A View of the Charter Methodology Battlefield
This blog post is part of a series on “SCC Decisions and more” written by CIAJ’s collaborator James Hendry. Read all his posts here.
It’s not often that a Justice in a senior appellate court characterizes an inflection point in Charter methodology as a “battlefield” between two approaches to its interpretation (Boloh para. 21). Recently, Stratas JA of the Federal Court of Appeal rejected a Federal Court judge’s interpretation of a citizen’s s.6 right to enter Canada in ordering the government of Canada to engage in the potentially dangerous rescue of four Canadians detained in appalling conditions by the Autonomous Administration of North and East Syria.
Mind you, there were none of the judicial fireworks of the late Scalia J when advocating originalism. This theory requires judges to interpret the constitution based on the understanding the framers would have had of its text, much from the end of the eighteenth century. The idea is that judges should apply the text as drafted, leaving amendment to “the people”. The originalist methodology continues swirling in US legal circles.
Interpreting the Charter
Stratas JA says he is not a textualist who delegates interpretation to the dictionary (para. 26). He starts his discussion as an originalist does by noting that the Charter can only be amended according to Constitution Act, 1982 formulae (para. 17). Presumably he is making it clear that judges are not to amend rights by interpretation. He then argues that the text is the guiderail to interpreting a right, while considering the other contextual considerations recognized in the “classic” test in Big M Drug Mart. The purpose of a right must be determined by the character and larger objects of the Charter, the language articulating the right, its historical, linguistic and philosophic context, together with associated rights that give clues to the purpose, all resulting in a generous interpretation that should not overshoot or distort the purpose but secure the full protection of the Charter (paras. 18, 23). At times, he does sound like an originalist with text and context of rights to be assessed at the time they were written into the Charter (paras. 26, 32).
He characterizes the opposing method of interpreting the Charter as a looser approach “toyed” with by the Court beginning around the turn of the millennium when the text became a “springboard” for the ascertaining the “vibe” of the Charter resulting in new unwritten rights undermining the text and precedent, creating doctrinal inconsistency (para. 20).
He is clearly relieved that the Court recently reached this inflection point on the “battlefield” of 9147-0732 Quebec Inc confirmed in Toronto, which reinstituted a rigorous and objective application of the Big M approach to interpreting the purpose of a right with the text supplying the essential constraint on other considerations and decisively rejecting the looser approach that fostered judicial activism (paras. 23-7).
Interpreting Section 6
Stratas JA starts from the text that confers a “right to enter” finding that it is clearly not the positive right sought by the claimants (para. 33). He finds that the Court has already defined s. 6 (1) as a negative right, preventing exile or barriers to return. Not the facts here.
Presumably because the FC judge considered international sources, Stratas JA refers to the discussion of the improper use of international and foreign law in 9147-0732 Quebec Inc as a contributor to the defeated looser approach. He notes the Court’s view that treaty or customary law binding on Canada can only support or confirm a Big M analysis. The progenitor of s.6 in article 12 (4) of the binding International Covenant on Civil and Political Rights and its jurisprudence supports the Court’s negative right analysis (para. 48). Following the Court’s direction in 9147-0732 Quebec Inc to explain the value of any international or foreign sources used, Stratas JA dismissed the support for positive action found by the FC judge in a UN Special Rapporteur’s report (paras. 49–50).
Interestingly, the FCA asked for submissions on the test for establishing a positive right based on its characterisation of the claimant’s argument. A positive right requires proof of substantial government interference with a Charter right in purpose or effect (Baier, para. 27, Toronto, para. 25). Having concluded s.6 is a negative right and that Canada did nothing to prevent return, there was no positive right that would overshoot the right’s purpose.
Stratas JA rejoices in a definitive inflection to a more text-driven approach to interpreting the Charter (paras. 21-2). Abella J dissented in the “victorious” 9147-0732 Quebec Inc at paras. 74–80observing that these strong textual guardrails might hamper the organic growth of Charter rights that are often couched in open-ended standards and hamper Canada’s participating in the global project of advancing human rights, at para. 106.
Also, I wonder what normative force foreign or international law has if it can confirm a Big M interpretation but cannot contribute semantically to the interpretive process?
And what ever happened to the living tree of our Constitution? This principle is not to be dismissed merely as a source of anything-goes interpretation (Edwards, 106). Organic growth and not quick solution-seeking has been advocated even by conservative political theorists since Burke. Growth takes time and care. Think of the amount of thought given to s.15 equality jurisprudence in the arc from Andrews to the compelling summative dissent of Karakatsanis J in Sharma.
The FC judge worked very hard to find a means of stretching s.6 to fill a gap in the protection the Charter provides to Canadians in the extraordinarily appalling conditions in which the claimants are being held. He found the Court’s endorsing s.6 as a fundamental right in Divito sufficient to grow this right. He probably stretched s.6 too far: can you imagine the government sending any but an armed force to escort the claimants home without the consent of the sovereign Syria? But doesn’t his effort deserve to be recognized as an attempt at reasoned growth in an extreme case and not an opportunistic choice from a “box of chocolates” (para. 50)? Are we seeing a newer more demanding approach to Charter litigation here and in the recent Council for Refugees case?