In search of prophylactic rules.

• Author: Plaxton, Michael

Prophylactic mies are laws created by judges to prevent violations of the constitution. Unlike constitutional rules, prophylactic rules have no constitutional status of their own. Legislatures can repeal or alter prophylactic rules, provided they devise alternative strategies for meeting the requirements of the constitution.

While the United States Supreme Court has recognized prophylactic rules, the Supreme Court of Canada has yet to do so. Nevertheless, the Supreme Court has created unacknowledged prophylactic rules. Examples include the Court's requirement for a search warrant regime in Hunter v. Southam Inc. and its demand for independent provincial judicial salary commissions in R. v. Campbell. In both of these cases, the Court appears to have conflated prophylactic mies with constitutional requirements.

By failing to distinguish between constitutional and prophylactic rules, the Court has introduced confusion into several areas of constitutional law. The Court has also denied the role of Parliament and the provincial legislatures as co-interpreters of the constitution. Recognition of prophylactic rules would allow for more meaningful "dialogue" between courts and legislatures--if only in the long term.

Les regles prophylactiques sont des lois creees par les juges afin d'eviter des violations a la constitution. Cependant, contrairement aux regles constitutionnelles, les regles prophylactiques n'ont pas de statut constitutitionnel propre : le pouvoir legislatif peut les abroger ou les modifier, a condition de prevoir des strategies alternatives qui repondent aux exigences de la constitution.

Bien que la Cour supreme des Etats-Unis ait reconnu l'existence des regles prophylactiques, la Cour Supreme du Canada ne lui a pas encore emboie le pas. Pourtant, une analyse attentive des jugements de cette derniere nous indique que la Cour a deja cree des regles prophylactiques, sans les reconnaitre comme telles. C'est notamment le cas du regime de mandats de perquisition dans Hunter v. Southam Inc. et de l'exigence d'une commission independante sur les salaires juridiques provinciaux dans R. v. Campbell. Dans les deux cas, la Cour a presente ces regles prophylactiques comme des essentiels constitutionnels.

En ne distinguant pas les regles constitutionnelles des regles prophylactiques, la Cour a fait naitre la confusion dans plusieurs domaines du droit constitutionnel. La Cour refuse du meme coup au Parlement et aux assemblees legislatives provinciales leur role legitime d'interpretes de la constitution. La reconnaissance des regles prophylactiques permettrait un "echange" plus constructif entre cours de justice et corps legislatifs--ne serait-ce qu'a long terme.

Introduction I. Constitutional Rules and Prophylactic Rules II. Search Warrants and Disclosure III. Unwritten Rules, Unnecessary Prophylactics, and Campbell IV. Disposable Rules V. Dialogue and Elocution Conclusion Introduction

The United States and Canada are very different in constitutional structure, history, and culture. For that reason, Canadian jurists, judges and lawyers should exercise caution when attempting to use American constitutional jurisprudence to settle Canadian constitutional problems. It might behoove Canadian jurists, however, to occasionally look to American legal scholarship and case law for concepts that help bring order to constitutional thinking, even if the substance of American case law remains something to approach warily for the purposes of transplantation.

The idea of prophylactic rules, as distinguished from constitutional rules, belongs in this category of concepts that deserve a second look. Lately, there has been a great deal of chatter in Canadian legal scholarship (as well as in the popular press and legislative assemblies) about judicial activism and whether or not the Supreme Court of Canada engages in it. More pronounced attention to prophylactic rules in Supreme Court decisions would do much to alleviate those concerns--if only in the long term.

This paper begins by briefly explaining the distinction between constitutional rules and prophylactic rules. It follows with an analysis of five cases in the Supreme Court canon: Hunter v. Southam, (1) the Provincial Court Judges' Reference, (2) R. v. Taillefer, (3) R. v. Prosper, (4) and R. v. Mills. (5) In all five cases, the Supreme Court could have facilitated greater "dialogue" with the legislature by distinguishing constitutional rules from prophylactic rules in its reasoning. By failing to use the concept of prophylactic rules, the Court has not--despite its frequent invocation of the dialogue metaphor--done nearly enough to help the other branches of government discharge their responsibilities as constitutional actors, and charges of judicial activism are inevitable.

1. Constitutional Rules and Prophylactic Rules

   When the Supreme Court says that the constitution requires the state and its agents to do something, the Court makes one of two claims. It either claims that the constitution requires the state to take a particular course of action, or it claims that the constitution requires the state to achieve a certain state of affairs and that the government must take the step in question in order to reach that constitutional end. If the government can achieve the constitutional goal through only one course of action, the constitution requires the state to take it; there is, in effect, an implied provision in the constitution directing the government to take that step. (6) If, however, the course of action is just one of several possible strategies for achieving the constitutional end, the rule enunciated by the Supreme Court does not count as a constitutional rule. Its authority stems not from the constitution, but from the Supreme Court's law-making authority. (7) The directive has no constitutional status per se, since Parliament could substitute a new strategy for that devised by the Court without necessarily breaching the constitution. It has constitutional significance, though, since it cannot simply be abolished or ignored; doing so would leave the state without any means of fulfilling its obligations under the constitution. (8) Unless and until the state creates an alternative strategy for achieving its constitutional ends, the state must respect the directive issued by the Court--not because the Court's strategy is superior to any and all other possible mechanisms, but because the constitution will not permit a strategic vacuum. The rule, issued by the Court in recognition of the state's constitutional responsibilities, is not a constitutional rule, but a prophylactic rule--"prophylactic" since it acts as a barrier against the sort of strategic vacuum that would compromise constitutionality. (9)

   Much hangs on the distinction. If a provision of the constitution--whether written or implied (10)--requires the state to adopt a certain specific course of action, the state must do so no matter how inconvenient the application of that rule may be in certain situations. Unless the courts subsequently "discover" that the constitution says something different--either that the courts were wrong to initially interpret the constitution as they did or that the content of the constitution has changed--the rule remains static. As the accepted last word on matters of constitutional interpretation, the judiciary would effectively assume jurisdiction over any decisions concerning the survival or manipulation of the rule. The government might amend the constitution to permit or mandate a different rule, or it might, if the rule ostensibly lurks in certain provisions of the Canadian Charter of Rights and Freedoms, (11) use the notwithstanding clause. Barring such extraordinary measures, however, the final say on the issue resides with the judiciary. Furthermore, if the Supreme Court enunciates the rule, only that Court can change it. Lower courts might be obligated to apply a poorly crafted rule for many years before the Supreme Court has an opportunity to reconsider its original formulation.

   A prophylactic rule, on the other hand, because it is not itself mandated by the constitution, can be tweaked to fit changing circumstances or situations not envisioned when the rule was first devised. (12) Such a rule, as a creation of the courts, is in a sense common law (or "constitutional common law" (13)), making it subject to abrogation by an ordinary Act of Parliament. Should Parliament find a better mechanism to protect constitutional interests, it may sweep away the judicially crafted rule and substitute its own. Those unhappy with the court's rule can seek to resolve the matter through political processes rather than litigation. Meanwhile, lower courts, confronting cases not contemplated by the Supreme Court when it originally created the rule, need not wait for the Court to overrule itself or qualify its earlier holding. They can simply note the changed or unanticipated circumstances and do their best to craft an appropriate exception. (14)

   Both the Supreme Court and the constitution itself benefit when the Court-confronted with a situation crying out for a revised prophylactic rule--need not claim that the constitution has changed, or that the Court misinterpreted the constitution the first time around. When one recognizes that constitutional law includes both constitutional rules and prophylactic rules, constitutional law appears more flexible and more democratic. And yet, in Canadian constitutional scholarship, one seldom sees any mention of prophylactic rules or any suggestion that there might be different kinds of judicially created rules. (15) This has resulted in much confusion and perhaps some needless argument concerning the proper role of courts in a democracy.

   Before this paper goes any further, a word of clarification may be in order. There is some question as to whether the judiciary has the legitimate authority to create prophylactic rules, since this is...