The Power of Perspectives

The Canadian Bar Association

Léonid Sirota

How to undo bad Supreme Court decisions?

February 6 2015 6 February 2015

Over at my own blog, Double Aspect, I have argued that the Supreme Court’s recent decisions in Mounted Police Association of Ontario v. Canada (Attorney General) and Saskatchewan Federation of Labour v. Saskatchewan, which read the rights to bargain collectively and to strike into s. 2(d) of the Charter, are rotten. They are, I said, based on economic myths unsupported by evidence, as well as a misapprehension of the Court’s constitutional role. They also, I further said, make labour into a constitutionally privileged class by departing from the Court’s normal refusal to extend constitutional protection to economic rights, and from that which holds that private parties cannot be subjected to Charter obligations. These decisions need to be done away with. In this post, I consider how to do that.

The quickest and, in the short-term anyway, most effective course of action is, as Saskatchewan Premier Brad Wall has suggested, to invoke the Charter’s notwithstanding clause to revive the laws which the Supreme Court invalidated, and any others whose constitutionality may now have become questionable. Apart from its effectiveness, this solution is also (at least superficially) attractive because it is tempting to believe that legislative defiance may give the Court second thoughts in the future. But there are other ways of signalling this defiance, to which I will shortly come. On reflection, I do not like the idea of relying on the notwithstanding clause.   

That is because the norm ― it is not, it seems to me, a convention yet ― against using the notwithstanding clause is, on balance a very good thing. Courts sometimes make mistakes, even very bad mistakes, as Mounted Police and Saskatchewan Federation of Labour demonstrate. But, pace Jeremy Waldron, the Supreme Court of Canada’s record on rights issues is still so much better than that of Parliament and the provincial legislatures that we’re better off with not merely a rebuttable presumption, but a bright-line against legislative corrections of perceived judicial mistakes. The likelihood of the perception being itself mistaken is simply too high. Still, when, as now, the Supreme Court makes mistakes, there are ways of correcting them other than a straightforward legislative override, which are less objectionable because they involve actors other than just momentary legislative majority.

The most obvious of them, of course, is simply to re-litigate the case. This, after all, is exactly what organized labour has done time and again, until it got the results it was after for 25 years. There is no reason why the governments shouldn’t play that game too. There are two ways of playing it.

In the short term, governments need to, and can, do a much better job of arguing that the limitations they seek to impose on the newfound s. 2(d) rights are justified under s. 1 of the Charter. When they defend laws dealing with civil servants, the governments need to make the case about the taxpayers’ money, and not only some vague control-of-the-workforce objective. Force the Court to confront the fact that striking down the law will gouge taxpayers. And, since the Court wants social science evidence, by all means, give it social science evidence. Bring in economists. Show exactly how expensive the unions’ constitutional perks will be. Show what worthwhile social programmes cannot be funded if the law at issue is invalidated. In short, let the Court grapple with the consequences of its decisions.

The long game would consist of going beyond s. 1 arguments, and getting the pernicious holdings about the scope of s. 2(d) reversed. Actually, as the Court’s wavering and sudden changes of opinion on this issue suggest, it might just be possible to achieve this pretty quickly. But it wouldn’t be wise to bet on that, I suspect. A different holding might require different judges: judges who actually understand economics and know that the mythology about workers’ powerlessness underlying the s. 2(d) holdings in Mounted Police and Saskatchewan Federation of Labour is just that, a fairy tale. And to get such judges, partisan temper tantrums are not enough. Andrew Coyne, Bob Tarantino and yours truly have all argued that getting judges (and, before that, lawyers!) to think differently is a difficult long-term project, and little is now being done to even get it off the ground. But undertaking it may be unavoidable.

Speaking of difficult long-term projects, there is a final way of reversing the recent s. 2(d) decisions ― constitutional amendment. If we think the constitution ought to mean something other than what the Supreme Court says it means, well, maybe we need a more clearly-written constitution. Indeed, it’s not even so obvious why getting an amendment that clarifies the scope of s. 2(d) so as to exclude collective bargaining and strikes should be so difficult. Unlike, say, a triple-e Senate, such an amendment is, after all, self-evidently in the interest of every government in the country. And the stakes might be big enough to make the effort worthwhile. Still, I won’t hold my breath ― but it would be nice if the idea were given some thought.

Those who oppose judicial review outright might be forgiven for feeling a little schadenfreude at the Supreme Court’s recent s. 2(d) decisions. They told us so, after all. But there are ways to undo the Court’s mistakes, or at least to mitigate their effects. Invoking the notwithstanding clause, and thus effectively conceding the naysayers’ point, is not a good idea. But better litigation tactics, efforts to educate lawyers and judges, and even constitutional amendment might all work, albeit less quickly and less certainly than the override. They are worth a try.

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Léonid Sirota teaches constitutional law at the AUT Law School in Auckland, New Zealand. He blogs at doubleaspectblog.wordpress.com / Léonid Sirota enseigne le droit constitutionnel à la AUT Law School à Auckland, en Nouvelle-Zélande. Il est l’auteur du blogue doubleaspectblog.wordpress.com.

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