Dialogue

Legislated Rights makes an important contribution to contemporary rights scholarship. Taking the Universal Declaration of Human Rights as its starting point, it explores how legislatures can and should play an active role in ensuring that people enjoy rights, not just in the abstract, but in their day-to-day lives.

In a series of chapters, the authors suggest that action by legislatures is the optimum way to secure both positive (freedom to) and negative (freedom from) human rights. This is a welcome counter to the view sometimes expressed that rights are trump cards against the general welfare (Dworkin’s Dual Form Thesis), putting rights and legislation at odds with each other. Equally welcome are the arguments seeking to refute the commonly held view that legislatures, as majoritarian institutions, are unable to protect rights. In fact, legislatures have long been passing laws that enhance social, political and individual rights.

In this brief commentary, I offer thoughts on two points that arise in Legislated Rights. The first is on the relationship between legislatures and courts in maintaining rights. The second relates to the relationship between definitions of rights and the proportionality exercise commonly used by courts to justify infringements, or limits, on rights.

Let me first comment on the relationship between legislatures and courts in upholding and realizing rights. I agree with the thesis that legislatures can and should protect rights, positive and negative. In a constitutional democracy, all branches of government, including the legislature and executive, are required to uphold rights. Rights are not the sole sinecure of the judiciary. Moreover, this makes practical sense. Positive laws enacted by legislatures enable communities to express rights dynamically. This is particularly true for positive rights, like health care and education. The organizational challenges here are complex, and involve large expenditures of public money. This is quintessentially the home turf of legislatures.

Yet, from my perspective as a jurist, I find it more doubtful that legislatures are the sole, or even the primary, institutions to secure rights. Even if legislatures are not inherently biased against minorities, the reality is that they sometimes pass laws that limit the rights of members of minorities. Courts are then called on to vindicate the rights of the minority.

Running through some of the chapters is a dualistic tone – either legislatures or the courts – which leads to arguments asserting that the choice should be legislatures, not the courts. Yet, this is false choice – one that, in my respectful view, misstates the democratic rights enterprise. We do not need to choose between courts on the one hand and legislatures on the other. Both are required to uphold rights. The relationship between courts and the legislatures is complementary, not oppositional. If legislatures act strongly to uphold rights, courts will have less to do. Conversely, where legislatures fail to address rights problems, courts may be called on to do more. Some would argue that India provides an example. The Indian Supreme Court is one of the most activist courts in the world, precisely because, some would argue, the legislatures often have failed to pass laws to protect the rights, positive and negative, of the people.

The complimentary relationship between legislatures and courts is caught by the metaphor of dialogue, put forward by Hogg and Hiebert and others.  The legislature passes laws. People who feel the laws infringe their rights apply to the courts for relief. If the courts agree, the legislation may be altered, to the extent the rights have constitutional force and trump the legislature’s will. Even where this is not the case, courts can fine-tune the law through interpretation and, occasionally, recommendations to the legislature. The result is a law that more fully respects the rights of citizens. Citizens need a variety of institutions through which they can assert their claims. If one institution fails them, they can work through another. The result is arguably a more stable, rights-respecting society.

My second comment is on the interplay between how rights are defined and the use of proportionality reasoning to justify limits on individual rights. Legislated Rights takes issue with the concept of rights as defeasible and the proportionality reasoning that courts in Europe and elsewhere use to “justify” limits on rights.

I accept the theoretical difficulty of telling people on the one hand that they have rights, and in the same breath telling them that the state can take away or “defeat” those rights, provided it can justify this by showing there is an important over-arching goal and that it has gone about the exclusionary exercise in a reasonable manner. I also accept (as a jurist who has often been called upon to apply proportionality reasoning under s. 1 of the Canadian Charter) that the proportionality analysis involves courts in making value judgments and weighing competing goods in a way that cannot be objectively defined, leading to the critique that no matter how hard judges try to be objective, the analysis is inherently subjective.

This brings me to the following reflection.  My starting point is that rights – whether positive or negative – can never be absolute. In negative rights terrain, inevitably circumstances arise where one person’s exercise of his right (for example, free expression) will come into conflict with an overriding goal (for example, preventing pornographic or defamatory speech that harms others). The same holds true for positive rights. I may have the right to hip-replacement surgery, but the reality of operating the medical system may mean I must wait a long time to obtain the surgery.

The question for the law, then, is how to limit rights in a way that meets the criteria of a pressing and substantial objective, rational connection, minimal impairment, and overall balance. At base, there are two alternatives (although many blends and variants can be conceived). The first alternative is to define rights as precisely as possible, and limit them by precise limits when this proves necessary.  The second alternative is to define (if that is not a misnomer) rights broadly and use a proportionality analysis to justify limits on the expansively conceived rights.

The Bill of Rights of the United States offers an example of the first alternative. The rights were set out broadly in the various Amendments. But lacking a provision that on its face allowed proportionality justification of limits – the equivalent of s. 1 of the Canadian Charter – American Courts took on the task of defining the rights in a way that limits their applicability. Judicial decisions served as precedents defining the ambit of a right. Different levels of scrutiny played a similar role. Despite their facial absolutism – “Congress shall make no law respecting …” – limits on the rights were defined by the Courts. And defining rights is not the exclusive prerogative of the courts – legislatures, as Legislated Rights makes clear, can also play an important role in drawing the lines that circumscribe rights.

Canadian jurisprudence on the 1982 Charter illustrates the second option. As a newly minted judge, I attended a lecture in 1982 by an American academic on the preferred interpretation of the Charter Canada had just adopted. The professor said we had a choice – interpret each right as precisely as possible, limiting them internally and confining s.1 to an exceptional emergency override; or interpret the rights broadly and do most of the work of limiting rights under s. 1 by a proportionality analysis. He preferred the first approach, arguing that it would increase certainty and decrease subjectivity.

As we all know, it did not turn out that way. Early in its Charter jurisprudence, the Supreme Court of Canada held that rights would be interpreted broadly and purposively, and that the Oakes test – a European-style proportionality test – would be used to define the limits on rights. In Irwin Toy v Quebec (1989) and Rocket v Royal College of Dental Surgeons of Ontario (1990), the Court made some attempt to define freedom of speech under s. 2(b), stating that it extended to commercial speech. But the analysis of zones of importance in Irwin Toy never became defining limits on the right. Similarly, the Court suggested that freedom of religion would not extend to conduct that harms others, but did little of the real analytic work under the s. 2(a) guarantee in subsequent cases. Section 7 was defined broadly to include substantive liberty rights, to the surprise of many who had seen it only as a procedural guarantee. The rights with internal qualifiers – s. 8 (unreasonable search and seizure) and s. 12 (cruel and unusual punishment) – received more analytic attention. But the heavy lifting was usually done by the proportionality analysis under s. 1. All that was required at the rights stage was a finding that the right was “engaged”.  It was under the proportionality analysis that the ambit of the right and the seriousness of the breach fell to be considered. The Court not infrequently divided on the justification analysis, raising concerns over certainty.

Legislated Rights serves the useful purpose of drawing our attention to the proportionality analysis that in many parts of the world performs the real work of defining rights. Scholars like Aharon Barak (former Chief Justice of Israel) have written importantly on the usefulness of proportionality reasoning in limiting and upholding rights. But the question remains: should we devote more attention to defining the right as precisely as possible, before we advance to the justification analysis? Would it be better – at least in some cases – to conclude that the rights claim is not within the ambit protected by the right, than to simply say the right is “engaged” and move on to the proportionality justification analysis? This is an important issue that deserves more discussion. Legislated Rights serves the important purpose of inviting us to think about it.

Beverley McLachlin is a former Chief Justice of Canada (2000-2017)