By Mark Mancini, January 25, 2024
Forty-some-years after the inauguration of Canada’s Charter and Rights and Freedoms, one phenomenon—good or bad—is evident. The Charter empowered judges to make decisions that previously would have been the subject of political contestation.
Medical assistance-in-dying, prostitution, and the right to strike are all innovations of a Supreme Court purportedly interpreting various provisions of the Charter. This grant of authority to judges was not accidental. The framers must have thought that the judges would interpret the Charter as common law judges would when they envisioned the judicial resolution of rights disputes. While this judicial resolution would inevitably invite tough moral questions (what is freedom of expression?) the task of interpretation would be cabined by precedent, the common law method, and the reality that disputes arise in an adversarial setting.
The Supreme Court’s recent decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 [CSFTNO] suggests a different, expanded judicial role, one that sees the Charter as a set of imperfectly-realized ideals rather than self-contained protections. This expanded role is assumed with little argument or explanation. This is unfortunate, especially if the Court wishes to uphold the perception that it is interpreting the Charter, rather than interpolating a better one.
In the Court’s recent case, a group of families applied to a Minister to allow their children to attend minority language schools offering instruction in French in the Northwest Territories. The Minister denied the application because on the terms of s.23 of the Charter, which guarantees minority language education to certain qualified rights-holders, the families did not have a constitutional right to that education. Section 23 is a unique right in the Canadian constitutional landscape. It carries a positive obligation on governments to provide minority language education where numbers warrant; and it is a collective right in nature.
The Court, sitting as seven, endorses the proposition that the Minister was required to consider the Charter values underlying s.23, even though s.23 did not apply. To be clear—the decision of the Court is not that the Minister must abide by s.23 even where it does not apply. Rather, it is the imposition of a “duty to consider” Charter values even where the Charter provision does not apply. This duty could arise in a range of instances: not only where the Charter does not apply, but also where the Charter value is not argued by any party.
What is wrong with this? First, the Supreme Court has sometimes appreciated that the text of Charter provisions—agreed upon through a remarkable process of compromise and give-and-take—is the object of interpretation. In its decisions in Quebec Inc and City of Toronto, the Court has said that “[a] purposive interpretation of Charter rights must begin with, and be rooted in, the text” ( see e.g. City of Toronto, at para 14). Note that this does not mean literalism. Rather, while the reasons why a constitutional provision was enacted—its purposes—are important, they cannot extend beyond the semantic meaning of the text. Rather, they are used to understand that text. We use purpose to determine (1) what motivated the enactment of a Charter provision; (2) to decide between competing interpretations, one of which may better fulfill the purposes of the provision, if this interpretation is available.
This appreciation is oddly missing from the CSFTNO case. Justice Côté notes that, because “Charter values are inseparable from Charter rights, the choice made by the framers to entrench certain rights in the text of the supreme law of Canada means that the purpose of these rights is important for Canadian society as a whole and must be reflected in the decision-making process of the various branches of government” . This suggests a different posture; one under which the purposes (values?) underlying rights carry freestanding force that may stretch beyond the semantic boundaries of the text. In other words, the never-articulated-but-assumed values behind the words can overcome the words on the page.
Section 23 provides a compelling example of the consequences of this approach. According to the Northwest Territories Court of Appeal, Section 23 was “carefully crafted to give a narrow bundle of rights to a defined sub-population of Canada” (NWTCA Case, at para 57). Perhaps more than other Charter provisions, the choices evident in the text mean something. Section 23 draws precise lines of eligibility “which inevitably means that ‘hard’ cases will arise falling on one side of the line or the other” (NWTCA Case, at para 9). By seeing the purposes of rights as strongly binding normative constraints, the Court has implicitly suggested that the precisely written lines of eligibility in s.23 are less important than the values that might seem to undergird them, and it has thrown doubt on its cases suggesting otherwise.
Second, the prospect of a court ruling on the application of Charter values without argument or a record is concerning. This possibility was raised by the Federal Court of Appeal in its recent decision in Sullivan. There, the Court of Appeal—interpreting CSFTNO—says that it simply cannot be that the Supreme Court was endorsing palm-tree justice, which amounts to the proclamation of the law based on the “vibe of the thing” rather than any legal authority. And yet this appears to be one plausible way to understand CSFTNO. If Charter values can be raised in court for the first time even where a Charter right is not directly relevant, courts will be asked to work out the scope of the Charter’s protections without a grounding in particular circumstances or cases. Judicial review could become something far more akin to a philosophical investigation of the conflicting interests at the heart of every Charter provision, rather than an interpretation of the text that arises in a real-life case.
And finally, this leads to the central mystery: what is a value? In CSFTNO, the Court attempts to meet this challenge by suggesting that “Charter values are those that ‘underpin each right and give it meaning’ (CSFTNO, at para 75). What does this practically mean? The Court does not explain.
This lack of explanation is particularly troubling considering the accepted method of interpretation outlined in City of Toronto and Quebec Inc. Is a value the same as a purpose? Under the current situation, values appear to carry strong normative weight, and purposes do not, which suggests that they are different. But the definition of values provided in CSFTNO appears to be the exact same as a plausible definition of “purpose.” We simply do not know how to source Charter values, whether the set is endless, and whether—as some scholars have suggested—new values can be interpolated from time to time. If the special context of s.23—its unique nature—calls for this approach, we might have expected the Court to say so. No such explanation was given.
Those that attempt to defend the court’s decision to uphold Charter values as relevant and powerful in the CSFTNO case might claim that an attack on the relevance or power of Charter values is an attack on the Charter itself. This criticism is misguided. For one, the Charter values framework could very well distort the Charter. In some cases, as in CSFTNO, it will actually impose a constraint on decision-makers where the Charter does not; but in other cases, it can be a device through which decision-makers can expand their constitutionally limited powers at the expense of the Charter’s defined rights, worked through by courts since 1982. For those inclined to see Charter values as the handmaiden to “progressive interpretation,” it may work out that way; but it may not.
Making a constitution, especially a bill of rights, is messy business. It involves compromise and reducing abstract norms to a text. That text will imperfectly capture those norms, either by mistake or by design. Indeed, it is unavoidable that a bill of rights will not perfectly encompass purely distilled, abstract norms or values, instead choosing to qualify or extend them. The Supreme Court’s decision in CSFTNO suggests that these choices of qualification or extension are not as important as the values themselves. But these second-order questions go to the reach and scope of the Charter, an issue that must have been on the minds of the framers. The Charter’s legitimacy is very much in the hands of judges, but that duty is not without strings, and one of those strings is a requirement to explain and justify departures from long-standing practice. CSFTNO fails to do this.
Mark Mancini is a PhD candidate at the University of British Columbia, Peter A. Allard School of Law and a senior fellow at the Macdonald-Laurier Institute.