Comeau’s Lesson

It’s not that the courts have generally messed up Canadian federalism, still less that they should improve it

The Supreme Court’s decision in R v Comeau, 2018 SCC 15, which eviscerated section 121 of the Constitution Act, 1867 to uphold the power of the provinces to impose barriers to inter-provincial trade (so long as they are “rationally connected” to some real or made-up regulatory objective) has been sharply and almost universally criticized. Indeed, I can’t recall another decision of a court that, according to more than a few Canadian lawyers, can do virtually no wrong, that was met with such widespread disapproval. But, though I too have argued that Comeau was wrongly decided and very poorly reasoned, I would like to push back against a view expressed by some of my fellow critics, especially by Emmett Macfarlane in Maclean’s, that not only Comeau, but the broader Canadian federalism jurisprudence is fundamentally wrong.

Professor Macfarlane argues that this jurisprudence distorts “the obviously centralized constitutional design implemented in 1867”. He writes that

past courts … trampled over the written text and intent of the framers to dramatically broaden the powers of the provinces while artificially narrowing relevant federal provisions like the trade and commerce clause. … [L]ongstanding federalism jurisprudence … is … a product of judicial invention rather than a reflection of the constitutionally established powers.

Professor Macfarlane also faults the Supreme Court for “abandon[ing] its famous ‘living tree’ metaphor to treat ancient federalism precedent as inviolable.” Philippe Lagassé, paraphrasing Craig Forcese, similarly writes that “it’s hard not to notice that the [Supreme Court] is encasing Canadian institutions in amber”.

With respect, I think that these critiques are largely misguided. Canadian federalism jurisprudence is far from perfect, and I have criticized it from time to time, but it does not merit wholesale condemnation. It is important to distinguish among the multiple issues that arise under the general label of federalism. Failures to deal with some of them do not negate successes in other areas. And it is important not to lose sight of the courts’ task in enforcing a federal distribution of powers ― or, for that matter, any kind of entrenched constitutional provisions: not to make federalism great again, let alone the best it can be, but to give effect to the arrangements arrived at by political actors in the past (and susceptible of revision by political actors in the future).

One kind of issues that courts applying a federal constitution must address has to do with the interpretation of the heads of power it assigns to one or the other level of government. In Canada, these are mostly, though not exclusively, found in sections 91 and 92 of the Constitution Act, 1867, and much of the groundwork of interpreting them was done in the first decades after Confederation by the British judges sitting as the Judicial Committee of the Privy Council. It is a venerable Canadian tradition, going back to FR Scott and even earlier scholars, to attack these judges ― pausing only to fawn over them for their decision in the “Persons Case”, Edwards v. Attorney-General for Canada, [1930] AC 124, [1930] 1 DLR 98 (PC), from which the “living tree” metaphor is drawn.

For my part, however, I do not agree that they somehow distorted the Constitution Act, 1867. As Benjamin Oliphant and I explain in our article on “Originalist Reasoning in Canadian Constitutional Jurisprudence“, their interpretation of sections 91 and 92 was based on the public meaning of these provisions at the time of their enactment. It also took into account the most obvious, and distinctive, fact about the distribution of powers in Canada: that the powers of both orders of government are set out in the Constitution Act, 1867 (in contrast to the United States, and also Australia), and thus must be read together so that all can be given effect. The oft-heard complaint about the courts’ narrow reading of the federal “trade and commerce” power ignores  the existence of both the provincial power over “property and civil rights”, and of other federal powers, such as “banking” and “bankruptcy and insolvency”, which a broad reading of “trade and commerce” would render nugatory. Without going into more detail, I remain of the view that the interpretive part of the Canadian federalism jurisprudence is mostly, if not entirely, satisfactory. It is, moreover, a good thing, not a bad one, that the Supreme Court has resisted the temptation of re-writing these precedents in the name of the living tree; absent a showing, such as one that was made in Comeau, that they were at odds with the original public meaning of the Constitution Act, 1867, their endurance is cause for celebration.

The second type of federalism issues involves the drawing of the boundaries between the powers attributed to the two levels of government. These can overlap, even if they are interpreted in a way that accounts for the distribution and so reduces the overlay to some extent. Doctrines like federal paramountcy, inter-jurisdictional immunity, double aspect, and co-operative federalism determine, for example, whether the courts will conclude that a federal and a provincial law that are plausibly within the respective powers of the legislatures that enacted them are in conflict, and what happens if they are. The Constitution Act, 1867 bears on these questions, but only to some extent, so that the courts have mostly operated without textual guidance in this area.

Many of the rules the courts have developed are of more recent vintage than the interpretations of the heads of powers in sections 91 and 92 ― and of lesser quality. Since I started blogging (and it’s only been a little over six years), I have had occasion to denounce the Supreme Court’s paramountcy jurisprudence, as well as the uncertainty surrounding the doctrine of inter-jurisdictional immunity and the Court’s attempt to freeze it. Meanwhile, in an important recent article, Asher Honickman has criticized the Supreme Court for abandoning the textually-required exclusivity of the federal and provincial heads of power. Both Mr. Honickman’s criticisms and mine, as well as a noticeable part of the invective directed at the Supreme Court in the aftermath of Comeau, has to do with the Court’s embrace of the concept of “co-operative federalism”, which seems to be based on the idea that the more regulation there is, the better off we are. The court has sometimes tried to rein in this idea, notably in Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 SCR 693, where it rejected Québec’s attempt to force the federal government to hand over the data from its defunct gun registry. But, as Comeau demonstrated, co-operative federalism keeps coming back to haunt its jurisprudence.

There is, I think, a third category of federalism issues ― those that have to do with the general implications of this principle, as implemented in the Constitution Act, 1867 and other constitutional provisions. It encompasses cases such as Hodge v The Queen, (1883) 9 App Cas 117Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] AC 437, to some extent the Labour Conventions Reference, [1937] AC 326, [1937] 1 DLR 673, and more recently cases concerning constitutional amendment, including the Reference re Secession of Quebec, [1998] 2 SCR 217. In various ways, these cases hold that provinces are autonomous political communities and not mere components of the Canadian whole. This conclusion is an inference from the history and text of the Constitution Act, 1867. Perhaps the inference is wrong. All I can say here in its defence is that it is not enough to point to John A. Macdonald’s hope that provinces would in due course become no more than glorified municipal governments, if not wither away. Macdonald had initially hoped for a legislative union instead of a federal one. He lost that all-important fight, and the federation created by the Constitution Act, 1867 did not reflected the vision of Macdonald alone. To be sure, a federation without economic union may have been of little use; but a federation without meaningfully autonomous provinces would have been impossible.

Balancing these two considerations is no doubt exceedingly difficult ― but, fortunately, it is usually not the courts’ job. For the most part, it is the framers of the Constitution Act, 1867 (and its amendments) who did it when they distributed powers between Parliament and the provinces. They were, on the whole, remarkably successful, though of course, that’s not to say that they got everything right, still less that what was right in 1867 is also right a century and a half later. But, right or wrong, the Constitution Act, 1867 is the law, the supreme law of Canada, and the courts must enforce it to the best of their ability ― not re-write it. As the one British judge for whom Canadian lawyers usually profess admiration, Lord Sankey LC, wrote in the Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58, that

[t]he process of interpretation [of the Constitution Act, 1867] as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the provisions of ss. 91 and 92 should impose a new and different contract upon the federating bodies. (DLR 65)

Thus, when they adjudicate, the courts’ task is usually to ascertain what the framers of the Constitution Act, 1867 did. They do not need to update the balance between centralization and decentralization, between union and autonomy, from case to case. Nor have they the authority to try.

The problem with Comeau is that the Supreme Court made the attempt. According to the classification I sketched out in this post, the main question in Comeau was of the first, interpretive type (albeit that it concerned a limitation on, not a grant of, legislative powers). Had the Court got the interpretation right, it would have had to deal with additional questions belonging to the second, line-drawing, category. Comeau was not a case of the third type, and the Supreme Court erred in treating it as such. One of the rare defenders of Comeau, the usually very astute Chantal Hébert, makes the same mistake in her column for The Star. In her view, the case was “a timely reminder that Constitution does not cast the provinces as junior partners of a unitary federation”. Perhaps that’s how the Supreme Court saw it, but it’s not what the legal issue was.

Yet regrettably, many of Comeau‘s critics too seem to be taking the wrong lesson from it. They want the Supreme Court to remake Canadian federalism in the name of the “living tree” or of the desire which, Andrew Potter tells us, Canadians feel for an ever closer union. To ask the Court to remake the law in this way is only to encourage further mistakes in the future. To be sure, some corrections are in order, mainly in the realm of doctrines operating at the boundary of federal and provincial jurisdictions. But they would involve, in Mr. Honickman’s words, “getting back to the constitutional division of powers” laid down in 1867 ― not updates in the service of economic policy or nation-building. If such updates are necessary, they must be carried out by politicians following the procedures provided for constitutional amendment, not judges. What Comeau teaches us is not that our federalism jurisprudence as a whole is hidebound or perverse, but that the Supreme Court should stop playing constitution-maker’s apprentice and stick to enforcing the law.

Unmaking History

In the “free the beer” case, the Supreme Court shows ― again ― that it is the spoiled child of the Constitution

When it accepted to pronounce on the constitutionality of non-tariff barriers to inter-provincial trade, the Supreme Court had a chance to make history. In R v Comeau, 2018 SCC 15, the Court chose to unmake it instead. Far from “freeing the beer” and invalidating legislation that prevents bringing booze from one province to another and other regulatory schemes built on provincial protectionism, Comeau countenances even restriction on inter-provincial trade that would previously have been thought flatly unconstitutional. In the process, it tramples over constitutional text and history, as well as logic.

Section 121 of the Constitution Act, 1867 provides that “[a]ll Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.” But free of what exactly? Of any and all regulation, or of just some particular kinds? In Gold Seal Ltd v Alberta (Attorney-General),  (1921) 62 SCR 424, the Supreme Court held that “free” meant “free from tariffs”. In Comeau, it was asked to revisit this holding. As the Court ― its members evaded responsibility for their (mis)judgment by attributing it to the institution, though I am looking forward to Peter McCormick or someone else exposing the true author(s) ― notes, this question is of the highest importance:

If to be “admitted free” is understood as a constitutional guarantee of free trade, the potential reach of s. 121 is vast. Agricultural supply management schemes, public health-driven prohibitions, environmental controls, and innumerable comparable regulatory measures that incidentally impede the passage of goods crossing provincial borders may be invalid. [3]

* * *

Before answering the interpretive question, however, the Supreme Court addresses a different one: whether the trial judge was entitled to depart from Gold Seal to hold that s. 121 applied to non-tariff barriers to inter-provincial trade. The judge had taken up the Supreme Court’s invitation, issued in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, to revisit precedent in light of newly available evidence. In Bedford and Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331, which dealt with the constitutionality of the provisions of the Criminal relative to, respectively, prostitution and assisted suicide, the evidence that was held to allow lower courts to revisit Supreme Court precedent came mostly from the social sciences. In Comeau, the trial judge relied on new historical evidence about the context and original meaning of s. 121.

This, the Supreme Court insists, was not something that Bedford authorizes. Bedford “is not a general invitation to reconsider binding authority on the basis of any type of evidence”. [31; emphasis mine] What is required is a showing “the underlying social context that framed the original legal debate is profoundly altered”, [31] triggering the applicability of the Court’s “living tree” approach to the constitution. Historical evidence, which the court derides as “a description of historical information and one expert’s assessment of that information”, does not count: “a re-discovery or re-assessment of historical events is not evidence of social change”. [36]

In conversation with Maclean’s, Carissima Mathen said the Court “essentially chastised the trial judge for going beyond his authority, in terms of feeling free to disregard this older decision”. Were she less polite, prof. Mathen could have described the Supreme Court as delivering a benchslap to the trial judge, at once gratuitous and telling. Gratuitous, because this part of the Court’s reasons is, in my view, obiter dicta ― it is not part of the reasoning that’s necessary to the decision, which is based on the court’s own re-examination of the constitution and relevant precedent (including, as we’ll see, a departure from Gold Seal). Telling, because the disparagement of history is of a piece with the Court’s broader approach to the constitution, on which more below.

Embarking on its own analysis of s. 121, the Court repeats that a robust reading of this provision would call into question much existing regulation. But, it concludes, such a reading is not required. The constitutional text is “ambiguous, and falls to be interpreted on the basis of the historical, legislative and constitutional contexts,” [54] ― though it is mostly the latter that does the work in the Court’s reasons.

Historical context, in the Court’s view, is inconclusive, because different visions of what form of economic union Confederation would implement were presented by the political actors at the time (none of whom the Court actually quotes). Although it duly notes that “in drafting s. 121, [the framers of the constitution] chose the broad phrase ‘admitted free’ rather than a narrower phrase like ‘free from tariffs'”, [64] the Court insists that “[w]e do not know why they chose this broader, and arguably ambiguous, phrase”, [64] and concludes that “the historical evidence, at best, provides only limited support for the view that ‘admitted free’ in s. 121 was meant as an absolute guarantee of trade free of all barriers”. [67; emphasis in the original]

This is bizarre. Surely we can tell that, if the framers were consciously choosing between a narrower and a broader versions of a constitutional ban on barriers to trade, they chose the broader because the narrower did not capture all the barriers they meant to prohibit. As Benjamin Oliphant and I explain in our article on “Originalist Reasoning in Canadian Constitutional Jurisprudence“, the Supreme Court is no stranger to the “originalist inference” ― reasoning from a choice made during the framing of a constitutional text between competing proposed versions of a provision. The inference seems obvious here, but the Court avoids it. Even more remarkably, the Court also ignores the injunction in Bedford that appellate courts are not to re-assess “social and legislative evidence”, [49] including expert evidence, presented at trial. While the wisdom of this injunction is highly questionable, the Court is, admittedly not for the first time, simply ignoring relevant precedent, without bothering to either distinguish or overrule it.

The “legislative context” that the Court refers to is the placement of s. 121 in a Part of the Constitution Act, 1867 that largely deals with financial issues. The Court considers that  its other provisions “attach to commodities and function by increasing the price of goods”, suggestion that s. 121 does not “to capture merely incidental impacts on demand for goods from other provinces”, rather that “direct burdens on the price of commodities”. This might be the Court’s best argument, though it may also be that, as the trial judge found, s. 121 was put where it was simply because this was as good a place as any other in the Constitution Act, 1867. Be that as it may, the Court itself does  not seem to attach all that much importance to its conclusion on this point.

The heart of the Court’s reasoning is its discussion of the principle of federalism, which it finds to have two implications of particular relevance to the question of the constitutionality of barriers to inter-provincial trade. One is the exhaustiveness of distribution of powers between Parliament and the provinces. The other is the idea of a balance between the powers of the two levels of government ― and the Court’s role in maintaining that balance. As to the former, the Court insists that there must be no “constitutional hiatuses — circumstances in which no legislature could act”. [72] For any given policy ― including the imposition of barriers to inter-provincial trade ― there must be a level of government competent to enact it, alone or at least in “co-operation” with the other. As to the latter, the Court quotes F.R. Scott for the proposition that “[t]he Canadian constitution cannot be understood if it is approached with some preconceived theory of what federalism is or should be”, [82] and insists that, rather than “a particular vision of the economy that courts must apply”, federalism “posits a framework premised on jurisdictional balance that helps courts identify the range of economic mechanisms that are constitutionally acceptable”. [83]

Here, the Court contradicts both the constitution and itself. Constitutional hiatuses are not anathema to federalism. They exist ― in section 96 of the Constitution Act, 1867 (which limits the powers of both Parliament and the legislatures to interfere with the independence and jurisdiction of superior courts); in sections 93(1) and (2) (which limit the provinces’ ability to interfere with minority rights in education, without allowing Parliament to do so); and, even on the Court’s restrictive reading, in s. 121 itself. And then, of course, there is the giant constitutional hiatus usually known as the Canadian Charter of Rights and Freedoms, as well as the smaller but still significant one called section 35 of the Constitution Act, 1982. As for the court’s disclaimer of authority and desire to impose a particular vision of federalism or the economy, it is simply laughable. The idea that federalism requires judicially-imposed “balance” rather than the respect of the letter of the constitution, and any conceivable form of economic regulation must be able to be implemented are precisely the sort of preconceptions that the Court pretends to banish from our constitutional law.

Oblivious to its own incoherence, the Court claims that federal balance would be undermined, and a “constitutional hiatus” created, by an overbroad interpretation of s. 121. Instead of “full economic integration” [85] or “absolute free trade”, the Court propounds what it presents as a compromise:

s. 121 … is best conceived as preventing provinces from passing laws aimed at impeding trade by setting up barriers at boundaries, while allowing them to legislate to achieve goals within their jurisdiction even where such laws may incidentally limit the passage of goods over provincial borders.

The notion of impediment to trade is seemingly a broad one, extending to any provincial law that “imposes an additional cost on goods by virtue of them coming in from outside the province”, [108] or indeed bans inter-provincial importation outright. But, crucially, only laws “aimed at” creating such impediments are prohibited by s. 121, and this will be an extremely narrow category. In effect, it seems that only laws serving primarily “purposes traditionally served by tariffs, such as exploiting the passage of goods across a border solely as a way to collect funds, protecting local industry or punishing another province” will count ― and even that “depending on other factors”. [111] A law having a “rational connection” [113] to some other regulatory purpose, such as “protecting the health and welfare of the people in the province”, [112] or most any other conceivable regulatory objective, will survive. The law at issue survives because it is part of a regulatory scheme intended “to enable public supervision of the production, movement, sale, and use of alcohol within New Brunswick”. Its effects on inter-provincial trade in liquor coming to New Brunswick are merely “incidental”, and constitutionally permissible.

This is wrong in many ways. As a starting point, the Court is answering the wrong question. The issue is not how s. 121 is “best conceived”, but what its purpose is, and how that purpose can be given effect. As Randy Barnett and Even Bernick write in a their essay on purposive constitutional construction (which I reviewed here),

[t]o formulate a rule with reference to the function that the relevant provision is designed to perform is not a matter of making the law “the best it can be” but giving effect to the law as best one can. A judge who decided a case on the basis of some other reason—however normatively appealing that might seem—would be departing from the law entirely.

Second, the Court is wrong to claim that its approach to s. 121 is consistent with precedent. However narrowly it construed s. 121, Gold Seal at least maintained an outright prohibition on inter-provincial tariffs. Following Comeau, tariffs are fine ― provided that they are rationally connected to some regulatory scheme that can be spun to appear to be directed a public health and welfare objective. So much for stare decisis. Most importantly though, as Malcolm Lavoie points out in a CBC op-ed, the Court’s “approach practically nullifies Section 121”, because legislation primarily intended to deal or interfere with inter-provincial trade is already something that provinces cannot enact ― if anyone can, it is Parliament, under section 91(2) of the Constitution Act, 1867. (Professor Lavoie, it is worth noting, is the author of the most important article on the Comeau litigation, which the Court ignored, as it ignored all other scholarship touching on the case, as well as recent work on constitutional interpretation more broadly).

* * *

What causes the Court to re-write the Constitution Act, 1867 (while insisting that it is not making a policy decision), ignore precedent (while admonishing the trial judge for doing so), all in the name of a quest for a federal balance that it is quite different from the one the framers of the constitution struck (while denouncing the imposition of pre-conceived notions of federalism)? Emmett Macfarlane, writing for Maclean’s, denounces Comeau as “craven”, the result of “politicized timidity”. He is not wrong about this (though I think he is in his general denunciation of the federalism jurisprudence), but let me be more specific. In my view there are two (loosely related) problems with the way the Court decided Comeau: its pro-regulatory bias, and approach to constitutional interpretation.

The Court’s bias in favour of regulation appears in the introduction of both the decision as a whole (at [3], quoted above) and that of the substantive part (at [51], in similar terms). The Court is preoccupied by the fact that s. 121 might prevent the enactment of some forms of regulation. It is this, rather than the more general notion of “constitutional hiatuses” that leads it to narrow s. 121 into oblivion. As noted above, hiatuses exist, and the Court is actually quite fond of expanding them, s. 96 and the Charter especially. It is the prospect of constitutional limits on economic regulation that makes the Court suddenly desirous to ensure that Canadian legislatures can make or unmake any law whatever.

As for the Court’s interpretive method, it is implicitly, though not explicitly, living constitutionalist. In an appendix to the “Originalist Reasoning” article, Mr. Oliphant and I wrote that in Comeau the Court “be faced with a stark interpretive choice between a very strong originalist case”, which prevailed at trial, “and arguments based (perhaps paradoxically) both on stare decisis and what may be perceived as the needs, or at least the expectations, of current society”. These perceived needs are reflected in the Court’s pro-regulatory bias which causes it to impose its own vision of federalism. And doing so is all the easier if historical evidence can be treated as less significant and worthy of deference than equivalent social scientific evidence, twisted, or even ignored.

* * *

As I wrote in an essay published last year in Diritto Pubblico Comparato ed Europeo, the well-document hefty costs of the regulatory schemes which the Supreme Court thought it so important to preserve from constitutional challenge, and the fact that this cost is, in many cases, disproportionately borne by the most economically disadvantage members of Canadian society, ought to remind us that “living constitutionalism can come at a price, not only to abstract ideals such as the Rule of Law, but also to individuals and families, including, and even especially, to the most vulnerable”. (644) To be sure, we can in theory demand that our politicians enact inter-provincial free trade even if our judges will not impose it. But this argument could be made in response to literally any constitutional claim. The raison d’être of an entrenched, judicially enforceable constitution is that the political process sometimes fails to translate just demands, and indeed even popular demands, into legislation, due to either the tyranny of self-centred majorities, or the well-organized resistance of self-interested minorities. Section 121 of the Constitution Act, 1867 was enacted in recognition of this reality. The Supreme Court presumes to update our constitution, but it lacks the wisdom of those who wrote it.

It has been said, perhaps unfairly, that Viscount Haldane was “the wicked stepfather of the Canadian Constitution“. The Supreme Court deserves to be called the Constitution’s spoiled child. This child demands that its parent conform to its demands, and throws tantrums whenever it does not. Unfortunately, too many people find this child’s petulance endearing. Perhaps Comeau will convince them that it must, at long last, be made to behave.

Ach, mein Sinn

Bach on the reasons for respecting freedom of conscience

I’m not at all religious; I found seeing a procession carrying a cross, and kneeling down to pray briefly outside my building in the centre of Auckland before continuing on their way rather bemusing. But I do like good music, very much including religious music from JS Bach to Dave Brubeck, and a rainy Good Friday seemed like a very good occasion to listen to a recording of the St John Passion without getting distracted.

This turned out, however, to be a more topical exercise than I expected. Pilate wondering “What is truth?” and the crowd insisting that “We have a law, and according to that law He should die” ― was Auden thinking of this when he wrote about “the loud angry crowd/ Very angry and very loud” claiming that “Law is We”? ― are just two examples of the very contemporary issues the Passion raises, quite from any belief that it holds eternal truths.

But it was another passage that struck me most, one that speaks to a truth that is, at least, as old as mankind but also, sadly, very relevant to Canadians in 2018: the aria “Ach, mein Sinn”.


Here is a translation:

Alas, my conscience,
where will you flee at last,
where shall I find refreshment?
Should I stay here,
or do I desire
mountain and hill at my back?
In all the world there is no counsel,
and in my heart
remains the pain
of my misdeed,
since the servant has denied the Lord.

As you’ve probably guessed, the words are Peter’s, after he denies being one of Jesus’ disciples. But the description of a conscience that is tormented by its own weakness, that wants to flee its predicament yet realizes that it cannot escape, and that cannot be helped, is one that ought to be recognizable to all human beings, regardless of their belief in, or indeed awareness of, the Gospel story. Whether Peter has denied the Lord or “only” a man he loved and admired is, I think, quite beside the point. Either way, he has given up his integrity, and he suffers as a result.

It is also beside the point whether Peter’s denial was voluntary, and his suffering, something he brought upon himself. Having followed Jesus, whom the High Priest’s men have arrested, to the High Priest’s palace, Peter is confronted by “One of the high priest’s servants, a friend of the man whose ear Peter had cut off”. He is no doubt afraid; he is probably right to be afraid. From an external perspective, his denial might be excusable; one shouldn’t be quick to boast that one would not have done the same in such circumstances. But for Peter himself such excuses are of no avail.

This reminder of why conscience is so important is most timely. The idea that Trinty Western University can just be made to abandon its homophobic and illiberal “covenant”, or that religious groups can be made to accept an “attestation” implying support for abortion rights, or that Ontario lawyers can be made to “promote” values regardless of their belief in them, ignores the suffering that these institutions and individuals would subject themselves to in complying with the state’s demands. Empathy for this sort of suffering, for the pain people when they lose their integrity, even if acting under the compulsion of the law and the threat of legal sanction, is the justification for respecting and protecting ― including by constitutional means ― the freedom of conscience.

The promoters and defenders of impositions on conscience feel no such empathy. Whether that is because they do not understand the plight of those whose obedience they demand, or because they are indifferent to it, I do not know. I suspect that a certain failure of imagination ― the inability or the refusal to admit that they might not always be the ones exacting obedience, and that they might instead find themselves in the position of would-be conscientious objectors ― is at least partly at issue. But, either as a warning about what they might themselves feel one day, or as an appeal for compassion, I hope that they take note of “Ach, mein Sinn”.

Repurposing Constitutional Construction

Is Randy Barnett and Evan Bernick’s theory of originalist constitutional construction relevant to Canadians?

Randy Barnett and Evan Bernick’s important essay “The Letter and the Spirit: A Unified Theory of Originalism” has been available for some time already, but it is still worth a comment here. Professors Barnett and Bernick have great ambitions for their project, hoping that it will serve to rally and reconcile the adherents of most if not all of the various forms of originalism ― which Benjamin Oliphant and I once described as “a large and ever-growing family of theories of constitutional interpretation” ― and rather fractious one, too. Indeed, although Professors Barnett and Bernick also think that their approach can serve to shore up the distinction, sometimes said to be evanescent, between originalism and living constitutionalism, a version of their theory, albeit justified on grounds different from those that they put forward, might serve to reconcile originalism with much of what the Supreme Court of Canada says and does about constitutional interpretation.

The “unified theory of originalism” seeks to achieve what others, it is often said (including by at least some originalists), failed to do: constrain originalist judges, in particular in those cases where the original meaning of the constitutional text is not enough to do dispose of the dispute. “New originalist” theories, such as those previously put forward by Professor Barnett, sharply distinguished constitutional interpretation ― “the activity of ascertaining the communicative content of the text” (3) ― and constitutional construction ― “the activity of giving that content legal effect” (3). The text, as originally understood, might not tell us how a given dispute ought to be settled, and so a court would need to develop further rules, consistent with but not dictated by the text, to resolve the controversy. But originalist theories that accepted the interpretation-construction distinction tended to have little to say about how courts should go about articulating these rules. Indeed, Professor Barnett previously argued that constitutional construction is not an originalist activity at all, since it is, by definition, not a function of the original meaning of the constitutional text.

Not so, Professors Barnett and Bernick now argue: construction not only can but must be originalist. When “the letter” of the constitution, the original public meaning of its text, understood in its context, is not enough to dispose of case, the court’s construction of the constitution must be guided by its original “spirit” ― that is, the purposes animating the text being applied, or indeed the constitutional text as a whole. These purposes are not the intentions of the constitution’s framer’s as to the effects it would produce in addressing the specific dispute at hand ― which will often be non-existent, and might be inconsistent with the text even when they exist. Rather, they are “the functions” that the constitutional provisions being applied were meant to serve “at the time each constitutional provision was enacted”. (15) Although this approach to constitutional construction is thus a form of purposivism, the purposes to which it gives effect are not those of the court or of society at the time of adjudication, but those of the constitution’s designers. The focus is on “the design principles that explain the specific provisions and general structure of the Constitution”, (41) understood at the appropriate level of abstraction.

The reason why this approach to construction is justified, indeed required, has to do with the nature of the relationships between the judges, the constitution, and the citizens subject to it. According to Professors Barnett and Bernick, judges (as well as all other government officials) are fiduciaries; they exercise discretionary powers and their “decisions … bring the government’s coercive power to bear upon us to our detriment, or that prevent the government’s power from being used to our benefit”. (19) Judges enter into their fiduciary relationship with the people by swearing an oath “to support this Constitution” and, like parties to a contract, they must perform their undertaking in good faith. Specifically, when the letter of the constitution leaves them with discretionary decisions to make, judges must not seek to exercise their discretion so as “to recapture foregone opportunities” (24) to implement their own constitutional preferences instead of “supporting” the constitution that was ratified (and amended) by the people, and so “to change the Constitution through adjudication” (31).

This justification might be of limited interest outside the American context. While thinking of government officials as fiduciaries might be helpful, Canadian judges do not swear “to support” the Canadian constitution. In fact, their oaths do not refer to the constitution at all, but rather to their “duties” or “powers and trusts”. As for the notion of good faith, it is a latecomer to Canadian contract law, or perhaps a foundling, and was no part of it in either 1867 or even 1982 ― though arguably that’s beside the point, because the Canadian judicial oaths do require judges to act “faithfully”. So I’m not sure if thinking of judges as having explicitly foregone opportunities for constitutional rectification in the course of adjudication is especially helpful in Canada. Certainly many Canadian judges do not think of themselves as having made any such undertaking. Having repeatedly argued that the state cannot dictate the contents of people’s conscientious obligations ― whether in the case of the citizenship oath or in that of the Law Society of Ontario’s “statement of principles” ― I will not insist on telling judges how to think of theirs.

But that doesn’t mean that Professors Barnett and Bernick’s ideas about how judges ought to engage in constitutional construction are irrelevant to Canada. The case for requiring fidelity to what they call the spirit of the constitution ― to the purposes for which the constitution’s provisions were designed and to what Lord Atkin, in the Labour Conventions Reference, described as “its original structure” ― does not, I think, depend on the wording and import of Canadian judicial oaths, or on the applicability of contractual principles of good faith. It rests, rather, on the nature of activity of judging and of interpretation. The idea that interpreters are to identify the purposes of legislation, the reasons for which it was enacted, and apply legislation in a manner that furthers these purposes is a longstanding one. As Lon Fuller pointed out in a passage from The Morality of Law that I have discussed here, it was captured in Haydon’s Case, (1584) 3 Co Rep 7a:

for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:

1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.
And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

To apply this to constitutional rather than statutory texts, some minor adjustments are in order, notably to account for the fact that constitutions are not (primarily) enacted against a common law background, but the substance of this principle is still relevant in the constitutional context ― all the more so since Canadian constitutional texts are, for the most part, statutes in form.

And indeed the Supreme Court has often endorsed a purposivism that appeals to the sort of originalist considerations on which Professors Barnett and Bernick would have the courts focus. For example, in R v Big M Drug Mart [1985] 1 SCR 295, Justice Dickson (as he then was) held that that

[t]he meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. … [T]he purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. (344; underlining in the original, paragraph break removed.)

To say that courts are to look for the functions constitutional provisions were intended to have at the time of their framing is simply a different way of putting the same thing. And this passage from Big M is not unique, as Mr. Oliphant and I show in the article referred to above, and also in the follow-up piece looking at “Originalist Reasoning in Canadian Constitutional Jurisprudence“.

Of course, notwithstanding Justice Dickson’s admonitions in Big M, the Supreme Court of Canada has not been consistently originalist ― far from it, though as Mr. Oliphant and I demonstrate, it has been more originalist than living constitutionalists in Canada and elsewhere care to admit. The warning, arguably implicit in Justice Dickson’s comments, and explicit in at least Supreme Court cases warning against judicial re-writing of the constitution in the name of purposivism, which Professors Barnett and Bernick reiterate, has gone unheeded in some noteworthy Canadian cases, such as those that gave “constitutional benediction” to the alleged rights of organized labour. Precedents, such as Big M, articulating what might well be the right constitutional theory are no guarantee that this theory will be applied in a principled or consistent fashion. As William Baude suggests in a recent essay exploring originalism’s ability to constrain judges, “originalism can still have constraining power, but mostly for those who seek to be bound”. (2215) But those members of the Canadian judiciary who do indeed seek to be bound by the constitution could, I think, usefully consider the argument advanced by Professors Barnett and Bernick as a guide in their endeavours.

Deference with a Difference

Dunsmuir and Aboriginal Rights

Janna Promislow, Thompson Rivers University

The recent Supreme Court decision in Ktunaxa Nation v BC (Forests, Lands and Natural Resources Operations), 2017 SCC 54 treats both Charter and s. 35 rights in a single judicial review, providing an interesting case study to identify and consider points of difference between the application of deference in Aboriginal rights versus Charter contexts. The case involved a regulatory approval allowing the development of the Jumbo Glacier Resort, a proposed ski resort near Invermere, BC, on land identified by the Ktunaxa Nation as “Qat’muk”, the home of the “Grizzly Bear Spirit”. The majority, written by McLachlin CJC and Rowe J, rejected the claim that the Minister’s approval had violated the Ktunaxa’s freedom of religion under s. 2(a) of the Charter. The Minister’s conclusion that the duty to consult and accommodate the Ktunaxa’s claimed rights had been satisfied was also upheld as reasonable. The majority’s approach might be described as “separate paths” for Aboriginal and Charter rights, with the distinct breaches involved leading to mutually exclusive grounds for judicial review. The concurring minority, written by Moldaver J, agreed with the majority on the s. 35 duty to consult, but found an infringement of s. 2(a) that was nevertheless proportionate to the statutory objectives under the Doré/Loyola framework. In contrast to the majority, Moldaver J’s approach integrated Indigenous and Charter interests, at least in regard to the Charter right, such that the Indigenous character of the religious claim was significant, and the accommodations negotiated through s. 35 consultations were critical to the determination that the Minister’s decision was ultimately reasonable (an integration that was incomplete: see Naiomi Metallic’s post for a discussion of the definition of the statutory objectives in the proportionality analysis).

In spite of these quite different approaches, both the majority and minority addressed the question of whether s. 2(a) had been infringed by the Minister’s decision as a threshold question of constitutional law that attracted de novo review on the correctness standard,[1] achieving uniformity in their methodology of review that was absent in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16. The duty to consult in Ktunaxa Nation (like many other cases), however, was not about whether a known right had been infringed, but rather the interim protection of “potential, but yet unproven” rights (Haida Nation v BC, 2004 SCC 73 at para 27). The process of consultation and ultimate decision attracted reasonableness, in line with the existing law on the duty to consult and in step with deferential review of discretionary decisions more generally. But the Aboriginal right or rights at stake were not determined before deference was applied. As McLachlin CJC and Rowe J emphasized, judicial review of administrative decisions for breach of the duty to consult is not the forum for pronouncements on the validity of Aboriginal rights claims: “To permit this would invite uncertainty and discourage final settlement of alleged rights through the proper processes.” (at para 84). By contrast, the lack of analysis of the Charter right by the Minister was no obstacle to the Court considering the scope of Charter claim on judicial review (at para 60). What explains this “incongruent” difference?

McLachlin CJC and Rowe J point to the need for a full evidential record to determine an Aboriginal right, beyond what might be entered for the purpose of the duty to consult, which requires only a preliminary assessment of the strength of the claimed rights (at para 84). The task of proving the existence of historically grounded Aboriginal rights may well be different from the task of demonstrating that the scope of a known Charter right includes protection in a given case. But is the difference of approach grounded in practical concerns about the proof of the rights (difference 1)? Or is it grounded in the jurisprudence that dictates a case-by-case proof of rights under s. 35, versus a proof of violation of a right under the Charter (difference 2)? If the practical concerns are the obstacle, Nova Scotia v Martin, 2003 SCC 54 and Paul v BC, 2003 SCC 55 suggest that other considerations take precedence over practical concerns in relation to access to constitutional arguments before administrative decisions-makers, including s. 35 rights. If difference 2 is the obstacle, the question becomes whether government’s obligation to consider the constitution when interpreting statutes and discretionary authority is really all that different when it comes to Aboriginal rights, including the “potential, yet unproven” ones. The discussion of Charter values after Doré, and the subsequent treatment of challenges that go to the scope of the rights on a correctness standard (such as in Ktunaxa Nation, and the majority in MLQ v Sagnuenay), might demonstrate that when a remedy is sought for an alleged breach of a Charter right, the values at stake transform into a dispute about the right that requires adjudication and articulation, whether by courts or tribunals, whether addressed de novo or not. Are the values behind Aboriginal rights not “rights-like” enough to require or allow for parallel treatment?

The second difference points to a third: the premise that Aboriginal rights and/or their accommodation should be articulated through negotiation. As the Supreme Court has stated repeatedly, in one way or another, s. 35(1) “provides a solid constitutional base upon which subsequent negotiations can take place” (R v Sparrow, [1990] 1 SCR 1075 at 1105; see also Delgamuukw v BC, [1997] 3 SCR 1010 at para 186). The negotiation of rights recognition gives rise to the constitutional duty to consult and accommodate to prevent the unilateral exploitation of claimed resources “during the process of proving and resolving the Aboriginal claim to that resource,” a process that the Court recognizes “may take time, sometimes a very long time” (Haida Nation, at paras 26-27). In the interim, however, the Crown retains the right and authority to continue managing the resources subject to Aboriginal claims, and to make “decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns.” (Haida Nation, at para 45). As McLachlin CJC and Rowe J acknowledge in Ktunaxa Nation, the consultation and accommodation process conducted by the Minister will not satisfy the Ktunaxa, “[b]ut in the difficult period between claim assertion and claim resolution, consultation and accommodation, imperfect as they may be, are the best available legal tools in the reconciliation basket” (at para 86).

If Aboriginal rights are “TBD,” what are “the proper processes” for the determination of Aboriginal rights that the majority in Ktunaxa Nation alludes to? A recent policy announcement by the Trudeau government suggests that creating specialized mechanisms for recognizing Aboriginal rights is finally on the policy agenda. The status quo is that Indigenous peoples can litigate their claims or attempt to work through comprehensive claims processes in relation to title and other s. 35 rights. It is old news that these treaty processes are deeply troubled, and that both litigation and negotiation generally take “a very long time,” a euphemism that buries concerns about expense burdens and access to justice. In Ktunaxa Nation, the majority plainly want to support the “proper” resolution of rights claims, but they do not question the access to “proper processes” before they defer to the Minister’s assessment of the Qat’muk sacred site claim, as part of their review of the adequacy of the consultation process under the reasonableness standard (at para 100). The implication of deference here is that if government manages legal risk by consulting beyond what the legal duty might require in relation to “weak” rights claims (as this particular Ktunaxa claim was assessed, reasonably so according to the Court), it is unnecessary for the Minister or the courts to fully articulate and assess that claim. How does such deference serve to support “a solid constitutional base” for negotiations? This point of deference in Ktunaxa Nation, however, is less about difference and more about the common administrative law theme of inconsistency given that earlier cases establish that deference is not owed on the preliminary assessment of the strength of the right and related determinations of the scope of consultation obligations: Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 48; Haida Nation at para 63.

A fourth difference to consider is structural, relating deference to the obligation to implement and respect constitutional rights in administrative decision-making. Under s. 32, the Charter applies to administrative delegates such that they must interpret statutes and make decisions that accord with the Charter. Deference is thus owed to administrative decision-makers who properly take Charter rights and values into account in their decisions because their area expertise includes respecting the Charter. Section 35 did not come with an application clause. Instead, the obligation to make decisions that respect and implement rights stems from the honour of the Crown. Haida Nation established that aspects of the duty to consult may be delegated but the honour of the Crown itself cannot be delegated (at para 53). In Clyde River v Petroleum Geo-Services Inc., 2017 SCC 40, the Supreme Court further explained: “While the Crown may rely on steps undertaken by a regulatory agency to fulfill its duty to consult in whole or in part and, where appropriate, accommodate, the Crown always holds ultimate responsibility for ensuring consultation is adequate.” (at para 22). “Reliance” rather than delegation ensures that at least some issues of accommodation and disputes about claims will find their way back to the ‘real’ Crown (see Clyde River, paras 28-29). This approach might suggest respect for “nation-to-nation” treaty relations (and arguably fail), but it also might signal the ongoing political quality of Aboriginal rights, even when the rights at stake were recognized through a modern land claim agreement, as they were in Clyde River. Why, then, is the responsibility to respect for these rights treated differently from Charter rights?

The incompletely delegable quality of the honour of the Crown appears to indicate that administrative expertise is limited, suggesting a re-examination of the premises for judicial deference to non-Crown agencies in such contexts is required. Deference to decisions by Ministers, whose actions directly represent the Crown, might also be inappropriate, or based on a different theory altogether: instead of, or in addition to, the “politics of deference”, there is an ongoing politics of sovereignty at stake. Alternatively, having waited for a negotiated solution for long enough, the courts might take a different tact by reviewing Aboriginal rights as parallel to Charter rights, and thus recognizing these rights as also “ripe” for implementation. Deference under that approach would presumably be more rigorous than reasonableness as it applies to review of discretionary decisions more generally; see, for example, the treatment of reconciliation, the honour of the Crown, and reasonableness in Kainaiwa/Blood Tribe v Alberta, 2017 ABQB 107.

Although it is obvious to me at least that constitutional Aboriginal rights must be implemented as rights, and on par with Charter rights, this view does not imply that approaches to deference in relation to Charter rights should necessarily be applied in relation to Aboriginal rights. Rather, the preceding comparison and identification of points of differences in the application of deference to the review of decisions implicating Aboriginal rights is the start of a bigger discussion. Do the differences identified hold up? Are they principled? Should there be deference in the review of government decisions that affect Aboriginal rights, and if so, why? And how should it be carried out? These are questions for another day.

[1] There is of course much to be said on the freedom of religion aspects of the decision; see, for e.g., Howard Kislowicz and Senwung Luk

Charter Rights and Charter-Lite

How not to resolve the tension between the principles of constitutional and administrative law, and how to actually do it

Audrey Macklin, University of Toronto

The Supreme Court’s 2012 decision in Doré signaled the apparent victory of Team Administrative Law over Team Charter: discretionary decisions engaging Charter rights — dubbed ‘Charter values’ for this purpose — would henceforth be decided according to principles of administrative law applicable to discretion rather than constitutional principles applicable to rights infringement. This meant that judges called upon to review exercises of discretion that impaired Charter rights/values would defer to the administrative decision maker’s determination, and only set it aside if it was ‘unreasonable’.  Although Dunsmuir indicated that constitutional issues would attract a stricter standard of review (correctness), Doré subordinated the constitutional dimension of a decision to its discretionary form in order to winnow down one of the few remaining bases for non-deferential review. The reassurance offered by Team Administrative Law was that judicial deference in administrative law is not so different from elements of judicial deference built into the Oakes test. According to the Court,

while a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence works the same justificatory muscles: balance and proportionality.

Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a ‘margin of appreciation’, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.[1]

I dispute the Court’s attempt to plot administrative and constitutional review on the same axis. First, the replacement of Charter ‘right’ or ‘freedom’ with Charter ‘value’ obscures the recognition of rights and freedoms in play.  Secondly, the methodology proposed in Doré purports to marry a simplified proportionality analysis with Dunsmuir’s deferential reasonableness review. In my view, this jurisprudential mash-up respects neither the primacy nor priority of Charter rights and produces instead a Charter-lite approach to review of discretion. Curial deference toward the outcomes it produces exacerbates the dilution of rights protection. It also creates negative incentives for governance and the rule of law by making the executive less accountable for Charter breaches committed via discretion than by operation of a legal norm.

For present purposes, I will highlight the second and third defect of Doré, the proportionality analysis. The normative primacy of Charter rights means that a proportionality analysis in the context of rights adjudication is not neutral as between rights and freedoms protected by the Charter and other interests, entitlements or ‘values’.  To denominate an interest as a right is to recognize its distinctive importance. A Charter right intrinsically ‘weighs’ more (by virtue of being a right) than something called an interest, value or entitlement[2].   Doré’s re-labelling of Charter right as Charter ‘value’ obscures this implication of rights recognition.  More significantly,  the simplified proportionality analysis commended by the Court simply requires decision makers to identify the Charter ‘value’ in play and then ‘balance’ it against competing objectives. In effect, it suppresses the normative primacy of a Charter right. This demotion is not rescued by remedial italics. Exhorting decision makers to engage in what Abella J. called  ‘a robust proportionality analysis consistent with administrative law principles’ does not assist, precisely because it does not reckon with the relevant administrative law principles.

The standard of review in Doré is reasonableness.  A failure to accord sufficient importance to a Charter right (or value) is a question of weight, and the Court’s statement of administrative law principles for over fifteen years have emphatically insisted that deferential review of discretion precludes reweighing the factors relevant to the exercise of discretion. Doré does not depart from this admonition against re-weighing. So if an administrative decision maker undervalues the importance of protecting Charter values/rights against fulfillment of the statutory objectives that are the daily preoccupation of that decision maker, deferential review will have nothing to say. (That is, if the court actually defers; claiming to apply a standard of reasonableness while actually reviewing on a standard of correctness can avoid unpalatable outcomes but only at the cost of introducing other pathologies.)

A Charter right, once established, also asserts normative priority. A rights bearing individual need not justify the exercise of a Charter right; rather, the state must justify infringing it, and the state’s burden is a heavy one.  These requirements flow from the intrinsic weightiness of rights. The stages of the test are designed to ensure that limiting a right serves important objectives, actually advances those objectives, and limits the right no more than required to achieve the objective. Only after clearing each of those hurdles does one arrive at the ultimate balancing of the last step, in which the failure to accord sufficient weight to the Charter right may yet yield the conclusion that the government has not discharged its burden.

The confounding feature of discretion, of course, is that it presupposes that the person has no right to a particular outcome (indeed, the outcome may, in this technical sense, be a ‘privilege’), but insofar as the Charter is implicated in the decision, the individual should be regarded as a rights bearer.

While Doré does instruct decision makers to assess the necessity of limiting the Charter protection in order to achieve statutory objectives, the Court provides no practical advice about how to do that. On its face, it encourages a mere balancing of the Charter as one factor among others. Perhaps the Court in Doré intends to convey the normative primacy and priority of the Charter and all that is entailed when it enjoins decision-makers to ‘remain conscious of the fundamental importance of Charter values in the analysis’[3].   If so, it should say so more explicitly, because it would be subverting its own problematic jurisprudence on re-weighing.

Another entry point into the disjuncture between administrative and constitutional review is the judicial posture toward ministerial decisions. It exposes a fundamental tension between the democratic impulse that underwrites deference and the counter-majoritarian dimension of constitutional rights adjudication. Judges are entrusted with adjudicating the Charter not only because of their legal expertise, but also because of their independence from government. Some Charter cases engage questions of redistribution that resist straightforward classification as state infringement of individual right, but many Charter challenges do conform to type. The judiciary’s real and perceived detachment from the legislature and the executive matters to the legitimacy of rights adjudication when government actors are alleged to have breached the constitutional rights of individuals subject to their authority. Yet, standard of review jurisprudence currently justifies deference by reference to democratic delegation.  Quasi-judicial tribunals who enjoy a measure of relative independence enjoy no more or less deference than front line bureaucrats and possibly less than ministers of the crown. The independence of the administrative decision maker from government does not matter to deference.

But in Charter litigation, proximity to the political branch of government pulls in the opposite direction – decisions by elected officials (legislators) are distrusted precisely because they might be inclined to trade off individual rights for political gain through appealing to majoritarian interests. In other words, democratic legitimacy, political acumen and access to expert staff may incline courts to display particular deference to Ministers in judicial review of discretion, but this translates awkwardly into a rationale for deference where the Charter is at issue. The fact that an administrative decision maker is also high-ranking elected official is not a reason to defer to the balance he or she strikes between protection of individual rights and advancement of other public objectives (statutory or otherwise). It may even be a reason not to defer.

The foregoing does not suggest that decision makers with authority to interpret law should not consider the Charter when exercising discretion.  Their valuable ‘field expertise’ may enhance the fact finding process, the elaboration of the statutory scheme  and the richness of the evidentiary foundation. Some individual decision makers may also produce legally sophisticated and cogent Charter analyses. Many will not, either for lack of ability, time, resources or independence, or some combination thereof. There is simply no basis for a presumption that a decision maker’s ‘field expertise’, which may contribute constructively to some aspects of a Charter analysis, equips the decision maker to manage all aspects of a Charter analysis. On judicial review, judges should certainly pay respectful attention to the reasons given by decision makers exercising Charter-impacting discretion. Sometimes the reasons may be persuasive, and a judge should be as open to benefiting from a rigorous and compelling set of reasons in the same way he or she is open to persuasion from high quality submissions by counsel, analyses by law clerks, or opinions of fellow judges.

In other words, the arguments in favour of Charter jurisdiction do not explain why deference is owed to their Charter outcomes. Nor do arguments about why courts should defer to the exercise of discretion on non-Charter matters automatically extend to those aspects of discretion that implicate the Charter. Yet Doré commits both of these errors.  The slippage is exacerbated by the fact that Court in Doré equips administrative decision makers with a Charter-lite methodology that is approximate, vague and incomplete, starting with its problematic invocation of Charter values, to its account of proportionality.

Lower courts and various Supreme Court judges have already revealed diffidence toward Doré, either by subjecting it to critique or effectively ignoring it. Going forward, I propose that a constructive approach to review of discretion engaging Charter rights should contain the following elements: First, a Charter right is a Charter right, regardless of whether it is infringed by operation of law or discretion; conclusory labelling it a ‘value’ obscures rather than clarifies.

Secondly, a Charter right weighs more than other interests, and the graver the impact of the violation, the more it weighs. Thirdly, the independence of the decision maker from political influence matters. Proximity between the decision-maker and the legislator provides no reason to defer to a balancing of individual Charter rights against majoritarian interests.

Fourthly, where no or inadequate reasons are provided for the exercise of discretion that infringes a Charter right, curial deference neither requires nor authorizes retrofitting reasons to support the result reached by the administrative decision-maker.

Finally, the extent to which the discretion in structured and guided through constitutionally valid legislation, regulation or ‘soft law’ matters. Where the exercise of discretion will routinely and predictably limit Charter rights (e.g. in civil or criminal commitment, parole, immigration detention, child apprehension, extradition, etc.), legislators can and should stipulate the purposes for which the discretion is granted, and identify the factors relevant to the exercise of discretion.  If these provisions withstand an ordinary Charter challenge (including the Oakes test), then the individual exercise of discretion within those demarcated constitutional boundaries should benefit from greater deference than exercises of broad, general and unstructured discretion.  Legislators and administrative agencies should be encouraged to structure discretion.  It advances the rule of law goal of publicity. But if the legislator declines to structure the discretion, courts should not reward opacity by undertaking to generate the best optimal justification for the outcome, just as they should not reward the absence of [adequate] reasons by generating better ones.[4]

Whether these considerations travel under the rubric of reasonableness, correctness, proportionality or Oakes, or some other label matters less than that they receive proper and explicit attention. After Multani, David Mullan correctly (and reasonably) concluded that there is ‘room for deference to the discretionary judgments of statutory authorities exercising powers that have the potential to affect Charter  rights and  freedoms’, but in order to prevent devaluation of those rights and freedoms ‘there should be recognition  that the framework within which deference operates will often, perhaps invariably need  to be different than in the case of judicial  review of administrative action that does not affect Charter rights and  freedoms’.[5] Justice McLachlin (as she then was) correctly observed that many more people have their rights determined by administrative decision makers than by courts. The quality of Charter protection they receive should not depend on who makes the determination.

Doré, at paras. 56, 57.

[2] Lord Bingham recognized this in the UK context: R (Daly) v. Secretary of State for the Home Department, [2001] UKHL 26.

[3] Doré, at para 54.

[4] Ideally, this should incentivize legislators to be more transparent in structuring and defining the scope of discretion in legislation.  For a thoughtful elaboration of this idea, see Paul Daly, “Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms” (2014) 65 Supreme Court Law Review (2d) 247.

[5] “Administrative Tribunals and.Judicial Review of Charter Issues After Multani” (2006–07) 21 N.J.C.L. 127 at 149.

Dunsmuir and the Constitutional Status of the Administrative State

Have the courts built the administrative state into the constitution’s architecture?

Kate Glover, Western University

I presented some of the ideas summarized here at the ‘Re-writing the Canadian Constitution’ Conference at Boston College Law School, Boston, MA, 19-20 October 2017. This piece is part of a larger project that explores the constitutional character of the administrative state, as well as the implications of that character

The contemporary administrative state in the United States is, Gillian E Metzger writes, under siege on political and judicial fronts.[i] The attack is waged in the President’s tweets, in the administration’s policies, in budget cuts, in failures to fill administrative roles, and in Supreme Court decisions. While Metzger’s descriptive account of the state of administrative justice in America does not reflect the current Canadian experience, it still raises a question worth asking in the Canadian context, namely, would there be any legal recourse in the event of a similar “siege” north of the border?

Part of the answer to this question lies in the constitutional status of the administrative state. Does the network of public actors and institutions that make up the administrative state fall within the protective scope of the constitution? Or, more specifically, does this collection of actors and institutions fall under the protective arm of the constitutional amending formula?[ii] If the administrative state is entrenched within the architecture of the constitution, then the answer is yes. And if the answer is yes, action taken to dismantle or undermine the administrative state could be deemed unconstitutional, thwarted by an absence of the multilateral consensus required under the amending formula.

What, then, is the constitutional status of the administrative state?

The law has traditionally told a story about governance in Canada that imagines the administrative state not as constitutionally necessary, but as constitutionally permissible and, ultimately, constitutionally welcome. Administrative decision-makers are, as Justice Abella explains in Rasanen v Rosemount Instruments (1994) 17 OR (3d) 267 (CA), “designed to be less cumbersome, less expensive, less formal and less delayed”. These actors are, she reasoned, “to resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly”. They are, in other words, established and operate in service of access to justice and the rule of law, but can be created – and reformed and dismantled – at the free hand of the legislature, with few constitutional constraints.

But a study of modern public law jurisprudence in Canada reveals an alternative story of governance and public justice that leads to a different conclusion about the constitutional status of the administrative state. In this alternative account, the administrative state – not in all its particulars, but in its essence and function – is a necessary or essential feature of Canada’s constitutional architecture. It follows, as noted above, that the administrative state is entrenched within the constitution and therefore tucked under the protective arm of the amending formula.

* * *

So what is this alternative account and what does Dunsmuir have to do with it?

In short, the alternative story is told by simply noticing three turns in the public law jurisprudence. Each of these turns reflects an expanded appreciation of administrative decision-makers as part of a common justice project, and together, they support the conclusion that the administrative state is now, as a doctrinal matter, constitutionally necessary. Dunsmuir and its progeny, as it turns out, are an important part of the story. They represent the first turn in the jurisprudence that is important for the story. It is in this turn that we see the emergence of the courts’ commitment to a deferential posture when engaged in review of administrative action. Relatively speaking, this posture is new. The early eras of the administrative state witnessed the courts’ active intervention in administrative decision-making. The courts relied on an expansive category of ‘questions of jurisdiction’ to justify intrusions into administrative decision-making.[iii] The message was that administrative actors were inferior decision-makers requiring strict supervision by the judiciary in the service of the rule of law.

Today, judicial resistance to administrative power has been replaced by an attitude of deference to administrative decisions, including deference on questions of law and statutory interpretation. This deferential approach emerged incrementally as the courts grappled with the challenges of relying on reasonableness as a meaningful standard of review.[iv] The commitment to deference was rooted in respect for, in the words of Professor Mullan and invoked by Justices Bastarache and LeBel in Dunsmuir, “the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”.[v] Ultimately, in the post-Dunsmuir world, defence is the norm. While correctness review remains available on some matters, reasonableness is the default standard whenever an administrative decision-maker is interpreting its home statute or statutes that are close to home,[vi] as well as the de facto default standard in a vast number of other contexts.

The second jurisprudential turn of note is witnessed in the expansion of administrative decision-makers’ jurisdiction over constitutional matters. The law has not always granted these actors direct access to, or responsibilities under, the constitution. However, since the later decades of the twentieth century, public law jurisprudence has been loosening the judicial grip on constitutional interpretation. Where do we see this loosening? Martin and Conway are two examples.[vii] Here, we see the Court invoking access to justice, administrative expertise, and constitutional logic to conclude that public officials who are empowered to decide questions of law are also necessarily empowered to answer related constitutional questions and to grant Charter remedies, unless such authority has been clearly revoked. Doré is another example.[viii] There, the Court counselled deference when reviewing decisions of administrative decision-makers that engage Charter values. Again, tracing the increasingly broad and central role of administrative decision-makers in carrying out constitutional analysis and duties seen in Baker, Conway, and Dunsmuir, the Court in Doré held that a deferential approach reflects the “distinct advantage that administrative bodies have in applying the Charter to a specific set of facts and in the context of their enabling legislature”. Clyde River and Chippewas of the Thames First Nation are two final examples.[ix] These cases confirm that the actions of administrative decision-makers can both trigger and fulfill the Crown’s duty to consult Indigenous peoples whose rights and interests are affected by public decisions. In effect, these cases confirm that administrative actors are drawn into treaty relationships, bear the weight of upholding the duties of the honour of the Crown, and share responsibility for pursuing the goal of reconciliation of Indigenous peoples and the Crown. Ultimately, this set of cases suggests that public decision-makers have a direct and close relationship to the constitution, bearing meaningful responsibility in upholding, fulfilling, and applying constitutional obligations and remedies. It is a relationship that would be difficult to reconcile with the notion that the administrative state is not itself central to the architecture of the constitution.

The third and final turn in the jurisprudence is seen in the shrinking limits on administrative powers and jurisdiction under section 96 of the Constitution Act, 1867. Section 96 protects the special status and core jurisdiction of the superior courts. In the early decades of the twentieth century, section 96 was interpreted broadly and strictly, precluding the transfer of any judicial power to administrative decision-makers or statutory courts.[x] This protectionist stance was hostile to the creation and expansion of the administrative state, severely limiting the dispute resolution and adjudicative powers that could be delegated to administrative decision-makers and the sectors in which they could be involved. On this model, the courts, and more specifically the superior courts, were at the centre of the legal system and were to be protected against the intrusion or usurping of power by the burgeoning administrative state.

In fairly short order, the interpretation and application of section 96 – and the limits it created for the creation of the administrative state – loosened.[xi] In the latter half of the twentieth century, the courts pivoted to a liberal and generous approach to section 96.[xii] This flexible approach authorized the administrative state to take up novel jurisdictions, with novelty measured against the conceptual categories of the nineteenth century, and to perform adjudicative roles that are either important to policy goals or integrated into a broader institutional setting.[xiii] With this shift, the courts have contributed to the conditions in which the administrative state can be nimble, sprawling, and directly responsive to the diverse social problems it is intended to address. Together with the other two jurisprudential turns chronicled here, this shift contributes to the conclusion that the administrative state can no longer fairly be conceived of as merely permitted. It is, rather, difficult to conceive of Canada’s constitutional architecture without it.

* * * * *

Dunsmuir is a case about the structural dimensions of the constitutional order; questions of standard of review always are.  And so its tenth anniversary is an opportunity to reflect not only on the particulars, but also on where Dunsmuir might fit within the grander constitutional vision. As I’ve argued here, Dunsmuir is part of a vision that sees the administrative state as a central part of the expansive set of institutions on which the country relies in the pursuit of a flourishing public life. Perhaps this shields us somewhat from a siege on the administrative state and perhaps by Dunsmuir’s next anniversary, we’ll know.

[i] Gillian E Metzger, “Foreword: 1930s Redux: The Administrative State Under Siege” (2017) 131:1 Harv L Rev 1.

[ii] On the protective function of the amending formula, see Sébastien Grammond, “The Protective Function of the Constitutional Amending Formula” (2017) 22:2 Rev Con Stud 171.

[iii] See e.g. Port Arthur Shipbuilding Co. v. Arthurs, [1969] SCR 85; Metropolitan Life Insurance Co v International Union of Operating Engineers, Local 796, [1970] SCR 425.

[iv] CUPE v New Brunswick Liquor Corporation, [1979] 2 SCR 227. See e.g. UES, Local 298 v Bibeault, [1988] 2 SCR 1048; Pezim v British Columbia (Superintendent of Brokers), [1994] 2 SCR 557; Canada (Director of Investigation and Research) v Southam Inc, [1997] 1 SCR 748; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982; Dr. Q, supra; Dunsmuir v New Brunswick, 2008 SCC 9.  

 [v] DJ Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 CHALP 59 at 93, cited in Dunsmuir, ibid at para. 49.

[vi] Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61.

[vii] Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, [2003] 2 SCR 504; Nova Scotia (Workers’ Compensation Board) v Laseur, 2003 SCC 54, [2003] 2 SCR 504; R v Conway, 2010 SCC 22, 1 SCR 765 [Conway].

 [viii] Doré v Barreau du Quebec, 2012 SCC 12.

[ix] Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40; Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41.

[x] See e.g. Toronto Corporation v York Corporation, [1938] AC 415.

[xi] See e.g. Labour Relations Board of Saskatchewan v John East Iron Works Limited, [1949] AC 134.

[xii] Procureur Général de Québec v Barreau de la Province de Québec, [1965] SCR 772; Tomko v Labour Relations Board (Nova Scotia), [1977] SCR 112; The Corporation of the City of Mississauga v The Regional Municipality of Peel et al, [1979] 2 SCR 244; Reference re Residential Tenancies Act 1979 (Ontario), [1981] 1 SCR 714.  Indeed, the case law shows that over the past several decades, on the occasions when administrative decision-makers are challenged on section 96 grounds, the vast majority are unsuccessful. See e.g. R v Morrow, 1999 ABCA 182; Campisi v Ontario, 2017 ONSC 2884; Northstar Lumber v USWA Local 1-424, BCCA; Council of Canadians v Canada (AG), [2006] OJ No 4751 (CA); Air Canada v Canada (Commissaire de la concurrence, [2003] 18 Admin LR (4th) 14 (QCCA); Spellman v Essex (Town), [2002] OMBD No 784; Cameron v Sparks; Teal Cedar Products Ltd v British Columbia (Minister of Forests), 2008 BCSC 239; Pye v Pye, 2006 BCSC 505; Saskatchewan (Workers’ Compensation Board) v Saskatchewan (Board of Inuqiry), [1998] SJ No 503 (Sask Ct QB). Contra: Halme’s Auto Service Ltd v British Columbia (Regional Waste Manager), Decision Nos. 1998-WAS-018(c) & 1998-WAS-031(a) (Environmental Appeal Board).

[xiii] Reference re Residential Tenancies Act 1979 (Ontario), [1981] 1 SCR 714; Reference re Amendments to the Residential Tenancies Act (NS), [1996] 1 SCR 186.