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The Court after McLachlin

It is difficult to imagine a Supreme Court of Canada without Beverley McLachlin. For 17 years, she was the court’s rudder, steadying it in choppy legal waters. So what happens after she’s gone?

Photograph of Beverley McLachlin

Appointed to the court by Prime Minister Brian Mulroney as a puisne justice in 1989 and elevated to the top job 11 years later, Beverley McLachlin is the longest-serving chief justice in the court’s history. She led it through a period of consolidation and refinement of Charter law following the “dawn period” under Chief Justices Brian Dickson and Antonio Lamer.

The early years of Supreme Court interpretations of Charter law were action-packed, marked by many split decisions and an activist tone. McLachlin herself – appointed to the bench just a year before Justice Dickson’s retirement – described her approach to Charter law as one of “subtle interpretations” of the broad directions set during the Dickson and Lamer eras. She proved herself adept at stick-handling unanimous decisions on fraught subjects, from physician-assisted dying to maximum trial lengths – a talent that was nurtured during her long tenure on the court.

“Right now we’ve got a fairly young court, with a critical mass of judges with just five or six years on the court,” says Carissima Mathen, a University of Ottawa associate professor specializing in constitutional law. “[McLachlin] came to the role with significant institutional memory. She’s the last one on the bench to have sat with Justice Dickson, the first Chief Justice under the Charter. Most of the other judges have not yet accumulated that level of experience.”

Few would disagree that she was a stabilizing influence, bringing a degree of consensus to the Court that made its rulings easier for governments to understand (or at least harder to ignore). She will leave the bench effective Dec. 15.

No one knows yet how the post-McLachlin court will function – whether it will be more activist or less, whether it will maintain its recent habit of collegiality or deliver more split decisions. But everyone agrees that the next 10 years will see the court deliver game-changing decisions in several areas of law:

Indigenous Canadians and duty to consult

File this one under “unfinished business”. The problem of reconciling the rights of Aboriginal communities with governments’ responsibility to set policy has landed on the Supreme Court’s agenda many times already. It’s poised to do so again, likely over controversial resource projects opposed by some Indigenous communities.

The court tried to settle the question of how far governments must go in accommodating Indigenous concerns with the principle of duty to consult (DTC), a refinement of the broad rights set out in section 35 of the Canadian Charter of Rights and Freedoms. DTC commits governments to consulting with Indigenous communities in cases where a Crown decision could adversely affect asserted or established Aboriginal or treaty rights. Two rulings from 2004 – Haida Nation v. British Columbia and Taku River Tlingit First Nation v. British Columbia – set the boundaries of DTC: that it’s a Crown obligation, that it applies to asserted Aboriginal rights as well as established ones, and that it’s not a blanket veto.

DTC is a “good faith” principle; it’s meant to give governments the leeway they need to do their jobs – but it only works if both sides buy in. If that doesn’t happen – if, for example, governments leave it up to private corporations to conduct DTC talks on their own (which has happened often) – then the principle can break down. (DTC is a constitutional duty of governments; it can’t be delegated completely to the private sector.)

“Good faith fails, and I think we’re going to see more instances where the court has to confront that,” says Emmett Macfarlane, a political science professor at the University of Waterloo who studies the impact of Supreme Court decisions on government policy.

“We’re going to see fewer articulations of broad principles and more cases of the court saying yes or no to a particular interpretation of the law.”

If the court opts to refine the DTC principle, it will have to somehow reconcile it with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The Trudeau government formally adopted UNDRIP in May 2016; a year later, it formally withdrew the Harper government’s objections to portions of it that require governments to obtain the “free, prior and informed consent” of Indigenous communities to developments and new laws that affect them. To date, the Supreme Court has not embraced the concept of an Aboriginal veto on such decisions – but the argument is a long way from over.

“The McLachlin court left governments room to manoeuvre,” says University of Ottawa law professor Sébastien Grammond. “(DTC) emerged in 2004 because the court realized that simply recognizing rights to hunt and fish was not adequate. I think the court will acknowledge DTC needs refinement, and UNDRIP probably will be the trigger for that.”

And since Indigenous communities are hardly united on the benefits and risks of resource projects, you can expect to see the court ruling on conflicts between individual First Nations. “You have to expect legal conflicts between Indigenous groups themselves, arising from consultations involving multiple parties,” says Mathen.

The separation of powers: Who’s in charge?

This is familiar ground for the court; conflicts between the federal and provincial government over constitutional spheres of influence are as old as the nation. Court-watchers see the division of powers erupting on its agenda in a couple of ways.

The B.C. government is on a collision course with Ottawa over the Kinder Morgan pipeline since declaring it would join the legal battle against the project. The feds have the power to force the project through over Victoria’s objections by using the Constitution’s power of federal undertakings – provided it can argue the project is in the interests of Canada as a whole. Such an action on Ottawa’s part would almost certainly end up before the Supreme Court.

“It’s a sledgehammer,” says U of Ottawa professor of constitutional law Errol Mendes. “Ottawa can use the undertaking provision to override provincial law. I think, however, that the federal government doesn’t want to go that route.”

One fight the federal government likely can’t avoid is connected to its climate change strategy. The Saskatchewan government has threatened to take the feds to court over its plan to impose a price on carbon emissions; natural resources fall in the provincial sphere and governments can’t tax each other under the Constitution.

“The federal government would claim its broad authority to protect the environment under the peace-order-and-good-government principle in the Constitution’s preamble,” says Mendes. “I tend to agree with the federal government that, when push comes to shove, the law is on their side. But that would still be a major decision coming from the [Supreme Court].”

Your rights, their rights

Charter rights aren’t static; sometimes they conflict and when they do the court has to draw a line. Expect conflicts between religious freedom and equality rights to continue testing where that line is in the post-McLachlin period.

Trinity Western University, a private Christian university based in B.C., imposes a “covenant” on students that forbids, among other things, sexual intimacy that “violates the sacredness of marriage between a man and a woman.” Arguing the covenant discriminates against LGBTQ students, the Ontario and B.C. law societies declined to accredit Trinity Western’s planned law school. Those cases are going before the court. [The CBA has been granted intervenor status.]

“As the courts continue to deal with matters of ‘reasonable accommodation’ of religious expression, we’ll see more cases of religious freedom butting up against equality rights,” says Macfarlane. “Maybe an Indigenous religious ceremony coming into conflict with municipal bylaws.”

Accentuating the positive

The Charter of Rights and Freedoms is largely a list of “negative” guarantees – protecting Canadians from threats to personal freedom (discrimination, arbitrary arrest, cruel and unusual punishment) without offering much in the way of “positive” rights, such as the right to a living wage or housing. Since it was introduced in 1982, there have been attempts to broaden the Charter’s scope to embrace more positive rights.

The court dipped a toe in these waters in 2002, in the case of Gosselin v. Quebec. It was a class action brought on behalf of 75,000 people against the Quebec government over its decision to make full welfare benefits for people under the age of 30 contingent on participation in a “workfare” or employment training program. The plaintiffs argued that decision violated both their section 15 equality rights and their section 7 right to “life, liberty and security of the person”.

The court ruled that Quebec’s policy violated neither the Charter nor the Quebec Charter of Rights and Freedoms. McLachlin wrote the majority decision; in dismissing the claim that Quebec had violated section 7, she did not close the door entirely to a “positive rights” interpretation of the section.

Justice Louise Arbour delivered a dissenting opinion asserting that the Charter can and should be used as a tool to fight poverty and social injustice – that there should be no distinction in law between civil liberties and social and economic rights.

“Justice Arbour’s fierce dissenting position makes a decision on positive rights more likely,” says Mendes. “Ontario is running pilot projects on guaranteed basic income. So what if it can be shown that the idea works? Suddenly there’s going to be pressure on governments to follow suit.”

In everything the court does, personalities matter. The question of positive rights is a good example of an area of law that could see movement if the post-McLachlin court turns out over time to be more activist and less inclined to a default position of unanimity, says Mathen.

“It will be interesting to see, in her absence, whether particular jurists will want to develop their own philosophical approach to the legal questions coming before the court – whether they’ll feel freer to dissent now.”