Double Aspect

I return briefly to the Supreme Court’s recent decision in Taylor v Newfoundland and Labrador, 2026 SCC 5, which I summarized here and whose discussion of constitutional interpretation I criticized here. There is something about that discussion that I hadn’t noticed until now, and which bears mentioning because it is yet another instance of a very unfortunate trend that has been affecting the Supreme Court for years: departures from or indeed blatant contradictions of precedent, without any apparent acknowledgment, let alone explanation.

As I noted in my last post, a key move made by Justices Karakatsanis and Martin for the Taylor majority is their “insistence that constitutional and statutory interpretation are nothing alike”, which leads them “to abandon the text-first, constrained approach in which purpose plays a subordinate role … which has mostly prevailed in statutory cases in recent years”. They write:

 Charter interpretation is crucially different from statutory interpretation … The Charter entrenches protections for fundamental rights and freedoms in our Constitution. Unlike a statute that speaks to present rights and obligations — and that in comparison, can be easily enacted, amended, or repealed — the Charter “is drafted with an eye to the future”, and its purpose is to provide a “continuing framework for the legitimate exercise of governmental power and . . . for the unremitting protection of individual rights and liberties” … Like a “living tree”, it must be “capable of growth and expansion within its natural limits”. [70]

In my last post I have said something about why I do not find this persuasive, and I might have occasion to return to this in the future. For now, I want to say something not about the merits of the majority’s view, but about its inconsistency with the Supreme Court’s precedent.

All of eight years ago, in R v Comeau, 2018 SCC 15, had taken a radically different view of the relationship between statutory and constitutional interpretation. By way of reminder, Comeau was an appeal from a provincial court decision that had relied on historical evidence to disregard Supreme Court precedent on the interpretation of s 121 of the Constitution Act, 1867, which provides that “[a]ll Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall … be admitted free into each of the other Provinces”. The Supreme Court held that the provincial court had no right to do that, because historical evidence, unlike social science evidence, was not something extraneous to judicial interpretations of constitutional provisions, and further that, correctly interpreted, s 121 did not mean what the Provincial Court thought it meant.

In the reasons attributed to “the Court” (but which Peter McCormick, in a guest post here, argued were likely authored by then-Chief Justice McLachlin), statutory and constitutional interpretation are repeatedly equated. For instance, although the case is concerned only with the interpretation of s 121, a constitutional provision like any other, the Court writes that “a difference in opinion about the interpretation of a statutory provision does not evince a fundamental shift in the parameters of the debate”. [42; emphasis added] Even more strikingly, when it explains its own interpretation of s 121, the Court writes that “[t]he modern approach to statutory interpretation provides our guide for determining how ‘admitted free’” — the key phrase in s 121 — “should be interpreted”. [52]

The contrast with Taylor is clear. Far from there being a radical difference between statutory and constitutional interpretation, the Comeau judgment says that constitutional interpretation must be conducted in accordance with the same principles as the statutory sort! It is worth noting that there is considerable overlap between the authorities to which the contrasting passages of Comeau and Taylor refer. Notably, both purport to be drawing on Edwards v Attorney-General for Canada, [1930] AC 124 (PC), Hunter v Southam Inc, [1984] 2 SCR 145, and R v Big M Drug Mart Ltd, [1985] 1 SCR 295. Yet these authorities apparently justify opposite conclusions about the relationship between statutory and constitutional interpretation.

But the most remarkable thing is that in Taylor the majority does not even pause to consider Comeau and its inconsistency with Comeau‘s clear message. Justices Karakatsanis and Côté both signed onto the Comeau judgment. No matter. Oh, the majority does rely on Comeau — but only in its discussion of mootness. So far as constitutional interpretation is concerned, it is simply ignored. It is as if the central part of a case decided less than a decade ago, causing no end of controversy, had simply vanished from the Supreme Court reports.

Of course this is not the first time the Supreme Court has pulled this invisible rabbit out of its fool’s cap. I won’t retrace how this works in constitutional interpretation; that will be a topic for another day. But another issue on which I have documented this dynamic is the standard of review of administrative decisions that implicate the Canadian Charter of Rights and Freedoms, as well as vibes otherwise knowns as “Charter values”.

This long and sorry tale goes like this. In  Doré v Barreau du Québec, 2012 SCC 12, the Supreme Court unanimously said that administrative interpretations of “Charter values” were entitled to deference. This was followed in  Loyola High School v. Quebec (Attorney General), 2015 SCC 12. But in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 and Association of Justice Counsel v Canada (Attorney General), 2017 SCC 55, Doré was simply disregarded, with no explanation or even so much as a mention, leading me to wonder here whether “[w]ithout telling anyone, the Supreme Court might have killed off, or at least curtailed” that precedent. Hell no. In Law Society of British Columbia v Trinity Western University, 2018 SCC 32, Ktunaxa and Justice Counsel were forgotten, and Doré was again the binding precedent, over a forceful dissent by Justices Côté and Brown. Then came Vavilov v Canada (Citizenship and Immigration), 2019 SCC 65, where the issue of Doré’s continued viability was specifically reserved for future consideration — and then Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31, where Justice Côté, writing for a unanimous Supreme Court, insisted that it was never in doubt. That got me incensed enough to write that this opinion was

inconsistent with precedent, as well as with constitutional sense, and instead of explaining itself it affects to be self-evidently correct. It refuses to engage with well-reasoned critiques of the precedents it purports to apply, effectively telling the critics, whether academic or judicial, not to bother engaging with the Supreme Court’s pronouncements. After all, even a Supreme Court judge can flip-flop from being a vigorous critic of an idea to its enforcer and not bother giving an account of her change of heart.

And then, six months later, the Supreme Court delivered itself of York Region District School Board v Elementary Teachers’ Federation of Ontario, 2024 SCC 22, the Court took a very different approach again, abandoning the Doré deference at least in considerable part, without discussing Doré or so much as mentioning CSFTNO. It was, I wrote here, as if “the Supreme Court has decided to disappear this entire line of cases like a disgraced People’s Commissar from a Soviet photograph”.

As I have said in these cases, this is not how serious judges or serious lawyers behave. The Supreme Court is not engaged in working the law pure, in reasoning its way through inevitable complexity and inconsistency, in explaining how the authorities it is bound by bear on the novel problems before it. It does whatever it likes and says whatever it thinks might lend some momentary credence to its actions. Six months later, all will be forgotten, and some other rhetorical trick deployed in the service of a new conclusion. As I said in the post on York Region, the Court is fundamentally Marxist — Groucho, not Karl. Its “principles” and its pronouncements “are not worth giving a hoot about. If you don’t like them, they have others!”