Section 0

I wrote yesterday about the possibility that the relationship between sections 7 and 1 of the Charter might change in the wake of the Supreme Court’s assisted-suicide decision, Carter v. Canada (Attorney General), 2015 SCC 5. If I am right, however, the changes will only be relevant in a limited number of cases (albeit potentially significant ones). So I think it is also worth saying something about the relationship as it developed in the pre-Carter days, when justifying a section 7 violation under section 1 was generally regarded as well-nigh impossible. (Maxime St-Hilaire has posted a detailed review of the relevant jurisprudence as a comment to yesterday’s post. As he makes clear, while the Supreme Court has often enough analyzed section 7 infringements under section 1, this seems usually to have been pro forma.)

Section 7 is an unusual provision in the Charter because, unlike most others, it has a built-in internal limitation. It does not merely protect rights to “life, liberty and the security of the person,” but also, in effect, provides that it is possible to deprive one of these  ― so long as this is done “in accordance with the principles of fundamental justice.” What those principles are has been controversial (and remains so, as the criticism of the Supreme Court’s recent decision to recognize the lawyers’ duty of commitment to their clients as a new principle of fundamental justice in Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7 demonstrates.) However, as the Supreme Court pointed out in Carter,

three [principles] have emerged as central in the recent s. 7 jurisprudence: laws that impinge on life, liberty or security of the person must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object. [72]

As the Court further explained, “[e]ach of these potential vices involves comparison with the object of the law that is challenged.” [73] Arbitrariness occurs “where there is no rational connection between the object of the law and the limit it imposes on life, liberty or security of the person.” [83] Overbreadth is a situation where, a provision that is not arbitrary nevertheless “goes too far by denying the rights of some individuals in a way that bears no relation to the object.” [85] Finally, gross disproportionality happens when “the impact of the restriction on the individual’s life, liberty or security of the person is grossly disproportionate to the object of the measure.” [89]

Now here’s the thing. These “central” principles look an awful lot like the three prongs of the “proportionality” part of the Oakes test used to decide whether the infringement of a Charter right is justified under section 1. Arbitrariness is like “rational connection”; overbreadth seems similar to “minimal impairment”; and gross disproportionality is reminiscent of the balancing over prejudicial and beneficent effects, or “proportionality stricto sensu.” It might seem, then, that section 7, although infringements to it cannot really be justified under section 1, actually comes with its own section 1 built in.

Except that the Supreme Court has been insisting that it really doesn’t; that, as the Chief Justice put it in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101,  the “parallels” between these provisions “should not be allowed to obscure the crucial differences between the two sections.” [124] I have to admit that when I first read Bedford, this disclaimer seemed difficult to countenance. The parallels really seemed too flagrant. But with an additional explanation given in Carter, I think that there really is a meaningful difference between the “central” principles of fundamental justice and the “proportionality” analysis under section 1.

What makes the distinction between the two so elusive that the Supreme Court is forced to return to and try to clarify it in case after case is that, despite its insistence that “[t]he question of justification on the basis of an overarching public goal is at the heart of s. 1, but it plays no part in the s. 7 analysis,” [Bedford, 125] the “overarching public goal” is, in fact, the reference point for the section 7 analysis as well. And it doesn’t really help to say that, for the purpose of section 7, the objective must be “taken at face value,” [Bedford, 125] because that seems to be exactly what is going on in section 1 cases as well. Nor does it help to say that under section 7

[t]he inquiry into the impact on life, liberty or security of the person is not quantitative — for example, how many people are negatively impacted — but qualitative. An arbitrary, overbroad, or grossly disproportionate impact on one person suffices to establish a breach of s. 7. [Bedford, 127]

In theory, at least, it should be the same under section 1. The number of people affected might be a consideration, if at all, at the last, balancing stage, but if the law is not rationally connected to its objective, or if less impairing alternatives exist, it will not pass the Oakes test even if that number is small.

However, a passage in Carter clarifies things at last. The Court explains that

[i]n some cases the government, for practical reasons, may only be able to meet an important objective by means of a law that has some fundamental flaw. But this does not concern us when considering whether s. 7 of the Charter has been breached. [82]

In theory, at least, that is a (partly) plausible distinction. I say partly, because I still fail to see how a finding of arbitrariness could ever be rescued by the assertion of an “important objective” ― to which the impugned law is, ex hypothesi, not connected. But it seems possible that, in some cases, in would be impossible to draft a law sufficiently precise that it would not be overbroad ― yet, precisely because no possible alternatives exist, it would still survive the “minimal impairment” stage of the Oakes test. This was precisely the government’s argument in Carter ― and, although it did not succeed, it fared better than just about any other attempt to justify a section 7 infringement ever had. It might even be possible to show that a “grossly disproportionate” law has such enormous social benefits that it would survive the balancing stage of the section 1 analysis, though I’m pretty skeptical about that. In this way, the Court’s assertions that the principles of fundamental justice in section 7 are not about public or collective interests make sense and, as the Court has been telling us all along, the “principles of fundamental justice” in section 7 are not exactly an internal section 1.

But, keeping in mind the way in which sections 7 and 1 have interacted until Carter, and are likely to keep interacting in the future, I want to suggest that they are, in effect, a sort of section 0 ― by analogy to Isaac Asimov’s “Zeroth law of robotics.” Asimov’s original “three laws,” go like this (the lower-numbered laws over-riding the higher-numbered ones):

1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.
2. A robot must obey the orders given it by human beings, except where such orders would conflict with the First Law.
3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

Eventually, however, Asimov added an additional law, which he call the “Zeroth,” because it had priority over the First:

0. A robot may not harm humanity, or, by inaction, allow humanity to come to harm.

The First law is accordingly re-written, allowing for its violations in order to respect the Zeroth.

The principles of fundamental justice are similar in that they are considered as logically prior to and, in their actual application, arguably capable of over-riding the “First Law” of the Charter, because they protect an interest even more important than it does.

In a way, however, the relationship between “section 0” and section 1 is the exact opposite of that between the Zeroth Law and the First. The Zeroth Law reflects Asimov’s conclusion that a collective interest was superior to the individual one ― indeed, to the individual interest in life and the security of the person itself. “Section 0” reflects the opposite view, which is logical considering that the Charter, despite its strong acknowledgement of collective interests in section 1, is still the product of an individualist philosophy. Section 1 is important (as is Asimov’s Fist Law) but, at least when it comes to the most fundamental rights of all, it must give yield to an interest that is more important still. Indeed, as I have said yesterday, the Supreme Court’s greater openness to considering a section 1 justification of  a section 7 infringement may well be consistent with, rather than a departure from, this principle, insofar as it still serves to uphold the very same rights protected by section 7.

And as for the question of who, as between the Supreme Court and Asimov, has got the priority of the individual and the collective right, I’ll let you decide. The contest might be a bit unfair though, considering that Asimov’s novels tend to be better written that Supreme Court opinions.

One thought on “Section 0

  1. I think there is a slightly simpler distinction between the “overbreadth” and “minimal impairment” test.

    “Overbreadth” targets rules, as opposed to standards. A 50 km/h speed limit probably hits some people who are driving OK for the prevailing conditions, but lets others go who are driving too fast. But it has the merit of providing a clear basis for decision (especially since, in practice, we give cops a discretion to let people off who are going a bit above it). It is in the nature of rules that they do not specifically refer to the underlying variable of interest, but look to some more easily observable instrumental variable that is more or less strongly correlated with what we really care about.

    Under Carter, the government can’t talk about the benefits of having a rule, as opposed to a standard, under section 7. It has to do that under section 1. Under Edward Books or Irwin Toy, the government can say, “Sure a cutoff for small religious employers of 8 employees is arbitrary. It could have been 9 or 7. But it makes sense to have something and 8 is as good as any.” So I think an argument for a rule could survive the minimal impairment test even if it failed overbreadth.

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