Equality & Incrementalism: The Role of Common Law Reasoning in Constitutional Rights Cases
It is often said that the Charter ushered in a progressive new era in Canadian law. When this assertion is made the implication is usually that the common law remains a largely conservative or stabilizing force in Canadian law, and that principled change under the Charter holds more promise than the incrementalism of the common law method. But progressives also know that principled constitutional change carries its share of risks, including the risk that rapid, large-scale constitutional change will be met with backlash from government and from citizens, and that the interests sought to be advanced through constitutional litigation might ultimately be worse off. In this paper we argue that courts are justified in adopting an incremental approach to constitutional cases, but only if that approach is infused with the Charter value of substantive equality. We then analyze (Attorney General) v Bedford, the Ontario Court of Appeal’s recent decision on the constitutionality of the prostitution provisions of the Criminal Code, through the lens of an equality-centered approach to incrementalism. We conclude that the Court of Appeal’s judgment contains serious deficiencies from the standpoint of equality. In particular, the majority leaves intact the one provision that specifically targets street sex workers, leaving the most vulnerable sex workers at risk of criminal prosecution and without a remedy. A proper application of common law method, informed by the Charter values of equality and inclusion, would have led the Court of Appeal to a different result, while still grounding the case in the legitimacy of the common law.
A Theory of Quasi-Constitutional Legislation
Since the 1970s, the Supreme Court of Canada has treated a small number of statutes as quasi-constitutional. Despite the longstanding presence of quasi-constitutional statutes in Canadian law, however, the Court has yet to articulate comprehensive criteria for recognizing a statute or regulation as quasi-constitutional. In this article, I argue that quasi-constitutional legislation - or more accurately, some provisions in quasi-constitutional legislation - should be understood as implementing constitutional imperatives. I use the term constitutional imperatives to refer to constitutional obligations of varying degrees of specificity that emanate from the rights-conferring aspects of the Constitution, as well as from those aspects of the Constitution that establish the institutions and procedures of government. Understanding quasi-constitutional legislation as implementing constitutional imperatives has several implications. First, it suggests that quasi-constitutional legislation is a much larger category than the existing case law implies. Second, it emphasizes the importance of politicians as constitutional actors. And third, it helps us understand that the Constitution influences non-constitutional law in ways that go beyond establishing the boundaries of permissible lawmaking. I conclude by showing that quasi-constitutional legislation in Canada is different in kind than the now much-discussed constitutional statute in the United Kingdom.
The Hateful and the Obscene: Studies in the Limits of Free Expression
In a series of landmark decisions since 1990, Canadian courts have shaped a distinctive approach to the regulation of obscenity, hate literature, and child pornography. Missing from the debate, however, has been any attempt to determine whether the legal status quo can be justified by reference to a framework of moral/political principles. The Hateful and the Obscene is intended to fill that gap. L.W. Sumner brings philosophical depth and theoretical rigour to some of the most important and difficult questions concerning free expression. Building on a framework set out by J.S. Mill - that a legal restriction of expression is justified only when the expression in question is harmful to others and when the benefits of the restriction will exceed its costs - Sumner shows how the Canadian courts have replicated Mill's framework in their interpretation of the Canadian Charter of Rights and Freedoms. The Hateful and the Obscene is a compelling interpretation of freedom of expression that combines serious philosophical thought with a focus on Canadian law, thus maintaining the breadth to deal with both obscenity and hate literature.