Clash of Courts

Senior Superior Court judges are suing Québec over its provincial court’s jurisdiction; other provinces will be affected if they succeed

I don’t think the story has received much attention outside of Québec yet, but it’s not because it doesn’t deserve to be noticed: as La Presse reports, the Chief Justice, Senior Associate Chief Justice, and Associate Chief Justice of Québec’s Superior Court are suing the provincial government, arguing that much of the civil jurisdiction of the Court of Québec is unconstitutional. More specifically, they are seeking declarations that Québec could not, consistently with section 96 of the Constitution Act, 1867, grant its provincial court exclusive jurisdiction to hear cases where the amount at issue is more than $10 000 or any powers of judicial review over provincial administrative tribunals, because these powers are reserved for federally-appointed judges.

Currently, the upper limit of the Court of Québec’s jurisdiction in civil matters is set at $85 000. Should the Superior Court judges prevail, their court’s workload is bound to increase very substantially, though I haven’t yet seen any clear data on this point. But repercussions  will be felt well beyond Québec’s borders. British Columbia has set the upper limit on its provincial court’s jurisdiction in civil disputes at $35 000; Alberta, at $50 000. The principles on which the applicants rely apply across Canada, of course, and the boundaries between the jurisdictions of superior and provincial courts would need to be re-drawn in several provinces, if not quite to the same extent as in Québec.

Though I am sure that much more will be said about this dispute as it develops, my initial impression is that the Superior Court judges have a strong case. Although it says nothing of the sort, section 96 has long been understood to stand for the proposition that the courts to which it refers, including Québec’s Superior Court, have a protected “core” of jurisdiction. This core jurisdiction ― that which they exclusively had at the time of Confederation ― cannot be taken away from them or transferred to other courts (which is to say the Federal Court or provincial courts created pursuant to section 92(14) of the Constitution Act, 1867, such as the Court of Québec). As the Superior Court judges’ application shows, in Québec, the exclusive jurisdiction of (what at Confederation became) section 96 courts started at $100, which, adjusted for inflation, is said to be less than $10 000. (The application does not go into any detail as to exactly how this inflation adjustment proceeds ― the exercise is bound to be an inexact one over 150 years ― but let’s assume that the figures given are at least roughly correct.) As Québec expanded the jurisdiction of its provincial court over the last 50 years (for the most part, when it was governed by the Parti québécois), it took more and more out of the former exclusive jurisdiction of the Superior Court, impinging ever more on what the Supreme Court, in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31, described as its “historic task … to resolve disputes between individuals and decide questions of private and public law”. [32]

Indeed, the Superior Court judges’ argument is not new. Frédéric Bachand, then a professor at McGill and now himself a Superior Court judge, mentioned it in my civil procedure classes ― 10 years ago. And, while I’m not sure about this, I doubt that the point was a novel one even then. Prof. Bachand, as he then was, also pointed out that no litigant had a good reason to raise the issue, and he was right about that too ― but the wonders of public interest standing, which the Superior Court judges very plausibly claim, mean that the matter will have to be addressed regardless.

Just how it will be addressed is still a troubling question. The prospect of Québec’s Superior Court adjudicating, even in the first instance, a claim about its own jurisdiction brought by its three most senior judges is unsettling. The judges’ Application details their fruitless attempts to get the provincial government interested in the matter. For a while now, they have pushed for the issue to be referred to the Court of Appeal. A reference would indeed have been the preferable procedural vehicle, both to avoid casting the Superior Court in the unseemly position of being judge in its own cause, and also because the questions to be addressed are not of such a nature as to require a trial to be held, while appeals all the way to the Supreme Court are certain in any event. I’m not sure exactly why the Québec government has so far refused to take this course. Perhaps it was daring the judges to sue in their own court, and hoping that they would not compromise themselves in this way. But now that, rightly or wrongly, its dare has been taken, there is nothing to be gained from continued obstinacy.

Indeed, I wonder if the federal government would not do well to intervene and refer the issues directly to the Supreme Court, should Québec’s obstinacy continue. While federal references on the constitutionality of provincial legislation are uncommon, Québec itself has no compunctions about referring questions regarding the constitutionality of federal policies to the courts. And of course the issue of the respective jurisdictions of superior and provincial courts directly concerns the federal government, which would have to pick up a substantial tab for the salaries of additional section 96 appointees if Québec’s Superior Court judges are successful. Even more importantly though, because these judges are appointed and paid by the federal government, I think it has a direct interest in helping them maintain their continued impartiality and good standing, and arguably a duty to do so (a political duty, of course, not a legal one).

Whatever exactly happens, one has to hope that it happens quickly. An important question has been raised, with strong arguments to support the proposition that the way the court  systems of several provinces are organized is unconstitutional. This question deserves to be answered, but having it litigated by senior judges in their own court is surely not the right way to go about it. Yet if the judges are looking bad, the provincial government that seemingly dared  them to do it is even worse. It is not taking its constitutional responsibility for the administration of justice ― on which it purports to rely to justify its allegedly unconstitutional legislation ― seriously at all. It is high time for it to come to its senses ― and perhaps for the federal government to intervene if it refuses to do so.

The Law of Permanent Campaigning

Election law might have help create permanent campaigns. Can it be used to solve their problems?

The regulation of “money in politics” in Canada follows a bifurcated approach. Fundraising by political parties is subject to strict regulations that apply evenly throughout the electoral cycle. (There are special rule for candidates in elections and party leadership races.) By contrast, the expenditure of money by parties, as well as candidates, and so-called “third parties” ― which is to say, everyone else ― is only regulated, and very tightly regulated at that, during election campaigns, but not at other moments. Indeed, I once wrote that

the free discussion so essential to the existence of democracy and of parliamentary institutions is at no point so constrained as during electoral campaigns. No debate in Canadian society is so regulated as the one at the heart of our parliamentary democracy and thus of the protection of the freedom of expression.

This regulatory approach was developed at a time when election campaigns were mercifully short, and not much electioneering took place outside of the immediate pre-election “writ period”. But what happens if this is no longer so? What if the campaigning becomes “permanent”, to use a word that has been popular for a while now? The Conservative Party of Canada, under Stephen Harper’s leadership, is sometimes said to have brought the permanent campaign to Canada, but everybody’s doing it now, as Anna Lennox Esselment points out in a Policy Options post. The post is only an overview of a book that prof. Esselment has  co-edited with Thierry Giasson and Alex Marland. I have not read it yet ― I will eventually ― so for now I can only venture a couple of comments about prof. Esselment’s post.

One point worth making is the links prof. Esselment makes between “permanent campaigning” and the way in which party leaders are being put at the centre of politics. That political parties have become primarily tools for the promotion of individual leaders is a point made by Bernard Manin in his book on The Principles of Representative Government; I have, I think, shown that it applies with full force to Canada in my article on  “‘Third Parties’ and Democracy 2.0”, where I looked at the 2011 election campaign. (I summarized that part of the article here.) The development of the “permanent campaign” exacerbates this trend, though it did not create it; the days when parties could be seen as the “supermarkets of ideas” that Pierre Trudeau once thought they ought to be are long gone. As I argued in my article, we should not pretend otherwise, and take that into account in revising the ways in which we regulate the democratic process.

Regulation is the subject of another of prof. Esselment’s observations. She points out that “the rules regulating party financing” are among the “factors … contributing to the permanent campaign”. Once rules were in place to prevent “corporations, unions and wealthy individuals” from financing political parties,

the need to fundraise directly from [large numbers of] individual Canadians became a driving force in party operations. Knowing who might donate, how much and when is now crucial.

This in turn fuels the parties’ need for data about voters and potential donors (as well as people who might provide other forms of support). Prof. Esselment notes that this data gathering creates concerns about privacy, and she is right, of course. But another point worth emphasizing is that the story she tells illustrates the inevitability of unintended consequences. The permanent data-hungry campaign was not what those who clamoured for restrictions on party financing were looking to get, but they got it anyway. Their attempts to solve one (perceived) problem, though they may have been successful, also helped create a different one. A whole set of problems, actually, as prof. Esselment explains, having to do not only with the behaviour of parties as organizations, but also with what they do in, and to, Parliament.

This leads me to the final issue I will raise here. Prof. Esselment suggests that more fiddling with the regulation of political fundraising and expenditures is one “way out” of these problems. We might want

to regulate political party financing outside of the writ period and impose annual spending limits. This could limit a party’s ability to launch attack ads against their opponents between elections. … Reintroducing public subsidies for political parties might also reduce their ferocious appetite for information about Canadians, a key part of fundraising efforts.

The suggestion to “regulate party financing outside of the writ period” is a bit vague ― party financing is already regulated at all times, after all, though as I noted above, the regulations tend to apply evenly throughout the electoral cycle. But spending limits outside the writ period, and public financing, would have predictable, if unintended, negative consequences.

Permanent spending limits are, of course, permanent restrictions on the parties’ (and their supporters’) freedom of expression. We might not care too much about that, seeing how parties are vehicles for the aggrandizement of leaders and not contributors to an ideas-based political discourse, though I think that the freedom of expression even of relatively unsavoury actors has a value. But if parties subject themselves to permanent spending limits, they will not leave the rest of civil society alone. They will introduce stringent limits on the ability of “third parties” ― the disparaging name under which every speaker who is not a party or a candidate is known in election law ― to spend and express themselves as well. This is already what happens federally and in some provinces during election campaigns, and the Supreme Court has approved ― in the name of fairness ― the principle of radically lower spending limits for “third parties” than for political parties. Ontario has now gone further and introduced spending limits for “third parties” that apply six months ahead of an election. Permanent limits on party spending will create a strong pressure for what I have called, here and elsewhere, permanent censorship:

[A]n attempt to control “third party” spending between elections … It would extend to all advertising related to political parties or their candidates, including by taking position on issues “associated” with the party or the candidate. Moreover, in addition to dollar limits, the spending control regime includes onerous registration and disclosure requirements. Any individual, group, or organization that wanted to engage in political discourse would have to register with Elections Canada and keep it informed about its income and expenses. In effect, an extension of the rules on “third party” spending between elections would be a step towards the imposition of a regime of wholesale political censorship in Canada.

As I explain in detail in the posts linked to above, the courts may well find that such a regime is an unjustified violation of the protection of the freedom of expression in the Canadian Charter of Rights and Freedoms. But then again, they may not. But it would be no less terrifying even if the courts were in fact prepared to uphold it.

As for public financing for political parties, it is not obvious that it would reduce their hunger for data about us ― if not as potential donors, then as prospective voters (or indeed opponents who might be dissuaded from voting with targeted negative advertising). It would, however, reinforce the dominant position of large parties ― especially, of course, of the winners of the last election ― and prevent smaller, and above all new, parties from competing with more established ones on anything like equal terms. Perhaps these distorting effects are worth it for other reasons (though I’m skeptical), but I don’t think that the uncertain prospect of reduced data collection could justify them.

Permanent campaigns are, obviously, an important political development, and the law must take them into account. I am looking forward to reading the book on which prof. Esselment’s post is based, and perhaps I will have more to say about the subject as a result. But we must be very careful to avoid creating more problems as we try to solve those we have already identified. Indeed, we ought to keep in mind that if these problems arise from previous attempts at regulation, the solution might not be a fuite par en avant, but a retreat.

Still Not a Conservative

A couple of comments on Chief Justice Joyal’s Runnymede Radio podcast

Back in January, Chief Justice Glenn Joyal of the Court of Queen’s Bench of Manitoba gave a very interesting keynote address at the Canadian Constitution Foundation’s Law and Freedom conference. (A transcript is available at the website of Advocates for the Rule of Law.) Subsequently, I critiqued Chief Justice  Joyal’s argument to the effect that, in the wake of the enactment of the Canadian Charter of Rights and Freedoms, the Canadian constitutional culture changed, for the worse, because the judiciary acquired a disproportionate influence on the nation’s public life, at the expense of democratically elected institutions. I argued that although there is cause for concern about judicial self-aggrandizement, this concern should not be overstated, and need not translate into a celebration of the democratic process. In my view, Chief Justice Joyal articulated “a powerful and eloquent statement of what might be described as the foundation for a (small-c) conservative constitutional vision for Canada”, with the subscribers to which I might make common cause from time to time, but which I do not share.

Chief Justice Joyal elaborated on his address and very generously responded to my critique in a podcast interview with Joanna Baron, the director of the Runnymede Society (and my friend). It was an illuminating conversation, and is well worth listening to, as I have finally had a chance to do. Without re-arguing all of my differences with Chief Justice Joyal, I would like to make just a couple of points ― one about something in his position that I do not understand, and the other about what might be at the heart of much of our disagreement.

In both his Law and Freedom address and the podcast, Chief Justice Joyal repeatedly lamented the decline of “bold”, “purposive” government in Canada in the wake of the Charter’s coming into force. He is careful to note that “bold” government need not be big government. It is government acting for the community, implementing a certain political vision. But I’m afraid I have a hard time seeing what exactly this means, and in particular seeing what sorts of bold government initiatives the Charter, or even its attendant political culture in which the judiciary is both more powerful and treated with more deference than it used to be, might have thwarted. I understand that Chief Justice Joyal might be reluctant to be specific, because he might be called upon to adjudicate the constitutionality of government initiatives, bold or otherwise. But perhaps someone who agrees with him could help me out?

The one specific point that Chief Justice Joyal  does mention in the podcast is the inculcation of certain values, especially I take it in the education system. Now, the idea of inculcation of values by the government makes me quite uneasy, and it would make me uneasy even if I trusted the government to inculcate the right values and not collectivism and deference to authority. Blame it on my having been born in what was then still a totalitarian dictatorship ― or on my excessively American values, if you prefer. Whatever the cause, Chief Justice Joyal’s support for this sort of policy is one reason why, although he disclaims the “conservative” label, I do not resile from applying it to him. But regardless of whether his position on this is better than mine, I’m not sure how the Charter stands in the way of what Chief Justice Joyal has in mind. The closest encounter between it and what was arguably a governmental effort to inculcate values happened in the litigation that arose out of Québec’s “ethics and religious culture” curriculum. The Supreme Court upheld most of that curriculum, first in SL v Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 SCR 235, and then in Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613, only invalidating the requirement that a Catholic school teach Catholicism from a neutral (instead of a Catholic) standpoint. Surely, that particular requirement was not the sort of bold policy the decline of which Chief Justice Joyal laments.

As for the crux of my disagreement with Chief Justice Joyal, I think it concerns our different takes on the incentives that apply to political actors on the one hand, and the courts on the other. Chief Justice Joyal charges me with inconsistency, because, while I distrust elected officials and the political process, I have more confidence in the courts. Incentives, I think, are the reason why there is, in fact, no inconsistency. Political actors have an incentive to exploit the ignorance of the voters, and their irrationality (including the voters’ fear of the unknown and distaste for non-conformity). All too often, that is how they come to and remain in power. If there are political points to be scored by attacking an unpopular minority, politicians will want to score these points ― even the comparatively decent ones. Judges are not entirely immune to the incentive towards self-aggrandizement, of course, and I have often noted as much. But they have less to gain from exploiting others’ ignorance and irrationality, and are embedded in an institutional structure that at least tries to steer their own decision-making towards rationality and, in particular, towards an equal consideration of the claims of the unpopular. As a result, I think it is possible to distrust courts less than legislatures without being inconsistent about first principles.

In any case, I am grateful to Chief Justice Joyal for his contribution to the discussion about the role of the Charter and the courts in Canada’s constitutional order ― and of course for the kindness with which he treats my own position. He has not persuaded me to adopt his position, or indeed to stop describing it as conservative (without, in case that needs to be clarified, meaning to disparage it by this description!). But I think it is entirely a good thing that this approach is being articulated in such a thoughtful, and thought-provoking, way. Whatever our individual views, we are all enriched when the discussion includes voices such as Chief Justice Joyal’s.

The Originalist Papers

Benjamin Oliphant’s and my articles on originalism in Canada are officially out

Last year, I posted here the abstracts of two draft papers that Benjamin Oliphant and I had just finished writing. I am happy to report that both have now been published. The first one, “Has the Supreme Court of Canada Rejected ‘Originalism’?“, (2016) 42:1 Queen’s LJ 107, appeared back in January (despite what the journal says about the date!). The second, “Originalist Reasoning in Canadian Constitutional Jurisprudence“, (2017) 50:2 UBC L Rev 505, has only just come out.

In a nutshell, the first paper argues that, once we take stock of the developments in originalist thought (especially in the United States) over the last 30 years ― which too many Canadians who reject originalism out of hand have not done ― we realize that the answer to its title question is “no”. The precedents that are usually said to represent rejections of originalism do not support this conclusion. At most, they reject a type of originalism that no serious contemporary originalist endorses; they leave open the question of whether other originalist approaches might be used by Canadian courts.

The second paper answers this last question, from a descriptive perspective. It shows, with a variety of example drawn from the decisions both of the Judicial Committee of the Privy Council and the Supreme Court Canada, spanning most of our constitutional history since Confederation, that our jurisprudence is replete with examples of originalist reasoning of various sorts. In some cases, courts look to the meaning of constitutional provisions at the time of their enactment; in others to the intentions of their framers; and in a few, perhaps even to the exact way in which the framers would have expected these provisions to operate. We do not claim that our constitutional law is systematically originalist; nor do we claim, in this paper anyway, that it ought to be. But we do argue that originalism has a significant, if underestimated, presence in Canada, and deserves careful study and serious consideration by Canadian lawyers, whether they be in practice, in academia, or on the bench.

Working on these papers has been a whirlwind. We’ve gone from discussions about putting together the couple of blog posts we’d written on originalism (which, we thought, would be enough to make up 3/4 of the single paper we were intending to write) to two published papers totalling 130 pages in just over 18 months. The papers took up a big part of my life (during an otherwise busy period involving the little matter of moving to New Zealand) ― and I’m pretty sure that it was the same for my co-author. I am very glad that these papers are now out of our hands, and beyond the reach of last-minute edits ― though you will see that we did our best on that front, even adding a post-script to the second paper after the Supreme Court granted leave to appeal in R v Comeau, the “free the beer” case, just a few weeks ago. (Thanks to the UBC Law Review editors for accommodating us!)

I do hope that we will return to this topic eventually, though. Working with Mr. Oliphant has been a real pleasure, and I am very grateful to him for having taken time out of his busy life as an actual lawyer to go on this crazy adventure. If all goes well, you will hear from us (jointly or severally, and perhaps both) again. But for now, I at least will celebrate a bit. (No, not really. I have other papers to write.) And you, well, you should read our papers, if you haven’t yet!

The Good, the Bad, and the Ugly

A bill to improve Parliament’s constitutional scrutiny of legislation is a step forward ― but not good enough

Earlier this week, the federal government introduced Bill C-51, which will make some noteworthy changes to the Criminal Code ― mostly cleaning up offenses now deemed obsolete, but also codifying some principles relative to sexual that have been developed by the courts, and some other changes too. There has been quite a bit of discussion about these changes (see, for instance, this tweetstorm by Peter Sankoff), and I am not really qualified to speak to their substance, beyond saying that, all other things being equal, cleaning up the statute and making sure it reflects the law as applied by the courts are pretty clearly good things form a Rule of Law standpoint.

I do, however, want to say something about another, less commented, innovation in the bill: its clause 73, which would oblige the Minister of Justice to provide, alongside to any government bill introduced in Parliament, “a statement that sets out potential effects of the Bill on the rights and freedoms that are guaranteed by the Canadian Charter of Rights and Freedoms. This is a step forward, although not a sufficiently bold one, but also a troubling symptom of the constitutional favouritism that afflicts the government and seems to show no signs of letting up.

* * *

The idea that the Minister of Justice ought to provide advice to Parliament about the compliance of bills with rights protections actually pre-dates the Charter. It was first introduced in subs 3(1) of the Canadian Bill of Rights, which required the Minister to

examine … every Bill introduced in or presented to the House of Commons by a Minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons at the first convenient opportunity.

Identical language, but referring to the Charter, now appears in subs 4.1(1) of the Department of Justice Act. Yet these provisions, which might have involved Parliament, or at least the House of Commons, in constitutional discussions, have largely proven ineffective. There was, as we can tell from judicial decisions declaring federal legislation  invalid because contrary to the Charter (or, admittedly rarely, inoperative because contrary to the Bill of Rights), no lack of opportunities for inconsistency reports. Yet in well over half a century, only one such report has ever been made.

The reason for this is that, as the Federal Court explained in Schmidt v. Canada (Attorney General), 2016 FC 269 successive Ministers of Justice interpreted the reporting requirements as only obliging them to notify the House of Commons if they, or rather the Department of Justice (DOJ) lawyers, couldn’t come up with “[a]n argument” that the bill is constitutional “that is credible, bona fide, and capable of being successfully argued before the courts”. [5] Because DOJ lawyers are clever and creative, and perhaps also a little optimistic about their ability to mount successful arguments, this interpretation allows the Minister to avoid making a report to the House of Commons even if the constitutionality of a bill is very much in doubt.

Contrast this situation with New Zealand. Section 7 of the New Zealand Bill of Rights Act 1990 is a direct descendant of the Canadian inconsistency reporting requirements. It provides that the Attorney-General must “bring to the attention of the House of Representatives any provision in [a] Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights”. Attorneys-General have interpreted this as a duty to form their own opinion about whether proposed legislation is consistent with the Bill of Rights Act, and not merely about whether they might make credible arguments for the proposition that it is. As a result they have made almost 40 “section 7 reports” on government bills, and over 70 in total, including on non-government bills, which are not covered under current Canadian legislation and still would not be under C-51, in just 25 years. (One reason why similarly worded provisions have been interpreted so differently in Canada and in New Zealand is that New Zealand, like the United Kingdom, separates the roles of Minister of Justice and Attorney-General, and the latter, although elected as an MP and a member of the Cabinet, by convention acts in a relatively non-partisan fashion. I would love to see Canada adopt this practice, but won’t hold my breath.) And New Zealand’s Attorneys-General have gone further than the Bill of Rights Act required them to. The have also made public the advice regarding the consistency with the Act of all bills since 2003 ― not only those that they found to be inconsistent.

If enacted, Bill C-51 wuld take Canada close to New Zealand in this regard ― and, to some extent, even further. It will go further both in that it will create a statutory requirement, as opposed to a mere policy (albeit on that has been consistently followed by governments of various partisan persuasions), and in that it will formally inform not only the public but Parliament itself. On the other hand, the requirement will not go as far as the New Zealand policy, because it will only apply to legislation proposed by the government ― and not by individual MPs or Senators.

* * *

Despite its limitations, of which more very shortly, this is a good change. Getting Parliament to engage more with constitutional issues that arise when it legislates would be a wonderful thing. To be sur, we should not be too optimistic about what ministerial explanations of Charter concerns will accomplish. In New Zealand, Parliament routinely ignores the Attorney-General’s warnings about the inconsistency of bills with the Bill of Rights Act. It may well be that if such warnings, or a fortiori statements to the effect that a bill gives rise to constitutional concerns but the government believes that it is nevertheless consistent with the Charter become more common in Canada, legislators will similarly ignore them. But even occasional engagement with such concerns is likely to be an improvement on the current situation, in which they are systematically ignored whether or not Parliament is the only place where they could be addressed.

One particular issue to think about here is the role of the Senate. It is at least arguable that it would be more justified in opposing the House of Commons (at least by insisting on amendments, but perhaps even by outright defeating legislation) because of constitutional concerns than for any other reason. Having such concerns outlined by the Justice Minister would make it easier for the Senate to do this, and might thus contribute to make it a more significant legislative actor. That said, the Senate did give way to the House of Commons on the assisted suicide legislation, despite constitutional concerns, so any such changes are, for now, a matter of speculation.

As the above comparison between Canada and New Zealand shows, a lot will depend on just how the Justice Ministers approach their new statutory duties. This is where we come to the less attractive features of clause 73. Its wording is very open-ended ― to repeat, it requires reports bills’ “potential effects … on [Charter] rights and freedoms” (emphasis mine). In a way, this is useful, in that it allows the Minister to offer a nuanced assessment, and perhaps candidly say that there is no clear relevant guidance from the courts. But if a Minister wants to fudge, or simply to say, consistently with currently practice, that plausible ― but not necessarily compelling ― arguments can be made that a bill’s effects can be justified under section 1 of the Charter, clause 73 would allow that too. As Lisa Silver has noted, ministerial “statements may be self[-]serving”. On the whole, then, I would count the clause’s vagueness as a bad thing.

The other bad thing about it is that, as I noted earlier, it only applies to legislation introduced by the government. Now, it is true that most significant legislation is, in Canada anyway. But there have apparently been concerns that the last Conservative government used private members’ bills to advance policies that had its private support but with which it was unwilling to be too publicly associated. Whether or not that was true, something like that might happen in the future. And of course any bills introduced in the Senate would be exempt from scrutiny, at least until the rather hypothetical for now day when there are cabinet ministers from the Senate. In short, the exclusion of legislation not introduced by the government from the current scope of clause 73 is potentially dangerous ― and I have a hard time seeing why it should be there.

It gets worse ― indeed, in my view, it gets outright ugly. Clause 73 confirms what I have denounced the government’s tendency to treat the Charter as a favoured part of the constitution, and ignore the others, notably the Constitution Act, 1867. The clause will, if enacted and approached in good faith by the Justice Ministers (the latter a big if, as I noted above), force the government to alert Parliament to the repercussions of proposed legislation on a part of the Constitution. But why only part? Why that part? Why shouldn’t Parliament be alerted to issues surrounding the division of powers, not to mention aboriginal rights and, arguably above all, the constitution’s amending procedures? And what about the (quasi-constitutional) Bill of Rights, while we’re at it? (Though it is often forgotten, the Bill of Rights does protect some rights that have been left out of the Charter, perhaps most significantly the right to a fair trial in civil cases, and so remains relevant despite the Charter’s enactment.) Of course, the current provisions requiring inconsistency reports only concern the Charter and the Bill of Rights, but since the point of Clause 73 is to expand them, why is this expansion so selective? As I have previously explained, the vision of the Constitution that it reflects is a defective and a pernicious one. To that extent, Clause 73 deserves condemnation ― and cries out for amendment.

* * *

Let me conclude, then, with a quick sketch of what an amended version of Clause 73 that addresses the criticisms outlined above might look like:

(1) The Minister shall, for every Bill introduced in or presented to either House of Parliament cause to be tabled, in the House in which the Bill originates, a statement that sets out potential effects of the Bill on

(a) the rights and freedoms that are guaranteed by the Canadian Charter of Rights and Freedoms or recognized, declared or otherwise protected by the Canadian Bill of Rights;

(b) the aboriginal and treaty rights of the aboriginal peoples of Canada recognized and affirmed by the Constitution Act, 1982; and

(c) the scope of and limitations on Parliament’s legislative powers under the Constitution of Canada.

(2) The statement shall, in addition to any other matter, note whether, in the Minister’s opinion, it is more likely than not that the Bill is inconsistent with the Constitution of Canada.

(3) The statement shall be tabled

(a) in the case of a bill introduced in or presented by a minister or other representative of the Crown, on the introduction of that Bill; or

(b) in any other case, as soon as practicable after the introduction of the Bill.

(4) The purpose of the statement is to inform members of the Senate and the House of Commons as well as the public of those potential effects and the constitutionality of proposed legislation.

This is, in all likelihood, an imperfect effort. In particular, it might be unnecessary to require Ministerial statements on private members’ bills that never make it past first reading. I’d be grateful for any input on this, and on the corrections that might be necessary to my proposal, from those more knowledgeable than I about Parliamentary procedure and legislative drafting. But I do think that my substantive concerns are serious. I would be very nice indeed if Parliament were made to address at least some of them.

An Easy Case

Why funding Catholic schools on terms not available to others is an obvious infringement of religious freedom

In Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, the Saskatchewan Court of Queen’s Bench held that funding Catholic schools, and no others, for educating students who do not belong to their religion is contrary to the guarantee of the freedom of religion in paragraph 2(a) of the Canadian Charter of Rights and Freedoms, and not justified under the Charter‘s section 1. In commenting on that decision, I wrote that this “is correct, and quite obviously so. There is no meaningful account of religious neutrality on which singling out one group for a favourable treatment denied others is permissible.” To my enduring surprise, some of my friends disagree with this, so I will try to explain my views further.

Writing for Policy Options, Joanna Baron and Geoff Sigalet argue that in Saskatchewan the province’s duty of religious neutrality has to be understood in the context of “Saskatchewan’s Confederation compromise [which] entailed a built-in elevation of the status of Catholics” and required provincial funding of Catholic schools. In that context, allowing non-Catholic students to access these schools “does not violate a principle of religious neutrality — it is the definition of neutrality.” They add that “the Charter itself does not explicitly require state neutrality vis-à-vis religion” ― in contrast to the First Amendment to the U.S. Constitution, under which the funding of vouchers allowing students to attend religious schools has nevertheless been permitted. They claim, finally, that it is ironic that the Charter, which is supposed “to give individuals rights vis-à-vis the state”, ends up foreclosing the educational choices of non-Catholic students. Finally, they worry about the way in which students would be classified as Catholic or not to determine who is, and who is not, entitled to access Catholic schools.

In an Advocates for the Rule of Law post, Asher Honickman makes some similar points. Religious neutrality is only a judicial construction, and in any event not absolute. Determining who is Catholic enough to attend a Catholic school is problematic. Mr. Honickman adds that it would be discrimination to require “non-Catholics … to attend secular schools, while Catholics would have a taxpayer funded choice to attend either Catholic or secular schools.” While

the government could provide equal funding to all religious schools, but this would prove far too costly. The Charter is by and large a ‘negative rights’ document and the government should not have to break the bank to comply with its provisions.

In any event, since they receive public funding to cover their capital expenses, Catholic schools could charge non-Catholics cheaper tuition to any non-Catholic students who wished to attend, and the additional benefit of receiving funding to cover their individual education is too trivial to count as an infringement of neutrality.

I do not find any of this at all persuasive. Begin with the suggestion, admittedly never fully articulated, that we should not make too much of religious neutrality because it is not expressly referred to in the Charter. Justice Dickson, as he then was, rejected it in the very first religious liberty case R v Big M Drug Mart Ltd, [1985] 1 SCR 295. Dismissing an argument that the Lord’s Day Act was not contrary to the Charter‘s guarantee of freedom of religion because it did not include a proscription of religious establishment, he noted that “recourse to categories from the American jurisprudence” ― free exercise of religion and non-establishment ― “is not particulary helpful in defining the meaning of freedom of conscience and religion under the Charter” because these categories flow from “the wording of the First Amendment”. (339) They do indeed, and the wording is not accidental, as Michael McConnell explained in this excellent lecture.

The Charter only contains a single guarantee of religious liberty, and the question is whether its meaning in 1982 (on an originalist approach) or now ( on a living constitution one) includes state neutrality. The answer to this question is an emphatic yes, whatever one’s reference point. As Justice Taschereau wrote in Chaput v Romain, [1955] SCR 834, “[i]n our country, there is no state religion. … All religious creeds are set on an equal footing.” (840; translation mine.) As a statement of positive law, this was perhaps a tad optimistic while the Lord’s Day Act was still in force; but as a statement of what religious liberty, properly understood, meant by the 1950s (and indeed earlier) and still means, this passage remains unsurpassed in its forceful simplicity.

State neutrality is then, along with a rejection of religious coercion, one of the fundamental principles of paragraph 2(a) of the Charter. The Charter itself contains one  exception to this principle: section 29, which protects “rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.” (The fact that the Charter’s framers thought it necessary to make this exception explicit suggests that they too understood neutrality to be the general principle.) Except insofar as they are “guaranteed by or under the Constitution of Canada”, the privileges of “separate” schools are subject to the general principle.

The constitution’s “built-in elevation of the status of Catholics”, in other words, is set at a precisely calibrated level. It permits the “discrimination” involved in allowing Catholics ― or, more precisely Catholics or Protestants, depending on who happens to be the minority ― a choice between public and “separate” schools, and immunizes it from Charter scrutiny. By necessary implication, it permits and even requires the state to distinguish between Catholics and others, however distasteful we might find the drawing of such distinctions. (That said, as Justice Layh found in Good Spirit, “proof of one’s Catholic identity is baptism in the Catholic tradition, commonly evidenced by a baptismal certificate” [17] ― not an especially intrusive inquiry, all things considered.) The constitution does not, however, permit conferring on Catholics them the further advantage ― whether it is a great or a small one ― of admitting and proselytizing to non-Catholic students at the public expense. It is not for the courts to upset this calibration that is quite clearly set by the constitution itself, whether or not doing so would be convenient or save money. Having found that the admission of non-Catholic students was not “guaranteed by or under the Constitution of Canada”, the Good Spirit court was quite correct to apply the principle of neutrality to it.

As I have been saying from the beginning, if the province of Saskatchewan does not like the outcome that non-Catholic students and their parents lose the (limited) measure of school choice that was available to them, the obvious solution is to provide more school choice on a non-discriminatory basis. This, in fact, is what the State of Ohio did in Zelman v Simmons-Harris, 536 U.S. 639 (2002), the First Amendment case on which Ms. Baron and Mr. Sigalet rely. As Chief Justice Rehnquist described the scheme at issue in his majority opinion, “[a]ny private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school” meets certain administrative requirements, educational standards, and does not discriminate. (645) The issue was whether the eligibility of religious schools for participation violated the First Amendment. The U.S. Supreme Court held that it did not, and the result would be the same under the neutrality principle of the Charter. But the Zelman-Harris court did not uphold, and would not have upheld, a similar scheme the participation in which was restricted to religious schools only, still to Catholic schools alone. If Saskatchewan want to include Catholic schools in a broader school choice programme, that would have been constitutionally permissible. It is not permissible to limit school choice to such schools alone.

It is not the Charter, then, that limits school choice in Saskatchewan in the wake of the Good Spirit decision, but the political choices made by the province’s legislature. Will it be too expensive to offer meaningful, non-discriminatory choice to students? We don’t know; the province has not, so far as I can tell, even considered the possibility, rushing to override the decision by invoking the Charter‘s “notwithstanding clause”. But whatever the amounts at issue, it will not do to say that it is better to offer a discriminatory benefit to some if we cannot offer the same benefit to all. The Supreme Court rejected this proposition in Schachter v Canada, [1992] 2 SCR 679, and rightly so. No one would accept that a province offer a tax cut to Catholics alone on the basis that it’s better to give one to some people than to none. The same reasons that would make that utterly unacceptable condemn the policy of subsidizing Catholic schools (beyond what is constitutionally required) and no others.

While some aspects of the Good Spirit case were difficult, the Charter issue that it presented was not. Once it is established that the education of non-Catholic students is not a constitutionally entrenched aspect of “separate” Catholic schools, it follows straightforwardly that it can only be subsidized on equal terms with those available to other schools, religious or otherwise. To conclude so is not to impose a new interpretation on constitutional text, but to apply principles that were recognized in Canada well before the Charter‘s entrenchment. Those who would depart from these principles in the name, ultimately, of financial expediency and administrative convenience should re-consider.

Dreaming of Dialogue

Can New Zealand courts declare statutes to be inconsistent with the Bill of Rights Act? Does this matter?

Canadians have long been used to the idea that, as the Supreme Court put it in Re Manitoba Language Rights, [1985] 1 SCR 721, “[t]he judiciary is the institution charged with the duty of ensuring that the government complies with the Constitution.” (745) In New Zealand, things are very different of course, because the constitution is not entrenched. Parliamentary sovereignty prevails, and the courts’ role is limited accordingly. Although there is a statutory bill of rights, the New Zealand Bill of Rights Act 1990, it specifically provides that courts cannot invalidate or otherwise refuse to apply legislation that is inconsistent with it, and contains no remedial provision analogous to section 24 of the Canadian Charter of Rights and Freedoms.

So it is, or at perhaps was, an open question what, if anything, a court might be able to do when it concludes that a statute is inconsistent with the Bill of Rights Act. Might it go so far as to issue a declaration to that effect, or is it limited to only stating this opinion in the course of its reasons? In Attorney-General v Taylor [2017] NZCA 215, the New Zealand Court of Appeal says that, sometimes at least, a formal declaration can be made, and upholds the very first such declaration issued by a New Zealand court, confirming that the disenfranchisement of all convicted prisoners (and not only of those serving sentences longer than the three-year Parliamentary term) is inconsistent with the Bill of Rights Act’s guarantee of the right to vote. (The Attorney-General was not contesting the substantive point, it is worth noting, but only disputing that the declaration could and should have been made.)

* * *

The first question for the Court was whether authority to make a “declaration of inconsistency” existed at all and, if so, what its source was. The answer, the Court holds, is that superior courts have such an authority as part of their jurisdiction to answer questions of law, and that the Bill of Rights Act supported it. The Court rejects the Attorney-General’s submission that express statutory authorization is required to permit the making of declarations of inconsistency. Just as Parliament’s legislative authority does not derive from positive law but from political fact, so does the judicial authority of the courts. Neither branch owes its authority to the other; rather, “a distribution of the state’s sovereign powers among the branches of government emerged from the political settlement concluded in the decades following the Glorious Revolution of 1688”. [50] Ultimately, “[i]nconsistency between statutes is a question of interpretation, and hence of law, and it lies within the province of the courts.” [62]

The Court notes that the Bill of Rights Act itself contemplates the possibility of a judicial assessment of the consistency of other legislation with its provisions, whether its results are stated in the court’s reasons (which the Attorney-General accepted was permissible) or in a formal declaration. Moreover, New Zealand has undertaken to provide domestic remedies for breaches of its obligations under the International Covenant on Civil and Political Rights, the implementation of which is one of the Bill of Rights Act’s stated purposes, so that it should be interpreted in accordance with this undertaking. Besides, in the Human Rights Act 1993, Parliament has already authorized the making of declarations of inconsistency when legislation breaches equality rights. Although the Bill of Rights Act contains no equivalent provision, this “evidences parliamentary acceptance that a court may make declarations about the inconsistency of legislation with rights protected by the Bill of Rights”. [107]

Second, the Court had to address an intervention by the Speaker of the House of Representatives, who argued that the whole case, or at least the way in which it had proceeded, was an infringement of Parliamentary privilege. In particular, the Speaker was concerned by the reliance, at first instance, on a report prepared by the Attorney-General to alert the House of Representatives of the incompatibility (in the Attorney-General’s opinion) between the blanket disenfranchisement of prisoners and the protection of the right to vote in the Bill of Rights Act. Indeed he sought sought to prevent the use of any “speeches in the House, select committee reports or submissions made to select committees” [122] to ascertain the consistency of legislation with the Bill of Rights Act, arguing that this would be tantamount to calling Parliamentary proceedings into question contrary to article 9 of the Bill of Rights 1688 and the Parliamentary Privilege Act 2014. The Court rejected these arguments, holding that “a court does not impeach parliamentary proceedings merely by describing parliamentary processes or making a finding about the same subject matter,” [129] so long as it does “not endorse or criticise Parliament’s treatment of the issues”. [130] It is permissible, too, to refer to the Attorney-General’s report, although it is important for the courts to come to their own, independent conclusions.

Third, the Court considered the conditions in which declarations of inconsistency should or should not be granted. Such declarations, thought they do not affect anyone’s rights, are part of a “dialogue” (it might have been more accurate to say “conversation”) involving the the different branches of government, which

is not unique to constitutional disputes. It describes the routine work of government, in which Parliament legislates and the executive administers and courts interpret, leading in due course to legislative reform to better meet the community’s evolving needs. [150]

The only difference is that a declaration of inconsistency is a “more pointed” [150] than usual expression of a court’s opinion, which carries with it

the reasonable expectation that other branches of government, respecting the judicial function, will respond by reappraising the legislation and making any changes that are thought appropriate. [151]

Such “pointed” expressions of judicial opinion should not be lightly; a statement in the court’s reasons for judgment is sometimes, and even “ordinarily” [162] preferable. But it is sometimes necessary to go further. However, the courts are to apply fairly strict criteria for standing (at least when compared with the Canadian “open bar” approach), and to ensure that there exists a real adversarial dispute and that they have the relevant evidence available to them before pronouncing on the rights-consistency of legislation.

Fourth and last, the Court asks itself whether a declaration should have been granted in this case. It concludes that because “[t]he undiscriminating limitation … on so central a right demanded justification [and] [n]one was forthcoming” a declaration of inconsistency “was the appropriate way both to convey the Court’s firm opinion that the legislation needs reconsidering and to vindicate the right”. [185]

* * *

To Canadian readers this all might seem like pretty tame stuff. And indeed there is no mistaking the notes of caution in the Court’s discussion, above all in its statement that “indications” rather than formal declarations of inconsistency should “ordinarily” suffice. What “ordinarily” will mean in practice remains, of course, to be seen, but at least for now the Court seems to think the step of granting a formal remedy ― even one that could produce no more than a purely symbolic effect ― is a serious, even an exceptional one.

Yet I think it would be a mistake to make light of the Court’s decision and, perhaps more importantly, of its reasoning. Although its conclusions are cautious, it still reflects a confident view of the judiciary’s constitutional position as a branch of government that is, in its own sphere, not Parliament’s subordinate, but its equal. It is worth noting that the primary ground on which the Court rests the authority to make declarations of inconsistency is not an implication from the text or nature of the Bill of Rights Act (as it had done in Simpson v Attorney-General [1994] 3 NZLR 667 (CA), a.k.a. Baigent’s Case, where it held that damages were available for breaches of the Act by the executive). Rather, the authority to make declarations of inconsistency is said to come from the judiciary’s own inherent powers, which the Court goes out of its way to say are not the product of any legislation but of the constitutional order of things (my phrase, not the Court’s). Similarly, the Court resists the Speaker’s attempt to restrict judicial deliberations about Bill of Rights Act issues, even as it cautions that judges must be seen to interfere with the deliberations of Parliament.

Indeed, this case can be seen as a clash between two competing constitutional visions. One, advanced both by the Attorney-General and the Speaker, sets Parliament, protected by its sovereignty and privilege, above the other branches of government, whose first concern must be to avoid disrespecting or challenging it. The other, which the Court adopts, treats the branches as (almost) co-equal: “each is sovereign within its sphere of authority in the sense that it may act without the permission or authority of the others”.[51] To be sure, Parliament is first among equals because it can make law, and thereby oust judicial power (though New Zealand judges, as their British counterparts, have on occasion mused about the limits of that authority) or, in other cases, royal prerogative. But at least until it does so equality, not subordination, is the rule. It is a respectful equality, but respect goes both ways: not only must the courts exercise restraint and show comity on appropriate occasions, but Parliament too ought to engage in constitutional dialogue, and go so far as to reconsider its enactments, when called upon to do so by the courts.

Yet I am quite skeptical about the potential for constitutional dialogue between the judiciary and Parliament, on which the Taylor Court rests such hopes. We know that in Canada the “dialogue” has turned out to be quite one-sided, with the Supreme Court telling Parliament what it had, and what it could not, do. As the majority put in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, another prisoner disenfranchisement case,

the fact that the challenged denial of the right to vote followed judicial rejection of an even more comprehensive denial, does not mean that the Court should defer to Parliament as part of a “dialogue”. Parliament must ensure that whatever law it passes, at whatever stage of the process, conforms to the Constitution. The healthy and important promotion of a dialogue between the legislature and the courts should not be debased to a rule of “if at first you don’t succeed, try, try again.” [17]

The power dynamics in New Zealand are, of course, the opposite of those in Canada. It is Parliament, not the judiciary, that gets to have the last word in a constitutional conversation. But I do not expect it to be any more open to persuasion than the Supreme Court of Canada. I would love to be proven wrong on this, but I’d be quite surprised if ― assuming there is no change of government at the forthcoming election ― New Zealand’s Parliament chose to “reconsider and vindicate the right” to vote as the Bill of Rights Act, which it was happy to ignore on this issue, requires it to do.

* * *

Subject to an intervention by the Supreme Court, the courts of New Zealand do, then, have the ability to formally declare legislation to be inconsistent with the New Zealand Bill of Rights Act, despite the Act not authorizing them to do so. This authority rests on a conception of the constitution in which the branches of government are almost, if not quite, equal, rather than Parliament lording it over the courts (and the executive). Yet there is reason for skepticism about the vision of respectful dialogue between Parliament and the courts that this relative equality is supposed to foster. Someone gets to have the last word, and it seems likely enough that, in New Zealand as in Canada, it will be the only that will count.

NOTE: See also the comments by Andrew Geddis, on Pundit, and Edward Willis, on his Great Government blog.