On the Rule of Law, Blockades, and Indigenous Self-Government

Recently, Canadians have been captivated by a set of protests occurring both in British Columbia and Ontario in relation to the Coastal GasLink pipeline. The pipeline is a $6B dollar, 670 km project which runs across Northern British Columbia. In British Columbia, the hereditary chiefs of the Wet’suwet’en lead blockades across the pipeline path, even in the face of injunctions issued against the blockades. On the other side of the country, in Ontario, a blockade led by members of the Mohawk First Nation has brought trains and other travel to a standstill, causing supply shortages in some areas. New protests and blockades pop up almost daily across the country. An injunction was also issued in respect of a blockade in the Toronto/Vaughn area, which was immediately burned by protestors in the area.

In all of this, many have called on police to enforce the various injunctions, because of the principle of the Rule of Law. The Rule of Law, so goes this argument, requires an injunction duly issued to be enforced. Still others rebuke the reliance on the Rule of Law, positing that (1) the Canadian Rule of Law, as presently understood, encompasses claims of Indigenous rights and title and (2) the Canadian Rule of Law does not speak to Indigenous systems of law, separate and apart from colonial law. As a result, in the debates, it is sometimes unclear whose Rule of Law we are talking about, and whether one particular application of a particular rule of law would lead to different results.

While it does matter in what sense we are using the term “the Rule of Law,” I write today to draw attention to two aspects of this dispute that I believe can exist in a complementary way. First, it is clear that on any understanding of the Rule of Law, a system of laws requires courts whose orders are respected. This is true even if one does not view the Rule of Law as the rule of courts. But additionally, what is required, as Dicey said, is a “spirit of legality” which should characterize the relationship between individuals and courts. On this account, the blockades in both Ontario and BC should be shut down, because they fail to respect valid court orders that are contributing to a public order. Canada’s Rule of Law as it is can support no other result.

But second, that cannot, and should not, be the end of the matter. Indeed, the blockades are showing why the current framework of Aboriginal rights vis-à-vis the Canadian state is so lacking. The Rule of Law is not only a fundamental postulate of our law, but it is also an aspirational ideal. There may be ways in which our constitutional order can move towards the ideal of the Rule of Law. On this front, it may be the case that the Rule of Law as currently understood in Canada is not applicable to Indigenous peoples and their systems of government. In other words, we may require an approach which recognizes distinctive Indigenous self-government, as a constitutional matter.  I have made this argument before, but wish to renew it here: Canada’s Constitution can and should recognize distinctive Indigenous self-government.

I write this with the full knowledge that I am not an Indigenous person. And also, I know nothing of the particular Indigenous law that applies in this situation. I am merely intervening in the debate to provide some clarity around what the “rule of law” might mean in this context.

***

There are different ways we can understand the Rule of Law. Each of these three understandings set out above are being used interchangeably in the debate over whether the blockades are proper, on one hand, or legal on another hand.

The first understanding of the Rule of Law, the “thin” understanding, largely associates the Rule of Law with the rule of courts. That is, on this account, a court injunction duly issued should be respected. And in this case, there have been injunctions. The British Columbia Supreme Court issued an injunction in late 2018, which was later expanded in 2019 to include emerging blockades.  Further, under this heading of the Rule of Law, a court in Ontario issued a valid injunction against blockades in Ontario on Saturday, February 15.

It goes without saying that the Rule of Law might not exhaustively mean the rule of courts, but that courts are still required in a system of the Rule of Law. This is because there must be some tribunal that can handle competing claims, especially in the context of property. Even if one accepts that Indigenous peoples have their own system of law operating within Canada, courts will be required to handle conflict of laws or jurisdictional contests. The ordinary courts, as Dicey called them, are central to an ordered society in which people can plan their affairs. If that is the case, the law should be respected, as interpreted by courts.

The Supreme Court of Canada has largely accepted this notion of order as central to a society governed by law. In the Quebec Secession Reference, the Supreme Court noted that the “rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs” (Quebec Secession Reference, at para 70). What is required is an “actual order of positive laws which preserves and embodies the more general principle of normative order” (Manitoba Language Reference, at 749). As an analogue to this general principle of normative order, there needs to be arbiters of the law in order to ensure that state action is not arbitrary in nature, itself an aspect of the Rule of Law (see Quebec Secession Reference, at para 70). Courts are the typical arbiters—the regulators, so to speak—of the relationship between individual and state. In order for the normative order to be upheld, then, a respect for courts are required.

This is true even if one takes a more substantive or “thick” conception of the Rule of Law. If one accepts, as some do, that the Rule of Law can encompass substantive policy aims like the promotion of human rights, one still requires the ordinary courts to recognize these rights as a matter of judicial interpretation.  As such, the thick conception of the Rule of Law is parasitic on the thin conception. And all require that the judiciary be respected, and that court orders be followed. This does not bode well for the propriety of the blockades.

But one might take the argument based on the Rule of Law further, by arguing that the Canadian Rule of Law includes Indigenous rights recognized under law. One might make the argument that the Wet’suwet’en have existing Indigenous title to the land on which the Coastal GasLink pipeline will be built. Indeed, in Delgamuukw, the Wet’suwet’en were at the centre of the controversy. There, the Supreme Court outlined its approach to handling claims based on Indigenous title. What it made clear was that Indigenous title was a sui generis sort of right, arising before the assertion of British sovereignty (Delgamuukw, at para 114). However, because of a technicality in the pleadings, the Wet’suwet’en were unable to receive a declaration that they held Indigenous title in the land (Delgamuukw, at para 76) . As such, while the Wet’suwet’en may have a valid claim, it has yet to be proven, and can only be accommodated within the context of the duty to consult, a sort of antecedent framework that preserves Indigenous claims that have yet to be proven (see Tsilqho’tin, at para 2).

While there are some questions in this case about who the proper “consultees” were, the bottom line is that Wet’suewet’en title has never been proven over the lands in question. And in the context of a Canadian Rule of Law argument based on Aboriginal title, proof is the centrepiece (see the test for demonstrating Indigenous title, in Delgamuukw at para 143). A blockade relying on these rights must respect their fundamentally judicial nature, in terms of Canadian law: they are recognized by courts, even if they predate the assertion of British sovereignty. One using an argument based on Aboriginal rights recognized under Canadian law, then, cannot justify the blockades on this ground.

***

Thus far, I have reviewed the Canadian-centric way of understanding the Rule of Law. Under these two conceptions, the blockades should come down. But to my mind, this point is insufficient and incomplete.  That is because the Canadian version of the Rule of Law may not be cognizable to Indigenous peoples. Indeed, the blockades reveal that there is a problem of much bigger proportions: the true compatibility of Indigenous systems of law in relation to Canadian constitutional law.  That is the real issue on which the blockades shed light.

I am not an expert on the Wet’suwet’en system of law, but Indigenous peoples may make the claim that Canadian court orders do not apply to them, because they are a sovereign nation. It is true that the Supreme Court of Canada has recognized, in the context of Canadian-Aboriginal law, that Indigenous peoples have pre-existing systems of law and governance that predated conquest. And it has been widely recognized, as Chief Justice McLachlin once said, that settlers committed “cultural genocide” against Indigenous peoples. All of this provides necessary context to the acts of the blockaders.

But, because of the failure of the Charlottetown Accord, Indigenous peoples do not have inherent jurisdiction recognized in the Canadian Constitution. That Accord would have recognized the inherent nature of Indigenous self-government, and made it so that the right to self-government is not contingent on negotiations. Indeed, the right to self-government would have included the right to “develop and maintain and strengthen their relationship with their lands, waters and environment.” This is a fundamental difference from the status quo. Currently, Indigenous rights  must be proven in court to be recognized. The judicial system is thus the locus of Indigenous rights, under s.35 of the Constitution Act, 1982. But inherent jurisdiction, recognized as a constitutional matter, would mean that Indigenous peoples have always had a constitutional basis or jurisdiction to act over matters within their remit. This turns the matter into one of jurisdiction. Inherent jurisdiction may mean that Canadian courts have jurisdiction to issue court orders, but the analysis would be different; instead of proving a “right”, Indigenous peoples would have a recognition of their jurisdiction, and the analysis would be akin to a federalism analysis. As a matter of constitutional amendment, this would put Indigenous systems of law on the same playing field as Canadian law, turning disputes over rights into disputes over jurisdiction. We should encourage our political actors to solve the disputes between the Canadian government and Indigenous groups through constitutional and political means, not only to provide clarity to these sorts of disputes, but to recognize the legal fact of existing Indigenous systems of government.

Questions regarding proof of Indigenous rights and title are currently difficult to resolve under the status quo of s.35 litigation. This is because courts are ill-suited to deal with the essentially political and jurisdictional task of recognizing distincitve orders of government and the lands on which they sit. Questions of proof are subject to years of litigation in court, putting dire pressures on Indigenous groups and government resources. One only need look at the Tsil’qhotin litigation for proof-positive of this point.

Additionally, this solution is not anathema to the Rule of Law. As the Court noted in the Quebec Secession Reference, constitutionalism and the Rule of Law are closely related principles. Once the Constitution recognizes distinctive Indigenous self-government, it becomes a matter of constitutional law, similar to the jurisdiction of the provinces represented in s.92 of the Constitution Act, 1867.

Some people may view this solution as a pipe dream. It is only so because our politicians lack moral courage. But in terms of the legal analysis, Canadian courts have the tools to manage conflicts of law and jurisdictional wrangling. Our federalism has been built on such wrangling for over 150 years, with provinces and federal government vying for power based on their constitutionally-delegated powers. Courts have developed the tools to manage jurisdictional disputes. Those same tools could be applied in this context as well. And of course, there are nuances to be worked out with this solution, as well. While Constitutions can set frameworks for government and provide rules for interjurisdictional disputes, land and resources will continue to be hot button issues subject to negotiations againt the backdrop of constitutional guarantees.

But, for the present moment, courts will need to exist and be respected. An existing system of Indigenous law, without more, cannot justify the disobeying of a court order simply by virtue of its existence. For now, so long as Indigenous peoples fall under the jurisdiction of Canadian courts, the blockades cannot stand as a matter of the Rule of Law. But this does not mean that Canadians, and Canadian leaders, should not bear the onus to complicate our idea of the Rule of Law. We should be looking to recognize inherent Indigenous jurisdiction over matters as an analogue of our own Rule of Law, just as we do in the context of federalism.

The bottom line: the blockades, under any conception of the Rule of Law, cannot stand in the face of a court order. But the blockades do illustrate a larger issue. As I have written before, Canadian understandings of the Rule of Law have to evolve to take account of Indigenous law. Surely, given our federal structure, this is a possibility.

Immuring Dicey's Ghost

The Senate Reform Reference and constitutional conventions

In its opinion in Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, the Supreme Court notoriously relied on a metaphor that had previously popped up, but played no real role, in its jurisprudence: “constitutional architecture”. Notably, the court was of the view that moves towards an effectively elected Senate would modify the constitution’s architecture, and such modifications required formal amendment under Part V of the Constitution Act, 1982, just as much as changes to the explicit provisions of the constitution’s text. Yet the court’s explanations of just what this architecture was were short and cryptic, and haven’t been elaborated upon ― judicially ― in the intervening years.

To fill in this void, an academic cottage industry sprang up to speculate about the meaning of the architectural metaphor and about what other constitutional reforms it might block. For example, Kate Glover Berger suggested that “action taken to dismantle or undermine the administrative state could be deemed unconstitutional” because the administrative state is built into the architecture of the Canadian constitution. Lorne Neudorf invoked architecture in the service of an argument to the effect that courts can read down or indeed invalidate vague delegations of legislative power to the executive branch. Michael Pal speculated that the first-past-the-post electoral system might be entrenched as part of the constitutional architecture.

All this while, I have been working on my own contribution to this genre, called “Immuring Dicey’s Ghost: The Senate Reform Reference and Constitutional Conventions”, which is finally going to be published by the Ottawa Law Review later this year. In a nutshell, I argue that “architecture” is really just code for “conventions” ― those supposedly non-legal but fundamentally important constitutional rules, arising out of political practice and morality, which courts have long said they could not possibly enforce. And I argue, further, that the Supreme Court should have squarely addressed the fact that it was relying on conventions, instead of playing confusing rhetorical games.

A draft is now available, for your reading pleasure. Here is the abstract:

Although the metaphor of “constitutional architecture” had appeared in some previous opinions of the Supreme Court of Canada, it took on a new importance in Reference re Senate Reform, where the Court held that amendments to constitutional architecture had to comply with the requirements of Part V of the Constitution Act, 1982. However, the Court provided very little guidance as to the scope of this entrenched “architecture”. As a result, the metaphor’s meaning and implications have been the subject of considerable scholarly debate.

This article contributes to this debate by arguing that “constitutional architecture” incorporates (some) constitutional conventions. It further takes the position that, instead of relying on this confusing metaphor, the Court should have candidly admitted that conventions were central to its decision by acknowledging that the text of the Canadian constitution cannot be fully understood without reference to conventions.

Part I reviews, first, the Supreme Court’s opinions in which the notion of constitutional “architecture” has been mentioned, focusing on this concept’s place in the Senate Reform Reference, and then some of the scholarly commentary that has endeavoured to make sense of it. Part II sets out my own view that constitutional “architecture”, as this concept is used by the Supreme Court, is concerned primarily if not exclusively with constitutional conventions. Part III considers whether it is possible to determine precisely which conventions are encompassed by the notion of constitutional architecture, examining the conventions’ importance, and their relationship to the constitutional text as possible criteria, and concluding that neither allows precise determinations. Part IV sets out what would in my view have been a less confusing way of addressing the significance of conventions to the questions the Court was facing in the Senate Reform Reference: frankly recognizing that conventions were relevant to the interpretation of the applicable constitutional texts. Part V examines two objections to the incorporation of conventions (via “architecture” or through interpretation) into the realm of constitutional law, arguing that this incorporation is not illegitimate, and that it will not stultify the constitution’s development. Part VI concludes with an appeal for greater transparency on the part of the Supreme Court.

The last thing I mention here is that this paper begins the project of bringing together two subjects on which I had mostly been writing separately: constitutional conventions on the one hand, and originalism on the other. As explained here, Canadian originalism has to grapple with the fact that some of our most important constitutional rules are unwritten. This paper, although it doesn’t make a case for originalism, begins to outline what that an originalist approach to conventions will look like.

A Matter of Unwritten Principle

Unwritten constitutional principles have an important, and rightful, place in Canadian constitutional law

The most striking thing, to me anyway, about the symposium on dissents from Supreme Court judgments that this blog hosted over the holidays was the popularity of Justice LaForest’s dissent in the Provincial Judges Reference, [1997] 3 SCR 3. No fewer than five of our contributors mentioned it as one of their top three: Dwight Newman, Emmett Macfarlane, Jonathan Maryniuk, Howard Kislowicz (although he cautions that he might not actually agree with Justice LaForest), and Bruce Ryder. They have all praise Justice LaForest for emphasizing the importance of constitutional text, as opposed to the unwritten, extra-textual “underlying principles” on which the majority relied. Agreeing with them, albeit relying on a different dissent, that of Justice Rothstein in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31 was Asher Honickman.

This degree of agreement among an ideologically and professionally diverse group sets off my contrarian instincts. So in this post I want to take issue with one aspect of Justice LaForest’s dissent, and with the esteemed scholars who are extolling it. I want to argue that unwritten principles have an important place in Canadian constitutional law, both as a descriptive and as a normative matter. To be clear, it’s not that I have come to like, or even regard as defensible, the majority opinion in the Provincial Judges Reference. Indeed, I stand by my assessment of it as one of the Supreme Court’s worst decisions! But my beef with it was, and is, not simply that it relied on unwritten principles, but that in doing so it disregarded clear, on-point constitutional text, and further that I do not think “it plausible that complex institutional arrangements”―such as independent commissions to determine judicial pay―”are constitutionally required if the constitution says nothing about them”. In other circumstances, reliance on unwritten principles can be much more justifiable.


Justice LaForest’s attack on judicial reliance on underlying principles starts from his understanding of what makes judicial review of legislation legitimate:

The ability to nullify the laws of democratically elected representatives derives its legitimacy from a super-legislative source: the text of the Constitution.  This foundational document (in Canada, a series of documents) expresses the desire of the people to limit the power of legislatures in certain specified ways.  [314]

In a democratic society, judicial review is tolerable so long, but only so long, as it amounts to nothing more than the enforcement of choices democratically made through the process of constitutional entrenchment and amendment. Its “legitimacy is imperiled … when courts attempt to limit the power of legislatures without recourse to express textual authority”. [316] “Textual authority” is be all, end all of judicial review:

The express provisions of the Constitution are not, as the Chief Justice contends, “elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867” [107].  On the contrary, they are the Constitution.  To assert otherwise is to subvert the democratic foundation of judicial review. [319; emphasis in the original]

This paean to democracy and to textualism as a means of giving effect to democracy is appealing. As many of the contributors to the dissents symposium pointed out, it seems to have carried the day in in British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473, where Justice Major, writing for the unanimous court, proclaimed that

in a constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box. [66]

This was, I am afraid, a crassly cynical statement, considering that the invitation to resort to the protection of the ballot box against retroactive legislation was being extended to non-voters ― to corporations, and to (understandably) very unpopular corporations at that. But, like Justice LaForest’s, this argument has undeniable rhetorical appeal.


Yet it is, in my view, a mistake to claim that it has prevailed as a matter of positive law. Before getting to its current status, let me point out that the idea that underlying constitutional principles exist and constrain government goes back at least to Justice Martland and Ritchie’s powerful dissent on the legal question in the Patriation Reference, [1981] 1 SCR 753. (It is at least arguable that it actually goes back much further, to Roncarelli v Duplessis, [1959] SCR 121 and indeed Attorney General of Nova Scotia v Attorney General of Canada, [1951] SCR 31, even the Labour Conventions Reference, [1937] AC 326, [1937] 1 DLR 673, but I will ignore these cases here.)

The key passage in Justices Martland and Ritchie’s Patriation Reference dissent is the following:

It can fairly be said … that the dominant principle of Canadian constitutional law is federalism. The implications of that principle are clear. Each level of government should not be permitted to encroach on the other, either directly or indirectly. The political compromise achieved as a result of the Quebec and London Conferences preceding the passage of the B.N.A. Act would be dissolved unless there were substantive and effec­tive limits on unconstitutional action. (821)

From there, it was not such a large step to say that these limits on unconstitutional action could, and must be, enforced by the courts, even if they were not spelt out in the constitutional text.

A different unwritten principle, that of the Rule of Law, was also crucial in the Reference re Manitoba Language Rights, [1985] 1 SCR 721. This is well known. Equally well known is the Supreme Court’s reliance on underlying constitutional principles, four of them, in Reference re Secession of Quebec, [1998] 2 SCR 217, to try to construct a legal ― although seemingly not an enforceable ― framework for dealing with separatism. (The Court referred to Justices Martland and Ritchie’s Patriation Reference dissent, although it did not acknowledge that it was, in fact, citing to a dissenting opinion!) Less famous, and not employing the rhetoric of unwritten principles, but relying on this idea in substance, are the cases of Amax Potash Ltd v Saskatchewan, [1977] 2 SCR 576, and Air Canada v British Columbia (Attorney-General), [1986] 2 SCR 539. In both of them, the Supreme Court held, without relying on any specific written constitutional provision, that provinces could not prevent litigants from arguing that provincial legislation was unconstitutional, because this would undermine the Canadian constitutional order as one in which government powers are constrained and limited.

Did the Imperial Tobacco case repudiate all this? I don’t think so. For one thing, the Supreme Court was less categorical there than the passage most often quoted, including above, would seem to suggest. Justice Major did not reject the argument based on the Rule of Law principle out of hand. He reviewed the previous cases where the principle had been invoked (though not Amax Potash and Air Canada), and concluded that it was a relatively narrow one and did not “speak directly to the terms of legislation”. [59] Yet “[t]his does not mean that the rule of law as described by this Court has no normative force”. [60] According to Justice Major, the Rule of Law mostly constrains the executive and the judiciary rather than legislatures but, at least as to them, it does have a real content.

The Supreme Court’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, however, embraces the Rule of Law principle even more clearly and, crucially, as a constraint on the legislative power. According to the Vavilov majority,

Where a court reviews the merits of an administrative decision … the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. [23; emphasis added]

The majority goes on to specify that “[t]he starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness”, [23] but “respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions”, [53] legislative intent notwithstanding. With Vavilov, unwritten principles, especially the Rule of Law, are back as a fully operative, and crucially important, source of our constitutional law, if indeed they had ever been displaced from that position. While Vavilov does not invoke them to explicitly invalidate legislation, it makes quite clear that legislation that conflicts with them will not be given effect.


Is this something to be regretted though? Was Justice LaForest right that judicial review in a democracy must only ever be textualist judicial review? I don’t think so. As Stephen Sachs explains in an important essay (which I discussed here), “[n]ot all law is written law, and not every society needs to rely on it in the same way”. (164) Some societies ― including democratic societies ― may well make the choice to have unwritten law as part of their binding constitutional constraints. They might write down some constitutional rules without thereby excluding others, and then a single-minded focus on constitutional text as exhaustive of constitutional law would means that “we could be reading the text correctly while utterly misunderstanding the legal role it was to play”. (165) The question is whether Canada is that kind of society or the one envisioned by Justice LaForest.

Actually, here is another question, which might help answer the previous one: are there any societies of the kind described by Justice LaForest, where the constitution, in the sense of the supreme law, is nothing more and nothing less than the sum of written textual provisions? In the United States, for example, constitutional law includes unwritten principles (though they are not labelled in exactly this way), especially separation of powers, but also federalism. The Australian constitution has been held to incorporate implied freedoms. There might be examples to support Justice LaForest’s views, of course, but, to say the least, these views aren’t a self-evidently correct description of the concept of constitutionalism in a democratic society (which is, I think, how Justice LaForest means them). Nor are they an obviously correct interpretation of constitutionalism in Canada, given the numerous cases referred to above.

To repeat, this is not to defend the majority decision in the Provincial Judges Reference, or even to say that the outcome of Imperial Tobacco was wrong (though Justice Major’s disdainful characterisation of unwritten principles was). What arguably makes these cases different from the likes of Amax Potash, the Patriation and Secession Reference, and Vavilov, is that they involved invocations of principles to run around fairly specific textual choices. Judicial independence is protected to a greater extent, and retroactive legislation proscribed, in the context of criminal law, but not in the civil law. Right or wrong, this is the sort of “political compromise” to which Justices Martland and Ritchie referred, and courts must be careful not to “dissolve” it.

But, by the same token, they must not allow the political compromises that made Canada into a federal state, bound by a supreme constitution, and one where public authority is constrained by the Rule of Law, to be dissolved either. No doubt it is possible to take arguments based on constitutional principles too far, just as it is possible to misread or twist the meaning of constitutional text. But this is not a reason for peremptorily rejecting these arguments, let alone claiming that they are illegitimate in our constitutional order. Justice LaForest was wrong to suggest otherwise in the Provincial Judges Reference, and so, respectfully, are those who extol his dissent today.

A Tale of Two Scandals

Partisanship is undermining political accountability and constitutional checks and balances

This post is co-written with Mark Mancini

Here some harsh—yet entirely justified—words about unconstitutional actions of the executive branch of government:

[N]ot only were there no clear means of constitutional restraint, there was obvious intent to accomplish the scheme well outside the public eye. The scheme was blocked by the unlikely combination of whistleblowing and informal political pressure. Even worse, a defiant [executive] refuses to admit to any wrongdoing at all—even calling the key piece of evidence … a “perfect” call. It was essentially our good fortune (through the courage of the whistleblower) that the [voters] have access to partial information about the scandal so they can factor it into their electoral calculus. What’s the constitutional check for misconduct of that kind? Citizens can’t run to court to block this particular abuse of … power. We can’t even count on public knowledge for public accountability. The [executive] is still actively holding back material evidence. (Paragraph break omitted)

And here’s a trick question: what scandal is being described here? Is it Donald Trump’s attempt to use aid granted by Congress to suborn a Ukrainian announcement of an investigation into a political rival? Or is it Justin Trudeau’s attempt to have a prosecution of a corrupt engineering company stopped from going to trial to avoid financial difficulties for that company―and political embarrassment in Québec? The answer is, technically, that it’s former. The quotation is from the January 22 instalment of “French Press”, the thoughtful newsletter written by David French for The Dispatch. (While we’re at it, may we recommend Advisory Opinions, an equally thoughtful podcast Mr. French co-hosts with Sarah Isgur?) But, by our lights, Mr. French might as well have been writing about l’Affaire SNC Lavalin.

There too the effective head of the executive branch and his political henchmen sought to pervert the course of the execution of the law in their partisan interest. There too, they were discomfited by the unlikely decision of an official to blow the whistle instead of doing their bidding, and the resulting political pressure. There too, this political pressure was enough to arrest the illicit scheme itself, but not to bring about any real acknowledgement of wrongdoing; on the contrary, the master of the executive branch made a great show of having acted in the public interest. There too only partial information was allowed to filter out into the public domain through the medium of legislative hearings, and claims of executive privilege were raised to prevent key witnesses from speaking, or at least speaking fully. There too the courts would have been of no avail in any attempt to get to the bottom of what happened. The similarities between the two scandals are striking.

There are also some meaningful differences, to be sure. For one thing, the person who stood of in the way of the Trudeau government’s scheme to save SNC Lavalin was none other than the Attorney-General. No such high-ranking official has stood up to the Trump administration’s plans. For another, some heads have rolled as a consequence of l’Affaire SNC Lavalin: those of the Prime Minister’s principal secretary (albeit that he made a comeback only months later) and of the head of the civil service. Whether even such imperfect accountability is visited on the Trump administration is, at present, very doubtful. Another difference: obstructive as they have been, the members of Mr. Trudeau’s party in Parliament didn’t stonewall the investigation into his government’s misbehaviour to anything like the same degree as the members of Mr. Trump’s in Congress.

Still, this would be thin gruel for customary Canadian self-congratulation. In response to arguments to the effect that, since the executive’s shady plans were not allowed to come to pass, our constitutional system is working more or less as it should, we expressed here the

worry is that our constitutional set-up fails to adequately establish this connection; that it does not guarantee that ambition will counteract instead of abetting ambition; and it relies too much on human character being, if not angelic, then unusually virtuous.

Our constitutional system, we suggested, lacks the checks and balances that would ensure, or at least make it sufficiently likely, that a lawless executive could not get away with it. In particular, we were skeptical about the ability of the rules and conventions surrounding the accountability of the executive to Parliament to do this work.

Although we did not say much about this in that post, an important reason for this is partisanship, particularly the strong form of party discipline that characterizes the Canadian system. A majority party lines up behind the government formed by its leader, and has every incentive to close ranks, even at the cost of public-serving accountability. This is the inherent flaw of responsible government, which means that the ministry must have the support of a parliamentary majority (or at least an unchallenged plurality). In theory, this subordinates the executive to Parliament. In practice, the power dynamic is more often than not precisely the opposite. Of course, the obverse of this flaw is the executive’s ability to govern effectively and to implement its legislative agenda. All constitutional arrangements come with trade-offs. The question is not whether we can avoid trade-offs altogether, but whether we have made the right ones.

What is disheartening is that in the United States, whose constitutional framers made different trade-offs from ours, and where a different ― and seemingly more robust ― set of checks and balances was put in place to contain the executive, the same problem seems to have nullified those checks and balances. Mr. French writes that “[w]hen presidents work in secret to substitute their personal priorities for the public good … impeachment is the difference between punishment and permission when a president abuses his power while conducting affairs of state”. Yet if the president’s partisan allies refuse to even recognize the legitimacy of this procedure, they make him (or eventually her) just as unaccountable as a Canadian Prime Minister able to command a Parliamentary majority.   

This is not necessarily to disparage anything and everything about political partisanship. A case can be made for the proposition that Mr. Trump’s election to the presidency is the consequence of weak parties as much as of strong partisanship. But it should be clear by now that adjusting our constitutional systems to strong, and perhaps hypertrophied, partisanship is a challenge that a variety of democratic polities must face, and quickly. Our political scandals sound similar because our constitutional weaknesses are.

Lectures Introductory

My notes on the Constitutional Law of New Zealand, for your enjoyment

I taught the constitutional law of New Zealand every year since taking up my current job at the Auckland University of Technology in 2016. For a number of reasons, one of which was the absence until last year of a suitable textbook, I prepared extensive lecture notes ― in effect, an ersatz textbook ― that I distributed to my students. These run to a total of 120 typed pages, and just over 70,000 words. Now, for the foreseeable future, I will not be using them ― I will be teaching administrative law instead. So I thought this was a good moment for posting the whole thing online. Here it is, in case you are looking for an introduction to New Zealand’s constitutional system ― one that is, I hope, accessible and useful, despite its obvious limitations and flaws.

A word on those: the notes weren’t meant to be comprehensive. Their coverage is to an extent a function of the number of lectures I had in a semester, and of my (rather optimistic) beliefs about what I might cover in a lecture. Some important topics (like the separation of powers and the common law) are covered very little; others (like the Treaty of Waitangi and arguments for and against an entrenched constitution), insufficiently. Moreover, I tried to pitch the notes at a level that could be processed by students very early in their study of the law. Inevitably, this meant simplifying certain things, perhaps more, in some cases, than would have been ideal.

I hope that, despite their shortcomings, these materials will be useful or interesting to some readers. The lectures cover three main themes. The first two deal with constitutional fundamentals, including the nature, history, and sources of New Zealand’s constitution. The next five explain the structure of government, with two lectures each devoted to the executive and the legislature, and one to the judiciary. The last four address the limits on government power (primarily, the New Zealand Bill of Rights Act, the Treaty of Waitangi, and the Rule of Law principle). The notes mostly present the law as it is, but readers of this blog will not be surprised that I could not refrain from editorializing from time to time. My commentary and critique will, I hope, be easily identifiable as such.

This should be obvious, but in case it needs saying: I’d be delighted for anyone to use these materials as a resource or teaching aid. Do tell me if you find them useful!

Bill 21 and the Search for True Religious Neutrality

The saga of Quebec’s Bill 21, An Act respecting the laicity of the State, trudges on. In December, the Quebec Court of Appeal upheld a Superior Court decision declining to suspend certain parts of the law – which prohibits front-line public employees from displaying overt religious symbols while on duty – until a full application for judicial review pursuant to the Charter of Rights and Freedoms could be heard. The applicants who sought the suspension claim that Bill 21 violates (among other things) the guarantees of freedom of religion and the right to equality respectively protected by sections 2(a) and 15 of the Charter. An appeal to the Supreme Court of Canada is expected to be heard on the suspension issue. Meanwhile, the Superior Court has ordered that three other Charter challenges which have been launched in the interim be heard at the same time as the original application for judicial review.

The Quebec government insists that Bill 21 is grounded in the constitutional principle of the religious neutrality of the state. Such descriptions, however, fundamentally misstate what religious neutrality ought to require of state actors. At its core, Bill 21 is inconsistent with the trajectory of religious neutrality in Canadian public law. Granted, this principle has been subject to conflicting scholarly and judicial visions of what the state’s constitutional obligations are vis-à-vis religion. Yet as I argue in this post, religious neutrality, holistically and purposively understood, ensures that the state treats religious adherents fairly by preserving equal space for their participation in public life.

Canadian conceptions of religious neutrality tend to fall along a spectrum. At one end we have those who see religious neutrality as essentially privatizing all aspects of religious belief. We might describe this as closed religious neutrality, to borrow language used by Janet Epp Buckingham. In its most extreme form, this type of neutrality seeks to purge any and all expressions of religious conviction from the public square. Only secular or irreligious worldviews can inform public discourse, and the state is prevented from even indirectly facilitating religious expression. Richard Moon describes this approach to religious neutrality as essentially relegating matters of religious faith to the private sphere, subject to a view that “[s]tate neutrality is possible only if religion can be treated as simply a private matter — separable from the civic concerns addressed by the state” (para 4).

On the other end of the spectrum we have what I call inclusive religious neutrality. Unlike closed approaches to religious neutrality, inclusive religious neutrality recognizes that the state is only one of numerous actors in the public square and has no jurisdiction to exclude religious perspectives from public life. Under this conception of religious neutrality, the state is permitted and even encouraged to preserve and create positive public space for religious adherents (such as, for example, by subsidizing charitable religious activities which pursue a common or public good) so long as it does so in an even-handed manner and does not privilege one religious group to the exclusion of others.

Inclusive religious neutrality affirms that the state is not competent to arbitrate religious debates, even where these disputes have public implications. This is subject to the obvious caveat that the state will always have a vested interested in curbing or discouraging objectively harmful religious practices. But beyond this otherwise narrow exception, it is rarely appropriate for the state to act in a way that has the effect of promoting or stigmatizing certain religious beliefs or practices. Inclusive religious neutrality is thus reinforced by equality-enhancing values which recognize that the state’s uneven support for certain beliefs suggests that those who do not adhere to these beliefs are less deserving of public citizenship.

Although not necessarily identified as such, the constitutional commitment to equality was one of the driving forces behind Chief Justice Brian Dickson’s oft-quoted decision in R v Big M Drug Ltd Mart, [1985] 1 SCR 295 [“Big M”], the first Charter-era ruling from the Supreme Court on freedom of religion. While the Chief Justice recognized that the guarantee of freedom of religion is grounded in principles of individual liberty, his reasons also highlighted why explicitly religious laws (in that case legislation requiring businesses to observe the Christian Sabbath) will run afoul of the Charter, noting that the “theological content of … legislation remains as a subtle and constant reminder to religious minorities within the country of their differences with, and alienation from, the dominant religious culture” (para 97).

On this point, Bruce Ryder has written at length about how the Canadian constitutional commitment to substantive equality intersects with the right of religious adherents to participate in public life as equal citizens. As Ryder explains:

[T]he Canadian conception of equal religious citizenship is not confined to a private or religious sphere of belief, worship and practice. Instead, a religious person’s faith is understood as a fundamental aspect of his or her identity that pervades all aspects of life. … They have a right to participate equally in the various dimensions of public life without abandoning the beliefs and practices their faith requires them to observe. In contrast, some other liberal democracies are more likely to insist that citizens participate in public institutions on terms that conform to the state promotion of secularism. On this view, equal religious citizenship is confined to the private sphere, and must give way to the secular requirements of public citizenship. (2)

Inclusive religious neutrality, as I have described it here, is inextricably tied to Ryder’s articulation of the concept of equal religious citizenship. Religious neutrality presumes that religion is no more or less immutable than the other grounds of discrimination enumerated in section 15 of the Charter. This is to say that religion is “constructively immutable”, which means that it is just as impermissible for the state to discriminate against someone because of their religious beliefs or identity as it is to discriminate on the basis of immutable grounds such as race or gender. While this point may seem trite, laws and policies like Bill 21 are a sobering reminder of the tendency of many state actors to treat religious belief as something which can be readily detached from a person’s core identity.

It should be clear by now that religious neutrality is more than a derivative duty imposed on the state by some combination of sections 2(a) and 15 of the Charter. Indeed, it would be a critical mistake to conclude that religious neutrality begins and ends with the text of the Constitution. The dyadic guarantees of religious freedom and religious equality, as the Supreme Court affirmed in Saumur v Quebec (City), [1953] 2 SCR 299 [“Saumur”], are “a fundamental principle of our civil polity” (342). Religious neutrality is thus a pre-existing, foundational and enforceable legal principle which explains why the Charter protects religious adherents. Without a proper understanding of what religious neutrality demands, there is no principled reason why the state should be prevented from pursing an ecclesiastical agenda or discriminating against religious adherents.

Granted, the very idea of religious neutrality, whether closed or inclusive, is ultimately a conceit. From a philosophical perspective, policy-making is a fundamentally normative undertaking. Whenever the state implements or pursues a given policy – no matter how benign – it is making a statement about what society ought to look like. Such declarations are informed by assumptions about what morality and justice demand. In this way, Benjamin Berger explains, “religion will have much to say about matters of broad public policy import”, in that the state’s adoption “of positions on such matters will … involve position-taking on matters of deep religious interest” (772).

When viewed from an inclusive perspective, however, the state’s duty of religious neutrality does not bestow the state with a “secularizing mission” – quite the opposite. Secularism, like all worldviews, is built on assumptions about divinity, society and what it means to be human. In other words, secularism is itself a religion. Although this may seem counterintuitive, religion, functionally defined, does not require faith in a higher deity or even the supernatural. As American political theologian Jonathan Leeman writes, “any and every position that a person might adopt in the political sphere relies upon a certain conception of human beings, their rights and their obligations toward one another, creation and God” (81). In this sense, Leeman explains, religion “determines … the worldview lens through which we come to hold our political commitments.” (Id) Thus, everyone is, to some degree, religious. This is why an inclusive approach to religious neutrality seeks to ensure that the state does not directly or indirectly support irreligious worldviews over religious ones. If irreligiosity is just another form of religion, then official state support for irreligion will favour some religious adherents (namely secularists, atheists and agonistics) over others.

Since the advent of the Charter, the Supreme Court has trended toward the inclusive conception of religious neutrality which I have outlined above. As noted, Dickson CJC’s reasons in Big M prevent majoritarian religions from excluding minority religious groups from public life. In the decades since this landmark ruling, the Supreme Court has articulated with increasing precision what the state’s duty of religious neutrality entails. The Court’s majority ruling in S.L. v Commission scolaire des Chênes, 2012 SCC 7 [“S.L.”] is particularly instructive, in which Deschamps J found that neutrality is realized when “the state neither favours nor disfavours any particular religious belief, that is, when it shows respect for all postures toward religion, including that of having no religious beliefs whatsoever” (para 32).

Justice Gascon’s majority reasons in the Supreme Court’s subsequent ruling in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 take Deschamps J’s observations from S.L. even further. A truly neutral public space, Gascon J noted, “does not mean the homogenization of private players in that space” since “[n]eutrality is required of institutions and the state, not individuals” (para 74). Religious neutrality thus protects the “freedom and dignity” of believers and non-believers alike, and in doing so promotes and enhances Canadian diversity (Id).

Bill 21 is a quintessential example of how a closed approach to religious neutrality excludes religious minorities from the full benefits of public citizenship, contrary to Gascon J’s vision of “a neutral public space that is free of discrimination and in which true freedom to believe or not believe is enjoyed by everyone equally” (Id). Despite what its proponents may argue, Bill 21 does not preserve a religiously neutral public space, but instead forces front-line public employees to give the appearance of irreligiosity to the extent that they want to keep their jobs. The Quebec government’s decree that these employees hide their faith-based identities while undertaking their public duties is actually an insistence that they adopt completely alien religious identities if they are to participate fully in public life. Such a policy is anathema to an inclusive conception of religious neutrality.

None of this is to say that the Charter challenges which have been launched against Bill 21 are certain or even likely to succeed. The Quebec government’s invocation of the section 33 override – allowing Bill 21 to operate notwithstanding violations of sections 2(a) and 15 of the Charter – makes the outcome of any application for judicial review uncertain. Yet as others (including on this blog) have observed, there are a number of compelling arguments to be made that section 33 does not insulate Bill 21 against infringements of section 28 (i.e. the equal application of the Charter to men and women) or violations of the federal division of legislative powers.

In a similar vein, a strong argument can be made that section 33 cannot be invoked to insulate Bill 21 against violations of religious neutrality, since this constitutional duty pre-dates and exists independent of the Charter. This is not to say that religious neutrality is an unwritten constitutional principle, per se, since unwritten principles cannot be used to fill in perceived gaps in the rights and freedoms guaranteed by the Charter. The unwritten constitutional principles which have been recognized by the Supreme Court (namely federalism, democracy, constitutionalism and the rule of law, and the protection of minorities) differ from religious neutrality in that the latter is grounded in specific pre-Charter constitutional protections which directly inform enforceable Charter guarantees. To use section 33 to override the state’s duty of religious neutrality would be, in the language of Saumur, to circumvent “an admitted principle” of Canadian public law (342). Advocates for the rights of religious minorities can only hope the courts will agree.

For a more thorough examination of the development of the principle of religious neutrality in Canadian law, see my paper “Inclusive Religious Neutrality: Rearticulating the Relationship Between Sections 2(a) and 15 of the Charter”, (2019) 91 SCLR (2d) 219.

CBC v Ferrier, 2019 ONCA 1025: Considering Consideration of the Charter

Part II of a two-part series on Doré.

 

Yesterday, I wrote about why Doré was under stress in the aftermath of Vavilov. Today, I write about a new case out of the Court of Appeal for Ontario (per Sharpe JA) that demonstrates why Vavilov means that Doré is sitting in a tense situation. While Ferrier should not be taken as the death knell for Doré—or even an indication of such—it is an indication of the tension that Vavilov arguably introduced into the world of Doré.

In Canadian Broadcasting Corp v Ferrier, the question involved “the openness of police board hearings” [1]. Under the Police Services Act, s.35(4), subject to certain exceptions, “police services board hearings are presumptively open to the public” [3]. In other words, section 35(4) sets out the test for whether a hearing should be closed.  In this case, the relevant decision-maker decided that the hearing should be closed. The CBC and others argued that the decision-maker “failed to pay adequate attention to the s.2(b) Charter right to freedom of expression by failing to require an open hearing” [4]. Specifically, the applicants argued that the so-called Dagenais/Mentuck test applied to the case: “[t]his test applies to discretionary decisions limiting freedom of the press in relation to court proceedings” [15]. The decision-maker, though, rejected the application of this test because (1) Dagenais/Mentuck apparently only applies to situations in the courtroom and (2) the relevant statute (s.35(4)) prescribed the proper test for determining whether to hold a closed hearing, and that statutory test ousted the consideration of Dagenais/Mentuck.

In addressing the standard of review, the Court was in an awkward position, because “[t]his appeal had been argued and a complete draft of these reasons had been written before the Supreme Court released its decision in [Vavilov]” [29]. Nonetheless, the Court went on to assess the standard of review under the Vavilov framework.

The main question in determining the standard of review was the proper decision under review, and the authority under which the decision was made. Sharpe JA concluded that the relevant decision was whether the Dagenais/Mentuck standard applied [32-33]. In other words, the relevant decision under review was the decision-maker’s refusal to apply the Dagenais/Mentuck test in view of the s.35(4) statutory test. To Sharpe JA, this was a decision reviewable on a correctness standard [33]. In drawing this conclusion, Sharpe JA drew a distinction (on standard of review) between cases where a Charter right was considered by a decision-maker and cases (as here) where the Charter right was expressly not considered:

[34] If the Charter rights are considered by the administrative decision maker, the standard of reasonableness will ordinarily apply.

[35] On the other hand, the refusal or failure to consider an applicable Charter right should, in my opinion, attract a correctness standard of review. As the Supreme Court explained in Dunsmuir, at para. 60, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62: “where the question at issue is one of general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’ … uniform and consistent” answers are required. See also Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555, at paras. 20-21. This is confirmed by Vavilov, at para. 17: “[T]he presumption of reasonableness review will be rebutted…where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies”.

[36]       The s. 2(b) Charter right to freedom of expression and freedom of the press relied upon by the appellants is both a matter of central importance to the legal system and a constitutional question.

In other words, Sharpe JA’s reasoning is that decisions whether to consider Charter rights at all are reviewable on a correctness standard, because such decisions are both constitutional questions and questions of central importance to the legal system, under the Vavilov framework. But once an administrator has considered Charter rights, the consideration of those rights are subject to a reasonableness standard.

Two things are notable about this distinction, taking into account pre-Vavilov precedent. First, prior to Vavilov, the decision of whether Charter rights had to be considered on the facts was not prescribed a specific standard of review by the Supreme Court, and otherwise was subject to a reasonableness standard in the Federal Courts. In Singh, for example, the Federal Court of Appeal was asked to determine whether s.110(4) of the Immigration and Refugee Protection Act [IRPA], which prescribes the conditions under which new evidence can be admitted in an appeal to the Refugee Appeal Division [RAD] exhaustively prescribed the conditions under which evidence could be admitted. An intervenor argued, for example, that “the RAD had to go beyond the requirements set out in s.110(4) and was obligated to proceed with a [Doré analysis].” [56]. However, the Court concluded (1) that s.110(4) exhaustively set out the conditions under which new evidence could be admitted, vitiating the need for a Doré analysis [62] and (2) even taking account of the fact that this argument was made, the Court ultimately concluded that the interpretation of a provision such as s.110(4) is reviewable on a standard of reasonableness [29]. This is because, among other things, the question was “not a question of law of central importance to the legal system as a whole…[23].

It is true, as Professor Daly points out on Twitter, that Sharpe JA’s approach is substantially similar to the approach adopted by the Supreme Court with respect to the duty to consult, as noted in Rio Tinto. There, a distinction was drawn between cases where the decision-maker decides whether it must consider the duty to consult (reviewable on a correctness standard) and cases where the decision-maker has consulted and it is up to the court to assess the adequacy of the consultation (reviewed on a reasonableness standard). More broadly, the distinction here—similar to the one drawn by Sharpe JA—is based on a traditional sort of test for standard of review: questions of law (existence of legal duty) are reviewable on a correctness standard; questions of mixed fact and law are reviewable on a reasonableness standard.

But the analogy to duty to consult is not entirely convincing. For one, in some cases, a duty to consult may not need to be considered by an administrative decision-maker—since the enabling statute may not mandate it (see Rio Tinto, at para 67). But Doré speaks in far more reaching terms: “Rather, administrative decisions are always required to consider fundamental values” (Doré, at para 35, emphasis in original). Following this line of thinking, Doré and its progeny have not adopted the distinction between power to consider a fundamental right and the consideration of that right, for the purposes of the standard of review (though I note Moldaver J’s reasons in Ktunaxa as approaching this bifurcated analysis). As noted above, in Singh, whether a decision-maker must address the Charter is a matter of statutory interpretation, normally reviewable on the standard of reasonableness (see also Deri, at the Federal Court, on this note).

This distinction, then, in the Charter context is not common.  Indeed, Sharpe JA seems to imply that Vavilov broadened the categories of cases in which correctness review would apply. The distinction drawn by Sharpe JA seems to give broader effect to the Dunsmuir correctness categories of “central questions” and “constitutional issues.” Take the central questions category. Following Singh, the question of whether a statute ousts the need to consider judicially-constructed tests was not a “central question” of importance to the legal system. But now, given Vavilov’s comments on the Rule of Law and the need for determinate final answers on important issues of legal interpretation (Vavilov, at para 53), it appears that there is extra grist for the mill for judges to expand the scope of the category, despite the Vavilov majority’s warnings otherwise (see Vavilov, para 61).  Moreover, on the scope of constitutional questions, and on Doré’s own holding, a distinction was not drawn between cases where a Charter argument was considered versus cases where they were not considered but should have been. The Court has never explicitly endorsed this proposition with reference to Charter rights.  Doré, instead, simply says that a decision which balances the Charter value with the statutory objective is reasonable (Doré, at para 58). Ipso facto, a decision which does not will be unreasonable, and so a decision that fails to even take account of a Charter value will be unreasonable (for an example, see Abdi, at para 30 ). But this was not a question of correctness, at least on Doré’s standard. Sharpe JA takes a different approach, relying on Vavilov.

One could make a convincing argument, then, that Vavilov changes  the pre-Vavilov state of affairs as it applies to Doré and other categories of correctness review. In other words, Ferrier eats into Doré’s domain.

That is one point, in itself. But another is that, in my view, Sharpe JA does not take the point far enough, and in failing to do so, creates a distinction that is unworkable.  In truth, the distinction between cases where Charter rights were considered and those where they were not is not a strong one on which to rest a difference in the standard of review. This is because of what Vavilov says at paras 55, 57:

Questions regarding the division of powers between Parliament and the provinces, the relationship between the legislature and the other branches of the state, the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982, and other constitutional matters require a final and determinate answer from the courts. Therefore, the standard of correctness must continue to be applied in reviewing such questions: Dunsmuir, para. 58Westcoast Energy Inc. v. Canada (National Energy Board)1998 CanLII 813 (SCC), [1998] 1 S.C.R. 322.

[…]

The constitutional authority to act must have determinate, defined and consistent limits, which necessitates the application of the correctness standard.

In other words, “the constitutional authority to act”—whether Charter values are considered or not—necessitates the application of the correctness standard. More broadly, the application of the correctness standard in these circumstances “respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on question for which the rule of law requires consistency and for which a final and determinate answer is necessary” (Vavilov, at para 53). In my view, this is true when a court analyzes whether a decision maker was required to consider Charter rights, and in cases where the decision-maker actually analyzed the Charter rights. In both cases, there is a substantial constitutional component to the analysis which implicates the need for the court to have the final say on the law: the court is required in both cases to assess the application and scope of constitutional rights. Even when considered in respect of facts or proportionality analysis, a court is still required to construe the scope of constitutional rights.

Some might argue with my position here. For example, as I mentioned in my previous post, Vavilov explicitly does not overturn Doré, and also does not explicitly mention questions of the “Charter” falling within the scope of its comments on “constitutional questions.” But it would be hard to distinguish between these cases. In other words, what is the compelling justification to treat Charter cases separately from all other questions of constitutional law, and going a step further, what is the justification for distinguishing cases where the Charter was considered versus where it was not? Whie one might say that the factual component changes things, in both cases, involving considering whether Charter values arise because of a relationship to a statute and cases where Charter values were considered, it is the court’s task to delineate the scope of constitutional rights. This is true in both the abstract and as applied to proportionality analysis. If this is true, the distinction, then, falls apart.

Ferrier, then, is an interesting case study in how Vavilov interacts with Doré. And at least on first blush, the interaction is tense.