The Supreme Court of Canada goes back to Blackstone? - Canada (Attorney General) v. Hislop

In Hislop same sex couples won a predictable, limited victory against a government whose opposition was a feint. But Hislop et al. made broader claims whose defeat, sensible in itself, required the Supreme Court to consider what it is doing with the Charter. Getting into deep water the Court became lost and divided.

When the Court decided in M. v. H. in 1999 that same sex couples must be treated the same as opposite sex couples Parliament and the Legislatures undertook massive legislation to make their laws comply with their understanding of the Court's decision. Parliament passed the roughly 50,000 word Modernization of Benefits and Obligations Act in 2000. A couple of sections of this act dealing with Canada Pension Plan survivor benefits were in issue in Hislop.

The legislation provided that survivor benefits should not be paid to survivors of same sex "spouses" who died before January 1, 1998 and that no payments should be made to such survivors for months before July 2000, the month the new legislation took effect. The reasons for these cut offs were not made clear before the courts or when the legislation was before Parliament. An official told M. P. Svend Robinson in the committee hearings that policy decisions would be made about possibly affected claimants. It seems that the government had only a vague idea of what the cost of same sex survivor benefits would be and decided on an arbitrary cut off to be safe against a deluge of claims from the past. Future claims could be tracked and budgeted for.

The government made the bizarre argument before the Supreme Court that the cut offs did not discriminate between same sex and opposite sex couples, contrary to M. v. H., but only between different sets of same sex couples. This was too cute even to amuse in law school. The sections under attack expressly revived for the purposes of the cut offs the old definition of "spouse" and maintained the discrimination the courts had condemned, up to January 1, 1998 and July 2000 respectively.

The government's attempt to justify the cut offs under Section 1 of the Charter was not serious. By now it is clear that the Canada Pension Plan does not face a deluge of claims from the past. In any event payments have never been allowed for more that twelve months before the receipt of an application. And many survivors of same sex couples who might have made claims are now dead.

Hislop et al. argued that survivor benefits should be paid to those who might have claimed them if the law had been what the Court in M. v. H. in effect said it should have been from April 17, 1985, the date the equality provisions of the Charter took effect. The trial judge had accepted their argument and suspended for same sex claimants the provisions of the Canada Pension Plan that require claims by estates to be made within twelve months of death and limit payments in arrears to twelve months before receipt of an application. The Ontario Court of Appeal overturned that part of the trial judge's decision and the Supreme Court agreed with it. The Supreme Court's rejection of Hislop's cross-appeal rested on one narrowly technical ground and the gravest issues of jurisprudence.

The Court held that the Charter only guarantees equality to individuals and that as estates are not individuals they cannot make claims relying on the Charter's equality guarantee, even though an estate may be less than it would have been because the deceased individual was discriminated against by unconstitutional law before death. If this seems unsatisfactorily technical the Court's decision of the deep issue of constitutional jurisprudence leads to the same result.

It is an old doctrine of jurisprudence, for which the Court found a classic statement in Blackstone, the 18th century commentator on the common law, that courts find law, they do not make it. They may find it in an act of Parliament, perhaps recently passed, and no one suggests that what they find there was the law before it was enacted by Parliament. Indeed it is a general principle of jurisprudence that legislation should not have retroactive effect. It is unjust that what people did in the past should be subject to law that did not exist then. When cases are decided on common law Blackstone's doctrine holds that what the courts decide was always the law even if people did not know it until the courts decided the cases. On this doctrine parties cannot claim that the rights arising from their actions are determined by law that did not exist when they took them. Blackstone's simple classic doctrine is as out of fashion as the wig her wore. Law professors promote the idea that judges can and should make up the law in accordance with progressive thought in law schools while cloaking their legislative activity in mystifications lest people wonder why unelected people should be making laws.

The Charter fits awkwardly into the distinction between legislation and common law. The Charter is legislation enacted by Parliament at Westminster and subject to amendment by the elaborate procedures that came with patriation. But it is peculiarly vague and broadly worded legislation. If you bother to check you can find in the Income Tax Act the exact consequences of any getting and spending you may do. But governments in legislating can only guess whether they are complying with the Charter.

Section 15 of the Charter was suspended for three years to allow Parliament and the Legislatures time to amend their statutes to bring them into compliance with its equality guarantee. Teams of government lawyers were set to work guessing what the courts would make of it and a mass of legislation was passed to comply with it. Some of their guesses must have been wrong and changes made that the courts would not have required if asked. But no one thought to provide same sex benefits. If asked in 1985 the courts would not have required them.

The majority of the Court in Hislop held that Blackstone's doctrine cannot always apply in Charter decisions and that "when a court is developing new law [emphasis added] within the broad confines of the Constitution, it may be appropriate to limit the retroactive effect of its judgment." It laid emphasis on Egan, in which the narrowly divided Court in 1995 found the Charter did not require that "spousal allowances" under the Old Age Security Act be paid to same sex partners. Frankly admitting that the Court had made new law it held that the retroactive remedy the trial judge had devised would be applying new law to the past.

Mr. Justice Bastarache in a forceful dissent accused his colleagues of asserting "in essence, that the Constitution actually changed between 1985 and 1999, and that the claimants, unlike other Canadians, were not entitled to its protection in 1985." Rejecting Blackstone's theory of common law and insisting that it is made by judges and not found, Bastarache yet insisted that "Judges do not "make" the Constitution every time they interpret its provisions....Charter rights are not created every time that a court ...[he quotes the majority] 'gives content to broad, but previously undefined rights, principles or norms'."

Sharply kicking the legs out from under the bench on which the majority sat, by some kind of levitation Bastarache still sat with them on it and agreed with the result, refusing a remedy by which Hislop et al. could receive what he adamantly maintained was due to them by Charter right since April 17, 1985. He claims for the Court an unexplained authority to do as it sees fit in giving retroactive effect to its judgments. He could as reasonably claim authority to do so prospectively.

The majority found a logical ground for refusing retroactive relief in holding that the Court had made new law in M. v. H. but could give no logical account of when it would be "operating inside or outside the Blackstonian paradigm", i. e. applying existing law or make new law. Bastarache insisted logically that the Court could only be applying existing law found in the Charter but could give no logical ground for refusing retroactive relief.

The conundrum would be resolved if the Court adopted a restrained, modest, conservative approach to the Charter, finding in it only rights that are plainly there, and gave precise succinct reasons making clear what is not clear in the Charter. Then we should all know where we stand under the Charter and the Court would not have to operate "outside the Blackstonian paradigm". The Court's freedom and power would be circumscribed. But from the start the Court used the Charter to make new law and gave such prolix, obscure and incoherent reasons that it is a sure thing that in the years to come it will find rights we do not know and even deny rights we think we have.