In my comment on the Supreme Court’s recent decision in Frank v Canada (Attorney General), 2019 SCC 1, I criticized the dissenting judges’ demand that courts defer to Parliament’s choice to limit rights protected by the Canadian Charter of Rights and Freedoms. Section 1 of the Charter provides that it “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. This wording, I wrote, “requires a demonstration” that a given limitation of a protected right is justified, “not judicial acquiescence on the basis that Parliament knows best”.
My friend and sometime debating partner Geoff Sigalet put it to me in conversation that my interpretation is incorrect, and indeed pernicious. I am wrong, he believes, to think that judges must have the last word on what is and what is not “demonstrably justified”. Section 1, after all, doesn’t say “demonstrably justified to the satisfaction of a court”. Couldn’t a legislature pass its own judgment on these matters, a judgment that would be entitled to the respect of courts and of malcontents such as I? I am not persuaded. In my view, the constitutional text―not specifically section 1, but rather section 52 of the Constitution Act, 1982―does require that judges, not the legislature or the executive, have the last word on whether the Charter has been infringed, including the question of whether a limitation on a right is demonstrably justified.
Section 52(1) provides that “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”. Pursuant to section 52(2), the supreme constitution, inconsistency with which invalidates any other law, includes the Charter, the other parts of the Constitution Act, 1982―notably the amending formulae in Part V of that Act―and the Constitution Act 1867, which provides, among other things, for a distribution of legislative powers between the Dominion and the Provinces, as well as protections for judicial independence, free trade (nullified by the Supreme Court), etc. Note that section 52 makes no distinction between the Charter and other components of the Constitution of Canada. All are equally the supreme law of Canada. There is thus no textual warrant for treating the Charter differently from the rest of the constitution; if the courts have the last word on the meaning and application of the rest, they do so when it comes to the Charter too.
Now section 52(1) of the Constitution Act, 1982 is not, substantively, an innovation. As Brian Bird helpfully details, it is a replacement for section 2 of the imperial Colonial Laws Validity Act 1865, which provided for the supremacy of imperial legislation applicable to the colonies over that of the colonies to which such legislation applied. In particular, section 2 ensured the supremacy of what was originally an imperial statute, the British North America Act 1867, which we now call the Constitution Act, 1867, over any legislation enacted in Canada (except, of course, to the extent that the BNA Act itself authorized the Parliament of Canada or provincial legislatures to modify or depart from some of its provisions). Section 52(1) takes up the baton of constitutional supremacy, and ensures that it is now provided for by a Canadian law, subject to modification through the Canadian constitutional amendment process, rather than by an imperial statute whose very title is unsuitable to Canada’s circumstances as an independent nation.
As Mr. Bird further points out, the Supreme Court has recognized that section 52(1) preserved continuity in Canada’s constitutional arrangements. In the Reference re Manitoba Language Rights, [1985] 1 SCR 721, the Court emphasized that “[s]ection 52 of the Constitution Act, 1982 does not alter the principles which have provided the foundation for judicial review over the years”, (746) under the Colonial Laws Validity Act regime. Meanwhile, in R v Big M Drug Mart, [1985] 1 SCR 295, the Court held, again with reference to both the Colonial Laws Validity Act and to section 52, that accused persons could always demand that a court rule on the constitutionality of the statutes they are said to be infringing, “whether that challenge is with respect to ss. 91 and 92 of the Constitution Act, 1867 or with respect to the limits imposed on the legislatures by the Constitution Act, 1982“. (313) In short, the regime of constitutional supremacy that existed with respect to the then-British North America Acts prior to 1982 remains in force, following the patriation of the constitution and the enactment of section 52(1), for these texts and, on the same terms, for the Constitution Act, 1982.
I think these decisions are quite clearly correct. Textually, section 52(1) is an updated, but substantially identical, reincarnation of section 2 of the Colonial Laws Validity Act. It uses the words “inconsistent with” in place of “repugnant to”, and “of no force and effect” in the place of “absolutely void and inoperative”, but the underlying principle is the same: one set of laws (formerly, all imperial legislation “extending to” Canada; now, more narrowly, “the Constitution of Canada”) has a higher status than ordinary laws enacted in Canada, whether by Parliament or by the provincial legislatures. As a result, such ordinary laws are invalid insofar, although only insofar, as they contradict the higher law. If anything was to change on April 17, 1982, when section 52(1) succeeded the Colonial Laws Validity Act, such a momentous would surely have been flagged by clear language, something very different from what we find in section 52(1).
The only innovation in section 52(1) is the use of the phrase “supreme law” to characterize the Constitution of Canada. The supremacy of Westminster legislation is a given in the post-Glorious Revolution and pre-Statute of Westminster, 1931 system, so it is implicit in section 2 of the Colonial Laws Validity Act. Section 52(1) makes the supremacy of what is left of imperial legislation explicit. But the phrase “supreme law” (emphasis added) also suggests that, like any law, the Constitution of Canada is subject to interpretation and enforcement by the courts―not by legislatures. Granted, by 1982, the Supreme Court had conceded deference on the interpretation of some legal provisions to administrative adjudicators. But that concession was premised―wisely or not is beside the point here―on these adjudicators’ expertise, including legal expertise in their particular area of jurisdiction. I do not think that Parliament would have been understood to have such expertise.
In any case, whether or not the original public meaning of the phrase “supreme law” without further context requires judicial supremacy, the context removes whatever ambiguity the words alone might carry. There was no doubt that, under the Colonial Laws Validity Act regime, it was the courts’ power and duty to determine whether an enactment was “repugnant to” an imperial statute, and therefore “absolutely void and inoperative”. Even the “presumption of constitutionality” to which the courts occasionally referred was is, in principle, nothing more than the idea that legislatures would not intend to exceed their constitutional powers, and their enactments would therefore not lightly be read as doing so―provided that they admitted of a different reading. It was always the courts’ responsibility to verify that this was indeed the case. And, to repeat, there is no reason at all to suppose that this approach was intended or understood to change in 1982, and the courts have never said that it did change. Indeed, I do not think that those who argue for judicial deference in Charter cases seriously contend that section 52 calls for a deferential approach to federalism, or to the independence of the judiciary protected by Part VII of the Constitution Act, 1867, or to the amending formulae of Part V of the Constitution Act, 1982.
But, as I have argued above, there is no textual basis for treating treating the Charter differently from the other parts of the Constitution of Canada when it comes to deciding which institution is given the last word on its interpretation and on whether it has been complied with. The constitutional text, read in its historical and legal context, tells us that judicial supremacy is sauce for federalism’s, judicial independence’s, and constitutional amendment’s geese; it is also sauce for the Charter‘s gander. Needless to say, the text cannot tell us whether this is a good thing. I am inclined to think so; others disagree. It’s certainly possible that our constitution is flawed in this, as it is flawed in many other ways. But the constitution is what it is, good or bad. Those who wish that it were different ought to persuade enough of us to amend it to have it changed.
Double Aspect 
No doubt that section 1 requires that limits on rights be justified and that the courts must judge whether that has been accomplished. In addition to the pre-Charter history of judicial review, there is the history of the text of section 1 itself. The current version was revised from the original proposal to make the need for justification clear.
The question is though whether demonstrably justifying a course of action that limits a Charter right requires demonstrating that this is the only or best way to limit the right in light of the countervailing considerations or if it is enough to show that there are considerations on both sides and no purely rational way to say where the line should be. I think the case for deference to the democratic process comes from the realization that there are almost always constitutional values on both sides and the judgment calls of an electorate of 9 are just as arbitrary – but less subject to revision and less informed by diversity – as the judgment calls of the legislature.
You can try to avoid this by bringing some comprehensive theory of the role of the state – like classical liberalism or progressive identity politics – to bear, but those theories were not shared by the drafters of the Charter and they aren’t shared by the Canadians who support the abstract language of the Charter today.
I think this is a great piece. I am curious, how do you reconcile your position with the text of the preamble to the Constitution Act, 1867, which provides that Canada is to have “a Constitution similar in Principle to that of the United Kingdom.” In the United Kingdom, Parliament is the guardian of the Constitution. It seems to me that this is textual support that the Parliament of Canada should have a role in the final word on whether a law is or is not constitutional. Although, I have not yet decide what that role might be. It is inconceivable that a constitution similar in principle to that of the United Kingdom could relegate Parliament to a subsidiary role.
Thanks. My reading (which I think is quite orthodox) is that the “similar in principle” point is primarily a reference to responsible government and the conventions surrounding it. The Supreme Court has occasionally endeavoured to read other things into the preamble, especially judicial independence (see the Provincial Judges Remuneration Reference), but I don’t think that’s terribly persuasive.
The other take on it comes from AV Dicey: “Turn for a moment to the Canadian Dominion. The preamble to the British North America Act, 1867, asserts with diplomatic inaccuracy that the Provinces of the present Dominion have expressed their desire to be united into one Dominion ‘with a constitution similar in principle to that of the United Kingdom.’ If preambles were intended to express anything like the whole truth, for the word ‘Kingdom’ ought to have been substituted ‘States’: since it is clear that the Constitution of the Dominion is in its essential features modelled on that of the Union.”
Either way, the preamble is no reason to think unqualified Parliamentary sovereignty is part of the BNA Act 1867. It was an imperial statute and, as such, inevitably supreme over legislation enacted in Canada.