The Charter as a living tree and the advance of socio-economic rights
As we celebrate the 35th anniversary of the Canadian Charter of Rights and Freedoms and Canada's 150th anniversary of Confederation, CBA National is featuring opinions by leading constitutional scholars to examine the possibilities and challenges for constitutional rights and freedoms over the next 10-15 years, the theme of the University of Ottawa’s Public Law Group’ upcoming conference, The Charter and Emerging Issues in Constitutional Rights and Freedoms: From 1982 to 2032. For this instalment we caught up with Kerri A. Froc, a Postdoctoral Fellow at Carleton University, and a Trudeau and Vanier Scholar, to discuss the impact living tree constitutional interpretation has had on the recognition of socioeconomic rights.
CBA National: How is the living tree approach to Charter interpretation supposed to hold promise for the advance of socio-economic rights?
Kerri Froc: “Living tree” constitutionalism, as we know it in Canada, is that the meaning of words in the Charter can change; judges need only consider the contemporary meaning of the words; and that the text is a very loose guide, a sort of empty vessel in which meaning can be poured in. Under this approach constitution-making history is treated skeptically. And the Supreme Court has stated that this is the best way to ensure that rights are not “frozen,” that we do not have a Constitution that is increasingly out of step with Canadian society and becomes less and less relevant. In 2002, the majority of the Supreme Court said in the Gosselin case that “one day,” section 7 might be interpreted to include “a positive state obligation to guarantee adequate living standards,” but just not then, in that case. It cited “living tree” constitutionalism to ground that possibility. So it’s throwing out this hope that despite socioeconomic rights getting short shrift in many decisions, there might be a course correction in the future.
N: What is preventing that from happening?
KF: Well, there appears to be a common perception that looking back to constitution-making history, the reasons for the word choices framers made, and the original meaning of the terms, and then using those elements to guide constitutional interpretation is “bad” for socioeconomic rights. There’s a concern that if we open the Pandora’s Box of history, that these elements would support the exclusion of these rights from the Charter. There’s also a concern that an approach that treats this history as an important resource would lead to “frozen rights” and that we would have to apply rights in socioeconomic cases the same was as they would have, say in 1981. It is also supported by a mythology that society and judges are becoming ever more “progressive” over time and our understanding of rights is increasingly and unfailingly more enlightened. I think the Donald Trump administration shows that this is not true. It’s true we’ve made strides, but history is cyclical rather than a straight line of progress.
N: But you say that the courts have hindered the advance of those rights. How?
KF: In some cases, “living tree” constitutionalism has been used for what could be considered regressive interpretations in relation to socioeconomic rights. It was cited in the Hislop case so that the government wasn’t on the hook for fully compensating same-sex spouses who were denied survivors benefits under the Canada Pension Plan. In essence, its reasoning was that the government wasn’t liable for paying arrears back to 1985 because rights under the Charter had changed under the “living tree approach.”
And even though the Supreme Court professed that history should be given “minimal weight” under “living tree” doctrine, courts still do consider it. But, by pushing it to the margins, they can use history as a sort of “surplus labour” when interpreting rights. Courts can draw it in when they want, discard it when they want, treat it superficially when they want, and even treat it as authoritative when they want.
This cavalier approach means that the courts just do constitutional history badly in a lot of cases, and this has hurt socioeconomic rights. Most often, socioeconomic claims come under sections 15 and 7. I’ve found it certainly wasn’t the case that the legislative history and original meaning of section 15’s text support exclusion of socioeconomic rights. Some judges have relied on the decision of constitution-makers to exclude property rights under section 7 to reject claims with a socioeconomic component. It’s not right from a historical standpoint when one looks at the reasons for the exclusion, and not from the standpoint of a principled approach to constitutional interpretation.
N: What about judicial deference?
KF: Quite properly, courts need to be concerned with the division of powers between the judiciary, the executive, and Parliament. Reading between the lines of the decisions, they are extremely sensitive to challenges to their legitimacy to make decisions under the Charter when these decisions have implications for government budgets and for policy-making. However, these sensitivities about the legitimacy of the judicial role in constitutional review seem most manifest in cases concerning homelessness, civil legal aid, social assistance or pay equity, among others and not as much, for instance, in criminal cases concerning pre-trial delay that have massive cost and policy implications. Ideas about legitimacy are shaped by social attitudes about marginalized groups who are making these claims and their “deservingness” to be full citizens, traditional understandings of rights and who could claim them, and even things like prevailing philosophies about the public and the private. So, we have decisions like Chaoulli where the prerogative to buy private health insurance is framed by the context of public health care and a right to bodily integrity but in Tanudjaja, abused women’s inability to access shelter spaces due to certain government housing policies is implicitly characterized as being about satisfying private need.
N: What could the courts feasibly do that would respect their constitutional role?
KF: I think respecting their role means giving due respect to the constitution-making work of not only politicians but average citizens, who had an unprecedented amount of input into the draft Charter. They spent an incredible amount of time debating and revising the constitutional text, which tells us that the words that they selected mattered. The mandate given to the judiciary in the Constitution is to interpret these words. Constitutional interpretation has to start from the text and its original meaning, though it doesn’t necessarily have to stop there. There needs to be a structured and principled approach to constitution-making history in constitutional interpretation, but within that approach, room to ensure the Charter remains responsive to contemporary society and remediates oppression long into the future. “Living tree” doesn’t even try to adopt the former, and it’s very questionable whether it’s lived up to its reputation with respect to the latter. We could do it through a revamped, “purposive” approach and throw “living tree” to the curb.
Photo licensed under Creative Commons by maf04