Professor Beverley Baines has received a $41,000-grant from the Social Sciences and Humanities Research Council (SSHRC) for a two-year study on “No Rights Are Absolute: the legacies of three Chief Justices.” Baines – who has a passion for illuminating the legal strategies the patriarchal state deploys to deny women their right to equality as guaranteed in the Canadian Charter of Rights and Freedoms – is the principal investigator for the project. Collaborating with her is Dr. Jenna Sapiano, a Postdoctoral Fellow at Monash University in Australia, who will be contributing her interdisciplinary experience in law, political studies and international relations.
Professor Baines spoke with Queen’s Law Reports about this research project that examines decisions by former Supreme Court of Canada Chief Justices Brian Dickson, Antonio Lamer and Beverley McLachlin.
What is the goal of your project?
The goal of the project is to explore the problems and potential of the proportionality doctrine that courts rely on to limit Charter rights. Since rights conflicts are not going to go away, we need more judicial decision-making transparency about them. This is particularly important for women’s rights, where proportionality has a very troubling oppositional record. The project’s in-depth Canadian and comparative case studies will identify whether change from within is feasible, and if so how to promote it.
Why did you decide to initiate a project on this topic at this particular time?
When it comes to the Canadian Charter of Rights and Freedoms, politicians are duplicitous. On the one hand they eulogize the Charter’s rights and freedoms; on the other, they infringe them. To illustrate, in 1982 the federal and provincial governments (except Quebec) agreed to adopt the Charter, proclaiming its value for ordinary Canadians. These Charter virtues are extolled to this day. Consider, for example, Citizenship and Immigration Canada’s on-line publications, Welcome to Canada: Your rights and freedom in Canada and Discover Canada: The Rights and Responsibilities of Citizenship. Welcome to Canada devotes an entire page (page 35) to “Your rights and freedoms in Canada.” It outlines a tradition of protecting rights and freedoms that goes back to the Magna Carta (1215) and forward to the Charter, and which includes such freedoms as expression, press, association, and religion, as well as rights such as to live anywhere, to protection from unlawful arrest or detention, to due process, to equality including gender equality, and to French and English language rights. It mentions protection for gays and lesbians, same-sex civil marriage, and in the latter context protection of religious practices. Discover Canada, which is labelled a Study Guide for Your Canadian Citizenship, has virtually identical full-page coverage of our Magna Carta to Charter rights and freedoms (page 8) with the addition of references to Aboriginal peoples and multiculturalism. However, the same entities (whether federal, provincial, territorial, municipal, or executive/administrative decision-makers) that laud our rights and freedoms have shown no reluctance to contest rights- and freedoms-seekers’ claims for them in virtually every one of the hundreds of Charter cases heard by the Supreme Court of Canada after 1982.
Obviously, the state could be more transparent about and accountable for this dual role in publications such as Welcome to Canada and Discover Canada that are directed to ordinary, new and potential Canadians. However, the state did not coin the refrain “no rights are absolute.” The responsibility for creating this refrain and the ensuing lack of transparency and accountability about it resides entirely with the judiciary. Courts decide first whether challengers can sustain their claims that the state has infringed their rights and freedoms and if so, whether the state can justify the infringement under section 1 of the Charter.
In the 1986 Oakes case, Brian Dickson, Chief Justice from 1984-90, adopted the proportionality doctrine to interpret section 1. His version of the proportionality doctrine focused on the “reasonableness” of the purpose of the legislation. In 1994 in the Dagenais case, Antonio Lamer, Chief Justice from 1990 to 2000, added the criterion that judges could assess the effects of the legislation and then “balance” them against its purpose, ostensibly putting the rights- and freedoms-seeker on a more level playing field. Or so it was hoped by rights- and freedoms-seekers. These hopes were effectively dashed in 2009 in the Hutterian case when Beverley McLachlin, Chief Justice from 2000-2017, contributed her own version of the proportionality doctrine, one that emphasized “deference” to the state’s justification for infringing rights and freedoms. The question her contribution raises is whether “deference” is a novel approach to proportionality or whether it partakes of “reasonableness.” Without more, however, both “deference” and “reasonableness” appear to favour the state’s justification rather than the rights- and freedoms-seekers’ claims.
If research bears out this varied and enigmatic portrayal of the proportionality doctrine by the three Chief Justices, why does it matter? The answer is simple; whatever it is, it must be applied to every case where the Canadian Supreme Court decides the state has infringed a right or freedom. Rights- and freedoms-seekers deserve better, including better than the refrain “no rights are absolute.” What did Chief Justice Dickson mean when he wrote in his Oakes judgment: “The rights and freedoms guaranteed by the Charter are not, however, absolute.” He wrote these words in the context of interpreting section 1 of the Charter but his words are not identical to those in section 1. Indeed, his words appear more harsh and categorical than the words the politicians inscribed in section 1. Did he ever moderate them? Have the two subsequent Chief Justices subscribed to this refrain? If so what did they mean, and did they moderate them? How many, if any, of the 28 Justices who served on the Canadian Supreme Court between 1986 and 2017 adverted to the Chief Justice’s refrain and what did they mean? Have any explicitly or implicitly critiqued or rejected this refrain or aspired to do so? What alternative(s) do their judgments suggest or imply?
The results of the Canadian doctrinal analysis are not the culmination of the project. Rather they provide the basis for a case study about proportionality and gender. The Canadian doctrinal results cover all rights and freedoms in the Charter, but the reach of the proposed case study will be limited to cases in which the Court decided that the state had infringed women’s Charter rights or freedoms and was required to justify the infringement to save the legislation. In these cases the Court applied one of the versions of the proportionality doctrine either to deny the state’s justification or to accept it. After analyzing the Canadian cases to determine how the proportionality doctrine is applied and with what outcomes, they will be compared to similar jurisprudence from countries such as India, the United States, Colombia, Germany and Israel. The objective of this comparative case study is to determine whether the doctrine of proportionality is disproportionately gendered globally.
How will you be conducting your research?
Initially the project’s methodology is doctrinal legal research that involves reviewing all Charter cases decided during the three Chief Justices’ tenures to select the decisions that raise proportionality. These proportionality decisions will be analyzed to identify the features of the doctrine and how these features impact the right or rights sought and the ultimate outcome. In addition to this doctrinal research, a review of secondary literature pertaining to the cases will be conducted. Subsequent research will focus on reviewing relevant comparative scholarly works on proportionality and gender particularly from countries such as India, the United States, Colombia, Germany and Israel. This comparative research will serve as the basis for determining whether the doctrine of proportionality is disproportionately gendered globally.
How will you be using the grant funds?
The grant funds will support JD and graduate research assistance and provide for dissemination of the results at scholarly conferences.