The Core of It: Quebec Reference and Section 96

At the end of June, the Supreme Court of Canada released its decision in the Court of Quebec case (what I call, unoriginally, the Quebec Reference). The main question in the case: does art. 35 of the Code of Civil Procedure, which grants the Court of Quebec exclusive jurisdiction over all civil disputes up to a value of less than $85000, abridge s.96 of the Constitution Act, 1867. Section 96, in general, protects the role of the superior courts. The Court (per Côté & Martin JJ) concluded that the $85 000 limit, combined with the broad, exclusive grant of power to the Court of Quebec over private law issues, did abridge s.96. Wagner CJ filed a partial dissent and Abella J filed a dissent.

This case contains elements that will both clarify and muck up the s.96 world. On one hand, the Court convincingly elucidates the importance of the rule of law, the core role of the superior courts, and the constitutional limits on legislative derogation of superior court powers. On the other hand, the Court introduces a new “modified” test to add to the s.96 mix, and does not do enough to clarify the circumstances in which this test can be invoked.

As a side note, the Court also briefly addressed the deference problem that was raised by the court below. I wrote about that issue here. The Court did the right thing and held that the issue was moot given Vavilov.

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Section 96 is an odd constitutional provision, in part because the bare text does not correspond to the role that the provision now plays. Section 96 gained a “judicially-nourished luxuriance” which added substantive heft to what is, on first glance, just an appointment power vested in the federal government. Now, s.96 (along with other provisions) protect the role of the superior courts as “the centerpiece of the unitary judicial system” (Quebec Reference, at para 29). In administrative law, s.96 plays an important role. It prevents the legislature, in so many words, from divesting superior courts of so-called “core” powers in favour of administrative decision-makers.

Against this backdrop, Côté and Martin JJ began their opinion by looking to the historical context in which s.96 finds itself. As we know, constitutional provisions like s.96 cannot be understood by viewing them in temporal isolation. By now, it is obvious that constitutional provisions must, in part, be interpreted by looking into the historic context—say, the historical purpose—behind these provisions (see, most famously, Big M at 344; but more recently Comeau, at para 52). In this case, the “compromise reached at Confederation that is central to Canada’s judicial system, as well as the role and purpose of s.96” formed the bulk of the analysis [30].

The historical analysis, for Côté and Martin JJ, led to the conclusion that national unity and the rule of law were the “two key principles” on which the role of the superior courts is based (Quebec Reference, at para 42). Taken together, these principles guarantee “a nucleus” to the superior courts, and s.96 “forms a safeguard against erosion of the historic compromise” (Quebec Reference, at para 41). That compromise was the division of labour between superior courts in the province and the federal government, which holds an appointment power designed to “reinforce the national character of the Canadian judicial system” (Quebec Reference, at para 43).

As for the Rule of Law, the Court made some very important comments about the role of s.96. For Côté and Martin JJ, “[t]he rule of law is maintained through the separation of judicial, legislative, and executive functions” (Quebec Reference, at para 46). The superior courts play an important role because “the task of interpreting, applying and stating the law falls primarily to the judiciary” (Quebec Reference, at para 46). They are best positioned to guard the rule of law. In fact, even though the Court has sometimes spoken favourably about the role of provincial courts in guarding the rule of law, Côté and Martin JJ specifically noted that superior courts are the “primary” guardians of the rule of law.

What does all of this mean? The bottom line for the Court—and this is somewhat of a new formulation—was that s.96 protects against the creation of parallel or shadow courts that mirror the functions of s.96 courts (see paras 53 et seq). To this end, the court has historically developed two tests to prevent legislative derogation from s.96. First is the so-called Residential Tenancies test, determines whether a legislative grant “affects a jurisdiction that has historically been exercised by the superior courts” (Quebec Reference, at para 71). The second is the so-called “core jurisdiction” test, solidified in MacMillan Bloedel. Both have different functions in preventing the creation of parallel courts. The Residential Tenancies test protects the historic jurisdiction of the superior courts. It “was established at a time when…a modern administrative state was emerging in Canada” to which the Court was “sensitive” (Quebec Reference, at para 77). For the Court, a purpose of this test was to “avoid stifling institutional innovations designed to provide administrative rather than judicial solutions for social or political problems” while still protecting the historical jurisdiction (Quebec Reference, at para 77). The core jurisdiction test, on the other hand, serves as a backstop, even if a particular grant passes the Residential Tenancies test. While what the core of superior court powers is necessarily amorphous, some common things jump to mind: judicial review jurisdiction, and for our purposes, “general jurisdiction over private law matters” (Quebec Reference, at para 82). Here, the Court concluded that the superior courts’ core jurisdiction “…presupposes a broad subject-matter jurisdiction whose scope corresponds, at the very least, to the central division of private law…” (Quebec Reference, at para 83).

Typically, the courts have not fleshed out the sorts of factors to consider when determining where a core superior court power is affected by legislative derogation. In the Quebec Reference, Côté and Martin JJ endeavoured to provide guidance where the legislature has vested a court with provincially appointed judges a jurisdiction as broad as the one in the Quebec Reference (Quebec Reference, at para 88). The judges called the collection of these factors the “modified” core test (Quebec Reference, at para 79). These factors included:

The scope of the jurisdiction being granted, whether the grant is exclusive or concurrent, the monetary limits to which it is subject, whether there are mechanisms for appealing decisions rendered in the exercise of the jurisdiction, the impact on the caseload of the superior court of general jurisdiction, and whether there is an important societal objective. This list is not exhaustive. Other factors may be relevant in different contexts: one need only think, for example, of geographical limitations.

Given that the grant of power in this case was broad and exclusive—granting the Court of Quebec power over the entire law of obligations at the monetary limit (Quebec Reference, at para 99)—s.96 was abridged by the legislative grant.

A major question that the Court addresses in this case is the scope of its reasons. That is, does this modified “core” test and the factors it involves supplant the old “core jurisdiction” test?:

The multi‑factored analysis we are adopting here is not intended to replace the current law. The analysis under s. 96 continues to involve two tests. The first — the Residential Tenancies test— continues to apply to any transfer of historical jurisdiction of the superior courts to an administrative tribunal or to another statutory court. The second — the core jurisdiction test — continues to apply in order to determine whether a statutory provision has the effect of removing or impermissibly infringing on any of the attributes that form part of the core jurisdiction of the superior courts. Where a transfer to a court with provincially appointed judges has an impact on the general private law jurisdiction of the superior courts, the question whether the infringement on the core jurisdiction is permissible or impermissible should be answered having regard to the factors discussed above. 

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While Wagner CJC and Abella J’s opinions are interesting and contain information worth reading, I think there are good and bad elements of the majority’s opinion in this case.

First, the good. It is reassuring to see a “resounding endorsement” of the role of the superior courts in the Canadian constitutional order. Sounding in both national unity and the rule of law, the majority has—more than rhetorically—strengthened the “rampart” that s.96 erects against the creative reassignment of superior court powers (Quebec Reference, at para 145). Specifically, the Court’s comments on the Rule of Law are interesting and welcome. We see, here, a glowing endorsement of the role of the separation of powers in Canadian law, and the role of the Rule of Law in relation to the separation of powers. For a Court that has insisted there is no strict separation of powers in Canada, it is interesting to see that, whatever the content of the separation is, it does real analytical work in relation to s.96.  Relatedly, it is reassuring to see the Court draw a direct separation between provincial courts and superior courts. Clearly, the latter have a greater constitutional footing than the former.

Another good piece of this decision: the synthesis of the case law around the prohibition of parallel courts. Section 96 has a somewhat tortured history, and it is defensible for the Court to distill the cases down to a simple proposition: legislatures cannot create parallel or shadow superior courts. In fact, this is the role s.96 has typically played in the constitutional order. Consider, for example, the controversy at issue in Farrah. There, a provincial legislature created a tribunal that had exclusive jurisdiction over questions of law, supported by privative clauses. As the Court noted in Crevier, the Farrah problem was the de facto creation of a s.96 court (Crevier, at 238). More examples abound, and so the Quebec Reference’s synthesis of this important point—the main goal of s.96—is important and helpful.

Now, on to the (potentially) bad: there will be an inevitable confusion that arises in the application of the modified core test the Court endorses. Professor Daly says that this approach is contextual, and meshes well with other aspects of Canadian public law. Contextual tests are not necessarily bad, but it is worthwhile to point out that what they provide in flexibility they trade away in certainty. In this context, a lack of certainty could arise in two ways. First, and in general, I wonder whether we need so many tests to govern s.96. As a reminder, we have three: the Residential Tenancies test, the core test, and the modified core test for cases like the Court of Quebec. The life of the law is experience, and so the Court in the Quebec Reference had to work with the tests that had been developed. That said, in a perfect world, I do think there is a way to simplify the test to determine whether s.96 has been abridged. In my view, most of the analytical work can be done by delineating the categories of “core” jurisdiction that have been recognized by the Court in the case law. While the Residential Tenancies test does play a historical function, ensuring that s.96 protects the jurisdiction of the superior courts at least as it was at Confederation, the core jurisdiction categories could also serve this function while providing more categorical guidance. This would, I admit, entail drawing rather broadly the content of the “core,” and this is what, in part, divided the various opinions in the Quebec Reference. On this account, the core would include substantive considerations (such as judicial review jurisdiction, private law jurisdiction, etc) rather than simply procedural powers concerning the management of inherent process (see Abella J’s characterization of core powers at para 301). There would have to be play in the joints, of course, to allow for institutional innovations resulting from the exercise of legislative sovereignty, particularized by s.92(14) of the Constitution Act, 1867; but I am candidly unsure why one test, grounded in the rule of law, which protects substantive and procedural powers of the superior courts is undesirable.

Relatedly, the modified core test is supposedly limited to cases involving courts, and the lead opinion emphatically says that it is not replacing the law when it uses this modified test (see para 144) . But as Paul Daly notes, it is an open question whether this modified test applies to administrative actors as well. While I am reticent, as I said above, about adopting yet another test to govern s.96, there is no principled reason why the tests developed should apply differently based on whether the derogation is in favour of a “court” or an administrative actor. The evil with which s.96 is concerned is the creation of shadow courts that functionally act as s.96 courts. Whether the recipient of this power is an administrative actor or some administrative actor, there is a chance that a shadow court could be created by the delegation of power mixed with the liberal use of privative clauses. Indeed, in Farrah and Crevier, the issue was the de facto creation of a s.96 court, even in the auspices of an administrative body. While the Court of Quebec is a unique judicial body in Canada, Professor Daly notes that broad delegations of power have been made to various tribunals across the country. Those broad delegations would, it seem, be captured by the Court’s modified test.

The Court seems to draw a distinction between administrative actors and courts, noting that the Residential Tenancies test was in part developed to accommodate the developing administrative state. While whatever test is adopted by the Court must be sensitive to the legislative choice to delegate, the functional reasons motivating that delegation cannot exceed constitutional limits; in other words, s.96 is the brake against unfettered legislative delegation that creates unaccountable shadow courts. No matter the desirability of an administrative state, legislative action is limited by s.96. And for that reason, there is no good reason why s.96 should be different in the context of administrative actors versus courts.

There is more in this decision, including the Court’s interpretive approach when it comes to s.96. For now, though, the Quebec Reference is an important jurisprudential statement about the role of s.96. No matter the difficulties that courts may have in applying the doctrine in this case, at the very least we have important statements about the role of s.96.

The UK Way

What a recent decision of the UK Supreme Court can teach us about courts, legislatures, and rights

A recent decision of the UK Supreme Court, R (SC) v Secretary of State for Work and Pensions, [2021] UKSC 26, might be of interest for Canadian readers. Lord Reed’s judgment for the Court addresses issues that are relevant to current Canadian debates about the relationship between courts, legislatures, and rights, equality rights in particular. To be sure, the UK context is not the same as Canada’s. Still there are lessons to be learned there.

In a nutshell, at issue in SC was a statutory rule providing that one particular tax credit available to low-income families would only be payable in respect of a first and second child, but not for any subsequent children in a family. (Other benefits remained unaffected.) This was alleged to constitute discrimination, on a number of different grounds, in the protection of a right to family life, which is guaranteed by the European Convention on Human Rights, and thus by the Human Rights Act 1998. The Supreme Court found that there was indeed prima facie discrimination against women (who were more likely to be caring for multiple children) and children living in families with three or more children, as opposed to those living in smaller ones. But the rule was still justified as a reasonable means of ensuring the fiscal sustainability of the credit programme.

One could make many interesting observations about this. Canadian readers might want to consider the different approach to equality rights under the Convention and under s 15 of the Canadian Charter of Rights and Freedoms ―no abstruse inquiries into human dignity, histories of stereotyping, and so on, and a ready recognition of what we’d term “analogous grounds”, but also a greater willingness to defer to Parliamentary judgment, except where some particularly invidious forms of discrimination are concerned. But in this post I focus on a different issue: namely, Lord Reed’s comments on the nature and scope of Parliament’s engagement with rights, and the courts’ consideration of this engagement in assessing the compatibility of resulting legislation with the Convention.


These comments are part of Lord Reed’s discussion of “the use which can be made of Parliamentary debates and other Parliamentary material when considering whether … legislation is compatible with Convention rights”. [163] This was necessary because the parties argued about whether or not Parliament gave sufficient consideration to “matters which were argued to be relevant to the proportionality of the legislation, such as its impact upon the interests of the children affected”. [163] Lord Reed, however, cautions about this kind of argument, both out of respect for Parliament’s privileges and, no less importantly, in light of Parliament’s distinct constitutional role.

Parliamentary privilege, as part of the separation of powers, means relevantly “that it is no part of the function of the courts … to exercise a supervisory jurisdiction over the internal procedures of Parliament”. [165] In particular, courts should not expect and must not demand “transparent and rational
analysis” of rights claims by Parliament, because this “would be liable to make the process of resolving political differences through negotiation, compromise and the exercise of democratic power more difficult and less likely to succeed”. [171] The quality of the reasons given by individual Members of Parliament, or even by Ministers, is not what is at issue when courts assess the effect of statutory provisions on rights or their justification and proportionality in a democratic society.

Another aspect of the separation of powers, Lord Reed points out, is the distinction between Parliament and government. Among other things, this means that “[a]s a matter of daily reality, ministers and party whips
have to negotiate and compromise in order to secure the passage of the legislation which the Government has promoted, often in an amended form.” [166] And it follows from this that “[t]he reasons which the Government gives for promoting legislation cannot therefore be treated as necessarily explaining why Parliament chose to enact it”. [166] Neither the government nor individual members can be taken to be speaking for Parliament. Its “will … finds expression solely in the legislation which it enacts”, [167] and its “intention … or (otherwise put) the object or aim of legislation, is an essentially legal construct, rather than something which can be discovered by an empirical investigation”. [172]

At most, Lord Reed says, courts inquire into “whether matters relevant to compatibility” between an impugned statute and Convention rights “were raised during the legislative process”, while “avoid[ing] assessing the adequacy or cogency of Parliament’s consideration of them”. [182] If they were, then ― regardless of the quality of these debates ― Parliament’s enactment may be entitled to an additional measure of deference. The converse, however, is not true: lack of Parliamentary consideration of the issues does not count against the statute.

Canadian courts need to take heed. The most egregious example of their failure to attend to the principles Lord Reed expounds is surely the one Maxime St-Hilaire and I have written about here: the first instance judgment in the Québec mosque shooter’s case, R c Bissonnette, 2019 QCCS 354 (since reversed in part by the Court of Appeal, and now under appeal at the Supreme Court). There, Professor St-Hilaire and I noted, the judge engaged in

play-by-play commentary on Parliamentary debate, praise for “[o]pposition members [who] did their job”, [1146] denigration of a government member’s answer as being of “dubious intelligibility” [1137] and of the Parliamentary majority as a whole for its “wilful blindness” [1146] in the face of opposition warnings.

Another recent example is provided by Justice Zinn’s comments in Smith v. Canada (Attorney General), 2020 FC 629 to the effect that “[a] statement made by the Prime Minister at the time as to the intent of Parliament and its members ought to be accorded significant weight, if not considered conclusive on the issue of Parliamentary intent”. [85]

But even the Supreme Court has sometimes succumbed to such misguided reasoning, if in less extreme forms. Thus in R v Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 SCR 180, Chief Justice McLachlin, writing for a unanimous court, picked and chose among various purposes offered by the Minister who had promoted the legislation at issue, declaring one to be the real purpose of the statute and the others “peripheral”. This arguably crosses the line into “impeaching” Parliamentary statements, and certainly wrongly attributes a Minister’s supposed purpose to Parliament, to the detriment of the separation of powers and to the advantage of the executive over the legislature.

That said, two caveats are in oder. First, Lord Reed’s emphasis on the separation of the executive and the legislature may not always be appropriate in the Canadian context, at least outside of minority government situations. When one considers the law-making practices of some governments and legislatures ― notably, ubiquitous abusive omnibus legislation, or laws interfering with constitutional rights passed in a matter of days, it is difficult to maintain that the legislatures involved are anything other than inanimate rubber-stamps, quite devoid of any “will of their own”. More generally, Canadian legislatures lack certain features and institutions that serve to maintain the Westminster Parliament’s partial independence from the executive. But that doesn’t change the principle that courts should not attribute the executive’s purposes to the legislature. Partly, this is to avoid rewarding the executive for overwhelming the legislature; partly because, as Lord Reed says, it is not the courts’ place to assess the quality of legislative deliberation, and that includes the degree of its independence from the executive.

Second, Lord Reed’s discussion of deference ― both the narrow point described above, to the effect that Parliament’s consideration of an issue should reinforce curial deference to its choices, and what he says elsewhere in the judgment ― is also to be treated with the greatest caution in Canada. Lord Reed is judging in a constitutional system where Parliamentary sovereignty rather than constitutional supremacy is the ultimate principle. But, moreover, section 1 of the Canadian Charter requires any limitations on the rights it protects to be “demonstrably justified” (emphasis mine). The wording of the European Convention is a bit different ― it speaks (for example in article 8, which was at issue in SC) of limits “necessary in a democratic society”. Those readers ― and judges ― who, like me, attach importance to the words of constitutional texts may well think that the Charter‘s emphasis on demonstrable justifications calls into question the appropriateness of judicial deference to legislative choices, and especially of deference on no stronger a basis than the fact that the legislature turned its mind to an issue.

But judges are not the only Canadians who should take note of Lord Reed’s explanations. The proponents of the use of the Charter‘s “notwithstanding clause”, which allows legislatures to maintain in operation laws that are contrary to the Charter‘s guarantees, ought also to consider what Lord Reed says about the difference between courts and legislatures. Their argument is premised, in part, on the claim ― often asserted though seldom supported ― that legislatures will serve “as a forum where rights are debated, articulated and enacted” with “the thoughtful participation of the people themselves”, in the words of Joanna Baron and Geoffrey Sigalet in a post over at Policy Options. Lord Reed’s explanations show why this claim is unlikely to be true, or at least nearly as true as its proponents make it out to be.

Lord Reed points out that the way in which Parliament does its business does not require debate and articulation of rights, or any particular degree of thoughtfulness on the part of the people’s representatives, let alone the people themselves. He writes:

First … Parliament does not give reasons for enacting legislation: it simply votes on a motion to approve a proposed legislative text. There is no corporate statement of reasons, and the individual members of Parliament do not give their reasons for voting in a particular way. …

Secondly, the decisions which Parliament takes are not necessarily capable
of being rationalised in any event. In the first place, Parliament does not operate only, or even primarily, as a debating chamber. It is also a forum for gathering evidence, and for extra-cameral discussion, negotiation and compromise. Furthermore, the way in which members of Parliament vote will usually, but by no means always, reflect party policy, and may be influenced by the discipline imposed by the party whips. [167]-[168]

Lord Reed further explains that while the courts’ task is “the production of decisions arrived at by an independent and transparent process of reasoning”, Parliament’s is

the management of political disagreements … so as to arrive, through negotiation and compromise, and the use of the party political power obtained at democratic elections, at decisions whose legitimacy is accepted not because of the quality or transparency of the reasoning involved, but because of the democratic credentials of those by whom the decisions are taken. [169]

In other words, when Parliament makes a decision, including a decision that impacts or even directly concerns the rights of citizens, it need not act on the basis of reasoned deliberation. It is just as likely to be giving effect to the results of horse-trading or to the political tactics of the majority, its ministry, and its whips. Rights, or any other considerations, need not be articulated in any sort of intelligent fashion in this process. To be sure, sometimes they will be ― but this is no more than a happy accident. It cannot be the foundation of a constitutional theory, let alone the basis on which anyone should accept that their rights can be suspended by a political faction that holds them in contempt.


For all that Canadians like to think of themselves as open to learning from the constitutional law of other countries ― and despite some reservations I have on this score! ― I think that we do not do it nearly enough. There is indeed a great deal to learn out there, and not least from the courts that, to some, might seem passé ― those of the United States and the United Kingdom. SC is a good reminder of that.

Common Power Grabs

A defence of Ontario’s use of the notwithstanding clause as “common good constitutionalism” is the same old tripe, under a new sauce

Over at Ius et Iustitium, Kerry Sun, Stéphane Sérafin, and Xavier Foccroulle Ménard (I shall refer to them collectively as SSM) have a new addition to the rather stale menu of notwithstanding clause apologetics: a post that attempts to justify legislative override of the Canadian Charter of Rights and Freedoms as a form of “common good constitutionalism”. SSM write

that the notwithstanding clause should be viewed as enshrining a form of coordinate interpretation. Under this approach, ideally, the invocation of s. 33 may be contemplated in those cases where a legislature seeking to advance the common good reasonably disagrees with the judicial interpretation of a rights provision

Except for the invocation of the “common good”, this is the usual fare. Legislatures are supposed to have their own views about what Charter rights mean and entail, and are justified in imposing these views on the citizens. Joanna Baron and Geoffrey Sigalet made one such argument over at Policy Options a couple of years ago (I critiqued it here), and more recently Professor Sigalet made a similar case in a National Post op-ed with Ben Woodfinden.

But the addition of the “common good constitutionalism” sauce is noteworthy. So far as it is possible to define, “common good constitutionalism” is a branch of right-wing anti-liberal thought which seeks to re-establish constitutional law on foundations ostentatiously grounded in traditionalist ideology and/or medieval natural law, and thereby to make it serve the general good, as understood by its exponents. In substance, “common good constitutionalism” often amounts to a celebration of political power at the expense of the rights of minorities. In form, it distinguishes itself not only by the aforementioned ostentatious traditionalism or medievalism, but also by its a refusal to seriously engage with non-adherents to the doctrine. (Its celebrity chef, Adrian Vermeule, is notorious for blocking people who have not attacked or sometimes even interacted with him on Twitter.)

Unfortunately, these traits are all present in SSM’s post. I address a number of specific faulty arguments it makes below, but first let me note that ― remarkably for a piece of scholarly writing ― it never quotes or even cites the people it disagrees with. They are merely nameless, faceless “critics” of this or that, and the only source SSM refer to for their views is the not-at-all critical op-ed by Professor Sigalet and Mr. Woodfinden linked to above. Mr. Ménard tries to make a virtue out of this in a subsequent Twitter exchange with Emmett Macfarlane, candidly admitting that he would “rather cite jurists who share” his fundamental premises “than political scientists with whom I share piecemeal views. It makes for better scholarship”, he says. No, it doesn’t. Participants in scholarly debate should endeavour to bring their opponents’ best arguments to their audience’s attention. Those who fail to do so risk becoming propagandists, no matter how many footnotes their writings include.


The entrée for SSM’s paean to the notwithstanding clause is the enactment by the Ontario legislature of the Protecting Elections and Defending Democracy Act, 2021, which invokes s. 33 of the Charter to override the decision of the province’s Superior Court of Justice in Working Families Ontario v Ontario, 2021 ONSC 4076. I will eventually post a detailed analysis of the Court’s decision, but as I have already noted in The Line, its conclusion is self-evidently correct. Section 1 of the Charter requires limits on the rights it guarantees to be reasonable and demonstrably justified. Yet the Ontario government simply provided no justification for extending the duration of very severe restrictions on the ability of civil society groups to engage in political advertising from six months before the start of an election campaign to a year. It own experts had previously said that the six-month period was reasonable. The law could not stand. But the legislature re-passed it in four days.

SSM’s presentation of the situation is misleading. For one thing, they claim that the “arguments” against Ontario’s legislation were “very similar to those raised in” Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827. This is doubly wrong. First, the case actually decided by the Superior Court was focused on the lack of justification for the latest extension of Ontario’s censorship regime, not the validity of such a regime in principle. But even the original dispute about the six-month-long pre-campaign censorship period is far outside the scope of Harper. There the majority invoked the lack of restraint on political speech outside a five-week-long election campaign as evidence of the limited (and hence justified) nature of the restraints during that campaign. SSM further mislead their readers by suggesting that, “[a]s a result of the court ruling, Ontario would likely have no spending limits by unions, corporations, or other third parties in place prior to the next election period, slated to begin in the summer of 2022”. Needless to say, the Ontario legislature could have re-enacted a six-month (or shorter) restriction period just as easily is it re-enacted a year-long one. Its masters in the executive just chose not to do that.

This brings me to another weakness in SSM’s argument. Responding to critics of “the Ontario legislature’s failure to advance a justification for” invoking the “notwithstanding clause”, they insist that “a justification was in fact given in this case: preserving the fairness and integrity of Ontario’s provincial elections”. Leave aside its substantive merits for the moment, and notice the artful use of the passive voice: a justification “was advanced” ― by whom? The text does not say, but the footnote supporting this sentence refers to two sources. One is a passage from the Working Families judgment quoting the Attorney-General’s speech to the legislature about the bill it struck down; it simply has nothing to do with the use of the notwithstanding clause. The other is a news story quoting a statement by a spokesman for the government’s House Leader. Neither, in other words, reflect the legislature’s considered views about the notwithstanding clause. Instead, certainly the former and arguably the latter emanate from the executive rather than the legislature.

Without meaning to, SSM give away the notwithstanding clause defenders’ sleight of hand: while they denounce those who have but “a limited regard for the legislature’s capacity to reason about rights”, they are, in reality, apologists for executive power. Unsurprisingly, they repeatedly speak of the government, not the legislature, invoking the notwithstanding clause. Earlier, they cheerfully note that Premier Doug “Ford’s government controlled the legislature, and so the bill” that expanded the censorship of political advertising before elections “passed with little difficulty”. This all is, of course, of a piece of the “common good” movement’s embrace of executive and administrative power elsewhere. Professor Vermeule, for instance, is an advocate of “law’s abnegation”, as the title of one of his books has it, in the face of the administrative state. SSM themselves defend approaches to legal interpretation that would empower administrative decision-makers instead of holding them to the limits enacted by legislatures.

This power, moreover, is an unbridled one. Recall that, contrary to SSM’s insistence on (legislative) reasoning about rights, the Ontario government advanced no reason at all to justify its expansion of political censorship. To repeat, the Superior Court did not disagree with the government’s justification or rule that it was insufficiently supported by evidence ― though it’s worth pointing out that there never has been any evidence that the integrity and fairness of Canadian elections were compromised by the lack of a year-long gag on the civil society, or even by the absence of the much more modest restrictions upheld in Harper. The Harper majority specifically held that evidence was unnecessary ― a reason, among others, why Harper is one of the Supreme Court’s worst decisions of all time.

Be that as it may, the Working Families court found that there was no justification at all for limiting the freedom of expression of civil society groups for as long as the legislature had. For all that SSM claim to regard “law as a work of reason”, for all their insistence that “[t]hrough a prudent exercise of reason, the law-maker is free and apt to make a practical judgment in choosing among the many alternatives, the many legitimate and reasonable possibilities”, the law they actually extol is an unreasoned power-grab by the executive. By asking us to accept it in the name of reason, SSM show that this rhetoric is just a spice intended to mask the insipid taste of their actual position.

And, for all their contempt for legal positivism and posturing as the heirs to the natural law tradition, SSM are, in truth, asking us to accept the authority of law simply because it has been enacted by the state. They deprecate as simple-mindedly positivistic the view of “legal rights as solely the emanation of judicial decisions”, so that “a Charter right is effectively nullified if the legislature derogates from judicial review via the notwithstanding mechanism”. (SSM never say, of course, who actually holds these views.) For them rights, being emanations of the natural law, exist even if they cannot be enforced through the courts.

But individuals must accept the legislature’s ― or rather, as we have seen, the executive’s ― specification of these rights, even when, as in the case of Ontario’s censorship regime and its use of the notwithstanding clause, the legislature manifestly failed to turn its mind to the right in question. No other reason than the legislature’s authority, and the common good constitutionalists’ naïve believe in its ability to reason, is necessary. And of course, like all notwithstanding clause apologists, SSM trot out the historical fact that it is “part of the Charter and the political settlement that made possible the constitutional entrenchment itself”, as if that can legitimate political actors resorting to it. But that is only so on a nakedly positivist view, where the legality of something is sufficient warrant for its legitimacy.


As co-blogger Mark Mancini and I have previously suggested here and here, SSM’s embrace of common good constitutionalism is superfluous at best, and actively pernicious at worst. If is superfluous if it only serves to provide a baroque vocabulary for warmed-up arguments for in favour of political power and against judicially-enforceable individual rights. It is pernicious if they really mean to embrace the most reactionary views associated with, and sometimes openly embraced by, their ideological fellow travellers.

On the whole, their Ius et Iustitium post is evidence for the former possibility. Little if anything in it could not have been said, and has not been said, without the “common good” sauce. But even stripped of this rhetoric, the argument remains distasteful enough. Citizens ought to defer to the choices executive branch officials, so long as they have been laundered through supine legislatures, because these legislatures in theory could have ― and it doesn’t matter that they actually haven’t ― engaged in reasoned deliberations about rights. Calling something an exercise of reason directed at the common good does not make it so. Tripe is tripe, and a power grab is a power grab.

Bill C-10 and the CRTC Debacle

Does it get much worse?

Bill C-10 has passed the House of Commons. For those unaware, the bill nominally involves “compelling companies like Netflix Inc and TikTok Inc to finance and promote Canadian content.”  Experts, like the University of Ottawa’s Michael Geist, are concerned about the far-reaching impacts of this law. The concerns mostly revolve around the idea that the government’s law may reach content produced on user-driven sites, targeting individual content creators rather than the “tech giants” that are the nominal targets of the law.

I agree with Professor Geist. I share deep worries about the chilling effect this, and other measures the government is introducing, will have on free expression. But that isn’t my area of interest or expertise, for the purposes of today. Instead, whatever the content of the law, no one can gainsay Professor Geist’s conclusion, upon the tabling of the bill, that it “hands massive new powers to Canada’s telecom and broadcast regulator (the CRTC) to regulate online streaming services, opening the door to mandated Cancon payments, discoverability requirements, and confidential information disclosures, all backed by new fining powers.” The wide-reaching delegation of power will, as is common in administrative settings, be used by the CRTC to the hilt. We should expect nothing different, and we should therefore be disappointed that Canada’s government did all it can to prevent the legislature from taking a hard look at this bill.

In Canada, most of our discussions of administrative law are synonymous with discussions of judicial review. That is, we tend to view the law of judicial review as the same as administrative law. The focus of most Canadian administrative law academics (myself included) is on the stuff of judicial doctrine; standards of review, procedural fairness, etc etc. But, in other jurisdictions, like the United States, legislatures and courts have indicated an interest in controlling administrative power themselves. The United States’ Administrative Procedure Act, despite its flaws, is at least a legislative indication that the administrative state can and should be controlled by the legislative standards regarding adjudication and rule-making.

No such interest evidently exists in Canada, as the Bill C-10 debacle shows.  Put aside, for the moment, the rather emaciated Statutory Instruments Act (see Neudorf, here for problems with this statute at 562 et seq, and my paper, here, for more). The efforts by the government (and other abettors) to do anything—whatever the optics—to limit debate and amendment of the bill are unfortunate:

All bills, no matter their consequences, should be subject to robust debate, in both Parliament and the public forum more generally. But this law, in particular, is troubling from an administrative law perspective. Parliament’s inability to even fully debate—let alone control—the mass discretion passed to the CRTC should worry all Canadians.

I accept the legitimacy of the administrative state, parasitic as it is on delegated power. But that’s the rub—the power is delegated, and amenable to control by the delegator. The legitimacy question is quite aside from the need for the formal, constitutional actors in our system (the legislatures, specifically) to fully and frankly debate the policy and legal implications of broad delegated power. In fact, legislatures may be the only ones with the power to do this in our constitutional order. Despite strong arguments to the contrary (see Justice Côté’s opinion in the GHG Reference and Alyn Johnson’s excellent paper here), I am not convinced that courts can pass on the constitutionality (let alone the policy implications) of the scope of broad delegated power. While courts are the only “independent” guardians of the Constitution (see Ell, at paras 3, 23), that does not mean that legislatures should bar themselves from considering the legalities and policy implications of their delegations.

It gives me no comfort that judges of the Supreme Court and commentators has referred to the CRTC as the “archetype” of an expert tribunal (see the opinion of Abella and Karakatsanis JJ in Bell Canada, at para 64; see also B. Kain, “Developments in Communications Law: The 2012-2013 Term—The Broadcasting Reference, the Supreme Court and the Limits of the CRTC” (2014) 64 SCLR (2d) 63). While it is certainly true that “we simply do not know what the typical bureaucratic objective function looks like” (see Gersen, here, at 335), there is clearly a risk that “[d]elegation can create iron triangles of policymakers insulated from public control…” (Gersen, at 345). This is even more apposite where the mandates that are implemented by administrative actors are vague and general, as they often are. While expertise may be a valid reason for delegation, there is an inevitable trade-off involved in delegating power to experts—there is always a risk of bureaucratic drift, or expansion of delegated mandates. The worry is multiplied when the legislature indicates little interest in debating the merits of delegated power. Indeed, perhaps the legislature has no incentive to control delegated power, except for the incentives provided by constitutional principles.

 And here, the CRTC has been given delegated power a country mile wide. As Geist noted on the tabling of the bill, many of the specifics of the bill’s new concept of “online undertakings” will be left to the regulator. For example, the third reading of the bill does not unambiguously say that it does not apply to users.  Much will be left in the hands of the CRTC through its regulation-making powers. We will not know the extent to which the market and users will be affected until the CRTC begins using its new-found powers.

Now, because of the parliamentary calendar, it does not appear  that the Senate will be able to pass the bill in time. This is good news, but it seems more fortuitous than anything. More of this vast delegated power appears on the horizon for other agencies, like the Canadian Human Rights Commission. A rigorous public will need to step in where the government has made it impossible for the legislature to fully examine the proposed law.

The Politics of Law

Is law truly just a function of politics? Should it be?

It is common in progressive circles (and, increasingly, in conservative circles, to some extent) to say that law=politics, or some variation thereof (law is always political, law is political, etc etc). The claim is usually offered without much in the way of qualification, and it appears to capture the many aspects of “law”; the creation of law, the implementation of law, and the interpretation of law.

In this post, I argue that this claim is either banally true or implausible because it merges law with politics in a way that our current system simply cannot support. To determine its veracity, the claim must be examined closely—in relation to the various ways that political considerations interact with law. A failure to do so infects the “law=politics” claim with a fatal imprecision.

I first outline the limited ways in which the claim is likely true. Then I shift gears to a normative argument: while the claim may be true in certain ways, it is not self-evident that it should be true across the legal system. In other words, there is good reason to accept that law may be “political” in certain ways; but it isn’t the case that it should be in all aspects of the law (its creation, implementation, and interpretation).

***

Before jumping in, I should acknowledge some imprecision in terms here. The law=politics claim is often made bluntly, without defining what is meant by “politics” or “political.”  It could mean, for example, that law is inevitably wrapped up in partisan politics. It could mean that law is not necessarily co-extensive with partisanship, but is correlated with political ideology more broadly. Or it could mean something very simple: law is “political” in the sense that people are “political,” meaning that law mediates disputes in a society where political disagreement is inevitable.  It could also mean a combination of all three of these things, or more.

All of these claims could be descriptively true in various ways, in relation to different aspects of law-making, implementation, and interpretation. But a failure to distinguish between these various definitions of “politics” and “political” presents an immediate hurdle for those who claim, without qualification, that law is always political. As I will note throughout, these various claims to the political nature of law may be more or less true given the institutional context. It does not follow that every political consideration is always relevant to the law.

***

Starting with the descriptive claim, it is clearly true that law can be political. The creation of law in the legislature is itself a political act. Laws are created to achieve certain aims; these aims can clearly be motivated by ideologies; and the content of law is not “neutral” as between political aims. Political parties make up the legislatures, and they vie for power in elections. In this case, and quite obviously, law is the product of political machinations. It follows that the creation of law itself can be motivated by wholly ideological reasons, quite aside from any claims to public reason or ideological neutrality. As I will note below, the notwithstanding clause is a good example of a situation where a legal power can be exercised for solely political reasons.

As well, the implementation of law by administrators, state officials, police, and others will not always be perfectly consistent with what the law says. Officials could operate on personal whim or policy preferences that are inconsistent with the policy preferences specified in the law. After all, state officials routinely fall below the standards set by the law and the Constitution—one only need to look at the number of constitutional challenges against state action that are successful in Canadian courts (though, of course, this may be due to stringent constitutional standards rather than routine malfeasance by state officials). Whether this is due to cognitive biases, outright hostility to legal norms, or mistaken application, laws can best be seen as ideals that state officials will sometimes fall below. This illustrates that state officials—at best—can only approximate legal norms. In administrative law, for example, the law of judicial review could be understood as an attempt to police the gap between the law on the books and the law as applied; to inch state officials towards following the law on the books, as much as possible.

Similarly, as a descriptive matter, the interpretation of law could be “political” or perhaps more aptly, “ideological.” Law is fundamentally a human business, and interpretation cannot be a perfect science, a simple application of axioms to words. Human beings have cognitive biases and judges are simply human beings. Notwithstanding the fact that judges sometimes speak as if they are neutral protectors of constitutional values, it is simply impossible to guarantee that law will always be interpreted authentically. To be clear, this tendency is likely true across the political spectrum—results-oriented interpretation can be common on the left or the right, and in each case, it is unavoidable that there will be results-oriented interpretation.

That said, we simply do not know the extent to which any of the above is even true in Canada. While it is plausible to suggest that judges and officials may have their judgments infected by ideology extraneous to the legal instrument under interpretation, this should not be overstated. Empirical research would be helpful in determining the extent of this phenomenon. For the most part, though, Canadian judges likely do their best to apply the law according to its terms. (NB: see Emmett Macfarlane’s work here, which tackles some of these issues. I’ve ordered the text).

***

As a normative matter, let us assume that it is true that implementation and interpretation of law can be “political” or “ideological” or something of the sort.   There are two options: we create rules, standards, and principles to limit the gap between the law as adopted and the law as applied; or we do not.  The form of these rules, standards, and principles is unimportant for our purposes. For now, it is enough to say that there is a fork in the road. Either we choose to limit the political/ideological discretion of state actors—including judges—or we do not. The point here is that while there can never be perfectly “neutral” or “impartial” creation, implementation, and interpretation of law as a matter of fact, it is desirable—as a normative matter—to limit the role of pure ideology in certain areas of law, to the extent we can.

This is obviously not true in the context of law-creation. The public understandably, and quite likely, wants our laws to be the product of a democratically-elected legislature (to the extent our electoral system leads to fair democratic outcomes in the abstract). In this sense, people vote for representatives that share their priors or who they wish to see in the legislature. Those legislatures, composed as they are by political parties, will pass laws that reflect the majority will (again, to the extent the “majority will” is represented in our electoral system). Ideally, in legislative debates, we want all the cards on the table. We want our representatives to fully and frankly air their ideological differences, and we want the public to be able to judge which program of government is best. In this sense, it is undesirable as a normative matter to (somehow) limit the politics of law in the realm of legislation.

However, as a normative matter, the story changes dramatically when it comes to law implementation and interpretation. Our Supreme Court endorses the proposition, for example, that interpretation must be conducted in order to “discern meaning and legislative intent, not to ‘reverse-engineer’ a desired outcome” (Vavilov, at para 121). Administrative decision-makers implementing law have only limited reserve to bring professional expertise to bear (Vavilov, at para 31); otherwise, they are creatures of statute, and are cabined by the terms of their statutes (Chrysler, at 410). Put differently, administrative actors implementing law have no independent reserve to make free-standing ideological determinations that are not incorporated into the law itself. A different way to put it: law is political in the legislatures, but when it is being interpreted or implemented, courts must discover the political choices embedded in the law itself.

  The Court also endorses a law and politics distinction, as a constitutional matter, when it comes to judicial independence. It says that judicial independence is “the lifeblood of constitutionalism in democratic societies” (Ell, at para 45), which “flows as a consequence of the separation of powers” (Provincial Judges Reference, at para 130). Judges should not, at least as a positive matter, render decisions that are infected by ideology—because it is the legislature’s job to make judgment calls based on political considerations, economic tradeoffs, or otherwise.

I could go on with examples of how our Court—and our system—endorses a separation between law and politics. For what it’s worth, and no matter the descriptive reality, I believe there is wisdom in articulating limits to the free-standing ideological whims of administrators and judges. Of course, these limits will not be perfect, and they will not reverse the reality that implementation and interpretation will sometimes be driven by results. But the use of rules, standards, and principles to cabin these free-standing policy preferences can be useful in ensuring that state actors and judges justify their decisions according to certain, universal standards.

Two examples could be offered. First, in statutory interpretation, we have semantic canons, presumptions, and tools to try to determine the authentic meaning of law. These “off-the-rack” tools and presumptions are far from perfect, as Karl Llewelyn once pointed out. They can be contradictory, and they are not axiomatic laws of nature that lead inexorably to certain results. But we have these rules for a reason. We use them because we have made an ex ante judgment, over the years, that they will help interpreters reach the authentic meaning of legislation (or, if one is an intentionalist, the authentic intention of legislatures). We do not expect judges to distribute palm-tree justice when faced with a law. Instead, we expect judges to justify their interpretive result through the prism of these canons and presumptions, because they are semantically and substantively useful. We do this because there is a law and politics distinction between legislative work and judicial work, endemic to our Constitution.

Of course, there is a recognition that legal principles may themselves have a certain political valence. Presumptions of liberty, substantive equality, strict construction of taxation laws–all of these rules could be said to contain certain “political” suppositions. As I have written before, I am generally not supportive of certain substantive presumptions of interpretation that put a thumb on the scale. But as Leonid Sirota writes, some of these presumptions are plausibly connected to the legal system–in this sense, they are political, but they represent values that are endemic to the legal system as it stands. Substantive equality is similar. It can, at least plausibly, be traced to the text and purpose of s.15 of the Charter. These are principles that have some connection to our legal system; they are not representative of the whims of the particular interpreter in a particular case. At any rate, forcing interpreters to justify their decisions is useful in itself.

Secondly, Doug Ford’s recent decision to invoke the notwithstanding clause presents a good difference between the ways in which law can be political, and the ways in which it should not be. When a government invokes the notwithstanding clause, it is not necessarily an exercise of reason. It could be a blunt assertion of legislative power. Now, that assertion of power can be justified by any number of considerations. If some detractors are correct, for example, Ford’s use of the clause in this case could simply be designed to punish his opponents. Less likely, it could be a good-faith attempt by a legislature to come to a different definition of a rights-balance. Whatever it is, the use of the notwithstanding clause is an exercise of power that could be motivated by distinctly political aims. In this way, legislation is quite clearly political.

However, and even if naked political judgments are not justiciable once invoked under cover of the notwithstanding clause, the public may wish to articulate a different justificatory standard for the use of power that is legalistic in nature. As Geoff Sigalet & I wrote here, the public may wish to subject politicians who invoke the notwithstanding clause to a standard of justification—the politicians should offer legitimate, objective reasons for the invocation of the clause. Again, this is not a legal requirement. But as a matter of custom, it is a requirement that the public may wish to impose on politicians as a check on rank political judgments. By imposing such a standard, the public can disincentivize uses of the clause that are not backed by solid, legal reasons.

None of this is new. Indeed, Dicey argued that for the Rule of Law to flourish in any society, the society must contain a “spirit of legality” that is separate and apart from any limits imposed on power by  courts themselves. This spirit of legality presupposes that there are some areas where the public should expect better than rank political and ideological judgments. Of course, the law & politics distinction is a matter of some controversy, and I cannot address every aspect of the distinction here. Suffice it to say: broad claims that “law is always political” cannot hold. Law is descriptively political in some ways. It does not follow that it should be in all cases. Quite the opposite, sometimes it is best for rules, standards, and principles to cabin the ideological capture of courts and others, as best they can. This will not be perfect, it will not always work, and it is not a mechanical process. But it’s worth trying.

Ontario’s COVID-19 Discretion Tragedy

Ontarians watched with a mix of horror and confusion on Friday as Premier Ford and medical officials announced what could only be described as drastic measures to, apparently, curb the spread of COVID-19 and its related variants. While the government has flip flopped on these measures since, and it is unclear if further changes are coming, these measures would have (and as I will point out, probably still do) significantly empower the police to enforce Ontario’s stay-at-home (SAH). These measures raise a whole host of enforcement concerns, ones that should worry all Ontarians.

In this post, I briefly review the state of affairs as they stand. I then make two general comments about the recent measures. First, the measures demonstrate why discretion is presumptively risky, even if a modern system of government requires it to function. Second, the measures demonstrate why a relatively thin version of the Rule of Law is a necessary but insufficient condition for a society that respects civil liberties. Instead, the Ontario example shows that a populace concerned with legality will sometimes act as a better check on discretionary power than the courts. This is a highly desirable feature of a society built around the Rule of Law.

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On April 7, the Ontario government announced enhanced measures “in response to the rapid increase in COVID-19 transmission, the threat on the province’s hospital system capacity, and the increasing risks posed to the public by the COVID-19 variants.” The so-called SAH applied province-wide, and required “everyone to remain at home except for essential purposes, such as going to the grocery store or pharmacy, accessing health care services (including getting vaccinated), for outdoor exercise, or for work that cannot be done remotely.” The SAH also had some measures dealing with retail opening and staffing.

The province upped the ante last Friday, when it announced enhanced measures adopted in relation to the SAH to fight COVID. There were a few iterations of these measures, and the timeline is somewhat confusing, but below is my attempt to summarize the happenings (I do not include, here, any information about the interprovincial travel measures or the so-called “playground” measures:

  • On Friday, the provincial government gave police the power to require any individual not at home, on the street or in their cars, to provide the reason that they’re out and provide their home address. Put differently, the police had the power under this order to stop anyone randomly.  This rather surprising delegation of power, when it was announced by the Premier and medical officials, was not cabined by any limiting principle; ie, to many of us on Friday, it did not appear that the police even required “reasonable and probable grounds,” a constitutional standard, to stop anyone.
  • In response to the announcement, various police forces across the province intimated that they would not enforce the new rules, to the extent that they required random vehicle or individual stops (see ex: Waterloo Regional Police). The Ontario Provincial Police, however, seemed to suggest it would enforce the random stops (see here).
  • On Saturday, the relevant text of the regulation was released (as an amendment to O. Reg. 8/21 (ENFORCEMENT OF COVID-19 MEASURES). The amended regulation, at s. 2.1, specifically gave the police the power to require information from an individual “not in a place of residence.” This information included an address, as well as “the purpose for not being at their residence, unless the individual is in an outdoor or common area of their residence.”
  • On Saturday evening, Solicitor General Sylvia Jones announced that officers would no longer be able to stop any pedestrian or driver to ask why they’re out or to request their home address. The new regulation makes two important changes:
    • The range of information the police could collect in a stop in which they have reasonable grounds was seemingly expanded by the regulation (adding date of birth, for example).

As of moment of publication, this is where we stand. I turn now to analyzing this series of events in the two frames I have set out (1) discretion and (2) the Rule of Law.

**

Modern government is built on discretion. The insight here is simple. Legislatures cannot make all the laws they need to make to cover all policy or legal problems that exist in a modern society. As such, legislatures in Canada have chosen to take advantage of the supposed expertise of administrative actors, delegating power to make and enforce laws. They have also, relatedly, delegated power to Cabinet to adopt law quickly through regulation. The finely wrought legislative process will not always be reactive or quick enough to deal with problems, and so delegation is a way to create a more responsive body of law.

This is the positive side of the story.  But as KC Davis famously argued in his text Discretionary Justice: “…every truth extolling discretion may be matched by a truth about its dangers. Discretion is a tool only when properly used; like an axe, it can be a weapon for mayhem or murder” (25). While it is important that a modern system of government can individualize justice, as Davis put it, there are costs to doing so.

The costs can be minimized, but often aren’t. Legislatures in Canada often delegate power to various recipients in the broadest fashion possible, and they generally do not fulsomely analyze the content of regulations adopted, after the fact. There are the famous “public interest” delegations that are legion in the statute books, for example. These delegations cannot be broader, in part because they ask the recipient of the delegation to decide themselves whether the public interest is met by a particular exercise of discretion.

Now, there is not a strict dichotomy between “rule” and “discretion,” but rather discretion starts where rules “run out”: “The problem is not merely to choose between rule and discretion, but…to find the optimum point on the rule-to-discretion scale” (15).  Davis’ idea of “structured discretion” is relevant here. To Davis, “[t]he purpose of structuring is to control the manner of the exercise of discretionary power within the boundaries” [97].  While Davis’ discussion is focused on the American rule-making context, the idea is equally relevant to us: legislatures and administrators themselves can choose, in certain circumstances, to confine their discretion through targeted delegations, policies and guidance documents, and precedents. This does happen: one might look at Ontario’s Emergency Management Act, particularly section 7.0.2, to see how a delegation can be cabined, even weakly (delegation to make orders in a declared emergency).

The problem with discretion, however, is that the systemic incentives tend towards permitting wide discretion that can be abused. Legislatures that are delegating because they cannot make laws themselves are probably not inclined to truly structure discretion: the Ontario emergency legislation is an example. Administrators, police officers, and other actors have no real incentive themselves to exercise their discretion within the bounds of law (except a political one, which I will note below). In fact, the institutional pressures of their own administrative settings may encourage ad hoc reasoning and decision-making, relying on broad delegated authority, in order to accomplish what they see as their policy goals. This is all hypothetical, of course, but the point is that when any government official is exercising delegated power, there is no real reason for them to exercise discretion properly (whatever that means in context), and especially so where the possibility of ex post judicial review is unlikely, or the strength of that review will be highly deferential.

In certain administrative contexts, abused discretion (in the notional sense, not the legal sense) carries grave consequences. Expropriation of land is an example. The police are another example. Police carry any number of discretionary powers, and police are constantly up against the rights and dignity of individuals. Recent events illustrate that police discretion—to detain someone, to arrest them, even to shoot them—can be easily abused based on irrelevant characteristics, such as race or class stereotypes. We have seen this story too many times to say that discretion is some inherently benevolent legal concept.

This is what made Ontario’s original order so surprising. A system of random stops is positively unstructured discretion. While, in normal circumstances, the delegation of legislative power cannot be constitutionally impeached, the legislature does not have the power to delegate a power to administrators or police to breach the Constitution: see Vavilov, at para 53. In this case, this unstructured discretion is likely unconstitutional (see here), even if it is validly delegated. This isn’t surprising: the discretion is so broad that the possibility of unconstitutional implementation is too great to bear.

Some might say it is a vindication of the police that many decided not to enforce the order. But this is simply not enough, for two reasons. First, not all police chose this path: as I mentioned above, the OPP had every intention, it seemed, of enforcing the original order as written. Secondly, the point is that there is no legal incentive (except the political one I mention below) that mandated the police to opt out of enforcing these measures. In the strictest positivist perspective, actually, until a court has rendered the delegated power or a government act unconstitutional, the law must be enforced. But as I will note below, there are other controls for potentially unlawful government conduct.

Additionally, one might think that the refined regulation is better. After all, it does seem to incorporate some “structuring” language: it includes the “reasonable and probable ground” language. This may insulate it from constitutional scrutiny, but that does not mean that the discretion is proper from a public governance standpoint (rather than a strictly legal one). This is barely structured discretion (much like the emergencies legislation). As Nader Hasan points out, on close reading of the regulation, it does appear that the police can stop people that they subjectively believe have violated certain rules, and then obtain any information they wish. The regulation compels an answer if the police can clear the “reasonable cause” threshold, which they likely could in most cases, given that if one is outside, they may be about to attend a prohibited public gathering, or about to return home from one. This could then lead to other information gathered about potential criminal activity that otherwise could not be obtained but for the pretense of the “COVID stop.” Because it is up to the police themselves to form the reasonable suspicion, there are many potentially irrelevant factors that could infect the discretion.

This is not to say that all police will always abuse their discretion. Many police officers perform their roles honourably, and I bet many officers did not want or ask for the powers that were granted to them. But, nonetheless, the Ontario example demonstrates the problem with discretion. There is no incentive for legislatures or the Cabinet to heavily structure discretion. In this case, the government obviously decided that an unfettered police power would best accomplish its goals. As citizens, we should be worried that this was the government’s first choice—not only because it is unconstitutional, but because of the potential error rate and abuse.

**

Finally, I want to say a few words about what this saga tells us about the Rule of Law.

There is a vibrant, old debate about what the Rule of Law accomplishes. Historically, some have said the Rule of Law is the rule of courts (Dicey is often said to represent this view: see Justice Abella & Teagan Markin’s recent piece). Others have suggested that the Rule of Law is much broader, encompassing substantive guarantees (see Lord Bingham’s book). Without taking a side in this debate, there is a subsidiary question: whose responsibility is it to preserve the Rule of Law?

Clearly, the courts play a vital role in preserving the Rule of Law. This is a point that requires no citation. We need a system of adversarial courts, and such a system is probably constitutionally prescribed. Moreover, we need a system of courts to police the boundaries of discretionary action. Courts ensure that administrative action falls within the bounds of the law, and in Canada, this is where the bulk of control over the administrative state occurs. Most reasonable people agree that we need this system of courts.

But these courts are only a necessary condition for legality to flourish. More is needed. Most notably, as Dicey notes (and as Mark Walters explores in his work), a Rule of Law society cannot depend on formal legality as the only requirement. What is required is a society of individuals who embody a “spirit of legality.” People need to jealously, but within reason, guard their constitutional rights that are protected in positive law. But they also need to see the Constitution as a floor rather than a ceiling. Troublesome discretionary acts can be perfectly constitutional but be undesirable because they increase the error rate of enforcement or liberate government actors to an unacceptable degree. What is required is a vigilant population, especially in an emergency situation where civil liberties might be the first legal rights to fall by the wayside.

Many people, on this front, acted appropriately in calling out the Ford government for its adoption of the first tranche of measures on Friday. It was this mass outcry, I think, that forced the government into walking back its original measures. This public outcry was essential. There was little chance (apart from an injunction) that any litigant would be able to stop the enforcement of these measures in time. In this case, it was a concerned population that forced the government to change its laws. One should never underestimate the power of political controls in hemming in potentially unconstitutional government conduct. Any society that says it is bound by the Rule of Law will be incomplete if it does not encourage vigilance and skepticism regarding government acts.

This is not to say that the balance has been appropriately struck throughout the pandemic. I’m not sure, from a policy perspective, if the SAH had the desired effect, for example–despite the cost it exacted in civil liberties. But we have to celebrate wins when they happen. Such is life.

Interpretation and the Value of Law II

This post is written by Leonid Sirota and Mark Mancini.

We read with interest Stéphane Sérafin, Kerry Sun, and Xavier Foccroulle Ménard’s reply to our earlier post on legal interpretation. In a nutshell, we argued that those who interpret legal texts such as constitutions or statutes should apply established legal techniques without regard for the political valence of outcomes. Only in this way can law function as a common reference and guide in a pluralistic, democratic society in which, as Madison eloquently argued in Federalist No. 10, disagreement about fundamental values and the policies required to implement them is pervasive and bound to remain so “[a]s long as the reason of man continues fallible, and he is at liberty to exercise it”.

Our interlocutors claim that our argument leads legal interpretation into “insipid literalism” and, ultimately, sees law as nothing more than a form given to the outcome of power struggles, rather than as the product of reason striving to advance the common good. We remain unconvinced. Our interlocutors seem to wish to escape the more controversial uses to which the “common good” term has been put, but rely on ambiguous claims in doing so. We write today to address some of these claims.

The bottom line is this: if our interlocutors wish to fundamentally change the way we understand texts by sotto voce urging interpreters to adopt a “substantively conservative” position at the outset of the interpretive task, we must dissent. If they wish to simply “tune-up” the way we use purpose and context to enrich our understanding of bare texts, then that is a worthy contribution to the ongoing effort in which many of us are engaged: trying to make Canadian interpretation more workable, less results-oriented, and more focused on the text itself, understood in light of its legislative context in real, practical cases.

Our response is divided into two parts. First, we describe how our interlocutors misunderstand the relationship between, as Jeremy Waldron put it, “The Concept and the Rule of Law”. Second, we catalogue the ways in which our interlocutors’ position is muddled.

  1. The Rule of Law and the Concept of Law, Again

For our interlocutors, “it is clear” that when we say that interpretation must strive for neutrality in order to enable law to guide the members of a pluralistic society, we are “operating within a positivist legal framework”. At the same time, they suspect us of wanting to smuggle a substantive agenda of expanding pluralism into our interpretive views. Respectfully, they are simply mistaken about this. To be sure, as they suggest, the idea of law as a guide for citizens, and hence of the importance of the law’s compliance with the requirements of Rule of Law that make its guidance effective, is an important feature in the work of some positivists, such as Joseph Raz. But its not the positivists’ exclusive preserve.

Consider Professor Waldron’s argument that we need “to overcome casual positivism―to keep faith with a richer and more discriminating notion of law” (19) ― and further, that “[i]t is a mistake to think that a system of rule could be a legal system if there is no publicly accessible way of identifying the general norms that are supposed to govern people’s behavior” (26). Guiding behaviour, including by enabling and encouraging self-application of publicly available rules by those subject to them, and so upholding human dignity, is a key feature of the Rule of Law discourse, but also, Professor Waldron urges, of the very concept of law. This argument was as much on our minds as Professor Raz’s.

And if Professor Waldron might still be regarded as a positivist, trying to merely formulate a better version of that school’s doctrine, Lon Fuller is, alongside John Finnis and Ronald Dworkin, the epitome of Anglo-American non-positivism. And the idea of law as a guide is perhaps best represented in his famous parable of King Rex, the hapless legislator who repeatedly failed to make laws that his subjects could follow. For Fuller too, the requirement that law be framed so as to outline the state’s expectations of its citizens is a matter of respecting human dignity. It is also a matter of what he describes as reciprocity between those in power and those subject to their decisions. The former can expect compliance if, and only if, they frame their demands in such a way that the latter can make sense of them.

The real issue between our interlocutors and us, we suspect, is not a conflict between positivism and natural law, to which one of us (Sirota) is rather sympathetic. Nor is it our commitment to some nihilistic form of neutrality or, conversely, pluralism. As to the former, substantive legislation is of course not neutral―it embodies the commitments of its makers. The task of an interpreter is to ascertain and give effect to these commitments. To do so well, the interpreter must try to bring both established semantic, contextual, and substantive interpretive tools, and (most importantly) an equanimous disposition to his work―precisely to give effect to the commitments made by those with the authority to enact legislation and avoid imposing his own. A judge interpreting the law will never be perfectly neutral in fact, but an interpreter has no business abusing his position to advance pluralism in law, anymore than he is free to make the law more conservative, more progressive, or anything in between (this point was put eloquently by Justice Stratas in Kattenburg, at para 45). 

Lastly, the issue between our interlocutors and us is not a disagreement about whether law should be infused with reason rather than being a matter of raw power. What we disagree about is how reason matters. For us, as for Fuller, what matters is “the inner morality of law”, or its “artificial reason” as Coke put it ― the morality or reason of legal craft and technique, which ensures that law is intelligible to all those subject to it, simply because they are thinking, reasoning human beings, and which is inherent in the enterprise of governing through law, properly understood, rather than emanating from some benevolent ruler whom the  “[s]ubjects will come to thank”. Our interlocutors’ focus is less on form and more on the content of the law; the reason they appeal to is more substantive than the one on which we focus. We turn now to the substance of their argument.

2. The Motte and Bailey of the Common Good Approach

As we note above, the second broad point we wish to make relates to the ambiguities, whether studied or inadvertent, in our interlocutors’ arguments. We outline three areas where our interlocutors’ positions are confusing. In each, our interlocutors could, on one hand, be advancing controversial propositions about the way texts are interpreted—propositions which could run against the need to avoid outcome-based reasoning. On the other hand, our interlocutors’ position could be wholly uncontroversial, simply relating to the relative place of various interpretive tools (like purpose). If it is the former, our interlocutors should say so clearly. If it’s the latter, our interlocutors should disclaim some of the more controversial purposes for which their arguments could be used.

(A) The Natural Law Motte-and-Bailey

Our interlocutors spend a lot of time talking about natural law. They see it as reflected in the legislative process itself—to them, the natural law tradition asks us to “construe the law itself as permeated by reason.” In a passage bound to feel rather opaque to non-aficionados of the tradition, our interlocutors argue that “[n]atural law reflects an idea of reason immanent in the positive law and lends it intelligibility; while in making its general precepts more specific, the positive law realizes and makes concrete the otherwise abstract elements of the natural law.” More specifically, our interlocutors suggest (putatively relying on Justice Miller in Walsh) that all legislation is designed for the “common good.” So, for our interlocutors, it appears that a reflection on the natural law and the “common good” is inherent in the activity of legislating itself. Even the Constitution, they claim, is influenced by the idea of the “common good.”

We question whether the “common good” can mean the same thing in all these contexts. Hand-waving towards Aquinas or a “model opinion” does not adequately answer this question. Our interlocutors seem to assume that the “common good” as a theoretical matter has been stable across time—from the Angelic Doctor to Justice Miller in 2021. This seems intuitively wrong. Even according to those who subscribe to the natural law tradition, there are debates about what the natural law prescribes.

But ultimately, what we are interested in is how this all bears on legal interpretation; how jurists have applied this idea of the “common good” in relation to real cases and current circumstances. Here, we notice that our interlocutors’ suggestion that appeals to natural law and to the common good are nothing more than reminders of the law’s rationality and pursuit of ascertainable purposes is by no means the only view. Adrian Vermeule, for his part, argues for a “substantively conservative” approach to interpretation designed to support the rulers in endeavours—as Vermeule describes it—to “legislate morality” and to support “the traditional family.” This seems to be a fundamentally different use of the term “common good” than our interlocutors propose.

These two radically different approaches are deployed in typical motte-and-bailey fashion. When outlining their own agenda, the latter-day promoters of the “common good” and natural law support Vermeule’s project to use interpretation to stop the “urban-gentry liberals” from prioritizing their own “financial and sexual” satisfactions, on the basis of external values that exist outside of constitutional and statutory texts. When pressed, however, they retreat to the seemingly innocuous claims about law’s rationality, made to appear rooted in legislation and the Constitution.

These two positions are incompatible. If our interlocutors wish to claim that the pursuit of the “common good” is inherent in the act of legislating, that is a proposition we would be prepared to entertain within the context of deciding what a particular text means, although at least some (and perhaps a good deal of) legislation is demonstrably directed at the private benefit of the law-makers or their constituents, or at entrenching outright bigotry, with appeals to the common good nothing more than a smokescreen. But if our interlocutors wish, instead, to impose an “illiberal legalism,” as Vermeule does, that does not “play defensively within the procedural rules of the liberal order,” than that is a different matter entirely. The former deals with matters of interpretation. The latter concerns itself with the culture wars of the day. Our interlocutors should either disclaim Vermeule’s use of their “common good” or accept it.

(b) The Purposivism Confusion

Our interlocutors’ position on interpretation itself is also equivocal. The language of the “common good”, as used by our interlocutors, seems to invoke one rather uncontroversial argument with which we completely agree: text cannot be understood without understanding its abstract and particular purposes. That is a proposition that textualists and non-textualists alike accept (see A. Scalia and B. Garner, Reading Law: The Interpretation of Legal Texts, at 20), and which is hornbook law in Canada. But at the same time, that basic argument raises more questions than it does answers.

Our interlocutors claim that there is “one truth” in the idea of “purposive interpretation”—the premise that law is designed to fulfill an “end” that is “intelligible to reason.” Our interlocutors embrace a “teleological outlook on the essential nature of legislation.” This seems right so far as it goes. As Max Radin notes in his famous article “A Short Way with Statutes,” “the legislature that put the statute on the books had the constitutional right and power to set [the statute’s] purpose as a desirable one for the community” (398). We agree that texts must be read in light of their purposes if we wish to understand why a legislature used certain words in creating a particular rule ― though again we caution that the legislature’s motives may not have been at all noble or reasoned.

If this is all our interlocutors are suggesting, their use of the “common good” phraseology is benign and probably a distraction. Like Asher Honickman in his response to our interlocutors, we do not see these invocations as adding anything to current debates about understanding legal texts. But we take our interlocutors to be saying something, and so simply saying that law is a teleological enterprise is incomplete without specifying how text drives the interpretive process. What needs to be decided is how we choose what purposes are relevant to interpretation. Here, we could speak of “ulterior” purposes—à la “mischief”—or “implementational purposes”—the legal rules (such as rules, standards, or delegations) that legislatures use, in text, to enact particular ulterior purposes (see, for a discussion of these different purposes, Max Radin, “Statutory Interpretation” at 863, 876). At the highest level of abstraction, one could say that laws are designed to achieve “justice and security” or the “common good” or the “public interest.” This does not tell us much about how a legal instrument should be interpreted, because legislatures do not implement ulterior purposes at all costs or in totality, and courts err when they interpret statutes with this assumption, as one of us has argued here based on the Supreme Court’s decision in West Fraser. Interpreters must work between purposes, keeping a clear eye on the text and the way it enacts particular legal rules (see Sullivan, Statutory Interpretation, at 187).   

At times our interlocutors seem to agree with this position. They say that courts cannot “override the terms or the finitude of a statute” and that “no human law-giver can conceivably grant benediction to the common good across the whole of human affairs.” We agree. And yet, we note that an assumption that the legislature’s “reasoned choice is rendered intelligible by the idea of the common good” ignores that language may only imperfectly capture that aim.  Our interlocutors’ position is similar to the old “strong purposivist” view represented in the Hart & Sacks Legal Process materials: legislatures consist of reasonable people pursuing reasonably purposes reasonably. If one takes this view, then it is possible to claim that the idea of the “common good” contains within it substantive aims that could and should override the terms of a statute. If this is what our interlocutors argue, we must disagree, simply because the implementational means employed by legislatures will always be over- and underinclusive in relation to purposes stated at a high level of abstraction. Overriding the text of a statute in favour of a court’s appreciation of purpose risks ignoring the means the legislature chose.

Lest this discussion seem abstract, let us conclude with a reminder of what this “strong purposivist” view means in practice: the early-20th century Holy Trinity case of the Supreme Court of the United States. The Alien Contract Labor Law prohibited the immigration to the US of “foreigners and aliens under contract or agreement to perform labor or service of any kind in the United States”. It was intended to ban the immigration of Chinese workers―but did not specifically say so. The language of the statute also covered an Anglican priest engaged to work in the United States. Yet the Court held that it did not apply to him, because the United States was a “Christian nation,” and hence the law could not have been meant to exclude Christians as well as minorities. Here, we see that the court took a highly abstract background principle and used it to supplement the terms of a statute. This appears to be fine under at least one reading of the “common good” interpretive idea. And yet, this is an outrageous violation of the Rule of Law’s requirement that law be publicly stated and applied in accordance with its enacted terms. It is also, and not coincidentally, an example of intolerable partiality and bigotry.

We conclude this section by restating the point: our interlocutors’ embrace of teleology in law is interesting and welcome, but not helpful by itself. This is because it does not answer fundamental questions about the relationship between text and purpose; and, at best, a perspective focused on “the common good” adds no conceptual heft to relevant and current interpretive debates. We are left wondering whether our interlocutors simply believe in purposive interpretation, or whether they are advancing some other case.  

(C) The Political Confusion

Last but not least, it is important to emphasize that the idea of the “common good”, which our interlocutors present as having a consistent, definite meaning over time, has been put to very different uses by very different people. Our interlocutors claim, for example, that Josh Hammer’s idea of “common good originalism” is perfectly within the tradition of textualism and positivism.Our interlocutors want to reassure us that interpretation drawing on the “common good” does not pursue external policy goals, but rather seeks to determine the meaning of the law from within.

This is a valiant effort, but it flies in the face of the expressly political valence of Hammer’s essay. Hammer makes the following points about his proposed method:

I call my jurisprudential framework “common good originalism,” and I would humbly submit that it be adopted as conservatives’ new legal standard-bearer—a worthy complement to other simultaneously unfolding New Right/“new consensus” intellectual efforts.

[…]

Put more simply: The concerns of nation, community, and family alike must be prioritized over the one-way push toward ever-greater economic, sexual, and cultural liberationism. And this must be true not merely as a matter of public policy, but as a matter of legal interpretation.

Indeed, the entire first part of Hammer’s essay (and another more recent one) trades in politics. The point for Hammer seems to be the development of a certain type of conservative interpretive method that is an adjunct to a political project. One wonders why Hammer needed or wanted to include expressly political statements in a piece that is—our interlocutors tell us—wholly about interpretation. Do our interlocutors disclaim this part of Hammer’s essay, and more generally, how do they distinguish between legitimate and illegitimate uses of the concept of the “common good”?

That the “common good conservative” movement is a political project is clear from the reaction to the US Supreme Court’s Bostock case. As one of us wrote here, in that case, Gorsuch J decided that Title VII protected against discrimination on the basis of sexual orientation and gender identity, despite their not being expressly listed in the statute, because such discrimination necessarily and logically involves discrimination on the basis of sex. In all likelihood, the framers of Title VII did not foresee that the statute would protect sexual orientation and gender identity. Indeed, as Alito J pointed out in dissent, Congress had declined to add sexual orientation and identity to Title VII in the past.

Now, what divided the majority and the dissent in Bostock was a question of pure textual interpretation. As Tara-Leigh Grove argues, Bostock is representative of “two textualisms.” And as Asher Honickman points out, there are reasons to debate the respective roles of social context, expectations, and semantic context in Bostock. This debate has nothing to do with the political valence of one or the other interpretation.

And yet the conservative meltdown over Bostock focused squarely on the results of the case. Here we see the worry about “economic, social, and cultural liberationism.” For Hammer, Bostock was not a mistaken application of textualism, but a showcase of its fundamental faults, laying “bare the moral and intellectual bankruptcy of the conservative legal movement.” Hence Hammer’s proposal of common good originalism, designed to solve this very “failure.”

Bostock raises many questions about the aims of the “common good” movement more generally, and its relationship to interpretive method. One is hard-pressed to find how the concept of “the common good” solves any legal problems in Bostock that cannot be solved by robust debate among textualists about the role of expectations, intentions, and purpose. While one of our interlocutors seems to suggest that the result in Bostock was wrong because judges should take account of the underlying “metaphysics” of words, we view this perspective as a distraction for judges working through real cases—and this is clearly not what Hammer et al seem to be getting at. They have identified a “failure” in interpretive method—a result that they, for one reason or another, do not like. They have designed an interpretive method to solve that problem. Without Gorsuch J’s political “mistake” in Bostock, “common good originalism” was unlikely to ever enter the conversation as it has (which is all the odder since Bostock is a statutory case). As a result, we cannot endorse this fundamentally political project.

Conclusion

Those who subscribe to the “common good” in interpretation are on the horns of a dilemma. There are those who seek to use the concept for expressly political ends, through the task of interpretation as a sort of “living tree” for conservatives. And then there are our interlocutors, who appear to defend the concept as limited, well-understood, and innocuous. We hope our interlocutors can determine which of these options is theirs—and if they simply wish to change emphasis in textual interpretation, then they can join the ongoing debate on that question.

Putting Stare Decisis Together Again

Originalists and living constitutionalists alike have good Rule of Law reasons for being wary of appeals to reinvigorate stare decisis

It is hardly news for those who follow Canadian public law that the Supreme Court tends to have little regard for precedent. Indeed, to the surprise of most people and the chagrin of many, it even freed lower courts to disregard its own precedents, in some circumstances, in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101. For many people, this lack of regard for stare decisis is part of a broader pattern of erosion of the Rule of Law. Dwight Newman and, separately, Brian Bird and Michael Bookman, made this argument in their respective contributions to the collection of essays/special issue of the Supreme Court Law Review on threats to the Rule of Law in Canada edited by Maxime St-Hilaire and Joana Baron in 2019.

The relationship between stare decisis, the Rule of Law, and the desire to do justice in particular cases and to improve the law going forward is not only a source of difficulties in Canada, however. So tomorrow (December 15) at 2PM Eastern, a panel of the Global Summit, an online conference organized by Richard Albert, will try to shed some light on it with participants from the United States (Jeffrey Pojanowski and Marc DeGirolami), and Australia (Lisa Burton Crawford), as well as yours truly. Our chair will be an Italian colleague, Andrea Pin. This should be a lot of fun, and the other participants are all first-magnitude stars. (In case you’re wondering how they let me in ― well, I helped Prof. Pin put it together, so they couldn’t conveniently boot me out!)

The proceedings will, naturally for these plague times, be on Zoom. You can register here ― it’s free! My understanding is that they will be recorded and will, eventually be made available to all. These things tend to take some time though, and are bound to with an event as big as the Global Summit, so I encourage you to watch tomorrow if you can. And, to convince you to give it a go, here is a flavour of own presentation.


Critics of the lack of respect for precedent in Canadian public law tend to argue that enough is enough, and the Supreme Court should go back to a much more robust ― and consistent ― application of stare decisis. My argument is that this is too simple, too idealistic a response. In a perfect world where judges had generally been committed to the Rule of Law, unwavering respect for precedent may well be what an ongoing commitment to the Rule of Law requires. But the world of Canadian public law is far from being perfect in this way. Much of this law suffers from deep Rule of Law problems, some of which I described in my own contribution to the St-Hilaire & Baron volume. As a result, while I share the desire to put stare decisis together again, I argue that this operation will be a delicate one, and must be careful and somewhat selective.

One issue which I’ll address here ― there will be more in my talk (assuming I don’t run out of time, that is!) ― is the concern that respect for precedent may force courts to apply something other than the correct legal rule, be it constitutional, statutory or, arguably, even a common law principle. Lord Sankey, perhaps the chief ― if also most misunderstood ― authority on constitutional interpretation in Canada describes the issue eloquently in the Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58. Pointing out that “[u]nder our system, decided cases effectively construe the words” of enactments, including constitutional enactments, Lord Sankey highlights

a danger that in the course of this process the terms of the statute may come to be unduly extended and attention may be diverted from what has been enacted to what has been judicially said about the enactment. To borrow an analogy; there may be a range of sixty colours, each of which is so little different from its neighbour that it is difficult to make any distinction between the two, and yet at the one end of the range the colour may be white, and at the other end of the range black. (DLR 64)

Lord Sankey’s concerns in the Aeronautics Reference are those of an originalist avant la lettre: “[t]he process of interpretation as the years go on”, he warned,

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 … should impose a new and different contract upon the federating bodies.

Some prominent academic originalist voices have echoed this belief, notably Gary Lawson, Randy Barnett, and Amy Coney Barrett (back when she was still in academia). However, they are not alone in worrying about precedent standing in the way of an accurate application of the law. Debra Parkes raises the same concern from a Canadian living constitutionalist perspective: “[t]he entrenchment of the Canadian Charter of Rights and Freedoms in 1982 has arguably strengthened the case for overruling earlier decisions that are inconsistent with the evolving interpretation of various Charter rights”. (137) Similarly, the late Joseph Arvay and his co-authors have argued that “it is the role and duty of the [Supreme] Court to provide what it believes to be a correct interpretation of the Charter, even if that involves admitting long-standing and oft-repeated past judicial error”. (69)

Of course, originalists or those who are chiefly concerned with the stability of the law may view the living constitutionalist position as simply empowering judges to legislate their particular preferences from the bench. And, admittedly, some living constitutionalists seem to seek a sort of permanent revolution in constitutional law. Mr Avray and his co-authors wrote that “an examination of the role of stare decisis in Charter litigation reveals some transformative Charter moments lost”, (62; emphasis in the original) suggesting that they might be expecting the courts to change society rather than be its reflection, as living constitutionalism seems to suggest. I personally think that this tension between applying the law, even an ever-evolving law, and transforming it is fatal to living constitutionalism’s claim to be a sustainable approach to constitutional interpretation. But let me put that aside for the purposes of this post (and of my talk tomorrow).

Here, I will take living constitutionalism at its word, as an approach to constitutional interpretation that holds that the law is shaped by the needs and values of society as they stand from time to time. On this view, updating legal doctrine to align it with these needs and values as they happen to stand now is not exercise of will, but simply what the Rule of Law requires. Living constitutionalists saying “this precedent no longer reflects the values of Canadian society and must therefore be discarded” are no different, in their relationship to the Rule of Law, from originalists saying “this precedent is inconsistent with the original public meaning of the constitutional text, and must therefore be discarded”.

Call this, if you will, the horseshoe theory of constitutional stare decisis. Radical originalists and radical living constitutionalists agree, at least at the level of broad principle. In practice, there may still be substantial disagreement between those originalists who, like Prof. Barnett, distinguish constitutional interpretation and construction, and see a role for stare decisis in the latter, and living constitutionalists (and those originalists) for whom all constitutional questions are essentially similar in being determined by the constitution itself. But, that important detail aside, both sides of the horseshoe agree that the constitution’s meaning cannot be superseded by judicial interpretation, and remains directly binding on courts, regardless of what their predecessors may have said about it.

From my own originalist perch, I agree with this view. The Rule of Law concerns about the stability of legal doctrine are serious, of course. But the concern on the other side of the scale is no less based on the Rule of Law. The issue is with what Lon Fuller called “congruence” between the law on the books and the law as it is actually applied. (I wrote about this here.) Law cannot guide behaviour ― and thus play its moral role in providing a secure environment for citizens and establishing a mutually respectful relationship between the citizens and the state ― if it is not applied in accordance with its terms. Officials, including judges, who do not apply the law as it stands are engaged in nothing less than “lawless application of the law”. In my view, lawlessness cannot become the foundation of a Rule-of-Law compliant law; it must be expunged for our legal system to have a claim to the kind of authority that Fuller envisions.


As mentioned, this is only a preview. In my talk ― and, hopefully, in a paper that will come out of it ― I will try to address a couple of other reasons why I think it is a mistake to simply insist that the Supreme Court go back to upholding precedents. The problems with the Rule of Law in Canadian public law run much deeper than a lack of regard for stare decisis, and addressing this issue in isolation will not really resolve them. I hope that you can “come” to the talk, and that we can continue this discussion there!

Still Wrong, Just a Little Less So

The Québec Court of Appeal errs in thinking the Charter prevents the imposition of, in effect, life imprisonment without parole

This post is co-written with Maxime St-Hiliaire

What punishment is just for someone who takes the lives of many other human beings? And what punishment for such a person is constitutional? In Bissonnette v R, 2020 QCCA 1585 answers the latter question, and its answer is at odds with the answer to the former. In an unattributed unanimous opinion, the Court holds that a provision of the Criminal Code that allowed―but did not require―sentencing judges to stack minimum parole ineligibility periods imposed for multiple counts of first-degree murder is unconstitutional. The Court finds that the very possibility of such stacking is cruel and unusual punishment prohibited by section 12 of the Canadian Charter of Rights and Freedoms, and a deprivation of liberty and security of the person contrary to the principles of fundamental justice prohibited by section 7 of the Charter.

The sentencing judge in R v Bissonnette, 2019 QCCS 354 thought that the ordinary sentence of life imprisonment without parole eligibility for 25 years would not have been adequate. However, he also found the stacking of multiple 25-year periods constitutionally objectionable, and took it upon himself to rewrite the Criminal Code so as to give himself the discretion to fashion what he took to be the appropriate sentence of life imprisonment without parole for a 40-year period. The Crown appealed the finding of unconstitutionality, while Mr. Bissonnette appealed the sentencing judge’s remedy (which the Crown defended as an alternative).


The Court of Appeal first considers whether the stacking of parole ineligibility periods amounts to cruel and unusual punishment. In its view, the fact that such stacking is not required and can be ordered at a judge’s discretion does not remedy its constitutional defects: “notwithstanding the existence of a discretionary power by which the judge can refrain from imposing a cruel and unusual sentence, the provision is invalid simply because it authorizes a judge to impose such a sentence”. [79] It clarifies, however, that a discretionary sentence that will be cruel and unusual in some cases ought to be upheld if it will nevertheless be proportionate in others. Thus “the question to be resolved is this: are there situations in which it would not be cruel and unusual to impose minimum parole ineligibility periods of 50, 75, 100, 125, 150, indeed 1,000, years?” [89]

The Court takes the position that there are no such situations. Indeed, in its view, the idea is simply irrational. For one thing, “the number of victims to be used as a basis for a judge to stack periods of ineligibility is a legislative choice that is difficult to reconcile with the sentencing criteria in place in Canada”. [91] The possibility of a court “imposing a parole ineligibility period that highly exceeds the life expectancy of any human being” [92] is particularly disturbing. For the Court of Appeal, “[a] court must not make an order that can never be carried out”, because this “brings the administration of justice into disrepute” and amounts to “senselessness” that “is, in and of itself, cruel and unusual punishment … degrading because of its absurdity”. [93] Indeed, even a sentence of life imprisonment without parole “is at least tied to the lifetime of a human being, while ineligibility periods totalling 100 years and more have nothing in common with the duration of a human life”. [95]

But the problem the Court sees with stacked parole ineligibility periods, even just two, is more than just irrationality. It also has to do with the possibility that a rehabilitated offender would be denied the opportunity to apply for parole:

An inmate rehabilitated after 25 years and not eligible to apply for parole before a second 25-year period would, in all cases, be subject to cruel and unusual treatment. The excessive length of the unnecessarily prolonged incarceration would be grossly disproportionate. … [107]

For the Court of Appeal, “preventing a reformed accused from having genuine access to the parole application process” [111] is in itself a fatal constitutional flaw, compounded by the fact that the sentencing “judge is not in a position, barring speculation, to genuinely know the likelihood that the accused will be rehabilitated in 25 years. He is in an even worse position, if that is possible, when dealing with a period of 50 years.” [110] This flaw cannot be justified under section 1 of the Charter.

The Court then turns to section 7 of the Charter. It notes that sentencing judge’s findings that not only are stacked parole ineligibility periods a deprivation of liberty, but also that “an actual irreducible sentence of imprisonment for life” [117] produce psychological impacts that amount to a deprivation of the prisoners’ security of the person are not challenged. The issue is whether these deprivations accord with principles of fundamental justice.

The Court of Appeal does not follow the judge below in accepting the protection of human dignity as a principle of fundamental justice and finding that it too has been breached. For it, two such principles are at play: the prohibitions on overbreadth and gross disproportionality. Both are assessed relative to the objective of the impugned legislation. The purpose of allowing sentencing judges to stack parole ineligibility periods for multiple murders is to “(1) protect society from the most incorrigible killers, and (2) restore the balance between the rights of victims and those of multiple murderers and acknowledge the value of ‘every life lost’”. [135]

The Court finds that the possibility of stacking parole ineligibility periods is overbroad “because it applies to all multiple murderers, regardless of the specific circumstances of each case”, [139] and not “only to psychopaths, organized crime hitmen or incorrigible murderers”. [140] Some might be sentenced to extended parole ineligibility without being unusually dangerous. The rule thus produces effects not rationally connected to its ostensible objectives, and so is overbroad. Nor is the stacking of parole ineligibility periods rationally connected to acknowledging every victim, since in any case a person so sentenced is likely or bound to die before all of the consecutive periods have elapsed. Such sentencing is also grossly disproportionate to its stated objectives. The overbreadth and gross disproportionality cannot be justified in a free and democratic society.

The last question for the Court is that of the remedy. Unlike the judge below, it holds that it must simply declare the possibility of stacking ineligibility periods invalid, “without being rewritten by the courts”. [186] It is clear that Parliament considered and rejected the solution adopted by the sentencing judge ― granting judges discretion as to the duration of parole ineligibility beyond the usual 25 years for a first-degree murder. It would not be appropriate for courts to impose it anyway.


In our view, the Court of Appeal’s judgment is less troubling than that of the Superior Court, which we criticized here. In particular, it is important to note that the Court takes the correct approach to the question of the remedy ― assuming, of course, that its conclusion of unconstitutionality is also correct. But it is not. The Court of Appeal’s reasoning on the issue of constitutionality misapprehends the inquiry and consequently falls into doctrinal error, as well as moral myopia.

Indeed, its most fundamental flaw is one that it ascribes to the legislation it pronounces unconstitutional: a refusal to engage with the circumstances and deserts of the individual accused. The very first sentence of the Court’s reasons proclaims that

[t]his judgment is not about the horror of Alexandre Bissonnette’s actions on January 29, 2017, nor even about the impact of his crimes on an entire community and on society in general; it is, rather, first and foremost, about the constitutionality of a provision of the Criminal Code. [1]

The Court subsequently adds that “[t]he analysis of the provision’s constitutionality must be carried out independently of the appellant’s case, notwithstanding the horror of his actions”. [54] The Court no doubt means this as a reminder that even the worst wrongdoers have rights under the Charter, which must be not be overlooked by focusing on their wrongdoing alone. That is true, so far as it goes. But there is a reason why Canadian courts normally assess the constitutionality of legislation on the facts of particular cases rather than in the abstract. This case, which is, pace the Court of Appeal, about the sentencing of man who murdered six worshippers at a mosque in Québec City and injured 19 others, ought to have been a reminder of that fact. 

In the Supreme Court’s first explication of section 12 of the Charter in R v Smith, [1987] 1 SCR 1045, Justice Lamer (as he then was) wrote that

[i]n assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. … Section 12 ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances. (1073)

In other words, contrary to the Court of Appeal’s approach, the offence and the offender ― including “the horror of his actions” are the primary consideration in assessing an alleged infringement of section 12. The Supreme Court has followed this approach more recently too, including in R v Boudreault, 2018 SCC 58, [2018] 3 SCR 599. The Court of Appeal neglects “to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender”, and this failure warps its subsequent analysis.

In particular, the Court of Appeal is single-mindedly focused on the issue of rehabilitation as the overriding consideration in deciding whether stacked parole ineligibility periods can ever be a constitutionally acceptable punishment. But, focusing on the facts before it, the Court ought to have remembered that ― as Justice Lamer suggested in Smith ― rehabilitation is not necessarily the primary factor in deciding on a fit sentence. Sometimes, the need to punish will dominate. This is not a crass desire for vengeance, but a recognition that different circumstances ― different offenses and different offenders ― call for different responses on the part of society.

A comparison with the sentencing judgment of the New Zealand High Court in the case of the Christchurch mosque shooter, R v Tarrant [2020] NZHC 2192, is relevant. As one of us (Sirota) has explained here, in that case Justice Mander found that

no minimum period of imprisonment would be sufficient to satisfy the legitimate need to hold [the shooter] to account for the harm [he] ha[d] done to the community. Nor [would] minimum term of imprisonment would be sufficient to denounce [his] crimes. [179]

Ironically, the Court of Appeal refers to the Christchurch shooting, noting in a footnote that “the Christchurch massacre (51 victims) could have resulted in a period of 1,275 years” of parole ineligibility. For the Court this is self-evidently absurd. But for the judge who actually sentenced its perpetrator only a sentence of life imprisonment without parole would have sufficed.

This illustrates the fact the Court of Appeal has no regard to deserts of the man before it ― in violation of another cardinal principle of sentencing, that of the indivudalization of the sentence. It is also confused about the significance of the fact that a sentencing judge retains the discretion as to whether to sentence a given offender to a stacked period of parole ineligibility, at one point suggesting that this discretion is of no significance. Like it or not, Parliament enacted a law that allows individualized, if rough, justice. The Court of Appeal, by contrast, reasons entirely in the abstract.

Now, Parliament’s response to the prospect of vicious mass murder is, in our view, rather clunky. It would have been more straightforward, indeed more honest, to make sentences of life imprisonment without parole available, just as the New Zealand Parliament has done, instead of simply stacking non-eligibility periods until they quickly reach the same point. But the Court of Appeal does not really argue ― it merely asserts ― that the absurdity of extended ineligibility periods is inherently cruel. The person sentenced to such a punishment will understand what it means. And as for the claim that stacked parole ineligibility periods, because they cannot be served in full, discredit the administration of justice, it is simply beside the point. Section 12 of the Charter is concerned with justice to the offender, not the courts’ opinion of themselves.

As for the Court of Appeal’s reasoning on section 7 of the Charter, it also suffers from the Court’s failure to account for the discretionary nature of the stacking of parole ineligibility periods permitted ― not required! ― by the Criminal Code. The Court says that in some cases a stacked sentence can be imposed on multiple murderers who are not among the worst of the worst, and so not the sort of offender to deal with whom the stacking was permitted. But if indeed such a sentence is inappropriate ― and it is worth noting yet again that, as this very case highlights, the categories of the incorrigible are not closed, and are not limited to “psychopaths” and “organized crime hitmen” ― the sentencing in the particular case can be overturned on appeal. It seems that the Court of Appeal, like the judge below, simply does not trust to the discernment of other judges.      


Like the Court of Appeal and the Superior Court, and like the New Zealand High Court, we believe that sentencing ― even for terrorist mass murderers ― must not be an exercise in raw vengeance. It is a good thing that Parliament’s authority to direct sentencing is constitutionally constrained. It is all too true that Parliament can sometimes demand punishment incommensurate to crime, especially when it seeks to curtail the sentencing judges’ ability to assess the actions and culpability of the offender in a pursuit of a law that will be equally harsh to all.

But nor can sentencing lose sight of the actions for which the sentence is being imposed. It would be a perverse constitution that required this, and fortunately the Charter is not so perverse. The principles consistently set out by the Supreme Court make clear both that the primary responsibility for sentencing policy is Parliament’s, and that applying constitutional constraints on Parliament must only serve to prevent abuses ― not to become an exercise in abstract, and ultimately soulless, humanitarianism. We hope that the Supreme Court will step in and reassert these principles once more in this case.

An Oddity in Strom

In October, the Saskatchewan Court of Appeal released its much-anticipated decision in Strom. Strom raised a number of important issues: “ “at the intersection between professional regulation, Ms. Strom’s private life, and the s.2(b) Charter guarantee of freedom of expression in the age of social media.”  

Strom was a registered nurse. Her grandfather tragically passed at a long-term care facility. Strom took to Facebook to criticize the care her grandfather received at the facility. The facility’s employees reported the comments to the Saskatchewan Registered Nurses’ Association (SRNA). The SRNA charged Strom with professional misconduct, and the SRNA Discipline Committee found her guilty.

The Court ultimately overturned the Discipline Committee’s decision. For many reasons that I cannot explore here, I think this is the right decision, in law and in principle. But one aspect of the decision is of particular interest to me: the Court’s standard of review discussion as it related to the freedom of expression arguments raised by Strom.

Of course, in such a case, the framework that governs the standard of review analysis is Doré. Doré holds that the standard of review when a court reviews an administrative decision is reasonableness (Doré, at para 7). Doré also introduces a proportionality framework for assessing whether a decision-maker has struck a reasonable balance between the Charter right at hand and the statutory objective. Post-Vavilov, it is at least an open question about whether Doré is still good law. This is because Vavilov reaffirms that, when litigants challenge a law under the Constitution, the standard of review is correctness (Vavilov, at para 56). I, for one, have questioned why it is that different standards of review should apply, especially since the Court in Vavilov recognized that  legislatures cannot “…alter the constitutional limits of executive power by delegating authority to an administrative body” (Vavilov, at para 56).

Enter Strom.  In that case, both parties agreed that the standard of review is correctness on the Charter issue (Strom, at para 133). The Court also agreed, but only because the case came to court via a statutory right of appeal, and under Vavilov, statutory rights of appeal invite the appellate standards of review (correctness on questions of law, palpable and overriding error on questions of fact/mixed fact and law) (see Strom, at para 133). The Court noted, though, the following, at para 133:

It is not necessary to consider the question left unanswered by Vavilov, at paragraph 57; that is, what is the standard of review when the issue of whether an administrative decision has unjustifiably limited Charter rights is raised on judicial review, rather than on appeal?

This, in itself, is not really problematic. Given the fact that, for now, Doré lives another day, it would not be appropriate for an appellate court to apply the correctness standard to Doré-type situations. It is defensible—and proper—to simply classify a constitutional issue as a question of law that falls under the scope of an appeal right. And at the end of the day, it does not matter much for a results perspective, because the standard will be correctness either way.

However, in choosing the correctness standard, the Court then did something that is difficult to understand. It said the following, at para 140:

What, then, is an appellate court’s task when reviewing whether the decision of an administrative body unjustifiably infringed a Charter right? In substance, that task is summarily described in Doré at paragraph 6, despite the fact that the standard of review is correctness. The Court’s task is to determine whether the decision-maker disproportionately limited the Charter right or struck an appropriate balance between the Charter right and statutory objectives.

The Court went on to describe the question raised by the case, at para 166:

The question as to whether it has imposed excessive limits is the proportionality question. Here, it is whether the Discipline Committee advanced its statutory objective in a manner that is proportionate to the impact on Ms. Strom’s right to freedom of expression. One aspect of that question is whether the impact on her freedom of speech in her private life was minimal or serious.

The Court then went on to apply the Doré framework, though made reference to some parts of the Oakes test (see para 153).

This strikes me as an oddity. Let’s take what the Court describes its task to be. When courts apply the correctness standard, courts focus on “the conclusion the court itself would have reached in the administrative decision maker’s place” (Vavilov, at para 15). The proportionality analysis advanced in Doré, however, seems to have deference built-in to it. While Doré notes that the Oakes test and the Doré framework “exercise the same justificatory muscles,” (Doré, at para 5), Doré deference asks courts to give some weight to the statutory objective being advanced by the decision-maker. This was, indeed, a bone of contention for the dissent of Brown and Côté JJ in Trinity Western. But when a court conducts correctness review, at least in theory, the court should not give any weight to what the decision-maker’s reasons are for making

That said, there are no perfect Platonic forms in law. It is true that Oakes itself has developed to contemplate deference in its application. And it is also true that courts, post-Vavilov, have applied what I call “light correctness review” (see Planet Energy, at para 31), where a certain amount of weight is given to the decision-maker’s “…interpretation respecting the words of the Act, the general scheme of the Act and the policy objectives behind the provision.” This could be seen as a sort of Skidmore-like deference, under which courts give non-binding weight to an administrative interpretation.

That said, the inherently deferential idea of Doré review seems inconsistent with a stringent application of the correctness standard. This, to me, is a theoretical oddity, even if its effect is blunted on the edges.