The Bill Is Due

In yesterday’s post on R. v. Cloud, 2014 QCCQ 464, I bemoaned the lack of property protections in the Canadian Charter of Rights and Freedoms, arguing that, as Cloud demonstrated, it hurt the poor rather than the well-off. However, while property rights are not mentioned in the Charter, section 1 of the Canadian Bill of Rights provides that

It is hereby recognized and declared that in Canada there have existed and shall continue to exist … the following human rights and fundamental freedoms, namely,

(a) the right of the individual to … enjoyment of property, and the right not to be deprived thereof except by due process of law;

Unlike the Charter, the Bill of Rights only applies to federal law ― which, of course, includes the Criminal Code. Can it be used to challenge the “victim surcharge” which, as I argued yesterday, is an arbitrary taking of property, often from the poorest members of society and for the benefit of those better off than them? The short answer is, almost certainly no. There is a way of arguing that it should be, but I would not expect courts seriously to entertain such an argument. And yet, they would be wrong not to.

Unlike the Charter, which helped usher in substantial changes in Canadian law within years of its coming into force, the Bill of Rights has languished in relative obscurity. The Supreme Court never made much of it, holding in R. v. Burnshine[1975] 1 SCR 693 at 702 that

[t]he Bill did not purport to define new rights and freedoms. What it did was to declare their existence in a statute, and, further, by s. 2, to protect them from infringement by any federal statute.

As cases such as Burnshine and Miller v. The Queen, [1977] 2 SCR 680, which rejected a challenge to the use of capital punishment on the basis that

[a]t the time when the Bill of Rights was enacted there did not exist and had never existed in Canada the right not to be deprived of life in the case of an individual who had been convicted of “murder punishable by death” by the duly recorded verdict of a properly instructed jury (704)

demonstrate, the courts’ approach to the Bill of Rights is strictly originalist. This is, of course, in contrast to their approach in constitutional cases, where originalism is (almost ritually) rejected and “large and liberal” interpretations prevail, and despite the Bill of Rights regularly being described a “quasi-constitutional” statute.

The most recent leading case dealing with the Bill of Rights is Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 SCR 40. The claimants in in that case argued that the federal government’s failure to pay interest on pension money it administered for them and Parliament’s enactment of a statutory provision barring any claim for such interest were a violation of, among other things, their property rights protected by the Canadian Bill of Rights. In a unanimous judgment by Justice Major, the Supreme Court held that the requirement of “due process of law” for any deprivation of property in par. 1(a) of the Canadian Bill of Rights did not include any procedural rights (such as notice and hearing) prior to the enactment of a statute or in “the non-discretionary application of a law to incontestable facts” (par. 45). More important for my purposes here, however, is the Court’s treatment of the claim that “due process of law” had a substantive dimension which included protection against expropriation without compensation. Justice Major noted the extreme reluctance of Canadian courts to recognize “substantive due process” rights arising out of the Bill of Rights; he also observed, however, that in the context of s. 7 of the Charter, which uses the terms “fundamental justice” instead of the Bill of Rights‘ “due process of law,” the Court has found that, in the proper circumstances, guarantees of process or justice may confer substantive protections” (par. 50). Reverting to an originalist analysis, Justice Major concluded that, in any case, when the Canadian Bill of Rights was enacted, “it was undisputed, as it continues to be today, that Parliament had the right to expropriate property if it made its intention clear” (par. 52).

How does this apply to the “victim surcharge”? To argue that it is contrary even to the narrow protection for property rights recognized by the Supreme Court in Authorson, one would need to show that a principle of proportionality or non-arbitrariness in the deprivation of property was part of Canadian law prior to 1960. I haven’t done any relevant research, but I suspect that it would not be an easy demonstration. Authorson does, however, leave open the possibility of reading “substantive protections” into a “guarantee of process.” It is difficult to know whether Justice Major really meant what he said. Perhaps the possibility he suggested was a purely theoretical one. I have no doubt that courts would be reluctant to give it effect. A case involving the “victim surcharge” might be the best opportunity to persuade them to do so. It might help, too, that since Authorson, important American scholarship has undermined the justification of the fear of  a new “Lochner Era” of judicial assault on legislation intended to foster social justice and called into question its purely procedural understanding of “due process of law.” Still, this would be a high hurdle to overcome.

The most radical, and least likely to succeed, argument against the compatibility of the “victim surcharge” with the Canadian Bill of Rights would involve a challenge to the Supreme Court’s entire approach to its interpretation. The originalism which limits the scope of its protection to what existed in 1960 is inconsistent with the Court’s approach not only to constitutional and quasi-constitutional laws, but even to ordinary statutes. To be sure, the Bill of Rights “recognizes and declares” that the rights it protects “have existed and shall continue to exist.” But recognizing the continued existence of a right need not entail its “freezing” at the moment of recognition. A right does not change, does not become a different or new right, just because it comes to have a novel application. When the equality rights of same-sex couples were recognized, they were the same old equality rights that had existed previously and would continue to exist thereafter, only extended to a new group of people. When the Supreme Court recognized that freedom of religion prevented Parliament from enforcing religious observance, it did not create a new liberty ― it only gave further meaning to an old one. Of course, there are limits to this reasoning, but that does not invalidate it altogether. It is probably always a safer bet to assume that the Supreme Court will not change course. But it should. 

The Canadian Bill of Rights deserves better treatment than it has received at the Supreme Court’s hands. The “victim surcharge” shows that the Bill is due ― to hold the government to account for its greed at the expense of some of the most vulnerable members of society.

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