law that governs its operations and not to harm the public interest through infractions of the law in part as it benefits from the law as a distinct legal entity; a corporation. Judge Belanger in Quebec Inc., on the view here, speaks of corporations (‘legal persons’) almost as if they were human beings (natural persons): The framework for analyzing “cruel and unusual punishment” was developed from situations involving only individuals. However, the fine can be cruel to the legal person. A corporation may suffer a cruel penalty which is manifested by its hardness, severity and kind of hostility. The analysis of the situation must be undertaken according to the reality lived by the legal person and not according to a reality that does not concern it (Bolding and italics added).76

In fact, however, corporations do not live a reality such they can live a cruel and unusual punishment as their reality nor do they have the experience of correctly or incorrectly perceived “severity” and especially not of a “kind of hostility” in the corporate penalty imposed. It is, on the analysis here, legally insupportable to collapse (1) corporate rights with (2) human rights as set out in the Canadian Charter. Yet; respectfully, it appears to the current author that the majority of the Court of Appeal in Quebec Inc. did just that. • ‘Results-Oriented Judging’: Judge Belanger, writing for the majority of the Appeal Court in Quebec Inc., appears to emphasize the most sympathetic scenarios for the corporation ‘suffering’ a minimum mandatory corporate fine

75

Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 95. 76 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 122.

22

1 Judicial Activism and Its Intersection with Democratic Rule of Law

penalty (a penalty imposed as per the stipulations of the Quebec Building Act) and to paint a positive picture of most corporate officers: The legal person is a legal instrument available to citizens who, in the vast majority of cases, use it for legitimate purposes. It always acts through its leaders, employees or agents.77 Imagine, however, a legal person who would be the economic engine of his region, forced to close his doors, dismiss his employees and cause their move, affecting the retirement pension fund, because it was imposed a minimum fine excessively disproportionate. Imagine a family business built after many years of work, ending up with no alternative but bankruptcy. Imagine also a big company, which, to counter the harmful effects of an excessively disproportionate fine has no alternative but to pass the fine to consumers of an essential good.78

These considerations may have led Judge Belanger (on behalf of the majority of the Court of Appeal in Quebec) in Quebec Inc. to inadvertently allow the pathos in the human scenarios she conjured79 (see quote above) to guide the majority’s analysis of whether corporate interests could fall within the scope of s 12 of the Canadian Charter. This then leading to what Kmiec refers to as ‘results–oriented judging’. This author reiterates that an argument against a disproportionate corporate penalty (i.e. where this applies to a minimum mandatory fine in a particular fact circumstance involving corporate knowing misconduct) cannot be properly legally confounded with or collapsed into the category of ‘cruel and unusual punishment’ as conveyed by s 12 of the Canadian Charter.

1.2.3

Additional Comments on Quebec Inc. v. Director of Criminal and Penal Prosecutions

Judge Belanger in Quebec Inc. makes reference to the ‘living tree’ conceptualization of the Canadian Charter as follows: The interpretation of constitutional laws must evolve over time and be continually adapted to new realities, while taking into account historical, social and legislative contexts. To recall Judge LeBel’s words. . . “[t] he” living tree “continues to grow, but still from its very roots. The Constitution requires an openness to new differences that occur in Canada, but also the

77

Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 122. 78 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 133. 79 Recall the previous discussion regarding the legal separation between the employees and shareholders of the corporation and the corporation as a legal entity in itself (a legal person) and the implications thereof.

1.2 Case 1: Québec Inc. c Directeur des poursuites criminelles. . .

23

acceptance of the principle that it remains in contact with the roots of our contemporary democratic society.80

The majority of the Court of Appeal of Quebec in Quebec Inc.81 held then, it would appear, that considering a corporation to have interests that fall within the scope of the s 12 right guarantee of the Canadian Charter to be protected from cruel and unusual punishment or treatment simply reflects a natural evolution in constitutional interpretation: Extending the protection of Article 12 of the Charter to the legal entity authorized to defend against a penalty it considers cruel and unusual, which appears in the twentieth I th (sic) [twenty-first] century, in the normal order things.82

However, the current author would argue that the courts in assigning human rights to corporations inadvertently undermine democratic principles. This by according to non-natural ‘persons’-legal fictions that purport to transform an inanimate entity into a ‘person’ with certain Charter rights-a range of defenses (to liability) grounded in essence on human rights and human dignity. Judge Belanger for the majority in Quebec Inc. appears almost to imply in a tacit roundabout way that in the result (of applying selected Canadian Charter rights to corporations) corporations are recognized in law to have dignity as legal persons that must not be offended by, for instance, alleged cruel and unusual punishment or treatment: it is worth recalling that certain provisions of the Charter, which today guarantee the protection of legal persons, are essentially aimed at respect for human dignity. And that did not have the effect of preventing legal persons from benefiting from it.83

The latter on the view here, in effect, results in corporate coopting of human rights and hence enlarges the potential scope of corporate relatively unchecked societal power84 due to often raising the bar to unfair heights for holding corporations accountable for betraying the public trust if and where they do.85 80 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 CanLII [91470732 Québec Inc.] (Court of Appeal of Quebec) at para 103. 81 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 CanLII [91470732 Québec Inc.] (Court of Appeal of Quebec). 82 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 CanLII [91470732 Québec Inc.] (Court of Appeal of Quebec) at para 123 (Judge Belanger for the majority). 83 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 CanLII [91470732 Québec Inc.] (Court of Appeal of Quebec) at para 116. 84 Compare: Rowland, Wade Canadian Corporate Rights and Canada’s Supreme Court. (Posted 13 August, 2011) http://www.waderowland.com/topics/corporations/ Wade suggests that: “Corporations obviously need protection from arbitrary and capricious government actions if they are to carry on business. But those protections are already provided in ordinary corporate and contract law. . . .The only rights corporations ought to be able to claim are those explicitly granted to them by duly elected governments, with the informed consent of the people. Access to Charter rights gives these . . .entities power and autonomy that is unnecessary, unreasonable, and dangerous.” 85 The Dissenting Judge of the Court of Appeal of Quebec in Quebec Inc. appears to make substantively the same point put differently: “The purpose of the Article 12 cannot, in my opinion,

24

1 Judicial Activism and Its Intersection with Democratic Rule of Law

1.3

Case 2: Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal of Canada), SCC Judgment (December 19, 2019) (Docket 37748) (On the Question of the Revocation of Jus Soli Canadian Citizenship of the Children of Russian Spies)

The Vavilov case86 concerns the issue of whether a child born in Canada whose parents were spies for Russian intelligence at the time of his birth, and while the family lived in Canada, is entitled to Canadian citizenship. Canada is one of a limited number of countries that normally grant automatic Canadian citizenship based on the individual’s Canadian birthplace ( jus soli—‘right of soil’—citizenship). The Canadian Citizenship Act that sets out the statutory jus soli citizenship right stipulates a limited number of exceptions which preclude the automatic right to Canadian citizenship based on jus soli. In this case; Alexander Vavilov who was born in Toronto, Ontario, Canada was held by the Registrar of the Canadian Ministry of Citizenship and Immigration to fall into one of the exceptions that constitute a bar on birthplace Canadian citizenship. The Registrar relied on the expertise of a citizenship analyst for the Ministry who concluded that Alexander’s parents were not in Canada as lawful citizens or permanent residents but rather were employees or representatives of a foreign government without diplomatic or consular immunities and privileges and hence Alexander Vavilov fell under one of the exceptions to birthplace citizenship set out in the Canadian Citizenship Act.87 More precisely; the Registrar held that Alexander’s parents were “unofficial employees or representatives of the Russian government” and of course not lawful Canadian citizens or permanent residents or lawfully in Canada given that they were doing espionage work on behalf of the Russian government.88 This then allegedly made Alexander ineligible for birthplace citizenship in Canada according to the Registrar’s interpretation of the relevant text of the Canadian Citizenship Act s. 3(2)(a): Section 3 of the Citizenship Act provides that persons born in Canada after February 14, 1977 are Canadian citizens unless neither of the child’s parents is a citizen or lawfully admitted to Canada for permanent residence and, among other circumstances, either of the

be denatured in order to protect the economic rights of a corporation. If this were the case, it is easy to predict the negative impact that this would inevitably have on all public policy laws aimed at regulating and disciplining various sectors of economic activity.” Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 CanLII [9147-0732 Québec Inc.] (Court of Appeal of Quebec) at para 71. 86 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal). 87 CANLII CONNECTS: Citizenship: Children of Diplomats Born in Canada Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal). 88 Alexander Vavilov: Respondent’s Factum to the Supreme Court of Canada at p. 1 https://www. scc-csc.ca/case-dossier/info/af-ma-eng.aspx?cas¼37748.

1.3 Case 2: Vavilov v Canada (Minister of Citizenship and Immigration), . . .

25

parents were a diplomatic or consular officer or other representative or employee of a foreign government.89

On August 15, 2014 Alexander Vavilov was informed that his certificate of Canadian citizenship that had been issued to him in 2013 had no legal force or effect (notice of revocation). The Federal Court of Canada dismissed Alexander Vavilov’s application for judicial review of the Registrar’s revocation of Canadian citizenship decision. That Court held that Alexander Vavilov as a child of employees or representatives of a foreign government was excluded from Canadian citizenship though he was born in Canada and notwithstanding the fact that his parents were not consular officials or persons with any sort of diplomatic or other immunities and privileges. The Federal Court of Appeal, in contrast, interpreted the s. 3(2)(a) provision in the Canadian Citizenship Act excluding the children of foreign government employees or representatives from Canadian birthright citizenship to apply only where those foreign government employees or representatives benefitted from diplomatic privileges and immunities. Since such was not the case for Russian spies such as Alexander’s parents, the Federal Court of Appeal overturned the Registrar’s decision and held that Alexander Vavilov was entitled to Canadian jus soli citizenship by virtue of his birthplace being in Canada. The Minister of Citizenship and Immigration then appealed the Federal Court of Appeal decision (granting Alexander Canadian birthright citizenship) to the Supreme Court of Canada. At the time of writing the Supreme Court of Canada has heard the Vavilov case in conjunction with two other cases to address the issue of “the nature and scope of judicial review of administrative action. . .” and judgment was rendered December 19, 2019 affirming the Federal Court of Appeal judgment in Vavilov.90 Thus there was, in the first instance, a dispute between the parties as to what was meant by “employees or representatives of a foreign government” in s. 3 (2) of the Canadian Citizenship Act such that the children of such persons would be barred from jus soli Canadian citizenship though the children were born in Canada. That is; whether “employees or representatives of a foreign government” referenced (a) individuals with an official status recognized by Canada; specifically a person with consular or diplomatic status or other status with attached privileges and immunities (as Alexander Vavilov argued) or alternatively (b) whether (as the Minister of Citizenship and Immigration held) no bona fide status with attached privileges or immunities was necessary for someone to be considered ‘an employee or representative of a foreign government’ for the purposes of deciding whether the exception (set out in the Canadian Citizenship Act) denying Canadian birthright

89

Timothy Vavilov and the Ministry of Citizenship and Immigration 2018 FC 450 (Federal Court) at para 13. 90 Minister of Citizenship and Immigration v. Alexander Vavilov (10 May, 2018) Supreme Court of Canada (SCC) (Judgement on leave to appeal to the SCC) (on appeal from the Federal Court of Appeal) https://scc-csc.lexum.com/scc-csc/scc-l-csc-a/en/item/17079/index.do. SCC judgement December 19, 2019 https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do.

26

1 Judicial Activism and Its Intersection with Democratic Rule of Law

citizenship applied in the case of their children born in Canada. The case thus concerns statutory interpretation and what factors should guide that statutory interpretation strategy alone or in combination, for instance: (a) textual analysis of selected statutory provisions not much informed by a larger interpretive context, textual analysis in consideration of the purported intent of the drafters of the statute; statutory textual analysis in consideration of the historical legislative context etc. (The aforementioned text analysis strategies reflect a more conservative approach when weighted most heavily) versus (b) heavy weight given to statutory textual analysis in consideration of the larger societal and human rights context including international rights law, textual analysis with due regard to the overall purpose of the statute (here the Canadian Citizenship Act), textual analysis of the pivotal provision interpreted in the context of other relevant provisions in the statute at issue, a consideration of ‘implied rights’ and positive State obligations to respect rights, text analysis of the statutory provision at issue with reference to constitutional values etc. (The latter text analysis strategies reflect a more liberal interpretive approach). The aforementioned textual analysis strategies then, though not mutually exclusive and to some degree reflected in the repertoire of both conservative and more liberal justices, range from the more conservative to the more liberal analytical judicial strategies depending on the weight assigned to combinations of these; arguably reflecting respectively a range of judicial activism from more right-leaning to leftleaning in perspective and agenda. Note also that the issue of the proper standard of judicial review in the case of the administrative decision to revoke Alexander Vavilov’s birthright Canadian citizenship is a contentious and previously unsettled one and was ruled on by the Supreme Court of Canada (SCC) (the December 19, 2019 SCC judgment in this case held ‘reasonableness’ to be the proper standard). It should be noted that there was no issue of potential statelessness for Alexander Vavilov in this case as Russia had deemed Alexander (and his brother Timothy) to be Russian citizens subsequent to their parents being found out as Russian spies and the children’s Canadian citizenship being deemed no longer a fact (whether this meant that the Canadian government had ostensibly ‘rescinded’ Alexander’s Canadian birthright citizenship and that of his brother or whether it never existed in the first place is another issue that arose in the case). The Vavilov brothers who were born in Canada and grew up in Canada self-identified as Canadian and not as Russian and desired to have Canadian citizenship and not to be Russian citizens and never considered themselves to be Russian citizens.

1.3.1

Textualism and Human Rights Issues in the Vavilov Case

Alexander Vavilov argued in the Federal Court of Appeal that in fact his parents were not “employees or representatives of a foreign government” as those terms are intended to be interpreted in s 3(2)(a) of the Canadian Citizenship Act and thus he should not be exempted from Canadian birthright citizenship. For this reason Alexander Vavilov (the Appellant) argued further that the revocation of his

1.3 Case 2: Vavilov v Canada (Minister of Citizenship and Immigration), . . .

27

Canadian citizenship was an unreasonable decision and should not stand.91 The appellant Vavilov argued for a standard of review based on ‘correctness’ (correct interpretation of the Canadian Citizenship Act statute provision 3(2)(a)) as did the Minister of Citizenship and Immigration; though each party had reached very different conclusions as to what was in fact the ‘correct’ interpretation (textual analysis) of s 3(2)(a) of the Canadian Citizenship Act. The government held that the wording/statutory text in the relevant provision: “employees or representatives of a foreign government” did not refer only to such persons if they enjoyed diplomatic or consular immunities and privileges and the Appellant maintained the converse. The Federal Court of Appeal formulated the substantive key question in the case as being one involving the proper textual analysis of a statute; here the Canadian Citizenship Act in particular with respect to s 3(2)(a): The central issue before the Registrar, the Federal Court and this Court is one involving the interpretation and application of paragraph 3(2)(a) of the Citizenship Act92

The lower federal court (the Federal Court of Canada) had considered that the proper standard of review in the case was ‘correctness’ holding further that: the interpretation of [paragraph 3(2)(a) of the Citizenship Act] is a question of law of general application across Canada and raises a pure question of statutory interpretation.93

The Federal Court of Appeal (FCA) disagreed with both the appellant and the government as well as the Federal Court on the issue of the proper standard for the judicial review of an administrative decision (here of the Registrar’s administrative action of revoking Alexander Vavilov’s birthright Canadian citizenship). The FCA held, in contrast to the aforementioned, that the proper standard of review in the Vavilov case was ‘reasonableness’ and not ‘correctness’.94 The FCA majority held that Canadian Supreme Court precedent instructed that: reasonableness is the presumed standard of review for the decision of an administrative decision-maker familiar with a frequently used statute, like the Registrar of Citizenship here who is interpreting the Citizenship Act.95

The Federal Court of Appeal (FCA) also cited Supreme Court of Canada precedent that holds that in the more common case an administrative body is owed much deference when it is interpreting its own enabling statute or other statutes upon

91 Vavilov v Canada (Minister of Citizenship and Immigration), Appeal) at para 19. 92 Vavilov v Canada (Minister of Citizenship and Immigration), Appeal) at para 21. 93 Vavilov v Canada (Minister of Citizenship and Immigration), Appeal) (Citing the Federal Court (lower Court)) at para 22. 94 Vavilov v Canada (Minister of Citizenship and Immigration), Appeal) at para 13 and 22–24. 95 Vavilov v Canada (Minister of Citizenship and Immigration), Appeal) at para 25.

2017 FCA 132 (Federal Court of 2017 FCA 132 (Federal Court of 2017 FCA 132 (Federal Court of 2017 FCA 132 (Federal Court of 2017 FCA 132 (Federal Court of

28

1 Judicial Activism and Its Intersection with Democratic Rule of Law

which it relies heavily in carrying out its full administrative mandate.96 The latter (greater deference to the administrative tribunal’s decision-making) is thus generally an indicia of a ‘standard of reasonableness’ being applied for judicial review. In Vavilov the Ministry of Immigration and Citizenship was interpreting the statute it was entrusted to interpret and apply; namely the Canadian Citizenship Act and hence Judge Stratas for the majority of the FCA in the case maintained that a ‘standard of reasonableness’ in Vavilov was the proper one for judicial review in this instance. The Federal Court of Appeal (FCA) indirectly implied that the Federal Court (FC) in Vavilov,97 in relying on a ‘correctness’ standard for judicial review of the Registrar’s decision, had ignored binding Supreme Court of Canada (SCC) precedent on the proper standard of judicial review of administrative action. That potentially rebuttable proper standard of judicial review, the SCC maintained, was ‘reasonableness’ in cases where an administrative body was interpreting its own statute save possibly in those cases that were exceptional in some way.98 Thus one could argue that the Federal Court of Appeal in Vavilov tacitly suggested that the Federal Court had engaged in what Kmiec categorizes as ‘judicial activism involving ignoring of vertical precedent’ (precedent set by a higher court; here that higher court being the Supreme Court of Canada) when it applied the correctness standard of review in Vavilov (setting aside for a moment what on the facts may have been the proper standard for judicial review-‘correctness’ or instead ‘reasonableness’ of the administrative decision reviewed (the Canadian citizenship revocation). Interestingly the Federal Court of Appeal (FCA) in Vavilov (with Judge Stratas writing for the majority) pointed out that the proper standard of review when the issue is procedural fairness of an administrative decision was in fact in dispute in the FCA and not settled law.99 Judge Stratas referenced in his reasons, at the time, recent Supreme Court of Canada case law where the standard of review the SCC contended it was applying in the particular case was in practice actually not the standard used.100 There was then an implied allusion by Judge Stratas to results-oriented judicial activism to achieve justice (as perceived by the judicial majority in a case) in terms specifically of flexible handling of whatever standard of review was ostensibly the one purportedly applied. As will be discussed; in Vavilov the FCA applied the ‘reasonableness standard’ but in a manner that left essentially no deference to the administrative body given the high stakes at issue for the Appellant Alexander

96 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 27. 97 Vavilov v Canada (Minister of Citizenship and Immigration) (per Bell J.) 2015 FC 960 (Federal Court). 98 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 24–26 and para 28. 99 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 11. 100 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 12.

1.3 Case 2: Vavilov v Canada (Minister of Citizenship and Immigration), . . .

29

Vavilov; namely his Canadian citizenship.101 Indeed Judge Stratas went so far in Vavilov as to maintain that “. . . on the facts of this case, it is unnecessary . . . to resolve this issue [the proper standard of judicial review] in this case”.102 Judge Stratas holds that for justice to be given effect in this instance; the facts of the Vavilov case lead to an imperative that Alexander Vavilov have his Canadian citizenship restored. The latter regardless the proper standard of review and even should the Federal Court of Appeal have been mistaken in applying the ‘reasonableness standard of review’ in Vavilov103 (which is a question addressed by the Supreme Court of Canada in Vavilov). Such an approach, in part at least, arguably amounts to ‘judicial activism involving results-oriented judging’ to ensure as an outcome that, in the court’s estimation, constitutes justice for a vulnerable person consistent with democratic and constitutional values and the rule of law on the facts and law in the case. The same sentiment (regarding the need, at times, to greatly diminish the deference accorded by the court to an administrative decision in judicial review of that administrative action under a ‘reasonableness standard of judicial review’) is put artfully in the Supreme Court of Canada majority opinion in Baker v. Canada (Minister of Citizenship and Immigration): Though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter (emphasis added).104

We will shortly consider the Federal Court of Appeal’s (FCA’s) majority reasoning in Vavilov as to the conclusion that Alexander Vavilov having his Canadian jus soli citizenship restored constituted justice. Let us first consider, however, the implications of Judge Stratas (writing for the majority of the FCA) being willing to disregard the proper standard of judicial review if need be should hypothetically that standard have been “correctness”105 and that standard would have led to affirmation of the revocation of Alexander Vavilov’s Canadian citizenship. We will examine Judge Stratas’ reasoning regarding the weight of consideration to be properly directed to the standard of judicial review issue in Vavilov. It is noteworthy in this regard that Judge Stratas downplays the importance of the proper standard of

101

Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 36–37. 102 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 14. 103 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 14, 34. 104 Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 summary (Supreme Court of Canada). 105 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 14: “Even if the standard of review were correctness, on the facts of this case I would not give effect to this ground of review.”

30

1 Judicial Activism and Its Intersection with Democratic Rule of Law

judicial review question in Vavilov holding that “To some extent, the standard of review debate in this case is not of great practical import.”106 Judge Stratas downplays the importance of the choice between the ‘reasonableness’ versus ‘correctness’ standard of judicial review in a case where fundamental appellant interests are at stake (as here where Alexander Vavilov asserts, correctly or incorrectly, that had fair process been accorded him his claim to birthright Canadian citizenship would have been vindicated). Judge Stratas argues, in essence, that the Federal Court of Appeal has, for practical purposes, collapsed to a large extent, the ‘reasonableness judicial review standard’ with the ‘correctness standard’ in such cases where the appellant’s fundamental interests are at stake and rule of law issues arise: There is authority in this Court for the proposition that where reasonableness is the standard of review and where, as here, the interests of the individual are high (affecting the court’s sensitivity to rule of law concerns), this Court may apply the reasonableness standard in a more exacting way. . .it assesses the administrative decision-maker’s interpretation of a statutory provision closely, in fact sometimes in a manner that appears to be akin to correctness.107

This (the point expressed in the excerpt above), on the view here, is an indirect way of saying that Supreme Court of Canada precedent informs the lower courts that ‘principled judicial activism’ directed to according administrative decision-makers considerably less or, in certain situations, possibly no deference may be an appropriate course to ensure a just outcome where (a) an appellant’s interests are very high in a judicial review case and (b) issues of rule of law are involved in the judicial review i.e. questions arise regarding to what degree, if at all, democratic and Canadian Charter values informed the administrative statutory interpretation relied on and its rationale as well as in the administrative decision-making process. That is; though a ‘reasonableness’ standard of judicial review is being applied (since, for instance, the case involves the administrative body’s interpretation of its enabling statute); the reviewing Court will nevertheless offer the administrative decision— maker little deference in such a case (unlike the more usual course where a ‘reasonableness’ standard of judicial review is used and the administrative decision-maker is interpreting its enabling statute or others that it frequently relies on and therefore is generally given much deference by the court). Such judicial activism then may be considered by some both as: (a) ‘judicial legislation’ since the court in such an instance does not accept the policy-driven statutory interpretation that the administrative body has adopted regarding i.e. a provision of its enabling statute (here the government’s interpretation that the terms “employees or representatives of a foreign government” in s. 3(2)(a) of the Canadian Citizenship Act refers to all such persons regardless whether they have diplomatic or consular or other such

106

Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 34. 107 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 36–37.

1.3 Case 2: Vavilov v Canada (Minister of Citizenship and Immigration), . . .

31

privileges and immunities) and (b) ‘results-oriented judging’ guided by the imperative to protect the fundamental rights of the appellant to fair process in statutory interpretation and uphold the rule of law as well as democratic values. On the analysis of this author such judicial activism is in fact ‘principled’ and a necessary check on arbitrary administrative action. In this regard it is important to understand that in Vavilov the Registrar did not explain to the Court what reasoning led the Registrar to a statutory interpretation of s 3(2)(a) of the Canadian Citizenship Act that held that “employees and representatives of a foreign government” for the purposes of that section included such persons also without diplomatic or other privileges and immunities such that their children born in Canada were not entitled to Canadian birthright citizenship: Further rendering the standard of review of less practical import in this case is the fact that we have before us little in the way of the reasoning of the Registrar. On the central statutory interpretation issue before us, the Registrar said nothing.108

Without any representation from the government in Vavilov109 as to the Registrar’s underlying reasoning regarding the statutory interpretation embraced by the Registrar in the case at bar; the democratic rule of law is threatened by the possibility of capricious and arbitrary statutory textual interpretation. Further the Registrar relied on the Ministry’s citizenship analyst but that person also provided minimal information on the reasoning underlying the government’s statutory interpretation of s 3(2)(a) of the Canadian Citizenship Act110: In such circumstances, it is hard to give much deference to the decision; the concern is that we cannot be sure that the statutory interpretation issue was adequately considered. On some occasions like this, we have quashed an administrative decision because we cannot engage in reasonableness analysis or because we are concerned that administrative decisionmaking is being immunized from review (emphasis added).111

The Canadian courts not uncommonly thus will (on the analysis here) engage in ‘principled judicial activism’, for instance, where the democratic rule of law demands it. This even in contexts where a ‘reasonableness standard’ is the accepted one for judicial review of an administrative decision. Since such judicial activism by the courts is, in the context described, triggered by rule of law considerations it is, on the view here, consistent with democratic principles and the proper role of the courts. This is not to suggest, however, that such judicial activism inevitably leads to a

108

Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 38. 109 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal). 110 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 39. 111 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 39.

32

1 Judicial Activism and Its Intersection with Democratic Rule of Law

legally supportable result that is immune from contestation. In Vavilov112 then the Federal Court of Appeal relied on textualism put in a broader context through principled judicial activism to conclude that the Registrar was owed little deference in the statutory interpretation the Registrar had assigned to the relevant section of the Canadian Citizenship Act; s. 3(2)(a) subjected to judicial review (insofar as the Registrar’s interpretation that the provision of the Canadian Citizenship Act at issue (s. 3(2)(a)) allegedly stipulated, for the purposes of denying certain children jus soli Canadian citizenship, that “employee[s] in Canada of a foreign government” included also persons who did not enjoy diplomatic or consular or other comparable privileges and immunities): . . .I find that the result the Registrar reached on these facts, namely that the appellant’s parents were “employee[s] in Canada of a foreign government” in paragraph 3(2)(a) of the Act, is not supportable, defensible or acceptable and, thus, is not reasonable.113

The Federal Court of Appeal (FCA) in Vavilov thus engaged in judicial activism by not according the government a large margin of appreciation (deference) with regard to its interpretation of the Canadian Citizenship Act provision at the heart of the case insofar as the FCA held that that interpretation was over-inclusive. This notwithstanding that the FCA was ostensibly using a ‘reasonableness standard’ in its judicial review. The FCA also did not simply rely on the text of the statute-relevant provision presumably in part since the text of s 3(2)(a) of the Canadian Citizenship Act did not inherently direct as to how the provision applied to the unique facts of the case at bar if it all. Rather the FCA considered the purpose of the statutory provision at issue, its legislative history, and “the international law surrounding it.”114 The FCA noted that, in contrast, the citizenship analyst for the government (on whom the Registrar had relied) had not considered the purpose or larger statutory context of s 3 (2)(a) of the Canadian Citizenship Act115 in his/her interpretation that Alexander Vavilov’s parents were ‘employees or representatives of a foreign government’ as those terms are to be understood in s 3(2)(a) of the Act and not lawful Canadian citizens or permanent residents and that therefore their children were not entitled to jus soli Canadian citizenship. The government thus failed in its proper duty on a number of counts, on the FCA majority view, with regard to properly and adequately reasoned statutory interpretation thus giving rise to fair process and rule of law concerns. For instance, Judge Stratas points out the government’s duty not to take too narrow a textualism approach:

112

Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal). 113 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 40. 114 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 41–43. 115 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 44.

1.3 Case 2: Vavilov v Canada (Minister of Citizenship and Immigration), . . .

33

The need to take into account the purpose of statutory provisions is made especially important by section 12 of the Interpretation Act, R.S.C. 1985, c. I-21, a section that applies to all, courts and administrative decision-makers alike. It provides that a statutory provision “shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects” (emphasis added).116

Judge Stratas, writing for the majority in Vavilov117 considered the purpose of s 3 (2)(a) of the Canadian Citizenship Act and held, based on various evidentiary materials, that the purpose was in part to bring Canadian law in line with various other statutes and international law such as the Vienna Convention on Diplomatic Relations, 500 U.N.T.S. 241.118 According to certain international law experts; under international law “children born to those in a foreign nation who enjoy diplomatic immunities do not acquire the nationality of the foreign state.”119 Further the history of the Canadian Citizenship Act reveals that the legislature wished to make a distinction between (a) employees of a foreign entity such as of a foreign company/corporation who have no diplomatic, consular or other privileges and immunities versus (b) persons who are employed by and/or represent a foreign government and who do have such privileges and immunities officially recognized by the Canadian government. Section 3(2)(a) of the Canadian Citizenship Act was intended by the drafters to apply to children born in Canada to the latter but not to those born in Canada to the former on the view of the FCA in Vavilov120 in reviewing the history of the provision and its broader purpose in context. In sum then Judge Stratas, writing for the majority of the FCA in Vavilov,121 found that only children born to parents who were not lawful Canadian citizens or permanent residents and whose parents had diplomatic or consular privileges and immunities were intended by the Canadian government of the time of the statute’s enactment to be barred from Canadian birthright citizenship under s. 3(2)(a) of the Canadian Citizenship Act. The parents of Alexander Vavilov as Russian spies of course enjoyed no such privileges and immunities and hence the FCA found that Alexander Vavilov was not barred from jus soli Canadian citizenship.122

116

Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 42. 117 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 4. 118 Vienna Convention on Diplomatic Relations, 500 U.N.T.S. 241 (18 April, 1961) at para 45 https://treaties.un.org/pages/viewdetails.aspx?src¼treaty&mtdsg_no¼iii-3&chapter¼3& lang¼en. 119 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 70. 120 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 68. 121 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal). 122 Vienna Convention on Diplomatic Relations, 500 U.N.T.S. 241 at para 48 (18 April, 1961) https://treaties.un.org/pages/viewdetails.aspx?src¼treaty&mtdsg_no¼iii-3&chapter¼3&lang¼en.

34

1 Judicial Activism and Its Intersection with Democratic Rule of Law

In Vavilov both the Federal Court and also the Federal Court of Appeal (FCA) majority, the latter as per Judge Stratas’ opinion, held that parents who were not lawful Canadian citizens or permanent residents and who had diplomatic or consular privileges and immunities do not owe the obligations of citizenship to Canada.123 However, the respondent (the government) argued, without distinction, that any parent who was in Canada representing the interests of a foreign government in any capacity (i.e. persons without diplomatic or other privileges and immunities but lawfully in Canada as an employee of a foreign company, spies for a foreign government unlawfully in Canada and without diplomatic or other privileges and immunities etc.) should have their children denied Canadian birthright citizenship with the implication that the children of also such persons could not be relied on to be loyal to Canada: The respondent goes even further: under paragraph 3(2)(a), citizenship is to be denied to a child of a foreign national who was in Canada representing the “interests of his or her own government.” And it applies to the children of foreign spies. Giving Canadian citizenship to the children of persons of that sort is “inconsistent with the duties and responsibilities of Canadian citizenship.” See the respondent’s memorandum of fact and law at paras. 72–76 (emphasis added).124

This, it is here argued, disregards the child as an autonomous rights-bearing person with a separate legal personality from that of his/her parents. The majority of the Federal Court of Appeal (FCA) disagreed with the government that children of Russian spies could be barred from Canadian birthright citizenship or that this bar applied for children born to parents having some other status that had them working for foreign interests lawfully or unlawfully while in Canada where those parents had no recognized diplomatic, consular or other immunities and privileges. Hence the FCA majority opinion in Vavilov inured to the child’s benefit in that case on the facts of the case given Alexander Vavilov’s parents’ status as Russian spies: In my view, much clearer and broader legislative text would be needed in order to persuade me that Parliament intended to exclude from citizenship a child of a foreign national who was in Canada representing the “interests of his or her own government”.125

In general, however, any government inference about the child’s anticipated sense of duty to the home country of the parents versus Canada based on simply the government’s knowledge of where the parents’ loyalties lie or are expected likely to lie is legally insupportable. This as it denies the child’s individual agency and separable personhood. The majority of the Federal Court of Appeal (FCA) in Vavilov, in effect, did not infer that the children of Russian spies could not be considered potential good Canadian citizens simply since their parents served

123

Vienna Convention on Diplomatic Relations, 500 U.N.T.S. 241 at para 47–48 (18 April, 1961) https://treaties.un.org/pages/viewdetails.aspx?src¼treaty&mtdsg_no¼iii-3&chapter¼3&lang¼en. 124 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 73. 125 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 at para 74 (Majority Federal Court of Appeal opinion per Judge Stratas).

1.3 Case 2: Vavilov v Canada (Minister of Citizenship and Immigration), . . .

35

foreign interests while in Canada. The latter majority FCA position is then contrary to the tacit implication in this regard that flows from the government’s interpretation of s. 3(2)(a) of the Canadian Citizenship Act): If we delve into our own assessments of policy, it could equally be said, perhaps, that the sins of parents ought not to be visited upon children without clear authorization by law. As well, the evidentiary record is full of evidence about how the appellant knew nothing of his parents’ secret life and how much he regards himself as a Canadian.126

This author would argue instead in respect of Judge Stratas’ view (articulated in the quote immediately above) that: (a) “the sins of parents ought not to be visited upon children” by law or otherwise and that (b) the children should be judged as autonomous persons and not as, in effect, extensions of their parents and, where possible given the age of the child, in addition, on their own merits and conduct as to their potential for loyalty to Canada. To do otherwise is to deny a fundamental democratic principle that we are responsible only for our own behavior and not that of others whom we did not cause directly or indirectly to engage in the behavior in question; nor aided and abetted nor otherwise facilitated in their behavior. Here the child Alexander Vavilov was not responsible for his parents serving foreign interests as Russian spies. The same is generally true for the children born in Canada to parents who are employees or representatives of foreign governments serving foreign interests and who do have diplomatic or consular or comparable immunities and privileges. Yet the Federal Court of Appeal did not engage in judicial activism to protect the constitutional rights of the latter group of children. Instead the FCA deferred to the administrator’s denial of jus soli Canadian citizenship in their case relying on the Canadian Citizenship Act’s legislative history, legislative intent and the status quo in international law of denying citizenship of the country in which the parents serve as employees or representatives of a foreign State and enjoy certain diplomatic, consular or analogous immunities and privileges. This author argues that the denial of birthright Canadian citizenship to children born in Canada to parents with diplomatic or consular immunities and privileges; parents serving foreign interests and who do fall under s 3(2)(a) of the Canadian Citizenship Act (on the interpretation of that provision as set out by the Federal Court of Appeal in Vavilov127) infringes certain of the child’s constitutional rights under the Canadian Charter of Rights and Freedoms.128 These infringements, on the view here, include but are not necessarily limited to violations of (a) the child’s Canadian Charter right to protection from discrimination (s. 15 of the Charter). This as the child is being barred from birthright Canadian citizenship as a member of a distinct identifiable collective (children born in Canada to a parent(s) who enjoy diplomatic or consular immunities and privileges and who represent foreign interests while in

126

Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 at para 82 (Majority Federal Court of Appeal opinion per Judge Stratas). 127 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal). 128 Canadian Charter of Human Rights and Freedoms Constitution Act 1982.

36

1 Judicial Activism and Its Intersection with Democratic Rule of Law

Canada). This defining feature of the targeted child collective is immutable; it is one the children cannot control (namely whom their biological parents are and what is their parents’ status in Canada as employees or representatives of a foreign government who enjoy certain immunities and privileges). This then results in unequal treatment of these children under the law. That unequal treatment is, on the view here, grounded on a foregone conclusion as to the children’s presumed ineligibility to jus soli Canadian citizenship due to an unconstitutional provision of the Canadian Citizenship Act namely s. 3(2)(a). That provision essentially, for all practical purposes, unjustifiably stereotypes and presumes that the children in question could and would not be loyal to Canada or fulfill the requirements and duties of Canadian citizenship given the status of their parents. The Canadian Citizenship Act s. 3(2)(a) as interpreted by the Federal Court of Appeal may also serve to undermine the child’s s. 7 Canadian Charter right to security of the person in particular circumstances. This where, for example, it is in the child’s best interest to stay in Canada for whatever reason (health, education, family situation etc.) and be granted jus soli Canadian citizenship and perhaps even be separate from the parents (i.e. the parents term of office may have expired and they must leave Canada or the parents may have been expelled by Canada or recalled to their home country etc. or Canadian child protection services may have been notified of child abuse or neglect of the child/children). It is here suggested that in such instances the child/children should be entitled to free independent legal representation from the Canadian government in a proceeding regarding the jus soli issue and the child’s asserted claim of right to reside in Canada as a purported Canadian citizen. Such an approach would be consistent with Canada’s obligations as a party to the Convention on the Rights of the Child (CRC)129 and Canada’s espoused principle, consistent with the CRC, that children’s fundamental human rights as autonomous persons be given due consideration in all government decisions as well as their best interests.130 The majority held in Baker that international law such as the CRC (whether incorporated in Canadian domestic law as binding on the courts or not) “may help inform the contextual approach to statutory interpretation and judicial review”.131 Yet the Federal Court of Appeal in Vavilov agreed with the Federal Court that children born in Canada to parents who have diplomatic or consular immunities and privileges (which parents are not lawful Canadian citizens or permanent residents and who serve foreign interests) are children properly automatically barred from birthright Canadian citizenship due simply to their

129

Convention on the Rights of the Child entry into force 2 September, 1990. In Baker the majority of the Supreme Court of Canada found that an immigration decision involving an order for deportation of the mother should be quashed on judicial review “since the reasons for this decision did not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of the appellant’s children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation.” Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 summary. 131 Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 at para 70 (Supreme Court of Canada). 130

1.3 Case 2: Vavilov v Canada (Minister of Citizenship and Immigration), . . .

37

parents’ status. This situation, as mentioned, denies the child’s separate identity as a rights-bearing person and cannot, on the view here, be legally justified. The child is owed independent consideration for birthright Canadian citizenship and awarded such absent any legally supportable impediment where the bar to jus soli citizenship is demonstrably consistent with Canadian democratic values. In the case of the bar imposed by the government in Vavilov (holding the children born in Canada of Russian spies to fall under the exception in s. 3(2)(a) of the Canadian Citizenship Act) this is, for the reasons discussed, not an instance of a legally valid exclusion of that category of children from jus soli Canadian citizenship. Thus, on the respectful view here, the bar against birthplace citizenship in the foreign country where the parents have diplomatic or consular immunities and privileges and are not lawful citizens or permanent residents and serve foreign interests is inconsistent with the CRC though it is consistent with other international law such as the Vienna Convention on Diplomatic Relations 500 U.N.T.S. 241.132 Perhaps this inconsistency (on the view here) in international law exists as the 1961 Vienna Convention on Diplomatic Relations predates the greater recognition in the international legal community and the United Nations human rights system of children as persons in their own right with agency and an autonomous legal personality separate from that of the parents. Note that the children born in Canada to parents with diplomatic or consular immunities and privileges (where the parents represent a foreign government and are not lawful Canadian citizens or permanent residents) also enjoy automatic privileges and immunities. The latter amounts to, in effect, immunities and privileges imposed on the children as a derivative or extension of the parents’ immunities and privileges and not based in any sense on the children’s independent person status or choice or empirically demonstrable capacity/inclination or incapacity/disinclination for loyalty to Canada. As children generally have no control over their parents’ pursuit of a line of work such as one that offers diplomatic or consular privileges and immunities whilst in the foreign country; it would seem inappropriate to assign the children automatic immunities and privileges as a derivative of those of their parents and then hold, in circular fashion by implication, that that very fact figures into a bar to birthright Canadian citizenship for such children. That bar is based on an inference that by virtue also of that conferral of privileges and immunities to the immediate family living in Canada, and the parents officially representing foreign interests, that the children cannot be considered potentially trustworthy as persons who would be loyal to the laws of Canada and the duties of Canadian citizenship.133 The children, however, as mentioned, have these immunities and privileges imposed on them as 132

Vienna Convention on Diplomatic Relations 500 U.N.T.S. 241 (18 April, 1961) https://treaties. un.org/pages/viewdetails.aspx?src¼treaty&mtdsg_no¼iii-3&chapter¼3&lang¼en. 133 One might ask if the consular or diplomatic or other privileges and immunities of a parent employee or representative of a foreign government (who is not a lawful Canadian citizen or permanent resident) at some point be canceled whether their children (born in Canada) then would be eligible for Canadian birthright citizenship. It seems likely the answer would be ‘no’ as the children appear to carry, in the government’s view, the taint of presumed incapacity for loyalty to

38

1 Judicial Activism and Its Intersection with Democratic Rule of Law

the result of their parents’ status. The children cannot be presumed then to be loyal to foreign interests rather than Canadian interests based on this extension of immunities and privileges to the family unlike the parents who are declared employees or representatives of foreign governments officially tasked with advancing foreign interests and in Canada for that purpose. The lower court (the Federal Court (FC)) contended that it would be (to use the FC’s words) an “absurd result” (one that the Federal Court of Appeal ultimately did not resolve but accepted) that: . . .children of a foreign diplomat, registered at an embassy, who conducts spy operations, cannot claim Canadian citizenship by birth in Canada but children of those who enter unlawfully for the very same purpose, become Canadian citizens by birth (emphasis added).134

Judge Stratas of the Federal Court of Appeal, writing for the majority in Vavilov,135 relegates such concerns (as expressed in the quote immediately above) to what, in his opinion, is an inappropriate judicial assessment of government policy per se (referring to the government policy of denying birthright citizenship to children of parents who have diplomatic or consular or other comparable immunities and privileges); an assessment divorced from the necessary context: We all have freestanding policy views. But judicial review is about applying legal standards, not our own views of what may or may not be absurd.136

Assessing the legal bona fides of a policy reflected in the government’s statutory interpretation at issue must, Judge Stratas holds, be based on the “evidentiary record, the legislation and case law bearing on the problem, judicial understandings of the rule of law and constitutional standards.”137 Notwithstanding that being the case; this author argues that the concern expressed by the Federal Court (FC) regarding the above described inconsistency here reflects a matter that is an indication that there is in fact a constitutional and rule of law issue at play that should not be ignored. This in that the distinction between the two groups of children noted by the FC in the aforementioned quote is arbitrary and based on contrasting parental status in each case. The distinction reveals a disregard for the children’s independent legal personality and the government’s obligation that the children be considered in their own right for Canadian citizenship (here on the basis of jus soli) apart from considerations

Canada based on their parents’ having represented foreign interests while enjoying a legal shield from legal and civil liability in Canada. 134 Vavilov v Canada (Minister of Citizenship and Immigration) Federal Court (per Bell J.) 2015 FC 960 at para 25 cited in Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 at para 80. 135 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA (Federal Court of Appeal) 132. 136 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 84. 137 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 83.

1.3 Case 2: Vavilov v Canada (Minister of Citizenship and Immigration), . . .

39

regarding their parents’ status as persons with or without diplomatic or consular or other privileges and immunities and who, furthermore, may or may not be spies. That matter (the legally insupportable distinctions between child collectives with denial to one group of jus soli Canadian citizenship based on parental status; namely where the parent(s) are diplomats or consular official with attached immunities and privileges), it is here contended, ought to have been addressed forthrightly in the judicial review by the FCA. Instead these constitutional questions involving children’s Canadian Charter rights were, on this author’s view, sidestepped by the majority in the FCA as reflected in the following quote: Here, Parliament’s legislation, viewed in light of its text, context and purpose, very much dictates the result of this judicial review. It is open to Parliament to amend this legislation if, after judicial interpretation, it is not implementing the policies it considers appropriate (emphasis added).138

In other words; the Federal Court of Appeal (FCA) in Vavilov left it to Parliament to amend the legislation at its own discretion “if, after judicial interpretation, it is not implementing the policies it considers appropriate” (emphasis added).139 This punting to Parliament occurred despite the fact that, as here contended, on this author’s respectful view, the judicial interpretation of s 3(2)(a) of the Canadian Citizenship Act arrived at by the Federal Court of Appeal in Vavilov reveals, for the reasons here previously discussed, an unconstitutional violation of certain of the rights of members of particular child collectives. Specifically on the FCA reading of s 3(2)(a) of the Canadian Citizenship Act, on the analysis here, the rights of children have been violated who are denied jus soli Canadian citizenship based on their parents’ status as employees or representatives for a foreign government (whether or not these parents enjoy certain diplomatic or consular privileges and immunities while in Canada). In contrast, to have interpreted the statute relying on a constitutional basis in a manner that would have accorded these children the right to jus soli Canadian citizenship would ostensibly, on the respectful view here, have required a broader “principled judicial activism”. That is; it would have meant the FCA according no deference to the administrator’s interpretation of s 3(2)(a) of the Canadian Citizenship Act in respect of children born in Canada to employees or representatives of a foreign country serving foreign interests regardless whether those parents had immunities and privileges or not. This result would have been in the service, it is here contended, of protecting individual children’s right to (a) non-discrimination, and equality under the law, and (b) their liberty and security of the person interests (guaranteed under s. 15 and s. 7 of the Canadian Charter respectively) regardless the status of the parents. Thus, in the latter sense, the FCA would have arguably engaged in ‘result-oriented judging’ and ‘judicial legislation’ to invalidate a government policy (reflected in the government’s statutory

138

Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 85. 139 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 85.

40

1 Judicial Activism and Its Intersection with Democratic Rule of Law

interpretation of s. 3(2)(a) of the Canadian Citizenship Act) of unconstitutionally denying (a) members of a certain child collective jus soli Canadian citizenship based simply on their parents’ status as persons without Canadian citizenship or permanent resident status but registered at an embassy and enjoying diplomatic or consular immunities and privileges and denying jus soli Canadian citizenship also to (b) children presumed to be untrustworthy in their loyalty to Canada simply because their parents served foreign government interests and the parents were unlawfully in Canada.140

1.3.2

‘Principled Judicial Activism’ in Defense of Human Rights and the Democratic Rule of Law

The intervener in Vavilov named Advocates for the Rule of Law (ARL) made arguments in the Supreme Court of Canada in Vavilov as to, in its view, the proper framework for judicial review in the case which it held should be grounded in the Canadian Constitution and its underlying principles. This intervener ostensibly did not take a position on whether “more or less deference is desirable as a matter of policy”.141 However, the intervener Advocates for the Rule of Law maintains that “rule of law requires courts to determine whether and to what extent the legislature intended the court to defer to the administrative decision maker” but contends that courts generally sidestep this question and simply “adopt, instead, a nearly irrefutable presumption of deference. . .The result, administrative supremacy, is inconsistent with judicial review’s constitutional footing” (emphasis in the original).142 At the same time; this intervener (ARL) argues that “Reviewing courts should defer where the question is one that the legislature intended the decision maker, rather than the court, to answer.”143 This author in contrast seeks, in part, to demonstrate through case law from various selected State courts and an international human rights court that, at times, principled judicial activism is necessary to achieve justice 140

The fact that such child rights violations (on the view here) are incorporated in certain international law [see Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (Federal Court of Appeal) at para 69–70]; is inconsistent then with the legal rights of children embodied in the Convention on the Rights of the Child and does not, it is here argued, permit such unconstitutional violations in Canadian law of children’s Canadian Charter rights to be treated as autonomous ‘persons’ with separable human rights. Note also that the Vavilov brothers cannot be said to have been unlawfully in Canada (unlike the case for the parents) as the children were born in Canada and have separate rights in this regard from the parents. 141 In the Supreme Court of Canada in Minister of Citizenship and Immigration and Vavilov et al., Factum of the Advocates for the Rule of Law 29 October, 2018 at para 2 Referring to the degree of deference the court accords and owes the administrative decision-maker. 142 In the Supreme Court of Canada in Minister of Citizenship and Immigration and Vavilov et al., Factum of the Advocates for the Rule of Law, 29 October, 2018 at para 4. 143 In the Supreme Court of Canada in Minister of Citizenship and Immigration and Vavilov et al., Factum of the Advocates for the Rule of Law, 29 October, 2018 at para 7.

1.3 Case 2: Vavilov v Canada (Minister of Citizenship and Immigration), . . .

41

consistent with democratic values that underlie rule of law in a democracy; especially where the rights of the highly vulnerable are implicated. This even where the legislature may have intended the court to give high or complete deference to the administrative decision-maker. In such cases the judiciary’s statutory interpretation and application of the law to the facts in a manner consistent with democratic values does not allow for deference to the administrator notwithstanding that such deference may have been the intention of the legislature.144 The courts, furthermore, it is here contended, improperly rule when in a manner that reflects in effect the presumption that “. . .the legislature must have intended deference simply by virtue of having given the decision-maker decision-making authority.”145 This author respectfully holds that in Vavilov146 the Federal Court of Appeal (FCA) relied on the notion of “administrative supremacy” insofar as the FCA failed to consider the constitutional issues that arise in denying jus soli Canadian citizenship to children born in Canada to parents who are not lawful Canadian citizens or permanent residents, are employees or representatives of a foreign government and who do enjoy certain privileges and immunities while in Canada. That this represents the status quo in international law is to be considered but does not in any way support the ipso facto conclusion that this approach is consistent with respect for the children’s fundamental human rights. Ironically, at the same time, the FCA, though it relied on a ‘reasonableness standard’ for judicial review, accorded the Registrar of the Ministry of Immigration and Citizenship no deference in rejecting the Registrar’s denial of jus soli Canadian citizenship to children born in Canada to parents who are employees or representatives for a foreign government and which parents do not enjoy certain diplomatic or consular privileges and immunities while in Canada. The latter was due, as previously discussed, in large part to the Registrar’s failure to provide adequate reasoning for his/her statutory interpretation in regards to denying jus soli Canadian citizenship to children in Alexander Vavilov’s situation or one analogous on the relevant facts and the failure to consider the statutory provision at issue in its proper statutory and broader context.

144

Fluker Shaun Does a Privative Clause Completely Oust Judicial Review? Case Commented On: Green v Alberta Teachers’ Association, 2015 ABQB 379 https://ablawg.ca/2015/07/09/does-aprivative-clause-completely-oust-judicial-review/ This article discusses the fact that even where a statute contains a strong privative clause with the intent of immunizing a tribunal’s decision-making from judicial review it does not preclude judicial review but rather is a factor in considering the amount of deference to be accorded the administrative body. 145 In the Supreme Court of Canada in Minister of Citizenship and Immigration and Vavilov et al., Factum on Appeal: First Nations Family and Child Caring Society at para 21 The intervener references here the often erroneous presumptions, where adopted by a court, that a decision-making body should be given deference by the court regarding that decision-making body’s interpretation of its home/enabling statute and that all administrative tribunals delegated power by the government have the requisite expertise required for proper interpretation of the relevant statutory provisions at issue. 146 Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132.

42

1 Judicial Activism and Its Intersection with Democratic Rule of Law

The intervener Advocates for the Rule of Law contends in Vavilov that: . . . legislative supremacy and the rule of law are not in tension. Nor are they necessarily distinct; rather, the former is an aspect of the latter. In all but exceptional circumstances, the rule of law requires courts to determine whether and to what extent the legislature intended the court to defer to the administrative decision maker.147

The current author would argue, in opposition to the view of ARL expressed in the quote above, that ‘legislative supremacy’ and ‘rule of law’ are in fact often in tension as the discussion of selected case law relevant to judicial activism in this book arguably illustrates. The latter being the case if by ‘rule of law’ is meant ‘democratic rule of law’ founded first and foremost on human rights as opposed to ‘rule of law’ grounded in rigid adherence to textualism and government policy reflected in a particular statutory interpretations and legislative dictates regarding the permissibility of judicial review on a certain question or the standard of review to be applied. Thus in Vavilov; legislative supremacy and statutory interpretation by the Federal Court of Appeal (though carried out with due regard for a larger context i.e. the statute as a whole, its legislative history, its purpose, relevant international law etc.) led to upholding of a statutory interpretation by the FCA of s 3(2)(a) of the Canadian Citizenship Act that is, on the view here, inconsistent with respect for the constitutional rights of a certain group of children (namely children born in Canada to parents who are not Canadian citizens or permanent residents and who have diplomatic immunities and privileges in Canada as employees or representatives of a foreign government). These children are denied jus soli Canadian citizenship based on a failure by the legislature (affirmed now by the FCA) to consider the children (for the purpose of eligibility for Canadian citizenship) as autonomous persons with independent legal personality and individuality that defies groundless stereotypes (based on parental status) as to the children’s anticipated alleged unreliability in loyalty to Canada should the child be granted birthright Canadian citizenship. It is noteworthy that Alexander Vavilov’s older brother, Timothy, did raise a constitutional argument (amongst others) in the Federal Court in a separate judicial review proceeding. That proceeding took place while the decision from the Supreme Court of Canada in Alexander’s case was still pending. Alexander Vavilov, in contrast, had not raised a Canadian Charter challenge. However, on the view here, the courts were nevertheless duty bound to consider the constitutional issues embodied in Alexander’s case as well if they were to fully explore the issues surrounding the degree of deference to be accorded the Registrar decision-maker of the Ministry of Citizenship and Immigration and assess the range of issues implicated in an adequately fulsome manner. Furthermore it appears that case precedent from the Supreme Court of Canada suggests that one circumstance increasing the possibility for judicial activism-here in the form of the potential for

147

In the Supreme Court of Canada in Minister of Citizenship and Immigration and Vavilov et al., Factum of the Advocates for the Rule of Law 29 October, 2018 at para 4.

1.3 Case 2: Vavilov v Canada (Minister of Citizenship and Immigration), . . .

43

less judicial deference to the administrative decision-maker-occurs when constitutional issues are raised by the Appellant.148 Timothy Vavilov contended that (a) the governmental administrative process in his case revoking his jus soli Canadian citizenship was unfair and that (b) the Registrar’s interpretation of s. 3(2)(a) of the Canadian Citizenship Act was unreasonable and violated his s. 7 Canadian Charter right to security of the person.149 He requested the Federal Court to consider the issue notwithstanding the fact that the Federal Court of Appeal (FCA) decision in his younger brother’s (Alexander Vavilov’s) earlier case made clear, by implication, that Timothy also could not be denied birthright Canadian citizenship. This, as discussed, since the FCA had ruled that as the brothers’ parents did not enjoy diplomatic or consular privileges and immunities in Canada (a) they were not being referenced in s 3(2)(a) of the Canadian Citizenship Act in the terms “other representatives or employees in Canada of a foreign government” and (b) their children were thus not barred from jus soli Canadian citizenship as that provision did not apply in their case. In fact both the Appellant and the Respondent in the Timothy Vavilov case agreed that (a) stare decisis applied given the FCA decision in Alexander Vavilov’s case and that hence (b) Timothy Vavilov must succeed on his application to have the Registrar’s decision overturned and his Canadian birthright citizenship reinstated.150 Timothy’s counsel argued in Federal Court that the Canadian Charter question was a crucial one of import to the brothers and should be addressed by the FC in the context of the judicial review. He further contended that to grant Timothy Vavilov’s application for an overturning of the Registrar’s decision—that decision being to deny him jus soli Canadian citizenship—based only on statutory interpretation of the relevant provision of the Canadian Citizenship Act as set out by the Federal Court of Appeal (FCA) “would constitute a breach of justice.”151 The Respondent (The Minister of Citizenship and Immigration) asked the FC to certify a question to preserve the government’s appeal rights pending the Supreme Court of Canada decision in Alexander Vavilov’s case.152 The FC granted Timothy’s application for judicial review and his Canadian citizenship was restored. However the FC declined to address the s. 7 Charter question (contrary to the Appellant request) or

Canada (Citizenship and Immigration) v. Khosa 2009 SCC 12 para 70: “Where the legislature has expressly or impliedly provided for standards of review, courts must follow that legislative intent, subject to any constitutional challenge (emphasis added).” 149 Timothy Vavilov v the Ministry of Citizenship and Immigration 2018 FC 450 at para 4 (Federal Court). 150 Timothy Vavilov v the Ministry of Citizenship and Immigration 2018 FC 450 at para 6 (Federal Court). 151 Timothy Vavilov v the Ministry of Citizenship and Immigration 2018 FC 450 at para 29 (Federal Court). 152 Timothy Vavilov v the Ministry of Citizenship and Immigration 2018 FC 450 at para 7–8 (Federal Court). 148

44

1 Judicial Activism and Its Intersection with Democratic Rule of Law

certify a question (contrary to the Respondent’s request) holding it was unnecessary to do either.153 The Federal Court (FC) noted that Timothy Vavilov had framed the Charter question in an if/then format namely that; if the Court accepted the Respondent’s position that his parents were in Canada as “employees of a foreign government” as referenced by s 3(2)(a) of the Canadian Citizenship Act and even though they enjoyed no diplomatic immunities or privileges in Canada then that provision violates his s 7 Charter right.154 The FC in Timothy Vavilov’s case noted that the FCA in Alexander Vavilov’s case had rejected the government’s interpretation of s 3 (2)(a) of the Canadian Citizenship Act and hence the FC took the position in Timothy’s case that no Charter issue arose (“As set out above the respondent’s paragraph 3(2)(a) interpretation has been rejected: consequently the section 7 Charter violation complained of does not arise.”).155 The FC thus declined to consider the Canadian Charter question raised by Timothy Vavilov in the Federal Court of Canada stating the Court’s rationale in that regard as follows: In submitting that the Court should nonetheless address the Charter argument the applicant is asking this Court to embark on a Charter analysis based on the factual premise that Timothy is not a Canadian Citizen. That factual premise is precluded by the Federal Court of Appeal’s interpretation of paragraph 3(2)(a), a paragraph that the majority found was open to only one reasonable interpretation. The jurisprudence makes clear that where issues can be resolved under principles of administrative law and statutory interpretation, constitutional issues need not be decided. . . (emphasis added)156

There are certain key points this author would make in regards to the Federal Court’s refusal to consider the s. 7 Canadian Charter question in the Timothy Vavilov case. First, on the respectful view here, and contrary to the view of the FC, the Charter question was not rendered moot or irrelevant due to the FCA statutory interpretation of s. 3(2)(a) of the Canadian Citizenship Act in Alexander Vavilov’s case. This as arguably children born in Canada to parents who are ‘employees or representatives in Canada of a foreign government’ (as the terms are used in the relevant section of the Canadian Citizenship Act on the FCA interpretation referencing such persons who do enjoy diplomatic immunities and privileges in Canada) suffer a violation of particular Charter rights; s.7 included (as here discussed previously). The Court could have considered the Canadian Charter issues raised by the statutory provision at issue more broadly to address the violation of constitutional rights for all the children affected including the aforementioned group. The Court missed an opportunity, it is here contended, for 153

Timothy Vavilov v the Ministry of Citizenship and Immigration 2018 FC 450 at paras 9, 31–33, 37 (Federal Court). 154 Timothy Vavilov v the Ministry of Citizenship and Immigration 2018 FC 450 at para 30 (Federal Court). 155 Timothy Vavilov v the Ministry of Citizenship and Immigration 2018 FC 450 at para 31(Federal Court). 156 Timothy Vavilov v the Ministry of Citizenship and Immigration 2018 FC 450 at para 32 (Federal Court).

1.3 Case 2: Vavilov v Canada (Minister of Citizenship and Immigration), . . .

45

‘principled judicial activism’ in defence of children’s human rights and instead sidestepped that chance. Second, it was possible (though, on the view here, admittedly highly unlikely given the thoroughness and soundness of the Federal Court of Appeal (FCA) analysis in Alexander Vavilov’s case) that the Federal Court’s decision affirming the cancellation of Alexander’s Canadian citizenship would have been reinstated by the Supreme Court of Canada (thus reversing the FCA ruling). This then would serve as a vertical precedent in Timothy’s case. However the latter would only be possible if the Timothy Vavilov case stayed in the Court system pending the Supreme Court of Canada (SCC) decision in Alexander’s case (as the Respondent in Timothy’s case attempted to have occur by requesting the FC certify a question which the Federal Court declined to do. This as the question as to proper statutory interpretation of s. 3 (2)(a) of the Canadian Citizenship Act had already been answered by the Federal Court of Appeal in the Alexander Vavilov case). The Supreme Court of Canada, in the unlikely event it had overruled the FCA decision in the Alexander Vavilov case, perhaps then would have been inclined to have relied only on strictly an administrative law analysis and statutory interpretation as no constitutional issues were analyzed by the Federal Court or the Federal Court of Appeal regarding the government’s denial of jus soli Canadian citizenship to the Vavilov brothers. The less attention given by the Court to constitutional democratic issues and values implicated in a case; the greater the risk, on the view here, for excessive deference to an administrative body’s statutory interpretation (of its enabling statute or of statutes upon which it routinely heavily relies) and this being potentially so even where that interpretation is inconsistent with respect for the fundamental human rights of a vulnerable Appellant. As it turned out‚ however‚ in the Supreme Court of Canada majority ruling in the Alexander Vavilov case, the holding was based on the unreasonableness of the Registrar’s decision. Unfortunately, the Majority failed to recognize the constitutional issues implicit in the case though acknowledging that constitutional questions in a case may require using a ‘correctness’ rather than a ‘reasonableness’ standard of judicial review. The Federal Court per Judge Patrick Gleeson in the Timothy Vavilov case cites Supreme Court of Canada case law for the proposition that “where issues can be resolved under principles of administrative law and statutory interpretation, constitutional issues need not be decided.”157 The current author argues, in contrast, that unless the relevant constitutional issues are addressed; the issues to be resolved may be misconstrued and some even ignored such that any so-called resolution may be misguided and illusory and result in particular human rights being undermined for a certain vulnerable group. On the current author’s analysis then, for the reasons previously explained, the following comments of the FC in the Timothy Vavilov case miss the mark:

157

Timothy Vavilov and the Ministry of Citizenship and Immigration 2018 FC 450 at para 32 (Federal Court).

46

1 Judicial Activism and Its Intersection with Democratic Rule of Law I am not prepared to make unnecessary and hypothetical Charter determinations in disposing of this application. In the absence of a concrete and real dispute, I decline to address the applicant’s Charter arguments.158

The Federal Court’s tact in the Timothy Vavilov case in declining to address the Charter issue raised by the Appellant Vavilov reflects, on this author’s view, a reticence to engage in judicial activism on a Charter question if that can be avoided. This as if principled judicial activism is inevitably antithetical to democratic rule of law though in fact it reflects the opposite—a willingness to consider forthrightly and transparently the significant constitutional questions directly or indirectly implicated in a case even when the case can be superficially ‘resolved’ based on administrative law and statutory interpretation. Only by considering such constitutional issues involved in a case can we ensure that the deeper values underlying the democratic rule of law are upheld. The latter as opposed to courts intentionally relying on statutory interpretation set separate and apart from Charter considerations even when Charter issues are implicated. The latter approach does not, on the respectful view here, deliver substantive justice when the Appellant’s fundamental rights are at stake and especially where the Appellant belongs to a particularly vulnerable group as did the Vavilov brothers. Though the FC affirmed Timothy Vavilov’s right to birthright Canadian citizenship; the Court did not acknowledge the government’s denial of his right in this regard as a s. 7 Charter violation. The latter acknowledgement in itself would have been an additional remedy for the great harms done (a s. 24 (1) Charter remedy) given that the government presented no well-grounded reasons or evidence for its position denying jus soli Canadian citizenship to the brothers. The Charter question was, it is here contended, in the public interest to address such that the Court could explicate for the public the democratic values that underlie the proper statutory interpretation of s. 3(2)(a) of the Canadian Citizenship Act.

1.3.3

Judicial Activism in Defense of the Vulnerable

There were a host of interveners at the Supreme Court of Canada level in the Alexander Vavilov case arguing that less deference to the administrative decisionmaker may be appropriate in contexts where vital human rights are at stake and constitutional guarantees are in jeopardy. We will here consider but a small slice of the arguments in that vein raised in the submission by the First Nations Family and Child Caring Society.159 The First Nations Family and Child Caring Society submitted that regardless of the standard of judicial review applied:

158

Timothy Vavilov and the Ministry of Citizenship and Immigration 2018 FC 450 at para 33 (Federal Court). 159 In the Supreme Court of Canada in Minister of Citizenship and Immigration and Vavilov et al., Factum of the First Nations Family and Child Caring Society.

1.3 Case 2: Vavilov v Canada (Minister of Citizenship and Immigration), . . .

47

. . .consideration of the best interests of the child ought to be recognized as an inherent and essential element of any lawful decision affecting a child, including a First Nations child. . . In other words, there can be no correct or reasonable outcome unless an affected child’s best interests are considered (emphasis added).160

This intervener argued further that where an administrative tribunal is exercising discretion in decision-making affecting a child; it is imperative that it consider the child’s best interests whether doing so is “expressly called for by statute or not.”161 In other words; this intervener was arguing for the propriety of judicial activism where necessary to allow for consideration of the child’s best interests given a child’s vulnerability. The ‘best interests of the child principle’, the intervener contended, reflects the “fundamental values in Canadian society, and is consonant with the articulated values and underlying concerns of the Charter.”162 In Baker (which the intervener First Nations Family and Child Caring Society cited) the Supreme Court of Canada (SCC) majority did rely in part on the ‘best interests of the child principle’ in finding that a mother’s deportation order should be quashed based humanitarian and compassionate grounds in consideration also of the impact it would have on her young Canadian-born children.163 The SCC majority in Baker relied in part on Canada’s international obligations under the Convention on the Rights of the Child though that Convention is not incorporated into the Immigration Act under which the deportation decision was made by a senior immigration officer. The intervener First Nations Family and Child Caring Society references the “absurd result” that can be the outcome where best interests of the child is not considered as a relevant factor in judicial review of a decision with major impacts for the child. In this regard the intervener cited Shiner versus Attorney-General of Canada.164 In that case an indigenous child applied to a particular federal health benefits plan to get braces to remedy 2 years of chronic jaw pain. Her application was denied as were all her appeals as she did not meet the strict criteria that the benefits plan set out. Furthermore: On judicial review, the Federal Court lamented the pain and suffering experienced by the child, but found that the decision was “reasonable,” even though the NIHB [the administrative body] had not considered the child’s best interests165

160

In the Supreme Court of Canada in Minister of Citizenship and Immigration and Vavilov et al., Factum on Appeal: First Nations Family and Child Caring Society at para 3. 161 In the Supreme Court of Canada in Minister of Citizenship and Immigration and Vavilov et al., Factum on Appeal: First Nations Family and Child Caring Society at para 12. 162 In the Supreme Court of Canada in Minister of Citizenship and Immigration and Vavilov et al., Factum on Appeal: First Nations Family and Child Caring Society at para 13. 163 Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 (Supreme Court of Canada). 164 Shiner v. Attorney General of Canada 2017 FC 515 (Federal Court). 165 In the Supreme Court of Canada in Minister of Citizenship and Immigration and Vavilov et al., Factum on Appeal: First Nations Family and Child Caring Society at para 18.

48

1 Judicial Activism and Its Intersection with Democratic Rule of Law

The current author suggests that the potential for absurd and, most importantly, unjust outcomes are always a possibility whether resultant from a judicial review of administrative action or a regular appeal case (civil or criminal). This risk is heightened where (a) the court puts a blind eye to substantive rights issues inherent in the case especially where the Appellant is highly vulnerable, and (b) when the court chooses instead an exaggerated deference to what amounts to status quo governmental policy and statutory interpretation that is not always consistent with the constitutional values underlying democratic rule of law on the facts of the case.

References Literature Barnett RE (1987) Judicial Conservatism v. A Principled Judicial Activism: Foreword to the “Symposium on Law and Philosophy”. Harv J Law Public Policy 10:273–294 Grover S (2017a) Human dignity as the foundation for the democratic rule of law: J.C. Hernandez v J. Mesa Jr. 582 U. S. ____ (2017) as an illustrative case. In: Ziccardi Capaldo G (ed) Global community: yearbook of international law and jurisprudence. Oxford University Press Grover S (2017b) Rewritten judgment: dissenting opinion, Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) 2004 SCC 4. In: Hollingsworth K, Stalford H, Gilmore S (eds) Rewriting children’s rights judgments: from academic vision to new practice. Hart Jones G (2001) Proper judicial activism. Regent Univ Law Rev 14:141–179 Kmiec KD (2004) The origin and current meanings of judicial activism. Calif Law Rev 92 (5):1442–1477

Materials Alberta Civil Liberties Research Centre Who can make a Charter claim? http://www.aclrc.com/ who-can-make-a-charter-claim Accessed 2 June, 2019 Canadian Charter of Human Rights and Freedoms Constitution Act 1982 Part 1. https://laws-lois. justice.gc.ca/eng/const/page-15.html Accessed 25 May, 2019 CANLII CONNECTS: Citizenship: Children of Diplomats Born in Canada (Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132). https://canliiconnects.org/en/sum maries/63203 Accessed 2 June, 2019 Convention on the Rights of the Child entry into force 2 September, 1990. https://www.ohchr.org/ en/professionalinterest/pages/crc.aspx Accessed 6 June, 2019 Criminal Code (R.S.C., 1985, c. C-46). https://laws-lois.justice.gc.ca/eng/acts/c-46/ Accessed 25 May, 2019 (current to May 7, 2019) Accessed 2 June, 2019 Fluker Shaun Does a Privative Clause Completely Oust Judicial Review? Case Commented On: Green v Alberta Teachers’ Association, 2015 ABQB 379 https://ablawg.ca/2015/07/09/does-aprivative-clause-completely-oust-judicial-review/ (posted 9 June, 2015 on University of Calgary, Faculty of Law blog) Accessed 11 June, 2019 In the Supreme Court of Canada in Minister of Citizenship and Immigration and Vavilov et al., Factum on Appeal: Advocates for the Rule of Law 29 October, 2018. https://www.scc-csc.ca/

References

49

WebDocuments-DocumentsWeb/37748/FM230_Intervener_Advocates-for-the-Rule-of-Law. pdf Accessed 7 June, 2019 In the Supreme Court of Canada in Minister of Citizenship and Immigration and Vavilov et al., Factum on Appeal: First Nations Family and Child Caring Society. https://www.scc-csc.ca/ WebDocuments-DocumentsWeb/37748/FM250_Intervener_First-Nations-Child-and-FamilyCaring-Society-of-Canada.pdf Accessed 7 June, 2019 In the Supreme Court of Canada in Minister of Citizenship and Immigration and Vavilov et al. Factum on Appeal: Respondent Alexander Vavilov. https://www.scc-csc.ca/WebDocumentsDocumentsWeb/37748/FM020_Respondent_Alexander-Vavilov.pdf Accessed 7 June, 2019 Rowland, Wade Blog Post: Canadian Corporate Rights and Canada’s Supreme Court (Posted 13 August, 2011) http://www.waderowland.com/topics/corporations/ Accessed 25 May, 2019 Vienna Convention on Diplomatic Relations, 500 U.N.T.S. 241. https://treaties.un.org/pages/ viewdetails.aspx?src¼treaty&mtdsg_no¼iii-3&chapter¼3&lang¼en (18 April, 1961) Accessed 4 June, 2019

Cases Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) 2004 SCC 4 Director of Criminal and Penal Prosecutions c. 9147-0732 Quebec Inc., 2017 QCCQ 1632 (Court of Quebec) (CanLII), http://canlii.ca/t/h1r6w (Court of Quebec, Magistrate Gaetan Ratte) Irwin Toy Ltd. c. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 SCR 927 Juvenile Re-education Institute vs. Paraguay Judgement of 2 September, 2004 Inter-American Court of Human Rights http://www.corteidh.or.cr/docs/casos/articulos/seriec_112_ing.pdf Masterpiece Cakeshop Ltd., et al. v. Colorado Civil Rights Commission et al Supreme Court of the United States No. 16–111. Argued December 5, 2017 Decided June 4, 2018 Minister of Citizenship and Immigration v. Alexander Vavilov (10 May, 2018) (Supreme Court of Canada (SCC) judgement on leave to appeal to the SCC) (on appeal from the Federal Court of Appeal) https://scc-csc.lexum.com/scc-csc/scc-l-csc-a/en/item/17079/index.do?q¼vavilov Accessed 3 June, 2019 Québec Inc. c Directeur des poursuites criminelles et pénales, 2019 QCCA 373 CanLII [9147-0732 Québec Inc.] (Court of Appeal of Quebec) March 4, 2019 9147-0732 Québec Inc. c. Director of Criminal and Penal Prosecutions, 2017 QCCS 5240 (CanLII) (Quebec Superior Court) (J. Dionne) R v Big M Drug Mart Ltd., [1985] 1 SCR 295 R v Boudreault 2018 SCC 58 Roe v Wade 410 U.S. 113 (1973) Shiner v. Attorney General of Canada 2017 FC 515 Timothy Vavilov and the Ministry of Citizenship and Immigration 2018 FC 450 (Federal Court) (Alexander) Vavilov v Canada (Minister of Citizenship and Immigration), 2017 FCA 132 (judgement rendered 21 June, 2017) (Federal Court of Appeal) [Also indexed as Vavilov v Canada] (Alexander) Vavilov v Canada (Minister of Citizenship and Immigration) (per Bell J.) 2015 FC 960 (Federal Court) [Also indexed as Vavilov v Canada]

Chapter 2

The Supreme Court of the United States and Judicial Activism in the Trump Era

2.1

Introduction

We will consider in this chapter the issue of judicial activism at the United States Supreme Court (USSC) in the Trump era. This is a time when the USSC majority leans to the conservative right and when President Trump openly and repeatedly suggests in post ruling commentary on cases involving his administration that the purported correct and unbiased rulings at any level of the court system would necessarily reflect the Trump administration’s politically right-leaning and often times highly conservative policy positions. Hence when a District Federal Court judge of the Ninth Circuit ruled against the Trump administration on an asylum matter; President Trump referred to the federal judge of the Ninth Circuit who issued the ruling as being an “Obama judge” thus insinuating that because the judge had been appointed by President Obama; the court’s ruling was inevitably tainted by political considerations.1 The Chief Justice of the Supreme Court of the United States, Justice Roberts, offered a rare public statement in order that he could publicly rebuke the President’s characterization (by implication) of the judge’s ruling as biased and misdirected. We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. An independent judiciary is something we should all be thankful for.2

1 The District Court Judge had ruled invalid President Trump’s Executive Order disallowing the right to advance asylum claims by persons who had entered the United States illegally. See BBC News Chief Justice Roberts rebukes Trump’s ‘Obama judge’ gibe, (22 November, 2018) https:// www.bbc.com/news/world-us-canada-46294734. 2 BBC News Chief Justice Roberts rebukes Trump’s ‘Obama judge’ gibe, (22 November, 2018) https://www.bbc.com/news/world-us-canada-46294734.

© Springer Nature Switzerland AG 2020 S. C. Grover, Judicial Activism and the Democratic Rule of Law, https://doi.org/10.1007/978-3-030-35085-7_2

51

52

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

However President Trump rebuffed the Chief Justice’s description of the Ninth Circuit Courts as part of an independent judiciary. Further, President Trump appears to be saying in his response (cited below) that the correct and non-politicized decision is reached whenever rulings favorable to the Trump administration are the outcome on appeal (claiming in effect that the latter is an indicia of the former): Obama judges. . . have a much different point of view than the people who are charged with the safety of our country. It would be great if the 9th Circuit was indeed an “independent judiciary”, but if it is why are so many opposing view (on Border and Safety) cases filed there, and why are a vast number of those cases overturned. . .3

We will consider various United States Supreme Court (USSC) recent cases which illustrate a form of judicial activism reflected in the rulings. Note that complicating matters currently is the concern that the USSC not come to be perceived or understood by the public as being but an agent of the Executive Branch such that the Court’s decisions are regarded as having been politically motivated to please a conservative Executive. The Associate Justice of the USSC, Ruth Bader Ginsburg, recently expressed that as the Court is about to issue several highly significant rulings for this term, she is less confident than previously that there will not be a five to four split in a high number of those cases (reflecting in the majority opinion, in many of those cases, the conservative perspective of the majority justices on the Court).4 Further the question will be raised also in the public consciousness as to whether the Executive is being accorded too much deference in certain of the administrative law cases and other USSC rulings that concern Federal level policy initiatives, for instance, as reflected in Presidential Executive Orders. We thus first consider the case of Rucho et al. v. Common Cause et al.5 concerning political partisan gerrymandering; the latter referring to the drawing up of the boundaries of electoral voting districts by the Majority political party in the State legislature so as to favor that political party in upcoming elections. Following the discussion of the Rucho case; we will examine a case regarding the issue of the woman’s right to abortion in the United Sates. It was a presidential campaign promise of Donald J. Trump’s that he would appoint conservative justices to the federal courts including the United States Supreme Court (USSC).6 The latter,

BBC News Chief Justice Roberts rebukes Trump’s ‘Obama judge’ gibe, 22 November, 2018 https://www.bbc.com/news/world-us-canada-46294734. 4 Ruth Bader Ginsburg, Associate Justice of the United States Supreme Court Remarks for the Second Circuit Judicial Conference June 7, 2019 https://www.supremecourt.gov/publicinfo/ speeches/RBG%202019%20Second%20Circuit%20Judicial%20Conference%20Remarks% 20June%207%202019.pdf. 5 Rucho et al. v Common Cause et al. No. 18-422. Argued March 26, 2019—Decided June 27, 2019 (Supreme Court of the United States). 6 None of the justices of the USSC that decided the landmark case Roe v Wade 410 U.S. 113 (1973) that established the unfettered right to abort a non-viable fetus are currently on the U.S. Supreme Court and only Justice Thomas, currently on the USSC bench, participated in the Casey case (affirming Roe v Wade) in which he dissented (see Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992)) (Supreme Court of the United States). 3

2.2 Case 1: Rucho et al. v. Common Cause et al. No. 18-422. Argued March 26,. . .

53

in part, in the hope that the 1973 landmark case precedent affirming a woman’s unfettered right to abortion of the non-viable fetus7 in the U.S. (Roe v Wade8) and subsequent cases that reaffirmed Roe in various aspects, would be overturned.9 (President Trump to date has managed to appoint two Supreme Court Justices; Neil Gorsuch and Brett Kavanaugh and about 100 judges to the federal courts who pass muster as bona fide conservatives). We will consider (a) United States Supreme Court (USSC) judicial activism in Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. and (b) the potential for ‘conservative judicial activism’ for future abortion cases likely to reach the USSC; the latter given that various U.S. States have begun to place highly restrictive limitations on the woman’s right to abortion and such legislation is likely to be challenged ultimately in the USSC.

2.2

Case 1: Rucho et al. v. Common Cause et al. No. 18-422. Argued March 26, 2019-Decided June 27, 2019 (United States Supreme Court) (Gerrymandering Electoral Districts to Affect the Vote)

Rucho concerns how U.S. congressional voting district boundaries are drawn by the State. The latter affects the electoral vote potential for congressional and senatorial seats in the State. This then through manipulation by the State legislature of the boundaries of the voting districts which impacts the preponderance of particular political partisan voters in the various districts as drawn with the new boundaries. The plaintiffs in the state of Maryland10 claimed their State’s districting plan discriminated against Republicans and the plaintiffs in the State of North Carolina charged that their State districting plan discriminated against Democrats.11 The concerns then were related to alleged unconstitutional extreme political

7

The term non-viable and pre-viable are used interchangeably in the discussion. Roe v Wade 410 U.S. 113 (1973) (Supreme Court of the United States). 9 Compare Scheindlin, Shira A ‘If Roe v Wade is overturned we should worry about the rule of law’ The Guardian (International Edition) 21 May, 2019. 10 At the time of the redistricting complained of (redistricting intended to strengthen the voting strength of Democrats); the Democrats already held both the House and Senate of the Maryland General Assembly as well as the governorship of Maryland See Rucho et al. v Common Cause et al. No. 18-422. Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 5. 11 At the time of the redistricting complained of (redistricting intended to strengthen the voting strength of the Republicans) there were already Republican majorities in both the House and Senate of the North Carolina General Assembly See Rucho et al. v Common Cause et al. No. 18-422. Argued March 26, 2019—Decided June 27, 2019 (Supreme Court of the United States (USSC) (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 3. 8

54

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

gerrymandering12 by the political party in power in the State disadvantaging unfairly the other political party in upcoming elections. The plaintiffs raised constitutional arguments claiming that their First Amendment free speech rights were violated (given that a free and fair voting process is required for free speech reflected through the vote), that their right to equal protection under the law (a clause of the Fourteenth Amendment) had been infringed as well as their constitutional rights under the Elections Clause of the Fourteenth Amendment and under Article one, paragraph 2. The District Courts ruled in favor of the plaintiffs and subsequently the cases were appealed by the States involved to the United States Supreme Court (USSC). The United States Supreme Court in Rucho held that the issue was not judiciable essentially since the Court could not, in its view, establish at what point the political gerrymandering became so severe as to become unconstitutional. The Court noted that: While it is “the province and duty of the judicial department to say what the law is,” . . . sometimes the law is that the Judiciary cannot entertain a claim because it presents a nonjusticiable “political question”13

The USSC vacated the lower court decisions, remanded to the lower courts and instructed the lower State courts to dismiss the cases for lack of jurisdiction. The United States Supreme Court majority of five conservative justices in Rucho14 thus held that the issue of whether the political partisan gerrymandering had gone too far as to be acceptable was one to be resolved by the State legislatures overseen by the Federal Congress. The USSC in Rucho, however, conceded that the courts have had previously to decide issues related to other aspects of district gerrymandering i.e. where it impacted population equality in the districts, or racial composition in the various districts.15 The USSC nonetheless in Rucho, held that political “Partisan gerrymandering claims have proved far more difficult to adjudicate, in part because “a jurisdiction may engage in constitutional political gerrymandering. . . The “central problem” is “determining when political gerrymandering has gone too far.”16 The USSC alleges in Rucho that political partisan gerrymandering claims essentially complain that there is no proper

12

Lexico, Oxford Dictionary online: Gerrymandering is defined in the Oxford Dictionary as follows to “Manipulate the boundaries of (an electoral constituency) so as to favour one party or class” and thus achieve certain electoral result. https://www.lexico.com/en/definition/gerrymander. 13 Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 syllabus at p. 1 (Supreme Court of the United States). 14 Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Supreme Court of the United States). 15 In Virginia House of Delegates v. Bethune-Hill 587 US_ 2019 (Supreme Court of the United States); the USSC majority blocked by five to four Virginia’s attempt to reverse the lower courts striking down of 11 redistricted areas that were drawn based on unconstitutional racial gerrymandering. 16 Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 syllabus at p. 2 (Supreme Court of the United States).

2.2 Case 1: Rucho et al. v. Common Cause et al. No. 18-422. Argued March 26,. . .

55

proportional representation in the State due to the way the electoral district boundaries have been manipulated to distort which political party has the most support (the Minority USSC Opinion in Rucho disputes that this is the crux of the case as will be discussed later in this section). The USSC Majority opinion in Rucho, however, held that: the Constitution does not require proportional representation, and federal courts are neither equipped nor authorized to apportion political power as a matter of fairness. It is not even clear what fairness looks like in this context. . . .There are no legal standards discernible in the Constitution for making such judgments.17

The United States Supreme Court (USSC) in Rucho further held that the one person-one vote imperative does not at all establish that “a person is entitled to have his political party achieve representation commensurate to its share of statewide support.”18 It is important to note that the Republicans, at present, hold most of the State legislatures in the U.S and hence stand to benefit the most from political gerrymandering affecting the next election. Also note that the Rucho decision was split at the USSC along political party lines with the five conservative Republicanappointed justices denying the plaintiffs’ claims and the liberal Democrat-appointed Justices supporting the call for the courts to intervene and apply a legal standard to prevent extreme political partisan gerrymandering. Justice Kagan wrote the opinion for the four liberal dissenting USSC justices in Rucho. Justice Kagan stated that: For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences (emphasis added).19

It would appear that implicit in the view of the Dissenting Justices of the United States Supreme Court in Rucho20 (the four liberal justices, the Minority), as expressed in the excerpt cited immediately above, is the notion that the Majority

17 Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 syllabus at p. 3 (Supreme Court of the United States). 18 Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 syllabus at p. 3 (Supreme Court of the United States). 19 Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 1 (Supreme Court of the United States). 20 Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 syllabus at p. 3 (Supreme Court of the United States).

56

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

(the five conservative justices) had, by declaring the issue in Rucho non-judiciable, created a damaging public perception that the USSC itself was the victim of Majority ‘judicial gerrymandering’ of sorts (to coin a phrase). This by the Majority, on the view of the liberal justices, in Rucho (a) drawing an arbitrary boundary, without proper legal justification, alleging non-judiciability of the core constitutional issue in the case thus precluding a remedy and (b) thereby creating a judicial outcome that would overall benefit, at that particular point in time, a conservative political agenda as it would better ensure that the Republicans would stay entrenched as the majority party in most US State legislatures as was the situation at the time of the Rucho case. In any event; the USSC Majority in Rucho arguably can be said to have engaged in judicial activism through what Kmiec refers to as ‘results-oriented judging’-reasoning guided by a desired result-here that result being political gerrymandering, even if excessive (whether it benefitted Democrats or Republicans), unconstrained by the courts.21 The ultimate political outcome22 of the USSC in Rucho declaring the issue of excessive political partisan gerrymandering ‘non-judiciable’ was foreseeable and potentially thus an avoidable undermining of constitutional voter rights but yet the USSC Majority in Rucho “refuse[d] to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”23 Let us consider then the strength of the Dissenting Opinion (on the view here) in contrast to that of the Majority view in Rucho. Justice Kagan pointed out that the courts below in Rucho and in other cases had devised appropriate objective legal approaches and standards24 to assess whether the political partisan gerrymandering had exceeded what was fair so as to result in “democratic subversion” and in creating “constitutional harms.”25 Justice Kagan pointed out that the lower courts did not rely on the justices’ own estimations of what would have been a fair redistricting map. Rather the lower courts relied on the State’s own judgements of how they (the majority party) would have to deviate from fair redistricting to allow for entrenchment of their members in

21

Kmiec (2004), pp. 1442–1477. Referring here—given the political situation at the time at the US State level—to the outcome of entrenchment of Republicans in most US State legislatures by way of unconstitutional excessive political partisan gerrymandering. 23 Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 1 (Supreme Court of the United States). 24 Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting Opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) “Their findings about these gerrymanders’ effects on voters—both in the past and predictably in the future—were evidence-based, data-based, statistics-based” at p. 21 (Supreme Court of the United States). 25 Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 2 (Supreme Court of the United States). 22

2.2 Case 1: Rucho et al. v. Common Cause et al. No. 18-422. Argued March 26,. . .

57

the congressional and senate seats given the information they had about the voters in that and adjacent districts as they existed prior to the planned redistricting: Under their approach. . . the State selected its own fairness baseline in the form of its other districting criteria. All the courts did was determine how far the State had gone off that track because of its politicians’ effort to entrench themselves in office.26

Justice Kagan points to the election evidence, unchallenged by the Majority in Rucho, that both Maryland and North Carolina, through State redistricting by the party in power and based on extreme partisan political gerrymandering, devised “voter proof” redistricting maps winning seats that did not reflect the statewide popular vote for the party that was successful in winning majority seats in one or both houses of the State General Assembly.27 Justice Kagan argues on behalf of the minority opinion that such extreme partisan political gerrymandering amounts to “rigging elections.”28 This, as some have colloquially put it, amounts to government choosing its voters rather than, as democratic principles would mandate, the reverse; namely the people (voters) choosing their government. On this key point at the heart of the case, as mentioned, there is no disagreement: The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy. Indeed, the majority concedes (really, how could it not?) that gerrymandering is “incompatible with democratic principles.”29

At the same time the minority opinion contests the assertion of the Majority in Rucho that the plaintiffs were seeking to make an argument for proportionate representation in the district reflecting their political allegiances. Rather Justice Kagan explains: The plaintiffs objected to one specific practice—the extreme manipulation of district lines for partisan gain. Elimination of that practice could have led to proportional representation. Or it could have led to nothing close. . . The plaintiffs asked only that the courts bar politicians from entrenching themselves in power by diluting the votes of their rivals’ supporters (emphasis added).30

26

Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 23 (Supreme Court of the United States). 27 Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 6 (Supreme Court of the United States). 28 Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 8 (Supreme Court of the United States). 29 Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 8 (Supreme Court of the United States). 30 Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 29.

58

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

The United States Supreme Court Majority in Rucho appears to conflate (a) the fact that the central issue in the case concerns political gerrymandering impacting voters ‘constitutional rights’ with (b) political questions that are not judiciable: “The majority’s broadest claim. . .is that this is a price we must pay because judicial oversight of partisan gerrymandering cannot be “politically neutral” or “manageable.”31 In contrast, on the view of the current author, as discussed in the introduction to this book, the courts are often the last resort when democratic constitutional values and standards are under siege. There can be nothing that more obviously politicizes the courts that when the majority of the court declines to step in to protect democratic values enshrined in the Constitution and hence (on the current author’s analysis) unintentionally undermines the democratic rule of law in the process. That mission-protecting the faithful adherence by government to the Constitution and saying what the law is in that regard-is a key function of the courts in a democracy when cases come before the courts.32 Such cases are of democratic necessity33 and, in practice, highly judiciable though at times complex as are many other difficult questions from which the USSC has not shirked.34 Were the courts unchallenged by 31 Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 22. 32 See Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) (Supreme Court of the United States): “Those voters (Republicans in the one case, Democrats in the other) did not have an equal opportunity to participate in the political process. Their votes counted for far less than they should have because of their partisan affiliation. When faced with such constitutional wrongs, courts must intervene” at p. 31. 33 See Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) (Supreme Court of the United States): “. . .the need for judicial review is at its most urgent in cases like these” at p. 29. 34 See for instance Dept. of Commerce et al. v State of New York et al. (Supreme Court of the United States) No. 18-966. Argued April 23, 2019—Decided June 27, 2019 https://www.supremecourt. gov/opinions/18pdf/18-966_bq7c.pdf In that case the USSC ruled, based on evidence, that in its view the US Federal government had put forward a pretextual reason for wishing to re-introduce a question as to citizenship on the 2020 US Census (that question had been dropped since 2010). The US Constitution requires that every 10 years the population be ‘enumerated’ so as to apportion congressional representatives amongst the States (Dept. of Commerce et al. v State of New York et al., Syllabus). Further; “The population count is also used to allocate federal funds to the States and to draw electoral districts. The census additionally serves as a means of collecting demographic information used for a variety of purposes.” (Dept. of Commerce et al. v State of New York et al., Syllabus). The government maintained it was adding the citizenship question so as to better enforce the Voting Rights Act. The State of New York et al. maintained that the citizenship question was intended to (a) intimidate especially undocumented foreigners into not completing the census—a significant segment of that population being undocumented Latinos who had already been the target of President Trump’s restrictive border and other polices. (i.e. the threat of targeting the ‘Dreamers’; ending the legal stay for Latino children who were brought to the States illegally by parents and others when the children were under 16 years old) and to (b) have a chilling effect also on the ethnic minority population more generally in filling out the census as many Latino and other minority ethnic households have mixed undocumented (potentially at risk of deportation if found out) and

2.3 Case 2: Kristina Box, Commissioner, Indiana Department of Health, et al.. . .

59

the public and judicial experts in ruling as non-judiciable highly contentious issues that break along political and other partisan lines in the larger society; the courts would soon be seen to be ineffectual as neutral arbiters in defense of the Constitution or of democratic values more generally.

2.3

Case 2: Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. 587 U. S. ____ 2019 (Supreme Court of the United States) (An Act Regulating Selective Abortion and the Handling of Fetal Remains)

This case concerns Indiana’s 2016 statute named the House Enrolled Act No. 1337 (HEA 1337) that amended, in some respects, how abortion was regulated in the State of Indiana. The challenged Act incorporated new or amended provisions that fell into two categories.35 The first category included provisions that dealt with the lawful handling by a licensed medical facility36 of fetal remains (resultant from an abortion or a miscarriage). These provisions incorporated the stipulation that a licensed such medical facility could not lawfully “dispose”37 of fetal remains resultant from an abortion or miscarriage that occurred at the medical facility as if the remains were ‘medical waste’ to be cremated along with ‘surgical byproducts’. The fetal remains were, under the contested statutory provision, now excluded from the statutory definition of “infectious and pathological waste”. Rather; under the statutory provisions at issue in the case at bar, the fetal remains were to be cremated or interred apart from “surgical byproducts” as an expression of the dignity to be accorded the

documented family members This census strategy then, it was alleged by the complainants, was adopted in the hopes that the re-introduction of the citizenship question would likely depress the vote for the Democrats as the minority ethnic population is more Democrat leaning overall. There was also a fear that electoral districts might be unconstitutionally drawn based in effect on (a) the number of citizens in a district rather than the number of people contrary to what the Constitution mandated and with (b) an underestimate of the number of people in the Democrat-leaning electoral districts in particular due to the chilling effect of the citizenship census question. The USSC in this case blocked reintroduction of the citizenship question pending a submission of a government rationale acceptable to the USSC for the citizenship question’s inclusion in the 2020 census. 35 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019 (Decided 28 May, 2019) at p. 1 See also Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. (United States Court of Appeals for the Seventh District) (Decided 19 April, 2018) at pp. 1–2. 36 Referring to medical facilities that were also licensed abortion providers. 37 This author uses the term ‘dispose’ as it is the one used in the court filings by all the parties regarding the treatment of the fetal remains issue though a term more responsive to sensibilities in this difficult delicate matter would have been preferable on the view here.

60

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

fetal remains as human remains.38 The statute at issue did allow for simultaneous cremation or interment of multiple fetal remains by the licensed medical facility which is not allowed under Indiana law in respect of non-fetal human remains which if cremated or interred must be cremated or interred individually. The contentious statutory provisions further did not at all regulate how a woman might ‘dispose’ of the fetal remains should she choose to make these arrangements on her own rather than to rely on the licensed medical facility where the abortion or miscarriage took place. The second category of statutory provisions being contested was titled “Sex Selective and Disability Abortion Ban” and now rendered unlawful knowing, intentional providing of abortion services by a licensed abortion provider medical facility for the purpose of selectively aborting a fetus pre-viability on account solely of the fetus status with respect to one or more of the following immutable characteristics: “race,39 color, national origin, ancestry, or sex of the fetus, or because the fetus has been diagnosed with Down syndrome or “any other disability” or has “a potential diagnosis” of Down syndrome or any other disability” where “any other disability” is defined as “any disease, defect or disorder that is genetically inherited.”40 There was however an exception regarding the disability-related bar to abortion; namely in the case where the child was expected, with reasonable medical certainty, not to survive beyond 3 months.41 The latter provisions under the “Sex Selective and Disability Abortion Ban” were referred to as the “non-discrimination provisions.42 Another aspect of the ‘non-discrimination provisions’ was that they also included an articulated obligation of the licensed abortion provider to inform the woman, as part of an informed, voluntary consent process that, in certain specific circumstances, the provider could not perform a legal abortion and hence could not provide an abortion service to her. Such a circumstance was one where the woman was pursuing the abortion to select out the fetus solely based on one or more of the aforementioned statutorily prohibited discriminatory grounds for an abortion that related to certain characteristics of the fetus. This information was required to be 38 Prior to the enactment of the new statutory provisions for the handling of fetal remains; Planned Parenthood of Indian and Kentucky Inc. “transferred the material to a medical waste removal company that incinerated and disposed of the tissue in accordance with law.” Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 2. 39 The term ‘race’ is used here only because it is used in the court documents though the term ‘ethnicity’ would be more accurate. 40 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 3. 41 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 3. 42 Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. (United States Court of Appeals for the Seventh District) (Decided 19 April, 2018) at p. 2.

2.3 Case 2: Kristina Box, Commissioner, Indiana Department of Health, et al.. . .

61

communicated to the woman by a statutorily-set period of 18 h in advance of the potential abortion procedure. Planned Parenthood of Indiana and Kentucky et al. filed suit against the Indiana Department of Health, et al. regarding both statutory provision categories here previously described. Planned Parenthood took the position that State limitations on a woman’s right to selectively, if she wished, abort a pre-viable fetus on any criterion she considered appropriate (i.e. sex, ‘race’, disability etc.) “would invite impermissibly intrusive government inquiries into individuals’ most private decisions. A woman could be required to demonstrate that she was not seeking her abortion for “incorrect” reasons, and the sincerity of her explanation could become subject to governmental investigation.”43 Planned Parenthood argued further that “[n]othing in the Fourteenth Amendment or Supreme Court precedent allows the State to invade this privacy realm to examine the underlying basis for a woman’s decision to terminate her pregnancy prior to viability”.44 Planned Parenthood also pointed out that under the revised Indiana law on abortion, the State could (a) compel the woman to continue with a pregnancy where to a high degree of medical certainty the child would die in infancy. This by disallowing selective abortion of a pre-viable fetus that had a heritable condition/ disability that would cause death in infancy (with an exception to the selective abortion ban for infants who would die within 3 months of live birth) but (b) could not compel a woman to continue with the pregnancy if the pre-viable fetus were healthy and the woman had no discriminatory intent related to other prohibited grounds as the State revised abortion law did not allow for intrusion on the woman’s privacy in the latter circumstance.45 Planned Parenthood further challenged the State’s position that the intent of the provisions on disposal of fetal remains by the medical facility was to accord fetal remains the dignity provided to a deceased person. Planned Parenthood argued that allowing for multiple fetal remains to be cremated or interred together was inconsistent with the alleged intent of the State to accord fetal remains dignity but the new provisions allowed for such multiple fetal remains to be ‘disposed ‘of simultaneously.46 However one might suggest that the Planned Parenthood argument here does not speak to whether excluding fetal remains from being handled as ‘medical waste’ as per the provisions at issue yet does accord the fetal remains a modicum of

43

Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 22. 44 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 22. 45 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at pp. 22–23. 46 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 3.

62

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

dignity. Further Planned Parenthood’s point here could just as well be an argument for expanding the provision at issue to bar simultaneous cremation or interment of multiple fetal remains as well as ‘disposal’ of fetal remains along with ‘medical waste’ as opposed to overturning the legislative provision at issue. Note that Planned Parenthood did not argue that the disposal of fetal remains provision47 put an ‘undue burden’ on or obstacle before a woman seeking an abortion from a licensed medical facility. However one could argue that the knowledge that the aborted fetus was to be treated as human remains could, for some women, have a ‘chilling effect’ causing a reconsideration or hesitation in seeking the abortion. Planned Parenthood further pointed out that the ‘Sex Selective and Disability Abortion Ban’ provisions banned abortion if the fetus had a genetic disorder that would in all likelihood cause death during childhood but did not impose an abortion ban where the child would be expected, with reasonable medical certainty, to die within 3 months of live birth.48 The current author would suggest that the Indiana ‘Sex Selective and Disability Abortion Ban’ provisions themselves were then discriminatory in this regard in devaluing the life of a fetus (‘prospective child’)49 with an inherited disability who would most certainly die within 3 months of live birth compared to one who would die later in childhood due to a heritable disability. The Respondent Planned Parenthood also pointed out that the abortion ban under the ‘Sex Selective and Disability Abortion Ban’ provisions as they related to ‘disability’ also extended the ban to prohibit aborting a pre-viable fetus based on medical information regarding elevated risks the child (if live born) would suffer significant health problems and/or the increased potential for the child to have a ‘disability’ diagnosis.50 The Respondent gave the examples of a mother over age 35 having to continue her pregnancy despite the elevated risk of having a child with Down’s syndrome or a mother with cystic fibrosis having to continue her pregnancy notwithstanding that the disease is heritable and would significantly shorten the lifespan of her child at present given the current state of medical knowledge regarding cystic fibrosis.51 Once again there appears to be a discriminatory element inherent in the Indiana ‘Sex Selective and Disability Abortion Ban’ provisions themselves (the so-called anti-discrimination provisions). This is reflected in the devaluing of the life of (a) a previable fetus (‘prospective child’) who will (according

47 Referring to the provision requiring the licensed medical facility where the abortion or miscarriage took place to dispose of the fetal remains separately from the disposal of ‘medical waste’. 48 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 4. 49 But ‘prospective child’ from the point of view of Planned Parenthood. 50 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 5. 51 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 5.

2.3 Case 2: Kristina Box, Commissioner, Indiana Department of Health, et al.. . .

63

to the estimates of medical experts) only survive 3 months or less post live birth compared to (b) the life of the previable fetus (‘prospective child’) thought to have heightened risks for significant health problems or for a disability where post live birth life expectancy will extend beyond 3 months but perhaps be significantly shorter than normal due to a heritable disease or condition. Planned Parenthood objected to (a) abortion providers licensed by the State having to, under a legislated obligation, inform women of the Indiana statutory limitations on abortion (the prohibited reasons for ‘selective abortion’ under Indiana law) and objected to (b) women receiving such information.52 Planned Parenthood argued that the legal supportability/constitutionality of the obligation to provide information on the abortion ban is a function of whether the abortion limitations at issue themselves are legally supportable. If the ban on selective abortion of a pre-viable fetus is unconstitutional, Planned Parenthood argued, then so too is the duty imposed on the medical practitioner to inform the woman of these State limitations on the abortion provider’s freedom to provide this medical service. Both the District Court and The United States Court of Appeals (for the Seventh District) invalidated in part or in whole the new or amended provisions that altered in various ways, as discussed, the manner in which abortion was regulated in Indiana and how fetal remains were to be handled. The District Court held that the ban on pre-viability abortion53 on the prohibited grounds under the impugned provisions titled the ‘Sex Selective and Disability Abortion Ban’ was unconstitutional. This unconstitutionality ruling, the District Court held, was grounded on the fact that U.S. Supreme Court case law established a woman’s unfettered right to an abortion of a pre-viable fetus. The District Court also held that therefore having to inform women of these limitations on their abortion rights per the Indiana ‘Sex Selective and Disability Abortion Ban’ was also unconstitutional.54 The District Court also invalidated the statutory provisions regarding disposal of fetal remains holding that the State had no legitimate interest in creating and enforcing these obligations and that therefore these provisions were unconstitutional under the due process clause.55 The Appeals Court also found that the abortion limitations under the Indiana statute provision ‘Sex Selective and Disability Abortion Ban’ were unconstitutional.

52 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 6. 53 Referring to an abortion carried out on what currently is deemed a non-viable fetus, that is given the gestational age of the fetus, the fetus would not survive outside the womb even with medical support. The point in development at which a fetus may be viable in future of course will change with advances in medical knowledge and technologies. 54 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 6. 55 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 6.

64

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

This in that they did not accord with United States Supreme Court (USSC) precedent that established a women’s right (grounded on the Fourteenth Amendment Due Process Clause that refers to a liberty right that, according to the USSC, implicates a constitutionally protected privacy right) to choose a safe legal abortion of a non-viable fetus.56 The Appeals Court held that it was therefore unconstitutional to (a) invade the woman’s privacy to inquire into the reasons for the woman choosing abortion and then (b) to impose certain limitations on that right related to the sole purpose for the abortion (namely selecting out of a pre-viable fetus based on one or more of the prohibited discriminatory grounds set out in the contested Indiana statutory ‘selective abortion’ provision).57 The Appeals Court put the matter thus: Forty-five years ago, the Supreme Court recognized that the right to privacy, as rooted in the Due Process Clause of the Fourteenth Amendment’s concept of liberty, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Roe v. Wade, 410 U.S. 113, 153 (1973).58

Arguably the United States Supreme Court (USSC) constitutional interpretation regarding an implied right to privacy (deriving from the ‘liberty right’ that is expressly articulated in the 14th Amendment) reflects what can be termed ‘liberal judicial activism’. This judicial activism then is extended by the USSC in Roe59 to using the derivative or implied constitutional right to privacy as the grounding for the relatively unfettered right to abortion of the pre-viable fetus (carried out by licensed medical professionals). The ‘right to privacy’ is not expressly found in the text of the U.S. Constitution60 but that derivative right (deduced or inferred from the Fourteenth Amendment’s liberty right and reaffirmed in many USSC and other US case precedents since Roe) was held by the Roe US Supreme Court to apply to a woman’s right to opt for an abortion on a pre-viable fetus without State intrusion into this matter; one considered a deeply private one. Several legal scholars and justices have argued that the right to abortion under American law is better grounded on constitutional liberty and equality rights per se rather than on an implied privacy right not articulated expressly in the US Constitution61:

56 For example Roe v. Wade, 410 U.S. 113 (1973), Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (plurality). 57 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 7. 58 Planned Parenthood of Indiana and Kentucky, Inc., et al. v Kristina Box, Commissioner, Indiana Department of Health, et al. No. 17-3163. United States Court of Appeals, Seventh Circuit, 888 F.3d 300 (7th Cir. 2018) Decided 19 April, 2018 at p. 4 para 305. 59 Roe v. Wade, 410 U.S. 113, 153 (1973) (United States Supreme Court). 60 Greene (2010), pp. 715–747. 61 In Lawrence v Texas deeply private behavior was held by the majority of the Supreme Court of the United States to be protected under the liberty clause of the Fourteenth Amendment without reference to a constitutional privacy right. That case concerned a State law deemed by the USSC Majority unconstitutional; criminalizing same sex intimate relations in the privacy of the home.

2.3 Case 2: Kristina Box, Commissioner, Indiana Department of Health, et al.. . .

65

To the extent the conservative textualist movement that Justice Scalia has pushed has won tactical turf battles over constitutional methodology, locating a textual basis for rights previously described under the privacy62 rubric beats back the infantry attack, even if it doesn’t quite win the war.63

The pre-viable fetus is thus eligible for lawful abortion on the Roe v Wade United States Supreme Court analysis at any point in its pre-viable state. Complicating matters, however, is the fact that, as the majority in Casey64 acknowledge, medical advances in neo-natal care have allowed for viability of a fetus much earlier than was the case when Roe was decided.65 For large segments of the public the pre-viable fetus is conceptually neither considered ‘person’ nor ‘child’ nor, on some arguably more extreme views, even potential or actual ‘human life’. This perspective being attributable to, or at least reinforced in large part by, perhaps the impact of the United States Supreme Court (USSC) rulings in the landmark abortion cases on viability as the red line marker in most instances between whether or not the State may intrude to prohibit provision of an abortion service by a licensed medical provider. The Appeals Court in Planned Parenthood of Indiana and Kentucky, Inc., et al. v Commissioner of the Indiana State Dept. of Health (US Court of Appeals for the Seventh District) cites from Casey; a precedent affirming the right to abortion: Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.66

Lawrence v Texas, 539 US 558 (2003) (Supreme Court of the United States). Note that in a dissent in that case then USSC Justice Scalia accused the majority in Lawrence of results-oriented reasoning. This in that the Majority, in Justice Scalia’s view, allegedly in contradictory manner, both upheld Roe v Wade as ‘super precedent’ where what he termed as “judicially invented abortion rights” were at issue, but overruled a 17 year standing case precedent relevant in the Lawrence case (Lawrence v Texas, 539 US 558 (2003) at p. 587) (Supreme Court of the United States). 62 Referring to grounding in the US Constitution’s Fourteenth Amendment express text (specifically the liberty rights clause and the equality rights provision) the right to abort a nonviable fetus as opposed to basing the right to abortion on an implied constitutional privacy right. 63 Greene (2010), p. 71. 64 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992) (United States Supreme Court). 65 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992) (United States Supreme Court) majority opinion p. 861 point 3. 66 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992) (United States Supreme Court) Cited in Planned Parenthood of Indiana and Kentucky, Inc., et al. v Commissioner of the Indiana State Dept. of Health (US Court of Appeals for the Seventh District) at p. 8. See also Roe v Wade “With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.” Roe v Wade 410 U.S. 113 (1973) at p. 163 (United States Supreme Court) (Justice Blackmun Opinion).

66

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

The contested Indiana revised abortion law in the case at bar, it should be noted, allowed for a selective abortion ban exception where the pre-viable fetus was thought, on a reasonable medical certainty, to have or be at risk of a disability or heritable condition that would not allow the child to live longer than 3 months post live birth. The Indiana revised abortion law thus took into consideration post live birth viability in this way. The latter such that the higher value assigned to a particular pre-viable fetal life (one that did not fall under the abortion ban exception) was deemed, under the Indiana revised abortion statute, to be a function of the increased surety that the particular fetus would survive after live birth past 3 months. It is that anticipated lengthier relationship to society and hence greater societal investment in the child post live birth (a child who is expected to survive longer than 3 months after live birth) that appears to auger in favor of life for the individual pre-viable fetus under the Indiana revised statute.67 Interestingly the Appeals Court in the Indiana Planned Parenthood case noted that in Casey (affirming Roe) the United States Supreme Court (USSC) promulgated the following principles (a) “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child;” (b) the woman has a right to abort a nonviable fetus without undue interference from the State and (c) the State may lawfully restrict abortions post viability of the fetus “if the law contains exceptions for pregnancies which endanger the woman’s life or health.”68 The USSC in Casey maintained problematically (on the view here) that “These principles do not contradict one another; and we adhere to each.”69 However, it would seem less than obvious how these aforementioned three principles are to be reconciled given that the right to abort a pre-viable fetus (by means of a medical service provided by a licensed medical partition) is unrestricted. That is Roe stands for the proposition that the woman’s right to abort a pre-viable fetus without “undue interference” from the State is absolute. Hence it is unclear how this can coincide with a State’s implied right to vindicate an interest in the life of the fetus in addition to its interest in the health of the mother. As mentioned, however, the Appeals Court in the Indiana case70 struck the Indiana ‘Sex Selective and Disability Abortion Ban’ as unconstitutional and as an ‘undue interference’ with a women’s unfettered right to abort a pre-viable fetus. Thus the Appeals Court in the Indiana case held that the woman has the freedom to

67 This then appears to be a case, under the revised Indiana abortion statute, of considerations regarding ‘survival of the fittest’ after live birth of the child being a factor in determining right to life of the fetus before viability. 68 Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 8 Citing Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992). 69 Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 8 Citing Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992). 70 Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018).

2.3 Case 2: Kristina Box, Commissioner, Indiana Department of Health, et al.. . .

67

abort the pre-viable fetus due to the fetus having a disability, heritable condition or increased risk of disability or life altering heritable condition (or based on other grounds such as biological sex, race etc.) or for any other reason. This rejection by the Appeals Court of the Indiana ‘Sex Selective and Disability Abortion Ban’ is perhaps not surprising in part in that ‘pre-viability’ of the fetus could itself be conceived as a ‘temporary disability’ (one normally resolved where the pre-viable fetus is permitted to proceed on its full gestational journey). The Court might then be forced to consider pre-viability of a fetus also to be a prohibited ground of discrimination in the equal medical care and duty of care owed such a fetus as implied under the Indiana ‘Sex Selective and Disability Abortion Ban’ (if previability is considered a temporary disability). Thus perhaps, in part, to avoid such a slippery interpretive slope the Court ruled that the Indiana ‘Sex Selective and Disability Abortion Ban’ was unconstitutional. This despite the fact, for instance, that sex selection in abortion generally results in less female births (as many cultures value males more highly than females) such that selective abortion based on biological sex of the fetus runs counter to female gender equality rights and the interests of women and girls more generally. Of course, in addition, the Indiana ‘Sex Selective and Disability Abortion Ban’ was an interference in the woman’s unfettered right per Roe to abortion of the previable fetus. Notwithstanding the latter, it is nonetheless useful to acknowledge that selective abortion raises a potential host of unique medical and ethical quandaries. The Appeals Court in Planned Parenthood Indiana and Kentucky71 was split on the issue of lawful disposal of fetal remains per the revised Indiana abortion statute. The Majority held on the latter question that while the State claimed it was treating fetal remains as the remains of a deceased human being; the statutory provisions were not consistent in that regard (i.e. multiple fetal remains could be cremated at once under the Indiana statutory provisions at issue unlike the case for non-fetal human remains). Therefore the provision imposed on the medical facility to cremate or inter the fetal remains separately from ‘medical waste’ was found by the Majority on appeal in Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al.72 not to be constitutional. This as the State had not convinced the Appeals Court that it indeed had a compelling interest in treating the fetal remains as human remains as the State claimed was its purpose. It is unclear, however, setting aside for the moment any contradictions in the Indiana law on disposal of fetal remains, on what factual basis (as opposed to discretionary judicial activist interpretation) the fetal status of ‘pre-viable’ marks the absence of ‘humanness’ such that the aborted or miscarried remains of the pre-viable fetus can properly be treated as would be the case with ‘medical waste’. If by ‘potential human life’ is meant the potential for live birth of a human being, barring any untoward intervening

71

Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018). 72 Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018).

68

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

events, then arguably the viable and the pre-viable fetus are both ‘potential human life.’ Yet the Roe decision and its progeny appear often to be interpreted (correctly or incorrectly) as standing for the proposition that the right to life of the viable fetus (its shield against abortion save for exceptional circumstances where indicated medically for the mother for instance) is predicated on its humanness while the pre-viable fetus is lacking in that regard notwithstanding that the pre-viable fetus arguably also has, even on the most restrictive interpretation, at least also the ‘potentiality of human life’: subsequent to viability, the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother is also reaffirmed (emphasis added).73

The Dissenting Judge on the Appeals Court was Judge Manion who concurred with the majority’s ruling of the unconstitutionality of the ‘Sex Selective and Disability Abortion Ban’ provisions; dissented on the disposal of fetal remains provision being declared also unconstitutional. As to the non-discrimination limitations of the ‘Sex Selective and Disability Abortion Ban’ Judge Manion stated that it was “regrettable” that a “narrowly drawn statute meant to protect especially vulnerable unborn children cannot survive scrutiny under Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). . .”74 (Referring to Casey; a precedent setting case that reaffirmed the right to abort a pre-viable fetus). Judge Manion thus appears to implicitly be saying that he must refrain from judicial activism and is bound by United States Supreme Court vertical precedent in Casey. This even if that case precedent, in his view, violates the rights of a certain class he describes as “especially vulnerable unborn children”75 and allows for selective abortions of certain pre-viable fetuses on discriminatory grounds. Judge Manion thus did not opt for a strategy of interpreting the Indiana ‘Sex Selective and Disability Abortion Ban’ in such a way as to treat the ban as addressing an issue different from that addressed in Roe v Wade76 and the USSC precedents that reaffirmed Roe (the woman’s unfettered right to choose to have a medical practitioner abort her pre-viable fetus). Judge Manion rejected the Appeals Court majority opinion in their ruling as unconstitutional the obligations on the licenced medical provider of abortions regarding proper disposal of fetal remains (as set out in Indiana’s revised statutory provisions). He held instead that “That part of Indiana’s law rationally advances

73

Roe v Wade 410 U.S. 113, 153 (1973) at 164–165 (United States Supreme Court). Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 18. 75 Casey is a USSC ruling holding that any statutory provision that puts undue hardship on a woman by placing a substantial obstacle in her path to her securing an abortion of a pre-viable fetus is constitutionally infirm (Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992)). 76 Roe v Wade 410 U.S. 113 (1973) (United States Supreme Court). 74

2.3 Case 2: Kristina Box, Commissioner, Indiana Department of Health, et al.. . .

69

Indiana’s interests in protecting public sensibilities and recognizing the dignity and humanity of the unborn.”77 Judge Manion found that the State’s regulating in this respect was serving a compelling State interest without intruding on (a) the woman’s unfettered right to abort a pre-viable fetus or (b) impacting a protected class. Thus Judge Manion held constitutional the State’s regulating of the manner in which fetal remains were disposed; namely requiring that the fetal remains be disposed of separately from ‘medical waste’. The State, per the Commissioner of the Indiana Department of Health et al., then advanced a petition for a writ of certiorari to the Supreme Court of the United States in an effort to quash the Court of Appeals’ rulings in the case at bar and render the statutory provisions at issue in the new Indiana abortion law once more in effect. Before considering the Supreme Court of the United States opinion and the issue of judicial activism at the USSC in the case, let us consider the arguments raised in the briefs filed in the USSC by Planned Parenthood and by the State in opposition to one another.78 The State in Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. adopted the strategy of attempting to distinguish the aforementioned case from Roe v Wade and the cases that affirmed Roe (such as Casey): “Indiana and the amici States persuasively argue that the right identified in Roe and Casey is only the right to decide whether to have a child, not the right to decide which child to have (emphasis added).”79 Thus the State of Indiana in the case at bar focused on the discriminatory aspects to ‘selective abortion’ of certain pre-viable fetuses which allowed for what Judge Manion referred to as “private eugenics”80 (selecting out pre-viable fetuses with certain heritable disabilities, or a specific ‘race’, or gender etc.) rather than on the question of abortion of a pre-viable fetus more generally. That is; the State of Indiana objected to the woman deciding to select out particular pre-viable fetuses based on heritable disability and other immutable characteristics81 which Judge Manion held would involve “invidious discrimination against people whom nobody would deny would be members of

77 Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 19. 78 Note that there were no oral arguments presented before the Supreme Court of the United States in this case. 79 Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at pp. 19–20. 80 Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 21 (Judge Manion, Dissenting Opinion). 81 Of course it is today possible to alter one’s genitalia surgically as is the choice for some transsexual persons but for most persons biological sex at birth will remain tantamount to an immutable characteristic in all its manifestations.

70

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

protected classes were they allowed to be born.”82 Note that the concern about what Judge Manion termed ‘private eugenics’ could be classified as a secular concern and not one inevitably or necessarily based on any religious foundation (i.e. selective abortion of a particular sex which generally involves disproportionately more often aborting females could lead to an imbalance in the male to female sex ratio in the population and its attendant problems; a secular concern for society). Judge Manion (Court of Appeals judge) in Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. opined that the State of Indiana in fact has a compelling interest “in attempting to prevent this type of private eugenics”83 but that nonetheless the ‘Sex Selective and Disability Abortion Ban’ must be held unconstitutional84 since, for instance, the United States Supreme Court (USSC) ruling in Casey held that: “that nothing can stand between a woman and her choice of abortion before viability (emphasis added).”85 Such an approach is not the case for other rights which have been infringed by “narrowly tailored” limitations to serve a compelling State interest and where in many instances the Courts have found the limitations constitutional.86 Judge Manion comments that: even the fundamental rights of the Bill of Rights are not absolute. Kovacs v. Cooper, 336 U.S. 77, 85 (1949). But when contrasted against the absolute nature of the putative right to pre-viability abortion, we see that abortion is now a more untouchable right than even the freedom of speech.87

Judge Manion did challenge the United States Supreme Court to either engage in judicial activism by overruling its landmark ‘super precedent’ abortion cases (Roe and Casey) or, alternatively, by constructing an analytical scheme that did not result in a foregone conclusion but rather involved a balancing of rights and interests in

82

Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 21 (Judge Manion, Dissenting Opinion). 83 Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 21 (Judge Manion, Dissenting Opinion). 84 See Huq (2012), pp. 579–605 for an historical perspective on judicial activism v judicial restraint in the US. 85 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992) at p 870 Cited in Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) (Judge Manion, Dissenting Opinion) at p. 20. 86 Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 22 (Judge Manion, Dissenting Opinion). 87 Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 22 (Judge Manion, Dissenting Opinion).

2.3 Case 2: Kristina Box, Commissioner, Indiana Department of Health, et al.. . .

71

considering constitutionality issues in the abortion context such as occurs in other constitutional cases: That today’s outcome is compelled begs for the Supreme Court to reconsider Roe and Casey. But assuming the Court is not prepared to overrule those cases, it is at least time to downgrade abortion to the same status as actual constitutional rights.88

It appears that the U.S. States have increasingly passed restrictive abortion laws that they hope will be challenged at the United States Supreme Court which, at present, as mentioned, has a conservative majority. This in the hopes that the USSC majority will overturn Casey and Roe consistent with the Trump political agenda and promise to his political base especially. For instance, Alabama passed highly restrictive abortion legislation in May, 2019 due to take effect in November, 2019 which would ban almost all abortions including in cases of rape, and incest. Under the new Alabama law an abortion provider who provided an abortion at any stage of the woman’s pregnancy where the mother’s health was not at significant risk would face a possible 99 years imprisonment.89 The American Civil Liberties Union along with Planned Parenthood have jointly filed a legal suit on behalf of abortion providers in Alabama for an injunction to block implementation of the new Alabama abortion law which the complainants hold is unconstitutional. “Governors in Kentucky, Mississippi, Ohio and Georgia have approved bans on abortion once a fetal heartbeat is detected, which can happen as early as the sixth week of pregnancy. . . Missouri joined the list . . . with Republican Gov. Mike Parson signing a bill that bans the procedure on or beyond eight weeks of pregnancy.”90 The Missouri legislation provides an exception for medical emergencies threatening the mother’s well-being but not for rape or incest. Physicians who do not respect the 8 week cut-off for performing an abortion face a possible 5–15 years imprisonment.91 Many women, however, are not aware of their pregnancy so early and seek an abortion sometime after 6 weeks from their last period and hence the complainants argue the heartbeat bills are tantamount to a ban on abortion.92 Further “Heartbeat bills have passed, and been suspended in court challenges, in several states”93 The Missouri legislation banning abortion after 8 weeks, except in medical emergencies, and banning selective abortion of nonviable and viable fetuses for reason only of “the 88 Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 25 (Judge Manion, Dissenting Opinion). 89 Associated Press posted 24 May, 2019 Legal challenge to Alabama’s controversial abortion law filed https://www.cbc.ca/news/world/us-lawsuit-alabama-abortion-1.5148326. 90 Associated Press posted 24 May, 2019 Legal challenge to Alabama’s controversial abortion law filed https://www.cbc.ca/news/world/us-lawsuit-alabama-abortion-1.5148326. 91 Associated Press posted 24 May, 2019 Legal challenge to Alabama’s controversial abortion law filed https://www.cbc.ca/news/world/us-lawsuit-alabama-abortion-1.5148326. 92 Associated Press posted 24 May, 2019 Legal challenge to Alabama’s controversial abortion law filed https://www.cbc.ca/news/world/us-lawsuit-alabama-abortion-1.5148326. 93 Tavernese, S New York Times Missouri senate advances fetal heartbeat abortion bill posted 16 May. 2019 https://www.nytimes.com/2019/05/16/us/missouri-abortion.html.

72

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

sex, race or prospective Down’s syndrome of the expected infant” was blocked by way of a temporary injunction by the US District Court of the Western District of Missouri on August 28, 2019.94 The final outcome in that Missouri case is yet to be determined as is the situation in other State abortion cases where preliminary injunctions have been court ordered blocking such highly restrictive limitations on abortion rights. The aforementioned punitive and highly restrictive abortion legislation in various US States is being contested via court challenges to these conservative Republican initiatives. Those Republican and anti-abortion group legislative initiatives seek to erode the force and effect of the United States Supreme Court (USSC) super precedent Roe v Wade as well as of the subsequent abortion rulings that rely on Roe. Their ultimate goal is, as mentioned, to bring the contested legislation to the USSC for adjudication in the hopes Roe will be overturned by the USSC now that two Trump—appointed conservative justices have joined the USSC tilting the USSC Majority more to the right in judicial—and dare we say it—social philosophy as well.95 Note that the UN Human Rights Office has pointed out that poor women are disproportionately more greatly impacted by the aforementioned type of restrictive abortion legislation. Ravina Shamdasani, a spokesperson for the UN Human Rights Office, in an interview with Reuters stated that “Evidence and experience have shown abortion bans do not reduce their number, but drive them underground” jeopardizing the life, health and safety of the women concerned. Such bans are also “inherently discriminatory,” affecting women who are poor, from minority backgrounds or other marginalized communities.96 Note that prior to the USSC 1973 ruling in Roe v Wade establishing the right to abortion of a previable fetus in the US; deaths in the US from illegal abortions were estimated in official reports to constitute one-sixth of all pregnancy related deaths in 1965 and Planned Parenthood reports that doctors put the estimate at even higher than that.97 The new term of the United States Supreme Court (USSC), with its fresh docket of cases, will likely reveal whether the USSC conservative Majority will uniformly

94 Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc., on behalf of itself, its physicians, and its patients, and Colleen P. McNicholas, D.O., M.S.C.I., F.A.C.O.G, on behalf of herself and her patients (Plaintiffs) v. Michael L. Parson, in his official capacity as Governor of the State of Missouri, et. al. (Defendants) Case No. 2:19-cv-4155-HFS (US District Court of the Western District of Missouri Central Division) Memorandum and Order, August 28, 2019. 95 Associated Press posted 24 May, 2019 Legal challenge to Alabama’s controversial abortion law filed https://www.cbc.ca/news/world/us-lawsuit-alabama-abortion-1.5148326. 96 UN ‘very concerned’ about abortion access after recent Alabama, Missouri laws Thomson Reuters (Posted: May 21, 2019) https://www.cbc.ca/news/world/un-concern-us-abortion-access-1. 5143136. 97 Planned Parenthood (2019) Roe v Wade: The constitutional right to access safe legal abortions https://www.plannedparenthoodaction.org/issues/abortion/roe-v-wade.

2.4 Case 3: Garza (Guardian ad litem for J.D.) v. Hargan (Acting Secretary of. . .

73

take up the Trump challenge to engage, in essence, in ‘conservative judicial activism’ on the issue of abortion. If that does occur it will then be determined, in the context of the new contested restrictive abortion State legislation cases, what parameters will shape that conservative judicial activism in the Court’s re-consideration of the right to abortion as set out in the case super precedent of Roe and its progeny Casey and other such cases.

2.4

Case 3: Garza (Guardian ad litem for J.D.) v. Hargan (Acting Secretary of Health and Human Services) et al. 874 F.3d 735 (DC Circuit) 2017 (On the Right of an Unaccompanied Undocumented Minor in US Immigration Detention to Access a Safe Abortion)

The disproportionate impact on poor and marginalized women and girls of restrictions on access to safe abortion medical procedures is highlighted, for example, by the case of Garza (Guardian ad litem for J.D.) v Hargan (Acting Secretary of Health and Human Services)et al. 873 F3d 735 (DC Circuit) 2017. In Garza the US federal government under President Trump sought to prevent an unaccompanied undocumented minor (a 17-year-old) from obtaining an abortion. The 8 weeks pregnant child J.D. was at the time being held in US immigration detention in Texas for illegally crossing the border into the US. The child alleged she faced life-threatening abuse if returned to her home country.98 The shelter where she was housed was under contract with the US Office of Refugee Resettlement (ORR). The child had been granted a judicial bypass by a District Court regarding the Texas requirement that minors seeking an abortion must have parental consent to obtain an abortion. However the ORR declined to allow the child to leave the shelter to attend a medical facility to have the abortion. The government took the position that the child, though an undocumented illegal alien, had a constitutional right to an abortion but only if she somehow managed to extricate herself from her immigration detention situation by either “i) surrendering any legal right she has to stay in the United States and returning to the abuse from which she fled, or (ii) finding a sponsor-effectively, a foster parent-willing to take custody of her and to not interfere in any practical way with her abortion decision.”99

98

Garza (Guardian ad litem for J.D.) v Hargan (Acting Secretary of Health and Human Services) et al. 874 F.3d 735 (DC Circuit en banc ruling) 2017 (Concurring Opinion of Judge Millett, Circuit Judge). 99 Garza (Guardian ad litem for J.D.) v Hargan (Acting Secretary of Health and Human Services) et al. 874 F.3d 735 (DC Circuit en banc ruling) 2017 (Concurring Opinion of Judge Millett, Circuit Judge).

74

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

The suit filed against the government was filed as a class action with J.D. as a representative of other minors similarly situated (that is the court certified the class).100 The child alleged a violation of her due process rights under the Fifth Amendment of the US Constitution (the Fifth Amendment’s Due Process Clause uses the same wording as the Due Process Clause of the Fourteenth Amendment).101 The child, through her guardian ad litem, was successful in her legal action with the District Court ruling, among other things, that it was in the public interest to allow J.D. to have the abortion. Hence the order was given by the Court for a temporary restraining order on the ORR directive preventing J.D. from leaving the shelter for an abortion and instead the order stipulated that ORR was to allow J.D to leave the shelter; first for preabortion counselling (which is mandated by law in Texas) and then to receive the abortion procedure on a date certain if she so chose. The government appealed the Temporary Restraining Order and the Circuit Appeals Court, sitting as a three member panel, vacated the part of the lower court order that allowed the abortion procedure thus lifting the temporary restraining order on the ORR directive. Note that one of the appeals court judge’s in the Garza ruling against the child’s petition to be allowed to undergo the abortion procedure without special conditions was then Court of Appeals judge, Judge Kavanaugh; now a United States Supreme Court Justice (USSC) and part of the USSC conservative majority justices on the USSC bench.102 The Appeals Court order in Garza further directed that J.D. be expeditiously placed in the care of a sponsor such that the ORR would not be put (allegedly) in the position of having to ‘facilitate’ access to the abortion. The Appeals Court held this requirement for a sponsor would not create an ‘undue burden’ [prohibited under USSC case law (See Casey)]103 on J.D. in accessing the safe abortion in a licensed medical abortion provider facility. The Dissenting judge on the three panel Appeals Court (Judge Millett) in Garza held that in fact the government had not been ordered by the lower court to ‘facilitate’ J. D.’s abortion according to the facts of the case since (a) J.D.’s guardian ad litem was going to cover the cost of the transportation to the medical facility and of the procedure, (b) the shelter contractor did not object to releasing J.D. for the purpose of her accessing 100

Rochelle Garza, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated, Plaintiff, v. ERIC D. HARGAN, et al., Defendants. Civil Action No. 17-cv02122 (TSC) Decided 30 March, 2018 (US District Court for the District of Columbia) (Judge T Chutkan) https://prawfsblawg.blogs.com/files/ddc-abortion.pdf. 101 Legal Information Institute (Cornell Law School) The Fifth Amendment https://www.law. cornell.edu/wex/due_process. 102 “Judge Kavanaugh’s dissenting opinion claims that the court has somehow broken new constitutional ground by authorizing “immediate abortion on demand” by “unlawful immigrant minors” (Judge Kavanaugh’s Dissent Op. 1)”: Cited in Garza (Guardian ad litem for J.D.) v Hargan (Acting Secretary of Health and Human Services) et al. 874 F.3d 735 (DC Circuit en banc ruling) 2017 (Concurring Opinion of Judge Millett, Circuit Judge) The majority en banc court rejected Judge Kavanagh’s view since, for instance, the government itself had not argued that the child had no constitutional right to an abortion. 103 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992) (United States Supreme Court).

2.4 Case 3: Garza (Guardian ad litem for J.D.) v. Hargan (Acting Secretary of. . .

75

the abortion procedure and (c) the lower Court order did not require the government to render a general public policy decision on such situations. The Dissenting judge also pointed out that (a) J.D. had been found competent by the lower court to make the choice regarding abortion and (b) hence placing her with a sponsor (selected through procedures set out by the Federal government Health and Human Services (HHS) department) to counsel her on the matter was creating (in the view of the Dissenting judge) an unconstitutional ‘undue burden’ on the child in accessing the safe abortion. An undue burden can result from too severe a burden and/or may be due to imposing a burden that lacks “legitimate, rational justification.”104 Arguably, in Garza, both factors creating an ‘undue burden’ on the pregnant child J.D. were applied. On reconsideration (a response to the child’s petition for reconsideration),105 the Appeals Court Majority, then sitting en banc, denied the stay of the District Court’s temporary restraining order. That new Appeals Court en banc judgment relied on the reasoning set out by the Dissenting Judge of the three member Appeals Court and ordered a new date be given for J.D.’s abortion procedure.106 The Appeals Court en banc majority held that the State had imposed an undue burden on the child’s constitutional right to access a safe abortion procedure stating: Surely the mere act of entry into the United States without documentation does not mean that an immigrant’s body is no longer her or his own. Nor can the sanction for unlawful entry be forcing a child to have a baby. The bedrock protections of the Fifth Amendment’s Due Process Clause cannot be that shallow.107

The Appeals Court en banc in Garza (without listening to oral argument) agreed with the Dissenting member of the three member panel of the Appeals Court that heard the case previously that the requirement of a sponsor was unjustified as (a) a lower Court had already found J.D. to be a minor competent to make the abortion decision for herself and (b) the process of finding a sponsor would cause further undue delay in accessing the abortion procedure.108 Disturbingly (on this author’s view) Judge Karen LeCraft Henderson, Circuit Judge, dissenting, held, among other things, that J.D. was not a person under the US Constitution Fifth Amendment and hence did not have the unfettered right to an abortion that a pregnant woman or girl US citizen has. The Majority of the en banc Appeals Court in Garza held that J.D. was in law a ‘person’ under the Due Process Clause of the US Constitution. This since the case law has interpreted the Due Process Clause to apply to all persons 104

Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992) Justice Kennedy Opinion (United States Supreme Court). 105 The child J.D. was in her second trimester when the en banc Court of Appeals reconsidered the case on an expedited basis. 106 See Garza v Hargan (2018), pp. 1812–1819. 107 Garza (Guardian ad litem for J.D.) v Hargan (Acting Secretary of Health and Human Services) et al. 874 F.3d 735 (DC Circuit Court of Appeals en banc ruling) 2017 (Millett, Circuit Judge, concurring). 108 Garza (Guardian ad litem for J.D.) v Hargan (Acting Secretary of Health and Human Services) et al. 874 F.3d 735 (DC Circuit Court of Appeals en banc ruling) 2017 (Millett, Circuit Judge, concurring).

76

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

within the territorial jurisdiction of the US whether they are there legally or not and the Majority held J.D. had entered the US.109 The UN Human Rights Council has requested that the US and other countries provide access to safe abortions “at an absolute minimum, in cases of rape, incest and fetal anomaly. . .”110 The argument has been made by some legal scholars that restricting access to safe abortions can rise to the level of cruel, inhuman and degrading treatment111 and for most in North American society it is easy to conceive that there would likely be, in most instances, tremendous psychological suffering for the woman in carrying to term a pregnancy resulting from rape and/or incest or one involving a fetus with a grave fetal anomaly for instance anencephaly. What progress the UN Human Rights Council and other UN entities can achieve in obtaining State compliance in implementing a right to abortion and in what circumstances is an open question.

2.5

The Supreme Court of the United States Holding in Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc. (On the Issue of Stare Decisis)

We return now to the discussion regarding the case of Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc. Let us begin with some background information on two pivotal United States Supreme Court (USSC) precedents (Casey112 and Roe113) addressing abortion rights before we discuss the USSC ruling in Kristina Box.114 The United States Supreme Court in Casey concedes that the Court exercised ‘reasoned judgement’115

109

Garza (Guardian ad litem for J.D.) v Hargan (Acting Secretary of Health and Human Services) et al. 874 F.3d 735 (DC Circuit Court of Appeals en banc ruling) 2017. 110 UN ‘very concerned’ about abortion access after recent Alabama, Missouri laws Thomson Reuters (Posted: May 21, 2019) https://www.cbc.ca/news/world/un-concern-us-abortion-access-1. 5143136. 111 Moore (2019), pp. 1010–1027. 112 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court). 113 Roe v Wade 410 U.S. 113 (1973) (United States Supreme Court). 114 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. 587 U. S. ____ 2019 (Decided 28 May, 2019) (United States Supreme Court). 115 On the view here; the ‘reasoned judgement’ in Casey might properly equally be described as ‘discretionary statutory interpretation’ in that particular precedent-setting case; the latter descriptor arguably a less inflammatory moniker than ‘judicial activism’ though both would seem apropos descriptors of the USSC analysis in Casey (Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833) (1992) (United States Supreme Court).

2.5 The Supreme Court of the United States Holding in Kristina Box. . .

77

in its’ decision-making process in Casey to reach its determination that the boundaries of the undefined liberty right stipulated in the Fourteen Amendment to the US Constitution encompass the unfettered right to secure an abortion of a pre-viable fetus from a licensed medical practitioner: Roe determined that a woman’s decision to terminate her pregnancy is a “liberty” protected against state interference by the substantive component of the Due Process Clause of the Fourteenth Amendment. Neither the Bill of Rights nor the specific practices of States at the time of the Fourteenth Amendment’s adoption marks the outer limits of the substantive sphere of such “liberty.” Rather, the adjudication of substantive due process claims may require this Court to exercise its reasoned judgment in determining the boundaries between the individual’s liberty and the demands of organized society (emphasis added).116

The United States Supreme Court (USSC) in Casey117 opined that “The Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation (emphasis added).”118 In Casey the USSC set its task as having to decide (a) the contours of the undefined and not expressly delimited constitutional guarantee of a liberty right and (b) whether an unconstitutional deprivation of liberty or of an alleged implied right (i.e. the right to privacy) could arise from State interference with a woman’s choice to abort a nonviable fetus. The Supreme Court of the United States in Casey thus, on the analysis here, engaged in judicial activism based on what it termed “legally principled decisions.”119 Indeed it would seem that in Casey the USSC itself implicitly held, in essence, that it was engaged in ‘principled judicial activism’ in reaching its Majority judgment in that case. This though the Court used the sanitized, perhaps less controversial words, to describe its judgment process in Casey as making “legally principled decisions . . .sufficiently plausible to be accepted by the Nation.”120 Yet clearly the State interest in protecting fetal life was in a critical respect minimized by the then liberal Majority in Casey in that the Court downplayed the difficulties in establishing the factual marker for ‘viability’ of a ‘fetus’; the red line marker121 the USSC itself relied on (following Roe) to distinguish between a constitutional versus non-constitutional non-therapeutic abortion. In 1973 the USSC in Roe accepted that viability of the fetus occurs around 28 weeks whereas at the time of Casey in 1992 the Court acknowledged that at that

116

Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) syllabus (United States Supreme Court). 117 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court). 118 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at p. 866 (United States Supreme Court). 119 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at p. 866 (United States Supreme Court). 120 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at p. 866 (United States Supreme Court). 121 Abortion of a viable fetus where the mother’s health or life are at significant risk was deemed constitutional under Roe and Casey.

78

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

time viability could occur earlier at 23–24 weeks “or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future.”122 Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe’s factual underpinning has left its central holding obsolete, and none supports an argument for overruling it (emphasis added).123

Aside from the difficulty, at times, in determining the exact point of earliest fetal viability, mistakes in determining viability may easily be made for any number of reasons and, as a consequence, an unconstitutional non-therapeutic abortion of a viable fetus may take place. The doctor in consultation with the mother, under the constitutional framework set under Roe and Casey, however, has no positive duty to demonstrate that the particular individual fetus of early gestational age was in fact non-viable at the point of the abortion. This then further compounds the potential for instances that involve non-therapeutic abortion of a viable fetus in situations that do not fall under an exception provision to protect the mother’s life or health when the latter are significantly imperiled by continuing with the pregnancy. The United States Supreme Court (USSC) explains in Casey124 that societal norms counsel against State intrusion into intensely private decision-making such as abortion of the pre-viable fetus and held that the State therefore has no interest compelling enough to infringe the woman’s personal autonomy in that instance. The Court also pointed out that the unfettered right to abort a pre-viable fetus has furthered women’s equal participation in the economic life of the society.125 The USSC decision in Casey thus is driven by pragmatic and prudential considerations that impact U.S. adults who have a family or are planning one at some point and who vote and lobby vigorously for the policies they want. While there is a large consensus amongst the US populace on the right to abortion (of the pre-viable fetus) and in certain circumstances even later in pregnancy post viability of the fetus such as when the mother’s life is at risk; there is still a divide in the general population on the matter in other circumstances (there is a divide, for instance, on whether selective abortion is legally supportable in a host of situations such as when the pre-viable fetus has Down’s syndrome or is a healthy female without a genetic

122

Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) point 4 at p 861 (United States Supreme Court). 123 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) point 4 at p 861 (United States Supreme Court). 124 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) syllabus (United States Supreme Court). 125 The USSC in Casey did recognize that the State may have a compelling interest to create some regulations regarding abortion but held these were not to create an ‘undue burden’ which would interfere with the right to abort a pre-viable fetus otherwise the regulations would be unlawful as unconstitutional.

2.5 The Supreme Court of the United States Holding in Kristina Box. . .

79

condition and the biological sex of the fetus is the only reason for the abortion).126 On the respectful view here it is therefore surprising and arguably misleading for the Supreme Court of the United States to suggest that attempts to overturn Roe would infuse politics into USSC decision-making while efforts to uphold Roe and the cases it spawned would not likewise be tainted by political factors and pressures as the USSC Majority contended in Casey: Overruling Roe’s central holding would not only reach an unjustifiable result under stare decisis principles, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. Where the Court acts to resolve the sort of unique, intensely divisive controversy reflected in Roe, its decision has a dimension not present in normal cases, and is entitled to rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. Moreover, the country’s loss of confidence in the Judiciary would be underscored by condemnation for the Court’s failure to keep faith with those who support the decision at a cost to themselves. A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy and to the Nation’s commitment to the rule of law127 (emphasis added)

Strikingly then the United States Supreme Court (USSC) in Casey,128 as the excerpt immediately above indicates, argued that overruling its landmark case and ‘super precedent’ Roe,129 even if there was error in the reasoning in Roe, would constitute an undermining of the ‘rule of law’ itself. The current author sets aside as a separate issue, for the purposes of this discussion, whether Roe or Casey should be overturned on the merits and comments in what follows only on the issue of ‘judicial activism’ reflected in the Casey decision in the aforementioned excerpt. On the respectful view of the current author; the USSC Majority in Casey adopts a fundamentally undemocratic perspective to suggest, as it does in Casey, that overruling or even significantly qualifying a well-established Supreme Court precedent (such as Roe for instance), even if there was factual and legal justification for the same (i.e. substantial error in legal reasoning), would (1) ipso facto constitute an attack on the rule of law and (2) represent the prioritization of political considerations thereby weakening the Court’s capacity to exercise the judicial power. Such a perspective, the current author contends, denies, or at least underplays, the possibility of viewing the law and its interpretation as dynamic and impacted by new circumstances and

126

Saad, Lydia Alabama Bill at Odds with Public Consensus on the Issue (Gallup Blog) 15 May, 2019 https://news.gallup.com/opinion/gallup/257627/alabama-bill-odds-public-consensus-abor tion.aspx. 127 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at pp. 866–867 (United States Supreme Court). 128 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court). 129 Roe v Wade 410 U.S. 113 (1973) (United States Supreme Court).

80

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

understandings. Ironically then the liberal USSC Majority in Casey appear to have (a) rendered a liberal ruling in holding that a woman’s right to abort a pre-viable fetus is unfettered and covered by the constitutional liberty right which incorporates an implied privacy right not explicitly articulated in the US Constitution’s Due Process Clause, (b) engaged hence in ‘liberal judicial activism’ but then reverted to ‘conservative judicial activism’ by contending that the Roe ruling as a ‘super precedent’ is inviolable ‘settled law’ (the latter notwithstanding the advancements in medical technology which may further complicate the issue of viability)130 and complex matters such as selective abortion, sub-culture biases in selective abortion (i.e. selective abortion of females due to a preference for male offspring) and other matters implicated by Roe which create much US national societal controversy and divisiveness and notwithstanding any error that may have occurred in the Roe case in the legal reasoning or in the assessment of the factual underpinning of the case etc. The USSC in Casey further explains its rationale on viewing Roe as impenetrable settled law in all respects. The USSC in Casey argued that it is necessary to hold the Court’s ruling in Roe as ‘super precedent’ as in all cases where the Court is called upon to tell the nation what the constitutional guarantee is (its meaning and scope) and that interpretation is imperative in settling a national controversy on a very sensitive issue: Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution. The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation (emphasis added).131

The above quote from the United States Supreme Court in Casey132 references the Brown case-Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) as supposedly comparable to Roe. This in that both resolved, based on judicial constitutional interpretation, national controversies on sensitive issues and are therefore, on the majority USSC view expressed in Casey, both settled law with no modification possible. In Brown the USSC held that segregation of Caucasian and AfricanAmerican children in schools was unconstitutional as it violated the ‘Equal Protection Clause’ of the Fourteenth Amendment. However, on the respectful view here, Brown and Roe, though both implicating the Fourteenth Amendment of the US Constitution, are not comparable in making the point the USSC wished to make in

130

Blahuta (2017), pp. 758–770. Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at p. 867 (United States Supreme Court). 132 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court). 131

2.5 The Supreme Court of the United States Holding in Kristina Box. . .

81

the above excerpt from Casey. This in that Brown relied on an interpretation of the US Constitution that did not require judicial activism since the Fourteen Amendment “equal protection of the laws” clause is clear in meaning and express in the text of the Fourteen Amendment: Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (emphasis added).133

As here explained previously, however, the scope of the ‘liberty right’ referenced in the US Constitution Fourteenth Amendment Section I is undefined in the text of the Amendment. The liberty right then as a basis for an implied ‘privacy right’ in the abortion context—which privacy right the USSC derived through judicial activism in its interpretation in Roe134—sets Roe apart from Brown.135 In the latter, the Supreme Court of the United States was able to rely on the clear textual articulation of the constitutional clause at issue and the rather unambiguous meaning of the words in the ‘Equal Protection Clause’ and so to reject the so-called ‘separate but equal doctrine’ in public education. Thus, on the analysis here, whether the USSC is correct or not that the legal interpretation in Roe should be left in its totality as unassailable on any point for time in memorial; it should be understood that this is an unusual instance where the USSC to date has fully embraced its past liberal judicial activism in that case and the cases that rely on it as super precedent (Roe and its progeny) and holds the ruling effectively to be beyond legal challenge in part or in whole. Whether this stance will persist with the addition of Trump-appointed conservative justices, Justice Kavanagh and Justice Gorsuch to the USSC, thus creating a conservative majority on the Supreme Court bench, remains to be seen.136 Under United States Supreme Court (USSC) case law, and based on the Due Process Clause in respect of which the USSC in Roe inferred (a) a privacy right (held implied by the liberty right text of the Fourteenth Amendment to the US Constitution) and (b) a personal autonomy right for the woman in the abortion context; the woman has, as discussed, an unfettered right to abort a pre-viable fetus.137 Such a

133

Legal Information Institute (Cornell Law School) Fourteen Amendment Section 1 https://www. law.cornell.edu/constitution/amendmentxiv. 134 Roe v Wade 410 U.S. 113 (1973) (United States Supreme Court). 135 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) (United States Supreme Court). 136 Brown, Taylor Kate The US Supreme Court: Who are the Justices? BBC (30 November, 2018) https://www.bbc.com/news/magazine-33103973. 137 Judge Manion the Dissenting judge in Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al.(United States Court of Appeals for the Seventh District) (Decided 19 April, 2018) commented that “Casey treats abortion as a super-right, more sacrosanct

82

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

liberty and privacy rights guarantee constitutionally, more generally in all manner of contexts, ensures also no deprivation of security of the person (including no infringement of bodily integrity) without due process. Such a security of the person guarantee is not afforded, as is evident, to the pre-viable fetus. Yet the viable fetus, in contrast to the previable fetus, is subjected to being medically aborted in accord with U.S. law only under highly exceptional circumstances for compelling reasons determined on a case-by-case individualized basis; normally where urgently medically indicated for the mother. There is then in practice somewhat of a balancing of rights in such instances of potential abortion of a viable fetus though the health and safety of the mother is generally prioritized over that of the viable unborn if the choice must and is to be made by the physician in an emergency.138 In contrast; the pre-viable fetus139 is not considered on an individual basis under USSC case law and US legislation in that any pre-viable fetus is ‘eligible’ for an abortion (whether a therapeutic or a non-therapeutic abortion) if the mother so chooses. The USSC in Roe held, it is to be noted, however, that neither the pre-viable nor the viable fetus is considered a ‘person’ under the Fourteenth Amendment to the US Constitution which must include then also the ‘Due Process’ and ‘Equal Protection of the Law’ clauses of the Fourteenth Amendment.140 Hence one cannot—if we accept the

even than the enumerated rights in the Bill of Rights.” (referring to Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992)) (United States Supreme Court). 138 There may be complex cases where the woman’s directive to the physician puts her own life and that of some or all of her unborn at risk but these are beyond the scope of this work to discuss (i.e. where the woman refuses to selectively abort any of the multiple potentially fetuses she is carrying who must be delivered very prematurely and whose survival is possible but a highly precarious matter and will require intensive medical intervention). 139 The term ‘pre-viable’ is used here interchangeably with ‘non-viable’ (the latter is the term most commonly used in the abortion legal literature) though on the view of the author the former term is more accurate in the context of this discussion. 140 The USSC Majority in Roe stated that “The Constitution does not define ‘person’ in so many words. . . . But in nearly all . . . instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application . . . the word “person,” as used in the Fourteenth Amendment, does not include the unborn (emphasis added).” Roe v Wade 410 U.S. 113 (1973) pp. 158–159 (United States Supreme Court). This conclusion was reached by the USSC Majority in Roe based in part then on inferences from the fact that the text of the U.S. Constitution does not actually address the issue of the status of the unborn as ‘person’ or ‘nonperson’ and the fact that abortion practices were freer for most of the nineteenth century than they were at the time Roe was decided. Note however, as explained by K Savell, that the ‘born alive rule’ that designates only the born alive child as a ‘person’ under the law originated in a time when medical knowledge and technology did not allow for accurate detection of viability and stillbirth due to natural causes was a high probability making being born alive the only sure indicator of viability. The born alive rule then, the old English case law reveals, was not intended as an indicia of legal personhood per se generally but of viability (at a time viability could not be adequately assessed pre-birth) such that determinations could be made in the criminal context as to whether a homicide or manslaughter or assault of some kind had occurred upon a ‘child’ consequent to the assault on a pregnant woman. Thus if the child was born alive and survived briefly but then died due to injuries sustained in utero due to an assault on the pregnant mother; the assailant could be charged with the homicide of the infant but if the infant was born stillborn there was often no way

2.5 The Supreme Court of the United States Holding in Kristina Box. . .

83

USSC view in Roe that the term ‘person’ in the Fourteenth Amendment excludes the unborn—explain with reference to the Due Process and Equal Protection of the Law clauses of the Fourteenth Amendment, specifically their application only to a ‘person’ or ‘persons’, the special protection afforded the viable fetus in terms of the legal shield against a non-therapeutic abortion.141 The viability of the fetus marker precluding non-therapeutic abortion is thus a product also of the Majority’s ‘principled legal decision-making’ to put it in their terms. It is in fact, furthermore, not actually clear in the express text of the US Constitution that the term ‘person’ in the Fourteenth Amendment refers to ‘person’ in the sense of an entity (natural and/or non-natural) recognized in law as having legal personality and/or to ‘person’ in the sense of ‘human being’ with inherent legal personality nor whether the unborn (viable and/or previable fetus) is/are to be considered excluded from its protection: . . .nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.142

The United States Supreme Court Majority in Casey, it should be understood, further, referred to abortion as involving “the purposeful termination of potential life”143 (emphasis added). That statement does not directly address whether a fetus (viable or previable) is or is not properly considered in law as a ‘human being’ even

to know in yesteryear if the death was due to the assault on the pregnant woman or for some other cause [See Savell (2006), pp. 625–664. See also Grover (2017a), pp. 708–742]. 141 It is in practice the case that in North American democracies ‘personhood’ in law is reserved for human beings after live birth. At the same time, the United Nations Convention on the Rights of the Child (UNCRC) Article 24(d) accords the fetus—pre-viable and viable both without distinction— the right to good medical care (Convention on the Rights of the Child entered into force 7 September, 1990 https://www.humanium.org/en/convention/text/). The latter rights of the fetus are operationalized in the Convention by way of the guarantee of the right to the mother of quality ‘pre and post- natal care’ (a clumsy, but it appears effective way, of trying in Convention Article 24 (d) to avoid in the text directly assigning the fetus a particular status as ‘human life’, ‘human being’ etc. by referring to fetal rights. Note, however, that Article 24 of the Convention refers to the obligation that “States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health”, hence the reference to pre and post-natal care at Article 24 (d) contemplates interventions in the normal course to sustain the life of the fetus and then the live born child (child is defined in the Convention as a human being under age 18 years). It is clear that under the CRC (a) the right to good ‘pre and post-natal care’ belongs at least both to (1) the fetus and live born child respectively as well as to (2) the mother assuming then also in the first instance a right of the mother to be afforded pre and post-natal care. By implication at least thus the fetus is assigned human rights such as right to life in the Convention on the Rights of the Child. The Convention does not address abortion but if abortion is deemed necessary in a particular case, consistent with international human rights law, then the CRC could be viewed as ensuring both mother and child the right to have it carried out to the highest medical standard possible with the available resources. Yet some scholars take the view that even viable fetuses do not possess any human rights such as right to life. Copelon et al. (2005), pp. 120–129. 142 Legal Information Institute Due process clause, Section one of the fourteen amendment https:// www.law.cornell.edu/constitution/amendmentxiv. 143 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at p. 840 (United States Supreme Court).

84

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

before live birth. If the human fetus were ruled by the Court to be a ‘human being’, ‘actual human life’ not just “potential life”, arguably the Court would be faced with a great dilemma. This as to date most (perhaps all) common law countries assign ‘personhood’ only to live born humans (and, as we here previously discussed, of course, to the inanimate entity, the corporation).144 If the fetus is judicially considered a ‘human being’ it would pose the problem that the fetus would then need to be considered as having inherent legal personality and all that that entails in terms of rights. Hence the USSC in Roe and Casey deftly avoid the problem by declaring the fetus ‘potential life’ when in fact the more correct statement would have been ‘potential persons’ given the societal and judicial choice to date to use live birth as the demarcation line for attaining personhood under the law in the case of natural persons.145 Justice Kennedy, a Republican-appointed justice of the United States Supreme Court, sided with the liberal justices in the Casey case. Justice Kennedy explained in his Casey concurring opinion that the Majority view in Casey is that the State’s “interest in protecting potential life is not rooted in the US Constitution. It is, instead, an indirect interest supported by both humanitarian and pragmatic concerns” (emphasis added)146; the latter concerns which he details in his opinion in the Casey case. Hence arguably there is no constitutional basis under United States Supreme Court (USSC) case law for the distinction between previable compared to viable fetuses for the purpose of safeguarding so-called ‘potential life’ from induced nontherapeutic medical abortion in the case of the latter but not the former. This fact lays bare that the USSC in Roe and in Casey was engaged in judicial activism which the Court itself, by implication, appears to hold was ‘principled judicial activism’ directed to preserving the dignity of women. Further the USSC Majority in Casey affirmed the Supreme Court of the United States’ view in Roe that a fetus is not a person under the Fourteenth Amendment and therefore, on that analysis, not entitled to due process in the context of a potential induced abortion147 and that the previable fetus has no constitutional right to life (The USSC in Roe held that “an abortion is A federal lawsuit was filed—the first of its kind—asking a US federal court to declare the Colorado River in Southeastern Utah, US a legal person. This in order that the river, on which so many depend, can be protected from the environmental ravages likely to ensue due to US President Trump’s roll back of key environmental protection regulations (see Turkewitz, J (New York Times) Corporations have rights. Why shouldn’t rivers? 26 September, 2017) https://www.nytimes.com/ 2017/09/26/us/does-the-colorado-river-have-rights-a-lawsuit-seeks-to-declare-it-a-person.html. 145 It is noteworthy that one of the Dissenting Appeal Panel judges in Garza v Hargan held that the pregnant undocumented child J.D. was not a ‘person’ under the Due Process Clause; a view the majority of the en banc Court in the case commented on and rejected. USSC case law the Majority held reveals that Due Process is accorded to illegal aliens deemed entered over whom the US has territorial jurisdiction and to US citizens alike. Due Process in cases where the US had extraterritorial jurisdiction have also been considered (see Grover 2017b). 146 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court) (Justice Kennedy, Concurring in part, Dissenting in part). 147 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court) (Justice Kennedy, Concurring in part, Dissenting in part). 144

2.5 The Supreme Court of the United States Holding in Kristina Box. . .

85

not” “the termination of life entitled to Fourteenth Amendment protection”).148 Whether one concurs with the USSC‘s landmark cases which established the woman’s absolute right to abort a pre-viable fetus149 or not; or holds a moderate position somewhere in—between, we perhaps can agree that the USSC in Casey overreaches in suggesting that a successful constitutional challenge to the ruling in Roe would be an attack on the Court’s legitimacy as well as on its’ judicial authority and on the rule of law itself. This author suggests respectfully that the USSC in Casey is contending this, it appears, in a relatively transparent attempt to immunize its judicial activism from challenge and scrutiny. That judicial activism, it would seem, is what Kmiec refers to as reasoning with the desired result as the guide (result-oriented judging). This in that the USSC in Casey bases its reasoning on a set of linked inferences with prudential and pragmatic considerations guiding as well as the foregone presumption (correct or not) that no consideration of any balancing of rights is required when the fate of a pre-viable fetus is at issue: “The . . .right to abortion before viability is the only one that may not be infringed even for the very best reason. For an unenumerated right created just 45 years ago that is astonishing (emphasis added).”150 That results-oriented reasoning is involved becomes clear in that the USSC Majority in Casey, as mentioned, held that Roe (and by implication also the precedents it led to such as Casey) ought not to be overturned or limited even if the holding is flawed for to do so would, among other things, in their view “cause profound and unnecessary damage to the court’s legitimacy.”151 Whether or not Roe and Casey ought to be overturned in part or in whole on the merits is a separate issue from the point made by this author. That point is that, on the respectful view here, democratic rule of law does not allow for immunization of a court decision—any court decision; super precedent or not—from potential successful constitutional attack at some point in time. Any argument for immunization must

148

Roe v Wade 410 U.S. 113 (1973) at 159 (United States Supreme Court). Note that under Casey USSC case law any obstacle to abortion of the pre-viable fetus is considered ipso facto an ‘undue burden’ on the woman and unconstitutional without any further analysis necessary. In Casey the Chief Justice Rehnquist, joined by Justice White, Justice Scalia and Justice Thomas held that “The undue burden standard adopted by the joint opinion of Justices O’Connor, Kennedy, and Souter has no basis in constitutional law and will not result in the sort of simple limitation, easily applied, which the opinion anticipates. To evaluate abortion regulations under that standard, judges will have to make the subjective, unguided determination whether the regulations place “substantial obstacles” in the path of a woman seeking an abortion, undoubtedly engendering a variety of conflicting views.” (emphasis added). Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court) at point 3 p. 840 Justices O’Connor, Kennedy, and Souter gave the opinion of the plurality of the Court on the undue burden standard. 150 Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 22(United States Supreme Court). 151 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court). 149

86

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

inevitably be based on contrived criteria such as, on the respectful view here, was the Majority’s claim in Casey, discussed here previously, that in constitutional cases deciding highly sensitive issues that create national controversy, such as Roe; the United States Supreme Court rulings deciding the matter must be regarded ipso facto as permanently settled law.152 On that issue Justices O’Connor, Kennedy, and Souter in their opinion for the plurality of the Court in Casey cryptically stated “Liberty finds no refuge in a jurisprudence of doubt”153 To the latter the current author would respectfully reply that doubt is a necessary precondition for democratic free and critical thought also for the judiciary. It will be interesting and instructive to learn whether any legal challenge to Roe,154 once it winds its way to the end of the lower court appeals’ process and potentially lands at the doorstep of the United States Supreme Court (USSC), ultimately ends up turned away. The latter due to the USSC declining to grant leave for a hearing of the case and perhaps not even giving reasons for that declination. With a conservative majority now seated at the USSC it is more likely, it would seem, that Roe v Wade will be an issue in the new State restrictive abortion legislation cases if heard. To date the USSC has upheld (a) the constitutionality of the interpretation in Roe v Wade155 that established the unfettered right to abortion of a pre-viable fetus as a privacy right derived from the liberty guarantee in the Due Process Clause of the Fourteenth Amendment and (b) the scope of the test of ‘undue burden’ as set out Casey156 that prohibits any untoward State interference with abortion of a non-viable fetus or at least one deemed non-viable. Such was the situation with the USSC ruling in Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. which we are examining here.157 The USSC in the Kristina Box case158 relied on Rule 10 in upholding the Court of Appeals decision to invalidate Indiana’s ‘Sex Selective and Disability Abortion Ban’. That is the USSC exercised permissible discretion under

152

See Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at p. 867 (United States Supreme Court). 153 See Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at p. 845 (United States Supreme Court). 154 Roe v Wade 410 U.S. 113 (1973) (United States Supreme Court). 155 Roe v Wade 410 U.S. 113 (1973) (United States Supreme Court). 156 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court). 157 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019 (Decided 28 May, 2019). 158 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019 (Decided 28 May, 2019).

2.5 The Supreme Court of the United States Holding in Kristina Box. . .

87

Rule 10 in declining to consider the constitutionality of the Indiana selective abortion ban thus leaving the Court of Appeals judgment on selective abortion to stand: Rule 10 of the United States Supreme Court Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers . . .a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court (emphasis added).159

Arguably the unfettered right to selective non-therapeutic abortion of a pre-viable fetus based on sex, ‘race’ or heritable condition or ‘disability’ had not been decided by the United States Supreme Court (USSC) and is a different question, according to the State of Indiana, than the abortion question decided in Roe v Wade160 and Casey.161 At least the USSC in Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. did not suggest that the selective abortion question had already been decided and that therefore it would not consider the question on the merits. Indeed the USSC conceded that “Only the Seventh Circuit has thus far addressed this kind of law”(i.e. the District and Appeals Courts of the 7th Circuit in the Planned Parenthood of Indiana and Kentucky Inc. case here previously discussed). The USSC thus deftly sidestepped the question as to whether this was the sort of question that required the USSC to rule on the matter in the national public interest. Instead the USSC relied on Rule 10’s guidance that the USSC can become involved (as one example) when different Courts of Appeals in different circuits render conflicting rulings on the same question: We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals. See this Court’s Rule 10.162

This rationale, however, begs the question as to why the USSC in Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. declined to consider as a basis for considering the merits of the case that it posed “an important question of federal law that has not been, but should be, settled by this Court” (the USSC) also permissible under

159

Legal Information Institute: Rule 10. Considerations Governing Review on Writ of Certiorari https://www.law.cornell.edu/rules/supct/rule_10. 160 Roe v Wade 410 U.S. 113 (1973) (United States Supreme Court). 161 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992) (United States Supreme Court). 162 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019 (Decided 28 May, 2019).

88

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

Rule 10.163 The USSC in Kristina Box164 did overturn the Appeals Court ruling invalidating Indiana’s contentious regulation regarding lawful disposal of aborted and miscarried fetal remains. While claiming that the decision on that question too was not based on the merits as it did not purportedly concern an issue regarding a fundamental right,165 the Supreme Court of the United States found that the State of Indiana did have a compelling interest in the “proper disposal of fetal remains”; ‘proper disposal’ constituting what the State characterized as the “humane and dignified disposal of human remains.”166 The USSC thus in Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. appears to uphold the principle of “humane and dignified disposal of human remains” as per the government’s rationale for its fetal disposal regulation (referring to the remains of aborted fetuses (aborted through medical procedures) or naturally miscarried fetuses). Arguably, however, and depending on one’s interpretation of the medical facts and the law regarding a fetus (including one’s view of what is required for ‘personhood’ or status as a ‘human being’/‘human life’ as opposed to a ‘potential’ human being/human life) that same court, in the same case, did or did not endorse the humane and dignified treatment of the living pre-viable fetus considered at any point and for any reason eligible for abortion if the mother so chose. From a purely logical perspective, if the remains of the aborted167 (or miscarried) pre-viable fetus must be treated as ‘human remains’ (as the remains of a ‘human being’/‘human life’) and not as ‘medical waste’ (as the USSC ruled in the Kristina Box case168); then logical consistency dictates that the pre-viable living fetus must then be regarded as a ‘human being’ or at least a ‘human life’ (if there is a distinction here to be made between the latter two terms). This must follow if the analysis is to cohere and be internally consistent. One can understand then the motivation underlying the position of Planned Parenthood of Indiana and Kentucky Inc. which called for the invalidation of the Indiana fetal disposal regulations even though these ostensibly, by Planned Parenthood’s own reckoning, in themselves, did not directly interfere with a woman’s unfettered right to abort a pre-viable fetus.

163

Legal Information Institute: Rule 10. Considerations Governing Review on Writ of Certiorari https://www.law.cornell.edu/rules/supct/rule_10. 164 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019). 165 This since Planned Parenthood of Indiana and Kentucky Inc. did not advance the proposition that Indiana’s fetal disposal regulations interfered with what it considered a woman’s fundamental right to a non-therapeutic pre-viable fetal abortion. 166 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019 at p. 2) (Decided 28 May, 2019) (referencing wording from the lower court in the case). 167 Referring to a medically induced abortion. 168 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019) (Decided 28 May, 2019).

2.5 The Supreme Court of the United States Holding in Kristina Box. . .

89

Recall that Indiana predicated its fetal disposal regulations “on its determination that “a fetus is a human being”.169 There is then a logical/conceptual inconsistency in the USSC ruling in Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al.170 which (a) validated Indiana’s fetal disposal regulations requiring fetal remains to be regarded as the remains of a human being/human life and not as ‘medical waste’ while, at the same time, (b) invalidating Indiana’s selective abortion ban. The striking down of Indiana’s selective abortion ban was based on the fact that the selective abortions were to be performed on the pre-viable fetus and banning these selective abortions would thus be considered an ‘undue burden’ or overwhelming obstacle to a woman’s unfettered right to abort a previable fetus if that were her choice (a virtual absolute right established in the Roe USSC case precedent). The USSC in Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al relied then on the landmark abortion decisions in Roe and Casey in invalidating the Indiana selective abortion ban.171 The State, it was agreed by the Court, nonetheless, has a compelling interest in protecting the life of a human being. In the case at bar then the USSC tacitly, if unintentionally and indirectly (and correctly or incorrectly depending on one’s view) appears to have affirmed the fetus as a human being. This given its ruling that aborted fetal remains (which would have been pre-viable at the time of the abortion) and miscarried fetuses (some of these perhaps having been viable for a time) must be treated as ‘human remains’. The latter USSC ruling then raises highly controversial new questions regarding whether the fetal ‘pre-viability’ versus ‘viability’ demarcation is the most appropriate workable one in determining if and when non-therapeutic abortion should be considered lawful and the law permitting the same constitutional. We will soon enough learn whether the United States Supreme Court (USSC) will opt to continue to avoid addressing the merits of the precedents in Roe v Wade and Casey172 or choose an alternate path. This given the raft of abortion cases currently progressing through the lower and upper State courts since US President Trump came into office. If the USSC does consider a challenge to Roe, the USSC’s ultimate 169

In the Supreme Court of the United States, Respondent’s Brief in Opposition to the Petition for a Writ of Certiorari in Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. at p. 2. 170 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019) (Decided 28 May, 2019). 171 Note that the USSC in the landmark abortion case Roe did not make a determination as to whether the fetus is a human being. See Roe v Wade 410 U.S. at 159:“When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus [concerning when life begins], the judiciary . . . is not in a position to speculate as to the answer.” 172 Note that the USSC has overturned at least 236 of its own case precedents Willingham AJ The Supreme Court has overturned more than 200 of its own decisions. Here’s what it could mean for Roe v. Wade CNN Politics (29 May, 2019) https://www.cnn.com/2019/05/29/politics/supremecourt-cases-overturned-history-constitution-trnd/index.html.

90

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

decision on the abortion issue is likely to lead to great division on the Court (with a likely split decision) and so too in the larger society on the matter. However, arguably that division was never, in important respects, genuinely quelled in the US populace by the Roe case precedent. The liberal judicial activism reflected in the Roe and Casey US Supreme Court judgements may potentially be replaced by the conservative judicial activism of the new conservative majority on the USSC.173 A court challenge to Roe would highlight the general essential question regarding if and when longstanding USSC precedent should be overturned, qualified or, instead, considered unassailable settled law based on prudential considerations and notwithstanding whether or not the stare decisis previous ruling was flawed to any important extent in its reasoning. It remains to be seen, furthermore, whether if the unfettered right to abortion of the pre-viable fetus is once again considered by the USSC; the USSC will be able to apply a well-developed reasoned analytical framework and rule on this most perplexing and difficult constitutional issue in such a fashion as to have the reasoning be perceived at least as ‘apolitical’ and perhaps even, in the best case scenario, as ‘just’ by the vast majority of the general U.S. public.174

2.6

Case 4: Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (United States Supreme Court, 2019) (A Question of Double Jeopardy in Criminal Prosecution)

In Gamble the United States Supreme Court (USSC) held by a majority vote of seven to two that a person could be criminally prosecuted under both State and Federal Criminal Codes for the same criminal conduct giving rise to arguably the same or an analogous criminal offence (an offence characterized by the same or analogous substantive elements of the crime as set out in the State and Federal Criminal Codes respectively and hence defined by statute under both a U.S. State Criminal

173

If the USSC rules in a future case that the Fourteenth Amendment does not implicate an unfettered right to abort a pre-viable fetus—if that should be the ruling by the conservative majority on the USSC as constituted at the time of this writing—(assuming the challenge to Roe is heard by the USSC); the Majority would be engaged in ‘conservative judicial activism’ as nothing in the Fourteen Amendment Section 1 precludes a privacy right in the abortion context protecting the woman’s rights to abortion and any such conclusion would be based on the particular reasoning of the particular Majority (now a conservative leaning majority) on the Court at that time. 174 Judge Manion argues that States at least have a compelling interest to prevent abortions based solely on particular discriminatory grounds such as race, sex or inherited disability and that such a State interest should be considered and not rejected out of hand in a constitutionality analysis by the USSC Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at pp. 30–31 (Judge Manion, Dissenting Opinion).

2.6 Case 4: Gamble v United States No. 17-646. Argued December 6, 2018. . .

91

Code and the US Federal Criminal Code).175 Mr. Gamble, the defendant, had pleaded guilty to violating State law by being a ‘felon-in-possession-of-a firearm’; an offence under Alabama State law (Gamble had a previous felony conviction for second degree robbery which then prohibited him under State law to be in possession of a firearm). The Alabama law was as follows: no one convicted of “a crime of violence” “shall own a firearm or have one in his or her possession.” Ala. Code §13A–11–72(a) (2015); see §13A–11–70(2) (defining “crime of violence” to include robbery).176

Mr. Gamble was subsequently indicted by federal prosecutors for the same or an analogous offence relating to the same incident and conduct that had led to his conviction under Alabama State law. The federal law applied in the case was one: forbidding those convicted of “a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.” 18 U. S. C. §922(g)(1).177

Mr. Gamble argued that his constitutional right under the Fifth Amendment not to be subjected to ‘double jeopardy’ had been violated. In beginning this discussion regarding Gamble; it is necessary to point out that the current author holds that the same act/conduct can constitute multiple different offences where that same act/conduct meets the necessary elements of the various crimes at issue as set out in the same or different statutes for more than one criminal offence. In any case there appeared to be agreement in Gamble that the reference in the Fifth Amendment of the U.S. Constitution regarding ‘double jeopardy’ applied in respect of the same offence not being twice prosecuted not the same conduct: “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb. . .” (emphasis added)178 that: [T]he language of the Clause . . . protects individuals from being twice put in jeopardy ‘for the same offence,’ not for the same conduct or actions,179

The issue in Gamble, on the view here, does not involve the same acts/conduct giving rise to multiple statutorily-defined different offences. The latter by the same act(s) meeting the differing ‘elements of the crime’ for multiple and distinct offences. 175

The precedent set in Gamble would allow for Presidential advisors or others associated with a US government or campaign indicted or potentially to be indicted on Federal charges to face prosecution for the same or analogous crimes at the State level even if the President, whomever that may be, pardons them for the same or similar crimes under the federal criminal law statute (Presidential pardons are not available for crimes defined under U.S. State Criminal Codes). 176 Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus p. 2 (United States Supreme Court). 177 Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus p. 2 (United States Supreme Court). 178 Legal Information Institute (Cornell Law School) Double Jeopardy https://www.law.cornell.edu/ wex/double_jeopardy. 179 Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus at p. 3 (United States Supreme Court).

92

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

Rather the issue in Gamble is the question of the validity of successive prosecutions by the State and then the federal government in that order (in other cases it could be the reverse order) for what Mr. Gamble holds is the same statutorily-defined offence (the common element of the crime being ‘felon-in-possession-of-a-firearm’) involving the same criminal conduct pertaining to the same set of facts; and same elements of the crime relating to the same incident.180 In Gamble that same criminal act/conduct (felon-in-possession-of-a-firearm), with the same elements of the crime, relating to the same incident is considered as two different offences by the USSC majority of the justices in Gamble by virtue solely of the fact that the offence is codified in two different alleged sovereign’s Criminal Codes; one State, the other federal. That is, the majority in Gamble opined that (a) the State is a separate sovereign than is the federal government and (b) hence their laws—the State vs Federal Criminal Code—in defining the offence regarding the matter of a felon in possession of a firearm were in fact defining two different offences equally applicable in the same case allowing for a double prosecution. The USSC Majority held in Gamble that this “dual sovereign” analysis did not allegedly infringe the ‘double jeopardy’ principle181 embodied in the Fifth Amendment of the U.S. Constitution. This in that double jeopardy, on the USSC majority analysis in Gamble, only applies to the same sovereign trying the individual criminally twice for the same offence: “As originally understood. . . an ‘offence’ is defined by a law and each law is defined by a sovereign. So where there are two sovereigns, there are two laws and two “offences.”182 However, on the current author’s view, it is entirely unclear that the same criminal conduct can constitute different offences simply due to the fact that that same criminal conduct at issue, and the substantive criminal elements of which it is constituted, is addressed and defined as the same or an analogous offence in two different criminal codes (State and Federal). The meaning of “offence” in the Fifth Amendment of the U.S. Constitution is thus at the heart of the Gamble case: Our double jeopardy case law is complex, but at its core, the Clause means that those acquitted or convicted of a particular “offence” cannot be tried a second time for the same “offence.” But what does the Clause mean by an “offence”?183

180

Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus (United States Supreme Court) at p. 2: “In November 2015, a local police officer in Mobile, Alabama, pulled Gamble over for a damaged headlight. Smelling marijuana, the officer searched Gamble’s car, where he found a loaded 9-mm handgun. Since Gamble had been convicted of second-degree robbery, his possession of the handgun violated an Alabama law providing that no one convicted of “a crime of violence” “shall own a firearm or have one in his or her possession. . .”” 181 Legal Information Institute Double Jeopardy https://www.law.cornell.edu/wex/double_ jeopardy. 182 Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus at pp. 3–4. 183 Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus.

2.6 Case 4: Gamble v United States No. 17-646. Argued December 6, 2018. . .

93

To resolve the issue the United States Supreme Court (USSC) in Gamble, in part, relied on a long line of its case precedents that set out that “a crime against two sovereigns constitutes two offences because each sovereign has an interest to vindicate.”184 The latter statement, however, respectfully on the view here, seems to arbitrarily define away, through conservative judicial activism, the very questions at issue in Gamble where we are dealing with two justice authorities (US State and Federal) of the same sovereign country. The constitutional prohibition against ‘double jeopardy’, by definition, eliminates the possibility that a particular sovereign interest can be vindicated via a second conviction opportunity by that same sovereign. A crucial question in Gamble then was whether the State and Federal justice authorities, both of the US, constitute/represent the same or ‘different sovereigns’ The question remains therefore then as to the tenability of the notion of dual culpability of the defendant under the theory of ‘dual-sovereignty’ (the alleged sovereignty here of the U.S. individual State (Alabama here) and the purported separate sovereignty of the US Federal Government). In the case at bar Mr. Gamble challenged the court’s precedents permitting, under the dual sovereignty theory, that he should be tried criminally under both the State and federal law for the same criminal conduct relating to the same incident involving what he held was the same offence namely being a ‘felon- in-possession-of-a firearm’. The Majority in Gamble appears, it is here respectfully contended, to engage essentially in creating what Kmiec referred to as ‘judicial legislation;’185 relying on its own particular logic, contentious presumptions and inferences as well as case precedent. This to allow the Majority in Gamble to declare that the State and federal law, on the issue of the act of a felon being in possession of a firearm (a) incorporates respectively two different offences implicated by the criminal conduct at issue (infractions of the law) only because two different statutes (State and Federal Criminal Codes) are involved (both statutes define the offence or an analogous offence at issue in Gamble) and that (b) the two Criminal Codes purportedly incorporate the authority of two alleged different ‘sovereigns’(State and Federal): [T]he language of the Clause . . . protects individuals from being twice put in jeopardy ‘for the same offence,’ not for the same conduct or actions,186

The Majority goes on to cite case precedent regarding what it holds is an example in support of its dual sovereignty theory: A single act “may be an offence or transgression of the laws of two sovereigns, and hence punishable by both. . . Then we gave color to this abstract principle—and to the diverse interests it might vindicate—with an example. An assault on a United States marshal, we

184

Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus at p. 2. 185 Kmiec (2004), pp. 1442–1477. 186 Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus at p. 3 (United States Supreme Court).

94

2 The Supreme Court of the United States and Judicial Activism in the Trump Era said, would offend against the Nation and a State: the first by “hindering” the “execution of legal process,” and the second by “breach[ing]” the “peace of the State.”187

However the alleged example188 of ‘dual sovereignty’ given in the Majority opinion in Gamble in the excerpt immediately above arguably (a) defines two different offences that are not analogous and presumably have different substantive elements of the crime in some respect189—namely the offence of ‘hindering the execution of legal process’ versus the offence of ‘breaching the peace’—though the underlying conduct of the defendant is the same in the particular circumstance (interfering with the duties of a U.S. Marshall) and (b) sets out two offences that are arguably both against one sovereign, namely the US as an entity in itself comprised of its constituent parts.190 In Gamble, in contrast, the offence it was agreed by the parties, is the same or analogous ostensibly in its legal elements under both the Alabama State and the federal U.S. criminal statutes (referring to the offence of felon-in-possession-of-a-firearm who is prohibited from the same). Thus it is not just the underlying act/conduct giving rise to the offence that is the same (Gamble having a firearm in his car after having been previously convicted of a felony) but also the offence as defined by the elements of the crime under the two statutes. Hence, on this author’s respectful view, the aforementioned example chosen by the Majority in Gamble does not necessarily speak to the core issues in that case. 187

Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus at pp. 6–7 (United States Supreme Court). 188 The Majority in Gamble also made use of an international example in the attempt to support the dual sovereignty theory of successive prosecutions. The example involves the U.S prosecuting the perpetrator of a murder of an American abroad even where that defendant has already been tried and convicted in the foreign country (something that is permitted under U.S, federal law). The majority explains that the U.S. would have separate interests in the matter compared to the foreign state such as “key national interests related to security, trade, commerce, or scholarship.” Further the majority points out the U.S. may not have faith in the integrity of the foreign judicial branch involved and hence wish to try the perpetrator (who may be an American for instance) at home. Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at p. 7 (United States Supreme Court). However this example involving international relations etc. poses unique issues that are quite distinct from the interests of the state and federal government both of the U.S. regarding the crime or crimes—one offence or two depending on whether or not one supports the dual sovereignty theory of successive prosecutions—involved in the Gamble case and hence should be addressed separately. 189 Further other complications may arise. For example the assault on the US Marshall could have been legally an actual or automatic ‘breach of the peace’ under State law whereas the ‘hindering of the execution of a legal process’ by assault of the US Marshall may only have been an attempted hindrance as the US Marshall may have already completed that task (execution of a legal process such as serving a subpoena or seizure of property etc.) when he or she was assaulted. Hence, in the latter example, the offences differ on the dimension of actual completion of the actus reus versus attempted completion of the offence at issue under each statute making them thus different offences. 190 Compare Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Ginsburg Dissenting Opinion) at p. 4. Regarding the sovereignty residing with the people of the US as a whole such that the State and federal governments of the US are not separate sovereignties.

2.6 Case 4: Gamble v United States No. 17-646. Argued December 6, 2018. . .

95

Justice Thomas concurred with the Majority in Gamble that the ‘dual-sovereignty doctrine’ allowed for a dual conviction by the State and the federal prosecutor on the same criminal conduct where both the State and the Federal Criminal Codes define the same or an analogous offence at issue. He dissented with the Majority on the, in his view, sometimes outsized role of precedent (stare decisis) in adjudicating Gamble and other cases. Justice Thomas advocates in Gamble for a textualist approach that can outweigh stare decisis where appropriate. Justice Thomas references Chief Justice Marshall’s admonition that the judiciary’s role is “to say what the law is” in the context of a particular “case” or “controversy” before the court.191 Justice Thomas goes on to cite the Founders’ Federalist papers: “The Judiciary thus may not “substitute [its] own pleasure to the constitutional intentions of the legislature” (The Federalist No. 78, at 468–469, emphasis added).192 However it is evident that sometimes it can be the case that the legislature will have drafted laws that are not constitutional and that the law-makers may in fact, on occasion, not have entertained “constitutional intentions.” At those points the judiciary, it is here contended, must uphold democratic constitutional values and decline to attempt to create an illusory ‘fit’ between the Constitution and the ‘unconstitutional intentions’ of the legislature in that instance. At times this may, on the view here, require ‘principled judicial activism’ in judicial reasoning as when the text of a particular legislative clause or provision of the Constitution is ambiguous on a crucial point or a poorly reasoned USSC prior decisions must be overturned or an evolved interpretation is the just one. Justice Thomas opines in Gamble that stare decisis runs a risk in that it, in his view, at times “elevates demonstrably erroneous decisions-meaning decisions outside the realm of permissible interpretation-over the text of the Constitution and other duly enacted federal law.”193 Justice Thomas endorsed the caution to be wary since “It is always tempting for judges to confuse our own preferences with the requirements of the law”194 and maintains that “the Court’s stare decisis exacerbates that temptation by giving the veneer of respectability to our continued application of demonstrably incorrect precedents.”195 Justice Thomas in the aforementioned quotes thus advocates for, it would appear, ‘judicial restraint’ in judicial interpretation and decision-making such that it is guided by the actual legislative and/or Constitutional text implicated in a case. Thus, from this author’s respectful perspective, Justice

191

Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 4) (United States Supreme Court). 192 Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 4) (United States Supreme Court). 193 Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at para 36 (United States Supreme Court). 194 Justice Thomas in Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at p 2 of the Justice Thomas Dissent (United States Supreme Court) Citing Obergefell v Hodges 576 U.S. _(2015) (Roberts Dissenting) slip op. at 3. 195 Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at p. 3 (Justice Thomas dissent) (United States Supreme Court).

96

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

Thomas, while arguing forcefully in Gamble about the risk of too heavy a reliance on stare decisis (overreliance potentially also on incorrectly decided/erroneously judicially reasoned case precedent), at the same time, engages in ‘conservative judicial activism’ in his promotion of a textualist approach that some would consider rather strict.. Justice Thomas in Gamble sided with the Majority, as mentioned, against judicial interpretations of the Fifth Amendment that would have protected the vulnerable defendant Mr. Gamble, and others similarly situated, against federal prosecution who have already been convicted under State law (or vice versa) for substantively the same or an analogous offence as far as the elements of the crime are concerned. Justice Thomas, in the context of Gamble, states: “And of course, we are not entitled to interpret the Constitution to align it with our personal sensibilities about “unjust” prosecutions.”196 He cites, in support of his Dissent in Gamble, Justice Gorsuch in Currier v. Virginia, 585 U. S. ___ (2018) (slip op., at 16) when the latter states: “While the growing number of criminal offenses in our statute books may be cause for concern, no one should expect (or want) judges to revise the Constitution to address every social problem they happen to perceive.”197 On the respectful view here, however, it is not possible to regard as legally supportable the courts upholding any judicial interpretation of the statutory law in support of what the judiciary itself may perceive as a fundamentally unjust prosecution. This even where the judicial textual interpretations at issue may have been within the range of rationally possible interpretations as to legislative intent. Thus adherence to interpretations that lead to injustice, for instance unjust prosecutions, on this author’s view, cannot be legitimized as an effort, for instance, to protect stare decisis stability in the law, to avoid judicial consideration of a highly contentious social problem, to stay faithful to the textualist approach, or to show unfounded great deference to the legislature or for reasons relating to any combination of the foregoing or to other factors. This when one considers that (a) the Constitution’s intent is in large part to affirm and perpetuate democratic rule of law which is grounded on fairness and justice and (b) the Constitution takes precedence over statutory legislative intent when the two conflict as Justice Thomas himself concedes.198 The regard for democratic rule of law, grounded as it is on democratic values, requires that the vulnerable, in an equitable manner, also be protected from injustice when that opportunity presents itself to the court. The law is clearly not selfexecuting insofar as assurance of its constitutionality is concerned. The constitutionality of statutory legislation and of judicial reasoning in relevant case precedent in a case at bar must be tested by the Courts especially given the ambiguity that

196

Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 Justice Thomas Dissent at p 2 (United States Supreme Court). 197 Currier v. Virginia, 585 U. S. ___ (2018) (slip op., at 16) (United States Supreme Court). 198 Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (United States Supreme Court) Justice Thomas Dissent at p. 10 (“No legislative act, therefore, contrary to the Constitution, can be valid”).

2.6 Case 4: Gamble v United States No. 17-646. Argued December 6, 2018. . .

97

generally exists in both. A formal finding or foregone presumption by the courts of the constitutionality of a particular judicial textual interpretation of a statutory or a constitutional provision in a democracy must reflect, on the current author’s view, democratic values that respect fundamental individual and collective human rights. Any judicial textual interpretation inconsistent with upholding human rights and democratic values, on the contention here, must thus be considered ipso facto unconstitutional and in error as it would potentially perpetuate unjust law. Such is the case, it is here contended, with the notion of dual prosecutions under US State and Federal law for the same or an analogous offence defined in both the State and the Federal Criminal Code. Such judicial textual interpretations that support dual prosecutions under the ‘dual sovereignty doctrine’ (regarding State and Federal prosecutions of the same or an analogous offence), it is here contended, reflect ‘judicial legislation’ inconsistent with the Fifth Amendment to the US Constitution and its underlying democratic value of fairness. That underlying democratic value of fairness is, in part, operationalized in the prosecutorial burden (regarding a particular offence) having to be met in one prosecutorial forum (either the State or Federal) such that the defendant and the public can have some reasonable, and expeditious as possible, finality regarding the criminal case at issue. Furthermore: The United States and its constituent States, unlike foreign nations, are “kindred systems,” “parts of ONE WHOLE.” The Federalist No. 82, p. 493 (C. Rossiter ed. 1961) (A. Hamilton). They compose one people, bound by an overriding Federal Constitution. Within that “WHOLE,” the Federal and State Governments should be disabled from accomplishing together “what neither government [could] do alone—prosecute an ordinary citizen twice for the same offence”(italics added, other emphasis in the original).199

Justice Thomas appears to hold that the text itself of the statute or the Constitution should, for the most part, be the guide to correct interpretation of the law along with the intent of the drafters (a form of ‘conservative judicial activism’). A strict textualist approach, however, is potentially problematic if it leads, for instance, to less than due regard to the democratic values and intentions that should underlie the statutory text or to inattention to implicated human rights considerations or to lack of an assessment of whether the law was well reasoned given the purpose of the statute as a whole etc. For Justice Thomas, overruling of an incorrectly decided case precedent is mandated when the Majority of the Court finds that the judicial textual interpretation of the relevant law adopted in the precedent is not amongst the range of permissible textual interpretations given the legislature’s intent and hence the Court was, on his view, improperly “making law” and “usurping the power of the legislature” in adopting that interpretation in the precedent-setting case.200 Thus Justice Thomas holds that it is possible for a court to adhere to stare decisis in regards a case precedent that was incorrectly decided but “only when the earlier

199

Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Ginsburg Dissenting Opinion at p. 3 (United States Supreme Court). 200 Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas dissent) at p. 9 (United States Supreme Court).

98

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

decision adopted a textually permissible interpretation of the law (emphasis added).”201 Justice Thomas states the following reflecting his reliance on rather strict textualism: By applying demonstrably erroneous precedent instead of the relevant law’s text—as the Court is particularly prone to do when . . . crafting new individual rights—the Court exercises “force” and “will,” two attributes the People did not give it. . .We should restore our stare decisis jurisprudence to ensure that we exercise “mer[e] judgment,” ibid., which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying. . .anything less invites arbitrariness into judging (emphasis added).202

At the same time Justice Thomas concurs that “no legislative act . . .contrary to the Constitution can be valid”203 and argues that “the same goes for judicial precedent”204 In Gamble, however, Justice Thomas reversed his initial skepticism of the ‘dual sovereignty doctrine’ which allows for double prosecution of the same or an analogous offence when defined under both State and Federal Criminal Codes. This despite the Double Jeopardy Cause of the Fifth Amendment. Justice Thomas rationalized this reversal in his skepticism of the ‘dual sovereignty doctrine’ based on the notion that the drafters of the U.S. Constitution had no reason to consider whether so-called ‘dual sovereignty’ prosecutions by the State and federal government violated the ‘Double Jeopardy Principle’.205 However, even assuming this to be correct historically; it does not follow that the drafters, if they were here today, would have considered dual sovereignty rationales for State and federal prosecutions for the same offence to be constitutionally permissible. That is where the offence is the same or analogous in its substantive elements albeit statutorily defined in both State and federal law (Criminal Codes). Nor is there a sound argument, it is this author’s contention, for the failure to interpret and evaluate the ‘Double Jeopardy Clause’ of the Fifth Amendment in the context of the evolution of the US criminal

201

Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas dissent) at p. 9 (United States Supreme Court) Referring to a textual interpretation that is amongst several alternatives that a judicious reasonable person might consider to have been the possible intent or meaning of the text when drafted. 202 Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at p. 3 (Justice Thomas dissent) at p. 2 (United States Supreme Court). 203 Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at p. 10 (Justice Thomas dissent) at p. 2 (United States Supreme Court). 204 Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at p. 10 (Justice Thomas dissent) at p. 2 (United States Supreme Court). 205 Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (United States Supreme Court). Justice Thomas Dissenting Opinion: “Given their understanding of Congress’ limited criminal jurisdiction and the absence of an analogous dual-sovereign system in England, it is difficult to conclude that the People who ratified the Fifth Amendment understood it to prohibit prosecution by a State and the Federal Government for the same offense. And, of course, we are not entitled to interpret the Constitution to align it with our personal sensibilities about “‘unjust’” prosecutions.” at pp. 1–2.

2.6 Case 4: Gamble v United States No. 17-646. Argued December 6, 2018. . .

99

law and of the US prosecutorial structure post the time of the Constitution’s founders. Justice Thomas’ concurrence in Gamble206 regarding holding double prosecutions constitutional when the same or an analogous offence is incorporated in both State and Federal Criminal Codes, on the current author’s respectful view, illustrates that a strict textualist approach to legal interpretation—one employed out of the context of a broader consideration of the democratic values regarding protection of human rights intended by the constitutional clause at issue (here the Fifth Amendment)—is misguided. Consider, for instance, that given the United States Supreme Court case precedent set in Gamble; whether or not a person will face successive prosecution for the same criminal conduct is arbitrarily dependent on whether a particular State Criminal Code statute-defined offence is mirrored in the Federal Criminal Code. That situation then, on the current author’s view, does not comport with democratic rule of law, equity under the law or the intent of the Fifth Amendment to the US Constitution. Justice Thomas appears to consider that correct textual interpretation of the Constitution can result in, on occasion, in the estimation of some of the justices, perpetuation of unjust prosecutions.207 On the analysis of the current author, however, such an instance of unjust prosecution would be unconstitutional as it is inconsistent with democratic values (such as reflected in the justice inherent in the prohibition on double jeopardy). Thus no judicial interpretation of the Constitution that supports an unjust prosecution could be the correct textual one. On the view here it is imperative that the justices be guided in constitutional interpretation by democratic values in the search for the ‘correct textual interpretation’ of the Constitution. This rather than finding a way antithetical to democratic values to uphold a textual interpretation of the Constitution that may or may not comport with precedent but undermines justice. There is, after all, much arbitrariness in deciphering the supposed ‘correct textual interpretation’ of any law including and perhaps even more so when the Constitution is at issue given in part the broad scope of its clauses. Neither the legal text itself, history of its drafting, case precedent nor the larger context etc. provide a definitive road map in the search for the ‘holy grail’ called ‘correct textual interpretation’ of constitutional law (or statutory law for that matter). Justices must be wary not to be inadvertently steered away from democratic values in their interpretations by any number of factors, including stare decisis and societal or political pressures, such that they are in fact further away from the possibility of correct interpretation of the Constitution. The majority of the United States Supreme Court (USSC) in Gamble asserted that they relied on a textualist approach in finding that the Fifth Amendment’s text affirmed the legal supportability and constitutionality of the ‘dual sovereign’

206

Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at p. 3 (Justice Thomas dissent) (United States Supreme Court). 207 Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (United States Supreme Court). Justice Thomas Dissenting Opinion at pp. 1–2.

100

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

prosecution. The relevant clause of the Fifth Amendment at issue in Gamble is “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . .”(emphasis added).208 The Majority in Gamble held that the dual sovereign prosecution of an individual was not an exception from the prohibition against ‘double jeopardy’ found in the Fifth Amendment but its permissibility instead flowed directly from that text. This the United States Supreme Court Majority in Gamble concluded based on the fact that: [T]he language of the Clause . . . protects individuals from being twice put in jeopardy ‘for the same offence,’ not for the same conduct or actions.209

The current author suggests, respectfully, that in Gamble in the Court’s distinguishing of the ‘offence’ from the ‘conduct’ or ‘action’ that constitutes one of the key elements of the offence in both the State and federal law (being a felon in possession of a firearm), the Majority takes quite a liberal and creative license in interpreting the Fifth Amendment. The Majority, on this author’s view, in fact engages in judicial activism intended to achieve a particular result; namely upholding the ‘dual-sovereignty’ notion permitting successive prosecutions by the State and the federal justice department for the same offence implicating the same criminal conduct and the identical elements of the crime relating to the same incident. There was no suggestion in Gamble that the defendant’s criminal conduct qualified as different offences under State and federal law because the offences were codified in a substantively different way in State versus federal law; that is such that the elements of the offence/crime in the State vs Federal Criminal Codes were set out differently in substantive ways in each statute. Rather the Majority in Gamble, in the result, considers the ‘offence’ essentially in the abstract by disregarding and/or placing no weight on the fact that the elements of the crime for the offence at issue as set out in the two statutes is the same or analogous. Thus the federal statute offence and the State statute offence were considered by the Majority to be two different offences simply based on the fact that each was incorporated in a different statute (such that the same conduct, same elements of the crime and same incident could be prosecuted twice as supposedly a different offence; once under State law and then under federal law). Thus it would appear that only by virtue of this legal defining of an offence as distinguishable based on the statute involved—with disregard to the elements of the offence being the same or analogous in both instances—is the Majority in Gamble able to achieve the Majority-preferred judicial result; namely dual prosecution under a ‘Dual Sovereignty Doctrine’ or theory. Such an approach can, on the respectful view here, reasonably be considered to be an instance of what Kmiec refers to as

208

Legal Information Institute Double Jeopardy https://www.law.cornell.edu/wex/double_ jeopardy. 209 Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus at p. 3 (United States Supreme Court). The Majority in Gamble cites Moore v. Illinois, 14 How. 13, 17 (1852): “The constitutional provision is not, that no person shall be subject, for the same act, to be twice put in jeopardy of life or limb; but for the same offence, the same violation of law, no person’s life or limb shall be twice put in jeopardy”.

2.6 Case 4: Gamble v United States No. 17-646. Argued December 6, 2018. . .

101

judicial legislation210 and results-oriented judicial reasoning serving here a conservative agenda. The Majority sought that result (holding double prosecution—once by the State then by the Federal government—constitutional under the Fifth Amendment) in large part in order that stare decisis and hence the societal status quo be maintained. The latter by reaffirming the USSC precedents that upheld the ‘dual sovereignty’ justification for successive prosecutions (at the State and federal level) for the same criminal conduct constituting the same or an analogous offence (as defined by the elements of the crime). The Majority in Gamble conceded as much in discussing the heavy weight it assigned to stare decisis in its approach to the Gamble case. The Majority in Gamble cites in support of its view Moore v Illinois 55 US 13 (1852) where the Majority also favored the view that offences are considered different at times based only on the fact that they are defined (albeit identically or analogously) by different statutes (State and Federal Criminal Codes). However the current author endorses rather the view of the Dissenting Justice in the Moore case in that the dissenting view in Moore, it is here contended, is applicable also in Gamble: It is contrary to the nature and genius of our government to punish an individual twice for the same offense. Where the jurisdiction is clearly vested in the federal government, and an adequate punishment has been provided by it for an offense, no state, it appears to me, can punish the same act (emphasis added).211

Justice Thomas recounts the criteria used by the United States Supreme Court (USSC), set out in previous cases, in deciding whether or not to overturn precedent; namely the “workability” of the standard set out in the case precedent, “the antiquity” of the precedent, “the reliance interests at stake, and of course whether the decision was well reasoned.”212 Justice Thomas then goes on to suggest that the USSC engages often in ‘results-oriented’ judging, to use Kmiec’s213 phrase in determining whether the precedent was “well-reasoned”: The influence of this last factor tends to ebb and flow with the Court’s desire to achieve a particular end, and the Court may cite additional, and hoc factors to reinforce the result it chooses.214

Judge Thomas states that the objective is, whenever contemplating overruling stare decisis, that the United States Supreme Court advance a “special reason over

210

Kmiec (2004), pp. 1442–1477. Moore v Illinois 55 US 13 (1852) (Dissenting Opinion Justice MacClean). The same guarantee against double prosecution for the same conduct/offence applying then in a case where the person is first tried and convicted at the state level. 212 Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 3) (United States Supreme Court). 213 Kmiec (2004), pp. 1442–1477. 214 Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 3) (United States Supreme Court). 211

102

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

and above the belief that a prior case was wrongly decided” to overrule a precedent.215 This in an effort to maintain the stability of the law whenever possible: The Court has advanced this view of stare decisis on the ground that “it promotes the evenhanded, predictable, and consistent development of legal principles” and “contributes to the actual and perceived integrity of the judicial process.216

It would seem a high and unacceptable price to pay in a democracy for the judiciary to knowingly uphold incorrect judicial reasoning in case precedent for any reason including an investment in stare decisis and refuse to overrule that precedent; or to intentionally disregard the importance of the reasonable potential of incorrect reasoning in the precedents relied upon; or to overrule precedent while downplaying or not acknowledging the incorrect reasoning in that precedent where such occurred and providing an additional reason for overruling precedent as the compelling, overriding one. The foregoing due to misplaced adherence to stare decisis in such cases. The commitment to a desired judicial result, especially where addressing contentious and pivotal societal issues as in Gamble, may, at times, increase the possibility of inappropriate overreliance on precedent (as Justice Thomas seems to allude to in his dissenting opinion in Gamble).217 Ultimately such an approach is, on the current author’s view, likely to backfire and actually serve to erode the “perceived integrity of the judicial process.”218 The latter when the sufficiently compelling case comes along to topple the façade of legal stability built on incorrect presumptions and premises relating to a particular issue previously considered ‘resolved’ by relying in certain contexts inappropriately on stare decisis and well established precedents (judicial interpretations) that may conflict with the Constitution. Thus this author is in accord with Justice Thomas that judicial precedent, just as legislative precedent, must fall when it demonstrably conflicts with the Constitution (is not reflective of a possible permissible interpretation of the Constitution).219 Where this author disagrees with Justice Thomas is in his faith that the text of the Constitution has objective meaning enough that the text itself, along with determinations about the original intent of the drafters, can always

215 Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 3) (United States Supreme Court). 216 Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 3) (United States Supreme Court) Justice Thomas has also opined in Gamble that deciding to invoke stare decisis after consideration of the factors of “the antiquity of the precedent, the reliance interests at stake, and. . .whether the decision was well reasoned” introduces arbitrary policy based discretion into the decision whether or not to rely on judicial precedent or overrule it. See Gamble, Justice Thomas Dissenting Opinion at p. 15. 217 Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 3) (United States Supreme Court). 218 See Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 3) (United States Supreme Court). 219 Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 10) (United States Supreme Court).

2.6 Case 4: Gamble v United States No. 17-646. Argued December 6, 2018. . .

103

be a guide to its proper interpretation220 apart, he seems to suggest, from a broad consideration of democratic values and implicated human rights matters to determine a range of permissible interpretations or the correct interpretation.221 Justice Thomas, as discussed, held that a Court may uphold a judicial precedent even if it would not have ruled in the same way had it been the Court of first impression. This as long as the judicial precedent reflects one of a range of permissible judicial outcomes relying on a permissible legal interpretation of the relevant law in the case.222 The current author holds, in contrast, that whether the interpretation in the judicial precedent falls into a permissible constitutional range cannot be determined based on the text alone but must consider also the human rights implicated. Thus in Gamble, for instance, this author would argue that the Fifth Amendment Clause at issue (the Fifth Amendment text prohibiting double jeopardy) must be interpreted, given the human rights implications, to say that a person cannot be twice prosecuted for the same or an analogous criminal offence defined in both State and Federal Criminal Codes (where the same or an analogous crime is so classified based on the commonality of all the elements of the crime under both statutes). This in that the prosecution must make out its case against the defendant and the defendant is entitled to some finality in the matter rather than being, for a prolonged time, unable to resume normal life even after serving a sentence given the potential for a dual prosecution. Further dual successive prosecutions may lead to excessive prison time compared to that allowed under either state or federal statutes considered separately.223 In certain circumstances this may amount to cruel and unusual punishment. This is not to mention the psychological and other difficulty for some victims of the crime, if any, to be left in a kind of limbo potentially for many additional years as the case plays out successively in the various levels of the US State and Federal courts (though in some instances the victims will be anxious to see two opportunities for conviction especially in violent crimes). On the view here then

220

Justice Thomas suggests that whether or not to abandon stare decisis should be determined based on “a clear, principled rule grounded in the meaning of the text.” Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 16) (United States Supreme Court) See also the Justice Thomas Dissent at p. 13 regarding the challenges of legal interpretation and textualism. 221 At the same time Justice Thomas in Gamble acknowledges that “The historical record presents knotty issues about the original meaning of the Fifth Amendment. . .” Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 13) (United States Supreme Court). 222 Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 12) (United States Supreme Court). 223 Gamble had been sentenced to 10 years in prison by the state of Alabama for being a felon in possession of a firearm and for drug possession where only one year of the sentence was suspended. “Apparently regarding Alabama’s sentence as too lenient, federal prosecutors pursued a parallel charge, possession of a firearm by a convicted felon, in violation of federal law. Gamble again pleaded guilty and received nearly three more years in prison.” Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Ginsburg Dissenting Opinion at p. 1) (United States Supreme Court).

104

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

judicial case precedent must be overruled when it does not comport with the constitutional mandate to protect human rights given the particular legal interpretation relied on in the precedent. In regards to human rights matters implicated in the Gamble case; Justice Ginsburg points out a significant flaw in the reasoning of the United States Supreme Court majority in the case. The Majority, as has been discussed, held that the state of Alabama and the Federal government in Gamble had separate interests that they wished to vindicate through each prosecuting Gamble successively. The Majority held that the Fifth Amendment did not preclude such successive prosecution where carried out by a State and then the federal government (or vice versa) based on offences defined in the same or in an analogous fashion in their respective statutes. Justice Ginsburg in the following challenged the notion that such dual sovereignty prosecutions are compatible with the Fifth Amendments double jeopardy clause: That is a peculiar way to look at the Double Jeopardy Clause, which by its terms safeguards the “person” and restrains the government. . . .. Looked at from the standpoint of the individual who is being prosecuted,” the liberty-denying potential of successive prosecutions, when Federal and State Governments prosecute in tandem, is the same as it is when either prosecutes twice. Bartkus, 359 U. S., at 155 (Black, J., dissenting)224

It appears then that the Majority in Gamble put aside fundamental human rights considerations regarding the individual and relied instead on United States Supreme Court judicial precedent to place Gamble also in the line of cases that denies the fundamental constitutional protection afforded by the Double Jeopardy Principle which prohibits successive prosecutions for the same offence.

2.7

Case 5: American Legion v. American Humanist Association, No. 17-1717 (Decided 20 June, 2019) (United States Supreme Court) (Separation of Church and State)

American Legion v Humanist Association225 concerns the issue of whether a 32 foot Latin cross (set up in 1918 in Prince George’s County Maryland to honor the 49 fallen World War I veterans from that county)226 violates the separation of church

224

Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Ginsburg Dissenting Opinion at p. 4.) (United States Supreme Court). Note that Justice Ginsburg also argues that the State (Alabama) and U.S. federal government are not two sovereigns as sovereignty resides with the people of the United States as a whole (Justice Ginsburg Dissenting Opinion at pp. 3–4). 225 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) (United States Supreme Court). 226 The cross bears a bronze plaque with the names of the 49 fallen (African American and Caucasian fallen soldiers) and has the American Legion emblem at its centre and the words

2.7 Case 5: American Legion v. American Humanist Association, No. 17-1717. . .

105

and State doctrine embodied in the U.S. Constitution under the First Amendment’s Establishment clause.227 The Bladensburg cross (also referred to as the “Peace Cross”) has been situated in a memorial park for many years as the site of many public events in Prince George’s County honouring veterans. The cross now sits on public land and is maintained with public funds. In 2014 the American Humanist Association (AHA) and some others filed suit in district court against the Maryland National Capital Park and Planning Commission which had acquired the cross and was responsible for its upkeep. The AHA alleged that the fact that the cross was on public land and maintained with public funds violated their First Amendment rights under the Establishment clause. The plaintiffs contended that the cross was a symbol of Christianity thus creating a situation where the government was purportedly (through its expenditure of public funds on the maintenance of the cross and allowing the cross to be on public land) expressing a preference or endorsement of a certain religion (Christianity) over others and over no religion. The AHA suggested that to remedy the alleged violation of the Establishment Clause the federal court should either order the demolition of the cross, its relocation or the removal of the arms of the cross (the latter so that it would no longer be cross shaped and hence, according to the AHA, no longer a religious symbol). The American Legion moved to defend the cross in court. The Maryland National Capital Park and Planning Commission succeeded at the District Court level in that the Court found that “(1) the cross has a secular purpose, (2) it neither advances nor inhibits religion, and (3) it does not have a primary effect of endorsing religion.”228 The secular purpose included commemorating WWI veterans229 and the public was aware of that hence the cross, in the view of the District Court, did not advance or inhibit religion and the Commission’s upkeep of the cross with public funds that were not excessive was not a marker of significant government involvement with religion.230 The Fourth Circuit Appellate Court majority reversed holding that the Bladensburg cross was unconstitutional and remanded the case for a remedy. The Fourth Circuit appellate court majority concurred that the Bladensburg cross had a secular purpose “Valor,” “Endurance,” “Courage,” and “Devotion” emblazoned at the base. Justice Alito writing for the majority of the USSC in the case found there was no evidence that Jewish names had been left off the monument plaque and noted that one of the American Legion leaders that worked to have the monument constructed was Jewish. 227 See Legal Information Institute: The Establishment Clause “The First Amendment’s Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.” https://www.law.cornell.edu/wex/establishment_clause. 228 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) OYEZ (United States Supreme Court) https://www.oyez.org/cases/2018/17-1717. 229 The 32 foot cross stands on a traffic island at a heavily used three way intersection and is said to help ensure traffic safety. The cross is illuminated at night. 230 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 17–18 (United States Supreme Court).

106

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

but held that the fact that it was on public land and maintained with public funds could reasonably be perceived by the public as government endorsement of a particular religion or excessive entanglement of government with a particular religion (Christianity): “The Appellate Court emphasized the cross’s “inherent religious meaning” as the preeminent symbol of Christianity.”231 The Fourth Circuit appellate court also found that (a) the very large size of the cross and Christian symbolism of a cross overshadowed the secular elements the Bladensburg cross conveyed and that (b) this was even more so the case as the cross’s “location” and “condition” made it difficult for “passers-by” to “read” or otherwise “examine” the plaque and the American Legion emblem on the monument.232 In addition The Fourth Circuit rejected as “too simplistic” an argument defending the Cross’s constitutionality on the basis of its 90-year history, suggesting that “[p]erhaps the longer a violation persists, the greater the affront to those offended233

The United States Supreme Court (USSC) reversed the appellate decision and remanded the case back to the lower court in a 7 to 2 decision. Justice Alito articulated the opinion for the USSC majority. The majority held that a symbol that originated as religious or with some other meaning can take on new secular meanings over time. The Majority gave the example, among others, of the symbol of the Red Cross—a red cross on a white background: The International Committee of the Red Cross (ICRC) selected that symbol in 1863 because it was thought to call to mind the flag of Switzerland, a country widely known for its neutrality. The Swiss flag consists of a white cross on a red background. . .The Red Cross copied its design with the colors inverted. Thus, the ICRC selected this symbol for an essentially secular reason, and the current secular message of the symbol is shown by its use today in nations with only tiny Christian populations.234

Justice Alito also noted that (a) small donors from the community had also given to help finance the Peace Cross in Prince George’s County Maryland in the first instance and that for that reason and others (b) removing or altering the cross would be offensive to the community and convey a message of hostility to religion that is antithetical to the spirit and intent of the Establishment Clause since: The Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim.235

231

American Legion v. American Humanist Association No. 17-1717 Justice Alito Opinion at para 18 (United States Supreme Court). 232 American Legion v. American Humanist Association No. 17-1717 Justice Alito Opinion at para 1(United States Supreme Court). 233 American Legion v. American Humanist Association No. 17-1717 Justice Alito Opinion at para 18 (United States Supreme Court). 234 American Legion v. American Humanist Association No. 17-1717 Justice Alito Opinion at para 10 (United States Supreme Court). 235 American Legion v. American Humanist Association No. 17-1717 Justice Alito Opinion at para 10 (United States Supreme Court).

(Decided 20 June, 2019) (Decided 20 June, 2019) (Decided 20 June, 2019) (Decided 20 June, 2019) (Decided 20 June, 2019)

2.7 Case 5: American Legion v. American Humanist Association, No. 17-1717. . .

107

This reference to the “Religion Clauses of the Constitution” seems to undermine the majority argument that the Prince George’s County Peace Cross conveys a primarily secular message. The plaque on the cross reads: Dedicated to the heroes of Prince George’s County, Maryland who lost their lives in the Great War for the liberty of the world236

Justice Alito, on behalf of the United States Supreme Court majority in American Legion v. American Humanist Association, referred to case precedents and the fact that a host of laws and practices with a certain extent of religious connotation have been found not to violate the U.S. Constitution’s Establishment clause i.e. prayers opening legislative meetings etc. Justice Alito held that the test being applied for unconstitutionality in the American Legion v. American Humanist Association case was inappropriate (that test being “whether a challenged government action (1) has a secular purpose; (2) has a “principal or primary effect” that “neither advances nor inhibits religion”; and (3) does not foster “an excessive government entanglement with religion. . .”237 Justice Alito held that for a monument that has stood for a lengthy period it may be difficult to determine the original purpose or the purpose may have multiplied or evolved over time238 such that the monument may convey more than one message. Further the monument may become part of the community’s identity even if the community does not focus on the possible religious element of the symbolism and removing it may be perceived as an offence to the community and not at all a neutral act in defence of the Establishment Clause.239 It would appear that the United States Supreme Court (USSC) majority relied heavily on case precedent and societal American traditions and accepted majority norms in American Legion v. American Humanist Association to find constitutional various specific “ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations”240 The Court also relied on historical references to religion by the framers of the Constitution241 At the same time the Court

236

American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 14 (United States Supreme Court). 237 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 17 (United States Supreme Court). 238 Justice Alito gives the example of the Statute of Liberty (a gift from France) which at first was to symbolize the bond of friendship between France and the United States but has come to symbolize a welcoming of immigrants to America American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 26 (United States Supreme Court). 239 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 23–29 (United States Supreme Court). 240 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 23 (United States Supreme Court). 241 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 33 (United States Supreme Court): The First Congress of the United States began its sessions with prayer “This practice was designed to solemnize congressional meetings, unifying those in attendance as they pursued a common goal of good governance.”

108

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

highlighted the secular meaning of these symbols. The Bladensburg cross (also referred to as the Peace Cross), the USSC majority held, symbolized the sacrifice of the WWI American fallen as it recalled the rows upon rows of white cross markers on the graves of American soldiers who perished in WWI and who were buried abroad. (However note that Jewish soldiers of WW1 who fell were buried abroad under the Star of David not the cross).242 It can also be said that the Peace Cross has come for many in society (the majority perhaps) to symbolize the sacrifice of all armed service members who have fallen in the fight for liberty and democratic values in all wars.243 That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials.244

Setting aside for a moment whether the decision in American Legion v. American Humanist Association245 was correct, the approach taken by the United States Supreme Court majority in the case poses, on the view here, a major difficulty to assessing the constitutionality of laws and practices. That difficulty arises, from the current author’s perspective, in that any potential violation of the U.S. Constitution ruled permissible based on American tradition and/or history leaves open the door for unacceptable judicial activism using that strategy to the disadvantage of minorities and the vulnerable. Respectfully; the current author contends that such decisions are generally not based on legal analysis but rather upon general societal norms and majority societal beliefs or norms. While the Peace Cross is a very difficult case given the powerful secular meanings the Peace Cross has acquired over the years, similar decisions have been rendered by the USSC majority where the religious aspect of the symbol at issue is the overwhelming one and yet the monument being on federal land was ruled constitutional. For instance in Van Orden v Perry 545 US 677 the issue was whether a monument displaying the Ten Commandments-an indisputably Christian symbol—was constitutional notwithstanding the fact that it was situated on the Texas State Capital grounds. The majority of the USSC in Van Orden v Perry246 ruled that the monument (six feet high and three feet wide) was

242

American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Ginsburg Dissenting Opinion (concurrence by Justice Sotomayor) at para 78 (United States Supreme Court). 243 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Ginsburg Dissenting Opinion (concurrence by Justice Sotomayor) at para 65 (United States Supreme Court). 244 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 35 (United States Supreme Court). 245 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) (United States Supreme Court). 246 Van Orden v Perry 545 US 677(United States Supreme Court).

2.7 Case 5: American Legion v. American Humanist Association, No. 17-1717. . .

109

constitutional and did not violated the Establishment Clause of the First Amendment though the symbol was situated on federal grounds. The monument also displayed An eagle grasping the American flag, an eye inside of a pyramid, and two small tablets with what appears to be an ancient script are carved above the text of the Ten Commandments. Below the text are two Stars of David and the superimposed Greek letters Chi and Rho, which represent Christ. The bottom of the monument bears the inscription “PRESENTED TO THE PEOPLE AND YOUTH OF TEXAS BY THE FRATERNAL ORDER OF EAGLES OF TEXAS 1961 (emphasis in the original).247

The State of Texas accepted the monument from the “Eagles” “a national social, civic, and patriotic organization” (Referring to the Van Orden v Perry matter)248 The Majority in the Van Orden case, on the view here, framed a question for the Court that was not apropos the constitutionality issue at hand. The Court held that it had an obligation “neither [to] abdicate our responsibility to maintain a division between church and State nor evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage.”249 It is the Court in such cases that defines what would constitute ‘hostility to religion’ and it is not at all clear why simply moving the monument at issue to non-public land would constitute ‘hostility to religion’ as opposed to an affirmation of inclusivity and neutrality to religion as well as implementation of the Establishment Clause. Clearly, in both the Van Orden v Perry250 and the American Legion v. American Humanist Association251 cases, some minority religious and/or non-religious groups regarded the contentious monuments as religious symbols rather than primarily as symbols of American patriotism or as monuments sending some other secular message. Justice Rehnquist, in Van Orden v Perry, states the following reflecting the rationale in the US Supreme Court’s holding such monuments on public land as constitutional: As we explained in Lynch v. Donnelly, 465 U. S. 668 (1984): “There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.” Id., at 674.252

One could argue that given this long religious tradition the U.S. State and federal governments should be extra cautious (through laws and practices) to (a) not appear to endorse or to be entangled as government with one religion or religious tradition (Christian or Judeo-Christian) over that of another or over no religion and (b) should

247

Van Orden v Perry 545 US 677 syllabus, Justice Rehnquist on behalf of the majority (United States Supreme Court). 248 Van Orden v Perry 545 US 677 syllabus, Justice Rehnquist on behalf of the majority (United States Supreme Court). 249 Van Orden v Perry 545 US 677 syllabus, Justice Rehnquist on behalf of the Majority (United States Supreme Court). 250 Van Orden v Perry 545 US 677 (United States Supreme Court). 251 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) (United States Supreme Court). 252 Van Orden v Perry 545 US 677 syllabus, Justice Rehnquist on behalf of the Majority (United States Supreme Court).

110

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

recognize that neutrality in the religious sphere is not tantamount to hostility to religion. Justice Breyer, concurring with the majority of the United States Supreme Court in American Legion v. American Humanist Association, opined that he did not take the majority view in the case to be setting out a “history or tradition test” that would permit any newly constructed religious memorial on public land.253 On the view of the current author, however, the approach taken in American Legion v. American Humanist Association runs just such a risk of violating the US Constitution’s Establishment Clause. This given the subjective weighting on the secular versus non-secular balance scale by the justices of a singular meaning or multiple symbolic messages conveyed by any particular such contentious monument situated on public land. That, in significant part, subjective weighting by the judiciary of multiple symbolic meanings (some religious; some secular) of a contentious monument on public land could be viewed as judicial activism (in the form of resultsoriented judging and perhaps also as a departure from accepted legal interpretive methodology). (Interestingly in American Legion v. American Humanist Association two liberal justices (so generally regarded); Justice Breyer and Justice Kagan joined in various aspects of the Majority opinion). Such judicial activism may come to override, for no apparent legally supportable reason in specific court cases, the constitutional rights of the offended minority who maintain that their individual First Amendment rights have been violated by having the disputed monument on public land. The Dissenting Justices in American Legion v. American Humanist Association in fact allude to the reliance on tradition and history by the Majority in the latter’s deciding of the case and the inadequacy, in the USSC minority’s view, of the test applied by the Majority: Today the Court erodes that neutrality commitment, diminishing precedent designed to preserve individual liberty and civic harmony in favor of a “presumption of constitutionality for longstanding monuments, symbols, and practices.254

The Dissenting Justices in American Legion v. American Humanist Association held that using a sectarian symbol (the cross) as a war memorial “does not transform it into a secular symbol.”255 Just as a Star of David is not suitable to honor Christians who died serving their country, so a cross is not suitable to honor those of other faiths who died defending their nation. . . Soldiers

253

American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Breyer concurring with the majority (United States Supreme Court). 254 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Dissenting Opinion (Justice Ginsburg, joined by Justice Sotomayor) at para 67 (United States Supreme Court). 255 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Dissenting Opinion (Justice Ginsburg, joined by Justice Sotomayor) at para 69 (United States Supreme Court). Note for instance that “At the dedication ceremony, the keynote speaker analogized the sacrifice of the honored soldiers to that of Jesus Christ, calling the Peace Cross “symbolic of Calvary,” . . .where Jesus was crucified.” (See American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Dissenting Opinion (Justice Ginsburg, joined by Justice Sotomayor) at para 77) (United States Supreme Court).

2.7 Case 5: American Legion v. American Humanist Association, No. 17-1717. . .

111

of all faiths “are united by their love of country, but they are not united by the cross.” Brief for Jewish War Veterans of the United States of America, Inc., as Amicus Curiae 3 (Brief for Amicus Jewish War Veterans).256

The Dissenting Justices expressed the concern that religious minorities and those without religion were being sent by indirect means (through the placement of a Christian symbol on public land) the coercive message that in order to have good standing in the political community one must conform to endorsement of the majority religion (Christianity).257 The United States Supreme Court’s decisions on such matters as contentious monuments on public lands are, at times, highly inconsistent and would appear to use different analytical tests and/or weightings of factors. For instance in Stone versus Graham 449 US 39 (1980) the majority of the United States Supreme Court, in a five to four split, found that a Kentucky law requiring the posting of a copy of the Ten Commandments (purchased with private funds) in all school classrooms violated the Establishment Clause as it served no secular purpose. The Kentucky legislature mandated that each Ten Commandments display contain at the bottom in small print the words: “[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.”258 The Majority of the Court noted that the Ten Commandments address not only secular matters such as stealing but also non-secular such as worship of God and observance of the Sabbath.259 Justice Alito for the majority of the United States Supreme Court (USSC) in American Legion v. American Humanist Association stated that “This Court fiercely protects the individual rights secured by the U. S. Constitution. See, e. g. . . .Wisconsin v. Yoder, 406 U. S. 205 (1972).”260 This author respectfully begs to differ on the point that individuals in all segments of American society purportedly have their rights under the Constitution “fiercely protected” by the USSC in all cases. Let us consider next then, for example, Wisconsin v Yoder which is one of the cases Justice Alito cited, as mentioned, in American Legion v. American Humanist Association261 as an exemplar of the USSC defending individual religious freedoms.

256

American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Dissenting Opinion (Justice Ginsburg, joined by Justice Sotomayor) at para 69 (United States Supreme Court). 257 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Dissenting Opinion (Justice Ginsburg, joined by Justice Sotomayor) at para 70–72 (United States Supreme Court). 258 Stone versus Graham 449 US 39 (1980) (United States Supreme Court) syllabus https://supreme. justia.com/cases/federal/us/449/39/#tab-opinion-1953776. 259 Stone versus Graham 449 US 39 (1980) (United States Supreme Court) syllabus https://supreme. justia.com/cases/federal/us/449/39/#tab-opinion-1953776. 260 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) at para 46 (Justice Kavanaugh Concurring Opinion with the Majority) (United States Supreme Court). 261 American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) (Justice Alito majority opinion) (United States Supreme Court).

112

2.8

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

Case 6: Wisconsin v. Yoder, 406 U. S. 205 (1972) (United States Supreme Court) (A Judicial Dissent Asserting Children’s Autonomous Educational and Religious Rights)

In Yoder two adult representative members of the Old Order Amish religion and the Conservative Amish Mennonite Church respectively were found to have violated Wisconsin law mandating school attendance for all their children to age 16.262 Members of these religious sects in Wisconsin declined to have their children attend public school after the children completed grade eight as was the case here where the children of the defendants were 14 and 15 and had ended their public school attendance after grade eight. Note that the children were not being home schooled based on the accepted state curriculum or something analogous or superior to it. Rather, after completing grade eight, the children instead received “informal vocational training”263 delivered by the Amish in their community which education was geared to preparing the children for life in the Amish community. The parents appealed their convictions on First Amendment freedom of religion grounds but lost their constitutional case at trial and at the Circuit Court of Appeals. However the Wisconsin Supreme Court reversed and vacated the parents’ convictions and thereafter Wisconsin appealed to the United States Supreme Court. The United States Supreme Court (USSC) found that: The evidence . . .showed that respondents sincerely believed that high school attendance was contrary to the Amish religion and way of life, and that they would endanger their own salvation and that of their children by complying with the law.264

The United States Supreme Court (USSC) in Yoder265 ruled that Wisconsin law requiring school attendance to age 16 unconstitutionally (and hence unjustifiably) violated the parents’ religious rights under the Free Exercise of religion clause of the First Amendment which also applies to the States under the Fourteenth Amendment to the U.S. Constitution. The USSC in Yoder266 thus held that an exemption from the compulsory school attendance to age 16 Wisconsin law was constitutional as applied to the Amish. The majority held that the Amish had satisfied the Court (the USSC) that the informal vocational training that Amish children received within the Amish community after they ended their formal education at age 14 to prepare them for life within that religious community was sufficient: “they have carried the difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of the overall interest that the State relies

The defendants were each fined five dollars and sought to quash their convictions on constitutional First Amendment grounds. 263 Wisconsin v Yoder 406 U.S. 205 (1972) (United States Supreme Court) https://supreme.justia. com/cases/federal/us/406/205/#tab-opinion-1949690. 264 Wisconsin v Yoder 406 U.S. 205 (1972) syllabus (United States Supreme Court) https://supreme. justia.com/cases/federal/us/406/205/#tab-opinion-1949690. 265 Wisconsin v Yoder 406 U.S. 205 (1972) (United States Supreme Court). 266 Wisconsin v Yoder 406 U.S. 205 (1972) (United States Supreme Court). 262

2.8 Case 6: Wisconsin v. Yoder, 406 U. S. 205 (1972) (United States Supreme. . .

113

on in support of its program of compulsory high school education.”267 The majority of the USSC in Yoder thus completely sidestepped the issue of whether realistically a grade eight formal education undermined the children’s liberty rights; that is their freedom of choice to choose their path later in life. This in that for most it closed off the possibility of leaving the Amish community for a reasonably self-sufficient successful life outside that religious community. In addition the children’s interest and right to freedom of religion was, in all practical terms, thus overridden by the USSC majority’s emphasis on the parental interest to ‘guide’ their children in religious matters. It is, on the view of the current author, a reflection of ‘judicial activism’ involving departure from accepted legal interpretation268 (here of the US Constitution First Amendment’s Freedom of Religion Clause) to hold that a sincere religious belief of one party to a dispute269 is sufficient grounds to disregard for consideration and proper weighting the autonomous constitutional rights of another category of persons significantly and directly implicated in the dispute even if the latter is not a formal party to the litigation (here the Amish children whose formal education ends at age 14). In Yoder, on the respectful view of the current author, not considered is the Amish children’s independent constitutional right to freedom of religion separate from that of the parents which is also implicated in the case. The USSC appears in Yoder to endorse setting the stage for the likely long-term imposition on the children of Amish values which may be fine values but may not reflect, in every case, the lifestyle and religious preferences of an individual Amish child had he or she not been compelled to end formal schooling and exposure to the outside world after grade eight for at least the next two pivotal years of adolescent development. Indeed the adult defendants through their experts on the Amish culture and religion argued to the Court that the period from fourteen to age 16 was a critical one in which the child “must acquire Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the adult role of an Amish farmer270 or housewife. They must learn to enjoy physical labor. . . at this time in life, the Amish child must also grow in his faith and his relationship to the Amish community if he is to be prepared to accept the heavy obligations imposed by adult baptism.”271 The experts on the Amish religion and culture proffered to the Court that it was essential for the survival of the Amish community that their young people be segregated at high school age from the outside community. This as secular high schools could not, in the view of the experts and the Amish community, prepare them for Amish life and,

267

Wisconsin v Yoder 406 U.S. 205 (1972) syllabus (United States Supreme Court). Kmiec (2004), pp. 1442–1477. 269 Here the religious belief of adults in the Amish communities involved that state mandated compulsory public school to age 16 offended their religious beliefs and requirements. 270 Some Amish have over the years branched into areas other than farming such as selling Amish handicrafts and baked goods The Amish, Encyclopedia Britannica https://www.britannica.com/ topic/Amish. 271 Wisconsin v Yoder 406 U.S. 205 (1972) p. 212 (United States Supreme Court). 268

114

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

furthermore, the environment at such high schools could be hostile to Amish values and expose their children to contemporary values that conflict with those of the Amish.272 On the current author’s view, however, one must query whether setting up barriers to the children at this critical period in their development to having access to an academic education that goes beyond rudimentary reading and math skills and includes religious studies (by ending their formal education at the intermediate level and not allowing high school attendance where the State has approved the curriculum) constitutes a justifiable breach of the children’s liberty rights guaranteed under the U.S. Constitution. The USSC in Yoder held, by implication, that such a breach of the children’s liberty rights in the hopes of increasing the potential for longevity of the Amish traditional community was justified. The same query as to constitutionality could be posed in regards to any restrictive practice in any religion that infringed the liberty rights of children old enough to express their views and their potential wish to associate with persons and access information outside their cloistered religious and/or cultural community. From this author’s perspective; the constitutional issue properly framed then, along with others to be considered, becomes one of the competing constitutional liberty and religious rights of parents versus those of their adolescent children. Also at issue are the conflicting interests of Wisconsin (regarding what the State considered at the time of the case the adequate basic education of its people) versus the Amish community’s compelling interest in ending their children’s formal education after the children completed grade eight in public school. It is not then at all a question of the inherent value of any particular religion or religious community or the importance of its survival. Note that the Amish do not proselytize273 and hence the community relies on those already in the community to stay and have families. One can well understand then concerns typical of the Amish community and certain other communal religious orders that the outside world will be a draw for their young people and the need, from their point of view, therefore to lead a segregated life insofar as possible. On the view here then, the Court, as well as the State of Wisconsin, owed a fiduciary duty to the vulnerable children embroiled in the case in regards to safeguarding their independent constitutional rights. It is not at all clear that the First Amendment religious rights of the parents extended to overriding the educational and religious freedom rights of the children as the United States Supreme Court (USSC) appeared to hold, in effect, in Yoder. In Yoder274 the USSC essentially undercut what the State of Wisconsin held as its parens patriae jurisdiction and duty to protect what the State viewed as the best educational interests of all the children of the State of Wisconsin to have a mandated formal very basic education to at least age

272

Wisconsin v Yoder 406 U.S. 205 (1972) pp. 211–212 (United States Supreme Court). The Amish (BBC online, 2009-06-23) https://www.bbc.co.uk/religion/religions/christianity/sub divisions/amish_1.shtml. 274 Wisconsin v. Yoder, 406 U. S. 205 (1972) (United States Supreme Court). 273

2.8 Case 6: Wisconsin v. Yoder, 406 U. S. 205 (1972) (United States Supreme. . .

115

16275 (which for most would mean at least a grade ten high school education). Amish children who complete grade eight (usually at age 14) in the State of Wisconsin, and nationally in the U.S. post Yoder, do not—if their Amish parents object—have the ability, in practice, to exercise their constitutionally grounded liberty rights in pursuing, straight after grade eight, a high school education to at least grade ten or age 16. The Amish do have a practice of allowing young people at age 16 to decide whether they wish to remain in the Amish community or not and permit them to leave the community and experience the world outside the community while they are in this decision phase (usually lasting a year though it can last longer). This period is termed Rumspringa. As the Amish children typically have such limited formal education (to grade eight) and by age 16 would be 2 years behind in their high school education; they generally face significant challenges surviving and integrating into society outside of the Amish community and adapting to such a different lifestyle.276 In some Amish communities and families there is also the risk of being shunned if the child chooses to leave the community. The majority of the children choose to return to the Amish community after Rumspringa to live the Amish religious lifestyle in that community. This may be for a variety of individual reasons including, but not limited to, difficulty adjusting to the world outside the Amish community (due in part to their limited grade eight formal education and the challenge it poses in securing a job; their lack of broader social experience etc.) and notwithstanding, in some cases, their fervent desire to integrate into the outside society.277 The Court in Yoder was presented with evidence, however, that in terms of living within the segregated Amish community the Amish are very self-sufficient individually and collectively. It is a communal lifestyle and members of the community will assist each other as the need arises. Note that the Amish do not vote or hold electoral office.278 It could be argued then that by creating certain barriers to the children leaving the Amish community (these including limiting the child’s formal education to just grade eight before Rumspringa at age 16; the child is likely to return to the community after Rumpsinga (or never to

275

The Amish in the United States have their own schools that focus on a curriculum of reading writing mathematics and religion. The teachers are generally young women from the community who have no training as teachers. The students generally od work on the farm before and after school See The Amish (BBC online, 2009-06-23) https://www.bbc.co.uk/religion/religions/chris tianity/subdivisions/amish_1.shtml. 276 Such challenges for young people attempting to leave the Amish community have been documented for instance in series such as Breaking Amish. In certain instances young people who have left the community have been shunned by their families and the community but such is not by any means always the case. 277 The Amish allow their children at age 16 to live outside the community if they wish and decide if they wish to become permanent members of the Amish Community. Ninety percent return to the Amish community with the intent at least to become permanent members and live their lives fully as Amish in a communal setting See The Amish (BBC online, 2009-06-23) https://www.bbc.co.uk/ religion/religions/christianity/subdivisions/amish_1.shtml. 278 The Amish (BBC online, 2009-06-23) https://www.bbc.co.uk/religion/religions/christianity/sub divisions/amish_1.shtml.

116

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

leave in the first instance). This then means that for the majority of these children when they become of age they will yet never exercise their constitutional right to the vote or run for electoral office. Indirectly then there is arguably interference by the adults in the Amish community with the children’s likelihood of ever enjoying the exercise of the aforementioned democratic constitutional rights when age eligible to do so. This even where a particular individual, if left to exercise his or her preference and not beholden to the Amish traditions, may have chosen to vote and/or exercised his or her constitutionally protected right to run for electoral office. Since the United States Supreme Court ruling in Yoder279; children’s independent right to freedom of religion has been widely recognized in international law such as the Convention on the Rights of the Child under Article 14: Article 14 1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others (emphasis added).280

Though the United States has signed the Convention on the Rights of the Child that State Party has yet to ratify the Convention and Yoder is still considered ‘good law’ (binding United States Supreme Court precedent in the U.S.) significantly restricting, in effect, children’s exercise of their educational and independent religious freedoms in that country as discussed above. Education is widely viewed internationally as a fundamental human right. Restrictions in formal academic learning have profound adverse implications for a child’s life opportunities in employment, physical health and in other respects such as mental well-being and risk of early marriage and pregnancy.281 The United States Supreme Court Majority in Yoder however held that: The State’s claim that it is empowered, as parens patriae, to extend the benefit of secondary education to children regardless of the wishes of their parents cannot be sustained against a free exercise claim of the nature revealed by this record, for the Amish have introduced convincing evidence that accommodating their religious objections by forgoing one or two additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.282

279

Wisconsin v. Yoder, 406 U. S. 205 (1972) (United States Supreme Court). Convention on the Rights of the Child entered into force 7 September, 1990 https://www. humanium.org/en/convention/text/. 281 UNESCO (The right to education global initiative) 2019 The right to education https://www. right-to-education.org/sites/right-to-education.org/files/resource-attachments/RTE%3AUNESCO_ Right%20to%20education%20handbook_2019_En.pdf. 282 Wisconsin v Yoder 406 U.S. 205 (1972) syllabus (United States Supreme Court). 280

2.8 Case 6: Wisconsin v. Yoder, 406 U. S. 205 (1972) (United States Supreme. . .

117

As noted here previously, however, such self-sufficiency referenced by the USSC Majority in Yoder was a self-sufficiency within the context of Amish communal living and not in terms of being able to integrate easily, if that was the individual’s preference, into society outside of the Amish community. In the context of the latter the child would be hampered in large part due to having completed only a highly limited basic education. Nor does there appear to have been evidence presented (as far as this author has been able to discern) on the physical and mental effects of an Amish child, for instance at age 16 or older, attempting and struggling to adjust to life outside the Amish community and to integrate into the larger community. The children’s human rights enshrined in the US Constitution were, on the analysis here, essentially not entered into the calculus by the United States Supreme Court (USSC) majority in deciding the Yoder case. Rather the Majority focused on balancing the State’s interest in universal education against the parents’ interest in religious education of their children without considering the independent interests of the children themselves.283 Note that the Convention on the Rights of the Child (which went into effect after Yoder by some 18 years), while it recognizes the parents’ right to guide their children in religious matters, also requires (a) the parents to respect the child’s evolving capacity in that regard and (b) the fact that children also have an inherent independent right to religious freedom and freedom of conscience. It is ironic that the Amish themselves as a community; on the one hand essentially recognize the child’s basic autonomous human right to freedom of religion by allowing the child to choose at age 16, after some time living outside the Amish community if that is their choice, whether or not they wish to be baptized into the Amish community and live the Amish religious communal lifestyle. However, at the same time, as discussed previously, by ending the children’s formal education at grade eight (to be substituted with informal vocational training suited to life in the Amish community for at least the next 2 years and a continuation for those 2 years of the sheltered Amish life); the community in practice significantly restricts the children’s potential competence and inclination to exercise their educational and lifestyle/religious preferences if they conflict with Amish tradition. Justice Douglas, in Yoder284 wrote a partial dissent.285 That dissent addressed the failure of the majority of the United States Supreme Court (USSC) and the courts

283

Wisconsin v Yoder 406 U.S. 205 (1972) syllabus(United States Supreme Court). Wisconsin v Yoder 406 U.S. 205 (1972) (United States Supreme Court). 285 One child had testified that she was opposed to high school education on religious grounds but the children of the other two defendants (defendants convicted of infringing the law requiring they send their children to public school until age 16) had not expressed their views to the Court and their views had not been canvassed by the Court. Thus Justice Douglas concurred with the Majority in the one case on exempting the parent from prosecution for not sending his child to school until age 16 but not in the case of the other two parents whose children had not testified as to their views regarding high school education. He held further that: “The views of the two children in question were not canvassed by the Wisconsin courts. The matter should be explicitly reserved so that new hearings can be held on remand of the case. “See Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court). 284

118

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

below in Yoder to consider the legal interests and the educational and lifestyle/ religious preferences of each individual Amish child of the parents who brought the case. This the Majority in Yoder did by framing the case, Justice Douglas explained, as only concerning on the one hand the parents’ interests and rights (the parents who were challenging their conviction under a State law obligating them to send their children to public school until the children reached age 16) and on the other; the State interests (which interests conflicted with those of the Amish parents in respect of the children’s education). Justice Douglas, however, pointed out the fact that the parents themselves at trial had argued that they were attempting to vindicate both their own and their children’s constitutional right to freedom of religion. The children’s interests were then, in Justice Douglas’ view, a factor before the court notwithstanding the fact that the majority of the Court had, without evidence, simply assumed, he argued, that the children’s and parents’ interests were identical for all the Yoder defendants and their children.286 Justice Douglas argued that each of the children of the parents in Yoder should have been consulted as to their personal schooling preferences and that the individual children’s views should have been part of the evidence considered in the case287: If the parents in this case are allowed a religious exemption, the inevitable effect is to impose the parents’ notions of religious duty upon their children. Where the child is mature enough to express potentially conflicting desires, it would be an invasion of the child’s rights to permit such an imposition without canvassing his views . . .It is an imposition resulting from this very litigation. As the child has no other effective forum, it is in this litigation that his rights should be considered. And, if an Amish child desires to attend high school, and is mature enough to have that desire respected, the State may well be able to override the parents’ religiously motivated objections (emphasis added)288

In many ways the Douglas Dissenting Opinion reflects, in the above quote, the approach taken to consideration of children’s autonomous right to freedom of religion articulated in Article 14 of the Convention on the Rights of the Child (CRC) so many years later. Article 14 of the CRC articulates, it will be recalled, the need to respect the child’s evolving capacities on the issues of religion and conscience while Article 12 of the CRC concerns children’s right to participate in decisions that significantly impact them. Note also that Justice Douglas in effect critiqued the majority of the United States Supreme Court in Yoder for a 286

Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court). 287 Justice Douglas held that the children in Yoder aged fourteen and fifteen were mature enough to express their actual opinions to the Court regarding the desirability or lack thereof, in their view, of their attending public high school. (This likely was the case for most Amish children of age 14 and older given what developmental psychology reveals of adolescent cognitive abilities). Problematic, it would seem, is the likelihood that the children, having grown up in a sheltered Amish community all their lives, and knowing the strict position of their parents and the Amish religious community on the issue, may not typically have felt free to express their honest views to the Court on the education issue and their genuine hopes and dreams for their future were opportunities fully available to them in each case to communicate this to the Court. 288 Wisconsin v Yoder 406 U.S. 205 (1972) (United States Supreme Court).

2.8 Case 6: Wisconsin v. Yoder, 406 U. S. 205 (1972) (United States Supreme. . .

119

conservative judicial activism characterized in the case by (a) a reluctance to consider the children’s independent educational and religious rights, legal interests and their preferences separate from those of the parents; (b) a reluctance to consider the constitutional right of the children to be regarded, in practice, by the Court as a ‘person’ under the Bill of Rights and the U.S. Constitution possessed of an autonomous constitutional right to religious freedom; (c) a reluctance to canvass each of the children’s views and give those views due weight considering the age and maturity of the particular child involved (here ages fourteen and fifteen) and (d) the Majority’s ignoring of United States Supreme Court precedent where the independent constitutional rights of school-aged children have been repeatedly affirmed.289 As to the latter point Justice Douglas comments as follows: Recent cases. . . have clearly held that the children themselves have constitutionally protectible interests. These children are “persons” within the meaning of the Bill of Rights. We have so held over and over again. . .. . . Students in school as well as out of school are ‘persons’ under our Constitution. . . On this important and vital matter of education, I think the children should be entitled to be heard. While the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views. He may want to be a pianist or an astronaut or an oceanographer. To do so he will have to break from the Amish tradition290

Justice Douglas found that the United States Supreme Court (USSC) majority’s emphasis in Yoder291 on the law-abiding characteristics of the Amish Orders involved in the case was “irrelevant” to the constitutional matter at hand; namely the constitutionally-protected freedom of religion for the parties affected; the adolescent children and the parents. As alluded to earlier in this author’s discussion of Yoder; the USSC Majority in the case appeared to be concerned also with the longevity of the Amish community per se as the core issue before the Court. Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society the Amish have demonstrated the sincerity of their religious beliefs. . .the vital role that belief and daily conduct play in the continuing survival of Old Order Amish communities, and the hazards presented by the State’s enforcement of a statute generally valid as to others.292

289

Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court). 290 Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court). 291 Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court). 292 Wisconsin v Yoder 406 U.S. 205 (1972) Majority Opinion Syllabus (United States Supreme Court). Note that Justice White’s opinion, consistent with the Majority, focused on the survival of the Amish community to the exclusion of consideration of the children’s autonomous constitutional liberty and freedom of religion interests. Justice White states in this regard: “I join the opinion and judgment of the Court because I cannot say that the State’s interest in requiring two more years of compulsory education in the ninth and tenth grades outweighs the importance of the concededly sincere Amish religious practice to the survival of that sect.” Wisconsin v Yoder Justice White Opinion (concurrence by Justices Brennan and Stewart) (United States Supreme Court).

120

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

However the issue of the longevity of the Amish community was considered by the United States Supreme Court (USSC) Majority in Yoder, it appears, completely out of the context of the opposing interests that might be at play where the particular child’s view of education and his or her educational preferences might have conflicted with the parent’s view of education and the parents’ educational preferences for the child. The parent’s position then being grounded on their conception of Amish religious duty and the perceived threats to the Amish religious lifestyle and values the parents believed public high school posed. It appears that the USSC Majority in Yoder focused on the intended objective/result (namely setting in place a mechanism—in the form of a truncated formal education for Amish children—that would help to ensure the longevity of the Amish community) as the guide to reasoning and analysis in the case leading to a disregard for the children’s independent views. The United States Supreme Court Majority in Yoder hence, it is here contended, engaged in ‘results-oriented judicial activism’. The latter rather than the Court engaging in the proper balancing of the constitutional rights at issue-those of the parents and those of the child; with the State ostensibly representing the children in its parens patriae capacity. This is not at all a commentary on the desirability of the longevity of the Amish community (a culture that has many admirable features but like all communities-religious and non-religious-has its share of difficulties and stressors).293 Rather it is to point out what, on the respectful view here, were the core issues in the case and what was, in view of those issues, the proper focus and analytical legal strategy. Justice Douglas perhaps can be viewed as engaging, in his reasoning in Yoder, in ‘liberal judicial activism.’ This by espousing children’s autonomous fundamental human rights (i.e. the right to freedom of religion and the right to education) much ahead of the time when such views had some international currency. Justice Douglas challenged the notion that the Amish parent’s preference regarding a “truncated” education should take precedence. He argued instead that the child’s autonomous views should be canvassed and given considerable weight if not prioritized; especially where they conflicted with those of the parent (assuming that the child is mature and competent enough to give his thoughtful informed views and can and will communicate them honestly to the Court). This as it is the child who would have to bear the consequences of such a rudimentary basic education as the Amish endorsed insofar as the children likely would be “harnessed to the Amish way of life” due to their limited education even in those cases where the child would have preferred an alternate lifestyle: . . .It is the student’s judgment, not his parents’, that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny. If he is harnessed to the Amish way of life by those in authority over him

293

Justice Douglas, referencing evidence presented in the Court below and a Dissenting Opinion in the Court below, pointed out that the Amish community was often unrealistically portrayed as leading a completely “idyllic agrarian” life when in fact it was not immune to some extent to serious social problems anymore than are other communities Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court).

2.8 Case 6: Wisconsin v. Yoder, 406 U. S. 205 (1972) (United States Supreme. . .

121

and if his education is truncated, his entire life may be stunted and deformed. The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we honor today (emphasis added).294

One could justifiably say, this author would contend, that Justice Douglas was focused on protecting the human dignity of the most vulnerable and powerless in this situation which, in this case, were the children. At the same time; he may have opined in Yoder in too harsh terms that a child trained informally in the Amish ways after grade eight could have the consequence that the child’s “entire life may be stunted and deformed.”295 That is a conclusion to be reached or not reached by the individual child based on his or her individual perception, values and lifestyle preference. However certainly it can reasonably and objectively be said that the child’s opportunity realistically to choose his own lifestyle and path in life at age 16 after Rumspringa (Amish or non-Amish) is, as a result of his or her extremely limited formal education (in public school with trained teachers), largely illusionary. This imposition on the child of a truncated education in the case where he or she does not wish to acquiesce to an Amish lifestyle arguably is contrary to the promise of the U.S. Declaration of Independence. This since the U.S. Declaration of Independence recognizes as unalienable the right of all the people of the U.S. to “liberty” and “the pursuit of happiness”296; the liberty right also being incorporated in Amendment Fourteen in the US Constitution. The child deprived of formal education beyond grade eight, where this is held constitutional as in Yoder (which today is still considered by the US courts to be ‘good law’), and endorsed by the State (by way of a religious exemption for the parent to comply with the State requirements of mandatory schooling to a certain point beyond grade eight) is arguably, for the reasons discussed, on the respectful view here, a violation of the children’s fundamental human rights. More specifically it constitutes, on the respectful view here, a State deprivation of the Amish children’s constitutional liberty right without due process and of their constitutional right to freedom of religion. The Yoder case raises the issue also of whether a sincerely held religious belief is permissibly imposed even if it transgresses another’s constitutional rights.297 It appears from Yoder that the answer, misguided on the view here, is ‘yes’; at least in certain instances when it is children of a particular religious community whose liberty and independent freedom of religion rights arguably are infringed.

294

Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court). 295 Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court). 296 U.S. Declaration of Independence http://www.ushistory.org/declaration/document/. 297 Justice Douglas in his Partial Dissent in Yoder expressed concern that the Amish children in the case had no way to vindicate their rights but through the courts in the litigation at hand but that the Court majority was improperly exclusively focused on parental religious liberty rights in the case and the parent’s strength of religious conviction as overriding factors Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court).

122

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

References Literature Blahuta JP (2017) Liability for harms caused in utero: new technologies, new problems. Int J Hum Rights 21(6):758–770 Copelon R, Zampas C, Brusie E, Devore J (2005) Human rights begin at birth: international law and the claim of fetal rights. Reprod Health Matters 13(26):120–129 Garza v Hargan (2018) En Banc D.C. Circuit upholds order requiring HHS to allow an undocumented minor to have an abortion (recent cases). Harv Law Rev 131:1812–1819 Greene J (2010) The so-called right to privacy. UC Davis Law Rev 43:715–747. https://lawreview. law.ucdavis.edu/issues/43/3/liberty/43-3_Greene.pdf. Accessed 27 Aug 2019 Grover S (2017a) Maternal tort immunity, the Born Alive rule and the disabled child’s right to legal capacity: reconsidering The Supreme Court of Canada Judgment in Dobson v Dobson. Int J Hum Rights 21(6):708–742. Special issue: The notion of maternal immunity in tort for pre-natal harms causing permanent disability for the born alive child: Human Rights Controversies Grover S (2017b) Human dignity as the foundation for the democratic rule of law: J.C. Hernandez v J. Mesa Jr. 582 U. S. ____ (2017) as an Illustrative Case. In: Ziccardi Capaldo G (ed) Global community: yearbook of international law and jurisprudence. Oxford University Press, Oxford Huq AZ (2012) When was judicial self-restraint? Calif Law Rev 100:579–605 Kmiec KD (2004) The origin and current meanings of judicial activism. Calif Law Rev 92 (5):1442–1477 Moore I (2019) Indignity in unwanted pregnancy: denial of abortion as cruel, inhuman and degrading treatment. Int J Hum Rights 23(6):1010–1027 Savell K (2006) Is the born alive rule outdated and indefensible? Sydney Law Rev 28:625–664

Materials American Legion v. American Humanist Association (U.S. Supreme Court, No. 17-1717 Decided 20 June, 2019) OYEZ Accessed 30 June, 2019 https://www.oyez.org/cases/2018/17-1717 Associated Press posted 24 May, 2019 Legal challenge to Alabama’s controversial abortion law filed. https://www.cbc.ca/news/world/us-lawsuit-alabama-abortion-1.5148326 Accessed 19 August, 2019 BBC News Chief Justice Roberts rebukes Trump’s ‘Obama judge’ gibe, 22 November, 2018. https://www.bbc.com/news/world-us-canada-46294734 Accessed 13 June, 2019 Brown, Taylor Kate The US Supreme Court: Who are the Justices? BBC (30 November, 2018). https://www.bbc.com/news/magazine-33103973 Accessed 17 August, 2019 Convention on the Rights of the Child entered into force 7 September, 1990. https://www. humanium.org/en/convention/text/ Accessed 2 July, 1990 Legal Information Institute (Cornell Law School): Considerations Governing Review on Writ of Certiorari (Rule 10) https://www.law.cornell.edu/rules/supct/rule_10 Accessed 20 June, 2019a Legal Information Institute (Cornell Law School): Double Jeopardy https://www.law.cornell.edu/ wex/double_jeopardy Accessed 23 June, 2019b Legal Information Institute (Cornell Law School): Due Process Clause, Section one of the Fourteen Amendment https://www.law.cornell.edu/constitution/amendmentxiv Accessed 17 June, 2019c Legal Information Institute (Cornell Law School): Equal Protection Clause Fourteen Amendment Section 1 https://www.law.cornell.edu/constitution/amendmentxiv Accessed 21 August, 2019d Legal Information Institute (Cornell Law School): Establishment Clause https://www.law.cornell. edu/wex/establishment_clause Accessed 30 June, 2019e

References

123

Legal Information Institute (Cornell Law School) The Fifth Amendment https://www.law.cornell. edu/wex/due_process August, 2019f Lexico, Oxford Dictionary online: ‘Gerrymandering’: “To manipulate the boundaries of (an electoral constituency) so as to favour one party or class” and thus achieve certain electoral result. https://www.lexico.com/en/definition/gerrymander Accessed 28 June, 2019 Planned Parenthood (2019) Roe v Wade: The constitutional right to access safe legal abortions https://www.plannedparenthoodaction.org/issues/abortion/roe-v-wade Accessed 28 August, 2019 Ruth Bader Ginsburg Associate Justice of the United States Supreme Court Remarks for the Second Circuit Judicial Conference June 7, 2019 https://www.supremecourt.gov/publicinfo/speeches/ RBG%202019%20Second%20Circuit%20Judicial%20Conference%20Remarks%20June% 207%202019.pdf Accessed 13 June, 2019 Saad, Lydia Alabama Bill at Odds with Public Consensus on the Issue Gallup Blog 15 May, 2019. https://news.gallup.com/opinion/gallup/257627/alabama-bill-odds-public-consensus-abortion. aspx Accessed 20 June, 2019 Scheindlin, Shira A If Roe v Wade is overturned we should worry about the rule of law The Guardian (International Edition) 21 May, 2019 https://www.theguardian.com/commentisfree/ 2019/may/21/trump-abortion-roe-v-wade-supreme-court-judges Accessed 15 June, 2019 The Amish (BBC online, 2009-06-23) https://www.bbc.co.uk/religion/religions/christianity/subdi visions/amish_1.shtml Accessed 2 July, 2019 The Amish, Encyclopedia Britannica https://www.britannica.com/topic/Amish Accessed 2 July, 2019 Turkewitz, J (New York Times) Corporations have rights. Why shouldn’t rivers? 26 September, 2017. https://www.nytimes.com/2017/09/26/us/does-the-colorado-river-have-rights-a-lawsuitseeks-to-declare-it-a-person.html Accessed 21 August, 2019 UN ‘very concerned’ about abortion access after recent Alabama, Missouri laws Thomson Reuters (Posted: May 21, 2019). https://www.cbc.ca/news/world/un-concern-us-abortion-access-1. 5143136 UNESCO (The right to education global initiative) 2019 The right to education https://www.rightto-education.org/sites/right-to-education.org/files/resource-attachments/RTE%3AUNESCO_ Right%20to%20education%20handbook_2019_En.pdf Accessed 2 July, 2019 U.S. Declaration of Independence. http://www.ushistory.org/declaration/document/ Accessed 5 July, 2019 Willingham AJ The Supreme Court has overturned more than 200 of its own decisions. Here’s what it could mean for Roe v. Wade CNN Politics (29 May, 2019) https://www.cnn.com/2019/05/29/ politics/supreme-court-cases-overturned-history-constitution-trnd/index.html Accessed 20 June, 2019

Cases American Legion v. American Humanist Association No. 17-1717 Decided 20 June, 2019 (United States Supreme Court) Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) (United States Supreme Court) Currier v. Virginia, 585 U. S. ___ (2018) (slip op., at 16) (United States Supreme Court) Dept. of Commerce et al. v State of New York et al. No. 18-966. Argued April 23, 2019—Decided June 27, 2019 (United States Supreme Court). https://www.supremecourt.gov/opinions/18pdf/ 18-966_bq7c.pdf Accessed 22 August, 2019 Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (United States Supreme Court)

124

2 The Supreme Court of the United States and Judicial Activism in the Trump Era

Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. 587 U. S. ____ 2019 (Decided 28 May, 2019a) (United States Supreme Court) Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari https://www.scotusblog.com/casefiles/cases/box-v-planned-parenthood-of-indiana-and-kentucky-inc/ Accessed 30 August, 2019 Lawrence v Texas, 539 US 558 (2003) (United States Supreme Court) Lynch v. Donnelly, 465 U. S. 668 (1984) (United States Supreme Court) Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) Planned Parenthood of Indiana and Kentucky, Inc., et al. v Kristina Box, Commissioner, Indiana Department of Health, et al. No. 17-3163 United States Court of Appeals, Seventh Circuit, 888 F.3d 300 (7th Cir. 2018) Decided 19 April, 2018 Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992) (United States Supreme Court) Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc., on behalf of itself, its physicians, and its patients, and Colleen P. McNicholas, D.O., M.S.C.I., F.A.C.O.G, on behalf of herself and her patients (Plaintiffs) v. Michael L. Parson, in his official capacity as Governor of the State of Missouri, et. al. (Defendants) Case No. 2:19-cv-4155-HFS (US District Court of the Western District of Missouri, Central Division) (Memorandum and Order, August 28, 2019) Rochelle Garza, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated, Plaintiff, v. ERIC D. HARGAN, et al., Defendants. Civil Action No. 17-cv02122 (TSC) Decided 30 March, 2018 (US District Court for the District of Columbia) (Judge T Chutkan) https://prawfsblawg.blogs.com/files/ddc-abortion.pdf Accessed 21 August, 2019 Roe v Wade 410 U.S. 113 (1973) (United States Supreme Court) Rucho et al. v Common Cause et al. No. 18-422. Argued March 26, 2019—Decided June 27, 2019b (United States Supreme Court) Stone versus Graham 449 US 39 (1980) (United States Supreme Court). https://supreme.justia.com/ cases/federal/us/449/39/#tab-opinion-1953776 Accessed 1 July, 2019 Van Orden v Perry 545 US 677 (United States Supreme Court) Virginia House of Delegates v. Bethune-Hill 587 US_2019c (United States Supreme Court) Wisconsin v Yoder 406 U.S. 205 (1972) (United States Supreme Court). https://supreme.justia.com/ cases/federal/us/406/205/#tab-opinion-1949690 Accessed 1 July, 2019

Chapter 3

Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

3.1

Introduction

There have long been widely differing views in the Canadian legal community as to whether judicial activism characterizes judicial decision-making in Canada and, if it does, then to what extent and in what form.1 Judicial activism, as mentioned in the opening chapter in this work, has come in some circles to be viewed as a thing to be avoided at all costs, and as undermining the integrity of the judicial system. At the same time certain constitutional legal experts have expressed concern that “the debate on judicial activism in Canada has begun to produce excessive judicial deference that allows legislatures and officials to act without scrutiny by the judiciary concerning the effects of state action on vulnerable minorities.”2 Judicial activism as perceived manifest in Canadian judicial decision-making has been conceptualized by many, notwithstanding the specifics of the definition employed, to characteristically involve: the tendency for judges to make, as opposed to simply interpret, the law; the willingness of courts to issue rulings reversing or altering the legislative enactments of Parliament and the provincial legislatures; and the inability of legislatures to effectively respond to such rulings, thereby giving judges the last word over matters involving rights and freedoms.3

As we have seen; it is often difficult if not impossible to distinguish between “interpreting the law” and “making it”. In fact arguably the phrase that ‘judges must interpret the law rather than make it’ is largely an empty one. This in that assigning meaning to legal text (or any text for that matter) is a ‘constructive process’ that depends, for instance, on the weight assigned to context and purpose of the legislation and one’s background knowledge as well as conscious and unconscious

1

Anand (2006), p. 87. Anand (2006), p. 87. 3 Anand (2006), p. 87. 2

© Springer Nature Switzerland AG 2020 S. C. Grover, Judicial Activism and the Democratic Rule of Law, https://doi.org/10.1007/978-3-030-35085-7_3

125

126

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

assumptions and a host of other factors. The weight, if any, given to each of these may vary depending on the degree of emphasis placed on the literal text itself apart from anything else (extreme textualism being one form of what some might term ‘conservative judicial activism’). However, no judicial decision-maker operates in a legal theoretical and practical vacuum and hence, on the respectful view here, no judicial decision-maker is guided in any mystical Ouija board fashion entirely, or even perhaps primarily, by the literal legal text itself as to what is its proper legal interpretation. Furthermore, it is here argued that the law in a democracy must be interpreted consistent with respect for human dignity and the protection and safeguarding of the constitutional rights of vulnerable groups as well as of the societal majority. Hence there are critical constraints on the interpretation of the law and ultimately on the possibility for and on the form of so-called ‘judicial activism’ in the particular case. On the view of the current author only ‘principled judicial activism’ consistent with upholding domestic and international human rights norms is thus permissible in a democracy. Thus this author must in large part respectfully disagree with the view of Christopher Manfredi when he states: If judicial review evolves such that political power in its judicial guise is limited only by a constitution whose meaning the courts alone define, then judicial power is no longer itself constrained by constitutional limits.4

Rather the current author would put the matter in terms of the risk of judicial activism, more often arguably ‘conservative judicial activism’, when it is directed to maintaining the societal status quo in some respect if and when that status quo is unjust and inequitable. A significant undermining of democratic values occurs, on this author’s respectful view then, when the courts deny the affront to human dignity (often of a vulnerable group) arising from human rights violations by the State. This often due to the courts not considering or not considering adequately the perspective of the victims5 or accepting that there is such a significant affront to human dignity but the courts considering it purportedly justified on policy and/or practical grounds.6 It is essential then that the High Court in a democracy be open to 4

Manfredi (2001), p. 22. Cited in Anand (2006), p. 90. Such arguably was the case in Eaton v Brant County Board of Education where a disabled 12 year old was denied by the Supreme Court of Canada a right to an integrated regular classroom placement (arguably denying her equal benefit of the Charter right to non-discrimination and her Charter right to reasonably unfettered free association at school). Yet the Supreme Court of Canada held there was no affront to her dignity which arose from the stipulation; that it was constitutional for the school board to require that the child be placed in a segregated classroom with other ‘disabled’ children. The Court held that the segregated placement was protective of equality in her case and not unconstitutionally discriminatory. Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 (Supreme Court of Canada). 6 For instance Justice Binnie in Canadian Foundation, in his partial dissent, accepted that s. 43 of the Criminal Code of Canada (affording defendants designated as ‘persons in authority’—parents, delegates of the parents and teachers—a justification defense to assault on a child) was an affront to children’s dignity rendering them ‘second-class citizens’ (to use his term). Yet he found this was, in his view, justified based on the alleged “legitimate needs of our collective social existence” regarding family life. The latter purportedly required extending protection to parents from criminal 5

3.1 Introduction

127

reconsidering its own precedents whenever its precedent case law, no matter how long-standing and landmark, serves to undercut the dignity of a segment of the population.7 Where such overturning of horizontal precedent at the High Court level serves to reinforce and better protect human dignity it is, on the view here, a quintessential expression of democratic and principled judicial activism. Where the reverse occurs and the overturning or potential overturning of the judicial case precedent serves or would serve instead to degrade the dignity and core human rights of a segment of the population there is in fact a genuine basis for concern. All this is not to suggest that particular cases do not remain highly problematic where the dignity question is quite complex (i.e. in cases where those affected, such as members of the so-called disabled community, do not necessarily all share the same view on an issue such as on the issue of assisted suicide of the terminally ill or of the disabled experiencing extreme, effectively untreatable suffering; in cases where those affected involve both ‘persons’ and currently in North American law ‘nonpersons’ as in the abortion context etc.). The overturning of High Court landmark precedent to ensure proper respect for the dignity of a previously disadvantaged or oppressed group then is, on the view here, one significant judicial expression of the notion of the Constitution (i.e. the Canadian Charter) as a ‘living instrument.’ Some have argued that to conceive of the Charter as a ‘living instrument’ at times runs the risk of judicial analysis that creates ‘new rights’ not incorporated in the Charter which is constitutionally unacceptable rather than the Court “applying existing rights to new facts” which is constitutionally permissible.8 However the argument of the current author is that Charter guarantees that protect core human rights and enhance the dignity of everyone in Canada, if not explicitly articulated, are yet implicit and inherent in the Charter9 and hence the courts recognizing these is not an exercise in ‘creating new rights’.10 Thus this author must respectfully disagree with Anand when he states

prosecution for the application of purported reasonable force to their children as a ‘corrective measure’ including corporal punishment See Canadian Foundation for Children, Youth and the Law v Attorney General (Canada) 2004 1 SCC 76 at para 75 (Supreme Court of Canada). That case is discussed in detail later in this chapter. 7 In the previous chapter in Gamble we considered the overreliance on stare decisis resulting in upholding by the United States Supreme Court of judgements that allowed for ‘dual prosecutions’ arguably in violation of the constitutional protection against ‘Double Jeopardy’ Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (United States Supreme Court, 2019). 8 Morton and Knopff (2000) Cited in Anand (2006), p. 91. 9 See for instance Vriend v Alberta [1998] 1 S.C.R. 493 (Supreme Court of Canada, SCC) where the Supreme Court of Canada held that the exclusion in the province of Alberta’s human rights legislation of sexual orientation as a ground of prohibited discrimination was unconstitutional. That ground of protection from discrimination was held by the SCC to be incorporated in the s. 15 Canadian Charter non-discrimination guarantee (though it is not expressly articulated in the Charter) such that the provincial legislation had to be in compliance. 10 As one of the founders of the US Constitution, Madison, put it “judicial decisions cannot “alter” the Constitution, only “expound” it” Cited in Justice Thomas’ Dissent in Gamble v the United States

128

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

“the demarcation between the enforcement of existing rights and the creation of new rights is sometimes difficult to discern (emphasis added)”11 since implied constitutional rights and State positive obligations are as legitimate as are those expressly articulated. While the Supreme Court of Canada appears to have accepted the implications of the Charter as a ‘living instrument’ with respect to certain rights (such as, for instance, the right to equal benefit of human rights legislation for persons with a minority sexual orientation)12; it has not done so in respect of the notion of other rights such as, for instance, the right to basic subsistence income13 for everyone in Canada. The latter as a Charter right arguably inherent in the existing s. 7 Charter right to ‘security of the person and in some fact scenarios also the s. 12 Charter right to be protected from cruel treatment’.14 The reluctance of the High Court in enforcing the subsistence economic right as a Charter right without restriction, this author argues, is not due to it allegedly being a ‘new right’ for it is quite reasonably considered inherent in the s. 7 and s. 12 Charter rights as discussed. Rather, on the view here, the problem is undue deference to the legislature’s political and policy decision/choice to continue to inadequately protect fully the rights of the destitute and very poor who are powerless and generally are not voters. In this chapter we consider cases where the issue of ‘making’ versus ‘interpreting’ the law surfaces recast in the controversy over whether (a) certain limits on particular Charter rights are constitutional and inherent reasonable limits of that right or (b) unconstitutional imposed limits denying an already vulnerable group access to core democratic and human rights. The cases we consider next are selected Supreme Court of Canada constitutional cases (Canadian Charter cases). This in part since, as Anand notes, “judicial activism under the Charter garners the most attention and concern” given that Charter rulings blocking legislative objectives are more difficult to overcome than are contrary court rulings on the common law. That is Charter rulings are more difficult to satisfy with legislative changes that are but cosmetic such that the contested legislation still largely accomplishes some or all of the legislature’s original objectives and where the revised legislation is still not in full compliance with the judicial directive as to the Charter imperative.15

No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at p. 13 (United States Supreme Court). 11 Anand (2006), p. 91. 12 Vriend v Alberta [1998] 1 S.C.R. 49 (Supreme Court of Canada). 13 Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84 (Supreme Court of Canada). 14 Cruel treatment may often be a correlate of the failure to guarantee a subsistence income. The failure to provide subsistence income often leads to homelessness which may involve also the most extreme form where the individual tries to survive on the street. An individual living on the street is at high risk to become the victim of street violence, has the risk of dying in Canada’s frigid winter months etc. all of which, on the analysis here, amounts to cruel treatment as that term is understood in international human rights law. 15 Anand (2006), p. 90.

3.2 Case 1: Gillian Frank and Jamie Duong v Attorney General of Canada . . .

3.2

129

Case 1: Gillian Frank and Jamie Duong v Attorney General of Canada [Frank v Canada] 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada) (On the Denial of the Vote in Federal Elections to Canadian Citizen Long-Term Non-Residents)

Frank v Canada16 concerns the denial of the right of Canadian citizens to vote in Canadian federal elections when they have resided abroad for 5 or more consecutive years (persons termed “long-term non-residents”) “unless and until they resume residence in Canada” (as per the stipulations of the Canadian Elections Act).17 The two long-term non-resident complainants in Frank v Canada challenged the relevant sections of the Canadian Elections Act as unconstitutional arguing that ss. 11(d), 222 of the Act and other related provisions infringed their right to vote as entrenched at s. 3 of the Canadian Charter of Rights and Freedoms.18 The complainants sought a declaration from the Court that the voting rights restriction on long-term non-resident Canadian citizens was unconstitutional and violated their s. 3 Charter right as Canadian citizens to the vote.19 The complainants succeeded at trial but that victory was overruled at the Appeals Court as the Appellate Court found the residence-based limit on s. 3 of the Charter a “justified” limitation (under s. 1 of the Charter) of the right to vote. The Supreme Court of Canada (SCC) Majority in Frank v Canada overturned the Appeals Court judgement holding instead that the contested provisions of the Canada Elections Act20 at issue in this case were unconstitutional and declared them “of no force and effect.”21 The Supreme Court of Canada (SCC) Majority in Frank v Canada22 held that voting is a “fundamental political right” and “a core tenet of Canadian democracy” and hence any limitation of that right must be heavily scrutinized and meet a high

16

Gillian Frank and Jamie Duong v Attorney General of Canada [Indexed as Frank v Canada] 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada). 17 Gillian Frank and Jamie Duong v Attorney General of Canada [Indexed as Frank v Canada] 2019 SCC 1 Decided 11 January, 2019 summary. Note there were certain categories of persons exempted from this restriction such as Canadian public service employees and their families (see Frank v Canada at para 111) (Supreme Court of Canada). 18 Canadian Charter of Rights and Freedoms (1982) Section 3: “Democratic Rights: Democratic rights of citizens: Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” https:// laws-lois.justice.gc.ca/eng/const/page-15.html. 19 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 summary p. 4. 20 Canada Elections Act, S.C. 2000, c. 9, ss. 3, 6, 8, 11, 127, 191(d), 220, 222, 223(1)(e) and (f), 226 (f), Part 11. 21 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 summary (Supreme Court of Canada). 22 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada).

130

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

justification standard.23 The SCC Majority maintained that s. 1 of the Canadian Charter involved a “justification analysis” which they would conduct to determine whether the voting restrictions on long-term non-resident Canadian citizens (those who had lived outside Canada for 5 or more consecutive years) were constitutional.24 Note that s. 1 of the Canadian Charter reads as follows: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”25 The interpretation by the SCC Majority versus the Dissenting Justices concerning the Canadian Charter s. 1 provision will be central to the later discussion here regarding judicial activism in Frank v Canada.26 However first it is necessary to give the overview of the SCC Majority and dissenting views in the case. The Attorney General of Canada’s counsel (AGC) had argued in the case that the residency-based voting restriction imposed on long-term non-resident Canadian citizens served to ensure fairness in the electoral process for Canadian citizens residing in Canada.27 The Supreme Court of Canada (SCC) Majority held that this articulated objective of the government was indeed pressing and substantial and specific enough as an objective and hence met the first prong of the s. 1 Canadian Charter test for a reasonable limitation on a Charter right. The question then turned to the issue of whether the voting restriction was a proportional tool to ensure fairness in the electoral process to Canadian citizens residing in Canada (the stated objective) and whether the measure was rationally linked to the objective. The Majority of the SCC in Frank v Canada28 found, however, that there was no rational connection between restricting the voting rights of long-term non-resident Canadian citizens and better ensuring fairness in the electoral process for Canadian citizens residing in Canada. There was, in the SCC Majority’s view, no identified demonstrable harm that the government could articulate that would be eliminated by restricting for any duration the voting rights of long-term non-resident Canadian citizens.29 In addition; the Majority found that restricting for any duration the voting rights of long-term non-resident Canadian citizens was not minimally impairing of the rights of long-term non-residents and that the 5 year limit, in the Majority’s view, was arbitrary and over-inclusive. These factors then, according to the SCC Majority in the case, also violated the proportionality prong of the test for a reasonable and 23

Frank v Canada 2019 SCC 1 Decided 11 January, 2019, summary, Majority opinion at p. 5 (Supreme Court of Canada). 24 See for example Frank v Canada 2019 SCC 1 Decided 11 January, 2019, summary, Majority opinion at p. 6 (Supreme Court of Canada). 25 Canadian Charter of Rights and Freedoms (1982). 26 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada). 27 Frank v Canada 2019 SCC 1 Decided 11 January, 2019, Majority opinion at p. 6 (Supreme Court of Canada). 28 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada). 29 Frank v Canada 2019 SCC 1 Decided 11 January, 2019, summary, Majority opinion at pp. 6–7 (Supreme Court of Canada).

3.2 Case 1: Gillian Frank and Jamie Duong v Attorney General of Canada . . .

131

proportional limit on a Charter right (here the right to vote) under s. 1 of the Canadian Charter. The SCC Majority commented as follows on the Crown’s deeper rationale underlying the legislated residency-based voting restriction on long-term non-resident Canadian citizens: While it seeks to bar people from voting who lack a sufficient connection to Canada, no correlation has been shown between, on the one hand, how long a Canadian citizen has lived abroad and, on the other hand, the extent of his or her subjective commitment to Canada.30

The Supreme Court of Canada (SCC) Majority in this case found also that longterm non-resident Canadian citizens are affected by Canadian legislation in multiple ways implying a similarity in this regard to the comparator group; namely resident Canadian citizens affected by Canadian legislation: Non-resident citizens do live with the consequences of Canadian legislation: they are subject to Canadian legislation during visits home; Canadian laws affect the resident families of non-resident Canadians; some Canadian laws have extraterritorial application; government policies can have global consequences; and Parliament can alter the extent to which Canadian electoral legislation applies to non-resident citizens, which would make the constitutional right to vote subject to shifting policy choices.31

In sum the Supreme Court of Canada (SCC) Majority concluded that “The benefits of the impugned legislation are illusory and speculative. It is unclear how the fairness of the electoral system is enhanced when long-term non-resident citizens are denied the right to vote.”32 At the same time; the SCC Majority found that the harm created by the Canada Electoral Act’s imposition of the residency-based voting restriction on long-term non-resident Canadian citizens was significant: “The disenfranchisement of long-term non-resident citizens not only denies them a fundamental democratic right, but also comes at the expense of their self-worth and their dignity (emphasis added).”33 Thus in Frank v Canada34 the Supreme Court of Canada Majority rejected residency as a reasonable inherent limit on the s. 3 right to vote (s. 3 here referring to s. 3 of the Canadian Charter of Rights and Freedoms) and found that the residency restriction on voting for long-term non-resident Canadian Citizens35 was an “unjustified infringement of s. 3 of the Charter (emphasis

30 Frank v Canada 2019 SCC 1 Decided 11 January, 2019, summary, Majority opinion at p. 7 (Supreme Court of Canada). 31 Frank v Canada 2019 SCC 1 Decided 11 January, 2019, summary, Majority opinion at pp. 7–8 (Supreme Court of Canada). 32 Frank v Canada 2019 SCC 1 Decided 11 January, 2019, summary, Majority opinion at p. 8 (Supreme Court of Canada). 33 Frank v Canada 2019 SCC 1 Decided 11 January, 2019, summary, Majority opinion at p. 8 (Supreme Court of Canada). 34 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada). 35 The residency-based limitation on the vote applied to Canadian citizens who had lived outside Canada for 5 or more consecutive years.

132

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

added).”36 The Dissenting Justices held, in contrast, that the residency-based restriction on long-term non-resident Canadian citizens’ right to vote was not at all equivalent to “disenfranchisement” but rather a reasonable limit inherent to the Charter voting right which right is in fact not an absolute right.37 The two Supreme Court of Canada (SCC) Dissenting Justices in Frank v Canada38 distinguished between reasonable and demonstrably justified “limits” on Canadian Charter rights and freedoms versus “infringements” (violations) of those rights and freedoms. The Dissenting Justices maintained that the residency requirement for the vote (not having lived outside of Canada for 5 or more consecutive years without resuming Canadian residency) is in fact a reasonable, demonstrably justified “limit” on the right to vote that met, in their view, the criteria set out in s. 1 of the Charter for a constitutional restriction (limit) on the Canadian Charter right of voting. That is they viewed the residency requirement as a limiting measure properly and rationally connected to a legitimate government objective and proportional in its effects with minimal impairment of the Charter right in the circumstances while still allowing the measure to achieve the desired result. For that reason the Dissenting Justices held that the limit on the voting rights of long-term non-resident Canadian citizens is not an infringement of s. 3 of the Charter contrary to the position and analysis of the SCC Majority in the case. In sum then the Dissenting Justices held that the residency-based restriction or limitation does not violate nor “infringe” the s. 3 Charter voting right guarantee but rather imposes a constitutional limit thereon that can be considered inherent to the right itself. The Dissenting Justices held that the Supreme Court of Canada Majority had erred in its s. 1 Charter analysis in Frank v Canada stating “The fundamental point of disagreement with the Majority lies in the proper judicial approach to the limitations analysis under s. 1 of the Charter.”39 This error arose, the Dissenting Justices contended, by the Majority’s considering at the outset that the residencybased voting restriction at issue was, in the Majority’s view, an “infringement” and

36 Frank v Canada 2019 SCC 1 Decided 11 January, 2019, (Concurrence with the Majority opinion, Justice Rowe) summary at p. 8 (Supreme Court of Canada). 37 The Dissenting Justices commented that the counsel for the Attorney-General had misspoken at times in argument and referred to the residency-based restriction as an “infringement” of s. 3 of the Charter re voting rights when she in fact meant to refer to a “limit” on a right: “We note that, before us, counsel for the Attorney General also perpetuated this analytical error by conceding an “infringement”. Were the Attorney General to concede an infringement, there would be no point to hearing this appeal: she would be conceding the case. As we have already noted, however, we read the Attorney General’s concession as being that the restriction on long-term non-resident voting constitutes a limit on the s. 3 Charter right to vote, leaving as the only issue whether this limit is demonstrably justified in a free and democratic society.” See Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at p. 84, para 123 (Supreme Court of Canada). 38 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) (Supreme Court of Canada). 39 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) summary at p. 11 (Supreme Court of Canada).

3.2 Case 1: Gillian Frank and Jamie Duong v Attorney General of Canada . . .

133

then seeking to determine if that purported Charter violation (“infringement”) was a reasonable and demonstrably justifiable one. The Dissenting Justices, relying on the actual text of s. 1 of the Canadian Charter highlighted that “The text of s. 1 speaks not of reasonable and demonstrably justifiable infringements, but of reasonable and demonstrably justifiable limits (emphasis added).”40 In other words; the Dissenting Justices held that a reasonable and demonstrably justifiable “limit” on voting rights is not an “infringement” of the Charter guarantee of a right to the vote since it is constitutional. Put another way; the Dissenting Justices found essentially that the Majority had started with a foregone conclusion. This by setting their task as one of determining the constitutionality or non-constitutionality of the purported violation or “infringement” of the s. 3 Charter right to the vote; an infringement the Majority held had occurred in this case arising from the denial of the vote to long-term non-resident Canadian citizens until they resumed Canadian residency. This was the Majority’s analytical approach though, according to the Dissenting Justices, an “infringement” or “breach” of a Charter right or freedom is by definition unjustified and unconstitutional and hence there can be no legitimate State-justified “infringements” of the Canadian Charter. The Supreme Court of Canada (SCC) Majority analytical frame in Frank v Canada41 incorporating a foregone conclusion is arguably evident in the quote below. In the quote below: (a) the Majority first holds that the Canadian citizen long-term non-residents’ Charter right to the vote had been “breached” (violated or infringed) by the impugned legislation and then that (b) the “breach” could not be found reasonable or demonstrably justifiable under s. 1 of the Charter as it did not meet the s. 1 test: . . .the limit on the voting rights of long-term non-resident citizens breaches s. 3 of the Charter. This limit cannot be justified under s. 1. In particular, the Attorney General of Canada has failed to show that limiting the voting rights of non-resident citizens is minimally impairing (emphasis added).42

Let us consider this fine but critical point further. The Supreme Court of Canada (SCC) Dissenting Justices in Frank v Canada took the position that no right or freedom is absolute and that: A reasonable limit is inherent in the right itself, shaping the right’s outer boundaries. A right is infringed only where the right, as reasonably limited, is breached; as such, an “infringement” is a limit that is not justified. A conceptually sensible and textually faithful account of the s. 1 analysis thus properly focuses on whether a limit on a Charter right is justified. The

40

Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) summary at p. 11 (Supreme Court of Canada). 41 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada). 42 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Summary p. 5. (Supreme Court of Canada) Note that the Dissenting Justices in Frank v Canada held that the residency limit on voting was a minimal impairment. The criteria for minimal impairment of a Charter right as set out in Sauvé, it should be recalled, is not the least intrusive measure but rather the least intrusive equally effective measure available. See Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 Majority opinion at p. 525 (Supreme Court of Canada).

134

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

issue presented by this appeal, then, is not whether the limit to the right to vote effected by the restriction on long-term non-resident voting justifies an infringement of s. 3, but whether that limit is unreasonable, such that s. 3 is infringed (emphasis added).43

We will consider next why this difference between the Majority and Dissenting Justices’ views in conceptualization of the analytical task at hand in Frank v Canada44 makes a material difference to case outcomes and in what way, if any, judicial activism is implicated. In Frank v Canada the Supreme Court of Canada Dissenting Justices put their position succinctly and powerfully when they stated: . . .we accept that the burden always rests upon the State to justify limits to rights. The point of difference between us and the Majority. . .is reduced to this question: what is it that is being justified-an infringement or a limit? We do not believe the Charter should be (or can be) read so as to allow for justified “infringements.” It does, however, allow for justified “limits”45 (emphasis added).

In Frank v Canada; on the SCC Dissenting Justices’ reading/interpretation of the Charter s. 1 provision then an “infringement” of a Charter right or freedom is by definition, based on the implications flowing from a textual analysis of s. 1, unconstitutional and unreasonable, and cannot therefore be justified. In contrast, on their view, a “limit” or restriction imposed on a Charter right or freedom may or may not be found unconstitutional by the Court depending on the outcome of the correct s. 1 Charter analysis. Where the “limit” on the Charter right or freedom is reasonable and demonstrably justified it is, according to the Dissenting Justices, properly considered to be “inherent in the right itself” and hence not a violation of that right (or freedom). Thus, the Dissenting Justices of the SCC in Frank v Canada held that the Crown had not conceded to the Majority’s view that the residencybased restriction/requirement regarding the right to vote in Canadian federal elections “disenfranchised” a certain category of Canadian citizens thereby “infringing” their right to vote. Rather the Crown’s position was that the right to vote is limited in this certain way by the residency regulation but that that limit is a constitutional inherent limit to the right which is reasonable and demonstrably justifiable and hence cannot be equated with ‘disenfranchisement’ which is a breach of the Charter and by definition is an unconstitutional limit (a conclusion with which the Dissenting Justices agreed).46 The Dissenting Justices held that the Crown Attorney had misspoken when she had used the word “infringement” but that the government position was clear from the “Attorney General’s statement in her Principles Guiding 43 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) summary at pp. 11–12 (Supreme Court of Canada). 44 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada). 45 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) summary at p. 11 (Supreme Court of Canada). 46 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at p. 81, para 118 (Supreme Court of Canada): “. . .contrary to the Majority’s statement, the Crown has not conceded (nor can the Crown be fairly taken to have conceded) that the impugned provisions reflect ‘Parliament’s decision to disenfranchise’ Canadians” See also p. 84, para 123.

3.2 Case 1: Gillian Frank and Jamie Duong v Attorney General of Canada . . .

135

the Attorney General of Canada in Charter litigation ‘Parliament may enact laws that limit rights and freedoms, and . . . the Charter will be violated only where a limit is without justification.’”47 Thus this is consistent with the Dissenting Justices view that “the Majority distorts the limitations analysis to speak of an “infringement” or “breach” based solely on the fact that an impugned measure imposes a limit on a Charter right” since a proper reading of s. 1 of the Charter reveals that “a right is infringed only where the right, as reasonably limited, is breached” (emphasis in the original).48 More specifically the Dissenting Justices held that the residency-based restriction on Canadian citizen voting rights was constitutional since it helped to ensure that the voters in a Canadian federal (or provincial election for that matter according to the Dissenting Justices) had a current relationship with their communities and thus (in theory at least) were best positioned to elect representatives who would serve the interests of those communities in which they too lived. They contended that this conceptualization of the democratic representational electoral system was the common one across “Westminster” democracies with a Parliamentary system.49 The Dissenting Justices stated that Parliament through legislation had to ensure the actual operationalization of the s. 3 Charter right to vote which is articulated in the Charter only in very broad terms as follows: “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”50 The Dissenting Justices argued that in fact: . . .contrary to the seemingly absolute quality of the Majority’s understanding of s. 3’s guarantee, such legislative specification is not only necessary but uncontroversial. No one suggests that s. 3 entitles three-year-old Canadian citizens to vote.”51

We will later in this chapter consider the age restriction on Canadian citizens’ right to vote (age eligibility for the vote in Canada currently set at 18 years), the controversy regarding whether the eligible voting age should be lowered to 16 years in Canada, the global movement to lower voting age to 16 as well as argument that contests the view that age restrictions in Canada on the vote for 16 and 17-year-olds in particular is a reasonable demonstrably justifiable limit on the Canadian Charter guarantee of the fundamental democratic right to the vote. The Dissenting Justices of the Supreme Court of Canada in Frank v Canada maintained also that the restriction on voting rights for Canadian citizens who had

47

Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at p. 84 (Supreme Court of Canada). 48 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at p. 82, para 120 (Supreme Court of Canada). 49 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) See p. 15 summary, p. 65, para 89, p. 78, para 112 (Supreme Court of Canada). 50 Canadian Charter of Rights and Freedoms (1982). 51 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at pp. 78–79, para 114 (Supreme Court of Canada).

136

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

lived abroad for 5 or more consecutive years without yet resuming Canadian residency was a very reasonable limitation in terms of the time qualifying the individual as a ‘long-term non-resident’ of Canada since (a) it would allow them to vote in at least one federal election while abroad since these elections are held every 5 years and (b) for Canadian citizen students studying abroad they would generally be finished their program of studies within 5 years.52 The Dissenting Supreme Court of Canada Justices in this case also highlighted the fact that the Majority’s analysis invalidating the residency-based requirement for the right to vote would also allow voting by Canadian citizens who have never lived in Canada as in fact the Majority conceded.53 The latter then becomes even more difficult to justify as this category of people has arguably even more tenuous ties to the current interests of particular Canadian communities whose eligible Canadian citizen members will be voting in the next federal election. The Majority in Frank v Canada54 held that their disagreement with the Dissenting Justices regarding the proper analytical framework to be used in the case was but a “semantic” one.55 The purported semantic argument, the Majority contended, arose since the Dissenting Justices had advanced an alleged “novel” legal theory or framework that held that the term “infringement” of a Charter right should be used only after it is determined that the government restriction or “limit” imposed on the right cannot be justified on a s. 1 Charter analysis. (Recall that the s. 1 Charter test requires a showing that the limit imposed on the Charter right or freedom “is a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society”).56 The Majority declined to consider the merits of the Dissenting Justices’ view in this regard since the Majority contended that (a) such a framework was not argued in the lower courts in Frank v Canada, (b) the framework suggested by the Dissenting Justices was not necessary to resolve the case and (c) the framework set out by the Dissenting Justices did not comport with the approach taken in previous SCC Charter cases.57 The Majority in the Frank v Canada case further pointed out that the Supreme Court of Canada jurisprudence reveals that the terms “infringement” and “limit” are used interchangeably in Charter cases. The Majority also contended that:

52 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at p. 15 Summary (Supreme Court of Canada). 53 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at pp. 78–79, para 114 (Supreme Court of Canada). 54 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) (Supreme Court of Canada). 55 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at p. 38, para 40 (Supreme Court of Canada). 56 Canadian Charter of Rights and Freedoms (1982) s.1. 57 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion at p. 39, para 41 (Supreme Court of Canada).

3.2 Case 1: Gillian Frank and Jamie Duong v Attorney General of Canada . . .

137

This Court has consistently asked whether infringements can be justified under s. 1, and the term “infringement” has not been restricted such that it applies only to unjustified limits on Charter rights.58

The Majority thus held that the proper analytical approach in a Canadian Charter case is one “requiring that two distinct questions be answered: the first is whether a Charter right has been infringed, while the second is whether that infringement can be justified in accordance with the Oakes framework (see, e.g., Andrews v. Law Society of British Columbia, [1989]).”59 The Majority held that this two stage process was necessary as the complainant must establish that his or her Charter right has been “infringed” and, if successful in meeting that burden, then the burden shifts to the State and the State must then make a showing that justifies the legislated infringement.60 (Recall that the Dissenting Justices, in contrast, held there can be no justified infringements of Charter guarantees).61 The Majority held further that “With respect to the s. 3 right to vote in particular, any balancing of interests must be addressed in the context of the s. 1 justification framework, as opposed to operating as an internal limit on the right.”62 The Dissenting Justices held that (a) the complainant must establish that there is a contested ‘limit’ on some Charter right or freedom and that if the complainant is successful in that regard; the State must then meet the burden of justifying that ‘limit’ on a Charter right or freedom but the Dissenting Justices agreed that (b) the SCC case law “has drifted in and out of speaking of justifying ‘infringements.’”63 The Dissenting Justices stressed that their point was not that the Supreme Court of Canada has never fallen into the linguistic trap of referring to “infringement” or “breach” of Charter rights or freedoms at the outset before doing a s. 1 analysis; but rather that the SCC “should stop doing so” and suggested that “If this is, as the Majority says, a matter of “semantics” then there is no good reason for continuing to ignore constitutional text.”64 The constitutional text “ignored” by the SCC Majority, as referred to by the Dissenting Justices in the aforementioned quote, is the s. 1 Charter text with the term ‘limits’ incorporated as opposed to the term ‘infringements.’

58 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at p. 38, para 40 (Supreme Court of Canada). 59 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion at p. 39, para 42 (Supreme Court of Canada). 60 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion at p. 40, para 42 (Supreme Court of Canada). 61 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) summary at p. 11 (Supreme Court of Canada). 62 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion at p. 40, para 42 (Supreme Court of Canada). 63 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at p. 83, para 122 (Supreme Court of Canada). 64 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at pp. 83–84, para 122 (Supreme Court of Canada).

138

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

The Dissenting Justices put their objections to the Majority approach in Frank v Canada in summary thus: . . .we view the question as transcending mere semantics. It distorts our constitutional discourse, and our understanding of rights and of the legitimate boundaries of state action, to speak of individuals having rights which may be justifiably violated by the state. Indeed, the Majority’s reasons furnish an example, by suggesting that s. 3 grants an absolute right that is violated by the restrictions on long-term non-resident voting. Reasonable limits are “inherent in the rights themselves”, and it is those limits which must be justified (emphasis added).65

On the view of the current author; the dispute between the Majority and Dissenting Justices in Frank v Canada66 (that dispute being on the proper analytical framework) is a substantive one rather than a purely semantic one despite the agreement between the opposing Justices on who (complainant versus State) carries which burden and when. In Frank v Canada the Majority held that (a) there was an “infringement” of the s. 3 voting rights of long-term non-resident Canadian citizens: “In the case at bar, citizens are subject to an absolute denial of their Charter right to vote after crossing the five-year non-residency threshold (emphasis added)”67 and (b) sought to answer the question as to whether that alleged “infringement” or purported “denial of [a] Charter right” was constitutional. The Majority held that since a fundamental right (voting) essential to the rule of law was at issue; the Court could not simply defer to the legislature.68 Since the Majority had already held that the limit on the voting rights of this category of Canadian citizens constituted an “infringement” of their s. 3 Charter right (even purportedly rising to the level of “absolute denial” of that right, “disenfranchisement”); the Majority arguably had, as the Dissenting Justices appear to contend, already found implicitly that the residency-based limit imposed on the free exercise of the voting right was ‘unreasonable’. The Majority then was arguably predisposed, due to this foregone conclusion, to regard the limit on the voting rights of long-term non-resident Canadian citizens not as a minimal impairment of a right even though the long-term non-residents could regain the exercise of the vote simply by re-establishing residency in Canada.69 Note that after the 1993 Amendments to the Canada Electoral Act,

65

Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at p. 84, para 122 (Supreme Court of Canada). 66 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada). 67 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion at p. 41, para 44 (Supreme Court of Canada). 68 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion at p. 41, para 44 (Supreme Court of Canada). 69 That the s. 3 Charter right to vote is a core right is evident from the Charter s. 33 notwithstanding clause which does not permit an override of the right to vote while that same clause does permit an override for a period of 5 years (potentially renewable) for certain other rights or freedoms based on an Act of Parliament or provincial legislation. Yet at the same time the electoral law currently does allow for a certain legislated limit on the right to vote as arises from the ‘age eligibility to vote’ restriction.

3.2 Case 1: Gillian Frank and Jamie Duong v Attorney General of Canada . . .

139

temporary Canadian citizen non-residents who were abroad for less than 5 consecutive years and intended to resume residency in Canada were able to vote in federal elections abroad by special ballot whereas this had not been the option previously. Hence the Parliamentary objective, the Dissenting Justices point out was clear, and it was not one of trying to broaden or newly instate disenfranchisement of segments of the Canadian citizenry. Rather it was to ensure that voters had a reasonably current connection to the community in Canada where they were eligible to vote so that they would be in a better position to vote in the shared community interest in electing their representatives. The Supreme Court of Canada Majority in Frank v Canada did not address the fact that Parliament had set this residency-based limitation on the right to vote “in pursuit of normative conceptions of what the Canadian political community is, and how it can best be protected and made to flourish.”70 The harm at issue then, were there no residency-based voting restriction would be, on the Dissenting Justices’ view, the perceived unfairness of an electoral system where some of the Canadian citizen voters are long-term absentee voters but can alter, through their vote, the policies that affect the communities in which resident Canadian citizens live and thus affect those who must cope with the impact of those policies in their day-to-day existence in those communities. Such perceived unfairness in the electoral system, where it exists, arguably itself undermines overall faith in the integrity of the electoral system and might even discourage voting by a certain segment of the resident eligible voters. It appears that the SCC Majority in Frank v Canada did not entertain this possibility holding instead that “there is no evidence of the harm that these voting restrictions are meant to address. No complaint has been identified with respect to voting by non-residents, and no evidence has been presented to show how voting by non-residents might compromise the fairness of the electoral system.”71 The Majority Justices in Frank v Canada never articulated, in opposition to the Dissenting Justices, furthermore, why s. 1 of the Charter uses the term “limit” and why it is permissible or advisable, on the Majority view, to substitute for the existing s. 1 Charter text the term “infringement.” Rather the Majority Justices set aside the disagreement as but purportedly grounded in a matter of pure ‘semantics’. This departure from reliance on the s. 1 Charter text by the SCC Majority in their analysis in Frank v Canada as to the constitutionality of the residency-based voting restriction, in the implicit view of the Dissenting Justices, it would appear, amounted to liberal judicial activism. We will explore that contention in the next section.

70

Compare Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at p. 94, para 139 (Supreme Court of Canada). 71 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion at p. 6 Summary (Supreme Court of Canada).

140

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

‘Liberal Judicial Activism’ in Frank v Canada: Selective Vindication of Canadian Citizens’ Right to the Vote It appears on the respectful view here that the Supreme Court of Canada Majority in Frank v Canada72 engaged in ‘liberal judicial activism’ involving a results-driven analysis where the analysis was, in effect, directed to reaching a foregone conclusion.73 In the context of this particular case, once the Majority had decided that the residency-based limitation was an “infringement” or “breach” of an absolute Charter right to the vote and determined this before doing the s. 1 Charter justification analysis (that is before applying the s. 1 Charter test for a demonstrably justified restriction on a Charter guarantee), it was, for all intents and purposes, a foregone conclusion that the residency-based limitation on the vote would not survive the Majority’s s. 1 analysis (as was contended by the Dissenting Justices). Arguably the following two factors combined to allow the policy and value preferences of the Majority to enter into their analysis: (a) the s. 1 Charter analysis in this particular case was performed based largely, if not entirely, on a non-empirical philosophical basis as to the Majority adjudged proper balance of the competing interests involved between the State versus the Canadian citizen long-term non-residents (those competing interests arising due to the residency-based bar on voting unless and until the Canadian citizen long-term non-resident resumed Canadian residency) and importantly (b) the heavy weight assigned by the SCC Majority to protecting the dignity of long-term non-resident Canadian citizens: The deleterious effects on affected non-resident citizens. . .are serious. Denial of the right to vote, in and of itself, inflicts harm on affected citizens; proof of additional harm is not required. The disenfranchisement of long-term non-resident citizens not only denies them a fundamental democratic right, but also comes at the expense of their self-worth and their dignity (emphasis added).74

72

Frank v Canada 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada). Recall that in the view of the SCC Dissenting Justices in Frank v Canada; to refer to a “breach” of a Charter right before doing the s. 1 Charter analysis is ipso facto to say from the outset that the contested ‘limit’ or restriction on the right is unconstitutional (that is that it may not be rationally connected to the government objective and/or that it may be an unreasonable and disproportionate limit, and/or that it may not be the minimally impairing option amongst effective alternatives that may be so and/or that it may not be a demonstrably justifiable limit on a Charter guarantee). This as opposed to holding after doing a s. 1 Charter analysis that the restriction (i.e. here the residencybased limit on the vote) is an unconstitutional breach of a Charter right that in fact has some constitutional inherent reasonable constitutional limits (i.e. the Canadian citizenship requirement which is expressly articulated at s. 3 of the Charter and, in the view of the Dissenting Justices, also an implied age restriction in respect of eligibility for the vote). As the Dissenting Justices commented: “Were the Attorney General to concede an infringement, there would be no point to hearing this appeal: she would be conceding the case (emphasis added).” See Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at p. 84, para 123 (Supreme Court of Canada). 74 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion Summary (Supreme Court of Canada). 73

3.2 Case 1: Gillian Frank and Jamie Duong v Attorney General of Canada . . .

141

The quote above from the Supreme Court of Canada (SCC) Majority Opinion in Frank v Canada reveals that the Majority held that the restriction on the vote due to the residency requirement was proof in itself of harm by the State to Canadian citizen long-term nonresidents such that “proof of additional harm is not required”75 to establish a s. 3 Charter violation. This resulted, on the respectful view here, in a circular argument based on a presumption and foregone conclusion of ‘unreasonable harm’ purportedly created by the residency requirement for the vote and hence results-driven judicial activism (setting aside for the purposes of discussion of this point whether that conclusion regarding harms created is or is not correct). Further the quote reveals the emphasis placed by the Majority on the long-term nonresident Canadian citizen’s sense of “self-worth and dignity”76 and their considering how this, from the affected party’s vantage point, would be experienced. The SCC Majority in Frank v Canada thus concluded that the s. 3 Charter violation arising from the restriction on the vote of Canadian citizen long-term nonresidents unless and until they resumed Canadian residency could not be shown to be demonstrably justified as is required under s. 1 of the Charter if the restriction is to be considered constitutional. We will discover in the discussion of Case 2 in this chapter (Fitzgerald (Next Friend) v Alberta),77 regarding the age-based restriction on the vote for Canadian citizens, that there is no such inclination in Fitzgerald for the courts as was, in contrast, manifest in the SCC Majority Opinion in Frank v Canada, to what can be termed ‘liberal judicial activism’ directed to shifting the societal and legal status quo to enlarge effective access to a democratic right. The SCC Majority decision in Frank v Canada was critically grounded, in large part, on the philosophical presumption that “the limit on voting by non-residents is not minimally impairing.”78 This since it deprives the Canadian citizen long-term non-resident, in the view of the Majority, as mentioned, of a democratic right that is, it would appear in the Majority’s view, absolute. This was the Majority’s assessment regarding the degree of harm created by the residency-based restriction on the vote thus even though the restriction on the vote for Canadian citizen long-term non-residents persisted only until and unless he or she resumed Canadian residency. Yet, as we shall see in Fitzgerald (Next Friend) v Alberta79 discussed here in a later section, where philosophical considerations loom large, as in voting rights cases,

75 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion Summary (Supreme Court of Canada). 76 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion Summary (Supreme Court of Canada). 77 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta); Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA184 (Alta.CA Picard and Costigan JJ and Sirrs J (Court of Appeal of Alberta). 78 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion Summary (Supreme Court of Canada). 79 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta); Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA184 (Alta.CA Picard and Costigan JJ and Sirrs J (Court of Appeal of Alberta).

142

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

whether: (a) an alleged Charter ‘breach’ or ‘limit’ is held to be unconstitutional, or whether, in contrast, (b) a limit on the core fundamental human right (i.e. the right to vote for one’s legislative representatives in a democracy such as Canada) is conceived of as a constitutional inherent reasonable limit to the right will be greatly influenced by the Court’s Majority or unanimous view of the societal status of the affected party. That is; the decision will be influenced by the Court’s estimation of (a) the impact of the limit on the human dignity of those affected and of (b) the value assigned in effect to the dignity of those to whom the restriction on the Charter guarantee is directed; at least in the context at hand. This then also reflects a form of results-driven judicial activism that impacts the interpretive approach and, on the respectful view here, likely departs from what is usually considered acceptable methodology in judicial interpretation (the latter being yet another form of judicial activism referred to by Kmiec).80 Clearly empirical evidence was relevant in the Frank v Canada case81 and the SCC Majority’s commented that the government had not presented any empirical evidence of the alleged concrete harms that would be generated by the abolition of the residency-based restriction on voting for Canadian citizen long-term non-residents.82 The Majority also noted that “no correlation has been shown between. . . how long a Canadian citizen has lived abroad and. . .the extent of his or her subjective commitment to Canada. Likewise, no correlation has been shown between residence and the extent to which citizens are affected by legislation.”83 Yet, at the same time, it is here noted that the Canadian citizen long-term non-resident Appellants in Frank v Canada pointed to no empirical evidence to suggest that resident Canadian citizens favored extending the vote to Canadian citizen long-term non-residents without restriction and that they held that this would not negatively affect their (resident Canadian citizens’) perception of the integrity of the Canadian electoral system. The anticipated perception by resident Canadian citizens of an erosion in the integrity of the Canadian electoral system if the residency requirement

80

Kmiec (2004), pp. 1442–1477. For example empirical evidence on how many Canadian citizen long-term non-residents have immediate family in Canada, how many such long-term non-residents do or would prefer to resume Canadian residency at the first employment opportunity in Canada, how many such long-term non-residents voted in a Canadian federal election within the first 5 years they were abroad before they reached the 5 year cut-off point for exercising such a vote, how many such long-term non-residents closely follow federal Canadian politics and politics in their district, how many long-term non-residents have never lived in Canada etc. all may have been relevant to consider in the s. 1 Charter analysis regarding reasonableness and proportionality of the residency limit on the voting rights of long-term non-resident Canadian citizens. 82 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion Summary (Supreme Court of Canada) “No complaint has been identified with respect to voting by non-residents, and no evidence has been presented to show how voting by non-residents might compromise the fairness of the electoral system.” 83 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion Summary (Supreme Court of Canada). 81

3.2 Case 1: Gillian Frank and Jamie Duong v Attorney General of Canada . . .

143

for the vote was removed (on the view of the government) was an issue central to the government’s case.84 The results-oriented form of judicial activism reflected in the Majority’s analytical strategy was arguably manifest also in the first instance in the Majority’s willingness to stray from the text of s. 1 of the Charter and substitute alternate text. The latter is potentially problematic for at least the reason that it adds a layer of complexity to the judicial interpretive methodology/strategy and likely fits into Kmiec’s judicial activism category of ‘judicial legislation’.85 The Majority, it will be recalled, sought to determine if an alleged “infringement” of a Charter right, here the right to vote by Canadian citizen long-term non-residents, was reasonable and demonstrably justifiable. However, as discussed, s. 1 of the Charter incorporates the term “limitation” not “infringement” and these alternate terms do have arguably quite different meanings and implications in the Charter analytical context. More specifically the Majority in Frank v Canada held from the outset that an “infringement” of the voting right arises due to the residency-based restriction since: . . .the Charter tethers voting rights to citizenship, and citizenship alone. Section 3 does not mention residence. Citizenship is the defining requirement of the right to vote, and the choice of the framers of the Charter to omit the residence requirement as an element of this core democratic right is significant (emphasis added).86

Though the Majority held that “the Charter tethers voting rights to citizenship, and citizenship alone (emphasis added)”87; the Majority did not address the fact that (a) there is a statutory limitation in Canada setting out age of voting eligibility and (b) that an age limitation is also not articulated at s. 3 of the Charter guaranteeing Canadian citizens voting rights. Age 18 years is the eligible voting age in Canada but lowering the age to 16 years has been an initiative taken on by several youth groups and individual politicians in several Western countries with a voting requirement of being 18 year old, including Canada, and in some non-Western countries as well with some success. For instance, Austria in 2007 was the first European country to 84 The Majority pointed to the absence of complaints regarding voting abroad by temporary non-residents Canadian citizen (who have been abroad for less than 5 years Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion (Supreme Court of Canada) “It has now been possible to vote from outside Canada for over twenty years, and the AGC was unable to identify a single complaint that has been made with respect to voting by non-residents” at para 63. However, it is not clear that Canadian resident citizens are generally aware of the ability of Canadian citizens temporarily abroad to vote in federal Canadian elections while abroad. Nor is it evident that Canadian resident citizens generally would have been agreed to abolishing the residency restriction on the vote for long-term non-resident Canadian citizens if informed on the issue—knowing that Canadian citizens abroad for over 5 years or even indefinitely and whether or not they had ever lived in Canada would be permitted to vote in Canadian federal elections when the residency restriction on long-term non-resident Canadian citizens was eliminated. 85 Kmiec (2004), pp. 1442–1477. 86 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion at p. 34, para 29 (Supreme Court of Canada). 87 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion at p. 34, para 29 (Supreme Court of Canada).

144

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

lower its specification regarding voting age eligibility in federal elections to 16 years while voting age eligibility requirements for provincial and local elections in Austria were required not to be more restrictive than the federal election age requirement for the vote and could in fact allow for an even lower than 16 voting age eligibility.88 Eligible age is not mentioned in the text of the s. 3 Canadian Charter provision as a requirement for the right to the vote, as mentioned, but Canadian electoral statutory laws stipulate an age of voter-eligibility of 18 years. The Majority in Frank v Canada were, however, silent on that issue. Thus there was no explanation as to why, for instance, ‘disenfranchising’ 16 and 17-year-old Canadian citizen residents would presumably be considered by the Majority in Frank v Canada as constitutional (inferring this adverse inference from the Majority’s silence on the issue) while ‘disenfranchising’ Canadian citizen long-term non-residents is considered by that Majority to be unconstitutional. The Majority in Frank v Canada does not address why then if “Citizenship is the defining requirement of the right to vote”89 and, as stipulated at s. 3 of the Charter, the only requirement; and a residency limitation is therefore unconstitutional; another limitation on the vote; specifically age-eligibility specifications barring lowering the voting age to 16, for instance, would, in contrast, nonetheless be constitutional.90 The aforementioned, on the respectful view here, reflects a kind of arbitrariness in constitutional interpretive methodology; something that reflects and leaves much room for judicial activism in the Majority judicial panel’s preferred direction.91 If the argument is correct here that the Majority of the Supreme Court of Canada (SCC) in Frank v Canada were activist in their largely philosophically-based rejection of the residency requirement regarding the vote; that Majority was, on the view here, engaged in a highly selective ‘liberal judicial activism’ with, on the view here, some arbitrary elements. Consider for a moment the impact on resident Canadian citizens barred from the vote due to their young age of 16 or 17 years. These individuals, as age ineligible to vote in municipal, provincial or federal elections, must yet live in Canada dealing day-to-day with the consequences of legislation and policy enacted by representatives that they had no hand in electing.92 88

Grover (2011), Chapter 4. Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Majority Opinion at p. 34, para 29 (Supreme Court of Canada). 90 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) p. 98, para 144 (Supreme Court of Canada) “Why is an age requirement a permissible “modality” of regulating the right to vote, but a residence requirement is not? And more particularly, if (as the appellants suggest) the distinguishing feature of the age requirement is that “it’s just a timing [issue] as to when [a citizen can vote]” (transcript, at p. 21), why would that same rationale not also apply to a residence requirement, since a long-term non-resident is permitted to vote if and when they re-establish residence in Canada — a matter that is, unlike age, entirely within his or her control?” 91 Compare Kmiec (2004), pp. 1442–1477. Kmiec discusses the lack of consensus in constitutional interpretation leading at times, in the view of some, to departure from accepted interpretive methodology; a form of judicial activism. 92 Recall the words of Justice Rowe in Frank v Canada 2019 SCC 1 Decided 11 January, 2019 regarding the democratic notion that “. . . the law’s legitimacy derives from the fact that those who 89

3.3 Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB. . .

145

That reality appears inequitable in comparison given that the SCC in Frank v Canada has now allowed voting by long-term non-resident Canadian citizens who are of age 18 years and older. The adverse impact, if any, of being denied the vote as a long-term non-resident Canadian citizen until and unless Canadian residency is resumed would arguably have been no greater than that for the Canadian youth residents of Canada aged 16 and 17 years denied the vote and so marginalized from full participation in the democratic process in Canadian society. The Majority approach in Frank v Canada then seems arbitrary in this case also amounting to what Kmiec refers to as a form of judicial activism involving ‘judicial legislation’.93 This in that the Majority in Frank v Canada chooses to substitute here its preference for that of the legislature in holding the residency-based restriction on the vote must be abolished. This was, however, a ‘selective preference’ regarding which legislated limits on the vote (aside from the Canadian citizenship limit articulated in the Charter at s. 3) the Majority in Frank v Canada found tolerable. Specifically the Majority found acceptable, it would appear, the age restriction on the vote given their silence regarding that limit on the vote notwithstanding the fact the Majority found that Canadian citizenship was, on their view, the only constitutional requirement for the vote which fundamental democratic right they appeared to view as absolute.

3.3

Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB 1086; (2004) A.J. No. 570, 2004 ABCA 184 (Court of Appeal of Alberta) (Age Eligibility for the Vote)

The current author argues that the affront to human dignity is arguably much greater for the underage youth residents of Canada denied the vote (specifically for the 16 and 17-year-olds; especially where these youth are keen to vote and civically minded) than for long-term non-resident Canadian citizens age—eligible to vote in Canada who could vote but for their residency status (and have the opportunity to vote in Canadian elections if and when they resume Canadian residency). This in that denying the vote to 16 and 17-years-olds is based on the young people’s immutable characteristic94 of young developmental age and not on a characteristic, such as long-term non-Canadian residency, that is not an inherent aspect of the human experience.95 Indeed in this regard consider the case of Fitzgerald (Next Friend) v

are subject to it are the ones who indirectly create it. . .(emphasis added)” Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Summary. Justice Rowe however concurred with the Majority holding that the harmful effects of the residency-based restriction outweighed its benefits. 93 Kmiec (2004), pp. 1442–1477. 94 ‘Immutable’ in the sense that developmental age cannot be changed at will or by choice. 95 Recall that the Majority in Frank v Canada 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada) stated “The disenfranchisement of long-term non-resident citizens not only denies

146

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

Alberta.96 The lower court (the Court of Queen’s Bench of Alberta per Justice E. S. Lefsrud) found that: (a) the age eligibility criterion for the vote set out in the relevant provisions of both the Local Authorities Election Act (2000) and the provincial Election Act (2000) in Alberta engaged and violated the s. 3 Canadian Charter guarantee of the right to the vote for all Canadian citizens and (b) also the s. 15 ‘equality under the law’ non-discrimination guarantee where age is listed in the Charter as one of the prohibited grounds of discrimination. Thus the Court of Queen’s Bench of Alberta rejected the government’s argument that the age eligibility of 18 years requirement for the vote is an inherent internal reasonable limit of the s. 3 Charter guarantee of a right to vote which defines the boundaries of that right.97 Rather Justice Lefsrud found that: Section 3 clearly contains no limitations on the right to vote, other than citizenship. While the content of the right to vote might be subject to interpretation . . . the words “every citizen” are clear. Any limitation on those words constitutes a breach of s. 3, which must then be justified under s. 1 (emphasis added).98

Thus Justice Lefsrud in Fitzgerald (Next Friend) v Alberta99 adopted the analytical framework of the Majority in Frank v Canada100; first deciding whether or not there was a Charter “breach” due to the age bar to the vote (age eligibility for the vote set at 18 years) and then moving to a s. 1 Charter analysis to determine whether the breach was demonstrably justifiable in a free and democratic society as is Canada

them a fundamental democratic right, but also comes at the expense of their self-worth and their dignity.” Summary at p. 8. 96 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta); Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA 184 (Alta.CA Picard and Costigan JJ and Sirrs J (Court of Appeal of Alberta). 97 The Crown relied on Badger v. A.-G. Manitoba (1986), 1986 CanLII 3989 (MB CA), 30 D.L.R. (4th) 108 (Man. Q.B.), in which Scollin J. stated at 112: “The right to vote presupposes certain attributes of the voter which are inherent but not expressed in s. 3. These are qualities of the right, not limitations on it and they may quite properly be the subject of re-evaluation by lawmakers without resort to s. 1. Thus, just as the basic conditions of citizenship are outside the Charter, so the law governing elections must spell out [the] residence and age requirement. It is pedantic to classify these as limits. They are simply the rational dimensions of the right. Of course, whoever sets the boundary also limits the field, and an issue under s. 1 of the Charter arises as soon as the law moves from standard qualification to selective disqualification.” Cited in Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) at para 12. Justice Lefsrud noted that the Supreme Court of Canada had rejected this approach. (Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) at para 13). 98 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) at p. 182, para 14 (Court of Queen’s Bench of Alberta). 99 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta). 100 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada).

3.3 Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB. . .

147

(and therefore constitutional).101 This approach then is implicitly grounded on the notion that these two steps can be disentangled as separate in the Fitzgerald (Next Friend) v Alberta case. Justice Lefsrud held that the age-based restriction on the vote (a) constitutes an affront to the dignity of 16 and 17-year-olds who are as a result of the voting limitation marginalized and perceived as less worthy in Canadian society and that (b) “There are clear deleterious effects resulting from the voting restrictions. Some individuals under the age of 18, who are sufficiently mature to cast a rational vote and who are interested in voting, are denied the right to vote.”102 Yet the Court of Queen’s Bench of Alberta concluded that the violations of the s. 15 Charter equality guarantee and of the s. 3 Charter fundamental democratic right to vote arising from the age-based limit on the vote met a so-called stringent justification test under s. 1 of the Charter.103 The age-based restriction on the vote, Justice Lefsrud held, was necessary to purportedly “maintain the integrity of the electoral system.”104 Justice Lefsrud put the matter thus: Weighing the deleterious effects against the salutary one, I am satisfied that they are proportionate. While it is a serious infringement to deny individuals the right to vote when they are sufficiently mature to cast a rational and informed vote. . .it is the necessary result of the only reasonably effective means to ensure that there is a good chance that all those who are casting votes are sufficiently mature. Maintaining the integrity of the electoral system is sufficiently important to justify the infringement (emphasis added).105

Compare the analytical frame and conclusion in Fitzgerald106 with that in Frank v Canada.107 In the latter case restrictions on voting were found unconstitutional notwithstanding concerns raised that removal of the residency-based limit on the vote (for long-term non-resident Canadian citizens) would erode the integrity and faith in the integrity of the Canadian electoral system. Those concerns regarding the maintaining of the perceived and actual integrity of the electoral system were discounted in Frank v Canada by the Supreme Court of Canada Majority in that case (re the elimination of the residency-based restriction on voting for Canadian citizen long-term non-residents) while they are accepted in Fitzgerald (relating to an

101

Recall that the Dissenting Justices in Frank v Canada 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada) held that a court finding of a Charter “breach” already implies an unconstitutional limit on a Charter guarantee. 102 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) at para 75. 103 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) at para 77. 104 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) at para 76. 105 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) at para 76. 106 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) Affirmed on appeal. 107 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada).

148

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

age-based restriction on voting). This though the empirical evidence is in fact that where 16 and 17-years-olds have been permitted the vote; the integrity and perceived integrity of the electoral system in that jurisdiction has survived intact.108 Furthermore barring 16 and 17-year-olds from the vote109; history teaches us, does not in fact, contrary to Justice Lefsrud’s claim, with respect, serve as an effective mechanism to ensure that the majority of those who cast a vote (where all voters are persons 18 years and older) are rational and well-informed. Segments of the electorate (persons who are age-eligible to vote) are unfortunately highly susceptible to manipulation, exploitation, and misleading and false propaganda often against their own interests. Yet there is no competency standard expected or, if that were even possible or unlikely advisable, operationalized, for age-eligible voters for their accessing the franchise. There is nothing to ensure they, the age-eligible voters of 18 years or older in Canada, for the most part at least, cast informed, rationally-based votes such as to maintain the integrity of the electoral system. The latter is contrary then to Justice Lefsrud’s assumption that the age-based restriction on the vote is “the . . .reasonably effective means to ensure that there is a good chance that all those who are casting votes are sufficiently mature.”110 That a stringent justification is required to violate the Charter guaranteed right to the vote has been articulated in Supreme Court of Canada case law: The right to vote is fundamental to our democracy and the rule of law and cannot be lightly set aside. Limits on it require not deference, but careful examination. This is not a matter of substituting the Court’s philosophical preference for that of the legislature, but of ensuring that the legislature’s proffered justification is supported by logic and common sense.111 This case is not merely a competition between competing social philosophies. It represents a conflict between the right of citizens to vote - one of the most fundamental rights guaranteed by the Charter -- and Parliament’s denial of that right. . . . It is for the courts, unaffected by the shifting winds of public opinion and electoral interests, to safeguard the right to vote guaranteed by s. 3 of the Charter (emphasis added).112

The current author would respectfully suggest that in fact in the Fitzgerald case the Court of Queen’s Bench denial of the vote to 16 and 17-year-olds, based on the

108

Grover (2011). Justice Lefsrud held he had to decide the case based on the actual situation of the particular Applicants in the case before the Appeal Court who were 17 at the time and not concern himself with the issue of whether the denial of the vote to younger children than the Applicants was or was not constitutional (Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta). 110 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) at para 76. 111 Sauvé v. Canada (Chief Electoral Officer) 2002 SCC 68 (CanLII) at para 9 Cited in Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) at para 49. 112 Sauvé v. Canada (Chief Electoral Officer) 2002 SCC 68 (CanLII) at paras 13–14 Cited in Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) at para 50. 109

3.3 Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB. . .

149

statutorily defined age-eligibility restriction held by that Court to be constitutional, ultimately was improperly based on a general public opinion. That public opinion being that a competency standard incorporating a (non-empirically based) presumption necessitates the blanket disenfranchisement of young people of that age regardless the particular individual’s maturity, civic engagement, and political awareness while such a competency standard presumption need not be applied to adults regardless their maturity or rationality as an individual voter. It is not at all clear that such an approach meets a purported ‘stringent justification’ standard for legitimizing a restriction on a fundamental Charter right. We turn now then to examine the Fitzgerald (Next Friend) v Alberta case in further detail.113 It is important to understand that in finding, in the first instance, that the age-based statutory (Elections Act) restriction on voting violated s. 3 and s. 15 of the Charter, Queen’s Bench of Alberta Justice Lefsrud stressed that the issue of ‘slippage’ of voting rights to lower and lower ages if the right to vote were granted to 16 and 17-year-olds was not a concern here. Rather the constitutionality of a bar against the vote for any particular age group with its own specific set of abilities and characteristics must, according to Justice Lefsrud, be decided (using a s. 1 Charter analysis) separately in each case as it comes before the court through the actual complainants114: I am not deterred in this finding115 by the argument of the defendant that the section cannot be applied literally116 because there are some, such as infants, who clearly should not have the right to vote. I do not need to define here who may properly be denied the vote; that issue must be determined in each case under section 1 of the Charter (emphasis added).117

Justice Lefsrud noted that the government had conceded that the Applicants were accorded differential treatment regarding their inability to access the vote under Alberta local and provincial electoral statutory law based on age. He held that the question in this regard in the first instance then was to determine whether or not that differential treatment amounted to discrimination in violation of s. 15 of the Charter

113

Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta); Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA 184 (Alta.CA Picard and Costigan JJ and Sirrs J (Court of Appeal of Alberta). 114 The Court of Queen’s Bench of Alberta in Fitzgerald thus held that it had only to decide, on the facts before it, the constitutionality of barring the vote for the particular teen appellants in the case considering their abilities, civic engagement, desire to vote etc. and hence not on that issue as it affects children of all ages below 18 years. 115 Referring to Justice Lefsrud’s finding that the age-based restriction on voting constitutes a “breach” of the s. 3 Charter right to the vote. 116 Referring to s. 3 of the Charter guaranteeing the right to vote to all Canadian citizens per the literal text of the provision. 117 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) at para 14 (Court of Queen’s Bench of Alberta) Note the Applicants were 16 when municipal elections were held province-wide in Alberta and they were denied the vote and they were 17 when they appeared before the Court of Queen’s Bench of Alberta (see Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) at para 1).

150

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

that guarantees ‘equality under the law’. Justice Lefsrud found in fact that the young complainants were being discriminated against due to the age-based bar on the vote since their being prevented from fully participating in Canada’s democratic society diminished their perceived worth and value in the society. Justice Lefsrud relied in this regard on the view expressed in the following excerpt from the Supreme Court of Canada in Law: . . .any demonstration by a claimant that a legislative provision or other state action has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society (whether or not it involves a demonstration that the provision or other state action corroborates or exacerbates an existing prejudicial stereotype), will suffice to establish an infringement of s. 15 (1).118

Justice Lefsrud rejected the government’s argument that the age-based bar on the Charter right to vote (voter ineligibility until the individual is 18 years old) was simply a “standard qualification” that was acceptable as it applied universally and was temporary and was therefore purportedly non-discriminatory.119 Justice Lefsrud put the matter thus: I note here that the distinction between “standard qualification” and “selective disqualification” urged by the Crown is as meaningless, to use an everyday example, as the distinction between a cup that is half-empty and a cup that is half-full. Barring minors from voting can be framed as either a standard qualification or a selective disqualification, depending on how you word it: “Voters must be 18 or over” is a standard qualification, and “All people may vote except those under 18” is a selective disqualification. As such, an age restriction cannot be justified without a s. 1 analysis simply because it is termed a standard qualification (emphasis added).120

Justice Lefsrud thus did not concur that the age-based limit on the vote was an internal inherent reasonable limit on the Charter right to the vote as appeared to be implied in the Supreme Court of Canada (SCC) Majority opinion in Sauvé121 and was explicitly contended by the SCC Dissenting Justices in Frank v Canada.122 Rather he found that the age-based restriction on the vote violated s. 3 of the

118

Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497 para 64 (Supreme Court of Canada). 119 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) para 46 (Court of Queen’s Bench of Alberta): “The argument that s. 15(1) is not engaged because the Applicants are only temporarily restricted from voting cannot be accepted. To accept this argument would reduce the enumerated ground of age to protecting only those who are discriminated against on the basis that they are too old, since discrimination on the basis that a person is too young is, by its very nature, time-limited.” 120 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) para 18 (Court of Queen’s Bench of Alberta). 121 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 at para 37 (Supreme Court of Canada). 122 See Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 at para 37 (Supreme Court of Canada) See also Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) (Supreme Court of Canada).

3.3 Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB. . .

151

Charter123 which “contains no limitations on the right to vote, other than citizenship.”124 After considering the Crown’s various arguments that the age-based distinction in the right to the vote is allegedly but non-discriminatory differential treatment reflecting a “standard qualification”; Justice Lefsrud further concluded, to the contrary, that the differential, treatment is in fact discriminatory. He stated that “a reasonable person, in circumstances similar to those of the Applicants, taking into account the contextual factors relevant to the claim, would conclude that the age distinction promotes the view that they are less capable or worthy of recognition as members of Canadian society.”.125 Such a showing of an assault on one’s dignity (a burden Justice Lefsrud held the Applicants had met) is sufficient according to Supreme Court of Canada case law to establish a s. 15 Charter violation.126 Canadian democracy and rule of law is grounded on respect for human dignity and the fundamental human rights that undergird it.127 Clearly an internal inherent limit to a right which sets out the reasonable boundaries of the right would not be expected to lead “a reasonable person, in circumstances similar to those of the Applicants” to conclude that the contested limit is an affront to their dignity.128 Hence Justice Lefsrud found that s. 15 of the Charter—the non-discrimination clause—is violated due to the age-based restriction on the right to the vote. Justice Lefsrud then turned to the question of whether the violations of the right to vote (s. 3 of the Charter) and the right to non-discrimination and to equal benefit and protection of the laws (s. 15 of the Charter) arising due to the age-based restriction on the vote could be shown by the Crown to be demonstrably justified under s. 1 of the Charter. Notwithstanding the fact that Justice Lefsrud held that the age restriction on the vote undermined the dignity of Canadian youth aged 16 and 17 years; especially those who were interested in the vote and civically engaged and politically informed,129 as were the Applicants; Justice Lefsrud did not find the violation of s. 3 of the Charter and the affront to the human dignity of the young people

123

Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) para 19 (Court of Queen’s Bench of Alberta). 124 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) para 14 (Court of Queen’s Bench of Alberta). 125 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) para 48 (Court of Queen’s Bench of Alberta). 126 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) para 39 (Court of Queen’s Bench of Alberta). 127 Grover (2018a). 128 See Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 (Supreme Court of Canada) at para 37 referring to the government setting voter age eligibility at 18 years old: “It is not saying that the excluded class is unworthy to vote, but regulating a modality of the universal franchise.” 129 Justice Lefsrud explained that as per Supreme Court of Canada case law, in considering whether a s. 15 Charter violation has occurred, it is necessary to consider the actual situation (abilities etc.) of the specific Applicants before the court Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) at para 35–37.

152

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

outweighed the hypothetical salutary effects of retaining the voter restriction at issue. This is the converse then of the Supreme Court of Canada Majority approach in Frank v Canada where the Court ruled that a voting restriction (residency-based in that instance) unconstitutionally violated the Applicants’ right to the vote in large part since it was not minimally impairing in that “disenfranchisement”—the inability to participate in Canadian democracy through the vote—was an affront to the Applicant’s dignity.130 In Fitzgerald (next Friend) v Alberta131 then the dignity of resident Canadian citizen 16 and 17-year-olds who wish to participate in the vote and are civically engaged and informed, but are prevented from doing so due to the statutory blanket age-based restriction on voter eligibility (barring under eighteens from the vote), was not considered a weighty enough consideration to find the restriction unconstitutional due, for instance, to more than minimal impairment of a core democratic Charter right.132 Contrast this with the finding in Frank v Canada where the harm to the dignity of long-term non-resident Canadian adult citizens arising from the residency requirement for the vote was weighted heavily. This is evidenced in part by the fact that a residency requirement that barred voting in Canadian federal elections for long-term non-resident Canadian citizen adults (persons who had lived abroad for 5 or more consecutive years and which bar was to be lifted if and when Canadian residency was resumed by the individual) was found not to be a minimal impairment of the voting right and therefore to create a legally insupportable unconstitutional harm to the dignity of these persons133 Furthermore, Justice Lefsrud, while on the one hand noting the paucity of empirical evidence presented by the government to justify the age-based bar on 16 and 17-year-olds voting134; on the other arguably relied, it is respectfully 130

Frank v Canada 2019 SCC 1 Summary (Majority view) (Supreme Court of Canada) The residency restriction was also held not to be proportionate in that it applied also to Canadian citizen long-term nonresidents who were affected by Canadian legislation in some way, those who had immediate family in Canada etc. Overall the SCC concluded that the deleterious effects of the restriction were not outweighed by any of what the Majority held were largely speculative salutary effects. 131 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta). 132 Recall that the Majority in Frank v Canada held the residency-based restriction on the vote unconstitutional largely due to their finding of more than minimal impairment of a core Charter right. 133 Frank v Canada 2019 SCC 1 Summary (Majority view) (Supreme Court of Canada) “Denial of the right to vote, in and of itself, inflicts harm on affected citizens; proof of additional harm is not required. The disenfranchisement of long-term non-resident citizens not only denies them a fundamental democratic right, but also comes at the expense of their self-worth and their dignity”. 134 “The Applicants both swore affidavits attesting to their involvement in community and political affairs. Mark Cherrington, who is bringing this application as their next friend also swore an affidavit attaching information about the qualifying age for membership in the various political parties, articles reporting the results of national historical surveys conducted in 2000 and 2001, and statistics printed from the Department of Education of Alberta’s website. The only evidence presented by the Crown was a report entitled Why 16-year-olds cannot serve as rational and informed voters in a democracy prepared in October 2001 by Dr. John J. Mitchell, a professor of

3.3 Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB. . .

153

suggested, on stereotypes about youth to hold that this age group is, for the most part, purportedly not rational and mature enough or politically sophisticated enough to be entrusted with the vote (impliedly compared to adults) and hence the limitation on their right to vote was, in the Court of Queen’s Bench of Alberta’s view, reasonable and justified under s. 1 of the Canadian Charter.135 This rationale for the age-based voting restriction on the vote is further problematized by the fact that no such competency requirement is stipulated or implied in the Charter nor articulated in statutory electoral law nor empirically tested by government for adult voters.136 That is there is no requirement that those age-eligible to vote (Canadian citizens aged 18 years and older) exercise the vote in an informed, rational way in their own best interests and hopefully also that of the larger community. In fact Justice Lefsrud implicitly conceded that the presumed benefit of denying the vote to 16 and 17-yearolds and setting voting age eligibility at 18 years in Canada was based only on pure speculation. This when he stated that “In the context of this case, it is impossible to measure the salutary effects that actually result from the voting restrictions, since the restrictions have always been in place. . .there is good chance that all those who are casting votes have sufficient maturity to cast a rational and informed vote (emphasis added).”137 Further there is no accepted test in Canada to assess competence as a voter138 and, even if there were, it is not at all evident what proportion of adult voters (persons over 18 years old) would pass that test or that requiring success on a voting ability test would be a constitutional precondition for accessing a fundamental human democratic right.

Education Psychology specializing in adolescent psychology and cognition.” Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) Court of Queen’s Bench of Alberta) at para 4–5. For a critique of the rationality/competency argument for the bar on 16 and 17-year olds being able to exercise the enfranchisement Charter guarantee see Grover (2011). 135 Note that the complainants in Fitzgerald (Next Friend) v Alberta did not argue that the electoral age-based restriction on the vote was not applicable in their circumstance as they were as capable of casting a rational informed vote as those 18 and over. Rather they argued that denying them the vote was to deny them participation in a core democratic interest and to deny them full participation as citizens in Canadian society and therefore to undercut their dignity. Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) para 39, 23–25. Justice Lefsrud held that the complainants did not have to show that they had the same competencies for the vote as did those 18 and over in order to show that their s. 15 right to non-discrimination had been impinged upon Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) at para 39–40. 136 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) at p. 182, para 63 (Court of Queen’s Bench of Alberta). 137 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB1086 (Alta. Q.B. Lefsrud J) at p. 182, para 74 (Court of Queen’s Bench of Alberta). 138 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB1086 (Alta. Q.B. Lefsrud J) at para 68 (Court of Queen’s Bench of Alberta).

154

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

In Sauvé,139 in commenting on the gradual abandonment of ‘selective exclusion’ of various groups of Canadian citizens from the vote, the Supreme Court of Canada acknowledged that: The right of all citizens to vote, regardless of virtue or mental ability or other distinguishing features, underpins the legitimacy of Canadian democracy and Parliament’s claim to power. . . . A government that restricts the franchise to a select portion of citizens is a government that weakens its ability to function as the legitimate representative of the excluded citizens, jeopardizes its claim to representative democracy. . . (emphasis added)140

Certainly negatively stereotyping, in blanket fashion, 16 and 17-year-olds as too immature and irrational to be permitted access to the Charter guarantee to the vote (especially when no speculative implicit competency standard is imposed on persons aged 18 years and older for exercise of the franchise) is inconsistent with Canada’s representative democracy credo. Thus, on the respectful view here, the ruling in Fitzgerald141 reflects results-driven ‘conservative judicial activism’ directed to maintaining the existing Canadian political power status quo in respect of age without any empirical evidence that an age-based restriction on the vote for 16 and 17 year-olds better ensures the integrity of the electoral system in Canada. Justice Lefsrud in fact argued not surprisingly, but yet stunningly from this author’s perspective, that in order to deny access to a fundamental human right and core aspect of the democratic experience (voting) “evidence is not necessary”: Evidence is not necessary to establish a rational connection between the denial of the right to vote to minors and the objective of ensuring, as much as possible, that individuals eligible to vote will have sufficient maturity to make rational and informed voting decisions. This connection may be established on the basis of reason and logic142 [. . .] Common sense dictates that setting the restriction at age 18 does not go further than necessary to achieve the legislative objective (emphasis added).143

In effect, in the quote immediately above, Justice Lefsrud (on the current author’s view; with respect) is contending that the blocking of access to a core human right and fundamental feature of representational democracy, and the correlated affront to the dignity of the persons impacted, can be rationalized in large part on the basis of presumed “reason”, “logic” and “common sense”. The latter used to advance the proposition that the government’s legitimate objective (an informed responsible electorate) is in fact accomplished through the contested measure (here the voter age eligibility criterion set at 18 years). It is, on the view here, in contrast, held that

139

Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 (Supreme Court of Canada). Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 at p. 545 Majority Opinion (Supreme Court of Canada). 141 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB1086 (Alta. Q.B. Lefsrud J), (Court of Queen’s Bench of Alberta) Affirmed on appeal. 142 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) at para 60. 143 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) at para 70. 140

3.3 Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB. . .

155

such a strategy poses a threat to democratic principles and is a formula for untrammeled ‘conservative judicial activism’ directed to maintaining the status quo as the supposed ‘natural order of things’. The latter even where basic human rights are being intentionally undermined by the State without obvious (demonstrably) empirically indicated societal benefit. Which analysis and ultimate judicial outcome in fact does constitute “common sense”, “reason” and “logic” in a case such as this—one with such high stakes for the complainants—cannot, it is here contended, be assumed based on judicial fiat (respectfully as here where the Queen’s Bench Justice in Fitzgerald in effect ‘declares’ that the State’s denial of the vote to 16 and 17-yearolds, endorsed by the Court, purportedly ultimately is properly based on “reason” and “logic” as well as “common sense” rather than evidence). Justice Lefsrud thus linked the blanket denial of the vote to minors to a legitimate government purpose (an informed rational voting public) based on his judicial reasoning and not on empirical evidence.144 The current author would contend that in fact it is neither ‘reasonable’ nor ‘logical’ nor ‘demonstrably justifiable’ in a democracy to deny the vote to 16 and 17-year-old youth based on negative stereotypes of youth of that age and on the presumption that age-eligible voters of 18 or older are rational informed voters (as occurred in Fitzgerald).145 Yet Justice Lefsrud found that the violation of the complainants’ democratic right to the vote, and the adverse impact which he acknowledged on their dignity of that denial, based as it was on age discrimination, was yet a limit on a fundamental Charter right that passed s. 1 Charter constitutional muster.146 The Appeal Court in Fitzgerald concurred with the lower court and held that the Queen’s Bench of Alberta judgment held up on a standard of review for “correctness.”147 The Appeal Court in Fitzgerald (Next Friend) v Alberta relied significantly, in part, on the Majority opinion of the Supreme Court of Canada in Sauvé v. Canada (Chief Electoral Officer) when the court in Sauvé held in regards to the denial of the vote to under eighteens that: . . .Parliament is making a decision based on the experiential situation of all citizens when they are young. It is not saying that the excluded class is unworthy to vote, but regulating a modality of the universal franchise (emphasis added).148

144

Justice Lefsrud stated that the salutary effects of the blanket age-bar to the youth vote in Canada could not be determined as it was always there., However evidence could have been garnered as to the effects of lowering the voting age to 16 in other Western countries where this has occurred to gain some insight into the potential impact, if any, on the integrity of the electoral system. 145 See for detailed argument Grover (2011). 146 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB1086 (Alta. Q.B. Lefsrud (Court of Queen’s Bench of Alberta) at para 77: “I conclude that the Applicants’ right to vote under s. 3 of the Charter is infringed by s. 16(b) of the Election Act. I also find that their right to equality under s. 15(1) of the Charter is violated by s. 16(b) of the Election Act and s. 47(1)(a) of the Local Authorities Election Act. However, I find that these Charter violations are justified under s. 1 of the Charter.” 147 Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA184 (Alta.CA Picard and Costigan JJ and Sirrs J (Court of Appeal of Alberta) at para 9. 148 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 (Supreme Court of Canada) at para 37.

156

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

The quote from Sauvé above is difficult if not impossible to reconcile with the fact that many 16 and 17-year-olds desire both the vote149 and the respect from politicians which is correlated with the vote as indicated, for instance, by the global youth movement to lower the voting age to 16 years.150 Canadian youth, as is the case with youth in other parts of the globe, commonly care deeply about certain social issues such as climate change which will profoundly affect them long-term151 but have at

149

The complainants in Fitzgerald v Canada were 17 years old when they brought their case to Queens Bench of Alberta. 150 For example see Astor, M New York Times (19 May, 2019) 16-year-olds want a vote, Fifty years ago so did 18-year-olds “Just as college students did 50 years ago, many high schoolers are pointing to broad social turbulence that affects them — gun violence, for instance — and are seeking to influence the political process by voting. They note that they are already involved through movements like March for Our Lives, which teenagers created after the Marjory Stoneman Douglas High School shooting in Parkland, Fla., in 2018” https://www.nytimes.com/2019/05/19/ us/politics/voting-age.html. 151 See Environment Jeunesse v Canada (Youth v Canada) A class action climate lawsuit brought by all Quebecers who were age 35 and under as of November 26, 2018 (3.5 million strong) alleging that Canada has not done enough to lower greenhouse gas emissions in order to limit global warming and has no plans to do so and hence is undermining the fundamental rights of the young generation in several respects https://enjeu.qc.ca/justice-eng/ See also Peritz, Ingrid Globe and Mail (Published 6 June, 2019) Federal lawyers oppose lawsuit that seeks to hold Ottawa accountable for its handling of climate change Note that the “federal lawyers are opposing the [class action] authorization, arguing that climate decisions should be handled by policy-makers, not the courts” and also that one of the federal lawyers (Ms. Gobeil) argued in Quebec Superior Court that “there is no violation because the Charter doesn’t oblige the government to legislate one way or the other” https://www.theglobeandmail.com/canada/article-federal-lawyers-oppose-lawsuit-thatseeks-to-hold-ottawa-accountable/ See also the decision of the Quebec Superior Court in the case indexed as Environment Jeunesse v Attorney General of Canada [Environment Jeunesse v Canada] No. 500-06-000955-183 decided 19 July, 2019. The youth sought a declaration that the fundamental constitutional rights (Under the Quebec Charter and the Canadian Charter) of the individual members of the group were violated in certain respects (re the right to life, integrity and security of the person, right to a healthy environment where biodiversity is preserved, right to equality) due to the failure of the Canadian government to take proper steps to limit global warming. The group also sought, along with certain other specified remedies, a court order that the Government of Canada stop the alleged constitutional infringements. The Quebec Superior Court decided that the issues raised in Environment Jeunesse were justiciable at that particular stage of the proceedings where the case proper was not yet being decided on its merits in the full legal and factual context. The Court found, however, that the criteria for the boundaries of the proposed class were not adequately supported factually or rationally i.e. setting the maximum age of the class members to be at 35-years-old (at para 116–123) and that including minors in the class raised certain legal difficulties given certain of the remedies requested (at para 125–133). The Court dismissed the request for authorization of the class holding that no properly defined class could be constructed in this case (at para 135–136); and that a class action lawsuit was not an appropriate nor necessary procedural vehicle for achieving Environment Jeunesse’s laudable goal in moving the Government of Canada to take adequate steps to limit global warming and giving youth a voice on the matter. (Environment Jeunesse v Attorney General of Canada [Environment Jeunesse v Canada] No. 500-06-000955-183 Quebec Superior Court, decided 19 July, 2019 at paras 140–141 and 143).

3.3 Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB. . .

157

present only the courts152 and civil protest as a potential vehicle to effect change. The vote, a most powerful tool in this regard, is out of reach until age 18 and the government is much less likely to take the concerns of youth under 18 seriously given that they are disenfranchised until age 18. The age bar to the vote in Canada of young people aged 16 and 17-years-old is inconsistent with Canada’s obligation under the Convention on the Rights of the Child (CRC),153 for instance, to allow young people freedom of expression (CRC Article 13) and the right to participation in decisions that significantly affect them short and/or long-term or potentially will do so (CRC Article 12).154 On the view of the current author the blanket bar on voting in any federal, provincial or municipal electoral process in Canada for Canadian citizen resident minors aged 16 and 17 years155 (or for temporary or long-term Canadian citizen non-resident minors of that age for that matter) is an unconstitutional discriminatory infringement of s. 15 of the Charter as well as an unconstitutional violation of the s. 3 fundamental human and democratic right to the vote and as such a limit not saved by s. 1 of the Charter. Consider that the right to vote is a Charter right assigned to individuals and Canadian citizens as a group comprised of individuals specifically “Every Canadian citizen. . . .”156 Hence collective blanket denials of the right to vote in regards to any segment of the Canadian citizenry cannot be justified as those impacted are not in effect being considered as individuals in respect of whatever characteristics (i.e. competencies etc.) are presumed necessary for the vote. Consider that in the Supreme Court of Canada case Andrews v Law Society of British Columbia the Court held that “A rule that bars a whole class of persons. . .without consideration of the. . .attributes and merits of individuals in the group, infringes s. 15 equality rights (emphasis added).”157 Clearly such is the case with regard to the blanket age-based bar to the vote in Canada regardless the political knowledge, maturity, rationality and civic engagement of the particular individual youth interested in gaining access to the vote as a 16 or 17-year-old. In Fitzgerald v Alberta the Alberta Courts simply did not find compelling the argument for the particular

152

See for instance Grover (2018b), pp. 64–83. Note that even in respect of the courts, the minor of 16 or 17 years cannot file a complaint directly in his or her own right before the Canadian court but must rely on an adult “Next Friend” as in Fitzgerald (Next Friend) v Alberta. 153 Convention on the Rights of the Child (1989) entered into force 2 September, 1990 https://www. ohchr.org/en/professionalinterest/pages/crc.aspx. 154 Convention on the Rights of the Child (1989) entered into force 2 September, 1990 https://www. ohchr.org/en/professionalinterest/pages/crc.aspx. 155 It is children aged 16 years and older globally who generally have expressed interest in the vote though there have been instances of some younger children around aged fourteen or fifteen also interested in acquiring the vote. For a discussion of challenges in setting an age eligibility point and various theoretical potential responses see Grover (2011). 156 Canadian Charter of Rights and Freedoms (1982) s. 3 https://laws-lois.justice.gc.ca/eng/const/ page-15.html. 157 Andrews v, Law Society of British Columbia 1989 1 SCR 143 Majority Opinion Summary (Supreme Court of Canada).

158

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

complainants (who were civically engaged and mature at age 16 and 17 years old) gaining access to the vote or youth more generally gaining access to the vote at 16 or 17 years old or for the government ending its blanket age-based restriction on the right to vote entirely. This notwithstanding the lack of factual evidence (as Justice Lefsrud conceded)158 of whether this blanket age-based restriction on the right to vote resulted in an Canadian electorate that was informed and rational or contributed in any other way to a fair and effective electoral system. This author concurs with Justice Lefsrud’s ruling in Fitzgerald (Next Friend) v Alberta159 insofar as his finding that the bar on 16 and 17-year-olds voting is in fact a profound affront to their human dignity. One can understand, however, why the Supreme Court of Canada (SCC) Majority in Sauvé160 sought to hold that the blanket age-based bar to the vote does not undermine human dignity. That is the more typical judicial activist strategy (it is here contended with respect) when (a) a measure is an affront to human dignity from the perspective of those affected161 but not necessarily in the eyes of the judicial panel and (b) likely would not withstand an evidence-based s. 1 analysis as opposed to one purportedly based on judicial ‘logic’, ‘reason’ and so-called ‘common sense’ (the s. 1 test requiring that any restriction on a Charter right be “demonstrably justified in a free and democratic society” in order to be found constitutional). Yet it is to be stressed that Supreme Court of Canada precedent as to interpretive methodology in discrimination Charter cases actually sets out that: The contextual factors which determine whether legislation has the effect of demeaning a claimant’s dignity must be construed and examined from the perspective of the claimant. The focus of the inquiry is both subjective and objective. The relevant point of view is that of the reasonable person, in circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim (emphasis added).162

158

Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB1086 (Alta. Q.B. Lefsrud) (Court of Queen’s Bench of Alberta). 159 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB1086 (Alta. Q.B. Lefsrud) (Court of Queen’s Bench of Alberta). 160 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 at para 37 (Supreme Court of Canada). 161 In fact the Supreme Court of Canada (SCC) has held that to determine whether a measure is discriminatory (whether it constitutes unconstitutional differential treatment violating the s. 15 Charter equality guarantee); the court in part must consider the perspective of the alleged victims and also whether their position in society is disadvantaged “. . .the s. 15(1) equality guarantee was designed to prevent the imposition of differential treatment that was likely to “inhibit the sense of those who are discriminated against that Canadian society is not free or democratic as far as they are concerned (emphasis added).” Law v Canada (Minister of Employment and Immigration) 1999 1 SCR 497 at para 43 (Supreme Court of Canada) The Applicants in the Fitzgerald case, relying on Law, argued that the age-based bar to their vote indeed made them feel that “Canadian society is not free or democratic as far as they are concerned” Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB1086 (Alta. Q.B. Lefsrud) at para 23 (Court of Queen’s Bench of Alberta). 162 Law v Canada (Minister of Employment and Immigration) 1999 1 SCR 497 at para 88 (Supreme Court of Canada).

3.3 Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB. . .

159

It would appear then that the Majority of the Alberta Court of Appeal in the Fitzgerald163 case, relying on Sauvé,164 in effect, discounted the perspective of the young complainants aged 16 and 17 years at the relevant points in the case (which they presented to the court) that (a) the denial of the vote due to the age eligibility barrier was demeaning to their human dignity and (b) led them to a perception that Canada is not democratic insofar as they are concerned. In this regard the Court of Appeals Majority in Fitzgerald arguably disregarded the interpretive method precedent set out in the Supreme Court of Canada (SCC) case Law which requires that the issue of adverse impact on a person’s sense of worth and dignity must be considered also from the alleged victim’s perspective.165 That is the Appeal Court of Alberta in Fitzgerald considered the age-based restriction on the vote to be simply a neutral and standard ‘modality of regulation’ which did not offend the dignity of youth. This allegedly as the limit on the right was universally applied to all those who were under 18 years of age and was thus a restriction on a Charter right that all Canadian citizens have experienced if they were resident for a period or longer in Canada while they were under 18 years old. Yet the age-based denial of the right to vote goes to the heart of human dignity in further casting a blow to young people’s personal autonomy and capability to direct and/or at least hopefully contribute to the shape of their future (here by potentially impacting government policy and political agendas through their votes). In this regard consider the following excerpt from the SCC Majority opinion in Law: What is human dignity? There can be different conceptions of what human dignity means. For the purpose of analysis under s. 15(1) of the Charter, however, the jurisprudence of this Court reflects, a specific albeit non-exhaustive, definition. . . . the equality guarantee in s. 15 (1) is concerned with the realization of personal autonomy and self-determination. . . . Human dignity is harmed when individuals and groups 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 (emphasis added).166

Recall that in Fitzgerald v Alberta Justice Lefsrud had, by his own admission, to resort largely to his estimation of what constituted judicial “reason” and “logic” in the particular case as opposed to “evidence” in grounding his justification under s. 1

163

Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA184 (Alta.CA Picard and Costigan JJ and Sirrs J (Court of Appeal of Alberta). 164 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 at para 37 (Supreme Court of Canada). 165 Law v Canada (Minister of Employment and Immigration) 1999 1 SCR 497 (Supreme Court of Canada). 166 Law v Canada (Minister of Employment and Immigration) 1999 1 SCR 497 per Justice Iacobucci at para 53 (Supreme Court of Canada).

160

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

of the Charter167 for the age-based limit on the voting right. This notwithstanding what he acknowledged was the significant harm to the dignity of youth arising from the restriction.168 On this author’s view, as mentioned previously, respect for human dignity is a fundamental principle underlying the democratic rule of law and hence democracy itself.169 The judicial stance of contending that a contested limit on a Charter right or freedom does not violate human dignity is often tantamount to the court suggesting not only that it is a reasonable, justified limit but, in addition, an internal inherent restriction. Hence in Sauvé; the Supreme Court of Canada (SCC) contended that the age-based restriction on the vote was, as mentioned, but “regulating a modality of the universal franchise.”170 The Majority’s aforementioned wording arguably, in effect, successfully deflects from the fact that the Charter enfranchises all Canadian citizens and that youth under 18 years are thus disenfranchised from the vote by the age bar contrary to the stipulation of s. 3 of the Charter. The semantic context created by the words “regulating a modality of the universal franchise” (to describe the age-based bar to the vote), on the view here, serves in actuality to minimize and normalize the affront to the human dignity of youth (in particular 16 and 17 year olds civically engaged and wishing to participate in the electoral process) arising from the bar to the youth vote. However, the Majority in Sauvé relied on the semantics of the phrase “regulating a modality of the universal franchise” to suggest that “Parliament . . .is not saying that the excluded class is unworthy to vote.”171 A discussion outside of such a carefully crafted, on its face, seemingly neutral semantic context, this author would think, would more conspicuously offend the democratic sensibilities of the reader of the SCC Court opinion in Sauvé172 on the matter of the age-based limit on the vote. Even if we accept that Parliament did not intend to demean the dignity of youth through the age-based bar to the vote that is no guarantee whatsoever that the limit is not so perceived by youth (as it apparently was by the young applicants in the Fitzgerald case) nor that the result is precluded that youth will be perceived as less worthy members of Canadian society since they are disenfranchised. That being the case especially so in respect of youth aged 16 and 17 years old interested in accessing their Charter right to the vote to advance their perceived interests. The risk is, among others, that we have come to incorrectly accept as ‘natural’, ‘inherent’ and ‘internal’ certain State-imposed limits to fundamental human rights which limits 167

Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) para 4–5 (Court of Queen’s Bench of Alberta). 168 For example Justice Lefsrud conceded that the supposed salutary effects for Canadian society of the age restriction on eligibility for the vote were speculative and not empirically based. 169 Grover (2018a), pp. 245–261. 170 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 at para 37 (Supreme Court of Canada). 171 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 at para 37 (Supreme Court of Canada). 172 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 at para 37 (Supreme Court of Canada).

3.3 Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB. . .

161

in fact undermine the human worth of certain segments of our society—especially those most vulnerable such as children—and that undermine democratic values in the process. We will consider in a later section of this chapter another case Canadian Foundation for Children v Canada173 where the SCC (a) failed to acknowledge obvious deep and damaging affronts on several accounts to the human dignity of children (persons under 18 years) while (b) (on the respectful view here) incorrectly failing to acknowledge the breach of the various fundamental Charter rights involved. This author contends that the age-based bar to the vote reflects a government policy preference regarding which segments of the Canadian citizenry may or may not exercise the vote. Here the denial of the vote to 16 and 17-year olds is based on speculation that attributes traits of presumed lack of competency, immaturity and irrationality to young people of this age174 thus diminishing these young people’s perceived worth in the society at large (whereas the government engages in no speculative competency, maturity and rationality analysis in assigning by statutory means the right of the vote in blanket fashion to very old voters and all those 18 years and older). The particular very elderly voter, in certain instances, may in fact be suffering all manner of mental defect in part or in whole directly or indirectly related to his or her advanced age. Yet these older senior citizens confront no barrier to their inherent right as Canadian citizens to the vote relating to their senior age and any possible significant correlated cognitive challenges.175 Hence it is here argued that the policy choice of the government to restrict the vote to those 18 and over is for this reason and others not a reasonable or justifiable one.176 The Supreme Court of Canada in Frank v Canada177 and in Sauvé178 (with respect, misguidedly on the view here) appeared (per the brief commentary on the issue in these cases by certain Justices) to accept as a fait accompli and part of the ‘natural order of things’ that the voting age restriction (set at age 18 years in Canada) should persist. The Supreme Court of Canada justices who addressed the issue in the aforementioned cases viewed the voting age restriction as an inherent reasonable

173

Canadian Foundation for Children, Youth and the Law v Attorney General (Canada) 2004 1 SCC 76 [Indexed as Canadian Foundation for Children v Canada] (Supreme Court of Canada). 174 Even though it potentially could be scientifically demonstrated that 16 and 17-year-olds, properly educated in civics and engaged, could exercise the vote in a mature, informed and rational manner; it is not at all clear that such a demonstration of the overcoming of the age restriction hurdle would be fair or relevant since competency is not a constitutionally specified qualification for the right to vote under the Canadian Charter. 175 For a detailed discussion of young people’s human rights implicated in the voting age issue see Grover (2011). 176 For a detailed discussion of voting age eligibility issues including proxy voting on behalf of the very young, counterarguments to fears that granting the vote under electoral federal statute to 16-year-olds will have a ‘slippery slope effect’ such that there will be pressure to lower the age even more and other issues see, for instance, Grover (2011). 177 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada). 178 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 (Supreme Court of Canada).

162

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

limit on the Charter voting right guarantee and as such rendered the constitutionality issue regarding the age-based restriction on the vote, in essence, non-justiciable. The latter could reasonably be considered the master stroke of judicial activism if and where the status quo is the objective and is maintained by, in effect, legally nullifying the constitutional issue before the Court.179 In this regard recall that the Supreme Court of Canada, to this author’s knowledge, has never heard a case brought by youth regarding their s. 3 Charter right to the vote and has never considered the issue in a developed factual context. In fact, as mentioned previously, the Supreme Court of Canada declined (without providing reasons) to hear such a case when the Court refused to grant leave to appeal to the teen Applicants in Fitzgerald v Alberta.180 The SCC Justices thus appeared to foreclose the possibility of reassessing the reasonableness and justification of the age limit on the vote in Canada. This then notwithstanding (a) the new and ever-evolving developments and understanding internationally regarding children’s fundamental human right to a scope of personal agency and the implications thereof for their fundamental legal, civil, participation and political rights181 as well as (b) the significant numbers of older youth in Canada disenfranchised by the age-based statutory restriction on accessing the right to vote; a Charter guarantee to every Canadian citizen. Note that the Canadian courts have held that (a) “In general, the courts do not interfere in the exercise of executive power. But in the case of an alleged violation of the rights guaranteed by the Canadian Charter, a court should not decline jurisdiction on the basis of the doctrine of justiciability.”182 and that (b) “Indeed, courts should not decline to adjudicate when the subject matter of the dispute remains within the limits of what is proper to them only “because of its political context or implications”.183 Arguably, with respect, the Supreme Court of Canada in denying leave to the youth applicants in Fitzgerald to be heard on the constitutional question of the age-based restriction on

179

Environment Jeunesse v Canada (Youth v Canada) class action authorization (Superior Court of Quebec) Decided 19 July, 2019 at para 51: “. . . in the context of the Canadian Charter, which is an integral part of the Constitution of Canada (“Constitution”), the courts must decide upon the limits of the justiciability of the issues. It is in this context that the adoption of the Canadian Charter has, to a large extent, brought the Canadian system of government “from parliamentary supremacy to one of constitutional supremacy”. Thus, the Canadian Charter has a direct effect on the analysis of the question of justiciability.” http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/ uploads/sites/16/non-us-case-documents/2019/20190711_500-06_decision-2.pdf. 180 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB1086 (Alta. Q.B. Lefsrud J); Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004ABCA184 (Alta.CA Picard and Costigan JJ and Sirrs J). 181 Note that Canada ratified the Convention on the Rights of the Child in 1991. 182 Environment Jeunesse v Canada (Youth v Canada) class action authorization (Superior Court of Quebec) Decided 19 July, 2019 at para 56. 183 Environment Jeunesse v Canada (Youth v Canada) class action authorization (Superior Court of Quebec) Decided 19 July, 2019 at para 58 http://blogs2.law.columbia.edu/climate-change-litiga tion/wp-content/uploads/sites/16/non-us-case-documents/2019/20190711_500-06_decision-2.pd.

3.3 Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB. . .

163

the vote184 engaged in ‘conservative judicial activism’ that did not abide by the aforementioned provisos regarding when the courts should not, relying on the justiciability doctrine, decline jurisdiction. Judicial Deference to the State and Unacknowledged Charter Breaches With respect, on the view here, as discussed in relation to the age-based bar to the vote; significant erosion of democratic principles and values may arise due to judicial activism in constitutional cases where the analysis is directed by an exaggerated deference to the State. In such instances the court determines that there is not a violation (no unconstitutional “infringement”) of a Charter guarantee185 and relies on, it is here contended, argumentum a fortiori. Here, more specifically, what is referred to is Court reasoning that is frequently preconditioned on the fact that (a) the limit at issue on the Charter guarantee has long existed, (b) the limit is widely accepted in society (and sometimes also in judicial case precedent) as supposedly sensible, demonstrably justified and one that does not inflict harm or undue harm (though not accepted as such by the alleged victims) and (c) the restriction serves to order the traditional status arrangements in society in a manner many if not most in authority and power in society find, from their vantage point, comfortable, proper, natural and useful for their purposes political and otherwise. We will consider in the latter regard (in some detail below) the case of Canadian Foundation for Children v Canada (also here referred to as Canadian Foundation).186 That case involves statutorily defined so-called justified assault of a child (within certain parameters and under certain circumstances) set out under the s. 43 Criminal Code of Canada (CCC) justification defence for statutorily-defined categories of “Persons in Authority.” In Canadian Foundation, as will be discussed, the CCC s. 43 defence to assault of a child (person under 18 years) allows for a limit on the child’s Charter right of security of the person which limit arguably tramples unconstitutionally not only on that right but also on domestic and jus cogens norms (i.e. potentially also on the right not to be subjected to cruel and unusual treatment or punishment) and the right to equal benefit of the law. The Majority of the Supreme Court of Canada in Canadian Foundation, however, found no Charter breach arising from the s. 43 CCC statutory defence to assault of a child.

184

Referring to the leave to appeal to the Supreme Court of Canada in the Fitzgerald case (Fitzgerald (Next Friend) v Alberta) being dismissed with costs https://www.scc-csc.ca/case-dos sier/info/dock-regi-eng.aspx?cas¼30453. 185 Note that the Majority in Frank v Canada suggested that the Dissenting Justices relied too heavily on deference to Parliament in fashioning their arguments in favor of the supposed constitutionality of the bar on the vote for Canadian citizens who had been out of the country for 5 or more consecutive years until and unless they resumed Canadian residency thus interfering with the exercise of a core democratic right See Frank v Canada 2019 SCC 1 Decided 11 January, 2019 at para 43 (Supreme Court of Canada). 186 Canadian Foundation for Children, Youth and the Law v Attorney General (Canada) 2004 1 SCC 76 [Indexed as Canadian Foundation for Children v Canada 2004 1 SCC 76] (Supreme Court of Canada) Referred to here also as Canadian Foundation.

164

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

Interestingly several of such landmark cases where the Court has shown, on the view here, undue deference to the State have involved stigmatized persons of low political and economic status in society such as disabled children187 and the destitute188 who for a variety of reasons are actually or effectively disenfranchised and disempowered.189 It is in cases involving such vulnerable persons that the greatest

187 Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 (also here referred to as Eaton) (Supreme Court of Canada). In Eaton a 12 year old disabled child was found by the Supreme Court of Canada not to be constitutionally entitled to a full-time regular ‘integrated’ classroom placement with her non-disabled peers. The Court held that there was no s. 15 Charter equality violation as the segregated placement would, in the Majority’s view, correspond best to Emily’s needs and best interests. Emily Eaton suffered from severe cerebral palsy and at the time had not been taught any communication system before she was to be placed by the Brant County Board of Education in a segregated classroom. There are a variety of potential communication systems that may have benefited a severely disabled child such as Emily and allowed her to function well in an integrated classroom with a supportive teacher and also an educational assistant but none of these alternative communication systems (as the Court of Appeal pointed out in upholding the appeal) had been attempted. Emily Eaton had been in an integrated classroom for 3 years but had grown increasingly upset; likely in large part as she had no way to communicate constructively and effectively with her peers and the teacher given the impact of her severe disability on her speech and communication skills. The Supreme Court of Canada held in Eaton in regards to the segregated classroom that “The child’s placement . . . did not constitute the imposition of a burden or disadvantage nor did it constitute the withholding of a benefit or advantage” (Eaton Majority Opinion Summary). Conservative judicial activism unfettered, it is here contended, underlies the Majority view that “The application of a test designed to secure what is in the best interests of the child will best achieve that objective if unencumbered by a Charter mandated presumption favoring integration which could be displaced if the parents consented to a segregated placement,” Eaton Majority Opinion at p. 245. On the view of the current author to deny the disabled child a Charter mandated but potentially empirically rebuttable presumption favoring integration is not only a violation of the s. 15 Charter equality guarantee but also of the s. 2(d) Charter guarantee of ‘freedom of association’. This is particularly the case here where a less restrictive intermediate alternative to a segregated placement had not been tried and no attempt had been made to provide the child with an alternate communication mechanism that was adapted to her needs. 188 Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84 Gosselin concerned a destitute psychiatrically disabled woman of under age 30 who was unable to afford a living accommodation and other basic necessities when her welfare cheque was cut to below subsistence level as the result of legislated changes to the social welfare system in Quebec. Those legislated changes (now reversed) required at that time that persons under age 30 in Quebec be enrolled in an approved educational or work training program or apprentice placement in order to qualify for their full welfare payment which would put them at the poverty line. Due to her psychiatric issues, and the lack of training/placement opportunities/spaces at the time; Ms. Gosselin was repeatedly unable to either complete or at other times reenroll in the educational/training opportunities the government required. The Court found no breach of her equality rights (s. 15 Charter) or security of the person right (s. 7 of the Charter) and held that “The regime constituted an affirmation of young people’s potential rather than a denial of their dignity.” (see Majority Opinion, summary of the case). 189 This is not to suggest that the Court does not take a different tact in some cases and defend the powerless. Such a contrary case is that of Vriend v Alberta [1998] 1 S.C.R. 493 In that case Mr. Vriend was fired as a laboratory instructor at a college not due to poor work performance but rather due to the fact of his homosexuality revealed under questioning by his employer post a new policy adopted by the college in question in regards to the employment of homosexuals at the college. The Supreme Court of Canada in Vriend found a breach of s. 15 Charter equality rights that

3.3 Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB. . .

165

harms to democratic values may occur if and when the Court’s opinion is based importantly on what in that context may qualify as exaggerated conservative judicial activism. In such cases the Court holds that deference is owed the State in restricting a Charter guarantee and the limit on the Charter right at issue is considered erroneously (on the facts) but a demonstrably justified “regulatory response” and/or a decision involving “competing social and political policies”190 or a State decision based on the perceived best interests, and actual capabilities and/or needs of the discrete group, and hence of the individuals within the group, such that the limit on the Charter guarantee is regarded as non-discriminatory (in the sense of not violating the s. 15 Charter equality guarantee). However too often the attribution to individuals of certain capabilities and needs and estimation of their best interests may in fact be largely shaped by spurious presumptions, misunderstandings and stereotypes. Such was the case, it is here suggested, in Canadian Foundation where the Majority (on the respectful view here) erroneously assumed that the justification s. 43 Criminal Code of Canada defence to assault of a child met the children’s best interests and “. . .largely dismisses the s. 15(1) challenge because of the alleged correspondence between the actual needs and circumstances of children and the diminished protection they enjoy under s. 43.”191 The Court in these cases presumes it has no proper jurisdiction to override the legislature rather than viewing the Charter restriction as undermining core human and democratic rights which rights the Court has an obligation to protect and preserve for all. The courts in such aforementioned instances where exaggerated deference is shown to the legislature often use an analytical frame characterized heavily by philosophical speculation and predisposition in the s. 1 Charter analysis concerning whether a particular “limit” on a Charter right or freedom at issue is (a) connected rationally to a legitimate government purpose and directed to that purpose, (b) reasonable, and proportionate, not inflicting more than the minimal necessary impairment on the exercise of a Charter right to be effective, and (c) demonstrably justified as carried out consistent with societal democratic values. The court in such cases then may over-rely on its general and presumptive pre-set rationales for finding no infringement and hence conclude that the contested limit on the Charter guarantee is constitutional. The risk further is that the court in finding no infringement in such cases will simply find constitutional those limits on Charter guarantees reflecting governmental policy preferences and values the court endorses. Such is the case this author has here respectfully argued when it comes to the restriction in Canada on the right to vote of youth under 18 years old- even of 16 and 17-year-olds could not be justified under s. 1 of the Charter. The Court ordered that “sexual orientation” should be “read into” the prohibited grounds of discrimination in the relevant provisions of the Individual Protection Act of Alberta which insofar as the explicit text of the IRPA was concerned was silent on the issue. This then arguably could be classified as ‘principled judicial activism’ directed to protecting the human dignity of a vulnerable group. 190 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 at para 43 (Supreme Court of Canada). 191 Canadian Foundation for Children v Canada 2004 1 SCC (Partial Dissent, Justice Binnie at p. 79 (Supreme Court of Canada).

166

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

interested in the vote and politically engaged. This was (on the view here) reflected in Sauvé (where the age-based limit on the vote in Canada was mentioned in that Supreme Court of Canada (SCC) opinion in a case that actually addressed a voting restriction on federal inmates serving 2 year or lengthier sentences).192 In Sauvé193 the SCC held that the age-based restriction on the vote is but a legitimate government “regulatory response.” However in regards to the residency-based restriction on the vote for long-term non-resident Canadian citizens194 and restrictions on the vote for federal inmates serving sentences lengthier than 2 years195 the SCC has found the limits on the vote to be unconstitutional. Yet the Dissenting Justices in Frank v Canada highlight that, in their view, the residency-based restriction on the vote also can be classed as but a “regulatory response”-one designed to ensure that those who vote in Canadian elections have a current relationship with the communities in which they vote and will fully live the consequences day-to-day of the voting decisions they make hopefully to further the interests of themselves and their communities. As discussed; in addition, the salutary effect of the age-based restriction on the vote (in terms of ensuring voters are supposedly rational and informed) is but hypothetical yet the SCC stands firmly with the State in ensuring the longevity of this government policy preference with enormous political import. The SCC then, in this regard, on the respectful view here, engages in judicial activism and arguably deviates from the fully rigorous in-depth judicial interpretive methodology demanded in complex Charter cases such as typically are voting cases. It is relevant to note that the Supreme Court of Canada (SCC) denied, without reasons,196 as mentioned, the young complainants’ leave to appeal application to the SCC in Fitzgerald v Canada’.197 Denial of leave to appeal to the High Court, on the view of the current author may, in certain instances, also be considered a form of ‘judicial activism’, as mentioned, though not generally recognized as being so. In this case the SCC declined to hear the youth voting rights case notwithstanding the fact that there were pressing reasons why lowering the vote to 16 would benefit the society (in contradiction to the implied opposite claim by the SCC Majority view in Sauvé198 that essentially there was no benefit and only harms to be derived from removing the age restriction on the vote for instance for 16 and 17-year-olds). Given the low overall participation rate in the electoral process in Canada especially by the 192

Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 at para 37 (Supreme Court of Canada). 193 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 at para 37 (Supreme Court of Canada). 194 Frank v Canada 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada). 195 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 (Supreme Court of Canada). 196 The SCC customarily does not provide reasons for such denials of leave. 197 Globe and Mail Supreme Court rejects challenge on voting age (published 6 January 2005, updated 21 April, 2018) https://www.theglobeandmail.com/news/national/supreme-court-rejectschallenge-on-voting-age/article1112704/. 198 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 at para 37 (Supreme Court of Canada).

3.3 Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB. . .

167

youngest voters of age (those of around 18–24) lowering the age to 16-years-old for voter eligibility may have boosted participation of the young and established voting as a democratic habit for young people. Note that “An Elections Canada study found that only 22.4% of people between the ages of 18 to 20 voted in the 2000 federal election” and a Chief Elector Officer held that lowering the vote to 16 could stimulate better participation of the age-eligible young in the electoral process.199 These young people then effectively are excluded in this aspect from the representational democracy that is Canada either due (a) to the age bar, for instance, for those 16 and 17-year olds interested in voting or (b) lack of participation of youth age-eligible to vote especially large numbers of 18–20 year olds. There have been periods of increase in interest in the vote among the young “In 2015, voter turnout among those aged 18–24 increased 18.3 points, to 57.1%, up from 38.8% in 2011 but that was still lower than the overall voter turnout which was 68.3%.”200 One central argument for lowering the voting age is that “People in a democracy have very different interests, values and vantage points. By not allowing these young people to vote, we’re shutting out the democratic perspective of a segment of our population.”201 Today in North America engaged young people are often trying to engage other young people in the voting process and working to get them registered for the vote in order for the young to be in a position to help put pressing issues such as climate change, gun violence and the opiate crisis on the political agenda as high priority matters that need to be urgently addressed.202 It appears (from this author’s perspective) that the Supreme Court of Canada (SCC) in denying leave to appeal to the SCC in Fitzgerald (Next Friend) v Alberta203 sought to maintain as stare decisis the SCC’s interpretation regarding the meaning and scope of the s. 3 Charter guarantee of the vote to every Canadian citizen as excluding youth under 18 years. Note that stare decisis has come to mean in Canadian and American Supreme Court case law not only that (a) the Court at times is reluctant to overturn its own well-established precedents which would

199

Globe and Mail Supreme Court rejects challenge on voting age (published 6 January 2005, updated 21 April, 2018) https://www.theglobeandmail.com/news/national/supreme-court-rejectschallenge-on-voting-age/article1112704/ Accessed 13 July, 2019. Note also that there is a general low voting rate for young people age 18–24 that has persisted See Elections Canada Estimation of voter turnout by age group and gender at the 2015 general election https://www.elections.ca/ content.aspx?section¼res&dir¼rec/part/estim/42ge&document¼p1&lang¼e. 200 Harris, Kathleen CBC News Elections chief says lowering voting age to 16 is an idea ‘worth considering’ (posted 19 March, 2018) https://www.cbc.ca/news/politics/chief-electoral-officer-vot ing-age-16-1.4579051. 201 NDP MP at the time Mr. Don Davies Cited in Harris, Kathleen CBC News Elections chief says lowering voting age to 16 is an idea ‘worth considering’ (posted 19 March, 2018) https://www.cbc. ca/news/politics/chief-electoral-officer-voting-age-16-1.4579051. 202 Asoulin, R Watch out 2020:Young voters are on the rise (Christian Science Monitor online) (15 November, 2018) https://www.csmonitor.com/USA/Politics/2018/1115/Watch-out-2020Young-voters-are-on-the-rise. 203 Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA 184 (Alta.CA Picard and Costigan JJ and Sirrs J (Court of Appeal of Alberta).

168

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

disrupt the stability in the understanding of what the law is but also that (b) the Court shows a reticence not uncommonly to deviate from the normative interpretation/ interpretive methodology it has developed in its case precedents (sometimes set out over a series of cases) to address certain substantive issues such as alleged discrimination.204 With regard to the age-based restriction on the s. 3 Charter-guaranteed right to the vote in Canada, however, we must recall that the issue has been addressed by the SCC only in passing by SCC Justices in cases where that issue was actually not the one before the Court to be adjudicated and therefore there was no developed factual or legal context provided by any litigating parties to that dispute (the age restriction on the vote). The Supreme Court of Canada (SCC) in denying the Fitzgerald205 complainants leave to appeal was able to ensure that the SCC’s Sauvé interpretation206—namely that the s. 3 Charter guarantee is absolute but for the Canadian citizenship requirement—stood despite it being, in contradictory fashion, in direct conflict with an age-based bar on the vote. This, in part, given that through the denial of leave to the SCC the Fitzgerald (Next Friend) v Alberta case and like cases were, in practice, effectively indefinitely blocked, for all practical purposes, also from any reconsideration by the lower courts.207 This despite the fact that the SCC, as here explained, in fact has never heard a case concerning the youth vote and the Sauvé208 case addressed the bar on the vote for another distinct group. Furthermore the SCC in Sauvé effectively does not provide a justification for the denial of the vote to young people (including 16 and 17-year-olds) but rather simply states the fact that the denial is universal for all Canadian citizens in the period before they reach age 18 and therefore allegedly the denial of this core democratic right is not demeaning. Further, on the respectful view here, the superficial commentary in Sauvé209 by the SCC Majority in upholding the age-based restriction on the vote does not in fact set out any SCC specific interpretive methodology as to how the Courts in future are to determine when a statutory restriction is a legitimate “regulatory modality” or an acceptable “policy preference” for blocking a fundamental human and democratic

204

Steinman (2013), pp. 1737–1810. See Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA 184 (Alta.CA Picard and Costigan JJ and Sirrs J) (Court of Appeal of Alberta). 206 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 at para 37 (Supreme Court of Canada). 207 The Court of Appeals in Fitzgerald (Next Friend) v Alberta had already raised the issue of so-called “technical mootness” of the case given the complainants were 18 years old when the case went to the Appeals Court of Alberta and that Court had (improperly on the view here) discounted the relevance of the factual context the complainants had provided as to their civic engagement (as 17-year-olds) to 17-year-olds more generally. Hence the possibility for an en banc hearing by the Court of Appeals of Alberta was effectively foreclosed See Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA 184 (Alta.CA Picard and Costigan JJ and Sirrs J) (Court of Appeal of Alberta). 208 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 (Supreme Court of Canada). 209 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 (Supreme Court of Canada). 205

3.3 Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB. . .

169

right for certain segments of the population and when it is not. The SCC denial of leave to appeal the Alberta Court of Appeal judgment in the Fitzgerald (Next Friend) v Alberta case210 appeared then to be a method to foreclose any possibility of (a) the SCC having to reconsider its view on minors’ voting (a view but briefly mentioned in Sauvé) and (b) having to do the necessary detailed analytical work before reaching conclusions in an actual youth vote case with the properly developed factual and legal context. The SCC engaged, on the view here then, in judicial activism on the issue of the age-based restriction on the vote. In sum then the SCC judicial activism in denying leave to the Fitzgerald (Next Friend) v Alberta complainants was directed, it is here respectfully contended, to ensuring that (a) the status quo remained the result for minors aged 16 and 17-years old; namely being denied the vote and that (b) the SCC Sauvé interpretation on the scope of the s. 3 Charter right as purportedly excluding minors of any age voting remain stare decisis. The complainants in Fitzgerald (Next Friend) v Alberta211 when they appeared before the Queen’s Bench (Alberta Court) were found to be highly civically engaged and mature young people of 17 years who desired the right to vote in Alberta municipal and provincial elections. Had the Supreme Court of Canada (SCC) heard their case; it would have been, as mentioned, the first time that that the SCC to this author’s knowledge had addressed an actual case put forward by young people for the vote. Yet despite the obvious public interest at stake; these young people were refused the right to be heard by the SCC on this core constitutional and democratic issue. That ‘ducking’ by the SCC of the opportunity to address the profound question of the age-based restriction on the vote and do so in a factual context212 developed in the Fitzgerald case213 (relating to the accomplishments and civic mindedness of the complainants) rather than in a factual vacuum and as a side note in cases addressing the voting rights of distinct other groups hardly seems legally supportable or consistent with the following SCC views as expressed in Sauvé: . . .denying citizens the right to vote runs counter to our constitutional commitment to the inherent worth and dignity of every individual. As the South African Constitutional Court said in August v. Electoral Commission, 1999 (3) SALR 1, at para. 17, “[t]he vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts.” The fact that the disenfranchisement law at issue applies to a discrete

210

See Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA 184 (Alta.CA Picard and Costigan JJ and Sirrs J) (Court of Appeal of Alberta). 211 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta). 212 It is noteworthy that the Appeal Court in the Fitzgerald case heard the case though it was technically moot given that the complainants were 18 years old by the time the case reached the Alberta Appeals Court. The dispute began when the complainants were 15 and 16 and were denied the vote. Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA 184 (Alta.CA Picard and Costigan JJ and Sirrs J) (Court of Appeal of Alberta). 213 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J); Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA 184 (Alta.CA Picard and Costigan JJ and Sirrs J).

170

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

group of persons should make us more, not less, wary of its potential to violate the principles of equal rights and equal membership embodied in and protected by the Charter (emphasis added).214

We turn now to examine (a) how (on the view here, with respect) judicial opinion and legal analysis at the Court of Appeal of Alberta in Fitzgerald.215 was guided by a foregone conclusion about 16 and 17-year-old youth as purportedly incompetent for the exercise of the s. 3 Charter fundamental democratic right to the vote and (b) how this set the stage for the Supreme Court of Canada (SCC) to, on the respectful view here, incorrectly decline to hear such a case of great public import and one that had serious ramifications for the interests of a sizable segment of the Canada population216; namely young people in their late teens but under 18 who are denied the vote. The Alberta Appeals Court noted that “The appellants’ evidence is, in large measure, specific to their particular achievements and activities as under 18 year olds with a view to establishing that the age restriction should not be applicable to them. Yet, the court is now precluded from fashioning a remedy specific to the appellants” [the latter since the complainants were 18 years old at the time the Alberta Appeals Court heard the case].217 However the Court went on to deny also a remedy of general declaratory relief stating: . . .a general declaratory remedy that the age restrictions are of no force and effect may no longer be available on the evidence. That is, it may be difficult to discern from the evidence that a sufficient number of 17 year olds are so similarly situate to the appellants that a general declaration of invalidity would be appropriate (emphasis added).218

The obvious counter (on the view here, with respect) to the aforementioned Alberta Appeal Court position is that Canadian citizens aged 18 years and older (including those of very advanced age) are not required to show that a sufficient number of their group are civically minded and rational enough to be entitled to access their Charter right to the vote. Thus this author contends it to be legally insupportable that the Alberta Appeal Court in Fitzgerald laments that “a general declaration of invalidity” (of the electoral statutory provisions barring under eighteens from the vote) was purportedly not available as “it may be difficult to discern from the evidence that a sufficient number of 17 year olds are so similarly situate to 214

Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 at pp. 545–546 (Supreme Court of Canada). 215 Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA184 (Alta.CA Picard and Costigan JJ and Sirrs J) (Court of Appeal of Alberta). 216 There were close to one million 16 and 17 -year -olds in Canada at the time of the Fitzgerald (Next Friend) v Alberta (2004) case. See Globe and Mail Supreme Court rejects challenge on voting age (published 6 January 2005, updated 21 April, 2018) https://www.theglobeandmail.com/news/ national/supreme-court-rejects-challenge-on-voting-age/article1112704/. 217 Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA184 (Alta.CA Picard and Costigan JJ and Sirrs J at para 7 (Court of Appeal of Alberta). 218 Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA184 (Alta.CA Picard and Costigan JJ and Sirrs J at para 7 (Court of Appeal of Alberta).

3.3 Case 2: Fitzgerald (Next Friend) v Alberta A.J. No. 1544, 2002 ABQB. . .

171

the appellants that a general declaration of invalidity would be appropriate.”219 In this way the Alberta Appeal Court, on the respectful view of the current author, engaged in results-oriented judging and served to discount the fact that the youth voting issue was here being raised in a substantive factual context.220 Further in relying on the Majority’s comment in Sauvé221—a case that addressed the bar on the voting rights of federal inmates sentenced to two years or longer of incarceration and not one directly on the issue of the age-based bar to the vote-the Court of Appeal in Fitzgerald ruling has, on the view here, no solid legal grounding for its conclusion that the age-based restriction on the vote is not an infringement of the s. 3 Charter right to the vote. In addition the notion expressed by the SCC in Sauvé222 that the age-based bar to the vote does not violate the Charter right to exercise inherent enfranchisement since everyone experiences this period of disenfranchisement is, with respect, illogical. On that theory any potential violation of Charter rights or freedoms would be considered legitimate (constitutional) as long as every Canadian citizen experienced it for some specified period. Furthermore, the Majority in Sauvé on the one hand held that denial of the right to vote is an affront to human dignity while on the other contending that the exception in that regard is the bar on voting for under eighteens. Clearly the Majority in Sauvé reached that conclusion from their own perspective and not that of young people affected by the age-based restriction on the vote such as the complainants in Fitzgerald (Next Friend) v Alberta.223 The latter complainants clearly wished to be regarded as full members of Canadian society and have their personhood and legal personality formally acknowledged also through the ability to exercise their right to the vote as the Charter provides. Judicial activism, where it involves results-driven analysis,224 can thus lead to arbitrary results for complainants seeking vindication of their Charter entitlements. This in that their right to have the balancing of interests explored in the context of a s. 1 analysis is effectively neutralized by unfounded presumptions about their group 219

Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA184 (Alta.CA Picard and Costigan JJ and Sirrs J at para 7 (Court of Appeal of Alberta). 220 Note that counsel for the complainants in Fitzgerald (Next Friend) v Alberta (supra) stated to the press: “We’re not saying whether it should be 15 or 16 or 17, but right now where the line is discriminates against a lot of young people who are able to make informed decisions,” . . . “We’re doing this because the right to vote is an important, fundamental right to any citizen of a country. There are close to one million Canadians who are 16 or 17.” Globe and Mail Supreme Court rejects challenge on voting age (published 6 January 2005, updated 21 April, 2018) https://www. theglobeandmail.com/news/national/supreme-court-rejects-challenge-on-voting-age/arti cle1112704/. 221 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 (Supreme Court of Canada). 222 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 (Supreme Court of Canada). 223 Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB 1086 (Alta. Q.B. Lefsrud J); Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA184 (Alta.CA Picard and Costigan JJ and Sirrs J). 224 For a discussion of results-driven judicial analysis as a form of judicial activism see Kmiec (2004), pp. 1442–1477.

172

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

and speculations about the adverse impact of abolishing the contested restrictive legislative measure at issue. It may furthermore be, in effect, an impossible task for complainants to establish that a limit on a Charter guarantee does not meet the s.1 Charter test in a free and democratic society when the Supreme Court of Canada (SCC) views what is arguably a Charter ‘infringement’ as consistent with their ‘spin’ on the proper ordering of society. This appears to be the case for the age-based restriction on the right to vote but not for the residency-based limit on the vote where the latter “policy preference” or “regulating modality” was rejected by the Court. However, as discussed, the Supreme Court of Canada (SCC) had no empirical evidence of the hypothesised salutary effects of the age-based restriction on the vote as was the case also for the bar on the vote for long-term non-resident Canadian citizens yet the SCC judicial opinion on each matter was at polar opposites. When the Court finds no Charter infringement without having relevant evidence to support that finding, including the perceptions of the alleged victims and relevant empirical findings, this inadvertently allows, on the respectful view here, more room in the analysis for unconscious stereotypes, preconceived notions and speculation without due regard for democratic values such as equality under the law and democratic rule of law grounded on human rights principles. This legal frame leaves open then also a greater possibility for inadvertent court-vetted Charter violations (unacknowledged human rights infringements found constitutional) when it is a vulnerable person or group of persons challenging government to access their Charter rights or freedoms.225 This is especially a risk when the government department involved is considered to have special expertise in the topic area at issue. Let us consider then the case of Canadian Foundation for Children v

225

The approach of the Dissenting Justices in Frank v Canada can also lead, on the view here, to ‘court-vetted constitutional violations’ particularly when (a) the Court shows uncalled for deference to the legislature in cases where Parliament legislates “in pursuit of, or in response to, considerations of political morality or philosophy” but violates a fundamental Charter right(s) in the process (Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) p. 86, para 126); (b) those legislative objectives do not in fact, in the particular case, comport with core democratic and human rights values and (c) the Court nevertheless holds the limit placed on the Charter guarantee as a reasonable justified inherent limit to the right. The Dissenting Justices in Frank v Canada, in discussing the age-based restriction on voting in Canada, conceded that the restriction was based on “Parliament shaping the boundaries . . .of the s. 3 right . . .in pursuit of certain philosophical, moral, or otherwise normative objectives. Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at p. 99, para 145. The Dissenting Justices in Frank v Canada accepted as constitutional the age-based limit on the Charter right to the vote; the denial of the vote for all minors; that is persons under 18-years (including then also 16 and 17-year-olds). This based on a blanket stereotype also of these older youth as incompetent for the vote (though no such competency requirement is applied to adults) with the Dissenting Justices holding that with regard to the age-based restriction the “justification necessarily reflects a certain normative or philosophical theory—one that trades off some considerations (ensuring an informed electorate that is capable of exercising rational and independent choice) against others (extending the scope of the franchise to all citizens) in a particular manner.” Frank v Canada 2019 SCC 1 Decided 11 January, 2019 Dissenting Opinion (Côté and Brown JJ.) at p. 98, para 145 (Supreme Court of Canada).

3.4 Case 3: Canadian Foundation for Children, Youth and the Law v Attorney. . .

173

Canada226 that on the respectful view of the current author demonstrates: (a) courtvetted Charter violations of children’s human rights unrecognized by the Court as such and (b) judicial activism of the Supreme Court of Canada leading to a spurious denial that a particular legislative measure (s. 43 of the Criminal Code of Canada) offends the human dignity of the impacted group; children.

3.4

Case 3: Canadian Foundation for Children, Youth and the Law v Attorney General (Canada) 2004 1 SCC 76 (Supreme Court of Canada) (The s. 43 Criminal Code of Canada Affirmative Defence for Assault of a Child)

Canadian Foundation for Children v Canada227 [hereafter also referred to in the body of this text as Canadian Foundation] is a Charter case in which the non-profit Canadian Foundation for Children, Youth and the Law sought a declaration that s. 43 of the Criminal Code of Canada (CCC) (which provision currently still remains part of the CCC) violates sections 7, 12 and 15 of the Charter and hence is unconstitutional. Section 43 of the Criminal Code of Canada reads as follows: PROTECTION OF A PERSON IN AUTHORITY: Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances (emphasis added)228

Section 43 of the Criminal Code of Canada (CCC) is a stipulated affirmative Criminal Code defence to a charge of assault of a child. Section 7 of the Canadian Charter guarantees “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”229 Section 12 of the Charter guarantees “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”230 Section 15 (1) of the Charter guarantees that “Every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination, and, in particular, without discrimination based on race,

226

Canadian Foundation for Children, Youth and the Law v Attorney General (Canada) 2004 1 SCC 76 [Indexed as Canadian Foundation for Children v Canada 2004 1 SCC 76] (Supreme Court of Canada). 227 Canadian Foundation for Children, Youth and the Law v Attorney General (Canada) 2004 1 SCC 76 [Indexed as Canadian Foundation for Children v Canada 2004 1 SCC 76] (Supreme Court of Canada). 228 Criminal Code, RSC 1985, c C-46, section 43. 229 Canadian Charter of Rights and Freedoms (1982). 230 Canadian Charter of Rights and Freedoms (1982).

174

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

national or ethnic origin, colour, religion, sex, age or mental of physical disability.”231 The Trial Court and the Appeal Court both rejected the request by the complainant NGO for declaratory relief and the case was appealed by the complainant Canadian Foundation for Children to the Supreme Court of Canada (SCC). The SCC held with a majority of six plus a partial dissent of a seventh Justice that s. 43 of the Criminal Code of Canada (CCC) should not be struck nor revised in its text. On the view here, to be discussed, the Canadian Foundation case is an illustration of result-directed judicial interpretation/judicial activism directed to (a) active denial of the affront to the human dignity of children represented by s. 43 of the CCC and (b) maintenance of a centuries long status quo in which children have been subjected to State endorsed so-called reasonable physical violence as a purported form of “correction” by “persons in authority”, namely parents or their delegates as well as teachers. Interestingly; the case (on the view here, with respect) also illustrates the highly selective use of textualism by the SCC Majority in the effort to craft arguments in support of their decision. In what follows there is commentary on particular key aspects of the Majority and Dissenting Opinions in the Canadian Foundation case and the relevance to the question of the role judicial activism played in the judicial interpretation and conclusions of the Majority in the case.

3.4.1

The Canadian Charter s. 7 ‘Security of the Person’ Issue in Canadian Foundation

The Majority in Canadian Foundation232 held that “[w]hile s. 43 adversely affects children’s security of the person, it does not offend a principle of fundamental justice.”233 Instead the Majority held that “s. 43 provides adequate procedural safeguards to protect this interest, since the child’s interests are represented at trial by the Crown.”234 Recall that a s. 7 Charter violation of the individual’s security of the person occurs only if and when that deprivation of security of the person was effected not in accord with the principles of fundamental justice.235

231

Canadian Charter of Rights and Freedoms (1982). Canadian Foundation for Children v Canada 2004 1 SCC 76 Summary (Supreme Court of Canada). 233 Canadian Foundation for Children v Canada 2004 1 SCC 76 Summary at p. 77 (Supreme Court of Canada). 234 Canadian Foundation for Children v Canada 2004 1 SCC 76 Summary at p. 77 (Supreme Court of Canada). 235 The complainant in the case (Canadian Foundation for Children, Youth and the Law) argued that “it is a principle of fundamental justice that innocent children who are alleged to have been subjected to force exempted from criminal sanction by s. 43 of the Criminal Code have a . . . right to due process in the representation of their interests at trial.” This being analogous to the due process 232

3.4 Case 3: Canadian Foundation for Children, Youth and the Law v Attorney. . .

175

In contrast to the Majority opinion; it is here contended that the child’s security interest is not adequately represented at trial by the Crown in a s. 43 case as the prosecution case to be met by the defendant is inherently weak. This due, for instance, to the lack of any guidance provided by the s. 43 CCC provision text in respect of objective standards or the mixture of subjective and objective standards to be used in determining what “reasonable force under the circumstances” is and what constitutes “correction”. Nor is there a community standard defining so-called ‘reasonable corrective force’ in parenting.236 The courts, as a result, have often thus largely adopted the subjective standard regarding what constitutes ‘reasonable corrective force under the circumstances’ applied by the perpetrator in the moment when he or she assaulted the child.237 It is not an answer to say, as did the government in Canadian Foundation, that Child Welfare provides a safety net that remedies any potential risks created by CCC s. 43. Clearly it is not uncommon that Child Welfare intervenes too late, if at all, and irreparable harms are done the child. The Crown’s position is weak also in that s. 43 is an affirmative statutory defence that explicitly justifies the use of more than de minimis physical force in assault of a child (including more than de minimis corporal punishment) where allegedly within certain parameters and for the purpose of “correction” carried out by a statutorily defined “person in authority”.238 While the force used is not to be more than what is “reasonable under the circumstances”; had the case involved de minimis force it would in all likelihood never have arrived at court as the Prosecutor would have exercised his or her discretion not to prosecute. Since what is force “reasonable under the circumstances” is relatively indeterminate the child’s safety is at risk especially when persons in authority are of the mindset, often correctly, that the s. 43 defence is readily available as an effective defence in all but the most obvious and egregious cases and certainly in an alleged borderline case of potential excessive force or of unclear purported ‘corrective’ purpose of the assault. Furthermore an additional procedural issue arises in that the Crown cannot adequately set out the burden to be met by the defendant for proving the ‘force for the purpose of correction’ element in a s. 43 case. Yet, as Blackstone pointed out; and as summarized in Ogg-Moss by Dickson, J.: “unless the force is by way of correction, that is, for the benefit of the education of the child, the use of force will not be justified (emphasis added).”239 It is thus problematic that the social science consensus is that corporal punishment is not ‘corrective’ in any educational sense but rather produces only short term compliance240 (likely based on fear) but the s.43 defence covers also

afforded the accused in a criminal trial. Canadian Foundation for Children v Canada 2004 1 SCC 76 at p. 91 (Supreme Court of Canada). 236 R v Peterson [1995] 7395 On SC at para 27 (Ontario Superior Court). 237 See for instance R v Peterson [1995] 7395 On SC at para 17 (Ontario Superior Court). 238 These persons in authority being parents, parental delegates or teachers. 239 Ogg-Moss v. The Queen, [1984] 2 S.C.R. 173 at p. 193 (Supreme Court of Canada). 240 Children Youth and the Law v the AG of Canada 2002 ON CA, at para 8, items 5 and 7 (Ontario Court of Appeal).

176

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

corporal punishment as a supposed application of ‘corrective’ force. The Crown starts from the premise that the s. 43 defence is constitutional when prosecuting a criminal case and that it is only the facts of the particular case that may render the s. 43 defence non-viable. The erroneous presumption then is, it would appear, that greater than de minimis force, including corporal punishment, could have been ‘corrective’ under the proper circumstances and where within certain parameters. The Crown must be able in a s. 43 case to rebut the notion that the physical force was for the purpose of “correction” and/or that it did not exceed what was “reasonable under the circumstances”. The vagueness of these standards is illustrated, for instance, by the fact that the Supreme Court of Canada Majority in Canadian Foundation articulated several guidelines that essentially they held were to be applied to restricting the scope of the s. 43 defence to assault of a child (referred to as “reading down” of the provision). The Chief Justice significantly curtails the scope of the defence of s. 43 of the Code. . . According to her analysis, s. 43 can only be raised as a defence to a charge of simple (common) assault; it applies only to corrective force, used against children older than two but not against teenagers; it cannot involve the use of objects, and should not consist of blows to the head; and it should not relate to the “gravity” of the conduct attracting correction.241

However one of the Dissenting Justice, Justice Arbour, held that it was not the role of the judiciary to “read down” a statutorily-defined criminal defence with certain qualifiers restricting its scope: With respect, in my opinion, such a restrictive interpretation of a statutory defence is inconsistent with the role of courts vis-à-vis criminal defences, both statutory and common law defences242 [. . .] such a technique cannot be employed to restrict the scope of statutory defences without the courts compromising the core of their interplay with Parliament in the orderly development and application of the criminal law.243

In effect Justice Arbour’s critique, with which this author concurs, contends that the Majority opinion in “reading down” the existing text of the Criminal Code of Canada s. 43 defence to assault of a child has engaged in judicial activism. Here that judicial activism includes an attempt to render the interpretation of the s. 43 text, in the Majority’s view, constitutional by limiting what the actual statutory text is to be taken to convey. However, the literal text of s. 43 of the Criminal Code of Canada does not in fact give any indication that the defence supposedly applies only to common assault or that it precludes the use of instruments or blows to the head. Nor does the wording of s. 43 of the Code convey that there are age limits insofar as the permissible age of the child victims (children being persons under the age of

241

Canadian Foundation for Children v Canada 2004 1 SCC 76 at para 131 (Supreme Court of Canada). 242 Canadian Foundation for Children v Canada 2004 1 SCC 76 at para 132 (Dissenting Opinion, Justice Arbour) (Supreme Court of Canada). 243 Canadian Foundation for Children v Canada 2004 1 SCC 76 at para 132 (Dissenting Opinion, Justice Arbour) at para 140 (Supreme Court of Canada).

3.4 Case 3: Canadian Foundation for Children, Youth and the Law v Attorney. . .

177

majority of 18 years). Nor does section 43 of the Code notify the public that there are supposedly restrictions as to the nature of what would be a constitutionally permitted (in the words of the s. 43 text “justified”) assault of a child. That is the vague words condoning force used by the designated category of “persons in authority” which “does not exceed what is reasonable under the circumstances” (for the purpose of “correction” of a child) provides no indicia of precisely what “does not exceed what is reasonable under the circumstances” means in practice.244 Furthermore Justice Arbour in her dissent detailed various assault of a child cases where s. 43 was applied inconsistently by the courts including those where the s. 43 defence succeeded (the defendant was acquitted) even though the case involved use of instruments in the corporal punishment of a child and/or blows to the head and/or resulted in serious mental and/or physical injury to the child etc.245 Justice Arbour pointed out, in addition, that the Majority’s “. . .restrictive interpretation can only be arrived at if dictated by constitutional imperatives” and that “Canadian courts have not thus far understood the concept of reasonable force to mean the “minor corrective force” advocated by the Chief Justice.”246 In attempting to “read down” s. 43 of the Criminal Code of Canada; narrowing its scope without finding the existing provision unconstitutional, as was here the case with the Majority’s tact, arguably the Majority engaged in judicial activism. In this regard Justice Arbour states: Nothing in the words of the statute, properly construed, suggests that Parliament intended that some conduct be excluded at the outset from the scope of s. 43’s protection. This is the law as we must take it in order to assess its constitutionality. To essentially rewrite it before validating its constitutionality is to hide the constitutional imperative (emphasis added).247

The judicial activism of the Supreme Court of Canada Majority in Canadian Foundation thus in part involved, on the respectful contention here, straying from accepted judicial interpretive methodology248 by (a) modifying the meaning of actual statutory text by “reading down” without first finding the provision unconstitutional; (b) ultimately substituting “judicial legislation” (interpretation) for the broad meaning of the actual statutory language and the legislative intent of Parliament249 without a declaration by the Court of the unconstitutionality of the statutory 244

Criminal Code, RSC 1985, c C-46, section 43. Canadian Foundation for Children v Canada 2004 1 SCC 76 at para 132 (Dissenting Opinion, Justice Arbour) at para 151–171 (Supreme Court of Canada). 246 Canadian Foundation for Children v Canada 2004 1 SCC 76 at para 132 (Dissenting Opinion, Justice Arbour) (Supreme Court of Canada). 247 Canadian Foundation for Children v Canada 2004 1 SCC 76 at para 139 (Dissenting Opinion, Justice Arbour) (Supreme Court of Canada). 248 Justice Arbour in her dissent states “Absent a finding of a constitutional violation by Parliament, the reading down of a statutory defence as is done by the Chief Justice amounts to, in my respectful opinion, an abandonment by the courts of their proper role in the criminal process.” Canadian Foundation for Children v Canada 2004 1 SCC 76 at para 138 (Dissenting Opinion, Justice Arbour) (Supreme Court of Canada). 249 For a discussion of various forms of judicial activism see Kmiec (2004), pp. 1442–1477. 245

178

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

provision at issue (this accomplished via the list of restrictions specified by the Majority on the scope of s. 43 supposedly rendering it constitutional)250 and (c) restricting the scope of a Criminal Code of Canada statutorily-defined defence when this is not the province of the Courts (the foregoing thus echoing SCC Justice Arbour’s dissenting view in Canadian Foundation). This ‘reading down’ strategy, furthermore, appeared to, at its base, involve interpretation that was results-driven with the goal of retaining s. 43 of the Criminal Code of Canada (CCC) by finding it constitutional. The text of s. 43 of the CCC remains the same post the Canadian Foundation case. Hence defendants in s. 43 cases still have, for the most part, much leeway given the still vague standard to be met in succeeding with the defence of ‘reasonable force in the circumstance’ for a ‘corrective purpose’ incorporated in s. 43 of the CCC. This author would have to respectfully disagree with the view of Anand251 that the Canadian Foundation case serves to highlight the blurring of the distinction between ‘judge-made’ versus ‘judge interpreted’ statutory law. This in that, on the analysis here, nothing in the Canadian Charter would allow for the SCC Majority’s interpretation in Canadian Foundation of the meaning of the s. 43 text to legitimately be, in part, that so-called reasonable corrective assault of a child over 2 but under 13 years of age, including corporal punishment, is consistent with democratic values. Hence, on the view here, the Majority in Canadian Foundation through their opinion on the scope of s. 43 of the Criminal Code of Canada clearly created ‘judge-made law’ that ultimately served to render, in the words of SCC Justice Binnie in Canadian Foundation, children in Canadian society to be “second hand citizens”.252 It is here contended that s. 43 of the Criminal Code of Canada in practice violates then also the substantive aspect of the principles of fundamental justice by constituting an affront to the human dignity of children. Section 43 in legalizing corporal punishment of the child, permits the degradation of the child’s inherent human dignity. The latter is evident when one considers the issue from a child-centered perspective as is required in assessing the impact of legislation on the human dignity

250

Note that Justice Arbour contrasts this with the role of the courts in determining the constitutional validity of criminal offences (as opposed to that of statutory defences to a criminal charge). In respect of offences she opined “. . .it is entirely appropriate for the courts to interpret the provisions that proscribe conduct in a manner that least restricts “the liberty of the subject”, consistent with the wording of the statute and the intent of Parliament. . . But such a technique cannot be employed to restrict the scope of statutory defences. . .” para 140 at pp. 144–145 Canadian Foundation for Children v Canada 2004 1 SCC 76 (Dissenting Opinion, Justice Arbour) (Supreme Court of Canada). 251 Anand (2006), pp. 1–12. 252 Canadian Foundation for Children v Canada 2004 1 SCC 76 at para 72 (Justice Arbour, Partial Dissent, Justice Binnie) (Supreme Court of Canada) Note that Justice Binnie held that s. 43 of the Criminal Code of Canada is constitutional insofar as parents acting as persons in authority under s. 43 are concerned (this based on the need for respect of family privacy rights) but not in his view, in respect of teachers (see for instance para 74–76).

3.4 Case 3: Canadian Foundation for Children, Youth and the Law v Attorney. . .

179

of the person whose constitutional rights are at issue.253 It is as if the Majority in Canadian Foundation254 have forgotten that all children have inherent human dignity including then those over age 2 years and under age 13 years255 whom the Majority held were properly subjected to assault per the criteria set out in s. 43 of the Criminal Code of Canada for the purpose of so-called “correction”. In this regard recall the words of Justice Cory who stated in Kindler v Canada: The fundamental importance of human dignity in Canadian society has been recognized in numerous cases. . .The Court must be guided by the values and principles essential in a free and democratic society which I believe embody, to name a few, respect for the inherent dignity of the human person. . .(emphasis added).256

Hence, on the view here, respect for the inherent human dignity of every person forms part and parcel of the substantive content of the s. 7 Charter principles of fundamental justice in Canadian law which serve to ground the right to security of the person. Thus any denial of an actual affront to the human dignity of an individual or group of individuals which is the result of legislated differential treatment erroneously held to be constitutional represents, on this author’s view, judicial activism gone awry. It is here respectfully contended that such a case is embodied in Canadian Foundation in violation of s. 7 of the Charter without demonstrable justification.257

3.4.2

The Canadian Charter s. 15 ‘Equality Under the Law’ and ‘Equal Benefit of the Law’ Issue in Canadian Foundation

Justice Arbour, one of the Supreme Court of Canada Dissenting Justices in Canadian Foundation notes that “Children remain the only group of citizens who are deprived of the protection of the criminal law in relation to the use of force.”258 Furthermore, the burden the Crown must assume in prosecuting an assault of a child case where the defendant has raised the s. 43 Criminal Code of Canada (CCC) defence has no parallel where an adult assaults another adult. This since assault for the purpose of the presumed needed “correction” of the victim’s behavior (as per, in the first instance, the perception of the perpetrator of the violence in the moment) has 253

See Gosselin v. Quebec (Attorney General), [2002] S.C.C. 84 at para 25, p. 44 (Supreme Court of Canada). 254 Canadian Foundation for Children v Canada 2004 1 SCC 76 (Supreme Court of Canada). 255 Canadian Foundation for Children v Canada 2004 1 SCC 76 at para 40, p. 105 Majority Opinion (Supreme Court of Canada). 256 Kindler v Canada 1991 2 S.C.R. 779 at p. 813 (Supreme Court of Canada). 257 Canadian Foundation for Children v Canada 2004 1 SCC 76. 258 Canadian Foundation for Children v Canada 2004 1 SCC 76 (Justice Arbour, Dissenting Opinion at para 173, p. 157) (Supreme Court of Canada).

180

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

no CCC analog where the assault victim is an adult. That is there is then no Criminal Code of Canada justification-based defence for assault of an adult victim for the purpose of “correction” of the behavior of that victim.259 Yet the Majority in Canadian Foundation held that “Section 43 does not discriminate contrary to s. 15 (1) of the Charter. . .It provides parents and teachers with the ability to carry out the reasonable education of the child without the threat of sanction by the criminal law (emphasis added).”260 That s. 43 defends against only “reasonable education” of the child is belied by the fact of (a) s. 43 cases resulting in acquittals involving a defendant with a wrong purpose (assault of a child not for the purpose of “correction”/“education of the child” and/or significant unreasonable violence by way of corporal punishment of a child by a person in authority (as defined in s. 43 CCC) (see, for instance, the cases cited in Justice Arbour’s Dissenting Opinion in Canadian Foundation)261 and the commentary of Dissenting Justice DesChamps262) and by the fact that (b) corporal punishment of a child has been found by social scientists not to be educational for the child (the child does not learn self-regulation from the experience but rather simply complies for a short period to avoid the physical punishment nor does the child internalize the reasons and values underlying the conduct the child is expected to exhibit as “good behavior”).263 It is furthermore not at all clear that the restrictions on the scope of s 43 imposed by the SCC Majority in Canadian Foundation are sufficient to preclude acquittals for undue force and/or force used for purposes other than the so-called reasonable correction/education of a

Note that the common law defences of use of ‘force in defence of self or another’ and ‘de minimis’ use of force would still be available (depending on the facts of the case) to defendants charged with assault of a child if s. 43 of the Criminal Code of Canada were struck from the Criminal Code of Canada as unconstitutional. These defences are of course available also to adults charged with assault of another adult. The ‘defence of self or another’ is not to be confused as a common law defence with the s. 43 reference to assault for the purpose of “correction” of a child. The latter concerns a purported educative element and the notion of the alleged proper “discipline” and rearing of the child (incorporated in the s. 43 defence reference to force used for the purpose of “correction”) which is separate and apart from the content of other potential defences that may or may not have been available on the facts of the case. Hence the Majority states in its opinion in Canadian Foundation why the s. 43 CCC defence purportedly does not violate the Charter equality guarantee: “While children need a safe environment, they also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society.” Canadian Foundation for Children v Canada 2004 1 SCC 76 at p. 78 (Supreme Court of Canada). 260 Canadian Foundation for Children v Canada 2004 1 SCC 76 at p. 78 (Supreme Court of Canada). 261 Canadian Foundation for Children v Canada 2004 1 SCC 76 at para 132 (Dissenting Opinion, Justice Arbour) at para 151–171 (Supreme Court of Canada). 262 Canadian Foundation for Children v Canada 2004 1 SCC 76 (Dissenting Opinion, Justice DesChamps) (Supreme Court of Canada) at p. 82 “The ordinary and contextual meaning of s. 43 cannot bear the restricted interpretation proposed by the majority. Section 43 applies to and justifies an extensive range of conduct, including serious uses of force against children.” 263 Children Youth and the Law v the AG of Canada 2002 ON CA, at para 8, items 5 and 7 (Ontario Court of Appeal). 259

3.4 Case 3: Canadian Foundation for Children, Youth and the Law v Attorney. . .

181

child (assuming that there is such a phenomenon as ‘educational corporal punishment’ which social scientists dispute). To further complicate matters the s. 43 CCC vague text remains sending confusing messages to the public as to what is and is not permissible in the so-called educative discipline of children. The SCC Majority in Canadian Foundation further held that: A reasonable person acting on behalf of a child, apprised of the harms of criminalization that s. 43 avoids, the presence of other governmental initiatives to reduce the use of corporal punishment, and the fact that abusive and harmful conduct is still prohibited by the criminal law, would not conclude that the child’s dignity has been offended in the manner contemplated by s. 15(1). . .The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families — a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process (emphasis added)”264

However, as Justice Arbour, a Supreme Court of Canada (SCC) Dissenting Justice in Canadian Foundation, points out and contrary to the SCC Chief Justice’s interpretation (writing for the Majority in Canadian Foundation), s. 43 of the Criminal Code of Canada (CCC) does not require that the force applied to the child in an effort of so-called “correction” be “minimal and insignificant.”265 Rather the s. 43 case law reveals the significant mental and/or physical injury of children that is potentially shielded by s. 43.266 For the safety of the child criminalization of such cases, which often characterize s. 43 cases, is necessary. This would not, as mentioned, eliminate a de minimis force defence where such was appropriate in a case that happened to slip through the cracks and be inappropriately criminalized. Further note that the purpose of s. 43 of the Criminal Code of Canada (CCC), as the text of the statutory provision itself states and as Justice Binnie points out267 is “The protection of persons in authority.” Section 43 of the CCC then is not directed to protecting children who often, in practice, as the s. 43 case law reveals, cannot avail themselves of the benefits of the criminal law in the context of a s. 43 criminal case where they have been the victims of significant corporal punishment or other form of substantial use of force. Hence, on the respectful view here, it is only through judicial activism of the Supreme Court of Canada Majority in Canadian Foundation via their “reading down” of the text of s. 43 of the Criminal Code of Canada such that the force applied to the child (in an effort of so-called “correction”) is required to be

264

Canadian Foundation for Children v Canada 2004 1 SCC 76 at p. 78 (Supreme Court of Canada). 265 Canadian Foundation for Children v Canada 2004 1 SCC 76 (Dissenting Opinion, Justice Arbour) para 141 at p. 145 (Supreme Court of Canada). 266 Canadian Foundation for Children v Canada 2004 1 SCC 76 at para 132 (Dissenting Opinion, Justice Arbour) at para 151–171 (Supreme Court of Canada). 267 Canadian Foundation for Children v Canada 2004 1 SCC 76 at p. 79 (Dissenting Opinion, Justice Binnie) (Supreme Court of Canada) “Section 43 protects parents and teachers, not children.”

182

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

“minimal” and “insignificant”268 that (a) the Majority can arrive at their premise and conclusion (on the view here erroneous) that (a) the human dignity of the child is supposedly not undermined by the s. 43 CCC justification defence and that (b) on balance; the risks of the Majority-hypothesized inappropriate criminalization and separation of families (arising through the elimination of the s. 43 defence) would outweigh the benefits for affected children. It is only by injecting their own constraints on the scope of the s. 43 defence (a) inconsistent with the actual text and arguably its’ meaning and legislative intent and also, (b) according to Justice Arbour, contrary to accepted judicial methodology in Charter cases concerning statutory defences under the CCC; that the SCC Majority was able to sidestep confronting the indubitable affront to children’s human dignity and the risks to their safety that the s. 43 justification defence represents. Justice Arbour comments thus on the matter: In the end, I will conclude, not unlike the Chief Justice, that the use of corrective force by parents and teachers against children under their care is only permitted when the force is minimal and insignificant. I so conclude not because this is what the Code currently provides but because it is what the Constitution requires (emphasis added)269

The provisos incorporated into the Supreme Court of Canada Majority interpretation of CCC s 43 restricting the nature, manner of the force used and specifying against children of which age use of such so-called reasonable corrective force is permissible etc.270 does not, in practice, help at all to better ensure the safety of children. This in that corporal punishment of a child may in one incident start as “minor corrective force of a transitory and trifling nature” which is not criminal and would be covered under the s. 43 defence (as the only level of force the SCC Majority in Canadian Foundation contemplates as covered by s. 43)271 or be covered under a de minimis defence. However, for some, this corporal punishment can gradually escalate in other incidents (involving the same child and same ‘personin-authority’) into significant abuse when the lesser force was found not to be effective in achieving the child’s compliance or for some other reason. The CCC s. 43 provision in communicating to the public that persons-in-authority are justified in using reasonable corrective force in the circumstance against a child (including corporal punishment where ‘reasonable force in the circumstance’ is still a vague standard) thus increases the significant risk of harm for some children by reinforcing a norm of violence against children. Justice Binnie makes the point, in addition, that such ‘reading in’ regarding the CCC s. 43 of so many restrictions including “multiple sub-classifications of children (according to age)” who may or may not be assaulted

268

Canadian Foundation for Children v Canada 2004 1 SCC 76 Justice Arbour Dissenting Opinion at p. 145 (Supreme Court of Canada). 269 Canadian Foundation for Children v Canada 2004 1 SCC 76 Justice Arbour Dissenting Opinion at p. 145 (Supreme Court of Canada). 270 Canadian Foundation for Children v Canada 2004 1 SCC 76 Majority Opinion at p. 105 (Supreme Court of Canada). 271 Canadian Foundation for Children v Canada 2004 1 SCC 76 Majority Opinion at p. 105 (Supreme Court of Canada).

3.4 Case 3: Canadian Foundation for Children, Youth and the Law v Attorney. . .

183

reveals that “a ‘one size fits all’ approach to the “needs, capacities and circumstances” of children [as reflected in the text of CCC s. 43] does not fit reality” and for that reason also the current author holds that s. 43 violates s. 15 of the Charter.272 Without the denial by the Supreme Court of Canada Majority in Canadian Foundation that CCC s. 43 undermines children’s own sense of worth, their perceived worth by others in Canadian society and their human dignity; the SCC Majority’s finding in Canadian Foundation that CCC s. 43 does not infringe the s. 15 Charter guarantee of equal benefit of the law would have been rendered implausible on its face. This as the s. 15 Charter guarantee is directed to protecting the human dignity of every person in Canada as is discussed in various SCC case law precedent and any infringement must be demonstrably justified under s. 1 of the Charter as acceptable in a free and democratic society.273 Essentially the Majority in Canadian Foundation ruled that the application of so-called reasonable corrective force to children-including corporal punishment-meets their needs and is therefore not an affront to their human dignity.274 There are several problems with the tact used to reach this conclusion and with the conclusion itself. First there is a disregard of the children’s perspective as to whether the use of corrective force, including corporal punishment, offends their human dignity (the opinions of child (children) were not considered by the court but rather surmised based on a hypothetical adult standing in the stead of the child speaking for that child).275 Ignoring the victim’s perspective may lead to arbitrary and erroneous conclusions about when a legislative provision does or does not offend the human dignity of a victim group. Second the ‘needs of children’ analysis should have been carried out as part of a s. 1 Charter justification analysis after finding a breach of the s. 15 equality guarantee: The majority in this case largely dismisses the s. 15(1) challenge because of the alleged correspondence between the actual needs and circumstances of children and the diminished protection they enjoy under s. 43. . . Here, however, the “correspondence” factor is used as a sort of Trojan horse to bring into s. 15(1) matters that are more properly regarded as “reasonable limits . . . demonstrably justified in a free and democratic society” (s. 1). Section 43 protects parents and teachers, not children. The justification for their immunity should be dealt with under s. 1.276

It is here contended that CCC s. 43 should not have survived a s. 1 justification Charter analysis regarding a breach of the s. 15 Charter equality guarantee had the breach been found by the SCC Majority in Canadian Foundation and a s. 1 Charter

272

Canadian Foundation for Children v Canada 2004 1 SCC 76 Justice Binnie Dissenting Opinion at p. 131 (Supreme Court of Canada). 273 Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at para. 51 (Supreme Court of Canada). 274 Canadian Foundation for Children v Canada 2004 1 SCC 76 Majority Opinion at p. 78 (Supreme Court of Canada). 275 Canadian Foundation for Children v Canada 2004 1 SCC 76 at p. 79 (Justice Binnie Dissenting Opinion) (Supreme Court of Canada). 276 Canadian Foundation for Children v Canada 2004 1 SCC 76 at p. 79 (Justice Binnie Dissenting Opinion) (Supreme Court of Canada).

184

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

test applied. This as the harm done by s. 43 of the CCC to children was not necessary nor proportional (i.e. given that common law defenses of de minimis and necessity were already available). Further the profound affront to children’s human dignity resulting due to CCC s. 43 and its justification of assault of a child did not constitute minimal impairment of a Charter right and, in fact, s. 43 unjustifiably increased the security of the person risks for children in Canada. Third as Justice DesChamps points out “Far from corresponding to the actual needs and circumstances of children, s. 43 compounds the pre-existing disadvantage of children as a vulnerable and often-powerless group whose access to legal redress is already restricted.”277 Further, with respect, but for the arguably legally impermissible ‘reading down’ of a statutory CCC defense by the SCC Majority in Canadian Foundation; the upholding of a finding of the purported constitutionality of s. 43 of the CCC would have been precluded. In addition it should be noted that the undercutting, by way of the SCC Majority’s interpretation in Canadian Foundation of CCC s. 43, of the constitutional right of children over 2 and under 13 years also to enjoyment of their inherent human dignity278 (through security of the person and equal benefit of the law) cannot be rationalized on the ground that this deprivation of fundamental human rights has an age-related expiration date. Such an erroneous perspective, with respect, is reminiscent of the view of the Supreme Court of Canada Majority in Sauvé.279 It will be recalled that in Sauvé the SCC Majority held that children’s right to the vote could be barred through electoral statutory law as the deprivation was time-limited and therefore presumed by the Sauvé SCC Majority not to be an expression of the children’s lack of worth but rather simply a legislated ‘regulatory modality’ (essentially a purported reasonable limit inherent to the constitutional right to the vote itself). The aforementioned SCC Majority reasoning in Canadian Foundation re CCC s. 43 and its alleged constitutionality is, on the view here, with respect, tantamount to holding absurdly that there is a purportedly inherent reasonable limit on the Charter right to dignity for persons in Canada applicable to individuals between the ages of 2 years and under 13 years old. On the view here the aforementioned SCC Majority’s rationales for upholding CCC s. 43 as constitutional speak rather to the societal power structure taken as inviolable and not to what the Charter demands in terms of procedural or substantive justice for children in Canada.

277

Canadian Foundation for Children v Canada 2004 1 SCC 76 (Justice DesChamps Dissenting Opinion at p. 183) (Supreme Court of Canada). 278 Canadian Foundation for Children v Canada 2004 1 SCC 76 Majority Opinion at p. 105 (Supreme Court of Canada). 279 Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 (Supreme Court of Canada).

3.4 Case 3: Canadian Foundation for Children, Youth and the Law v Attorney. . .

3.4.3

185

The s. 12 Charter Protection Against Cruel and Unusual Treatment or Punishment Issue in Canadian Foundation

The complainant Canadian Foundation280 sought, as mentioned, among other things a declaration that the s. 43 Criminal Code of Canada (CCC) defense for assault of a child violated s. 12 of the Charter. In order to establish a violation of s. 12 of the Canadian Charter (the section that guarantees “everyone” protection against cruel and unusual treatment or punishment) the complainant must demonstrate two things; first that that the treatment or punishment at issue was attributable to the State (i.e. via its agents or delegates) and second that the treatment or punishment was cruel and unusual. The SCC Majority in Canadian Foundation dispensed in short order with but very few words with the Canadian Foundation for Children’s petition for a declaration regarding the alleged breach of the non-derogable s. 12 Charter guarantee (an alleged breach arising from the incorporation in the Criminal Code of Canada (CCC) of the s. 43 defense for assault of a child).281 However, on closer examination, it appears, on the respectful view here, that the SCC Majority engaged in ‘selective textualism’ (a form of judicial activism), as will be discussed, to help direct them to the result they assumed was inevitable on the s. 12 Charter matter. That result being then that s. 12 of the Charter was purportedly not triggered by the implications flowing from the statutory CCC s. 43 justification defence to assault of a child. The SCC Majority in Canadian Foundation succinctly stated their position on the s. 12 Charter issue as follows: The conduct permitted by s. 43 does not involve “cruel and unusual” treatment or punishment by the state and therefore does not offend s. 12 of the Charter. Section 43 permits only corrective force that is reasonable. Conduct cannot be at once both reasonable and an outrage to standards of decency.282

The SCC Majority in Canadian Foundation noted that the s. 43 defence “exculpates” only parents and teachers for the use of reasonable “corrective force” against children in their charge.283 The Majority reasoned (erroneously on the view here as will be explained) that “corrective force284 by parents in the family setting is not

280

Canadian Foundation for Children v Canada 2004 1 SCC 76 (Supreme Court of Canada). The right to be protected from cruel and unusual punishment or treatment is a non-derogable right under international human rights law. Hence this right protected under s. 12 of the Canadian Charter, on the view here, cannot be constitutionally breached under any circumstances nor can any breach be justified under s. 1 of the Charter in Canada’s free and democratic society. 282 Canadian Foundation for Children v Canada 2004 1 SCC 76 Summary, Majority Opinion at p. 78 (Supreme Court of Canada). 283 Canadian Foundation for Children v Canada 2004 1 SCC 76 Summary, Majority Opinion para 48 at p. 108 (Supreme Court of Canada). 284 Recall that so-called corrective force under CCC s. 43 can include corporal punishment of a child. 281

186

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

treatment by the state.”285 While conceding that “teachers may be employed by the State”; the Majority concluded they did not have to consider whether corrective force applied to a child by a teacher constitutes “treatment by the state.”286 This was not a question it was necessary to answer in the view of the Majority “. . .since the conduct permitted by s. 43 does not in any event rise to the level of being “cruel and unusual”, or being “so excessive as to outrage standards of decency. . . Section 43 permits only corrective force that is reasonable. Conduct cannot be at once both reasonable and an outrage to standards of decency.”287 Let us then unpack the SCC Majority’s conceptualization of s. 43 as constitutional in respect of the s. 12 Charter prohibition against cruel and unusual punishment or treatment. On the respectful view of the current author the SCC Majority in Canadian Foundation engages in selective textualism. Strikingly the Majority completely ignores the heading which is part of the text of s. 43 of the Criminal Code of Canada namely “PROTECTION OF A PERSON IN AUTHORITY” (which s. 43 text defines as individuals falling into the following categories: “schoolteacher, parent or person standing in the place of a parent”) and hence discounts the implications.288 As the current author has explicated elsewhere; the Supreme Court of Canada in various of its cases has set out the legal meaning of the term “person in authority” in Canadian law as: “a person allied with the State” (R v Hodgson, [1998] 2 SCR 449, para 35 at p. 474); “‘acting in concert with. . . or as. . . agent’ of the State” (R v Hodgson, [1998] 2 SCR 449; paragraph 47, at p. 481); an “actual person in authority” being an “instrumentality’ of the state” (R v Hodgson [1998] 2 SCR 449, Summary, Majority Opinion at p. 454).289 This author went on to clarify, based on Supreme Court of Canada discussion of the term ‘Persons in Authority’, that: “While parents, their delegates and teachers commonly wield authority over children in their charge, this is not what qualifies them as actual ‘persons-in-authority’ in the sense of that legal term as used in section 43 of the Code.”290 As the Hodgson opinion supra discusses: “The important factor to note. . . is that there is no catalogue of persons, beyond a peace officer or prison guard, who are automatically considered a person in authority solely by virtue of their status. A parent, doctor, teacher or employer all may be found to be a person in authority if the circumstances warrant, but their status, or the mere fact that they may wield some personal authority . . . is not sufficient to establish them as persons in

285

Canadian Foundation for Children v Canada 2004 1 SCC 76 Summary, Majority Opinion para 48 at p. 108 (Supreme Court of Canada). 286 Canadian Foundation for Children v Canada 2004 1 SCC 76 Summary, Majority Opinion para 48 at p. 108 (Supreme Court of Canada). 287 Canadian Foundation for Children v Canada 2004 1 SCC 76 Summary, Majority Opinion para 49 at p. 108 (Supreme Court of Canada). 288 Criminal Code, RSC 1985, c C-46, section 43 (Criminal Code of Canada). 289 See Grover (2017). 290 Grover (2017), p. 394.

3.4 Case 3: Canadian Foundation for Children, Youth and the Law v Attorney. . .

187

authority (Hodgson supra at paragraph 36, p. 454).”291 “Rather it is their close connection to or their alliance with the State for a certain purpose that renders them actual ‘persons-in-authority’”.292 Thus in the context of the s. 43 Criminal Code of Canada defence of assault of a child for the purpose of alleged reasonable correction “the parent, parental delegate or teacher acts as an agent of the State in applying force to a child. . . where that ‘person-in-authority’ is protected from successful prosecution by section 43 of the Code.”293 It is the case then that when a private entity or individual acts as a ‘person- in-authority’ under colour of law, the conduct so authorized, which would otherwise be private activity, now can attract Charter scrutiny.294 As stated in Eldridge “[T]he Charter applies to private entities in so far as they act in furtherance of a specific governmental program or policy. In these circumstances, while it is a private actor that actually implements the program, it is government that retains responsibility for it”295 (Eldridge, paragraph 42).The first prong for the test of a potential violation of s. 12 of the Charter is thus, on this analysis, met. The contested treatment at issue (namely the use of force for the alleged reasonable correction/education of the child) is treatment by the State296 albeit carried out by delegates of the State (the s. 43 CCC designated persons-in-authority) “justified”, according to the text of s. 43 of the CCC, in assaulting a child within the parameters set out in s. 43. Let us turn now to the second part of the test for a s. 12 Charter violation and that concerns whether the State treatment or punishment rose to the level of cruel and unusual treatment or punishment. The Majority in Canadian Foundation on this issue focused selectively on that portion of the text of s. 43 that referenced force applied by a s. 43 designated ‘person- in-authority’ for the purpose of “correction” of a child being supposedly “justified”; “if the force does not exceed what is reasonable under the circumstances”(emphasis added).297 The Majority on the one hand appears to contend that s. 43 explicitly authorizes only “reasonable” corrective force but, on the other, recognized the need to “read down” s. 43 as here discussed previously. That “reading down” involved the SCC Majority articulating restrictions, for instance, on the manner of delivery of the force (i.e. no instruments could be used), the nature of the assault on the child (i.e. blows to the head were impermissible) and specification of the age of the children who could not be lawfully assaulted

291

Hodgson Cited in Grover (2017), p. 394. Grover (2017), p. 394. 293 Grover (2017), p. 39. 294 See Eldridge v British Columbia Attorney-General [1997] 3 SCR 624 para 44 (Supreme Court of Canada). 295 Eldridge v British Columbia Attorney-General [1997] 3 SCR 624 para 42 (Supreme Court of Canada). 296 Note that the reference here is to State ‘treatment’ rather than ‘punishment’ in that punishment by the State is generally considered to refer to the judicial criminal sentencing context. Section 12 of the Charter, however, also concerns ‘treatment’ by the State which can encompass contexts outside of the judicial criminal sentencing context (see i.e. Rodriquez v British Columbia (Attorney General) 1993, 3 SCR 519 at pp. 610–611 (Supreme Court of Canada). 297 Criminal Code, RSC 1985, c C-46, section 43 (Criminal Code of Canada). 292

188

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

within the parameters of s. 43 (children under age 2 years and children in their teens were excluded from those subject to so-called ‘reasonable corrective force’ (applied by a s. 43 person-in-authority) that could be defended under s. 43 of the CCC). None of these restrictions are stipulated in the actual s. 43 text and, as Justice Arbour in her Dissenting Opinion notes, the case law in which the s. 43 defence succeeded involves many cases where the assault on the child did not at all conform to the restrictions set out by the Majority in Canadian Foundation. Hence in practice s. 43 is not serving to educate or notify the public that cruel and unusual treatment of a child by way of, for instance, significant corporal punishment is not justified or authorized in Canadian law. Further the s. 43 CCC provision is not consistently serving to bring to criminal account the person-in-authority perpetrators of such cruel and unusual treatment of children. Hence reliance on the s. 43 CCC reference to ‘reasonable’ force in the circumstances is not an adequate shield against assaults that constitute cruel and unusual treatment of children. The SCC Majority in Canadian Foundation themselves acknowledged, furthermore, that there may be borderline cases where the assault of the child arguably may have risen to the level of cruel and unusual treatment. However the Majority took the view that this was not a fatal blow to the constitutionality of s. 43 in respect of s. 12 of the Charter. The Majority relies on the words of Gonthier J. in this regard stating that “It is inherent to our legal system that some conduct will fall along the boundaries of the area of risk. . .Guidance, not direction of conduct is a more realistic objective.”298 However, as the current author has argued elsewhere,299 the fact that borderline cases will at times, in practice, inevitably occur300 in the s. 43 criminal case context is a fatal flaw to the notion that s. 43 of the CCC does not violate s. 12 of the Charter since that Charter guarantee reflects a non-derogable jus cogens right. Put differently, in a free and democratic society such a serious affront to human dignity is not permissible in law as it erodes the very foundation of the democratic rule of law. Hence the second prong of the test for a s. 12 Charter violation is also met in that s. 43 of the CCC does allow for potential cruel and unusual treatment of a child through an assault that rises to that level. It is then, with respect, according to the current author’s analysis, in part through reliance on judicial activism involving legally insupportable ‘selective textualism’301 that the Majority in Canadian Foundation was led to contend

298

R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606 at p. 639 (Supreme Court of Canada). 299 Grover (2017), p. 394. 300 This despite the SCC Majority’s ‘reading down’ of s. 43 of the CCC imposing selected restrictions on the applicability of the s. 43 justification defence for assault of a child. 301 Referring here to (a) the Majority’s over-reliance (as the s. 43 case law illustrates) on the s. 43 text regarding “force reasonable under the circumstances” as in effect assurance that generally defendants who used ‘unreasonable’ force against a child would not be acquitted using a s. 43 CCC justification defence something that is contradicted by the s. 43 case law and the possibility of so-called ‘borderline’ s. 43 cases (b) the Majority’s ignoring the text “Persons in Authority” in s. 43 of the Criminal Code of Canada and not thus considering the implications of that portion of the text for their analysis as to whether s. 43 of the CCC violates s. 12 of the Charter.

References

189

(erroneously on the view here) that s. 43 does not involve treatment by the State or allow for cruel and unusual treatment by the State. The Canadian Foundation Supreme Court of Canada Majority ruling then, on the respectful analysis here, incorporates various forms of judicial activism including selective textualism, judicial legislation and results-driven analysis all of which sadly, in effect, served to undermine certain of the fundamental human rights for children in Canada guaranteed by the Canadian Charter.

References Literature Anand S (2006) The truth about Canadian judicial activism. Constitutional Forum 15(2):1–12 Grover SC (2011) Young people’s human rights and the politics of voting age. IUS GENTIUM: Comparative perspectives on law and justice series. Springer, London Grover S (2017) Rewritten judgment: dissenting opinion, Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) 2004 SCC 4. In: Hollingsworth K, Stalford H, Gilmore S (eds) Rewriting children’s rights judgments: from academic vision to new practice. Hart Grover S (2018a) Human dignity as the foundation for the democratic rule of law: J.C. Hernandez v J. Mesa Jr. 582 U. S. ____ (2017) as an illustrative case. In: Ziccardi Capaldo G (ed) Global community: yearbook of international law and jurisprudence. Oxford University Press, Oxford, pp 245–261 Grover S (2018b) Rights education and children’s collective self-advocacy through public interest litigation. Hum Rights Educ Rev 1(1):64–83 Kmiec KD (2004) The origin and current meanings of judicial activism. Calif Law Rev 92 (5):1442–1477 Manfredi C (2001) Judicial power and the charter: Canada and the paradox of liberal constitutionalism, 2nd edn. Oxford University Press, Don Mills, p 22 Morton FL, Knopff R (2000) The Charter Revolution and the Court Party. Broadview Press, Toronto Steinman AN (2013) To say what the law is: rules, results, and the dangers of inferential stare decisis. Virginia Law Rev 99(8):1737–1810

Materials Asoulin, R Watch out 2020:Young voters are on the rise (Christian Science Monitor online) (15 November, 2018) Accessed 4 September, 2019. https://www.csmonitor.com/USA/Poli tics/2018/1115/Watch-out-2020-Young-voters-are-on-the-rise Astor, M New York Times (19 May, 2019) 16-year-olds want a vote, Fifty years ago so did 18-year-olds https://www.nytimes.com/2019/05/19/us/politics/voting-age.html Accessed 3 September, 2019 Canadian Charter of Rights and Freedoms (1982). https://laws-lois.justice.gc.ca/eng/const/page15.html (Accessed 6 July, 2019) Canada Elections Act, S.C. 2000, c. 9, ss. 3, 6, 8, 11, 127, 191(d), 220, 222, 223(1)(e) and (f), 226 (f), Part 11

190

3 Judicial Activism in Selected Cases Decided by the Supreme Court of Canada

Convention on the Rights of the Child (1989) entered into force 2 September, 1990 https://www. ohchr.org/en/professionalinterest/pages/crc.aspx Accessed 11 July, 2019 Criminal Code, RSC 1985, c C-46, section 43 (Criminal Code of Canada) Elections Canada Estimation of voter turnout by age group and gender at the 2015 general election https://www.elections.ca/content.aspx?section¼res&dir¼rec/part/estim/42ge&document¼p1& lang¼e Accessed 16 July, 2019 Environment Jeunesse v Canada (Youth v Canada). https://enjeu.qc.ca/justice-eng/ Accessed 11 July, 2019 Globe and Mail Supreme Court rejects challenge on voting age (published 6 January 2005, updated 21 April, 2018) https://www.theglobeandmail.com/news/national/supreme-court-rejects-chal lenge-on-voting-age/article1112704/ Accessed 13 July, 2019 Harris, Kathleen CBC News Elections chief says lowering voting age to 16 is an idea ‘worth considering’ (posted 19 March, 2018) https://www.cbc.ca/news/politics/chief-electoral-officervoting-age-16-1.4579051 Accessed 20 July, 2019 Peritz, Ingrid Globe and Mail (Published 6 June, 2019) Federal lawyers oppose lawsuit that seeks to hold Ottawa accountable for its handling of climate change https://www.theglobeandmail. com/canada/article-federal-lawyers-oppose-lawsuit-that-seeks-to-hold-ottawa-accountable/ Accessed 11 July, 2019

Cases Andrews v, Law Society of British Columbia 1989 1 SCR 143 (Supreme Court of Canada) Canadian Foundation for Children, Youth and the Law v Attorney General (Canada) 2004 1 SCC 76 [Indexed as Canadian Foundation for Children v Canada 2004 1 SCC 76] (Supreme Court of Canada) Children Youth and the Law v the AG of Canada [2002] ON CA (Ontario Court of Appeal) Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 (Supreme Court of Canada) Environment Jeunesse v Canada (Youth v Canada) class action authorization (Superior Court of Quebec) Decided 19 July, 2019 Available for down load at http://climatecasechart.com/non-uscase/environnement-jeunesse-v-canadian-government/ See also http://blogs2.law.columbia. edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/ 20190711_500-06_decision-2.pdf Fitzgerald (Next Friend) v Alberta (2002) A.J. No. 1544, 2002 ABQB1086 (Alta. Q.B. Lefsrud J) (Court of Queen’s Bench of Alberta) Fitzgerald (Next Friend) v Alberta (2004) A.J. No. 570, 2004 ABCA184 (Alta.CA Picard and Costigan JJ and Sirrs J) (Court of Appeal of Alberta) Frank v Canada [Gillian Frank and Jamie Duong v Attorney General of Canada] 2019 SCC 1 Decided 11 January, 2019 (Supreme Court of Canada) Gamble v the United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (United States Supreme Court) Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002a SCC 84 (Supreme Court of Canada) Kindler v Canada 1991 2 S.C.R. 779 (Supreme Court of Canada) Law v Canada (Minister of Employment and Immigration) 1999 1 SCR 497 (Supreme Court of Canada) Ogg-Moss v. The Queen, [1984] 2 S.C.R. 173 (Supreme Court of Canada) R v Hodgson [1998] 2 SCR 449 (Supreme Court of Canada) R v Peterson, [1995] 7395 On SC (Ontario Superior Court) Sauvé v. Canada (Chief Electoral Officer), [2002b] 3 S.C.R. 519 (Supreme Court of Canada) Vriend v Alberta [1998] 1 S.C.R. 493 (Supreme Court of Canada)

Chapter 4

Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of Human Rights

4.1

Introduction

The issue of the European Convention of Rights and Freedoms (hereafter referred to also as the ‘European Convention’ or the ‘Convention’) as a “living instrument” is as controversial as is the issue of whether national constitutions are to be considered as ‘living instruments’ such that their guarantees are interpreted in light of new understandings and evolving social and legal norms.1 Furthermore “. . .just like many constitutional courts, international human rights courts have to take a stand on how far, if at all, the meaning of the legal rights individuals are entitled to claim before them, evolves over time.”2 Letsas characterizes the ‘living instrument doctrine’, as applied by the European Court of Human Rights (ECtHR), as reflected in the following: (a) the Court’s (ECtHR’s) main focus on “present day standards in interpreting the Convention”; (b) those “present day standards” playing a major role in guiding judicial interpretation of the Convention and being considered by the Court as “common or shared” amongst the State Parties to the Convention who have accepted the jurisdiction of the Court; and (c) the Court’s declining to place “decisive importance” on what the respondent State holds to be the acceptable standard of conduct by that State in the particular circumstances of the case at hand.3 In this chapter we will consider a few selected cases of the European Court of Human Rights (ECtHR) and the role, if any, in those cases of the ‘living instrument doctrine’. We will examine whether (a) the ‘living instrument doctrine’ in selected 1 Ita, Rachel Workshop on the ECtHR (Tampere University) The Interpretation of the ECHR as a Living Instrument: Demise of the Margin of Appreciation Doctrine? https://blogs.uta.fi/ ecthrworkshop/2015/12/07/rachaelita/#_edn4: “The interpretation of the European Convention on Human Rights (‘the Convention’) as a ‘living instrument’ by the European Court of Human Rights (‘the Court’) means that the standards of the Convention are not to be regarded as static, rather they should be reflective of social change.” 2 Letsas (2013), p. 107. 3 Letsas (2013), p. 107.

© Springer Nature Switzerland AG 2020 S. C. Grover, Judicial Activism and the Democratic Rule of Law, https://doi.org/10.1007/978-3-030-35085-7_4

191

192

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

cases opened the way to unacceptable ‘judicial activism’ that allegedly distorted the meaning of the European Convention and the intent of its framers in those particular cases or (b) whether, to the contrary, the doctrine led to judicial activism that allowed the ECtHR to properly restrain itself from granting the State too wide a margin of appreciation (deference) in interpreting the European Convention such that justice would not have been done on the facts and the law in the particular case. The role of judicial activism in international law is highly relevant considering the role of international courts in the framing and evolution of international law: . . .international tribunals play a tremendous role in shaping the structure and content of international law. Numerous areas of international law such as the . . .law of human rights . . .have been significantly influenced by the case law developed by various international tribunals. . . international tribunals can be very creative and capable of extending considerably the scope and reach of their jurisdiction and the rules they are entrusted to interpret. . . this understandably comes at the price of the limitation of other actors’ discretion. . .4

Interestingly Em. Prof. Dr. Baron Marc Bossuyt, who had for a lengthy period been a judge on the Belgian Constitutional Court and is its President Emeritus, contends that one of the risks of judicial activism is that it leads to the creation of new positive State obligations.5 Judge Bossuyt points out that traditionally “civil rights and fundamental freedoms entail only negative obligations for the State.” For instance the State is prohibited from denying access to certain rights and freedoms based on discrimination related to a devaluing of the person and group at issue. Judge Bossuyt maintains that “Only a few provisions explicitly impose positive obligations on the States parties.”6 In considering the cases that follow on civil and political rights, the respectful argument here advanced, contrary to Judge Bossuyt’s view, will be that where the European Court of Human Rights did engage in judicial activism to affirm certain ‘positive obligations’ on the State in fact the Court was not going beyond the law (the European Convention). Rather the Court was ensuring that its’ rulings have practical effect in promoting democratic principles (values) and practice. It is here suggested that positive State obligations are inherent in the scope of the meaning properly assigned to the European Convention rights and freedoms guarantees as will be illustrated here through the discussion of selected cases.7 The affirmation of such positive State obligations by the Court is, it is here suggested, the logical

4

Zarbiyev (2012), p. 248. Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights http://archive.openeurope.org.uk/Content/Documents/ speechmarcbossuytopeneuropesept2013.pdf. 6 Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights http://archive.openeurope.org.uk/Content/Documents/ speechmarcbossuytopeneuropesept2013.pdf. 7 The current author’s view then, with respect, is in opposition to that of, for instance, Judge Wold who holds that “[i]mposing a negative obligation upon the State . . .has a full meaning.” Judge Wold cited in Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights supra at p. 2. 5

4.1 Introduction

193

outcome of the Court’s (ECtHR’s) recognition of the “. . .crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory.”8 For instance, on the current author’s respectful view, the failure of the State to ensure that certain positive State obligations are met itself constitutes a violation of the rights or freedoms at issue in the case. For instance, the failure to ensure that everyone in the State has the means for at least a very basic decent standard of living is a reneging, for whatever reason (i.e. lack of political will, lack of resources etc.) on a State positive obligation that may result in a violation of the prohibition against inhumane and degrading treatment (i.e. where, for instance, the persons affected become homeless and their health is seriously compromised). To continue with the example; to put the obligation of the State in regards to Convention Article 39 essentially as one of passivity—to not take certain active steps to inflict degradation, inhumanity and torture—is, on the view here, to largely allow the State to sidestep its responsibility to protect and preserve the human right articulated in European Convention Article 3. When the Court takes this interpretive approach, in effect treating the rights and freedoms set out in the Convention as mere admonitions to the State as to what not to do; the Court (a) essentially lowers the bar unacceptably for compliance with the Convention and (b) shows the State great and misguided deference such that the State is permitted to expend excessively little good conscience, capital and legislative energy in vigorously implementing Convention guarantees. One criticism of the notion that the State has also, under the Convention, positive obligations is that such an interpretation allegedly introduces inappropriate ‘relativism’ into the rights calculus. This in that different States have different levels of community and other resources available to comply with a positive obligation that the ECtHR might rule was owed the complainant(s) when in fact Convention rights in this view are absolute rights.10 The current author contests, with respect, the notion that affirming the positive obligations of States under the European Convention (or under domestic constitutions for that matter) introduces relativism in the scope of the Convention rights and freedom guarantees themselves. On the view here rather the scope of the rights and freedoms guarantees remain the same and it is for that reason that typically the State is expected to make progressive improvements in meeting the positive obligations that the Convention guarantees incorporate

8

Christine Goodwin v. the United Kingdom, 11 July 2002, para 74. European Convention on Human Rights (The Convention is presented as amended by the provisions of Protocol No. 14 (CETS no. 194) as from its entry into force on 1 June 2010) (Article 3 “Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment”). https://www.echr.coe.int/Documents/Convention_ENG.pdf. 10 Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights at p. 2. http://archive.openeurope.org.uk/Content/Documents/ speechmarcbossuytopeneuropesept2013.pdf “According to judge Wold, it would be embarking on ‘a very dangerous road’ to admit that the regulation of human rights ‘may vary in time and place according to the needs and resources of the community. . .the human rights granted are absolute rights.’” 9

194

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

(i.e. better implementation of Convention rights is expected as the State, for instance, develops a more effective legal system or economic base or improves in whatever area is serving to hinder the State in ensuring to its people the complete realization of their Convention rights). Indeed one can reasonably consider that the European Social Charter (revised, 1996)11 is a vehicle agreed to by the State parties to it for making better progress in implementing the civil, political, economic, social and cultural rights articulated therein with some specificity and also grounded in the broad rights guarantees of the European Convention. It seems to the current author that some forms of ‘conservative judicial activism’ attempt to narrow constitutional or treaty (i.e. the European Convention) rights in part by denying the ‘positive obligations’ and ‘implied rights’ in fact embodied in those rights guarantees thus eroding the substantive meaning of those rights. On the view here we are speaking of (a) ‘positive obligations’ and ‘implied rights’ that are in fact inherent in the right guarantee expressly stipulated in the Convention and (b) which cannot be denied by relying on limitations that are in actuality not implied in the rights guarantee at issue nor expressly stipulated as restrictions in the Convention. We will consider this issue in the context of certain of the cases to be discussed where the ECtHR has engaged in ‘principled judicial activism’ to protect the human dignity of victims and in so doing, this author would argue, “safeguarding constitutional democracy and fundamental rights”12 in the process as is an essential part of the ECtHR mandate.

4.2

Case 1: Case of Golder v. The United Kingdom (Application No. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) (On the Question of an ‘Implied Right’ To Be Afforded Access to the Courts to Determine Civil Claims)

The Golder case13 concerned a UK citizen convicted in 1965 of “robbery with violence” and sentenced to 15 years in prison. In 1969 there was a very significant disturbance caused by several inmates at the prison where Mr. Golder was 11

European Social Charter Strasbourg, 3.V.1996 https://www.refworld.org/pdfid/3ae6b3678.pdf Note that the European Social Charter requires collective complaints be made to the European Committee of Social Rights by authorized NGOs representing groups of individuals The collective complaints are brought against the State for non-compliance with the Charter either due to specific domestic laws or State practice See also Council of Europe, European Social Charter: The Collective Complaints Procedure https://www.coe.int/en/web/european-social-charter/collectivecomplaints-procedure1. 12 Sólyom (2019). 13 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) https://minorityrights.org/wp-content/uploads/old-site-down loads/download-223-Belgian-Linguistic-case-full-case.pdf.

4.2 Case 1: Case of Golder v. The United Kingdom (Application No. 4451/70). . .

195

incarcerated. One of the prison officers who witnessed the melee as a victim identified certain of the inmates involved in the disturbance rather definitively but mentioned Mr. Golder only tentatively as perhaps being another one of the inmates involved in attacking the officer in question. Mr. Golder and the others were put in a segregated unit for a time and Mr. Golder was informed that he had been accused of assaulting a prison officer and that this may lead to additional criminal charges. Mr. Golder tried to reach out to his Member of Parliament and to the Chief Constable but the prison warden intercepted this letter correspondence as Mr. Golder had not requested the proper permissions for the same within the prison authorization channels. In a later interview; the prison officer who was attacked clarified an earlier statement he had given saying in part “I think it was Golder’, who was present with Frazer, Frape and Noonan, when the three latter were attacking me. If it was Golder and I certainly remember seeing him in the immediate group who were screaming abuse and generally making a nuisance of themselves, I am not certain that he made an attack on me. . . .”14 Another prison police officer when interviewed informed investigators that Mr. Golder spent most of the night at the time of the riot with that officer and other inmates who did not participate in the disturbance and, as far as that officer knew, Mr. Golder had not participated in the disturbance but at the relevant time instead had been away from the riot in the T.V. room with other non-participants.15 Additional possible charges were entered into Mr. Golder’s prison record but these were expunged after the case was heard by the European Commission (Commission report issued in 1973) and no charges were ever proceeded with.16 In 1970 Mr. Golder had filed a petition to the Secretary of State for the Home Department requesting a transfer to another prison as he felt that he had been denied parole by the local parole board based on entries into his prison record (which he held were false) regarding his alleged participation in the riot at the prison where he was then incarcerated.17 The Home Secretary denied (a) Mr. Golder’s request for a prison transfer and (b) his request to consult a solicitor “with a view to taking civil action for libel in respect of this statement . . .”18 (referring to what Mr. Golder labelled a ‘wrong statement’ in his prison record regarding his alleged involvement in a prison riot in which a prison officer was attacked by several prison inmates). Mr. Golder had petitioned the European Commission for relief in respect of two complaints: (a) the interference in his correspondence with the stopping of his letters 14

Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 13. 15 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 14. 16 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 15. 17 Golder was released from prison 12 July, 1972. 18 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 16.

196

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

to his Member of Parliament and to the Chief Constable attempting to communicate his complaints and (b) the blocking of his being able to contact a solicitor whereas he had requested permission to contact a solicitor in his petition to the Home Secretary. In 1971 the Commission held that the complaint relating to interference with his correspondence to his Member of Parliament and to the Chief Constable was inadmissible as he allegedly had not exhausted all domestic remedies in that regard but accepted the second complaint to be considered on the merits. The Commission found that article 6(1) of the European Convention guarantees a right to access to the courts and that “there are no inherent limitations on the right of a convicted prisoner to institute proceedings and for this purpose to have unrestricted access to a lawyer” (Commission finding as paraphrased by the ECtHR).19 Hence the Commission found that the U.K had violated Mr. Golder’s Convention rights under Article 6 (1) which reads in part as follows: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. . . .20

The Commission thus found that Article 6(1) embodies also a right to the courts and that essentially it flows from this that furthermore “there are no inherent limitations on the right of a convicted prisoner to institute proceedings and for this purpose to have unrestricted access to a lawyer.”21 The Commission also found that in blocking Mr. Golder’s ability to exercise his right to contact a solicitor; his Article 8 (1) Convention rights were also violated. Article 8(1) of the Convention stipulates the following: “Everyone has the right to respect for his private and family life, his home and his correspondence (emphasis added).” This though there was no communication by letter or otherwise to a solicitor that had been intercepted by authorities as none had been prepared by Mr. Golder. These submissions were then also made to the ECtHR by the Commission. The Government, in opposition to the Commission, argued to the ECtHR that Convention Article 6(1) does not confer a right of access to the courts but rather only a right guaranteeing that any proceedings that are already instituted are fair and meet all other criteria set out at Article 6. The Government thus maintained that it followed from the aforementioned that Mr. Golder did not have a right under Article 6(1) of the Convention to access a solicitor to begin the process of instituting proceedings. The Government also maintained that the interference with the

19

Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 21. 20 European Convention on Human Rights (The Convention as amended by the provisions of Protocol No. 14 (CETS no. 194) as from its entry into force on 1 June 2010) https://www.echr. coe.int/Documents/Convention_ENG.pdf. 21 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 19.

4.2 Case 1: Case of Golder v. The United Kingdom (Application No. 4451/70). . .

197

correspondence that Mr. Golder had wished to send22 was an exception recognized under Convention Article 8 necessary to maintain for the purpose of discipline and proper order in the prison system.23 The ECtHR found that the Home Secretary in not allowing Mr. Golder to contact a solicitor had effectively violated his Article 6(1) Convention right to access the courts to institute civil proceedings; a right that the Court held was embodied in that provision.24 The Court on this point thus rejects strict and narrow textualism stating: . . .Article 6 para. 1. . . does not state a right of access to the courts or tribunals in express terms. It enunciates rights which are distinct but stem from the same basic idea and which, taken together, make up a single right not specifically defined in the narrower sense of the term. It is the duty of the Court to ascertain, by means of interpretation, whether access to the courts constitutes one factor or aspect of this right (emphasis added).25

The Court held that while the requirement that judicial proceedings be fair and public as expressed in Convention Article 6(1) refers to proceedings already underway “it does not, however, necessarily follow that a right to the very institution of such proceedings is thereby excluded. . .”26 The ECtHR endorsed the Commission’s view that Convention Article 6(1) is intended to “protect the right to a good administration of justice”27 though those words are not in the express text of Article 6(1); the Court then again straying from strict textualism and instead interpreting the broad intent of Article 6(1) as the Court deciphered it. The Court emphasized, as did the Commission, the preamble of the Convention that gives context in interpreting its Articles. That preamble refers to the commitment to “rule of law” by the State Parties to the Convention and the Court thus found that “. . .in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts.”28 Hence, in effect, the ECtHR held that to block access to the courts is to subvert a key value or principle underlying the Convention and to erode one of the bases for the collective commitment of the State Parties to uphold and abide by the

22

Referring here to letters Golder wished to send to his Member of Parliament and to the Chief Constable to complain about the treatment he was subjected to in prison as a result of what he alleged was a false accusation that he assaulted a prison officer during a prison riot. 23 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 22. 24 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 26. Recall that Golder had made it clear in his written petition to the Home Secretary that he wished to contact a solicitor for the purpose of instituting a libel proceeding against the person who he alleged falsely accused him of assaulting a prison officer. 25 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 28. 26 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 32. 27 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 33. 28 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 34.

198

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

Convention. The current author would maintain that in taking this tact the ECtHR’s ‘principled judicial activism’ (in not sticking to the express text of Article 6(1) of the Convention in the interpretation of the substantive content of that Article) was in fact in the service of protecting the democratic right of access to the courts. Hence the ECtHR’s judicial activism here served to put a check on the government’s attempt to undercut a core principle and practice in the administration of democratic rule of law grounded on basic human rights: The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally “recognised” fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice. Article 6 para. 1 (art. 6-1) must be read in the light of these principles.29

Indeed the ECtHR opined on the autocratic possibilities were a government erroneously permitted to view denial of access to the courts as lawful under Convention Article 6(1). This, the Court warned, would open the possibility, for instance, for the State to “do away with its courts, or take away their jurisdiction to determine certain classes of civil actions and entrust it to organs dependent on the Government” and “Such assumptions, indissociable from a danger of arbitrary power, would have serious consequences which are repugnant to the aforementioned principles and which the Court cannot overlook.”30 The ECtHR in Golder thus clearly saw its role in interpreting Article 6(1) as one that required attention to the democratic context in which the Convention is embedded which context includes a commitment to the proper administration of justice and democratic rule of law (which includes an inherent right to access the courts to institute proceedings i.e. to determine civil claims). The Government took the position that there were lawful limitations that nevertheless the State could impose even if access to the courts is an inherent right under Convention Article 6(1). The Government gave the example of minors who due to their age do not have direct access to the courts in their own right31 as is the case also for persons for some reason mentally incompetent.32 The Court held it was called upon to decide only whether the limitation as imposed on the particular facts of the Golder case violated Article 6(1) of the Convention. The ECtHR held that it was not for the Home Secretary to determine the prospects for success were Mr. Golder to launch a libel suit as he explained he wished to do to clear his name of the accusation that he had assaulted a prison officer during a prison riot. For various reasons the 29

Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 35. 30 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 35. 31 The current author has elsewhere argued for children’s right to access a lawyer to represent the children’s independent rights and for children’s right to access the courts as plaintiffs in their own right such that they not be blocked from doing so where they have no litigation guardian to access the courts on their behalf See Grover (2008). 32 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 39.

4.2 Case 1: Case of Golder v. The United Kingdom (Application No. 4451/70). . .

199

ECtHR held it was reasonable for Mr. Golder to wish to contact a solicitor regarding instituting proceedings given his particular circumstances.33 In addition the Majority in Golder rejected the notion that the Home Secretary’s refusal to allow Golder to contact a solicitor was not a violation of Article 6(1) of the Convention since he would be able to do so once he was on parole. Rebutting these points; the ECtHR Majority in Golder held that (a) the prospect of parole was a “remote” possibility at the time Golder had wanted to contact a solicitor while he was still incarcerated and (b) temporary infringements of Convention guarantees are, in the Majority’s view, also violations of the Convention.34 On the same facts that the Majority of the Court in Golder held gave rise to the Convention Article 6(1) violation; the Court found a violation of Article 8(1); those facts being the denial by the Home Secretary of Mr. Golder’s petition to be permitted to contact a solicitor to assist him to institute libel proceedings. This was considered by the Court to be an interference with correspondence as per Article 8(1) which, in part, protects against interference by the State with private correspondence. While the government held Article 8(1) did not apply as Mr. Golder had not written to a lawyer so there was no concrete actual letter interfered with; the Court found that, to the contrary, “Impeding someone from even initiating correspondence constitutes the most far-reaching form of “interference” (paragraph 2 of Article 8) (art. 8-2) with the exercise of the “right to respect for correspondence. . .”35 Further the Court held that the text of Article 8(2) stating as it does that “there shall be no interference by a public authority in the exercise of this right except such as is in accordance with the law and is necessary in a democratic society . . .”36 left no room for “implied limitations” where there was no clear basis consistent with democratic values that the limitation was necessary and in the public interest as in this particular case. The Court found that it could not find a basis justified “in a democratic society” in the Home Secretary’s refusal of Mr. Golder’s request to contact a solicitor with a view to instituting libel proceedings in an effort to vindicate himself of the accusation that he (Golder) had assaulted a prison staff member.37 The Home Secretary’s decision proves to be all the less “necessary in a democratic society” in that the applicant’s correspondence with a solicitor would have been a preparatory step to

33

For details on this point see Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 39. 34 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 26. 35 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 43. 36 European Convention Article 8 para 2 (European Convention on Human Rights (The Convention as amended by the provisions of Protocol No. 14 (CETS no. 194) as from its entry into force on 1 June 2010) https://www.echr.coe.int/Documents/Convention_ENG.pdf. 37 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 45.

200

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

the institution of civil legal proceedings and, therefore, to the exercise of a right embodied in another Article of the Convention, that is, Article 6 (art. 6).38

Judge Sir Gerald Fitzmaurice, in his partial dissent, explained that while he did concur on the issue of the infringement of Article 8 (arising from de facto or constructive interference by a public authority with Mr. Golder’s correspondence39), he disagreed with the ECtHR Majority as to the purported Article 6(1) violation of a right to access the courts. The latter guarantee, Judge Sir Gerald Fitzmaurice held, was not incorporated as an express right in the Convention but was rather being “read into” the Convention by the Majority based on external factors.40 Hence the ECtHR Majority in Golder, in his view, had perhaps veered into the border between “legitimate” interpretation of a treaty “within the confines of a genuinely interpretive process” and “judicial legislation”; one form of, from his perspective, it appears, generally unacceptable judicial activism in any context.41 Judge Sir Gerald Fitzmaurice also held that (a) Mr. Golder had not in fact been denied any potential right of access to the courts as he still would have been on time had he petitioned the court after serving his full term or if and when granted parole and (b) though the delay may have been somewhat prejudicial; it was not a bar to his access to the courts.42 The rebuttal on this point by the Majority in Golder was already here addressed so let us focus on the first point made by Judge Sir Gerald Fitzmaurice; namely his assertion that the ECtHR Majority in Golder had possibly veered into ‘making law’ thus not confining itself to simply ‘interpreting’ it. Judge Sir Gerald Fitzmaurice would appear to rely on strict textualism in his rejection of access to the court as an ‘implied right’ under Article 6(1) of the Convention given his reference to such a ‘right of access to the courts’ as an example purportedly of inappropriate “. . .wide interpretations. . .adopted by a court, without the clearest justification for them based solidly on the language of the text or on necessary inferences drawn from it (emphasis added).”43 To do such ‘reading in’, on Judge Sir Gerald Fitzmaurice’s analysis then, given the Convention express text

38

Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) at para 45. 39 Judge Sir Gerald Fitzmaurice held that (a) by denying Mr. Golder the opportunity to contact a solicitor the Home Secretary had effectively blocked any attempt by Mr. Golder to write a letter to a solicitor thus de facto interfering with Mr. Golder’s correspondence (constructive interference) and also held that (b) no case-specific reason was proffered by the Government as to the necessity for this restriction in Mr. Golder’s case. 40 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 18. 41 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 2. 42 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 19–20. 43 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 37(c).

4.2 Case 1: Case of Golder v. The United Kingdom (Application No. 4451/70). . .

201

currently is to create ‘judicial legislation.’ On the respectful view of the current author it is rather the failure to interpret the Articles of the Convention holistically by considering the purpose of the Convention as a human rights instrument foundational to democratic practice and commitment to democratic rule of law that creates ‘judicial legislation’ incorporating, in effect, ‘implied limitations’ often in the service of a conservative agenda. The meaning of the express text of the Convention is imposed on that text in either way (a) by interpreting it in a larger context or (b) by interpreting it in as narrow a context as possible. Where the interpretation is inconsistent with democratic principles (as it would be, on the respectful view here, on an interpretation of Article 6 (1) as not guaranteeing the right of access to the courts) it is, this author would respectfully contend, a legally insupportable interpretation. It is noteworthy that it would appear that often those judges who object to the notion of ‘reading in’ of the right to access the courts (as an ‘implied right’ under Article 6(1) of the Convention) are reluctant to address (a) the broad implications for democracy or the prospect of full democracy in the States Parties of a purported, on their view, ‘implied limitation’ in Convention Article 6(1) which limit precludes access to the courts being encompassed within the scope of that Article and more specifically (b) the risks of Convention interpretation suggesting a purported ‘implied limitation’ on a fundamental democratic right (such as is access to the courts) which then certain States Parties to the Convention continue to actualize in practice so as to deny those affected ‘justice’ as that notion is understood under a democratic rule of law: It may, or it may not be true that a failure to see the Human Rights Convention as comprising a right of access to the courts would have untoward consequences - just as one can imagine such consequences possibly resulting from various other defects or lacunae in this Convention. But this is not the point. The point is that it is for the States upon whose consent the Convention rests, and from which consent alone it derives its obligatory force, to close the gap or put the defect right by an amendment, - not for a judicial tribunal to substitute itself for the convention-makers, to do their work for them.44

It is here contended, with respect, in contrast, that it is the proper role of the judiciary to interpret the Convention consistent with the current and evolving understanding of what constitute core democratic and fundamental human rights; whether these are expressly articulated in the Convention or ‘implied’ based on notions of the democratic rule of law and what the latter entails in its full scope. To do otherwise, on the view here, is to inadvertently subvert the democratic purpose of the Convention and its promise of fundamental human rights guarantees that can actually impact lives. That purpose was understood by the States Parties when they consented to the Convention and the jurisdiction of the ECtHR. The current author thus respectfully contests the underlying basis for the devotion to the literal narrow reading of the express text of the Convention as an interpretive approach as adopted by judges some might consider to be ‘conservative judicial activists’. Indeed, on the

44 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 37(c).

202

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

respectful view here, Judge Sir Gerald Fitzmaurice himself appears to give some credence to the notion that he articulates a position, as do other likeminded justices, that could be considered to reflect ‘conservative judicial activism’: Speaking generally, the various conventions and covenants on human rights, but more particularly the European Convention, have broken entirely new ground internationally, making heavy inroads on some of the most cherished preserves of governments in the sphere of their domestic jurisdiction or domaine réservé. Most especially, and most strikingly, is this the case as regards what is often known as the “right of individual petition”. . .It is indeed solely by reason of an acceptance of this kind that it has been possible for the present (Golder) case to be brought before the European Commission and Court of Human Rights at all (emphasis in the original).45 These various factors could justify even a somewhat restrictive interpretation of the Convention but, without going as far as that, they must be said, unquestionably, not only to justify, but positively to demand, a cautious and conservative interpretation, particularly as regards any provisions the meaning of which may be uncertain, and where extensive constructions might have the effect of imposing upon the contracting States obligations they had not really meant to assume, or would not have understood themselves to be assuming. . . . Any serious doubt must therefore be resolved in favour of, rather than against, the government concerned. . . (emphasis added)46

Let us examine here then something of the underlying presumptions of so-called judicial conservatives advocating for, in some Convention contexts at least, strict textualism. Judge Sir Gerald Fitzmaurice points to Article 1 of the Convention which states that “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in . . . this Convention”47 and he then argues that: The operative word here, in the present context, is “defined”; and in consequence, the effect of this provision - (since it is rights and freedoms “defined” in the Convention that the States parties to it are to secure to everyone within their jurisdiction) - is to exclude from that obligation anything not so defined.48

The current author would contend, with respect, that though the Convention is an agreed upon human rights legal instrument amongst the State Parties to it; it does not allow such a large margin of appreciation to the States as to limit democratic rights and freedoms unjustifiably inconsistent with democratic and free societal values. To allow this would be to permit the erosion of the substantive meaning and import of the Convention right or freedom guarantee at issue and would belie the very nature of

45 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 38. 46 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 39. 47 European Convention on Human Rights (The Convention as amended by the provisions of Protocol No. 14 (CETS no. 194) as from its entry into force on 1 June 2010) https://www.echr. coe.int/Documents/Convention_ENG.pdf. 48 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 26.

4.2 Case 1: Case of Golder v. The United Kingdom (Application No. 4451/70). . .

203

the Convention as guaranteeing core human rights that “define” a democracy. Rights of access to the courts is one of those defining characteristics of a democracy. Thus the current author contends, with respect, that a right need not be express in the Convention text in order to be implied of necessity—implied not based on wishful thinking but rather implied grounded on democratic values and principles which are the foundation of the Convention in the first instance. The author respectfully contests then Judge Sir Gerald Fitzmaurice’s view that such an “implied” right as access to the courts (based on core human rights values and principles and State obligations that define a democracy) is not encompassed in the rights “defined” in the Convention49 or implied by the content of what is defined there.50 Judge Sir Gerald Fitzmaurice did go so far as to concede that “It is an understandable, reasonable and legitimate point of view that access to the courts of law is, or should be, regarded as an important human right.”51 The current author holds, however, access to the courts to be an essential aspect of the human rights underlying a democratic State such as envisioned by the Convention and upon which the Convention is premised. On the respectful view here; Judge Sir Gerald Fitzmaurice’s view (that the law as purportedly agreed upon by the State Parties and embodied in the Convention in express terms does not allow for the implied right of access to the courts) is inadvertently laying the possibility for a view of the Convention that can include (a) alleged implied rights limitations inconsistent with democratic values and (b) exclusions of rights and State positive obligations which exclusions likewise are incompatible with democracy. This is evident, on the view here, with respect, in the following of his statements: It might perhaps seem natural that procedural guarantees of this kind should “first” be preceded by a protection of the right of access: the fact remains that, in terms, they are not, and that the inference that they must be deemed so to be is at best a possible and in no way a necessary one; - for it is a perfectly conceivable situation that a right of access to the courts should not necessarily always be afforded, or should be limited to certain cases, or excluded in certain cases, but that where it is afforded there should be safeguards as to the character of the ensuing proceedings (emphasis added).52

This is not to deny that some complainants in a civil case, for instance, may be found not to have standing but they still would have had their opportunity to make

49

See Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 26. 50 See Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 32. 51 See Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 32. 52 See Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 33.

204

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

their case for standing and to appeal decisions of lower courts on the question of standing all of which implicates and constitutes access to the courts. Further consider that Article 6(1) of the Convention in guaranteeing that “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”53 arguably in its own text presumes access to the courts. This is evident, for instance, in that (a) for a criminal matter there is no question but that such access to the courts is presumed as of right (since the State is bringing the case and in democracies a right of appeal in criminal matters is generally automatically present also) and (b) in Article 6(1) determinations of “civil rights and obligations” are lumped together in the same line with the issue of determinations regarding criminal charges; thus access to the courts is implied for “determinations” of both civil and criminal matters. This is not to say that Convention Article 6(1) is operative only after proceedings have been instituted as Judge Sir Gerald Fitzmaurice holds. Thus, for example, charges against a criminal defendant may be dropped by the Prosecutor before trial such that there is no trial and hence certain of the guarantees of Article 6(1) are no longer applicable (such as announcing the trial judgment publicly) but the guarantee of a fair and impartial determination has (presumably) occurred, in that context at the Prosecutor office level, and in that narrow regard consistent with the implied requirement of Article 6(1) that determinations at every stage of a legal process be fair and impartial. Article 6 (1) of the Convention presumes a right to fair and impartial determination also of civil rights and obligations (a right that is no less than the guarantee of fair adjudication by a criminal court in a criminal case) and, in so doing, does not exclude the right of access to the courts for the resolution of civil claims. This as it is the courts where the complainant is best assured the impartiality and independence guaranteed under Article 6(1). Note also that the mere fact that an individual has access to the courts in a civil matter in itself can influence outcomes (i.e. encourage settlement outside of court or through court mediation) and promote civil calm and public order. Inasmuch then as access to the courts is an essential feature of democracy; the current author holds that access to the courts is a “necessary” implication to be drawn from Convention Article 6(1).54 Judge Sir Gerald Fitzmaurice, in contrast, held that the Majority in Golder erred in holding that access to the courts is a ‘necessary’ rights implication of Convention Article 6(1). Further he contended that the Majority relied on external sources that were irrelevant to the issue at hand (the scope of Article 6(1)) to bolster their interpretation namely, for instance “. . .the principle of the rule of law, and the ‘general principles of law recognized by civilized nations’ mentioned in Article 38 paragraph 1(c) of the Statute of the International Court of 53

European Convention on Human Rights (The Convention as amended by the provisions of Protocol No. 14 (CETS no. 194) as from its entry into force on 1 June 2010) https://www.echr. coe.int/Documents/Convention_ENG.pdf. 54 Contrast the view of Judge Sir Gerald Fitzmaurice: See Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 34.

4.2 Case 1: Case of Golder v. The United Kingdom (Application No. 4451/70). . .

205

Justice”. . . They might be useful as straws to clutch at or as confirmatory of a view arrive at aliter, - they are in no way determining in themselves, even taken cumulatively.”55 Judge Sir Gerald Fitzmaurice laments what he holds is an exaggerated emphasis by the Golder Majority on the ‘rule of law’ in interpreting the Convention Article 6(1): The importance attributed to the factor of the “rule of law” in paragraph 34 of the Court’s Judgment is much exaggerated. That element, weighty though it is, is mentioned only incidentally in the Preamble to the Convention. What chiefly actuated the contracting States was not concern for the rule of law but humanitarian considerations (emphasis added).56

The contrasting view here, however, with respect, is that human rights considerations, such as are involved in adjudicating under the Convention, cannot be disentangled from the context of ‘democratic rule of law’ as respect for human rights is the underpinning of the latter. Hence it is here contended that the Golder ECtHR Majority’s emphasis (reflected in the quote below) on interpreting Convention articles with a view to (democratic) rule of law is legally supportable and correct: One reason why the signatory Governments57 decided to “take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration” was their profound belief in the rule of law. It seems both natural and in conformity with the principle of good faith (Article 31 para. 1 of the Vienna Convention) to bear in mind this widely proclaimed consideration when interpreting the terms of Article 6 para. 1 (art. 6-1) according to their context and in the light of the object and purpose of the Convention.58

When Judge Sir Fitzmaurice contends in his Dissenting Opinion in Golder that “What chiefly actuated the contracting States59 was not concern for the rule of law but humanitarian considerations”60; he seems to be suggesting that humanitarian considerations are acted upon by the State or not acted upon by the State at its discretion and that these considerations do not mandate positive State obligations. The foregoing thus appears (on the estimation here) to be a way for Judge Sir Fitzmaurice to attempt to lay a purported foundation for his claim that the Convention does not incorporate ‘implied positive State obligations’. The current author, respectfully, endorses an opposing view; namely that the Convention Articles must be considered/interpreted with reference to democratic rule of law, and democratic 55 Judge Sir Gerald Fitzmaurice: See Case of Golder v. The United Kingdom (Application no. 4451/ 70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 35. 56 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at footnote 20. 57 Referring to the signatory Governments to the European Convention. 58 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights) Majority Opinion at para 34. 59 Referring to the Contracting States to the European Convention. 60 Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at footnote 20.

206

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

principles and values which in fact allow for implied State positive obligations to give practical effect to human rights entitlements. Further on a side note the current author contends that there is in the humanitarian sphere also a zone of positive State obligation.61 The current author would further respectfully take issue with Judge Sir Gerald Fitzmaurice’s assertion that the Golder ECtHR Majority, in discussing the potential consequences of not recognizing ‘access to the courts’ as an ‘implied’ right under Convention Article 6(1), made allusions to “consequences foreshadowed” that, according to Judge Fitzmaurice, “are completely unrealistic or at the best highly exaggerated.”62 In this regard the current author notes the upswing in non-democratic extremist forces that have increasingly taken root in various democratic States63 which serve as a reminder that reinforcing democratic values and rule of law in judicial interpretation is as essential as ever. The judiciary’s role, on the respectful view here is not, in effect, to placate State’s Parties to the Convention with conservative judicial interpretations driven by narrow textual analysis64 and alleged implied limitations on rights that, at times, are inconsistent with democratic rule of law.65 Rather it is to render justice which calls for, on the respectful view here, a broader interpretive approach guided by respect for fundamental human rights, and close attention to the context of democratic rule of law and the particularity of the facts and the specific law involved in the case.66

61

Grover (2016). Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 37. 63 For example see Grover (2019). 64 Contrast with Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 38–39. 65 For a discussion of some of the political pressures on the ECtHR See Stiansen and Voeten (2018). 66 Judge Sir Gerald Fitzmaurice, in contrast, found that a right to access the courts is not implied in Convention Article 6(1) or any other provision of the Convention except by way of a “process of interpretation” that he did “not regard as sound or as being in the best interests of international treaty law.” He held further that “This is no doubt a serious deficiency that ought to be put right. But it is a task for the contracting States to accomplish, and for the Court to refer to them, not seek to carry out itself.” Case of Golder v. The United Kingdom (Application no. 4451/70) Judgement 21 February, 1975 (European Court of Human Rights), Judge Sir Gerald Fitzmaurice Dissenting Opinion at para 48. 62

4.3 Case 2: Volodina v Russia (Application No. 41261/17). . .

4.3

207

Case 2: Volodina v Russia (Application No. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) (On the Question of a ‘Positive Obligation’ of the State to Protect Against Domestic Violence Constituting Torture, Inhuman or Degrading Treatment)

The case of Volodina v Russia concerns an abusive domestic relationship between Ms. Valeriya Igorevna Volodina and Mr. S. The details will be summarized here as the severity of the abuse is central to the case. They had lived together but upon their separation Mr. S. threatened to kill Ms. Volodina and her son if she, Ms. Volodina, did not return to once again live with Mr. S. There ensued an incident where Mr. S stole Ms. Volodina’s identity papers but then returned them and the local police declined to lay charges in that case. Ms. Volodina relocated to another city (Moscow) to try and escape Mr. S. However she posted her CV online in job hunts and Mr. S was able to locate her. A stranger contacted her posing as a Human Resources Officer and invited her to an interview outside Moscow. Ms. Volodina accepted and she was picked up by this stranger but Mr. S. emerged from the back seat and the stranger handed Mr. S. the keys to the car. Mr. S. took away the applicant’s mobile phone and identity papers and informed her they were going back to the city in which they had previously resided together. Once back in Ulyanovsk, Mr. S. assaulted the applicant by punching her in the face and stomach. She was seen at hospital and the doctors recorded her injuries. Ms. Volodina was 9 weeks pregnant at the time and the doctors counselled her to receive a medically-induced therapeutic abortion as she was at risk of miscarriage due to the effects of the assault inflicted by Mr. S. Ms. Volodina reported all this to the police by phone but still they refused to institute proceedings citing the lack of a written complaint as the reason. Some two months later the complainant then withdrew her complaint in writing and refused a medical assessment.67 Subsequently Mr. S. again assaulted Ms. Volodina and she alleged he tried to strangle her. She complained to the police and her injuries were recorded by the Ulyanovsk police. The Ulyanovsk police determined that the assault had occurred in a different district (Samara Region) and they forwarded the file to the police in that other district. The Samara Region police asked Ms. Volodina to have a medical assessment but she refused. The Samara police declined to institute proceedings holding that Mr. S’s verbal threats were not specific enough to be prosecutable as threats of death or bodily harm and that his one blow did not constitute battery. Thereafter Ms. Volodina returned to Moscow in another attempt to escape Mr. S. However Mr. S again tacked her down and there was another assault; this

67

The injuries were already recorded by doctors at the hospital 2 months prior and no doubt the victim was highly fearful of Mr. S. and not sure of the safest course given the police reticence to offer her State protection.

208

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

time in public and witnessed by others who called the police. Ms. Volodina filed a criminal complaint the same day alleging Mr. S. had threatened her life. Subsequently Mr. S. notified Ms. Volodina that he had tampered with her car brakes and when police were called to investigate they confirmed that the brakes had been tampered with. The Mozhayskiy district police in Moscow, however, as with the other district police, declined to institute proceedings regarding Mr. S’s violence against Ms. Volodina. Thereafter “the applicant lodged an application with the Kuntsevskiy District Court in Moscow seeking a review of the . . .decision. She submitted in particular that the police had not considered the text messaging history, which showed that S. had the intention of causing her death by damaging the brakes of her car.”68 The Prosecutor then ordered an additional inquiry wherein the text messages were reviewed and because of that additional inquiry the Kuntsevskiy District Court dismissed the complainant’s case as moot and this decision was upheld on appeal. Subsequently “the police issued further decisions declining to prosecute S. on the grounds that his actions had not constituted a criminal offence.”69 Further incidents included Mr. S placing an electronic device, possibly a tracking device, in Ms. Volodina’s bag. The complainant reported this to the police but the Special Technical Measures Bureau of the federal police, although joined on the case, did not launch an inquiry of its own. Further Mr. S without permission of Ms. Volodina then published Ms. Volodina’s private photos on a social media site. The police launched a criminal investigation but there was not at any material time any outcome from this investigation. Not surprisingly the alleged stalking and intimidation of Ms. Volodina by Mr. S. continued with him phoning her to make death threats and sitting in a car in front of her house. The police declined to open a criminal investigation, finding that there was no danger that S. would carry out his threat to kill her because “[the applicant] remained in her flat, while [S.] stayed in his car and did not go up to the flat.”70 Later that same month Ms. Volodina was in a taxi she had called to her home as she was planning to visit a female friend. Mr. S. managed to cut off the taxi with his car and dragged Ms. Volodina out of the taxi toward his car and took her belongings including mobile phones. “The taxi driver did not intervene. Fearing for her life, the applicant sprayed tear gas in S.’s face.”71 Ms. Volodina filed a complaint to the police and the taxi driver also gave the

68

Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]} at para 24. 69 Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]} at para 27. 70 Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]} at para 31. 71 Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]} at para 32.

4.3 Case 2: Volodina v Russia (Application No. 41261/17). . .

209

police a statement. Mr. S attended at the police station with his counsel where he returned Ms. Volodina’s bag but not her phones or documents. The phones and documents were returned the next day (the documents were in her mailbox and the phones were returned by the police to Ms. Volodina after Mr. S left them at the police station) Thereafter “the local police decided not to institute proceedings in respect of the threats, finding no indications of a criminal offence. In their view, neither the threatening statements nor actions on the part of S. were sufficiently credible to conclude that the death threats had been ‘real.’”72 Ms. Volodina as an injured party in a criminal investigation requested State protection given that no decision had yet been made at the time of her request regarding criminal charges against Mr. S for publishing her private photos. The police provided the opinion to the investigator that her claimed need for State protection was unfounded as Ms. Volodina, on the view of the police, was not threatened “in connection with [the applicant’s] participation in the criminal proceedings” but rather based on “personal hostility between them” and “S’s jealousy” and in any case “[S.] is currently in Moscow, outside the Ulyanovsk Region, and, according to him, has no plans to come back.”73 Ms. Volodina filed a complaint to the court as no formal decision had been taken on her need for State protection. “[T] he Zavolzhskiy District Court in Ulyanovsk held that the failure to issue a formal decision had been unlawful. It declined to rule on the issue of whether or not the applicant should be granted State protection, leaving this matter for the police to decide.”74 The applicant subsequently legally changed her name so that Mr. S. would no longer be so easily able to track and stalk her. Ms. Volodina’s complaint against Russia to the European Court of Human Rights (ECtHR) alleged (a) a violation of Article 3 of the European Convention (“No one shall be subjected to torture or to inhuman or degrading treatment . . .”); (b) a violation of Article 13 in conjunction with Article 3 (“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority . . .”) and (c) a violation of Article 14 barring discrimination in conjunction with Article 3. The ECtHR stressed that there was a “need for active State involvement in . . .protection” of victims of domestic violence given their particular vulnerability in that context (emphasis added).75 The ECtHR adopted the

72

Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]} at para 36. 73 Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]} at para 37. 74 Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]} at para 38. 75 Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]} at para 72.

210

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

premise that the maltreatment must reach a certain level of severity to constitute a violation of Article 3 of the Convention. The Court held that the physical injuries suffered by Ms. Volodina at the hands of Mr. S. (as recorded in medical and police reports including her having to have a medically induced abortion due to Mr. S. kicking her in the stomach when she was 9 weeks pregnant) rose to the level of maltreatment contemplated under Convention Article 3. In addition to her physical injury the Court noted the psychological suffering and insult to Ms. Volodina’s dignity that Mr. S. caused with his death threats, and stalking as well as the publication of her private photos. Having decided that the severity of treatment threshold for an Article 3 violation had been reached; the ECtHR determined it had then to decide “whether the State authorities have discharged their positive obligations under Article 1 of the Convention, read in conjunction with Article 3, to ensure that individuals within their jurisdiction are protected against all forms of ill-treatment, including where such treatment is administered by private individuals (emphasis added)”76 Article 1 of the Convention reads as follows: ARTICLE 1 Obligation to Respect Human Rights The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.77

Hence the ECtHR in the case at bar viewed positive State obligations as being within the scope of the substantive content of the Article 3 and 13 rights articulated in the Convention. Clearly without such State implied and, at times, express positive obligations these Convention guarantees, in many instances such as in the Volodina case, would, in practice, be effectively of no force or effect. The State in Volodina v Russia did not consider it had such State positive obligations to protect Ms. Volodina from her abusive partner and, as a consequence, she lived in constant fear and anxiety anticipating that the next assault by Mr. S. might end her life and that of her unborn. The ECtHR, relying on the particular facts of the case, set out the particular positive obligations that Russia had failed to fulfil in the instant case as follows: (a) the obligation to establish and apply in practice an adequate legal framework affording protection against ill-treatment by private individuals; (b) the obligation to take the reasonable measures that might have been expected in order to avert a real and immediate risk of ill-treatment of which the authorities knew or ought to have known, and

76

Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]} at para 76. 77 European Convention on Human Rights (The Convention as amended by the provisions of Protocol No. 14 (CETS no. 194) as from its entry into force on 1 June 2010) https://www.echr. coe.int/Documents/Convention_ENG.pdf.

4.3 Case 2: Volodina v Russia (Application No. 41261/17). . .

211

(c) the obligation to conduct an effective investigation when an arguable claim of ill-treatment has been raised.78

The ECtHR held that Russian criminal law at the time of the Volodina case was inadequate in addressing domestic violence as there was no specific legislation dealing with the issue and it was dealt with as violence with no distinction from other violence contexts. Also, save for a short period, domestic violence was not held to be an aggravating factor in other crimes. Further the law as amended at the relevant time required physical injuries or that the domestic violence had occurred for a second time within 12 months before the conduct was criminalized thus, according to the ECtHR, putting the victims at increased risk and failing to recognize the various forms of injury suffered by domestic abuse victims i.e. not just physical but also often psychological and economic. Moreover, the provisions on “repeat battery” would “not have afforded the applicant any protection in the situation where the attacks in 2016 were followed by a new wave of threats and assaults more than 12 months later, in 2018.79 The Court also reiterate[d] that domestic violence can occur even as a result of one single incident.”80 The ECtHR also took issue with the legislation mandating private prosecution methods in cases of minor harm and “repeat battery” in the domestic violence context as it shifts an “excessive burden” to the victim of collecting evidence and places the victim at greater risk especially since there are no measures such as restraining orders upon which the victim can rely.81 The failure to provide for public prosecution except in cases where the injuries reached a certain level of severity as well as the lack of legislation specifically tailored to address domestic violence and the great protection needs of victims in that context led the ECtHR to hold that “the Russian legal framework. . . falls short of the requirements inherent in the State’s positive obligation to establish and apply effectively a system punishing all forms of domestic violence and providing sufficient safeguards for victims (emphasis added).”82 The ECtHR found unanimously in favor of Ms. Volodina as to the State’s violation of Convention Article 3 (the prohibition on torture, inhuman or degrading

78

Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]} at para 77. 79 Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]} at para 80–81. 80 Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]} at para 81. 81 Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]} at para 82. 82 Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]} at para 85.

212

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

treatment or punishment provision) and of Article 14 (the non-discrimination provision) in conjunction with Article 3 of the Convention. The State was ordered to pay pecuniary damages.83 Em. Prof. Dr. Baron Marc Bossuyt points out that “Today, the Court [ECtHR] has attributed positive obligations to virtually all Convention rights.”84 Em. Prof. Dr. Baron Marc Bossuyt, along with certain other legal scholars including some judges, take issue with the notion that such “positive obligations” were agreed to by the States Parties to the Convention. However, on the analysis here, cases such as Volodina85 illustrate that in fact such positive obligations are inherent in Convention rights (and for that matter constitutional rights) for without them the Convention guarantees (or as the case may be; constitutional guarantees) are often, in practice, no more than empty lofty commitments or promises. Such philosophical or theoretical commitments would and did not serve to protect Ms. Volodina from her grievous injuries arising from significant domestic violence given that the State’s legislation did not allow for decisive protective State measures. Viewed in this light; the notion of the Convention rights as inherently implying positive obligations is the result of judicial activism that confers to the Convention rights substantive and practical meaning. In sum the Convention loses much of its meaning and import if it is assumed that States Parties, in consenting to abide by it, were in essence agreeing amongst themselves to limit those fundamental human rights articulated in such a way as to inoculate the State from meaningful responsibility in honoring the Convention guarantees whenever they chose. Further Em. Prof. Dr. Baron Marc Bossuyt raises the concern of some that the ECtHR is “continuously lowering the threshold of Article 3” [of the Convention].86 He listed a few cases, for instance, where the State was found to have violated Article 3 due to the unacceptable conditions in which asylum seekers were held for a very brief period of days or hours.87 He asks “Is that compatible with the absolute character of the prohibition on torture which allows no exception, no restriction and no derogation. . .?” and for which States can be held responsible under

83

The ECtHR Majority in Volodina ruled it unnecessary to decide the Convention Article 13 issue. Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights (speech) http://archive.openeurope.org.uk/Content/Documents/ speechmarcbossuytopeneuropesept2013.pdf at p. 4. 85 Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]}. 86 Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights (speech) http://archive.openeurope.org.uk/Content/Documents/ speechmarcbossuytopeneuropesept2013.pdf at p. 7. 87 Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights (speech) http://archive.openeurope.org.uk/Content/Documents/ speechmarcbossuytopeneuropesept2013.pdf at p. 7. Reference is made there by Em. Prof. Dr. Bossuyt, Baron Marc to two days of unacceptable conditions of detention for asylum seekers in Rahimi v. Greece (5 April 2011) and maybe only 2 h in Tehrani and Others v. Turkey (13 April 2010). 84

4.3 Case 2: Volodina v Russia (Application No. 41261/17). . .

213

Convention Article 3.88 The current author would answer ‘yes it is compatible’ since the individuals’ human dignity had been grievously assaulted and at least mental suffering resulted which must have been accompanied with intense fear. To assess the level and nature of suffering of the victim of a potential Article 3 Convention violation it is necessary to look at the broader context in which the events occurred including the relationship (i.e. power dynamic) between the abuser and victim.89 For instance; a highly vulnerable person such as an asylum seeker at the mercy of the receiving State has a threshold of suffering which differs from others in other contexts not to mention how that threshold is impacted by a possible traumatic history of persecution in a home country, the brutalities that may have been suffered on the asylum journey etc. It is precisely the failure to consider the particular context as in Volodina for instance (where the State essentially considered the domestic pattern of abuse to be a private matter that did not warrant public prosecution nor State interference in offering protection) that increases the risk of a Convention Article 3 violation. Em. Prof. Dr. Baron Marc Bossuyt also raised concern over the ECtHR notion of ‘particularly vulnerable groups’.90 In Volodina, for instance, the European Court of Human Rights considered Ms. Volodina to be a member of a highly vulnerable group as a female target of abuse in a domestic violence context. Em. Prof. Dr. Baron Marc Bossuyt contends that in recognizing ‘particularly vulnerable groups’ the “Court is shifting from protecting civil rights of the universal human being towards protecting social rights of specific categories of persons having particular needs.” And asks “How many more specific categories will the Court discover in the near

88

Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights (speech) http://archive.openeurope.org.uk/Content/Documents/ speechmarcbossuytopeneuropesept2013.pdf at p. 7. 89 The ECtHR in Volodina clarifies the point on factors to consider in determining when the Article 3 Convention threshold has been reached as follows: “Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. An assessment of whether this minimum has been attained depends on many factors, including the nature and context of the treatment, its duration, and its physical and mental effects, but also the sex of the victim and the relationship between the victim and the author of the treatment. Even in the absence of actual bodily harm or intense physical or mental suffering, treatment which humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or which arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, may be characterised as degrading and also fall within the prohibition set forth in Article 3. It should also be pointed out that it may well suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others. . .” Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001194321%22]} at para 73. 90 Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights (speech) http://archive.openeurope.org.uk/Content/Documents/ speechmarcbossuytopeneuropesept2013.pdf at p. 7.

214

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

future?”91 Respectfully, the current author cannot agree. In recognizing ‘particularly vulnerable groups’ the ECtHR, on the view here, is elevating the inherent dignity of individuals in these groups who have traditionally been degraded and at the mercy of societal forces reflected too often in State legislation that tramples in certain ways their fundamental human rights. For instance, it is women who are over-represented in domestic violence situations as the victims often losing their lives as the result of lack of effective State action including legislative protection. Ms. Volodina in fact presented the ECtHR with systemic State data on gender-based violence in Russia as reflecting that the problem was widespread and disproportionately affected women as victims and also in family contexts.92 She had, it will be recalled, petitioned the ECtHR also for a finding of discrimination (based on gender) under Article 14 of the Convention. The recognition of “particularly vulnerable groups” is judicial activism directed to ensuring equal protection of and access to the Convention guarantees in principle and in practice. As to how many such groups the ECtHR intends to recognize; that all depends, this author would suggest, on how many such groups a State in effect oppresses and suppresses; whether intentionally or as an inadvertent by-product of ineffectual legislation and lack of the required positive actions to protect the core human rights of these group members.

4.4

Case 3: X v The Former Yugoslav Republic of Macedonia (Application No. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) (‘Evolving Common Standards’ for Acceptable State Conduct in the Protection of Newly Recognized Particularly Vulnerable Groups Such As Transgendered Persons)

X v The Former Yugoslav Republic of Macedonia93 concerns a transgender complainant who alleged before the European Court of Human Rights that Macedonia does not have a legislative framework for legal gender recognition for transgendered persons and offers no remedy in this regard. Further the complainant alleged that Macedonia imposed on him an unfair burden of “genital surgery to be undertaken in

91

Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights (speech) http://archive.openeurope.org.uk/Content/Documents/ speechmarcbossuytopeneuropesept2013.pdf at p. 7. 92 Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-194321%22]} at para 105. 93 X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/ 10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf.

4.4 Case 3: X v The Former Yugoslav Republic of Macedonia (Application. . .

215

order to have his sex/gender marker in the official records changed.”94 The applicant was born in 1987 and at birth was registered as a girl and given a feminine sounding name. The applicant from a young age was uncomfortable with the female gender identity assigned him at birth. In 2010 the applicant was seen at a specialist medical clinic in Belgrade and identified as a transsexual. The applicant was issued a medical certificate that recommended hormone treatment and eventual genital surgery. Subsequently the applicant began taking testosterone. In 2011 the applicant applied for a legal name change of his first and last names. When the new identity card was issued by Macedonia, the applicant’s first name was clearly listed as a male name however, the “sex/gender marker and numerical personal code (composed of ten digits, some of which indicate the person’s sex) remained the same, identifying the applicant as a female.”95 A short time later the applicant applied to have the sex/gender marker and numerical personal code on his birth certificate corrected to identify him as a male. The complainant in support of that application submitted copies of a medical report from the specialist clinic he had attended as well as a paper “Human rights and gender identity” of October 2009 from the Commissioner for Human Rights of the Council of Europe. The Civil Status Registry (a unit within the Ministry of Justice) rejected the applicant’s request stating: no certificate [has been] issued by a competent authority [attesting to the fact] that [the applicant’s] sex [had] been changed, the application having been corroborated only with a certificate that gender reassignment surgery [was] in preparation, which cannot be regarded as proof that it [would] take place.96

Mr. X appealed the decision to the Ministry of Justice pointing out that there was no statutory regulation addressing this issue. He also informed the Ministry that sex reassignment surgery was unavailable in Macedonia and that “. . .such a requirement would subject him to unwanted medical treatment and sterilisation, in breach of his rights.”97 Mr. X took the position that he had already been identified as a transsexual by medical and other experts in the field and that this should be sufficient to support his application for a change in his State legal recognition to male. The Ministry rejected his appeal. Mr. X then appealed to an Administrative Court on the matter arguing that “there was no statutory provision proscribing or specifying any

94

X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/ 10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf at para 3. 95 X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/ 10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf at para 8. 96 X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/ 10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf at para 10. 97 X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/ 10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf at para 11.

216

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

conditions for the alteration of a person’s sex/gender marker and personal code.”98 The Administrative Court quashed the Ministry’s decision. In the interim Mr. X underwent a double mastectomy and continued hormonal treatment. The registry instructed the Forensics Unit to examine the applicant. The Forensics unit reported that although the applicant had not undergone genital surgery he was exhibiting male characteristics as a result of the mastectomy and hormonal treatment and this was affecting his daily life and therefore he should be granted the legal change in the identifiers on his birth certificate regarding sex/gender. However the Registry ultimately again rejected the request for alteration of the sex/gender markers on Mr. X’s birth certificate “holding that despite its requests to competent authorities it had not obtained ‘evidence of an actual change of sex.’”99 Mr. X appealed the Registry’s decision and the Ministry once again rejected the appeal but the Administrative Court set aside that Ministry dismissal as well for certain key procedural errors. The Registry then rejected an application by Mr. X based on lack of jurisdiction of the Registry to address the matter with the Registry taking the position that the issue “did not concern the rectification of an error in an entry, but the alteration of the sex/gender marker in the civil status register.”100 The State Commission that had the authority to address the issue upheld the decision of the Registry. Further the applicant submitted several reports by psychologists that detailed the adverse effects on Mr. X of this protracted fight to have his male gender identity/sex legally recognized.101 Mr. X advanced a case before the European Court of Human Rights under Article 8 of the Convention regarding the lack of a legal regulatory framework in Macedonia to deal with legal recognition of changes in gender identity, the legally insupportable demand that he undergo genital surgery in order to qualify for that requested legal recognition as a male, and (under Convention Article 13) the lack of an effective remedy in this regard. The Court accepted the complaint as admissible under Article 8 (respect for private life) since it found that gender identity is an aspect of personal identity and the case concerns the request for a change in the sex/gender marker in the civil status registry. Although administrative court proceedings were ongoing; the ECtHR found that this was a case where the applicant should be considered to have exhausted domestic remedies since the complaint had been and was yet

98

X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/ 10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf at para 12. 99 X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/ 10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf at para 17. 100 X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/ 10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf at para 21. 101 X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/ 10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf at para 22.

4.4 Case 3: X v The Former Yugoslav Republic of Macedonia (Application. . .

217

unresolved for 7 years and there was no telling how much longer the case would drag on within various State mechanisms. The ECtHR found that the State had a positive obligation to ensure the right of respect for private life which may involve also instituting “measures that may include both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation, where appropriate, of these measures in different contexts.”102 In the X v The Former Yugoslav Republic of Macedonia case; the issue was precisely the lack of a regulatory legislative scheme addressing the issue of legal recognition for a gender/sex identity change and whether or not gender reassignment surgically was a legally supportable necessary precondition for such legal recognition. The Civil Registry never did specify to Mr. X what evidence was required to support his application for the change in gender/sex identity on his birth certificate nor was it ever clarified what law regulated the requirement for any specific evidence to support the application (i.e. there was in fact no statutory regulation requiring proof of surgical genital gender reassignment in order to alter the markers on the birth certificate relating to gender identity). Hence the ECtHR found there had been a violation of Article 8 of the Convention in regards lack of respect for the private life of Mr. X arising from the lack of a relevant regulatory scheme relating to legal recognition of a new gender/sex identity. Let us consider now the views of the Dissenting Justices (Judge Pejchal and Judge Wojtyczek) in X v The Former Yugoslav Republic of Macedonia and assess whether judicial activism in this case by the Majority exceeded the terms of the Convention as the Dissenting Judges contended. First, however, understand that the Dissenting judges in the case, respectfully on the view here, appeared to rely on an interpretive frame of extreme textualism. This is reflected, it is here respectfully contended, in the following statement of their views (which seem to echo those of Em. Prof. Dr. Baron Marc Bossuyt103): . . .in a Europe that adheres to the ideals of the rule of law and democracy the letter of the Convention is the impassable frontier for the powers of the European Court of Human Rights. It is incompatible with the mandate of a judicial body to trigger or amplify societal changes by way of an “evolutive interpretation” of the Convention (emphasis added).104

More specifically the Dissenting judges in X v The Former Yugoslav Republic of Macedonia alleged that the Majority had not defined sufficiently clearly and 102

X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/ 10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf at para 63. 103 See Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights (speech) http://archive.openeurope.org.uk/Content/Documents/ speechmarcbossuytopeneuropesept2013.pdf. 104 X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/ 10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf (Dissenting Opinion Judge Pejchal and Judge Wojtyczek) at para 2.

218

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

precisely the “definition of the content of the Convention right and in particular of the positive obligations encompassed therein”105 relevant to the case. However, on the view here, the Majority opinion clearly refers to the positive State obligation to respect the private life of the applicant which encompasses the right to State acknowledgement of his new male gender/sex identity in government-issued documents such as his birth certificate. The latter was clearly identified by the Majority and the complainant as necessary for respect of the human dignity (here of Mr. X) and for the complainant’s mental well-being which are well recognized as elements of the Article 8 right in ECtHR case law (i.e. the Majority acknowledged based on psychological reports that the mental health of the complainant was deteriorating as a result of the protracted struggle, without success to date, to have his male gender/sex identity recognized by the State on his birth certificate). The Majority also referred to outside sources to interpret the scope of Convention Article 8 (since the Convention Article itself in express terms is broadly stated as respect for private life without specificity). For instance, the Majority referred to the Parliamentary Assembly of the Council of Europe Resolution 2048 (2015) on Discrimination against transgender people in Europe, 22 April 2015 6.2. As concerns legal gender recognition: 6.2.1. develop quick, transparent and accessible procedures, based on self-determination, for changing the name and registered sex of transgender people on birth certificates, identity cards, passports, educational certificates and other similar documents [and] make these procedures available for all people who seek to use them, irrespective of age, medical status, financial situation or police record. . .(emphasis added).106

The Majority also, for instance, referred to the United Nations expectations of States regarding the latter’s positive obligations in the area of gender identity recognition of transgendered persons: The High Commissioner recommends that Member States: ... (h) Facilitate legal recognition of the preferred gender of transgender persons and establish arrangements to permit relevant identity documents to be reissued reflecting preferred gender and name, without infringements of other human right107

105

X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/ 10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf (Dissenting Opinion Judge Pejchal and Judge Wojtyczek) at para 3. 106 X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) Majority Opinion at para 32 https://tgeu. org/wp-content/uploads/2017/10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf. 107 United Nations Commissioner for Human Rights Report Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity (A/HRC/ 19/41), 17 November 2011 Cited in X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) Majority Opinion at

4.4 Case 3: X v The Former Yugoslav Republic of Macedonia (Application. . .

219

The UN recommendation in this area reflects the aspirational common human rights standards for UN member States. Such a recommendation represents also an evolution in approach and thought on the issue of transgendered person gender identity and its recognition by the State. At the same time, however, the UN is a body that has some universal gravitas as an authority in identifying what constitutes decent and civilized treatment of our fellow human beings and the proper scope of recognition of their fundamental human rights and freedoms. The positive obligation to afford the complainant the Convention right of respect for his private life led also to obligations procedural in nature in order to give the right practical effect. The latter being (a) to establish a reasonable, non-oppressive regulatory scheme grounded in law that could address the issue of altering gender identity markers in government-issued documents and (b) a regulatory scheme that, furthermore, did not require for such a revision of the documents, as a humiliating precondition, that the applicant would have to first undergo an invasive and high risk genital surgery to ensure his genitals conformed to the stipulated new gender identification in any altered government-issued documents (a requirement that was not stipulated in the existing law of the Former Yugoslav Republic of Macedonia in that there was, in any event, no regulatory scheme at all in that State addressing the issue of alteration in gender markers in government-issued documents for transgendered persons). In essence, the Dissenting judges appear to consider that such substantive and procedural rights and positive State obligations were not incorporated in the Convention as there is no express mention in the “letter of the Convention”108 of transsexuals, gender reassignment surgery, gender identity of transsexuals pre- and post-genital surgery operation nor of regulatory schemes in relation to these matters. This then reflects, on the respectful view here, the extreme textualist approach of the Dissenting judges that demands sticking to the express text of the Convention to define the Convention guarantees and their scope. Yet, at the same time, the Dissenting Judges stated that they agreed that gender identity is an aspect of personal identity covered under Article 8 of the Convention ‘Respect for private life.’109 However; the Dissenting judges in X v The Former Yugoslav Republic of Macedonia nevertheless contended that the Majority was engaged in relying on argument based on a key non sequitur: The problem is that this general requirement does not tell us anything about the precise scope of State obligations in this field. The conclusion that Article 8 of the Convention is applicable

para 34 https://tgeu.org/wp-content/uploads/2017/10/2017-07-28_X-v.-Macedonia_TPI_FINAL. pdf. 108 See X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/10/ 2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf (Dissenting Opinion Judge Pejchal and Judge Wojtyczek) at para 2. 109 Gender identity is an aspect of personal identity for most if not all persons although, for some, gender identity is self-identified as being fluid and even not necessarily a binary-based gender identity preference.

220

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

to the present case does not logically follow from the proposition that the right to respect for private life under Article 8 of the Convention extends to gender identity, as a component of personal identity (emphasis added).110

In fact, with respect, it appears to the current author that it is the Dissenting Justices that engage in non sequitur argument; first agreeing that the right to private life under Article 8 of the Convention includes respect for gender identity and then moving to exclude applicability in the case of transgendered persons requesting and needing State recognition of their preferred gender identity. In this regard note that it is, on the view here, with respect, the denial of a Convention right or the limitation thereof—where that limitation is not specified in the limitations expressly articulated in the Convention—that requires justification (see Article 17: “Prohibition of abuse of rights” and Article 18: “Limitations on use of restrictions on rights” of the Convention).111 Further; if we consider the text of Convention Article 8 (which includes the right to respect for private life); it specifies that this right is, in the normal course, not to be interfered with by public authorities: . . .except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others (emphasis added).112

The Dissenting Judges, however, do not explain why or how exclusion of transgendered persons from the right to respect by the State of their preferred gender identity (gender identity being an aspect, all the judges in the case at bar agree, of personal identity which in turn is a feature of private life) is purportedly in accord with the Convention and necessary in a democratic society. The burden is on the State to justify such limitations but the Dissenting judges deftly sidestep that issue and switch the burden to the complainant to justify his entitlement to Article 8 protection in the first instance. The Dissenting judges tact and its conceptual underpinning seems reminiscent of certain views articulated by Baroness Hale, Justice of the Supreme Court of the UK, in a 2011 speech to the European Court in Strasbourg where she admonished that “there must be some limits” and, among other things, challenged the notion of implied rights and expressed the view in regard to implied rights that “those developments should be foreseeable, for otherwise States might be landed with obligations which they would not have signed up had

110

X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/ 10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf (Dissenting Opinion Judge Pejchal and Judge Wojtyczek) at para 4. 111 European Convention on Human Rights (The Convention as amended by the provisions of Protocol No. 14 (CETS no. 194) as from its entry into force on 1 June 2010) https://www.echr.coe. int/Documents/Convention_ENG.pdf. 112 European Convention on Human Rights (The Convention as amended by the provisions of Protocol No. 14 (CETS no. 194) as from its entry into force on 1 June 2010) https://www.echr.coe. int/Documents/Convention_ENG.pdf.

4.4 Case 3: X v The Former Yugoslav Republic of Macedonia (Application. . .

221

they known”.113 Let us consider then the sticky issue of State Parties to the Convention and just “what it is they signed up for”—to put it in colloquial terms—and what should have been their foreseeable positive obligations in respect of the Convention guarantees. The statement that “The jurisdiction of an international court is determined by the States parties in its constitutive treaty”114 seems self-evident and eminently logical. However let’s consider the issue of what the constitutive treaty can be taken to properly exclude from the jurisdiction of the international human rights court.115 When we are considering an international human rights court’s jurisdiction; the statement cannot mean, it is here respectfully contended, that the States Parties can legally agree by treaty to waive or negate or substantively limit the rights and freedoms which are inherent in the dignity of the person (compare also Convention Articles 17 and 18 which addresses this issue to some extent). Hence this author would argue that the binding nature of the European Convention derives not simply from the mutual consent of the States Parties to abide by it (assuming the consent does not violate in any way the scope of the treaty human rights entitlements) but also from the customary and jus cogens law and respect for the human dignity of all persons that it encompasses and that is foundational to democracy and the democratic rule of law.116 Thus the dispute here centers on what is the lawful scope of the constitutive human rights treaty at issue. Further, strict reliance, it is here argued, only on the express terms of the Convention in stipulating its rights guarantees is not a path to the correct interpretation of the treaty’s substantive meaning or scope nor the basis for a correct appraisal of the subject matter jurisdiction of the ECtHR. This since such a judicial tactic may serve as a barrier to the full acknowledgement of the complainant’s human dignity and inherent human rights entitlements in a particular case such as in X v The Former Yugoslav Republic of Macedonia. Hence extreme textualism as a form of conservative judicial activism, on the respectful view here, ultimately condones through inappropriate deference to the State (a) ‘buyers’ remorse’ of the Convention State Parties, in certain instances, where the States are trying to put the ‘toothpaste back in the tube’ (the ‘toothpaste’ being the State positive obligation for full recognition of Convention human rights entitlements

113

Baroness Hale cited in Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights (speech) http://archive.openeurope.org.uk/Con tent/Documents/speechmarcbossuytopeneuropesept2013.pdf at p. 11. 114 Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights (speech) at p. 12 http://archive.openeurope.org.uk/Content/Documents/ speechmarcbossuytopeneuropesept2013.pdf. 115 Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights (speech) http://archive.openeurope.org.uk/Content/Documents/ speechmarcbossuytopeneuropesept2013.pdf at p. 12. 116 Contrast Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights (speech) http://archive.openeurope.org.uk/Content/Documents/ speechmarcbossuytopeneuropesept2013.pdf at p. 12 “The legal basis for the binding character of the States parties’ obligations lies in the acceptance of that treaty.”

222

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

and ‘the tube’ in this metaphor being the narrow under—inclusive conception of human rights and freedoms reminiscent of epochs past (one defined in negative terms only-prohibiting State violations—but not considering ‘implied rights’, nor ‘positive State obligations’, nor ‘evolving’ understandings of rights and of the rights of ‘particularly vulnerable groups’) and (b) retrospectively and without foundation in law limiting core Convention human rights guarantees.117 For instance in X v The Former Yugoslav Republic of Macedonia; the Dissenting judges cite the Majority’s reference to Hämäläinen v. Finland ([GC] ECtHR118 on the question of the extent of margin of appreciation owed the State Party wherein the Court states “Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted”.119 The latter makes sense in that it is grounded, it would seem, on the recognition that the failure of the State to respect “a particularly important facet of an individual’s existence or identity” is an affront to one’s human dignity and hence antithetical to democratic values. Clearly in the case of X v The Former Yugoslav Republic of Macedonia something intimate and central to one’s identity-namely one’s gender identity-is at the heart of the case and hence the State Party is to be allowed a very restricted margin of appreciation. Indeed the Grand Chamber in Hämäläinen v. Finland went on to cite cases where the ECtHR has acknowledged the State’s positive obligation under Convention Article 8 to respect and officially and legally acknowledge the preferred gender identity of a transsexual person. The Dissenting Judges in X v The Former Yugoslav Republic of Macedonia, however, stayed stalwart in their resolve to block the European Court of Human Rights expansive interpretation of the Article 8 Convention rights as applied to such issues as confront transsexuals (i.e. obtaining legal recognition of their preferred gender identity in government documents). This in part by relying on the specifics of the ECtHR cases concerning transsexuals cited in Hämäläinen v. Finland regarding legal recognition of the preferred gender identity and alleging that “. . .the Grand Chamber did not impose any obligation to recognise the change of sex by transsexuals who had not undergone an operation, leaving the regulation of that issue to the High Contracting Parties (emphasis added).”120 The latter claim 117

This in direct contradiction to Articles 17 and 18 of the European Convention. Case of Hämäläinen v. Finland ([Grand Chamber], (Application no. 37359/09) (European Court of Human Rights) Judgement 16 July, 2014, at para 67–68 Accessed 5 August, 2019 https://hudoc. echr.coe.int/eng#{%22itemid%22:[%22001-145768%22]} Cited in X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/10/2017-07-28_X-v.-Macedo nia_TPI_FINAL.pdf (Dissenting Opinion Judge Pejchal and Judge Wojtyczek) at para 5. 119 Case of Hämäläinen v. Finland ([Grand Chamber], (Application no. 37359/09) (European Court of Human Rights) Judgement 16 July, 2014, at para 67 Accessed 5 August, 2019 https://hudoc.echr. coe.int/eng#{%22itemid%22:[%22001-145768%22]} Cited in X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/10/2017-07-28_X-v.-Macedonia_TPI_FINAL. pdf (Dissenting Opinion Judge Pejchal and Judge Wojtyczek) at para 5. 120 X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) Dissenting Opinion of Judges Pejchal and 118

4.4 Case 3: X v The Former Yugoslav Republic of Macedonia (Application. . .

223

of the Dissenting Judges in X v The Former Yugoslav Republic of Macedonia was a deduction apparently based on the following Grand Chamber statements in in Hämäläinen v. Finland: There will also usually be a wide margin of appreciation if the State is required to strike a balance between competing private and public interests or Convention rights. . .While affording a certain margin of appreciation to States in this field, it has held that States are required, in accordance with their positive obligations under Article 8, to recognise the change of gender undergone by post-operative transsexuals through, inter alia, the possibility to amend the data relating to their civil status, and the ensuing consequences (emphasis added).121

However, it is here contended, that the above quote from the Hämäläinen v. Finland case cannot be taken to support the Dissenting Judges’ position in X v The Former Yugoslav Republic of Macedonia that the State has no positive obligation (based on previous ECtHR jurisprudence) to recognise the preferred gender identity of transsexuals who have not undergone genital surgical reassignment surgery regardless whether or not they planned to undergo that procedure. This is the case, it is here argued with respect, for several reasons including but not necessarily limited to the following (a) the transsexual’s desire for legal recognition by the State of his or her (or their) preferred gender identity is as deeply felt, sincere and necessary for a sense of well-being for the pre-operative transsexual as it is for the post-operative transsexual in that for both this is “a particularly important facet of an individual’s existence or identity”122; (b) the preferred gender identity of a transsexual person, whether that person is pre-operation or post (referring to genital surgical reassignment) or not planning to have genital surgery at all, is not a case that “raises sensitive moral or ethical issues”123 for the community at large in that access to legal recognition of preferred gender identity is an Article 8 Convention personal private and human rights issue and one, furthermore, to which non-discriminatory Convention principles must apply. It is not in the public interest in a democracy to deny a stereotyped, targeted and particularly vulnerable group their right to respect for private life where that person’s private situation and behavior is peaceful and

Wojtyczek at p. 21, point 5 https://tgeu.org/wp-content/uploads/2017/10/2017-07-28_X-v.-Mace donia_TPI_FINAL.pdf. 121 Case of Hämäläinen v. Finland ([Grand Chamber], (Application no. 37359/09) (European Court of Human Rights) Judgement 16 July, 2014, excerpts from para 67–68 https://hudoc.echr.coe.int/ eng#{%22itemid%22:[%22001-145768%22]}. 122 Compare Case of Hämäläinen v. Finland ([Grand Chamber], (Application no. 37359/09) (European Court of Human Rights) Judgement 16 July, 2014, at para 67 Accessed 5 August, 2019 https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-145768%22]} Cited in X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/10/2017-0728_X-v.-Macedonia_TPI_FINAL.pdf (Dissenting Opinion Judge Pejchal and Judge Wojtyczek) at para 5. 123 Case of Hämäläinen v. Finland ([Grand Chamber], (Application no. 37359/09) (European Court of Human Rights) Judgement 16 July, 2014, at para 67 https://hudoc.echr.coe.int/eng#{%22itemid %22:[%22001-145768%22]}.

224

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

respects the rights and freedoms of others (as is the case with transsexuals who simply request legal recognition of their preferred gender identity so that they may feel authentic and whole in their presentation socially and in their personal identity in their daily lives).124 Further it is not in the public interest to have civil records that are in error as when a transsexual person’s preferred gender identity corresponding with the gender identity they live every day is not reflected in the civil record and (c) it is unpersuasive that the State should be granted a wide margin of appreciation in X v The Former Yugoslav Republic of Macedonia based on the fact that, at the time the case was before the ECtHR, there was a lack of consensus among European Union member States regarding legal recognition of the preferred gender identity of transsexual persons, if any, and any preconditions for the same where the right was recognized.125 This is the case in that the lack of consensus was not about the relative importance of the interests at stake (which all agree were high given that gender identity is central to personal identity) nor was the lack of consensus about the best means of protecting that interest since all State Parties would agree that legislative regulatory measures are a necessary precondition for legal recognition of gender

124

Note the Case of A.P., Garcon and Nicot v France (applications nos. 79885/12, 52471/13 and 52596/13) where “The Court ECtHR ruled that the condition of compulsory sterilizing surgery or treatment for legal gender recognition violated Article 8 of the Convention” See Strasbourg Observers, A.P., Garcon and Nicot v France: The Court draws a line for trans rights 5 May, 2017 blog https://strasbourgobservers.com/2017/05/05/a-p-garcon-and-nicot-v-france-the-courtdraws-a-line-for-trans-rights/ Accessed 5 August, 2019. The Majority in that case stated: “. . . the Court notes that the Contracting Parties are divided as regards the sterility requirement . . . There is therefore no consensus on the subject. It further notes that public interests are at stake, with the Government pleading in that regard the necessity of safeguarding the principle of the inalienability of civil status and ensuring the reliability and consistency of civil-status records, and that the present case raises sensitive moral and ethical issues.” See Case of A.P., Garcon and Nicot v France (applications nos. 79885/12, 52471/13 and 52596/13) (ECtHR) Judgement of 6 April, 2017 at para 122 https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-172556%22]} The current author has explained above why legal recognition of the preferred gender identity of a transsexual person is not properly considered a sensitive ethical or moral question from the point of view of the community at large but is rather a fundamental human rights issue. Further the author has explained that the public interest in a democracy is not served by undercutting the dignity of vulnerable groups as is the case when legal recognition of preferred gender identity is denied to transsexual persons for whatever reason. In addition to which civil –status records must not be consistently in error as is the case where legal recognition of the preferred gender identity of a transsexual person is denied. The public authorities in such a case err in confounding gender identity with other factors such as genetic sexual identity and/or conformity or total or partial lack of conformity of the genitalia with the preferred gender identity. Modern science draws various distinctions in this regard. 125 The document Trans Rights Europe Map 2018 published by the NGO Transgender Europe states that “legal recognition of the gender identity of transgender people is not possible in seven Council of Europe member States (Albania, Andorra, Cyprus, Liechtenstein, Monaco, San Marino and the former Yugoslav Republic of Macedonia) ” and “. . . such recognition, even where it is possible, is subject to different legal requirements, such as sterilisation, compulsory medical intervention or mental health assessment, divorce or age restrictions.” See X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) at para 35 https://tgeu.org/wp-content/uploads/2017/10/2017-07-28_X-v.-Mace donia_TPI_FINAL.pdf.

4.4 Case 3: X v The Former Yugoslav Republic of Macedonia (Application. . .

225

identity or altered gender identity in government-issued documents such as birth certificates.126 In sum then, on this author’s respectful view, there is nothing in the evolving jurisprudence of the ECtHR to support the extrapolation that the Dissenting Justices in X v The Former Yugoslav Republic of Macedonia make that the Article 8 Convention protection of the right to enjoy respect for private life— encompassing also State legal recognition of the preferred gender identity of the transsexual person—is restricted to application only in the case of post-operative transsexuals. It is, furthermore, on the respectful view here, the function of the ECtHR, through its case law and evolving understanding of human rights issues, including novel ones, to clarify in its interpretations for the States Parties what the Convention requires; that is, for instance, what is the scope of the human rights entitlements incorporated in the treaty. It is here contended that the intentions of Convention State Parties to substantively limit inherent core human rights entitlements cannot be regarded as within the exercise of State sovereignty but rather reflects, it is here respectfully argued, an ultra vires exercise of State authority.127 Hence the unwillingness of the ECtHR to defer to the State in accepting such limitations does not “amount to a limitation of State sovereignty without democratic legitimation”128 but rather the converse; a demand that Convention guarantees and their scope be interpreted consistent with core democratic values and principles that place a high premium on respect for human rights and the dignity of all within the State Party jurisdiction. Hence this author would respectfully disagree with the view that “. . .for some the notion of a “living document” is “a Trojan horse for judicial activism, giving Strasbourg judges the liberty to find what they want to find in the interstices of Convention rights”.129 It is rather, on the respectful view here, the fact that some object to the inherently fulsome scope of the human rights set out in the Convention and, under Article

126

It will be recalled that the ECtHR in Hämäläinen v. Finland held that a wider margin of appreciation is to be afforded the State where “there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it” and especially when sensitive ethical or moral issue are involved. (See Case of Hämäläinen v. Finland ([Grand Chamber], (Application no. 37359/09) (European Court of Human Rights) Judgement 16 July, 2014, at para 67 https://hudoc.echr.coe.int/eng#{%22itemid% 22:[%22001-145768%22]}) This author has discussed above why none of these factors apply in the lack of consensus within the member States of the Council of Europe regarding the issue of the transsexual person seeking legal recognition of preferred gender identity pre or post genital reassignment surgery. 127 For a discussion of such ultra vires exercise of so-called State sovereignty see for instance Grover (2010). 128 Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights (speech) http://archive.openeurope.org.uk/Content/Documents/ speechmarcbossuytopeneuropesept2013.pdf at p. 12. 129 UK Human Rights Blog of 6 July 2010, Rosalind English. Cited in Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights (speech) http://archive.openeurope.org.uk/Content/Documents/speechmarcbossuytopeneuropesept2013.pdf at p. 12.

226

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

1, afforded to everyone in the State’s jurisdiction; that allows the Trojan horse of extreme textualism (a form of conservative judicial activism) to creep into legal analysis and from which emerges arguments advancing potentially non-democratic purported legitimate implied limitations and negations of Convention fundamental rights. Indeed the Convention itself makes clear at Article 17 that “Nothing in this Convention may be interpreted as implying for any State. . . any right to engage in any activity or perform any act130 aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”131 The drafters of the Convention then did not set out provisions prohibiting the ‘reading in’ of rights (implied rights) or barring the taking of an expansive view of Convention rights and their implications practically (i.e. there is no prohibition in the treaty on applying evolving interpretations of the meaning and scope of Convention rights and on determining positive State obligations in regards to these rights). The rights listed in the Convention are articulated in such a way as to allow for (a) broad interpretation of the scope and so as to permit the particular contextual factors and facts in a case to imbue the rights guarantee with some specificity as to its substantive meaning and to allow for (b) evolving interpretations of the Convention guarantees that reflect new understandings and more democratic contemporary social norms where the latter develop. On the issue of evolving interpretations of the Convention guarantees; those favorably disposed to what arguably might be termed ‘conservative judicial activism’, reliant often on strict textualism, are particularly alarmed. Thus, for instance, the Dissenting judges in X v The Former Yugoslav Republic of Macedonia expressed their concern regarding the Majority mentioning trends in Europe (such as the trend to allow the transsexual person legal recognition of their preferred gender identity without requiring as a precondition that the person undergo some medical procedure that may or may not be specified in the domestic regulatory system if there is one relevant to the matter). The Dissenting judges state in this regard: We note that the reasoning of this judgment refers to a “trend” that “has been emerging” in Europe. References to “emerging trends” are typical signs of judicial activism and are used in the absence of arguments under the applicable rules of treaty interpretation, codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties.132

The current author would suggest that, to the contrary, a refusal to consider new understandings of fundamental human rights and freedoms and their broadened

130

This would include then also any legislative act. European Convention on Human Rights (The Convention as amended by the provisions of Protocol No. 14 (CETS no. 194) as from its entry into force on 1 June 2010) https://www.echr.coe. int/Documents/Convention_ENG.pdf. 132 X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) https://tgeu.org/wp-content/uploads/2017/ 10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf (Dissenting Opinion Judge Pejchal and Judge Wojtyczek) at para 8. 131

4.4 Case 3: X v The Former Yugoslav Republic of Macedonia (Application. . .

227

scope violates the spirit and letter of the Vienna Convention Articles 31 and 32.133 For instance; the failure to take into account in interpreting the European Convention trends—in this instance a growing consensus on the applicability of human rights entitlements such as respect for private life to the unique needs and circumstances of especially vulnerable persons such as transsexuals—would appear to be inconsistent with Article 31(1) of the Vienna Convention which reads: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose (emphasis added)” and Article 32 which allows recourse to “supplementary means of interpretation” when, for instance, the means of interpretation in Article 31 lead to ambiguity or an absurd result. It is here contended, with respect, that the Dissenting judges in X v The Former Yugoslav Republic of Macedonia somehow have been led to an erroneous interpretive result in their holding that Mr. X had no basis in domestic law to request a change in the gender markers on his birth certificate. This as he had not had genital reassignment surgery and hence his case, on the view of the administrative authorities in his country,134 was without merit (i.e. he was still not a male in their view) and/or the case did not fit a category for which they had jurisdiction (i.e. altering the birth registry as to the gender markers based on a shift in gender identity). This since Mr. X, according to the domestic non-judicial administrative body, was female at birth and there was therefore no error in the personal identity markers on the birth certificate indicating ‘female’ and, his not being a postoperation transsexual; there was still no error in the gender marker on the government-issued documents in the administrative body’s view. Clearly the non-judicial administrative bodies in Macedonia confounded on the one hand ‘gender identity’: one’s psychological identification with a particular gender (or for some persons psychological identification with more than one gender) with, on the other: ‘biological sex’ (as indicated in part by male versus female genitalia or in the case of hermaphrodites a mixture of both). At birth the child cannot identify his gender identity and the parents most often assume that the gender identity matches and will continue to match the biological and genetic sex. Cognizance of gender identity develops over time with the child’s social experiences and development cognitively, socio-emotionally and in other ways. Whether transsexual persons were such from the start is an unanswered scientific question. The point is, however, that at some juncture Mr. X self-identified as a transsexual person with a male gender identity and respect for his private life required that his male gender identity be legally recognized by the State. His legal claim is well-grounded in that the State in question, Macedonia, considered gender identity to be an aspect of personal identity 133

Vienna Convention on the Law of Treaties entered into force 27 January, 1980 https://treaties.un. org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf. 134 Note that in X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights); the domestic Administrative Court had not yet ruled on the merits of the case (despite Mr. X’s prolonged unsuccessful struggle with non-judicial administrative bodies to have the matter favorably resolved from his perspective). Rather the domestic Court had only reached its conclusions based on technical procedural issues.

228

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

which in turn is part of one’s private life (i.e. in 2017 the Administrative Court had ordered new gender markers be entered into the civil registry for two transgendered persons who had undergone genital gender reassignment surgery).135 Rather the problem was a lack of a regulatory scheme to address the pre-operative situation where the transsexual applicant wishes to have his or her preferred gender identity legally recognized. That problem, as discussed, on the view here, was fundamentally based on a lack of understanding by the public authorities about the nature of gender identity and their confounding it incorrectly with biological sexual identity. The failure to legally recognize the preferred gender identity of Mr. X caused psychological suffering which was also prolonged due to the inordinate delay as detailed above. The misunderstanding of the public authorities in Macedonia regarding the fact that preferred gender identity is largely psychologically based and that it is central to the personal identity also of pre-operative transsexuals does not serve to (a) invalidate the legal basis for the applicant’s claim of a violation of his right to respect for private life nor (b) justify the lack of a regulatory scheme in Macedonia at the time that addressed the plight of pre-operative transsexuals who wished to have State legal recognition of their preferred gender identity. In Mr. X’s case the civilstatus records, at a minimum, were now in error as to his preferred gender/sex identity to which he had a right. The Dissenting judges in X v The Former Yugoslav Republic of Macedonia refer to “social self-regulation” yielding “better results” often than “legal rules.”136 They then advance the proposition that “if there is no consensus among the High Contracting Parties as regards the question of a wide interpretation of some of the Articles of the Convention. . .we cannot adjudicate on the absence of a legislative framework without avoiding the threat of a fundamental conflict with the spontaneous social order among the free citizens of that particular State.”137 The latter proposition is, on the view of the current author highly problematic, in that it suggests that “the spontaneous social order” somehow should take priority where there is no consensus in the interpretation of a particular Convention guarantee and/or on its applicability to a certain unique set of facts as in X v The Former Yugoslav Republic of Macedonia. However it is here contended, in contrast, that it is precisely in such cases where fundamental human rights interests are at stake and the States Parties may not be in full accord (as to the interpretation of a particular

135

X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) at para 30 https://tgeu.org/wp-content/ uploads/2017/10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf. 136 X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) at para 9 https://tgeu.org/wp-content/ uploads/2017/10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf (Dissenting Opinion Judge Pejchal and Judge Wojtyczek). 137 X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights) at para 9 https://tgeu.org/wp-content/ uploads/2017/10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf (Dissenting Opinion Judge Pejchal and Judge Wojtyczek).

4.4 Case 3: X v The Former Yugoslav Republic of Macedonia (Application. . .

229

Convention guarantee as to its’ substantive meaning and scope in a particular fact context) that the ECtHR should assume its responsibility to be the arbiter. This is the preferable and just tact rather than the Court automatically deferring to the State and thereby essentially, without proper basis, endorsing the status quo domestic social order as ipso facto legitimate and democratic. In fact that existing domestic social order may not be at all or adequately respectful of the basic human rights of the complainant particularly where that complainant is a member of an especially vulnerable group as was the case, it is here argued, in X v The Former Yugoslav Republic of Macedonia. The framers of the Convention were, it should be recalled, particularly concerned about the potential for interpretations that in effect negated much of the substantive meaning of Convention guarantees and/or severely limited the scope of the right or freedom at issue that concern being reflected in (a) Article 17 Prohibition of abuse of rights and Article 18 Limitation on use of restriction of rights and (b) the fact that acceptable limitations and their purpose are expressly included in certain of the Convention guarantees and done so with specificity.138 Indeed one could argue that extreme textualism that does not permit interpretations of the Convention that acknowledge ‘implied rights’ and/or ‘positive obligations’ of the State flowing from Convention guarantees is itself inconsistent with the requirements of Articles 17 and 18 of the Convention. This in that the Convention specifically and expressly at Articles 17 and 18 prohibits negating or restricting or otherwise eroding Convention guarantees such as to be unjustifiable in a free and democratic society since to do so would not be in accord with the interests of such a society. Hence the Convention makes reference at Article 18 to the prohibition on limitations specified in the Convention being “applied for any purpose other than those for which they have been prescribed” in the Articles of the Convention at issue; in other words for a nondemocratic purpose. On the view here; denial or restriction of the Convention guarantees to anyone within the State’s jurisdiction (where the limitations are not expressly set out in the Convention)—such as denial of respect for private life via refusal of the State to acknowledge and respect the preferred gender identity of the transgendered person—is non-democratic. This as it undermines human dignity; respect for human dignity being foundational to the democratic rule of law.139 The Convention guarantees are very broadly stated precisely so, on the analysis here, as

138 For instance Article 11 of the Convention: ‘Freedom of Assembly and Association’ sets out the following restriction and, in addition, expressly stipulates the purpose of the restriction: “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. (emphasis added)” European Convention on Human Rights (The Convention as amended by the provisions of Protocol No. 14 (CETS no. 194) as from its entry into force on 1 June 2010) https://www.echr.coe.int/Documents/Convention_ENG.pdf. 139 Grover (2017).

230

4 Judicial Activism, the ‘Living Instrument’ Doctrine and the European Court of. . .

to allow also for implied and evolving rights that are not expressly listed and the State positive obligations that flow from the Convention guarantees.

References Literature Grover SC (2008) The child’s right to legal standing. Lexis Nexis Canada, Markham Grover SC (2010) The European Court of Human Rights as a pathway to impunity for international crimes (especially Part 1). Springer, New York Grover S (ed) (2016) The responsibility to protect: perspectives on the concept’s meaning, proper application and value. Routledge, London Grover S (2017) Human dignity as the foundation for the democratic rule of law: J.C. Hernandez v J. Mesa Jr. 582 U. S. ____ (2017) as an illustrative case. In: Ziccardi Capaldo G (ed) Global community: yearbook of international law and jurisprudence. Oxford University Press, Oxford Grover S (2019) Peremptory international legal norms and the democratic rule of law, Special issues as book series. Routledge (in press) Letsas G (2013) The ECHR as a living instrument: its meaning and legitimacy. In: Follesdal A, Peters B, Ulfstein G (eds) Constituting Europe: The European Court of Human Rights in a National, European and Global Context (Studies on human rights conventions). Cambridge University Press, Cambridge, pp 106–141 Sólyom P (2019) Judicial activism – the last refuge? How the European Court of Human Rights have addressed challenges of democracy and the lack of the separation of powers SSRN Posted 2 July, 2019 https://papers.ssrn.com/sol3/papers.cfm?abstract_id¼3412539. Accessed 30 July 2019 Stiansen Ø, Voeten E (2018) Backlash and judicial restraint: evidence from the European Court of Human Rights (August 17, 2018). https://ssrn.com/abstract¼3166110 or https://doi.org/10. 2139/ssrn.3166110 Zarbiyev F (2012) Judicial activism in international law—a conceptual framework for analysis. J Int Dispute Settlement 3(2):247–278

Materials Council of Europe, European Social Charter: The Collective Complaints Procedure https://www. coe.int/en/web/european-social-charter/collective-complaints-procedure1 Accessed 29 July, 2019 Em. Prof. Dr. Bossuyt, Baron Marc (2013) Judicial activism in Europe: the case of the European Court of Human Rights (speech) http://archive.openeurope.org.uk/Content/Documents/ speechmarcbossuytopeneuropesept2013.pdf Accessed 28 July, 2019 European Convention on Human Rights (The Convention as amended by the provisions of Protocol No. 14 (CETS no. 194) as from its entry into force on 1 June 2010). https://www.echr.coe.int/ Documents/Convention_ENG.pdf Accessed 28 July, 2019 European Social Charter Strasbourg, 3.V.1996. https://www.refworld.org/pdfid/3ae6b3678.pdf (Accessed 29 July, 2019)

References

231

Ita, Rachel Workshop on the ECtHR (Tampere University) The Interpretation of the ECHR as a Living Instrument: Demise of the Margin of Appreciation Doctrine? https://blogs.uta.fi/ ecthrworkshop/2015/12/07/rachaelita/#_edn4 Accessed 26 July, 2019 Strasbourg Observers, A.P., Garcon and Nicot v France: The Court draws a line for trans rights 5 May, 2017 blog https://strasbourgobservers.com/2017/05/05/a-p-garcon-and-nicot-v-francethe-court-draws-a-line-for-trans-rights/Accessed 5 August, 2019 United Nations Commissioner for Human Rights Report Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity (A/HRC/19/41), 17 November 2011 Vienna Convention on the Law of Treaties entered into force 27 January, 1980. https://treaties.un. org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf Accessed 7 August, 2019

Cases Case of A.P., Garcon and Nicot v France (applications nos. 79885/12, 52471/13 and 52596/13) (ECtHR) Judgement of 6 April, 2017 at para 122 https://hudoc.echr.coe.int/eng#{%22itemid% 22:[%22001-172556%22]} Accessed 6 August, 2019 Case of Golder v. The United Kingdom (Application no. 4451/70) Decision 21 February, 1975. https://www.legal-tools.org/doc/a824b4/pdf/ Accessed 29 July, 2019 Case of Hämäläinen v. Finland [Grand Chamber], (Application no. 37359/09) (European Court of Human Rights) Judgement 16 July, 2014, Accessed 5 August, 2019 https://hudoc.echr.coe.int/ eng#{%22itemid%22:[%22001-145768%22]} Case of Volodina v Russia (Application no. 41261/17) Judgment 9 July, 2019 (European Court of Human Rights) Judgement 9 July, 2019 https://hudoc.echr.coe.int/eng#{%22itemid%22:[% 22001-194321%22]} Accessed 30 July, 2019 Case of X v The Former Yugoslav Republic of Macedonia (Application no. 29683/16) Judgement 17 January, 2019 (European Court of Human Rights). https://tgeu.org/wp-content/uploads/ 2017/10/2017-07-28_X-v.-Macedonia_TPI_FINAL.pdf Accessed 4 August, 2019

Chapter 5

‘Principled Judicial Activism’ in Defense of Our Common Humanity

5.1

Introduction

Advocates of the ‘living constitution’ oppose the idea that present-day conditions should be fully governed by a document whose drafters died decades or even centuries ago. . . . They . . .have to justify why courts and not legislatures or constitutional assemblies should have the power to evolve the meaning of the constitution and how far they may go before they start abusing this power (emphasis added).1

In this chapter we will consider further, in case-specific contexts, how the Courts, justifiably on the view here, consistent with democratic principles and values, have “evolve[d] the meaning” of the relevant law in the particular context through judicial interpretation. This often where existing State mechanisms or the fact of the absence of needed regulatory systems have failed to deter the State from undercutting or negating fundamental rights and freedoms. The Rt. Hon. Baroness Hale, DBE, PC reminds us importantly that “. . .the courts are just as essential to a democracy based on the rule of law as is Parliament.”2 It is to be noted that to accept the notion of “evolutive interpretation” of the law as legitimate is not necessarily to suggest that justices ‘legislate’ rather than simply ‘interpret’ the law. As Baroness Hale put it in describing what some might term judicial activism on the part of UK judges in their “evolving” of the common law: “. . . the theory is that this is what the law has always been. We are simply correcting past errors.”3 Insofar as the evolutive interpretation of an international human rights 1

Letsas (2013), p. 105. Speech of The Rt. Hon. The Baroness Hale of Richmond, DBE, PC In Dialogue Between Judges (2011) What are the limits to evolutive interpretation of the Convention? Strasbourg: European Court of Human Rights (January, 2011) at p. 11 https://www.echr.coe.int/Documents/Dialogue_ 2011_ENG.pdf. 3 Dialogue Between Judges (2011) What are the limits to evolutive interpretation of the Convention? Strasbourg: European Court of Human Rights (January, 2011) at p. 11 https://www.echr.coe. int/Documents/Dialogue_2011_ENG.pdf. 2

© Springer Nature Switzerland AG 2020 S. C. Grover, Judicial Activism and the Democratic Rule of Law, https://doi.org/10.1007/978-3-030-35085-7_5

233

234

5 ‘Principled Judicial Activism’ in Defense of Our Common Humanity

treaty or a democratic domestic constitution, both grounded on democratic rule of law principles and values, serves to (a) recognize the inclusive nature of the rights guarantees therein and, for instance, extends them also to new groups of particularly vulnerable persons under the State’s jurisdiction, and serves to (b) give more practical effect to the obligation of the State to make entitlements a reality rather than but a promise (through interpreted implied rights and positive State obligations); the current author would suggest that the judiciary is “correcting past errors” in judicial interpretation. The so-called “natural limits”4 of (a) the State’s obligations (whether characterized in negative terms as regarding what the State is prohibited from doing and/or in positive terms as to what proactive steps the State is to take legislatively or otherwise to give effect to a fundamental human right or freedom at issue) and the “natural limits” of (b) the ‘evolutive interpretation’ of the substantive content of human rights articulated in democratic constitutional or treaty instruments, on the view here, are set by the contours of our common humanity.5 For instance, we have a common humanity with the homeless. Hence the current author would argue that a court6 has erred in not considering the homelessness of persons under the State’s territorial jurisdiction to be a potential violation of the right to ‘security of the person’, the prohibition on discrimination in connection with the denial of the right to security of the person and potentially also, depending on the facts, infringement of the guarantee not to be exposed to degrading treatment and

4 Speech of The Rt. Hon. The Baroness Hale of Richmond, DBE, PC In Dialogue Between Judges (2011) What are the limits to evolutive interpretation of the Convention? Strasbourg: European Court of Human Rights (January, 2011) at p. 12 https://www.echr.coe.int/Documents/Dialogue_ 2011_ENG.pdf. 5 It is essential that the courts not reduce core human rights issues before the courts to simply political or moral questions and use that as a justification in deferring to the State relying on a wide margin of appreciation. 6 North American Courts have considered, for instance, in Gosselin v Quebec (Attorney General) 2002 4 SCR 429 that the adequacy of the level of financial social assistance provided by government was statutorily incorporated such as to be “beyond judicial review.” Further the Supreme Court of Canada Majority held in Gosselin that though the Canadian Charter s. 7 right to ‘security’ of the person was not necessarily triggered only in a criminal law context, “the circumstances of this case do not warrant a novel application of s. 7 as the basis for a positive state obligation to guarantee adequate living standards.” (Gosselin v Quebec (Attorney General) 2002 4 SCR 429 Summary, Majority Opinion). Somewhat similarly, wrongly, on this author’s respectful view, the ECtHR has held in a case concerning social assistance that “Article 6 § 1 [of the Convention] does not guarantee any particular content for civil “rights and obligations” in the substantive law of the Contracting States” (see Case of Fazia Ali v the United Kingdom (Application no. 40378/10) (European Court of Human Rights) Judgment 20 October, 2015 at para 59. This though the Convention guarantees ‘security of the person’ (Article 5) and protection from degrading treatment (Article 3) which arguably are examples giving rise to the substantive content of Article 6(1) regarding civil rights and the State obligation to a fair hearing and not one where there is a foregone conclusion (i.e. based on the denial of basic economic security involving a decent living standard and safe adequate shelter as a basic human right). The substantive content of Convention Article 6(1) regarding civil rights and the State obligations that flow from it thus is grounded in part in the interplay of various Convention rights (as is the case, for instance, when considering a discrimination claim under Article 14 of the Convention).

5.1 Introduction

235

potentially of other rights guarantees regarding the right to a remedy. Baroness Hale in this regard asks “what precisely is a “civil right” for the purpose of Article 6 (1) [of the European Convention]? And in particular, what kinds of public-law claims now count as “civil rights” for the purpose of Article 6? For the time being we have decided that . . .this Court does not cover claims to public services such as . . .housing for the homeless.”7 Baroness Hale went on to suggest that the concept of a civil right had, in the view of the Supreme Court of the UK, reached its “natural limit” and that “claims for services, which require a high degree of discretionary judgment on the part of officials, are not readily susceptible to court-like adjudication on the merits.”8 She then asked “But are we right?”9 This author would answer, respectfully, ‘No, the Court is not right on this point as the approach taken seriously undermines the human dignity of the persons affected and, in so doing, undermines democratic values.’ The inherent positive obligation of the State should be recognized in regards to the basic needs of the destitute under its jurisdiction while allowing for progressive steps in meeting those obligations based on the State’s resources where the State prioritizes also the needs of the homeless and does not squander its resources through corruption or by other means. The European Court of Human Rights found importantly that the fact that the State exercised a certain amount of discretion, perhaps even a high level of discretion, in administering public services such as social assistance and housing does not “militate against recognition of such an entitlement as a “civil right”10” and hence does not put the matter beyond judicial adjudication. It is to be noted that in the domestic cases to be discussed in this chapter the State’s tact, in the first instance, has been to argue that the issue before the court is in fact purportedly not judiciable for a variety of reasons. Not uncommonly what the State considers to be a discretionary policy issue; a matter of moral or political judgment (allegedly properly decided by the government through procedures including perhaps consultative processes with relevant very selected powerful stakeholders) is instead largely a contested fundamental human rights issue; one that in

7 Speech of The Rt. Hon. The Baroness Hale of Richmond, DBE, PC In Dialogue Between Judges (2011) What are the limits to evolutive interpretation of the Convention? Strasbourg: European Court of Human Rights (January, 2011) at p. 14 https://www.echr.coe.int/Documents/Dialogue_ 2011_ENG.pdf. 8 Speech of The Rt. Hon. The Baroness Hale of Richmond, DBE, PC In Dialogue Between Judges (2011) What are the limits to evolutive interpretation of the Convention? Strasbourg: European Court of Human Rights (January, 2011) at p. 14 https://www.echr.coe.int/Documents/Dialogue_ 2011_ENG.pdf. 9 Speech of The Rt. Hon. The Baroness Hale of Richmond, DBE, PC In Dialogue Between Judges (2011) What are the limits to evolutive interpretation of the Convention? Strasbourg: European Court of Human Rights (January, 2011) at p. 14 https://www.echr.coe.int/Documents/Dialogue_ 2011_ENG.pdf. 10 Case of Fazia Ali v the United Kingdom (Application no. 40378/10) (European Court of Human Rights) Judgment 20 October, 2015 at para 59 https://hudoc.echr.coe.int/eng#{%22itemid%22:[% 22001-158031%22]}.

236

5 ‘Principled Judicial Activism’ in Defense of Our Common Humanity

a democracy is properly susceptible to judicial review and adjudication (informed also by international human rights and other law). Consider in this regard Lord Bingham’s caution that “The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament.”11 The current author would add the following admonition: ‘The democratic process is equally liable to be subverted if, on a question of fundamental human rights- one falsely characterized as a governmental policy discretionary matter- opponents of the recognition of legitimate positive State obligations in regard to that human rights matter achieve vindication through the courts.’ With the rise of right-wing and leftwing so-called ‘populism’—a sanitized term applied too often also to essentially anti-democratic trends in particular societal contexts—it is especially relevant to consider in this chapter the judiciary’s role as defender of our common humanity.12 We do so next in particular unique case contexts where the court was called upon to do just that.

5.2

Case 1: Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. SCC, Docket 37919, Judgment Pending (Supreme Court of Canada, Judgement Pending) (A Multinational Corporation’s Accountability for Extraterritorial Violations of International Customary Law)

On 23 January, 2019 the Supreme Court of Canada heard arguments in the case of Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al.13 The case concerns Nevsun Resources Ltd., a privately owned Canadian mining company, and its use of forced labor in the construction of its Bisha mine in Eritrea, Africa. The complainants14 in the case are described by their counsel as “refugees who fled a lifetime of indefinite conscription in Eritrea’s system of national service.”15 The complainants were forced to work at the Nevsun Bisha mine in Eritrea under that State’s system of

11 Speech of The Rt. Hon. The Baroness Hale of Richmond, DBE, PC In Dialogue Between Judges (2011) What are the limits to evolutive interpretation of the Convention? Strasbourg: European Court of Human Rights (January, 2011) at p. 17 https://www.echr.coe.int/Documents/Dialogue_ 2011_ENG.pdf. 12 Zarbiyev (2012). 13 Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada Docket 37919, Judgment Pending https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 14 The complainants are listed as the ‘Respondents’ in the SCC as they are defending against Nevsun’s appeal to the SCC on certain of their (Nevsun’s) failed lower court motions. 15 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 1 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919.

5.2 Case 1:Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. SCC. . .

237

indefinite ‘national service’. Two of the complainants reside in the US and one in Canada. The complainants seek to hold the majority owner of the mine, the company Nevsun Resources Ltd. (“Nevsun”), accountable for using them as forced labour and for other human rights abuses against them in which the mining company was complicit: “They allege that during the construction of the mine [the Bisha mine], they were forced to work in inhumane conditions and under the constant threat of physical punishment, torture, and imprisonment.”16 Further, and more specifically, the complainants alleged that Nevsun “. . .engaged or caused to be engaged three Eritrean entities that supplied forced labour to the Bisha Mine: Segen, a construction company owned by the country’s lone political party; Mereb, a military-owned construction company; and the Eritrean military.”17 (The military had its ranks largely filled with forced conscripts serving for an indefinite term). The claim was initially filed as a class action against Nevsun in 2014 in the lower British Columbia (Canadian) court with the complainants suing for “established common law torts, including assault, battery, conversion, unlawful confinement, and negligence” and also “novel common law torts drawing on standards established under the customary international law prohibitions against forced labour, slavery, crimes against humanity, and cruel, inhuman, or degrading treatment.”18 Four motions were litigated in the lower courts on the following matters as follows (a) whether the Canadian courts were the correct forum for the claim, (b) whether the complainants were entitled to be considered representative of a class, (c) whether the case should be dismissed based on the doctrine of ‘Act of State’ in the interests of comity to a foreign State and (d) whether the complainants’ case insofar as the alleged violations of international customary law were concerned should be struck.19 In the first order court (the Supreme Court of British Columbia, (SCBC)); the Court held it was premature to strike the case based on the ‘Act of State doctrine’. The SCBC judge (Judge Abrioux) expressed uncertainty regarding the use of the ‘Act of State Doctrine’ as a defence by Nevsun and “questioned its continued relevance in the modern context of growing universal recognition of fundamental human rights norms.”20 The judge of the SCBC also found that the alleged torts grounded in 16

Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 8 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 17 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 16 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 18 Respondent’s Factum to the Supreme Court of Canada Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada Docket 37919, Judgment Pending para 17 https://www.scccsc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 19 Respondent’s Factum to the Supreme Court of Canada Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada Docket 37919, Judgment Pending para 18 https://www.scccsc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 20 Respondent’s Factum to the Supreme Court of Canada Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada Docket 37919, Judgment Pending para 20 https://www.scccsc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919.

238

5 ‘Principled Judicial Activism’ in Defense of Our Common Humanity

international customary law could not be dismissed as the claims in that regard raised “a real issue and should proceed to trial so that they can be considered in their proper factual and legal context.”21 Judge Abrioux also rejected Nevsun’s argument regarding its forum non conveniens motion holding that the complainants had established that there was doubt that they could receive a fair trial in Eritrea (i.e. the complainants introduced first hand testimony from judges who had fled Eritrea) and Nevsun had not shown why Eritrea would purportedly be the proper venue for the case to be litigated.22 Judge Abrioux granted Nevsun’s motion denying the complainant’s petition to have the case certified as a class action and the complainant’s did not appeal that decision.23 The British Columbia Court of Appeal (BCCA) (Judge Newbury) upheld the lower court’s rejection of Nevsun’s reliance on the Act of State defence. This as he held that the complainant’s were not challenging the laws of Eritrea and, in any case, acts of the executive of Eritrea “would by their nature be unlawful to the extent they were in breach of peremptory fundamental norms”24 and “If the wrongs asserted. . .were shown to have occurred, the only question remaining for the trial court would be Nevsun’s alleged complicity therein.”25 Judge Newbury also held that even if it were the case that the ‘Act of State Doctrine’ applied here (which he held it did not); this was a case that would require a “public policy exception” given that forced labour and slavery are “contrary to both peremptory norms of international law and a fundamental value of domestic law.”26 The BCCA also upheld the dismissal of Nevsun’s motion to strike the complainant’s international customary law tort claims as well as the dismissal of Nevsun’s forum non conveniens motion. Nevsun did not appeal the proper forum question. That left two questions on appeal to the Supreme Court of Canada (SCC) which were, according to the Appellant Nevsun Resources Ltd., properly articulated as: 21 Respondent’s Factum to the Supreme Court of Canada Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada Docket 37919, Judgment Pending para 21 https://www.scccsc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 22 Respondent’s Factum to the Supreme Court of Canada Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada Docket 37919, Judgment Pending para 22 https://www.scccsc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 23 Respondent’s Factum to the Supreme Court of Canada Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada Docket 37919, Judgment Pending para 23 https://www.scccsc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919.

“Individual claims have since been filed by over 80 additional plaintiffs in a total of 10 separate actions.” (at para 23). 24

Judge Newbury BCCA Cited in Respondent’s Factum to the Supreme Court of Canada Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada Docket 37919, Judgment Pending para 26 https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 25 Judge Newbury BCCA Cited in Respondent’s Factum to the Supreme Court of Canada Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada Docket 37919, Judgment Pending para 28 https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 26 Judge Newbury BCCA Cited in Respondent’s Factum to the Supreme Court of Canada Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada Docket 37919, Judgment Pending para 29 https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919.

5.2 Case 1:Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. SCC. . .

239

(a) Does the act of state doctrine preclude a British Columbia court from judging the legality of the sovereign acts of a foreign state within its own territory? (b) Should Canadian common law recognise a cause of action for damages based on alleged breaches of norms of customary international law?27

Note that Nevsun’s formulation of the issues before the Supreme Court of Canada (SCC) in this case is one posing rather general and abstract philosophical legal questions. This arguably so as to divert away from the concrete reality of the company’s role in the use of forced labour at its Bisha mine in Eritrea. Essentially Nevsun’s formulation is one of (a) whether the ‘Act of State Doctrine’ is operative in Canadian law and (b) whether there can exist in Canadian common law a compensable tort for breaches of the norms of customary international law. The Respondent Eritrean refugee complainants articulated the issues before the Supreme Court of Canada differently. The Respondents framed the case such that the Court would need to consider the potential liability of a Canadian private company for complicity with a foreign government in the violation extraterritorially of specified international customary law norms. The Respondents framed the questions before the SCC as follows: (i) Does the act of state doctrine operate in Canadian law to immunize a Canadian corporation from liability for common law torts and for acts of slavery, forced labour, and crimes against humanity committed in connection with the Canadian corporation’s business operations in partnership with a foreign government? (ii) Are the respondents’ common law claims for damages based on breaches of customary international law norms bound to fail?28

Thus the Respondents formulated the questions to be answered as involving (a) the company’s potential liability for the use of forced labour, acts of slavery and crimes against humanity committed in the context of business operations jointly with a foreign government and (b) whether the act of state doctrine was a shield for the company for its violation of international customary law norms in that context. The Respondents also formulated a question regarding their novel claim of common law torts for breaches of customary international law norms in terms of whether or not the SCC would judge such claims “bound to fail”. The latter rather than, as the Appellants did, in terms of whether such claims should be recognized as torts in the first instance in Canadian common law.

27

Appellant Nevsun Resources Ltd. Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending at para 21 https:// www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 28 Respondent’s Factum to the Supreme Court of Canada Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada Docket 37919, Judgment Pending para 32 https://www.scccsc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919.

240

5 ‘Principled Judicial Activism’ in Defense of Our Common Humanity

Nevsun takes the position that the claims should be struck “including claims grounded in negligence, battery and unjust enrichment”29 Nevsun argued that while the complainants had a right to sue the company under private law: Their action is based not on private law, but rather on the alleged illegality of official acts of the State of Eritrea in Eritrean territory, and on principles of public international law, from which they ask the courts to fashion new tort claims. The job of determining what position to take in response to acts of foreign governments, and creating new causes of action based on international law, belongs to the political branches of government, not the courts (emphasis added).30

The case thus largely rests on (a) what is the proper identification and framing of the issues in the case and (b) the matter of, in the first instance, the justiciability of those issues. The complainants argue that the case “presents no thorny issues of nonjusticiability since the standards governing forced labour, slavery and other human rights violations are legal standards which our courts are competent to adjudicate upon” and in any case “no relief is sought against the State of Eritrea [. . .]”31 This leads to the following questions (not an exhaustive list): Is the issue of the ‘Act of State Doctrine’ relevant in the case and if so how? Does the ‘Act of State Doctrine’, if it applies in this case, necessarily and automatically negate Nevsun’s liability for the use of forced labour and other alleged customary law violations in its Eritrean Bisha mine operation [i.e. (1) Is Nevsun being used as a “surrogate” for the State of Eritrea in this legal action allowing for judicial condemnation of that State’s practice of using forced labour and of subjecting that labour to inhumane conditions or, (2) alternatively, Is Nevsun here being held to account for its separate and distinct liability for the company’s complicity with the State of Eritrea in enriching itself through the use of forced labour in direct violation of international customary law? Are the novel claims of common law torts for breach of international customary law norms justiciable under Canadian law? If these novel tort claims are justiciable; what is the chance of their success on the facts of this specific case?] Nevsun’s position at its core is well summarized in the company’s statement that in its view: Nevsun’s claimed liability is secondary to the alleged illegality of acts of the State of Eritrea in Eritrean territory. . . Canadian corporations should not become surrogate defendants for challenges to the conduct of immune foreign states (emphasis added).32

29 Respondent’s Factum to the Supreme Court of Canada Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada Docket 37919, Judgment Pending para 2 https://www.scccsc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 30 Appellant Nevsun Resources Ltd. Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 1 https://www. scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 31 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 34 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 32 Appellant Nevsun Resources Ltd. Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending at para 2

5.2 Case 1:Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. SCC. . .

241

In the respectful view of the current author, it would rather seem simply that the use of forced labour by Nevsun was something the company had a choice to participate in or not. That is the choice was whether to honor customary international law forbidding the use of forced labor or instead to enrich the company by way of the use of forced labour in Eritrea. The complainants argued to the Supreme Court of Canada (SCC) that the Nevsun corporate hierarchy was aware of the appalling human rights situation in Eritrea and that: Nevsun had a duty to prevent the use of forced labour at the Bisha Mine. The duty is grounded in the control which Nevsun exercises over the construction and operation of the Bisha Mine, its knowledge of the risks of forced labour and human rights abuses present in Eritrea, and its corporate social responsibility policies which place the responsibility for compliance with labour and human rights standards on the highest levels of the company in Vancouver (emphasis added).33

Further the complainants pointed out that Nevsun Resources Ltd. had officially professed to have adopted certain international standards on working conditions and labour practices including the prohibition on using forced labour (i.e. as stipulated in the 2006 International Finance Corporation Standards) and should be held to account for violating those company standards.34 Thus the issue of ‘duty of care’ informed by international human rights standards is significant in this case as relates to Nevsun, a private corporation. Nevsun Resources Ltd. appears, it is here contended, to be trying to shield itself from liability (for breaching international peremptory customary law standards in its labour practices) by using the ‘cover’ of an ‘Act of a Sovereign State Defence’ allegedly applicable to Eritrea. Nevsun claims that the State of Eritrea is responsible for the use of forced labor as a sovereign act related to its domestic economic policy and other policy and discretionary decisions and that therefore that State, as a State, benefits from the ‘Act of State Doctrine’. Nevsun then attempts to use that ‘Act of State Doctrine’ as applied to Eritrea to shield its own liability, as a private Canadian company, for complicity with the State of Eritrea in the use of forced labour at its’ (Nevsun’s) Bisha mine in Eritrea (that forced labour being supplied by various Eritrean State-owned and/or controlled entities). The Nevsun Company thus appears to assert a kind of invented hypothetical ‘private privilege’ for itself as an alleged by-product of the purported ‘Act of State’ privilege as applied to Eritrea. The latter is

;https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919 Note that Nevsun Resources Ltd. here conceded it had, at a minimum, a secondary role (to that of the State of Eritrea) in the use of forced labour in Eritrea in the construction of the company’s Bisha mine there. It is unclear, however, even if the court accepted that point how and why this would absolve the company of liability for the claim advanced by the Eritrean refugee complainants in this case. 33 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 10 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 34 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 11 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919.

242

5 ‘Principled Judicial Activism’ in Defense of Our Common Humanity

but a ‘purported’ ‘Act of State’ privilege for Eritrea here in that breaches of international peremptory customary law norms, as the lower BC courts have held, correctly on the view here, are not covered under the ‘Act of State Doctrine.’ Hence the Act of State Defence is not available to Eritrea in this case. If the opposite were the case and breaches of international peremptory customary law by a State did not preclude a State benefiting from the ‘Act of State Doctrine’ then we could no longer realistically aspire to have a ‘law of civilized nations’ and the implementation globally of the human rights principles underlying the international legal order envisioned by the United Nations would likely be a complete lost cause. It is a novel legal theory, in any case, on the view here, for a private (Canadian) company to disavow its own liability for the use of forced labour extraterritorially by relying on the ‘Act of State Doctrine’ as applied to the State with which it was complicit in breaching the particular international peremptory customary law norms at issue (the Nevsun Bisha mine business venture was joint with Eritrea in important respects including the use of forced labour provided by the State). The Supreme Court of Canada (SCC) in Nevsun (SCC judgement pending) will in all likelihood follow suit with the UK and Australian courts in rejecting the proposition that tort claims involving grievous human rights abuses constituting violations of international peremptory customary law can be blocked under the ‘Act of State Doctrine’.35 Nevsun Resources Ltd. cannot logically, it is here contended, on the one hand argue (as it does) that (a) there is no basis for legal recognition of the novel common law tort regarding the company’s use of Eritrean forced labour (a breach of international peremptory customary law) while, at the same time, (b) seeking to be shielded from civil liability for that very tort through the Act of State Defence allegedly applicable to Eritrea as, by its own admission, at a minimum, a “secondary” player benefitting from the Eritrean scheme of the large scale use of ‘slave labour’ in that country.36 Put differently; Nevsun (contrary to that Appellant’s claim) is not here a “surrogate defendant” in the Canadian courts substituted for Eritrea (a State allegedly protected by the ‘Act of a Sovereign State Doctrine’ according to the Appellant Nevsun Resources Ltd.). This is the case in that, at the very least, the private company Nevsun, on the respectful view here, bears its own distinct responsibility in its use of Eritrean forced labor for the Bisha Mine and thereby for its contribution to Eritrea’s forced labor scheme. Nevsun availed itself by choice of that labour such that both the State of Eritrea and the private company Nevsun Resources Ltd. benefited from that scheme of forced or slave labour. The Nevsun company then, on the analysis here, is in legal terms a corporate “person” which is amongst the

35 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 3 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 36 Note that “Most situations of slavery . . .are covered by ILO’s” [the International Labor Organization’s] definition of forced labour. See International Labor Organization (ILO) The Meanings of Forced Labour https://www.ilo.org/global/topics/forced-labour/news/WCMS_237569/lang%2D% 2Den/index.htm Accessed 8 August, 2019.

5.2 Case 1:Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. SCC. . .

243

entities bearing responsibility for this human rights atrocity triggering separate and joint liability while the State of Eritrea bears its own separate and joint liability.37 On the analysis here, Nevsun Resources Ltd. appeared to be arguing the State of Eritrea’s case and not its own when the Appellant stated: It is hard to conceive of a more fundamental and thoroughgoing challenge to the exercise of the State of Eritrea’s sovereign powers than the one posed here. The plaintiffs seek to have the B.C. courts inquire into and condemn as forced labour and crimes against humanity contrary to international law the State of Eritrea’s National Service Program, a program of general application to Eritrea’s citizens.38

Indeed Nevsun appears further to argue the State’s case when it attempts, by implication, on the respectful view here, to justify Eritrea’s forced labour practice by stating that Eritrea’s labour policies “are carried out in a command economy where 80% of the population remains engaged in subsistence agriculture. . .”39 It is, however, not at all clear why a violation of peremptory customary international law should be excusable under any economic circumstance. Nor is it at all evident how “Eritrea’s National Service Program, a program of general application to Eritrea’s citizens”,40 constituting forced labour in perpetuity for its people in clear violation of peremptory international customary law, can be considered the lawful discretionary act of a sovereign State. Nevsun Resources Ltd. further states that “the plaintiffs invite by their pleading that Eritrea is a “rogue state”, one that has acted in such systematic and egregious violation of international law that it has taken itself outside of the family of civilised nations. No case, anywhere, has been permitted to

37 Note that in October 2016 the former UN Commission of Inquiry on human rights in Eritrea urged the UN Security Council to refer the situation in Eritrea to the International Criminal Court citing widespread crimes against humanity committed by the State since 1991. The Commission reported “The crimes of enslavement, imprisonment, enforced disappearances, torture, other inhumane acts, persecution, rape and murder have been committed as part of a widespread and systematic campaign against the civilian population. The aim of the campaign has been to maintain control over the population and perpetuate the leadership’s rule in Eritrea” The Commission further reported that “There is still no constitution, no parliament where laws are discussed, enacted, and where questions of national importance are debated; indefinite national service persists, with its adverse impacts on individual rights. . .” In the appeal to the UN General Assembly the Commission urged UN Member States to grant asylum to Eritrean refugees and to give them access to their territory to seek refuge and file for asylum and not to refoule them back to Eritrea (See United Nations Human Rights Office of the High Commissioner Eritrea: UN Commission has urged referral to the International Criminal Court Geneva 28 October, 2016) https://www.ohchr. org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID¼20779. 38 Appellant Nevsun Resources Ltd. Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending at para 5 https:// www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 39 Appellant Nevsun Resources Ltd. Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending at para 5 https:// www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 40 Appellant Nevsun Resources Ltd. Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending at para 5 https:// www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919.

244

5 ‘Principled Judicial Activism’ in Defense of Our Common Humanity

go this far.”41 First; even if so that “No case, anywhere, has been permitted to go this far” it does not follow that such is impermissible legally for the proper case (Recall that the UN Commission of Inquiry on human rights in Eritrea urged the UN Security Council to refer the situation in Eritrea to the International Criminal Court. Hence that Eritrea is a rogue nation engaged in widespread atrocities seems a judgment that the UN itself has made on the evidence). Further this author would dispute Nevsun’s proposition that “No case, anywhere, has been permitted to go this far” in condemning a State for violations of international peremptory customary law and holding directly or by implication that such breaches are not covered by the ‘Act of State Doctrine’. For example consider the Case of Streletz, Kessler and Krenz v Germany (European Court of Human Rights) which is not a torts case but nevertheless is relevant to the issue of the ‘Act of State Doctrine’, private liability (in that case the criminal individual liability of natural persons) and breaches of peremptory international customary law. In the Case of Streletz, Kessler and Krenz v Germany the Court (ECtHR) reasoned, informed by international peremptory customary law, that the applicants had not suffered retrospective application of the law in their being successfully prosecuted and convicted in the courts of the post-Berlin Wall reunified Germany due to their role as high GDR officials (German Democratic Republic officials). That role included executing the Berlin Wall lethal policy of shoot-to-kill regarding any attempted escape of persons from East Germany to West Germany. The European Court of Human Rights Grand Chamber found that (a) the complainants were responsible for many deaths at the Berlin Wall and that (b) though the practice of ‘shoot-to-kill’ regarding anyone trying to escape over the Berlin Wall was accepted GDR State practice42; the complainants had to know or should have known that (1) the practice was contrary to the international law of civilized nations (international customary law) and that (2) when the government changed in the GDR or the GDR collapsed as it did; the complainants could be held responsible for their role in implementing the Berlin Wall ‘shoot-to-kill’ and other lethal such policies. Hence the Grand Chamber of the ECtHR found that the complainants’ Article 7 and 14 Convention rights (respectively the right not to be punished where there is no law and the right to equal protection of the law) had not been violated.43 There is then in that case a judicial decision grounded on the notion that the GDR, through its agents, violated international peremptory customary law by way of its Berlin Wall forcible containment policy and the method of its implementation. The GDR was thus not retroactively covered by the ‘Act of State Doctrine’ that would have spilled over to protect the East German officials (agents of the GDR) who had advanced

41 Appellant Nevsun Resources Ltd. Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending at para 5 https:// www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 42 The shoot to kill practice at the same time was in fact not consistent with the German Constitution. 43 For a discussion of Streletz, Kessler and Krenz v Germany see, for instance, Grover (2010), pp. 210–230.

5.2 Case 1:Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. SCC. . .

245

their case before the ECtHR. Thus the ECtHR found that the reunified Germany had not violated the complainants’ Convention rights for prosecuting and convicting them for their role in the State-ordered atrocities at the Berlin Wall. The case of Streletz, Kessler and Krenz v Germany,44 as it involves the ECtHR, relies on the consent of the reunified Germany to accept the jurisdiction of the Court. However the operative law, decisive and applicable in the case, according to the ECtHR, ultimately included also customary international law to which all States through persons operating as agents of the States, or somehow complicit with the State, are subject (universal jurisdiction). It is the acts of the GDR through its agents that formed the context for the Streletz, Kessler and Krenz v Germany case and it is the lack of respect for international peremptory customary norms that rendered both the GDR and those individuals (or entities) complicit with those aforementioned acts of atrocity culpable. The situation in Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. likewise involves complicity—here of a private corporate entity—with breach of international peremptory customary law norms; this time having to do with forced labour (slavery) and inhumane working conditions. Indeed the Respondent Eritrean refugee complainants argued such in their factum to the SCC saying: “The conduct alleged here is tortious but it is also something more. It is a violation of peremptory norms of customary international law – universal norms which stand at the apex of our legal system and which aid in the development of the common law.”45 Nevsun Resources Ltd., in opposition, argued before the Supreme Court of Canada (SCC) that allowing the tort claims on breaches of international customary law to proceed in the case would be to allow the Canadian courts to judge the acts of a foreign sovereign state when “Foreign states have not consented to such a step. This function properly belongs to a combination of expert bodies, international tribunals and political and diplomatic actions by Canada’s executive and other states acting on the international plane.”46 However, on the current author’s analysis, it is clear that allowing tort claims for breach of international customary law norms does not require the consent of the individual offending State. This as the consent derives from the general consensus of the international community as a whole (and as reflected in UN activities and resolutions and the ICC mandate) that (a) customary international norm adherence is one of the foundational mechanisms for international peace and security and that (b) accountability for breaches thereof are hence necessary. Note that Eritrea became a member of the UN 28 May, 1993. It is furthermore currently, at

44

Streletz, Kessler and Krenz v Germany (Applications nos. 34044/96, 35532/97 and 44801/98) European Court of Human Rights Grand Chamber Judgement 22 March, 2001 https://www.legaltools.org/doc/7058a0/pdf/. 45 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 4 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 46 Appellant’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 4 https://www.scc-csc.ca/case-dossier/ info/dock-regi-eng.aspx?cas¼37919.

246

5 ‘Principled Judicial Activism’ in Defense of Our Common Humanity

the time of this writing, a member of the UN Human Rights Council (its 3 year term expires in 2021) and hence well aware of its human rights obligations.47 Insofar as the company Nevsun Resources Ltd. is concerned, the Canadian Supreme Court’s (SCC’s) finding—should it be that Eritrea’s mandatory and indefinite National Service Program constitutes forced labour and crimes against humanity48—is, this author argues, a finding regarding the surrounding context in which Nevsun’s alleged separate liability arises as well as its joint liability. The fact that a State is immunized, if that instead should be the unlikely SCC ruling in the Nevsun case, is not equivalent to it not being culpable. Put differently, State culpability is not synonymous with prosecutability of the offending State. The Respondent refugee Eritrean complainants in their factum to the Supreme Court of Canada (SCC) pointed out, as mentioned, that in Australia and the UK the courts have held that the ‘Act of State Doctrine’ cannot serve to bar claims against the State for grave human rights abuses49 but that the Appellant Nevsun Resources Ltd. holds Canada should not apply the same standard.50 The Respondents (the Eritrean refugee complainants) took the position that: “This approach should be rejected as it is contrary to fundamental values of the Canadian legal system and would allow Canadian companies with close commercial ties to brutal dictatorships to avoid all judicial scrutiny and responsibility for their own conduct.”51 State sovereignty itself, on the analysis of the current author, does not in any event apply to shield the State and anyone complicit with it for crimes against humanity and other violations of peremptory customary international law human rights protections. This since such acts are in fact ultra vires of State sovereignty.52 The acts at issue in this case then 47 ‘There are no words’ as the colloquial expression goes when one is dumbfounded (here as is the current author by certain of the UN’s actions). See United Nations Human Rights Council ‘Current Membership of the Human Rights Council for the 13th Cycle I January-31 December, 2019 at https://www.ohchr.org/EN/HRBodies/HRC/Pages/CurrentMembers.aspx. 48 See Amnesty International Eritrea 2017/2018 https://www.amnesty.org/en/countries/africa/eri trea/report-eritrea/. 49 Note “The “act of state” refers to the principle that the courts of one nation will not judge the validity of the acts of a foreign government committed within that foreign government’s territory. Transnationally sovereign immunity means that no sovereign will be subject to suit without its consent.” See Cooper (1980), p. 194. Note that Nevsun initially relied in part on an Eritrean sovereign immunity alleged defense but later abandoned that argument. See Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 75 https://www.scc-csc.ca/case-dossier/info/dock-regi-eng. aspx?cas¼37919. 50 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 3 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 51 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 3 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 52 The Appellant Nevsun’s claim that “[t]he predicate determinations that the Eritrean State acted unlawfully are not incidental to the allegations of liability on the part of Nevsun: they are foundational” cannot stand (Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize

5.2 Case 1:Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. SCC. . .

247

(the use of forced labour (slaves) and inhumane working conditions at the Bisha mine in violation of international peremptory customary law), in which Nevsun was complicit with the State of Eritrea, do not thus, on the analysis here, allow Nevsun to enjoy ‘spill over’ protection based on any purported ‘Act of a Sovereign State’ defence for Eritrea or alleged Eritrean immunization from suit where that State does not consent (even if such ‘spill over’ protection for Nevsun was in theory feasible under other conditions—a notion which this author contests also). It is not clear that the Act of State Doctrine’ in any case could even feasibly apply to Eritrea insofar as it is effectively arguably not in any meaningful sense a functioning State and does not in certain respects even attempt to create the illusion of a State by any of the usual measures: “It has no constitution, legislature, elections, political opposition, or independent media. All political and economic power is concentrated firmly in the hands of Dictator Isaias Afewerki. . .”53 and there is evidence that “the Eritrean justice system [is] subject to the control of and interference by the executive”54 Canada, this author contends, has jurisdiction to hold Nevsun Resources Ltd. liable for its actions extraterritorially if those actions are found to have involved participation in violations of international customary law prohibiting the use of forced labor and other crimes against humanity. Note that the Supreme Court of Canada (SCC) in Canada (Justice) v. Khadr held ‘that deference and comity end where clear violations of international law and fundamental human rights begin’.55 The SCC in the aforementioned case applied that principle to Canadian officials acting abroad in finding that those officials had violated the fundamental human rights of the complainant due to their complicity with the U.S. in Khadr’s criminal

Yebeyo Araya, et al para 52 citing the Appellant submission). This given the limitations on application of the act of state doctrine where there are grave human rights abuses and regardless whether under Eritrean law the human rights abuses of forced labour and inhumane working conditions etc. were lawful or not (there was evidence in the case in any event that these abuses were not lawful under Eritrean law). see Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al para 52. As was stated in the intervener brief in Nevsun “Jus cogens” norms are “binding on all nations,” and “are the concern of all states.” Given this status, U.S. courts have recognized that “[a] violation of a jus cogens norm is not a sovereign act,” and thus not an act of state. Such violations “are exempt from the [act of state] doctrine.” Intervener factum of EarthRights International and The Global Justice Clinic at New York University School of Law to the Supreme Court of Canada in Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending at para 6. 53 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 6 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 54 Appellant’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 22 https://www.scc-csc.ca/case-dossier/ info/dock-regi-eng.aspx?cas¼37919. 55 Canada (Justice) v. Khadr, [2008] 2 S.C.R. 125, 2008 SCC 28 at para 18.

248

5 ‘Principled Judicial Activism’ in Defense of Our Common Humanity

case.56 (See also The Case of Mahar Arar).57 It is argued here that the same principle should apply in this case to a private corporation Nevsun Resources Ltd. This as the company had a responsibility to act honorably, at a minimum, consistent with international customary law for many reasons not the least of which include (a) to preserve Canada’s reputation and credibility internationally as a human rights defender and (b) to avoid the adverse consequences for global foreign relations should Canada, through its agents, companies or other symbols of Canada, be perceived to be negating fundamental human rights and exploiting vulnerable persons in developing States in a manner reminiscent of colonial powers. Note that the Canadian courts to date have never directly engaged with the ‘Act of State Doctrine’58 while Nevsun is pleading that the Supreme Court of Canada (SCC) reverse course and apply the aforementioned doctrine in its reasoning in adjudicating this case. There are in fact several exceptions or limitations that arguably render the ‘Act of State Doctrine’ inapplicable in this case:

56 Canadian security intelligence officials interrogated Khadr, a Canadian citizen teenager captured in Afghanistan and held at Guantanamo Bay Cuba, facing murder and terrorism charges. The Canadian intelligence officials shared the results of their interviews with the US prosecutors. The Supreme Court of Canada held that “The principles of international law and comity of nations, which normally require that Canadian officials operating abroad comply with local law and which might otherwise preclude application of the Charter to Canadian officials acting abroad, do not extend to participation in processes that violate Canada’s binding international human rights obligations. The process in place at Guantanamo Bay at the time Canadian officials interviewed K and passed on the fruits of the interviews to U.S. officials has been found by the U.S. Supreme Court, with the benefit of a full factual record, to violate U.S. domestic law and international human rights obligations to which Canada subscribes. The comity concerns that would normally justify deference to foreign law do not apply in this case.” Canada (Justice) v. Khadr, [2008] 2 S.C.R. 125, 2008 SCC 28 (Summary). 57 See for example Amnesty International The Case of Mahar Arar (posted 03/06/2017) https:// www.amnesty.ca/legal-brief/case-maher-arar regarding Canadian officials’ involvement in the US rendition of Mr. Arar to Syria: “The RCMP provided American authorities with information portraying Mr. Arar unfairly as an Islamic Extremist despite having no basis to describe him that way.” In Syria Mr. Arar was detained, interrogated, held in degrading conditions and tortured until he was released to Canada about one year later due to Amnesty’s intervention in appealing to US and Canadian officials to work for his release. “On 26 January 2007, Prime Minister Harper issued a public formal apology on behalf of the Canadian government. Mr. Arar received 11.5 million dollars in compensation for the direct and indirect role Canadian officials played in his rendition to and torture in Syria.” Hence Canada did not attempt to misguidedly rely on the ‘Act of State Doctrine’ or any other vehicle in an effort to absolve itself and its officials from liability in the case where Mr. Arar’s basic human rights were breached in regards to his entitlements under international customary and certain treaty law and the ‘Act of State Doctrine’ for that reason and others does not apply. See also Centre for Constitutional Rights Arar v Ashcroft et al. for a summary of the federal US proceedings https://ccrjustice.org/home/what-we-do/our-cases/arar-v-ashcroft-et-al. 58 Appellants Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 36 https://www.scc-csc.ca/case-dossier/ info/dock-regi-eng.aspx?cas¼37919.

5.2 Case 1:Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. SCC. . .

249

a) The ‘public policy exception’: The first exception or limitation is the public policy limitation, which provides that the doctrine will not apply to foreign acts of state which are in breach of clearly established rules of international law, or are contrary to principles of public policy, or grave infringements of human rights. Thus, the act of state doctrine does not apply where the result would be “inconsistent with what are currently regarded as fundamental principles of public policy.”59

b) The ‘Act of State’ Doctrine would be engaged only were the complainants (here the Respondent Eritrean refugees who filed suit against Nevsun Resources Ltd.) ‘denying the legal effect’ of a foreign official act (i.e. claiming that a law or sovereign act of the foreign State is invalid) while, conversely, “the act of state will not be engaged where the relief sought does not require a domestic court to invalidate the laws or acts of a foreign state.”60 In the case at bar the complainants were not seeking to invalidate any Eritrean laws or purported sovereign act but rather to hold Nevsun accountable for its breach of international peremptory customary law and for other torts in its operations in Eritrea61 and c) The “act of State doctrine only protects sovereign acts. Actions taken by state organs in furtherance of commercial activities do not qualify.”62 Here the issue is Nevsun’s use, in a commercial enterprise in Eritrea (its gold, copper and zinc Bisha mine), of forced labour supplied by Eritrea which has indefinite compulsory national service applicable to all Eritrean citizens. Thus the commercial enterprise limitation on the application of the ‘Act of State Doctrine’ also applies. The Respondents in the case, the Eritrean refugees, call upon the Supreme Court of Canada (SCC) essentially to engage in ‘principled judicial activism’ stating that: Recognizing common law torts based on violation of these norms would allow the common law to develop in a principled and structured manner that fully encapsulates the prohibited

59

Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 41 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 60 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 42 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 61 Even where the Act of State Doctrine does not apply, the Canadian courts have ruled that nevertheless “a court may evaluate the behaviour of a foreign state for purposes that do not affect its legal interests. . . Moreover, this Court routinely scrutinizes the behaviour of foreign states in refugee cases (emphasis added).” (Citing Judge Mosley in Khadr v. Canada 2014 FC 1001 [“Khadr”], at para 39) Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 89 https:// www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 62 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 43 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919.

250

5 ‘Principled Judicial Activism’ in Defense of Our Common Humanity

conduct and which vindicates universal human rights and Charter values.63 [The Respondents here refer to common law torts relating to violation of international peremptory customary law norms].

That the Eritrean refugee complainants in Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al are requesting a remedy that includes recognition of a novel tort (grounded in the harms caused to them by the company when it allegedly violated international customary law extraterritorially) is not a basis for rejecting that portion of the claim. Just as corporations are in law regarded as persons and their alleged rights are continually being expanded through novel claims as a corporation akin to those a natural person might make (i.e. the right to freedom of expression through campaign contributions)64 so too must novel claims that weigh on the other side of the coin—responsibility of multinational corporations at home and abroad, for instance, in the human rights arena—not be discounted out-of-hand due largely to their novelty. The Nevsun company in this case argued, however, that liability for Nevsun Resources Ltd. based on its use of forced labour in Eritrea as a violation of customary international law would “constitute such a radical change in the law that it must be left to Parliament”65 and that “This case exemplifies why the invitation to our courts to proceed, and to create new claims for breaches of international law, must be declined.”66 Nevsun also argued that Canada has relied on non-judicial mechanisms to encourage companies doing business abroad to comply with international human rights norms (i.e. the establishment in 2018 of the Office of the Canadian Ombudsperson for Responsible Enterprise).67 Nevsun then makes the claim that the government of Canada intended such non-judicial mechanisms to be the exclusive forum for claims against Canadian companies doing business abroad

63 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 5 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 64 See, for instance, the United States Supreme Court decision Citizens United v. Federal Election Commission 558 US 310 (2010), Judgement 21 January, 2010 https://www.scotusblog.com/casefiles/cases/citizens-united-v-federal-election-commission/ The Majority in that case held that “Political spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections. While corporations or unions may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast” (Holding). 65 Appellant Nevsun Resources Ltd. Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending at para 3 https:// www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 66 Appellant Nevsun Resources Ltd. Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending at para 5 https:// www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 67 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 91 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919.

5.2 Case 1:Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. SCC. . .

251

rather than the Canadian courts.68 The Respondents dispute this and hold that the establishment of non-judicial mechanisms does not indicate the Government of Canada intended these as the only forum for settling claims brought by those aggrieved due to alleged human rights violations committed by Canadian companies in their foreign operations.69 Indeed the Respondents point to the following Canadian government statement as to its intent in this regard: “The creation of the Ombudsperson’s office does not affect the right of any party to bring a legal action in a court in any jurisdiction in Canada regarding allegations of harms committed by a Canadian company abroad (emphasis added).”70 Further the Respondents noted that the government had not intervened in the proceedings to bring any potential government objections to the attention of the Court.71 This author would argue, moreover, that the Courts have an essential role in such a case. That role is to defend our common humanity; here by forthrightly holding to account those companies as corporate entities and the relevant employees72 responsible for international customary law and other human rights breaches. This rather than shirking this fundamental duty by deferring to government and its’ political agenda (if opposed to the claim) thereby potentially delaying justice, if it comes at all, for the complainants who have suffered grievous atrocity. In this regard it is important to understand that the values underlying a novel common law tort for breach of international peremptory customary law (as contemplated in the Nevsun case) are in fact already implicit in the law in any democracy (such as Canada) grounded as it is on respect for human dignity.73 The Respondent Eritrean refugees thus put it to the SCC that:

68 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 91 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 69 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 91 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 70 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 92 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 71 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 93 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 72 Referring here to those corporate entities and individual corporate employees who perpetrated or were complicit in the grave international law breaches either directly or indirectly and had knowledge or should have had knowledge of the violations. In that regard note also that the Court has universal jurisdiction. 73 “The values underlying the prohibition on, inter alia, slavery and crimes against humanity are Charter values and are rooted in the same notions of personal liberty and dignity embodied in s. 7.” (Nevsun is however not a Charter case) Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 102 https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919.

252

5 ‘Principled Judicial Activism’ in Defense of Our Common Humanity

The question is only whether plaintiffs will be able to plead claims based on prohibitive norms of customary international law in addition to well-established tort claims like negligence or battery.74

Nevsun Resources Ltd. seeks to have the Supreme Court of Canada (SCC) rely on the ‘Act of State Doctrine’75 as a supposed legal basis to absolve that private Canadian company of any liability for its use of forced labour and other breaches of international customary law norms in the construction of its Bisha mine in Eritrea. Note that the Act of State Doctrine “has been described variously as a doctrine of judicial prudence or deference, judicial restraint, judicial abstention, issue preclusion, conflicts of law and choice of law.”76 The Respondent Eritrean refugees in this case submit that “Nevsun’s version of the act of state doctrine takes the concept of comity much too far and seeks to elevate it to a rule of law barring judicial inquiry.”77 In the context of the Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. case; this author respectfully suggests that ‘the Act of State doctrine’ is intended by the Appellant Nevsun Resources Ltd. as a vehicle to urge, without legal basis, ‘judicial restraint’ and as a practical matter ‘issue preclusion’ as to Nevsun’s liability for breach of international peremptory customary law norms holding that the company is shielded somehow based on the Act of State Doctrine as applied to Eritrea. The latter ignores then the exceptions to that Act of State Doctrine that are relevant in Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. (those exceptions/limitations here discussed previously) making that doctrine inapplicable in this case. Furthermore, the conscience of the international community (such as it is) and the international community’s hope for peace, both of which are grounded on nation States demonstrating respect for human dignity, demand accountability by Nevsun Resources Ltd. for its role in any breach of international customary law standards in the construction and operation of the Bisha mine in Eritrea. The occurrence or non-occurrence of such breaches then is something upon which the Supreme Court of Canada will rule in due course in Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. The outcome on that point is likely not to surprise given the overwhelming NGO and other evidence of Eritrea’s grave human rights abuses perpetrated on its own population and Nevsun’s admission that it used forced

74 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 103 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 75 For a useful summary of the constituent rules of practice flowing from the Act of State Doctrine see Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 39 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 76 Appellant Nevsun Resources Ltd. Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending at para 36 https:// www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 77 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 53 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919.

5.2 Case 1:Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. SCC. . .

253

Eritrean labour in its Bisha mining venture in Eritrea. The current author concurs with the Respondents that Nevsun’s argument that the Canadian courts cannot offer relief to bona fide victims of breaches of international customary law perpetrated abroad by Canadian companies alone or jointly with a foreign State is legally insupportable as no shield exists in the ‘Act of State Doctrine’ in such a circumstance for the foreign State or as a supposed by-product for the complicit Canadian company for the reasons previously here discussed. It would, on the view here, with respect, be unconscionable if Canadian multinational companies escape civil liability for breaches of international peremptory human rights norms committed extraterritorially on the presumption that no common law tort for violation of international human rights norms could exist absent Parliament’s expressly legislating the same. Consider in this regard that: Today. . . transnational companies have power and influence approaching and sometimes exceeding that of the states in which they operate but without the public law responsibilities of statehood. This has created a challenge for the international community as it seeks to develop remedies for harms arising out of the involvement of such companies in human rights abuses.78

Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al is thus, on the respectful view here, a case calling out for ‘principled judicial activism’ in the development of the common law though recognition of a common law tort relating to breach of peremptory international customary law. This given that (a) such a tort is sufficiently grounded in Canadian Charter values and informed by international law that holds such breaches to be a grave offence to the international community as a whole and not just to the direct victims79 and that (b) “the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. . . Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law (emphasis added).”80 It is important to understand that the claims in Nevsun “. . . are not claims in international law per se, but claims in common law, which incorporates prohibitive rules of customary international law through the

78

Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 108 (Citing Justice Ian Binnie) https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas¼37919. 79 The Respondents Eritrean refugees made the argument that the existing common law torts of battery, assault etc.do not capture the grievous nature of the harms arising from forced labour, slavery and other breaches of international customary law Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 98-99 https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx? cas¼37919. 80 Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 111 (Citing R v Hape, 2007 SCC 26 at para 39) (Supreme Court of Canada) https://www.scc-csc.ca/case-dossier/info/dock-regi-eng. aspx?cas¼37919.

254

5 ‘Principled Judicial Activism’ in Defense of Our Common Humanity

doctrine of adoption. The prohibition is on acts of slavery or crimes against humanity; it is domestic law which defines the remedies.”81 Clearly Nevsun considered it was unconstrained, in practice at least, by international law or custom in its use of forced labour in Eritrea and it is now the Supreme Court of Canada’s (SCC’s) role to determine if the multinational Nevsun Resources Ltd. Corporation bears any liability in this regard given that Canada’s common law is informed by international customary law and human rights principles. Fundamental human rights values and respect for international peremptory customary law represent some of the substantive content of core principles underlying democracy. These cannot be sacrificed to placate multinational corporate entities (foreign or domestic) or State economic, political or other interests without chipping away at the very fabric of Canadian democracy itself.82 Given this admonition it is highly disconcerting, in the context of the Nevsun case, concerning as it does alleged corporate complicity in grave international customary law violations (i.e. the use of forced or slave labour and inhumane working conditions), to have the Ottawabased senior vice-president of the Mining Association of Canada (an intervener in the Nevsun case before the SCC) comment on the corporation’s recommended ordering of priorities as follows: The prospect of customary international law applying to Canadian businesses, and particularly the mining sector, creates unpredictability that will compromise our competitiveness if not properly thought out.83

There can be no derogation, however, from international peremptory customary law (such as the prohibition on the use of forced labour) and hence no limitations/ exemptions based, for instance, on corporate commercial interest can apply in holding corporations to account for perpetrating such grievous harms directly or indirectly or being complicit in them. We will soon discover with the release of its judgment in Nevsun whether the SCC is willing to take up the human rights mantle to decide whether multinational corporations can be held liable for extraterritorial violations of international peremptory customary law or whether, instead, the Court chooses to punt the issue to Canada’s Parliament. If the latter, the Court will have left the Eritrean refugees

81

Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 127 https://www.scc-csc.ca/casedossier/info/dock-regi-eng.aspx?cas¼37919. 82 “In this regard consider Nevsun’s taking the position that Canadian domestic courts should not become the regulators of Canadian companies’ economic development activities abroad where conducted in conjunction with foreign states; and Canadian domestic courts should not apply to private actors the public international law principles that apply to states.” See Appellant Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending at para 1 https://www.scc-csc.ca/case-dossier/info/dock-regieng.aspx?cas¼37919. 83 Melnitzer Julius for the Financial Post (online) Supreme Court set to hear Nevsun Resources case on Eritrea human rights abuses (27 December, 2018) https://business.financialpost.com/legal-post/ supreme-court-set-to-hear-nevsun-resources-case-on-eritrea-human-rights-abuses.

5.3 Case 2:Jesner et al. v Arab Bank PLC (Supreme Court of the United States). . .

255

complainants to continue with their suffering in the interim for an undetermined period and effectively discounted as meaningful their herculean legal fight for justice and their courage in the first instance in filing the suit that brought them ultimately to the Canadian High Court.

5.3

Case 2: Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018, 138 S. Ct. 1386 (2018) (Exemption Under the US Alien Tort Statute of a Foreign Multinational Corporation from Liability for Violations of International Peremptory Customary Law)

In Jesner et al. v Arab Bank PLC, the United States Supreme Court (USSC) expressed uncertainty regarding what are the proper boundaries of what it characterized as “judge-made causes of action” in the context of international law (emphasis added).84 Consequently, in the plurality opinion written by Justice Kennedy in Jesner, the Court took the position that it should follow the strategy set out by the U.S. Congress in the Torture Victim Protection Act.85 That is to limit liability to natural persons, individuals, (rather than including corporate entities) for violations of international customary law such that only individuals acting in their official capacity could be sued in US Federal Court for such violations by either foreign or domestic petitioners where no other remedy was, in practice, available.86 On the view here, however, the Jesner case primarily raises the issue of what constitutes excessive judicial deference to government and a declining by the Court potentially of its’ proper jurisdiction in viable common law tort cases involving the violation of international peremptory customary law by multinational corporations. The Jesner case involves the potential tort liability of the multinational corporation Arab Bank PLC due to the corporation’s alleged complicity in grave violations of human rights rising to the level of a breach of international peremptory customary law where the civil suit was filed by aliens (foreigners) against the corporation.87 The plurality USSC opinion in Jesner stressed that USSC case precedent stipulates that it is only “in certain narrow circumstances [that] [the] courts may recognize a common-law cause of action for claims based on the present-day law of nations. . .(emphasis 84

Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) (Syllabus, Plurality Opinion, Justice Kennedy at p. 19). 85 See Ryan (2018). 86 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) (Syllabus, Plurality Opinion, Justice Kennedy at p. 20). 87 For a procedural history of the case before it reached the United States Supreme Court see Sharma, C Lawfare Summary: Supreme Court Rules in Jesner v Arab Bank (27 April, 2018) https:// www.lawfareblog.com/summary-supreme-court-rules-jesner-v-arab-bank.

256

5 ‘Principled Judicial Activism’ in Defense of Our Common Humanity

added)”88 Further the Court, noting relevant USSC case precedent, expressed concerns about separation-of-powers [between the Courts and Congress] and potential serious “foreign-relations consequences” should the Court permit a suit under the Alien Tort Statute (ATS)89 to proceed against a foreign multinational corporation based on breach of international peremptory customary law.90 There was also the concern expressed in previous USSC cases that “modern ATS litigation has the potential to involve groups of foreign plaintiffs suing foreign corporations in the United States for alleged human-rights violations in other nations” potentially involving unmanageable numbers of such suits and numbers of plaintiffs.91 To reduce the number of such ATS civil suits; previous USSC case law held that violations of international customary law by a multinational corporation on foreign soil would not allow for an ATS suit in a U.S. Federal Court unless the facts of the case, in the estimation of the U.S. Court, revealed that the impugned actions so sufficiently also touched and concerned the territory of the United States that the latter overcame the presumption of extraterritoriality.92 In Jesner the USSC held, on its assessment of the facts, that the territory of the United States was only tangentially involved in a minor way93 but the appeal was not dismissed primarily on that basis but on another as will be discussed shortly. In addition the Plurality judgment in Jesner (delivered by Justice Kennedy) formulated an alleged “independent problem” (that was not at all controlling in terms of the plurality ruling); namely that Jesner involved foreign plaintiffs bringing a tort claim under ATS “against a foreigner94 over the meaning of international norms” while “The original understanding of the ATS, which was but one clause in one section of the Judiciary Act of 1789, likely would have required a domestic defendant. . .”95 In Jesner the United States Supreme Court (USSC) started its analysis expressing serious doubts about whether “the courts should exercise the judicial authority to mandate a rule imposing liability upon artificial entities like corporations”96 (i.e. for violations of peremptory international customary law) absent guidance from the

88 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) at p. 2 Syllabus, Plurality Opinion, Justice Kennedy. 89 Aceves William (2007). 90 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) at p. 2 Syllabus, Plurality Opinion, Justice Kennedy. 91 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) at p. 2 Syllabus, Plurality Opinion, Justice Kennedy. 92 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) at p. 2 Syllabus, Plurality Opinion, Justice Kennedy. 93 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) at p. 3 Syllabus, Plurality Opinion, Justice Kennedy. 94 Referring here to the foreign multinational corporation Arab Bank with a branch in the U.S. 95 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) at p. 6 Syllabus, Plurality Opinion, Justice Kennedy. 96 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) at p. 2 Syllabus, Plurality Opinion, Justice Kennedy.

5.3 Case 2:Jesner et al. v Arab Bank PLC (Supreme Court of the United States). . .

257

U.S. Congress on the matter. The USSC resolved that doubt for the time being—at least in regards to foreign multinational corporations—in its plurality ruling in Jesner holding that “it would be inappropriate for courts to extend ATS liability to foreign corporations absent further action from Congress.”97 The USSC in Jesner thus left it to the U.S. Congress to decide whether courts in the U.S. could ever recognize “new ATS [Alien Torts Statute] causes of action”98 as, for instance, an ATS suit concerning infringements of peremptory international customary law by a multinational corporation perpetrated on foreign soil. The USSC in Jesner in a five to four ruling held thus that—absent a Congressional decision to the contrary— aliens cannot sue foreign multinational corporations under the US Alien Torts Statute; that is they have no access to the U.S. Federal Courts for that purpose. This even where the issue is alleged corporate violations of international peremptory customary law99: “. . .judicial deference requires that any imposition of corporate liability on foreign corporations for violations of international law must be determined in the first instance by the political branches of the Government.”100 The United States Supreme Court (USSC) in Jesner noted that “foreign sovereigns [have] raised objections to ATS litigation in this Court.”101 The USSC in Jesner then reiterates and relies on United States Supreme Court case precedent highlighting that “judicial caution . . . ‘guards against our courts triggering . . . serious foreign policy consequences, and instead defers such decisions, quite appropriately, to the political branches.’”102 The petitioners in Jesner were foreign nationals who filed suit under the US Alien Tort Statute (ATS)103 alleging that certain terrorist acts committed outside the U.S. which caused them or those they represent injury or death were significantly “in part caused or facilitated by respondent Arab Bank, PLC, a Jordanian financial institution with a branch in

97 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) at p. 3 Syllabus, Plurality Opinion, Justice Kennedy. 98 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) at p. 3 Syllabus, Plurality Opinion, Justice Kennedy. 99 Sharma, C Lawfare Summary: Supreme Court Rules in Jesner v Arab Bank (27 April, 2018) https://www.lawfareblog.com/summary-supreme-court-rules-jesner-v-arab-bank. 100 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) Plurality Opinion, Justice Kennedy at p. 29. 101 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) at p. 3 Syllabus, Plurality Opinion, Justice Kennedy. 102 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) at p. 3 Syllabus, Plurality Opinion, Justice Kennedy. 103 The US ‘Alien Tort Statute’ (ATS) is a “jurisdictional grant not a statutory cause of action . . .[it] allows federal courts to hear common law claims already within the jurisdiction of state courts (emphasis added).” Intervener factum of EarthRights International and The Global Justice Clinic at New York University School of Law to the Supreme Court of Canada in Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending at para 2.

258

5 ‘Principled Judicial Activism’ in Defense of Our Common Humanity

New York.”104 The large group of petitioners were seeking millions of dollars compensation from the Jordanian multinational bank. The United States Supreme Court (USSC) in Jesner noted that the litigation had been ongoing for 13 years causing diplomatic tensions between the US and Jordan. Jordan had raised objections to the ATS litigation involving a tort claim against the Arab Bank PLC. In the estimation of the USSC; the Jesner ATS litigation was in fact eroding the good foreign relations that the Alien Torts Act was intended to reinforce.105 If the facts of the case did not support the corporate liability of Arab Bank, PLC for the purported violations of international customary peremptory law at issue in Jesner then that would have been a sufficient basis for the United States Supreme Court (USSC) to find for Arab Bank, PLC in the case. However, in Jesner, the USSC plurality judgement is importantly grounded on the unwillingness of the Court to hold foreign multinational corporations to account under the Alien Torts Statute (ATS); ruling such corporations (as legal entities in themselves) instead exempt from actions under the ATS where the impugned actions are deemed to have occurred on foreign soil.106 This even should the facts reveal that grave human rights violations (even those constituting infringements of international peremptory customary law norms) perpetrated abroad were, in some form or fashion, aided and abetted to some significant degree by the U.S. Branch of the foreign multinational corporation in question (Recall that the petitioners alleged in Jesner that in fact the U.S. Branch of Arab Bank was heavily involved in facilitating the terrorist activities at the heart of the case and that, though the USSC plurality view disputed that alleged fact; it was not on that basis that the appeal was dismissed by the USSC).

104

Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) (Syllabus, Plurality Opinion) https://casetext.com/case/jesner-v-arab-bank See also Sharma, C Lawfare Summary: Supreme Court Rules in Jesner v Arab Bank (27 April, 2018): . . .some of the funds used to finance the alleged terrorist accounts went through the New York office’s Clearing House Interbank Payment System (CHIPS), in transactions involving U.S. dollars as a primary or intermediary currency. Additionally, plaintiffs allege that the New York branch of Arab Bank was used to launder money for a Texas-based nonprofit suspected of supporting Hamas, the Holy Land Foundation for Relief and Development (HLF). Available at https://www.lawfareblog.com/summary-supreme-court-rulesjesner-v-arab-bank.

“The ATS was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations when the absence of such a remedy might provoke foreign nations to hold the United States accountable” Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) (Syllabus, Majority Opinion at p. 3) https://casetext.com/case/jesner-v-arab-bank. 106 Note that the complainants in Jesner could still pursue civil suits under the Alien Tort Statute against individuals employed at the Jesner corporation responsible for violations of international law but not the corporate entity itself (Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) (Syllabus, Plurality Opinion Syllabus at p 4 point (c)). 105

5.3 Case 2:Jesner et al. v Arab Bank PLC (Supreme Court of the United States). . .

259

The USSC Plurality Opinion in Jesner reduces—(a) the matter of the grave human rights abuses alleged (involving violations of international peremptory customary law) and (b) the question of whether the Arab Bank, PLC New York Branch had any purported liability—both to a ‘policy’ question. The USSC in Jesner contends thus that the courts are not well-suited “to make the required policy judgments implicated by foreign corporate liability”107 stating that “Congress, not the Judiciary, is the branch with ‘the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.’”108 However the potential liability of a multinational corporation—foreign or domestic—for violations of peremptory international customary law on foreign soil,109 given the triggering thereby of universal jurisdiction (for determination of at a minimum potential civil corporate liability), cannot in a legally supportable way (on the respectful view here) in a democracy be regarded as a matter for discretionary governmental policy decision-making rather than accountability through the courts. To take the view that such matters are within the purview of governmental discretionary policy-making is on the respectful view here to deny each individual State’s positive obligation to do its part to uphold the international legal order which, in part, in a common law country requires, at times, (a) evolution in the common law through judicial interpretation informed by international law and (b) a willingness also of the particular domestic court to hold to account corporate perpetrators and facilitators of violations of international customary law which then requires that the court exercise its’ proper jurisdiction. The current author, respectfully, takes the contrary view to the United States Supreme Court in Jesner; namely that serious adverse consequences for foreign relations, peace and security flow from the failure of the domestic courts to hold multinational corporate entities-domestic and foreign-to account for grave human rights abuses perpetrated or facilitated extraterritorially and rising to the level of violations of international peremptory customary law.110 U.S. governmental (Congressional) response to the issue of corporate liability under the ATS remains

107

Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) (Syllabus, Plurality Opinion at p. 3) https://casetext.com/case/jesner-v-arabbank. 108 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) (Syllabus, Majority Opinion at p. 25). 109 One example is corporate violation of international peremptory customary law through corporate complicity in some form or fashion with terrorist attacks committed extraterritorially as alleged in Jesner. 110 Justice Alito in Jesner expresses the contrary view that “Declining to extend the ATS to foreign corporate defendants is thus not about “[i]mmunizing corporations that violate human rights,” . . .but rather about furthering the purpose that the ATS was actually meant to serve—avoiding diplomatic strife.” Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) Justice Alito Opinion at p. 7.

260

5 ‘Principled Judicial Activism’ in Defense of Our Common Humanity

undetermined and the block therefore to multinational corporations as legal entities in themselves being held to account for extraterritorial violations of international peremptory customary law per the ATS,111 given the USSC Jesner ruling, thus to date holds.112

References Literature Aceves William J (2007) The anatomy of torture: a documentary history of Filatiga v Pena Irala. Brill, Leiden Cooper C (1980) Act of State and Sovereign Immunity: a further inquiry. Loyola Univ Chic Law J 11(2):193–236 Grover SC (2010) The European Court of Human Rights as a pathway to impunity for international crimes. Springer, Berlin Letsas G (2013) The ECHR as a living instrument: its meaning and legitimacy. In: Follesdal A, Peters B, Ulfstein G (eds) Constituting Europe: The European Court of Human Rights in a National, European and Global Context (Studies on human rights conventions). Cambridge University Press, Cambridge, pp 106–141 Ryan L (2018) Against conduct-based immunity for torture victim protection act defendants (April 18, 2017). Barry Law Rev 23. SSRN: https://ssrn.com/abstract¼2964317 or https://doi.org/10. 2139/ssrn.2964317. Accessed 23 Sept 2019 Zarbiyev F (2012) Judicial activism in international law—a conceptual framework for analysis. J Int Dispute Settlement 3(2):247–278

111

See Howe, SCOTUS blog A Opinion analysis: Court bars lawsuits against foreign corporations under Alien Tort Statute (Posted 24 April, 2018) https://www.scotusblog.com/2018/04/opinionanalysis-court-bars-lawsuits-against-foreign-corporations-under-alien-tort-statute/. In Jesner the petitioners claimed that the US Branch of Arab Bank “kept accounts for known terrorists, accepted donations that it knew would be used to fund terrorism and distributed millions of dollars to families of suicide bombers” all in relation to terrorist attacks conducted “between 1995 and 2005 in Israel, West Bank and Gaza.” Thus the petitioners held that the territory of the US was heavily implicated in the infringements of international customary law allegedly perpetrated by Arab Bank. 112 For example: “Congress could conclude that neutral judicial safeguards may not be ensured in every country and that, as a reciprocal matter, ATS liability for foreign corporations should be subject to some limitations or preconditions. Finally, Congress might find that corporate liability should be limited to cases where a corporation’s management was actively complicit in the crime” Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) (Syllabus, Majority Opinion) at p. 5 point (d) https://casetext.com/case/ jesner-v-arab-bank.

References

261

Materials Amnesty International Eritrea 2017/2018 https://www.amnesty.org/en/countries/africa/eritrea/ report-eritrea/ Accessed 9 August, 2019 Amnesty International The Case of Mahar Arar (posted 03/06/2017). https://www.amnesty.ca/ legal-brief/case-maher-arar Accessed 9 August, 2019 Centre for Constitutional Rights Arar v Ashcroft et al. https://ccrjustice.org/home/what-we-do/ourcases/arar-v-ashcroft-et-al Accessed 11August, 2019 Dialogue Between Judges (2011) What are the limits to evolutive interpretation of the Convention? Strasbourg: European Court of Human Rights (January, 2011) https://www.echr.coe.int/Docu ments/Dialogue_2011_ENG.pdf Accessed 9 August, 2019 Howe, SCOTUS blog A Opinion analysis: Court bars lawsuits against foreign corporations under Alien Tort Statute (Posted 24 April, 2018). https://www.scotusblog.com/2018/04/opinion-anal ysis-court-bars-lawsuits-against-foreign-corporations-under-alien-tort-statute/ International Labor Organization (ILO) The Meanings of Forced Labour https://www.ilo.org/ global/topics/forced-labour/news/WCMS_237569/lang%2D%2Den/index.htm Accessed 8 August, 2019 Melnitzer Julius for the Financial Post (online) Supreme Court set to hear Nevsun Resources case on Eritrea human rights abuses (27 December, 2018) https://business.financialpost.com/legalpost/supreme-court-set-to-hear-nevsun-resources-case-on-eritrea-human-rights-abuses Accessed 13 August, 2019 State of the Netherlands v The Urgenda Foundation: Hague Court of Appeal Requires Dutch Government to Meet Greenhouse Gas Emissions Reductions By 2020 Harvard Law Review (Case Commentary posted 10 May, 2019) https://harvardlawreview.org/2019/05/state-of-thenetherlands-v-urgenda-foundation/ Accessed 13 August, 2019 United Nations Human Rights Council ‘Current Membership of the Human Rights Council for the 13th Cycle I January-31 December, 2019 at https://www.ohchr.org/EN/HRBodies/HRC/Pages/ CurrentMembers.aspx Accessed 8 September, 2019 United Nations Human Rights Office of the High Commissioner Eritrea: UN Commission has urged referral to the International Criminal Court (Geneva 28 October, 2016). https://www. ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID¼20779 Accessed 9 August, 2019

Cases Armando Carvalho, et al. v The European Parliament and the Council of the European Union (The People’s Climate Case) https://peoplesclimatecase.caneurope.org/ (The European General Court’s order ruling the case inadmissible is available at. https://peoplesclimatecase. caneurope.org/wp-content/uploads/2019/05/european-general-courts-order-_15.05.2019.pdf) Canada (Justice) v. Khadr [2008] 2 SCR 28 Case of Fazia Ali v the United Kingdom (Application no. 40378/10) (European Court of Human Rights) Judgment 20 October, 2015 at para 59 https://hudoc.echr.coe.int/eng#{%22itemid%22:[ %22001-158031%22]} Citizens United v. Federal Election Commission 558 US 310 (2010), Judgement 21 January, 2010. https://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/ Accessed 9 August, 2019 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) (Summary, Majority Opinion) https://casetext.com/case/jesner-v-arabbank Accessed 12 August, 2019 Juliana v United States, 217 F Supp (3d) 1224, (D Or 2016) [Juliana].

262

5 ‘Principled Judicial Activism’ in Defense of Our Common Humanity

Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. SCC, Docket 37919, Judgment Pending (Supreme Court of Canada, Judgement Pending). https://www.scc-csc.ca/case-dossier/info/ dock-regi-eng.aspx?cas¼37919. For more direct access to factums see https://www.scc-csc. ca/case-dossier/info/af-ma-eng.aspx?cas¼37919 Streletz, Kessler and Krenz v Germany (Applications nos. 34044/96, 35532/97 and 44801/98) European Court of Human Rights Grand Chamber Judgement 22 March, 2001. https://www. legal-tools.org/doc/7058a0/pdf/ Accessed 9 August, 2019

Chapter 6

Concluding Comment

Whether ‘principled judicial activism’ in defense of our common humanity becomes a more consistent feature of national court practice or, instead, increasingly a ‘legal fiction’1 will depend in significant part on what the populace, in particular in democratic societies, expects of its courts as impartial arbiters of disputes implicating core human rights and freedoms. That expectation will in turn be a reflection of the evolving normative socio-cultural practices of the society itself which hopefully will once again trend overwhelmingly to democratic values, scientific evidence where available and applicable, a global perspective and away from isolationism, protectionism and extreme populism whether on the left or the right.2 At the same time; the domestic courts may themselves assist in setting a proactive example for government by way of their defense of core human rights, their reliance for guidance in part on international human rights and customary law and acknowledgement of our common humanity. After the Second Circuit first permitted plaintiffs to bring ATS [Alien Tort Statute] actions based on modern human-rights laws, Congress enacted the Torture Victim Protection Act of 1991 (TVPA), creating an express cause of action for victims of torture and extrajudicial killing in violation of international law (emphasis added)3

1

Grover (2010). A discussion of such initiatives or trends toward democratic values in authoritarian States is beyond the scope of this work. 3 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) (Syllabus, Plurality Opinion) https://casetext.com/case/jesner-v-arab-bank See also Aceves William (2007). 2

© Springer Nature Switzerland AG 2020 S. C. Grover, Judicial Activism and the Democratic Rule of Law, https://doi.org/10.1007/978-3-030-35085-7_6

263

264

6 Concluding Comment

In addition, “. . .international law is “in flux” and that transnational law, which regulates “actions or events that transcend national frontiers” is developing,4 especially in connection with human rights violations that are not effectively addressed by traditional “international mechanisms”5 Further, there may be some hopeful signs in that international human rights considerations are increasingly impacting judicial interpretation and decision-making in a range of case contexts in democratic States. For instance “the Urgenda Foundation6 v The State of the Netherlands ruling, decided at the District Court of the Hague in June 2015 marked the first time any court in the world ordered its own government to strengthen its response to the climate change crisis.”7 That decision has now been upheld on appeal where the Dutch Appeals Court held that the government had violated Articles 2 (right to life) and 8 (right to private life and family life) of the European Convention on Human Rights by not fulfilling its positive obligation/duty of care regarding reducing greenhouse gas emissions since drastic climate change would interfere with the complainants’ prospects of enjoyment of the aforementioned Convention rights.8 “Until the Urgenda decision, no court had held a government responsible for its national contribution to global greenhouse gas emissions originating from its territory or for its failure to aggressively mitigate these emissions, nor had any court given human rights norms a central role in defining the greenhouse gas emission standards that government must uphold.”9 The case was decided in the context of domestic tort law and the Dutch government’s duty of care to its citizens however “the court expanded that duty by interpreting it in the context of human rights and constitutional principles” [and] “The court concluded that international law obligations “have a “reflex effect” in national law.”10 Climate change litigation is a prime

4

Zarbiyev (2012). Respondent’s Factum to the SCC Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al Supreme Court of Canada (SCC) Docket 37919, Judgment Pending para 104 (Citing Judge Newbury Reasons for Judgment of the Court of Appeal for British Columbia, 2017 BCCA 401 Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al at para 196–197) https://www.scc-csc.ca/case-dossier/ info/dock-regi-eng.aspx?cas¼37919. 6 “The Urgenda Foundation [is]. . . a citizens’ platform in the Netherlands representing itself and 886 individual members from various sectors committed to preventing catastrophic climate change. . .” Stein and Castermans (2017), pp. 305–306. https://openaccess.leidenuniv.nl/handle/ 1887/58039. 7 Stein and Castermans (2017), pp. 305–323. https://openaccess.leidenuniv.nl/handle/1887/58039. 8 State of the Netherlands v The Urgenda Foundation: Hague Court of Appeal Requires Dutch Government to Meet Greenhouse Gas Emissions Reductions By 2020 Harvard Law Review (posted 10 May, 2019). https://harvardlawreview.org/2019/05/state-of-the-netherlands-v-urgenda-founda tion/. 9 Stein and Castermans (2017), pp. 305–323. https://openaccess.leidenuniv.nl/handle/1887/ 58039https://openaccess.leidenuniv.nl/handle/1887/58039. 10 Stein and Castermans (2017), p. 306. https://openaccess.leidenuniv.nl/handle/1887/58039. 5

6 Concluding Comment

265

example of citizens petitioning the courts to consider our common humanity and to demonstrate principled judicial activism in interpreting State obligations in a broader global context whilst taking international human rights into consideration.11 It should be noted that young people have been active in participating or, in some cases, leading in such court challenges such as in the Juliana case in the US.12 Ganguly, Setzer and Heyvaert opine that “. . .the vital importance of a healthy and sustainable environment as a precondition for the very existence of a democratic society under the rule of law, may constitute precisely the sort of enabling environment that the judiciary needs to take new and controversial steps towards the reconceptualization of climate change mitigation and management as a universal legal responsibility.”13 In other words the existential importance of a healthy sustainable environment may lead to ‘principled judicial activism’ in the climate change litigation context.14 The latter such that the courts do not shirk their responsibilities in defending fundamental human rights and international rights obligations by erroneously reducing such matters to political non-judiciable questions. Importantly the Dutch Court of Appeals in Urgenda provided a detailed analysis grounded in domestic and international law rebutting the government’s ‘separation of powers’ defence and that rebuttal, as noted in a Harvard Law Review (HLR) case commentary, may well be applicable in other jurisdictions in climate change litigation where the non-justiciability defence arises linked to a separation-of-powers question, As described in the HLR case commentary on Urgenda: (a) The Dutch government contended that its reducing greenhouse gas emissions significantly would result in great “financial and other sacrifices” and therefore should be a matter of

11 Urgenda Foundation (Urgenda) sued the Dutch government holding that its lowering of the target for reducing greenhouse gas emissions violated provisions of the Dutch Constitution, the European Convention on Human Rights and the government’s duty of care under the Dutch Civil Code. 12 Juliana v United States, 217 F Supp (3d) 1224, (D Or 2016) [Juliana]. 13 Ganguly et al. (2018), p. 864. 14 There have been setbacks however such as the European General Court (Second Chamber’s) recent ruling in the People’s Climate Case (Armando Carvalho, et al. v The European Parliament and the Council of the European Union, European General Court Order of 8 May, 2019). The People’s Climate Case involves 10 families and groups in eight countries who filed a climate change complaint (the applicants included complainants from Portugal, Germany, France, Italy, Romania, Kenya, Fiji, as well as the Saami Youth Association Sáminuorra). The complainants contend that certain specific regulatory acts enacted by the respondents have too low a target for reducing greenhouse gas emissions and that this adversely impacts the complainants’ fundamental human rights. The case was ruled inadmissible by the European General Court on the purported lack of standing of the applicants whom the Court held had not adequately shown that the harms they suffered due to climate change differentiated them in a sufficiently significant way from others also harmed by climate change. The inadmissibility ruling is currently under appeal to the European Court of Justice. In Armando Carvalho, et al. v The European Parliament and the Council of the European Union; the complainants ask for nullification of the aforementioned regulatory acts as well as an injunction to stop the respondents from continuing to allow such high levels of greenhouse gas emissions which are harming the complainants’ way of life and their livelihood. See The People’s Climate Case for an overview of the case as well as court documents at https:// peoplesclimatecase.caneurope.org/.

266

6 Concluding Comment

discretionary policy making left solely to democratically-elected government representatives. The Court’s response to that argument was that (1) human rights considerations demanded that the government comply with the Court’s order to reach the stipulated target for reduction in emissions; and, in any case, (2) the order left the government sufficient room to make policy choices as to the specific measures to be taken to effectuate compliance with the court order; (b) The Dutch government contended that the Court was engaged in creating, in effect, judicial legislation (a form of judicial activism) that should not properly be imposed on the government. The Court contested that allegation on the basis that the government retained its discretion as to the measures chosen to effect compliance and with regard to the specific content of any legislation the government put forth to facilitate compliance with the order to reduce greenhouse gas emissions to the level set out by the court. (c) Finally the Court disputed the government’s contention that the separation of powers (‘trias politica’) prohibited the courts from imposing such an order deciding instead that the State had a positive human rights obligation to implement such measures.15 The current author would suggest that the Dutch Appeals Court analysis in rebutting the government’s ‘separation of powers’ defence may be applicable, in whole or in part, depending on the specifics of the case, in various other democratic jurisdictions in a range of contexts beyond those involving climate change but also involving government’s shirking of its positive human rights obligations. An increased focus by the courts on our common humanity is essential given the grave challenges democracies face in contemporary times and would be one pathway to overriding, to some extent at least, the unfortunate creeping politicization of the State judiciary in various democracies globally. With (a) ‘principled judicial activism’ in defence of core human rights and democratic values as well as (b) judicial decision-making informed by international customary peremptory and other international law where relevant; we arguably would have the domestic courts serving as a more effective check on the regressive influence of extremism and racism in contemporary society and on the potential sacrifice of human rights in the service of unbridled multi-national corporate and individual State irresponsible self-interest. With respect, on the view here however, sadly human rights rhetoric was unjustifiably appropriated by the Plurality in Jesner to essentially legitimize future U.S. courts looking the other way in cases alleging foreign corporate liability for violations of international customary peremptory law. This appropriation of human rights rhetoric is reflected, it is here contended, in the USSC plurality reply to petitioners’ attempt in Jesner to bring a suit in Federal Court (against the multinational corporation at issue for alleged violations of international customary law) in the form of the following retort:

15 State of the Netherlands v The Urgenda Foundation: Hague Court of Appeal Requires Dutch Government to Meet Greenhouse Gas Emissions Reductions By 2020 Harvard Law Review (Case Commentary posted 10 May, 2019) https://harvardlawreview.org/2019/05/state-of-the-netherlandsv-urgenda-foundation/.

References

267

. . . allowing plaintiffs to sue foreign corporations under the ATS could establish a precedent that discourages American corporations from investing abroad, including in developing economies where the host government might have a history of alleged human-rights violations, or where judicial systems might lack the safeguards of United States courts. And, in consequence, that often might deter the active corporate investment that contributes to the economic development that so often is an essential foundation for human rights.16

The aforementioned excerpt from the plurality opinion in Jesner appears, on the respectful view here, to reflect the USSC ill-advisedly venturing into hypothetical political and economic considerations in formulating its’ plurality ruling on a core human rights issue. However, there is in any case, it is here contended in opposition, nothing that would have ipso facto prevented American companies from investing in any economy where human rights abuses are rampant had the Jesner opinion been favorable to the petitioners. Rather such a favorable opinion would have simply put the multinational corporations on notice that any direct or indirect complicity in violations of international customary peremptory laws and norms by the corporate entity would trigger potential accountability through the U.S. domestic Federal Court system. Instead the Judiciary punted (deferred) and, on the view here, declined its proper jurisdiction while, at the same time, recognizing that the matter of potential corporate liability through U.S. Federal Courts for violation of international customary peremptory law was urgent17; that “the corporate form can be an instrument for inflicting grave harm and suffering”18 and that “there are strong arguments for permitting the victims to seek relief from corporations themselves.”19

References Literature Aceves William J (2007) The anatomy of torture: a documentary history of Filatiga v Pena Irala. Brill, Leiden Ganguly G, Setzer J, Heyvaert V (2018) If at first you don’t succeed: suing corporations for climate change. Oxf J Leg Stud 38(4):841–868 Grover SC (2010) The European Court of Human Rights as a pathway to impunity for international crimes. Springer, Berlin

16

Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) (Plurality Opinion), Justice Kennedy at p. 24. 17 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) (Plurality Opinion), Justice Kennedy at p. 24. 18 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) (Plurality Opinion), Justice Kennedy at p. 24. 19 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) (Plurality Opinion), Justice Kennedy at p. 24.

268

6 Concluding Comment

Stein E, Castermans AG (2017) Case Comment—Urgenda v. The State of the Netherlands: The “Reflex Effect”—climate change, human rights, and the expanding definitions of the duty of care. McGill J Sustain Dev Law 13(2):305–323 Zarbiyev F (2012) Judicial activism in international law—a conceptual framework for analysis. J Int Dispute Settlement 3(2):247–278

Materials Amnesty International. Eritrea 2017/2018 https://www.amnesty.org/en/countries/africa/eritrea/ report-eritrea/ Accessed 9 August, 2019 Amnesty International. The Case of Mahar Arar (posted 03/06/2017) https://www.amnesty.ca/ legal-brief/case-maher-arar Accessed 9 August, 2019 Centre for Constitutional Rights. Arar v Ashcroft et al. https://ccrjustice.org/home/what-we-do/ourcases/arar-v-ashcroft-et-al Accessed 11August, 2019 Dialogue Between Judges (2011) What are the limits to evolutive interpretation of the Convention? Strasbourg: European Court of Human Rights (January, 2011) https://www.echr.coe.int/Docu ments/Dialogue_2011_ENG.pdf Accessed 9 August, 2019 Howe, SCOTUS blog A Opinion analysis: Court bars lawsuits against foreign corporations under Alien Tort Statute (Posted 24 April, 2018). https://www.scotusblog.com/2018/04/opinion-anal ysis-court-bars-lawsuits-against-foreign-corporations-under-alien-tort-statute/ International Labor Organization (ILO). The Meanings of Forced Labour https://www.ilo.org/ global/topics/forced-labour/news/WCMS_237569/lang%2D%2Den/index.htm Accessed 8 August, 2019 Melnitzer Julius for the Financial Post (online). Supreme Court set to hear Nevsun Resources case on Eritrea human rights abuses (27 December, 2018) https://business.financialpost.com/legalpost/supreme-court-set-to-hear-nevsun-resources-case-on-eritrea-human-rights-abuses Accessed 13 August, 2019 State of the Netherlands v The Urgenda Foundation: Hague Court of Appeal Requires Dutch Government to Meet Greenhouse Gas Emissions Reductions By 2020. Harvard Law Review (Case Commentary posted 10 May, 2019) https://harvardlawreview.org/2019/05/state-of-thenetherlands-v-urgenda-foundation/ Accessed 13 August, 2019 United Nations Human Rights Council. Current Membership of the Human Rights Council for the 13th Cycle I January-31 December, 2019 at https://www.ohchr.org/EN/HRBodies/HRC/Pages/ CurrentMembers.aspx Accessed 8 September, 2019 United Nations Human Rights Office of the High Commissioner. Eritrea: UN Commission has urged referral to the International Criminal Court (Geneva 28 October, 2016) https://www. ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID¼20779 Accessed 9 August, 2019

Cases Armando Carvalho, et al. v The European Parliament and the Council of the European Union (The People’s Climate Case) https://peoplesclimatecase.caneurope.org/ (The European General Court’s order ruling the case inadmissible is available at. https://peoplesclimatecase. caneurope.org/wp-content/uploads/2019/05/european-general-courts-order-_15.05.2019.pdf) Canada (Justice) v. Khadr [2008] 2 SCR 28

References

269

Case of Fazia Ali v the United Kingdom (Application no. 40378/10) (European Court of Human Rights) Judgment 20 October, 2015 at para 59 https://hudoc.echr.coe.int/eng#{%22itemid%22:[ %22001-158031%22]} Citizens United v. Federal Election Commission 558 US 310 (2010), Judgement 21 January, 2010. https://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/ Accessed 9 August, 2019 Jesner et al. v Arab Bank PLC (Supreme Court of the United States) Judgement 24 April, 2018 138 S. Ct. 1386 (2018) (Summary, Majority Opinion) https://casetext.com/case/jesner-v-arabbank Accessed 12 August, 2019 Juliana v United States, 217 F Supp (3d) 1224 (D Or 2016) [Juliana]. Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. SCC, Docket 37919, Judgment Pending (Supreme Court of Canada, Judgement Pending) https://www.scc-csc.ca/case-dossier/info/ dock-regi-eng.aspx?cas¼37919. For more direct access to factums see https://www.scc-csc. ca/case-dossier/info/af-ma-eng.aspx?cas¼37919 Streletz, Kessler and Krenz v Germany (Applications nos. 34044/96, 35532/97 and 44801/98) European Court of Human Rights Grand Chamber Judgement 22 March, 2001. https://www. legal-tools.org/doc/7058a0/pdf/ Accessed 9 August, 2019

Index

A Act of a Sovereign State Defence, 241 Act of State Doctrine, 238–242, 244, 246, 248, 249, 252 Advocates for the Rule of Law (ARL), 40, 42 Age-based restriction, 166 vote, 159, 162 Age-eligibility restriction, 149 Alien Torts Statute (ATS), 256–258 American Civil Liberties Union, 71 American Humanist Association (AHA), 105 American Legion v. American Humanist Association Constitution, 107 Dissenting Justices, 110, 111 judicial activism, 110 laws and practices, 108 liberty and democratic values, 108 public land, 110 Ten Commandments, 111 U.S. Constitution, 105 U.S. State and federal governments, 109 Amish community, 112, 115, 120 Anti-discrimination provisions, 62 Appeals Court, 9, 10, 63, 65–68, 74 Appeals Court Majority, 75 Appellant Nevsun Resources Ltd., 238 Attorney General of Canada’s counsel (AGC), 130

B Baker v. Canada, 29 British Columbia Court of Appeal (BCCA), 238

Brown case-Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), 80

C Canada Electoral Act, 131 Canada’s democratic society, 150 Canadian Charter, 7, 8, 10, 11, 13, 16, 39, 44, 133, 144 Canadian Charter of Rights and Freedoms, 5, 35 Canadian citizenry, 139, 157, 161 Canadian citizenship, 145 Canadian Citizenship Act, 24, 26, 27, 30, 32, 33, 43 Canadian democracy, 151, 152 Canadian electoral statutory laws, 144 Canadian Foundation for Children v Canada, 163, 173, 174, 176, 178, 188 fundamental justice, 174 reasonable physical violence, 174 statutorily-defined criminal defence, 176 Canadian Foundation for Children, Youth and the Law v Attorney General (Canada) 2004 1 SCC 76, 5 Canadian judicial decision-making, 125 Canadian legal community, 125 Charter analysis, 165 Charter guarantees, 137, 163, 165, 172 Charter violation, 187 Charter-guaranteed right, 168 Circuit Appeals Court, 74 Civil right, 235 Conservative Amish Mennonite Church, 112

© Springer Nature Switzerland AG 2020 S. C. Grover, Judicial Activism and the Democratic Rule of Law, https://doi.org/10.1007/978-3-030-35085-7

271

272 Conservative judicial activism, 73, 126, 154, 155, 194, 202 Constitutional democracy, 1 Constitutional liberty right, 80 Constitutional versus non-constitutional, 77 Consumer Protection Act, 12–15 Controlled Drug and Substances Act, 18 Convention guarantees, 229 Convention on the Rights of the Child (CRC), 36, 116, 118, 157 Court of Appeals, 87 Criminal Code of Canada (CCC), 17, 163, 165, 173, 176, 177, 180

D Decision-making, 78 Democratic legitimation, 225 Democratic representational electoral system, 135 Democratic rule of law Canadian government administrative, 6 constitutional democracy, 1 defense, 46–48 democratic rule of law, 2 executive power, 1 expense of justice, 4 factual and legal context, 2 human rights protection, 2, 4 Kmiec framework, 3 left/right-leaning court, 4 legal instruments, 4 ‘living instrument’, 4 logical and semantic framework, 3 presumptive categories, 3 principled judicial activism, 3, 5 reasonableness standard of judicial review, 6 Rorschach test, 2 same-sex couple, 2 societal/historical period, 4 statutory textualism, 5 super precedent, 1 U.S. foundational constitutional principles, 2 US and Canadian Supreme Court, 2 Disability diagnosis, 62 Dissenting Judge, 16, 68, 75 Dissenting Justices, 132, 133, 135, 138, 139 District Court, 63, 73 Domestic and international human rights, 126 Domestic cases, 235 Domestic courts, 263 Double Jeopardy Principle, 98 Douglas Dissenting Opinion reflects, 118

Index Down’s syndrome, 72 Due Process Clauses, 75, 81–83, 86 Dutch Appeals Court, 264, 266 Duty of care, 241

E Economic liberty, 14 Elections Canada study, 167 Equal Protection of the Law clauses, 80, 82, 83 Establishment Clause, 107, 109 European Convention, 193 European Convention of Rights and Freedoms, 191 European Convention on Human Rights, 264 European Court of Human Rights (ECtHR), 191, 209 European Court of Human Rights Grand Chamber, 244 Evolutionary interpretation, 11 Evolutive interpretation, 234

F Factual and legal justification, 79 Federal Court (FC), 44, 45, 266 Federal Court of Appeal (FCA), 26–28, 32, 35, 38, 42, 43, 45 Federal Court of Canada, 25 First Amendment’s Establishment clause, 105 Fitzgerald (Next Friend) v Alberta, 149, 168, 169, 171 Fitzgerald v Alberta, 162 Fitzgerald v Canada, 166 Foregone presumption, 85 Fourteenth Amendment, 81–83 Fourteenth Amendment Due Process Clause, 64 Fourth Circuit Appellate Court, 105 Frank v Canada, 138, 147, 152, 166 analytical framework, 133, 136 Appellate Court, 129 democratic process, 145 Dissenting Justices, 133 empirical evidence, 142 federal elections, 129 fundamental democratic right, 131 liberal judicial activism, 140 policy and value preferences, 140 residency-based voting restriction, 139 resident Canadian citizens, 142 results-driven judicial activism, 141 SCC, 130 textual analysis, 134 voting, non-residents, 139

Index G Gamble v United States Alabama State law, 91 conservative judicial activism, 96 Constitution, 99, 102 constitutional intentions, 95 constitutional prohibition, 93 criminal offence, 103 democracy, 102 democratic rule of law, 96 democratic values, 97, 99 Dissenting Justice, 101 double jeopardy, 100 dual sovereign analysis, 92 dual sovereignty, 93–95, 98, 100 elements of the crime, 91 human rights, 104 judicial interpretation, 96 judicial legislation, 93 judicial precedent, 103 judicial reasoning, 96 judicial restraint, 95 judicial textual interpretations, 97 perceived integrity of the judicial process, 102 results-oriented judging, 101 state/federal statutes, 103 statutory legislation, 96 strict textualist approach, 97 unconstitutional intentions, 95 Garza (Guardian ad litem for J.D.) v. Hargan (Acting Secretary of Health and Human Services) et al. disproportionate impact, 73 Dissenting judge, 75 pre-abortion counselling, 74 Texas requirement, 73 undue burden, 74 US Constitution, 74 Golder v. The United Kingdom civil actions, 198 civil rights and obligations, 204 Commission, 196 criminal matter, 204 democratic rule of law, 205 ECtHR, 196, 197, 199 human rights, 203 humanitarian, 205 implied limitations, 199 institute libel proceedings, 199 interpretive approach, 206 judicial legislation, 200 lawful limitations, 198 principled judicial activism, 198 rights and freedoms, 202

273 textualism, 200 UK citizen, 194

H Hämäläinen v. Finland, 222, 223 Harvard Law Review (HLR), 265 Health and Human Services (HHS), 75 House Enrolled Act No. 1337 (HEA 1337), 59 Human dignity, 17, 235 Humanness, 67

I Immunization, 85 Indiana abortion law, 69 Indiana revised abortion law, 66 Inherently discriminatory, 72 International mechanisms, 264 Irwin Toy Ltd. v Quebec applicability/non-applicability, 15 Canadian Charter-protected form, 12 corporations, 12, 13, 15 Departures from Accepted Interpretive Methodology, 20, 21 development, 14 economic liberty, 14 ‘freedom of expression’, 12 human being, 17 human dignity, 14, 17 Ignoring Precedent, 19, 20 Judicial legislation, 18 legal entity, 17 non-natural legal entity, 16 results-oriented judging, 21, 22 unconstitutional violation, 14

J Jesner et al. v Arab Bank PLC, 255–260 Judge-made causes of action, 255 Judicial activism, 64, 68, 69, 79, 85, 143, 171 Judicial interpretation, 39 Judicial legislation, 18, 143

K Kindler v Canada, 179 Kmiec’s judicial activism, 143 Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. anti-discrimination provisions, 62 decision-making, 79

274 Kristina Box (cont.) factual and legal justification, 79 human being, 83 humanness, 67 immutable characteristics, 60 infancy, 61 infectious and pathological waste, 59 judicial activism, 64 legal challenge, 86 legally principled decisions, 77 liberty right, 81 logical/conceptual inconsistency, 89 medical facility, 59 medical waste, 62, 67, 69 non-discrimination limitations, 68 non-therapeutic abortion, 78, 83 Planned Parenthood, 61, 63 potential human life, 67 potential life, 84 pre-viable fetus, 65, 66, 81, 82 principled judicial activism, 77 proper disposal of fetal remains, 88 reasoned judgement, 76 Respondent Planned Parenthood, 62 results-oriented reasoning, 85 right to privacy, 64 rule of law, 79 selective abortion, 69 super precedent, 79, 80 surgical byproducts, 59 temporary disability, 67 US Constitution, 64

L Legal challenge, 86 Legal fiction, 263 Legally principled decisions, 77 Legislative supremacy, 42 Liberal judicial activism, 80, 90, 140, 144 Liberty right, 81 Living instrument, 127 Living instrument doctrine, 191 Logical/conceptual inconsistency, 89

M Magistrate Justice of the Peace, 7, 8 Maryland National Capital Park and Planning Commission, 105 Masterpiece Cakeshop Ltd., et al. v. Colorado Civil Rights Commission et al., 2 Medical waste, 61, 62, 67, 88

Index Ministry of Citizenship and Immigration, 25, 27, 28, 42 Missouri legislation, 71

N National public interest, 87 National service, 237 National Service Program, 246 Natural limits, 234 Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al., 236, 241–243, 245, 247, 248, 250, 252–254 Non-discrimination limitations, 68 Non-discrimination provisions, 60 North American legal circles, 2

P Persons in authority, 186 Planned Parenthood, 61–63 Policy-making, 259 Potential human life, 67 Potential life, 84 ‘Pre-viability’ versus ‘viability’ demarcation, 89 Pre-viable fetus, 65, 66, 81, 82, 89 Principled judicial activism, 77, 84, 127 administrative decision-maker, 41 administrative law, 46 administrative supremacy, 41 admonition, 236 Canadian Constitution, 40 company’s statement, 240 constitutional argument, 42 constitutional issues, 46 democratic principles, 233 democratic values, 46, 233 duty of care, 241 evolutive interpretation, 233, 234 Federal Court (FC), 44 fundamental rights and freedoms, 233 GDR State practice, 244 governmental administrative process, 43 human rights, 254 international community, 245 international law, 41 international peremptory customary law, 254 international plane, 245 judicial review, 43 justiciability, 240 legislative supremacy, 42

Index moral/political judgment, 235 motions, 237 non-judicial mechanisms, 250 non-justiciability, 240 political and economic power, 247 populism, 236 privileges and immunities, 43 reasonableness standard, 41 resolution, 45 Respondent Eritrean refugees, 251, 252 Respondents, 239, 251 rule of law, 42 State sovereignty, 246 statutory interpretation, 46 Private eugenics, 69, 70 Procedural fairness, 28 Public policy exception, 238

Q Quebec Building Act, 7, 18 Quebec Court of Appeal, 6, 9, 12 Québec Inc. c Directeur des poursuites criminelles et pénales corporation, dignity, 10, 11 criminal penalty, 9 private corporation, 7 Quebec Inc. v. Director of Criminal and Penal Prosecutions, 22, 23

R Reasonable correction/education, 180 Reasonable corrective assault, 178 Reasonable corrective force, 175, 182, 188 Registrar of the Canadian Ministry of Citizenship and Immigration, 24 Regulatory modality, 168 Religion Clauses of the Constitution, 107 Representational democracy, 154 Republican-appointed justice, 84 Results-driven judicial activism, 142 Results-oriented reasoning, 85 Right to privacy, 64 Roe v Wade case, 69 Rucho et al. v. Common Cause et al. central problem, 54 Constitution/democratic values, 59 constitutional harms, 56 democratic subversion, 56 Democrats, 53 Dissenting Justices, 55 Dissenting Opinion, 56

275 District Courts, 54 election evidence, 57 Federal Congress, 54 five conservative justices, 54 lack of jurisdiction, 54 liberal justices, 56 minority opinion, 57 plaintiffs, 53 public and judicial experts, 59 Republicans, 55 results-oriented judging, 56 State legislature, 53 Rule of law, 42, 79

S Sauvé v. Canada, 155 Security of the person, 234 Selective abortion, 78 Selective non-therapeutic abortion, 87 Selective textualism, 185 Sex Selective and Disability Abortion Ban, 60, 62, 63, 66, 67, 70, 86 Social self-regulation, 228 Societal investment, 66 Standard qualification, 150 State judiciary, 266 State limitations, 61 State restrictive abortion legislation, 86 State vs Federal Criminal Codes, 100 Streletz, Kessler and Krenz v Germany, 245 Stringent justification, 149 Super precedent, 79, 80 Super precedent abortion cases, 70 Supreme Court of British Columbia, (SCBC), 237 Supreme Court of Canada (SCC), 12–14, 26, 28, 45, 47, 128, 129, 131, 132, 134, 150, 158, 160, 166, 168, 169, 174, 238, 239, 241, 245, 249

T Temporary disability, 67 Temporary Restraining Order, 74 Textualism, 126, 200 Torture Victim Protection Act, 255

U UN Human Rights Council, 76 UN Human Rights Office, 72 Undue burden, 75, 86, 89

276 United States Court of Appeals, 63 United States Supreme Court (USSC), Trump era conservative judicial activism, 53 Court’s decisions, 52 Federal level policy initiatives, 52 independent judiciary, 52 judge’s ruling, 51 judicial activism, 52 public consciousness, 52 Rucho case, 52 United States Supreme Court Majority, 116, 120 Universal legal responsibility, 265 US Constitution Fifth Amendment, 75 US Federal Criminal Code, 91 US Office of Refugee Resettlement (ORR), 73 USSC Plurality Opinion, 259

V Vavilov case administrative decision-making process, 30 Canadian Citizenship Act, 30 category of children, 37 children’s independent legal personality, 38 children’s right, 39 FCA, 32 fundamental democratic principle, 35 government’s obligation, 38 international law, 37 judicial interpretation, 39 judicial legislation, 30, 39 lower federal court, 27 parents versus Canada, 34 principled judicial activism, 30, 31, 39 privileges and immunities, 37 procedural fairness, 28 reasonableness versus correctness, 30 result-oriented judging, 39 rule of law and constitutional standards, 38 textualism approach, 32 Vavilov v Canada dispute, 25 “employees/representatives of a foreign government”, 25 Russian intelligence, 24 statutory interpretation strategy, 26 textual analysis, 26

Index Vienna Convention on Diplomatic Relations, 33, 37 Volodina v Russia brutalities, 213 criminal investigation, 208 domestic relationship, 207 domestic violence, 212 ECtHR, 209–211 gender-based violence, 214 human dignity, 213 phones and documents, 209 principle and practice, 214 Samara Region police, 207 Ulyanovsk police, 207

W Wisconsin v. Yoder children’s human rights, 117 children’s interests, 118 children’s liberty rights, 113 constitutional rights, 113 education, 116 formal education, 121 high school education, 115 human dignity, 121 informal vocational training, 112 legal interests, 118 liberal judicial activism, 120 religious community, 113 religious/cultural community, 114 rudimentary basic education, 120 self-sufficiency, 117

X X v The Former Yugoslav Republic of Macedonia appreciation, 224 Dissenting judges, 219, 220, 226–228 Dissenting justices, 225 ECtHR case law, 218 gender identity, 218, 227 human dignity, 222 legal gender recognition, 214 legal recognition, 217 legal regulatory framework, 216 State Commission, 216 State legal recognition, 215 textualism, 221 UN recommendation, 219