Wednesday, December 25, 2013

The Supreme Court’s Christmas Gift to Canadians: Planned Obsolescence

Our Supreme Court of Canada, the highest court in the land, in a daring move, extended the boundaries of what is permissible in lower courts when it comes to testing the constitutionality of our laws:

The Supreme Court of Canada did much more than strike down three prostitution laws on Friday. It set down a major change to the way lower courts can revisit precedents by the Supreme Court.

The article by Sean Fine in the Globe & Mail is very well written, and worth reading by every thinking Canadian.

One of the first legal textbooks I ever read was Learning the Law by Glanville Williams. An unabashedly practical how-to book for beginning lawyers, Williams wrote in his foreword that he was following in the tradition of other older books:

The chief aim of these old works was to give advice on books to read, though some also concerned themselves with such matters as the number of hours reading that should be done in a day, legal abbreviations, amusements suitable for the lawyer (archery, leaping, riding, bowling and fishing were among the recommendations), and the value of keeping a sort of “Where is it?” notebook known as a commonplace book.

What is very clear is that each and every lawyer should read this latest judgment by the Supreme Court of Canada. It amounts to a magnificent gift to all Canadians (and especially to Canadian lawyers), by very firmly carving out new territory for the lower courts in the land to explore.

After giving advice to would-be barristers (England has the two-class lawyer system, of solicitors – who deal directly with clients – and barristers – who are retained by solicitors to plead cases in court):

One can, perhaps, put this last point higher, and say that if a would-be barrister can be stopped from entering this profession, it is in his own interest what he should be stopped. If he is the sort who is stoppable, he is the sort who will fail. It is only those who cannot be dissuaded who can safely be left to make the attempt.

Williams goes on to give an example of one lawyer who adopted a method that impressed his clients no end:

There is an old tale of a solicitor who won great renown for his deep knowledge of the law. His secret was this. He had had three copies of Every Man’s Own Lawyer bound to resemble law reports and lettered respectively “3 Meeson and Welsby,” “1 Term Reports” and “7 Manning and Granger.” When a client propounded a legal qustion, the solicitor would ring for his clerk and say: “Bring me 3 Meeson and Welsby,” or “! Term Reprots,” or “7 Manning and Granger.” When the volume came he would gravely look up a point and then say triumphantly: “Ah! here it is! I thought so. The very authority we wanted.” The solicitor was not such a fraud as a layman hearing this story might think. At least he knew his way around that particular book better than his clients did.

The Supreme Court’s gift in its full court, 9-justice majority opinion lifted the dead hand of judicial precedent from the throttle of Canadian legal development, and substituted a clear licence to all lower courts to play a significant role in developing, by changing, our laws through constititutional change, starting with the Charter of Rights and Freedoms.

What is precedent? Williams sums it up this way:

The rule is that every court binds lower courts and that some courts even bind themselves. If the case has gone to the House of Lords the decision can be reversed only by stature, for it is binding on the lower courts and on the House itself.

Or modern law does allow the highest court to reverse its own decisions. What is remarkable about the Supreme Court’s decision its its willingness to encourage lower courts to question the constitutionality of our laws, including specifically previous decisions by the Supreme Court itself.

The practice in the past was to find a Supreme Court decision on a set of facts, and that trumped everything. The ball game was over. The opera was ended on that high note. You need look no further. All courts next in line to the court trying the issue would simply point at the earlier Supreme Court decision and say: That’s it! Say no more (nudge nudge wink wink). The law is settled.

With this decision, our Supreme Court looked approvingly at the daring of a lower court to question the continued viability of an earlier Supreme Court:

Traditionally, when the Supreme Court rules on a constitutional issue, only it can overturn the precedent. But Justice Susan Himel of the Ontario Superior Court refused to abide by the Supreme Court’s ruling in the 1990 prostitution reference case. In that case, the court upheld laws against brothels and street solicitation. Justice Himel said the arguments were different this time around and there was greater understanding about how laws exacerbate the dangers of prostitution. She amassed 25,000 pages of evidence about those dangers, which the Ontario Court of Appeal said it was entitled to disregard.

The Supreme Court mostly agreed with Justice Himel.

“This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role,” Chief Justice McLachlin wrote.

This means every lawyer worth his or her salt will be weighing up the continued applicability of earlier Supreme Court cases against the instruction by the highest court that lower courts “must be able to perform” their full role. Their full role is now clearly to weigh up whether the case before them is an appropriate one for revisiting precedent.

This is how the Supreme Court described this new obligation of our lower courts:

If new legal issues are raised, or if there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate,” trial judges may revisit constitutional precedents, Chief Justice Beverley McLachlin wrote. And the trial judge’s findings of changes in social norms will carry great weight with higher courts.

There we have it.

Our highest court has blessed – and decreed – that our lower courts should examine social norms to see whether circumstances have changed since earlier Supreme Court decisions, or evidence has arisen that fundamentall shifts the parameters of the debate:

In effect, says Cheryl Milne, executive director of the David Asper Centre for Constitutional Rights, which intervened in the case to argue for the new approach, there is a “planned obsolescence” built into Canadian constitutional law. It does not need to be stuck in the 1980s, when many major constitutional decisions were written, added Sonia Lawrence, a professor at Osgoode Hall Law School.

In the next decade we can expect many cases in the lower courts challenging the parameters of the debate about many issues, including assisted suicide, rights to a decent standard of living, the limits on our democratic rights imposed by our undemocratic (i) first past the post electoral system, and (ii) the disproportionate weighting of rural and suburban representation in Parliament as compared to the short-changed major cities, many others.

Thank you, Justices.

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