Unusual Indeed

The trouble with a caustic, pseudo-originalist opinion of Wakeling JA

In my last post, I described the decision of the Alberta Court of Appeal in R v Hills, 2020 ABCA 263, which upheld a mandatory minimum sentence for the offence of firing a gun into a place “knowing that or being reckless as to whether another person” is there. Two of the judges, Justices O’Ferrall and Wakeling delivered concurring opinions in which they called on the Supreme Court to reconsider its jurisprudence on mandatory minimum sentences and indeed on the interpretation of section 12 of the Canadian Charter of Rights and Freedoms, which protects against “any cruel and unusual treatment or punishment”, more broadly, notably R v Smith, [1987] 1 SCR 1045 and R v Nur, 2015 SCC 15, [2015] 1 SCR 773. I summarized the arguments made by both of the concurring judges in the last post.

Here, I consider specifically Justice Wakeling’s opinion. It is very unusual indeed, in both substance and form. It deploys unorthodox and, in my view, untenable, interpretive techniques, and arrives at startling conclusions. It is long, seemingly scholarly (though there is less real scholarship to it than meets the eye), and caustic. I don’t recall reading anything quite like it in Canada, though admittedly I do not read as many judgments as I would like, especially below the Supreme Court level.


Let me begin with Justice Wakeling’s approach to constitutional interpretation. Justice Wakeling does not explain what he is doing, which is unfortunate, because an explanation might have clarified matters ― not least to Justice Wakeling himself. Be that as it may, what Justice Wakeling seemingly does is resort to a sort of expected applications originalism. This is a way of describing attempts to interpret constitutional provisions by asking how their framers would have expected a question about their application to be resolved. This is a fool’s errand. Serious originalists have long given up on what Benjamin Oliphant and I have described as “speculative transgenerational mind reading”. (126) As Randy Barnett has written, “ascertaining ‘what the framers would have done’ is a counterfactual, not a factual or historical inquiry”. (71)

But Justice Wakeling’s version of expected applications originalism is particularly bad, because he refers to a great extent to events and real or purported beliefs that long predate the enactment of the Charter. Indeed his discussion of the Charter and the views, if any, of its framers is remarkably brief. Justice Wakeling points out that the late

Professor Hogg predicted in 1982 that Canadian courts would give section 12 of the Charter “the same interpretation” courts gave section 2(b) of the Canadian Bill of Rights. In other words, section 12 was of minimal value. Modern political realities made a constitutional death-penalty watch dog unnecessary. And that was the only role section 12 was intended to serve. [217; references omitted]

Most of what Justice Wakeling has to say about the meaning of section 12 goes back much further. The Bill of Rights 1688 is of special significance to him, as he argues that its

prohibition of cruel and unusual punishment was undoubtedly a response, either entirely or, at least partially, to the blood-thirsty sanctions Chief Justice Jeffrey and the other judges imposed on supporters of the 1685 Monmouth Rebellion that challenged the rule of the Catholic King James II during the Bloody Assizes of 1685 and the brutal flogging imposed on Titus Oates for his perjured testimony that cost a large number of Catholics their lives. [148]

From this, Justice Wakeling draws a straight line to the Eighth Amendment to the US Constitution, the Canadian Bill of Rights, and the section 12. He describes the US Supreme Court’s departure from the focus on “horrific penalties” akin to torture and its embrace of disproportionality as a touchstone for assessing violations of the Eighth Amendment in Weems v United States, 217 U.S. 349 (1910) as “judicial heresy”, and writes of the author of the majority opinion in that case that “Justice McKenna’s fingerprints are all over” Smith, [187] and thus subsequent section 12 jurisprudence.

This approach to the interpretation of section 12 makes no sense. Even on an originalist view, why should the meaning of the Charter be determined by what might have been the intentions or expectations not of its framers, but of those of the Bill of Rights 1688, the Eighth Amendment, or even the Canadian Bill of Rights? This isn’t expected applications originalism but expected applications pre-originalism. I know of no precedent or justification for it.

The better originalist approach is that which focuses on the public meaning of constitutional provisions. Historical antecedents are not irrelevant to establishing public meaning (and I have referred to the Magna Carta and the Bill of Rights 1688 myself in writing about section 12 here). However, they are useful in that they ― and their interpretation ― helps us ascertain how a contemporaneous reader would have understood the provision when it was enacted. That being so, the signicance of Weems and subsequent American jurisprudence is very different from that which Justice Wakeling attributes to them. Whether or not they were accurate interpretations of the Eighth Amendment’s original meaning is beside the point. What is noteworthy is that these interpretations would have been part of the context in which section 12 was enacted, and so colour the public meaning the phrase “cruel and unusual punishment” had by the time the Charter was adopted.

A related problem with Justice Wakeling’s approach to interpretation is his use of texts that use wording different from that of section 12 to suggest that the meaning of section must be different. This can be a very useful interpretive tool, but it has to be wielded carefully and honestly. Justice Wakeling relies on three comparisons: with early the constitutions of some American States; with a rejected draft of the Canadian Bill of Rights; and with section 9 of the New Zealand Bill of Rights Act 1990. All of these texts explicitly refer to proportionality, whereas section 12 does not.

Of these, the American texts are somewhat expansive policy statements, of a kind that was mostly ― except, notoriously, in the case of the Second Amendment ― rejected in (what became known as) the US Bill of Rights. The absence of such a statement from the Eighth Amendment doesn’t prove that it disproportionality is not part of its permissible construction. (Somewhat similarly, the absence of an explicit reference to separation of powers, analogous to that found in some State constitutions, in the US Constitution doesn’t mean it does not in fact provide for separate powers.)

With respect to the proposed wording of the Canadian Bill of Rights, Justice Wakeling says that “[a] number of commentators criticized its vagueness”. [201; reference omitted] The concerns of the only such commentator whom Justice Wakeling actually quotes are telling, for he worried, in part about whether a reference to “inhuman or degrading” punishment might be taken to outlaw flogging. Yet Justice Wakeling himself notes that the British “Parliament has repealed the brutal punishments that prompted the 1689 Parliamentary prohibition of cruel and unusual punishments” [153] ― including “flogging”! [154] That commentator’s concerns, in other words, do not deserve to be taken seriously, on Justice Wakeling’s own account. (The reference to flogging is interesting in another way, to which I will shorty turn.) And anyway the exclusion of words like “inhuman” because of their vagueness does not prove that the words retained did not have an element of vagueness calling for construction.

Lastly, the reference to the New Zealand Bill of Rights Act strikes me as quite inappropriate, since that statute was enacted eight years after the Charter. Some of its provisions sought to remedy avoid the Charter‘s real or perceived ambiguities; they tend to be more specific than the Charter‘s. (Compare, for example, New Zealand’s distinct provisions on “freedom of thought, conscience, and religion” and the “manifestation of religion and belief” with section 2(a) of the Charter.) In the case of section 9, one might suppose ― I have not looked into this ― that they New Zealand drafters thought that the outcome of Smith was justified and wrote it into the statute in so many words for the avoidance of doubt. But their choice to do so does not mean tell us anything about the meaning of the Charter, whose drafters were obviously not aware of the subsequent work of their Kiwi counterparts.

The last interpretive issue I will address here is Justice Wakeling’s reading of section 12 as a mere enumeration, and a remarkably brief one at that, of prohibited punishments. One striking consequence of this reading is that Justice Wakeling thinks that, because imprisonment was a commonly used punishment when the Charter was enacted and thus not unusual,

section 12 … does not allow a court to declare jail sentences cruel or unusual punishments. … [O]ffenders may not invoke section 12 to challenge either mandatory-minimum or mandatory-maximum jail sentences or any other jail sentence. [244]

(It is worth noting that Justice O’Ferrall “question[s]” [115] and indeed seems to reject this view.)

Justice Wakeling repeats a mistake committed by Justice Scalia, including in his comments on the Eighth Amendment in the famous lecture “Originalism: The Lesser Evil”. Justice Wakeling refers to some of Justice Scalia’s decisions seeking to limit the import of the Eighth Amendment to the 1791 catalogue of barbarity ― but not to that lecture where, tellingly, Justice Scalia professed being a “faint-hearted” originalist, because he wouldn’t bring himself to countenance the punishment of flogging even if was practised in 1791. The catalogue approach, it seems, doesn’t really work.

In a lecture of his own, “Scalia’s Infidelity: A Critique of Faint-Hearted Originalism“, Randy Barnett explains why. He points out that

original public meaning originalism attempts to identify the level of generality in which the Constitution is objectively expressed. Does the text ban particular punishments of which they were aware, or does it ban all cruel and unusual punishments? (23)

As Professor Barnett notes, “[t]his is not to say … the broader provisions of the text lack all historical meaning and are open to anything we may wish them to mean”. (23) But that meaning, if there is one, must be established with reference to the time of those provisions’ enactment ― not to a period that preceded it by two or three centuries. Justice Wakeling’s own reasons suggest that, whatever may have been the case in 1689 or even 1791, the phrase “cruel and unusual” may well have acquired a broad and morally loaded meaning by 1982. He does not even contemplate this possibility.


This leads me to concerns about the form and tone of Justice Wakeling’s opinion. It has an air of scholarliness: at over 12,000 words and 200 footnotes, it has the heft of an academic article. And yet this is only an appearance. It is inimical to good scholarship ― even, I would argue, in a judicial opinion, and not only in an academic setting ― to ignore counter-arguments and relevant sources that do not support one’s claims. Meanwhile, a great many of those footnotes turns out to cite to Justice Wakeling’s own opinions; a flaw of much academic writing, my own not excepted, but manifested here to an inordinate degree.

And then there is the bitter vehemence of Justice Wakeling’s writing. From the outset, he heaps scorn on the Supreme Court’s precedents, calling the “reasonable hypothetical” approach to section 12 they command “remarkable, to say the least”, [124] and claim that “[t]here is no constitutional doctrine that justifies this unusual method”. The decision in Smith is “surprising[]” [219] and “unexpected”. [220] “The contribution” that an argument made by Justice Lamer ― to whom Justice Wakeling denies the courtesy of a “as he then was” ― “makes to the debate is difficult to comprehend”. [226]

But Canadian courts and judges are not the only targets of Justice Wakeling’s contempt. I have already referred to his desription of Weems as “heresy”. If this were said about a fellow judge on Justice Wakeling’s court, this would be as mean as any of Justice Scalia’s cantankerous dissents. Still, such disagreements can appropriately be aired. But judges do not normally take it upon themselves to critique their colleagues in other jurisdictions. Not only is Justice Wakeling not qualified to pronounce on what it orthodox and what is heretical under American law ― it’s just not his job. Not content with commentary on the past, however, Justice Wakeling dabbles in political prognostication too, declaring that he

suspect[s] that the likelihood that additional states will abolish the death penalty is probably about the same as the likelihood that the Supreme Court – with a majority of conservative-minded justices – will sanction additional limits on the availability of the death penalty. [181; reference omitted]

To be clear, I have no objection to a judge expressing disagreement with the jurisprudence of a higher court. On the contrary, judicial criticism of binding authority ― so long as that authority is followed ― can be valuable; no less, and arguably more, than that of scholars and other commentators. If the lower courts are saying that a legal doctrine is not working well, the higher courts would do well to listen ― though they need not agree, and they should not agree in this case, as I argued in my last post. Justice O’Ferrall’s opinion strikes me as perfectly fine. But not so Justice Wakeling’s.

I have been tone-policed enough to be wary of engaging in such critiques myself. But Justice Wakeling is, after all, a judge ― and I think that judges can rightly be held to a standard of equanimity that should not be applied to academics, whose role it is to critique, and sometimes criticize, the exercise of the judicial power. I have also defended the use of strong language in judicial opinions. Still, there are lines not to be crossed. A judge ought not to be dismissive or petulant; nor should he engage in political commentary or, I think, make any sort of pronouncement on the merits of the laws (enacted or judicially articulated) of other countries. Justice Wakeling is and does all of these things. If he wants to act like a politically preoccupied professor, he should resign his judicial office.


I do not know how widespread the views expressed by Justices O’Ferrall and Wakeling are. Perhaps the Supreme Court will take heed and reconsider its jurisprudence in relation to section 12. In any case it will face other difficult questions about the interpretation of the Charter. Justice Wakeling’s opinion illustrates a number of things not to do in such cases. Courts should not look to the ways the authors of constitutional provisions, let alone the authors of their predecessors, expected these provisions to be applied. They should not be careless, let alone deliberately unfair, when they compare different texts. They should not convert moral language into laundry lists. And, of course, they should not be mean-spirited. Justice Wakeling’s opinion is unusual indeed, and I hope it stays that way.

Author: Leonid Sirota

Law nerd. I teach public law and legal philosophy at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

One thought on “Unusual Indeed”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s