Just Ask?

DISCLAIMER: Judging by the amount of time it took me to write this post, it is likely to make no sense. But I’m too invested in it, at this point, to give up on it.

The constitutionality of Bill C-36, the federal government’s proposed anti-prostitution legislation, is in serious doubt, and there have been calls (predictably futile) for the government to refer the matter to the Supreme Court. The government’s failure to do so means, no doubt, that once the bill becomes law, it will be challenged, and the litigation is likely enough to end up at the Supreme Court anyway, in four or five years’ time. In the meantime, there will be uncertainty, and if the Supreme Court rules that C-36 is indeed unconstitutional, it will mean that sex workers will have been victimized (and their clients punished) on the basis of a law that had no business existing to begin with. So would referring Bill C-36 to the Supreme Court be the right thing to do?

This question naturally leads to a more general one. As Yves Faguy argues on Slaw,

where it’s obvious that a constitutional challenge will take place, it’s worth considering how Canadians could benefit from a more efficient and transparent mechanism for reviewing the constitutionality of our laws.

In some countries ― I’m thinking of France in particular ― such a mechanism is provided by empowering a group of members of legislature (in practice, of course, it is usually a group of opposition legislators) to initiate a constitutional reference, bypassing the government. So would setting up a procedure of this sort be a good idea? (I will put to one side, for the purposes of this post, the question of whether that would be constitutional. I might come back to it eventually.)

Mr. Faguy is wary of the reference process, suggesting it might produce “overly broad” rulings by the Supreme Court. That’s may well be so, although of course the Court can also produce such rulings in the course of ordinary litigation. But there are other reasons too why I think that, although perhaps a superficially attractive check on a majority’s power, such a procedure (call it the “opposition reference”, for lack of a better term), would not be a good addition to the Canadian constitutional process.

The case of Bill C-36 illustrates one such reason. At least if we assume that the constitutionality of the new prostitution provisions will be assessed in the same way as that of the old ones was in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101 ― that is to say, by focusing on facts about the dangers which the law created for sex workers ― a reference to the Supreme Court before these provisions take effect will have to be argued and decided on the basis of evidence that will largely consist of speculation. Although I have expressed my worries about the Supreme Court’s fact-heavy approach here, it is the one the Court prefers, and it is certainly an appropriate one in many cases. If given the power to initiate references, opposition politicians are unlikely to be very careful about distinguishing bills on the constitutionality of which the Supreme Court could rule without a full factual record (such as, say, the federal government’s erstwhile project for creating a national securities regulator) and those with which doing so would not be possible.

Indeed, the potential for misuse of the power to initiate references by opposition groups is another reason to doubt whether such a power would be a good idea. Of course, a government can also misuse this power, but cases where it has an incentive to do so ― probably, situations where it will legislate because it must and not because it wants to ― will probably not be very frequent. (The Same-Sex Marriage Reference is the one that comes to mind.) The opposition, by contrast, will often have an incentive to grandstand and/or to delay the passage of legislation, so it is more likely to initiate references abusively.

One way to minimize this problem is to require the Supreme Court to rule on an opposition reference within a short time. The French Conseil Constitutionnel has only 30 days to deliver its judgment on the constitutionality of a bill, for instance. But (again, quite apart from potential constitutional difficulties) this would risk seriously undermining the quality of the resulting decision-making, not to mention interfering with the Supreme Court’s other work. The Supreme Court might have to be a very different institution to handle opposition references effectively.

In short, giving the opposition power to initiate references to the Supreme Court would likely have negative institutional consequences and produce decisions of dubious quality. It might sound like a good idea to check the power of the government to ram through legislation, but it probably wouldn’t be.

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