Jul 23, 2015

The Ontario Court of Appeal decision in Frank v. Canada (Attorney General) 2015 ONCA 536, was released this week. The majority decision in Frank, written by Chief Justice Strathy and concurred in by Justice Brown, determined that barring Canadian citizens who have been resident outside Canada for more than five years was not unconstitutional. Although the legislation in question infringed the voting rights extended to “every citizen of Canada” by s. 3 of the Charter of Rights and Freedoms, the majority found that the provision was permissible under s.1 as a reasonable limit on the right to vote.

In doing so, the majority accepted the Crown’s assertion that “strengthening the social contract” was a pressing and substantial concern justifying limiting the franchise to those citizens who were resident in Canada, had been absent from Canada for less than five years and espoused an intention to return, or who fell into special categories such as public servants and members of the armed forces working abroad.

The majority’s decision is problematic in a number of respects, many of them ably argued in Justice Laskin’s dissenting opinion. For the purposes of this case comment, therefore, I restrict my analysis to the unprecedented reliance on the “social contract” as a justification for limiting express constitutional rights.

But what does the court mean by social contract, and how could its reliance thereon affect future decisions, particularly about citizens’ rights?

Fundamentally, the idea of a social contract is mostly an Enlightenment-era political theory, most famously espoused by Rousseau, who wrote a book of the same name. The basic idea is that the formation of a society requires that individuals give up some of their individual rights to a central government or authority in return for the benefits of collective security and order. The legitimacy of a system of government is thus premised on its acceptance by its subjects. In a democratic society, the populace consents to be governed by the laws of the land in part because they have a role in making those laws through the election of legislators. As an aside, Rousseau’s belief was that such a representative democracy did not create a close enough connection between the electorate and law-making, favouring direct democracy.

Frank is not the first decision in Canada that has invoked the spectre of the social contract, but a survey of how the concept has been used in the past raises some questions about its application in this case, and in the future.

Generally, judicial references to the social contract appear in the form of a rhetorical flourish, often in conjunction with the rule of law, or a recognition of the importance of individual rights and liberties. Insofar as these are broad constitutional principles, this seems unremarkable. On other occasions, however, judges have held that the social contract includes such varied elements as tolerating a certain amount of “bother” associated with legal proceedings (Albilia c. Alipoor 2012 QCCQ 7154), student loans (Farkvam (Trustee of), 1996 CanLII 3585 (BC SC)), the performance of bankrupt’s duties (Rahman, Re 2010 ONSC 4377), conducting litigation as efficiently as possible (Saltsov v. Rolnick 2007 CanLII 68832 (ON SC)), and recently by the Ontario Court of Appeal, the automobile insurance regulation scheme (Abarca v. Vargas, 2015

ONCA 4). Similarly, acts “breaking” the social contract range from amassing large quantities of traffic tickets (R. v. Brink's Canada Ltd 2005 BCPC 380), to failing to file tax returns (Landa-McAuliffe v. Boland 2012 BCSC 465), making false criminal reports (R. v. G. (L.) [2000] O.J. No. 5090 (ONSCJ)), and sexual assault (R v. Burgar, 2005 BCSC 1709) .

It seems evident that some of the aforementioned examples do not exactly strike at the core of the legitimacy of government, and in these decisions the concept of social contract is usually peripheral, alluded to in connection with the idea of balancing the interests of society and the rights of individuals, that rights come with attendant responsibilities, and that respect for the law is paramount.

This is what makes the majority decision in Frank is remarkable. The independent reliance on the social contract to define rights, rather than invoking the theory in a more ancillary way, is novel and should, in my opinion, be concerning.

First, the social contract is not a legal principle; it is a political theory that attempts to explain the legitimacy of government. The social contract finds expression in the legal sphere as the rule of law. If the Crown had argued and the majority had found that the impugned provision promoted the rule of law, and that this was a pressing and substantial concern justifying limits on constitutional rights, they might be on more solid ground. The rule of law, however, has an extensive body of jurisprudential history. As a result, it has a fairly well-accepted meaning, and it is difficult to see how it could be used to limit voting rights in the way proposed by the Crown.

Instead, the majority reached behind the legal expression of social contract theory – the rule of law – to rely directly on the political theory itself. The social contract, although it appears in a wide variety of judicial decisions as noted above, has no accepted legal definition precisely because it is not a legal term, but a description of the relationship between government and the governed. It could accordingly be invoked to describe any aspect of that relationship, as is evident from the wide variety of occasions on which it has been referred to in the past, from student loans to traffic tickets.

Indeed, the social contract is exactly the kind of vague, benevolent-sounding purpose that, as Laskin JA notes in his dissent, the Supreme Court suggested should be treated with extreme caution in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 SCR 519, 2002 SCC 68 (CanLII) at para 22:

This leaves the question of whether the objectives of enhancing respect for law and appropriate punishment are constitutionally valid and sufficiently significant to warrant a rights violation. Vague and symbolic objectives such as these almost guarantee a positive answer to this question. Who can argue that respect for the law is not pressing? Who can argue that proper sentences are not important? Who can argue that either of these goals, taken at face value, contradicts democratic principles? However, precisely because they leave so little room for argument, vague and symbolic objectives make the justification analysis more difficult. Their terms carry many meanings, yet tell us little about why the limitation on the right is necessary, and what it is expected to achieve in concrete terms. The broader and more abstract the objective, the more susceptible it is to different meanings in different contexts, and hence to distortion and manipulation.

If “enhancing respect for law” is too vague a goal to meet the test for a pressing and substantial objective, enhancing the social contract must also be insufficiently specific.

Secondly, the central idea of the social contract, that in an ordered society some individual rights must be sacrificed to a central authority for the collective good, is already enshrined in the Charter. It forms the very basis of section 1, which permits the government, in the pursuit of a pressing and substantial purpose, to place reasonable limits on individual rights.

Permitting the Crown to rely on the social contract to fulfill the requirement of a pressing and substantial purpose is circular at best, and Kafka-esque at worst. If the only reason that the Crown must give to limit rights expressly granted to Canadians by the Constitution is that the nature of government means that it is sometimes permitted to do so, the pressing and substantial purpose test is stripped of any meaning.

The majority’s reliance on the social contract in this case is an example of substituting philosophical or political concepts for legal analysis, and I suggest that as a legal community we should be extremely wary of such decisions. It strikes me as both a slippery slope towards less stringent analysis of infringing legislation and higher tolerance for government interference with individual rights, and a risk that the courts lose their way, straying further from the law itself into other fields that are more abstract and divorced from the reality of day-to-day life. I, for one, will be watching closely to see if other courts follow the Court of Appeal’s lead in this respect, and hope that this matter proceeds to the Supreme Court for guidance on the proper use, if any, of the social contract as a legal justification for limiting constitutional rights.