In Search of Prophylactic Rules
Michael Plaxton*
for meeting
the
the
requirements of
Prophylactic rules are laws created by judges to
constitution. Unlike
prevent violations of
constitutional rules, prophylactic rules have no constitu-
tional status of their own. Legislatures can repeal or alter
prophylactic rules, provided they devise alternative
strategies
the
constitution.
While the United States Supreme Court has
recognized prophylactic rules, the Supreme Court of
Canada has yet to do so. Nevertheless, the Supreme
Court has created unacknowledged prophylactic rules.
Examples include the Courts requirement for a search
warrant regime in Hunter v. Southam Inc. and its
demand for independent provincial judicial salary
commissions in R. v. Campbell. In both of these cases,
the Court appears to have conflated prophylactic rules
with constitutional requirements.
By failing to distinguish between constitutional
and prophylactic rules, the Court has introduced
confusion into several areas of constitutional law. The
Court has also denied the role of Parliament and the
provincial
the
constitution. Recognition of prophylactic rules would
allow for more meaningful dialogue between courts
and legislaturesif only in the long term.
legislatures as co-interpreters of
juges afin dviter des violations
Les rgles prophylactiques sont des lois cres
les
la
par
constitution. Cependant, contrairement aux rgles
constitutionnelles, les rgles prophylactiques nont pas
de statut constitutitionnel propre : le pouvoir lgislatif
peut les abroger ou les modifier, condition de prvoir
des stratgies alternatives qui rpondent aux exigences
de la constitution.
Bien que la Cour suprme des tats-Unis ait
reconnu lexistence des rgles prophylactiques, la Cour
Suprme du Canada ne lui a pas encore embot le pas.
Pourtant, une analyse attentive des jugements de cette
dernire nous indique que la Cour a dj cr des rgles
prophylactiques, sans les reconnatre comme telles.
Cest notamment le cas du rgime de mandats de
perquisition dans Hunter v. Southam Inc. et de
lexigence dune commission indpendante sur les
salaires juridiques provinciaux dans R. v. Campbell.
Dans les deux cas, la Cour a prsent ces rgles
prophylactiques comme des essentiels constitutionnels.
En ne distinguant pas les rgles constitutionnelles
des rgles prophylactiques, la Cour a fait natre la
confusion dans plusieurs domaines du droit
constitutionnel. La Cour refuse du mme coup au
Parlement et aux assembles lgislatives provinciales
leur rle lgitime dinterprtes de la constitution. La
reconnaissance des rgles prophylactiques permettrait
un change plus constructif entre cours de justice et
corps lgislatifs ne serait-ce qu long terme.
* Lecturer in Law, University of Aberdeen. I am grateful to Carissima Mathen, Kent Roach, an
anonymous referee and the editors of the McGill Law Journal for their comments and suggestions.
Any errors and omissions are mine alone.
Michael Plaxton 2005
To be cited as: (2005) 50 McGill L.J. 127
Mode de rfrence : (2005) 50 R.D. McGill 127
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 50
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Introduction
I. Constitutional Rules and Prophylactic Rules
II. Search Warrants and Disclosure
III. Unwritten Rules, Unnecessary Prophylactics, and Campbell
IV. Disposable Rules
V. Dialogue and Elocution
Conclusion
129
129
133
138
143
145
148
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M. PLAXTON IN SEARCH OF PROPHYLACTIC RULES
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Introduction
The United States and Canada are very different in constitutional structure,
history, and culture. For that reason, Canadian jurists, judges and lawyers should
exercise caution when attempting to use American constitutional jurisprudence to
settle Canadian constitutional problems. It might behoove Canadian jurists, however,
to occasionally look to American legal scholarship and case law for concepts that help
bring order to constitutional thinking, even if the substance of American case law
remains something to approach warily for the purposes of transplantation.
The idea of prophylactic rules, as distinguished from constitutional rules, belongs
in this category of concepts that deserve a second look. Lately, there has been a great
deal of chatter in Canadian legal scholarship (as well as in the popular press and
legislative assemblies) about judicial activism and whether or not the Supreme Court
of Canada engages in it. More pronounced attention to prophylactic rules in Supreme
Court decisions would do much to alleviate those concernsif only in the long term.
This paper begins by briefly explaining the distinction between constitutional
rules and prophylactic rules. It follows with an analysis of five cases in the Supreme
Court canon: Hunter v. Southam,1 the Provincial Court Judges Reference,2 R. v.
Taillefer,3 R. v. Prosper,4 and R. v. Mills.5 In all five cases, the Supreme Court could
have facilitated greater dialogue with the legislature by distinguishing constitutional
rules from prophylactic rules in its reasoning. By failing to use the concept of
prophylactic rules, the Court has notdespite its frequent invocation of the dialogue
metaphordone nearly enough to help the other branches of government discharge
their responsibilities as constitutional actors, and charges of judicial activism are
inevitable.
I. Constitutional Rules and Prophylactic Rules
When the Supreme Court says that the constitution requires the state and its
agents to do something, the Court makes one of two claims. It either claims that the
constitution requires the state to take a particular course of action, or it claims that the
constitution requires the state to achieve a certain state of affairs and that the
1 Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc.,
[1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641 [Hunter cited to S.C.R.].
2 Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference
Re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island; R. v.
Campbell; R. v. Ekmecic; R. v. Wickman; Manitoba Provincial Judges Assn. v. Manitoba (Minister of
Justice), [1997] 3 S.C.R. 3, 150 D.L.R. (4th) 577 [Campbell cited to S.C.R.].
3 R. v. Taillefer; R. v. Duguay, [2003] 3 S.C.R. 307, 233 D.L.R. (4th) 227, 2003 SCC 70 [Taillefer
cited to S.C.R.].
4 [1994] 3 S.C.R. 236, 118 D.L.R. (4th) 154 [Prosper cited to S.C.R.].
5 [1999] 3 S.C.R. 668, 180 D.L.R. (4th) 1 [Mills cited to S.C.R.].
[Vol. 50
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government must take the step in question in order to reach that constitutional end. If
the government can achieve the constitutional goal through only one course of action,
the constitution requires the state to take it; there is, in effect, an implied provision in
the constitution directing the government to take that step.6 If, however, the course of
action is just one of several possible strategies for achieving the constitutional end, the
rule enunciated by the Supreme Court does not count as a constitutional rule. Its
authority stems not from the constitution, but from the Supreme Courts law-making
authority.7 The directive has no constitutional status per se, since Parliament could
substitute a new strategy for that devised by the Court without necessarily breaching
the constitution. It has constitutional significance, though, since it cannot simply be
abolished or ignored; doing so would leave the state without any means of fulfilling
its obligations under the constitution.8 Unless and until the state creates an alternative
strategy for achieving its constitutional ends, the state must respect the directive
issued by the Courtnot because the Courts strategy is superior to any and all other
possible mechanisms, but because the constitution will not permit a strategic vacuum.
The rule, issued by the Court in recognition of the states constitutional
responsibilities, is not a constitutional rule, but a prophylactic ruleprophylactic
since it acts as a barrier against the sort of strategic vacuum that would compromise
constitutionality.9
Much hangs on the distinction. If a provision of the constitutionwhether written
or implied10requires the state to adopt a certain specific course of action, the state
must do so no matter how inconvenient the application of that rule may be in certain
situations. Unless the courts subsequently discover that the constitution says
6 See Campbell, supra note 2 at para. 107. The right to disclosure may be an example of an implied
derivative constitutional right. See R. v. Carosella, [1997] 1 S.C.R. 80, 142 D.L.R. (4th) 595
[Carosella cited to S.C.R.]: It is immaterial that the right to disclosure is not explicitly listed as one
of the components of the principles of fundamental justice. That is true as well of the right to make
full answer and defence and other rights. The components of the right cannot be separated from the
right itself (ibid. at para. 138).
7 Whether and to what extent such authority exists may itself be a point of controversy. One
defender of this sort of law-making, in the United States, has pointed to its pervasiveness: see David
A. Strauss, Miranda, the Constitution, and Congress (2001) 99 Mich. L. Rev. 958; David A.
Strauss, The Ubiquity of Prophylactic Rules (1988) 55 U. Chicago L. Rev. 190.
8 Unless an antinomian strategy is, under the circumstances, one of the range of strategies that could
provide the minimum protection required under the constitution. This possibility is explored below in
the discussion of Prosper accompanying note 57.
9 See Brian K. Landsberg, Safeguarding Constitutional Rights: The Uses and Limits of
Prophylactic Rules (1999) 66 Tenn. L. Rev. 925 at 926 (defining prophylactic rules as risk-
avoidance rules that are not directly sanctioned or required by the Constitution, but that are adopted to
ensure that the government follows constitutionally sanctioned or required rules); Joseph D. Grano,
Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy (1985) 80 Nw. U.L.
Rev. 100 at 105 (defining a prophylactic rule as a rule that functions as a preventive safeguard to
[e]nsure that constitutional violations will not occur).
10 Though, as I argue in Part III, different considerations may be brought to bear when the
constitutional rule in question is unwritten as opposed to written.
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something differenteither that the courts were wrong to initially interpret the
constitution as they did or that the content of the constitution has changedthe rule
remains static. As the accepted last word on matters of constitutional interpretation,
the judiciary would effectively assume jurisdiction over any decisions concerning the
survival or manipulation of the rule. The government might amend the constitution to
permit or mandate a different rule, or it might, if the rule ostensibly lurks in certain
the
provisions of
notwithstanding clause. Barring such extraordinary measures, however, the final say
on the issue resides with the judiciary. Furthermore, if the Supreme Court enunciates
the rule, only that Court can change it. Lower courts might be obligated to apply a
poorly crafted rule for many years before the Supreme Court has an opportunity to
reconsider its original formulation.
the Canadian Charter of Rights and Freedoms,11 use
A prophylactic rule, on the other hand, because it is not itself mandated by the
constitution, can be tweaked to fit changing circumstances or situations not
envisioned when the rule was first devised.12 Such a rule, as a creation of the courts, is
in a sense common law (or constitutional common law13), making it subject to
abrogation by an ordinary Act of Parliament. Should Parliament find a better
mechanism to protect constitutional interests, it may sweep away the judicially crafted
rule and substitute its own. Those unhappy with the courts rule can seek to resolve
the matter through political processes rather than litigation. Meanwhile, lower courts,
confronting cases not contemplated by the Supreme Court when it originally created
the rule, need not wait for the Court to overrule itself or qualify its earlier holding.
They can simply note the changed or unanticipated circumstances and do their best to
craft an appropriate exception.14
Both the Supreme Court and the constitution itself benefit when the Court
confronted with a situation crying out for a revised prophylactic ruleneed not claim
that the constitution has changed, or that the Court misinterpreted the constitution the
11 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[the Charter].
12 See e.g. New York v. Quarles, 467 U.S. 649 (1984), where the United States Supreme Court held
that, because the rules created in Miranda v. Arizona, 384 U.S. 436 (1966) were prophylactic in
nature, the Court could create exceptions to them; the Court proceeded to find a public safety
exception at 655. See also Davis v. United States, 512 U.S. 452 at 457 (1994); Oregon v. Elstad, 470
U.S. 298 at 306-07 (1985). But see Dickerson v. United States, 530 U.S. 428 at 444 (2000), where the
Courtcontrary to years of jurisprudenceheld that Miranda had enunciated a constitutional rule.
13 See Henry Paul Monaghan, The Supreme Court, 1974 TermForeword: Constitutional
Common Law (1975) 89 Harv. L. Rev. 1 at 26 (distinguishing between Marbury-shielded
constitutional exegesis and congressionally reversible constitutional law at 31). But see Thomas S.
Schrock & Robert C. Welsh, Reconsidering the Constitutional Common Law (1978) 91 Harv. L.
Rev. 1117 at 1146.
14 I leave aside, for now, whether lower courts should engage in this kind of under-ruling when it
comes to fashioning prophylactic rules, bearing in mind the Supreme Courts holding that findings of
legislative fact should not be subject to appellate deference. See RJR-MacDonald Inc. v. Canada
(A.G.), [1995] 3 S.C.R. 199, 127 D.L.R. (4th) 1 [RJR-MacDonald cited to S.C.R.].
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first time around. When one recognizes that constitutional law includes both
constitutional rules and prophylactic rules, constitutional law appears more flexible
and more democratic. And yet, in Canadian constitutional scholarship, one seldom
sees any mention of prophylactic rules or any suggestion that there might be different
kinds of judicially created rules.15 This has resulted in much confusion and perhaps
some needless argument concerning the proper role of courts in a democracy.
[Vol. 50
Before this paper goes any further, a word of clarification may be in order. There
is some question as to whether the judiciary has the legitimate authority to create
prophylactic rules, since this is a quasi-legislative activity rather than a purely
interpretive one. This is a particularly sensitive issue in the United States, where
article III of the constitution narrows the authority of the federal courts to deciding
particular cases or controversies.16 Canadian law has never emphasized the separation
of powers doctrine to the same extent.17 Anglo-Canadian constitutionalism conceives
of the judiciary as an office of the Crown, and of members of the Supreme Court as
the official advisers of the executive.18 The executive can therefore enlist the
judiciary to determine the constitutionality of various state actions. Rather than
functioning as a check on the executive branch, it would be more accurate to regard
the Canadian judiciary as aligned with the executive branch.19 For this reason, it is
15 See, as a rare example, Cristie L. Ford, In Search of the Qualitative Clear Majority: Democratic
Experimentalism and the Quebec Secession Reference (2001) 39 Alta. L. Rev. 511 at 538, n. 80.
Note, however, that Ford appears to regard the idea of prophylactic rules as a dead letter in Canada,
whereas I would argue that they are everywhere, though not clearly identified.
16 U.S. Const. art. III, 2. A court has jurisdiction to create a rule only to the extent that one is
necessary for the resolution of a particular case. See Lea Brilmayer, The Jurisprudence of Article III:
Perspectives on the Case or Controversy Requirement (1979) 93 Harv. L. Rev. 297. Thus,
American federal courts are constitutionally prohibited from issuing advisory opinions: see Muskrat v.
United States, 219 U.S. 346 at 362 (1911). See also J.F. Davison, The Constitutionality and Utility of
Advisory Opinions (1938) 2 U.T.L.J. 254.
17 See Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 at para. 15, 10 D.L.R. (4th) 385
[Quebec Secession Reference cited to S.C.R.]. Because the separation of powers issue is more, not
less, troubling in the American context, I see no reason why the distinction between constitutional
rules and prophylactic rules cannot be imported into the Canadian legal arena. One may argue that the
Canadian attitude toward the separation of powers is not as relaxed as I make outin the process,
citing the Supreme Courts cases touching upon prosecutorial discretion (see e.g. R. v. Power, [1994]
1 S.C.R. 601 at 620-25, 89 C.C.C. (3d) 1 [Power cited to S.C.R.])but one would have a difficult
time arguing that Canadian law is more vexed on such matters than US jurisprudence. One can say,
then, that if the distinction is valid in American law, it is equally or more valid north of the border.
18 Re References by the Governor-General in Council (1910), 43 S.C.R. 536 at 547, affd [1912]
A.C. 571, 3 D.L.R. 509 (P.C.).
19 This reading may be problematic given the Supreme Courts decisions in Dagenais v. Canadian
Broadcasting Corp., [1994] 3 S.C.R. 835, 120 D.L.R. (4th) 12 [Dagenais cited to S.C.R.] and Retail,
Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at
600, 33 D.L.R. (4th) 174 [Dolphin Delivery cited to S.C.R.], in which the Court denied that a court
order is governmental action within the meaning of subsection 32(1) of the Charter. I think this denial
should be taken with a grain of salt, since the judiciary is required to honour Charter values just as the
legislative and executive branches are so required. Failure on the part of courts to act in accordance
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less problematic to imagine that Canadian courts have a quasi-legislative power not
possessed by their American counterparts. It is hardly obvious, however, that
Canadian courts have the power to declare rules not directly mandated by the
constitution; if they do have such a power, it is unclear that they should use it very
often. This paper does not claim that courts ought to create prophylactic rules. Rather,
it makes the more modest claim that the law already contains many examples of
prophylactic rules, and that the judiciaryparticularly the Supreme Courtwould do
better to acknowledge the place of prophylactic rules in the constitutional landscape.
One can decide another day whether the Courtor Parliament, for that matter
oversteps its role when it devises policies that protect constitutional interests more
than the constitution demands.
II. Search Warrants and Disclosure
The states duty to acquire judicial preauthorization for a search20 is one example
of a rule with a disputable constitutional pedigree. It can be taken for granted that
section 8 of the Charter requires that citizens be secure against unreasonable searches
and seizures and that the Crown therefore must do something to prevent such
intrusions.21 In Hunter, the Supreme Court decided that a warrant regime would
accomplish that task. No doubt it does, to a degree. It does not logically follow,
however, that the absence of a warrant regime leaves the citizen without any
protection against unreasonable searches or without a degree of protection satisfying
the constitutional requirement.
The Charter itself provides evidence that a warrant regime is just one of several
means of protecting the constitutional interests in play. The Charter features a
constitutional rule providing a deterrent: the exclusionary rule found in subsection
24(2). The Hunter Court plainly found that this protection did not, by itself, meet the
constitutional threshold, and that an additional rule would be needed to top off the
security provided by subsection 24(2). Once it is recognized, however, that the
Hunter preauthorization requirement offers no more than a kind of protection
potentially granted by other rule regimes, critical holes emerge in the Courts analysis.
First, the Court does not say how much protection section 8 requires. Perhaps
subsection 24(2) offers little protection, in which case a robust backup rule is needed.
But maybe subsection 24(2) provides enough deterrence on most occasions, such that
with Charter values will amount to an error of law. Where certiorari is invoked to remedy the error,
the reviewing court will have available the remedial powers ordinarily available under subsection
24(1) of the Charter. See e.g. Dagenais, ibid. at 857-58, 864-67, 943-44; Dolphin Delivery, ibid. at
603; Cloutier v. Langlois, [1990] 1 S.C.R. 158 at 184, 53 C.C.C. (3d) 257; R. v. Robinson, [1996] 1
S.C.R. 683 at para. 47, 133 D.L.R. (4th) 42; R. v. Rahey, [1987] 1 S.C.R. 588 at 633, 39 D.L.R. (4th)
481. See also British Columbia Government Employees Union v. British Columbia (A.G.), [1988] 2
S.C.R. 214 at 243-44, 53 D.L.R. (4th) 1.
20 See Hunter, supra note 1.
21 See R. v. Dyment, [1988] 2 S.C.R. 417 at 430, 55 D.L.R. (4th) 503.
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the Court (or another body) must create or recognize a less vigilant or pervasive
strategy, or risk subjecting the state to a level of scrutiny not justified in the
constitution. On the other side of the equation, perhaps a search warrant requirement
either provides insufficient protection or tends (when its effects are considered in
conjunction with other deterrent regimes in place) to go too far.
[Vol. 50
Second, the Court does not seriously consider other mechanisms capable of
satisfying the section 8 standard of security. There is little reason to believe that only
exclusionary rules and search warrant requirements can prevent unreasonable
searches. Civil remedies,22 if made more accessible through legal aid or administrative
processes,23 could serve such a purpose today and make search warrants largely
superfluous.24 In Hunter, the Court noted that the civil law of trespass remedied
invasions of property rather than privacy per se, making the traditional tort
unacceptably narrow.25 One can, however, imagine the Court or Parliament fashioning
new civil remedies or new administrative tribunals equipped to address and remedy
alleged unreasonable searches. Maybe civil remedies would generate unsatisfactory
protection, but the Court does not make this clear. The Court appears to assume that
only a search warrant regime would do:
[A] post facto analysis would, however, be seriously at odds with the purpose
of s. 8. That purpose is, as I have said, to protect individuals from unjustified
state intrusions upon their privacy. That purpose requires a means of preventing
unjustified searches before they happen, not simply of determining, after the
fact, whether they ought to have occurred in the first place. This, in my view,
can only be accomplished by a system of prior authorization, not one of
subsequent validation.26
The Courts myopia leaves it unclear whether the search warrant requirement amounts
to a constitutional rule or a prophylactic rule. By explicitly announcing it as a
prophylactic rule, the Court would have invited Parliament to explore alternative
means of preventing unreasonable searches.27 Parliament might have chosen not to
22 At one time, the United States Supreme Court assumed that the common law of trespass would
deter Fourth Amendment violations; later, it decided that it needed an exclusionary rule to provide the
necessary counterincentive. See California v. Acevedo, 500 U.S. 565 at 581-85 (1991), Scalia J.,
concurring. See also Lawrence Lessig, Fidelity in Translation (1993) 71 Tex. L. Rev. 1165 at 1228-
33; Katz v. United States, 389 U.S. 347 (1967). The Fourth Amendmentunlike section 8 of the
Charterspecifically directs the state to employ search warrants, whatever other measures may be in
place to ensure a minimum level of security from unreasonable searches and seizures. The United
States Supreme Court, when deciding what sort of prophylactic rule to employ, worked from the
starting point that no matter what rule it enunciated, the state could not do away with search warrants.
23 See Lessig, ibid.
24 Courts would, of course, retain jurisdiction to review the constitutionality of searches ex post
facto, but the absence of a warrant would have no significance per se.
25 See Hunter, supra note 1 at 157-58.
26 Ibid. at 160 [emphasis added].
27 For a discussion of the role of Parliament in formulating constitutional rules, see Janet L. Hiebert,
Charter Conflicts: What Is Parliaments Role? (Montreal: McGill-Queens, 2002) at c. 2-3.
M. PLAXTON IN SEARCH OF PROPHYLACTIC RULES
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accept that challenge, but then the exclusion of evidence in cases like R. v. Feeney28
would not have threatened the Courts credibility in the eyes of the publicits own
elected representatives would have spoken. Hunter, as a case announcing a
constitutional rule, seems curious. The constitution does not explicitly demand search
warrants, and nothing in Hunter explains why only search warrants will serve the
purposes of section 8.
135
Consider too how the democratic process might have benefited from the fuller
reasons afforded by recognition of prophylactic rules. Had the Court seriously
analyzed the extent to which section 8 requires protection and the extent to which
search warrant regimes and other potential prophylactic measures (if they exist)
provide protection, Parliament could have used Hunter as a springboard for its own
analysis of the issues. Parliament might have decided that the Court overestimated the
level of protection demanded by section 8 and relitigated the point later. It might have
decided (assuming Hunter claims that only search warrants will do) that the Court had
underestimated the level of protection provided by other strategies or that it had failed
to consider some strategies altogether.
Even if the Court had concluded that certain measures were not prophylactic at all
but were in fact mandated by the constitution, by incorporating the idea of
prophylactic rules into its judgments, the Court could have made other branches of
government more invested in the process of constitutional interpretation. This sort of
dialogue could improve constitutional law generally. Parliament, unlike the
Supreme Court, can conduct in-depth social science research into the effectiveness of
various deterrent measures, can consult interest groups for advice, and can otherwise
collect data helpful in fashioning the appropriate measure. Though no one would deny
that the Supreme Court has the institutional legitimacy to interpret the constitution,
Parliament may have greater institutional competence in gathering the information
necessary to interpret it properly.29
None of this is to say that judicial preauthorization is a bad thing, or that Hunter
was wrongly decided. It is to say, rather, that the Hunter Court would have done more
to involve Parliament in the constitutional process had it recognized a distinction
between constitutional rules and prophylactic rules. In doing so, the Court would have
given the public greater reason to support the rule of judicial preauthorization, even
when its application leads to declarations of unconstitutionality and the exclusion of
valuable evidence in criminal cases. The Court would also have encouraged other
branches of government to think of themselves as responsible, to some degree, for its
interpretation of the constitution.
28 [1997] 2 S.C.R. 13, 146 D.L.R. (4th) 609.
29 Regarding the distinction between institutional legitimacy and institutional competence, see
Patrick Macklem, Aboriginal Rights and State Obligations (1997) 36 Alta. L. Rev. 97 at 104-05.
See also Carissima Mathen, Constitutional Dialogue in Canada and the United States (2002-2003)
14 N.J.C.L. 403 at 412 [Mathen, Constitutional Dialogue].
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Consider also the Supreme Courts recent decisions concerning the Crowns duty
to disclose relevant evidence in criminal cases. In Taillefer, the Supreme Court
described the right to disclosure as a constitutional one … protected by s. 7 of the
Charter.30 But the case reflects muddled thinking about the distinction between
constitutional rules and prophylactic rules.31 In Stinchcombe,32 Justice Sopinka noted
that the duty to disclose acquires constitutional significance only because a failure to
disclose impairs the accuseds ability to make full answer and defence:
[Vol. 50
Apart from the practical advantages [of a Crown duty to disclose] to which I
have referred, there is the overriding concern that failure to disclose impedes
the ability of the accused to make full answer and defence. This common law
right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian
Charter of Rights and Freedoms as one of the principles of fundamental
justice. … The right to make full answer and defence is one of the pillars of
criminal justice on which we heavily depend to ensure that the innocent are not
convicted. Recent events have demonstrated that the erosion of this right due to
non-disclosure was an important factor in the conviction and incarceration of
an innocent person. In the Royal Commission on the Donald Marshall, Jr.,
Prosecution, Vol. 1: Findings and Recommendations (1989) (the Marshall
Commission Report), the Commissioners found that prior inconsistent
statements were not disclosed to the defence. This was an important
contributing factor in the miscarriage of justice which occurred and led the
Commission to state that anything less than complete disclosure by the Crown
falls short of decency and fair play….33
In Carosella,34 Justice Sopinka notes that the duty to disclose follows from the right to
full answer and defence. Despite its derivative status, he treats the former as a
constitutional rule, the breach of which amounts, by itself, to an infringement of
section 7:
The right to disclosure of material which meets the Stinchcombe threshold
is one of the components of the right to make full answer and defence which in
turn is a principle of fundamental justice embraced by s. 7 of the Charter.
Breach of that obligation is a breach of the accuseds constitutional rights
without the requirement of an additional showing of prejudice.35
The Carosella majority assumed that the right to full answer and defence could be
protected only if the Crown were subjected to a duty to disclose evidence that would
(a) assist the accused (however slightly) in answering the Crowns case; (b) disclose a
positive defence; or (c) assist the accused in making a tactical decision. Since the right
30 Taillefer, supra note 3 at para. 61.
31 To be fair, the Court says in the same breath that the right to disclosure helps to guarantee the
accuseds ability to exercise the right to make full answer and defence (ibid.).
32 R. v. Stinchcombe, [1991] 3 S.C.R. 326, [1992] 1 W.W.R. 97 [Stinchcombe cited to S.C.R.].
33 Ibid. at 336 [emphasis added].
34 Supra note 6 at para. 38.
35 Ibid. at para. 37.
M. PLAXTON IN SEARCH OF PROPHYLACTIC RULES
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to full answer and defence required fulfillment of the Crowns duty to disclose, any
breach of the latter responsibility suggested a violation of the broader right.
137
If there is a constitutional rule of disclosure, however, it is difficult to understand
cases like Dixon and Taillefer, where the Court held that a failure to disclose only
amounts to a constitutional problem if it actually interferes with an accuseds ability to
make full answer and defence.36 There is no longer any presumption of prejudice
flowing from a failure to disclose, and the right to disclosure therefore has no
constitutional power of its own. Parliament could devise a rule prohibiting disclosure
in cases where the accuseds right to full answer and defence would not suffer
prejudice. In cases where the accused would suffer prejudice to his or her section 7
rights as a result of Crown nondisclosure, the constitutional status of the right of
disclosure is somewhat more secure. If prejudice is the touchstone though, it should
matter if Parliament can find a way to mitigate it. Since the right of disclosure has no
constitutional standing of its ownas it exists just to protect the right of full answer
and defenceit seems that Parliament could abolish the right of disclosure altogether
if it could find some alternative means of protecting the accuseds broader interest in
making full answer and defence. Suppose, for example, that Parliament decided to
fetter the discretion of prosecutors and obligate them to call any and all witnesses with
important information about the case at bar.37 That sort of rule might protect the
accuseds rights as adequately as any disclosure obligation. So might a rule that gave
prosecutors discretion over the decision to disclose or lead all relevant evidence.38
Yet the Court in Taillefer continues to describe the right to disclosure as
constitutional rather than prophylactic. In the short term, that leads to a mind-
bending scenario in which the Crown can breach a constitutional rule without
violating the constitution. If the Court explicitly identified the duty to disclose as
prophylactic, it could make the more sensible claim that the Crown, by failing to
make timely disclosure, takes a constitutional risk (in the sense that its inaction may
result in a later declaration that the accuseds Charter rights were infringed) but does
not necessarily breach the Charter merely because it neglects to follow the rule of
disclosure. As matters stand, the Court has polluted what could be clear waters.
Perhaps
the right of disclosure as
constitutional, the Court has discouraged Parliament from considering alternative
means of protecting the right to full answer and defence.
importantly, by characterizing
just as
36 R. v. Dixon, [1998] 1 S.C.R. 244, 122 C.C.C. (3d) 1 [Dixon cited to S.C.R.]: [W]here an accused
demonstrates a reasonable possibility that the undisclosed information could have been used in
meeting the case for the Crown, advancing a defence or otherwise making a decision which could
have affected the conduct of the defence, he has also established the impairment of his Charter right
to disclosure (ibid. at para. 22 [emphasis in original]).
37 The Supreme Court in R. v. Cook, [1997] 1 S.C.R. 1113, 146 D.L.R. (4th) 437 [Cook] decided
not to create such a ruleprecisely because it would interfere with prosecutorial discretionbut it
gave no indication that Parliament could not craft one. Indeed, the Cook Court stated that the need for
such a rule was largely extinguished by the duty to disclose.
38 See Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, 217 D.L.R. (4th) 513, 2002 SCC 65.
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III. Unwritten Rules, Unnecessary Prophylactics, and Campbell
Ordinarily, it is clear that a given constitutional rule exists, though there may be a
question about its form and texture. For example, neither the legislative nor the
executive branch of government can claim that a person has no right to be free from
unreasonable searches and seizures, given the language of section 8. There may be
some doubt as to the meaning of that right, but executive and legislative actors are on
notice that the right exists.
[Vol. 50
If the courts have not yet interpreted such a written provision, then the legislature
must take steps to interpret the provision for itself, so that it can get on with the
business of creating statutes and regulations that authorize searches and seizures. The
written constitution introduces an element of certainty, even in the absence of judicial
treatment.39
Unwritten constitutional provisions present problems inasmuch as they can be
discovered only by engaging in a higher level of constitutional interpretation. One
discovers their existence by reading the text of the constitution as a whole, divining its
themes and overarching aims.40 To do that, one first must have a working
interpretation of the individual provisions and a theory about how the provisions fit
together. One needs to interpret the written provisions, not just individually, but
collectively. If there is room for disagreement between Parliament and the courts with
respect to the proper interpretation of individual constitutional rules, then the
likelihood of disagreement about the constitutions general meaning is exponentially
greater. The claim that a particular unwritten constitutional rule exists at all invites
dispute. Legislative and executive actors may not be aware that unwritten rules exist
and need to be considered before statutes or regulations can be created or executive
decisions made.
Judicial respect for Parliament as a coordinate interpretive authority requires the
courts to tread carefully when declaring the existence of unwritten constitutional
norms. A different interpretation of one or several written provisions may undermine
the claim that a particular textual gap exists. If Parliament is entitled to consider, for
itself, the proper interpretation of written constitutional provisions, it must also be
entitled to consider, for itself, whether a given unwritten constitutional rule exists at
all. This does not mean that the judiciary should shy away from declaring unwritten
constitutional rules altogether, but it does mean that the judiciary (if it truly respects
Parliament as a constitutional co-interpreter) can only declare unwritten rules that fit
with multiple plausible interpretations of the various written provisions examined in
isolation and as a body. By confining its declaratory power in this way, the judiciary
39 See Campbell, supra note 2 at para. 93; Quebec Secession Reference, supra note 17 at para. 53.
40 See Patrick Monahan, The Public Policy Role of the Supreme Court of Canada in the Secession
Reference (1999-2000) 11 N.J.C.L. 65 at 75-77; Robin Elliot, References, Structural Argumentation
and the Organizing Principles of Canadas Constitution (2001) 80 Can. Bar Rev. 67 at 83-86.
M. PLAXTON IN SEARCH OF PROPHYLACTIC RULES
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accommodates the possibility that other branches will, in the future, provide a more
plausible interpretation of certain discrete textual provisions.
139
This, in turn, leads to two broad conclusions. First, when exposing unwritten
constitutional rules, the courts must be careful to rest their reasoning not only upon
their own interpretations of discrete textual provisions, but on plausible alternative
interpretations offered by the Crown. When establishing the legal force of some
unwritten constitutional norms, the judiciary may not need to work very hard; for
example, the Crown would never dispute the claim that Canadian law is to be created
democratically or that power is to be exercised in accordance with the rule of law. It
may indeed be politically impossible to deny that those constitutional rules exist.41
Other rules may meet with more resistance, requiring the judiciary to say why
Parliaments own interpretation of textual provisions commits it to those unwritten
norms.
Second, even acknowledging the possibility of interbranch agreement (though
perhaps grudging agreement) about the existence of unwritten constitutional rules,
branches may nonetheless disagree as to what those rules specifically demand. A
holistic interpretation of the constitution will permit the recognition of a general rule.
But it seems far less likely to yield a narrow, precisely tailored rule; many different
variations of the general rule will be compatible with the constitutions underlying
aims. Since branches will inevitably disagree as to how to flesh out the broad
unwritten rule, it will be difficult to say with confidence that a statute or executive
decision is positively incompatible with that general rule or that it fails to accord
constitutionally sufficient attention to the rule. A statutory or regulatory scheme will
therefore ordinarily survive constitutional scrutiny so long as it does not explicitly
reject the values reflected in the unwritten rule; in any other case, a court can interpret
the statute or regulation in light of the rule. An executive decision is in principle more
vulnerable to review on the basis of unwritten rules; provided the decision maker
gives reasons for exercising his or her discretion one way rather than another, the
courts have a basis for saying whether unwritten constitutional norms were
adequately considered.42 (And if the decision maker considers the rule, the courts may
find it difficult to justify the charge that he or she did not consider it enough.)
Compared to text-bound rules, unwritten constitutional rules (understood in light
of a dialogue model of constitutional interpretation) appear to present few hurdles
to legislative or executive action. Because they must, for the sake of judicial
legitimacy, be read as broad norms rather than as precise requirements, a wider
spectrum of prophylactic rules is available. Furthermore, since unwritten rules are
discovered by examining the underlying aims of the written constitution, one would
41 See Sujit Choudhry & Robert Howse, Constitutional Theory and the Quebec Secession
Reference (2000) 13 Can. J.L. & Jur. 143.
42 See Lalander v. Ontario (Commission de restructuration des services de sant) (2001), 56 O.R.
(3d) 505 at paras. 170-79, 208 D.L.R. (4th) 577 (C.A.).
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ordinarily expect one or more sections of the text to go some distance in protecting
the unwritten constitutional rules they reveal. Unwritten constitutional rules will, then,
rarely justify court-created prophylactic devices; written constitutional rulesin
conjunction with the prophylactic devices devised to protect themwill often provide
all the protection necessary.
[Vol. 50
Campbell represents a rare case where the written constitution ostensibly offered
no protection for an implied constitutional rule, and the Supreme Court majority
accordingly found it necessary to create a prophylactic rule that would offer the
necessary safeguards. That the prophylactic rule it devised arguably went further than
necessary underscores the general need to distinguish between constitutional rules
and prophylactic rules.
In Campbell, a majority held that an unwritten postulate of the constitution
(coupled with subsection 11(d) of the Charter) required the state to adopt measures
ensuring the independence of judges. The precise text of the constitution says nothing
regarding how the state must accomplish this goal, yet Chief Justice Lamer, writing
for the majority, declared that provincial governments could abide by the constitution
only if judicial salaries are determined by an independent commission:
What judicial independence requires is an independent body, along the lines of
the bodies that exist in many provinces and at the federal level to set or
recommend the levels of judicial remuneration. Those bodies are often referred
to as commissions, and for the sake of convenience, we will refer to the
independent body required by s. 11(d) as a commission as well. Governments
are constitutionally bound to go through the commission process.43
The majority noted that questions of detailed institutional design are better left to the
executive and the legislature …44 and that so long as each provincial government
43 Campbell, supra note 2 at para. 133 [emphasis added].
44 Ibid. at para. 167. But consider para. 147, in which Chief Justice Lamer appears to determine
many of these institutional details:
requires
that an
independent bodya
[T]he imperative of protecting the courts from political interference through economic
manipulation
judicial compensation
commissionbe interposed between the judiciary and the other branches of
government. The constitutional function of this body would be to depoliticize the
process of determining changes to or freezes in judicial remuneration. This objective
would be achieved by setting that body the specific task of issuing a report on the
salaries and benefits of judges to the executive and the legislature, responding to the
particular proposals made by the government. As well, in order to guard against the
possibility that government inaction could be used as a means of economic
manipulation by allowing judges real salaries to fall because of inflation, and also to
protect against the possibility that judges salaries will drop below the adequate
minimum required by judicial independence, the commission must convene if a fixed
period of time (e.g., three to five years) has elapsed since its last report, in order to
consider the adequacy of judges salaries in light of the cost of living and other relevant
factors.
141
M. PLAXTON IN SEARCH OF PROPHYLACTIC RULES
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created an independent commission, capable of discharging the constitutional
responsibilities identified in Campbell, the constitution itself had nothing to say about
the specific features of those respective bodies. Furthermore, the majority offered
reasons to justify its conclusion that only an independent commission could satisfy
the constitution, noting that direct bargaining between judges and the executive or
legislative branch could create a reasonable apprehension of bias in cases involving
the Crown.45 In some respects, then, the majority appears sensitive to the need to
justify its claim that the constitution itselfrather than the Courtrequires provincial
governments to create independent commissions.
In other respects, though, the ruling remains problematic. The constitution
requires judges to act independently and impartially, implying that the Crown must
erect such institutional measures as are necessary to maintain that independence and
impartiality. But how much protection is necessary or constitutionally expected?
Justice La Forest, dissenting in Campbell, noted that it is hardly obvious that
reasonable people would think that just any reduction in the salary of provincial court
judges compromises their independence:
[A] reasonable, informed person would not perceive that, in the absence of a
commission process, all changes to the remuneration of provincial court judges
threaten their independence. … It is simply not reasonable to think that a
decrease to judicial salaries that is part of an overall economic measure which
affects the salaries of substantially all persons paid from public funds imperils
the independence of the judiciary. To hold otherwise is to assume that judges
could be influenced or manipulated by such a reduction. A reasonable person, I
submit, would believe judges are made of sturdier stuff than this.46
One need not assume, like Justice La Forest, that changes in judicial salaries will have
no effect on judicial independence. One can assume, like the majority, that all such
changes will have some adverse effect, however negligible or speculative. It still does
not follow that the threat to independence violates the constitutional threshold, unless
one sees judicial independence as a zero-sum game. If this view is correctif the
constitution permits no encroachments on judicial independencethe majority must
say so and must justify that conclusion, bearing in mind that its test for judicial
independence is what the reasonable person thinks, not what the paranoid skeptic
thinks.47 If some encroachments are constitutionally permissible, then an independent
commissionas a constitutional ruleseems like overkill. As a matter of policy, a
rule that makes it virtually impossible for the legislative and executive branches to
interfere with judicial independence may amount to the best rule, but that does not
make it a constitutionally essential one. As Justice La Forest pointed out: While both
salary commissions and a concomitant policy to avoid discussing remuneration other
45 Ibid. at paras. 186-87.
46 Ibid. at para. 337. See also Jacob Ziegel, The Supreme Court Radicalizes Judicial
Compensation (1998) 9 Const. Forum Const. 31 at 34.
47 See Campbell, ibid. at para. 113.
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than through the making of representations to commissions may be desirable as
matters of legislative policy, they are not mandated by s. 11(d) of the Charter.48
[Vol. 50
Campbell nicely illustrates how judicial use of the idea of prophylactic rules
might have rescued the courts and Parliament from politically charged confrontations.
In the aftermath of Campbell, provincial governments did indeed erect independent
commissions conforming to the dimensions prescribed by the Supreme Court. When
some provincial governments disagreed with the recommendations issued by their
respective commissions, they were forced to go to court and justify their refusal to
implement themto establish, per the Campbell majoritys specifications, that their
reasons were rational.49 Appellate courts largely seem to agree that this is not an
onerous threshold,50 but that misses the point: provincial governments, trying to
manage their budgets, must first seek the benediction of judges (or the commission
they conjured), rather than the agreement of judges as partners in a shared
constitutional enterprise.51
Campbell diminished the role of provincial governments in an area where they
would otherwise directly engage with matters of constitutional importance. Indeed,
that was its object: to obligate judges and budget makers to speak to each other
through a mediator and thereby reduce the possibility of overt political squabbling
between branches of government. By removing the prospect of bickering, though,
Campbell also removed the prospect of cooperation. A little bickering may not be a
bad thing. Disagreement on constitutional issueseven between branches of
governmentmay be healthy in the sense that it demonstrates that everyone in
government takes the constitution seriously enough to argue about it. Since Campbell,
provincial governments need not seriously ponder the constitutionally appropriate
salary for their judges (perhaps by working directly with them). They can do no more
48 Ibid. at para. 329. See also Little Sisters Book and Art Emporium v. Canada (Minister of Justice),
[2000] 2 S.C.R. 1120, 193 D.L.R. (4th) 193, 2000 SCC 69 [Little Sisters cited to S.C.R.], Iacobucci
J., dissenting: The constitutional is not always synonymous with the optimal … Sometimes
constitutionality means only that an unimpressive, minimal threshold has been met (ibid. at para.
271).
49 Campbell, ibid. at para. 183.
50 See Alberta Provincial Judges Association v. Alberta (1999), 237 A.R. 276 at paras. 32-33, 177
D.L.R. (4th) 418 (C.A.) [APJA]; Ontario Judges Association v. Ontario (2003), 67 O.R. (3d) 641 at
paras. 71-72, 233 D.L.R. (4th) 711 (C.A.); New Brunswick Provincial Judges Association v. New
Brunswick (Minister of Justice) (2003), 260 N.B.R. (2d) 201 at para. 113, 231 D.L.R. (4th) 38 (C.A.),
leave to appeal to the S.C.C. granted; Newfoundland Association of Provincial Court Judges v.
Newfoundland (2000), 192 Nfld. & P.E.I.R. 183 at para. 160, 191 D.L.R. (4th) 225 (C.A.). See also
Re British Columbia (Judicial Compensation Committee) (1998), 160 D.L.R. (4th) 477 at paras. 29-
32, 51 B.C.L.R. (3d) 139 (C.A.). But see Bodner v. Alberta (2002), 317 A.R. 112 at paras. 110-14,
222 D.L.R. (4th) 284 (C.A.); Confrence des juges du Qubec c. Qubec (P.G.), [2000] R.J.Q. 2803 at
paras. 40-43, 196 D.L.R. (4th) 533 (C.A.).
51 In one case, this led to an embarrassing lecture on the fundamental tenets of logic, and
accusations that the government acted in bad faith when it rejected its commissions findings. See
APJA, ibid.
M. PLAXTON IN SEARCH OF PROPHYLACTIC RULES
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than adopt an adversarial posture before their respective commissions, and perhaps on
judicial review.
143
Maybe the constitution requires such a mediated relationship when it comes to
judicial compensation, but this is unclear. Nowhere does the constitution explicitly
say that different branches of government cannot bicker, even on matters of
constitutional significance; such skirmishes ostensibly conflict with the constitution
only when they undermine public confidence in judicial independence. Nor does the
Court formally elevate the principle of interbranch tranquility to a freestanding
constitutional principle warranting its own protective rule. As a derivative or
tangential constitutional interest, institutional tranquility is protected by the
constitution only to the extent that such tranquility helps to uphold judicial
independence or some other constitutional principle. When Chief Justice Lamer
discussed the need for mediated salary negotiations,52 he should have said how and
under what circumstances institutional discord would conflict with judicial
independence. He did not.
Had the Court recognized prophylactic rules, it would have regarded itself as
bound either to justify its claim that the strategy generated in Campbell is dictated by
the terms of the constitution (knowing that its reasons would undergo scrutiny and
possible challenge at a later date), or to concede that the strategy is strictly
prophylactic. In making that concession, the Court would have invited provincial
legislatures to examine strategies that would have fulfilled their constitutional
responsibilities without guaranteeing perfect public confidence in the independence of
judges. Such strategies might well have involved more direct interaction between the
judiciary and the legislative branch. On the other hand, provincial legislatures might
have concluded that they should have precisely the sort of commissions prescribed in
Campbell.53 That would have been their decision to make, for better or for worse.
IV. Disposable Rules
Recognition of prophylactic rules also brings attention to Parliaments power to
abrogate some common law protections without replacing them with anything. The
concept of prophylactic rules means that some constitutional values can be
protectedalbeit to greater or lesser degreesby different regimes or rules. One
strategy may be to create no rule at all. The strict requirements of the constitution may
be satisfied (though imperfectly) without any rule, making a non-rule one of several
viable prophylactics. In such a case, if courts create a rule designed to protect
constitutional values better than the constitution demands, Parliament has the power
to abrogate that rule and reinstitute the antinomian strategy that existed before. The
Supreme Court has recognized that common law rules may provide protections for the
52 See Campbell, supra note 2 at paras. 186-89.
53 Ibid. at paras. 169, 171. Some provinces had such commissions before Campbell was released.
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accused that go beyond what is constitutionally mandated. Thus, in R. v. Oickle,54
Justice Iacobucci observed that the common law confessions rule has a broader scope
than the Charter provisions protecting the accuseds right to silence.55 He stated that
[Vol. 50
the Charter is not an exhaustive catalogue of rights. Instead, it represents a bare
minimum below which the law must not fall. A necessary corollary of this
statement is that the law, whether by statute or common law, can offer
protections beyond those guaranteed by the Charter. The common law
confessions rule is one such doctrine, and it would be a mistake to confuse it
with the protections given by the Charter.56
The Court effectively conceded that the confessions rule was not required by the
Charter; it is a rule that protects the right to silence, and therefore protects Charter
values, but it is a rule that Parliament could abrogate by statute. Because it goes
beyond what the Charter demands by way of procedural protections for accused
persons, the rule may be a good one; for that same reason, it is constitutionally
expendable.
The Courts judgment in Prosper57 likewise makes sense only when one
distinguishes between constitutional rules and prophylactic rules. There, a majority of
the Court observed that sections 7 and 10 of the Charter do not require the provinces
to erect a duty-counsel regime,58 yet simultaneously found that the failure to create
such a regime could result in constitutional costs in the form of exclusion of
statements taken from criminal defendants.59 By not pursuing a prophylactic strategy
such as a duty-counsel system, the Crown risks running afoul of the constitution in a
certain number of cases. It does not, however, violate the constitution just because it
fails to implement that sort of regime. The constitution requires only that suspects
receive access to counsel, which they can have even if no duty-counsel regime exists.
The status quo, therefore, represents one of many possible strategies the Crown could
implement to ensure compliance with sections 7 and 10 of the Charter. Suspects
would have better, more reliable access to counsel if there were a duty-counsel
regime, but the constitution does not demand better, more reliable access. A duty-
counsel regime offers a level of protection that the constitution does not require,
though it furthers constitutional values by ensuring that more suspects receive access
to counsel. It, like the status quo regime, is one of several possible means of
protecting the rights enshrined in the Charter.
Prosper provides a clue as to how recognition of prophylactic rules can untie the
hands of legislatures. By implicitly drawing a distinction between rules required by
the constitution and rules that protect constitutional interests, the Prosper majority
54 [2000] 2 S.C.R. 3, 190 D.L.R. (4th) 257, 2000 SCC 38 [Oickle].
55 Ibid. at para. 30.
56 Ibid. at para. 31.
57 Supra note 4.
58 Ibid. at 266-68.
59 Ibid. at 269-70, 275.
M. PLAXTON IN SEARCH OF PROPHYLACTIC RULES
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created a space in which both legislatures and courts can contribute to constitutional
discourse. In such a space, it should be possible to avoid debates over which branch
has interpretive supremacy and instead address questions more befitting matters of
policynamely, questions of institutional competence. The Court declined to create a
duty-counsel regimethough it clearly would have preferred one to the prophylactic
regime in placebecause it has generally shied away from telling the Crown how to
spend its money, and because the legislature is better placed to work out how to
operate something so elaborate.
145
V. Dialogue and Elocution
One might be tempted to reduce this paper to a simple (and somewhat trendy)
appeal for dialogue between the courts and legislatures: courts should recognize, in
their writings, the difference between constitutional rules and prophylactic rules,
because in doing so they clarify the ways in which legislatures can contribute to the
branches combined understanding of what the constitution demands. They carve out
a space in which other branches can coherently debate the meaning of the constitution
and devise policies that protect it. The metaphor of a dialogue between courts and
legislatures has become the subject of frequent scholarly and judicial analysis over the
past several years.60
The dialogue metaphor, however, is confused and confusing. It is all well and
good to say that courts and legislatures share responsibility for interpreting the
constitution, but ultimately someone must have the final say. There is one
constitution, one law of the land. If the judiciary and the legislature disagree about
what the constitution requires, they cannot both be correct. As a matter of
constitutional convention, the Supreme Court has the last word.61 But the Court says
60 See e.g. Peter Hogg & Allison Bushell, The Charter Dialogue Between Courts and
Legislatures (1997) 35 Osgoode Hall L.J. 75; Peter W. Hogg & Allison A. Thornton, Reply to Six
Degrees of Dialogue (1999) 37 Osgoode Hall L.J. 529; Mathen, Constitutional Dialogue, supra
note 29; Bruce P. Elman & Jill Mason, The Failure of Dialogue: Winnipeg Child and Family
Services (Northwest Area) v. G. (D.F.) (1998) 36 Alta. L. Rev. 768. For a discussion of constitutional
dialogues generally, see Gal Dor, Constitutional Dialogues in Action: Canadian and Israeli
Experiences in Comparative Perspective (2000) 11 Ind. Intl & Comp. L. Rev. 1. For a skeptical
treatment of the dialogue between courts and the Canadian legislature, see Christopher P. Manfredi &
James B. Kelly, Six Degrees of Dialogue: A Response to Hogg and Bushell (1999) 37 Osgoode
Hall L. J. 513.
61 The notwithstanding clause, of course, empowers Parliament to act contrary to Charter rights;
that is, contrary to a constitutional rule. Parliament, however, does not change the constitutionor
reformulate the constitutional rulewhen it employs the notwithstanding clause. The clause merely
gives Parliament temporary authority to act as if the constitutional rule did not exist, but the
constitutional rule does exist and the Supreme Court has the last word with respect to defining its
scope and contours. The notwithstanding clause does not allow Parliament to assert control over
Charter interpretation; it only allows Parliament to act in certain respects notwithstanding the
constitutional rule as interpreted by the Supreme Court. In other words, the notwithstanding clause is
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all manner of things with implications for the constitution and for Parliament, and it is
not always clear what Parliament can do about these pronouncements.
[Vol. 50
Recently, the Court has appeared willing to give constitutional blessing to
legislation that, according to the Courts most recent last word on the matter, does
not conform to the constitution. Consider, for example, the Courts decision in R. v.
Mills: the Court was confronted with legislation that, according to its majority
decision in R. v. OConnor,62 plainly violated the accuseds section 7 right to full
answer and defence.63 The OConnor majority had said that, to satisfy the
constitution, Parliament could not compel accused persons to jump through certain
hoops as a precondition to obtaining third party records. Parliament then went ahead
and devised those very hoops. It was obvious that if the majority judgment in
OConnor accurately described the minimum requirements of the constitution (so far
as section 7 was concerned), Parliaments new legislation could not survive. But the
legislation did survive. So what happened?
Well, it is rather hard to tell. No one on the Mills Court claimed that the
constitution had changed in the four years since OConnor. Yet, at some point
between OConnor and Mills, the constitutions equality rights guarantees seemed to
become more vulnerable and more worthy of protection. Simultaneously, the
accuseds right to full answer and defence appeared to become somewhat less
important, or to require less protection. It seems unlikely that the constitution
changed. More likely, the Court simply chose to overrule itself, to supplant the old
interpretation with a fresh one (maybe based on evidence gathered by Parliament
since OConnor regarding the impact of that judgment on sexual assault
complainants). But the Mills majority neither indicated that it was overruling
OConnor, nor presented any new arguments that could justify a new interpretation.
Perhaps OConnor never laid down a constitutional rule at all; maybe the
difference between the majority and the dissent was less pronounced than it seemed.
Suppose the constitution requires that accused persons have some measure of access
to third party records, short of absolute access (in recognition of the privacy interests
of sexual assault complainants). Beyond that bare guideline, suppose that the
constitution is silent. In that case, the majority and the dissent in OConnor did not
argue about what the constitution demandsthey merely disagreed about the best
way to protect its values. Five members of the Court came out in favour of a rule
permitting wider access, whereas four members of the Court would have created a
rule permitting considerably narrower access. Neither of these rules, however, could
bind Parliament as would a constitutional ruleexcept to the extent that they
a vehicle by which Parliament can choose to temporarily make constitutional interpretation a non-
issue.
62 [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235 [OConnor].
63 Mills, supra note 5. For an excellent treatment of dialogue, and of the Courts judgment in Mills,
see Mathen, Constitutional Dialogue, supra note 29. See also Kent Roach, The Supreme Court on
Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin, 2001).
M. PLAXTON IN SEARCH OF PROPHYLACTIC RULES
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assumed a baseline level of access. So long as Parliament provided the
constitutionally mandated level of access to third-party records, it could ignore both
of the contending rules issued by the Court.64
147
If the OConnor majoritys guidelines are only prophylacticif they do not
reflect the minimum constitutional level of protection for section 7 rightsthe
majority could have said that their disagreement with the dissent was not a matter of
constitutional interpretation but merely a matter of policy. (Perhaps OConnor would
seem a stronger, more confident interpretation of section 7 if it had been presented as
a unanimous judgment with respect to the requirements of that section, even if the
judges diverged on policy questions.)65 In making that point, the majority would
necessarily have had to concede that the dissents proposed strategy was
constitutionally tenable (though perhaps ill-advised). Had it done so, the decision in
Mills would have come as no surprise to anyone.
to competing policy choices rather
As matters stand, it cannot be said with any kind of certainty that the OConnor
opinions amounted
than constitutional
interpretations. If the OConnor majoritys strategy was designed to reflect the
constitutional minimum threshold, then the Mills Court, in upholding Parliaments
new legislation, ought to have said why Parliament was right to contest the OConnor
Courts reading of the constitution. Parliament bears some responsibility for ensuring
that all branches of government abide by the constitutionthis is surely what it
means to say that the judicial and legislative branches share interpretive authority. It
does not fulfill that duty, however, simply by rehashing old constitutional debates ad
nauseam;66 that approach adds nothing to the dialogue and introduces uncertainty.67
Unless Parliament can show that, in proposing a revised interpretation of the
constitution, it has considered factors not considered by the courts, the dialogue
64 See Jamie Cameron, Dialogue and Hierarchy in Charter Interpretation: A Comment on R. v.
Mills (2001) 38 Alta. L. Rev. 1051 at 1058.
65 See Carissima Mathen, Dissent and Judicial Authority in Charter Cases (2003) 52 U.N.B.L.J.
321.
66 See Sauv v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 218 D.L.R. (4th) 577:
Parliament must ensure that whatever law it passes, at whatever stage of the process, conforms to the
Constitution. The healthy and important promotion of a dialogue between the legislature and the
courts should not be debased to a rule of if at first you dont succeed, try, try again (ibid. at para.
17). See also RJR-MacDonald, supra note 14 at para. 136; Doucet-Boudreau v. Nova Scotia (Minister
of Education), [2003] 3 S.C.R. 3, 232 D.L.R. (4th) 577, 2003 SCC 62 [Doucet-Boudreau cited to
S.C.R.]: Deference ends, however, where the constitutional rights that the courts are charged with
protecting begin (ibid. at para. 36).
67 See Kent Roach, Editorial: Mills (2000) 43 Crim. L.Q. 145 at 145. See also Cameron, supra
note 64 at 1058-67; Mathen, Constitutional Dialogue, supra note 29 at 458-60; Don Stuart, Mills:
Dialogue with Parliament and Equality by Assertion at What Cost? (2000) 28 C.R. (5th) 275.
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metaphor should have no currency (unless one thinks that Parliament should have
interpretive supremacy).68
[Vol. 50
But when the Court muddies the distinction between constitutional rules and
prophylactic rules, no one can blame a legislature for crafting laws that seem to fly in
the face of a court ruling. The new legislation is only improper interference with the
judiciarys interpretive authority if the original rule, crafted by the Court, amounts to a
constitutional rule; if the rule is prophylactic, the legislature is perfectly entitled to
revisit its content to the extent permitted by the constitution. A legislature that takes
seriously its responsibility as a policy-maker should be expected to take a stab at
crafting a new rule when it disagrees with the one formulated by the Court. Since the
legislature cannot tell whether the rule was constitutional or prophylactic, it must
make an educated guess as to where the constitution ends and policy begins. If
interpretive responsibility is shared by courts and legislatures, then legislatures can be
expected to make that guess (with mixed results).
Courts confronting such new legislationnew rules that supplant old, judicially
crafted onesface an inevitable tension. Should they strike down the new rule
because the old rule was of the constitutional variety (but not identified as such), the
legislature may understandably evince frustration at having been thwarted (perhaps
twice) and accuse the judiciary of activism. Should the courts uphold the new rule
because the old rule was merely prophylactic (though, again, not identified as such),
they seriously undermine their own status in the constitutional order.69 So long as one
branch cannot figure out the basis for another branchs rules, suspicion may arise.
Conclusion
When the Supreme Court began to describe itself as engaged in a dialogue with
Parliament, it assumed a posture of humility, suggesting that it could not by itself
ensure compliance with the constitution. This deferential posture, as the Court
recently noted in Doucet-Boudreau,70 did not appear out of nowhere. The law has
68 See Little Sisters, supra note 48 at para. 268, Iacobucci J., dissenting: This Court has frequently
recognized the importance of fostering a dialogue between courts and legislatures … Particularly
where, as here, it appears that Parliament has not turned its mind to the issue at hand, striking down
the legislation may encourage much needed changes [emphasis added].
69 See R. v. Hall, [2002] 3 S.C.R. 309, 217 D.L.R. (4th) 536, 2002 SCC 64, Iacobucci J., dissenting
(claiming that the majority confused dialogue with abdication at paras. 127-28).
70 Doucet-Boudreau, supra note 66 at para. 34:
[I]n the context of constitutional remedies, courts must be sensitive to their role as
judicial arbiters and not fashion remedies which usurp the role of the other branches of
governance by taking on tasks to which other persons or bodies are better suited.
Concern for the limits of the judicial role is interwoven throughout the law. The
development of the doctrines of justiciability, and to a great extent mootness, standing,
and ripeness resulted from concerns about the courts overstepping the bounds of the
judicial function and their role vis–vis other branches of government.
M. PLAXTON IN SEARCH OF PROPHYLACTIC RULES
2005]
long acknowledged that the judiciary is not as well-suited as other branches of
government when it comes to certain tasks of constitutional significance. The Court
does not step out of line, though, by explaining to the other branches how they should
approach their constitutional responsibilities. As the body responsible for interpreting
the constitution, the Court is in the best position to help everyone else figure out the
nature of the tasks they should respectively performto act as the official adviser of
the executive.71
149
In fact, it is the closeness of the judiciary and the legislature that helps the
dialogue metaphor succeed in Canada. In the United States, where a rigid separation
of powers model of government exerts a powerful hold, the dialogue model does not
ring true; the courts and other branches seem engaged less in a common enterprise
than in a tug-of-war for interpretive supremacy. Canadian law is more equivocal when
it comes to the separation of powers.72 This permits one to imagine a judiciary that
invites the legislature to question its constitutional interpretations and, at the same
time, a legislature that trustsindeed, relies onthe judiciary to craft prophylactic
rules unless and until the legislature decides a different strategy is needed. But this
dialogue depends on a clear distinction between constitutional rules and prophylactic
rulesa distinction that has been absent or deeply buried in constitutional
jurisprudence. Now is the time for it to be uncovered.
See e.g. New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993]
1 S.C.R. 319 at 389, 100 D.L.R. (4th) 212.
71 See text accompanying note 18.
72 See Quebec Secession Reference, supra note 17 at para. 15. The closer relationship between the
judiciary and the other branches of government explains why the Supreme Court of Canada has not
been willing to recognize anything like the American political questions doctrine. See Operation
Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 414, 18 D.L.R. (4th) 481.
