Parliament and the courts -- who's legislating whom?

• Author: Kaye, Philip

Philip Kaye is a Research Officer in the Legislative Research Service of the Ontario Legislative Library. This paper was originally prepared for delegates to the 37th Canadian Regional Conference of CPA held in Toronto in July 1998.

In early 1998 the Supreme Court of Canada in Vriend v. Alberta referred to the continuing "debate" over the legitimacy of the courts invalidating legislation. This paper looks at two opposing views on this issue. One side argues that the courts have a key responsibility to protect the rights of Canadians within a system of constitutional supremacy. The other side argues that the courts have inappropriately come to act as legislators. Among other things the paper looks at the role of the courts as protectors of "democratic values"; the approach the courts should take in the case of omissions from legislation; and the general nature of the relationship between courts--especially the Supreme Court of Canada--and legislatures under the Charter of Rights. Is it appropriate, for instance, to characterize that relationship as a "dialogue"?

The Canadian Charter of Rights and Freedoms (section 1) guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

This section contemplates a two-stage process for the judicial review of legislation under the Charter. In the first stage, the court must determine whether the challenged law infringes a guaranteed right or freedom. If the court finds that no such infringement has occurred, the inquiry under the Charter ends; however, if a right or freedom has been violated, the court proceeds to the next stage.

In this next stage, s. 1 of the Charter is invoked. The court must decide whether the violation is a reasonable one that can be demonstrably justified in a free and democratic society. If the test of justifiability (explained below) is met, the law will be saved. Otherwise, the court may choose, as one remedy, to strike down the provisions in question. (1)

The Supreme Court has laid down four criteria to be applied during the second stage--that is, for determining whether an infringement of the Charter can be justified in a free and democratic society. (2) These criteria, especially the fourth one, have been expressed by the Supreme Court in very general language. They first took shape in 1986 and may be categorized in the following way:

Objectives: The challenged law must pursue an objective that is sufficiently important to warrant overriding a Charter right. At a minimum, the objective must relate to concerns which are "pressing and substantial" in a free and democratic society;

Proportionality: If a sufficiently significant objective has been recognized, the following so-called "proportionality test", containing the second, third, and fourth criteria, must be satisfied:

Rational Connection. The law must be rationally connected to the pressing and substantial objective--in other words, it must be carefully designed to achieve it. Under this criterion, the law cannot be arbitrary, unfair, or based on irrational considerations;

Minimal Impairment. The law should impair "as little as possible" the right or freedom in question. The idea is that the least drastic means should be used to pursue the legislative objective; and

Proportionate Effect. There must be proportionality both between the objective and the "deleterious effects" of the statutory restrictions in question, and between the "deleterious" and "salutary effects" of those restrictions. This requirement necessitates a balancing of the objective sought by the law against the infringement of the civil liberty. It asks whether the contravention of the Charter is too high a price to pay for the benefit of the law.

Professor Peter Hogg has written that nearly all s. 1 cases have centred upon the third criterion above: is the Charter right impaired no more than is necessary to accomplish the legislative objective?

As mentioned earlier, upon finding a violation of the Charter which is not upheld by s. 1, the court may strike down the offending legislation. The declaration of invalidity might take effect immediately or it might be suspended to give the Legislature an opportunity to bring the impugned provisions into line with the Charter. (3)

One of the other remedies invoked by the courts has been described as "reading in". The power to "read in" is a relatively recent remedy, having been enunciated for the first time by the Supreme Court of Canada in 1992 in Schachter v. Canada, (4) which was a case involving parental benefits under the Unemployment Insurance Act. The Supreme Court derived this remedy from s. 52 of the Constitution Act, 1982, which states that any law which is inconsistent with the Constitution of Canada is, to the extent of the inconsistency, of no force or effect. In the case of reading in, the constitutional inconsistency is defined as what the legislation wrongly excludes, rather than what it wrongly includes. Reading in has the effect of extending the ambit of legislation by including the excluded group within the legislative scheme.

In Schacter, Chief Justice Lamer said that reading in would be appropriate only in "the clearest of cases". The purpose of using it was "to be as faithful as possible within the requirements of the Constitution to the scheme enacted by the Legislature."

Vriend v. Alberta was a case where the courts explicitly addressed the issue of...