Judicial Minimalism

The Supreme Court released its decision today in R. v. McGregor, a case that involved a search and seizure claim under the Charter of Rights in relation to the search of the residence of a member of the Canadian Armed Forces living in the United States. The Canadian Forces National Investigation Service worked with the police in Alexandria, Virginia to obtain a warrant and execute a search.

The case was notable because it seemingly invited the Court to revisit its past ruling concerning the extraterritorial applicability of the Charter. In the 2007 case R. v. Hape, the Court determined that the Charter does not apply to Canadian authorities involved in an investigation conducted abroad, subject to two exceptions: 1) consent by the foreign state to the application of Canadian law, and 2) Canadian participation in a process that violates Canada’s international law obligations (this occurred in the 2008 Khadr case, for example).

Hape received considerable academic criticism. It is one thing to recognize that Canadian law does not apply to Canadian citizens abroad; it is another to argue that the Charter should not apply to Canadian officials acting abroad to investigate Canadians. My interest in this post is less on the fine details of the particular debate about extraterritoriality and more on the fact that a majority of the Court declined to revisit Hape. In my view, this specific decision is an exemplar of “judicial minimalism”.

Judicial minimalism is distinct from concepts like judicial deference. The latter would suggest that a decision defers to government policies at stake, something often posed as the flip side of “judicial activism”, where a court is zealous in asserting constitutional rules even if it means frequently invalidating government laws or policies.

The concept of judicial minimalism has received the most attention in US scholarship, and it refers to an approach where the courts minimize their impact on the law by limiting the scope of their decisions to the narrowest range necessary to resolving the case before them.

The concept has received less attention in Canada, although I wrote on it in the context of the Supreme Court’s jurisprudence on national security matters back in 2012 in a Review of Constitutional Studies article (pdf). There I wrote “Judicial minimalism is marked by an effort to decide cases on narrow grounds and to avoid clear rules and final resolutions. Unlike judicial deference, however, minimalism is not premised on a belief that the Court should try to avoid intruding on or interfering with the policies of the legislative or executive branches.”

In that article I noted that the Court’s refusal to completely rule out the possibility that the Charter would permit deportation of people likely to be subject to torture, and its refusal to provide any guidelines on when such exceptions might be considered, is a hallmark of minimalism.

In other contexts, I have written that occasional cases where the Court strives for unanimity, or a desire to speak as ‘The Court’ in an effort to put a stamp on the legitimacy of an important decision, can lead to judicial minimalism because the justices will avoid touching upon any issues that might foster disagreement in their effort to achieve a unanimous outcome. Such cases might be quite rare, but, like the 1998 Secession reference, can result in opinions where the Court explicitly refuse to offer clear rules (such as what counts as a “clear majority” or a “clear question” when it comes to a referendum on secession).

In today’s decision, the Court’s majority declined to revisit the question of the Charter’s extraterritorial application despite that issue receiving significant attention from interveners. A key factor in the majority’s decision is that deciding on whether to overturn or amend its holding in Hape was simply unnecessary to decide the case itself because even if the Charter had applied, it was not violated in this case.

This is the epitome of judicial minimalism. Justices Karakatsanis and Martin issued dissenting reasons and argued that the issue of extraterritorial application “is squarely before the Court” and was “clearly the primary and threshold issue argued by the parties and multiple interveners, it was the reason leave to appeal was sought, and the Court received full submissions on both constitutional and international law.” By contrast, in a separate concurrence, Justice Rowe argued that his dissenting colleagues’ approach “goes beyond the issues raised by the parties and seeks, effectively, to overturn Hape at the invitation of interveners.” In his view, the parties merely sought to apply Hape and its exceptions. “No party challenged Hape.”

Not having read the parties’ submissions or followed the oral hearing closely, I make no comment on who is right on that particular point. What I want to note here is that there are pros and cons to judicial minimalism. The arguments in favour relate to the problems that can arise when courts make sweeping judgments or address issues that are unnecessary to resolving the dispute before them. The reference context is sometimes a great example of this: decisions that are detached from concrete facts and circumstances might invite a form of judicial creativity and the creation of rules in the abstract. Some of the Supreme Court’s most ‘adventurous’ decisions or law-inventing initiatives have come in such contexts. I mentioned above the ‘minimalist’ aspect of the Secession reference, but that opinion cannot in general be described as minimalist - the Court went well beyond the terms of the questions before it to invent a “duty to negotiate” in the event of a clear majority on a clear question favouring secession.

Yet, on the other hand, judicial minimalist can sometimes risk creating uncertainty in the law, as the courts avoid establishing clear guidelines or rules. It can also mean the courts avoid speaking to and protecting principles the Charter is meant to establish, as critics of Hape might argue today.

Judicial minimalism thus offers us a lens of analysis to understand and debate particular outcomes.