Swan Upping

A medieval ritual as a metaphor for British constitutional history

Every summer, barring a plague, an age-old ritual takes places on the Thames: the Royal Swan Upping. Led by the Royal Swan Marker, “[t]he Royal Swan Uppers, who wear the scarlet uniform of Her Majesty The Queen, travel in traditional rowing skiffs together with Swan Uppers from the Vintners’ and Dyers’ livery companies”. Truth be told, the skiffs are mostly towed by a boat with an engine, but the whole thing does look pretty grand. I know, because I went to see it yesterday.

The Swan Upping arrives at Sonning Bridge: July 20, 2022

Scarlet uniform: check. Royal flag: check. Awesome swan flag on the towing boat: also check. Even Galadriel would be proud, I think. (And, come to think of it, I’m wondering if the Swan Upping has helped inspire Professor Tolkien.)

The reason I’m writing about it here, though, is that there is a fascinating legal-historical and indeed constitutional dimension to the Swan Upping story. As Katy Barnett explains in a most instructive post over at Legal History Miscellany the reason for the glorious scarlet uniforms’ presence is that her majesty has a special relationship, one might say, with the mute swans of the Thames:

[t]he ancient origins of the monarch’s ownership of swans are shrouded in mystery. The first mention of mute swans being a ‘royal bird’ comes from Gerald of Wales (‘Giraldus Cambrensis’) in the late 12th century. It is generally deemed part of the royal prerogative by custom, then entrenched in case law and statute. (Footnote omitted)

The office of the Royal Swan Marker goes back (at least?) to the 14th century:

In 1361, Thomas de Russham was given responsibility by the king for “the supervision and custody of all our swans as well as in the water of the Thames as elsewhere within our Kingdom.” Thereafter, the king had an officer who was  Master of the King’s Game of Swans (also known as the Royal Swan-herd, Royal Swannerd, or Royal Swan-master).

The Swan Uppers, now doing their own rowing: Sonning, July 20, 2022

In the Middle Ages, the scarlet uniforms were not just for show: swan ownership was tied up with social hierarchy:

In 1482 and 1483, Edward IV’s Act for Swans was passed to prevent unlawful keeping of swans by “Yeomen and Husbandmen, and other persons of little Reputation”. Accordingly, the only people who could have swan marks or own swans were noble and rich people

And “only the monarch could claim unmarked mute swans”. This is what the Royal Swan Upping was:

[p]eople would catch the swans, record the ownership of the birds and their offspring, and place markings upon the beaks of the birds. It seems that the marks were achieved by inscription with a knife or by branding. The swan-master was to meticulously maintain the marks in an ‘upping book’. 

Nowadays, of course, the whole process is much more humane, and its point is no longer to ensure the steady supply of swans for royal Christmas feasts as in the Plantegenets’ and Tudors’ times. As the Royal Swan Marker explains,

Swan Upping plays an important role in the conservation of the mute swan and involves The Queen’s Swan Warden collecting data, assessing the health of young cygnets and examining them for any injuries. Cygnets are extremely vulnerable at this early stage in their development and Swan Upping affords an opportunity to help both adults and cygnets that might otherwise go untreated.

In this way, the process really is emblematic of the British constitution: its origins are in medieval royal absolutism, later reinforced and partly taken over by statute, and eventually re-thought for a more caring and democratic age, with the scarlet uniforms more or less intact. So it only makes sense that I went to see it, and that I blog about it!

End of a Swan Upping day’s work: Sonning, July 20, 2022

The Cake Bill

The flaws in the UK government’s two-faced Bill of Rights Bill

The UK government has introduced its Bill of Rights Bill: a long, if not exactly eagerly, awaited replacement for the Human Rights Act 1998, which gives effect to the European Convention on Human Rights in UK law. The Bill will limit the ability of the UK courts to enforce rights protections in the UK in various ways, some of them arguably defensible ― at least in the abstract ― and many not defensible at all. In this, I offer my initial thoughts on some of the Bill’s most salient aspects. My overarching theme will be that the government is trying to have its cake ― or rather, several different cakes ― and eat it ― or them ― too.

It may be worth briefly noting where I’m coming from on this. I think that I am more sympathetic to the concerns with judicial overreach in the implementation of the Convention and the Human Rights Act 1998 than many, perhaps most UK public law academics. Moreover, I have no particular attachment to the Convention and especially the European Court of Human Rights, whose judgments consistently strike me as unimpressive or worse. At the same time, as readers of this blog will know, I do strongly favour protections for individual rights vigorously enforced by an independent judiciary. So if the point of human rights law reform were for the UK to go its own way, and even leave the Convention so as to reject the Strasbourg Court’s mistakes, while making robust arrangements to secure rights, I would be quite happy.

But that is not at all what it is proposed. It would be an exaggeration to say that the Bill embraces the worst of both worlds ― the Convention/Strasbourg world and that of UK parliamentary sovereignty ― but it blends them in a way that strikes me as remarkably inelegant and unattractive.


For all the talk of a “British bill of rights” over the years, the Bill of Rights Bill remains closely tethered to the Convention. It (largely) eschews any definition of rights, and in clause 2 tamely incorporates by reference the substantive provisions of the Convention (which are also set out in a Schedule), just as the Human Rights Act had done. It also refers to various other definitions and provisions of the Convention. Perhaps this was the path of least resistance, but if the idea was to produce a statement of the UK’s own commitment to rights, this is a missed opportunity. Perhaps, on the contrary, the government wanted to signal that rights are simply alien to the UK’s legal system. That would be a deplorable distortion of the (admittedly complex) historical and constitutional truth. Either way, this is an example of the government trying to have it both ways: both distancing the UK legal system from that of the Convention and the Strasbourg court, but also remaining bound to it.

The main apparent exception to this refusal to articulate a distinct list of rights concerns clause 4 of the Bill, which refers to “the right to freedom of speech”. The Convention itself refers, instead, to the freedom of expression. But this distinction is mostly for show. Subclause 2 clarifies that “‘the right to freedom of speech’ means the Convention right set out in Article 10 of the Convention (freedom of expression) so far as it consists of a right to impart ideas, opinions or information by means of speech, writing or images (including in electronic form).” Again, the Bill is acting like Very Grownup child who will not stray out of mommy’s sight.

More importantly, clause 4 is mostly just for show substantively. Its first subclause says that “a court must give great weight to the importance of
protecting” free speech. Put to one side the question of what this even means, and whether courts now fail to “give great weight” to the freedom of speech. This hardly matters, because subclause 3 excludes most conceivable use cases from the scope of clause 4’s application. Freedom of speech is not to be given great weight in deciding “any question [regarding] a provision of primary or subordinate legislation that creates a criminal offence”, or questions about contractual or professional duties of confidentiality, or immigration, citizenship, and national security cases. Just that! What’s left? So far as I can tell, defamation and privacy issues (and note that clause 22 of the Bill puts a thumb on the scale against pre-trial restraints on publication ― though it does not prevent them entirely). It’s not nothing, I suppose, but a provision that grandly announces the importance of an English-sounding freedom of speech (rather than the dastardly Latinate “expression”) only to clarify that it applies only to fairly narrow categories of cases is another example of the Bill’s two-facedness.

I turn now to a different aspect of the Bill, the one to which I have at least a modicum of sympathy: its interpretive provision, clause 3. The Bill does away with one of the contentious elements of the Human Rights Act, section 3 (coincidentally), which provided that “[s]o far as it is possible to do so … legislation must be read and given effect in a way which is compatible with the Convention rights”. Courts took that pretty far, holding at one point that even unnatural readings of statutory provisions were “possible”, provided they did not mess with the main thrust of the legislation at issue. Where primary legislation was concerned, such re-interpretation was the only remedy that could do an applicant some tangible good, and moreover it avoided the need to declare legislation incompatible with convention rights. But by my own lights it was inappropriate nonetheless, and I am not sorry to see it go. I wish the UK allowed the courts to disapply legislation incompatible with rights, but I don’t think that judicial re-writing is an appropriate substitute for such a remedy (see e.g. here).

I also appreciate the Bill’s gesture at textualism and perhaps even an originalism of sorts with its requirement, in clause 3(2)(a) that courts interpreting a Convention right “must have particular regard to [its] text … and
in interpreting the text may have regard to the preparatory work of the Convention”. As an abstract matter, this is the right approach to interpretation. More on whether it makes sense in the context of UK human rights law presently. First, let me note that the Bill doesn’t actually embrace originalism, because it also allows the court to “have regard to the development under the common law of any right that is similar to the Convention right”. Contrast this with the Supreme Court of Canada’s rightful scepticism of jurisprudential developments post-dating the framing of the Charter in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32 (on which see here).

Anyway, the trouble is that this provision is another show of rigour and independence that will do no one much good. To the extent that the courts will follow it and adopt readings of Convention rights that are tethered to the text and “that diverg[e] from Strasbourg jurisprudence” as contemplated by clause 3(3)(b), they simply ensure that the Strasbourg court will find that the UK has violated its Convention obligations as interpreted by Strasbourg itself. It will be a pain in the neck for claimants, and it might allow the government to rage at those unconscionable European judges ― indeed, it is hard not to wonder whether this, as much as anything else, is really the point ― but that’s about it. The UK cannot unilaterally change the way the Convention is interpreted, even if its proposed interpretive methodology is better than the one endorsed by the European Court of Human Rights, and it cannot escape its Convention obligations by proclaiming that Strasbourg jurisprudence is no part of UK law.

Other interpretive provisions aren’t even well-intentioned. Clause 3(3)(a) makes adjudication of Convention rights into a one-way-ratchet by providing that courts “may not adopt an interpretation of [a] right that expands the protection conferred by the right unless the court has no reasonable doubt that” Strasbourg would do the same. While I understand discomfort with the idea that rights can be ― seemingly ― forever expanding by judicial fiat, this is unambiguously bad, though not unambiguously much else. The Bill doesn’t explain what it means by “expand” ― notably, what is the baseline? The existing Strasbourg jurisprudence? The original meaning? The original expected applications? Just what is “the protection” that must not be expanded? Does a new factual scenario count? And, fundamentally, whatever this all means, why is that (by implication) restricting the scope of a right is permitted but expanding it is not? If rights are in some sense fixed, they must be fixed against restriction as well as expansion; indeed, this is an important argument for originalism (see e.g. here), though not the most important one.

Another largely arbitrary limitation on the way rights are to be interpreted and applied is clause 5, which prohibits interpretations of Convention rights that would impose “positive obligation[s]” on public authorities ― i.e. simply require them “to do any act”. (The prohibition is categorical for the future cases, while existing interpretations that would fall afoul of it can only be retained on some stringent conditions.) Now, here too, I have some sympathy for the underlying motivations: so far as I can tell, the Strasbourg court can be fairly cavalier with demands that authorities do this or that, and its conception of the limits of the judicial role is different from that which you will find in common law jurisdiction. The Convention itself protects primarily what are known as negative rights ― that is, “freedoms from” rather than “rights to”. But understandable motivations aren’t enough.

The lines drawn by the Bill are too rigid. While it can be a useful guideline, the distinction between positive and negative rights is not nearly as clear-cut as the Bill’s drafters seem to assume. Sometimes, this is a textual evidence. Take Article 3 of the First Protocol to the Convention, by which the UK “undertake to hold free elections at reasonable intervals by secret ballot”. This is manifestly a commitment to “do acts”, lots and lots of them, and if the UK should fail to live up to it, I don’t understand how a court ― let alone a court having “particular regard to the text” can decline to order the government to get on with it. Once again, Strasbourg, here we come. But this is only the most obvious example. Even a seemingly purely “negative” right, say to be free from a random arrest by a rogue police officer, can have a positive corollary ― namely, to be promptly released if so arrested. Does the government really think a UK court should not be able to infer such a right (assuming it has not already been inferred ― sorry, I am far from being fully caught up on Convention jurisprudence) from Article 5 of the Convention? Meanwhile, the Bill doesn’t address what might actually a more disturbing aspect of Strasbourg’s positive obligations jurisprudence: their indirect imposition on private parties, who are thus burdened with duties the Convention quite clearly didn’t intend to impose on them.

I finally turn to the last issue I want to discuss at some length: the Bill’s attempt to force courts to defer to Parliament. Specifically, clause 7 provides that when determining whether a statutory provision is incompatible with a Convention right and, in the course of doing so, “decid[ing] whether the effect of the provision … strikes an appropriate balance between different policy aims [or] different Convention rights, or … the Convention rights of different persons … [t]he court must regard Parliament as having decided … that the Act” does strike such a balance. The Court is, further, to “give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about how such a balance should be struck are properly made by Parliament”. One problem with this is that this is all quite vague. Indeed, perhaps all this bluster means nothing at all. A court may well stipulate that Parliament decided that its law was fine and dandy and conclude that the greatest possible weight to give to this decision is precisely zero. On its face, the clause doesn’t actually preclude that.

But of course that’s not the interpretation the government will be hoping for. So let’s try taking this clause more seriously. So taken, clause 7(2)(a), which deems Parliament to have appropriately balanced all the rights and policy considerations involved is reminiscent of the late and unlamented “presumption of expertise” in Canadian administrative law, whereby courts were required (albeit by judicial precedent, not an Act of Parliament) to pretend that administrative decision-makers were experts regardless of whether the decision-maker in question had demonstrated any expertise bearing on the issue or could be plausibly expected ever to do so. I have called this “post-truth jurisprudence“, and I regard clause 7(2)(a) as a specimen of similarly post-truth legislation. It demands that the courts accept for a fact something that will by no means always be true. Many rights issues are unanticipated ― indeed, they arise precisely because they were not thought of when the legislation was being drafted. To the extent that, as the Bill’s drafters want us to believe, Parliament does take rights seriously, it will usually redress the issues it can anticipate before enacting legislation. It is no calumny against Parliament, however, to say that it cannot foresee all the problems that can arise. If anything, the calumny is to insist that whatever problems do occur, Parliament must have intended them to.

And then, there’s the matter of the assertion in Clause 7(2)(b) that decisions about balancing rights, or rights and policies, “are properly made by Parliament” “in a parliamentary democracy”. The “parliamentary democracy” bit is either a red herring or a misnomer. There are parliamentary democracies with robust judicial review of legislation ― Germany and India come to mind. What the Bill really means, but doesn’t quite want to say, is something like “a constitution based on parliamentary sovereignty”. Indeed, clause 7(2)(b) is reminiscent of the language in the preamble of Québec’s anti-religious dress code statute, which proclaims that “in accordance with the principle of parliamentary sovereignty, it is incumbent on the Parliament of Québec to determine the principles according to which and manner in which relations between the State and religions are to be governed in Québec”, by way of foreshadowing exclusion of judicial supervision of this law’s compliance with constitutional rights. I cannot help but suspect that the UK government is deliberately less forthright than its Québec counterpart because, yet again, it is trying to have its cake and eat it too. It wants to make courts to rubber-stamp parliamentary legislation instead of passing their own judgment on its compliance with rights, but it doesn’t want to admit that it is undermining the (already weak-form, and often quite deferential!) judicial review that UK courts have been engaging in. It might even be hoping to trade on the respect the European Court of Human Rights has developed for UK courts over the years to persuade the Strasbourg judges that legislation they rubber-stamped was really alright. I doubt it will work very well.


There would be a lot more to say. Much ― really, a shocking part ― of the Bill is devoted to nipping various claims in the immigration and refugee context in the bud. Some ― though less ― also tries to stick it to prisoners. I don’t like that one bit. As the most intelligent and principled opponent of judicial review of legislation, Jeremy Waldron, has come to recognise, if anyone has a claim to the assistance of the courts in order to defend their rights, it is precisely these groups, often unpopular and politically voiceless. Instead of being granted special solicitude, they are disgracefully singled out for special burdens. That said, in various smaller ways the Bill gets in the way of other rights claimants too.

But this is already a long post, and it should be clear enough that, in its present form, the Bill is not much good. To repeat, I’m no great fan of the Human Rights Act that it is meant to replace. That law’s weaknesses are mostly baked in for as long as the UK remains party to the Convention, but perhaps some of them could have been ameliorated. Instead of trying to do that, the government came up with a set of proposals that will, if enacted, make everything worse. Quite radically worse for some people, and less radically, but just enough to be noticeable, for everyone else. And for what? Chest-thumping now, and lost cases at Strasbourg later. Even a sovereign legislature in a parliamentary democracy can only ever say that it will have its cake and eat it too; it cannot actually do it.

Undignified

The Supreme Court holds that life imprisonment without parole is unconstitutional. Its reasons are unconvincing.

In R v Bissonnette, 2022 SCC 23, the Supreme Court unanimously finds unconstitutional the provision of the Criminal Code that, in effect, allowed persons found guilty of multiple murders to be sentenced to life imprisonment without parole. The Court holds that the denial of a chance at release to all those on whom such sentences are imposed makes their imposition cruel and unusual, regardless of the nature of the crimes leading to it, and so contrary to section 12 of the Canadian Charter of Rights and Freedoms. In my view, the Supreme Court is wrong.

The case concerns a man who, executing a premeditated plan, entered a mosque “and, armed with a semi-automatic rifle and a pistol, opened fire on the worshippers. In less than two minutes, he caused the death of six innocent people” [11] and injured others. The prosecution sought to have him sentenced to serve the mandatory periods of parole ineligibility for each of the murders consecutively, amounting to a total of 150 years. But the Superior Court and the Court of Appeal both found that doing so would be unconstitutional. The former re-wrote the law to impose a 40-years ineligibility period. The latter simply struck it down and imposed the default sentence for a first-degree murder, life imprisonment and parole ineligibility for 25 years.


Writing for the Court, the Chief Justice draws on its recent decisions in Quebec (Attorney General) v 9147‑0732 Québec inc, 2020 SCC 32 and Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, to hold that section 12 of the Charter protects human dignity, which “evokes the idea that every person has intrinsic worth and is therefore entitled to respect”. [59] A punishment may contravene section 12 in two distinct ways. The more familiar one, which is involved in cases on mandatory minimum sentences that make up the bulk of section 12 jurisprudence, involves punishment that is grossly disproportionate to the particular offence for which it is imposed. To decide whether a given punishment is contrary to section 12 on this basis, the court must consider the offence. But there is a separate and logically prior category of section 12 breaches. It concerns punishments that are “intrinsically incompatible with human dignity”. [60] Here, the question of disproportionality does not arise at all; the punishment is simply not one that may imposed, no matter the offence. This category is “narrow” [64] but its contents “will necessarily evolve” along with “society’s standards of decency”. [65]

A punishment that belongs to this category “could never be imposed in a manner consonant with human dignity in the Canadian criminal context” because it “is, by its very nature, degrading or dehumanizing”, taking into account its “effects on all offenders on whom it is imposed”. [67] The Chief Justice adds that “the courts must be cautious and deferential” [70] before concluding that a punishment chosen by Parliament is of such a nature. However, once they reach this conclusion, because the imposition of such punishment is categorically forbidden, it can no more be discretionary than automatic, and it will not be mitigated by the existence of a prerogative power of mercy.

With this framework in mind, the Chief Justice considers whether effective life imprisonment without parole, which is what a parole ineligibility period of 50, let alone 75 or more years amounts to, falls into the category of punishments that “degrading or dehumanizing” by nature. In his view it is. There seem to be two somewhat distinct though no doubt mutually supportive reasons why this is so. On the one hand, such a punishment denies the important of rehabilitation as a part of the sentencing process. On the other, it is especially harsh on those subject to it.

On the issue of rehabilitation, the Chief Justice argues that life imprisonment without parole is incompatible with human dignity because “it presupposes at the time of its imposition, in a definitive and irreversible way, that the offender is beyond redemption and lacks the moral autonomy needed for rehabilitation”. [81] Rehabilitation is inextricably linked to human dignity, and “negat[ing] the objective of rehabilitation from the time of sentencing” “shakes the very foundations of Canadian criminal law”. [84] Even if rehabilitation seems unlikely, “[o]ffenders who are by chance able to rehabilitate themselves must have access to a sentence review mechanism after having served a period of incarceration that is sufficiently long to denounce the gravity of their offence”. [85] Rehabilitation can take the back seat to denunciation and deterrence, but not left by the wayside, as it were. The Chief Justice adds that “the objectives of denunciation and deterrence … lose all of their functional value” after a point, “especially when the sentence far exceeds human life expectancy”, which “does nothing more than bring the administration of justice into disrepute and undermine public confidence in the rationality and fairness of the criminal justice system”. [94]

As for the harshness of life sentences without parole, the Chief Justice quotes descriptions of this sort of punishment as tantamount to a death sentence and writes that “[o]nce behind prison walls, the offender is doomed to remain there until death regardless of any efforts at rehabilitation, despite the devastating effects that this causes”, [82] such as “the feeling of leading a monotonous, futile existence in isolation from their loved ones and from the outside world”, [97] which can even lead some to suicide. But the Chief Justice is clear that this does not foreclose each and every sentence that would have the effect of “dooming” the offender to remain in prison until death: “an elderly offender who is convicted of first degree murder will … have little or no hope of getting out of prison”. [86] This is nonetheless acceptable “since it is within the purview of Parliament to sanction the most heinous crime with a sentence that sufficiently denounces the gravity of the offence”. [86] What matters is that the existing 25-year parole ineligibility period does not “depriv[e] every offender of any possibility of parole from the outset”. [86]

The Chief Justice then considers comparative materials, reviewing the laws and some case law from a number of countries, as well as some international jurisdictions. I will not say much about this to avoid overburdening this post, though the Chief Justice’s comments about the way in which such materials can and cannot be used, which echo those of the majority in Québec Inc, are worth considering. I will note, however, that the most pertinent comparative source of them all, the sentencing judgment in the New Zealand case of  R v Tarrant, [2020] NZHC 2192, about which I have written here, is simply ignored. This isn’t entirely the Chief Justice’s fault, since, so far as I can tell, the factums for the prosecution and the Attorneys-General of Canada, Québec, and Ontario also fail to mention it. Yet I find the omission striking, and culpable on the part of both the lawyers and the Supreme Court.

Finally, having found a breach of section 12 of the Charter, and in the absence of any attempt by the government to justify it, the Chief Justice considers the remedy to grant. I will not address this issue here, but stay tuned ― there will be more on it on the blog in the days or weeks ahead.


The Chief Justice’s opinion does not persuade me. For one thing, it sits uneasily with precedent. The Chief Justice duly quotes his predecessor’s judgment for the unanimous Supreme Court in R v Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 SCR 180, to the effect that sentencing principles, “do not have constitutional status. Parliament is entitled to modify and abrogate them as it sees fit, subject only to s 12 of the Charter“. [71] This includes both the principle of proportionality and “other sentencing principles and objectives” [Bissonnette, 53] That would seem to include rehabilitation, which the Chief Justice enumerated in the discussion sentencing principles that precedes this passage. And yet it follows from the rest of his judgment that rehabilitation is in fact constitutionally protected. It has a special relationship with human dignity, and cannot be excluded, contrary to the suggestion in Safarzadeh-Markhali, which, however, is not overruled or indeed even discussed at this point in the Chief Justice’s reasons. This is a muddle, which is not helped by the Chief Justice’s disclaimer of any “intent … to have the objective of rehabilitation prevail over all the others”. [88] If rehabilitation, alone among the sentencing objectives and principles ― even proportionality ― is constitutionally entrenched, then it is indeed put on a different plane.

The Chief Justice might think that his disclaimer holds up because, as we have seen, he insists that rehabilitation only needs to be available to those offenders who have “served a period of incarceration that is sufficiently long to denounce the gravity of their offence”. But he does not consider whether ― and, despite his professed commitment to deference, does not consider that Parliament may have concluded that ― in some cases, “no minimum period of imprisonment would be sufficient to satisfy the legitimate need to hold [the offenders] to account for the harm [they] have done to the community [or] denounce [their] crimes”. [Tarrant, 179] If that is so, then the same reasons that prevent rehabilitation from, say, abridging the sentences of elderly murders ought to prevent it from standing in the way of life imprisonment without parole. But it does so stand, because of its alleged special connection with dignity.  

Note that dignity itself is a judicial add-on to section 12 of the Charter; it’s no apparent part of the provision. As Maxime St-Hilaire and I pointed out in our comment on the first instance judgment in this case

the Supreme Court struggled for the better part of a decade to integrate human dignity into its equality jurisprudence, and gave up ― recognizing in R v Kapp, 2008 SCC 41 [2008] 2 SCR 483 that “human dignity is an abstract and subjective notion”, “confusing and difficult to apply”. [22] 

Something, I suppose, has changed, though the Chief Justice no more bothers to tell us why Kapp was wrong than he does explaining his apparent departure from Safarzadeh-Markhali. And note, moreover, that the alleged violation of human dignity that results from life imprisonment without parole is also the fruit of a judicial say-so. The Chief Justice asserts that such a sentence amounts to denial of an offender’s capacity to rehabilitate him- or herself. But it is at least just as ― in my view more ― plausible to see it as Justice Mander did in Tarrant: as expressing the view that nothing less will adequately denounce the crime. The offender may repent it; he or she may become a saint; but still denunciation will demand nothing less than continuing imprisonment. This is not am implausible view ― again, a thoughtful judgment of the New Zealand High Court has taken it ― and the Chief Justice never confronts, let alone refutes, it.

Even if you disagree with me on this, it remains the case that the Chief Justice’s reasons suffer from a serious logical flaw on their own dignitarian terms. Again, he accepts that some, perhaps a not inconsiderable number of, people will be imprisoned without any realistic prospect of being able to apply for parole, as a consequence of their age at sentencing and the duration of a fit sentence (or indeed a mandatory ― but constitutional ― one). He claims that this acceptable because such a sentence “does not exceed constitutional limits by depriving every offender of any possibility of parole from the outset”. [86; emphasis added] But that’s not how human dignity works. Dignity, if it means anything at all, is personal. Elsewhere, the Chief Justice shows he understands this, for instance when he writes that “rehabilitation is intimately linked to human dignity in that it reflects the conviction that all individuals carry within themselves the capacity to reform and re-enter society”. [83; emphasis added] In other words, because we are separate and distinct individuals, your dignity is not upheld if I’m being treated in accordance with dignitarian requirements. Yet that is exactly what the Chief Justice’s approach presupposes. Because some people get a chance at parole, those who don’t are treated with dignity. It’s a dodge, and a very clumsy one.

Finally, although I do not think that the court’s role is “to weigh fundamental values in our society”, [2] I agree that the courts do not operate in a moral vacuum. Yet they should not seek to fill this vacuum with what Professor St-Hilaire, in our comment on the Court of Appeal’s decision in this case, and I have described as “abstract, and ultimately soulless, humanitarianism”. Sadly, this is exactly what the Supreme Court is doing here. It is striking that almost nothing about the crime that led to this case, beyond describing it as an “unspeakable horror” [1] behind which were “hatred, racism, ignorance and Islamophobia”. [10] Perhaps I being unfair here, but to me this sounds like empty slogans or, to repeat, soulless humanitarianism. By contrast, the Chief Justice’s description of the suffering of those condemned to life imprisonment without parole, which I partly quote above, is specific and vivid. I do not suppose that the Chief Justice is really more moved by this suffering than by that of the victims of the offender here. But, in his otherwise commendable determination to reject vengeance and uphold the rights of the justly reviled, he writes as if he were.


To be clear, rejecting pure vengeance as the basis of sentencing policy is right. So is the empowering the courts to check Parliament’s excesses in this realm. The politicians calling for the section 12 of the Charter to be overridden at the next opportunity are wrong, because they are opening the door to abuse and casual disregard of the rights it protects. But that does not mean that the Supreme Court is necessarily right when it protects these rights, and it isn’t right here. Bissonnette is legally muddled, logically flawed, and morally blinkered. It is not a dignified judicial performance.

Not as Advertised

Legislative debates leading to Saskatchewan’s use of the notwithstanding clause show little interest in constitutional rights

There are two main views out there about what section 33 of the Canadian Charter of Rights and Freedoms, a.k.a. the notwithstanding clause, does, descriptively speaking. One is that it is a means by which legislatures can free themselves from constitutional constraint to effectuate their own policy preferences. The other is that, far from being an escape hatch from the constitution, section 33 allows legislatures to give effect to their own considered views of what the constitution requires. The majority in the recent decision in Toronto (City) v Ontario (Attorney General), 2021 SCC 34 (on which I commented here) recently endorsed the latter view, as defended by Dwight Newman. (An early version of Professor Newman’s chapter making this case is available on SSRN.)

The defenders of this view, including Professor Newman, hold up Saskatchewan’s use of its section 33 powers a few years ago as exemplary in this regard. Geoffrey Sigalet and Ben Woodfinden have written that it was “[p]erhaps the best illustration” of what they had in mind. The Saskatchewan legislature enacted the School Choice Protection Act, 2018 in response to the Court of Queen’s Bench decision in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, which declared unconstitutional the funding of Catholic schools for educating non-Catholic students but not of other religious or secular private schools. (I wrote about that decision here. It was later reversed on appeal in Saskatchewan v Good Spirit School Division No. 204, 2020 SKCA 34. ) The Court of Queen’s Bench found that preferential funding of Catholic schools infringed the principle of state neutrality and thus both the freedom of religion and equality rights protected respectively by sections 2(a) and 15(1) of the Charter.

As part of a broader research project looking at whether legislatures do indeed put forward their own interpretations of the constitution when they invoke section 33 of the Charter, I have read the debates about Bill 89, which became the School Choice Protection Act, in the Saskatchewan legislature. In light of the importance that this particular law has assumed in the notwithstanding clause discussion, I thought it would be worthwhile to share my account of these debates, followed by some comments, without waiting complete the entire project (which I am due to present at the Legacies of Patriation Conference this coming April).


Bill 89 was introduced in the Legislative Assembly on November 8, 2017—almost seven months after Good Spirit was decided. A week later, the then-Minister of Education launched the second reading debate with a speech that occupies all of six paragraphs in the Hansard transcript. The Minister acknowledged that the Bill was “in response to the Court of Queen’s Bench … decision” and referred to the Court’s finding that the state’s duty of religious neutrality, and hence the Charter’s religious liberty and equality provisions had been infringed. (2927) However, the Minister asserted that the province’s “funding model … does not discriminate based on religious affiliation”. (2927) The Minister did not explain why she disagreed with the court; nor did she make any other argument about freedom of religion or equality, beyond this one sentence.

Rather, she insisted that “[h]aving to wait for a decision on the appeal could leave parents and students with a great deal of uncertainty about the future, not knowing if they would continue to be funded to attend a separate school”. (2928) As a result, said the Minister, “[i]t is important to invoke the notwithstanding clause now in order to provide certainty to parents and to students so that they can be assured that they will continue to be funded to attend their school without having to wait for the outcome of an appeal”. (2928) This would be the entirety of the contribution the government side of the Assembly would make to the second reading debate.

That debate went on until May 2018, albeit at a desultory pace (on the last day, one of the opposition members complained that “[w]e haven’t seen this bill up too often on the order paper this session and there are a lot of outstanding questions here that do remain outstanding.” (4222)) A number of opposition members spoke, most of them acknowledging the potential for disruption if the Good Spirit judgment were allowed to enter into force. For one, indeed, “there’s no question that, unchallenged, that [sic] this ruling would make fundamental changes to education and classrooms, not only in Saskatchewan but the entire country”. (3173) They also repeatedly endorsed resort to section 33 in some cases, at least as a last resort, one invoking Alan Blakeney in doing so. (3259-60)

However, opposition members argued the government should not have relied on its section 33 powers before the appeals were exhausted. In the words of the member who spoke immediately after the minister, “[w]hile the appeal is being considered, there is no legitimate need to jump to the notwithstanding clause”. (2928) Another darkly warned of “the unintended consequences of using the notwithstanding clause at this point”, which “could be huge”. (3119) However, the member did not specify what these huge unintended consequences might be. Beyond voicing these concerns with process and timing, the opposition members did not add to the Assembly’s collective consideration of the Charter, despite occasional calls on “every member of this House to look through this court decision, to read through the findings”. (3173) Instead, they took advantage of the “debate” to voice recriminations about the government’s funding and management of Saskatchewan’s schools—an issue that is not obviously germane to the constitutional issues Bill 89 raised.

The second reading debate was concluded on May 7, 2018, and the bill was committed to the Standing Committee on Human Services. The committee met on May 23, for an hour and a half. Much of this time was taken up by exchanges between the (new) Minister of Education, assisted by a Ministry of Justice lawyer, and a single member from the opposition. It is worth noting that the Committee Chair warned the members that the Minister may have felt constrained by the ongoing appeals process, although it is not obvious in what respects, if at all, the Minister was really prevented from making his views clear, or for that matter why he should have felt so constrained.

The Minister reiterated his predecessor’s argument that Bill 89 was a response to the Good Spirit decision and that “[i]nvoking the notwithstanding clause ensures that the government can continue to fund school divisions based on the status quo funding model, which … does not distinguish based on religious affiliation”. (733) This would “ensure that parents continue to have a choice as to where they wanted to send their children, … [if] non-Catholic parents wanted to continue to send their children to Catholic schools and have government funding for those children attending those schools” (734)―something he would later describe as “protecting the rights of non-Catholic parents”. (737) The Minister further asserted that “in terms of using it to protect the rights of individuals … it’s a fair use of the [notwithstanding] clause. But from that perspective, I think that any time that you’re using that particular clause, I think you want to be very cautious and very careful about that.” (737) In response to an opposition member’s question, he also noted that, except with respect to the funding of non-Catholic students at Catholic schools, the existing constraints on discrimination in school admissions would not be affected by Bill 89. (740) The Minister pointed to the uncertainty with which the parents were faced, a concern the opposition member shared, and claimed that this concern could not have been addressed in any other way. (738) Yet he later admitted that “whether there are other tools that can be implemented” or what they might be was something he was “not prepared to talk about”, “because [he] ha[d]n’t given a whole bunch of thought to them”. (742) It would, rather, be “for the parties to start giving some fairly serious thought to what this all looks like at the end of the day”. (742) There was no debate on the single amendment approved by the select committee and no Third Reading debate either. Bill 89 received Royal Assent on May 30, 2018.


To be blunt, if this is supposed to be a good advertisement for legislative engagement with the constitution, the product is not an impressive one. A key proponent of section 33, Peter Lougheed, who was Alberta’s Premier at the time of Patriation, would later argue that, in deciding to invoke the notwithstanding clause “a legislature should consider the importance of the right involved, the objective of the stricken legislation, the availability of other, less intrusive, means of reaching the same policy objective, and a host of other issues”. (16) Professor Newman has similarly lofty expectations. But there is precious little of this in evidence in the Bill 89 debates.

The importance of the right involved? No one, neither the Ministers nor opposition members, engage with freedom of religion, equality, and the state’s duty of neutrality at all, unless we want to count the Ministers’ bald assertions that the funding system the court has declared to be discriminatory does not discriminate. It is fair to say that politicians should not be held to the same standards of reasoning as judges, but surely we’d expect to see something, anything, by of an explanation. Nor does any of the speakers question why the funding model was set up the way it was, with a privilege for Catholic schools that was denied to others. Nor, evidently ― and despite the Minister’s initial, quickly self-contradicted, assertion to the contrary ―, has anyone given serious thought to alternatives to this scheme and to using the notwithstanding clause to keep it in existence, although ― as I wrote here shortly after the decision was rendered, an obvious alternative does exist: the legislature could fund non-Catholic minority schools on equal terms with the Catholic ones.

The only relevant concern that was voiced during these proceedings was that with ensuring stability for non-Catholic students in Catholic schools and their parents. This is, obviously an issue that deserved a lot of attention. Yet paradoxically ― and, certainly by the time of the committee discussion, everyone was aware of this! ― invoking section 33 was only a short-term fix, not a permanent solution to this difficulty. Yet no thought was given either to a system of equal funding for all schools, which would have solved the constitutional problem, or to a system of gradual transition out of the arrangement the Court of Queen’s Bench had found to be unconstitutional, at least for those children who were only starting their schooling.

One final thing to note is that, quite apart from the quality of the legislature’s consideration of the issues, the quantity is rather lacking. In particular, I find the lack of participation by the government side of the legislature remarkable, and not in a good way. The only remotely serious discussion ― and even this is a generous assessment ― of the rights issues happened in committee, where the Minister was present in his executive capacity, not as a legislator. The government had a strong majority in the legislature ― but it was largely a silent one. In a very real way, the legislature did not offer any views at all on Bill 89.


In short, the Saskatchewan legislature did not put forward any alternative interpretation of the Charter rights involved ― it paid no mind to them at all. Its consideration of justified limitations on these rights was limited. The solution it adopted was not a permanent one. In my respectful view, those who hold up this episode as a proof of concept for the claim that legislatures can use section 33 to give effect not to brute majoritarian preferences but to constitutional judgments are wrong to do so. Perhaps, as I consider other recent episodes where section 33 was used or where its use was serious contemplated, I will find better support for their theory. But this ain’t it.

The Law of Bonkerstown

Does the constitution mandate the soft bigotry of low expectations?

In a much-noticed decision, Ontario Teacher Candidates’ Council v The Queen, 2021 ONSC 7386, the Ontario Divisional Court has declared unconstitutional a standardized test would-be teachers were required to take in Ontario, as well as provisions of the Ontario College of Teachers Act and regulations made under it that required the test to be administered. The Court found that the test infringed the equality rights of “racialized” candidates under section 15 of the Canadian Charter of Rights and Freedoms, because they (or at least some groups among them) had significantly lower pass rates than white ones. The decision is perverse in itself, as well as showing the perversity of section 15 jurisprudence.

The case can be summarised quite simply. In the face of concerns about falling student performance on mathematics tests, the Ontario legislature introduced a requirement that aspiring teachers themselves pass a standardized test. Regulations were drawn up and a test designed, drawing on a “bank of math questions used for Grade 3, 6, and 9 assessments” for its substantive part and “on Ministry policy documents for the pedagogy component”. [24] Alas, despite two reviews “for bias and sensitivity to equity issues” [25] the results of a trial run and of the first official iteration of the test showed considerable disparities between ethnic and linguistic categories of test-takers. A group of would-be teachers, supported, it is worth noting, by the teachers’ union, challenged the test on the basis that these disparities amounted to unconstitutional discrimination.

In a unanimous opinion by Justices Backhouse and Nishikawa, the Divisional Court agrees. Following Fraser v Canada (Attorney General), 2020 SCC 28, it explains that section 15 rights are limited whenever state action impacts a group defined by a trait it names or an analogous one more severely than a relevantly comparable group, and this disparity “has the effect of reinforcing, exacerbating or perpetuating disadvantage”. [56] Crucially, there is no need for a demonstrated causal connection between the disparity and the disadvantaged group’s characteristics, and no need for all of the disadvantaged group’s members to be similarly affected.

This test is met here by the statistical showing that some non-white groups have done noticeably worse than white test-takers ― a result that the Court ties to the fact that “[t]he education system in Ontario has historically imposed disadvantages on Black and Indigenous students” [64] and that “Black and Indigenous students tend to be over-represented in less challenging, basic and general level courses, and under-represented in advanced courses”. [65] Such students, the Court says, would do better if there were more teachers who shared their background, but there are not ― on the contrary, “[t]wenty-six percent of Ontario students are racialized. However, only thirteen percent of teachers are racialized”. [67] In addition to the statistics, the Court discusses what it describes as “qualitative evidence”, in the form of an affidavit by one candidate, of African origin, who found taking the test difficult. One reason for this was that the test “is taken on a computer”, while the candidate “ha[d] never used a computer or calculator for math and ha[d] never taken a computer-based math test” [89] ― though this candidate was actually successful on the math part of the test, and only struggled with the pedagogy one.

The Court then asks whether this limitation of equality rights is justified in a free and democratic society. It accepts the government’s submission that the test is imposed to improve student performance and is a rational way to do so. Furthermore, the issue involves balancing would-be teachers’ rights and the needs of the students, which points to “a highly deferential approach” [132] to deciding whether the test is a minimally impairing way of achieving the government’s purposes. Yet the Court still finds that the test is not justified. This is, crucially, because the government would do as well ― or, the Court strongly suggests, better ― if the test were replaced with a requirement that aspiring teachers be required to take a math course as part of their mandatory education. The Court’s key finding is that this

would be significantly less impairing of equality rights. There is a plethora of evidence in the record highlighting the disproportionate impacts of standardized testing based on race … In contrast, there is no evidence to suggest that these negative diversity impacts would exist in the context of a mandatory math course (i.e. that racialized teacher candidates might disproportionately fail these math courses), and we do not think such an inference can be made on the basis of logic or common sense. [142]


This way lies madness. The Divisional Court is, of course, bound by the Supreme Court’s test at the section 15 stage of the analysis, and for the most part it should not be faulted for the way in which it applies it. What its application of the test makes clear, though, is that this test is, to use a technical term, bonkers. It compels the conclusion that constitutional rights are limited ― or, as the Court puts it, prima facie breached ― by what could, for all we know, be statistical artefacts. (One point that arises in the Court’s discussion is whether data from one trial and one official test are sufficient to support its conclusions. There is a logic to the Court’s response that “a claimant group must wait years before it is in a position to challenge a regulation that it alleges is discriminatory”, [85] but that’s because we are used to thinking of constitutional violations that are more concrete and immediate than what spreadsheets capture.) References to historical discrimination and current statistical disparities are only for colour; they do are not meant to have any actual explanatory power. They cannot, for instance, account for the fact that, on the trial edition of the test, the disparity between candidates of “Caribbean” and “African” backgrounds was almost as great as that between “Caribbean” and “European” candidates. A potential constitutional violation is made out by a showing no one needs to and, quite possibly, can explain. This is a surrender to, indeed an embrace of, irrationality masquerading legal doctrine.

Meanwhile, the Divisional Court’s approach to section 1 is perverse in its own right, though it is also consistent with the underlying logic of the Supreme Court’s approach. The Court says that the province should rely on courses in mathematics rather than tests to ensure that teachers are competent, because there is no evidence of disparate effect of a course requirement. For one thing, note that the Court doesn’t say there is evidence of equal outcomes. It’s just that nobody seems to have studied the matter. And consider: if the course uses rigorous assessment of the same kinds of skills that the test measured, why would the outcomes be different? Alternatively, how will we know that the reason for the course requirement not yielding disparate outcomes won’t be a lack of rigorous assessment? I’ve taught enough at universities to know that this is not exactly a far-fetched hypothesis.

Here is the desperately sad thing about the Court’s reasoning. The Court notes that one problem with the relative paucity of minority teachers is that, at least in the United States, “non-Black teachers had significantly lower expectations of educational attainment for Black students than Black teachers”. [68] Yet its ruling manifests and perpetuates exactly this sort of soft bigotry of low expectations. We can’t expect, it says, “racialized” candidates to succeed on a standardized test twice vetted for sensitivity and bias. The “qualitative evidence” on which the Court relies is telling in this regard. It is, apparently, too much to ask of a teacher, or at any rate, on the Court’s logical, a “racialized” teacher, in the 21st century to be able to do a test on a computer. We shouldn’t care that a future teacher cannot answer multiple-choice questions about pedagogy, because hey, he is “uniquely qualified to broaden students’ awareness and understanding of Franco-African culture and cross-cultural world views”. [91] This presumption that letting members of minority groups cut corners is the only way they can succeed is what disregards the constitutional mandate of equality ― not holding them to the same standard as everyone else.

And yes, of course, it’s not impossible that the standard is set in an insidiously biased way. Needless to say, a standard vetted, twice, for precisely this potential problem by people genuinely concerned about this possibility is unlikely to have this problem. Still, perhaps. But then it should be possible to demonstrate that this is so. As Justices Brown and Rowe say in their dissent in Fraser, one should not assume that a statistical disparity in outcomes between groups or a correlation between disadvantage and membership in a group equals causation:

where one is dealing with complex social and economic considerations … one can readily assume that there are many factors involved, some of which will give rise to causation while others will simply be the result of coincidence (that is, caused by independent factors). [180; emphasis in the original]

Let me end this part of the past by quoting Chad Williams, writing for Fair for All:

the fundamental assumption of critical race theory is that disparities between racial groups are in themselves evidence of racism. This assumption is faulty because it fails to allow or account for the numerous reasons other than racism that racial groups might have different outcomes. At the population level, these plausible reasons include age, geography, and, of course, culture. Many analysts of group differences are trapped in the false binary that these differences must result from either racism or genetic differences. However, Thomas Sowell and others have made compelling arguments about why this simply is not true. This is not to say that past disparate treatment has had no effect on current disparate outcomes, but it certainly cannot be the only cause for these disparities. Accordingly, a policy that begins from the faulty assumption that disparities equal racism is bound to fail as a bulwark against what actual racism still exists today.

This policy is the law the Supreme Court’s created in Fraser, and the Divisional Court’s decision in Candidates’ Council illustrates the tragic consequences it is bound to have.


Before addressing the question “and now what?”, let me point out two things about this case that I do not understand. One has to do with what exactly the Court is deciding. Beyond explaining that a recent amendment to the College of Teachers Act required the test to be set up and regulations under the Act gave effect to the requirement, the Court’s reasons focus entirely on the test. The evidence, such as it was, had to do with the results of different groups of candidates on the particular test they were administered, and the experience of some individual candidates. Yet the court not only invalidates the test, but also the statutory provision and the regulation pursuant to which it was created. It doesn’t at all explain why. Under the heading “What Is the Appropriate Remedy?” it simply states that “[a] declaration” to this effect “will issue”. [161] The province can’t create a new test even if thinks that it might come up with one that will not produce the disparities this one did. That doesn’t seem right to me, and the absence of any explanation does not speak well of the Court’s commitment to transparency and to judicial craft.

Relatedly, I do not understand the Court’s approach to the standard of review. The Court deals with it briskly, citing  Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, for the proposition that “constitutional questions are reviewed on a standard of correctness” [50]. But that seems too quick. Vavilov makes a

distinction between cases in which it is alleged that the effect of the administrative decision being reviewed is to unjustifiably limit [Charter] rights … and those in which the issue on review is whether a provision of the decision maker’s enabling statute violates the Charter. [57]

The former type of cases is not, ostensibly, decided on the correctness standard at all, but following the framework set out in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and refined in a number of subsequent cases. Only the latter attract the correctness standard. Co-blogger Mark Mancini has argued that this is incompatible with Vavilov‘s overall thrust, and so have I, but that’s how it is until the Supreme Court says otherwise. Now, as I’ve alluded to just above, Candidates’ Council seems to involve both types of issues. The design of the test is a discretionary administrative decision. It’s not prescribed by statute or regulation: regulation 3 of the Proficiency in Mathematics Regulations, made under the College of Teachers Act, simply provides that “[T]he Education Quality and Accountability Office shall develop English and French versions of a mathematics test”. The test, then, should in principle be assessed under the Doré framework, on a reasonableness standard. Meanwhile, the Regulations and the enabling section of the Act are obviously the kind of provision whose constitutionality falls to be addressed on the correctness standard under Vavilov.

Does that make sense? No, not really. I would even say, none at all. But that’s what Vavilov pretty clearly seems to require. It is puzzling that the Court does not even attempt to engage with its demands. This isn’t even a matter of fudging the law to get to a desired outcome ― as we have seen, the Court makes a show of being deferential while ostensibly applying the correctness standard, and strikes down the test anyway. It could easily have reached the same result under Doré. I suppose the absurdity of the Vavilov/Doré cohabitation was simply too much to deal with.


So what to do about this terrible decision? Unsurprisingly given both the Zeitgeist and the egregious nature of this decision, the n-word ― “notwithstanding” ― has been thrown around since the decision came out. More than on other occasions, I understand the impulse. But, as before, I remain of the view that it must be resisted. While using the “notwithstanding clause” to undo this particular decision may be a short-term fix, it is not a genuine solution to the underlying problem. The invocation of s 33 of the Charter will have to be renewed every five years. A legislature that takes a different view of either the substantive issues or indeed the propriety of using the notwithstanding clause itself need not do so. More importantly, using the notwithstanding clause to resurrect this particular policy does nothing to prevent other judgments, striking down other policies, from applying the same misbegotten principles as the Divisional Court applied here. Are the supporters of the notwithstanding clause saying that it should be used, René Lévesque-style, to insulate all law from judicial review? They’ve always been angry at me for suggesting that that that’s where their positions naturally led.

The immediate solution, of course, is for the province to appeal. One should hope that the Court of Appeal, and the Supreme Court if need be, will restore sanity, if only on the section 1 issue, on which Fraser does not control. Otherwise, the appropriate solution ― and it is probably well worth pursuing regardless of the outcome of the appeal ― is an amendment to section 15 of the Charter. At a minimum, it should endorse the dissenting position in Fraser, requiring a showing of causation for statistical disparities to be regarded as limiting equality rights. More radically, the amendment could excluding disparate impact discrimination from section 15’s scope. My tentative opinion is that this is the better, cleaner option ― but I am open to persuasion. Either way, an amendment is both a more permanent ― not to mention transparent and honest ― way of avoiding similar disasters in the future than using the notwithstanding clause to revive this particular policy, and a more modest one than a blanket invocation of the notwithstanding clause to prevent section 15 challenges at all would be.

Case Not Made

Unconvincing arguments against judicial enforcement of rights under the UK’s Human Rights Act 1998

Policy Exchange has recently posted a paper by Richard Ekins and John Larkin QC on “How and Why to Amend the Human Rights Act 1998“. Lord Sumption has written the foreword, picking up on themes explored in his Reith Lectures, which I have summarised and commented on here. There is much to disagree with in the paper, as well as some interesting ideas. Time permitting I might do a short series of posts on it. For now, I want to focus on one idea raised by Lord Sumption and addressed in a rather different way in the paper. The idea in question is that the UK’s Human Rights Act 1998, and so presumably any constitutional or statutory enactment that grants judges the authority to verify whether legislation and administrative decision-making complies with a set of enumerated individual rights, results in judges making decisions that are political rather than properly judicial.

Lord Sumption writes that the Act “treats broad areas of public policy as questions of law, and not as proper matters for political debate or democratic input”. (5) One example that seems to exercise him ― and that has exercised the UK’s political leaders for years ― is that of the franchise. He denounces the European Court of Human Rights for having rejected prisoner disenfranchisement despite its approbation by legislatures on the basis that “it was a question of law and not a matter for Parliament or any other forum for democratic input”. (5) For Lord Sumption, “the suggestion that the electoral franchise is not a matter in which the representatives of the general body of citizens have any say, seems startling”. (5)

But, more broadly, Lord Sumption argues that cases involving balancing between public policy objectives and individual rights ― which is a great many under the European Convention on Human Rights and the Human Rights Act and, in theory, all of them under the Canadian Charter of Rights and Freedoms ― are not fit for judicial resolution. Since policy-making means “a choice between competing considerations, and sometimes compromise between them … [i]t is necessarily a political question.” (6) Treating such choice “as a question of legal proportionality, requiring judges rather than elected representatives to assess the relative importance of the various values engaged before deciding which should prevail” (6) is, in his view, a fatal mistake.

As I have previously argued here in response to another distinguished, if less famous, judge, this argument is misconceived. Similarly to Lord Sumption, Chief Justice Joyal of the Manitoba Court of Queen’s Bench has expressed the worry that

judicial incursion into subject areas and issues of profound political, moral and social complexity[] has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.

In response, I pointed out that, taken all the way, this leads one to Jeremy Waldron’s rejection of judicial review of legislation. Chief Justice Joyal did not, ostensibly, want to go all the way. Lord Sumption might ― indeed, he may well want to go beyond Professor Waldron, who specifically objects to strong-form judicial review, where courts can actually refuse to apply legislation, not so much the weak-form arrangement that the Human Rights Act 1998 put in place. But strongly argued though it is, this position is not all that compelling. As I wrote in response to Chief Justice Joyal,

The frontiers between law’s empire and that of politics are not immutable. There is no reason to believe that the position that every social issue is by default subject to politics is entitled to be treated as a baseline against which a polity’s constitutional arrangements ought to be measured, and any departure from it justified and limited. It is the position of some political cultures … But these political cultures have no automatic claim to superiority or to permanence. They are liable to be supplanted, just as they supplanted their predecessors.

Issues cannot be declared political ― or non-political, for that matter ― by stipulation. For instance, the extent of the franchise can meaningfully be addressed in the courts, as it has been under the European Convention and in Canada. It takes more than a bald assertion that this is truly a political matter, or the existence of public controversy, or the involvement of moral considerations, to show that courts should keep out of it or defer to political judgments that are, as often as not, driven by prejudice or self-interest. (As to the point about morality: courts make judgments influenced by morality when applying concepts such as reasonableness, negligence, or unconscionability. One can certainly be sceptical of the resulting jurisprudence, but it’s not plausible to claim that morality is something courts should always stay away from.)

Rather, for any given right that the designers of a constitutional order might consider, they should ask themselves whether, given their respective strengths and weaknesses, a given institution would do a better job of protecting ― better, that is, all things considered, including the downsides of allocating the task to this institution instead of a different one. Institutional considerations have to be front and centre in this analysis. Issues cannot be declared to be political or legal apart from a consideration of actual political and legal institutions that would be dealing with them. Lord Sumption only gestures at institutional factors, claiming that “judges lack the information, experience and democratic legitimacy to make … choices” involved in the proportionality analysis. Even here, the appeal to democratic legitimacy is largely question-begging. It’s not obvious that these choices need to be made democratically, as is evident from the fact that, in the absence of the Human Rights Act, many of them would be made by bureaucrats rather than Parliament.


Professor Ekins and Mr Larkin engage with the institutional issues to a greater extent. To be sure, they too assert that proportionality analysis

requires judges … to answer a series of political questions, about the legitimacy of the legislative objective, the suitability of the means adopted to that objective, and, especially, about the fairness of the balance to be struck between attaining that objective and the claimant’s interest. [33]

But they also say that these “are not questions that a court is well-placed by training or ethos to answer”. [33] They worry, too, “that courts will be drawn into political controversy, with litigation a rational means to enjoin the court to lend its authority to one’s cause”. [34] They also claim that the outcome of rights litigation often depends on the subjective and personal beliefs of the judges hearing the case (and hence on who happens to be on the relevant court and panel).

What should we make of this? To start, it’s important to note that, although Professor Eakins and Mr Larkin have very little to say about Parliament and the executive, deciding which institution should be given the role to uphold rights is necessarily a comparative exercise. It is not enough to point to the shortcomings of the courts, even if these are real enough. It is necessary to show that courts are worse than legislatures, ministers, and bureaucrats, either on a specific dimension where it is possible to compare them directly or on due to some concerns unique to them. With this in mind, I don’t think that Professor Ekins and Mr Larkin make a convincing case at all.

It is of course true that judges lack the “training” that might be helpful to answer the sort of questions that arise in the course of proportionality analysis. But what training have members of Parliament? What about Ministers? Are they trained to weigh up rights when they make policy? They are not, of course. As for ethos: for the high-minded rhetoric of the defenders of legislative articulation of rights, it is very far from obvious to me that politicians care about rights on a regular basis. They do sometimes, of course, especially if the rights of their constituents may be at issue. But their record is patchy at best, and does not suggest an ethos of weighing up rights and social needs in a rigorous fashion.

The most that Professor Ekins and Mr Larkin say on this is that, when it comes to delegated legislation, “Parliamentary scrutiny, including anticipation of political controversy, is an important discipline on ministers, even if secondary legislation is almost never rejected outright”. [48] We are, I suppose, to take this claim on faith. Meanwhile, Professor Ekins and Mr Larkin also note that there are “limits on parliamentary time” which, they say, combine with “scarcity of political capital” to “make[] it relatively difficult … for Parliament to legislate to correct judicial lawmaking” in relation to rights. [40] To their mind, this is a sign that “judicial lawmaking” needs to be curbed. But one can just as easily argue that limits on Parliament’s time and reluctance (or indeed inability) to spend political capital on decisions that will be unpopular even if right are a key reason for wanting judges to make decisions about rights, especially about the rights “discrete and insular minorities”, in the American parlance, and of especially unpopular groups such as criminal suspects and prisoners (a concern that Professor Waldron, for example, has come to acknowledge).

The concern about courts being drawn into politics is legitimate though it is all too often self-fulfilling, in the sense that it is commentators and politicians who share Professor Ekins’s and Mr Larkin’s views who generate much of the controversy. Still, it is fair to worry about the authority of the courts being undermined by their having to make decisions that are bound to be politically controversial. Then again, would the authority of the judiciary not be negatively affected by its having to blindly apply laws that disregard human rights? Besides, occasional flair-ups of criticism notwithstanding, in countries like the United States in Canada, where courts have been given the mandate to make decisions about rights long before the United Kingdom, their standing in the public opinion is much higher than that of legislatures. Indeed, there is an element of self-contradition in the arguments advanced by Professor Ekins and Mr Larkin: if the courts were really suffering from a legitimacy crisis due to all those controversial decisions the Human Rights Act foisted on them, why would Parliament need to expend scarce political capital on disagreeing with them? The authority of the courts, then, may benefit rather than suffer from their having jurisdiction over rights issues.

As for the alleged subjectivity of judicial decisions regarding rights: I think this too may be an issue. It may be more of an issue in the United Kingdom, where the Supreme Court (almost) never sits en banc, than in the United States and in Canada, whose supreme courts do (respectively always and, these days, usually). Then again, if this is acceptable in other cases, which can also divide the bench, sometimes closely, perhaps this is no more concerning where rights are involved. More importantly, though, the criticism of the courts, in the abstract, does not tell us much. In what sense is decision-making by Parliament, by ministers, or by officials not subjective? When it comes to Parliament and ministers, their inclinations and decisions will fluctuate depending on which party is in power. Precedent and legal doctrine constrain judicial decisions based on rights imperfectly. But if constraint and principle are valuable in such decision-making, then courts still do better than the other branches of government.


So neither Lord Sumption nor Professor Ekins and Mr Larkin have advanced particularly convincing arguments against having judges enforce individual rights. Rights issues are not inherently incapable of judicial enforcement, and the institutional arguments against having the judges deal with them are far from obvious. None of this fully addresses an argument along Waldronian lines, one that is purely about ineradicable disagreement and the fairness of resolving it via democratic procedures. But that argument only goes so far ― and, in particular, as Professor Waldron recognised, I think, it does not obviously apply to prevent courts from overriding decisions by the executive branch, which is what Professor Ekins and Mr Larkin want to do.

The Woke Dissent

The thinking animating the dissenting opinion in Ward’s case would destroy freedom of expression in the name of equality and safety

As promised, in this post, I come back to the dissenting opinion in Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43. I commented (mostly) on the majority opinion in my last post. In that post, I referred to The Line‘s editorial by Jen Gerson and Matt Gurney (possibly paywalled, but you should subscribe!), which addressed the case, and especially the dissent, in some detail. Ms. Gerson and Mr. Gurney write that “[t]here’s an incredible amount of popular modern discourse seeping into judicial reasoning” in the dissent ― that “culled plausible-sounding legalese from Twitter logic”. That’s not a bad way of putting it.

I will put it slightly differently. The dissent is, in a word, woke. And I don’t mean “woke” as a generic insult. Nor do I mean, incidentally, that Mr. Gabriel is a snowflake. As noted in my last post, I think he deserves sympathy on human level, though not the protection of the law for his claim. Rather, what I mean by calling the dissent woke is that it embraces a number of specific tenets of contemporary social-justice ideology, which, if they become law ― and remember that they were one vote away from becoming law ― would be utterly corrosive to the freedom of expression.


For one thing, the dissent erases the line between words and actions, so that disfavoured words are treated as deeds and therefore subjected to vastly expanded regulation. Justices Abella and Kasirer write:

We would never tolerate humiliating or dehumanizing conduct towards children with disabilities; there is no principled basis for tolerating words that have the same abusive effect. Wrapping such discriminatory conduct in the protective cloak of speech does not make it any less intolerable when that speech amounts to wilful emotional abuse of a disabled child. [116]

In what is going to be a theme of my comment, this twists the meaning of words beyond recognition; conduct is conduct and speech is speech. Using words instead the proverbial sticks and stones is not just a disguise. It’s the better part of civilization. The law relies on a distinction between words and actions all the time. This is a principle, and a general one, but it has also been a cornerstone of the law of the freedom of expression in Canada since the early days of the Charter. In my last post, I gave the majority grief for disregarding precedent and doctrine. The dissent does the same, only much worse.

Besides, as I once noted here, the negation of the distinction between speech and conduct often combines with a belief that violence against some politically heretical group or other is permissible into the toxic belief that “[w]hat one says, or does, is expression; what one’s opponents say, or do, is violence”. This, in turn, means that law dissolves into a raw competition for political power, with the ability to decide whose expression will stripped of its “protective cloak” and proscribed as the prize.

Another way in which the dissent is woke is its wilful blindness to the context in which words appear. Like critics dragging a writer for the words of an unsavoury character, Justices Abella and Kariser claim that

Mr. Ward remarked that he defended Mr. Gabriel from criticism only until he found out that he was not dying, at which point he took it upon himself to drown him. This implies that it would be too burdensome for society to accept Jérémy Gabriel in the mainstream permanently and that ultimately society would be better off if he were dead. 

No, it really doesn’t. Mr. Ward’s persona is, as The Line‘s editorial puts it, that of That Asshole. He is making an obviously hyperbolic statement, a joke ― not remarks at a political meeting. The joke was in poor taste, to be sure, but in no non-woke person’s mind is it a statement about what is best for society. Insofar as Mr. Ward’s comedy was meant as a social commentary, it targeted taboos around joking about certain people or subjects ― not the supposed burdens, or otherwise, of disabled persons for society.

A further symptom of coddling wokeness in the dissenting opinion is its bizarre insistence that Mr. Ward bullied Mr. Gabriel. Justices Abella and Kasirer claim that “[i]n a 2012 interview, Mr. Ward himself acknowledged the view that his comments constituted bullying”. [196] But this isn’t quite true. They quote the relevant interview passage early on in their opinion: it is the interviewer who suggests that Mr. Ward’s jokes amounted to bullying. Mr. Ward himself says “I don’t know. I don’t know. It’s a good point.” [126] Not quite an admission, by my lights. But, in any case, the idea that comments about a person whom one has never met and will likely never meet, over whom one has no actual power, with whom, indeed, one shares nothing at all can amount to bullying are just twisting the meaning of this emotionally charged word. Nobody can defend bullying of course, just as nobody can, say, defend racism, and Justices Abella and Kasirer again take a leaf out of the woke playbook to redefine words in a way that makes their decision seem beyond debate.

Now, Mr. Gabriel’s classmates seem to have bullied him, and to have used Mr. Ward’s jokes in doing so. But it is only on a woke view that Mr. Ward can be liable for their behaviour. He did not commission or instigate their actions. He doesn’t even know about their existence. Again this is reminiscent of calls for the “cancellation” of a work of fiction or some scientific article on the basis that, regardless of its author’s intentions, it will contribute to discrimination by others.

Then again, Justices Abella and Kasirer wouldn’t agree that Mr. Ward had no power over Mr. Gabriel. A preoccupation with power hierarchies imagined to run entirely along the lines of “privileged” and “oppressed” demographic categories is perhaps the clearest sign of their opinion’s wokeness. They write that

that there is value in the performance of comedy and in criticizing those in power in society. But in the circumstances of this case, condoning the humiliation and dehumanization of a child, let alone one with  a disability, would fly in the face of the very idea of the public interest. … Mr. Ward’s message about Mr. Gabriel, albeit one said in jest, was that he was disposable and that society would be better off without him. Unlike other “sacred cows” targeted by Mr. Ward, Jérémy Gabriel fell victim to a stark power imbalance here. [215-16; paragraph break removed]

This focus on power imbalance explains, I suspect, the seeming inconsistency between the position of the dissenters in Ward and in  Toronto (City) v Ontario (Attorney General), 2021 SCC 34 highlighted by Christopher Bredt. (Recall that the the same four judges dissented in both cases.) The Lawyer’s Daily reports that Mr. Bredt, who was part of the legal team that

represented the intervener Canadian Civil Liberties Association, said he finds it incongruous that the minority in the Ward appeal comprises the same four judges who earlier this month vigorously defended freedom of expression to the extent that they would have struck down the Ontario government’s downsizing of wards during Toronto’s municipal election.

The incongruity resolves itself once you account for the fact that in City of Toronto the “stark power imbalance” ran the other way ― the free speech claimants were the less powerful side, and hence the good side in the moral framework that decides worth according to where a person or group stands in an a priori power hierarchy.

In the real world, power hierarchies are not so neat ― which is one of many reasons why they should not be given nearly as much importance as the woke worldview attaches to them. As The Line editors point out,

this is a kid who became famous in all of Quebec, sang, and was enthusiastically cheered by entire hockey stadiums. He performed in front of some of the most famous people in the world. And we’re to believe that the ugly jokes of one stand-up comedian was enough to undo all of this honour and fame? That Mike Ward is uniquely responsible for a disabled child’s ostracization from his peer group and suicidal thoughts? 

Justices Abella and Kasirer insist that a celebrity must be treated like everyone else, and does not lose his rights. That’s true ― in a liberal legal system where everyone has equal rights to begin with. In a system whose starting point is not equality, but people’s relative positions in power hierarchies, insistence that cultural prestige, sympathy, and (in other cases) even wealth are to be disregarded are absurd. But it too is characteristic of the specifically woke take on power and inequality.


Like some others who have written about Ward, I find it frightening that this opinion got four votes at the Supreme Court. Had the dissenters found another colleague to agree with them, it’s not only “edgelord comedians”, in The Line‘s words, that would have come under the potential fire of human rights tribunals. Make a disparaging remark about a member of any of the protected groups that references that membership? There, you’re a law-breaker. Make fun of Greta Thunberg in a way that touches on her Asperger’s and selective mutism ― remember, it doesn’t matter that you’re not targeting her for that? Don’t be surprised if the equality bureaucracy comes calling. (I am grateful to my friend and sometime co-author Akshaya Kamalnath for this example.)

And remember, too, that under Québec’s Charter of Human Rights and Freedoms “political convictions” are a prohibited ground of discrimination as well. Of course, for the foreseeable future, mockery of literal Nazis is undoubtedly safe. You wouldn’t expect human rights tribunals condemn right-thinking members of society! But that’s only good until the day “common good” conservatives get their chance to appoint these tribunals’ members. Then, I’m afraid, the boundaries of permissible discourse will shift.

But abuse of anti-discrimination law as an instrument of censorship would be only the beginning. If speech can be conduct; if the intent of a speaker doesn’t matter for attributing liability for words; if public criticism or mockery can be bullying; if speech can be censored based on how people over whom the speaker has no control might respond to it, or if the right to be free from censorship depends on one’s place in a dogmatic hierarchy of oppression; then hardly any restriction on freedom of speech cannot be justified. It will all be done in the name of safety and equality of course. But it will be no less the end of the freedom of speech, and of democracy, for all that.

It Ends Well

Thoughts on the Supreme Court’s narrow but seemingly decisive rejection of a right not to be offended

Last week, the Supreme Court delivered its judgment in Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43. By a 5-4 majority, it quashed an award of damages a human rights tribunal had granted to Jérémy Gabriel, a child celebrity, whom a well-known comedian, Mike Ward, had cruelly mocked. As Jen Gerson and Matt Gurney put it in The Line’s editorial (possibly paywalled, but you should subscribe!)

Ward … decided to become That Asshole, the edgelord comedian who pointed out that the kid wasn’t very good. In a few stand-up bits, Ward called the child ugly, and noted that the performances were tolerable only because he thought the singer’s condition was terminal. Nice guy. (Paragraph break removed)

The tribunal, and the Québec Court of Appeal found that this amounted to discrimination in the exercise of Mr. Gabriel’s right to “the safeguard of his dignity” under section 4 of Québec’s Charter of Human Rights and Freedoms, a.k.a. the Québec Charter. The majority of the Supreme Court resoundingly holds otherwise.

Instead of my usual blow-by-blow summary and comment, I will offer some more condensed thoughts on a few striking aspects of this case. While the most important thing about Ward is what, if anything, it means for the freedom of expression, there are a few other things to mention before I get to that. In this post, I mostly focus on the majority opinion. I will shortly post separately about the dissent.

The Human Face

Because I will argue that the majority decision is correct, and indeed that it was very important that Mr. Gabriel not win this case, I want to start by acknowledging that he has had it very hard. Mr. Ward’s jokes at his expense were cruel. Mr. Gabriel did suffer, greatly ― we are told that he even tried to kill himself at one point. I think we can wonder whether the connection between these things is all that strong. I’m not persuaded by the dissent’s imputation to Mr. Ward of the full responsibility for Mr. Gabriel’s bullying by his classmates. We can also argue that anti-discrimination law ― perhaps any law ― isn’t the solution. But we have to recognize that a person has been in a lot of undeserved pain, and a person who, even before this case, had not had it easy in life.

The Court

As already noted, the Court is narrowly divided. The Chief Justice and Justice Côté write for the majority, with Justices Moldaver, Brown, and Rowe concurring. Justices Abella and Kasirer write for the dissent, joined by Justices Karakatsanis and Martin. For those keeping score at home, this is the exact same alignment as in the recent decision in Toronto (City) v Ontario (Attorney General), 2021 SCC 34. Indeed, even the authorship of the opinions overlaps: in City of Toronto, the Chief Justice wrote with Justice Brown, while Justice Abella wrote for the dissenters.

I’m old enough to remember, as they say, how smugly self-satisfied Canadian commentators were, just a few years ago, at the consensus reigning at our Supreme Court, in contrast to the US one always splitting 5-4. To be sure, two cases do not make a trend, but I think it’s pretty clear that on the Supreme Court as it has recently been constituted there is ― though there are always exceptions ― a somewhat cohesive group consisting of Justices Côté, Brown, and Rowe, and perhaps an even more cohesive group led by Justice Abella, with Justices Karakatsanis, Martin, and Kasirer. The Chief Justice and Justice Moldaver are the swing votes. It remains to be seen how, if at all, Justice Abella’s retirement is changing this, but in the meantime, our Supreme Court has been fractured along lines that can be predicted. This is not necessarily bad. But let’s not be smug.

One odd thing to add is that, whereas in City of Toronto majority and dissent were ― by the standards of the Supreme Court of Canada ― at each other’s throats, here they studiously ignore one another. I’m not sure which is better, but the contrast between cases argued and decided just a month apart, by identical alignments, and with overlapping opinion authorships, is striking.

The Case

One uncomfortable question I have is: should the Supreme Court have taken this case at all? Let me take you straight away almost to the end of the majority judgment, where we learn, for the first time, the following

[I]n light of the Tribunal’s finding that Mr. Ward [translation] “did not choose Jérémy because of his handicap” but rather “because he was a public personality” (Tribunal reasons, at para. 86), it must be concluded that the distinction was not based on a prohibited ground. This conclusion on its own is sufficient to dispose of the appeal. [91]

Everything else that the Court has said and that I’m about to discuss ― that’s just obiter dicta. The tribunal made a basic logical mistake, which, as the majority explains, the Court of Appeal then glossed over. That was, of course, unfortunate. But it’s not the Supreme Court’s role to correct basic logical mistakes by tribunals or even courts of appeal. They’re there to develop the law. And develop the law they do ― in a way that, if the majority is right (and I think it is), was pressing and necessary. But also in a way that, by the majority’s own admission, is beside the point in this case.

I think this raises the issue of the Supreme Court’s role in our constitutional system. Where is the line between developing the law in deciding cases, as we expect them to, and developing the law by making big pronouncements that are unnecessary to decide cases? Should a court refrain from doing the latter, or may it properly seize on the opportunities that present itself to it to provide important guidance to lower courts? I have no firm views on any of this, but I think the questions are worth thinking about. (For some related musings, see here.)

Jurisdiction

Back to the very beginning of the majority’s reasons:

This appeal … invites us … to clarify the scope of the jurisdiction of the Commission des droits de la personne et des droits de la jeunesse … and the Human Rights Tribunal … with respect to discrimination claims based on the … Quebec Charter. [1]

Clarify the… what? Yes. That word. The majority uses it several times in the course of its reasons. In particular, it speaks of “the distinction that must be drawn with respect to jurisdiction over, on the one hand, an action in defamation and, on the other, a discrimination claim in the context of the Quebec Charter“. [22]

This is odd. A mere two years ago, in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, all of the Ward majority judges signed an opinion that not only eliminated jurisdictional questions as a distinct category of correctness review, but seemed to endorse scepticism at the very “concept of ‘jurisdiction’ in the administrative law context”. [66] Vavilov said that what might previously have been thought of as jurisdictional questions are legal questions like all others, subject to reasonableness review, except when the respective jurisdictions of two administrative bodies must be demarcated.

One recent example of this reasoning is the decision of the Ontario’s Superior Court of Justice in Morningstar v WSIAT, 2021 ONSC 5576, about which I have written here. The Court roundly rejected the argument that, as I summarized it

the jurisdictional boundary between a tribunal and the ordinary courts should be policed in much the same way as, Vavilov said, “the jurisdictional boundaries between two or more administrative bodies”, [63] ― that is, by hav[ing] the court ensure the boundary is drawn correctly.

I thought ― and still think ― that that was a correct application of Vavilov. Ward, though, says that there is indeed a jurisdictional boundary between administrative tribunals and courts. I don’t think this is consistent with Vavilov. Nothing turns on this here because the case gets to the courts by way of statutory appeal rather than judicial review, and ― under Vavilov ― the correctness standard applies to all legal questions in such circumstances. But the tensions inherent in Vavilov, including in its attempt to rid Canadian administrative law of the fundamental concept of the law of judicial review are becoming apparent. (Co-blogger Mark Mancini has made a similar observation in the latest issue of his newsletter.)

Interpretation

One of the things the majority is right about is that Ward is, among other things, a case about interpretation. It requires the courts to make sense of a somewhat peculiar statutory scheme, which protects, among other things, rights to the freedom of expression and to the “safeguard of [one’s] dignity”, says that “the scope of the freedoms and rights, and limits to their exercise, may be fixed by law”, and protects equality in “the exercise and recognition” of these rights, rather than as a general self-standing right. This is not an easy exercise and I won’t go into all the details, but I will make a few comments.

The majority deserves credit for trying to work out an independent meaning for the right to the safeguard of one’s dignity. As it notes, dignity is a very tricky concept ― and the Supreme Court itself has tried to avoid putting too much weight on it in other contexts. But here it is, in the text of the Québec Charter, a statute that binds the courts. It will not to do to simply find violations of dignity when other rights are violated in particularly egregious ways, as Québec courts had done. The Québec Charter makes it a distinct right, and the courts must treat it as such. At the same time, they have to give it defined contours. The majority seeks to do so by stressing the importance of the safeguard of dignity, to which the right is directed:

Unlike, for example, s. 5 [of the Québec Charter], which confers a right to respect for one’s private life, s. 4 does not permit a person to claim respect for their dignity, but only the safeguarding of their dignity, that is, protection from the denial of their worth as a human being. Where a person is stripped of their humanity by being subjected to treatment that debases, subjugates, objectifies, humiliates or degrades them, there is no question that their dignity is violated. In this sense, the right to the safeguard of dignity is a shield against this type of interference that does no less than outrage the conscience of society. [58]

What the majority does is a careful and, I think, pretty convincing reading of the statutory text. Good.

Some things the majority says are not so good. For instance: “the interpretation of this provision must be refocused on its purpose by considering its wording and context”. [55] No, no, no. Interpretation should be focused on text understood in context. Purpose can sometimes help a court understand the words and enrich its understanding of the context, but it should not be the focus of interpretation. And then, there is this:

This Court’s jurisprudence also establishes “that mere differences in terminology do not support a conclusion that there are fundamental differences in the objectives of human rights statutes” … It follows that, as long as this is not contrary to the usual rules of interpretation, symmetry in the interpretation of the various instruments that protect human rights and freedoms is desirable. [68; quoting Quebec (Commission des droits de la personne et des droits de la jeunesse) v Montréal (City), 2000 SCC 27, [2000] 1 SCR 665, [47]]

What are we to make of this? If usual rules interpretation are to prevail, differences in terminology must make a difference, if not to the objectives then to the effects of human rights as of any other statutes. And the idea that differences in wording don’t matter because objectives are key to interpretation is specifically rejected in the majority opinion in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32 ― signed onto by the same five judges who are in the majority in Ward (even as it is endorsed by the concurrence).

Between the jurisdiction issue and this, I cannot help but wonder whether their Lordships remember what they said last year. Or are they trying to say that we are supposed not to? This stream of inconsistent pronouncements ― by the same people! ― reveals, at best, a lack of attention to legal doctrine and craft. It is very disappointing.

Freedom of Expression

I finally come to the meat of the case. Here too, I want to praise the majority for getting things fundamentally right, but also to criticize them for saying things along the way that are doubtful or even wrong in themselves, or inconsistent ― without explanation ― with important precedent.

Let me start with a quick note from the “judges are not philosophers” file. The majority’s discussion of the freedom of expression begins with the assertion that it, “[l]ike the right to the safeguard of dignity … flows from the concept of human dignity”. [59] Perhaps. But in the next paragraph the majority quotes Joseph Raz’s claim that “a person’s right to free expression is protected not in order to protect him, but in order to protect a public good, a benefit which respect for the right of free expression brings to all those who live in the society in which it is respected”. [60] These are two quite different views of the foundations and purposes of the freedom of expression ― one deontological, the other utilitarian. Perhaps nothing turns on which of these is correct in this case, but if so, the majority shouldn’t be making these philosophical declarations at all. And I suspect that in some cases the choice might actually make a difference. The majority’s approach is muddled and unhelpful.

Now for some good things. This, especially: “freedom of expression does not truly begin until it gives rise to a duty to tolerate what other people say”. [60] This is the key to so many disputes about freedom of expression. Speech is not harmless. It can hurt. It can propagate falsehoods. It can inflame base passions. But freedom of expression means sometimes having to tolerate such things ― just like freedom of assembly means having to tolerate noisy protests, and freedom of religion means having to tolerate heresy and blasphemy ― even when their cost falls on particular groups or even individuals.

The majority adds that “[l]imits on freedom of expression are justified where, in a given context, there are serious reasons to fear harm that is sufficiently specific and cannot be prevented by the discernment and critical judgment of the audience”. [61] This sets a fairly high bar to limits that will be considered justified. It also acknowledges that the audience has its share of responsibility in appreciating troublesome words. Courts assessing a limit on the freedom of expression should not assume that citizens are, by default, unthinking and gullible playthings for the tellers of tall tales. This is also good and important. Assuming away all critical sense among the citizens would help justify all kinds of restrictions on speech, including, and perhaps especially, in the political arena. It is fundamentally incompatible with the notion of a self-governing, responsible citizenry.

But this insistence sits uneasily, to say the least, with the Court’s position in Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827. There, the majority said that

The legislature is not required to provide scientific proof based on concrete evidence of the problem it seeks to address in every case. Where the court is faced with inconclusive or competing social science evidence relating the harm to the legislature’s measures, the court may rely on a reasoned apprehension of that harm. [77]

This is contrast to the Harper dissent’s concern that “[t]here [was] no demonstration that” the limits on “third party” spending at issue were “required to meet the perceived dangers of inequality, an uninformed electorate and the public perception that the system is unfair”. [38] By my lights, Ward‘s insistence on serious reasons to fear specific harm, as well as on audience discernment is much more in tune with the Harper dissent. Because I regard Harper as an abominable decision, I am happy to see Ward go in a different direction. But there is no comment in Ward on how these cases interact. Again, it’s as if the judges don’t remember what the law says, though at least Harper is a much older case that Vavilov and Québec Inc.  

All that said, the substance of the majority’s decision is right and reassuring (or it would be reassuring if more than five judges had signed on). The majority insists that the right to the safeguard of one’s dignity most not be “vague” or given “a scope so broad that it would neutralize freedom of expression”. [80] It stresses the objective nature of the test for whether this right is breached and rejects the modified objective standard of “a reasonable person targeted by the same words”, because “[t]hat approach results in a shift toward protecting a right not to be offended, which has no place in a democratic society”. [82] What matters is neither “the repugnant or offensive nature of the expression [nor] the emotional harm caused”, [82] but the effect of the words on listeners: would “a reasonable person, aware of the relevant context and circumstances, … view the expression … as inciting others to vilify [its targets] or to detest their humanity on the basis of a prohibited ground of discrimination” [83] and would “a reasonable person would view the expression, considered in its context, as likely to lead to discriminatory treatment of the person targeted”? [84]

All this is the more important since the list of prohibited grounds of discrimination under the Québec Charter is very broad and includes “political convictions”. As I have written here, “even if we accept the need to protect vulnerable minorities from hate speech targeting them, I struggle to see what makes it necessary to extend this protection to members of political parties or movements”. Protecting people from mockery, let alone hurt feelings, based on their political views is incompatible with lively democratic debate. However much we can wish for such debate to usually be civil, I think it’s a mistake to insist that it always must be, and certainly a grave mistake to put government officials in charge of deciding whether it is sufficiently civil on any give occasion.


The insistence on the need for objective assessment and the clear rejection of a right not to be offended will, I hope, be the key takeaway from Ward. For them, we can forgive the majority opinion its many flaws. That there can be no right not to be offended in a society that proclaims its commitment to the freedom of expression and to democracy might have been self-evident ten years ago, but it evidently isn’t anymore. The dissent offers us a glimpse of what a world in which this truth isn’t recognized looks like. I will focus on it in a forthcoming post.

Don’t Make Idiots into Martyrs

The Double Aspect view on why an Alberta judge was wrong to order that pandemic deniers promote the expert consensus

This post is co-written with Mark Mancini

In Alberta Health Services v Pawlowski, 2021 ABQB 813, a judge of the Alberta Court of Queen’s Bench sentenced a preacher opposed to anti-pandemic public health measures and his brother to steep fines for contempt of court. The defendants had ostentatiously breached court orders requiring them to comply with various public health requirements, and there is no question that they deserved punishment. But the remarkable thing about Justice Germain’s ruling, and the reason, we suspect, why it made the news, was an additional component of his order. “[W]hen … exercising [their] right of free speech and speaking against AHS Health Orders and AHS health recommendations, in a public gathering or public forum (including electronic social media)” the defendants

must indicate in [their] communications the following:

I am also aware that the views I am expressing to you on this occasion may not be views held by the majority of medical experts in Alberta. While I may disagree with them, I am obliged to inform you that the majority of medical experts favour social distancing, mask wearing, and avoiding large crowds to reduce the spread of COVID-19. Most medical experts also support participation in a vaccination program unless for a valid religious or medical reason you cannot be vaccinated. Vaccinations have been shown statistically to save lives and to reduce the severity of COVID-19 symptoms.

This order manifests a deeply disturbing, not to mention likely unconstitutional, disregard for freedom of expression. And Justice Germain’s judgment suffers from other deep flaws on its way to this untenable conclusion, which make his decision all the more troublesome.

We should start by saying that, on a personal level, we have very little sympathy for the defendants’ cause. While reasonable people can always debate the specific measures being taken by the authorities―even to combat a pandemic―there is nothing reasonable in denying the seriousness of the situation, or in opposing vaccinations, which are our only hope to get out of this mess. And while both of us have written with some sympathy about civil disobedience, as practiced by people such as David Thoreau and Martin Luther King, civil disobedience involves acceptance of punishment―not flagrant disregard of the court system.

But the court system, for its part, should not beclown itself, even when dealing with jackasses. Justice Germain, alas, sets the tone quickly. “Alberta”, he writes,

has been and is in its worst shape ever concurrently with these sanction hearings. It is not an overstatement that Pastor Artur Pawlowski and his brother Dawid Pawlowski have contributed to this ominous health situation by their defiance of the health rules and their public posturing, which encourages others to doubt the legitimacy of the pandemic and to disobey the AHS Health Orders designed to protect them. [5]

The idea that the defendants deserve punishment not only for breaking the rules and the court orders enforcing them (which, to repeat, they do), but also for what they say and for what others make of what they say runs through Justice Germain’s reasons and taints his decision. Much of the opinion concerns what the judge personally thinks of the conduct of the defendants. But whatever one’s personal views, a judge cannot justify a decision that forces someone to agree with a particular law. The decision, in this sense, is incompatible with a free society where people can be required to comply with the law, but not to support it, as a majority of the Supreme Court held in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269.

One example of Justice Germain letting his personal views get the better of his judicial duty is his indignation at the fact that the defendants present themselves as martyrs. He is especially upset because one of them has done so “on a speaking tour in the United States where he parlayed his title as a pastor and the fact that he had been arrested for holding a church service into a rally cry that attracted like-minded individuals”. [33] For Justice Germain,

It is disappointing that Pastor Pawlowski had to air his grievances about Alberta in another country. Leaders and statesmen don’t do that. During his sanction hearing, AHS played some trip reports in which Pastor Pawlowski oozes hubris, while relishing in his notoriety. He got to take a picture with a governor of a U.S. state. He is proud of what he asserts is the love of the U.S. people for him. Love he implies he is not feeling in Canada. [34]

In a free and democratic society, no citizen is legally required to be a patriot. Punishment for not loving one’s country in accordance with its authorities’ idea of what such love ought to look like is a hallmark of dictatorial regimes. It is distressing to see a Canadian judge failing to comprehend this.

In a slightly different vein, Justice Germain is also angry that Mr. Pawlowski’s “accuses the Court of being a ‘tool of the government’” and so “show[ing] no civic understanding of the independence of the Courts and their distance from the government”. [35] To the extent that this anger contributes to Justice Germain’s choice of punishment for the defendants, it comes perilously close to being a sanction to the old contempt by “scandalizing” the court―that is, by making statements tending to bring the court into disrepute or to undermine its authority. The Ontario Court of Appeal held that this offence was unconstitutional in R v Kopyto, 62 OR (2d) 449, all the way back in 1987.  

Next, Justice Germain observes that, even as “Pastor Pawlowski makes much virtue of his status in Canada as an immigrant from Poland”, he also “describes health authorities as Nazis”. [36] To the judge, “[i]t defies belief, that any immigrant from Poland (having studied the atrocities of the Nazis in that country) could identify a doctor of medicine trying to keep people alive as a Nazi”. [36] At human level, one might sympathize with Justice Germain, but coming from a judge as part of reasons for sentencing, the suggestion that an immigrant might be held to some kind of special standard due to his origins strikes us as troubling.

These personal views take centre stage in Justice German’s opinion. The law is forgotten; only briefly does Justice Germain seem to acknowledge the relevance of freedom of expression to the case before him―and in a way that shows that, in truth, he just doesn’t get it. He says that “Pastor Pawlowski is entitled to express views about the government, the Courts, and AHS, but he must do it in a respectful, hate-free way that does not breach AHS Health Orders”. [37] To be sure, freedom of expression doesn’t extend to breaching court orders. But nor does it have to be exercised in a “respectful, hate-free way” as a matter of law (though as a matter of morality, we usually hope the freedom of expression is exercised in this way). One might, of course, refer to the US Supreme Court’s well-known decision in Cohen v California, 403 US 15 (1971), the “fuck the draft” case, where Justice Harlan famously wrote that “one man’s vulgarity is another’s lyric”. (25) But, closer to 2021 Alberta in time as well as in jurisdiction, let us note Justice Miller’s opinion for the Court of Appeal for Ontario in Bracken v Town of Fort Erie, 2017 ONCA 668, where it was argued that a loud protest was tantamount to violence and hence unprotected by the Charter’s guarantee of the freedom of expression:

A person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b) [of the Charter].

A protest does not cease to be peaceful simply because protestors are loud and angry. Political protesters can be subject to restrictions to prevent them from disrupting others, but they are not required to limit their upset in order to engage their constitutional right to engage in protest. [49-51]

Justice Germain insists that

Pastor Arthur Pawlowski, his brother Dawid Pawlowski, and others that I dealt with in the sanction hearings are on the wrong side of science, history, and common sense on this issue. The growing number of dead and dying in North America from COVID-19 infection cannot be ignored, nor defined as a false reality. [38]

This is true. But the consensus view of science, history, and common sense, even to the extent that it exists, as here, is not and must not be an official ideology that all citizens are required to endorse. For this reason, while Justice Germain’s sentencing the defendants to a fine and community work is justified, his further order quoted at the beginning of this post is not. In a free and democratic society, which is what the Charter says Canada is, citizens are not required to make themselves into instruments of government propaganda when they engage in political or religious speech. Nor are they required to confess to their own heterodoxy, as Justice Germain would have the defendants do. It is for others to make that showing against them.

We might understand what Justice Germain did if he had framed his opinion in traditional legal terms. But his findings on s. 2(b) of the Charter, such as they are, are couched in personal opinion and conjecture. He does not conduct any analysis about freedom of expression of the sort that we have come to expect from Canadian courts. Indeed, he does not refer to precents on freedom of expression either. When it comes to determining whether his order is justified under s. 1, the only way Justice Germain addresses proportionality is through a comparison of his remedy to an order of jail time. He says that “many reasonable individuals will view the sanctions that I impose to be more beneficial in repairing the harm Pastor Pawlowski and his brother did to society than a short period of jail that will perhaps martyr them in the eyes of their followers”. [43] Yet this is not the test. Our constitutional law, in order to afford speech protection, does not count how many “reasonable people” support a particular exercise of speech or a particular way of repressing it. Not to mention, this statement does not consider, at all, the severity of the impact on the defendants’ freedom of expression—no matter how distasteful we might find their message.

We should note that Canadian case law on the subject of compelled speech is relatively sparse and nowhere near as robust as one would wish it to be. While National Bank, to which we refer above, rightly described attempts to coerce support for existing laws as totalitarian, Slaight Communications v Davidson, [1989] 1 SCR 1038 upheld an arbitral order that an employer state certain facts, found by the arbitrator, in a letter of recommendation provided to a former employee. The majority distinguished National Bank on the basis that Slaight concerned compelled statements of fact, rather than of opinion.

Ostensibly the order given by Justice Germain is framed as a factual statement. There is thus at least an argument that it is valid under Slaight. But this matter is also different from that case―even assuming that it was correctly decided. Justice Germain’s order applies whenever the defendants are speaking on a broad swathe of issues of pressing public concern and, contrary to what was the case in Slaight, the defendants vigorously―if not at all reasonably―dispute the facts they are required to convey. Justice Germain’s order requires them to undermine their own messaging and so to expose themselves to public ridicule if they wish to speak at all.

Thus, even as he gets on his high horse about science, common sense, and the importance of respecting court orders, Justice Germain simply ignores the constitution which constrains his own powers. In denouncing the defendants’ quest for martyrdom and, seemingly, punishing them for their opinions, he is in fact making them into martyrs. Indeed, thanks to him, they are now martyrs for free speech rather than only for covidiocy. We hope that there is an appeal, and the Justice Germain’s decision is reversed. So long as it stands, it is a much more serious affront to the dignity of the Canadian judiciary than anything the defendants―whom we do not mean to excuse―have done.

And that, perhaps, is the important point. COVID-19 has challenged all Canadian institutions in different ways. The challenges have been significant. Courts specifically have been asked to rule  that, at times, public necessity outweighs personal freedoms. We believe COVID-19 presents a number of these situations quite starkly. But when courts must make this judgment, they should do so by predictably applying established doctrines, and in a way that gives due respect to the rights and freedoms at issue. When the judicial analysis is perfunctory, or advanced as part of a personal opinion, public belief in the courts as guarantors of a government of laws, not men, is understandably diminished. This should worry us.

Rethinking Peace, Order, and Good Government in the Canadian Constitution

This post is written by Brian Bird.

The United States has life, liberty and the pursuit of happiness. France has liberté, égalité, fraternité. What is the calling card of the Canadian Constitution? It is peace, order and good government.

Apart from being a concise expression of the political philosophy that animates Canadian society, or at least the philosophy that is supposed to animate it, conventional – and I would say faulty – wisdom has developed around the quintessentially Canadian brand of constitutionalism. The prevailing understanding and analytic approach to peace, order and good government (POGG) has led us to astray with respect to this key element of our constitutional architecture.

Before identifying that prevailing (mis)understanding, let us take a look at the constitutional text. Section 91 of the Constitution Act, 1867 delineates matters over which Parliament has exclusive legislative jurisdiction – matters which, by virtue of that delineation, are off limits for the provinces.

Section 91 begins with the following words:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say …

What follows this paragraph is the enumerated list of classes of subjects over which the federal government has exclusive legislative jurisdiction: criminal law, national defence, banking and so forth.

The opening words of section 91 are revealing in at least three ways.

First, the concept of POGG precedes the list of subjects that fall exclusively within federal legislative jurisdiction. I suspect many if not most jurists in Canada envision POGG as residing at the end of the list, as a residual catch-all category. On the contrary, section 91 arguably contemplates legislation for the purposes of POGG as the first and foremost responsibility of Parliament.

Second, the list of subjects that follow the opening paragraph of section 91 are expressly said to be included for “greater Certainty, but not so as to restrict the Generality of the foregoing Terms”. In other words, the enumerated list of subjects under exclusive federal jurisdiction do not diminish the ability of Parliament enact laws for POGG. The conventional wisdom among most Canadian jurists is the opposite, that the list in section 91 curtails Parliament’s power to legislate for POGG.

Third, the power of the federal government to enact laws for POGG is only available where the topic of the law does not come within the areas of exclusive provincial jurisdiction. On a strictly textual basis, then, federal laws that are enacted in the name of POGG are invalid if the substance of the legislation reflects a head of provincial power as found in section 92.

This third consideration provides additional texture to the doctrine of paramountcy, which holds that a valid federal law will prevail over a valid provincial law to the extent the two laws clash. It would seem, based on the opening words of section 91, that there is no scenario in which there will be a division of power issue raised by the coexistence of a federal law enacted for POGG and a provincial law enacted for a matter listed in section 92. Parliament cannot enact legislation for peace, order and good government if the substance of that legislation falls within exclusive provincial jurisdiction.

Having taken a closer look at the wording and structure of sections 91 and 92, it seems inescapable that the proper starting point for determining whether Parliament can legislate for POGG is whether the legislation at issue falls exclusively within provincial jurisdiction pursuant to section 92. If the legislation can only be enacted by the province, it is constitutionally impossible for the same legislation to be enacted by Parliament for the purposes of POGG. This result, however, does not exclude the possibility of the legislation being valid under a specified subject of federal jurisdiction in section 91 and that, pursuant to paramountcy, such federal legislation would prevail over conflicting provincial legislation.

To a certain extent, then, the legal principles developed by courts that govern the ability of Parliament to legislate for POGG get off on the wrong foot. As these legal principles currently stand, Parliament can enact laws for the purposes of POGG in three scenarios: to address matters of national concern, respond to emergencies, and fill gaps in the division of legislative powers.

Given the text and logic of sections 91 and 92, the analysis of the validity of a federal law purportedly enacted to promote peace, order and good government should be reworked to feature two steps. The first step is to determine whether the federal legislation engages a matter coming within the classes of subjects assigned exclusively to the provinces. If the federal legislation encroaches on provincial jurisdiction, the federal legislation is invalid unless it can otherwise be saved – for example, by recourse to the enumerated list of federal subjects in section 91.

If the legislation survives the first step, the second step – tracking the opening words of section 91 – is to determine whether Parliament has made the law “for the Peace, Order, and good Government of Canada”. This language suggests a significant amount of latitude, so long as the legislation bears some rational basis to the three concepts. If that basis exists, the law is valid federal legislation.

If the federal law does not bear a rational basis to the promotion of POGG, Parliament might still be able to validate the legislation at this step by establishing that it falls within one of the classes of subjects listed in section 91. Assuming the federal legislation somehow satisfies section 91, it should be upheld by a court unless other constitutional constraints, such as the guarantees of the Canadian Charter of Rights and Freedoms, are at issue.

It is worth noting an important and, as far as I can tell, often overlooked aspect of the relationship between the list of federal classes of subjects in section 91 and the corresponding provincial list in section 92. The drafters of the Constitution Act, 1867 give us a hint of the rationale for even including a list in section 91 at all. Indeed, the collective structure of sections 91 and 92 lends itself to section 91 featuring nothing more than the general terms of the opening paragraph cited at the beginning of this post. Why did the drafters opt to go further and include specificity in the form of a federal list?

Besides a likely desire to give Parliament and the provinces a flavour of which matters fall within federal jurisdiction, the words that follow the federal list are revealing. Section 91 concludes by saying that “any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.”

In other words, the list of federal subjects in section 91 fall outside of the subject that appears at the end of the provincial list. Section 92(16) affords the provinces exclusive jurisdiction to legislate “Generally all Matters of a merely local or private Nature in the Province”. The closing words of section 91 preclude the possibility of a province enacting a law that pertains to a federal class of subject on the basis that the substance of the provincial law happens to concern a matter of a “merely local or private Nature in the Province”. Owing to the constitutional text, the provinces cannot attempt to legislate on a factually provincial matter that concerns interest, copyrights, the postal service or any other federal subject unless the provincial law can be sustained through recourse to another subject specified in section 92.

The novel two-step analysis for POGG described above challenges the current approach to this constitutional grant of legislative jurisdiction to Parliament. Perhaps the most problematic aspect of the current approach is the absence of a robust inquiry into whether the federal law under scrutiny promotes the three ends of peace, order and good government. The current approach focuses on three other concepts: national concern, emergencies, and gaps. In my view, this approach must be refined to ensure fidelity to the constitutional text and to the brand of federalism it enshrines.

Admittedly, this revamp of the POGG analysis may not yield different results in certain cases that have already ruled on legislation through the lens of this this constitutional provision. In the most recent Supreme Court ruling where POGG took centre stage, the majority’s opinion in References re Greenhouse Gas Pollution Pricing Act – an opinion that affirmed the federally enacted price on greenhouse gas pollution via the national concern branch – may also hold water under the novel approach. There are good reasons to say that the power to enact this law does not belong exclusively to the provinces (step one). And laws that seek to protect the environment – and by extension basic human welfare – serve the peace, order and good government of Canada (step two).

That said, there is also good reason to believe that recalibrating the POGG analysis may lead to different results in future cases. The concepts of peace, order and good government qualitatively differ from the concepts of national concern, emergencies and gaps. It seems intuitive to say that the former concepts are, in a variety of ways, broader than the latter. In short, it may be that the current approach to POGG shortchanges this grant of federal legislative jurisdiction.

Indeed, several existing federal statutes are arguably POGG laws. For example, the Firearms Act, Food and Drugs Act, Privacy Act and Canadian Human Rights Act do not fit neatly within the federal list in section 91. On the current test for POGG, these statutes would not satisfy the emergency branch. They may not satisfy the national concern branch, which remains a difficult needle to thread.

While these statutes likely satisfy the “gap” branch, this outcome also reveals a problem. Saying that POGG can fill gaps in the division of powers, without more, neglects to ask if the gap being filled is a law made for the peace, order and good government of Canada. The gap branch, as it now stands, does not ask whether the federal law is concerned with peace, order and good government.

This flaw in the current POGG test seems to echo the conventional wisdom that the division of powers in Canada is “exhaustive”. Yet, based on the text of sections 91 and 92, the division of powers is not exhaustive in the way that is often thought. If the subject of a law cannot be hung on a hook within the provincial or federal lists and cannot be said to further peace, order and good government, this is a law that no legislature in Canada can enact. The division of powers presents the field of subjects that can be treated by legislation in Canada, but it is not exhaustive in the sense that legislatures can enact laws about anything and everything. The field of legislative jurisdiction in Canada has boundaries. Parliament cannot enact a statute that defines water as H3O instead of H2O. While there is no provincial head of power that impedes this law, there is also no federal head of power or POGG basis that permits such a statute. This law is, subject-wise, out of bounds.

If the current branch-based approach to POGG shortchanges this head of federal power, does Parliament in fact enjoy far more legislative latitude? The answer is likely something less than “far more latitude”. In addition to the field and boundaries just described, the provinces enjoy exclusive jurisdiction to legislate generally on all matters “of a local or private Nature”. In other words, only the provinces can enact laws for local POGG. Besides this check on federal legislative power, there is also – as noted above – constraints imposed by other constitutional instruments such as the Charter.

I finish by noting an interesting interpretive question: must federal legislation for POGG serve all three concepts contained in this clause (peace, order and good government)? Or, alternatively, does the federal legislation only need to serve at least one of these concepts? I leave this intriguing issue, and others that inevitably spring from a consideration of the POGG clause, for another day.

Peace, order and good government may be the most famous phrase in the Canadian Constitution. Many people say the phrase encapsulates Canada’s political culture. It is therefore surprising to discover that, in terms of how this concept lives and breathes within our constitutional atmosphere, we have fallen far short of understanding it.