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.

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.

Let Us Reason Together

A call for dialogue on constitutional interpretation, free from anti-originalist myths

This post is co-written with Mark Mancini

The nomination of Amy Coney Barrett, an originalist scholar and appellate judge, to the US Supreme Court provoked a flare-up of interest in originalism from people who do not normally spend much time thinking about constitutional interpretation. That would be all to the good, if this engagement did not all too often rely on myths and misconceptions, some of them dating from the early days of modern originalism, others bearing little relationship with what any serious originalists in the US and Canada believe. (An entire Twitter account has now sprung up to collect some of these misconceptions.) In this post, we address a couple of myths about constitutional interpretation that underlie the memes, tweetstorms, and political zingers, and call on our readers to engage in more fruitful conversation about constitutional interpretation.

Myth 1: Originalism freezes the preferences and intentions of the founders in law

The overall view of originalism held or propagated by most of its lay critics and, alas, many professional ones, is that it is meant to keep it exactly as the framers of the constitution intended, obstinately refusing to recognize any changes in society that have occurred since the framing. Hence the much repeated claims that, for example, Justice Barrett couldn’t even be appointed to the Supreme Court since the framers of the US Constitution had not anticipated women judges. In the Canadian context, those who hold this view insist that a rewriting of the Constitution Act, 1867 by living constitutionalist judges was necessary to make women eligible to serve in the Senate, since the Fathers of Confederation did not mean for them to do so.

These claims are based on several misconceptions. One has to do with the nature of the originalist enterprise. Most originalists today recognize that it is both wrong and, in all likelihood, futile to seek to give effect to the intentions or expectations of the framers of a constitution. Wrong, because only that which is enacted through the relevant constitution-making process, can be binding. Intentions, hopes, and expectations are not. Futile, because―as the critics of early versions of originalism pointed out―constitutional texts are typically compromises reached by large and diverse groups of framers, who do not necessarily share intentions and expectations as to what their handiwork will achieve and how it will be applied in practice.

The task of the originalist constitutional interpreter is to focus on that on which the framers of the constitution agreed and which is binding law: the text. This is not to say that originalism is equivalent to “strict constructionism”. A good originalist knows that text is read in context, and some originalist theories, at least, even accommodate the idea of unwritten constitutional rules. A good originalist, like Justice Barrett, also knows that legal texts can be written at different levels of generality, and that they can employ standards as well as rules, and seeks to give effect to the language as written, neither narrowing it if broad nor expanding it if narrow.

This, incidentally, is another reason why an “expected applications” approach to interpretation is not good originalism. If the framers of the text used language that calls on its interpreters to engage in moral or practical reasoning, for example by prohibiting “cruel” punishments or “unreasonable” searches, the interpreters who would confine the text to what was regarded as cruel or unreasonable when it was enacted would disregard these instructions. To the extent that this is what the derisive label of “frozen rights” or “frozen concepts” interpretation refers to, the derision is justified. But, while in fairness to originalism’s doubters such criticism could be levelled at its early practitioners (including, sometimes, Justice Scalia), contemporary originalists know better than to make this mistake.

As a result, more often than not, originalism has no difficulty applying constitutional rules to changing and developing society. Broad constitutional language will encompass cases not anticipated by its framers. The so-called “Persons Case” is an example: it is probably true that the Fathers of Confederation would not have expected women to be appointed to the Senate, but they used language that, as Lord Sankey shows, naturally extended to women, and therefore did not need to be construed as barring their appointment. Another example from the United States: infrared technology, used to “search” homes from the outside, were clearly not in the contemplation of the framers. But Justice Scalia, originalist though he was, held in Kyllo that using it was indeed a search for the purposes of the 4th Amendment, which protects the privacy of the home from invasion by new means as well as old.

That said, originalists do not believe that constitutional language, even when broad, let alone when precise, is infinitely malleable. As Lord Sankey says in the Persons Case, had the framers of 1867 chosen to specify that Senators were required to be men, no legitimate interpretation could have bypassed or overturned this choice. Indeed, few, if any, living constitutionalists would disagree. This brings us to the next myth.

Myth 2: Originalists just don’t want the constitution to change

What if the Constitution Act, 1867 had specified that being male was a qualification for being a Senator? Originalists believe that such an unfortunate drafting choice of the constitution’s framers would have had to be undone by constitutional amendment, and welcomed such an amendment. Originalism is an approach to interpreting a text as it stands from time to time; it does not counsel against that text being amended when it is no longer in tune with the needs of society, provided that the amendment is carried out by means provided in the constitution, rather than by the courts. The claims, made by originalism’s American critics, that originalists would somehow disregard constitutional amendments that protect the rights of African Americans, women, and other groups are quite without foundation in any originalists’ actual commitments. They also ignore voluminous originalist research into the meaning of these amendments.

In Canada, any appeals to the possibility of constitutional amendment tend to be dismissed as fanciful. Our constitution is said to be impossible to amend. But this simply isn’t so. Indeed, given that Canada is a federation, it is difficult to imagine an amending formulate less restrictive than the “7/50” that the Constitution Act, 1982 makes the default. It is worth recalling that prior to 1982 convention required at least as much consensus, and possibly unanimity―and yet amendments to the Constitution Act, 1867 were made from time to time. This is not to deny, of course, that convincing our fellow-citizens and legislators that our favourite constitutional reform projects are worthwhile is difficult. But this is as it should be in a constitutional democracy, and no reason for seeking to implement these projects through judicial fiat.

A call to Dialogue

Now, originalism is not above criticism or beyond reproach. For example, we might usefully debate the feasibility of inquiries into the original public meaning of constitutional texts, the worry that a public meaning originalism that acknowledges the underdeterminacy of much constitutional language fails to usefully constrain judges, and the possibility that self-proclaimed originalist judges will only use their ostensible commitments as a smokescreen to hide their implementation of favoured policies. Originalism faces theoretical challenges, such as the issue of its relationship with the principle of stare decisis (to which Judge Barrett devoted much of her scholarship), and―especially in the Canadian context―the need to make sense of significant unwritten constitutional rules.

We would welcome engagement with these issues, so long as it took originalism as a serious theory and practice, rather than a self-evidently mistaken unCanadian aberration. For all the protestations of the Canadian legal academy (and, more rarely, of the courts) that originalism has no place in our jurisprudence, it is simply beyond doubt that something akin to originalism is often, although by no means always, an important factor in the Supreme Court’s decision-making. If the Court is wrong to reason in this way, the critics should explain why, instead of insisting, in the face of evidence to the contrary, that it doesn’t.

We would also welcome a clear articulation of the critics’ own interpretive commitments, which is curiously missing from Canadian (and, mostly, even American) scholarship. We are admonished that the Canadian constitution is a “living tree”, but seldom told what precisely this means. For example, when are the courts entitled or required to “evolve” constitutional meaning? On what should they base their decision to do so? Are there limits to their power? By what means does living constitutionalism protect against judges who are less enlightened than the framers of the constitution or who think that changed circumstances require restricting rights instead of expanding them? Without an explanation on these and some other matters, it is difficult to compare the plausibility of living constitutionalist and originalist theories, and assertions of the former’s superiority fall to be taken on faith, which is antithetical to serious scholarly or even political debate.

Such debate would be to our mutual advantage, originalists and living constitutionalists alike. After all, we are not merely trying to score rhetorical points or preserve our positions, whether in politics or in the academy, from competitors. We are trying to answer difficult but consequential questions about the way in which judicial power ought to be exercised and our fundamental laws are to be applied. If we are to have any chance of getting at the right answers to these questions, we need to make our best arguments and measure them against the best arguments of those who disagree with us. Come, let us reason together.

A Proclivity for Plunder

The left and the right are united in wanting to regulate the internet by taking from their enemies and giving to their friends

You might think that Steven Guilbeault, environmentalist activist turned Canadian Heritage minister, and Josh Hawley, a leader of the will-to-power faction of the American right, don’t have too much in common. But, as it happens, they do: both think that, when it comes to regulating social media, plunder is the right policy. Even by the standards of the times, their positions are unusually crude. But they have at least the merit of exposing a widespread misunderstanding of the permissible bounds of the activity of the state.

Mr. Guilbeault, as Michael Geist has noted on his blog, is promising to throw more money at the Canadian media and cultural sector and, in order to do so, to “go and get that money where that money is. Which is web giants.” The current idea, as Professor Geist explains in another post, appears to be to charge Google, Facebook, et al. for linking to news articles listed or shared on their platforms, but there may be other chicanery in the works, such as requirements that these companies, or some others, spend some amounts determined by government fiat on content deemed Canadian, or that they give such content a prominence they otherwise would not.

This brings me to Mr. Hawley who, as Christian Schneider explains at The Bulwark, is trying to induce regulatory retaliation against Twitter and Facebook for blocking or limiting the sharing of a dodgy New York Post article. This demand is only the latest in a series of claims by people who used to believe in free speech and free markets (Mr. Hawley’s Twitter biography describes him as “constitutional lawyer” first and husband, father, and senator after that) that social media companies must be made to carry their or their ideological allies’ communications, and punished in case they limit these communications’ reach or prominence.

As you can see, these plans agree in the essential principle that successful platforms must either be requisitioned directly or have their bank accounts raided for the benefit of favoured constituencies. Only the details ― namely, the identity of the beneficiaries ― differ. But then again, once the principle has been accepted, the details can and will change as the partisan make-up of governments shifts. It would be a mistake to focus on the latter rather than the former, though as Mr. Schneider notes, it is a mistake that is quite common on American right: “[t]his may come as a shock to Republican senators, but a freshly empowered Biden/Harris [administration] will not likely make content moderation determinations premised on what produces the largest font of liberal tears.”

The principle on which Messrs. Guilbeault and Hawley operate is plunder. They are not alone, of course: so do countless other politicians, not to mention people who vote for them. As Frédéric Bastiat wrote in his great essay “The Law“:

Man can live and satisfy his wants only by ceaseless labor; by the ceaseless application of his faculties to natural resources. This process is the origin of property. But it is also true that a man may live and satisfy his wants by seizing and consuming the products of the labor of others. This process is the origin of plunder.

Plunder by a single person or a small band is criminal. Plunder by a monarch and a dictator is illegitimate. But plunder under colour of law by a democratically elected government ― why, that is simply public policy:

Under the pretense of organization, regulation, protection, or encouragement, the law takes property from one person and gives it to another; the law takes the wealth of all and gives it to a few — whether farmers, manufacturers, ship owners, artists, or comedians. 

By the way, lest you think that the belief that this sort of policy immoral is some peculiarly French radicalism, here’s Justice Chase, speaking in much the same terms in Calder v Bull, 3 Dall (3 US) 386 (1798):

An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. … A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. (388)

And lest you think that this is just American radicalism, let me also quote to your Sir William Blackstone, who wrote in his Commentaries on the Laws of England that “the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature”, (124) and which “may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property”. (129) The protection of these rights is the proper object of the law, so that

the law, which restrains a man from doing mischief to his fellow-citizens, though it diminishes the natural, increases the civil liberty of mankind; but that every wanton and causeless restraint of the will of the subject, whether practised by a monarch, a nobility, or a popular assembly, is a degree of tyranny. (125-26)

Yet wanton tyranny and plunder is precisely what Messrs. Guilbeault and Hawley propose. Google, Facebook, Twitter, Netflix, and the others have laboured to create platforms and services that hundreds of millions of people want to use. Their creators started from very little ― the beauty of the internet is that barriers to entry are pretty low. But now, instead of imitating them and creating platforms and services of their own, others ― be they journalists whom too few people want to pay for the privilege of reading, artists whose work is of little interest to anyone, or conspiracy theorists ― demand to be given access to these platforms or to the revenue that they generate. And politicians are only too happy to oblige.

Why wouldn’t they be? They think it costs them nothing. They are wrong. As Bastiat points out, one odious consequence of the perversion of the law into an instrument of plunder is that, because people naturally tend to associate what is just with what is lawful, they come to think of plunder and oppression as just: “Slavery, restrictions, and monopoly find defenders not only among those who profit from them but also among those who suffer from them.”

The other danger of turning the law from protection of liberty and property to their destruction is perhaps the more dangerous because it is even more widespread:

As long as it is admitted that the law … may violate property instead of protecting it … Political questions will always be prejudicial, dominant, and all-absorbing. There will be fighting at the door of the Legislative Palace, and the struggle within will be no less furious.

This, and with increasing intensity, is what we are seeing. The stakes of politics are so high because it is admitted on all sides that the power of the winners is virtually untrammeled. The limits and restraints whose existence would in the past have been recognized, at least implicitly, such as the principle that a government shouldn’t simply raid the coffers of a particular company or handful of companies, let alone dictate what messages media ― social or otherwise ― should carry, are no longer recognized. On the one hand this is an escalation. On the other, nothing more than accepted principles being taken to their logical conclusion.

The prize of victory ― a permission to plunder ― is great. The threat of defeat is greater still. Because one expects to use power to engage in plunder oneself, one comes to expect one’s opponents to do likewise, at one’s expense. Losing an election means not simply that someone else gets to enjoy the honours of office, but that they get to despoil and silence you. Hence the desperation of the American right to hang on to power; but hence also the conviction of the Canadian left that it is entitled simply to take from those whom it does not like. These afflictions are not peculiar to countries or to parties. They proceed from the same source: the common conviction that there is no limit to political power, and in particular that plunder is part of the legitimate spoils of political office.

Now of course no one wants any of this to happen. Political schemers do not want moral decadence and civil war. But, they feel, they have no choice. If their preferred schemes do not get implemented, there will be no Canadian newspapers or no right-wing conspiracy theories on Twitter! They are convinced that if something is not done by force and the behest of a politician (preferably themselves), it will not be done at all.

And hence the state becomes the answer to all problems. Much of the right now believes this as fervently as does the left. As in Bastiat’s and in Hayek‘s time, this socialist mindset is spread across political parties. Yet as Bastiat wrote,

Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all.

We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all. We object to a state-enforced equality. Then they say that we are against equality. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain.

Messrs. Guilbeault and Hawley have no faith in the ability of their fellow-citizens to take care of themselves. Cede to the siren songs of libertarianism, they think, and the sky will fall. Let the other party take power, and it will fall just as surely, if a little slower. They want to save humanity with their projects. Alas, but their preferred means of doing so is plunder. For all their undoubted differences, their commitments to civilization are no more different than those of Alaric the Goth and Attila the Hun.

Again, the projects of Messrs. Guilbeault and Hawley are only an unusually start illustration of how much ― too much ― almost all ― of our politics is done. Very little of it is about establishing general rules that protect the rights of all equally. All that matters is ― as Lenin asked ― “who, whom?”. Who is going to plunder and silence whom? Who will be the winner and who the victim? For vae victis.

This is bad policy of course, but more importantly, dangerous and immoral. No person and no party, no matter the size of their majority, have the right to behave like this to their fellow human beings. As Bastiat said: “No legal plunder: This is the principle of justice, peace, order, stability, harmony, and logic. Until the day of my death, I shall proclaim this principle with all the force of my lungs (which alas! is all too inadequate).”

Missing the Forest for the Living Tree

What Lord Sankey actually meant with his living tree metaphor

It is often said that the only interpretive method sanctioned in Canadian constitutional law is one that recognizes , in a well known articulation in Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698, “that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life”. [22] The “living tree” metaphor comes from a decision of the Judicial Committee of the Privy Council in Edwards v Canada (Attorney General), [1930] AC 124, [1930] 1 DLR 98, better known as the “Persons Case” because it resolved the question of whether women could be “qualified persons” for the purposes of section 24 of the then-British North America Act, 1867, which governs appointments to the Senate.

As Benjamin Oliphant and I have shown, the conventional view that living constitutionalism is our law is mistaken: the Supreme Court in fact frequently, if unsystematically, resorts to other interpretive methods, and indeed the Same-Sex Marriage Reference itself is consistent with an originalist approach. Moreover, as we discuss at some length, and as I long-ago suggested here, and now-Justice Bradley Miller has demonstrated, the view that Edwards employed and requires what has come to be known as “living tree” interpretation is simply wrong. It cannot be sustained on a fair reading of the case, which turns on the deployment of orthodox statutory interpretation techniques.

But of course the people who invoke Edwards and the “living tree” metaphor aren’t making it up: the words really are there. But what exactly do they signify, if not that the meaning of the constitution changes over time? Here is my best reading: it is shorthand for the Canadian constitution as a whole ― the constitution considered, in J.A.G. Griffith’s phrase, as “just what happens” ― as opposed to the text of what we now call the Constitution Acts.

Recall that Lord Sankey’s judgment proceeds in two main sections: first he deals with what he refers to as “[t]he external evidence derived from extraneous circumstances”, (DLR 99) namely the suggestion that the reference to “persons” in section 24 was specifically a reference to male persons because it implicitly incorporated the common law rule excluding women from public office. This, Lord Sankey says, “is a relic of days more barbarous than ours”, (99) and he is generally unimpressed with the strength of this “external” evidence, which had swayed the majority of the Supreme Court of Canada.

Towards the end of that section of his judgment, Lord Sankey starts pivoting to the interpretation of section 24 itself. He notes that

No doubt in any code where women were expressly excluded from public office the problem would present no difficulty, but where instead of such exclusion those entitled to be summoned to or placed in public office are described under the word “person” different considerations arise.

The word is ambiguous and in its original meaning would undoubtedly embrace members of either sex. On the other hand, supposing in an Act of Parliament several centuries ago it had been enacted that any person should be entitled to be elected to a particular office it would have been understood that the word only referred to males, but the cause of this was not because the word “person” could not include females but because at Common Law a woman was incapable of serving a public office. (104-105)

The question is whether such implicit understandings are binding. Lord Sankey warns that “[c]ustoms are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared”. (105) He says, accordingly, that history ― in this case, the history of the exclusion of women from public office ― is not determinative. With this he turns to the examination of “the internal evidence derived from the [B.N.A.] Act itself”, (106) beginning not far from where he left off: with a warning that the Judicial Commitee “must take great care … not to interpret legislation meant to apply to one community by a rigid adherence to the customs and traditions of another”. (106)

And then, after a quick glance at the history of Confederation, Lord Sankey comes to the famous metaphor:

The B.N.A. Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada.

“Like all written constitutions it has been subject to development through usage and convention:” (Canadian Constitutional Studies, Sir Robert Borden, 1922, p. 55) .

Their Lordships do not conceive it ta be the duty of this Board—it is certainly not their desire—to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs. (DLR 106-107)

A couple of further general considerations follow. For one thing, Lord Sankey notes that, while it is true that a “large and liberal” interpretation is appropriate for a constitutional statute, “the question is not what may be supposed to have been intended, but what has been said”. (107) (This blog’s readers need go no further than yesterday’s post by co-blogger Mark Mancini for a re-articulation of this principle.) For another:

[T]heir Lordships [are not] deciding any question as to the rights of women but only a question as to their eligibility for a particular position. No one either male or female has a right to be summoned to the Senate. The real point at issue is whether the Governor-General has a right to summon women to the Senate.

And then Lord Sankey gets on with really deciding the case by deploying the whole arsenal of usual statutory interpretation techniques. In my earlier post on Edwards, I compared this to “Ravel’s Boléro, an almost-endless repetition of the same simple theme with different instruments”.

Putting all that together, it is clear that Lord Sankey’s judgment is, above all, textualist. He attaches little attention to early history or to intentions and expectations. (Justice Wakeling of the Alberta Court of Appeal, among others, should take note.) By the same token, he is not trying to re-write the text, or to give words new meanings they didn’t have at the time of their enactment. As he says, if the statute referred to men alone instead of using language that in its “original meaning” could encompass women, the case would be open and shut. To repeat, the “living tree” is absolutely not an invitation to update the constitution. But what is it?

To the extent the metaphor does work, it is to help warn against the temptation to “cut down the provisions of the Act by a narrow and technical construction”. Rather, Lord Sankey says, they must receive “a large and liberal interpretation” ― consistent, however, “not [with] what may be supposed to have been intended, but what has been said” ― to ensure freedom of action “within certain fixed limits” ― fixed, mind you! ― for governments, federal and provincial alike. In this sense, Edwards really is about the right of the Governor General, which is to say of the federal government of the day, to appoint women to the Senate. It is this freedom that must not be unnecessarily curtailed, or “cut down” as Lord Sankey says.

The actions of the government in the constitutional sphere ― “just what happens” ― are the living tree. This tree can grow as society changes, because the government will take actions, which will then develop into practices, and these in turn into “usage and conventions”, in response to social change. But this growth is constrained by constitutional text, whose meaning, while free of presuppositions long pre-dating its enactment, may not change.

It is unfortunate that people appeal to the authority of Lord Sankey’s judgment in Edwards without actually thinking about what that judgment says and does. Justice Rothstein admitted, in a lecture, that he’d never read it until retiring from the Supreme Court. I suspect he is not alone. Of course people who extol Lord Sankey also pay not heed to his overtly originalist opinion in the Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58:

Inasmuch as the [Constitution Act, 1867] embodies a compromise under which the original Provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a condition on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the provisions of ss. 91 and 92 should impose a new and different contract upon the federating bodies. (DLR, 65)

But the Aeronautics Reference is a niche interest, a hidden gem. Edwards, by contrast, is supposed to be the most iconic case in all of Canadian constitutional jurisprudence, a font of wisdom and a national symbol, a literal monument. And it truly is a great case, with a great judgment given by a great jurist. If only people would pay it the well-deserved compliment of reading understanding what makes its greatness by reading it closely from beginning to end instead of just taking a line out of the decision, they wouldn’t miss the forest for the living tree.

Just Asking

Should the power over criminal law be transferred to the provinces?

Let me ask you what might be a provocative question: is there a good reason why criminal law and criminal procedure should be a matter of federal jurisdiction in Canada? The initial choice of the Fathers of Confederation to make them matters for Parliament under section 91(27) of the Constitution Act, 1867 was justified and turned out well, I think. But the reasons that were relevant at Confederation, and for a century thereafter, no longer hold true. Should we amend the constitution to make criminal law a provincial power ― and, if so, on what conditions?

I should note that this post is just me thinking on the screen. I do not mean it as a definitive word on anything. I am not an expert on criminal law, and might be missing something important. By all means, tell me if, and why, you think I’m wrong (or more wrong than usual). Still, I thought these questions are worth thinking about.

So far as I can tell ― and I haven’t done any actual research on this, so I may just be spewing out preconceptions and received wisdom here ― criminal law and procedure being a federal power continues the basic divide established as early as the Quebec Act 1774. Private disputes would be “determined agreeably to the said Laws and Customs of Canada“. To preserve the ability of the French Canadian majority in Québec to control (most of) its private law, “property and civil rights” became subject to provincial jurisdiction at Confederation. By contrast, the Quebec Act maintained English criminal law in force:

whereas the Certainty and Lenity of the Criminal Law of England, and the Benefits and Advantages resulting from the Use of it, have been sensibly felt by the Inhabitants, from an Experience of more than nine Years, during which it has been uniformly administered; be it therefore further enacted by the Authority aforesaid, That the same shall continue to be administered, and shall be observed as Law in the Province of Quebec, as well in the Description and Quality of the Offence as in the Method of Prosecution and Trial.

The lenity of the Criminal Law of England was such that dozens if not hundreds of offences could lead to hanging, but that was still better than judicial torture, which had existed under ancien régime French law. Here again, Confederation ensured that the status quo would continue, by putting criminal law within Parliament’s jurisdiction ― in contrast to the situation that prevailed in the United States and that would prevail in Australia.

This was as well. I doubt there was any chance of French criminal law being brought back to Canada in the 19th century ― even maintaining the old civil law proved a frightful challenge, which was one of the reasons for the introduction of the Civil code of Lower Canada (as I explained here). But given the relative moderation of federal politics in comparison with what went on in some of the provinces, notably with the authoritarian regimes of the Social Credit in Alberta and the Union Nationale in Québec, federal control over criminal law has been a blessing. It was the reason, notably, for the invalidation of Québec’s ban on “communistic propaganda” in the notorious “Padlock Act” in Switzman v Elbling, [1957] SCR 285.

But something very important happened since then: the enactment of the Canadian Charter of Rights and Freedoms. Section 2 of the Charter protects Canadians across the country from dictatorial legislation such as the Padlock Act. Sections 7 to 14 of the Charter entrench substantive, formal, and procedural provisions historically associated with the “certainty and lenity of the criminal law of England”. Section 24 of the Charter and section 52(1) of the Constitution Act, 1982 provide remedies against governments and legislatures that disregard these rights. These judicial protections (subject to an obvious caveat, to which I will get shortly) are likely to be more effective than the structural devices employed at Confederation. After all, we know that Parliament keeps enacting, and the courts ― to the chagrin of “tough-on-crime” politicians and even some misguided judges ― keep invalidating absuvie criminal laws. As a result, it’s not obvious to me that the centuries-old reasons for making criminal law a federal matter are still valid.

Meanwhile, there are other considerations, some also longstanding but others less so, that support transferring this power to the provinces. The former category includes the principle of subsidiarity: the idea that power should be decentralized and exercised as closely to the citizen as it can be effectively exercised. It’s not clear to me why the provinces couldn’t competently and effectively legislate over criminal law and criminal procedure. As it is, they already legislate over provincial offences under section 92(15) of the Constitution Act, 1867. Since criminal law reflects moral considerations, it would make sense for Canadian provinces, with differing moral outlooks of their electorates, to be in charge of defining this law for themselves. Other usual benefits of decentralization, such as the possibility of provinces experimenting with different policies, within constitutional constraints, would also apply.

The more novel benefit of transferring the power over criminal law to the provinces would be to nip in the bud the tendency for Parliament to rely on the criminal law power to enact regulatory schemes that invade areas of provincial jurisdiction ― or, rather, since this tendency is already well-developed, to pluck off its increasingly putrid flower. Examples of this tendency, all upheld at least in part, include laws dealing with tobacco advertising, the registration of firearms, assisted human reproduction, and most recently genetic non-discrimination. (Shannon Hale blogged here on her and Dwight Newman’s critique of the Supreme Court’s lax approach to Parliament’s criminal law power in Reference re Genetic Non‑Discrimination Act, 2020 SCC 17.) Denying Parliament the power to make criminal law would not only allow us to reap the benefits of federalism in this area, but also to preserve them in others.

Now, I do think that some safeguards must be in place for this change to the distribution of powers to work well. One is already part of the Canadian constitution’s design. Others will need to be implemented as part of a package of amendments together with the transfer of jurisdiction over criminal law to the provinces.

The (mostly) existing safeguard the appointment of the judges of the superior courts, who preside at the most significant criminal trials, by the federal rather than the provincial governments. This has been an important barrier against the power of populist provincial governments. It will become an even better one if the federal government exercises its appointment power without being distracted by populist tough-on-crime considerations that caused it, for example, to introduce police officers into the selection committees that vet prospective judges. However, for this system to continue to work well, it will need to be coupled with an assurance that at least the more serious criminal cases will continue to come to the superior courts, either for trial or, at least, on appeal. Section 96 of the Constitution Act, 1867 may do this already, but I would prefer an explicit addition to section 11 of the Charter.

The other additional safeguards I would want to see include, first and foremost, the repeal of the Charter‘s “notwithstanding clause“, which allows Parliament and, more to the point, provincial legislatures, to suspend the effective protection of the rights entrenched in sections 2 and 7-15 of the Charter. At a minimum, the protections of the rights of the accused in sections 7-14 should be free from the threat of override; but it is highly desirable that the substantive protections of fundamental freedoms in section 2 should be so too. Section 15 is perhaps less relevant here, but there is no reason to maintain the “notwithstanding clause” for its sake. The reason for contemplating transferring the criminal law power to the provinces, despite the greater risk of populist takeovers, is that the Charter protects against its being abused. This protection must be effective at all times, and not at the provincial legislatures’ sufferance.

Lastly, some additional adjustments to the division of powers scheme will be necessary. For one thing, a federal equivalent of the current section 92(15) will be necessary to replace Parliament’s plenary criminal law power. Just like the provinces now, Parliament should be able to provide for penal enforcement of its legislation. Moreover, some measure of extra-territorial criminal power will need to remain with Parliament as well. There is of course some danger that even this limit grant of power will be abused. This is what has happened in the United States, despite Congress not having any explicit criminal law powers. The crimes created under the power to enacted laws “necessary and proper for carrying into execution” Congress’s other powers have become literally innumerable: when the American government tried to count all of the offences on its books, it failed. (Some are documented by a darkly humorous Twitter account.) However, the Canadian jurisprudence on the division of powers generally, and on ancillary powers in particular, is much more robust than its American counterparts, so one can reasonably hope that this American disaster can be avoided in Canada. For another, while the federal power over penitentiaries in section 91(28) will no longer make much sense, a more limited power to maintain a carceral system for those convicted of the remaining federal offences will be necessary.

Needless to say, there is very little chance of my proposals ― even assuming that they make sense which, to repeat, they may well not ― ever being taken up. Even apart from Canada’s general, and I’m inclined to think generally sound, aversion to constitutional tinkering, I just don’t see Parliament giving up such a high-profile legislative power that has, for politicians, the virtue that its exercise allows for relatively low-cost grandstanding and virtue-signalling. But who knows. And, if nothing else, I think we should from time to time ask ourselves whether the existing division of powers makes sense, if only to remind ourselves of the reasons why we have it and why, on the whole, it is a good and useful thing.

When the Surgeons Miss

Federalism and the Genetic Non-Discrimination Act Reference

Guest Post by Shannon Hale*

It is ironic that sometimes health-related cases pose the greatest risks to the health of the constitution when federalism goes under the knife.

Just over two months ago, the Supreme Court of Canada released its decision in Reference re Genetic Non-Discrimination Act (GNDA Reference). At issue was whether the federal government validly enacted parts of the Genetic Non-Discrimination Act (GNDA) that prohibit the forced testing and disclosure or unauthorized use of health-related genetic tests as a condition of providing goods and services or contracting (ss. 1 to 7).

The Court split three ways on this issue, with the majority, led by Karakatsanis J., ultimately deciding that the federal government had the legal authority to pass the law. The GNDA Reference provides much food for thought on division of powers analysis and federalism, especially since some of the conclusions drawn in that decision may undermine the ability of legislators and policymakers to make various policy choices with legal certainty.

Dwight Newman and I discuss the implications of the GNDA Reference in a forthcoming paper in Constitutional Forum. Our paper focuses on how the majority outcome achieves an arguably pragmatic and desirable policy result at the expense of established federalism jurisprudence, legal predictability, and effective intergovernmental cooperation.

I wanted to write about the GNDA Reference because of its far-reaching effects on federalism, in particular its impact on provincial autonomy to make policy choices that are responsive to regional diversity. As a former policy wonk, I admit that there are several situations in which it could be easier and more efficient for the federal government to legislate. Yet, the Canadian constitutional structure emerged from a political compromise and it is intentionally designed to mitigate against such centralization of power (Reference re Secession of Quebec at paras 55-60). An important policy goal or concerns about efficiency should not factor, or appear to factor, into the Court’s reasoning on whether the government in question validly passed a law. As we point out in our paper, the Court must be—and appear to be—above policy debates to maintain its institutional legitimacy.

The GNDA Reference also interests me because of the GNDA’s surprising origins and the even more surprising three-way split on the Court over the law’s characterization.

The GNDA was introduced as a private member’s bill in the Senate and it was voted into law despite opposition from Cabinet, including from the then federal Justice Minister who had thought the law was unconstitutional. Although the Court was aware of the GNDA’s unusual legislative history, that did not factor heavily into its analysis (see, for example, GNDA Reference at paras 18, 161). Nor should it. As Karakatsanis J. clarifies, the “sole issue before [the Court] is whether [the federal government] had the power to [enact the GNDA]” (at para 18).

Unfortunately, what seems to end up happening is that the merits of a particular policy—preventing genetic discrimination—distract Karakatsanis J. from the demands of the established legal tests in division of powers cases. As we explain in greater detail, Karakatsanis J. adopts a purpose-driven approach that more closely resembles the “pressing and substantial objective” step of the Oakes analysis in Charter jurisprudence than the focus on the law’s “true subject matter” in pith and substance analysis (see, for example, Reference re Firearms Act (Canada) at para 18).

Of equal concern is the three-way split on pith and substance. It is not uncommon for the Court to disagree on the law’s pith and substance. But if these disagreements become the norm rather than the exception there is a danger that the Court could create the perception that judicial preferences, not established legal principles, dictate the outcome in division of powers cases.

This perception grows when the Court strays from established legal tests to shoehorn the analysis to reach a result that also favours a particular policy outcome. The task before the Court is not to weigh the merits of particular policies; it is to determine whether the government in question has the legal authority to make laws about those policies.

Despite its good intentions, the majority outcome may actually make the situation on the ground worse for Canadians. Our paper examines how the majority outcome will create considerable confusion for provincial insurance schemes and could result in higher insurance premiums across the board. It is also interesting how the majority outcome prevents genetic discrimination in some insurance contexts but not in others, which seems to be at odds with Karakatsanis J.’s view that the pith and substance of the GNDA is to prevent genetic discrimination “in the areas of contracting and the provision of goods and services” (GNDA Reference at paras 63-65).

Another problem with the majority outcome is that it fails to rein in the federal criminal law power. That power can swallow up a lot of provincial jurisdiction, leaving provincial governments with little room to make policy choices about issues that matter most to its people.

Karakatsanis J.’s approach to “gaps” in the law is also troubling. There are many reasons why provincial governments may or may not legislate an issue. Sometimes the lack of a provincial law is the product of an intentional choice. If the federal government can pass a law because the provinces haven’t, in the future, provincial governments may rush to pass a law to secure its control over an issue.

While some may say a bad law is better than no law, a “use it or lose it” approach to lawmaking may not necessarily reflect good policy. Provincial governments should be free to pass laws on issues within their jurisdiction without fearing that the federal government will pass a law if they fail to act. As the saying goes, “hard cases make bad law”. And in this case the main casualty is federalism.

*Shannon Hale is a Research Associate at the University of Saskatchewan College of Law for the September-December 2020 term

Of Malice and Men

Double Aspect responds to attacks on another scholar

This post is co-written with Mark Mancini

Suppose you say something on Twitter that you wish you hadn’t said. No, actually―if you’re on Twitter―remember that time you said something you wish you hadn’t said? How would you hope that the rest of us would react? For our part, a sad bemused shrug and, perhaps, a friendly private word of reproof sound about right. Well, this is a post about doing unto others, etc.

When Emmett Macfarlane tweeted about “burning down” the US Congress to prevent a successor to the late Justice Ginsburg being confirmed before the presidential election, we cringed a bit. There is too much hyperbole out there, too much violent imagery, too much speaking as if the next election, or the next judicial appointment, is―literally―the end of the world. Twitter makes this phenomenon worse. As Justice Stratas of the Federal Court of Appeal noted in a recent talk, the Twitter world is like the Holodeck from Star Trek―a convincing pastiche of reality. Twitter, in many cases, magnifies our worst impulses.

There is too much of this nonsense on all sides. President Obama, who often modelled grace and calm when his political opponents and supporters alike lacked both, now suggests that questions such as “whether or not our economy is fair, our society is just, women are treated equally, our planet survives, and our democracy endures” turn on who replaces the late Justice Ginsburg. On US political right, the 2016 election was notoriously compared to Flight 93―the plane that crashed in a field in Pennsylvania on September 11, 2001 after the passengers stormed the cabin to prevent hijackers from turning it on their intended target. Similar arguments are being made again. The message is that even death―or at any rate a vote for an avowedly appalling man who would uphold none of the principles one claims to believe―is preferable to the other side taking power until the next election.

So, to repeat, we cringed at Professor Macfarlane’s “burn it down” tweet. And yet we knew full well―as does anyone with a brain and even a modicum of good faith―that it is only a hyperbolic, spur-of-the-moment outburst, not an actual call to arson and violence. Professor Macfarlane’s Twitter persona may be cantankerous, but he is a genuine scholar and a decent man. (Disclosure: one of us (Sirota) has contributed a chapter to a book project Professor Macfarlane edits. You can discount our arguments accordingly, but the diversity of views represented in that project speaks to Professor Macfarlane’s scholarly seriousness and open-mindedness.)

Sadly, there are people who do not operate in good faith at all. They affect to think, or at any rate they say, that Professor Macfarlane was actually threatening violence, and profess worry for the safety of his Trump-supporting students. This is arrant nonsense, a smear with no factual basis whatsoever. Professor Macfarlane’s opinions are neither new nor secret, and those who now betake themselves to the fainting couch haven’t paused for a second to inquire whether he has ever been so much as unfair, let alone threatening, to his students.

These people are as uninterested in truth as they are lacking in charity. They see a political opponent say something that can be―at least to those equally uncharitable―made to look like a threat or a sign of depravity, and pounce to virtue-signal on Twitter, to whip up their allies’ outrage, and thereby to increase their own standing with their in-group. They are hypocrites too, with their feigned outrage about hyperbolic rhetoric which is no worse than that in which they themselves engage. They deserve nothing but unreserved rejection.

A couple of weeks ago, another scholar, Dwight Newman, was disparaged by people who engaged in an uncharitable if not outright twisted reading of his work to impugn his integrity. That was an attack from the left on someone perceived to be on the right. We were proud to give Professor Newman an opportunity to refute their smears (and one of us (Sirota) added a further response of his own). Now Professor Macfarlane is being vilified by people who are trying to make him into an avatar of the unhinged left. Although both the targets of these attacks (an article in one case; a tweet in the other) and their perpetrators (fellow scholars, alas, in the former case; anti-intellectual populists in the latter) are different, they have much in common.

Both need to be defeated. As Justin Amash pointed out just yesterday, limited government―that is, a government that respects democracy and human rights―cannot exist without trust among citizens. To be sure, we need not pretend that our fellow-citizens, let alone our governments, are better and more trustworthy than they really are. But, if we want to continue living together in peace and freedom, we must not pretend that they are worse people than we know them to be for the sake of scoring some political points. To quote another American politician, we must go forward with malice toward none, and charity for all.