May 29, 2007
Last Friday, the Supreme Court of Canada ("SCC") released their decision on British Columbia (Attorney General) v. Christie, 2007 SCC 21 [Christie], just two short months after the hearing. Although some had hoped that this would be a shining moment for the SCC in championing the cause of access to justice, the court instead, in a short 30-paragraph judgment, rejected the British Columbia Court of Appeal’s view that access to legal services was a protected right correlative to the unwritten constitutional principle of the rule of law. Notably, the judgment was penned by ‘THE COURT’, as the SCC shows its solidarity in backing this position.
Here at The Court, we’ve been following this case closely. Considering the hope that many had for this decision, a revisit of some of the previous discussions might be helpful in understanding the implications. At around the time of the hearing, Jodi Martin posted on what the implications on access to justice could have been here. Also, a lively debate followed Julie Lanz’s post on the implications for the use of unwritten constitutional principles here.
Yesterday, Professor Richard Haigh canvassed the SCC’s decision here, where he commented,
The shame in all this is that Christie felt compelled to frame the case as involving the issue of a general constitutional right to representation under the rule of law, as opposed to arguing that the tax discriminated against the impoverished.
Indeed, my personal hope was that the SCC would have adopted the reasoning of the Chambers judge in finding a constitutional right to access to justice as per John Cartern Personal Law Corp. v. British Columbia (Attorney General) (1997), 40 BCLR (3d) 181 (CA) (leave to appeal denied [1998] 2 SCR viii), and just found the tax ultra vires to the extent that it affects low-income persons. Possibly within a s.1 analysis, the scope of the right could perhaps have been metered easily by looking at an individual’s tax return.
I suppose this is all just wishful thinking at this point. As Professor Haigh points out,
The SCC seemed to ignore the practical reality that the tax will affect some people more than others. Since it found that there is no “general constitutional right to counsel in proceedings before courts and tribunals dealing with rights and obligations” (para 27) some rights litigants in BC may have to represent themselves in the courts – obviously, the “some” will largely be the poor.
5 Comments
Possibly within a s.1 analysis, the scope of the right could perhaps have been metered easily by looking at an individual’s tax return.
Why would s. 1 apply to "unwritten principles"? They're not in the Charter.
Would we want the courts desigining an alternative legal aid program? It strikes me that there are major concerns of institutional efficiency and legitimacy.
Is this how constitutional law is now taught? If something, such as access to justice, is perceived as good, then one "hopes" that the Supreme Court of Canada will, in a "shining moment", discover a right to it buried in the Constitution? When I was in law school, I was taught to hope that the Court would properly interpret and apply the actual Constitution - the one implemented by our democratically elected representatives - rather than make it up as they go along.
As for the comment about a s. 1 analysis being used to limit a new constitutional right to access to justice, my view is that if you're going to invent rights, you should feel free also to invent limits on them too. Whether you'd want to use the mess that is s. 1 jurisprudence as the limit is, I suppose, another question.
There's a paper just out on the SCC's approach to statutory interpretation that's worth reading. The abstract (below) - is at http://ssrn.com/abstract=987199 and that page will link you to the full paper which can be downloaded.
Driedger's Modern Principle at the Supreme Court of Canada: Interpretation, Justification, Legitimization
STEPHANE BEAULAC
University of Montreal - Faculty of Law
PIERRE-ANDRé CôTé
University of Montreal
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Revue Juridique Thémis, Forthcoming
Abstract:
In the last 20 years, Elmer Driedger's modern principle has emerged as THE expression of the Supreme Court of Canada's preferred approach to statutory interpretation. The authors examine this fundamental development in Canadian law, including the variable relations between Driedger's quote and the Court's use of it, the different circumstances in which the principle is invoked and its influence on the caselaw of other superior courts in the country.
Follows an appraisal of the impact of the modern principle on Canadian law. The principle is shown to serve three clearly different functions. It is used in the interpretation of statutes, it provides judges with a justification framework for interpretative decisions, and it is also instrumental in the legitimization of the judicial function in statutory interpretation.
No doubt, the modern principle has brought about some advances in the law relating to statutory interpretation in Canada. However, the authors reckon that it constitutes an over-simplified reflection of the actual practice of Canadian jurists, including judges. As a result, Driedger's principle provides neither a valid method for interpreting statutes nor a suitable structure for the courts' justification of interpretative decisions. One should not see in it more than a good starting point for statutory interpretation.
I can't tell if Mike is being sarcastic or not through the use of quotations around the word "hopes" or "shining moment" but I sure hope he is. If the SCC perceives something as being good then they should discover it 'buried' (ie not there) in the constitution? I'm sorry, but if there is sufficient consensus that that something is good enough to constitutionalize then isn't that the point of an amendment.
As for the access to justice issue.. All this points to is that the legal profession has failed Canadians. From law professors clamoring for increased tuition because their egos cannot handle making less than freshly graduated students on Bay Street to the way which lawyers have responded to the challenge of paralegals offering equivalent services for a fraction of the cost, the blame for the access to justice issue needs to be pointed squarely where it belongs... on lawyers desperately seeking to preserve status.
I would contend that I didn't go so far as to say that merely because something is perceived as good, that Canadian courts should discover it in the constitution apart from the democratic process. Rather, I was voicing my agreement with the reasoning put forth by lower courts in their recognition that the rights guaranteed in the Charter are diminished in value if they are only exercisable by some.
I'd be the first to admit that the word choice in this post is more reflective of my views on the access to justice implications of Christie than the implications on unwritten constitutional principles. What I had 'hoped' for above was a reflection of my own political views of the importance of access to justice for our society, and for low-income individuals in particular. These are hopes and values I carried with me into law school, where I learned about the presence of unwritten constitutional principles and their use. To be clear, my 'hope' was more a personal desire for the SCC to use these principles to achieve a result with regards to access to justice that I valued, and less so a pronouncement of the virtue of using unwritten constitutional principles.
Indeed, since most of the discussions around these issues have been canvassed elsewhere on this site (see the links), this post was meant to offer more of a personal viewpoint.
To see continued discussion on these issues, please see the thread following Professor Haigh's post here.