This episode of Hub Dialogues features host Sean Speer in conversation with Canadian lawyer and legal thinker Asher Honickman about the state of judicial thought in Canada. The conversation touches on the influence of the so-called “living tree” doctrine, Canada’s “originalist” tradition, and the policy and political consequences of these two judicial approaches.
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SEAN SPEER: Welcome to Hub Dialogues. I’m your host, Sean Speer, editor-at-large at The Hub. I’m honoured to be joined today by Asher Honickman, who’s a partner at the law firm Jordan Honickman, and co-founder of two legal societies, Advocates for the Rule of Law, which has intervened several times before the Supreme Court in Canada, and the Runnymede Society, which has established chapters and law schools across the country.
I’m grateful to speak to him about various constitutional and judicial topics at a time when a series of Supreme Court decisions in the United States has elevated attention and focus on the courts. Asher, thank you for joining me at Hub Dialogues.
ASHER HONICKMAN: Sean, thank you so much for having me. I’m a big fan of The Hub and it’s a real honour to be here.
SEAN SPEER: Let’s start with a biographical question. You have a law practice where you spend a lot of time on public questions about political parties, our political system, and the jurisdiction of the courts. What has drawn you to these types of questions and how did you get started in them?
ASHER HONICKMAN: My practice is fairly diverse. Actually, my day job is mostly things like defamation, employment law, breach of contract, et cetera, but I do try and get involved in what we call public interest litigation. I’ve been doing that I guess for about five years or so now. I think the first big case I had was the statement of principles case back in 2017-2018. The reason I do it is because I just find it so interesting. I’ve always had a bit of a passion for, can we say, the philosophical aspects of law—constitutional law, and public law, especially. I’ve just always wanted to make sure that part of my practice has those elements.
SEAN SPEER: As I mentioned, you’ve been a bit of an institution builder with the Advocates for the Rule of Law and the Runnymede Society. Let me ask you a two-part question. First, why do you think it was important to establish these organizations? Second, what’s their purpose and mandate?
ASHER HONICKMAN: For Advocates for the Rule of Law, we’re going back to 2013-2014. What I recall is that I and a few other lawyers were seeing, in certain cases, what I would say a lack of a principled approach being taken. Whether this was constitutional law or even something like insurance law, where we were sometimes seeing a “results-oriented approach” as opposed to what you may call a “rules-based approach” or principled approach. A few of us got together and we made this group Advocates for the Rule of Law, where we wanted to really explain to other members of the bar and other engaged members of the public really what the rule of law is and how important it was.
The Runnymede Society was similar. It flowed from that, but it was more geared at law schools where I and Marni Soupcoff and then Joanna Baron came together. We decided we need to have a group that’s going to be in law schools, that’s going to be talking about how important the rule of law is, how important concepts like constitutionalism, individual liberty, fundamental freedoms, these things are. We need to start having conversations that maybe aren’t happening in other major law organizations. We need to not be afraid to have conversations about things like originalism, which I know you want to get into a bit later on.
Advocates for the Rule of Law has been something that I’ve stayed much more involved in day-to-day. Runnymede is a much larger organization that I’ve had a lot less involvement in day-to-day. Once it started, Joanna Baron took the reins and did a fantastic job with it, and then handed the torch to Mark Mancini, and now to Kris Kinsinger. All of them have done a fantastic job leading that group. Each of them has brought something unique to the group and really added to it.
Now, the Runnymede Society is extremely prolific across Canada. I can take very, very little credit for it except staying involved at a nominal level and being there at the founding, as it were.
SEAN SPEER: Listeners will recognize some of the names that Asher cites. These are people who’ve contributed at The Hub over the past several months, and we’re grateful to have them involved and to profile the work of members of the Runnymede Society, who as Asher says, oftentimes are law students at different law schools across the country.
As you said, Asher, we’ll come back to some of these philosophical questions like originalism later in the conversation, but let me pick up on some of your own legal writing in scholarship. You’ve been cited previously in a Supreme Court decision that in particular referred to your idea of a version of federalism that you describe as “watertight compartments.” What do you mean by watertight compartments? How does it compare to the type of federalism that currently prevails, and why do you think your approach would be better?
ASHER HONICKMAN: Right. That phrase I’ve perhaps brought it back into the lexicon, into the legal discourse as it were, but it’s definitely not my phrase. It comes from a 1937 decision of the Judicial Committee of the Privy Council written by Lord Atkin. What it conceptualizes is a version of federalism where each order of government, meaning parliament on the one side and the provincial legislatures on the other, each order stays within its sphere so that there’s not significant overlap between the provinces and parliament.
That case, that 1937 case, it’s a very famous case that it comes from. It’s called the Labour Conventions Case. That case dealt with federal New Deal legislation [in context of the Great Depression]. A lot of Canadians don’t know this. We know about the U.S. Supreme Court and how the U.S. Supreme Court struck down various New Deal laws. What many don’t know is that the Judicial Committee of the Privy Council, which was Canada’s highest Court of Appeal until 1949, struck down a number of Canadian New Deal laws that came from parliament.
Like anything that is Canadian, it was a more moderate and muted version of what happened in the U.S. It wasn’t like every law was getting struck down, but there were three, in particular, that got struck down. In one of these cases, Lord Atkin gave this very famous speech—not speech, but he had this famous turn of phrase where he said, “While the ship of state now sails on larger ventures, and into foreign waters, she still retains the watertight compartments which are an essential part of her original structure.”
There are important elements there to unpack. What he’s saying there, and again this will get into this concept of originalism that we’re going to talk about, what he’s saying is that even though the Canadian state in 1937 is much different than it was in 1867, the fundamental nature of Canadian federalism that our Fathers of Confederation agreed to remains the same. That is a version of federalism that has these watertight compartments.
Now, that doesn’t mean no overlap whatsoever, and I’ve written an article that talks about when overlap can be permitted, but it’s much different than what we’ve seen over the last generation from the Supreme Court, which is what’s known as “cooperative federalism” or “flexible federalism.” This is the idea that we want to just let each order of government basically do what they want to do. We want to almost encourage overlap, and unless there’s something really egregious, we don’t want to interfere and say, “No, you can’t do that.”
That’s definitely a change in course from what prevailed for, I would say, the majority of Canadian history. Even now, it’s not the only approach. We still see what we call “classical federalism.” We still see that approach in certain cases, and we see it in the dissent of certain cases. The greenhouse gas reference comes to mind. The dissent there was really pushing a more classical version of federalism, and the majority had this much more modern cooperative federalism.
Overall, I would say the classical federalism approach is better because, first and foremost, it’s the approach that in my view is constitutionally grounded. It is the approach that is grounded in the text of the Constitution, which makes it very clear that these powers are exclusive and that they are not meant to overlap. That’s what I discuss at length in my watertight compartments article. I also happen to be of the view that it’s the approach to federalism that is most consistent in enduring constitutional order. I believe that when you have too much overlap, you don’t get cooperation, you get conflict, actually.
What’s interesting is that in these 1930s cases, the Privy Council actually suggests that it’s through the watertight compartments that real cooperation occurs because the orders of government must cooperate with each other. When there’s overlap, what you actually get, in my respectful view, is domination by parliament, because if parliament can legislate into any area, then it can basically run the whole show and then say, “Well, we’re basically going to do what we want and you provinces can legislate as well. If there’s a conflict between what you want to do and what we want to do, paramountcy means that we win, so actually, it’s our way or the highway.”
I would push back against this whole notion that overlap means cooperative federalism as the Supreme Court has said. I think you can actually get a much more conflicting federalism. So I would like to see a return to at least some version of this watertight compartments philosophy to federalism.
SEAN SPEER: You’re making principally a constitutional or legal argument in favour of that conception of federalism. I think there’s also a highly practical one. We’re having this conversation against a backdrop of long passport delays, and one can’t help, but think that if we had a federal government more focused on its knitting and less on the day-to-day responsibilities of provinces, we might actually have better federal services, but that’s for another conversation.
In another article, Asher, you talk about an expansive interpretation of Section 7 of the Charter, which for listeners refers to the idea that “Everyone has the right to life, liberty, and the security of the person, and the right, not to be deprived thereof, except in accordance with principles of fundamental justice”, from a narrow lens of what’s referred to as “procedural due process” to today’s prevailing view about “substantive due process.”
Listeners may have recently heard these terms in U.S. Justice Clarence Thomas’ concurring opinion in the Dobbs decision with respect to abortion rights. What is the difference between these two forms of due process and how has the Canadian Supreme Court effectively redesigned Section 7 and in so doing changed its purpose and use?
ASHER HONICKMAN: That’s a great question and it’s a complicated one. Some people—and I believe, Justice Thomas would be one of these people and Justice Scalia certainly was one who said that substantive due process is like an oxymoron because due process is inherently talking about procedural rights. But the U.S. Supreme Court decades ago went down the road of creating this idea of substantive due process, meaning that there are not only procedural rights that one is entitled to if their life or liberty is going to be taken away but there are substantive rights, meaning that there are some rights for which no process would suffice.
The traditional idea of process is that you can take someone’s life or liberty away but you have to give them essentially a fair trial if you’re going to do that. Substantive due process would say, “For certain types of liberties, there’s more than just a fair trial that you have to give someone. There are certain processes that will never suffice and thus you can never take away those liberties.”
When the Charter was being drafted and designed in the early 1980s, that concept of substantive due process had already been popularized in the United States. For that reason, our framers did not use the term “due process” in Section 7, they used the term “principles of fundamental justice.” In my view and in the view of many others, the record is clear: The reason they used principles of fundamental justice is specifically because due process had been interpreted broadly that way.
Our framers wanted to avoid a situation where our Section 7, which is similar to the U.S. 14th Amendment in that it broadly guarantees liberty and also security of the person in the case of Section 7, they wanted to be sure that it would not be interpreted so broadly. That it would be confined to more procedural issues.
Part of the problem was that the term principles of fundamental justice was not a popular term in Canadian society. It wasn’t one that had what we would call an ordinary meaning. It was taken from the Canadian Bill of Rights, which also used that term. In the Canadian Bill of Rights, Section 2 (e), principles of fundamental justice is used in an expressly procedural sense. My take on the historical record is that our framers use that term because they said, “Well, it comes from a document in which it is expressly understood to be procedural and the Supreme Court had interpreted it back in the early 1970s to mean that it was a procedural guarantee only. It’s a safe bet to use principles of fundamental justice in the Charter because in law that has a narrower procedural meaning.”
From 1982 to 1985, lower courts are interpreting this term principle of fundamental justice and they’re saying, “Yes, this comes from the Canadian Bill of Rights” and it means you have procedural guarantees. Section 7 appears under the heading “legal rights.” All the other sections dealing with legal rights basically have to do with the rights of the accused. Section 8 talks about reasonable search and seizures, Section 11 talks about the rights to a fair trial specifically, so really Section 7 is talking about the same kinds of things. It’s your rights against the state when you’re being arrested, charged, prosecuted, et cetera.
SEAN SPEER: It’s kind of like the equivalent of habeas corpus rights. Is that not the right way to think about it?
ASHER HONICKMAN: Yes, someone would tell that would be one of the principles of fundamental justice. The idea was that, well, maybe it’s not narrow in what it means, but it generally refers to this procedural right or procedural rights that occur within the criminal law context. Most of the lower court decisions, either trial courts or intermediate appeal courts between 1982 and 1985, give it this meaning.
Then the Supreme Court comes along in 1985 in a case called the B.C. Motor Vehicles References and they do two things. They bring in the concept of the “living tree” that we’ll talk about, and they use that living tree to say that the principles of fundamental justice cannot just have this narrow procedural meaning it has to have a substantive meaning too.
In that case, what the law dealt with was absolute liability offenses, meaning that you don’t have to intend to break the law—or rather you don’t have to have a mens rea intent, you don’t have to have a guilty mind, as we say—and you can still be found guilty of this offense and it had to do with driving offenses and going to jail for those offenses.
What the Supreme Court said was that, well, you can’t have absolute liability offenses where there’s potential imprisonment that breaches the principles of fundamental justice. That’s a substantive right. That’s not just a procedural right.
Now in B.C. Motor Vehicle References, you still had a very legal criminal issue. The issue is can you have an offence that has an absolute liability requirement that can also send someone to prison? At least there, you can say, “Well, it’s substantive, but it’s very tied into the criminal process and what mens rea element you need to have.”
That case establishes a precedent, which then later courts use, especially in the last 10 years, to really expand the ambit of Section 7 and what principles of fundamental justice mean. Cases about prostitution, about assisted dying, about various rights, come under the ambit now of Section 7, which no longer has this narrower procedural requirement or even the slightly wider requirement that you get in B.C. Motor Vehicles.
It now has a much wider meaning where laws that are overbroad or grossly disproportionate can be strapped down because they offend the principles of fundamental justice. Who decides if a law is overbroad? Who decides if it’s grossly disproportionate? A court decides that. In practice, you’re giving a lot of power to courts to decide what laws, unduly, infringe the liberty or security of the person.
SEAN SPEER: The reason why this subject, though complex, is so important is because, as I understand it, Asher, as you say, while the original intent was for this section to be narrowly focused on issues of procedural due process, through jurisprudence the section was essentially transformed into a provision that enables considerations around substantive due process and in so doing has now formed the basis for a series of judicial decisions over the past quarter-century or so to establish new rights that probably weren’t considered and in fact, had even been outright rejected in the original drafting of the Canadian Charter of Rights and Freedoms.
Which it seems to me begs the question: The Canadian Charter of Rights and Freedoms is 40 years old this year. That means that many of those involved in its creation are still alive. Why do you think the Canadian judiciary has been so dismissive of concerning itself with the original thinking and intent behind different parts of the Charter, notwithstanding that it’s still relatively young compared to other constitutions around the world?
ASHER HONICKMAN: Yes, that’s a great question. On the one hand, the Court has been expressly dismissive of it in various cases where they say “We have the living tree here, we don’t look at original intent.” On the other hand, as scholars like Leonid Sirota have demonstrated, the Court actually does originalism in practice in various cases where even though they say they don’t care about it, they do look at what the original understanding of provisions of the Constitution were, which can include the Charter.
I’d be speculating in terms of why the Court has tended to prefer the living tree. I think one reason, candidly, is because at the same time that our Charter was beginning to be interpreted, the U.S. was starting to re-embrace originalism and so like anything else, it’s a way to distinguish Canada from the United States. I don’t know that that’s a sufficient explanation. I think that in a fundamental sense, we had judges both early on and since who have, I think in good faith, taken the view that rights cannot be limited to their original understanding.
Again it’s 40 years now, but at the time of B.C. Motor Vehicles, it was three years and the Court still put forward the living tree. Nothing had changed from 1982 to 1985. I don’t see any reason to start talking about the living tree in 1985 yet the living tree gets talked about heavily in the 1980s. But even the living tree approach itself, and I’ve written about this, the living tree approach itself has changed where in the 1980s you do get a sense that the living tree is limited by what the analogy refers to as the “natural limits of growth.” And so they say, “Yes, our Constitution’s a living tree and that means we need to interpret things broadly, but we need to still look at historical purposes of rights, et cetera.” As soon as you talk about historical purposes, you’re really talking about original intent in certain ways.
In B.C. Motor Vehicles, for example, again, even though they talk about living tree, even though they expand beyond purely procedural rights, they still talk about the “basic tenants” of the legal system. They talk about things that are so inextricably tied to our legal system, that they have to form principles of fundamental justice. These aren’t things we’re inventing today, these are things that have existed since time immemorial. Again, in that case, the Court’s saying it has always been the case that if you’re going to send someone to prison, they have to have a mens rea requirement.
You can’t say that someone can go to prison for going through a red light, even though they didn’t understand, they didn’t intend to go through the red light or they didn’t want to go through the red light. You have to have the guilty mind to send someone to prison. That has always been the case. Whereas modern principles of fundamental justice are principles that may not have existed in 1982. This idea that a law cannot be overbroad.
One can argue that all laws are either somewhat overbroad or somewhat undershoot their purpose, that it is the rare case where a law perfectly captures its purpose. These ideas of gross disproportionality, these are ideas that courts have essentially come up with. They have decided these are now principles of fundamental justice. The very idea of the living tree, which was once at least grounded to natural limits, seems to have itself taken on a living tree component where the living tree now no longer has natural limits and it really is up to the Court to decide what those basic values of society are.
SEAN SPEER: You’ve used the language of living tree and originalism a couple of times. Help me and listeners understand the difference between an originalist judicial philosophy and the living tree model.
ASHER HONICKMAN: Both terms, as I think is already clear, but I’ll make this clear, both terms refer to very broad schools of thought that have a great deal of disagreement within them. Originalism, especially in the United States, but now in Canada as well, have have many different kinds of adherence. There are people who say you look at original intent. What did the framers actually intend? You have other people who say, “Absolutely, 100 percent, never look at intent, look at language. What did language mean?” I would be someone who would say you look at the language, but in interpreting the language, it’s sometimes helpful to look at what was intended, what people thought things meant at the time.
Originalism in a sense is a very Canadian thing. I was talking at the beginning about the 1937 Labour Conventions case. There’s no doubt that that’s an originalist case. There was no philosophy at the time called originalism, but there’s no doubt if you read the division of powers cases from the late 19th century and well into the 20th century, that the Privy Council and Supreme Court were interested in what these terms meant in 1867.
There’s very little indication that the meaning of those terms evolves. There are certain cases where the courts take a broad approach, certainly, but even the case where the term living tree comes from, I and many others, including Justice Bradley Miller of the Ontario Court of Appeal, have argued in various papers, and I think now shown definitively that the Privy Council when it first said living tree was not saying that the meaning of terms change over time. That’s a meaning that got attached to that case decades after the fact.
I would argue that originalism in a textual sense is very Canadian. This idea that a statute means the same thing that it’s always meant, that is still the rule in Canada for non-constitutional statutes. We still say a statute means what it meant the day after it was passed. Why do we say that? Because at the time it was passed that’s what we’re interested in.
We’re interested in knowing what did its framers, what did parliament, intend by those words. If we change what the words mean over time, then we’re changing parliamentary intent. In the realm of ordinary statutes, that’s actually noncontroversial. It’s only changed in the realm of constitutional statutes where we previously did the originalist approach and now we do the living tree approach.
Again, the living tree approach is one that ironically I would argue, comes from the United States, comes from the early-20th century and into the mid-20th century United States, where these new schools of thought were emerging, that was saying the Constitution needs to keep apace with the realities of modern life. That’s something that takes hold in the United States and that Canadian academics and scholars, and eventually judges then seize on to beginning in the 1970s in Canada, and then really in the 1980s, 1990s, and into the 2000s. It really is a philosophy that I would argue originates in the United States. My view on originalism is not that we should be adopting an American philosophy and theory that is really being expounded over the last few decades in the United States.
My view has always been that we should take a look at our own history and traditions. We have our own version of originalism here; a more British maybe version of originalism that doesn’t have this firebrand idea of what did Thomas Jefferson want? What did James Madison and Alexander Hamilton, these great men, what did they want and what did they desire for society? It’s this much more dry, positivist approach to text and saying, what did this text mean at the time? Like, what did banks mean in 1867? What did criminal law mean in 1867? By the same token, what did freedom of expression mean in 1982?
Of course, that doesn’t mean that because the internet wasn’t around in 1982 that expression doesn’t include the internet. It doesn’t mean that because credit cards weren’t around in 1867 that banks can’t sell credit cards or give out credit cards. It doesn’t mean those things. What it does mean is that you look at some general meaning of that term, that’s the meaning rather that applies going forward. If something like freedom of association in Section 2(d) of the Charter, if that means an individual right to associate, not as opposed to a collective right for the association itself to have rights to collectively bargain, to strike, et cetera. That’s what it means.
Our Supreme Court has reinterpreted freedom of association away from its original meaning. It has said that this is not just an individual, negative right to form associations, it is a group right. It is a right to have your association. It is a right for the association to itself have rights, to collectively bargain, to strike, et cetera. Section 7 has moved away from its original meaning, as we’ve discussed, it’s no longer just a procedural right, and no longer even confined to what the principles of fundamental justice were at the time of the Charter. Rather new principles of fundamental justice can now be read into Section 7. That is a fundamentally living tree, non-originalist type of interpretation.
SEAN SPEER: That’s a really thoughtful answer, Asher, and your point about the Canadian tradition is well taken. Is it right to say now, though, that the living tree approach is dominant in Canadian law schools and the judiciary, and if so, why? What has stood in the way of an original school of scholars and practitioners in Canada, compared to, say, the United States?
ASHER HONICKMAN: I would say it’s dominant. I would say it’s less dominant than it was five years ago. I believe that groups like the Runnymede Society have had a big hand in that because we’ve actually started debating that issue. I think five years ago it was taken as just pure orthodoxy. It was just a given that our Constitution is a living tree. That’s something that distinguishes us from other countries, notably, the United States.
Part of the problem is that originalism is now associated specifically with conservative political outcomes. A lot of what I’ve tried to show and what other scholars have tried to show is that originalism, especially in the context of the Canadian Charter, which was passed by a majority Liberal government at the time—that was the government in power at the time, a Liberal government—we’ve tried to show that the Canadian Charter is by no means a conservative document in its original meaning. That, in fact, one can also argue that living tree approaches with the Canadian Charter could go off in conservative directions.
For example, in Canada, unlike the United States, there’s no right to bear arms. A living tree proponent could say, “Well, we need a right to bear arms in Canada.” Liberty in Section 7 is now going to be read expansively to include the right to bear arms, and one of the principles of fundamental justice, that I’m now going to say is a principle of fundamental justice, is self-defence, that the idea that with the castle doctrine, everyone has the right to protect themselves and their family. There’s therefore a right to bear arms in Canada now.”
That’s not a farfetched idea. It is not a farfetched idea if you have the right political culture to do it. I would be opposed to it because I think it’s contrary to the original meaning of the Charter. One of the things we’ve tried to demonstrate is that originalism is actually a lot more moderate politically than its competitors. I don’t believe any approach can be neutral, but it is more neutral in its ability to be applied consistently and predictably than things like the living tree.
It does not lend itself as much to politicization, whereas living tree, again, can go in a liberal or a conservative direction. I think what’s important to show law students and judges and scholars that if we’re going to have a legal system rooted in the rule of law, then we need to have something that, if it’s not originalist, it needs to at least have a home for that kind of thinking. It needs to be really rooted to text and to doctrine, as opposed to ideas of what makes a good society.
SEAN SPEER: You mentioned politicization. Let me take up that point, Asher. It’s often said in the Canadian media that our judiciary is less politicized than in the United States. What do you think of this characterization? Are our courts less politicized, or is it just that it’s so dominated by one judicial perspective that it can seem like there isn’t a contest of ideas?
ASHER HONICKMAN: I think it depends on what we mean by the word politicized. The main difference between the Canadian and U.S. Supreme Court is that the judicial philosophy of judges doesn’t correspond here necessarily with the party that appointed them. Whereas in the United States, there’s a huge overlap between if a judge has been appointed by the Republican Party versus the Democrats in terms of, are they originalists, are they living constitutionalists? Are they textualists or are they what we call purposivist?
In Canada, I think it’s much more difficult to predict a judge’s judicial philosophy based on which party appointed them. I think that’s the first thing. I think the second thing is that many things between Canada and the United States, and I’m not saying this to be a smug Canadian, but I do think we tend to be more moderate in our disposition than Americans do. We tend to be more agreeable and more moderate and that can give an impression of greater consensus, I think.
In the U.S., you really have, and Dobbs is a great illustration of this, where, when there’s a disagreement, there is extremely, we’ll say strong language expressed about the other side’s opinion that you just don’t see in Canadian decisions. There’s at least a much greater appearance of consensus. Having said that, I do think that if you look at the decisions of Canadian courts, there’s no doubt that they are based on political beliefs. The notion that the living tree is not political is just completely contradictory, in my view. The very essence of the living tree is to keep Canada up to date with current political values.
One of our former judges has said that it is the responsibility of the Court to decide which values in Canadian society triumph. You can cast that in terms of values, but values are political by definition. There is no doubt that our courts are political, and I don’t believe courts can escape political issues when they are deciding questions that have almost a necessarily political aspect. What is equality? What is discrimination? What is expression? These are questions that almost demand some kind of political worldview to come to the fore. I don’t think they can be avoided.
That doesn’t mean necessarily that the way our courts are political is exactly the same that the U.S. Supreme Court is political. It’s a bit of an equivocal answer, but that’s my view on that.
SEAN SPEER: It’s worth observing with regards to your point about the tendency towards the politicization of the living tree model that this is how a country can end up with a Rodriguez decision in the ’90s saying that there’s no constitutional right to assisted death, and then a decision in 2015 involving some of the same judges ruling that there is indeed a constitutional right to assisted death, even though the constitution itself, of course, hasn’t changed in the intervening time.
Do you worry, Asher, that the Supreme Court’s expansive interpretation of Section 7 in particular and its judicial activism more generally risks harming its credibility in the eyes of Canadians?
ASHER HONICKMAN: I do, Sean. That’s one of the reasons why I founded, especially, Advocates for the Rule of Law, but also why I was so adamant about co-founding the Runnymede Society. Because I’m a big believer in the courts as an institution. I think the courts are essential to safeguarding the rule of law and therefore safeguarding our freedom. Courts play an extremely important role and therefore their credibility’s of the utmost importance.
The reason that I co-founded these groups was not because I thought that the courts had lost credibility. If I thought the courts had lost credibility, that they were no longer grounded to the rule of law, I think I would’ve just waved the white flag and said, “We’re done.” It’s rather because I see the courts safeguarding the rule of law all the time, day-to-day, and because I believe they can continue to do it, but because I see that under threat, it needs to be protected.
I do worry that if the Court continues on that road, that it will begin to lose credibility in the eyes of Canadians, and in some cases its credibility has been harmed already. If you said to me, “Does the Supreme Court as an institution overall have credibility?” I would say, “Yes, it does.” I think it’s important for lawyers and legal scholars to say that, because as soon as we say that the Court has lost its credibility, that itself will undermine the Court’s credibility. We have a duty as lawyers and legal scholars to boost the Court’s credibility, I think. To tell our fellow citizens how important the Court is.
Correspondingly, the duty on the Court is to make sure that they do not stray from their role to interpret the law. That they do not get into the business of legislating. I would say that maintaining institutional credibility absolutely has to be a two-way street and there are some decisions from the Supreme Court—and you alluded to the Carter decision, which is a good example of this. Because there’s no doubt that there was a change in values between those two decisions where in the initial decision in Rodriguez, you really see that sanctity of life is a very important value that the Court is looking at to determine the reasonableness of the law.
Then, by 2015, personal autonomy and consent, these kinds of values have taken over. The problem is that the Court doesn’t really engage enough with this change. The court doesn’t explain why it is changing the doctrine, and the Court doesn’t appear too concerned with the fact of its original decision. It says we’re going to change the law and essentially, the sense one gets is because times have changed.
I think decisions like that do undermine the credibility of the Court and they also make it difficult as lawyers to advise our clients, to tell our clients how do we think decisions are going to turn out because, under the living tree, one never knows how the Court is going to decide. Again, it could mean more rights but it could mean fewer rights.
Professor Kerri Froc, I don’t think she would fault me for saying this, is on the political left. Yet she’s an originalist and one of her arguments that she’s made is that the living tree approach has often meant a narrowing of rights in the realm of equality. Now, I would disagree with her interpretation of what the original meaning of equality is, but that’s a very legitimate take that she’s put forward, that the original meaning of equality is X and the Court has actually narrowed that over time, especially as it pertains to equality between men and women.
We really need to be careful, both in terms of the Court’s credibility and also just in terms of having a practical legal system where people like me can advise our clients on what outcome they’re likely to get if they go to court.
SEAN SPEER: Let me ask you a final question. You’ve been so generous with your time, Asher. For our listeners who have been persuaded by arguments but who may not have the time or capacity to be an institution builder like you, how can they contribute to challenging this prevailing judicial approach? In other words, how can we cultivate an intellectual and, ultimately, political alternative?
ASHER HONICKMAN: Right. Well, that’s a great question and it’s one that I don’t believe I could sufficiently answer but I will say this: I’ve always believed that the best safeguard to the rule of law and to liberty is not judges and it’s not even parliament. And Justice David Stratas with the Federal Court of Appeal said this during one of our Runnymede chats, I can’t remember exactly how he put it but basically, it’s a well-informed and educated citizenry who’s willing to stand up for fundamental rights, fundamental values.
I’ve made that same point in talks. I’ve given that we need fundamentally, not just an educated bar, not just educated legal scholars, we need educated citizens who understand our Constitution, who understand the nature of our legal system. Too many Canadians have very Americanized understandings of our legal system because of what they see on TV. Too often when I’m talking to a client I have to explain to them what our legal system even entails.
If we’re doing an examination for discovery, and they say, “What’s that?” And I say, “Well, you probably have heard of depositions?” “Oh, yes, depositions. That’s when I go in front of the camera.” “Well, we don’t have cameras in Canada, and they’re called examinations for discovery.”
We need more education on the fundamentals of our legal system and I think that means groups like Runnymede need to reach out to non-lawyers.
The Canadian Constitution Foundation did a course on the Constitution, so I would recommend if you are a non-lawyer, take that course. I did one of the panels and I was accompanied by some of the best legal scholars in the country. I was very flattered to be included in this group, but I was accompanied by some really heavy hitters in this country. If you want to learn about the Canadian Constitution, take that course, it’s a great crash course in the Constitution, and just go to Runnymede events.
We try to make things accessible to a non-legal audience. I think you can probably tell from this discussion I always assume that I’m speaking to, let’s say, an educated non-legal audience. I don’t want to just speak to lawyers. I don’t want to just speak to academics. I want to speak to people who aren’t lawyers, but who are interested in this topic.
It is not sorcery, it is not something that you need years and years of training to understand the basics of. That is something that some legal scholars might say but the truth is that if you are smart and you are engaged, you can learn about this too and you absolutely should because the responsibility lies with each of us to hold our institutions to account.
SEAN SPEER: Well, for those who want to better understand the Canadian Constitution listening to this podcast is the first order of business. Asher Honickman, partner at the law firm Jordan Honickman, thank you so much for joining us at Hub Dialogues today to share your thoughtful insights and analysis. We’re grateful to have had the chance to speak with you.
ASHER HONICKMAN: Well, thank you so much, Sean.
