A practical lawyer might wonder whether there is any point criticizing decade-old precedents. I’d respond with T.S. Eliot’s observation that there are no lost causes because there are no gained ones. If we are in for a period of extended Conservative rule (and I suspect we are), we are going to have a different kind of judicial politics, more like that in the US. Partisan affiliation will become less important for patronage reasons, and more important for ideological reasons. Anyone who observes Canadian constitutional law will see waves of advance and retreat for the cause of judicial supremacy. The Motor Vehicle Act Reference is ultimately followed by Rodriguez (but then by Chaoulli). Oakes leads to Edward Books, Andrews to Law, and Provincial Court Judges’ Reference to Imperial Tobacco. Who knows what will happen with Christie? Whatever happens, the issue of the underlying legitimacy of Lamer’s coup is unlikely to die.

Anyway, in this country, we inherit the tradition of the United Empire Loyalists, and should not be afraid of being identified with lost causes.

I don’t think “incrementalism” and “originalism” are necessarily in conflict, since I think of both –at least in their defensible forms — as counsels of caution, rather than decision rules that will render determinate answers. I wouldn’t start with either, but with the question of the legitimacy of the judicial role. The need for judges arises out of the social need for a definite answer to legal conflicts. That’s the source of the obiter/ratio distinction, as well as of the virtue of incrementalism. Judges act with authority to the extent they say what is necessary to resolve a specific legal dispute. (References complicate things, but this is already too long for a comment, so I’m not going to pursue that point.) They should pick the narrowest (least controversial, least disruptive of settled expectations) grounds to fulfill this function. To the extent possible, they shouldn’t comment on anything else, but if they do, they are no longer acting within their authority.

Originalism, in a defensible sense, is just respect for the deal reached by the principals. Part of that deal, no doubt, was to give the courts a large amount of discretion and power. But a court misues its finality to seize more power than it was granted.

I suppose if time makes a revolutionary act a sufficiently settled part of the social order, it becomes pointless to oppose it. Most days, I have given up on trying to restore the Jacobite line, for example. I don’t think we are there yet with “unwritten principles.”

The SCC is entitled to say what must be binding on an inferior court. However, it can’t prevent an inferior court from adopting its own rule that it will treat, as binding, dicta of the SCC which aren’t formally binding under standard stare decisis rule.

So, if we want, we can say that the Ontario Court of Appeal, at least, has decided it will be bound by considered dicta of the SCC even if those were not strictly necessary to the conclusion in the SCC case that contains the dicta. Again, Ottawa v. Nepean Township, [1943] 3 D.L.R. 802 at p. 804 (C.A.): “What was there said may be obiter, but it was the considered opinion of the Supreme Court of Canada and we should respect it and follow it, even if we are not strictly bound by it.” In R. v. McKibbon (1981), 34 O.R. (2d) 185, 61 C.C.C. (2d) 126 (H.C.J.), affd 35 O.R. (2d) 124, 64 C.C.C. (2d) 441 (C.A.) the trial judge stated that the same principle applies between the Ontario Court of Appeal and lower Ontario courts.

Finally, don’t forget this poignant comment from Krever J, (as he then was). He wrote that it “ignores reality” to expect that a trial judge will use very technical principles of stare decisis to avoid applying what seems to be the Court of Appeal’s current thinking on some issue of law, even if it is expressed as an obiter comment: Woloszczuk v. Onyszczak (1977), 14 O.R. (2d) 732 at p. 739, 74 D.L.R. (3d) 554, 1 C.P.C. 129 (H.C.J.).

On the other hand, recent comments by the BCCA in Hutchings v Dow – and as you’ve mentioned Christie v BC – and the Ont CA in Barker v Montfort Hospital might make some wonder to what extent the current generation of judges, in at least those courts, feel bound by what the SCC says. But, that’s a question for another day and another thread. (Actually, it’s one I might well take up at some point on this board. But not today.)

Anyway, we’re back to one of my favourite passages – what Humpty Dumpty said to Alice in Looking Glass. Ultimately, it’s who is master. In this, the appellate courts are masters of their own domain.

Cheers,

If you’re going to rely on R v Henry, [2005] 3 S.C.R. 609, 2005 SCC 76, then use it for what it actually says. Don’t use it the way the SCC said people were improperly using Sellars.

As ever, Binnie J carefully constructed an ambiguity and left a loophole which can’t have been an accident. “[54] From time to time there have been statements of some members of this Court that have been taken to suggest that other courts are bound by this Court’s considered ruling on a point of law, even a point not strictly necessary to the conclusion.

What’s “not strictly necessary” to the conclusion is in the eye of the beholder. If you don’t recall why that’s so, recall the Peda and Binus dance in the SCC.

And, bear in mind that a decision can have more 2 or more independently sufficient ratios. See, for example, Walker v York Finch Hospital; something that the SCC seems to have overlooked in Resurfice v Hanke.

In any event, we’re heading back on the road to the “you say tomayto, I say tomahto” shtick. Or, the Monty Python argument skit – and neither of us are getting paid for this (and, changing skits, I don’t know about you, but my silly walk isn’t adequate. Nonetheless, I’m using it to leave.)

Cheers,

If you were right that there’s a paradox, which you’re not, it would be Zeno’s.

Every time we change any part of what makes up the whole of the Canadian system of law, we change the baseline for what is or isn’t an incremental change the next time the issue arises.

As to whether the decision in the Provincial Court Judge’s Reference – remember there’s no majority the second time around: the rehearing was unanimous – was right or wrong based on principles: you can claim that all you want. Unfortunately for your side of the argument, you don’t have the last word.

Also, even accepting, for argument’s sake, the possibility that your view of the correct answer is what should have been the decision in the Provincial Court reference, the incrementalism doctrine necessarily means that that view may no longer be correct. The content of Canada’s constitutional system may have changed sufficiently since then that the decision would now be correct, if made now.

Given that you seem to accept the validity of the incrementalism doctrine, you are hoist by your own petard.

‘Originalism’ and ‘incrementalism’ theses are, at their roots, in conflict. You are, it seems to me, arguing for some sort of combined ‘originalism’
(borrowing the US term, though not necessarily its content) and ‘incrementalism’ doctrine, with certain areas of the structure of the
Canadian polis permanently fixed in some state, and protected from the barbarian hordes of incrementalism by the sancrosanct walls of originalism.
Cute argument. The problem is that it lost, at least for the content that you claim should be behind the walls.

I’m out of this thread. The last word is yours, should you wish it.

The answer to your question lies in stare decisis.

In Christie v BC, starting at para 63, the BCCA majority engaged in the time-honoured pratice of distinguishing prior cases by defining the specific aspect of some principle which the earlier binding case dealt with, and then stating that the issue in the present case wasn’t dealt with explicitly or by implication in the prior case. If one thinks the BCCA postulated a distinction without a difference, then, as you say, it all but-overruled, which it can’t do. If one agrees that the BCCA pointed to what could be a valid distinction – even if one prefers the argument that it is not – or what is, for whatever reason, then the BCCA didn’t over-rule it all. It applied proper techniques of stare decisis.

You may think that’s casuistry; however, that’s what judges get paid to do.

So, for example, we see at para 66 “This was the extent of the Court’s analysis on the rule of law. Since no issue regarding access to justice arose, no mention was made of that principle as a component of the rule of law, or to the Court’s reasoning in B.C.G.E.U.”; at para 67 “Taken at face value, Imperial Tobacco would appear to” preclude Christie’s challenge and as “There would seem to be no basis on which to challenge such legislation “based on its content”; BUT then the kicker is para 68 “With respect, however, the reasons given by the Court do not extend to the problem of access to justice with which we are concerned.”

And, finally, there’s para 72.

[72] Finally, as I have already mentioned, Imperial Tobacco did not concern access to justice and the Court did not mention B.C.G.E.U. I would be very reluctant to conclude that the Court intended to overrule it, or to disapprove the well-known reasoning of Dickson C.J.C., without clear words to that effect. And, although B.C.G.E.U. relied on the inherent power of the court to protect its process by the power of criminal contempt, I have little doubt that had the Court been dealing with a statutorily-required closure of the courts, the enactment would have been struck down. I say this, of course, subject to any argument that might be advanced by the Province in another case in favour of “reasonable limits” on access to justice under s. 1 of the Charter. Again, no such argument was advanced in this instance.

There’s an explict statetment that of the majority’s view that the Christie issue was not dealt with in Imperial Tobacco explicitly or by necessary implication. (And, it’s implicit in para 72 that the BCCA majority would have said that anything in Imperial Tobacco that might hint something helpful to the BC gov’t, in Christie, would have to be seen as obiter. Remember that because I’ll mention it later.)

So, what you have is the majority saying that Imperial Tobacco does not explicitly deal with the issue in Christie nor does it deal with it by necessary implication. So, it’s open to the BCCA to make a decision which has a different result than that in Imperial Tobacco – strike down the statute.

If you accept that characterization of Imperial Tobacco, you have your explanation. If you don’t, you have Southin JA’s view.

Now, let’s go back to the obiter point. I mention that because some judges of the BCCA seems to be quite willing to take a more expansive view of what’s obiter in SCC judgments – and the binding status of SCC statements of law, if obiter – than perhaps the SCC would. A very recent example of this is the BCCA’s judgment in Hutchings v. Dow, 2007 BCCA 148 (CanLII) where, at para 19, a panel said that the SCC’s pronouncements of material contribution in Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7 were obiter. The Resurfice comments are many things, but not obiter. However, even if they are obiter, the SCC in R v Sellars, almost 30 years ago, said that all of its pronouncemnts of law are binding on courts below, even if obiter. Sellars v. R., [1980] 1 S.C.R. 527 at pp. 529-30, 110 D.L.R. (3d) 629 the SCC quoted with approval Ottawa v. Nepean Township, [1943] 3 D.L.R. 802 at p. 804 (C.A.) this comment by the Ont CA: “What was there said may be obiter, but it was the considered opinion of the Supreme Court of Canada, and we should respect it and follow it, even if we are not strictly bound by it.”

Of course, one might tell the SCC that that statement in Sellars was, itself, obiter, however I wouldn’t.

I think there is a very interesting move in the passage from the Secession Reference you are quoting.

Would Dicey and Blackstone have disagreed that there are “unwritten postulates that form the very foundation of the [British] Constitution”? Yes. Would they say these principles were binding on both Parliament and the courts? Yes. Would that imply that the courts could invalidate a statute passed by Parliament if the courts thought the statute contrary to those principles? No.

A rule can be binding on an agent either internally or externally. The Supreme Court is “bound” to apply a hierarchy of relevant legal sources when it decides a case. But if a litigant thinks they have failed to do so, she is out of luck — there is no other body that she can appeal to. They are not final because they are infallible — they are infallible because they are final.

If we are to have a closed system of positive law, at least one body must be final in this sense. In the British constitution, when it comes to the enactment of laws, that body is the Queen-in-Parliament. Blackstone and Dicey would both have insisted that the Queen-in-Parliament is obliged to follow the unwritten postulates of the constitution, but that obligation is internally binding. By enacting a statute, the Queen-in-Parliament is coming to a judgment that the statute is consistent with the unwritten constitution, and that judgment is not reviewable.

There is no point complaining about the existence of a body whose judgment is not reviewable. That’s just life. Either Parliament’s judgment is unreviewable or the final court of appeal’s judgment is unreviewable. For Dicey and Blackstone, it was preferable that the unreviewable body be Parliament.

Before Confederation, the same system applied to the colonies, except that imperial statutes were paramount over colonial ones. So the courts had the power to consider a colonial statute of no force and effect to the extent it conflicted with the imperial statute. That was the basis of judicial review under the BNA Act. It was, in principle, a corollary of the sovereignty of (the imperial) Parliament. Subject to the BNA Act, though, the federal and provincial legislatures are sovereign within their sphere. Again, they inherit unwritten postulates from Britain — but they are the final interpreter of how those postulates apply to new legislation. On the other hand (and especially once reservation and disallowance fall into disuse), the courts are the final interpreters of the imperial statutes which make up the written constitution.

The English courts have always referred to the unwritten constitution in interpreting legislation or disciplining executive action, and the Canadian courts followed them. It’s just that they accepted that their judgment of what the unwritten constitution might require was bound by the clear intent of Parliament, just as lower courts are bound by the precedents of higher courts.

Eventually we get to 1981-1982. In the Patriation Reference, 7 out of 9 judges made it perfectly clear that only the written constitution could legally restrict legislative sovereignty. The 1982 deal sets out exactly what texts count as the written constitution, and how they may be amended. As a critical part of the final deal, judicial review under much of the written constitution is subject to the notwithstanding clause. Unwritten principles continue to exist, but they play the role they have under the British and then Canadian constitution — used by the courts in statutory interpretation and administrative law, binding internally on the legislatures in making enactments.

Is the Manitoba Language Rights case inconsistent with this (I would argue universal) understanding? I don’t think so, because while it involved reference to the “rule of law” as a value, it did not purport to make it an independent basis for the courts to strike down any statutes.

On the other hand, the Provincial Court Judges case is revolutionary because it places the Court, rather than Parliament and the legislatures, as the final interpreter of the unwritten constitution. And it does so by confusing the issue of being internally bound by a rule and being externally bound by it. (That confusion is evident in the passage from the Secession Reference you quote.) The Secession Reference compounds things by using “unwritten principles” to overturn the very amending formula set out in Part V.

Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have “full legal force”, as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. “In other words”, as this Court confirmed in the Manitoba Language Rights Reference, supra, at p. 752, “in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada”.

“Only change the law incrementally” can’t be a bright-line rule or meta-rule. It is more in the nature of a counsel of judicial prudence. You could call the reason for this counsel of prudence “politics” if you want, or just a consequence of the limits of legitimacy of the judicial role.

The case for judicial prudence is particularly strong when monkeying about with a fundamental structural aspect of our constitution, like legislative supremacy within the bounds of the written constitution. When Canadians adopted the 1982 Constitution, those opposed to any judicial review of legislation obviously lost. But part of the overall deal were certain constraints — judicial review was to be interpretive of the written text, and, for the most part, subject to the notwithstanding clause. Further amendment of the Constitution was reserved for the process in Part V.

My claim is that in the Provincial Court Judges’ Reference, the majority violated those constraints.