The maximalist Charter: The problem of instrumental rationality

The following is part two in a series of pieces examining Charter jurisprudence in Canada, the structural doctrines guiding the Supreme Court of Canada’s rulings, and how critics might go about seeking meaningful, long-lasting reform. You can read part one here.  A little more than a year after Hunter v Southam, the Supreme Court of Canada decided Reference re BC Motor Vehicle Act. There, a majority held that the phrase “principles of fundamental justice,” contained in section 7, encompassed not just procedural due process (or “natural justice”) but substantive limits on what legislatures could do (insofar as life, liberty, or security of the person would be threatened). This was not at all obvious. There are strong reasons to think that section 7 was drafted as it was precisely to ensure that controversial American notions of “substantive due process” would not be imported into Canada. By the Court’s own reckoning, many of the drafters of the Charter thought they were merely entrenching well-established notions of procedural or natural justice. (The Court dismissed this evidence as essentially irrelevant for a purposive interpretation of Charter rights. Thus, the defensibility of the decision in BC Motor Vehicle Reference rests on the interpretive approach adopted in Hunter.) In the criminal (and quasi-criminal) context, the holding in BC Motor Vehicle Reference had immediate (if still uncertain) consequences for mens rea requirements, and within a few years (in Martineau) led a majority to strike down the constructive murder provisions in the Criminal Code; would soon lead to the constitutionalization of a highly controversial (albeit limited) defence of intoxication; and contributed to deep confusion on the law of duress, which was resolved only through a bizarre act of judicial “legislating.” As my colleague Sarah Burningham has observed in a recent paper, commentators are still divided on whether Morgentaler articulates a “right to abortion” or not. The principles of instrumental rationality Yet the power to articulate new section 7 rights to “this” or “that” has not actually been used as often as one might imagine. (I have observed elsewhere that the decision in Martineau has not been anywhere near as far-reaching or radical as it could have been—reflecting, I think, implicit recognition that the “test” it articulates is unworkable.) Rather than regularly conjure new substantive rights to have access to certain things or to engage in certain activities or practices, the Supreme Court has instead tended to focus its attention on substantive rights concerning how legislation is crafted in the first place. These are the principles of “instrumental rationality”: arbitrariness; overbreadth; and gross disproportionality. In Bedford, the Supreme Court defined and distinguished these principles in the following terms: Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose. There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person …. A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests. Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. Gross disproportionality asks a different question from arbitrariness and overbreadth. It targets the second fundamental evil: the law’s effects on life, liberty or security of the person are so grossly disproportionate to its purposes that they cannot rationally be supported. The rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure. This idea is captured by the hypothetical of a law with the purpose of keeping the streets clean that imposes a sentence of life imprisonment for spitting on the sidewalk. The connection between the draconian impact of the law and its object must be entirely outside the norms accepted in our free and democratic society. All three focus on means-ends rationality. They ask whether the statutory means used to achieve the legislative objective are, in a sense, proportionate to that objective, given the implicit significance of the interests at stake. If the statutory means simply cannot achieve the objective (period, full-stop), then the law is arbitrary. If the statutory means cannot achieve the objective in some instances where the law is applicable, then it is overbroad. If the statutory means are “too” draconian, given the nature of the objective, then it is grossly disproportionate. Constitutional whack-a-mole In some ways, we might think of the principles of instrumental rationality as quite deferential to legislatures. The Supreme Court has consistently said that one cannot use these principles to attack the legislative objective itself; only the extent to which the statutory means used to achieve that objective are insufficiently tailored to its ends. Even if a constitutional challenge is successful, then the legislature can try again with a new statute that pursues an identical objective but with more narrowly tailored means; or re-enact the earlier statute while pursuing a different or somewhat broader objective; or both. A focus on means-ends rationality can therefore have the effect of embroiling activists in a perpetual game of constitutional whack-a-mole: as soon as one piece of legislation is successfully challenged, it can be replaced with another, sending claimants back to square one. For that reason, even proponents of substantive principles of fundamental justice can reasonably take the view that the biggest questions concerning the limits of state power rarely get settled. Consider the Supreme Court of Canada’s 2013 decision in Bedford, where it struck down the old sex work provisions. The result was simply a bunch of new sex work provisions enacted the following year. Those provisions had to be challenged anew and were ultimately upheld only this year in Kloubakov. I have no objection to that result. But from the point of view of constitutional lawyers who want to use the Charter to implement and enforce a (small-l) liberal, Millian vision of what the limits of the criminal law should be, surely the result is deeply frustrating. Had the Court in Bedford struck down the earlier sex work laws on the basis, say, that such laws offend some version of John Stuart Mill’s harm principle, they could not have been resuscitated no matter what objectives Parliament sought to achieve. This would be problematic on another ground, namely, that it would tie Parliament’s hands, preventing it from responding to an arguably objectifying and degrading social practice. But at least one could say that the question “are there some hard constitutional limits on what Parliament can criminalize?” had been definitively resolved. As matters stand, we can only say that these new sex work provisions have been found to be proportionate to their objective, not whether there is any intrinsic constitutional problem with criminalizing conduct solely on the basis of its immorality. (On that point, the case authorities still pull us in different directions.) Harassing legislatures There is, moreover, another way of looking at instrumental rationality: it allows challenges to legislation—again, legislation that violates no discrete right to anything—simply on the basis that litigants object to how the legislature crafted a statute in pursuit of putatively legitimate aims. This hardly seems like a model of deference. On the contrary, it offers greater room to harass legislatures as they attempt to address matters of legitimate social concern. Yes, this line of attack is available only when the legislative initiative threatens life, liberty, or security of the person. But only a single individual need be so threatened. And keep in mind that there is no freestanding right to life, liberty, or security of the person – one only has a right not to be deprived of those things except in accordance with principles of fundamental justice. So judicial review of means-ends rationality is not even predicated on the finding that a right has been infringed. Moreover, it is far from obvious, given the inherent slipperiness of language and the inevitability that laws will be applied in unforeseen circumstances, that any law can be perfectly tailored to its objectives. Hence, there is a good argument that the Court should never have recognized (non-) overbreadth as a principle of fundamental justice in the first place. For its part, the principle of gross disproportionality seems practically designed to invite judicial second-guessing of legislative policies. Note, too, that principles of instrumental rationality have been used to attack legislative efforts at undoing (or rolling back) statutory entitlements that no one claims the legislature had a constitutional duty to confer in the first place—e.g., bike lanes; or the partial defence of provocation in the Criminal Code. It is a basic principle of legislative sovereignty that the legislature may undo what it once had done. This is important, since it allows legislatures both to respond to changing conditions and gives them room to engage in policy experimentation. Yet the principles of instrumental rationality make it difficult for legislatures to double-back, even cautiously (as with provocation). Since they preclude the legislature from doing anything that puts life, liberty, or security of the person at risk, unless the means are tailored to the legislative ends, a legislature may be constitutionally blocked from abandoning a law or policy that it had no constitutional obligation to enact in the first place. Too unprincipled and not principled enough To conclude this post, the principles of instrumental rationality are arguably both too unprincipled and not principled enough; too deferential and not deferential enough. They allow harassment of the legislature without offering definitive legal resolution or even a clear, coherent moral vision in exchange. Even if one accepted review on grounds of instrumental (ir)rationality as in some sense better than American-style “substantive due process”—involving the articulation of more and more rights to this or rights to that—we should remember that the Supreme Court of Canada has not said it will not, still less cannot, do both. And of course, had the Court stuck with procedural principles of fundamental justice, we could have had neither. A version of this article was originally published on Michael Plaxton’s Substack here.