An Oddity in Strom

In October, the Saskatchewan Court of Appeal released its much-anticipated decision in Strom. Strom raised a number of important issues: “ “at the intersection between professional regulation, Ms. Strom’s private life, and the s.2(b) Charter guarantee of freedom of expression in the age of social media.”  

Strom was a registered nurse. Her grandfather tragically passed at a long-term care facility. Strom took to Facebook to criticize the care her grandfather received at the facility. The facility’s employees reported the comments to the Saskatchewan Registered Nurses’ Association (SRNA). The SRNA charged Strom with professional misconduct, and the SRNA Discipline Committee found her guilty.

The Court ultimately overturned the Discipline Committee’s decision. For many reasons that I cannot explore here, I think this is the right decision, in law and in principle. But one aspect of the decision is of particular interest to me: the Court’s standard of review discussion as it related to the freedom of expression arguments raised by Strom.

Of course, in such a case, the framework that governs the standard of review analysis is Doré. Doré holds that the standard of review when a court reviews an administrative decision is reasonableness (Doré, at para 7). Doré also introduces a proportionality framework for assessing whether a decision-maker has struck a reasonable balance between the Charter right at hand and the statutory objective. Post-Vavilov, it is at least an open question about whether Doré is still good law. This is because Vavilov reaffirms that, when litigants challenge a law under the Constitution, the standard of review is correctness (Vavilov, at para 56). I, for one, have questioned why it is that different standards of review should apply, especially since the Court in Vavilov recognized that  legislatures cannot “…alter the constitutional limits of executive power by delegating authority to an administrative body” (Vavilov, at para 56).

Enter Strom.  In that case, both parties agreed that the standard of review is correctness on the Charter issue (Strom, at para 133). The Court also agreed, but only because the case came to court via a statutory right of appeal, and under Vavilov, statutory rights of appeal invite the appellate standards of review (correctness on questions of law, palpable and overriding error on questions of fact/mixed fact and law) (see Strom, at para 133). The Court noted, though, the following, at para 133:

It is not necessary to consider the question left unanswered by Vavilov, at paragraph 57; that is, what is the standard of review when the issue of whether an administrative decision has unjustifiably limited Charter rights is raised on judicial review, rather than on appeal?

This, in itself, is not really problematic. Given the fact that, for now, Doré lives another day, it would not be appropriate for an appellate court to apply the correctness standard to Doré-type situations. It is defensible—and proper—to simply classify a constitutional issue as a question of law that falls under the scope of an appeal right. And at the end of the day, it does not matter much for a results perspective, because the standard will be correctness either way.

However, in choosing the correctness standard, the Court then did something that is difficult to understand. It said the following, at para 140:

What, then, is an appellate court’s task when reviewing whether the decision of an administrative body unjustifiably infringed a Charter right? In substance, that task is summarily described in Doré at paragraph 6, despite the fact that the standard of review is correctness. The Court’s task is to determine whether the decision-maker disproportionately limited the Charter right or struck an appropriate balance between the Charter right and statutory objectives.

The Court went on to describe the question raised by the case, at para 166:

The question as to whether it has imposed excessive limits is the proportionality question. Here, it is whether the Discipline Committee advanced its statutory objective in a manner that is proportionate to the impact on Ms. Strom’s right to freedom of expression. One aspect of that question is whether the impact on her freedom of speech in her private life was minimal or serious.

The Court then went on to apply the Doré framework, though made reference to some parts of the Oakes test (see para 153).

This strikes me as an oddity. Let’s take what the Court describes its task to be. When courts apply the correctness standard, courts focus on “the conclusion the court itself would have reached in the administrative decision maker’s place” (Vavilov, at para 15). The proportionality analysis advanced in Doré, however, seems to have deference built-in to it. While Doré notes that the Oakes test and the Doré framework “exercise the same justificatory muscles,” (Doré, at para 5), Doré deference asks courts to give some weight to the statutory objective being advanced by the decision-maker. This was, indeed, a bone of contention for the dissent of Brown and Côté JJ in Trinity Western. But when a court conducts correctness review, at least in theory, the court should not give any weight to what the decision-maker’s reasons are for making

That said, there are no perfect Platonic forms in law. It is true that Oakes itself has developed to contemplate deference in its application. And it is also true that courts, post-Vavilov, have applied what I call “light correctness review” (see Planet Energy, at para 31), where a certain amount of weight is given to the decision-maker’s “…interpretation respecting the words of the Act, the general scheme of the Act and the policy objectives behind the provision.” This could be seen as a sort of Skidmore-like deference, under which courts give non-binding weight to an administrative interpretation.

That said, the inherently deferential idea of Doré review seems inconsistent with a stringent application of the correctness standard. This, to me, is a theoretical oddity, even if its effect is blunted on the edges.

Constitutional Law Ruins Everything. A (sort of) response to Mancini’s “Neutrality in Legal Interpretation.”

This post is by Andrew Bernstein.

No! I am not an academic nor was meant to be.
Am a mere practitioner, one that will do
To settle a dispute, argue an appeal or two
When advising clients, the law’s my tool.
Deferential, if it helps me sway the court
Argumentative, and (aspirationally) meticulous.
Case-building is my professional sport
Trying my hand at theory’s ridiculous!
But I’ll dip a toe into this pool.

(With apologies to T.S. Eliot and anyone who appreciates poetry)

Also, this is a blog post, so no footnotes or citations. Sorry!

As a lawyer whose most enduring interest for the last 30 years has been Canada’s constitutional arrangements, it gives me great pains to confess to you that I have concluded that constitutional law ruins everything. Or, perhaps put more judiciously, the kinds of debates that we have about constitutional interpretation are not especially instructive in dealing with other types of legal questions, such as statutory or common-law interpretation. There are many reasons for this, but the central one, in my view, has to do with the fact that while reasonable people may disagree on the outcome of a statutory interpretation, or a question of common law, those people will largely agree on the method of conducting those analyses. In constitutional interpretation, we don’t have consensus on “how” so it’s no wonder that the outcomes can be so radically different.

What are we really asking courts to do when we ask them to resolve a dispute? There are no doubt some high-minded theoretical answers to this (“do justice between the parties,” “ensure that capitalism is never threatened,” “enforce institutional sexism, racism, ageism, ableism and homophobia”) but from a practitioner’s perspective, the answer is actually straightforward: sort out the facts and apply a set of legal rules to those facts. Overwhelmingly those rules come from a variety of legal instruments, such as statutes, regulations, by-laws, and other “outputs” of political institutions such as Parliament, legislatures or municipal councils. If these institutions they don’t like the judicial interpretation of what they have passed, they can change the instrument accordingly. Moreover, these institutions are democratically elected, so if citizens do not agree with the laws that get made, they can replace them at the next election. Although this “feedback loop” suffers from many inefficiencies and obstacles in practice, it is essential to maintaining the concept of self-government by majority rule. What this means is that courts know what they are supposed to be doing when they interpret statutes: they look for legislative intention, as expressed by the words of the document. While courts are entitled to employ whatever clues they might be able to find in things like the legislative history, they appreciate that those clues must be used judiciously, as one speech by one MP does not a legislative intention make. And courts appreciate that the words of the document ultimately govern – although compliance is less than perfect, courts generally understand that they are not to circumvent the meaning of legislation with some kind of analysis based on the instrument’s supposed “purpose.”

While it is frequently accepted that the objective of statutory interpretation is to discern legislative intent, the question of why we would want to do so is not frequently interrogated. After all, while it may make eminent sense to give effect to a law that was passed a week ago, why would a self-governing people want to be governed by legislation that was passed by a legislature that is no longer in session? Perhaps by a different political party? The answer is partially pragmatic (it would be awfully cumbersome to have to re-enact every law each time a legislature was dissolved) but the real reason is the existence of the democratic feedback loop. Statutory interpretation operates on the presumption that, if no legislature has repealed or amended the statute, the people (as represented by the legislature) are content with it as it stands. In fact, this is the reason why no legislature can bind a future one to things like supermajority requirements. Because it is the people’s current intention – and not their past intention – that governs.

Constitutional law is designed to be immune to the democratic feedback loop. At least some aspects of the constitution are specifically intended to limit democratic institutions. The essence of that aspect of constitutionalism is the protection of vulnerable and/or minority groups from the potential for ill-treatment by the majority. Sometimes these protections take the role of institutional structures (such as federalism, regional representation in central institutions, and, according to some, a separation of powers) and other times they are specific guarantees of rights that specifically limit government action: freedom of expression, equality, or even “life, liberty and security of the person.” Cumulatively, this constitutional architecture is supposed to create a balance between self-government and limited government, ensuring that Canadians can govern ourselves, while not permitting the majority to oppress minorities.

This sounds great in theory, but immediately creates a dilemma: who gets to decide on the limits of “limited government?” Someone has to, and (if the constitution is going to be effective at curbing democratic excess) it has to be a different “someone” than the majoritarian institutions that actually do the governing. And although there are different models around the world, in Canada (like our American neighbours), we entrust that job to the Courts. This is not an uncontroversial decision, for a number of reasons. First, it is not clear that courts are institutionally well-suited to the job, with their adversarial model of fact-finding and decision-making. Second, courts are presided over by judges, who are just (as Justice Stratas recently said) lawyers who have received a judicial commission. There is no reason to think they are especially well suited to weighing the interests that a complex society needs to achieve an ideal balance between, for example, liberty and security, or equality and religious freedom. Third, judges are famously unrepresentative: they are whiter, richer, more male, more Christian, older and more conservative than the population. Nowhere is this more apparent than the apex of judicial decision-making, the Supreme Court of Canada, which got its first female judge in the 1980s and has never had an indigenous or any type of non-white judge or a judge from the LGBTQ community. Eighty five of Canada’s ninety Supreme Court judges have been Christian, the other 5 have been Jewish. No Muslims, Hindus, Sikhs, or even (admitted) atheists . Nevertheless, these 9 judges get to make significant decisions that have a major impact on social policy. Since the Charter was enacted, the Supreme Court has had a major role in liberalizing access to abortion, permitting medical assistance in dying, liberalizing prostitution laws, freeing access to cannabis, prohibiting the death penalty, enhancing public employees’ right to strike, and many other social policy decisions that were different from the democratic choices made by legislatures. In Canada, most decisions to strike down legislation have tilted towards the liberal side of the political spectrum, but there have also been decisions (most infamously, relating to private health care in Quebec) that tilt more towards the conservative side. This is not inherent to the process of adjudicating rights: the United States Supreme Court has grown increasingly conservative in the last 20 years, striking down liberal legislation relating to campaign finance, voting rights, and only yesterday striking down pandemic limitations on gatherings in houses of worship.

The combination of anti-democratic process and anti-democratic outcomes that constitutional adjudication creates has been subject of concern and criticism since judicial review was created in Marbury v. Madison. This, in turn, has led to the development of theories that are designed to constrain judicial decision-making. While some of this may be results-oriented, at its core, the goal of all “court-constraining theories” of constitutional interpretation is to give constitutional decision-making a touchstone by which decisions can be evaluated. Readers of this blog will no doubt be familiar with these theories, such as textualism, or public-meaning originalism, which stand in contrast to what is sometimes referred to as “living tree constitutionalism” or (in Leonid’s catchy turn of phrase “constitutionalism from the cave”). While I will undoubtedly not do them justice, the “touchstone theories” posit that the meaning of constitutional rights are more-or-less fixed (although may need to be applied in novel situations) and it’s the job of the courts to find and apply those fixed meanings, while “living tree constitutionalism” allows the meaning of these rights to evolve over time, and it’s the job of the courts to decide when and how to permit that evolution to take place.

To use an over-simplified example, imagine a constitutional guarantee of “equality,” which (it is agreed) was understood to mean “equality of opportunity” at the time it was enacted. And imagine that 40 years later, it is established that the historical and systemic disadvantages suffered by certain groups means that merely providing equal opportunity proves insufficient to providing those groups with a fair outcome. Touchstone constitutionalists could suggest that although what constitutes “equality of opportunity” may have to change to meet changing social circumstances, but does not permit courts to go further and use the constitutional guarantee of “equality” to impose equality of outcomes. Living tree constitutionalists could posit that the guarantee of equality was intended to ensure that people do not suffer disadvantage because of their immutable characteristics, and if we now recognize that this can only be done by providing equality of outcome, then this is what courts should do.

What’s important to appreciate is that our protagonists on both sides are not disagreeing just on the outcome. They are disagreeing on the fundamental nature of the exercise. Touchstone constitutionalists believes that the courts’ job is essentially to be the “seeker” in a game of hide and seek, while the living tree constitutionalists believe that the courts are playing Jenga, carefully removing blocks from the bottom and building the tower ever higher, with its ultimate height limited only by how far they can reach.

Who is right and who is wrong in this debate? No one and everyone. In fact, as I read Mark’s post to which I am (ostensibly) responding, I understand his plea to be not that touchstones – regardless of how old they may be – are normatively a fantastic way to adjudicate modern problems but rather that the alternative to touchstones is anarchy (or Kritarchy), and that has to be worse. Similarly, critics of touchstone constitutionalism are concerned about being forever bound by the past, without providing a particularly good explanation of what could or should reasonably replace it without ultimately resorting to the idea that we have to trust our judges to make good decision. This of course, begs the question “if we are relying on someone’s judgment, why is it the judges and not the people’s through their democratically elected representatives?”

What am I saying? I’m saying that the “touchstone vs. tree” debate is actually a normative question, that people like to dress up as one that has an objectively ascertainable answer. But in truth, where you stand on this will really depend on your own personal value system, as informed by your own experiences. If you value predictability and stability, and/or the idea of judges making decisions about what is right, fair or socially appropriate is offensive to you, you may be inclined towards touchstone constitutionalism. If you value substantive outcomes, and see the judicial role as guaranteeing and enforcing rights as they evolve, you will be inclined towards the living tree. Of course, this is to some degree all a false dichotomy. There are many places available between either end of this spectrum and everyone ultimately ends up tends towards one of the more central positions. For example, it is difficult to find anyone who seriously doubts the correctness of Brown v. Board of Education, even though there’s at least an argument that certain touchstones informing the meaning of equal protection in the United States’ 14th amendment contemplated segregation. On the other hand, no matter how alive one’s tree might be, respect for a system of precedent is necessary if you are going to continue to call what you are doing “law” as opposed to policymaking by an unaccountable institution that has only faint markings of democratic accountability.

So why does constitutional law ruin everything? As I see it, is that this unresolvable dilemma in constitutional law has a tendency to bring its enormous baggage to other areas, and leave it there. But it’s not clear that these oversized duffles filled with decades of counter-majoritarian sentiment are really going to assist what I would consider to be the very different exercise of statutory interpretation (I’m well aware of the argument that the constitution is just an uber-statute and should be interpreted accordingly, but that’s really just an argument for touchstone constitutionalism so I will conveniently ignore it). Why? Because unlike in constitutional interpretation, we have broad consensus on how to go about the exercise of statutory interpretation entails: it entails trying to determine what the legislature intended by the text that it enacted. And although this exercise can be difficult at times, and reasonable (and unreasonable) people can often disagree, they are disagreeing on the outcome and not the process. No one truly suggests that the courts should play Jenga when interpreting statutes; they are always the seeker in a game of hide-and-seek, using well-understood tools and rules. Of late, we have been describing those as “text, context and purpose” but long before that catch phrase existed, we had the lawyer’s toolbox of logic, common sense, experience, and approximately 400 years of common-law jurisprudence on canons of statutory construction (well-defended by Leonid in his recent post). It’s true that these rules are convoluted and it’s not always straightforward to apply them. Some judges and courts give more weight to (for example) the purpose of statute and the presumption against absurdity, while others might be more interested in the intricacies of grammatical structure. But these are matters of emphasis, and the degree of variation relatively modest. In fact, there is a pretty strong consensus, at least among Canadian courts, about how the exercise of statutory interpretation ought to be conducted, and, in the main, it is done with amazing regularity.

OK so we have covered the constitution (where there is no agreement on the game, much less the rules) and statutes (where everyone is singing from the same hymnbook). What remains is common law, and it is probably the strangest of all these creatures because it is, by necessity, hide-and-seek but what you are looking for is Jenga blocks. There is, of course, an important touchstone courts and judges look to: precedent. But if you stretch far back enough, the touchstone itself has no touchstone other than “what judges think is best.” In many ways, it’s “law from the cave” but the cave is extremely old, dark, and you probably can’t see the exit, so you are stuck inside unless or until the legislature “rescues” you and replaces the common law rules. This leads to a fascinating problem: because it’s based on precedent, common law derives its authority from consistency. But because it’s judge-made, judges feel relatively free to remake it in appropriate circumstances. In many ways, it’s the worst of both theoretical worlds: it is bound by (some may say stuck in) the past and also readily changeable by judges. But somehow it works anyway, and with much fewer lamentations from the theorists who worry about either of these things (excluding, of course, administrative law, which by unwritten constitutional principle must be comprehensively re-written every ten years to keep a group of frustrated practitioners on their toes).

So in short, I endorse Mark’s sentiment that we need neutral principles in adjudication. But I disagree that they are in short supply. We have neutral principles in statutory interpretation, and they work as well as any system that is administered by a few hundred people across the country possibly could. We have essentially one neutral governing principle in common law analysis, which is “mostly follow precedent.” So what we are really talking about is constitutional law, where the debate between the touchstone cops and the living tree arborists is essentially unresolvable because when you scrape to the bottom it asks “what do you value in a legal system” and it’s no surprise that there isn’t universal agreement on this. But there is a strong consensus on how to engage in interpretation outside the constitutional context, and we should not let the constitutional disagreements obscure that.

In other words, constitutional law ruins everything. But I told you that at the beginning.

Declarations of Unconstitutionality as Judgments In Rem: A Response to Professor Daly

This post is written by Marc-Antoine Gervais, and a larger paper on the subject will appear in the McGill Law Journal (vol. 66).

Canada’s model of judicial review of legislation is unusual. On the one hand, it is “diffuse” in that all courts of law (and many administrative tribunals) may decide constitutional questions. On the other hand, declaratory judgments of unconstitutionality issued by superior courts under s. 52 of the Constitution Act, 1982 “establish the general invalidity of a legislative provision for all future cases.”[1] As Professor Daly’s comment on R v. Sullivan reveals, there is still much uncertainty regarding the true nature and scope of s. 52 declarations rendered by provincial superior courts.

Professor Daly contends that “[t]he effect of a declaration of unconstitutionality, just as with a declaration of invalidity of a regulation, is that it no longer exists.” He further suggests that “res judicata has no application here […]: the matter has been decided but not because the requirements of res judicata are met, rather because a declaration with erga omnes force has been issued by a superior court.” With respect, it is submitted that the judiciary cannot literally invalidate or nullify laws, and that the general or erga omnes effect of s. 52 declarations may instead be explained by the doctrine of res judicata.

Courts cannot literally invalidate laws

Judges and commentators commonly assert that superior courts “strike down”, “nullify”, or “invalidate” unconstitutional laws.[2] These statements, however, should not be interpreted literally. Nothing in the Constitution of Canada empowers courts to exercise such a “negative act of legislation”, as Kelsen described it.[3] In fact, the power to annul laws has only been vested in the Queen in Council, although it has fallen into desuetude.[4]

Unconstitutional laws are “of no force or effect” by virtue of s. 52 of the Constitution Act, 1982. Courts merely declare, but cannot render laws invalid, as Justice Gonthier stressed in Martin: “the invalidity of a legislative provision inconsistent with the Charter does not arise from the fact of its being declared unconstitutional by a court, but from the operation of s. 52(1).”[5] Authoring a powerful dissent espoused in subsequent Supreme Court jurisprudence,[6] Justice McLachlin, as she was then, left no doubt as to the judicial nature of declarations of unconstitutionality in Cooper:

It is common to speak of courts or tribunals “striking down” or invalidating laws […].  This view of the Charter is, with respect, inaccurate.  The Charter confers no power on judges or tribunals to strike down laws. The Constitution Act, 1982, however, provides that all laws are invalid to the extent that they are inconsistent with the Charter.  Laws are struck down not by judicial fiat, but by operation of the Charter and s. 52 of the Constitution Act, 1982.[7]

Justice La Forest’s opinion in Kourtessis further confirms that declaratory judgments are no different in constitutional matters: “the declaration [of unconstitutionality] by its nature merely states the law without changing anything” — that is, it does not literally extinguish the provision deemed unconstitutional.[8] Proponents of the judicial nullification theory will have a hard time justifying the application by the Supreme Court of Canada of provisions that had been declared unconstitutional in prior cases.[9]

Res judicata and the general effect of s. 52 declarations of unconstitutionality

How, then, can a declaration of unconstitutionality generate erga omnes effects? The Supreme Court of Canada gave a hint in Ravndahl by describing s. 52 declarations as “in rem remed[ies]”.[10] A judgment in rem determines the legal status of a person or a thing independently from the context; it has erga omnes effects because it is “binding not only upon the parties but as against the whole world.”[11] The in rem determination is protected by the doctrine of res judicata, which estops anyone from challenging that legal status in other procedures.

Usually, judgments have inter partes effects because they only bind the parties to the litigation. However, in public law, it has been accepted for a long time that some types of determinations — such as declarations of nullity of regulations — are binding in rem.[12] In fact, the first constitutional law judgment in rem dates back to the famous 1637 Ship Money case, in which the court held that the tax levied by King Charles I was legal despite Parliament’s opposition.[13] Shortly thereafter, another litigant was estopped from challenging the same tax on the basis that the determination on the legality of the tax was no longer up for debate, even by non-parties to the Ship Money case.[14]

In modern Canadian constitutional law, the doctrine of judgment in rem may explain the general effect of s. 52 declarations issued by superior courts, as the apex court suggested in Ravndahl. Nonetheless, some difficulties remain. What is the territorial scope of declarations of unconstitutionality concerning federal legislation? In principle, judgments in rem bind the whole world, but this position is inapposite in the constitutional law context. Mark Mancini convincingly argues that it cannot be reconciled with the principle of federalism:

It would be an affront to the principled federalism balance established by the Constitution Act, 1867 to argue that section 52 declarations should extend throughout the country when issued by one judge in a province. The fact that there may be different findings between one province and another is a feature, not a bug, of the federalist system.

Moreover, a nationwide declaration of unconstitutionality issued by a single provincial superior court would have the very unfortunate effect of circumventing constitutional notice requirements to the attorneys general of other provinces.[15] It is thus submitted that judgments in rem should not run across provincial lines in constitutional matters until the Supreme Court — the only national court in Canada[16] — decides the issue.

In practice, superior courts have refused to automatically give effect to s. 52 declarations pronounced in other provinces.[17] In most cases, constitutional decisions are consistent throughout the country, but not always.[18] For example, the mandatory minimum sentence under s. 153 of the Criminal Code was declared unconstitutional by the Nova Scotia Court of Appeal,[19] but subsequently upheld by the Court of Appeal of Alberta.[20] The Supreme Court of Canada dismissed the application for leave to appeal the Alberta decision.

Not the final word on the constitutional matter

The doctrine of res judicata is flexible in common law, and it should not bar the reopening of a constitutional debate under certain exceptional circumstances.[21] Indeed, when the preconditions to the operation of the estoppel are established, the court possesses a discretionary power to refuse to apply it.[22]

Inconsistent superior court pronouncements on the constitutionality of a law in different provinces engender untenable jurisprudential uncertainty. In such circumstances, the controversy should be allowed to make its way to the Supreme Court of Canada, thereby allowing the “percolation” of diverse lower-court perspectives.[23] It must be stressed that this discretion to refuse the application of the estoppelshould only be exercised in order to foster the integrity and coherence of constitutional law, one of the central goals of the doctrine.[24]

Res judicata is thus distinct from, but operates in tandem with, stare decisis. Within a province, a mere disagreement with the underlying reasoning is not a sufficient ground for a court of appeal to neuter the estoppel barring the parties to challenge a judgment of unconstitutionality in rem issued by a superior in a prior case. Nonetheless, if the court elects to allow relitigation of the constitutional question, stare decisis applies as usual — either in its horizontal or vertical form, depending on the context.

Since courts cannot annul or invalidate legislation, it follows that the law once declared unconstitutional remains capable of “reviving” in the future, unless it is repealed. For example, the minimum sentence under s. 153 of the Criminal Code would “revive” in Nova Scotia if the Supreme Court of Canada holds that the provision passes constitutional muster in a subsequent case. The apex court has repudiated multiple declarations of unconstitutionality issued in earlier decisions,[25] and it would be inappropriate to blindly follow such controverted s. 52 declarations. Canadian[26] and American[27] courts have rightly “revived” laws once declared unconstitutional. Res judicata should not prevent the judiciary from revisiting declarations of unconstitutionality that rest on precarious legal grounds.

In the final analysis, courts cannot literally “strike down” laws or “remove [them] from [their] proper place among statutes.”[28] Rather, declarations of unconstitutionality are in rem determinations that generally establish the judicial ineffectiveness of provisions within the court’s territorial jurisdiction, subject to rare exceptions. The main qualification to the general binding effect of s. 52 declarations is that res judicata should not be applied where the estoppel entrenches inconsistencies in the judicial interpretation and application of the Constitution. The rule of law depends on it.


[1]        Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54 at para 31 [Martin].

[2]        See Schachter v Canada, [1992] 2 SCR 679 at 715; Ontario (Attorney General) v G, 2020 SCC 38 at paras 114, 237; Vancouver (City) v Ward, 2010 SCC 27 at 1.

[3]        Hans Kelsen, “Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution” (1942) 4:2 J Politics 183 at 187.

[4]        The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3, s 56.

[5]        Martin, supra note 1 at para 28. See also R v Ferguson, 2008 SCC 6 at 35.

[6]        See ibid at para 29; Paul v British Columbia (Forest Appeals Commission), 2003 SCC 55 at para 36; R v Conway, 2010 SCC 22 at paras 20, 64–82.

[7]        Cooper v Canada (Human Rights Commission), [1996] 3 SCR 854 at para 83.

[8]        Kourtessis v MNR, [1993] 2 SCR 53 at 86.

[9]        See R v Malmo‑Levine, 2003 SCC 74 and R v Loewen, 2011 SCC 21. The marijuana prohibition under s 4 of the Controlled Drugs and Substances Act had been declared unconstitutional by the Ontario Court of Appeal in R v Parker (2000), 49 OR (3d) 481), and the government adopted a new regulation to solve the constitutional lacuna. However, no legislative amendment was made. See also R v J-LJ, 2000 SCC 51 and R v Lamy, 2002 SCC 25. The Quebec Court of Appeal had declared s 159 of the Criminal Code unconstitutional in R c Roy, supra note 17, but its constitutionality was not challenged in both Supreme Court cases.

[10]      Ravndahl v Saskatchewan, 2009 SCC 7at para 27.

[11]      See Barry L Strayer, The Canadian Constitution and the Courts, 3rd ed (Toronto: Butterworths, 1988) at 193.

[12]      See Dilworth et al v Bala (Town) et al, [1955] SCR 284 at 289 [Dilworth]; Corporation du Village de Deschênes v Loveys, [1936] SCR 351; Emms v The Queen et al, [1979] 2 SCR 1148 at 1158–62 [Emms];

[13]      Rex v Hampden (1637), 3 How St Tr 826.

[14]      Lord Say’s Case (1638), Cro Car 524.

[15]      See Strayer, supra note 11 at 193–95.

[16]      See TA Cromwell, “Aspects of Constitutional Judicial Review in Canada” (1995) 46:5 SCL Rev 1027 at 1042.

[17]      See R v Pete (1998), 119 BCAC 161 (BC CA); Reference re Same-Sex Marriage, 2004 SCC 79 at 70; R v EJB, 2018 ABCA 239 at paras 72–75; Parent c Guimond, 2016 QCCA 159 at paras 11–18; R c Roy, [1998] RJQ 1043 (Qc CA); R v Scofield, 2019 BCCA 3 at paras 75–89; R v Boutilier, 2016 BCCA 24 at para 45 (Nielsen J); R v Graham and Parks, 2003 BCPC 369 at paras 12–16; R v Nicholls, 2003 BCPC 132 at 74–76.

[18]      See infra notes 19–20; s 151(a) of the Criminal Code was deemed constitutional in British Columbia twice in 2015 and 2017, but declared unconstitutional in multiple other provinces. In 2019, the Court of Appeal for British Columbia eliminated this inconsistency by overruling prior cases in the province and declaring the provision unconstitutional. See R v Scofield, 2019 BCCA 3 at paras 11–12, 75–88.

[19]      See R v Hood, 2018 NSCA 18.

[20]      See R v EJB, supra note 17 (leave to appeal dismissed).

[21]      See Emms, supra note 12; Dilworth, supra note 12 at 289–90.

[22]      See Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 at para 33.

[23]      See Han-Ru Zhou, “Erga Omnes or Inter Partes? The Legal Effects of Federal Courts’ Constitutional Judments” (2019) 97 R du B Can 276 at 296–98.

[24]      See R v Mahalingan, 2008 SCC 63 at 38.

[25]      See eg R v Turpin, [1989] 1 SCR 1296 at 1333–34; Libman v Quebec (Attorney General), [1997] 3 SCR 569 at paras 55, 79.

[26]      See Saltspring Island Water Preservation Society v Rockliffe, [1993] 4 WWR 601 (BCCA).

[27]      See Legal Tender Cases (1870), 79 US (12 Wall) 457, in which the US Supreme Court upheld a law that it had declared unconstitutional two years earlier in Hepburn v Griswold (1868), 75 US (8 Wall) 603. See also West Coast Hotel Co v Parrish (1937), 300 US 379, rejecting Adkins v Children’s Hosp (1923). The law’s validity was later confirmed in Jawish v Morlet (1952), 86 A2d 96 at p 97 (DC Mun Ct App). See also Pait v Ford Motor Co (1987), 500 So 2d 743 (Fla Dist Ct App); Pullum v Cincinnati, Inc (1985), 476 So 2d 657 (Fla Sup Ct) at pp 659–60; State ex rel Gillespie v County of Bay (1933), 112 Fla 687 at p 722 (Fla Sup Ct); Pierce v Pierce (1874), 46 Ind 86 at p 95.

[28]      Allison v Corker (1902), 67 NJL 596 at p 601.

Guest Post: Marc-Antoine Gervais

It is my pleasure to announce a guest post today by Marc-Antoine Gervais, on the subject of declarations of invalidity as in rem judgments. The post is a response to Paul Daly’s recent post on declarations of invalidity in the aftermath of the Sullivan decision.

Marc-Antoine has a larger paper coming out in the McGill Law Journal on this subject (vol 66).

Textualism for Hedgehogs

Why substantive canons belong in textualist interpretation, and what this tells us about neutral interpretive principles

I hope that you have read co-blogger Mark Mancini’s post on “Neutrality in Legal Interpretation“. In a nutshell, Mark argues for the application of politically neutral principles to the interpretation of legal texts, and against the fashionable view that it is inevitable, or indeed desirable, that interpreters will seek to fashion texts into instruments for the advancement of their preferred policy outcomes. It is a superb essay, and I agree with almost everything Mark says there.

Almost. In this post, I would like to explore one point of disagreement I have with Mark. Although it concerns a minor issue and does not detract from Mark’s overall argument at all, I think it helps us clarify our thinking both about legal interpretation and also about the meaning and purpose of legal neutrality. This point of disagreement concerns, of all things, “substantive canons of construction”.


Mark argues that textualism is a set of morally-neutral interpretive techniques that allow an interpreter to (my words, but Mark’s meaing, I think) serve as a faithful agent of the body enacting the legal text. (Mark focuses on statutes, but the same considerations apply to constitutional texts.) Other approaches allow or even require the interpreter to impose a certain set of substantive commitments, which may or may not be shared by the authors of the legal texts, on them. Textualism seeks to avoid doing so by asking the interpreter to focus on the text itself, relying on its letter and its spirit alone, rather than on any external commitments. In this context, Mark notes a possible (and indeed common) objection:

[O]ne might say that textualism and its family of tools are not themselves neutral. For example, some of the substantive canons of construction might be said to be imbued with presuppositions about the ways laws must be interpreted. For example, there is the rule that statutes altering the common law require a clear statement in order to do so.  This is not a value-neutral tool, it could be said, because it makes it difficult for statutes to override what one might call a generally “conservative” common law. 

Mark appears to grant this objection to the use of substantive canons in statutory interpretation, while denying that it undermines his broader argument:

I do see the merit of this argument, which is why I (and some other textualists) may wish to assign a lesser role to substantive canons. Indeed, since I believe in legislative sovereignty, the legislature should be able to change the common law without a clear statement. 

But then Mark walks back the concession to some extent, writing that “these canons could be justified on other grounds” , for example “as a matter of precedent, or as a matter of ‘stabilizing’ the law.”

By my lights, Mark’s initial concession is a mistake, and the walk-back too half-hearted. Substantive interpretive canons ― interpretive presumptions such as those requiring clear statements for statutes to derogate from common law or statutory rights, to change the law retroactively or to create exorbitant powers (for example Henry VIII clauses), or calling for narrow constructions of penal or taxing statutes ― deserve a more robust defence, which I will offer here. Most of them are not only “justified on other grounds” but are actually closely connected to the reasons for endorsing textualism and neutral interpretation more broadly.

These reasons include the separation of powers and democracy, which, taken together, mean that law should be changed in consequence of the choices of democratically elected legislatures and of such other actors to whom legislatures have properly delegated their law-making powers (assuming that such delegation can ever be proper). But they also include the Rule of Law, notably the idea that the law ought to be sufficiently public and certain to guide the subject. Textualism gives effect to the separation of powers and democracy by asking judges to give effect to legislatures’ choices and warning them not to override these choices by applying their own subjective preferences or substantive values not endorsed by the legislature. It also gives effect to the Rule of Law by ensuring that subjects, or at least their legal advisors, have access to the same information that will be used by those who interpret and apply the law. They can thus anticipate the law’s application better than if it can be given a meaning based on unenacted values available only to judges or administrators at the point of application.

Consider now how substantive canons serve the same ends. Their contribution to upholding the Rule of Law values of notice and guidance is perhaps most obvious. When courts refuse to read unclear or ambiguous statutes as imposing criminal or tax liability, they are ensuring that people are warned before their liberty and property are put in jeopardy, and can guide themselves accordingly. Similarly, when courts apply the principle of legality, which requires clear statutory language to over-ride or oust established common law rights, be they the right to access court (as in Justice Cromwell’s concurring opinion in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31 or property rights in Wells v Newfoundland, [1999] 3 SCR 199, they ensure that people are given warning before these rights are abrogated. Justice Major, writing for the unanimous court in Wells, explained this:

In a nation governed by the rule of law, we assume that the government will honour its obligations unless it explicitly exercises its power not to.  In the absence of a clear express intent to abrogate rights and obligations – rights of the highest importance to the individual – those rights remain in force.  To argue the opposite is to say that the government is bound only by its whim, not its word.   In Canada this is unacceptable, and does not accord with the nation’s understanding of the relationship between the state and its citizens. [46]

The argument about the relationship between textualism and separation of powers and democracy is perhaps somewhat less straightforward. But I think it’s not unfair to say that the obverse of insisting that it is the prerogative of legislatures, as the bodies representing the electorate, to have the law reflect their choices is that the law should reflect their choices. Textualism does this by emphasizing the primacy of text, which the legislature actually enacted, as the object of interpretation. Substantive canons are nothing more than an insistence that certain choices clearly appear to have been made in the text. Mark writes that “legislative sovereignty” means that “the legislature should be able to change the common law without a clear statement”, but I’m not sure that legislative supremacy requires deference to sotto voce or accidental legal change.

On the contrary, I think that for an interpreter to insist that the legislature spell out the consequences of its enactments rather than let them be inferred promotes legislative authority by requiring the democratic sovereign to squarely address the issues instead of leaving them to be worked out by unelected officials and judges. At the same time, however, it also promotes the more “negative” aspect of the separation of powers by freeing judges from becoming the legislatures’ accomplices is abuse of power. Subject to constitutional constraints, it is wrong for the courts not to give effect to legislation, but they are not, I think, under a duty to add to legislated iniquity of the legislature itself has not dared require it.

To be sure, it is possible for judges to misapply substantive interpretive canons so as to make them into instruments for refashioning legislation in accordance with their own preferences and values. Judges can be skillful practitioners of Nelsonian blindness and refuse to see in a statute that which is clearly there ― just as, on other occasions, they can see there that which is not. But I do not think that this necessarily makes substantive canons anathema to textualism. As then-Judge Amy Barrett has explained in a lecture devoted largely to a defence of textualism (which I summarized here), textualist adjudication is not mechanical. It requires judgment. A sparing ― judicious ― application of substantive canons calls for good judgment, but in this it is no different from other aspects of textualist interpretation or judicial decision-making more generally.

All that having been said, the impulse to disclaim and renounce the use of interpretive techniques that seem to bias adjudication in favour of particular outcomes is understandable as part of a broader appeal for neutrality. But here, I think, an appeal to precedent is relevant. Judges applying established substantive canons (or any other established interpretative techniques) is not introducing their own values into the law. They are not ― again, assuming they are not abusing their power ― wielding discretionary authority to bring the law into alignment with their policy preferences. They are not springing a surprise on the legislature (or the litigants). They are following established conventions for reading legal texts, which legislatures (or least the people drafting bills for them) can and ought to know.

Now, perhaps there is a further point of subtle disagreement between Mark and me here. Mark writes that “while the making of law may be a political activity, that does not mean that the rules we use for interpretation should be”. I think this a little imprecise. Like other legal rules, the established conventions of interpretation are not, themselves, value-free; I don’t think they could be. The conventions of textualism promote democratic authority, the separation of powers, and the Rule of Law. These are political values, in a broad sense, and I think that a defence of textualism should proceed on the basis that these are good values, not that that textualism has nothing to do with them. What should indeed be apolitical, to the extent possible for human beings, is the application of interpretive rules, not their content. However, an interpretive rule whose content is such as to make apolitical application impossible, is of course flawed from this standpoint.


What we should be looking for, then, are interpretive rules that can be applied impartially ― not mechanically, to be sure, but without the interpreter drawing on his or her subjective values, preferences, and beliefs about good policy. At least some forms of purposivism, as well as living constitutionalism and its analogues in statutory interpretation fail this test. Textualism, as Mark argues, is a more promising approach. But at the same time ― and not coincidentally ― textualism promotes important constitutional values: the Rule of Law, democracy, and separation powers.

Substantive interpretive canons, I have argued, promote the same values, and thus have a place in textualist interpretation. Indeed, I would go so far as to say that substantive canons are pre-eminently textualist interpretive tools, rather than those of some other interpretive approach. Like other kinds of interpretive canons, to which Mark refers, they are rules about reading texts ― albeit more than the other kinds, perhaps, they are rules for reading legal and, even more specifically, legislative texts. Their use has little to with legislative purpose, for example, and they may sit uneasily with a pragmatist or evolutionist approach to interpretation. They are not attempts to devine a legislature’s intentions hidden between textual lines, but rather rules about the legal meaning of enacted texts. Textualists should embrace substantive canons, not just as a grudging concession to precedent, but as a set of tools to wield with discernment, but also with confidence.

Neutrality in Legal Interpretation

Nowadays, it is unfashionable to say that legal rules, particularly rules of interpretation, should be “neutral.” Quite the opposite: now it is more fashionable to say that results in cases depend on the “politics” of a court on a particular day. Against this modern trend, not so long ago, it was Herbert Wechsler in his famous article “Towards Neutral Principles of Constitutional Law” who first advanced the idea of neutral principles. He wrote that, because courts must not act as a “naked power organ,” they must be “entirely principled” (Wechsler, at 19). They are principled when they rest their decisions “on reasons with respect to all the issues in the cases, reasons that in their generality and their neutrality transcend any immediate result that is involved” (Wechsler, at 19). The goal of these so-called “neutral principles” was to avoid “ad hoc evaluation” which Wechsler called “the deepest problem of our constitutionalism” (Wechsler, at 12). While Wechsler did not put it this way, I think textualism—particularly in statute law—is the closest thing to neutrality we have, and should be defended as such.

Wechsler’s idea of neutral principles, and textualism itself, are subject to much controversy. But, in my view, it is without a doubt that a deep problem in Canadian law remains “ad hoc evaluation,” otherwise known as “results-oriented reasoning.” Some judges are starting to recognize this. In constitutional law, Justices Brown and Rowe in the recent s.15 Fraser case noted that “substantive equality”—while a laudable doctrinal goal—has been ill-defined in the cases, and “has become an open-ended and undisciplined rhetorical device by which courts may privilege, without making explicit, their own policy preferences” (Fraser, at para 146). The same potential problem attends statutory interpretation, where results-oriented reasoning is possible (Entertainment Software Association, at para 76), and administrative law, where Vavilov was concerned with provides a rules-based framework for the application of deference. All of this is positive, because it provides a guide for judges in applying rules, ensuring that the reasoning process is transparent, bound, and fair to the parties.

But, in many ways, neutrality as a principle in our law is under attack. A common adage has become “law=politics,” and this broad, simple statement has elided the nuances that must apply when we speak of interpretation. This is true on both sides of the “political aisle” (a reference I make not out of any desire to do so, but out of necessity). Some who believe in notions of living constitutionalism or unbounded purposivism would tie the meaning of law to whatever a particular political community thinks in the current day, ostensibly because the current day is more enlightened than days past. In some ways this might be true as a factual matter (putting aside questions of legitimacy). But, as we are learning in real time, we have no guarantee that the present will be any more enlightened than the past.  Still others now advance a novel idea of “common good constitutionalism,” under which the meaning of constitutional text—whatever it is—must align with a “robust, substantively conservative approach to constitutional law and interpretation.” The goal is a “substantive moral constitutionalism…not enslaved to the original meaning of the Constitution.” These views have something in common: they purport to view the interpretation of law as a means to an end, reading in to legal texts contentious, political values that may or may not be actually reflected in the laws themselves.

The attack on neutrality from these camps—that span the spectrum—follow a familiar path, at least implicitly. They reason from an end. In other words, the argument assumes that some end is coextensive with moral justice, whatever that is. It assumes that the end is a good thing. It then says that the law should encompass that end because it is good.

Legal interpretation should not work this way. Laws, whether statutes or Constitutions, embody certain value choices and purposes. They have an internal meaning, quite apart from what other people want a particular law to mean. In this way, it is true that law is a purposive activity, in that law does pursue some end. But, as is well known, law is not co-extensive with justice, nor is it helpful to the interpretation of laws to say they pursue the “common good” or some other bromide. Even if one could come to some stable definition of such terms (a tall task indeed) that could guide the task of legal interpretation, it isn’t clear that all of the goals associated with some external philosophy are co-extensive with the law as adopted.   Laws do pursue purposes, but they do not do so at all costs—they often pursue limited or specific goals that are evident only when one reads the text (see the debate in West Fraser between the opinions of McLachlin CJC and Côté J on this point). This is why purpose is usually best sourced in text, not in some external philosophy.

If we accept that law is indeed a purposive endeavour, and that the words used by legislatures and drafters are the means by which purposes are enacted, then textualism is a defensible way of discovering those purposes. Textualism is simply the idea that we must read text to discover all that it fairly encompasses. Textualism is really a family of tools that we can use to discover that text. There are the linguistic canons—ejusdem generis, and the like—that are generally based on the way humans tend to speak in ordinary terms. There are contextual canons, such as the rule that statutes must be interpreted holistically. There are substantive canons of construction (which I will get to later). And there are other tools, like purpose, which can guide textualist interpretation so long as it is sourced properly. Unlike other theories of “interpretation,” these tools are designed to find the meaning of the law from within, rather than imposing some meaning on it without.

I can think of at least three (and probably more) objections to the point I am making here. First, one might say that textualism and its family of tools are not themselves neutral. For example, some of the substantive canons of construction might be said to be imbued with presuppositions about the ways laws must be interpreted. For example, there is the rule that statutes altering the common law require a clear statement in order to do so.  This is not a value-neutral tool, it could be said, because it makes it difficult for statutes to override what one might call a generally “conservative” common law. I do see the merit of this argument, which is why I (and some other textualists) may wish to assign a lesser role to substantive canons. Indeed, since I believe in legislative sovereignty, the legislature should be able to change the common law without a clear statement. Of course, these canons could be justified on other grounds that I do not have space to explore here. For example, they could be justified as a matter of precedent, or as a matter of “stabilizing” the law.

Second, one might trot out the familiar canard that textualism as a general matter leads to “conservative” outcomes. To put this argument in its most favourable light, one might say that textualism leads to cramped interpretations of statutes, robbing them of their majestic generalities that could serve to achieve certain political aims. It’s worth noting three responses to this position. First, the “cramped interpretation” argument tends to conflate strict constructionism and textualism. Indeed, textualism may sometimes lead to “broad” interpretation of statutes if text and purpose, working synthetically, lead to that conclusion. A great recent example is the Bostock decision from the United States Supreme Court, which I wrote about here. There, textualism led to a result that was actually more protective of certain rights.  Second, the use of political labels to describe legal doctrines is a pernicious trend that must come to an end. Even if these labels were actually stable in meaning, and not themselves tools of cultural warfare, it is unfair to assume that any one legal theory is always something. I understand the need to box everything, these days, into neat categories. But sometimes, law can mean many different things. And tools used to interpret those laws, as much as possible, should remain apart from the political aims those laws wish to pursue.

Third, it might be said that true neutrality is not of this world. That is, it could be argued that a Solomonic law is impossible, and no matter what, the act of interpretation is a fundamentally human activity that will be imbued with traditionally human biases. I accept this point. Because judges are humans, no system of rules will always remove the human aspect of judging, nor should it. The best we can do is design a system of rules, in mind of the tradeoffs, that limits the pernicious forms of biases and political reasoning that could infect the law. We won’t always get it right, but we should not take the nihilistic view that the entire enterprise of law as something separate from politics is not worth pursuing.

Finally, one might argue that law is inextricably political. It is cooked up in legislatures made up of thoroughly political individuals, with agendas. It is enforced by people who have biases of their own. I also accept this point. But this argument, to me, runs up against two major problems that limit its force. First, while the making of law may be a political activity, that does not mean that the rules we use for interpretation should be. Not at all. In fact, one might say that the rules of interpretation should be used to discover the meaning of the law, whatever political result it encompasses. Second, there is a major is/ought problem here. Just because the making of law is political does not mean we should not be concerned with a system of rules designed to limit biases that might infect the judging process. All people, regardless of ideology, should find this goal laudable.

I close with this. I understand that we live in sclerotic times in which there are passionate political views on many sides. There is a natural tendency to impose those views into law. We lose something when this happens. While perhaps not a sufficient condition for legitimacy, it is central to the Rule of Law that laws be promulgated and interpreted in a fair way. Generality, as Wechsler notes, is one guarantee of fairness. If we give up on generality and neutrality in interpretation, then we must admit that judges are simply political actors, agents of politicians, without any need for independence. It is self-evident that this is undesirable.

Still Keeping It Complicated

The Supreme Court tries to bring more rigour to constitutional interpretation and takes a step towards textualism, but won’t admit it

In my last post, I summarized the opinions delivered in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32. While the Supreme Court unanimously holds that corporations are not protected from cruel and unusual punishment by section 12 of the Canadian Charter of Rights and Freedoms, the majority (Justices Brown and Rowe, with the agreement of the Chief Justice and Justices Moldaver and Côté) and the principal concurrence (Justice Abella, with Justices Karakatsanis and Martin) strongly disagree about the proper approach to constitutional interpretation and to the role in this process of international and foreign legal materials.

As promised, in this post I present my thoughts on these opinions, primarily on their general approach to interpretation, though I’ll say something on the role of international and foreign materials too. I will, once again, begin with Justice Abella’s opinion, which in my view is representative of what I have described as “constitutionalism from Plato’s cave” ― the judicial creation of constitutional law out of abstract ideals favoured by the judges themselves rather than genuine interpretation of a constitutional text. I will then turn to the majority opinion, which repudiates constitutionalism from the cave, but also seemingly rejects what I regard as the best interpretive method, public meaning originalism. I will argue that there is less to this rejection than meets the eye.

One question on which I will say nothing, although the majority and the principal concurrence trade sharp accusations on it, is which of these opinions is more consistent with precedent. As Benjamin Oliphant and I have pointed out in our article on “Originalist Reasoning in Canadian Constitutional Jurisprudence”, the Supreme Court has never been consistent in how it interpreted the constitution, mixing and matching originalist and living constitutionalist approaches in any number of unpredictable ways. (Mr. Oliphant has developed this theme elsewhere too.) Justices Brown and Rowe are right to call for more rigour and consistency on this front; but they are wrong, as is Justice Abella, to suggest that has been any rigour and consistency in the past. Whatever their flaws, neither the majority nor the concurring opinion break with established law, because there is no real law to break with.


As mentioned in my last post, Justice Abella insists that her approach to interpretation is “contextual” and, above all, “purposive”. In truth, it might be better described as authorizing constitution-making by the Supreme Court. It is “the Court” ― following an American usage, Justice Abella does not bother specifying which one ― that “has, over time, decided who and what came within the Charter’s protective scope”. [49] The Supreme Court does not simply decide cases in which the question arose. No, it apparently ruled, as a matter of discretion, on whom the Charter will protect going forward.

Judicial rulings in constitutional cases are not, for Justice Abella, mere workings out of the constitution’s meaning. Indeed, the constitutional text plays no special role in interpretation for her. This is unsurprising, because Justice Abella embraces the view that co-blogger Mark Mancini recently described as “linguistic nihilism” ― the idea “that language is never clear, or put differently, hopelessly vague or ambiguous”, so that “the task of interpretation based on text is a fool’s game”. (Of course this is of a piece with Justice Abella’s commitments in administrative law.) It is also unsurprising, then, that her discussion of international materials suggests that text does not really matter at all, and a variety of differently-worded provisions all stand for the exact same principles, without any meaningful inquiry into the relevance, if any, of their language. In fact, Justice Abella is openly disdainful of the possibility that textual nuance ― such as “the presence of a comma” [75] ― might make a difference in interpretation.

Another reason for Justice Abella’s refusal to be bound by constitutional text is that this ” could unduly constrain the scope of [constitutional] rights”. [75] This reflects the conviction, common among living constitutionalists, that judicial re-writing of constitutions is a one-way ratchet unfailing causing rights to expand. This view is belied by experience. But, quite apart from that: “unduly” by what standard? If not by reference to text, how do we know what is the due scope of constitutional rights? This ambiguity is of a piece with Justice Abella’s insistence that section 12 “is meant to protect human dignity and respect the inherent worth of individuals. Its intended beneficiaries are people, not corporations.” [51] Is meant… by whom? Intended… by whom? And how do we know?

As Mr. Oliphant and I noted in the paper linked to above, “[m]arks on paper have no will or agency and thus can have no ‘purposes’ or ‘intentions’ that are independent of willful actors”. (537) One possibility, as we suggested, is that this language becomes an opening for an inquiry into the intentions of the Charter‘s framers. But Justice Abella isn’t very interested in that. Unlike the Supreme Court in some cases, she doesn’t consider the Charter‘s drafting history or the views of its framers, beyond a passing reference to Pierre Trudeau’s general comments about the Charter‘s raison d’être.

Justice Abella’s use of ambiguous language and the passive voice, like her refusal to be bound by text or to commit to any hierarchy of interpretive sources, suggest that she believes herself to have has complete discretion in deciding what the Charter is to mean. Her own sense of justice is the only standard of who is “due” protection under the constitution, and what protection they are “due”. This is unsurprising, of course, from someone who professes impatience with the Rule of Law and prefers a “rule of justice”. Constitutional purposes, as she conceives of them, are Platonic abstractions, which the wise ― she the wisest ― must interpret for the rest of us.

As I have said a number of times in the past, “constitutionalism from the cave” is not real constitutionalism. It is antithetical to the Rule of Law. Ultimately, it undermines the foundations of judicial review: if the constitution means whatever unelected judges preoccupied with international approval more than with the law or the commands of the constitution’s framers say it means, there is no particular reason why the political branches would comply with these judges’ musings. It is good that this view is dealt a defeat by the Supreme Court’s majority.


In contrast to Justice Abella, Justices Brown and Rowe emphasize the importance of constitutional text. It is not, I think, merely a matter of the text being chronologically the first consideration for a court engaged in constitutional interpretation: “constitutional interpretation” is “the interpretation of the text of the Constitution”. [9] The text is its focus and overriding constraint; it has “primacy” over other considerations. [10, citing Caron v Alberta, 2015 SCC 56, [2015] 3 SCR 511 at [36]]

One way in which the text matters is, of course, through the ordinary meaning of its words and the inferences that can be drawn from it. Here, since the word “cruel” refers to the infliction of human suffering, it stands to reason that section 12 does not protect corporations. But the significance of the text goes further. The history of the text and the changes it underwent are relevant too, as Justices Brown and Rowe show by pointing ― in language that, as I noted in my last post, closely mirrors that of my comment on the Court of Appeal’s decision in this case ― to the contrast between the language of section 12 and that of its predecessors in Magna Carta and the Bill of Rights 1688. Other provisions on the text are relevant too.

To my mind, this ― so far as it goes ― is a sound approach to constitutional interpretation, and I am happy to see it forcefully stated by a majority of the Supreme Court. If I were to put a label on it, it would be “textualism”. Consider the definition of textualism given by then-Judge, now Justice Amy Coney Barrett in a lecture I reviewed here:

Textualism … insists that judges must construe statutory language consistent with its “ordinary meaning.” The law is comprised of words—and textualists emphasize that words mean what they say, not what a judge thinks that they ought to say. For textualists, statutory language is a hard constraint. Fidelity to the law means fidelity to the text as it is written. (856; footnote omitted)

This is what Justices Brown and Rowe are doing: insisting that the object of interpretation is words, text, and focusing on their ordinary meaning, which is a hard constraint on interpretation.

Yet Justices Brown and Rowe reject the label of textualism. To their mind, what they are doing is purposive interpretation. Judge Barrett, as she then was, saw purposivism as the opposite of textualism, though in my post I cautioned that “many approaches to interpretation and construction, including ones that respect the primacy and constraint of the text, might properly be described as purposive”. Perhaps this is what Justices Brown and Rowe are advocating ― a sort of “purposivism”, if that’s what they prefer to call it, but one that has a great deal more in common with textualism as defined by Judge Barrett than with “purposivism” as defined by Justice Abella.

So maybe the moral of the story here is that we all should be less hung up on labels. But in my view there is a real cost to the lack of clarity that the labels used by the Supreme Court generate. I wrote about this here when I commented on R v Stillman, 2019 SCC 40. In that case, similarly to here, the majority and the dissent both claimed to be engaged in purposive interpretation. But the majority, I argued, was in effect following a public meaning originalist (and hence textualist) approach, while the dissent was doing constitutionalism from the cave. As I said then, to pretend that textualist interpretation is really purposive generates unnecessary detours. Here, the majority’s references to human dignity as the purpose of section 12 do no real work, and unnecessarily burden the reasoning with what is, by the Supreme Court’s own well-known admission in R v Kapp, 2008 SCC 41, [2008] 2 SCR 483, “an abstract and subjective notion”. [22] And, as I also said in my comment on Stillman, mislabeling an originalist or textualist interpretation as purposivist makes it possible for the partisans of an entirely different version of purposivism to invoke cases that go directly against their views as support for them. Justice Abella does precisely that here (at [73]).

Worse still, from my perspective, than the mere confusion about labels is the seeming rejection by Justices Brown and Rowe of the substance of public meaning originalism, under the label of “new textualism” which they borrow from Aharon Barak’s Harvard Law Review Supreme Court Term Foreword, “A Judge on Judging”, where it stands as a shorthand for Justice’s Scalia’s interpretive approach. This is the idea, as President Barak put it, “that that the Constitution and every statute should be understood according to the reading of a reasonable reader at the time of enactment”. (82; reference omitted) Justices Brown and Rowe claim that this approach is “not remotely consistent” [12] with theirs. If they are right, this would be the first rejection of public meaning originalism by the Supreme Court. As Mr. Oliphant and I have shown, until now, the only versions of originalism that had been clearly rejected were those, disfavoured by originalists themselves, that focus on original expected applications and outcomes.

Yet it will take more than this opinion of Justices Brown and Rowe to make me give up on originalism. Let me note, first, that Justice Brown himself was a co-author of the Stillman majority opinion (and that its other co-author was Justice Moldaver, who agrees with Justices Brown and Rowe here). I described that opinion as “perhaps the most originalist, and specifically public-meaning originalist, in a constitutional case since that of the majority in Caron“. And yes, Caron ― which Justices Brown and Rowe repeatedly cite ― was a public-meaning originalist judgment, as I explained here. Both Stillman and Caron focused on ascertaining the meaning of the constitutional provisions at issue there by reference to how they would have been understood by “a reasonable reader at the time of enactment”, over dissents that favoured, respectively a more policy-infused approach and one based on the alleged intent of the framers. If Justices Brown and Rowe really meant to reject public meaning originalism, would they be relying on these cases? That seems implausible.

No less importantly, consider what Justices Brown and Rowe say elsewhere in their opinion. When they discuss the use of international and foreign materials, they draw an “important distinction … between instruments that pre‑ and post‑date the Charter“. [41] The former “clearly form part of the historical context of a Charter right and illuminate the way it was framed”, whether or not they were binding on Canada. The latter, only matter if they bind Canada, and even then subject to only a presumption that Canadian constitutional law conforms to them, and to the principle that international law does not automatically become part of Canadian law. This isn’t quite originalism: an originalist would be warier still of materials that post-date the Charter, although, as I am about to explain, without necessarily rejecting their relevance in all cases. But it’s pretty close. Originalists believe that constitutional text must be interpreted in context as of the date of its enactment, and reference to international materials available to Canadian framers is certainly a legitimate part of ascertaining the context in which the Charter‘s original meaning should be established. The fact that Justices Brown and Rowe draw a dividing line at the moment of the Charter’s enactment suggests that they are, in fact, open to something like originalist thinking.

All in all, my point is not that Justices Brown and Rowe are originalists. However, they are textualists, which is a big part of originalism, and their approach has at least some significant affinities with public meaning originalism. It is unfortunate that their self-misunderstanding muddies the waters. But if we focus on what they do rather than on what they say about what they do we can see that their opinion, despite its flaws, is an important step in the right direction, and by far preferable to Justice Abella’s.


I turn, finally, to the issue of international and comparative materials. I agree with the majority’s calls for care and discernment in the way such materials are used. Partly this is a matter of legal and intellectual rigour. Partly, as Justices Brown and Rowe say, of “preserving the integrity of the Canadian constitutional structure, and Canadian sovereignty”. [23] Justice Abella’s concerns about whether foreign scholars and courts will pay attention to Canadian constitutional law are beside the point. Ultimately, the Canadian constitution means what it means, and not what some international treaty, let alone foreign constitutional text, might mean ― a matter on which Canadian courts often could not pronounce. I would, however, add two further observations, which I already made here in discussing similar issues that arose in the Supreme Court’s decision in Frank v Canada (Attorney General), 2019 SCC 1, [2019] 1 SCR 3.

First, international and foreign materials may be more relevant and persuasive to courts engaged in constitutional construction, and in particular (but not only) in the demarcation of reasonable limits on rights under section 1 of the Charter, than in cases such as this one, which concern the interpretation of the Charter‘s text. When courts develop legal doctrine, they have more reason to look to international experience ― including international experience post-dating the Charter‘s enactment ― than when they seek to discern the meaning of the Charter‘s words ― an exercise to which, as Justices Brown and Rowe recognize, international and foreign materials post-dating the Charter are unlikely to be relevant. The majority’s unwillingness to seriously engage with public meaning originalism causes it to seemingly lump all constitutional questions together and so to lose sight of this nuance.

Second, when and to the extent that international and foreign law is relevant, judicial consideration of it should, as I wrote in my comment on Frank, “not be partial ― either in the sense of having a pre-determined result in mind, or in the sense of being incomplete”. I’m not quite sure what Justices Brown and Rowe mean by saying that such materials should be kept to “providing support and confirmation for the result reached by way of purposive interpretation”. [22; emphasis in the original] But it would not be intellectually honest for a court to only consider materials that agree with its conclusions and deliberately discard others. If the court considers foreign and international sources, it should address those that it does not find persuasive.

The court should also be careful not to misunderstand or mischaracterize these sources. Justice Abella’s invocation of the “judges in the majority” in Furman v Georgia, 402 US 238 (1972), as having “definitively discussed” the purpose of the Eighth Amendment is an example of such dangers. There was no unified majority in Furman; the two judges whom Justice Abella quotes, Justices Marshall and Brennan, were in fact the only ones who took the position they took, which was that the death penalty was necessarily cruel and unusual punishment. Three others took a more limited view that opened the door to the re-imposition of the death penalty, which was given the green light in Gregg v Georgia, 428 US 153 (1976), in effect reversing Furman. If judges are to refer to foreign law, they need to understand and be honest about it.


Overall, the Supreme Court, and specifically the majority opinion of Justices Brown and Rowe, brings a welcome dose of rigour to the task of constitutional interpretation in Canada. The primacy of constitutional text as the object of interpretation is affirmed, while freewheeling discretion to make the constitution the best it can be in a judge’s opinion is rejected. There is also a more rigorous approach to the use of international and foreign materials in constitutional interpretation. Compared to the alternative vividly illustrated by Justice Abella, this is all very welcome (and all the more so if, as I hypothesized in my last post, Justice Abella’s opinion was originally intended to be the majority one).

But the majority opinion is very far from perfect, and it will perpetuate much of the confusion that afflicts constitutional interpretation in Canada. Even as it adopts the methods of textualism and is largely compatible with public meaning originalism it disclaims the former and purports to reject the latter. This messiness is the sad consequence of a lack of serious thought about constitutional interpretation in Canada. One can only hope that this gap will be filled in the years to come.

You Read It Here First

The Supreme Court holds that the Charter does not protect corporations against cruel and unusual punishment

Can corporations avail themselves of the protection of section 12 of the Canadian Charter of Rights and Freedoms against “any cruel and unusual treatment or punishment”? In Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32 the Supreme Court unanimously holds that it cannot. The question excited some debate, both for its own sake and also for its implications for constitutional interpretation more broadly, in the wake of the Québec Court of Appeal’s decision in this case, 9147-0732 Québec inc c Directeur des poursuites criminelles et pénales, 2019 QCCA 373. I argued against the position of the Court of Appeal’s majority and in favour of the one now adopted by the Supreme Court (here and then here); others, however, disagreed.

The narrow issue of the scope of section 12 is now decided, at least as a matter of positive law. But the splits among the Supreme Court’s judges and the ambiguities of the majority opinion delivered by Justices Brown and Rowe (with the agreement of the Chief Justice and Justices Moldaver and Côté) mean that the broader question of how Canadian courts should interpret the constitution remains unsettled. Although both the majority and Justice Abella, who concurs (with Justices Karakatsanis and Martin) claim for themselves the mantle of purposivism, the majority moves in a textualist direction, even as it denies doing so, while the concurrence defends an approach under which the constitution means whatever the Supreme Court thinks it should mean, though it does not quite admit it. Justice Kasirer, meanwhile, concurs in the result and pointedly refuses to step into his colleagues’ interpretive debate.

In this post, I summarize the opinions. I will follow up with comments, mostly on constitutional interpretation, in a separate post tomorrow. Benjamin Oliphant will also have comments in the coming days, dealing with both constitutional interpretation generally and the use of international law in particular.


The respondent (we’re not actually going to refer to it ― or to the case as a whole ― by the number, are we? what are supposed to call this case though?) was charged with having undertaken some construction work without the requisite license. It argued that the fine it would have to pay would be excessive, and thus in violation of section 12 of the Charter. All three judgments made short work of this view. All commended the dissenting reasons of Justice Chamberland at the Court of Appeal and, like him, all pointed to the fact that cruelty referred to the infliction of suffering in body or mind, of which human beings were capable, and legal persons were not. Justice Kasirer’s concurrence, which limits itself to making these points, is all of five paragraphs long.

But, for whatever reason, the other eight judges do not think this is enough. They debate the general principles of constitutional interpretation, focusing on two main issues: first, the primacy, or lack thereof, of the constitutional text; and second, the role of international materials. The subject of this debate is unusual for a Supreme Court of Canada decision: constitutional interpretation is seldom addressed at such length even in cases that actually turn on it, which this one doesn’t really. So is the debate’s vehemence. The perennial talk of the differences between the mean, originalism-debating US Supreme Court and its kinder, gentler Canadian counterpart was always overwrought, but it feels especially out of place now.

Another oddity of the debate between the majority opinion and that of Justice Abella is that the former seems to have been written entirely in response to the latter. It is a rare majority opinion that is introduced by a disclaimer that “[d]espite our agreement in the result, we find it necessary to write separately”. [3] I wonder whether the decision was originally assigned to Justice Abella, but some judges (starting presumably with Justices Brown and Rowe), being dissatisfied with her treatment of the interpretive issues, wrote separately, and ended up peeling off others, forming a new majority. Be that as it may, it is perhaps useful to start with Justice Abella’s reasons, since the majority responds to them more than the other way around.

Justice Abella describes her interpretive approach as “contextual” and “purposive”. The text has no special role to play in determining the Charter’s import: “examining the text of the Charter is only the beginning of the interpretive exercise, an exercise which is fundamentally different from interpreting a statute”, [71] and “elevating the plain text” of the Charter’s provisions “to a factor of special significance” is a mistake. [72] Due to its often “vague, open-ended language … [t]he text of those provisions may … be of comparatively limited assistance in interpreting their scope”. [74] Indeed, attaching too much importance to constitutional text

could unduly constrain the scope of those rights, or even yield two irreconcilable conclusions leading, for example, to the interpretive triumph of the presence of a comma in expanding gun-owners’ rights under the Second Amendment of the United States Constitution in District of Columbia v Heller, 554 US 570 (2008) [75]

Insisting on the primacy of the plain text of Charter rights” also undermines the constitution’s ability of to develop and “creates a risk that, over time, those rights will cease to represent the fundamental values of Canadian society and the purposes they were meant to uphold”. [76] Finally, “[a] textualist approach would also make Canadian constitutional law more insular”, [78] by which Justice Abella means both less inclined to consider foreign authority and less attractive as a reference point to foreign jurists.

Rather, purpose has to be inferred from a variety of contextual indicia, there being no “rigid hierarchy among these interpretative guides”, [80] although elsewhere Justice Abella suggests that “the principles and values underlying the enactment of the Charter provision are the primary interpretive tools”. [70] Justice Abella refers to dictionary definitions of the word “cruel”, the textual context of section 12 (notably the fact that almost no other “legal rights” protected by the Charter have been held to extend to corporations), and the historical context of its enactment (with respect to which Justice Abella briefly refers to the Bill of Rights 1688, the comments of some judges in  Furman v Georgia, 408 US 238 (1972), and the Canadian Bill of Rights).

Justice Abella also refers, copiously, to contemporary interpretations of section 12’s equivalents in foreign and international instruments. This is justified, she argues, by the fact that “Canada’s rights protections emerged from the same chrysalis of outrage” about Nazi crimes “as other countries around the world”. [98] It also ensures that Canada maintains a “leading voice internationally in constitutional adjudication”. [106] Unlike the majority, she wants to avoid creating a “hierarchical sliding scale of persuasiveness” [104] among these sources and “thereby transform[] the Court’s usual panoramic search for global wisdom into a series of compartmentalized barriers”. [61] Textual differences among these sources do not matter, because “a common meaning can be ascribed to their various formulations”. [108] These sources include international treaties, both those to which Canada is a and those to which it is not (like the American Convention on Human Rights), as well as the interpretations of these treaties by the relevant adjudicative bodies, as well as the jurisprudence of foreign domestic courts.

All these sources tend to the same conclusion:

In line with the global consensus, [section 12’s] purpose is to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals. … Since it cannot be said that corporations have an interest that falls within the purpose of the guarantee, they do not fall within s. 12’s scope. [135-36]

The majority, as already noted, strongly disagrees with Justice Abella’s approach. Like Justice Abella, Justices Brown and Rowe purport to interpret the Charter in a purposive manner. However, they accuse Justice Abella of “minimizing the primordial significance assigned by this Court’s jurisprudence to constitutional text in undertaking purposive interpretation”. [4] They insist that

within the purposive approach, the analysis must begin by considering the text of the provision … because constitutional interpretation, being the interpretation of the text of the Constitution, must first and foremost have reference to, and be constrained by, that text”. [8-9; emphasis in the original]

They add that “[g]iving primacy to the text” [10] is also the way to avoid framing the purpose of a provision too narrowly or too broadly.

Justices Brown and Rowe reject the charge that they are favouring a narrowly textualist approach. What Aharon Barak’s described, in his Harvard Law Review Supreme Court Term Foreword, “A Judge on Judging”, as “new textualism”, a “‘system [which] holds that the Constitution and every statute should be understood according to the reading of a reasonable reader at the time of enactment’ and in which ‘[r]eference to the history of the text’s creation . . . is not allowed’” [12], is “not remotely consistent with [the approach] which we apply and which our law demands”. [12]

Analyzing section 12, Justices Brown and Rowe first note that “the words ‘cruel and unusual treatment or punishment’ refer to human pain and suffering, both physical and mental”. [14; emphasis in the original] They mostly endorse Justice Abella’s historical analysis, although they “add that an examination of s. 12’s historical origins shows that the Charter took a different path from its predecessors”, [16] going back to Magna Carta, because “the right not to be denied reasonable bail without just cause was carved off from the right to be free from cruel and unusual punishment, and placed in s. 11(e) of the Charter”, while “[e]ven more significantly, the protection against ‘excessive fines’ was not retained at all”. [16] All “this is highly significant, if not determinative: excessive fines (which a corporation can sustain), without more, are not unconstitutional”. [17]

Readers may have seen these arguments before: in part, of course, in Justice Chamberland’s dissent at the Court of Appeal, but the reference to both Magna Carta and to section 11(e) of the Charter first appeared right here, in my comment on the Court of Appeal’s decision. Here’s what I wrote:

The Charter does things somewhat differently from its forbears. The right “not to be denied reasonable bail without just cause” is placed in a separate provision (section 11(e)) from the protection against cruel and unusual punishment (section 12). The proscription of “excessive fines”, meanwhile, has not been retained. These drafting choices ought to matter. In particular, the Charter’s text means that excessive fines are not, without more, unconstitutional. (Paragraph break removed, emphasis added)

I’ll let the reader judge how likely the similarity ― not only of ideas, of course, but of the way in which they are presented and even of the words used, especially the passage quoted above from paragraph 17 and the italicized sentence from my post ― is to be coincidental.

Justices Brown and Rowe then move on to discussing the use of international materials. This discussion, though, is still relevant to a more general consideration of constitutional interpretation. It begin with an assertion that “[a]s a constitutional document that was ‘made in Canada’ … the Charter and its provisions are primarily interpreted with regards to Canadian law and history”. [20] International and foreign materials can “support or confirm an interpretation arrived at through the Big M Drug Mart approach”, but not “to define the scope of Charter rights”. [28] Different types of instruments should also be treated differently: those that are binding on Canada are entitled to a presumption that the Charter is consistent with them; others are not. The date on which the international instruments came into being matters too:

International instruments that pre‑date the Charter can clearly form part of the historical context of a Charter right and illuminate the way it was framed. Here, whether Canada is or is not a party to such instruments is less important … As for instruments that post‑date the Charter, … [i]t can readily be seen that an instrument that post‑dates the Charter and that does not bind Canada carries much less interpretive weight than one that binds Canada and/or contributed to the development of the Charter. [41-42]

Foreign judicial decisions, meanwhile, must be invoked with “[p]articular caution” [43] and subject to an explanation as to the “way they are instructive, how they are being used, or why the particular sources are being relied on”. [44]


I am happy to see such extensive debate of constitutional interpretation taking place at the Supreme Court, though like Justice Kasirer I am a bit mystified by the reasons why it took place in this case. As co-blogger Mark Mancini and I argued just recently, Canadian law will benefit from more and better conversations about constitutional interpretation. A discussion of the use of international and comparative materials is also welcome, though again I wonder if this was the case in which it had to happen.

At the same time, by way of a preview of my next post, I will say that the treatment of constitutional interpretation in this case is not altogether satisfactory. To be sure, the majority opinion is a step in the right direction, as the contrast with Justice Abella’s concurrence makes clear. Yet although a substantive improvement on the alternative, this opinion engages in some misdirection and perpetuates the confusion that all too often characterize discussions of constitutional interpretation in Canada.

Activism v Constitution

The federal court rightly holds that the judiciary cannot control Canada’s climate policy

In a number of jurisdictions, environmental activists have turned to the courts in an ostensible attempt to force the implementation of policies they deem necessary to deal with climate change. Some of these lawsuits have succeeded to great fanfare, others not. Such litigation challenges not only constantly evolving public policy, but also longstanding principles of separation of powers. In the Federal Court’s decision in La Rose v Canada, 2020 FC 1008, the activists lose ― and separation of powers wins.


The activists challenged Canada’s public policy in relation to greenhouse gas emissions, notably insofar as it does not set sufficiently ambitious emission reduction targets, failed to meet the targets that were set, generally allowed emissions to rise, and “support[ed] the development, expansion and operation of industries and activities involving fossil fuels”. [8] All this, they said, “unjustifiably infringed their rights (and the rights of all children and youth in Canada, present and future, due to an asserted public interest standing) under sections 7 and 15 of the Charter” and amounted to a breach of the government’s “public trust obligations with respect to identified public resources”. [7] They sought a variety of declarations and orders, including “an order requiring the [government] to develop and implement an enforceable climate recovery plan that is consistent with Canada’s fair share of the global carbon budget plan”, [12] and asked that the court retain jurisdiction to supervise the implementation of this order.

The government sought to have the activists’ statement of claim struck on the basis that their demands were not justiciable or had no reasonable prospects of success. Justice Manson agrees. After, concluding that Charter claims, even novel ones, can be disposed of in the context of a motion to strike (an issue addressed in the most recent episode of the Runnymede Radio podcast, in which co-blogger Mark Mancini interviewed Gerard Kennedy), he holds that the Charter claims are not justiciable, while the “public trust” claim, although justiciable, has no reasonable prospect of success.

With respect to justiciability, “[t]he question to be decided is whether the Court has the institutional capacity and legitimacy to adjudicate the matter. Or, more generally, is the issue one that is appropriate for a Court to decide.” [29] The novelty of a claim, by itself, is not relevant, and the fact that a claim has a policy dimension is not a bar to justiciability. However, “[t]o engage the Court’s adjudicative functions, the question must be one that can be resolved by the application of law”. [34] The general direction of policy is a matter for governments and legislatures; “[p]olicy choices must be translated into law or state action in order to be amenable to Charter review and otherwise justiciable”. [38]

Justice Manson finds that the challenge here is impermissibly aimed at a general policy choices, “an overly broad and unquantifiable number of actions and inactions” by the government. [40] Indeed, nothing less than “the entirety of Canada’s policy response to climate change” is targeted, with the result that “assessments of Charter infringement cannot be connected to specific laws or state action”, breaking with the normal purpose of judicial review. [43] In effect, the activists seek to put the court in charge of Canada’s climate change policy. This is not the courts’ role, “no matter how critical climate change is and will be”. [48]

Justice Manson also criticizes the remedies sought by the activists. Declarations alone would amount to ineffective statements about the meaning of the Charter, or pronouncements about the effectiveness of public policy more appropriate to a commission of inquiry than a court. Meanwhile, judicial supervision of public policy is not appropriate, and would not, in any case, in itself redress the alleged breach of the plaintiffs’ Charter rights.

While this is not dispositive, Justice Manson also suggests that the Charter arguments would have no reasonable chance of success even if they were justiciable. In the case of the section 7 claim, this is because no one law or even specific set of laws is said to be rights-infringing. That said, in an obiter to the obiter, Justice Manson muses about the possibility of a positive-rights claim succeeding in a future case. As for the section 15 claim, “[i]t is unclear what impugned law creates the claimed distinction, whether on its face or in its impact”. [79] 

As for the “public trust” claim, according to which the government has an obligation, sourced either in the common law or in unwritten constitutional principle, “to preserve and protect the integrity of inherently public resources so that the public is not deprived of the benefits they provide to all”, [81] Justice Manson finds that it is justiciable, but has no reasonable prospect of success. The “public trust” doctrine is not recognized in Canadian law; it is “extensive and without definable limit” [88]; nor can it be supported as a principle essential to the Canadian constitutional order. There is no point in allowing this claim to proceed to trial.


This is the right outcome. As Justice Manson points out, it simply isn’t the role of the courts to dictate policy in areas where choices must be made among a multitude of variables and any number of competing considerations are to be balanced. It is one one thing for the courts to say that public funds must be expended on a specific matter prioritized by the constitution. They have done so in Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 SCR 3 (which dealt with the construction of schools to which a linguistic minority was entitled under section 23 of the Charter) and Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31 (where the Supreme Court invalidated a regulation imposing “hearing fees” on litigants who sought to have their day in court, in contravention, the majority said, of s 96 of the Constitution Act, 1867). Even that wasn’t uncontroversial, though I think these outcomes are defensible. But it would be something else entirely for a court to improvise itself the arbiter of policy touching on a matter as all-encompassing as climate change. Perhaps there are shades of grey in this area, matters where it is not quite clear whether the issue is too complex for the courts to intervene, as some critiques of Trial Lawyers suggest. But this isn’t one of them.

What I wrote here after the Court of Appeal for Ontario struck a claim by a coalition of activists that Ontario’s and Canada’s housing policy violated sections 7 and 15 of the Charter in Tanudjaja v Canada (Attorney General), 2014 ONCA 852, 123 OR (3d) 161 (a case to which Justice Manson refers) remains relevant:

[T]here are good reasons for the courts to refuse to adjudicate, if not any and all social and economic rights claims, then at least … vast campaigns intended to reshape entire areas of government policy. There is the issue of competing priorities ― if not all claims on public support can be satisfied, which ones should be favoured? It’s not obvious, to say the least, that the answer to that question ought to be “those who got adjudicated first.” There is the issue of legitimacy of unelected judges having to order Parliament and legislatures to increase taxes. Charles I lost his head for trying to raise taxes without Parliamentary approval, and George III lost an empire for insisting that he had the right to tax without consent. It is, again, not obvious that judges would fare any better. There is the issue of federalism. … The federal government chooses to help the provinces discharge many of their constitutional responsibilities, and the provinces accept the money (and ask for more), but how a court could assign responsibilities between the two level of government ― something that takes sometimes difficult political negotiations ― is really beyond me.

There is, finally, the issue of the law’s inherent conservatism. If a court decides that social programme X is constitutionally required, then programme X cannot be got rid of even to be replaced by a more effective but differently organized programme. … At best, the government would have to turn to the courts and demonstrate  that its proposed programme would be enough to discharge its constitutional obligations. But it could not really demonstrate this ― it would have to speculate, and it’s not clear that a court ought to be convinced by such speculation. (Paragraph break added)

All these concerns weigh on the attempts to litigate climate change policy. At least some plausible measures to reduce greenhouse gas outputs are antithetical to the promotion of economic growth, and it a complex question, a matter of economics and morality, but certainly not law ― and hence not for the courts to decide ― how these priorities are to be balanced. Carbon taxes (or cap-and-trade systems that amount to indirect taxation) are a key policy tool aimed at reducing greenhouse gas emissions, and it is not the courts’ place to impose such taxes without an electoral mandate. Federalism is, if anything, even more of a concern here than it was in Tanudjaja, because provincial governments ― which have an important part of policy responsibility in relation to both the environment and to the economy ― were not even before the court. Finally, climate change policy must necessarily be adjusted to the evolution of both the available science and the existing technologies. (Climate policy in a world of cheap solar electricity or, perhaps, fusion power, probably looks quite different from that of today.) Freezing a particular policy response developed in, say, 2021 in constitutional law sounds like a profoundly bad idea, as well one that is inconsistent with the judicial role.

Just to be clear: I’m not saying that these policies are bad. (I’m also not saying that they’re good.) The point is that the courts neither can nor would be justified in passing on their wisdom or even necessity. As Justice Manson says, the function of judicial review of legislation is to assess specific laws or government decisions against the legal rules and standards set out in the constitution. The task of supervising ongoing policy choices that the plaintiffs here were expecting the Federal Court to undertake is radically different.


It is a relief, then, Justice Manson avoids the temptation to “do something” just because “something must be done”, and accepts that the resolution of an important social issue is outside the scope of his office. That’s not to say that courts should avoid resolving important social issues just because they are important social issues. But nor should they assume that they, and the constitution which they enforce, must have something to say on such matters.

As Dwight Newman has written in a related if slightly different context,

[w]hile climate change policy is an immensely important area for governments, that context does not change the Constitution. Some might wish that it did … But the very nature of a constitution is that it must endure across various policy challenges of the day and not be bent to particular policy choices.

And recall, of course, Lord Atkin’s admonition in the Labour Conventions Reference: “While the ship of state now sails on larger ventures and into foreign waters she still retains the water-tight compartments which are an essential part of her original structure.” (684) Professor Newman and Lord Atkin were both addressing the federal division of powers between the Dominion and the provinces, but their point is no less applicable to the separation of powers among the various branches of government ― here, between the Federal Court and Parliament. We probably do not think enough about separation of powers in Canada, and when we do we too often reduce it to judicial independence. But the separation between the judiciary and the “political branches” must be water-tight both ways. There are ways in which Parliament and the executive cannot interfere with the courts. But there are also ways in which the courts must not interfere with Parliament and the executive. This principle holds no less true in waters warmed up and troubled by climate change.