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.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

14 thoughts on “Still Keeping It Complicated”

  1. To put it in the jargon of new originalist theory,

    Justices Brown and Rowe accept the Constraint Thesis, but not the Fixation Thesis. Justice Abella rejects both. In the majority view, an apex court is normatively bound to respect the limits on its power imposed by the text. However, those limits are not set once and for all at the time of enactment.

    They probably are worried about things like overturning the Motor Vehicle Act Reference or going back to Macdonald’s centralist understanding of the division of powers.

    It is interesting to think about whether Justices Brown and Rowe have hit upon a coherent middle ground. On the one hand, how can the text-as-enacted constrain if it can change? Who is changing it other than the people supposedly constrained by it? (That isn’t just a rhetorical question: it might legitimately be true that we should view intentional changes by the apex court differently from changes that are beyond any human agency and would be difficult to reverse.)

    On the other hand, having thought through these issues, I think the problem with the Fixation thesis is that it posits a sharp difference between meaning and expected application that might be naive as a matter of how language works. As Quine showed, we are usually more willing to revise our conceptual understanding of what is covered by a word than our examples. We keep the word “fire” to refer to the same set of concrete events once we no longer believe in phlogiston. No theory of the Fourteenth Amendment could possibly be as certain as that it forbids segregation of schools based on race. On the other hand, sometimes we hold on to the concept at the expense of the example. There is no right answer to this in the development of natural language.

    1. I agree that “constraint but not fixation” is the best reading of what the majority seems to be saying. And yet… the distinction they draw when discussing international materials seems to suggest that, if not quite fixation, something important at the moment of ratification. Combine that with Stillman, where I would argue that something like a fixation thesis is implicitly accepted, and it’s not all that clear to me how strongly the SCC really rejects the fixation thesis.

      1. On the rejection of “textualism”, I think they just define it partially as a straw man that text can be interpreted completely acontextually and partially as the view that legislative history should never be referred to (which Scalia, for example, definitely thought). They seem to agree that text is primary in the sense that (a) some results of adjudication are excluded by the text, as it was enacted and (b) judges are not normatively permitted to choose those results, even if they had the all-things-considered best results. Abella, I think rejects, both those propositions, but would say that text is one thing that should be considered among others.

        You are right that the majority think there is something special about the moment of enactment/amendment, such that sources afterwards have lesser significance. But they seem to be more concerned with whether the international instrument has been ratified by Canada, which seems to me to be totally beside the point with respect to domestic constitutional law. If there is one thing that I would have thought was clear in Canadian constitutional law, it is that the federal executive cannot amend the constitution by entering into an international obligation. Not only the Labour Conventions case, but section 52(3) could not be clearer.

      2. I mostly agree, although perhaps one might argue that, when it comes to construction, a good faith implementation of constitutional purposes would, at least other things being equal, strive to be consistent with Canada’s international obligations.

      3. I agree that international law can be relevant to construction. Originalism, as such, doesn’t have much to say about that, or the extent to which actual international obligations should differ from unratified international instruments.

      1. Maybe we could use seventeenth century style and call it the “Case on Cruelty to Corporations”

  2. I have a theory of what it might mean to respect the Constraint Thesis without necessarily upholding the Fixation Thesis, which might appeal to you as a Hayekian.

    The Constraint Thesis derives from the principle that no one is allowed to amend the Constitution except in accordance with the amending formula. If that includes judges, then there must be a distinction between their legitimate activity as empowered by the Constitution (“construction”) and the limits on that activity imposed by the constitutional text (which we find through “interpreation”).

    If judges (or anyone else, other than those empowered to amend) *deliberately* change the meaning of the Constitution, then they are violating the Constraint Thesis. If the only way meaning can change is through deliberate action, then the Constraint Thesis depends on a Fixation Thesis. But if meaning changes due to unintended evolution, then there is no one who violates the Constraint Thesis when this happens.

  3. These posts are making me want to create my own blog to discuss these issues. I do not think using all this terminology is correct in the Canadian Context. It seems pointless. The “modern approach” is not mentioned once in your posts. That modern approach in fact incorporates intention originalism, but only as one aspect of interpretation.

    You still need to look at the context and purpose, of course as gathered from the text but also from the surrounding circumstances. That is the statutory law in Canada (see Section 12 of the federal Interpretation Act, and e.g., section 64(1) of Ontario’s Legislation Act).

    It also follows the “law always speaking” sections of the various interpretation acts in Canada, which should be read together with the above sections (see 2019 ONCA 1000, para 28. See e.g., section 10 of Interpretation Act; section 63 of Legislation Act).

    It also goes much deeper, to the roots of equity versus common law. I am not sure why you keep connecting it to “politics”. Show me proof of politics at play. According to sections 96(1) and 96(2) of the Courts of Justice Act in Ontario, with similar provisions elsewhere, as between law and equity, equity prevails. Although rarely invoked in courts, these sections correspond to the whole reason that equity came to be: the rigidity of the common law and “rules”. The maxims of equity, above all justice among parties, are always fundamental. They should always be fundamental. Rule of law cannot be separated from justice and fairness.

    Finally, Rules of Civil Procedure also correspond to a liberal construction (see e.g., Rules 1.04(1)), 2.01, 2.03 etc. of the Ontario Rules), where technicalities do not trump the real issues and justices of a case.

    Why cite American jurists? Have you analyzed Scalia’s decisions to see if he actually did what he said? How many times did he run over precedent to reach a goal? Why even a cite a court that is so openly political? Would you have any credibility citing that court and that system? Just because the U.S. is our neighbour does not mean we need to cite their jurists!

    See “The Myth of Originalism” by Randal N M Graham and many other articles on the issues with all types of originalism. That was discussed and settled in the early 2000s. originalism is nothing but a guise. I quote from that article:

    “The great irony of originalism is that, despite its core mythology of constraint, originalism grants judges more interpretive freedom than competing theories of statutory construction. Immunized from accountability for interpretive decisions, originalist judges are free – free to conceal the nature of the interpretive process, free to avoid discussing the subjective policy preferences that colour their decisions, and free to camouflage discretion in the rhetoric of constraint. Far from banishing the spectre of judicial creativity, originalists have given it a convenient place to hide.”

    1. Dan,

      Let me say a few things about the “modern” approach, and then onto originalism.

      First, there is absolutely nothing modern about it. Blackstone talked about text, context and purpose – and credited Pufendorf.

      On originalism, I think you have to pick your criticism. If originalism creates no constraint at all, then it cannot be harmful. If the law is just what the judges say it is and nothing can change that, then why worry? The problem with Scalia can’t be originalism, but just that Reagan won an election. Work on winning more elections.

      On the other hand, if you criticize judges like Scalia for not living up to their own principles – and you should, because he didn’t – then you have to acknowlege that the principles impose some kind of normative constraint.

      1. I agree with you for the most part, but I think that it is dangerous to talk of originalism as somehow superior, when the “modern” approach, no matter how ancient, already includes a form of it! I do not think how old the “modern” or let’s say Canadian approach is should make any difference in how well it works. I also think it dangerous to cite American jurists, including those who really use originalism as a guise.

        The best approach in my mind is that proposed by Professor Graham (teaching at Western University). We need, before we jump into the philosophical and practical differences between the living tree approach and originalism/textualism, to see what problem we are dealing with.

        If we are dealing with text that is truly vague, and not ambiguous, then a more liberal approach is warranted. Unfortunately, even the leading scholars in this area do not often distinguish between ambiguity and vagueness. I have gone through Sullivan on the Construction of Statutes, 6th ED, and she lumps them together. That causes further confusion. But this approach by Professor Graham, has in fact been endorsed by both the SCC and the Ontario CA (see 2019 SCC 47, para 70; and 2018 ONCA 555).

        The approach in Canada is in fact embedded in the entire system. The uniform guide for drafters of legislation includes the same interpretive shorthand, and vagueness is often purposeful, for example in the Charter. I think that judges in Canada also generally follow a more originalist approach for statutes anyways.

        But in any event, as Professor Graham opines, one should use a more originalist approach for problems of ambiguity, when we have an easily ascertainable number of specific interpretive choices. When we deal with vagueness and borderline cases, or compound problems, such as the one found in section 12 of the Charter, we need to resort to more than the “original” intention or meaning, whatever that means. Original intention/meaning can be far more easily twisted. Why? Because a judge like Scalia can simply say: don’t blame me, the drafters said so! The drafters are long gone. Who do we ask to check what they actually meant? The “modern” approach allows for more constraints as well as freedom in some cases, and if used correctly, would lead to correct or at least reasonable results most of the time.

  4. Dan, you are dead right about the common confusion between ambiguity and vagueness. Ambiguity is when there are two or more separate meanings for a word (“bank” as savings institution or as edge of a river), while vagunesss is a predicate with an uncertain extension (“bald”). Ambiguities are rarely a problem for competently-drafted laws, but vagueness if often intended. Add to that the even more common issue that legal rules are almost always defeasible (“Congress shall make no law abridging the freedom of speech” could never have meant it can’t prohibit someone from selling mining stock and making a false claim that the company had discovered gold).

    I guess where I disagree is in thinking Canadians have greater insight into these issues than Americans. Americans are ten times as numerous and at least twice as litigious, so it is not surprising that most of these issues have been worked out more deeply there.

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