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In a recent post on this site, Jodi Martin ably canvassed the access to justice argument that lies at the heart of British Columbia (Attorney General) v. Dugald E. Christie, 2005 BCCA 631 [Christie]. My own interest in Christie is perhaps less-civic minded: for me, the interesting thing about this case is that it presents the Supreme Court of Canada ("SCC") with an opportunity – indeed, Newbury J.A.'s majority judgment seems almost a challenge – to answer some of the many questions concerning the unwritten constitutional principles.
The rather spectacular emergence of the unwritten constitutional principles in the Provincial Judges Reference, [1998] 2 SCR 443 [Provincial Judges Reference], and Secession Reference, [1998] 2 SCR 217 [Secession Reference], has been followed by judicial reluctance to make use of the principles. Post Secession Reference, the SCC has largely declined to exercise the power of the unwritten constitutional principles or to define more certainly their scope, power, and relationship to the rest of the Constitution and to each other. In fact, in Imperial Tobacco, 2005 SCC 49 [Imperial Tobbaco], the SCC explicitly acknowledged the uncertainty the principles have introduced into Canadian law and seemed to emphasize the centrality of legislative supremacy; most striking of all, Major J. noted that "protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box." The cumulative effect is, almost 10 years after the Secession Reference, the role the unwritten constitutional principles play in our law is still unclear.
Given the SCC's apparent reluctance to engage with the unwritten constitutional principles, it will be very interesting to see how it chooses to respond to Newbury J.A.'s majority decision in Christie (Southin and Thackray JJ.A. dissenting). Newbury J.A. found that the Social Service Tax Amendment Act was ultra vires the province because it applied a 7% tax to legal services with no provision made for the indigent, and thereby violated the constitutional principle of access to justice. Notably, she engaged in a lengthy discussion about the principles and their use, including the central question regarding the extent to which the "right of access to justice, as a component of the rule of law, can provide a basis for striking down duly enacted legislation." She found that it could, overriding the Province's argument that the unwritten principles could only be used to "fill in gaps" in the express terms of the Constitution.
Newbury J.A. went on to provide a model for how the unwritten constitutional principles should be used – with careful reference to past cases that treated similar issues. In finding that "access to justice" is a constitutional norm – part of the rule of law – she traced the history of the concept and arrived at her own definition for the term. She then went on to consider at length the history of the unwritten constitutional principles, noting the uncertainty surrounding them and the difference between the earlier "ringing endorsement" of the principles in the Provincial Judges Reference and the Secession Reference and the recent deference to the legislatures in Imperial Tobacco.
Finally, she rejected the SCC's conclusion in Imperial Tobacco, finding that it would allow even for legislation that completely blocked access to justice (whether through prohibitive fees or closing the courts) if the proper "manner and form" of legislation were complied with. She found that if access to the court is not guaranteed, then the rule of law is not guaranteed and that access to justice "flows by necessary implication" as does judicial independence, from the Constitution. She also found the principles of constitutionalism and democracy insufficient to justify the upholding of the legislation, because without access to the courts, those principles would have no meaning. She thus implicitly created a hierarchy among the principles, positing that when the rule of law and constitutionalism and democracy come into conflict, the rule of law must prevail.
Southin J.A.'s short but trenchant dissent (Thackray J.A. concurring) encapsulated the concerns that arise from the majority decision. She would have followed Imperial Tobacco and found that no court has the power to hold a statute that is validly enacted under the Constitution and not in conflict with any of the Constitution's written terms to be of no force and effect. She found it to be irrelevant whether the tax in question is a good or a bad tax, or whether it impedes access to justice, as it is a statute enacted by the province within their sphere of power. She concluded that,
the words "rule of law" in the preamble do not create any substantive independent ground upon which a court can find duly enacted legislation to be "inconsistent with the provisions of the Constitution" and therefore of no force and effect.
She found that if the words "the rule of law" in the preamble do create such a power, then the courts must also find a way to define and apply the words "supremacy of God" in judicial review. Southin J.A. thus placed her emphasis on the written text of the constitution, clearly locating it above the unwritten constitutional principles in the hierarchy of power. She extended the argument in Imperial Tobacco, however, in suggesting that, contrary to the decision in the Secession Reference, those principles that find their origins in the preamble to the Constitution Act, 1867 cannot supersede the written text.
Regardless of whether or not one agrees with Newbury J.A., she is to be commended for a bold and well-reasoned judgment that will put the SCC in the position of having to answer questions relating to conflict between the unwritten constitutional principles themselves and to the balance between legislative supremacy and the principles. I hope very much that the SCC takes this opportunity to bring some clarity to the principles' status, use and power.
21 Comments
I do think this provides an opportunity to define the scope of a potentially open ended discussion of unwritten constitutional principles.
I tend to disagree with Southin J.A's conclusion, that "the rule of law" creates no independent substantial ground to strike down legislation.
I would have thought that Reference Re Manitoba Language Rights agreed with the dissent in the Patriation Reference, that the rule of law has "been accorded full legal force in the sense of being employed to strike down legislative enactments." Hence, the Court using the rule of law as an independent substantial ground to uphold Manitoba's legislation.
Quebec Secession appeared to also support this interpretation, saying that "[unwritten] principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments."
As for how to get around the adjudicative minefield that the "supremacy of God" offers, this article by J. Penney and Danay offers some constructive and innovative ideas:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=941221
I'm with Southin. What Lamer did in the Provincial Court Judges Reference was outrageous. Out of 35 experienced lawyers, not one suggested that the court could strike down a statute for any reason other than inconsistency with the written constitution. In an enormously long judgment, Lamer does not even deign to respond to La Forest's dissent, which pointed out that the Court was "imperilling its legitimacy."
No one likes to pay taxes. But the idea that the legal profession can bootstrap itself into an immunity from tax on the basis of "the rule of law" is asking for a constitutional crisis.
>>Out of 35 experienced lawyers, not one suggested that ...
Look up compurgation.
So now the validity of an argument - either the procedural validity of the analysis or the substantive content of the premises - may be supported by counting the number of apparent experts who are prepared to agree it is right?
Do tell what school of (il)logic teaches that.
It follows from your assertion that that when most of the people on the planet believed the earth was flat, it was correct to say that it was flat. Or would you say we don't have to count them because they weren't experts.
Better yet, tell us whether the fact that so many "Frenchmen" apparently believe Jerry Lewis is funny means that he is funny.
Or, let's move to a text like the Bible where there are parts which aren't capable of empirical proof. Are you suggesting that claims that those passages are literally true are supported by the number of people you can find who believe the passages are literally true?
Mr. Cheifetz,
Thanks for your patronizing lecture. It doesn't even work on its own terms.
The law is not like astronomy. To some extent the positive law just is what the consensus of experts think it is, just as English usage just is what the vast majority of English speakers use.
Even if we allow that the final court can, by diktat, change the law, it should not do so without hearing an argument for why. It especially should not do so without responding to the criticisms of the only constitutional expert on its own bench. Finally, its reasons ought not to be as fallacious and error-ridden as those Lamer gave.
Truth can never be patronizing.
It may be embarrassing to the person subject to it, but that's another matter. If you make a fallacious argument, be prepared to be called on it.
Falling back on additional attacks on the something else - here the validity of Lamer CJ's analysis -to avoid having to respond to accurate criticisms of what was said about what your wrote is a standard debating trick, which very few people paying attention will fall for.
You are right: law is not like astronomy. Some might say that that's because too many people who have made it into law aren't qualified to be astronomers. Law is also not like haruspicy. (That it's not might be considered a pity by some. At the least, one would have something for dinner.)
If your points are (1) that positive law is ultimately nothing more than the will of the majority, and (2) Lamer CJ was wrong because more people disagree with him than agree with him, then (3) what's your point in making the first proposition and (2) your argument is no more valid than the Jerry Lewis thesis.
You should define what you mean by "diktat" There are many things that SCC decisions are (one of which may be wrong) but "diktat" as you are likely using it isn't one of them. The Supreme Court has the power to change law. If you don't like that, you know where the ballot box is. I suspect that at least one of the judges in the majority might take offense at the implication in your argument which is that they weren't expert enough to disagree with La Forest.
None of them are still on the SC bench, of course, so you don't have to worry about their displeasure should you ever appear in that court.
The Provincial Court Judges Reference decision was unanimous on rehearing - and the bench was not exactly the same as it was when La Forest J dissented on the initial hearing. In case you missed it, the second panel was Lamer C.J. and L’Heureux-Dubé, Gunther, Cory and Iacobucci JJ. and the first Lamer C.J. and La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.
Finally, if you are going to attack anybody's competence and integrity - and that's what your arguments about the SCC majority judgments amount to - come out from behind the alias. Otherwise, I am entitled to assume that you have all of the substance of the Wizard of Oz.
David, I have to say I find several things wrong with your post.
Firstly, Pithlord may not be in a situation to reveal his name; his comments are intelligent, and should be permitted to stand on their own merits, without the somewhat irrelevant factor of his name standing be them.
Secondly, I'm assuming that the 35 lawyers are the ones representing the various attorneys-general and other interveners on the reference? If not, please correct me. But assuming they are, there is much to be said for his criticism that the Court adopted a position advanced by none of them.
Granted, references are a unique beast, but in our system of law, the bench's role is primarily to synthesize the submissions of adversarial parties. It is indeed troubling that they have stepped into an undoubtedly inquisitorial role by adopting a position found no where in any submission before them. This is a real problem, and no amount of arcane logic-based-sparring will do away with it.
Finally, I think it is erroneous to say that the truth can never be patronizing. That is a straw-man argument. While the truth cannot be patronizing, the presentation of the truth can be, and often is, patronizing. I think we should all strive to present our arguments in as neutral a fashion as possible.
I agree with Mr. Schreiter's note on neutrality.
Personally, I see nothing wrong with a pseudonym. They have been used successfully in history to prevent senseless ad hominem arguments. In a debate such as this, it is possible, even more respectful, to address arguments without using the word "you." If the House of Commons did not follow the style of addressing the speaker, I fear decorum would devolve to lows unseen in Western democracy.
As for Pithlord's original argument, I cannot defend the decision in the Judge Reference. A judge judging the judges seems a bit absurd to me from the beginning. If anything, I would have thought that nemo judex in sua causa would come into the picture.
But as for whether the rule of law can be the basis of striking down/upholding a law, I haven't seen any rebuttal of the Court's view in Manitoba Language Rights or even the Quebec Secession case that would suggest otherwise.
As for whether the aspect of access to the courts fall under the "rule of law," I am not so sure. The term is so broad, it almost seems to invite an expanding interpretation that it itself would probably find repugnant.
Tom,
On the matter of Pithlord's preference for anonymity, please read this blog entry:
http://lawprofessors.typepad.com/legal_profession/2007/04/anonymity_chatb.html
and then consider whether you agree with the poster's comments. If you do, please extrapolate.
I am deciding how and if I will respond to the balance of your message. If I do not, take it that I disagree with you and saw no point in repeating myself just to make that point.
David Cheifetz
As Editor-in-Chief, a point of clarification on our policy with respect to posting comments. We are prepared to accept comments from individuals who prefer not to reveal their identities, provided they supply us with a valid e-mail address.
This is The Court's policy because we think that individuals should be permitted to engage in discussion and debate without necessarily giving up their anonymity. The safeguard against the abuse of that anonymity comes from the moderation of comments. In short, nothing makes its way onto this site without being reviewed by someone on The Court staff.
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That said, The Court encourages everyone submitting comments to use their good judgment and to strive to keep all debate courteous and respectful. A good test for whether you are crossing that line is if you find yourself directing your reply not at the substance of the argument made in a preceding comment but at the person of the individual who made it. Try to avoid questioning the knowledge, wisdom, intellect or motives of the person who authored the post you are replying to . Attack arguments, not each other.
Hope that assists.
I was unaware of any policy on pseudonymity. I am glad to see I am on the right side of it.
Obviously, the ontological status of "law" is complicated. But it just is not a fallacy to use the fact that all of the lawyers arguing the Judges' Reference assumed that we lived in a system of legislative supremacy, subject to the written constitution, as evidence that this was -- at the relevant time -- the law. In fact, judicial statements of legislative sovereignty within the bounds of the written constitution are not hard to find. I collected a few here. One prominent example is the majority judgment on the "legal question" in the Patriation Reference, a decision Lamer signed on to as a puisne judge. No doubt Mary Southin could think of a few more.
It is interesting that Mr. Chefitz says I have the remedy of the ballot box if I don't like Supreme Court decisions. That's an odd thing to say, particularly about a decision that changes the fundamental locus of sovereignty in our system. If I don't like a staute, I can vote against the party that put it in place. If enough people don't like a judicial decision on the common law or interpreting a stuatute, the legislature can correct it. Even Charter decisions can be overriden, or, in the extreme, lead to a constitutional amendment. What can anyone do about an "unwritten principle"?
It is one thing for the Supreme Court to incrementally change the law with its decisions. That is inevitable, and part of their role. They may even be justified occasionally in overruling a clear precedent. But the proposition that Parliament and legislatures are sovereign within the spheres given them by the written constitution is (or at least was) a fundamental part of our constitution. Changing it without hearing argument, without responding to Justice La Forest's dissent, and in a case where the judiciary as a whole was in a conflict-of-interest is unique. I complain, because I can do nothing else.
*The Manitoba Language Rights case does not count as an example of striking down a statute on the basis it conflicts with the "rule of law." The rule of law was invoked with respect to the remedy -- if all of Manitoba's statutes had been immediately declared without effect because they had not been transalted into French, this would have caused chaos. That decision is totally different from saying that the courts have the authority to strike down a taxing statute because it increases the cost of legal services.
If you accept that change X is constitutional because it may validly be reached by increments, then your argument is only about the number of incremental (small) steps that should be taken. You say this number. Someone else says no, that number. A third person says, you're both wrong, it's legal in one step. You're all right. The correct number has nothing to do with law but everything to do with politics - minimizing the upset.
Look at it this way. If a trial judge ruled some change in the constitutional law was necessary was constitutional but should be accomplished in 4 incremental stages, not 1 or 2 steps then, assuming that the judge is correct that the change is constitutional, would the review of the number of steps decision be on the correctness standard or the palpable and overriding error standard? If it's the latter, you've conceded that there are a number of correct decisions. You might prefer this one to that if you made the call as the preferred decision, but you can't say that yours is right and the other is wrong.
Another way to put it is that you say tomahto, I say tomayto - what's incremental or not is too subjective for there to be a usable bright line for the use of public or judge. However, don't take my word for it. Tak that of an expert who is now a judge of the Ont SCJ, who is probably on the fast track for the CA. If he's not, he should be. See, Paul Perell, Changing the common law and why the Supreme Court of Canada's incremental change test does not work (2003) 26 Adv. Q. 345. (It runs through page 390 so it's not brief.
Your argument in the second paragraph recalls the "bald man's paradox." A man with no hair is bald. No bald man would cease to be bald if he had one additional hair. Therefore, by mathematical induction, every man is bald. While this argument is encouraging to those of us suffering from premature hair loss, it obviously suffers from a flaw somewhere.
"Only change the law incrementally" can't be a bright-line rule or meta-rule. It is more in the nature of a counsel of judicial prudence. You could call the reason for this counsel of prudence "politics" if you want, or just a consequence of the limits of legitimacy of the judicial role.
The case for judicial prudence is particularly strong when monkeying about with a fundamental structural aspect of our constitution, like legislative supremacy within the bounds of the written constitution. When Canadians adopted the 1982 Constitution, those opposed to any judicial review of legislation obviously lost. But part of the overall deal were certain constraints -- judicial review was to be interpretive of the written text, and, for the most part, subject to the notwithstanding clause. Further amendment of the Constitution was reserved for the process in Part V.
My claim is that in the Provincial Court Judges' Reference, the majority violated those constraints.
I do agree with Pithlord that changing unwritten constitutional principles "at the ballot box" is somewhat of a problem. But I am not so sure that it makes that much difference whether or not that the rule of law upholding statutes was a remedy. After all, one might as well say that striking down statutes is a 'remedy' too. The point, I think, is that if something independent of the written text can uphold a statute, then it is certain capable of striking it down independently too. I think such a state of affairs was acknowledged in Manitoba Language Rights and Quebec Secession. In the latter case, the Court acknowledged this:
While this debate about the legitimacy of the Supreme Court of Canada discovering unwritten constitutional principles is fascinating, there is an even more interesting question of legitimacy in judicial decision-making raised by the Christie case: what business does a majority of the Court of Appeal have in all but overruling a unanimous decision of the Supreme Court of Canada - namely, Imperial Tobacco - less than six months after it was decided?
Jonathan,
I think there is a very interesting move in the passage from the Secession Reference you are quoting.
Would Dicey and Blackstone have disagreed that there are "unwritten postulates that form the very foundation of the [British] Constitution"? Yes. Would they say these principles were binding on both Parliament and the courts? Yes. Would that imply that the courts could invalidate a statute passed by Parliament if the courts thought the statute contrary to those principles? No.
A rule can be binding on an agent either internally or externally. The Supreme Court is "bound" to apply a hierarchy of relevant legal sources when it decides a case. But if a litigant thinks they have failed to do so, she is out of luck -- there is no other body that she can appeal to. They are not final because they are infallible -- they are infallible because they are final.
If we are to have a closed system of positive law, at least one body must be final in this sense. In the British constitution, when it comes to the enactment of laws, that body is the Queen-in-Parliament. Blackstone and Dicey would both have insisted that the Queen-in-Parliament is obliged to follow the unwritten postulates of the constitution, but that obligation is internally binding. By enacting a statute, the Queen-in-Parliament is coming to a judgment that the statute is consistent with the unwritten constitution, and that judgment is not reviewable.
There is no point complaining about the existence of a body whose judgment is not reviewable. That's just life. Either Parliament's judgment is unreviewable or the final court of appeal's judgment is unreviewable. For Dicey and Blackstone, it was preferable that the unreviewable body be Parliament.
Before Confederation, the same system applied to the colonies, except that imperial statutes were paramount over colonial ones. So the courts had the power to consider a colonial statute of no force and effect to the extent it conflicted with the imperial statute. That was the basis of judicial review under the BNA Act. It was, in principle, a corollary of the sovereignty of (the imperial) Parliament. Subject to the BNA Act, though, the federal and provincial legislatures are sovereign within their sphere. Again, they inherit unwritten postulates from Britain -- but they are the final interpreter of how those postulates apply to new legislation. On the other hand (and especially once reservation and disallowance fall into disuse), the courts are the final interpreters of the imperial statutes which make up the written constitution.
The English courts have always referred to the unwritten constitution in interpreting legislation or disciplining executive action, and the Canadian courts followed them. It's just that they accepted that their judgment of what the unwritten constitution might require was bound by the clear intent of Parliament, just as lower courts are bound by the precedents of higher courts.
Eventually we get to 1981-1982. In the Patriation Reference, 7 out of 9 judges made it perfectly clear that only the written constitution could legally restrict legislative sovereignty. The 1982 deal sets out exactly what texts count as the written constitution, and how they may be amended. As a critical part of the final deal, judicial review under much of the written constitution is subject to the notwithstanding clause. Unwritten principles continue to exist, but they play the role they have under the British and then Canadian constitution -- used by the courts in statutory interpretation and administrative law, binding internally on the legislatures in making enactments.
Is the Manitoba Language Rights case inconsistent with this (I would argue universal) understanding? I don't think so, because while it involved reference to the "rule of law" as a value, it did not purport to make it an independent basis for the courts to strike down any statutes.
On the other hand, the Provincial Court Judges case is revolutionary because it places the Court, rather than Parliament and the legislatures, as the final interpreter of the unwritten constitution. And it does so by confusing the issue of being internally bound by a rule and being externally bound by it. (That confusion is evident in the passage from the Secession Reference you quote.) The Secession Reference compounds things by using "unwritten principles" to overturn the very amending formula set out in Part V.
Mike,
The answer to your question lies in stare decisis.
In Christie v BC, starting at para 63, the BCCA majority engaged in the time-honoured pratice of distinguishing prior cases by defining the specific aspect of some principle which the earlier binding case dealt with, and then stating that the issue in the present case wasn't dealt with explicitly or by implication in the prior case. If one thinks the BCCA postulated a distinction without a difference, then, as you say, it all but-overruled, which it can't do. If one agrees that the BCCA pointed to what could be a valid distinction - even if one prefers the argument that it is not - or what is, for whatever reason, then the BCCA didn't over-rule it all. It applied proper techniques of stare decisis.
You may think that's casuistry; however, that's what judges get paid to do.
So, for example, we see at para 66 "This was the extent of the Court's analysis on the rule of law. Since no issue regarding access to justice arose, no mention was made of that principle as a component of the rule of law, or to the Court's reasoning in B.C.G.E.U."; at para 67 "Taken at face value, Imperial Tobacco would appear to" preclude Christie's challenge and as "There would seem to be no basis on which to challenge such legislation "based on its content"; BUT then the kicker is para 68 "With respect, however, the reasons given by the Court do not extend to the problem of access to justice with which we are concerned."
And, finally, there's para 72.
There's an explict statetment that of the majority's view that the Christie issue was not dealt with in Imperial Tobacco explicitly or by necessary implication. (And, it's implicit in para 72 that the BCCA majority would have said that anything in Imperial Tobacco that might hint something helpful to the BC gov't, in Christie, would have to be seen as obiter. Remember that because I'll mention it later.)
So, what you have is the majority saying that Imperial Tobacco does not explicitly deal with the issue in Christie nor does it deal with it by necessary implication. So, it's open to the BCCA to make a decision which has a different result than that in Imperial Tobacco - strike down the statute.
If you accept that characterization of Imperial Tobacco, you have your explanation. If you don't, you have Southin JA's view.
Now, let's go back to the obiter point. I mention that because some judges of the BCCA seems to be quite willing to take a more expansive view of what's obiter in SCC judgments - and the binding status of SCC statements of law, if obiter - than perhaps the SCC would. A very recent example of this is the BCCA's judgment in Hutchings v. Dow, 2007 BCCA 148 (CanLII) where, at para 19, a panel said that the SCC's pronouncements of material contribution in Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7 were obiter. The Resurfice comments are many things, but not obiter. However, even if they are obiter, the SCC in R v Sellars, almost 30 years ago, said that all of its pronouncemnts of law are binding on courts below, even if obiter. Sellars v. R., [1980] 1 S.C.R. 527 at pp. 529-30, 110 D.L.R. (3d) 629 the SCC quoted with approval Ottawa v. Nepean Township, [1943] 3 D.L.R. 802 at p. 804 (C.A.) this comment by the Ont CA: “What was there said may be obiter, but it was the considered opinion of the Supreme Court of Canada, and we should respect it and follow it, even if we are not strictly bound by it.”
Of course, one might tell the SCC that that statement in Sellars was, itself, obiter, however I wouldn't.
Pithlord,
If you were right that there's a paradox, which you're not, it would be Zeno's.
Every time we change any part of what makes up the whole of the Canadian system of law, we change the baseline for what is or isn't an incremental change the next time the issue arises.
As to whether the decision in the Provincial Court Judge's Reference - remember there's no majority the second time around: the rehearing was unanimous - was right or wrong based on principles: you can claim that all you want. Unfortunately for your side of the argument, you don't have the last word.
Also, even accepting, for argument's sake, the possibility that your view of the correct answer is what should have been the decision in the Provincial Court reference, the incrementalism doctrine necessarily means that that view may no longer be correct. The content of Canada's constitutional system may have changed sufficiently since then that the decision would now be correct, if made now.
Given that you seem to accept the validity of the incrementalism doctrine, you are hoist by your own petard.
'Originalism' and 'incrementalism' theses are, at their roots, in conflict. You are, it seems to me, arguing for some sort of combined 'originalism'
(borrowing the US term, though not necessarily its content) and 'incrementalism' doctrine, with certain areas of the structure of the
Canadian polis permanently fixed in some state, and protected from the barbarian hordes of incrementalism by the sancrosanct walls of originalism.
Cute argument. The problem is that it lost, at least for the content that you claim should be behind the walls.
I'm out of this thread. The last word is yours, should you wish it.
Actually, the Supreme Court of Canada revisited the obiter/ratio distinction in R. v. Henry." Arguably, the idea that obiter statements from higher courts are binding on lower courts was found in the headnote to Sellars, and not in Sellars itself. Anyway, it isn't the law anymore.
I'm returning to the thread just to deal with the obiter/ratio issue.
If you're going to rely on R v Henry, [2005] 3 S.C.R. 609, 2005 SCC 76, then use it for what it actually says. Don't use it the way the SCC said people were improperly using Sellars.
As ever, Binnie J carefully constructed an ambiguity and left a loophole which can't have been an accident. "[54] From time to time there have been statements of some members of this Court that have been taken to suggest that other courts are bound by this Court’s considered ruling on a point of law, even a point not strictly necessary to the conclusion.
What's "not strictly necessary" to the conclusion is in the eye of the beholder. If you don't recall why that's so, recall the Peda and Binus dance in the SCC.
And, bear in mind that a decision can have more 2 or more independently sufficient ratios. See, for example, Walker v York Finch Hospital; something that the SCC seems to have overlooked in Resurfice v Hanke.
In any event, we're heading back on the road to the "you say tomayto, I say tomahto" shtick. Or, the Monty Python argument skit - and neither of us are getting paid for this (and, changing skits, I don't know about you, but my silly walk isn't adequate. Nonetheless, I'm using it to leave.)
Cheers,
On second thought, I can't leave without adding one more point on the obiter/ratio issue.
The SCC is entitled to say what must be binding on an inferior court. However, it can't prevent an inferior court from adopting its own rule that it will treat, as binding, dicta of the SCC which aren't formally binding under standard stare decisis rule.
So, if we want, we can say that the Ontario Court of Appeal, at least, has decided it will be bound by considered dicta of the SCC even if those were not strictly necessary to the conclusion in the SCC case that contains the dicta. Again, Ottawa v. Nepean Township, [1943] 3 D.L.R. 802 at p. 804 (C.A.): “What was there said may be obiter, but it was the considered opinion of the Supreme Court of Canada and we should respect it and follow it, even if we are not strictly bound by it.” In R. v. McKibbon (1981), 34 O.R. (2d) 185, 61 C.C.C. (2d) 126 (H.C.J.), affd 35 O.R. (2d) 124, 64 C.C.C. (2d) 441 (C.A.) the trial judge stated that the same principle applies between the Ontario Court of Appeal and lower Ontario courts.
Finally, don't forget this poignant comment from Krever J, (as he then was). He wrote that it “ignores reality” to expect that a trial judge will use very technical principles of stare decisis to avoid applying what seems to be the Court of Appeal’s current thinking on some issue of law, even if it is expressed as an obiter comment: Woloszczuk v. Onyszczak (1977), 14 O.R. (2d) 732 at p. 739, 74 D.L.R. (3d) 554, 1 C.P.C. 129 (H.C.J.).
On the other hand, recent comments by the BCCA in Hutchings v Dow - and as you've mentioned Christie v BC - and the Ont CA in Barker v Montfort Hospital might make some wonder to what extent the current generation of judges, in at least those courts, feel bound by what the SCC says. But, that's a question for another day and another thread. (Actually, it's one I might well take up at some point on this board. But not today.)
Anyway, we're back to one of my favourite passages - what Humpty Dumpty said to Alice in Looking Glass. Ultimately, it's who is master. In this, the appellate courts are masters of their own domain.
Cheers,
Mr. Chefitz raises a whole host of interesting issues, and I'm not sure this forum is the right one to try to resolve them all. But since he offered me the last word, I'd feel ungracious not to take it.
A practical lawyer might wonder whether there is any point criticizing decade-old precedents. I'd respond with T.S. Eliot's observation that there are no lost causes because there are no gained ones. If we are in for a period of extended Conservative rule (and I suspect we are), we are going to have a different kind of judicial politics, more like that in the US. Partisan affiliation will become less important for patronage reasons, and more important for ideological reasons. Anyone who observes Canadian constitutional law will see waves of advance and retreat for the cause of judicial supremacy. The Motor Vehicle Act Reference is ultimately followed by Rodriguez (but then by Chaoulli). Oakes leads to Edward Books, Andrews to Law, and Provincial Court Judges' Reference to Imperial Tobacco. Who knows what will happen with Christie? Whatever happens, the issue of the underlying legitimacy of Lamer's coup is unlikely to die.
Anyway, in this country, we inherit the tradition of the United Empire Loyalists, and should not be afraid of being identified with lost causes.
I don't think "incrementalism" and "originalism" are necessarily in conflict, since I think of both --at least in their defensible forms -- as counsels of caution, rather than decision rules that will render determinate answers. I wouldn't start with either, but with the question of the legitimacy of the judicial role. The need for judges arises out of the social need for a definite answer to legal conflicts. That's the source of the obiter/ratio distinction, as well as of the virtue of incrementalism. Judges act with authority to the extent they say what is necessary to resolve a specific legal dispute. (References complicate things, but this is already too long for a comment, so I'm not going to pursue that point.) They should pick the narrowest (least controversial, least disruptive of settled expectations) grounds to fulfill this function. To the extent possible, they shouldn't comment on anything else, but if they do, they are no longer acting within their authority.
Originalism, in a defensible sense, is just respect for the deal reached by the principals. Part of that deal, no doubt, was to give the courts a large amount of discretion and power. But a court misues its finality to seize more power than it was granted.
I suppose if time makes a revolutionary act a sufficiently settled part of the social order, it becomes pointless to oppose it. Most days, I have given up on trying to restore the Jacobite line, for example. I don't think we are there yet with "unwritten principles."