When Dicey Smiles

The Supreme Court upholds immigration detainees’ right to habeas corpus

Earlier this month, the Supreme Court delivered its decision in Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29, which dealt with the availability of habeas corpus to control the constitutionality of a person’s continued detention by Canadian immigration authorities. More precisely the issue was whether the detention review scheme set up by the Immigration and Refugee Protection Act (IRPA) and regulations made under it was ” is as broad and advantageous ” [5] to the detainee than a habeas corpus application. By a 6-1 majority, the Court held that although the IRPA (concededly) provide an adequate review scheme for challenges based on immigration law issues, it did not do so for those aimed at the unconstitutionality of the “length, conditions and uncertain duration” of immigration detention.


Justice Karakatsanis writes for the majority (the Chief Justice and Justices Moldaver, Gascon, Côté, and Brown). She begins by pointing out that habeas corpus, an ancient common law recourse, has long been the law’s principal remedy for controlling the legality of a person’s detention. Despite its antiquity, “[h]abeas corpus continues to hold a vital and distinguished place in Canada’s modern legal landscape”. [20] Access to it is a constitutional right, and cannot be denied unless legislation has put in place a full alternative meeting the “as broad advantageous” test. The system of appeal in criminal cases is one example of such an alternative; the system of judicial review of the merits of immigration decisions leading to detention is another. Indeed, the Court had, in the past, made an obiter suggestion that review procedures under the IRPA replaced habeas corpus, but Justice Karakatsanis finds that they were “never intended to preclude habeas corpus review of every detention arising in the immigration context”. [31]

The question is whether the IRPA procedures are sufficient with respect to the particular type of claim raised by an applicant. In this case, the applicant “challenged the length, uncertain duration and conditions of his detention”. [57] The regulations made under the IRPA instruct the Immigration Division of the Immigration and Refugee Board, which is required to regularly review all immigration detentions, to take the length and expected duration of detention into account but, Justice Karakatsanis finds, they still fall short of providing a substitute habeas corpus review. For one thing, they place the onus on the detainee to justify release, rather than on the government to justify detention. Moreover, “[i]n practice, the periodic reviews mandated by the IRPA are susceptible to self-referential reasoning, instead of constituting a fresh and independent look at a detainee’s circumstances”. [62] Because judicial review in the Federal Court must focus on an individual decision on a periodic review, it may fail to address the previous decisions that form the basis of the one under review. Besides, it appears that judicial review never results in an order of release but, at most, in the matter being remitted to the Immigration Division for a re-determination. Finally, habeas corpus proceedings are likely to be much more prompt than a judicial review. Meanwhile, detention conditions are simply not among the grounds the Immigration Division is required to consider when deciding whether to continue detaining a person. This too is in contrast to habeas corpus review, where the court can look into all aspects of an ongoing detention.

Justice Abella dissents. In her view, the liberty interests of immigration detainees can and must be protected by a proper interpretation and application of the IRPA and its regulations. She is concerned that the majority’s decision will, in practice nullify the detention review scheme set up by the IRPA, as detainees turn to habeas corpus instead. “It is far more consistent with the purposes of the scheme”, Justice Abella insists, “to breathe the fullest possible remedial life into the” IRPA. [74] Jutice Abella emphasizes the obligation of administrative decision-makers under the IRPA “to exercise their discretion in accordance with the Charter“, [91] as well as the need to interpret the IRPA in way that maximizes constitutional protections. As a result, she rejects what she sees as the applicant’s “attempt[] to ignore the body explicitly and exclusively tasked with carrying out the purposes of IRPA by wrapping his immigration detention with a Charter ribbon”. [142]

Specifically, Justice Abella disagrees with the majority, as well as with a number of lower-court decisions on issues such as where the onus lies in proceedings before the Immigration Division, whether these proceedings can rely on prior decisions as the basis of the case for ongoing detention, and the possibility of review of detention conditions. She argues for “[i]mporting Charter principles into the exercise of administrative discretion under IRPA“, [129] which translates into “an obligation to weigh the purposes served by immigration detention against the detained individual’s … Charter rights”. [130] Conditions of detention, as well as its length, can be part of this analysis, by means of reading them into a consideration of “alternatives to detention”, which is required by the regulations. Provided that the administrative decision-makers act consistently with the relevant Charter values, the IRPA scheme will be as effective in securing liberty as habeas corpus review.


The majority is right. Adopting Justice Abella’s approach would have requires the courts to ignore the way in which the IRPA scheme has been applied by the administrative decision-makers, to expect these decision-makers to suddenly discover a commitment to the Charter of which they have so far shown little evidence, and to also to re-write the applicable regulations. Her approach rests, moreover, on the fiction that administrative decision-makers ― in this case, members of the Immigration Division, which she describes as “an independent, quasi-judicial administrative tribunal with specialized knowledge of immigration matters” ― are no different from superior court judges when it comes to upholding the constitution. Yet they are nothing more than civil servants, neither independent in any real way nor required to be legally qualified, and the conceit that they understand and can uphold the constitution as well as judges is nothing more than another instance of post-truth jurisprudence in Canadian administrative law. Of course, this is not true of the judges of the Federal Court, who may review the Immigration Division’s detention decisions, but since this review is supposed to be deferential, it is not clear how much protection it can really offer.

Despite Justice Abella’s protestations to the contrary, it is difficult to avoid the impression that, for her, the supposed integrity of an administrative scheme is more important than “assertive and rigorous scrutiny of the lawfulness of any deprivation of liberty”. [72] She seems more preoccupied by likelihood of detainees bypassing the Immigration Division than by the established practice of the Immigration Division failing to give effect to their constitutional rights. Justice Abella’s lack of attention to the evidence of actual practice discussed by the majority and cheerful insistence that everything can be made right by high-minded exhortation are of a piece with her majority opinion in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 SCR 909, which I discussed here, and they are no more justified now than they were then. As for Justice Abella’s suggestion that the applicable regulations can be effectively re-written in the name of upholding Charter values, it is certainly consistent with her professed rejection of the Rule of Law. But the “rule of justice”, which Justice Abella would like to see prevail, is unlikely to come about from the empowering of administrative decision-makers at the expense of independent courts.

Chhina nicely illustrates a point that this blog has taken up quite a few times. As I put it here,

there is much more to the administrative state economic than labour boards or arbitrators … People’s ability to enjoy their property or to practice their profession, their right to enter into or to remain in Canada, even their liberty … can depend on the way in which an official or a body exercising powers (purportedly) delegated by a legislature interpret the law.

Or, as co-blogger Mark Mancini wrote more recently, “in the 21st century, administrative agencies are armed with the most repressive powers of the state”. The administrative state is the state of prisons, of border control, of professional regulators determined to silence their members if not to impose official ideology on them. Justice Abella, in her naïve faith in the administrative state, is oblivious to its frequently oppressive reality.

Here is a question, by the way: what about Justice Karakatsanis? Nobody would have suspected her, I believe, of being a secret anti-administrativist. She joined Justice Abella’s Kanthasamy opinion, for instance and, more strikingly, was the author of the majority opinion in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, for whose insistence that administrative decision-makers are experts, no matter their real qualifications, I had originally come up with the “post-truth jurisprudence” label . But there is another tendency in Justice Karakatsanis’ opinions, notably her dissents in R v Fearon, 2014 SCC 77, [2014] 3 SCR 621 and R v Saeed, 2016 SCC 24, [2016] 1 SCR 518: a distrust of Supreme Court reminders to law enforcement about the importance of constitutional rights as means to secure these rights effectively. In Chhina, this distrust seems to have proved sufficiently strong to overcome Justice Karakatsanis’ normal faith in the administrative state.


Be that as it may, Justice Karakatsanis and a strong majority of the Supreme Court uphold the traditional remedy of habeas corpus, and of the independent courts as the dispensers of this remedy, as opposed to the second-rate ersatz purveyed by the administrative state. Justice Karakatsanis probably does not think of it in this way, but her decision also vindicates the thinking of that great bogeyman of progressive pro-administrativsts, A.V. Dicey. Contrasting the position of “countries possessing a constitution formed by a deliberate act of legislation” with that of the United Kingdom, Dicey wrote that in the former

you may say with truth that the rights of individuals to personal liberty flow from or are secured by the constitution. In England the right to individual liberty is part of the constitution, because it is secured by the decisions of the Courts, extended or confirmed as they are by the Habeas Corpus Acts. (117)

He emphasized the importance of “that inseparable connection between the means of enforcing a right and the right to be enforced” (118) ― well established, he argued, in the United Kingdom, but often neglected by “foreign constitutionalists”. For this reasons, although “[t]he Habeas Corpus Acts dedared no principle and define no rights … they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty”. (118) Such articles are only valuable if they are joined with “skill in providing means for giving legal security to the rights declared”. (118) Dicey would, I would like to think, be satisfied with the skill shown by the Supreme Court here.

NOTE: My friend Pierre Gemson (along with our fellow McGillian Ewa Krajewska) represented the Canadian Civil Liberties Association, which intervened in the case. Well done!

Concurring Opinion

Does the Charter’s “notwithstanding clause” exclude judicial review of legislation? Not quite!

Earlier this month, Grégoire Webber, Eric Mendelsohn, and Robert Leckey published an interesting challenge to what they termed “[t]he faulty received wisdom around the notwithstanding clause” over at Policy Options. Professor Webber, Mr. Mendelsohn, and Dean Leckey argue that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause”, by a legislature that enacts a statute does not fully insulate that statute against judicial review. Only the consequences of such review, not its availability, are affected. A court can still declare a statute protected by the “notwithstanding clause” to be contrary to the Charter ― albeit that the statute will continue to apply. This is an intriguing argument, and I think that it is correct.

Section 33(2) of the Charter provides that “[a]n Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.” Professor Webber, Mr. Mendelsohn, and Dean Leckey point out that “The word ‘override'”, often used to describe section 33, “appears nowhere and there is no mention of ‘judicial review’. Rather, the text of section 33 focuses on shielding a law’s ‘operation’.” It excludes the application section 52(1) of the Constitution Act, 1982, which would normally render a provision or statute inconsistent with the Charter “of not force or effect to the extent of the inconsistency”. But this does not prevent a court from declaring that an inconsistency exists in the first place.

I agree, and would add a further textual point. Section 33(1) authorizes the enactment of legislation that will “operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter”. One provision that is not subject to section 33 is section 24, the Charter‘s internal remedial provision. Pursuant to section 24(1),

[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Normally, if one’s rights are infringed by legislation, the “remedy that is appropriate and just in the circumstances” is a declaration of invalidity pursuant to section 52(1). The invocation of section 33 of the Charter changes “the circumstances”, however, so that ― for as long as it applies ― it is no longer constitutionally “appropriate” for a court to issue a remedy that affects the “operation” of the statute protected by the “notwithstanding clause”. But it would be wrong to make the leap from that incontrovertible truth to the much broader ― and textually unsupported ― proposition that no judicial remedy is “appropriate … in the circumstances” that include an operating “notwithstanding clause”. Rather, a court faced with a challenge to a statute protected by the “notwithstanding clause” must still strive to issue a “just” remedy within the constraints of section 33; that is to say, a remedy that addresses the violation of claimant’s rights (if any) without purporting to affect the operation of the statute.

As Professor Webber, Mr. Mendelsohn, and Dean Leckey suggest, a bare declaration of inconsistency, which does not purport to render the inconsistent statute “of no force or effect”, would seem to be a remedy that is (however minimally) just, and constitutionally appropriate in circumstances that include an operating “notwithstanding clause”. As they note, the New Zealand Supreme Court recently came to a similar conclusion in Attorney-General v Taylor, [2018] NZSC 104. In Taylor (about which I wrote here), the majority held that a declaration of inconsistency was an appropriate remedy that can serve to vindicate the rights affirmed by the New Zealand Bill of Rights Act 1990 within the constraints imposed by section 4 of that Act, which prevents the courts from invalidating or refusing to apply inconsistent legislation. Even when no particular consequence flows from the declaration, it is still of value to the claimant, and granting it is in keeping with the courts’ role of saying what the law is.

This point is particularly apposite in the Canadian context, since the Charter ― even when section 33 is invoked ― is part of what section 52 of the Constitution Act, 1982 describes as “the supreme law of Canada”. As Professor Webber, Mr. Mendelsohn, and Dean Leckey point out, the courts have always stressed their responsibility for setting out the meaning of this law (well, always except when they follow Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395). This is so even in cases where, for one reason or another, the courts consider that their remedial powers do not reach as far as their power to articulate the law. Professor Webber, Mr. Mendelsohn, and Dean Leckey mention Canada (Prime Minister) v Khadr, 2010 SCC 3, [2010] 1 SCR 44, which is one such case; Reference re Secession of Quebec, [1998] 2 SCR 217 is another well-known example. The Canadian constitutional framework, even more than the New Zealand’s, is different from the Australian one, where the High Court held, in Momcilovic v The Queen, [2011] HCA 34, that the making of bare declarations of inconsistency was not a judicial function or even incidental to a judicial function, and so not something that the courts could constitutionally be asked to do.

Another point worth taking away from Taylor is that declarations of inconsistency should not be regarded as addressed to the legislature. Rather, they are vehicles by which the courts point out that the legislature has abused its powers, and the courts are prevented to do more about that fact than simply acknowledge it. The courts should not be thinking in terms of a dialogue with the legislature; it doesn’t matter whether the legislature is of a mind to take the courts’ judgment seriously. Professor Webber, Mr. Mendelsohn, and Dean Leckey suggest that ,”[i]nformed by the reasoned, evidence-based judgment of an impartial, independent court, the government might amend its policy or decide to allow section 33’s protection to lapse”. I suspect that this is a too optimistic ― certainly the New Zealand Parliament appears to be in no mind to remedy the inconsistency with the Bill of Rights Act identified in Taylor (which concerned the disenfranchisement of prisoners serving short sentences). But this doesn’t matter. It is the courts’ duty to say what the law ― and a fortiori the supreme law ― is, Parliamentary indifference be damned.

Professor Webber, Mr. Mendelsohn, and Dean Leckey’s argument that the invocation of section 33 of the Charter does not exclude judicial review, but only limits the consequences that can result from such review is novel, but I think that it is correct. They are right that, by its terms and within its constitutional context, “[s]ection 33 secures a law’s operation; it does not open a Charter black hole”. Given the Canadian provinces’ newfound penchant for relying on section 33, which I fear is only the start of a sinister trend, we may well soon find out what the courts will make of their idea.

I Said Don’t Do It

The federal government is wrong to involve Québec in the process of appointing the next Supreme Court judge

In 2014, after the Supreme Court invalidated the appointment of Justice Nadon to one of its seats reserved for Québec judges or lawyers, the federal government got the Québec government to propose a shortlist of candidates for the vacant-again position. This process resulted in the appointment of Justice Gascon to the Supreme Court. The federal government meant the outsourcing of the shortlist to be a one-off; the Québec government was hoping that it would create a precedent. Québec’s wishes were ignored when the next appointment to one its seats (that of Justice Côté) was made.

But now Justice Gascon is now retiring ― sadly, much before his time ― and a version of the process that produced his appointment is being brought back. As the Canadian Press reports,

[t]he federal and Quebec governments have reached what the province is calling a historic deal that ensures it will play an active role in the process of selecting the next Supreme Court of Canada justice from Quebec.

An advisory committee similar to those used for previous appointments made by the current federal government submit will then

submit a shortlist of candidates to the federal and provincial justice ministers. … [T]he premier of Quebec will also provide an opinion and forward a recommendation to the prime minister, who will make the final decision weighing the recommendation of the federal justice minister and Quebec’s input.

The provincial government’s role is, if I understand correctly, not as important as in the 2014 process, since it doesn’t extend to unilaterally determining the Prime Minister’s range of choices. But it is still significant. The province seems delighted. The Canadian Press writes that the provincial justice minister “called the deal precedent-setting” ― yes, again ― “saying it would allow the province to take a ‘direct and significant part’ in the judicial appointment”.

The rest of us should not be happy. In fact, we should be rather angry. I criticized the 2014 process at some length here, and I believe that that criticism is still applicable, albeit in a slightly watered-down form, to the new process. It is common enough for members of the Canadian chattering classes to claim that the federal government’s power of appointing Supreme Court judges without taking provincial preferences into account is a defect in our federal system. But this view is mistaken. Here’s part what I said in 2014 (with references updates):

[H]ow much of a flaw is it really that the federal government appoints judges unilaterally? In practice, the Supreme Court’s recent blockbuster decisions ― the one concerning the eligibility of Justice Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433 and that in the Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704 ―, as well as Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837, which declared a proposed federal securities regulator unconstitutional belie any claim that the Supreme Court is biased in favour of the federal government.

And even at the level of theory, there is a good argument to be made for unilateral federal appointments. Canadian history has borne out James Madison’s famous argument in Federalist No. 10 that small polities are more vulnerable to “faction” and the tyranny of the majority than larger ones. Our federal governments have tended to be more moderate than provincial ones, and less susceptible to takeovers by ideological entrepreneurs from outside the Canadian mainstream, whether the Social Credit of Alberta or the separatists of Québec. Foreseeing this, the framers of the Constitution Act, 1867 gave the power of appointing judges of provincial superior courts to the federal rather than the provincial governments. It stands to reason that the judges of the Supreme Court, whose decisions have effect not only in one province, but throughout Canada, should a fortiori be appointed by the government more likely to be moderate and representative of the diversity of the views of the country ― that is to say, by the federal government.

Québec’s case is illustrative. The federal government presumably is comfortable with, or at least not very worried about, outsourcing the selection of potential Supreme Court judges to a relatively friendly, federalist government. Would it have felt the same way if the Parti Québécois ― not only separatist, but also committed to the infamous “Charter of Québec Values” (which the federal government had vowed to fight in court!) had won the recent provincial election? 

The latest developments sure give us some food for thought on this last question. The Parti Québécois, it is true, not only remains out of government, but is currently the fourth-largest party in Québec’s legislature. Yet its idea of purging the province’s public service of overtly religious persons ― especially if they are overtly religious in a non-Catholic way ― is alive, kicking, and in the process of being enacted into law, as Bill 21, by the Coalition Avenir Québec’s government. This is the same government, of course, that its federal counterpart wants to involve in the appointment of the judges who may yet be called upon to pronounce on Bill 21’s consistency with the constitution.

Back in the sunny days of 2015, when illusions about the current federal government being formed by the “Charter party” were still possible, the Prime Minister wrote the following to his Attorney-General:

[Y]our overarching goal will be to ensure our legislation meets the highest standards of equity, fairness and respect for the rule of law. I expect you to ensure that our initiatives respect the Constitution of Canada, court decisions, and are in keeping with our proudest legal traditions. You are expected to ensure that the rights of Canadians are protected, that our work demonstrates the greatest possible commitment to respecting the Charter of Rights and Freedoms, and that our government seeks to fulfill our policy goals with the least interference with the rights and privacy of Canadians as possible.

The “Mandate Letter” in which these wonderful commitments are set out is still on the Prime Minister’s website, although its original addressee was eventualy fired for acting like an actual Law Officer of the Crown and not a political weather-wane. But the same Prime Minister’s government is now going out of its way to hand over part of its constitutional responsibility for appointing the judges of Canada’s highest court to a provincial government bent not only on trampling on fundamental freedoms, but also on insulating its actions from review for compliance with the Charter. I should have thought that this is an odd way of respecting the Constitution of Canada, of ensuring that the rights of Canadians are protected, and of demonstrating the greatest possible commitment to respecting the Charter of Rights and Freedoms. But what do I know?

Well, I know this. Five years ago wrote that

[t]he power to appoint Supreme Court judges belongs to the federal government, and it alone, for good reason. … [T]he constitutional edifice built in 1867 (and 1875, when the Court was created, and then 1982 when it was, so it says, constitutionally entrenched) has weathered some great storms, and given us all shelter and comfort. It is in no danger of crumbling. Do not try to rebuild it.

Don’t do it. Just don’t.

Devaluing Section 33

What happens to “Charter values” when a statute invokes the “notwithstanding clause”―and what this might mean for Québec’s Bill 21

Here is a little puzzle I have thought of when reading an intriguing Policy Options post by Grégoire Webber, Eric Mendelsohn, and Robert Leckey. Their argument, in a nutshell, is that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause” by a legislature ― for example, by Québec’s legislature enacting
Bill 21, an anti-religious dress code ― does not prevent the courts from pronouncing the statute to which it applies contrary to the Charter. The “notwithstanding clause” does not insulate the statute from judicial review, but merely means that the statute continues to operate regardless of that review’s outcome. I am tentatively inclined to agree, and may have more to say on this soon. But for now, I want to raise a somewhat different issue.

If Bill said that public servants guilty of wearing religious symbols are to lose their jobs, or that overtly religious persons cannot be hired for the positions to which clause 6 applies, then that rule would be protected by the “notwithstanding clause”, and so would be its straightforward application. But in fact Bill 21 does not itself specify what happens if its prohibition, in clause 6, on “wearing religious symbols” is disregarded. Rather, clause 12 merely provides that “[i]t is incumbent on the person exercising the highest administrative authority” over those to whom that prohibition applies “to take the necessary measures to ensure compliance”. The taking of those necessary measures would presumably be an administrative decision, subject to judicial review. And this is where things get interesting, in the sordid way in which anything having to do with judicial review of administrative decisions is interesting.

In a sane system of judicial review of constitutionally suspect administrative decisions ― like the one set out in Slaight Communications v Davidson, [1989] 1 SCR 1038 ― a decision to discipline, and eventually to dismiss, a public servant for breaching the prohibition on wearing religious symbols would, I think, have to be valid, so long of course as Bill 21 is protected by the “notwithstanding clause”. Such a decision is impliedly authorized by the statute, so to challenge its constitutionality one would need to challenge the statute itself, and the “notwithstanding clause” means that, whatever other consequences that challenge may have, the statute continues to operate.

But we no longer have a sane system of judicial review of administrative decisions that raise Charter issues. (I should make clear that I have grave misgivings about Slaight‘s correctness on the merits; it is only its approach to judicial review that I approve of.) What we have, instead, is the approach first set out in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, under which the issue is not whether an administrative decision is authorized by a statute interpreted so as to comply with the Charter, but whether it gives as full an effect to “Charter values” in light of the statute’s objectives. How the “notwithstanding clause” fits into this scheme is not at clear.

The question is, does the application of the “notwithstanding clause” to a statute suspend the application of “Charter values” to decisions authorized by that statute? And the answer to that question is by no means obvious. Doré itself, of course, is silent on the matter, as are its successors Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 and Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293. So too is the text of section 33 of the Charter, which speaks of legislation “hav[ing] such operation as it would have but for the provision of th[e] Charter” (emphasis mine) in respect of which section 33 is invoked. The Charter says nothing about “values”.

Are these values the same as Charter rights, in which case they might be ousted along with the “provisions” muted by the invocation of the “notwithstanding clause”? The cases at least suggest otherwise. In particular, in Loyola, the majority spoke of “Charter protections” as a category encompassing “values and rights” [35; emphasis mine], suggesting that values and rights are different. It added that “Charter values [are] those values that underpin each right and give it meaning”. [36] And so, one might at least make a serious argument to the effect that the values remain intact regardless of the temporary inapplicability of the Charter‘s provisions (and rights), and that Doré‘s injunction that “administrative decisions are always required to consider fundamental values” [35; emphasis in the original] remains in full force, notwithstanding the “notwithstanding clause”.

The reluctance of the framers of Bill 21 to spell out, in the legislation itself, the unpalatable consequences they presumably intend, combined with the perverseness of the administrative law doctrines endorsed by the Supreme Court, may thus result in the nullification of one of the bill’s most significant features ― its attempt to exclude judicial scrutiny. I hope that no one doubts my distaste for Bill 21. I have denounced its illiberalism here, arguing that Quebeckers ― and the rest of us ― need to stop fearing “the way in which others might use their liberty if we do not preemptively coerce them”. And I have myself defended what some might think of as a workaround designed to challenge the constitutionality of Bill 21 despite its invocation of the “notwithstanding clause”. And, more broadly, I have long argued that the “notwithstanding clause” would be best left untouched. But I cannot say I find the idea of relying on “Charter values” to subvert the invocation of the “notwithstanding clause”, even one as distasteful as Bill 21’s, especially satisfactory either. The whole concept of “Charter values” is a figment of the judicial imagination, and it usually serves, no matter the protestations of the TWU majority, to water down constitutional rights and to subvert the authority of the supreme law more broadly.

One should note, also, that even if the argument that Charter values continue to apply despite the “notwithstanding clause” is successful, there would remain the issue of weighing these values against statutory objectives. I will not say much about this here, beyond observing that there is glaring conflict between the ostensible aims of Bill 21 as a whole, stated in its clause 4, which are “(1) the separation of State and religions; (2) the religious neutrality of the State; (3) the equality of all citizens; and (4) freedom of conscience and freedom of religion”, and its real aims, and in particular, the aim of the ban of wearing religious symbols. I am not sure how a court would deal with this, but here again the reluctance of the framers of of Bill 21 to forthrightly admit that they are trying to simply purge Québec’s officialdom of overtly religious individuals may well open a space for judicial subversion.

It may yet be, then, that the story of Bill 21 will turn out to have something that will look, from the standpoint of the protection of individual rights, more or less like a happy ending. But we should not let ourselves be deceived. Two wrongs do not make a right. One can hardly make up for the Québec legislature’s unwillingness to be bound by constitutional law by exploiting similar unwillingness on the part of the Supreme Court. And maybe, just maybe, the court would in fact recoil before the prospect of following the implications of the Doré line of cases all the way to the nullification of section 33 of the Charter. Who knows ― they might even seize the opportunity for getting rid of Doré and restoring some sanity to the Canadian law of judicial review.

To be honest, I’m not sure which outcome is more desirable. On the one hand, I want to see Bill 21 undone. On the other, although the Québec legislature would have no cause for complaint if it is tripped up by its own cowardice, those of us who care about the Rule of Law could not happy by its further subversion, even if we like the immediate results. But then again, I have the luxury of worrying about the Rule of Law from a distance. Those personally affected by Bill 21 may feel differently about this.

No Way to Make Law

The legislative process is being disgracefully abused in Ontario. Constitutional lawyers need to pay attention.

I wanted to write a post about those anti-carbon tax stickers the Ontario government wants to require gas stations to post. I will, eventually, get around to writing that post, I hope. Spoiler alert: I don’t like the idea of the Ontario government telling people what to say. Anyway, before I get around to a post detailing my objections to the substance of this policy, I need to write this one, which is about process by which the anti-carbon tax sticker requirement is being made into law. This process is disgusting, and I think we (by which I mean Canadian lawyers, especially Canadian lawyers interested in the constitution, and other members of the public interested in law and governance) need to be much more upset about it than I think we are.

The anti-carbon tax sticker requirement is set out in sub-clause 2(1) of the Federal Carbon Tax Transparency Act, 2019, Schedule 23 to Bill 100, Protecting What Matters Most Act (Budget Measures), 2019. Yes gentle reader, Schedule 23. Schedule 23 out of 61, that is. A great many things matter in the province of Ontario, one must surmise, and need protecting. The “Explanatory Note”, which provides anyone who can be bothered to read it an overview of the 61 statutes being amended or introduced by Bill 100, alone runs to more than 9000 words, or 13 dense pages of small print. And this is not because it is unduly detailed; on the contrary, in some cases, it contents itself with setting out “some highlights” of the amendments or new legislation being implemented. The actual legislation runs to about 81,000 words ― the length of a PhD dissertation. I think it is a safe bet that no one will ever bother reading that.

Among the threescore statutes concerned, a solid majority have little to do with the budget, as one would, I think, understand this word. There is the Bees Act, for instance, amended “to expand the method of delivering inspectors’ orders” made pursuant to some of its provisions; there is a new Combative Sports Act, 2019, which regulates ― so far as I can tell from its (perhaps inevitably, though I’m not sure) convoluted definitions provisions ― boxing, wrestling, and the like; there is the Courts of Justice Act, amended in relation to the publication of the Ontario Judicial Council’s reports and also to limit some civil jury trial rights; there is new legislation on Crown liability (which has received some harsh criticism); there are important changes to the Juries Act (which have actually come in for some praise); there is, of course, the gas station sticker legislation; and much, much, more, right up to some not doubt vitally important amendments to the Vital Statistics Act.

There is, so far as I can tell, no reason having anything to do with good government why these statutes need to be amended or enacted as a block, as part of a package of budget matters. Stephen Harper once had his “five priorities”, and though these were inevitably much derided, one could claim with a modicum of plausibility that a new government might focus on, say, those five things. Anyone who actually thinks that “combative sports”, carbon tax stickers, vital statistics, and 58 other things are all “what matters most” would be well advised to run, not walk, to the nearest psychiatrist’s office. (I say so without worrying for Ontario psychiatrists; they are unlikely to be burdened with many such visitors.) But of course, the reasons enact this legislative blob likely have nothing to do with good governance.

And this is where it’s time to drop the snark, and get serious ― and constitutional. In abstract separation of powers theory, the legislature is supposed to make law (except in those areas where it has delegated this power to the government, or left it to the courts; these are, of course, significant exceptions). In all the constitutional practice of all Westminster-type systems, so far as I know, the government dominates the legislative agenda. It mostly decides which statutes get in enacted and when. Still, the legislature has a distinctive role to play. For one thing, it is where legislation is debated, and debate might have some symbolic democratic value even if votes are ultimately whipped and their outcome is not in question. And for another, the process of committee study is what allows a detailed consideration of the proposed legislation, and also public submissions on it, and perhaps amendments to improve the proposal.

A government that cared about good governance would value this process. It might ultimately force its bills through, but it would at least be open to the idea that they might be improved, at the level of detail if not of principle, by input from backbenchers, members of the opposition, and members of the civil society. By contrast, a government that doesn’t care about good governance, and is only interested in getting its way as expeditiously as possible will see the legislative process, even one whose outcomes it is ultimately able to control, as a nuisance or, at best, as a needless formality. In either case, it will endeavour to deny the legislature the ability to play any other role than that of an extension of the government itself.

A government of the latter sort has a variety of means at its disposal. The amalgamation of multiple unrelated bills in a giant package, which drastically limits, perhaps to nothing, the extent to which each of them can be separately debated and studied is one of these means. Both Mr. Harper’s government and Justin Trudeau’s have been criticized for using and abusing this technique. Bill 100 is not exactly new in embodying it. But it should not be regarded as any less shocking despite this. By amalgamating 61 mostly disparate pieces of legislation, it prevents the legislature from properly considering them ― including those among them, like the Crown Liability and Proceedings Act, 2019 for example, that will become really substantial and very important statutes in their own right, as well as those, like the carbon tax sticker legislation, that have obvious, and ominous, implications for constitutional rights and freedoms. Bill 100 thus demonstrates nothing short of contempt for both good governance and the distinct constitutional role of the legislature. It is, as I have already said, disgusting and outrageous.

We have become inured to violations of what is sometimes described as legislative due process. As lawyers, we tend inevitably to focus our attention and energy where our expertise can make an obvious difference, in coming up with and then pursuing through the courts arguments about why the legislative end-product might be unconstitutional and therefore not law at all. I think this is understandable, inevitable to some extent, and perhaps even not always a bad thing. Still, by not thinking about the way laws are made, we let those who make them get away with the procedural equivalent of bloody murder.

This cannot go on. Those who take a benign view of legislatures and want to celebrate legislative engagement with constitutional issues need to get to grips with the reality of broken legislatures that act as rubber-stamps for executives that despise them. Those who, like me, are wary of legislatures and insist on the courts having a robust role in enforcing constitutional rights and other restrictions against them must nevertheless pay attention to what the legislatures are up to ― all the more so since we are more likely than our friends to take an appropriately skeptical view of the matter. But skepticism may not become indifference. We, along with the legislatures’ fans, with whom we can make peace for this purpose, need to get serious about making sure that our laws are made in a decent way ― and not in the way Ontario is making its laws right now.

Deregulate All the Lawyers

Why deregulation is the solution to the conflict around the “Statement of Principles” (in addition to being good for access to justice)

There was, we can now confidently say, a great deal of rancour in the Ontario legal profession about the Law Society’s attempt to force its members to abide by a “Statement of Principles” acknowledging a non-existent “obligation to promote equality, diversity and inclusion”. This rancour having let to the election last month of slate of benchers pledged to repeal the “Statement of Principles” requirement, there is now a great deal of rancour among the legal profession’s social justice warrior faction. The #BencherElection2019 hashtag on Twitter leads one to a collection of laments about the past, present, and future of the legal profession. Of course, the election result suggests that the wailing chorus represents only a limited section of the profession, but it is certainly not a negligible one.

Being a vocal opponent of the “Statement of Principles” requirement, I was, of course, delighted by the election’s outcome. But I too am not especially optimistic about the future of the legal profession as it is currently constituted. I don’t know whether the StopSOP momentum can be kept up in 2023, and in 2027, and in 2031… Perhaps the social justice brigades will have moved on, and the whole thing will no longer be an issue. But I would not bet on it just yet. It’s certainly not inconceivable that a People’s Front of Ontario Lawyers, or an Ontario Lawyers’ People’s Front, will come to run the Law Society at some point. And judging by their role models, when they do so, they will not be taking prisoners.

Fortunately, there is a way to avoid this outcome and, more broadly, the transformation of Law Society elections into a battleground of total culture war, in which liberty is supposedly pitted against equality, and the losers, whoever they may be, fear for the integrity of their souls. It is deregulation. The deregulation of the legal profession is a very good idea on other grounds too, notably for the sake of access to justice, as Ian Mulgrew recently pointed out in the Vancouver Sun. (One particular sub-genre of the post-Bencher election lament consistent of the supporters of the “Statement of Principles” saying that lawyers should worry about access to justice instead of opposing the Law Society’s impositions. I think this is a false dichotomy, but I hope that those who are concerned about access to justice, whatever they might think about the “Statement of Principles”, will join my appeal for deregulation!) There is no reason, really, why the law needs to operate like a medieval guild. But this is not a new idea; just one that needs to be constantly repeated. The possibility of using deregulation as a tension-defusing mechanism is more novel. Still, the case is a rather obvious one.

The reason why the “Statement of Principles” provoked such fierce resistance is that those of us who refuse to submit to state-sponsored imposition of a mandatory ideology were put before a stark choice: trample, in Vladimir Mayakovsky’s words, on the throat of our own song, or lose the right to practice law. The reason why the proponents of the “Statement of Principles” are so aghast at its opponents’ electoral success is that they think it speaks so very poorly of a profession ― and a guild ― to which they too belong, and about which they care (however misguidedly they might do so, by my lights). We are, apparently, stuck together ― at least until the Ontario Lawyers’ People’s Front, or the People’s Front of Ontario Lawyers, can liberate the profession from dastardly dissidents. And we are bound to make each other miserable.

But not if the legal profession were deregulated. There is more than one way of doing this. Ideally, the restrictions on who can provide legal services, and even the lawyer licensing process, would be scrapped. (It would make sense, of course, to continue requiring anyone providing such services to carry insurance appropriate to the nature of the service the person is providing.) But as a second-best alternative, what needs to go is the monopoly of the existing Law Society of Ontario. Let any group of lawyers, subject perhaps to a moderate minimum membership requirement, start up its own law society, with its own licensing process, and its own membership rules. If Lawyers for Social Justice want to require their members to have a statement of principles abjuring whiteness in the name of the gestational parent, the daughter, and the holy ghost, amen to that. If the Cult of Hayek wants to demand a statement of principles demonstrating personal valuing of free markets and the Rule of Law, amen to that too. And if Lawyers for Mere Professional Competence don’t want to impose any such rules, amen to that again, and where can I sign up?

The point is that, in the absence of a monopoly ― if there isn’t one body whose decisions, whether made as a result of (low-turnout) elections or on the basis of revolutionary racial consciousness, have the ability to allow or deny people the ability to make a living ― we don’t have to constantly fight one another about the direction of the profession as a whole. We can and will continue to disagree, but the stakes of the disagreement will be lower. At most, we might be fighting for greater memberships in our respective clubs ― and we will be doing that by trying to persuade people to join us, rather than our opponents, instead of peremptory demands that they adopt our fatal conceits, or else.

Now, despite my professed equanimity, am I really rigging the game in favour of Cult of Hayek here? Why should the supporters of the “Statement of Principles” endorse deregulation? Well, for one thing, because they now know that they are not as popular as they thought. They might make a comeback in four years, but then again, they might not. Deregulation would make it possible for them to organize their affairs on their preferred principles, regardless of their lack of popularity among the broader profession. They could even be the shining light to which more and more lawyers flock, leaving us dinosaurs on the ash heap of history. And even the proponents of the “Statement of Principles” they do come back, it will be over the objections of a sizable part of the profession, and not just the measly 3% who, we are told, refused to tick the “Statement of Principles” box on our annual reports. Instead of advancing their agenda, they will be fighting to eradicate dissent, much more confident now than it was before the last election. And while some of them are aspiring totalitarians who would be quite happy to kick people out of the profession for non-conformity, I do believe that more than a few will blink, especially if there is a lot of kicking to be done. They should conclude that they have better things to do, and get on with the building of social justice in one part of the legal profession.

Of course, right now, it is the opponents of the “Statement of Principles” who will speak with the strongest voice in the affairs of the Law Society of Ontario. Their first order of business, I hope, will be to do what they were elected to do: repeal the state’s imposition on our consciences. But I also hope that they will not stop there. They will need to ensure that such impositions are impossible in the future. But also, that the legal profession in Ontario does not become consumed with the culture war into which it has been plunged. I call on all the newly elected Benchers, but especially on those elected under the StopSOP banner, to support deregulation, for the sake of the legal profession, as well as of access to justice. And I hope that other lawyers, wherever they might stand on the cultural issues du jour, will join this call.

Why Governments Are Not Angels

The SNC-Lavalin affair reveals serious challenges to the functioning of all three branches of the Canadian government

This post is co-written with Mark Mancini

Law Matters has approached us suggesting that we write a short piece on the lessons of the SNC-Lavalin affair ― and kindly accepted to let us post it here without waiting for their publishing process to take its course. So, with our gratitude to their Editor-in-Chief Joshua Sealy-Harrington, here it is.

Attorney General Jody Wilson-Raybould was shuffled out of her office, and then resigned from cabinet; fellow minister Jane Philpott resigned too, and so have Gerald Butts, the principal secretary to Prime Minister, and Michael Wernick, the Clerk of the Privy Council. Ms. Wilson-Raybound and Dr. Philpott have now been expelled from the Liberal caucus. Indeed, the Trudeau government’s future is seemingly imperiled by the SNC-Lavalin scandal. In the unflattering light of these events, Canadians may rightly wonder about the way our government works.

It appears that many of the key decisions in the affair were made by the Prime Minister’s surrogates, who had no regard for the legality of the situation, but were only too happy to advance a political agenda. While the situation is still unfolding, one can already say that it has revealed significant challenges faced by all three branches of our government, and the defects in the ways in which they relate to one another.

Most fundamentally, the SNC-Lavalin affair requires us to take a grittier view of the way government works in Canada. As one of us wrote previously, government in the 20th century was widely perceived as a means to achieve certain substantive ends associated with the social welfare state.  The basic mythology held that, to break the “individualistic” mould of a judicially-developed law focused on upholding property rights and private contractual arrangements, Parliament and legislatures enacted complex legislation, to be administered by expert and efficient tribunals and agencies nested within the executive branch but more or less independent from the supervision of its political masters. This delegation was meant to remove from courts issues of collective justice deemed ill-suited for judicial resolution. The courts, meanwhile, were given a different but even more prestigious role: that of upholding a confined but elastic range of (mostly) non-economic individual rights and liberties.  

This rather Pollyannaish view of government persists today. The executive and agencies are seen as trustworthy technocrats, entitled to judicial deference (regardless of the absence of any real empirical evidence to support this view). Parliament, as the high-minded centre of political representation (at least so long as it is controlled by parties sympathetic to the redistributive project) and accountability. The courts, as the protectors of the rights of minorities. The SNC-Lavalin affair provides strong evidence that this picture is naïve.


The executive branch of government, it turns out, is not only populated by neutral, technocratic arbiters of policy. Rather, politically-minded actors, people like the Prime Minister’s former Principal Secretary, lurk in the shadows―and consider themselves entitled to really call the shots. These are the people who, in the face of an Attorney General’s refusal to cede to the Prime Minister’s pressure, said that they did not want to talk about legalities. They were ready to line up op-eds in newspapers to provide cover fire for their dismissive attitude toward law and discredited legislation adopted by a previous Parliament in which their party did not control the seats.

Instead of being guided by the law, or even (their own conception of) justice, these unelected, unaccountable apparatchiks are only motivated by the prospects of electoral success. Their empowerment means that even those decisions of the executive branch that are ostensibly protected by constitutional principles and conventions mandating their independence (like the prosecutorial function), are perceived as always up for grabs, according to the demands of political expediency.

Meanwhile, some civil servants are a quite prepared to act as the political hacks’ supporting cast, instead of standing up for rules and procedures. Mr. Wernick, the former head of the civil service, certainly was, having apparently had no compunctions about relaying the Prime Minister’s unconstitutional threats to the former Attorney-General and persisting when she warned him of the inappropriateness of his behavior.

But what of Parliament’s role in fostering accountability? Here again, one should not be too optimistic. A government that has the support of a majority of members in the House of Commons will also command a majority on, and thus control the work of, Select Committees, which are key to ensuring that the government is held to account beyond the limited opportunities afforded by the spectacle of question time. Admittedly, the committee supposedly looking into the SNC-Lavalin affair has let the former Attorney General present her version of the events, and it has made public the further documents she supplied, including the damning recording of one of her conversations with Mr. Wernick. Yet the committee is still resisting the calls to allow Ms. Wilson-Raybould to appear again to respond to Messrs. Butts and Wernick’s subsequent attempts to discredit her.

Parliament’s role as a locus of accountability is further compromised by the restrictions on what Ms. Wilson-Raybould is able―as a matter of ethics, at least―to say, even under cover of Parliamentary privilege. The problem is twofold. First, there is some debate about whether Parliamentary procedure would provide the former Attorney General an opportunity to speak despite the opposition of her former party colleagues. Second, even if such an opportunity is available, there is the matter of cabinet privilege, which in principle binds former (as well as current) ministers, even when they speak in Parliament. The Prime Minister could waive privilege in this case, to allow Ms. Wilson-Raybould to speak freely, but he is refusing to do so. 

Finally, the judiciary is unlikely to come out well of the SNC-Lavalin affair―even though it is not directly involved. For one thing, someone―and it is not unreasonable to suppose that that someone is not very far removed from the Prime Minister’s entourage or office―has seen it fit to drag a respected sitting judge, Chief Justice Joyal of the Manitoba Court of Queen’s Bench, through the mud in an attempt to cast aspersions on the former Attorney General. (One of us, we should perhaps note, has been more critical than the other of that judge’s views. In any case, the insinuations that Chief Justice Joyal would not follow the constitution are based on, at best, a fundamental misreading of his extra-judicial statements.)

But beyond that deplorable incident of which a sitting judge has been an innocent victim, it is the former members of the judiciary whose standing has been called into question. In particular, it is worth noting that Mr. Wernick, in his conversations with Ms. Wilson-Raybould, seemed to have no doubt that the former Chief Justice would be able to provide support for the Prime Minister’s position―despite his repeated acknowledgements that he was no lawyer. There is no question that the former Chief Justice, and other former judges involved in or mentioned in connection with the SNC-Lavalin affair, were independent while they were on the bench. Yet their willingness to become hired guns once retired, and perhaps to take aim in accordance with the government’s commands, is still disturbing.


One view of the matter is that―despite the gory appearances it projects and creaky sounds it makes― “the system works”. As Philippe Lagassé wrote in Maclean’s, referring to James Madison’s well-known remark in Federalist No. 51 that “[i]f men were angels, no government would be necessary”, the test of a government is not whether its non-angelic members turn out to be fallible, and sometimes unethical, human beings, but whether “our constitutional constructs include checks and balances to deal with their naturally occurring slip-ups”.

And perhaps the SNC-Lavalin affair ought to give new life to the idea that responsible government—and its attendant norms of political accountability and control of the executive by Parliament—provide adequate checks and balances for government in the 21st century. Despite the limitations on Parliament’s ability to hold the government to account, the opposition party has been able to whip up sufficient public scrutiny to force the hand of the incumbent ministry. Notably, the exposure of the roles played by Messrs. Butts and Wernick is a consequence of the opposition’s pressure―as well as, arguably, of the ability of the media, old and new, to involve experts capable of explaining complex constitutional issues in the discussion of political events. Perhaps, if public attention to aspects of our system that we typically do not consider can be sustained once the interest in the scandal at hand subsides, the system will even come out of it stronger than it was, especially if Parliament can, henceforth, put its mind to holding the executive accountable for its exercise of the powers Parliament has delegated to it.

But this view may well be too optimistic. Just a couple of sentences before his “if men were angels” quip, Madison issued a no less famous exhortation: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” The worry is that our constitutional set-up fails to adequately establish this connection; that it does not guarantee that ambition will counteract instead of abetting ambition; and it relies too much on human character being, if not angelic, then unusually virtuous.

As Dr. Philpott observed in a statement following her expulsion from the Liberal caucus, “[i]t is frankly absurd to suggest that I would leave one of the most senior portfolios in government for personal advancement”. Similarly, it seems most unlikely that Ms. Wilson-Raybould would have taken the principled stand she took, rather than doing the bidding of Messrs. Butts and Wernick and the Prime Minister himself, had she been the ordinarily self-interested politician. The ambitious thing to do for someone in her position would have been to take a hint, and to do as she was told.

And what would have happened then? Sure, her decision to overrule the Public Prosecution Service and to make a deal with SNC-Lavalin would have had to be published, and would have generated some negative publicity. But friendly journalists marshaled by Mr. Butts, and perhaps the former Chief Justice too, would have provided cover. It seems reasonable to suppose that the SNC-Lavalin affair, if we would even have been calling it that, would have been over already, and almost a certainty that it not have become the major political event that Ms. Wilson-Raybould has made it.

In other words, it is at least arguable that whether fundamental constitutional principles are upheld by our government turns rather too much on individuals doing the right thing under great political pressure, and despite their self-interest. It is to Ms. Wilson-Raybould credit that she has acted in this way. But it seems unwise, to say the least, to rely on her successors always following her example, or to suppose that her predecessors always have set a similar one.

A more realistic view of government, and of its more or less visible denizens, may thus lead us to conclude that all is not well with our constitutional system. In one respect, Madison (in Federalist No. 48) turned out to be wrong. It is not the legislative branch but the executive that “is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex”. Law enforcement, Parliament, and perhaps even the judiciary, are endangered by its obstruction, threats, and promises of favours. We must recognize the difficulty to have the slightest chance of doing anything about it.