A Shield Not a Sword?

In my post discussing Brent Rathgeber’s take on the Supreme Court’s recent decision striking down the prostitution-related provisions of the Criminal Code (Canada (Attorney General) v. Bedford, 2013 SCC 72), I mentioned that Mr. Rathgeber had an interesting theory of the proper role of courts and judicial review. I think it is worth discussing, but I do not find it persuasive.

As Mr. Rathgeber notes, “[a]ccording to [a] commonly-held Conservative viewpoint, Parliament should craft the laws and the courts interpret them, period.” Mr. Rathgeber disagrees. In his view, “[t]he problem with that theory is that Parliament voluntarily surrendered to the Court’s arbitration regarding Charter compliance, when the Charter of Rights and Freedoms was entrenched in the Canadian Constitution in 1982.” So what is the courts’ proper role?

As a lawyer, I see no overreaching when the Courts strike down a law that is offensive to the Canadian Charter of Rights and Freedoms.  I take a different position when the Court orders the Government to do something Parliament has not legislated … 

A check on Parliament’s authority does not include writing laws; that legislative function properly belongs to Parliament.  But the Court is well within its function to strike down laws that are non-compliant with the Constitution. Judicial activism is different than judicial review; the latter is a fundamental check on government and Parliament.

To re-purpose an old legal metaphor, this judicial review can be legitimately used as a shield, but not as a sword; it is a protection against legislative over-reach, but a means to force legislative action. This theory might sound like an attractive attempt at defining a limited yet meaningful role for judicial review. It is certainly more sophisticated than simplistic invocations of “judicial activism” (which is, in any case, a meaningless concept). However, it does not really hold up to scrutiny.

The fundamental trouble with the shield-but-not-sword view of judicial review is that the distinction between situations in which courts step in  as “a … check on government and Parliament” and those in which they force Parliament and government to “writ[e] laws,” or do it themselves, is not at all clear. Equality claims, for example, do not lend themselves to a classification along these lines. When courts find unconstitutional the limitation of marriage to heterosexual couples, or the exclusion of sexual orientation from a list of prohibited grounds of discrimination, are they preventing legislatures from discriminating, or forcing them to legislate (and indeed imposing rules on them)? Other parts of the Charter ― notably language and education rights (protected by sections 16-23) ― are quite clearly “positive” rights which require legislatures and governments to act in certain ways, and thus require the courts to order them to so act when they fail to do so. That is also true of more traditional rights. The right to vote requires legislatures to set up electoral machinery, and arguably authorizes courts to dictate, to some extent, the way in which this machinery will be set up (so as to prevent unfairness). Various procedural rights require legislatures to set up court systems of a certain quality (including by making sure that their judges are independent), which again authorizes the courts to dictate (some) rules to them. Mr. Rathgeber’s distinction probably works best in the context of such rights as freedom of speech and freedom of religion, but even there, there may be cases where it becomes blurred. Must, for instance, the government pay for chaplains in prisons? Would a court ordering it to do so preventing a violation of the prisoners’ freedom of religion, or legislating against Parliament’s will? 

It is noteworthy, I think, that in judicial review of executive ― rather than legislative ― decisions, there exists a specific remedy to force the government to act when it fails to do so, the mandamus. Now the test for obtaining a mandamus is difficult to meet; courts are reluctant to force the government to act, much more so than they are to stop a government from acting in error or without jurisdiction. (Indeed, courts are more reluctant to force individuals to act in a specific way by means of an injunction, much more than they are reluctant to force them to abstain from action or to hand over a sum of money.) But this reluctance is not categorical. It appropriate cases, it will give way to an overarching concern that the law must be executed. Similarly, although courts may do well to be more cautious before requiring legislatures to act in a certain way than when simply invalidating laws, such requirements are not always outside the bounds of their proper role.

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