More Charter Values Nonsense

When will this end?

Doré, that bedeviling case that held that administrators must take into account “Charter values” when exercising discretion, continues to trouble lower courts. This is not only true on a theoretical level—I still have yet to hear a convincing explanation of what a Charter value actually is—but on the level of applicability. Courts are struggling with the following question: should Charter values apply in the administrative law context whenever a decision-maker interprets a statute, even if there is no ambiguity or discretion? For reasons that I will explain, this distinction between statutory interpretation and discretion is more of an illusion. In administrative law, discretion exists when statutes are ambiguous. Therefore, if one must have regard to Charter values, it should only be in the context of a pure exercise of discretion, where an administrator has first concluded that a statute is truly ambiguous and therefore an administrator has room to maneuver. Where legislation is clear, decision-makers must apply it, unless there is a direct constitutional challenge to the legislation before the decision-maker, and the decision-maker has the power to consider the challenge under the Martin line of cases. If there is any law to apply—ie if the statute is clear after a review of the canons of interpretation—then Charter values have no place in the analysis.

Let’s start with the basics. The hornbook law answer to the problem says that courts—and by logical extension, inferior tribunals—can only take into account Charter values in cases of genuine statutory ambiguity, where this is discretion at play (see Bell ExpressVu, at para 28). Where legislation is clear, administrators should apply that legislation absent a direct constitutional argument raised by an applicant where the decision-maker has power to decide constitutional questions (Singh, at paras 62-63). And yet, the Supreme Court and other courts have sometimes said otherwise, relying on the line in Doré that decision-makers must always exercise their authority in accordance with Charter values (Doré, at para 35), even in absence of ambiguity. Take R v Clarke, where the Court seemed to suggest that administrative interpretations of law are always subject to a consideration of Charter values, even in absence of ambiguity:

Only in the administrative law context is ambiguity not the divining rod that attracts Charter values. Instead, administrative law decision-makers “must act consistently with the values underlying the grant of discretion, including Charter values” (Doré, at para. 24). The issue in the administrative context therefore, is not whether the statutory language is so ambiguous as to engage Charter values, it is whether the exercise of discretion by the administrative decision-maker unreasonably limits the Charter protections in light of the legislative objective of the statutory scheme.

This approach was followed by the Court of Appeal for Ontario in Taylor-Baptiste, and most recently by the Ontario Superior Court in Ontario Nurses Association. There, the court chastised a tribunal for failing to consider Charter values, even when the Tribunal found that the statute at hand was not ambiguous and where the court did not impugn this legal finding

So we have two lines of cases. One line of cases presents the defensible, hornbook law version of the hierarchy of laws, under which laws apply to all—including administrative decision-makers. The other line of cases permits decision-makers to use Charter values before determining whether the statute is ambiguous using the ordinary tools of interpretation, potentially changing what the legislature meant to say on an ordinary meaning of the text in service to some abstract consistency with a Charter “value.”

The distinction between administrative law discretion and statutory interpretation is really just two different points on a continuum. In the context of administrative law, saying that there is “discretion” and that the statute is “ambiguous” are slightly different ways of getting at the same concept. That concept is the idea that the statute cabins the interpretive movements of the administrator. Sometimes statutes will be written in ambiguous or broad terms, permitting discretion. There, Charter values should be fair game. But otherwise, if there is any law to apply at all, Charter values have no role to play.

It should therefore be obvious that this second line of cases is grossly—and dangerously—mistaken. These cases permit Charter values to enter the fray where the statute is not ambiguous (ie) at the first-order interpretive question stage of the analysis. The basic problem can be divided into two categories: (1) the effect of an administrative decision invoking Charter values on the hierarchy of laws and (2) the pernicious consequences of permitting decision-makers to use Charter values in the context of statutory interpretation.

Consider the first problem. The hierarchy of laws might be regarded as a quaint subtlety in today’s world of law, but it remains the bedrock to the Rule of Law. The idea is simple: absent constitutional objection, legislation binds (for a discussion of the continued relevance of this simple maxim, see Justice Stratas’ opinion in Hillier). A statute that is clear creates no discretion; upon first impression, an administrator interpreting a statute must simply apply the statute after determining its meaning using all the permissible tools of textual interpretation. This is because the legislature is the authoritative writer of laws, and those operating under the statutes the legislature promulgates must apply those statutes.

When there is ambiguity, discretion enters the fray. This is because the legislature has delegated to the decision-maker but has not said with specificity what law the decision-maker must apply. Such a finding of ambiguity should only happen after a consideration of all the normal tools of interpretation. At that point, BellExpressVu is a logical way to view the problem: decision-makers and courts can take account of Charter values, so that statutes in ambiguity are interpreted in pari materia with the Charter. This itself is an important canon of interpretation. Laws should be interpreted as a consistent whole, especially where the legislature has not specified what law to apply.

How would this work in the context of a concrete case? In Singh, for example, the problem was whether there was discretion for the Refugee Appeal Division (RAD) in interpreting whether to admit new evidence under s.110(4) of the Immigration and Refugee Protection Act. Section 110(4) contains explicit conditions for the admissibility of evidence. But an intervener made the argument that “the values protected by s.7 of the Charter must enter the interpretation and application of s.110(4) of the IRPA and even lead to the admissibility of new evidence that does not meet the explicit requirements of this provision” (see para 58). The Court rejected this argument because “an administrative decision-maker’s obligation to enforce Charter values arises only if it is exercising statutory discretion” (Doré, at para 55; Singh, at para 62). Since s.110(4) was not written in an “ambiguous manner,” Charter values could not enter the fray. And this is because of the hierarchy of laws: “[i]t is up to Parliament to amend legislation that has been declared unconstitutional so as to ensure compliance with the fundamental law of the land” (Singh, at para 62).

Doré itself involved a much more discretion-laden case, where the question was whether a lawyer’s conduct violated the sparse terms of a rule of professional conduct which simply required lawyers to act with “objectivity, moderation, and dignity.” Here, there is some ambiguity. This is not a statutory recipe, as s.110(4) is. Rather, it permits some discretion in the administrative decision-maker to decide whether particular conduct violates the rule. As such, Doré is a case where there arguably is ambiguity, in contrast to Singh. That said, were I on the Supreme Court, I would have ultimately held that the statutory text could be interpreted in absence of Charter values.

Other cases will be closer to the line. But what should not be permitted is the use of Charter values in absence of ambiguity, like in the Ontario Nurses Association case. By forcing this sort of analysis, courts enable decision-makers to change the clear meaning of statutes in order to accord with abstract Charter values, even when those values are not clear and the legislation was not written in this manner. The answer in such a case is for someone to raise a direct constitutional challenge to the legislation, either before the decision-maker or before a court. Otherwise, administrative decision-makers have no power to rewrite statutes to conform with Charter values—not necessarily coextensive with the Charter’s text—because to do so permits the decision-maker to co-opt the legislative role.

This leads into the second problem. The use of Charter values in statutory interpretation could lead to mass unpredictability in the application of law. First, this is because Charter values remain undefined. No one can tell whether a Charter value is co-extensive with the text of the Charter or not. No one can tell if there are Charter values that exist in addition to Charter rights. No one can tell the level of abstraction at which Charter values must be stated. While I have previously noted that Charter values are simply being deployed as if they were co-extensive with existing Charter rights, this need not be the case, given the ambiguity in how the Supreme Court has defined Charter values.

And this is the problem. Charter values are potentially so abstract that they provide a wishing-well of material for inexpert administrative decision-makers to mould clear statutory text in favour of their preferred policy outcomes. This is positively dangerous, and the mere possibility of it should be avoided by courts. What’s more, the invocation of Charter values in this way could lead to different findings of “inconsistency” with Charter values across the mass of administrative decision-makers, raising the prospect of palm-tree justice. In other words, it might simply depend on the decision-maker you draw as to whether a statute will be interpreted in accordance with “Charter values”; what such an interpretation would mean for your case; and what “value” would even be invoked in the first place.

Much of constitutional interpretation should exist to prevent such outcomes. Doctrinal rules should be developed to limit the discretion of judges and decision-makers to depart from the hierarchy of laws; or at the very least, rules should mandate that reasoned explanations be given for such departures. This is even more true in the context of the administrative state, where the mass of decision-makers exercising authority is so divergent that it is difficult to control as a matter of law. But the Charter values framework consists of no rules to control these decision-makers. It is simply unprincipled balancing under the guise of law. It is the realm of philosophers rather than lawyers and courts.

All or Nothing At All?: Restricting the Growth of the Administrative State

Non-delegation limits do not spell the end of administrative government.

The Supreme Court of United States (SCOTUS), in the recent Gundy decision, once again rejected a challenge to a delegation of legislative power based on the so-called non-delegation doctrine. The non-delegation doctrine, in theory, holds that all legislative power rests in Congress, and so by necessary implication, Congress cannot delegate that power away to agencies without an “intelligible principle” to guide the delegation. In practice, the SCOTUS has only ever sustained a non-delegation challenge in a handful of cases in the New Deal era, instead endorsing wide delegations of authority to any number of administrative bodies for over 70 years. One might say that the Court’s reluctance to invoke the non-delegation doctrine is due to the important fuel that delegation provides to the administrative state. Indeed, one might argue that such widespread delegation is necessary for the project of “modern governance.”

But this is not necessarily true. Much of the discussion of limitations on the administrative state speaks in large generalities, and Gundy is no exception. The spectre of the destruction of the modern government that Americans (and Canadians) have come to know is always invoked by those who seek to preserve its power. But, if the non-delegation doctrine is constitutionally justifiable, its invocation in any of its instantiations will not end up destroying modern government. This is because non-delegation limits do not speak in absolute prohibitions, but rather limits in degree and emphasis; shifting the onus back to Congress to legislate within the confines of the Constitution. Canadians should take note and remain wary of arguments advanced by those who reject constitutional limits on administrative power based on functional scares.

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Gundy involved a delegation of power from Congress to the Attorney General, under the Sex Offender Registration and Notification Act (SORNA). Under SORNA, it is up to the Attorney General to decide whether the statute’s requirements for registration of sex offenders convicted before the enactment of the statute apply.

Nonetheless, based on existing doctrine, Kagan J for the plurality said that the delegation in SORNA “easily passed constitutional muster.” This is because, to Kagan J, the SCOTUS in a previous case had already cabined the Attorney General’s discretion in this regard by requiring that SORNA apply to all pre-Act offenders “as soon as feasible.” Taken in light of the context, text, and purpose of the statute, the Court found that the delegating language was sufficiently cabined in order to provide an intelligible principle, because the Attorney General’s discretion is limited to deciding when it is feasible to apply the statute. The Court, then, interpreted the statute to avoid the non-delegation problem, as it had done years previously in the Benzene Case.

This conclusion appeared driven not only by the law, but by the consequences of permitting a non-delegation challenge to succeed. Kagan J frighteningly noted that “…if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.” Alito J concurred in the result, but noted that should a majority of the Court wish to revisit the non-delegation doctrine, he would.

Justice Gorsuch penned an important dissent. In it, he criticized the plurality’s apparent waving-away of the delegation problem. In the litigation, the Department of Justice did not concede that the Attorney General was required to apply the statute to pre-Act offenders “as soon as feasible.” More to the point, the Attorney General has wide discretion to select the offenders, if any, that should be subject to the statute. For Gorsuch J, “[t]hese unbounded policy choices have profound consequences for the people they affect,” including criminal defendants. In light of Gorsuch J’s problem with the SORNA delegation, he proposed a new test. That test would permit Congress to delegate the power to “fill up the details” of a statute—so delegation would not be prohibited outright. And, the delegation of power may make the “application of that rule depend on executive fact-finding.” But for Gorsuch J, the intelligible principle doctrine “has no basis in the original meaning of the Constitution, [or] in history” and should be replaced by a basic requirement that Congress make the necessary policy judgments.

In response to the problem that some have raised that Gorsuch J’s test would spell doom for the administrative state, he responded as such:

The separation of powers does not prohibit any particular policy outcome, let alone dictate any conclusion about the proper size and scope of government. Instead, it is a procedural guarantee that requires Congress to assemble a social consensus before choosing our nation’s course on policy questions….Congress is hardly bereft of options to accomplish all it might wish to achieve.

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I think Gundy contains within it a number of important implications for the delegation of legislative power that apply in both Canada and the United States. The first question is whether it is really true, as Kagan J notes, that non-delegation would render most of government unconstitutional; the second is the sort of limits that one could envision applying to delegations of power.

The Kagan J criticism is a classic functionalist proposition. So the argument goes, if the Court enforces a non-delegation norm of any sort, it would interfere with the practical ability of agencies to implement their enabling statutes, hobbling modern government. And to some observers, it wouldn’t take a full-fledged non-delegation doctrine: even some limitations on administrative government could have “pernicious consequences.” But this strikes me as a vast overstatement, and a self-defeating one at that. First, if Kagan J is right that most of government constitutes a delegation problem as the Constitution is interpreted, what does that say about modern government? It says that government as constituted is a sprawling beast that has far outpaced the Constitution. Some might respond: who cares? But for anyone who cares about the Rule of Law, and government by law, the Constitution reigns supreme over the fiat of administrators. And if one is a legal formalist—as I am—then the arrangement of an extra- constitutional government is itself a problem for both intrinsic and instrumental reasons.

But I do not think what Kagan J says is true, on the facts of Gundy or generally. First, Gundy involved a very particular type of delegation: the power to essentially decide how a statute applies, if at all. Some might say that these sorts of delegations exist all over the map, and they may be right. But one can draw a meaningful distinction between delegations that are meant to “fill in the details” of a statute, even in a legislative sense, and delegations designed to give power to an administrator to decide how, when, and to whom a statute applies, as in SORNA. Gymnastics around “feasibility” aside, SORNA delegates wide power for the Attorney General to decide the scope of application of a statute. This allows him to make law outside of the requirements of bicameralism and presentment. And for instrumentalist reasons, this is a problem: the Rule of Law requires predictability, and why should those deserving the presumption of innocence be subject to the whims of a chief prosecutor as to whether their conduct violates the law?

Now consider the consequences if a non-delegation limit is imposed on Congress. This would not render most of government unconstitutional, nor would it have “pernicious consequences.” Such arguments mistake the mere existence of a limitation for its extent. No one—not even Gorsuch J—is suggesting that delegation itself is unconstitutional. Such a finding would, indeed, render unconstitutional administrative government. But limiting delegation to simply require Congress to speak in more detail would only minimally increase the transaction costs of legislating while paying much more ex post in terms of predictability and consistency with the Constitution. It is unclear to me why the proponents of the administrative state fight even this requirement.

And this flows into the second question. Assuming the non-delegation doctrine is constitutionally justifiable, there are any number of limits that could be imposed on delegations, each of which would not hobble the ability of government to delegate. Courts could require Congress to speak using a clear-statement rule when it chooses to delegate legislative power. This would be on the theory that the delegation of power has the risk to be extra-constitutional, and should be treated with caution from a Rule of Law perspective. The SCOTUS already accepted this sort of requirement in the Benzene Case, when it interpreted the statute at issue to avoid the delegation problem in absence of any clear statement in the legislation. While clear statement rules of this sort could be attacked from the perspective that they allow courts to put their fingers on the scale in favour of certain interpretive outcomes, one might respond that the preferred outcome in this case is one protected by the Constitution in the form of a limit or restriction on delegation. It is apparent that requiring Congress to use a clear statement would likely do nothing to stop modern government.

Courts could also simply enforce the intelligible principle doctrine on its own terms. That is, courts should simply ask whether there is a “principle” that is “intelligible.” Intelligibility would impose some requirement on courts to actually interrogate the policy aims of a delegation to determine its internal consistency, and perhaps question whether it actually provides guidance to executive officials. A principle that is unintelligible will not provide guidance. One could meaningfully question whether courts have actually applied the existing doctrinal instantiation of the non-delegation doctrine on its own terms.

Finally, non-delegation limits might be imposed by the elected branches: this was the approach that was seemingly advocated by then Professor Antonin Scalia in a paper he wrote after the Benzene Case: (the questions raised by delegation “…are much more appropriate for a representative assembly than for a hermetically sealed committee of nine lawyers”). Congress could simply start to speak clearly. The incentive for Congress to do this might be political. As I have noted elsewhere, the delegation of power can be wielded in either direction. Gundy provides a great example. The delegation of power to the Attorney General to decide when, how, and to whom a law applies is a great deal of power. Right-wing legislators might predict that, when they are not in power, such a power might be used against political causes they support. In the US, Democrats are already seeing how powers can be abused by the Attorney General. Of course, the power of the executive can filter through executive agencies, as well. If Congress itself recognizes the ability for delegated power to be used for ends with which it may not be sympathetic, it may have an incentive to limit and control delegation within constitutional limits.

None of these limitations spell the end of administrative governance. Far from it. I fear that the death knell of administrative government is a rhetorical tool used by administrative law functionalists who wish to preserve the power of the administrative state. But as Gundy shows, the powers conferred on executives by Congress can be vast—and the delegation of vast power can be abused, contrary to constitutional limits. All actors in the system have the ability and the responsibility to prevent that abuse, as a corollary to the Rule of Law.

The upshot of all of this is that the administrative state is likely here to stay, but it does not have to remain in its current form to be successful or useful. It can move towards consistency with the Constitution at a small marginal cost to its supposed efficiency and effectiveness.

Shouting into the Constitutional Void

Section 28 of the Canadian Charter and Québec’s Bill 21

By Kerri A. Froc*

“And if thou gaze long into an abyss, the abyss will also gaze into thee.” (Friedrich Nietzsche, Beyond Good and Evil. Aphorism 146)

For several years now, I have been arguing that section 28 of the Canadian Charter of Rights and Freedoms is more than a symbolic flourish, more than just emphasis for section 15’s sex equality guarantee, and more than an interpretive provision.  In fact, it has its own independent work to do.  This includes blocking attempts by government to use section 33 to preserve gender inequality. 

I did not make up this interpretation of section 28.  Rather, it is part of section 28’s text and history and is uncontroversial amongst those who have studied the matter.  That is why I am not only perplexed, but annoyed, at section 28 seemingly being ignored in the debate over the constitutionality of Bill 21’s requirement that certain government employees (including school teachers, police, Crown prosecutors and judges) do not wear religious symbols at work (section 6).  It is in fact reminiscent of the way that women’s rights were ignored in 1981 constitutional negotiations, which galvanized women to insist upon section 28 in the first place.  Below, I discuss section 28’s interpretation vis a vis section 33, and then how it would be pled in a constitutional challenge to Bill 21.


Section 28 beginning phrase reads: “Notwithstanding anything in this Charter.”  This meant its guarantee of equal rights is not to be derogated by other provisions of the Charter. Provincial and federal bureaucrats attempted after the November 1981 “Kitchen Accord” to subject section 28 to section 33.  They drafted amendments to section 28 and section 33, notionally to “implement” the terms of the Accord (though first ministers never discussed section 28).  The opening words of Section 28 would have been revised to read, “Notwithstanding anything in this Charter except section 33,” and section 33 would have been amended to end with, “or section 28 of this Charter in its application to discrimination based on sex referred to in section 15.”  These proposed additions were scrubbed from the Charter’s final text through the hard work of feminist advocates, women MPs from all parties, and, to put it bluntly, a groundswell of pissed off women from across the country.  This history, however, merely confirms that “notwithstanding anything” means what it plainly says.

In their 1984 book, Canada Notwithstanding, Roy Romanow, John Whyte and Howard Leeson (all members of the November 1981 Saskatchewan constitutional delegation) confirmed that the removal of the application of section 33 from section 28 “in effect…meant that sexual equality in section 15 could not be overridden.”  Justice Carole Julien, in a 2004 Charter case involving pay equity, Syndicat de la fonction publique c. Procureur général du Québec,had occasion to discuss the legal effect of section 28.  She noted that the predominant scholarly opinion was that the override did not apply to section 28 “due to the historical context of its adoption and its objectives” (my translation).  It is unfortunate that this judgment was merely a passing footnote in the recent Supreme Court decision, Centrale des syndicats du Québec v. Quebec (Attorney General).


How would it potentially play out if litigants argued section 28 in relation to the Bill 21 constitutional challenge?  There are potentially two Charter claims that could be advanced by women who are adversely affected by section 6.  The first is that it discriminates against them on the basis of sex, contrary to section 15(1).  The second is that section 6 violates their freedom of religion disproportionately, so that women are unable to exercise this freedom on an equal basis with men.  Sex discrimination is contrary to Charter section 15(1) and 28; a gender-disproportionate violation of religious freedom would be contrary to sections 2(a) and 28.  Section 28 is involved in both claims as section 6 results in unequal rights afforded to men and women.   A section 28 violation cannot be preserved using section 33.

One could also use an alternative legal argument in relation to section 15.  Quebec could argue that a general sex equality violation, in and of itself, does not implicate section 28 (saying that section 28 does not really “add” anything to the section 15 determination).  However, if additional state action is taken to attempt to preserve a section 15 sex equality violation by invoking section 33, section 28 operates to block the effect of that invocation.  Taking action to preserve women’s section 15 rights violation results in unequal rights contrary to section 28.  This is quite applicable to Bill 21, in that section 30 contains a pre-emptive declaration that the Act operates notwithstanding sections 2 and 7-15 of the Charter. 

Regardless of which argument(s) you accept, the validity of section 6 cannot be maintained by the section 33 override because doing would mean section 28 is made subject to the legal effect of section 33.


A question I am sometimes asked is: where is the gender inequality in Bill 21?  Many media sources have indicates that the group most affected are Muslim women wearing the head scarf (hijab), but do not indicate the sources they rely upon for that fact.  I’ve done some of my own data crunching to provide initial support for that point. 

Of the groups mentioned, Muslims are in vastly greater numbers in Québec than both Jews and Sikhs (men from these two other groups have been mentioned as being the others affected by the law).  For the last year in which we have data (2011), there were nearly two and a half times as many Muslims in Quebec as Jews and Sikhs together. Approximately 53%, of Muslim women in Canada wear the hijab.  Quebec’s public service is still massively dominated by white francophones; however, nearly half of its workers are female (amongst school teachers, one of the largest groups affected by Bill 21, that percentage is much higher). It stands to reason given these statistics that most of those affected are Muslim women.  While some judges may not consider these statistics more than a “web of instinct”, this data could be supplemented by access to information requests and litigation disclosure to obtain numbers of affected employees.  Further, one could argue that the state demanding women remove clothing has a more threatening import and communicates a sex-specific devaluation, given the way women’ attire has been regulated and judged by law throughout history.  Thus one could argue that the qualitative impact constitutes a sex-based distinction in itself. 

Even apart from disparate impact, if the purpose of a law is discriminatory or is to privilege certain religious beliefs, then that would be a violation of section 15(1) and section 2(a) respectively.  A good case could be made that Bill 21 targets Muslim women based, for instance, on the Quebec Minister for the Status of Women’s comments.  Concerning the privileging of religious beliefs, it is worth noting that symbols of Quebec’s “religious cultural heritage” (read: Christianity/Catholicism) are specifically exempted from all of Bill 21’s provisions by section 16. 

Of course, there are potentially other elements in relation to a Charter analysis that would have to be successfully argued, such as showing “disadvantage” for section 15(1) and more than atrivial infringement of religious freedom, for section 2(a).  However, I do not regard those as posing much of an impediment. 


Why should we care if civil liberties associations, lawyers, and courts ignore section 28 in the upcoming constitutional battle over Bill 21?  To paraphrase Nietzsche, if we gaze into the Constitution and see only an abyss when it comes to section 28, we should not be surprised if the abyss gazes back in the form of more constitutional provisions courts feel secure in being able to ignore into desuetude.  Simply put, entrenched constitutional text should and does count more than implied bills of rights, unwritten principles, constitutional architecture and the like.  If not section 28 in this case, then when?


* Kerri A. Froc is an Assistant Professor in the Faculty of Law, University of New Brunswick. Follow her on Twitter!

Do Not Pass Section 1: Go Directly to Invalidity

Some infringements on rights are never acceptable in a free and democratic society, including requirements to state facts one doesn’t believe in

In my last post, I argued that Ontario’s recently-enacted and not-yet-in-force Federal Carbon Tax Transparency Act, 2019, which requires gas stations to display stickers purporting to inform their clients of the cost of the federal carbon tax, is likely unconstitutional, as well as morally wrong. The requirement obviously compels the owners of gas stations to engage in speech from which they would otherwise have abstained, and so limits their right to freedom of expression protected by section 2(b) of the Canadian Charter of Rights and Freedoms. In my last post, I followed the orthodox approach to ascertaining whether this limitation was justified and therefore constitutional, which consists in applying a proportionality analysis along the lines first set out in R v Oakes, [1986] 1 SCR 103. But, as I indicated there, I actually think that this approach is not right for this case. Here, I explain why.


Pursuant to section 1 of the Charter, the rights the Charter protects can be “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Proportionality analysis is not an end in itself or an explicit requirement of the constitutional text. It is only a means to the end of ascertaining whether a given limitation on rights is “demonstrably justified”. (Indeed, one may well argue that the proportionality analysis is a bad means to that end; one would not be wrong; but it is much easier to poke holes in proportionality analysis than to come up with a convincing all-purpose alternative.) Proportionality analysis is inherently case-by-case. It focuses a court’s attention on the reasons for and the effects of particular statutory provisions or administrative decisions, applied to the particular circumstances detailed by the persons whose rights are allegedly infringed.

But it should be possible to say that certain limitations of rights are such as to be categorically impermissible in a free and democratic society, regardless of particular circumstances. With limitations of this sort, proportionality analysis is unnecessary; indeed, it only serves to obfuscate their inherent unacceptability. I can see no bar in the text of section 1 of the Charter to taking this position. In his article on the history of section 1, Adam Dodek notes that a number of groups that took part in the proceedings of the Special Joint Committee of the Senate and the House of Commons on the Constitution pushed for some rights (equality rights were a popular candidate, but not the only one) to be excluded from the scope of the application of section 1 altogether. Obviously, this was not done, but I don’t think that this rejection entails that of a more fine-grained approach. In other words, while the history may suggest that no provision of the Charter is absolutely immune from limitation, at least as a textual matter, it does not follow that any and all limitations conceivable are, potentially, justifiable in a free and democratic society.

Indeed, I think that it does not follow that a categorical bar on justifying limitations of certain rights, introduced in the process of constitutional construction, is foreclosed by section 1, even in light of the history described by Dean Dodek. The idea that section 1 had to apply to every right guaranteed by the Charter was put to the Supreme Court in Attorney General) v Quebec Association of Protestant School Boards, [1984] 2 SCR 66, but the Court accepted it “for the sake of discussion only and without deciding the point”. In any case, this is an issue for another day.

And there are precedents, in early Charter cases, for applying the approach that I am considering. Protestant School Boards is one. There, the Supreme Court observed that limits on rights, within the meaning of section 1 of the Charter,

cannot be exceptions to the rights and freedoms guaranteed by the Charter nor amount to amendments of the Charter. An Act of Parliament or of a legislature which, for example, purported to impose the beliefs of a State religion would be in direct conflict with s. 2(a) of the Charter, which guarantees freedom of conscience and religion, and would have to be ruled of no force or effect without the necessity of even considering whether such legislation could be legitimized by s. 1. (88)

But the best known precedent is R v Big M Drug Mart Ltd, [1985] 1 SCR 295. There, Justice Dickson (as he then was), wrote that

it should be noted that not every government interest or policy objective is entitled to s. 1 consideration. Principles will have to be developed for recognizing which government objectives are of sufficient importance to warrant overriding a constitutionally protected right or freedom. Once a sufficiently significant government interest is recognized then it must be decided if the means chosen to achieve this interest are reasonable―a form of proportionality test. (352)

Justice Dickson went on to reject the government’s attempt to justify the Lord’s Day Act, which imposed the Christian holy day as a mandatory day of rest for most Canadian workers. He found that

[t]he characterization of the purpose of the Act as one which compels religious observance renders it unnecessary to decide the question of whether s. 1 could validate such legislation whose purpose was otherwise or whether the evidence would be sufficient to discharge the onus upon the appellant to demonstrate the justification advanced. (353)

However, the proportionality analysis foreshadowed in Big M and sketched out by now-Chief Justice Dickson in Oakes quickly took over Charter cases, and the possibility that some limitations of Charter rights could never be justified, regardless of the circumstances and the evidence the government brings in their support has been a road not taken by Canadian constitutional law in the last 35 years.


I think that this unfortunate. The Oakes-based proportionality analysis, at least as it has developed, focuses on one part of section 1: the “demonstrably justified” requirement. But it has little to say about other parts of section 1: the “democratic society” qualifier, and the notion of “limits” on, as opposed to exceptions to or denials of rights. Perhaps it didn’t have to be this way. In Oakes itself, Chief Justice Dickson wrote referred to this phrase as “the final standard of justification for limits on rights and freedoms” (136) and offered an explanation of what they referred to:

the values and principles essential to a free and democratic society …  I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. (136)

One might quarrel with this list, of course ― I am not a fan “social justice” as an inherent component of democracy, for instance ― or, at least, expect it to be refined as cases develop. More fundamentally, one might quarrel with the way Chief Justice Dickson proffers this catalogue of values, as the product of his own meditation on freedom and democracy. An originalist, for example, might want to ask what the words “free and democratic society” meant to the public at the time of the Charter‘s enactment, and not simply how a judge ― even a thoughtful and distinguished judge writing mere years after the Charter came into force ― understood them. But, however that may be, the idea that limitations of rights must be justifiable not just in the abstract, but in a particular kind of society, namely a free and democratic one, was there in Oakes ― and has (like certain other aspects of that decision) fallen by the wayside since.

To repeat, I would like to recover this idea and, more specifically, to argue that there are some limits on rights that are never acceptable in free and democratic societies. Protestant School Boards offers and Big M applies one example: it is not acceptable, in free and democratic society, to impose a state religion. One might imagine a specious proportionality-based defence of the Lord’s Day Act: it serves the objective of social cohesion and public affirmation of a national religion, in a way that could not be achieved by less restrictive means, and after all it is but a small imposition ― dissentients are not forcibly dragged to divine service ― in comparison with purported benefits. A sufficiently deferential court might even, conceivably, swallow this. But we don’t need ask whether it would. The alleged benefits of the Lord’s Day Act are not something a government is entitled to pursue in a free and democratic society.

I tentatively think that a similar argument can be made with respect to many speech compulsions. In particular, I think that a free and democratic society is necessarily one in which there is no official ideology prescribed by the state that citizens are required to parrot. I suspect that the idea would have been familiar at the time of the Charter‘s framing, during the Cold War. Thus the rejection of official ideologies may well be part of the original meaning of the phrase “free and democratic society”, although I don’t know enough to be confident. But even if it cannot be read into section 1 as a matter of interpretation, I think that it has to be as a matter of construction ― the process of elaboration of legal doctrine implementing constitutional text. Just like a free and democratic society has no state religion, as the Supreme Court confirmed in Big M, it must have no set of secular beliefs mandatory for citizens. Perhaps having an official ideology would be convenient or useful; perhaps it would foster equality, or social cohesion, or prosperity. This doesn’t matter. Free and democratic societies don’t do official ideology ― just like they don’t do official history, official economic theory or, I would add, official science. (Official, of course, in the sense of mandatory for citizens; the state itself can, and indeed must to some extent, commit to specific views on many of these issues.)

Now, some cases of compelled speech cannot rightly be described as or assimilated to attempts to impose a state ideology. This is, in particular, the case of mandatory disclosure of information that is in the possession of the person subject to the compulsion ― whether in the shape of nutritional information that is required to be printed on food packing or that of data about trust accounts or self-study hours that lawyers are made to provide on their annual reports. Mandatory requirements to use a particular language for certain communications are in this category too. For these, and perhaps other, cases of compelled speech, the proportionality framework, with its case-by-case scrutiny of the tailoring of means to ends and weighing of costs and benefits is appropriate (assuming, that is, that it is appropriate for anything).

At the other extreme are cases like the Law Society of Ontario’s requirement that lawyers “promote equality, diversity, or inclusion”. This is a clear case where the government ― through the entity to which it has delegate coercive regulatory powers over the legal profession ― attempts to force people to embrace a particular set of values or beliefs and express their having done so. One can argue ― along with Dwight Newman ― that this is also an infringement of the freedom of thought (protected by the same provision of the Charter as freedom of expression, section 2(b)). One can also argue, as I have done here, that this is an infringement of the freedom of conscience. But of course this is also (and neither Professor Newman nor I deny this) a limitation of the freedom of expression ― and, I think, a limitation of a sort that cannot be justified in a free and democratic society, no matter how well-intentioned (which it is) or effective (which it isn’t).

The ant-carbon-tax stickers are something of an intermediate case. They ostensibly communicate information, and at least make no pretense about this information coming from the person coerced into transmitting it rather than the government. To that extent, they are less offensive, and less like an official ideology, than the Law Society of Ontario’s demands. However, it is arguable that stickers present incomplete information, and do so tendentiously. Not everyone, to say the least, would regard the message conveyed by the stickers as something that they could, in good faith, transmit. This is more than just a matter of preference. Perhaps the sellers of junk food would rather not tell people the number of calories their product contains; but their integrity is not threatened when they are made to do so. By contrast, when a person is made to communicate something that he or she does not, in good faith, believe, the stakes are higher, and the analogy to official ideology much closer. At the risk of being a bit dramatic, making Winston Smith love Big Brother was only the end point. The start was making him say that 2+2=5.

As Justice Beetz insisted in his dissenting opinion in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038, to accept that it is permissible to order a person to tell the truth “beg[s] the essential question: what is the truth?” (1060) Some authority may think that it has established the facts, but one “cannot be forced to acknowledge and state them as the truth apart from his belief in their veracity. If he states these facts … as ordered, but does not believe them to be true, he does not tell the truth, he tells a lie.” (1061) Justice Beetz went on to add that

to order the affirmation of facts, apart from belief in their veracity by the person who is ordered to affirm them, constitutes a … serious violation of the freedoms of opinion and expression … [S]uch a violation is totalitarian in nature and can never be justified under s. 1 of the Charter. It does not differ, essentially, from the command given to Galileo by the Inquisition to abjure the cosmology of Copernicus. (1061)

Of course, Justice Beetz’s opinion was a dissenting one. All I can say is that I see nothing in Chief Justice Dickson’s majority opinion that addresses his colleague’s cogent arguments. Given the extent to which the Supreme Court has been willing to revisit its prior cases ― and to do so with much less justification than there would be to revisit Slaight on this point ― I feel no particular compunction in urging that Justice Beetz’s opinion should be followed, and that compelled statements of facts that the person required to make them believes, in good faith, to false or simply misleading should be treated like compelled statements of opinion and compelled professions of value. They are categorically unjustifiable in a free and democratic society.


The Charter‘s reference to “a free and democratic society” is not a mere description. As the Supreme Court held early on, it is the “final standard” against which purported limitations on the rights the Charter secures must be measured. It is true that rights must sometimes be limited, even in a free and democratic society. But the Charter exists because of a recognition by its framers ― and by their constituents ― that legislative majorities are apt to disregard rights, and to seek to limit them for the sake of convenience, or out of ignorance or even spite or hatred. Some limitations may appear defensible in principle but, on closer examination, are not supported by evidence, go too far, or do more harm than good. But others are incompatible with free and democratic societies as a matter of principle. It is unnecessary to scrutinize their tailoring to their purpose, or weigh up their effects. The Charter bars them categorically.

The imposition of official beliefs, or the requirement to express beliefs, is the sort of thing that simply must not happen in a free and democratic society; it is incompatible with freedom and democracy. This includes religious beliefs, as the Supreme Court has held. But political beliefs, or even beliefs about truth, should not be treated any differently. Canadian governments have no right to impose them, and the courts should peremptorily reject them.

Sticking It to the Feds

Why Ontario’s anti-carbon-tax stickers are likely unconstitutional, and certainly immoral

It is time, finally, for me to get back to the carbon-tax stickers. Last month, I was distracted from writing this post by my horror at the abusive, indecent way Ontario’s Federal Carbon Tax Transparency Act, 2019, was set to become law. It has now been enacted (though not yet come into force) and, though my disgust at the process of its enactment is unabated, I turn to its substance. The Act is, I believe, unconstitutional. It is also, quite apart from constitutional issues, morally objectionable in its own right, and doubly so coming from a government that ― cynically ― positioned itself as a champion of free speech.

The Act is simple enough. Its only substantive provision requires every “person who is licensed … to operate a retail outlet at which gasoline is sold at a gasoline pump and put into the fuel tanks of motor vehicles” to

obtain from the Minister [of Energy, Northern Development and Mines] copies of the prescribed notice with respect to the price of gasoline sold in Ontario; and … ensure the notice … is affixed to each gasoline pump at the retail outlet in such manner as may be prescribed.

There are also provisions for inspections and fines. The “prescribed notice” is, of course, the notorious sticker.


This is a requirement that all those (individuals or corporations) engaged in a particular trade communicate a message prescribed by the government. In simpler terms, an instance of compelled speech. Under a sane freedom of expression jurisprudence, this must, of course, be regarded as a limitation on the freedom of expression. Whether Ontario currently enjoys the blessings of a sane freedom of expression jurisprudence is open to some doubt, given the holding of the province’s Court of Appeal in McAteer v Canada (Attorney General), 2014 ONCA 578 that the requirement that applicants for Canadian citizenship swear a prescribed oath is not a limitation of the freedom of expression protected by section 2(b) of the Canadian Charter of Rights and Freedoms. However, I think it is best to assume that, on this point at least, McAteer was an aberrant decision that can be disregarded. The carbon tax sticker requirement ought to be held to be a limitation on the section 2(b) right.

There are two paths that one can take from here. The orthodox one, which I shall take in this post, consists in asking whether this limitation is one that can be demonstrably justified in a free and democratic society, and so authorized by section 1 of the Charter. To be justified in a free and democratic society, a limitation on a right protected by the Charter must meet the following criteria, as recently summarized by the Court of Appeal in Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393:

the objective of the impugned measure must be of sufficient importance to warrant overriding a constitutionally protected right or freedom;

… the means chosen must be reasonable and demonstrably justified – this is a “form of proportionality test” which will vary in the circumstances, but requires a balancing of the interests of society with the interests of individuals and groups and has three components:

(i) the measure must be rationally connected to the objective – i.e., carefully designed to achieve the objective and not arbitrary, unfair or based on irrational considerations;

(ii) the means chosen should impair the Charter right or freedom as little as possible; and

(iii) there must be proportionality between the salutary and deleterious effects of the measure. [98]

In my next post, I will suggest that this approach is not appropriate for cases that involve certain types of compelled speech, including this one. More specifically, I will argue that the proportionality analysis can be bypassed in the case of many speech compulsions, which are never appropriate in a free and democratic society. That said, an attempt to follow the ordinary proportionality framework here does the Ontario government few favours.


It is difficult to see what the important objective that warrants the imposition of the stickers is. If one is in charitable mood, one might say that the legislature is really trying to provide transparency about the effects of a public policy that affects Ontario’s consumers. (Less charitably, and perhaps more plausibly, one might say that the the objective here is to score some political points off of the feds.) I don’t think that this an inherently bad thing for a government to do, as Patricia Hughes comes close to saying in a post at Slaw. (Dr. Hughes faults the stickers for “not advanc[ing] an alternative approach to fighting climate change” and, instead, “undermin[ing] an approach that has been widely accepted as a positive response to … greenhouse emissions”. I’m not sure why this would be constitutionally problematic. A bad choice of priorities, perhaps, but this is a debate that courts should probably stay out of.) But even if transparency of this sort is desirable, is it, as the Court of Appeal put it, “of sufficient importance to warrant overriding a constitutionally protected right or freedom”? In theory at least, it should be possible to conceive of objectives that, while desirable, are not worth abridging rights for, and I would argue that this is one of them. Perfectly transparent public policy might be a supererogatory good in a free and democratic society, but not one to be pursued at the expense of such a society’s fundamental commitments, which is what constitutional rights are supposed to be. To be sure, the courts generally tend to be very deferential to legislatures at this stage, but even this deference might, just, have its limits ― and if so, this would be pretty good case to discover them.

Now, assuming that the objective of fostering transparency about the effects of public policy does warrant limitation of rights ― a big assumption, as just explained ― I think it has to follow that the sticker requirement is rationally connected to the objective. The issue at this stage isn’t whether it is a particularly good way of achieving the legislature’s purpose, but whether it’s not an arbitrary one. This is a low bar to clear. Dr. Hughes writes that “[t]here is no rational connection between the message of the stickers … and opposition to the carbon tax because they fail to provide all the information”. Perhaps so, but I don’t think that failure to provide complete information is really a rationality issue, or that courts should be in the business of evaluating the content of a government message to assess its completeness.

What the courts can and should do, however, is to find that conscription of gas stations to communicate the government’s message about the effects of the carbon tax is not the least restrictive means of accomplishing whatever transparency-promoting aims the government might have. Being able to help itself to both the bully pulpit and the public purse to further its public-relations strategies, the government can do without conscripting private parties to carry its water. I am no fan of the Supreme Court’s decision in Canada (Attorney General) v JTI-Macdonald Corp, 2007 SCC 30, [2007] 2 SCR 610, which upheld, among other things, a requirement that tobacco manufacturers display government-mandated health warnings on 50% of their packaging, but it is surely arguable that the warnings regarding the health consequences of a particular product really do need to be displayed on that product, and not elsewhere, to be optimally effective. An argument along these lines is not so easy to make in support of Ontario’s carbon tax stickers. That said, a lot will depend on the level of deference the courts accord the legislature. One suspects, however that a legislature at odds with a carbon tax will be given less deference than one trying to discourage smoking. (This is, I am afraid, not to the Canadian courts’ credit.)

Finally, I think the courts can and should find that the benefits of the stickers, if there are any, are not worth the imposition on those who have no desire to display them. But here too, much depends on the level of scrutiny courts are willing to apply. In JTI-Macdonald, the sum total of Chief Justice McLachlin’s reasoning on this point was “proportionality of effects is established. The benefits flowing from the larger warnings are clear. The detriments to the manufacturers’ expressive interest in creative packaging are small.” [139] If a student could not come up with something more than this conclusory assertion, I would flunk her. But, quod licit Jovi, etc. In any case, here again, the courts’ biases are likely to be less favourable to the legislature, and chances are that the sticker mandate will, in fact be scrutinized as it ought to be.


Whatever doubt there might be about the legal side of the issue (and I don’t think there should be too much), the immorality of the carbon tax sticker requirement is clear. As noted above, the Ontario government has virtually unlimited resources to make its views of the federal carbon tax known. These views, at this point, aren’t exactly a secret, anyhow. But if the government wants to instruct its trained seals MPPs to end their speeches with anti-carbon-tax perorations in the style of Cato the Elder, it can. If it wants to put up giant anti-carbon-tax posters on every town square in the province, it can. If it wants to buy advertising slots from willing newspapers or radio and television stations, it can. Instead of doing the work of communicating its position itself ― and paying to do so, if necessary ―, the government conscripts unwilling private citizens and companies to serve as its bullhorn.

This is beyond its rightful powers, not only on a libertarian or classical liberal conception of the government’s proper powers but also, I think, on either a “progressive” or a conservative one. It is, indeed, little more than than naked abuse of power. The Ontario government makes people do things just because it thinks it can. I have argued here against the view the governments can in effect conscript private individuals to advance their constitutional agendas, or that the Law Society of Ontario can force lawyers to act as advocates on its behalf by “promot[ing] equality, diversity, and inclusion”. The same principles apply to a government’s attempt to communicate its views of public policy. This is something that the government can and must do on its own. If it can force citizens to do that, it can force them to do anything.

Notice, by the way, that this is not just an objection to government mandates to communicate misleading or incomplete information, or messages that undermine policy designed to deal with climate change or whatever other problem. The objection to government conscription of individuals to speak on its behalf is neutral and general. It applies to “progressive” causes, as well as to populist ones. Some means are wrong regardless of the rightness of the cause which they are supposed to pursue. This is one of them.


Ontario’s anti-carbon-tax-sticker legislation, enacted in a perversion of parliamentary democracy, is likely unconstitutional, and wrong in principle. The day when it is repealed on struck down by the courts cannot come too soon. It might seem like a small thing― it’s just stickers at gas stations, after all, and unlike with the various recent “statements of principles” and “attestations” nobody is required to believe, or even pretend to believe, what the government wants them to say. Nevertheless the impulse behind this legislation is not that much less authoritarian than that behind these other denials of the freedom of speech.

This is a reminder that liberty is under threat both from self-styled progressives and from self-anointed populists. Each camp will happily point to the other’s excesses and may even proclaim itself a defender of rights, freedoms, and the Charter; both are hypocrites. It is essential that firm, neutral principles of freedom be upheld against threats on either side.

It’s Happening Here Too

Canadians need to heed David Bernstein’s warning about administrative decision-makers’ disregard of constitutional rights

A very interesting article by David E. Bernstein, “Anti-Discrimination Laws and the Administrative State: A Skeptic’s Look at Administrative Constitutionalism” has recently been published in the Notre Dame Law Review. Professor Bernstein cautions against allowing administrative decision-makers to pursue egalitarian goals unchecked by judicial supervision, because this pursuit often tramples over constitutional guarantees, especially freedom of speech. It is a compelling warning, and deserves the interest of Canadian readers, because the problems Professor Bernstein identifies afflict Canadian law. Indeed, much of his argument applies to the administrative enforcement of other statutes, not only anti-discrimination ones.


Professor Bernstein takes aim at the view, which he attributes to a significant number of American scholars, that administrative decision-makers both do and ought to play a very significant role in defining the scope and content of constitutional protections for certain fundamental rights. This view, “administrative constitutionalism”, rests on a number of arguments. Its supporters think that administrative decision-making “is more transparent than” the judicial sort, that administrators “are more accountable to public opinion than are courts”, and that they bring their expertise to bear on the application of constitutional standards to particular regulatory schemes. (1384) Professor Bernstein provides a number of examples of administrative decision-makers “aggressively enforcing antidiscrimination laws at the expense of constitutional protections for freedom of expression and guarantees of due process of law”, (1386) sometimes in defiance of relevant Supreme Court precedent and political direction. These will be of considerable interest to readers who follow American legal and political developments.

But what is more interesting from a parochial Canadian perspective is Professor Bernstein’s analysis of the situation ― his explanation for why administrative decision-makers tend to apply the law in a way furthers their statutory mission at the expense of the constitutional rights of those subject to their decisions. The explanation is partly institutional, and partly ideological.

The first institutional fact that contributes to administrative disregard of constitutional rights, according to Professor Bernstein, is that administrative decision-makers “maximize their power and budget”, and secure “political support, by expanding the scope of the laws they enforce”. (1401) Constitutional limits to this expansion are brushed aside. Second, a purposivist approach to statutory interpretation “practically invites agencies to find and even create ambiguities so that they can interpret statutes broadly”. (1402) In doing so, administrative decision-makers see themselves as accomplishing legislative goals, and ignore the compromises that may have been involved in the enactment of their enabling legislation. Third, administrative “agencies tend to attract employees who are committed to the agency’s regulatory mission” (1403) and want to expand their own power to, as they see it, do good. While some instances of regulatory overreach invite pushback from those subject to the regulation, this is generally not the case when it comes to “antidiscrimination regulation”, in part because “many businesses hesitate to publicly oppose” this regulation “because of the negative public relations implications”. (1403) Fourth and last, administrative decision-makers “do not see enforcing constitutional constraints on their authority as their job”. (1404) The courts themselves are partly to blame for this, because they often discourage the bureaucrats from looking to the constitution. But, for their part, supporters of “administrative constitutionalism” positively encourage administrative decision-makers to treat constitutional constraints as no more than a factor, among others, to take into account or to reject.

As for ideological concerns, they have to do with the fact that “conflicts between freedom of expression on the one hand, and restrictions on discrimination by private actors on the other, are conflicts between a
constitutional right and a statutory privilege”. (1406) As a matter of orthodox law the former ought to prevail, but for those “who believe that protecting vulnerable groups from discrimination should be at the heart of our legal and political system”, (1406) such an outcome would be wrong. They are accordingly inclined to discount constitutional concerns, or to seek to re-balance them by appealing to “the notion that the ‘constitutional value’ of antidiscrimination should trump First Amendment limitations on government regulation”. (1407) These views are prevalent not only in the legal academy, but also among activists ― and their ideological allies among the administrative decision-makers in charge of enforcing anti-discrimination laws. The fact that “[a]t the state and local level” these decision-makers are often

known as ‘human rights commissions’ … suggest[s] that the right to be free from private discrimination is at least as valuable as other rights, including constitutional rights. Indeed, the phrase ‘human rights’ suggests a superiority over mere textually supported constitutional rights. (1408)

So why, Professor Bernstein asks, don’t the courts do something about administrative decision-makers run amok? After all, the courts ― at least “generalist courts” ― “do not share mission-driven agencies’ tunnel vision, i.e., the latter’s devotion to its statutory mission at the expense of
other considerations”. (1410) But the administrative state is often able to escape scrutiny by using settlements or ostensibly “soft” forms of regulation that are not subject to judicial review. Professor Bernstein argues that courts should engage in review of administrative action more often, and that they ought to be less deferential when they do so. He also suggests possible institutional reforms, notably “to establish constitutional watchdog offices devoted to protecting constitutional rights from
[administrative] overreach”, (1413) whether within individual administrative entities or for the government as a whole.


Canadian readers probably do not need me to tell them that the issues Professor Bernstein describes arise with at least as much, and probably more, urgency in Canada. After all, although it rests on foundations that are partly different from those of its American counterpart, and goes by a different name, administrative constitutionalism is the law of the land in Canada, whenever a court is minded to follow the precedent set in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395. In Doré, the Supreme Court held that, given their alleged expertise in applying constitutional “values” in the context of specific statutory schemes, administrative decision-makers are entitled to judicial deference, even in cases where the Canadian Charter of Rights and Freedoms is implicated. Whether an administrative decision gives effect to constitutional “values” ― not even rights ― as fully as possible in light of the statutory objectives is to be assessed on a standard of reasonableness. The Supreme Court also confirmed that reasonableness is the presumptive standard of review applicable to the decisions of anti-discrimination tribunals, in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 SCR 230 (although this was not a Charter case).

Admittedly, the Supreme Court hasn’t always been inclined to do so, occasionally simply ignoring Doré. But its latest engagement with administrative interference with constitutional rights, in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293, reiterated the applicability of the Doré framework, although it is worth pointing out that the Court’s majority insisted that this wasn’t supposed to be “a weak or watered-down version of proportionality”. [80] Still, the majority wrote that

Doré’s approach recognizes that an administrative decision-maker, exercising a discretionary power under his or her home statute, typically brings expertise to the balancing of a Charter protection with the statutory objectives at stake … Consequently, the decision-maker is generally in the best position to weigh the Charter protections with his or her statutory mandate in light of the specific facts of the case … It follows that deference is warranted when a reviewing court is determining whether the decision reflects a proportionate balance. [79; references omitted]

Professor Bernstein’s article helps us identify the folly of this approach. Despite the claims to the contrary of Justice Abella (the author of the Supreme Court’s opinion in Doré and the most strident defender of “administrative constitutionalism”, most recently in Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29) and her colleagues, administrative decision-makers are unlikely to take the constitution, or even constitutional “values”, seriously at all. Granted, unlike their American counterparts, Canadian courts do not discourage bureaucrats from taking the Charter into account. Justice Abella, in particular, exhorts them to do so. But such exhortation is unlikely to mean much, compared with the much more concrete incentives Professor Bernstein identifies.

Canadian bureaucrats, no less than their American colleagues, want to expand their power and to advance their and their allies’ ideological goals. The seemingly expanding efforts of human rights bureaucracies or other administrative decision-makers (such as the former benchers of the former Law Society of Upper Canada) to police speech in the name of equality are an illustration of these twin tendencies. And while there has been pushback against the Law Society’s demand that lawyers “promote equality, diversity, and inclusion”, culminating in the election of a plurality of benchers opposed to this imposition, the incentives, both in the private sector and, still more in, say, public educational institutions are very much on the side of tacit or even vocal endorsement of the one-way ratchet of obstensibly pro-equality agenda.

The Supreme Court’s rulings on statutory interpretation exacerbate this problem. In West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635, the majority insisted that the statute at issue featured a “broad and unrestricted delegation[s] of power” [11] so that an administrative decision-maker could pursue its purposes; in TWU, the majority also spoke of a statutory objective “stated in the broadest possible terms”. [33] (West Fraser, to be sure, was not a case implicating constitutional rights. TWU was such a case, however, and their logic is much the same.) In both cases, as I explained respectively here and here, the majority gave no effect to statutory language suggesting that the administrative decision-makers’ powers were not, in fact, unlimited, to which dissents sought to draw its attention. In West Fraser, the majority opinion disparaged attention to such details as “formalistic”. [18] As Professor Bernstein points out, when empowered to pursue expansively defined statutory missions, administrative decision-makers will be unlikely to pay much heed to constitutional concerns. Indeed, TWU offers a perfect illustration of this, since the Supreme Court ended up having to make up the reasons that supposedly justified the administrative decisions at issue.

What Professor Bernstein terms “ideological” factors operate in Canada too. Here too, the value of non-discrimination in the private sphere, branded as a “human right” by federal and provincial legislation alike is held to prevail over such constitutional concerns as freedom of expression and freedom of conscience. The TWU majority spoke of “shared values”, notably non-discrimination, as a valid reason for limiting constitutional rights, despite the fact that the Charter explicitly provides that it does not expand the law-making powers of legislatures or their creatures in the administrative state.


Like Professor Bernstein, I will conclude with an appeal for greater judicial scrutiny of administrative decisions that implicate constitutional rights. Judges ought to realize that administrative decision-makers have no particular incentive to be mindful of the constitution, and real incentives to disregard it. Even when they act in good faith, bureaucrats suffer from a single-minded, excessive focus on their statutory missions, real or assumed, that is bound to divert their attention from constitutional rules that ought to be paramount for all those who exercise public power, but in reality matter primarily to the courts ― if they matter to anyone.

To be clear, the issue is not only with the Doré framework ― though this is the most obvious way in which excessive and unwarranted deference is given to administrative decision-makers when they decide Charter questions. The Doré framework must go, the sooner the better, but this is not enough. The idea that “values” are an adequate substitute for law, whether as a source of constitutional guarantees or of administrative powers, must go along with the Doré framework, to which it is closely linked. And the Supreme Court’s approach to statutory interpretation, and in particular its willingness to countenance supposedly “unrestricted delegations” of power to administrative decision-makers, even if this requires disregarding more circumscribed statutory language, must go too. This, in turn, may require an end of the Court’s fascination with administrative expertise and its pro-regulatory bias.

This is, admittedly, a very ambitious programme. But, as Professor Bernstein shows, it is on that must be attempted if constitutional constraints are to be meaningful in the administrative state. “Administrative constitutionalism” is no substitute for the real thing. This is precisely why its supporters, who are not willing to accept constraints on what they believe is the bureaucracy’s power to do good, advocate for it. This is why we must reject it.

Environmental Sustainability is Not An Unwritten Constitutional Principle

On the IACL-AIDC Blog, Professor Lynda Collins (Ottawa) suggests that “ecological sustainability [should be recognized] as an Unwritten Constitutional Principle (UCP)—a foundational, binding norm to provide guidance to courts and legislators as we navigate the difficult waters of our current environmental crisis.” This argument also appeared in a joint article by Prof. Collins and (now Justice) Lorne Sossin, where the authors link this nascent principle of environmental sustainability to the Constitution’s apparent status as a living tree. In short, without the UCP of ecological sustainability, or whatever the principle is defined as, “the Constitution would become ‘self-defeating’; to extend the metaphor, it would be a dying tree rather than a living tree” [318].

I strongly disagree with the thrust of both the blog post and the article. While environmental sustainability is a noble objective, and I commend the authors for saying so, interpretation of legislation or assessment of the legality of discretionary decisions cannot be driven by our own personal policy preferences (Hillier, at para 33) . Simply because environmental sustainability is a good idea does not make it a constitutional mandate. Accepting it as such would continue a dangerous trend in constitutional law—a desire to transform the Constitution into a vessel for popular modern policy objectives, thereby making it a document of majoritarian rule rather than a counter-majoritarian restriction on governmental action.

I first wish to show why environmental sustainability cannot be a UCP. Then I assess the dangerous implications of recognizing such a principle.

***

For a UCP to be recognized by a court, it must meet general certain criteria. In the Quebec Secession Reference, at para 49, the Court generally described these criteria as follows:

Behind the written word is an historical lineage stretching back through the ages, which aids in the consideration of the underlying constitutional principle. These principles inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based….These defining principles function in symbiosis.

But these principles are not free-standing licences for judges to read-in modern “values” into the Constitution that is designed to be resistant to change. In fact, the principles are institutional or structural in nature. They “inform and sustain the constitutional text…” (my emphasis). Consider some of the commentary from the Quebec Secession Reference:

These supporting principles and rules, which include constitutional conventions and the workings of Parliament, are a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive legal framework for our system of government. Such principles and rules emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning [32].

[…]

The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scopes of rights and obligations, and the role of our political institutions [52].

Consider also the Court’s comment in the Patriation Reference, at 874:

[The Constitution of Canada includes] the global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state.

These comments are clearly related to the role of unwritten principles in interpreting textual ambiguities in the constitutional text, which itself is designed to set out the institutional capacities of the state. The goal is to provide a “legal framework for our system of government.” This restriction means that unwritten constitutional principles, to be recognized, must bear some “vital” relationship to the constitutional structure and the history. These are not freestanding policy preferences: indeed, the Court said as much in the Quebec Secession Reference, when it opined that “the recognition of these constitutional principles…[cannot] be taken as an invitation to dispense with the written text of the Constitution” [53].

Some of the principles recognized thus far reflect this theory of unwritten principles as central to structural or textual concerns. Take, for example, federalism. A federal structure is established by ss.91-92 of the Constitution Act, 1867. Federalism, then, is “inherent in the structure of our constitutional arrangements” (Quebec Secession Reference, at para 56, my emphasis). Federalism responds to “underlying social and political realities” that are implicitly reflected in the “diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction” (Quebec Secession Reference, at paras 57-58). The limiting principle to all of this is the use of an unwritten principle to provide meaning to unstated assumptions or ambiguities inherent in the text or structure of the Constitution. Unwritten principles are not at-large.

So, in all of this, where does ecological sustainability stand? For Collins, either of “ecological sustainability,” “respect for the environment” or “environmental protection” “…meets all of the criteria the Supreme Court has set out for “Unwritten Constitutional Principles.” This is because—picking up on language in the Quebec Secession Reference—sustainability is the “lifeblood” of the Constitution, and a
“vital unstated assumption underlying the Canadian state.” Historically, Collins relies on various documents that show that sustainability is an unwritten constitutional principle. The Charter of the Forest (1217) apparently “guaranteed to British subjects rights of access to vital natural resources” and under Roman Law, the Justinian Code enshrined a version of the public trust doctrine. The Supreme Court itself has recognized that the environment is an important fundamental value (see British Columbia v Canadian Forest Products).

But there is a problem with all of this. It is one thing for environmental sustainability—whatever that means—to be a fundamental societal value. But what is the fundamental structural link back to the Constitution? One does not appear in either Collins & Sossin’s article or Collins’ blog post. As a legal matter, environmental sustainability appears separate and apart from fundamental institutional features that are either a part of British Westminster parliamentary democracy, or are otherwise central to Canada’s particular legal arrangements. Environmental sustainability may be a bedrock societal principle, but whether it is fundamental to the Constitution—which is not necessarily co-extensive with “society,” whatever that is—is a completely different question altogether.

Of course, one might say that ecological sustainability is the basic starting point for any society with a Constitution. That is, it is so fundamental that without it, there would be no world to begin with, hence no Constitution. This argument appears absurd to me, and though Collins seems to make it at some points, it never appears as a full-fledged contention—probably for good reason. For one, the argument as taken would make “ecological sustainability,” a goal without any limiting principle, the dominant organizational principle of the entire society. This would be on the assumption that without ecological sustainability, we’d all die. While protecting the environment is an admirable and necessary goal, no one would suggest that it is a goal to be achieved at all costs. Certainly regulators would not accept this proposition because regulation often involves an eclectic mix of performance standards, design standards, and other incentives that might delay the accomplishment of pure and complete “ecological sustainability.” And yet no one would deny that these measures are somehow unconstitutional because they are not sufficiently strong command-and-control regulation. The unlimited scope of the authors’ nascent principle is a significant problem for its own sustainability.

But more importantly, the Constitution could still exist in a world ravaged by climate change. And that is the key distinction between the principle of ecological sustainability and the other so-far-recognized unwritten principles of constitutional law. The other principles are essential to the workings of the Constitution as such—and I mean this in the most strictly construed manner possible. The Constitution could not exist in any meaningful way without these principles, such that they are “vital” to its operation. Federalism gives life to the textual division of powers. Respect for minorities supports federalism. The Rule of Law is fundamental to any constitutional system. Ecological sustainability is an admirable goal to be achieved by legislatures, but it is not related to the fundamental architecture of the Constitution, such that the Constitution (not society more generally) could continue to work without it. In fact, situations of climate emergency might be the most apt circumstances for the Constitution to work its magic.

***

I want to close by outlining some of the pernicious legal and practical effects of the sort of argument advanced by Collins and Sossin. On the legal front, the correlation that the authors draw between “ecological sustainability” and the “living tree” doctrine continues to prop up this dying metaphor as a doctrine of constitutional law. Take the authors’ footnote 70, which outlines this tenuous connection in the context of the Quebec Secession Reference;

Note the recurrence of biological language in this passage (“symbiosis,” “lifeblood,” “living tree”). This language arguably reflects an implicit understanding that all our human structures depend on our biological survival. In this sense there is no principle more fundamental than that of a healthy environment.

This footnote, more than any other argument I’ve seen, illustrates at least one problem with the living tree mode of thinking. Not only is that mode completely inconsistent with the overall perspective in the Persons Case, in this context, it allows enterprising scholars to draw connections and make arguments that are based primarily on the status of sustainability as an ideal policy goal. But that is not the concern of the Constitution, properly interpreted. The living tree is a constitutional aberration, not a constitutional doctrine.

And courts have been increasingly concerned with preventing judges—let alone scholars—from pouring their preferred policy outcomes into the Constitution. I cited Justice Stratas’ comments in Hillier, above. But consider also his opinions in Williams and Cheema, where the same principle was used to the same effect in the context of statutory interpretation. We always have to be on guard for the imposition of one’s personal policy preferences into the law, when those policy preferences do not represent the duly-enacted law of the responsible legislature. How would the people who believe in environmental sustainability like it if those on the opposite side of the spectrum sought to impose a principle of “resource development” in the Constitution, tying it to tenuous constitutional signals like the fact that the federal government has the power under s.91(2) to regulate trade and commerce? The question needs no answer.

Practically, it continues to be my view that there are certain things that are best addressed and constitutionally assigned to legislatures—not courts. Courts are not designed to vindicate the policy goals of the moment. And, for those sympathetic to the idea that environmental sustainability is a fundamental value of Canadian society, it would seem odd to suggest that courts in the adversarial system should be the ones to vindicate that value. Instead, wide study and a nuanced regulatory response seem to be the best options from a practical perspective. And yet the blunt force of an unwritten constitutional principle—that remains undefined, unclear, and unhelpful—emerges as the regulatory response in Collins and Sossin’s article.

Clearly, the environmental crisis needs a better answer.