Jennifer Taylor

A child and her adoptive parents “found themselves caught up in a judge-made vortex of uncertainty and delay” when a judge made a “self-directed constitutional reference” instead of issuing an adoption order, prolonging and complicating the adoption proceedings. That is according to the Court of Appeal in Nova Scotia (Community Services) v Nova Scotia (Attorney General), a decision that has been called an “unusually blunt rebuke” to a lower court judge. Even though the case is unusual, the decision is a valuable precedent on the interplay between access to justice and the Charter of Rights and Freedoms.

The “vortex” was created when Associate Chief Justice O’Neil of the Supreme Court, Family Division (“hearing judge”) expressed concerns that a biological father had not been notified of adoption proceedings. (For an earlier post on the case, see here.)

In brief, a biological mother had reached an adoption agreement with the Minister of Community Services, following the process in the Children and Family Services Act. This process required the biological mother to provide a statutory declaration. Based on her declaration, the biological mother was the only person who met the statutory definition of “parent,” which does not include a biological father who is otherwise unidentified or uninvolved in the child’s life.¹ In this case, the biological father had not been identified.

Despite compliance with the statutory declaration and other procedural requirements under the Act—and the biological mother; Minister; and adoptive parents all agreeing that the adoption was appropriate—Justice O’Neil refused to issue the adoption order when the adoptive parents came before him in October 2016. At that point, according to the Court of Appeal, it became “clear that the hearing judge” was concerned about “the absence of consent from the biological father” (para 19). Several months of “uncertainty and delay” ensued.

During this period, the hearing judge—on his own motion—issued a notice of constitutional question to the Attorney General, contrary to the submissions of counsel for the Minister and the adoptive parents (see the decision under appeal here). The constitutional question was whether the statutory definition of “parent” in section 67 of the Children and Family Services Act violated the Charter – in particular, whether it infringed the section 7 or section 15(1) rights of the (unidentified) biological father or the child.

The Minister and the adoptive parents issued a notice of appeal in February, claiming that the hearing judge erred in (i) refusing to grant the adoption order when the statutory requirements had been met, and (ii) making a constitutional reference on his own motion (para 36). The Court of Appeal agreed. When the appeal was heard in March, the panel actually issued the adoption order from the Bench in light of the “very exceptional circumstances” of the case (para 85).

The Court of Appeal’s written decision was released last week, and it addresses three fundamental issues about constitutional litigation and access to justice.

First key issue: stare decisis. In short, the hearing judge was bound by the Court of Appeal’s 1992 decision in Re DT, which had upheld the statutory definition of “parent” as constitutional, and reflective of the legislature’s deliberate choice to exclude from the adoption process biological fathers who were not identified or otherwise involved with the child. Since DT, the SCC has made clear—in Canada (Attorney General) v Bedford and Carter v Canada (Attorney General)—that lower courts can revisit precedents when “jurisprudence and societal attitudes” change. But here, the hearing judge did not even apply the Bedford/Carter analysis to determine whether he was entitled to revisit DT (see para 54).

He was not so entitled. As the Court of Appeal put it (at para 54):

There was no new legal issue raised by the parties. The legal issue raised by the hearing judge – whether a biological father who does not meet the definition of “parent” must consent to an adoption – is the exact issue determined in D.T. … Such hypothetical musing on the part of the hearing judge does not, in our view, justify turning a blind eye to the principle of stare decisis.

[emphasis added]

Second key issue: mootness. According to the NSCA, “the issues being considered by the hearing judge were undoubtedly moot” (para 57). As the SCC explained in Borowski v Canada (Attorney General), mootness is not limited to situations where the parties have already resolved their dispute before the matter comes to court. The doctrine applies more generally, to restrain judicial intervention where “no present live controversy exists which affects the rights of the parties” (para 59, citing Borowski).

There are three main reasons for this doctrine, which limits judicial discretion to hear moot matters: (i) our adversary system is based on opposing parties presenting their real disputes to the court for resolution, not the court making pronouncements in the abstract; (ii) limiting judicial intervention into moot matters preserves judicial economy; and (iii) the court should not usurp the law-making role of the legislature by making decisions that do not arise from a particular dispute between parties.

These rationales promote access to justice by ensuring that judicial resources are reserved for actual disputes that parties raise, based on their particular facts and evidence and the legal principles they seek to have applied. According to the NSCA (at paras 67-68):

The courts are full of live controversies, with real issues impacting upon the lives of real litigants. It is hardly a secret that the administration of justice is often criticized for backlogs and delay. Before adding a time consuming constitutional reference to the docket, it is “preferable to wait and determine the point in a genuine adversarial context”.

Finally, there is nothing on the present record which would, in our view, justify a judge-initiated intrusion into the proper role of the Legislature. The issues raised by the hearing judge were moot. They were not triggered by a litigant with a real, or even potential, argument that the legislation constituted an infringement on their rights. The concerns raised were those solely of the hearing judge. They were entirely hypothetical. With respect, it was not his function to question the constitutionality of the statutory product of legislative decision-making.

[emphasis added]

Third key issue: the “nature of Charter litigation.” (See para 71.) Charter litigation cannot be conducted in a “factual vacuum” (para 74). There would have been a vacuum here: the hearing judge did not have the proper factual matrix or evidentiary groundwork to answer the constitutional questions he wanted to ask.

The NSCA concluded that “the hearing judge erred in legal principle when forging ahead with a self-directed constitutional reference” that was “inappropriate and ill-conceived” (para 39).

Other instances of judges directing constitutional references on their own motion may be rare, but this refresher on stare decisis, mootness, and the proper conduct of Charter litigation will ensure that access to constitutional justice remains reserved for the cases that need it.

¹ The statutory definition of “parent” has since been amended but not in a way that would have materially affected the outcome of this case. For adoption purposes, a father is included within the statutory definition of “parent” in the current version of section 67(1) of the Children and Family Services Act “where the father was, at the time of the child’s birth, married to or in a common-law relationship with the mother of the child.” A biological father could also meet the definition of “parent” if he had custody of the child; stood in loco parentis to the child; provided child support or exercised a right of access; acknowledged parentage and applied for custody, support, or access; or acknowledged parentage and had provided support or exercised access in the last two years.