Saturday, March 25, 2006

Sounds of Silence: "Unwritten Constitutional Principles" and Value for Law Degrees

Ah, the federal election of 2006. Bliss it was to be a political junkie, but to be a law geek was the very heaven.

From an ordinary poli-junkie's perspective, it was a great election, what with the multi-party alliances of convenience, the self-immolation of the Earnscliffe gang and the return of a national party. But for a con-law geek in the midst of ordinary politicos, it was even better. Should we get rid of the notwithstanding clause? Entrench property rights? Abolish the Senate? The law geek could pontificate with an air of professional authority, and, it must be confessed, the Pithlord did not always pass up the opportunity.

Of course, to cultivate the air of a true cognoscentus, it was important to say that all of these debates missed the real point, and that moves had been made in the game of judicial power that could not be undone by the remedies of the politicians. And, best of all, in the winter of 2005, it was true.

A few days before Christmas, the British Columbia Court of Appeal ruled that the Social Services Tax could not apply to legal bills. Over the dissent of the fearsome Mary Southin, three members of the Court decided that taxes on legal bills offended an unwritten constitutional right to legal representation. The majority discerned from the sounds of constitutional silence the command that all the world might be taxed, but not the transactions between a lawyer and her client.

No one likes taxes, and we have gotten used to courts striking down legislation, but the grounds used in Christie should still cause a self-governing people a bit of concern. Striking down a tax on legal services is not going to benefit the poor: on the contrary, it shifts taxes elsewhere, which will inevitably be regressive. Unwritten principles have unwritten boundaries. The Charter may not constrain the courts very much, but at least they have to go through the motions of an interpretative exercise, and the ability of the government to put forward evidence under section 1, and ultimately to override under section 33, keep judicial review a subordinate part of our governing structure.

The BC Court relied on the precedent of one of the Lamer SCC's most questionable decisions, the Provincial Court Judges' Reference. There, for the first time in 130 years, a Canadian court struck down a statute on the basis that it conflicted with "unwritten constitutional principles," and required the legislatures' to engage in a kind of interest arbitration for the compensation of provincial judges.

It would be a mistake to attack this decision on the basis that there are no unwritten principles in the Canadian constitution. There clearly are. But the highest of these principles is that Parliament is supreme, and while the English courts could review executive action to make sure it complies with the common law and statutory authority, they could not do the same for legislation. If an Act of Parliament was properly passed, then the courts had to give effect to it.

In his dissent in the Judge's Reference, Gerard La Forest had a great deal of fun with Lamer's ahistorical conception of judicial independence. He also pointed out that judges deciding on their colleagues' compensation were in causa sui. But the biggest problem with the decision is that it leaves a hole in the Constitution wide enough to force any judicial agenda through.

The BC Courts are still working out the consequences of the decision, and it will likely go to the Supreme Court of Canada. My general impression of the McLachlin court is that it wants to consolidate the craziness of the Lamer era, but, obviously, the surprising intervention into health policy last year stands as a counter-example. As the CBC likes to say, what the impact will be on democracy and the rule of law in Canada, "remains to be seen."

What cannot help but give public choice theorists aid and comfort, though, is that in 140 years, two decisions invoke an "unwritten" constitutional principle to strike down legislation, and both of them directly improve the incomes of persons with law degrees.

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