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A few years ago I wanted to write an article on the Supreme Court of Canada’s ("SCC") brilliance at “triangulation” – the term Bill Clinton used to signify coming up with a policy option somewhere in between two seemingly incompatible ideas. It seemed to me that the Court, like Clinton, constantly (and effortlessly) found ways through legal miasmas.
I had forgotten about my theory until the recent decision of British Columbia (Attorney General) v. Christie, 2007 SCC 21 [Christie]. The case involved the British Columbia Social Service Tax Amendment Act (No. 2), 1993, SBC 1993, c 24 that imposes a 7% tax on the fees billed by lawyers to their clients for legal services. Lawyer Dugal Christie challenged the tax on the basis that it infringed the unwritten constitutional principle of the rule of law by restricting access to counsel for some litigants. The extra cost of legal services for the poor would simply be too much. (It is worth noting that no other profession in B.C. is taxed in this fashion.)
Since the case was a direct attempt to use the unwritten principle of the rule of law to strike down a legislative provision, many thought that the SCC would finally have to confront the question of whether unwritten principles could be used as a sword to strike down legislation. There seemed to be little room for any sleight of hand by “triangulation”.
Not true. In another masterstroke of judicial creativity, the SCC found a way to dismiss the constitutional challenge of the legislation without really dealing with unwritten principles, except in the most cursory fashion. (The whole judgment is cursory, as a matter of fact.) While a slim majority of the BC Court of Appeal took over 14,000 words to argue for the unwritten principle of the rule of law to include a right to counsel, the SCC decided unanimously against this interpretation in little over 3000 words. And it is still by no means clear what our famous unwritten principles can or cannot do.
The SCC seemed to ignore the practical reality that the tax will affect some people more than others. Since it found that there is no “general constitutional right to counsel in proceedings before courts and tribunals dealing with rights and obligations” (para 27) some rights litigants in BC may have to represent themselves in the courts – obviously, the “some” will largely be the poor. The holding implies that the unwritten principles are not subject to a kind of “adverse effects” analysis.
The case is also further evidence of the SCC’s strange relationship with constitutional rights and British Columbia. In Eldridge v. British Columbia (A.G.), [1997] 3 SCR 624 [Eldridge], the SCC found that s. 15(1) of the Charter required that the BC government provide for sign language interpretation at hospitals because there was a “direct and precisely defined connection” between government policy and hospitals (Eldridge, para 51). In B.C. v. Imperial Tobacco Canada Ltd., [2005] 2 SCR 473, the SCC found that neither of the unwritten principles of judicial independence or the rule of law could be used to strike down legislation aimed at targeting tobacco manufacturers for health care costs – but the arguments, particularly on rule of law grounds, were relatively weak. Now, in Christie, the SCC confirms that the rule of law does not include anything more than three principles: that law is supreme; that it should exist and be published; and that it regulates the relationship between the state and the individual. Certainly, there is no room for the poor to get any special favours under this conception of the rule of law.
The shame in all this is that Christie felt compelled to frame the case as involving the issue of a general constitutional right to representation under the rule of law, as opposed to arguing that the tax discriminated against the impoverished. He did that because the poor have not fared well under the Charter (either under s. 7 or 15). Now the same is true with the unwritten principle of the rule of law (presumably, the same can now be said for other unwritten principles such as respect for minorities).
Determining how the public purse is spent is a type of zero-sum game – there is always a fixed amount of revenue available in any given year that must be divided up. After Eldridge, funding for interpretation would have to come from somewhere. I am sure it would be considered heresy if anyone suggested that the 7% charge on legal fees or amounts gained from successful tort claims against tobacco manufacturers may be used to foot the sign language interpretation bill. But who knows? And what if the amount of the tax was 20% instead of 7%? The Court doesn’t seem to think it matters.
Imagine if the Supreme Court of Canada said that the cost of tickets to professional hockey games does not affect your ability to ‘access’ hockey as a game, because you always have the ability to play for free on a backyard rink or lake. The analogy may be a little strained, partly because the business of professional hockey does not engage our constitution. It is unfortunate that not all of us can afford to attend a game, but that is one of the harsh realities of life. Not everyone can own a Porsche either. But the cost of having someone (like a lawyer) assist you with establishing your rights in court is, in my view, a lot closer to ensuring that you are able to communicate with your doctor if you are deaf than it is to hockey. At least it feels more constitutional. Maybe that kind of sixth sense could be the next new unwritten constitutional principle.
10 Comments
When you say this judgment will affect the poor you need to be a little more precise. I think you mean to say "people who may not be able to afford counsel." For argument sake, let us say there are three groups in this set: the destitute (with no income), the working poor (income is below the poverty line) and the low end of "middle class" (those who had after-tax income near 75% of the median of all incomes). Without going into too much detail, the destitute and the working poor have various legal aid/legal assistance programs tailored around an income level. If you are above this level it is much more difficult (but not impossible) to find low-cost legal solutions. So really, it might not be the first two classes of persons to feel the pinch here, only the third. Let us look at this from a policy perspective. If the court decided the charter did provide for a universal right to counsel provided by the state, it STILL would be the middle class that would bear the brunt of the costs as they pay a large (if not the majority, but I can't find any data to support this statement) portion of federal and provincial taxes that could be used to fund such a program; the destitute and the working poor paying little or no income tax. If the state provided counsel to everyone, and spread the cost amongst the population it would amount to a “litigation insurance” fund. Maybe this would be a just and fair outcome. Maybe it should be left to the individual to manage their risk.
Richard Haigh wrote: "And it is still by no means clear what our famous unwritten principles can or cannot do." Cursory" seems to be in vogue these days in our highest court. It's possible that some in Australia and the UK, and even the US, who have to wade through far longer reasons are envious. On the other hand, maybe not.
One might suggest that, given the view that the SCC took of the record, perhaps the SCC was of the view that, for the moment, too "much judicial and academic ink has been spilled over the proper test for" what Canada's unwritten principles can or cannot do and, on the record in Christie, it "is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases."
The SCC's ability which Richard described as "triangulation" might equally well be described using Keats' "negative capability".
In my view, the SCC has said what amounts to "never say never". From a practitioner's perspective, the SCC has left intentional openings in the reasons, inviting a new case on a better record and the argument that there are more than the rule of law in Canada now includes more than just the 3 principles referred to in paragraph 20. (I point out that, based on Hislop, it now seems that the rule of law may include some measure of prospective overruling extending even into private law areas. Some readers will know that the UKHL has accepted that possibility. Blackstone is still spinning.)
To be fair to the SCC, para 20 of Christie leaves it open that there may be more than 3 principles, in Canada, to the rule of law. The first sentence is: "The rule of law embraces at least three principles."
I think it's worth setting out the paragraphs (or portions) of paragraphs 20-29 which invite somebody to try again on a better record.
Does anybody smell incrementalism? Regardless of how unworkable that theory might be? How many specific and varied circumstances of the right do we need before we have a general right?
Beyond that?
There was once a BC premier who said words to the effect of "the poor of BC should put their faith in prayer, not government". For the moment, at least, when it comes to providing an appropriate mechanism for those who are legitimately (whatever that means) unable to afford paying appropriate amounts for legal representation, it seems that we can substitute "the SCC" for "government" in that comment.
I'd say the problem with unwritten constitutional principles are precisely that they are a "sixth sense." It is understandable that lawyers would think legal services particularly important, but in a market system we let people decide their own priorities.
A consumption tax is progressive if the proportion of income spent on the good or service increases with income. (In the jargon of the economics profession, is a "superior good.") Exempting legal services from consumption taxes makes them more, not less, regressive.
Christie clarifies what Imperial Tobacco taught anyone who bothered to read it carefully: the rule of law, as comprehended by the Constitution, may include more than the three requirements identified by the Supreme Court of Canada to date.
That being said, good luck finding an additional requirement of the rule of law that is supported by "a review of the constitutional text, the jurisprudence and the history of the concept" of the rule of law. The Court may have left the figurative door open, but it's probably going to be impossible to walk through that door.
I found the responses to the blog very interesting. As a first time blogger, they certainly made me realize how easy it is to miss important points.
Most of the comments I agree with; these additional comments are by way of clarification more than anything.
Tom Hughes makes the point that the truly poor are let off with these kinds of taxes, and that it is the middle class that would be asked to bear the burden. This may be true (doesn't the middle class, by virtue of its size alone, bear the bulk of the tax burden in Canada?) but there is a problem that I see: legal aid (at least in Ontario, and I'm sure is true in BC) services only a small percentage of claims -- usually for criminal and landlord and tenant matters. We don't have a Judicare model in Canada that is anywhere near as comprehensive or universal as our Medicare system. Of course, it is true that that is a policy decision that governments are entitled to make. But the Charter can be used to strike down unfair or improper policy decisions; this case pretty much tells us that the unwritten principles cannot.
I agree with David Cheifetz (and also Mike) that the Court left open the possibility of expanding the concept of the rule of law some other day. I should have been a little more careful in my wording. But it does seem, as David says, difficult to imagine what future situation will call for the rule of law to include a right to counsel. (And I should also note that I did not intend to imply "cursory" pejoratively either -- I love the short SCC decisions!!). The Court's restriction of the rule of law to (basically) the three principles ignores centuries of legal and philosophical debate about what that concept is (and by judicial fiat, seems to ignore that the debate has even occurred).
To Gareth, all I can say is that I'm not an economist nor do I know much about tax, but again, it seems to me that a consumption tax that only applies to one thing (legal services -- not to plumbing services, not to alternative health care, not to driver's licence fees, etc. etc. etc) is not exactly progressive. Any exemption, therefore, would simply make legal services the same as everything else in BC. If legal fees were suddenly exempt from the GST, I would entirely agree with you. But I think it is different when a tax is levied on only one profession. (It also leads into my point that it seems to me that it is the discrimination of it all that makes this a little hard to take but that Christie was unable to argue against.)
it seems to me that a consumption tax that only applies to one thing (legal services — not to plumbing services, not to alternative health care, not to driver’s licence fees, etc. etc. etc)
The taxation of services under the Social Service Tax Act is complicated, but it doesn't just apply to legal services. Here is the Ministry of Revenue's guide for tourists. Car and machine repairs and telecommunications services are taxed, for example. A number of categories of goods -- notably food and books -- are exempt.
I agree from a policy point-of-view that the tax base should be as broad as possible. And I understand the legal profession's annoyance that its services are taxed while those of accountants, for instance, aren't. But I just don't see how that makes it a constitutional matter. And it also doesn't make it discriminatory against the poor -- you'd have a better argument that a tax on bike repair does that.
Just to play law professor for a moment...
What if rather than a tax on legal services the government decided to impose some rather hefty court filing fees without incorporating any procedure for the indigent to have them waived.
Imagine further that the government pledged to use the funds collected to fund legal aid in the province.
Obviously such fees would make the courts much less accessible to the poor than they would otherwise be.
Is there a constitutional principle (written or unwritten) that could be used by the Court to intervene and ensure unimpeded access to the courts?
Of course, this is different then Christie. Here, we wouldn't be talking about an indirect barrier to access like higher costs for retaining the services of a lawyer due to some government imposed tax. In my hypothetical the court fees would directly limit the ability of the poor to access the courts. Faced with such a scenario might the Court recognize that the rule of law must necessarily preclude government from erecting such direct economic barriers to accessing the courts?
Any thoughts?
Well, your playing an excellent Socrates, because I think your comment raises two interesting points.
The first is that in your scenario, the court fees might constitutionally amount to a tax, on the principle in the 1884 case of Quebec v. Reed (court fees in excess of expenses incurred in the administration of justice ultra vires as indirect tax). So the issue really is the same as in Christie
But the more Socratic point I think you're making is that the Court's distinction between a negative right not to have the state stop you from getting a lawyer and a positive right to have the state provide a lawyer breaks down somewhat in the context of taxation. The SCC treat the argument as essentially about the existence of a positive right, and reject that. But it's arguable that at some level of taxation, the difference between banning people from obtaining lawyers and taxing them for doing so breaks down.
In defence of the Court, I'd concede the point, but argue it didn't matter. If the Province imposed a tax of a million percent on legal fees of people challenging it in court, that would be different. However, the tax here is imposed at the same level as other sales taxes in British Columbia. That makes an (unarticulated) difference.
Is not Professor Stribopoulos's question answered directly by Polewsky v. Home Hardware Stores Ltd. (2003), 66 O.R.(3d) 600 (Div.Ct.), where the court held that an indigent person with a meritorious claim or defence cannot be denied access to a court simply because he or she is poor. The court held that the failure of the province to provide a means whereby a indigent litigant could exercise that common law and constitutional right of access "constituted a constitutional defect that must be cured" (at para. 45). The court came to this conclusion nothwithstanding its early finding that the denial of access to civil courts did not violate either ss.7 or 15 of the Charter.
The court ordered the province to amend the relevant legislation to provide a mechanism whereby a litigant would not be denied his or her right to access legal proceedings simply because he or she was indigent. On the facts of the case, the court concluded, however, that even if there were a statutory mechanism to waive fees in appropriate circumstances it would not be available to this applicant. The applicant had failed to adduce evidence that "but for" the waiver or reduction of fees he would be able to proceed. If is my understanding that the 2004 amendments to theAdministration of Justice Act (Ont.) that provide a statutory mechanism for the waiver of certain court fees, is a legislative response to the court's reasoning in Polewsky v. Home Hardware Stores Ltd.
Marcus Pratt
Legal Aid Ontario
I recently stumbled across a passage from Chief Justice Dickson’s majority judgment in BCGEU v. British Columbia, [1988] 2 S.C.R. 214. I think it addresses Professor Stribopolous’ question, and can’t figure out for the life of me why it didn’t play a bigger role in Christie:
Admittedly, BCGEU was concerned with access in the strict, physical sense. (The Court was asked to consider the constitutionality of an injunction against striking court workers, who had taken to picketing outside British Columbia’s courthouses.) Still, Dickson’s message is just as valid as it relates to financial barriers to access. At a minimum, BCGEU deserved more than the cursory dismissal it received in Christie:
In other words, access is no different than the rights expressly mentioned in the Charter. Sure, it’s important. But it’s also subject to reasonable limits. What this view ignores (and what Dickson’s words capture nicely) is that access is not like other rights. Rather, it is more like an unwritten principle – a pre-requisite, in other words, without which all other rights become unenforceable.