Case Commented on: Carter v Canada (Attorney General) 2016 SCC 4
by Nitin Kumar Srivastava
In Carter v Canada (Attorney General), 2016 SCC 4 (Carter 2016) the Supreme Court of Canada (SCC) granted an interesting constitutional remedy – a constitutional exemption during an extension of the suspended declaration of invalidity – which has an uncertain foundation in the text of the Constitution Act 1982. This case provides an opportunity to further explore the remedy of constitutional exemptions. In this post, I will be looking at the history of this remedy, its sources, how it operates, issues related to its unpredictable invocation and its availability in the context of present case.
On January 15, 2016, the SCC granted a four-month extension of its already-suspended declaration that ss 241(b) and ss 14 of the Criminal Code, RSC 1985 c-46 were constitutionally invalid (Carter 2016). These sections deal with assisted suicide.
Last year, in Carter v Canada (AG), 2015 SCC 5 (Carter 2015), the SCC found that the above provisions unjustifiably infringed s 7 of the Charter of Rights and Freedoms (Charter). As such, they were of no force or effect to the extent they prohibited physician-assisted death in accordance with defined criteria (at para 127 Carter 2015). The SCC suspended the declaration of invalidity for 12 months (until February 6, 2016) to give Parliament time to fill the legislative void and bring the law in line with constitutional values (at para 128 Carter 2015).
In Carter 2016, the Attorney General of Canada requested a six-month extension of the suspended declaration of invalidity. The Province of Quebec, other individuals, and civil liberties groups also made submissions, requesting that the SCC grant constitutional exemptions to individuals who were affected during the extended suspension.
There were three questions before the SCC:
(1) Whether the Court should extend the suspension of invalidity,
(2) If granted, whether Quebec should be exempted from the extended suspension, and
(3) If granted, whether to grant individual exemptions during the extended suspension? (at para 1)
On question one, the majority granted a four-month extension to the suspension of invalidity (at para 7). Granting a temporary suspension of an invalid law is not a common step, as it results in sustaining an unconstitutional law that breaches constitutionally protected rights (para 2). Extending a suspension is even more problematic, as it prolongs the legal uncertainty that was already created by the temporary invalidity of an otherwise unconstitutional law (para 2). To grant such an extension, the applicants must prove that extraordinary circumstances exist. The majority observed that the 2015 federal elections constituted such an extraordinary circumstance that interrupted the task of rewriting the legislation (para 2). As such, a four months’ extension was justified - rather than the requested six-month extension (at para 7).
The Attorney General of Quebec asked the SCC to grant a constitutional exemption from the suspension as it applied to Quebec’s law governing end-of-life assistance (at para 3). Quebec argued for an exemption on two grounds: first, it is imperative to clarify its legal position under the Act Respecting End-of-Life Care, RSQ c S-32.0001 (ARELC), to determine whether it conflicts with the federal prohibition preserved by the extension of suspension; and second, to avoid the chilling effects of the potential violators of the criminal prohibition and possible civil liability during the extension period (at para 3). Preserving its views on the validity of the ARELC, the majority accepted Quebec’s request and exempted sections 4 and 26 to 32 of the ARELC from the four months’ extension (at paras 4, 7).
Individual appellants and civil liberties organizations also requested individual exemptions from the extension (at para 5). This was the first instance in Canada where the Court was asked to grant such a remedy (at para 6). The majority held that individuals are permitted to apply on humanitarian and compassionate grounds to a superior court for this relief, in accordance with the criteria set out in para 127 of Carter 2015 (at paras 6,7).
Although the SCC was unanimous in granting the four-month extension, it split by 5:4 on the issues of granting constitutional exemptions to Quebec and the individuals. The minority responded to these two issues in the negative (at paras 8, 13).
According to the minority judges, Quebec’s current request for an exemption was unnecessary (at paras 9, 10, 13). The Province passed the ARELC on December 10, 2015 as a “complex regulatory response” to the SCC’s decision in Carter 2015 (para 9) and had never sought an exemption from the declaration of invalidity (at para 10). Additionally, the Quebec Minister of Justice issued a Directive granting protection from criminal prosecution to any physician who complied with the ARELC provisions, in case an extension was refused (at para 10).
Regarding the individual exemptions, the dissenting judges held that the present case was not a suitable occasion to create a mechanism of exemptions during the period of suspended invalidity (at paras 12, 14). As explained at para 125 of Carter 2015, creating complex regulatory regimes falls under the sphere of Parliament, and, should the Court weigh in, it “would create uncertainty, undermine the rule of law, and usurp Parliament’s role” (at para 12). Hence, the legislative process is the most appropriate forum to address such matters (at para 14).
Constitutional Exemptions as a Remedy
The Supreme Court was narrowly divided (5:4) regarding the granting of constitutional exemptions to Quebec and individual applicants. This section considers the complex and controversial underlying theory behind this unusual remedy.
Definition & History
Within three years of the enactment of our Constitution Act 1982, the SCC recognized that individual constitutional exemptions may be a remedial option available to them, which would exempt individuals from otherwise valid legislation. (See: Dickson CJ in R v Big M Drug Mart Ltd,  1 SCR 295 at 315; R v Edward Books Ltd,  2 SCR 713 at para 152). Since then there has been very little guidance on the availability of this remedy, although courts have discussed its possibility in various contexts. These include: Sunday closing laws, rape-shield laws, mandatory minimum sentences, fire arms laws and to a certain extent in the aboriginal law context (For details see: Lokan, AK & Danny Kastner, “Constitutional Exemptions – The Remedy That Dare Not Speak Its Name” (2009) 27 NJCL 179 (Suppl. Constitutional Update 2009) at 181 – 189 [Lokan and Kastner]).
Prof Hogg describes a constitutional exemption as “creating an exemption from a statute that is partly inconsistent with the Constitution so as to exclude from the statute the application that would be inconsistent with the Constitution” (Peter Hogg, Constitutional Law of Canada, (Toronto Ontario: Thompson Reuters Canada Limited 2013) at 40:4 [Hogg: Constitutional Law]).
Professor Kent Roach in his book (Constitutional Remedies in Canada (Aurora Ontario: Canada Law Book 2008) at 14.560 observed that:
Constitutional exemptions, like reading down, are the means of recognizing that statutes may have unconstitutional effect on Charter rights in a few cases, but can be validly applied in most cases. They allow the courts to provide a remedy when necessary, but otherwise preserve legislation that may infringe Charter rights.
In other words, exemptions are a remedial option that can come into play in specific situations that cannot be rationalized with otherwise acceptable regimes (Peter Sankoff, “Constitutional Exemptions: An Ongoing Problem Requiring a Swift Resolution”, (2003) 36 UBCL Rev 231, online: SSRN http://papers.ssrn.com/sol3/papers.cfm?abstract_id=920301) at 13,[An Ongoing Problem: Sankoff]).
According to Lokan and Kastner, (supra at 198) a constitutional exemption generally may be ordered where:
1. a law has an unconstitutional effect on an applicant,
2. the court exempts the applicant from the effect of the law in question, and
3. the court chooses not to strike down the law.
Source of the Constitutional Exemption Remedy
What is the source of the constitutional exemption remedy? Remedies under the Constitution Act, 1982 may be granted pursuant to s 24(1) or s 52(1). These sections read:
Primacy of Constitution of Canada
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [Emphasis added]
Enforcement of guaranteed rights and freedoms
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [Emphasis added]
The above definitions suggest that constitutional exemptions stand closer to the remedial regime under s 24(1) of the Charter, which grants appropriate and just remedies tailored for individual claimants. However, the law is not as simple as it seems.
When a court finds that a certain provision of a statute is inconsistent with the Constitution and cannot be justified as a reasonable limit under s 1 of the Charter, it has an express mandate under s 52(1) to render the law of no force or effect to the extent of its inconsistency. A literal reading of s 52 (1) seems to provide the court with the authority only to declare the law invalid; it does not appear to confer any discretion to the courts. This is normally described as ‘striking down’ the law and the law fails by operation of s 52(1). McLachlin CJ in R v 974649 Ontario Inc,  3 SCR 575 (at para 14) noted that:
If a law is inconsistent with the Charter, s 52 of the Constitution Act, 1982 provides that it is invalid to the extent of the inconsistency. On the other hand, if a government action is inconsistent with the Charter, s. 24 provides remedies for the inconsistency.
However, a broad reading of s 52(1) implies that the constitutional defect can be cured without wholesale striking down the law. The courts may consider alternatives to striking down such as: severance, reading-in and reading-down.
- Severance allows a court to strike down only those parts of the statute that are inconsistent with the Constitution, and sever it from the valid remainder.
- Reading-in is a tool to add words to the statute that is inconsistent with the Constitution so as to make the legislation consistent and retain its validity.
- In the same fashion, the courts utilize the instrument of reading-down the legislation by interpreting it in a way so that it is consistent with the Constitution (see: Hogg: Constitutional Law at 40-4).
For the enforcement of constitutionally protected rights and freedoms, s 24(1) of the Charter provides a much broader discretion to a court to fashion a remedy it considers appropriate and just in the circumstances. In a Charter declaration of invalidity, the courts have developed a number of variations on a simple declaration of invalidity and have assumed the power to choose from a range of possible remedies (See: Schachter v Canada,  2 SCR 679, [Schachter] Lamer CJ at 695-719).
By way of comparison, s 52(1) provides the declaration of invalidity as the only remedy for an unconstitutional law, it does not provide for the grant of personal remedies. Section 24(1) provides appropriate and just remedies for unconstitutional governmental actions committed under the authority of legal regimes, which are accepted to be fully constitutional. (See: R v Ferguson 2008 SCC 6 at para 60 [Ferguson] referring to Eldridge v British Columbia (AG),  3 SCR 624; Multani v Commission scolaire Marguerite‑Bourgeoys,  1 SCR 256).
So what are the options available to the court where a law infringes rights guaranteed by the Charter? Can the Court simply declare the law invalid under Constitution Act s 52(1) and provide no remedies to redress violations of the appellant(s)’ Charter rights? The judicial choice hovers between assuming powers to provide just and appropriate remedies under Charter s 24(1), or to declare the law of no force or effect to the extent of inconsistency as per the mandate under Constitution Act s 52(1). Both options have their own drawbacks. Peter Sankoff claims that the courts have gone both ways – without discussing the particular source of constitutional exemptions in detail. (Peter Sankoff, “Constitutional Exemptions: Myth or Reality”, (2000) 11 NJCL 411 at 419, [Myth or Reality: Sankoff]).
There is very little legal clarity to identify the source for the remedy of constitutional exemptions. The majority of cases do not discuss the particular source of exemptions in detail, and rather provide numerous contradictory references (Myth or Reality: Sankoff at 413). Most decisions have simply ignored or avoided a discussion of Constitution Act s 52(1), and tried to summarily justify Charter s 24(1) as the prevailing source for constitutional exemptions on the grounds that it provides considerable flexibility and permits individual remedies.
Section 52(1) ….contemplates the exercise by the court of its interpretive function as a first step…..if it is inconsistent, then the court must declare it of no force or effect to the extent of the inconsistency. Section 52(1), in my view mandates this result” (at p 77).
On the other hand, in R v Rose,  3 SCR 262, L’Heureux-Dubé J, observes that:
s 24(1) of the Charter enables a Court to grant a constitutional exemption from legislation that is constitutional in its general application if in the circumstances of a particular case an unconstitutional result would otherwise occur (at para 66).
In Schachter, Lamer CJ (speaking for the majority) (at p 684-685) states:
Where s. 52 is not engaged, a remedy under s. 24(1) of the Charter may nonetheless be available. This will be the case where the statute or provision in question is not in and of itself unconstitutional, but some action taken under it infringes a person's Charter rights. Section 24(1) would there provide for an individual remedy for the person whose rights have been so infringed.
An individual remedy under section 24(1) of the Charter will rarely be available in conjunction with action under s. 52 of the Constitution Act, 1982. Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s. 52 that will be the end of the matter. No retroactive s. 24, remedy will be available.
Peter Sankoff (in Myth or Reality: Sankoff at p 20) argues that the above reading suggests that s 52(1) of the Constitution Act is a more likely source of the constitutional remedy. According to Sankoff, under this option the exemption emerges from the words of the provision itself. The section does not refer to ‘general inconsistency’ and specifically allows the court to invalidate a provision solely to the extent of inconsistency that suggests flexibility is possible under s 52(1) Constitution Act (page 20).
In his later article, (Peter Sankoff, “Constitutional Exemptions: An Ongoing Problem Requiring a Swift Resolution” (2003) 36:2 UBC L Rev 231,[An Ongoing Problem: Sankoff]), Sankoff noted (at page14) that:
The use of s 52(1) as a mechanism to award individual remedies is an unusual step which was probably never considered by the drafters of the Charter……Utilizing s 52(1) to ostensibly maintain the validity of a statutory provision would make the remedy inquiry a great deal more complicated than it currently is. This approach seems to lead to a conclusion that every application of a mandatory provision is unconstitutional; it is merely the remedy that differs.
In Ferguson, the SCC observed that under s 52(1), the remedy of declaring an invalid law that results in inconsistency with the Charter is a “blunt tool” (at para 38). Prof Hogg also identified the availability of the remedy of constitutional exemptions under the umbrella of Constitution Act s 52(1). At the same time, he says that such alternate remedies do not require the authority of Charter s 24(1) (Hogg, Peter, Constitutional Law of Canada, (Toronto, Ontario: Thompson Reuters Canada Limited 2013 at p 40.19).
The above still does not provide clarity because the constitutional drafters did not design s 52(1) to provide individual remedies, and neither is it worded similar to Charter s 24(1) to allow for appropriate and just remedies. It simply permits the courts to render a provision ineffective/ inoperative to the extent of its inconsistency.
Availability and other issues
The foregoing demonstrates that the underlying theory for the availability of constitutional exemptions is muddy and has potential risks. With the enactment of the Charter in 1982 and an expansive “living tree” approach to the interpretation of the Charter, the courts assumed discretion to fashion creative remedies. The seeds of constitutional exemption remedies lay somewhere between the two divergent theories of judicial activism - protecting Charter rights, and judicial restraint - respecting the constitutional framework. (For details see generally: Weinrib, Lorraine, “The Supreme Court of Canada in the Ages of Rights: Constitutional Democracy, the Rule of Law and Fundamental Rights under the Canadian Constitution” (2001) 80 Can Bar Rev 699, online: SSRN http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2126650; Miller, Bradley, “Beguiled by Metaphors: The Living Tree and Originalist Constitutional Interpretation in Canada” (2009) 22;1 Can J L & Ju 331, online: Hein online http://heinonline.org/HOL/Page?handle=hein.journals/caljp22&div=21&g_sent=1&collection=journals; and [Myth or Reality: Sankoff]).
Regarding the availability of constitutional exemptions generally, the courts have not yet ruled definitively and have expressed both positive and negative evaluations. This has, (as mentioned above) been discussed in certain contexts. For example, in R v Smith,  1 SCR 1045, Dain J., in the context of mandatory minimum sentences, the Court rejected constitutional exemptions as a remedy on the grounds of uncertainty and their prejudicial effects due to the assumed validity of the minimum sentencing provisions. On the other hand, Arbour J in R v Morrisey,  2 SCR 90 at paras 82 – 88, expressed his concern that minimum mandatory sentencing provisions would certainly be declared unconstitutional in certain unusual cases if the courts lack discretion to grant exemptions to avoid unconstitutional results.
In Osborne, Wilson J (at p 77) completely rejected the availability of constitutional exemptions in the context of rape-shield provisions and held that once the court finds the provision to breach the Charter, there is no other alternative but to strike down the law under s 52(1) of the Constitution Act. In the same context McLachlin J., in R v Seaboyer,  2 SCR 577 (at p 628) discussed and declined granting an constitutional exemption, reasoning that it would, in principle, provide a back door entry to something (judicial discretion) that the Parliament specifically intend to exclude. In Schachter, Lamer CJ (speaking for the majority) (at p 684-685), observed that the courts have developed remedies like severance, reading in and reading down to preserve the law from being struck down. The SCC also held that where Constitution Act s 52(1) is not engaged a person can be granted a remedy under s 24(1) of the Charter. But individual remedies under s 24(1) of the Charter in conjunction with s 52(1) may not readily available. The SCC implied that providing a Charter s 24(1) remedy during the suspension of a declaration of invalidity would also be available rarely as it would amount to giving retroactive effect to the declaration of invalidity. In Corbiere v Canada (Minister of Indian and Northern Affairs), 2 SCR 203, the SCC recognized that the remedy of constitutional exemptions is recognized in a very limited way and it can be available as an interim remedial measure alongside a suspended declaration of invalidity under s 52(1) of the Constitution Act. The court refused to expand the scope of this remedy to stand-alone exemptions (at para 22). McLachlin CJ., in Ferguson (at paras 38-39) identified two arguments for recognizing constitutional exemptions:
(1) first, that constitutional exemption is a better option than wholesale striking down of a law that is constitutional in most of its applications (reasonable hypotheticals analysis) but generates unconstitutional results in a particular matter or in a few cases; and
(2) second, that the remedy is available in the wording of the Charter and the jurisprudence. Granting constitutional exemptions excludes the application of s 52(1) Constitution Act, and appropriate and just remedies may be granted under s 24(1) Charter.
McLachlin CJ noted that the availability of constitutional exemptions for unconstitutional effects of law is, however, “not conclusive”, but further noted that it is similar to the court’s practices of severance, reading in, and reading down, as attempts to preserve the law to the maximum extent possible. However, she declined to grant constitutional exemptions because it confronts the principles of the rule of law and our constitutional framework (at paras 57, 69, 74). She noted that the remedy of constitution exemption is to be applied with a cautionary note, as the weight of the authority does not generally support its frequent use (para 48).
The Carter 2016 Context
In Carter 2016, the Supreme Court narrowly ruled in favour of granting constitutional exemptions during the extended period of invalidity to both Quebec and individual applicants (at paras 4, 7).
Frustratingly, the majority entirely avoided commenting on the legalities of this remedy. There was complete absence of any reasoning towards the source of the remedy – Charter s 24(1) or Constitution Act s 52(1) — on which the Court is relying. Nor does the court refer to any jurisprudence on the availability of constitutional exemptions. Its reasons on this point are summed up in four short paragraphs (paras 2-4). Additionally, the primary reason for granting the exemption to Quebec seems to be mainly grounded on the absence of any objections by the Attorney General of Canada and other participating provincial Attorneys General (at paras 3, 4). Further, once Quebec was granted the exemption, on concerns of fairness and equity across the country, the majority preferred to grant individual exemptions (at para 6). This further disturbs the ‘somewhat clear’ proposition held in Ferguson.
Furthermore, the Court in Carter 2015 (at paras 125, 129), while denying constitutional exemptions, upheld the law about individual exemptions recognized in Ferguson. The minority (in Carter 2016) view of denying constitutional exemptions to Quebec on the grounds of redundancy and needlessness seems to comply with the majority of caselaw.
While the majority view of granting blanket stand-alone exemptions to individual applicants is inspiring from a moral standpoint (allowing them to approach the superior court of their jurisdiction and exercise their rights in accordance to the criteria established in Carter 2015), it lacks judicial reasoning for granting this remedy. Ferguson suggests that the remedy is not the one that is readily available as the bulk of jurisprudence does not permit its regular use. It’s difficult to make out from the majority decision as to why did they decided to depart from the SCC’s reasoning in Carter 2015.
Hence, even after 30 years, since the recognition of constitutional exemptions, the issues related to the scope and availability of the constitutional exemptions lack clarity and certainty. It is left open for a future case to allow the doctrine of constitutional exemptions to attain a level of “settled law”.