Whither (not wither) the Supreme Court

The End of the Charter RevolutionTo mark the beginning of 2015 and the publication of his new book, The End of the Charter Revolution: Looking Back from the New Normal, Peter J. McCormick provides a list of the "greatest hits" of the Supreme Court of Canada in 2014, highlighting the trends and pointing out what was "judicially hot" this past year. He also explains how the lack of new Charter cases supports the main argument of his book, and elaborates on his use of the phrase "the end of the revolution."

This is the time for assessing the “greatest hits” of the past year in many categories, so: what have been the Supreme Court’s greatest hits of 2014? Without suggesting any order other than the chronological, the candidates for a “greatest decision” list would surely include:

  • R. v. Summers 2014 SCC 26 (pre sentencing credit) criminal law
  • Reference re Supreme Court ss. 5 & 6 (Nadon) 2014 SCC 21 federalism
  • Reference re Senate Reform 2014 SCC 32 federalism
  • Canada v. Harkat 2014 SCC 37 Charter
  • R. v. Spencer 2014 SCC 43 (Internet/privacy) Charter
  • Tsilhqot’in Nation v. British Columbia 2014 SCC 44 First Nations
  • Grassy Narrows First Nation v. Ontario 2014 SCC 48 First Nations
  • R. v. Hart 2014 SCC 52 (the “Mr Big” case) criminal law
  • The BMO trilogy 2014 SCC 55/6/7 federalism
  • BC Trial Lawyers 2014 SCC 59 constitution/courts

These cases engage the three “big” areas of Canadian law going forward: federalism issues, First Nations issues, and criminal law issues. This is where the judicial action is today, so markedly so the McDonald-Laurier Institute awarded the Supreme Court the (presumably unwelcome) title of “Policy Maker of the Year.”

Federalism is the hottest of these issue areas, if only because it prompted an unusual display of public animosity between Prime Minister and Chief Justice. Several years ago, Bruce Ryder (SCLR Vol 54 2011) could list twenty-five Supreme Court decisions on federalism since 2000; we have since added major cases like PHS Community Services and the Security Act Reference. The Harper government is committed to “open federalism” (their label) involving first, federal disentanglement from areas of provincial jurisdiction (like Medicare); and second, vigorous exercise of exclusive federal jurisdiction (like securities regulation). The vanishing of the once-frequent First Minister’s Conference exemplifies this new approach. The Court, on the other hand, supports a flexible federalism emphasizing cooperation and consultation, which it facilitates by allowing federal and provincial regulation to co-exist without too punctilious a concern for inter-jurisdictional immunity or federal paramountcy.

First Nations issues are judicially hot as well—every year sees significant cases dealing with aboriginal rights and title. Give that “aboriginal rights” are now entrenched in the constitution, this is hardly surprising—but only the phrase itself has been entrenched, leaving the Supreme Court with the heavy lifting of assembling the substantive content. This has not been an uninterrupted process—the two Marshall cases of 1999 were an embarrassing stutter step—but there has been an expanding notion of what aboriginal rights and aboriginal title actually mean, and what duties this creates for governments. These ideas are encapsulated in telling new phrases like “the honour of the Crown,” a term judicially invented in 1990 that now pervades the jurisprudence. An appeal being on the way about what federal government obligations with respect to Metis and non-status Indians follow from S. 91.24 of the Constitution Act 1867 (how is it that this question has never arisen before?), more drama is guaranteed. Similarly, federal ambitions to make Canada a “major energy power” (despite the recent slump in oil prices) involved pipelines from Alberta in several directions, crossing many First Nations territories in the process, which promises candidates for “judicial greatest hits” for years to come.

Criminal law cases also feature on the list. There has been a collision between the federal government’s tough law and order approach and the Supreme Court’s understanding of the principles that underlie the criminal law—but one that is often conducted in precisely these terms, without engaging the Charter. The federal government’s refusal to submit its new prostitution legislation in a reference to the Supreme Court may in part stem from its reluctance to accept another extended lecture on this front.

But there is an obvious gap in the “greatest hits” list—where are the Charter cases? Of my top ten, only two engage the Charter—Harkat raising national security issues and Spencer involving the Internet and privacy rights. A decade ago, my top ten would have included seven Charter cases (eight if you count the Same Sex Marriage Reference, where the Court found it “not necessary to answer” the Charter question); a decade earlier, the top ten included eight Charter cases. But in 2014, there are only two such cases and—just as striking—neither rights claimant was successful. Today, we see fewer Charter cases, and those are not staking out new ground, an argument unfolded at greater length in The End of the Charter Revolution.

The major reason for this is the simple fact that the novelty of even major constitutional change must at some point be exhausted. In 1982, everything about the Charter was new; the conceptual map was covered with question marks, modern equivalents of the medieval map label “here there be all manner of strange beasts.” It took years to work through those questions, the more so when some of the answers (like Law on s.15) simply created more questions. (“Comparator groups” anyone?) Gradually, there are fewer and fewer such questions, fewer if any corners where big strange beasts might still be lurking.

A second reason, even more basic, is that the whole judicial project is about reducing legal uncertainty and maximizing predictability. Absent major destabilizing legal initiatives—such as the 1982 constitutional changes themselves—this is a process that steadily trends away from (exciting) uncertainty toward (more mundane) predictability, and this is what has happened to the Charter. To be sure, Fraser has taken freedom of association back into confusion with respect to collective bargaining, and the post-Amselem brave new day of religious freedom is proving less robust than we once thought as well—but the trend is clear. Revolutionary transformation gradually turns into regularized equilibrium, which I have called “the new normal.”

There are two things that I definitely do not mean by “the end of the revolution.” First, I do not imply a counter-revolution that turns back the clock by methodically erasing the changes the Court has wrought in the name of the Charter. My point is simply that the Charter as a major transformative instrument has pretty well played itself out; what is left is details and second-order issues. To picture Charter impact in graphical terms, I describe a curve that has leveled off, perhaps sagged a little, but not one that has suddenly gone into dramatic reverse.

Even more important, I do not suggest for a moment that this development brings down the curtain on the powerful high profile Supreme Court we have come to take for granted; far from it, and the “greatest hits” list that led off this blog entry makes the case. The Supreme Court today is a major national institution willing and expected to chime in on the major political issues and controversies of the day. This is a new development—fifty years ago, Cheffins could without irony describe ours as “a quiet Court in an unquiet country”—but I believe it is an irreversible one. The Charter may have accelerated the rise of this new Supreme Court, but it will no longer be a major part of the story going forward.

For a professor whose marquee course was “The Constitutional Law of the Charter,” this is profoundly disappointing. For years there was no worry about students thinking of constitutional law as dusty and unchanging when every month saw a controversial new Charter decision; no problem stirring class debate when the same issues were in the daily news; no trouble keeping their attention when we parsed recent Supreme Court decisions for ideas of what might happen next. It has not been like that for some time. In a time of consolidation, clarification, even modest retreat, the Charter remains an important story, but no longer one that sells itself.

Not to worry—next year I will be teaching “The Constitutional Law of Federalism,” riding the new wave, all the more so if I can work some First Nations material into the outline. The Charter Revolution is over; long live federalism!

-Peter J. McCormick, University of Lethbridge

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