Does the Constitution Mean Anything?

In defence of textualism in constitutional interpretation

The Stereo Decisis podcast recently devoted an episode to a discussion of a case that I have covered here, 9147-0732 Québec inc v Directeur des poursuites criminelles et pénales, 2019 QCCA 373, in which the Québec Court of Appeal held that corporations could avail themselves of the protection of section 12 of the Canadian Charter of Rights and Freedoms against “cruel and unusual treatment and punishment”. While the hosts Robert Danay, Oliver Pulleyblank, and Hillary Young disagreed on the merits of the issue before the court, they were, I take it, agreed on one thing: the approach to interpreting section 12 on which my post relied is not compelling. And indeed my post was pointedly textualist, and intended as a bit of a provocation to the adherents to Canadian consensus approach to the constitution, which is anything but. I am glad that it worked, and that we are, as a result, having a bit of a debate on constitutional interpretation; and all the more so since, in the course of this discussion, my critics nicely expose the weakness of their position.

Briefly, I had argued that section 12 does not apply to corporations because the word “cruel” refers to the wilful infliction of or indifference to pain or suffering, and pain or suffering is something that corporations are not capable of. I added a discussion of the evolution of the provisions intended to limit punishments from the Magna Carta, to the Bill of Rights, 1688 and the Eighth Amendment to the US Constitution, to section 12, during the course of which the prohibition on “excessive fines” (to use the language of the Bill of Rights) fell by the wayside and was left out of the Charter. Considerations about whether it would have been a good idea for the Charter’s framers to have made a different choice and included a protection against excessive fines, which in effect is what the Québec Court of Appeal decided, are in my opinion irrelevant.

The hosts of Stereo Decisis took issue with that. We just can’t interpret the Charter simply by looking at what it says. Mr. Pulleyblank insisted that “‘[c]ruel and unusual’ is a bad phrase. It doesn’t really mean cruel and it doesn’t really mean unusual.” And beyond this particular provision, Professor Young said that the Charter is written in “rather loose language”, so that answers to questions about its meaning “can’t be found in the words”. Rather, they can only be obtained by asking what the Charter ought to mean. “You have to look beyond the words”, to “normative” considerations, such “how you feel about the Charter versus legislative authority”. The Québec Court of Appeal, for instance, had to decide whether “this particular right should apply to corporations”. (Emphasis mine) And that decision can yield, as Mr. Pulleyblank put it, “a norm that is different than either of those words [cruel and unusual] or both of those words together”.

Normative considerations are what caused the hosts to disagree about the outcome of the case. Mr. Danay said that “[w]e ought not to try to limit Charter rights. … If the Charter seems like it could protect something, probably a better reading … would be to protect that thing.” Professor Young, by contrast, saw a greater role for deference “to legislation enacted by elected legislatures”, and added that “[i]f we were talking about human beings’ rights, I would be less inclined to interpret so narrowly but I’m not super sympathetic about arguments for corporations’ rights against cruel and unusual treatment”. It was, as Mr. Pulleyblank summed it up, “just a disagreement” about “the impact on the democratic process”.

In my view, the hosts’ criticism of my textualist interpretation are weak, and their own approach grounded in vague normative considerations, unattractive. Now, it’s important to understand what textualism is not, and what it is. No textualist, for example, would say that answers to all constitutional questions can be found in the words alone. Sometimes, it is indeed necessary to go beyond the words of a provision. Some words that the Charter‘s framers used are vague. Context can clarify what at first glance appears to vagueness; in other cases, it might tells us that the most straightforward reading of a word whose import at first seems clear is not the most accurate one. Thus, contrary to what Mr. Pulleyblank rather derisively implied, my “going beyond the text” to look at section 12’s historical antecedents does not make me a bad textualist. Textualism is, in short, the idea that constitutional text, read in its proper context, binds ― insofar as it has an ascertainable meaning; it is not the view that text alone will always answer all constitutional questions. (In any case though, my ultimate commitment is to public meaning originalism, which starts, but does not always end, with textualism.)

So textualism can acknowledge the vagueness of a constitutional provision, but it will insist on not merely stipulating that its language is “bad” or “loose”, or that, if it is somewhat vague, it is incapable of providing any real guidance to the interpreter. The word “cruel”, in section 12, is a nice illustration. Of course, it is vague to a considerable extent. No amount of looking at dictionaries will tell us whether, say, a parole ineligibility period longer than an offender’s life expectancy is cruel (the main question in R c Bissonnette, 2019 QCCS 354) and, as a public meaning originalist, I do not think that knowing how the Charter‘s framers would have answered that particular question tells us much about the meaning of section 12 either. But it doesn’t follow that the word cruel is poorly chosen or that it has no real import at all. In the case before the Québec Court of Appeal, looking at the word’s ordinary meaning was helpful, indeed sufficient to dispose of the dispute (which an examination of the context confirmed).

The Stereo Decisis hosts never actually disputed this ― they did not refer to definitions of the word “cruel” that contradicted the claims that Justice Chamberland (who dissented at the Court of Appeal) and I made about it. (At least that’s how I understood them; as I was writing this post, Benjamin Oliphant suggested that “the hosts raise a worthwhile challenge to [my] interpretation of section 12. What if the words ‘cruel and unusual’ are properly understood to mean “grossly disproportionate’ … ?” I don’t think the hosts said that section 12 actually means this ― only that it has been read in this way by the Supreme Court. And I don’t think that “cruel” actually means “grossly disproportionate”. Again, dictionary definitions tend to emphasize wilful infliction of pain. Moreover, section 12 applies not only to “punishment” but to other “treatment” of the individual by the state. While it makes sense to speak of cruel treatment, I don’t think that “grossly disproportional” works here; disproportional to what?)

As I understood the Stereo Decisis hosts, they took what I can only describe as a dogmatic position that a word like “cruel” must be so vague as to provide no guidance. I don’t think that going into an interpretive exercise with a pre-determined view of this sort is right. Vagueness is not an all-or-nothing thing; a word, or a provision, can be vague as to some questions but not others. The interpreter needs to make a reasonable effort to glean what guidance can be had from the text and context before concluding that they “run out” and that the question facing him or her must be answered by looking at other considerations.

And then, the interpreter needs to face the question of what considerations should be looked at when, and to the extent that, a constitutional provision does run out. (In originalist terms, this is the question of what theory of construction one must adopt for those cases that interpretation does not settle.) The Stereo Decisis hosts suggest that we must go straight to very general normative views about the Charter and legislative power. As their discussion shows, however, this approach is not especially fruitful, in that it promptly leads to stark normative disagreement between those who would maximize the scope of the Charter‘s limits on government power and those who would reduce it in the name of preserving legislative authority. The two sides of this dispute have little to say to one another; both argue that the case should simply be decided by following their normative priors; they can only count heads to see who wins on any particular panel. Adjudication along these lines is not readily distinguishable from a legislative power struggle.

I do not mean to deny that cases where a court can do no better may arise from time to time. Still, I think that we should be uneasy about this prospect. Telling judges that it’s normal, rather than exceptional and worrying, for them to decide constitutional cases by reference to their own normative commitments produces nefarious consequences, as judges come to think that their personal understanding of right and wrong is more important than the law. From constitutional cases, this belief bleeds into other areas of the law ― into cases of ordinary statutory interpretation and even common law ones. This destroys the Rule of Law and removes the most important constraint on judicial power, which is the requirement to (normally) follow the law, be it constitution, statute, and precedent, that someone else has first set out.

Moreover, if constitutional disputes can only be decided by reference to what are political rather than legal considerations, then it is not obvious, as a normative matter, why they should be decided by the courts rather than by political institutions. (This is, of course, especially true of cases that involve individual rights; federalism disputes arguably require a neutral arbiter, but even there, it is not quite clear why the arbiter should be judicial in character.) And, as a descriptive matter, those who hold to the view that constitutional texts are more or less meaningless don’t even have access to the positive law argument I have made here that, as a textual matter, our constitution actually requires judicial supremacy. They must attempt to answer the question of whether it does so with normative arguments alone, and are unlikely to convince anyone not predisposed to agree with them.

It is much better, as well as more consistent with our Rule of Law tradition and with the positive law of our constitution, to insist that judges ascertain the meaning of the law given them, and if the meaning does not resolve the dispute they have to settle, that they endeavour to implement this law, not on the basis of their predilections, but of the law’s purposes. A judge who happens to share my distaste for most economic regulation can and should nevertheless conclude that, while an additional obstacle to such regulation’s excesses in the shape of an extension of the scope of section 12 to corporations would be normatively desirable, the constitution that we actually have does not raise this obstacle in the grasping legislatures’ way. But for him or her to be able so to conclude, that judge must be committed to elucidating and applying the law, instead of believing that judicial office gives one carte blanche to implement one’s own preferences.

Constitutional interpretation isn’t discussed enough in Canada. A general lack of interest, caused by overconfidence in a living constitutionalist orthodoxy, has meant that when Canadian lawyers confront questions of constitutional interpretation they are liable to reason in ways that are not compelling. Sadly, the Stereo Decisis discussion of the question whether section 12 of the Charter extends to corporation was illustrative. It relied on a mistaken assumption that constitutional language is infinitely malleable, with the result that, as Mr. Pulleyblank put it, “[i]f you want to go one way you can probably get there. If you want to go the other way you can probably get there.” Descriptively, this mischaracterizes our constitutional documents, which are rather less vague than is sometimes said. Normatively, a state of affairs in which constitutional law dissolves in competing assertions about the appropriate relationship between courts and legislatures, has little to recommend itself.

These two defects feed into each other. The less faith one has in the capacity of constitutional texts to guide their interpreters, the more power one is inclined to grant judges (even if only to seek to claw it back through free-floating doctrines of deference). The less one accepts limits on judicial power, the more one is tempted to see vagueness in every text, without seriously examining it. Still, I hope that, by discussing constitutional interpretation and calling into question beliefs about it whose truth has too long simply been assumed we will make much needed progress.

A Perspective from the North

A review of Jeffrey Pojanowski’s “neoclassical” approach to administrative law

Jeffrey Pojanowski, whose contribution of “A View from South of the Border” to the Dunsmuir Decade symposium readers may recall, has posted a very interesting paper on “Neoclassical Administrative Law” on SSRN. (The article is to be published in the Harvard Law Review later this year.) Although written in an American context, Professor Pojanowski’s article should be read north of the border too, because it is framed around the tension that is central to Canadian, as well as if not more than, American administrative law: that between the Rule of Law and (what we in the Commonwealth call) Parliamentary sovereignty. Professor Pojanowski’s solution to this tension ought to be appealing in Canada ― though accepting it would require giving up some of the assumptions that are built into our administrative law.


Professor Pojanowski starts by describing three ways of addressing the conflict between the courts’ role of saying what the law is and the legislatures’ prerogative of committing certain governance issues to the resolution of administrative decision-makers. What he terms “administrative supremacy”

sees the role of courts and lawyers as limited to checking patently unreasonable exercises of power by the administrative actors who are the core of modern governance. To the extent that durable, legal norms are relevant, the primary responsibility for implementing them in administrative governance falls to the discretion of executive officials, who balance those norms’ worth against other policy goals. (7)

“Administrative skepticism”, by contrast,

rejects deference to agency interpretations of law, even if the agency is charged with administering the statute. Deference shirks the judicial duty to say what the law is and introduces a pro-government bias of dubious constitutional provenance. (14)

As for those cases where the lawyers’ traditional interpretive tools are of no avail, because the administrative decision-maker has been given a policy-making role, “the [American] administrative skeptic is more likely to recommend an approach that is both more radical and more modest: invalidating the provision on non-delegation grounds”. (16-17)

Finally, the approach Professor Pojanowski terms “pragmatist” “seeks to reconcile the reality of administrative power, expertise, and political authority with broader constitutional and rule-of law values”. (18) It is relatively deferential to administrative interpretations of law, but makes “certain exceptions, such as withholding deference on major questions or jurisdiction”, (18) and “may … demand evidence that the agency engaged in reasoned decisionmaking” (18) even on those issues where it is normally prepared to defer, both interpretive and policy ones.

In jurisprudential terms, administrative supremacy comports with “a form of legal realism that dissolves the line between legal interpretation and policymaking”, deeming “most interesting questions of legal interpretation … inextricable from legislative policy choices”. (13) The skeptical position embraces A.V. Dicey’s vision of ordinary courts interpreting law as the keystone of the Rule of Law. The pragmatist view reinterprets the Rule of Law as involving “requirements of fair participation and reasoned justification”, and asks the courts to enforce these requirements, rather than to impose their view of what the law actually is.

Professor Pojanowski articulates and begins the defence of another approach to administrative law, which differs from those just outlined, though it has some affinities with each of them, perhaps especially the skeptical one. This “neoclassical administrative law … is skeptical of judicial deference on questions of law but takes a much lighter touch on review of [administrative] agencies’ procedural and policymaking choices”. (23) It seeks to preserve, indeed it emphasizes, the distinction between law and policy, and makes the courts masters of the former while asking them to stay out of the latter.

In part, this is motivated by a “formalist” rejection of the “legal realist premise that all interpretive uncertainty involves policy choices calling for political accountability and non-legal expertise”. (27; footnote omitted) To be sure statutes sometimes employ language that is only amenable to policy-laden elaboration (such as “in the public interest”); such elaboration should be the preserve of administrative decision-makers, subject only to a thin rationality review. However, this is precisely because in such “cases … there is no surface upon which traditional lawyers’ tools can have purchase”, (31) and the obverse of accepting this is a denial of “the more generalized presumption of implicit [legislative] delegation of interpretive authority”, which is no more than “a legal fiction delicately veiling a functionalism that dare not show its face”. (26) Legal questions, even difficult ones that have “more than one reasonable answer”, (33) can and ought to be answered by the courts, although “reviewing judges are likely to confer at least some mild epistemic authority on expert agencies”. (25n) In addition, the “neoclassical” position rests on a belief in the importance of the legislation governing judicial review of administrative decisions, especially (in the United States) the Administrative Procedure Act.

But while the “neoclassical” approach is similar to the skeptical one in its confidence in the law’s autonomy from politics and policy, it does not go as far in its rejection of the administrative state. It does not seek to reinvigorate the constitutional non-delegation doctrine (which holds that only the legislature, and not its creatures in the executive branch, can make law). Instead, “[t]he neoclassical approach turns down the constitutional temperature”, (36) accepting that the administrative state’s rule-making and discretionary powers are here to stay. It, in other words, “classical Diceyan public law theory adapted and persisting in a new regulatory environment”. (38)

Professor Pojanowski ends by addressing some potential criticisms of “neoclassical administrative law”. Of greatest relevance to Canadians will be his admission that

much here turns on interpretive method. The extent to which appeal to craft determinacy is plausible goes a long way toward deciding whether neoclassicism is promising or misguided. Furthermore, if interpretive formalism is inferior to strong purposivism or dynamic statutory interpretation, the case for deference is far stronger. Those methods explicitly, and to a greater degree, call for interpreters to consider policy consequences and evolving public values alongside, and sometimes above, formalist tools. The more those values infuse legal interpretation, the stronger the bite of arguments for deference based on political accountability and technical expertise. (40; footnote omitted)

Professor Pojanowski points out, however, that the pragmatist view, at least, is also tenable only if there are legal answers to at least some interpretive questions, which its adherents exclude from the scope of judicial deference.


I find Professor Pojanowski’s summary of the various existing approaches to administrative law illuminating, and his own “neoclassical” approach, mostly compelling. As a matter of first principle, I might be attracted by anti-administrativist skepticism but, especially in Canada, it is not a plausible position. Whatever might be the persuasiveness of the originalist arguments in favour of the non-delegation doctrine, and of strict separation of powers more broadly, in the United States, I doubt one can take them far in Canada. Subject to (somewhat vague) constraints on legislative abdication, the delegation of discretionary and rule-making authority is within the powers of Parliament and the provincial legislatures under the Constitution Act, 1867. The question, then, is not whether we can burn the administrative state to the ground, but whether we can ensure that it remains subject to law. The “neoclassical” understanding of administrative law is a better way of doing that then the available alternatives.

At present, Canadian administrative law is torn between “administrative supremacy” and “pragmatism”. Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the soon-to-be-former leading case, is representative of the pragmatic approach, with its insistence that

[i]n judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [47]

By contrast, cases such as Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, which allow unjustified, unreasoned administrative decisions to stand in the name of an (almost?) irrebuttable “presumption of expertise”, epitomize administrative supremacy. That said, even the pragmatist strand of Canadian administrative law is infected with a metastasizing belief in the absence of legal answers to interpretive questions which in Dunsmuir and elsewhere has been said to warrant thoroughgoing deference to administrative interpretations of law.

In the circumstances, even reasserting the belief in the law is in fact autonomous from policy and politics, and that interpretive questions must be resolved by relying on legal rather than on administrative expertise, is a tall order. Professor Pojanowski points out that this belief goes hand in hand with a commitment to interpretation based “on the text’s original meaning, statutory context and structure, linguistic canons, and perhaps historical intent … rather than normative canons or legislative purpose at a high level of generality”. (34) Contrast this with the broad pro-regulatory purposivism of cases like West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635, and you will see just how far we have to go. Yet West Fraser, with its purported acknowledgement of an “unrestricted delegation of power” [11] to an administrative tribunal, illustrates the dangers of the prevailing Canadian approach.

That said, I have a couple of interrelated concerns about Professor Pojanowski’s approach. The broader one has to do with judicial review of policy decisions, including “interpretation” (or rather construction) of such terms as “reasonable” or “in the public interest”. I am inclined to think that the approach to (constitutional) construction set out by Randy Barnett and Evan Bernick in “The Letter and the Spirit: A Unified Theory of Originalism” is apposite here. A reviewing court should ensure, not that just that the administrative decision is rational, but also that it is a good faith attempt to further the original purpose of the statutory provision on which it is based and of the statute as a whole. While legal craft may not be able to tell us how best to serve the public interest in a particular regulatory context, it can help shed some light on statutory purpose. Indeed, I think it is necessary that courts, rather than administrative decision-makers naturally incentivized to overvalue to importance of their perceived mission and to underrate the countervailing considerations that may well have led a legislature to limit their ability to advance their agenda, be the final arbiters of statutory purpose. As Justice Rand famously said in Roncarelli v Duplessis, [1959] SCR 121

In public regulation … there is no such thing as absolute and untrammelled “discretion” … there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. (140)

A related but more parochial concern has to do with constitutional law. Whatever deference might be warranted to administrative decision-makers engaged in the policy-laden elaboration of vague statutory terms, none should be accorded on constitutional issues. As a matter of the positive law of the Canadian constitution, the courts are the supreme arbiters of its meaning, against the executive branch as well as against the legislative. This question, if I understand correctly, does not even arise in the United States, but so long as Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 remains on the books, it must be flagged in the Canadian context.

Another somewhat parochial question that the “neoclassical” approach to administrative law would force us to confront is that of what to do about a large number of statutory provisions that Canadian courts have so far more or less deliberately ignored or distorted beyond recognition. These are, on the one hand, “privative clauses” that purport to preclude review of administrative decisions; and on the other provisions such as section 18.1(4) of the Federal Courts Act, sections 58 and 59 of the Administrative Tribunals Act of British Columbia, and other provisions that seek to guide judicial review of administrative decisions. Privative clauses would be unconstitutional if taken literally; but instead of holding them unconstitutional and simply ignoring them as nullities, Canadian courts (used to) affect to take them seriously rather than literally, as indications that the decisions of tribunals protected by such clauses should be given greater deference. As the “presumption of deference” spread, even this position has become increasingly meaningless. Meanwhile, as co-blogger Mark Mancini has pointed out, in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339, the Supreme Court subverted the guidance that section 18.1(4) provides, insisting on imposing its own views on the standard of review applicable to decisions of federal boards and tribunals. The Supreme Court has similarly ignored provisions creating statutory rights of appeal, treating appeals from administrative decisions like judicial reviews.

Professor Pojanowski calls for such legislation to be taken as binding law rather than guidelines to be subsumed into or overridden by the Suprme Court’s own views about judicial review. This should be the obvious thing to do: statute trumps the common law. However, there is a catch; two even. First, the principle of legality holds that common law rights, including the right to access courts, including, I think it is fair to say, for the purposes of judicial review, cannot be abolished by implication. I’m not sure whether this has repercussions for interpretation of legislation that guides judicial review, but it might in some cases. Often, however, the legislation is quite clear. Notably, section 58 of the above-mentioned BC statute requires review for patent unreasonableness, including on questions of law in the case of certain tribunals. I think the courts would need to squarely face, in an appropriate case, the question of whether legislatures are constitutionally permitted to set the bar so high. And the courts should stop pretending to attach any significance to unconstitutional privative clauses.


Professor Pojanowski has articulated an approach to administrative law that is at once principled and (relatively) realistic. It responds to concerns that animate not only American, but also Canadian law, and should therefore be of considerable interest to us, not just as a comparativist curiosity, but as a source of compelling ideas. For this approach to take hold in Canada, long-held assumptions will require revision, and difficult questions will need answering. Yet it is quite clearly superior to available alternatives. Count me a cautious neoclassicist.

Our Pythic Judges: SNC-Lavalin

In Ancient Greece, travelers from far and wide descended upon the Oracle at Delphi. Known collectively as the Pythia, these priestesses or women of Delphi, over generations, provided advice and counsel to anyone wishing to seek it. The Pythia were thought to channel the god Apollo. As the mythology of the Pythia grew, with kings and leaders of armies seeking counsel, no major decision was made before consulting the Pythia. 

We seem to be in a Pythic reality in Canada these days. All in the last month, we have been told that former Chief Justice McLachlin would investigate impropriety in the British Columbia legislature; that former Chief Justice McLachlin was also considered as a potential font of advice for Gerald Butts, the Prime Minister’s ne’er-do-well former Principal Secretary in the midst of the SNC-Lavalin scandal; and that former judges of the Supreme Court of Canada Justice Cromwell and Iacobucci were involved in the aftermath of the SNC-Lavalin case, representing former Attorney General Jody Wilson-Raybould and SNC-Lavalin, respectively.

This state of affairs attracted considerable commentary on Twitter, and I truly think it is a live question that should be debated in the Canadian legal community: what expectations should we have for retired Supreme Court judges (or judges generally)  in Canada?

One can think of two issues that this question invites: the ethical question and the democratic question. First, consider the ethics of the situation. No one denies that judges should be able, like all people, to have a productive and fulfilling post-retirement life. That could include work. After all, these judges have considerable talents that could be brought to bear in any number of situations. Work as a commercial arbitrator, counsel to a law firm—the opportunities are potentially endless.

On the other hand, there is a legitimate question whether judges should be doing certain kinds of work post-retirement. Judicial independence is not only about actual independence but the perception of independence. Though retired, it is certainly possible that a member of the public, objectively and reasonably looking at a particular former judge, could conclude that there is an independence problem if a former judge is using his or her talents in a way that impacts the perception of impartiality. There is at least an implicit recognition of this principle in the generous pensions we provide for those who have served Canada on the bench.

These principles are reflected in the scheme for mandatory retirement. The upshot of Canada’s mandatory age of retirement for judges is that, eventually, judges have to retire, even if they are not ready. In the United States, there is no mandatory retirement age such that judges—most recently Justice Antonin Scalia—sometime pass away while on the bench. There are benefits and drawbacks to the American approach. On one hand, when judges leave the United States Supreme Court, they are probably ready to truly retire, and there is less of a concern about independence. On the other hand, the Canadian approach “cycles” judges in and out of the system, and one might reasonably think that this cycling is for the better.

It’s hard to resolve this question, but I think it is probably best to err on the side of protecting the integrity of the judicial office. The role of the judiciary is too important in modern day Canada—perhaps more important than it should be, mind you—to risk even a perception of partiality. This does not mean that judges should be barred from work, far from it. It simply means we desperately need rules to govern the situation.

My larger concern is with the democratic side of the equation, and this is where modern-day retired judges seem to resemble the Pythia. I think it is unwise for questions about the law within the political branches to be referred to retired judges as if they are some standing committee to  resolve legal disputes in the abstract. This is not the role of the courts in the first place: courts require concrete facts connected to legal causes of action that are ripe for adjudication before they can weigh in. It should most certainly not be the role of retired judges, however eminent.

The effect of making a retired judge like former Chief Justice McLachlin or otherwise “an eminent Canadian jurist or panel of jurists” a first port of call in a case like SNC-Lavalin has corrosive pragmatic and legal effects. Consider the legal effect, first. Gerald Butts mentioned that the former Chief Justice was a potential option for advice, because of the fact that the law governing remediation agreements was new.  The goal was to consult the Pythic judges before the Attorney General would make a decision on SNC-Lavalin. This tendency—to punt the result to some advisory panel—erodes the role that the political branches of government should play in the interpretation and application of law, especially where the law is new. Novelty is no reason to punt the task of law-elaboration within the executive branch. Even if an advisory panel of retired judges was a legitimate idea—and it is not—questions like the ones posed in SNC-Lavalin are not easily amenable to judicial scrutiny. In this realm, the political branches of government should wear the responsibility and burden of making important decisions.

This is connected to the ultimate pragmatic effect of permitting this advisory practice to go unabated. As we know, Ministers of the Crown are politically accountable (or answerable, in other contexts) in the House of Commons for their actions. This concept of responsible government has the effect of providing a focal point for political accountability. But if a Minister, facing political heat, seeks to essentially delegate the power of making a tough decision to a retired judge, that delegation deflects democratic responsibility. Should other politicians disagree with whatever decision the judge renders and then the Minister adopts, the Minister can simply say that she followed the recommendation of the eminent retired judge. It is unlikely that those in the general public will wish to question the opinion of such an esteemed person, asked by the Minister to consider the situation and provide an answer. So, we have a diversion of political accountability, with a politically irresponsible judge essentially making tough decisions for a Minister. The incentive effect will be more of this advisory work sought by governments seeking to duck the hard decisions.

In a modern democracy, there is no Pythia to which we should appeal. Judges serve a defined and circumscribed role, and retired judges an even more circumscribed role. I do not think it is a best practice, except in certain situations, to ask judges to resolve politically difficult issues simply because the law on the issue is unsettled.

Climb Out!

The Québec Court of Appeal errs in holding that corporations are protected against cruel and unusual punishment

In a case that has attracted some media attention, 9147-0732 Québec inc v Directeur des poursuites criminelles et pénales, 2019 QCCA 373 the Québec Court of Appeal recently ruled that a corporation is entitled to the protection of section 12 of the Canadian Charter of Rights and Freedoms, which provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”. In my view, however, the majority is mistaken. Its analysis illustrates the perils of what I have been referring to as “constitutionalism from the cave” ― the belief that our constitution is only an imperfect reflection of the true constitutional justice to which the courts ought to give effect.


Justice Bélanger’s opinion for the majority (herself and Justice Rancourt) starts with a discussion of the place of organizations, a term that includes but is not limited to corporations, in contemporary criminal law. In Justice Bélanger’s view, since the constitution is an evolving “living tree”, its interpretation ought to be fitted to the context of a criminal law that imposes liability similar to that of corporations on unincorporated associations of individuals. In this context, seeking to maintain a sharp distinction between the rules applicable to individuals and corporations “would create more problems than it would solve”. [102; translation mine, here and throughout]

Justice Bélanger then rejects the argument that corporations cannot avail themselves of the protection of section 12 because this provision aims at upholding human dignity. She points out that other Charter guarantees ― the presumption of innocence and the right to be secure against unreasonable search and seizure ― have also been linked to human dignity, yet they apply to legal persons. Moreover, deprivations of economic resources can affect people, and while corporations have distinct legal personalities, not all organisations, as the criminal law uses the term, do. In any case, “a legal person can suffer from a cruel fine that is evidenced by its rigour, harshness, and a kind of hostility”. [122]

Turning to constitutional text, Justice Bélanger notes that the section 12 rights are guaranteed to “everyone”. In the context of various other rights (for example, the protection against unreasonable searches and seizures), “everyone” has been read as encompassing legal persons.

Justice Bélanger also argues that allowing the imposition of disproportionate fines on corporations is against the public interest, as well the normal purposes of criminal punishment. Indeed, she

do[es] not believe that Canadian society would find acceptable or in the natural order of things, in whatever circumstances, that a grossly disproportionate fine cause the bankruptcy of a legal person or organization, thus imperilling the rights of its creditors or requiring layoffs. [130; footnote omitted]


Justice Chamberland dissents, making two main arguments. Perhaps the more important one is based on the purpose of section 12 of the Charter, notably as defined by the Supreme Court. This purpose is to preserve human dignity. The Supreme Court says so in multiple decisions. The Canadian Bill of Rights and the International Covenant on Civil and Political Rights, to which Charter‘s legal rights, including those protected by section 12, can be traced, are “instruments that provide for protection of rights in connection with human dignity”. [57] Indeed, “[t]he assertion that no one is to be subject to cruel treatment or punishment cannot be dissociated from human dignity”. [58] While the scope of “treatments or punishments” that may potentially be regarded as cruel can evolve so as to extend to fines, the requirement that the dignity of an individual, not a legal person, be affected is fixed.

Justice Chamberland’s other argument is textual. He considers that, as a matter of plain meaning, the word “cruel” refers to the infliction of “suffering, torture, inhumanity, and barbarity, all words that are tied to living beings and cannot be related to a legal person”. [51] He adds that “[o]ne can be cruel to living beings, of flesh and blood, whether humans or animals. And not to corporations with share capital.” [54-55; paragraph break removed] Justice Chamberland adds that “[t]he English Bill of Rights 1688 and the Eighth Amendment to the United States Constitution specifically provide protection against excessive fines, which the Canadian Charter and the Canadian Bill of Rights do not incorporate”. [66]


In my view, Justice Chamberland comes to the right conclusion, essentially for the textual reasons that he gives, though they are worth elaborating on a bit. Take the historical or comparative context first. It is useful to start with the Magna Carta (to which Justice Bélanger, but not Justice Chamberland, alludes). The original, 1215, version of the Magna Carta (in English translation) stipulated that

For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.

The Bill of Rights 1688 picks up on this idea of proportionality between offence and fine, but it joins it with two other guarantees: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. The Eighth Amendment repeats these exact words, only replacing “ought not to be” with “shall not be”. The Charter does things somewhat differently from its forbears. The right “not to be denied reasonable bail without just cause” is placed in a separate provision (section 11(e)) from the protection against cruel and unusual punishment (section 12). The proscription of “excessive fines”, meanwhile, has not been retained.

These drafting choices ought to matter. In particular, the Charter‘s text means that excessive fines are not, without more, unconstitutional. Now, in R v Boudreault, 2018 SCC 58, the Supreme Court held that a fine could be punishment for the purposes of section 12, which is fair enough. But of course that doesn’t remove the requirement that the fine, like any other punishment, must be “cruel and unusual” for it to be unconstitutional.

This brings me to the other part of Justice Chamberland’s textual argument: the meaning of the word “cruel”. It is remarkable, and telling, that Justice Bélanger does not directly engage with this question. Yet it is a crucial one. Both the French dictionaries to which Justice Chamberland refers and the OED define “cruel” in terms of the wilful infliction of pain and suffering or indifference to suffering. “Cruel” is not just a synonym for “excessive” or “grossly disproportionate”. Though disproportionality can be a useful indication of cruelty, it does not become cruelty unless it also causes or reflects indifference to suffering.

Now, perhaps this will always be the case with grossly disproportional punishment is inflicted on human beings. But in the case of personae fictae, the shortcut from disproportionality to cruelty is barred. As Justice Chamberland observes, legal persons cannot suffer or be pained. Justice Bélanger’s suggestion to the contrary, quoted above, strikes me as feeble. A corporation may certainly, in an objective sense, be the victim of harsh punishment and hostility. But it cannot subjectively suffer from these things.

Justice Bélanger’s main textual argument ― that section 12 protects “everyone”, and other provisions that do so apply to legal persons ― is also unpersuasive. Justice Bélanger is right that section 8 does apply to legal persons; she could also have pointed to section 2, at least some of whose guarantees (especially freedom of expression) clearly apply to corporations. But “everyone” also introduces section 7 of the Charter, whose protections, especially the right to life, can only apply to natural persons. The word “everyone”, it seems, is used ambiguously in the Charter, and we cannot rest very much on it.

Justice Bélanger’s point about human dignity being associated with rights that have been held to extend to corporations is better taken. But, by itself, it cannot clinch the argument for her position. Indeed, neither she nor Justice Chamberland should have gotten into a discussion of human dignity at all. The issue in this case can be resolved at the stage of interpretation ― of discerning the meaning the constitutional text ― without the need for construction in light of the purpose of the provision at issue. In some cases, construction is necessary to arrive at a workable way of applying a vague constitutional text. Here, by contrast, it only serves to muddy the waters.

Ultimately, Justice Bélanger decides the case the way she does because she thinks that it would be better if our constitution prevented Parliament and legislatures from imposing disproportionate fines that would cripple, and perhaps bankrupt, businesses. There is surely something to be said for this view as a normative matter. But what is “in the public interest” is not for the courts to decide. It is the politicians’ prerogative to, first, choose which limitations will be imposed on them and their successors, by framing constitutional provisions; and then by legislating within the boundaries of these provisions. It is arguable that the framers of the Charter made a mistake in failing to incorporate a protection against excessive ― and not only cruel ― fines. It is arguable that Québec’s legislature erred in imposing the minimum fine at issue in this case on a corporation guilty of a purely regulatory victimless offence (operating a construction business without a license). But it is not the Court of Appeal’s job to correct these errors.


As I have said before, it is a serious if all too common mistake to believe that the Charter’s text “is not so much a law that courts must apply as a sort of shadow in Plato’s cave, a vague reflection of true constitutional ideals that the judges must discover and explain to us cavemen”. The Charter, and the rest of the constitution, is binding law ― binding on the courts as well as on legislatures. “There can be”, I said, “no real constitutionalism in Plato’s cave. It’s time to climb out.” That includes the Québec Court of Appeal.

Our Government

Some implications from Jody Wilson-Raybould’s testimony

 

I hesitated to write a post on the bombshell testimony of former Attorney General Jody Wilson-Raybould. The facts are constantly evolving, much of it involves politics rather than law, and though we have benefitted from cogent legal commentary on the relevant legal principles, I should let that commentary stand rather than contribute my (underdeveloped) two cents on it. That said, I want to highlight an obvious but important institutional fact that arises out of this imbroglio, but that is somewhat orthogonal to the context of the Attorney General’s control over prosecutions. Madison might have been right to say that if men were angels, no government would be necessary; but it appears that governments can’t save us from the devil, either.

Much of the story of the 20th century was a victory of progressivism—by which I mean the school of thought that emphasizes “civil service” values, and technocratic government—over legalism. Roughly speaking, it was this underlying philosophy that occasioned a mass transfer of power from legislatures to the executive in Canada and the United States. Then, a further subdelegation occurred from the executive to experts, policy-makers, and tribunals within the executive branch. In theory, the incentive structure this set up was a trade-off of control for lower-cost, expert decision-making. Legislatures could not attend to the small, minute details of “post-roads,” for example, so they delegated that power to the executive and its agents to solve. The legislature lost control over the issue, but in return received better public policy decision-making, with a dash of independence to boot. The whole idea was to enable non-partisan decision-making at a lower cost that permitted better public policy.

While some still champion this rather mythical description of how politics and government work, a more hard-nosed reality emerges from the Jody Wilson-Raybould affair, putting aside the important principle of prosecutorial independence. We see a cabal of people in Ottawa—unelected, unaccountable—carrying the balance of power. These people, ostensibly surrogates of the Prime Minister, say that they do not want to talk about legalities. They want to line up op-eds in newspapers to provide cover fire for their humdrum attitude toward law. They don’t like certain laws if they were not adopted by a Parliament in which their party controlled the majority of the seats.  They do all of this, apparently, to save their electoral prospects. In other words, it appears that some of the most powerful people in the country, in the Prime Minister’s office, are driven by the incentive of electioneering rather than the law.

This might be like calling the sky blue. Obviously politicians want to be elected. But so much of our system—and the philosophy of progressivism that informs attitudes of deference towards legislatures and administrative actors—runs on the idea that there are these islands of expertise and independence in a system otherwise tainted by politics. But with the rise of the PMO, the mass delegation of legislative power to Ministers, and the concomitant rise of influence of those like Michael Wernick in the Privy Council Office, experts are always subordinate to politics.

What’s more we have to be realistic about who we empower when we delegate power. Formally, of course, it’s the executive: but underneath the veil, it’s Gerry Butts, or whoever is next in line. The whole project of independent decision-making, even parts of the project that are protected by constitutional principles, is always up for grabs in a system in which the primary incentive is electoral success driven by apparatchiks.

Some might draw the opposite inference from the whole affair. After all, Jody Wilson-Raybould emerges as a champion of the Rule of Law. She successfully stood up to pressure from the Prime Minister and his subordinates. But one person is a thin reed on which to rest our hopes for good institutions. The regularity of scandals in Canadian politics is just a symptom of the broader reality that the incentives structure of the system—perhaps of every political system—is towards a greater concentration of power at the expense of other ideas: independent decision-making, expert decision-making, even the Constitution or the laws. If Jody Wilson-Raybould was a victim of those incentives here, perhaps we should rethink the mass delegation of powers to those—like members of the Ontario Human Rights Tribunal—who have no constitutional principles to protect them.

There is a lot of nuance to the entire affair because of the role of the Attorney General in the Westminster parliamentary system. I cannot speak to the doctrine governing that issue. But it is enough for me to say that there are no angels, not even in government. The SNC-Lavalin affair might make us rethink the extent to which we entrust governmental actors with power, even with the best intentions.

Justice Beetz’s Unity of Public Law

What an old SCC case tells us about the unity of public law

Much has been written about the so-called “unity of public law”: the extent to which various fields of public law draw upon the same values and inspiration. If this sounds onerously academic, it is not. In fact, it is a unified theory of public law that justifies Doré, the ill-regarded case that attempts to equate judicial review of administrative action with judicial review of administrative determinations of constitutional law. Indeed, as part of the unity of public law, some suggest that administrative law values should not be dismissed, and should be regarded as a rich set of insights that can define the scope of constitutional review. For many, the conceptual bedrock for this idea is the decision in CUPE v New Brunswick, in which the Supreme Court advanced the idea that administrative decision-makers were valuable participants in the system of laws, owed deference and respect. That decision was fortified later, so the story goes, by Baker.

The idea that an ill-defined set of administrative law values—or administrative actors—can define the scope of constitutional review is far from certain. It is the Constitution that is supreme over ordinary law, and if anything, constitutional rights should trump whatever values we can extract from administrative law. This of course assumes that administrative decision-making has any extricable values that underpin it at all. To take the point further, rather than allowing the administrative law tail to wag the constitutional law dog, as in Doré, perhaps the reverse should be true. Whatever the Constitution prescribes should set the minimum standards for administrative decision-making.

An old Supreme Court case takes an admirable crack at defining this relationship. As far as I know, Syndicat des employés de production du Québec v CLRB, [1984] 2 SCR 412 is not a case that appears on most administrative law syllabi in Canada, nor is it a case that appears in the pantheon of administrative law classics. But a comment in the case from Beetz J, for the Court, suggests that the unity of public law should not be a one-way ratchet—it should not require the weakening of constitutional norms to suit the prerogative of administrative decision-making.

I need not address the facts of the case, except to note that at issue were two conclusions drawn by the Canadian Labour Relations Board in the context of a case involving the CBC. The first found that employees of the CBC were in an unlawful strike position because they refused to work overtime. The second was remedial in nature, ordering the union representing the employees and the CBC to arbitration.

The legal context at the time, of course, distinguished between errors of law going to jurisdiction, which were reviewed de novo by a judicial review court, and errors of law that were made in the jurisdiction of the decision-maker, reviewed on a highly deferential standard of patent unreasonableness. The Board attempted to argue, outside of these standards, that its remedial order was “not unreasonable or wrongful” [440]. But the Court concluded that the question of remedy was a question of jurisdiction, not one to which the patent unreasonableness standard applies [443]. For the Court, this question went to the basic power and authority of the Board.

Beetz J analogized the authority of the courts to review for these jurisdictional issues to the same authority that undergirds constitutional review. In a passage that should receive far more attention, Beetz J said:

                Furthermore, I do not see why different rules would be applied in this regard depending onwhether it concerns judicial review of an administrative or quasi-judicial jurisdiction, or judicial review of legislative authority over constitutional matters. When the courts of law have to rule on the validity of a statute, so far as I know they do not ask whether Parliament or the legislature has expressly or by implication given ss. 91  and 92  of the Constitution Act, 1867  an interpretation which is not patently unreasonable. Why would they act differently in the case of judicial review of the jurisdiction of administrative tribunals? The power of review of the courts of law has the same historic basis in both cases, and in both cases it relates to the same principles, the supremacy of the Constitution or of the law, of which the courts are the guardians.

This statement tells us much about how judicial review should operate today, and just how far off the track we have gotten.

Consider, first, the question of jurisdiction. It is true that the Syndicat case focuses on the now-retired metaphysical difference between a “patently unreasonable error” and “an error of jurisdiction.” As the Supreme Court noted in the recent CHRC case, the scope of “jurisdictional error” is narrowing, and for good reason. As Stratas JA outlined in great detail in last year’s Access Copyright case, when courts review administrative determinations of law, there is no principled reason to draw a distinction between errors of law going to jurisdiction or errors of law going to substantive statutory provisions. Administrative decision-makers are creatures of statute, and any error of interpretation should be reviewable in the same way, subject to the standard of review set by the governing legislature. Put this way, everything could be an error of jurisdiction—or as Justice Scalia put it, “statutory authority”—because a decision by an agency that misinterprets a provisions of its enabling legislation, jurisdiction or not, is an error of law.

If that is true, what Beetz J says is quite insightful. Rather than suggesting that the Constitution must adapt to administrative law values, he suggests that administrative review should adopt to constitutional standards, because review of the legislation for its constitutionality and review of administrative decisions engage the same judicial review function. This is an eminently reasonable position in a number of ways. First, it does not lessen the force of the Constitution in the administrative law context. While Beetz J was obviously talking about the division of powers, one of the most important critiques of Doré is the chance that it invites two definitions of constitutional rights, with a weaker one subordinate to a judicial policy of deference in administrative law. But, if a court views its power as deriving from the Constitution in either case, it should “not act differently” in the administrative law context. The same rigorous constitutional standards should apply in either case.

Second, Beetz J is aware of the maxim that legislatures should not be able to do indirectly what they cannot do directly. There is a clear incentives problem with allowing a legislature to escape judicial scrutiny under the Constitution by simply delegating powers to agencies. A less intensive standard of review for administrative decision-makers compared to legislatures would incentivize this delegation.  For obvious reasons, the legislature should not be able to escape the most intensive constitutional scrutiny available by simply enabling someone else.

Finally, it consistently interprets the role of the courts across institutional contexts. If it is true that the Charter made the courts “guardians of the Constitution,” as so many argue it did in the context of constitutional review, why should that role be weaker in the context of administrative decision-making?

What is remarkable about Syndicat, in terms of the unity of public law, is that it comes after CUPE. CUPE is regarded as some Newtonian moment of discovery, in which courts finally shared the mantle of the rule of law with agencies. Syndicat suggests that CUPE was not as dramatic as some say it is. In fact, it suggests that at least one enterprising judge believed that CUPE did not alter the traditional hierarchy of power between courts and agencies. It is the Constitution that governs this entire relationship, and for Beetz J, the Constitution prescribed the same standards of review in both settings. Why we would sacrifice this fundamental bedrock for the rarefied values of the technocracy is unclear.

Sentencing Judgment Found Inside a Chinese Fortune Cookie

The sentencing judgment in the Québec City mosque shooter’s case is badly flawed

This post is co-written with Maxime St-Hilaire

The sentence imposed on the accused in R v Bissonnette, 2019 QCCS 354 for murdering six worshippers at a Quebec City mosque, and injuring, in many cases grievously, multiple others is striking: life imprisonment, as for all murderers, and no possibility of parole for 40 years. This is one of the longest periods of parole ineligibility in Canadian history, and thus one of the heaviest sentences imposed since the abolition of the death penalty. Yet equally striking, and in our view insufficiently discussed (in English anyway), is the reasoning of the Québec Superior Court judge who imposed this sentence―and re-wrote the Criminal Code in order to do so.

At the heart of the decision is section 745.51 of the Criminal Code, which since 2011 has authorized―but not required―judges to stack parole ineligibility periods for persons convicted of multiple murders. The Crown invoked it and asked for Mr. Bissonnette to be subject to six consecutive 25-year periods, thus theoretically making him eligible for parole after 150 years. The defence argued that such stacking would be unconstitutional, and that Mr. Bissonnette’s periods parole ineligibility should run concurrently, as they would have before 2011, potentially making him eligible for release in 25 years.

Having reviewed the harrowing facts, Justice Huot takes the view that neither of these positions is just. On the one hand, courts ought not to “sink into excess by imposing punishment that impresses the media but is, all told, of little real significance”. [758; translation ours here and throughout] On the other, “the needs for denunciation, deterrence, and incapacitation are so pressing in this case that the imposition of six concurrent ineligibility periods would bring the administration of justice into disrepute”. [766] According to Justice Huot, justice requires that Mr. Bissonnette be ineligible for parole for more than 25 years―but less than 50. Yet section 745.51 dictates that if ineligibility periods for those guilty of multiple first-degree murders are going to be stacked, they must be stacked in full; that is to say, by increments of 25 years (the mandatory period for one such murder), on the premise that the lives of all victims are of equal value.

However, Justice Huot finds that section 745.51 is unconstitutional. In his view, it is a violation of the constitutional protections against cruel and unusual punishment (section 12 of the Canadian Charter of Rights and Freedoms) and against deprivations of liberty and security of the person not in accordance with principles of fundamental justice (section 7 of the Charter). And having so found, Justice Huot takes it upon himself “to modify … existing law” [1173] to grant himself the power to sentence Mr. Bissonnette in the exact way he thinks just.

We think that Justice Huot’s conclusions on section 12, section 7, and the remedy are all fatally flawed. His opinion is, moreover, petty (to the point, as we suggest below, of possible illegality), and lacking in rigour (even misspelling Chief Justice McLachlin’s name on a couple of a occasions). For all its prodigious length and academic, even literary, pretension, the judgment is a failure of scholarship as well as of judicial craft. We cannot comprehensively summarize Justice Huot’s reasons here, but will try to highlight their most significant defects.


Section 12 of the Charter provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”. Justice Huot argues that

it would be disproportionate, cruel, and contrary to Canadian society’s values of justice and compassion to deny an individual who has, since his teenage years, suffered from mental health problems all hope of gaining his freedom back, if only for a few years, regardless of how abominable his crimes were. Canada is not a land where the most undesirable elements of the community are shut in a gaol and their very existence forgotten, the key of their liberty having been thrown into the river of a vast collective indifference. [845]

Of course, section 745.51 didn’t require Justice Huot to impose what he regards as a cruel sentence. It says that parole ineligibility periods can be stacked―not that they must be. Like many if not most provisions of the Criminal Code, it made possible the imposition of a maximum sentence that the judge considers excessive in the circumstances of a particular case. That, by itself, should be no reason to hold it to be contrary to the Charter.

The idea that it is cruel to, in effect, sentence a person to die in prison is also perplexing. For Justice Huot, it is nothing short of “sophistry to assert that [multiple murders] should reasonably expect, in a free, civilized, and democratic society, to spend the rest of their days behind bars, any endeavours at rehabilitation notwithstanding”. [975] Indeed, he asserts that “Canadians would consider as ‘odious and intolerable’ any sentence denying the accused a reasonable chance at conditional release in the last years of his life”. [982] Yet depending on the offender’s age, a fit and just sentence, even for a lesser crime than a hate-driven massacre, may have such a consequence. Does it, for that reason, become unconstitutionally cruel? As for Canadians, a clear majority of them apparently thought the actual death penalty “morally right” just a few years ago. To be clear, this isn’t to say that this majority is itself right. But Justice Huot has no way of knowing that popular opinion has changed. He is, we are afraid, simply making things up.

Indeed, it is difficult to avoid the impression that Justice Huot’s reason for invalidating section 745.51 have to do not so much with the risk of cruelty to the man before him, but with what he regards as “the credibility of the justice system”. [846] Justice Huot is adamant that “a simple period of 25 years of parole ineligibility of 25 years would be utterly unreasonable and disproportionate in the circumstances”. [880] That may be the case (though Parliaments from the 1970s to 2011 had not thought so), but a disproportionately lenient sentence, unlike an excessively harsh one, is not a constitutional violation. The constitution protects individuals from excessive punishment by the state, not society against insufficiently punished offenders. Justice Huot argues that it is imperative “that Parliament leave sufficient discretionary powers to the courts for them to impose on offenders sentences that” [846] will be just in all the circumstances. But, while this this argument may be sound policy, it has nothing to do with preventing cruel and unusual punishments.


Things do not get better as Justice Huot moves on to discussing section 7 of the Charter, which provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. There is little question that, by allowing the imposition of addition parole ineligibility, section 745.51 implicates the right to liberty. But is it also not in accordance with the principles of fundamental justice?

Justice Huot thinks so. Indeed, he identifies three such principles that he thinks are being infringed. The first one is the prohibition on overbreadth. Section 745.51 is overbroad, says Justice Huot, because it makes it possible for a judge to impose a 50- or 75-year parole ineligibility period on a multiple murderer who would, all things considered, only deserve 30 or 40. Again, Justice Huot insists that not imposing an excessive ineligibility period in such cases is no solution, because “it is simply unrealistic to believe that sentences of 25, 50, or 75 years of ineligibility will always be proportional”. [1051]

Second, Justice Huot says that section 745.51 infringes the prohibition on gross disproportionality, as do all punishments found to be cruel and unusual.

And, not content with these findings, Justice Huot goes on to hold that section 745.51 infringes a third principle of fundamental justice: human dignity. Now human dignity has never been recognized (or, to be fair, rejected) as a principle of fundamental justice for the purposes of section 7 of the Charter. This is no problem for Justice Huot, who breezes through the test for recognizing a new such principle. Dignity, he says, is a legal principle, because it has been recognized as a value underlying the Charter and received “express mentions in the Canadian Bill of Rights and in international agreements”. [1098] Similarly, it is the subject of a broad consensus. And as for whether respect for human dignity is a sufficiently specific criterion to assess infringements of the rights protected by section 7, Justice Huot dismisses the question in a couple of sentences: “Human dignity is a well-known legal principle. It characterizes human beings ‘in their universality’. This concept is sufficiently precise to be considered a ‘manageable standard’.” [721; references omitted].

Justice Huot’s reasoning on overbreadth is dubious, to say the least. Overbreadth more naturally describes the prohibition of conduct that should not be prohibited (because it is unrelated to the prohibition’s purpose) than to excessive punishment, which should be treated under the rubric of gross disproportionality. Moreover, his findings on both of these principles disregard the fact that the issue, under section 7 of the Charter, is whether section 745.51 may force a sentencing judge to deprive an offender of liberty contrary to fundamental justice―not whether it may prevent the judge from imposing a sentence that is exactly proportional to the crime.

But it is the casual recognition of human dignity as a principle of fundamental justice that’s most astonishing. Put to one side the question of whether an underlying or preambular value is properly characterized as a legal principle. Recall, simply, that 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] Justice Huot, of course, ignores this. To him, the cryptic reference to human universality is guidance enough.    

Needless to say, Justice Huot’s entire section 7 discussion is an obiter, since he has already found section 745.51 a violation of section 12 of the Charter; the discussion of human dignity, doubly so, since he already finds a section 7 infringement on account of overbreadth. A prudent judge would not venture into uncharted and choppy jurisprudential waters without the need to do so. Justice Huot, however, is not such a judge.


Having (unsurprisingly) found that there is no justification under section 1 of the Charter for what he considers cruel and unusual punishment and a violation of principles of fundamental justice (and made along the way some remarkable comments, to which we shall return), Justice Huot turns to the question of the remedy. This is probably the most astonishing part of his judgment. Without having been asked to do so by either party, and without having given them the opportunity to at least make submissions on the matter, Justice Huot decides not to just invalidate section 745.51 but to re-write it so as to grant judges―starting, of course, with himself―the discretionary power to craft what they see as appropriate sentences with parole ineligibility periods of more than 25 but less than 50 years.

In the section 1 part of his reasons, Justice Huot notes that this very possibility was debated and rejected by Parliament. But he does not think that there is anything wrong with him writing a law that Parliament did not want. Democracy, he says, is not just majority rule: “It implies a legal framework that, like the Charter, protects the rights and liberties of citizens. Hence judicial review must be seen as democracy’s faithful ally. … When they intervene in the name of the Charter, judges do not act against democracy, but in conformity with it.” [1169] Moreover, having rejected Blackstone’s declaratory theory, “our common law tradition favours progressive amendment that support the adaptation of existing legal rules to new views and practices”. [1176] The re-writing of section 745.51 is, all in all, an obvious thing to do, and there is no need to go back to Parliament for its views on the matter.

This is a power grab. Justice Huot claims, in effect, that democracy and a “modern” conception of the common law allow judges to re-write statutes, so long as they do so “in the name of the Charter”. But while judicial review may be consistent with democracy (though certainly not “implied” by it―unless Justice Huot thinks that, for example, Australia and New Zealand, both of which lack strong-form rights-based judicial review, are not democratic countries, and that Canada was not one until 1982), it simply does not follow that democracy justifies whatever a court engaged in judicial review might do. As for the common law, whatever its exact nature (and there is much more to be said for the declaratory theory than Justice Huot is aware of), it provides no authority for judges to re-write legislation, as opposed to developing judicially-articulated legal rules. Besides, Justice Huot’s re-writing of section 745.51 has nothing to do with accommodating “new views and practices”; it simply imposes a view that Parliament considered and rejected.

Now, there is a debate to be had about the appropriate judicial role in the face of unconstitutionally underinclusive legislation. It is at least arguable that courts can (sometimes) remedy underinclusion by making an obvious addition to the statute. But, to repeat, Justice Huot is not here dealing with an underinclusive provision. There is nothing unconstitutional, though there is arguably something unjust, about not imposing longer parole ineligibility terms on those guilty of multiple murders than single ones. Justice Huot’s job was to remedy what he, rightly or wrongly, saw as unconstitutionality―not to rectify injustice. He did what he wanted to do, not what he was appointed to do.


Beyond these specific mistakes, the overall tone of Justice Huot’s reasons deserves some comment. Justice Huot starts off with a reverse bench-slap directed at the Supreme Court and its decision in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 (is that a reverse bench-slap per saltum?), snidely commenting that “in these times when the abrogation of judicial delays seems to have been exalted to the rank of a cardinal virtue, it is not superfluous to recall that the very idea of ‘justice’ fits poorly with the clamour and the zeitgeist”. [7] He dishes it out to the American legal system for its reliance on life imprisonment without parole and insists that “Canada remains a country proud of its origins and attached to the preservation of its moral, social, and legal values, which differ in many ways from those of other jurisdictions”. [978] But whatever his pride in the Canadian legal system, Justice Huot doesn’t seem to think very highly of his colleagues who, unlike him, have seen it fit to impose consecutive parole ineligibility on multiple first-degree murderers. The accusation of sophistry, referred to above, is levelled at one of them. More generally, Justice Huot’s insistence that the discretionary power not to stack ineligibility periods, which section 745.51 maintains, is not enough to make it constitutional seems to result from his desire to prevent other judges from imposing sentences that he considers unjust, even though they do not.

Most remarkable, however, is Justice Huot’s attitude towards Parliament. It is not just that, as explained above, he deliberately re-writes the law he has found unconstitutional in a manner that was specifically put before, and rejected by, the legislature. More than that, he comments on what various members of Parliament said in the course of this debate, in a manner that sits uneasily, to put it mildly, with article 9 of the Bill of Rights, 1688, which provides “[t]hat the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. This is usually known as the foundation of the rule that what is said in Parliament cannot be made subject to criminal or civil liability, but Article 9 has broader separation of powers implications too. As the New Zealand court of Appeal put it in Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24, “courts scrupulously avoid” “consider[ing] questions of adequacy, accuracy or propriety in the proceedings of Parliament”. [124] Canadian courts, it is fair to say, have long been less scrupulous than they might be about this. Still, Justice Huot’s play-by-play commentary on Parliamentary debate, praise for “[o]pposition members [who] did their job”, [1146] denigration of a government member’s answer as being of “dubious intelligibility” [1137] and of the Parliamentary majority as a whole for its “wilful blindness” [1146] in the face of opposition warnings are quite beyond the pale.

And in addition to denigrating others, Justice Huot devotes a rather unseemly amount of energy to puffing himself up. He discusses and critiques Kant and Bentham, Beccaria and Blackstone―the latter based entirely on secondary sources―and misses no opportunity to wax eloquent. When the Crown points him to cases where his colleagues imposed consecutive ineligibility periods, he retorts that “such a mathematical reasoning can only lead us to the bounds of immoderation, or even a litany of jurisprudential precedents each as aberrant as the next in their repudiation of the most elementary rules of logic”. [640] The prospect of an offender never being able to seek parole is tantamount to “exile … in a prison environment, outside any civilized society”. [1073] But perhaps the best (if that’s the word) such passage comes, predictably, when Justice Huot discusses human dignity, and informs us that

In a foreseeable future, courts will have to confront especially sensitive questions, such as euthanasia, medical assistance in dying, genetic manipulations, and other bioethical questions. Science progresses at meteoric speed and ceaselessly presents new challenges to philosophers, legislators, and lawyers. Any analysis requiring reflection on the essence of human beings and their rights to life, liberty and security inevitably requires taking into account their dignity, lest it dehumanize them. [1100]

This is reminiscent of the notorious musings of Justice Kennedy, another human dignity devotee, on “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”. But Justice Huot’s reasons, which begin with a supposed Confucius quotation as an epigraph, bring to mind notorious line from a US Supreme Court’s decision―Justice Scalia’s quip about “the mystical aphorisms of the fortune cookie”.