Immuring Dicey’s Ghost

Introducing a new article on the Senate Reform Reference, constitutional conventions, and originalism ― and some thoughts on publishing heterodox scholarship

The Ottawa Law Review has just published a new paper of mine, “Immuring Dicey’s Ghost: The Senate Reform Reference and Constitutional Conventions“. It’s been many years in the making ― apparently, I started working on this paper in August 2016, a prehistoric time in my own life, to say nothing of the outside world ― and I don’t think I have ever said much about this project here. So let me introduce it ― and let me also say something about its “making of”, in the hope that its complicated, but ultimately successful fate will inspire readers who may be struggling with wayward papers of their own.

Here is the article’s abstract:

Although the metaphor of “constitutional architecture” appeared in some of the Supreme Court of Canada’s previous opinions, it took on a new importance in Reference re Senate Reform, where the Court held that amendments to constitutional architecture had to comply with the requirements of Part V of the Constitution Act, 1982. However, the Court provided very little guidance as to the scope of this entrenched “architecture.” As a result, the metaphor’s meaning and implications have been the subject of considerable scholarly debate. This article contributes to this debate by arguing that “constitutional architecture” incorporates (some) constitutional conventions. It further takes the position that, instead of relying on this confusing metaphor, the Court should have candidly admitted that conventions were central to its decision by acknowledging that the text of the Canadian Constitution cannot be fully understood without reference to conventions.

Part I reviews, first, the Supreme Court’s opinions in which the notion of constitutional “architecture” has been mentioned, focusing first on this concept’s place in the Senate Reform Reference, and second, some of the scholarly commentary that has endeavoured to make sense of it. Part II sets out my own view that constitutional “architecture,” as this concept is used by the Supreme Court, is concerned primarily if not exclusively with constitutional conventions. Part III considers whether it is possible to determine just which conventions the notion of constitutional architecture encompasses, examining the conventions’ importance and their relationship to the constitutional text as possible criteria, and concluding that neither allows precise determinations. Part IV sets out what would have been a less confusing way of addressing the significance of conventions to the questions the Court was facing in the Senate Reform Reference: frankly recognizing that conventions were relevant to the interpretation of the applicable constitutional texts. Part V examines two objections to the incorporation of conventions (via “architecture” or through interpretation) into the realm of constitutional law, arguing that this incorporation is not illegitimate and that it will not stultify the Constitution’s development. Part VI concludes with an appeal for greater transparency on the part of the Supreme Court.

Actually, the article’s core idea ― that the architecture to which the Senate Reform Reference refers incorporates constitutional conventions ― was part of my initial reaction to the Supreme Court’s opinion. And of course it only develops the suggestions made by Fabien Gélinas and me in a paper we wrote before the Senate Reform Reference was argued. It is also of a piece with my other work on conventions, which argues against the theoretical validity of a sharp distinction between the conventions and the law of the constitution.

The other thing the article does, though, is a new departure. When Professor Gélinas and I wrote about the role of conventions in the then-upcoming Senate Reform Reference, we accepted that the constitution is a “living tree”, and indeed made it the basis of our argument that constitutional interpretation must incorporate conventions. But of course I no longer think that living constitutionalism is the correct approach. So the article begins the project of making sense of the reality that a very significant part of the Canadian constitution is “unwritten”, or rather extra-textual, uncodified, from an originalist perspective.

The argument, as it happens, does not change: as I explain, an originalist must also read the constitutional text in light of conventions which were ― in originalist terms ― part of the publicly available context at the time of the text’s framing. Still, it was important for me to set out this argument from an originalist, as well as a written constitutionalist perspective. It was also important to give the reader a glimpse of how this originalist argument works. To this end, the article wades into historical evidence, looking at the Confederation debates to argue that the conventions relative to the functioning of the Senate were anticipated by the framers of the Constitution Act, 1867 (in addition to being well known to those of the Constitution Act, 1982). Future work ― mine and perhaps that of others ― can build on this foundation, and on Ryan Alford’s recent book Seven Absolute Rights: Recovering the Historical Foundations of Canada’s Rule of Law, to fully integrate not only conventions (and therefore “architecture”) but also underlying principles and structural arguments into a comprehensive originalist conception of the Canadian constitution.

This brings me to the “making of” part of the post. As you might imagine, getting the originalist arguments through peer review was not an entirely straightforward proposition. I deliberately diluted them, presenting them only as alternative to the living constitutionalist approach, to which I gave equal attention and which I refrained from criticizing.

Still, at first, this was not enough. The reviewers selected by the first journal to which I submitted the paper were quite skeptical of the whole project, and the attention it devoted to history and to originalism contributed to that skepticism. I was asked to revise and resubmit in light of the reviewers’ comments, and did so, although I could not make the sorts of changes that would have assuaged their concerns without changing the nature of the whole piece. The editor referred the revised article to the same reviewers, who understandably were unimpressed with my revisions, and the article was rejected. Frankly, the revision and resubmission was a waste of my time, as well as of the reviewers’. Their initial objections were too fundamental that there was no real chance of their accepting any revisions I might plausibly have made.

So, after sulking a bit, I submitted the paper elsewhere ― namely, to the Ottawa Law Review. The reviewers there were more open-minded, though one remarked on the oddity, as he or she thought, of granting so much airtime to originalism, and suggested cutting that part of the paper. But the article was accepted, and so revisions were more at my discretion than they would have been in a revise-and-resubmit process. To me, of course, the discussion of originalism was very much part of the point of the paper, so I insisted on keeping it. (I have to say that, while many scholars will of course disagree with originalism as a normative matter, I find it hard to understand how one still can argue that it simply isn’t relevant to Canadian constitutional law; and least of all, how one can make such an argument in a discussion of the Senate Reform Reference, which very much relies on arguments about the intentions of the framers of the Constitution Act, 1982.)

To my mind, there are a few lessons here. One is that if you have an unorthodox agenda, it might be useful to go slowly, and plan to make several steps before getting to your ultimate destination. If you present your idea, not as certain truth right away, but as a possibility to be entertained, you make the pill easier to swallow while still moving the argument from being, as American scholars put it, “off the wall” to “on the wall”. I’m not sure, of course, but I think that this cautious approach helped me here.

The second lesson is that the peer review process is a bit of a crapshoot. Even if you are cautious, some reviewers will bristle and see their role as that of gatekeepers preserving scholarship from heresy. But others may see their role differently, and say that, while they disagree with the paper, it is still well argued and deserves a hearing. (Of course, you have to make their life easier and make sure that the paper is indeed well argued; the more heterodox you are, the more you need to dot your i’s and cross your t’s.) To be sure, there are limits to such tolerance: at some point, heterodoxy veers into kookiness, and even an open-minded reviewer should say so. And, of course, where heterodoxy ends, and kookiness begins is not a question that admits of easy answers. Perhaps to the original reviewers who rejected my piece I was a kook.

But this brings me to the third lesson. If at first you don’t succeed, try again. Try with a different journal, hope you get different reviewers, perhaps a more sympathetic editor. That’s easier to do when your paper is one that doesn’t need to be out right away ― I’ve given up on a comment on R v Comeau, in part because a case comment loses its relevance after a while ― whereas this article, making a less topical and more fundamental claim, could wait. And perhaps there is a further lesson here, which is that it is better to reserve heterodox ideas for articles of this sort, knowing that it might be a while before they can run the peer review gamut. But, be that as it may, the point is that, precisely because it is a crapshoot, precisely because it empowers people who enjoy being more Catholic than the Pope, the peer review process can be dispiriting ― but knowing why it is this way should remind us that it isn’t always this way.

Good luck with your heterodox articles ― and please read mine, and let me know what you think!

Entertainment Assoc, 2020 FCA 100: A New Canadian Textualism

In Entertainment Software Assoc v Society of Composers, 2020 FCA 100, Stratas JA (for the Court) made a number of interesting comments about statutory interpretation in the administrative state and the role of international law in the interpretive activity. In this post, I review these comments, and agree with them wholeheartedly. This case is an important add-on to a growing list of cases in the Federal Court of Appeal and the Supreme Court (Williams, Cheema, Hillier, Placer Dome, Telus v Wellman, Rafilovich) that advocate a certain form of text-based purposivism, which rejects abstract purposes and extraneous principles of international law in favour of specific text. As I will note, these cases all indicate a trend: a promising move towards statutory interpretation approaches that are governed by text, not the policy preferences of administrators or the wishes of unelected judges. While the courts most certainly would not put it in these terms, this is a new, reborn form of textualism in Canadian law that incorporates purpose but makes it a servant to text. In this sense, it is most certainly not the plain-meaning rule, but also not pure purposivism.

I note that there are important aspects of this decision that I will address in a later post, including on the standard of review analysis.

Facts

SOCAN administers the right to “communicate” musical works on behalf of copyright owners [1]. It filed with the Copyright Board proposed tariffs for the communication to the public of works through an online music service. After SOCAN filed its proposed tariffs, the Copyright Act was amended to include the so-called “making available provision.” This provision defines “communication of a work…to the public” as including “making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and time individually chosen by that member of the public” [3] (s.2.4(1.1) of the Copyright Act). The question: does the making available of a work on an online server for later downloading constitute “an event for which a tariff was payable”? [4]

A Supreme Court case was on point. In 2012 SCC 34, the Court held that the “transmission over the Internet of a musical work that results in a download of that work is not a communication by telecommunication” [5], meaning that SOCAN could not collect royalties . The argument the Board was faced was that the introduction of s.2.4(1.1) made the Supreme Court’s decision “irrelevant” [6]. The Board agreed [8], concluding that s.2.4(1.1) of the Copyright Act is a deeming provision that makes the making available of a work on a server an act that is a communication to the public, and is therefore an act that triggers a tariff entitlement. The Board’s conclusion meant that it split the process into two separate tariff triggering events: (1) “the making available” and (2) a subsequent download or transmission on the Internet. In support of its reasoning, the Board concluded that the contrary position would “not comply with Canada’s international obligations” as set out in Article 8 of the WIPO Copyright Treaty (the Treaty) [9].

Statutory Interpretation

The Board’s interpretation attempted to transgress the limits on its discretion by references to international law and abstract, imputed legislative purposes. The new Canadian textualism, as espoused by Stratas JA, rejects this approach.

Let’s start at the highest level of abstraction. The rules of statutory interpretation particular to administrative decision-makers must be read in harmony with the Supreme Court’s (and Federal Court of Appeal’s) statutory interpretation precedents, particularly recent precedents. Those precedents prize two things as part of the new Canadian textualism. First, as Stratas JA held in this case, results-oriented reasoning is prohibited: see Williams, at para 48; Cheema, at para 74; Hillier, at para 33; and Vavilov at paras 120-121 re “reverse-engineering” a desired outcome. Interpretation must be conducted according to text, context, and purpose, and extraneous policy or substantive considerations should not enter the analysis. Second, and importantly, courts cannot let purpose suffocate the text, no matter how nice the purposes sound. That is, purposes cannot be stated at such a high level of abstraction that the purpose expands the meaning of the text beyond its natural meaning (see Wilson (FCA), at para 86, rev’d not on this point: “…we cannot drive Parliament’s language….higher than what genuine interpretation—an examination of text, context, and purpose—can bear”; see also Cheema, at paras 74-75).

Examples of this abound. In Hillier, at para 36, the Court rejected abstract purposes of “administrative efficiency, adjudicative economy, and conservation of scarce administrative resources.” Instead, the provision in question was limited to a purpose more reflected in the legislative text (Hillier, at para 35). Lest one think this is just a predilection of the Federal Court of Appeal, the Supreme Court endorsed this approach in Telus v Wellman, where the Court said the following, at para 83:

Hence, while there can be no doubt as to the important of promoting access to justice…this objective cannot, absent express direction from the legislature, be permitted to overwhelm the other important objectives pursued by the Arbitration Act.

In that case, the Court chose purposes actually reflected in the text of the Arbitration Act (another Supreme Court case, Rafilovich, holds the same thing, as I wrote about here). And these cases are consistent with older Supreme Court cases, which constrain purpose: see Placer Dome, at para 23: purpose cannot be used to “supplant” clear language.

Put together, the text, context, and purpose of legislative provisions must be dealt with authentically, but purpose should be constrained to “fit” the scope of the legislative text. This is a simple application of the rule that “Most often the purpose of legislation is established simply by reading the words of the legislation” (see Sullivan, Statutory Interpretation, at 193). Under these precedents, text is inferred from purpose; purpose is not a free-standing licence to override text. This is an important corrective to a potential use of the purposive approach that does away with legislative text, in support of some realist approach to statutory interpretation.

While Vavilov does not reference these precedents (including Telus or Rafilovich), it does invoke the traditional requirement that administrative decision-makers must deal with the text, context, and purpose of legislation (Vavilov, at para 120, 121) with only limited opportunity for error (Vavilov, at para 122). In dealing with the text, context, and purpose, the Supreme Court’s precedents mean that text will often be the dominant consideration. Vavilov endorses this idea, at para 120: where the tools of interpretation lead to a clear answer, that interpreted text will govern. Under this approach, administrative decision-makers are governed by statute, limited by the boundaries on their authority. They cannot transgress these boundaries, and cannot use tools of interpretation that do so.

In the Entertainment Assoc case, the Board seemed to attempt to transgress the boundaries of its authority. The Board’s chosen materials for the interpretive exercise were stated, according to the Court, at a high level of generality (see paras 53-54). For example, the Board focused on the preamble to the Copyright Modernization Act to divine a rather abstract interpretation that supported its view on international law (paras 53-54). It also invoked government statements, but the Court rightly noted that these statements construed s.2.4(1.1) as a “narrow, limited-purpose provision” [56], not as an all-encompassing provision that permitted the collection of tariffs in both instances. The use of these materials was used by the Board to herald a different, broader interpretation than what the text and context of the provision indicated. This is the problem that Telus v Wellman and Rafilovich guard against.

What is the upshot of all this? Entertainment Assoc is justified from first principles and with regards to precedent. On first principles, it restrains the role of purpose and extraneous considerations, which might not be derived from text. On precedent, it is supported by Telus v Wellman and Rafilovich, and is clearly consistent with other Federal Court of Appeal precedents. Slowly, but surely, we are reaching a sensible approach to statutory interpretation.

International Law

The Board spent the majority of its time focusing its interpretation on the Treaty. Indeed, according to the Court, the Board spent scant time on the actual interpretation of the governing statute, instead taking a particular article of the Treaty, interpreting it, and then making “subsection s.2.4(1.1) conform with that interpretation” [70]. Specifically, the Board used article 8 of the Treaty to “provide protection for the act of making a work available by telecommunication even where there was no transmission to the public” [70].

This approach, as the Court notes [75-88], is profoundly violative of the hierarchy of laws (see, for more on the hierarchy, Tennant). Section 52 of the Constitution Act, 1982 is clear: the Constitution is the supreme law of Canada. As the Court eloquently notes, under that Constitution, a division of powers exists which grants exclusive law-making rights to the provinces and the federal government. Of course, so long as powers are not abdicated, they can be delegated to domestic administrative decision-makers. Under this framework, the Constitution binds legislative actors, but within constitutional limits, the legislature is sovereign. This is basic, but as we shall see, easily forgotten stuff.

International law made by “unelected functionaries abroad who draft and settle upon international instruments” should not subvert the hierarchy of laws [79]. The only way that international law treaties can actually become a part of our law is through the process of domestic adoption of international law in a proper legislative instrument [80]. Parliament can adopt international law in whole in or in part; can change the content of international law as it is adopted in domestic legislation; or otherwise choose not to adopt international law in domestic legislation. In this way, Parliament remains sovereign because it controls the international law it adopts. This is the status quo ante, and should not be dispatched with simply because one party, academic, or lawyer likes the substantive content of particular international law instruments.

International law instruments, as the Court notes, can affect the interpretive activity in distinct but narrow ways. Of course, “[s]ometimes the text of a legislative provision explicitly adopts the international instrument wholesale” [82]. Here, international law must form the basis of the interpretation. In other situations, it might be clear that legislation, under the ordinary techniques of interpretation is “clear enough,” such that international law cannot form a part of the interpretive activity. The importance of this conclusion is that if legislative text is clear, it should oust an extraneous international law instrument, due to the hierarchy of laws described above. If legislation is unclear, and international law “may have influenced its purpose or context” [83], international law could enter the interpretive task. The clearness of the legislative text, on first principles, should be the anchor that governs whether international law properly enters the interpretive task because, again, the legislature must proactively legislate into existence international law instruments under orthodox principles (see Sullivan, Statutory Interpretation, at 314, which contemplates an initial assessment of ambiguity: “If a legislative provision is considered unambiguous, it must be applied as written even though it may be inconsistent with international law.”

The Supreme Court’s “presumption of conformity” with international law could be marshalled to support the subversion of the hierarchy of laws, and to give international law a foothold in legislative text, even where the text is clear (see Gib van Ert’s piece here). So goes the argument, legislative sovereignty can be maintained by requiring that legislatures pro-actively and clearly oust international law; in this way, no ambiguity is required, and international law enters the interpretive activity in an all-encompassing way. This is the reverse from what the Court in Entertainment Assoc held, where international law can enter the interpretive activity if it has been clearly incorporated, or if the domestic law is otherwise ambiguous and international law is relevant. Under the argument advanced by van Ert and others, the international law presumption, then, is the tail wagging the domestic legislation dog.

From first principles, this understanding of the presumption of conformity is inconsistent with fundamental, orthodox legal principles. International law should be assimilated to domestic law, not the other way around. We usually don’t speak of legislation as being a “negative-option” in which Parliament must proactively and explicitly legislate away court-created presumptions linked to laws made elsewhere. Of course, it is true that Parliament often legislates against the backdrop of the common law, as developed by courts and led by the Supreme Court in appropriate cases. But in these cases, Parliament is in the driver’s seat, and there is no doubt that Parliament can oust the common law, probably by necessarily implication, a lesser standard than what the presumption of conformity requires: see Hillier, at para 37-38, and also generally how the Federal Court of Appeal prizes legislative action over judge-made rules. The common law rules made by judges are different than a presumption linked to the content of law made by another actor in another state, that purports to bind legislative actors in Canada who hold exclusive law-making power. Expecting this positive law to be supreme over domestic law, so that Parliament must do away with it, turns the international law instrument into the driving force of interpretation. This is quite different than the common law, which is domestic law, and which can be ousted by necessary implication.

Presumptions have a specific and technical meaning in law. Contrary to the Supreme Court’s recent treatment of presumptions (for example, its presumption of reasonableness pre-Vavilov), presumptions are not irrebuttable tools that can be used to subvert duly-enacted legislation out of service to some court-created concept. As the Court notes, the Supreme Court’s presumption “does not permit those interpreting domestic legislation to leap to the conclusion, without analysis, that its authentic meaning is the same as some international law” [91]; see also Hillier, at para 38 “…judge-made rules do not empower judicial and administrative decision-makers to ignore or bend the authentic meaning of legislation discovered through the accepted approach to interpretation.” It goes without saying, then, those who favour international law cannot use it as a way to subvert the authentic meaning of text, even if it is text that these proponents of international law would rather not have. Trite as it is, the remedy for this problem is to vote, not to consult the grand poohbahs of international law.

What Does All of This Mean?

There is a unified theme to all of Entertainment Assoc that indicates new directions in law in this country. As noted above, there is a growing list of cases in the Federal Courts and the Supreme Court that, on matters of statutory interpretation, favours clear legislative text over abstract purposes; and in this case, extraneous international law. We all know that text, context, and purpose are the ordinary tools of interpretation; and that this approach is seen by many (including in older cases of the Supreme Court: see West Fraser) to eschew an approach focused on text. What we are seeing in these cases is an attempt to recalibrate the worst excesses of a purposive or contextual approach: the perhaps irresistible temptation for administrators to use purpose or extraneous tools to oust legislative text in order to expand the boundaries of jurisdiction. Down the years, this sort of approach could slur the meaning of the words adopted by the legislature.

Fundamentally, what drives this tendency is a pernicious form of legal realism that has little confidence in the meaning of words. Of course, sometimes the worst ideas have a kernel of truth in them: sometimes it takes work to extract meaning from legislative language. It is not a self-executing task, to be sure. But the answer is not to rely on extraneous policy preferences or results-oriented reasoning, which a liberal use of broad purposes can invite.

It is no answer to this trend to simply state that the new approach in the Federal Court of Appeal and the Supreme Court is the ghost of “plain-meaning” “Diceyanism” or “formalism.” As I have written before:

In statutory interpretation, a belief that text in its context will generally contain answers is dismissed as a belief in “the plain meaning rule,” mere “textualism”–notwithstanding the important distinction between these two methods. In constitutional law, a focus on constitutional text is “originalism.” None of these are arguments, but they have since infiltrated the orthodoxy of the academy.

Indeed, if I read these cases correctly, formalism is a good thing. It means that we are sticking to the form in which laws must be promulgated and interpreted. If courts believe in the legislative work product, they will spend more time authentically applying the proper tools of interpretation to discern the meaning of the relevant text. Under this approach, legislative text is the driver of interpretation, and most of the time, an authentic application of the tools of interpretation can lead to the meaning of the words enacted by the legislature.

It is important to note that this new Canadian textualism is still Canadian in the sense that purpose forms a part of the interpretive exercise. None of the cases cited throughout this post say otherwise. However, purpose must be reflected in text, not created out of whole-cloth. That is the new Canadian textualism.

While it is too soon to state what the result of this new movement will be, it is notable that the cases are piling up in favour of a certain approach. This is not a coincidence. It indicates that the Supreme Court, and the Federal Court of Appeal, have moved beyond the mere invocation of “text, context, and purpose” in favour of the text actually adopted by the legislature. These cases clarify that the purposive approach is not a licence for policy reasoning above and beyond what the text says. As Justice Stratas notes in Hillier, at para 33: “Those we elect and, within legislative limits, their delegatees…alone may take their free standing policy preferences and make them bind by passing legislation.”

Under this approach, doubt is thrown on abstract policy preferences, purposes with no reference in legislation, international law instruments not clearly incorporated in legislation, and other ways of subverting legislative text. Good riddance.

See the following posts on the new Canadian textualism:

“Clear Enough”

Romancing the Law

The “Return” of “Textualism” at the SCC [?]

Rafilovich: A Textualist (or Quasi-Textualist) Turn?

Through Which Glass, Darkly?

Introducing a new article on the Rule of Law in two decisions of the supreme courts of Canada and the United Kingdom

I followed the challenge to the “hearing fees” that British Columbia imposed on litigants who wanted to have their day in court ― or at least their days, since an initial period was free of charge ― from its beginning as Vilardell v Dunham, 2012 BCSC 748 and to its resolution by the Supreme Court of Canada as Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31, writing almost a dozen posts in the process. And then the Supreme Court of the United Kingdom decided a case that was remarkably similar to Trial Lawyers, R (Unison) v Lord Chancellor, [2017] UKSC 51, [2017] 4 All ER 903, which involved a challenge to fees charged for access to employment law tribunals. I blogged about that decision too.

The two supreme courts came to similar conclusions: the fees were invalidated in both cases, out of a concern that they prevented ordinary litigants who could not afford them from accessing the forum where their rights would be ascertained. In Trial Lawyers this was said to be a violation of section 96 of the Constitution Act, 1867; in Unison, of a common law right of access to court. Yet there was a striking contrast between the two decisions, and specifically between the ways in which they treated the Rule of Law. Trial Lawyers discusses this constitutional principle, but as something of an embarrassment, in the face of a scathing dissent by Justice Rothstein, who argues that it should not have discussed the Rule of Law at all. (He still does ― in his keynote address at this year’s Runnymede Conference, for example.) Unison‘s discussion of the Rule of Law, as a foundation of the right of access to court, is much more forthright, and sophisticated too.

This got me thinking. The result is an article that has been accepted for publication in the Common Law World Review, and which I have already posted on SSRN: “Through Which Glass Darkly? Constitutional Principle in Legality and Constitutionality Review“. The main idea is that what explains the difference in the depth and confidence with which the two courts treated the Rule of Law is that constitutional review, despite its power, is bound to be precarious in the absence of an on-point text, while legality review, although seemingly weak in that its outcome can be overturned by statute, actually makes compelling discussion of unwritten principle possible. Here is the abstract:

This article seeks to draw lessons from a comparison between the ways in which the Rule of Law is discussed in cases decided by the supreme courts of Canada and the United Kingdom on the issue of allegedly excessive fees levied on litigants seeking to access adjudication. After reviewing the factually quite similar cases of Trial Lawyers Association of British Columbia v British Columbia (Attorney General) and R (Unison) v Lord-Chancellor and it detailing these decisions’ respective constitutional settings, the article argues that, in contrast to the cursory treatment of the Rule of Law by the Supreme Court of Canada, the UK Supreme Court’s discussion is sophisticated and instructive. This suggests that legality review based on common law rights, which is not focused, and does not try to establish a connection, however tenuous, to an entrench constitutional text, may well allow for a more forthright and enlightening discussion of the principles at stake. Thus it follows that, in constitutional systems that feature strong-form judicial review based on entrenched texts, when regulations and administrative decisions are at issue, legality review should not be neglected. In those systems where strong-form judicial review is not available, legality review should not be regarded as an anomalous ersatz.

While I have argued here that Canadian courts can legitimately base their constitutional decisions on unwritten principles, rather than explicit textual provisions, in some circumstances, I do think that legality review (which, of course, Justice Cromwell favoured in Trial Lawyers) should be considered more often. Our law would be the richer for it.

Inter vira enim loquuntur leges

The pandemic and delegation of power to the executive

Writing in La Presse earlier this week, Martine Valois raises some pointed questions about the extent of the powers the Québec government is exercising by various forms of delegated legislation, without control or even clear authorization by the National Assembly. Professor Valois’s op-ed is worth reading in full, but I would like to focus on one specific point she makes, about a decree that

allows [the government] to suspend orders given by the Superior Court in relation to supervised visits between a child and a parent. In our legal system, which is based on the Rule of Law and separation of powers, a minister cannot suspend a judicial decision. (Translation mine)

Maxime St-Hilaire has a response to Professor Valois over at À qui de droit, which is also worth reading. He is sympathetic on the whole, but on the specific point I am highlighting here, he disagrees. Professor St-Hilaire points out that “incompatible legislation can modify, suspend, or annul the effects of a judgment”, (translation mine here and below) and it is far from certain that this power cannot be delegated to the executive. Professor St-Hilaire points to cases such as In Re Gray, (1918) 57 SCR 150 and the Chemicals Reference, [1943] SCR 1, which accept “imprecise delegation of extremely broad powers ‘of a legislative nature’ to the executive, provided that such legislation can be revoked, and all the more so in an emergency situation”. This power is subject to constitutional limits, arising notably out of the federal division of powers, the protected jurisdiction of superior courts, and the constitutional amendment formula, but none are relevant here.

My own, tentative, view is somewhere in between those of Professors Valois and St-Hilaire. I’m not convinced that the principles of the Rule of Law, let alone separation of powers, can be applied to as to generate a legal prohibition on the delegation of a power to suspend or override court orders. At the same time, however, I think there is a strong case to be made for the proposition that such delegations should not easily be read into general legislative provisions, and that the specific provision invoked by the Québec government does not in fact authorize it to suspend court orders.

I think it is reasonably clear that, in application of the principle of Parliamentary sovereignty, legal rights determined by the judgment of a court can be modified by statute. And it is also clear that, subject to exceptional limitations (notably those in relation to taxation which I recently discussed here), legislatures can delegate their power to change the law to the executive. Is the power to modify rights fixed by court order an exception to this general rule? As readers will recall, I am more open to the possibility of constitutional principles producing specific legal effects, including invalidating some legislative provisions, than many other scholars. But I am not convinced that such an exception can be derived from the principles Professor Valois invokes. No doubt the Rule of Law counsels against upending court orders, but like the more general requirement of legal stability, this is probably not an absolute rule. And no doubt separation of powers says that the executive should not adjudicate disputes, but this is not what is going on here: court orders are suspended, in blanket fashion rather than case-by-case, and will, presumably, then be reinstate, in blanket fashion too.

But while this disposes of the suggestion that there is an absolute, constitutional prohibition on delegating a power to interfere with court orders, the question of whether a given delegation actually accomplishes this is a separate one. The Québec government’s authority to suspend the effect of court judgments is aid to rest on the residual clause in section 123 of the Public Health Act. Section 123 provides that “while the public health emergency is in effect, the Government … may, without delay and without further formality” take a certain number of measures “to protect the health of the population”. Seven types of measures are enumerated, from compulsory vaccination, to closures, quarantines, and evacuations, to building works and expenditures. The residual clause, section 123(8), follows this enumeration, empowering the government to “order any other measure necessary to protect the health of the population”. The question, then, is whether this broadly-worded, but residual, provision, authorizes the government to suspend court orders.

It is true, as Professor St-Hilaire says, that “imprecise delegation of extremely broad powers” is possible under the Supreme Court’s decisions in Gray and Chemicals. But these cases do not stand for the proposition that imprecise delegation must always be taken to enable the government to do whatever it wants. In both, the Court was at least prepared to entertain the possibility that the powers claimed by the executive had not been validly delegated. Both cases concerned the interpretation of a provision of the War Measures Act which granted vast powers to the executive to:

do and authorize such acts and things, and make from time to time such orders and regulations, as [the Governor in Council] may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace, order and welfare of Canada; and for greater certainty, but not so as to restrict the generality of the foregoing terms, it is hereby declared that the powers of the Governor in Council shall extend to all matters coming within the classes of subjects hereinafter enumerated… 

In Gray, the issues were, first, whether this was a “Henry VIII clause”, empowering the executive to make regulations that override statutes and, second, whether the subjects of the regulations made under this provision had to be of a similar nature to those enumerated. The majority of the Supreme Court held that the opening part of this provision was broad enough to serve a Henry VIII clause, while the proviso in the second part ousted the application of the ejusdem generis presumption. In Chemicals, the main issue was whether the power delegated by Parliament to the Governor in Council could further be delegated to officials. The Court held that it could, because the power was so sweeping that it was a necessary implication that it would, in part, by exercised by others.

Section 123 of Québec’s Public Health Act is not an exact equivalent to the provision of the War Measures Act interpreted in Gray and Chemicals. Indeed, its structure is almost the opposite. The War Measures Act provided a broad initial delegation to do anything the executive “may … deem necessary or advisable for the security, defence, peace, order and welfare of Canada”, followed by a set of examples said, in Gray, to be not so much illustrative as “marginal” cases for which Parliament thought it expedient to dispel possible doubt. Section 123, by contrast, starts by enumerating a series of specific measures the government is authorized to take, followed by the residual clause in section 123(8). The enumerated measures are the obvious, central examples of a government might need to do in a public health emergency, and there is no language ousting the application of the ejusdem generis presumption. If anything, given this difference in statutory language, Gray arguably provides support for an argument a contrario for the proposition that the residual clause is not to be read as broadly as the War Measures Act delegation. If the Québec legislature really wanted to delegate “extremely broad powers” to the executive, it would have done so differently.

But there is more. Gray and Chemicals are good law so far as they explain the general ability of Parliament to delegate broad powers (including Henry VIII powers and the ability to subdelegate) to the executive. But in another respect, there is a strong argument to be made for the proposition that the law has moved on. In Gray, only Chief Justice Fitzpatrick referred to the argument that “the powers conferred by” the War Measures Act “were not intended to authorize the Governor-in-council to legislate … so as to take away a right … acquired under a statute”, but he easily rejected it. The issue did not arise in Chemicals. But the idea that authority to interfere with existing legal rights must be granted clearly if not expressly, that it will not be readily inferred from open-ended provisions delegating power to the executive, known as the principle of legality, has been much developed in the last few decades. The development has gone further in the United Kingdom than in Canada, but Justice Cromwell’s concurring reasons in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31, unchallenged by any of his colleagues, provide at least some support for the proposition that it is in fact part of Canadian law.

There is, therefore, a serious argument to be made for the proposition that while interference with court orders may be authorized, it needs to be authorized clearly. An “imprecise and broad” delegation, let alone a residual clause following an enumeration of subjects that have nothing to do with court orders, is not enough. There is, of course, no precedent directly on point, and the argument I am advancing here is just that. However, as for example Lord Sumption explained in his Reith Lectures (which I summarized here), it is quite proper for courts, even on a limited view of their power that disclaims substantive review of public policy, to ensure that the legislature has squarely confronted the implications of exorbitant powers it grants the executive (or indeed other unusual consequences that may result from its enactments).

As both Professors Valois and St-Hilaire note, the Rule of Law tends not to fare well in real and perceived emergencies. The Rule of Law is, above all, an ideal, and in such times ideals to be disregarded. Its protection as a matter of positive constitutional law is limited. As a result, contrary to what Professor Valois suggests, I do not think the principle can serve as a categorical bar to legislatively authorized interference with court orders.

At the same time, however, the Rule of Law should not be sold short. At a minimum, it requires courts to read legislation ― even emergency legislation ― carefully, and not to find in it powers beyond those actually given by legislatures. But, more than that, the principle of legality suggests that when a legislature wants to interfere with the ideal of the Rule of Law, it must at least understand what it is doing and even, perhaps, be prepared to pay the political price for it.

Ministers of Truth

A proposal to criminalize epidemic-related “misinformation” is dangerous

The CBC’s Elizabeth Thompson reports on a rather startling development: the federal government is, apparently, giving serious thought to introducing censorship to discussions of the present plague. More specifically, there is talk of “legislation to make it an offence to knowingly spread misinformation that could harm people”, based on a member of the UK House of Commons proposal “for laws to punish those responsible for spreading dangerous misinformation online about the COVID-19 pandemic”. At least some of the opposition seem keen, Ms. Thompson quoting an NDP Member of Parliament as claiming that “Extraordinary times require extraordinary measures and it is about protecting the public”, and reassuring us, I suppose, that “[t]his is not a question of freedom of speech”.

Actually, it is very much a question of freedom of speech. The Supreme Court invalidated an earlier prohibition on the speading of “false” news in R v Zundel, [1992] 2 SCR 731, and for good reason. Such prohibitions mean that government telling us what we are and what we are not allowed to say. Say something the government deems, in the words of the same honourable gentleman, to “interfere with the efforts of our frontline medical workers”, and suffer punishment. This is a limitation of the freedom of speech on any plausible definition of that concept, and for a Member of Parliament to pretend otherwise is not only an illustration of the politicians’ habitual mendacity but, more specifically, a rather ironic way of getting the public used to the idea of meting out punishment for statements that fail to live up to a standard of truth.

It is far from clear just what these restrictions are meant to accomplish. The CBC report quotes a spokesperson from the Communications Security Establishment, an intelligence agency, as warning about “cybercriminals and fraudsters” who “encourage victims to visit fake web sites, open email attachments and click on text message links” that purport to provide health information. But fraud, for example, is already a crime; there is no need for “extraordinary measures” to prohibit it, or for broadly defined bans on “misinformation”. The report also says that “Health Canada … is sending compliance letters to companies it finds making false or questionable claims about COVID-19”. It is not quite clear what sort of compliance is in question here, but presumably ― or at least hopefully ― it’s compliance with existing laws, perhaps ones having to do with advertising, or specifically advertising of health products. If so, then why is more legislation necessary?

For his part, the NDP MP tells, darkly, of “troll bot farms, state operators or … conspiracy theorist cranks who seem to get their kicks out of creating havoc”. State actors with troll bot farms at their disposal are unlikely to be deterred by Canadian legislation. At most, then, it will be targeting conspiracy theorists… and giving them more ammunition for believing the government is hiding things. Is there any evidence at all, actually, that “conspiracy theorist cranks” ― especially ones within the reach of Canadian laws, and not the one domiciled at 1600 Pennsylvania Ave., Washington, DC ― are having a real effect on Canada’s response to the plague?

And on the other side of the scales, there will be real costs to this proposed legislation. Even if it includes the mens rea requirements of knowledge, wilfulness, and malice ― which, if applied, would result in good faith conspiracist cranks being off the hook ― the law is likely to produce chilling effects. Worse, attempts to enforce it, even if they do not ultimately lead to convictions, will target the politically unpopular, or simply those who happen for one reason or another, to incur the displeasure of police services and prosecutors. As concerning as recent stories of overzealous enforcement of “social distancing” regulations are, the problem is much more longstanding one. Readers may remember me blogging about a makeup artist prosecuted for gory videos involving no actual gore or violence whatsoever and Québec blogger who ― stupidly, to be sure ― mused about a mass shooting in the legislature, about the man who had to go all the way to the Ontario Court of Appeal to quash a municipality’s attempt to prosecute him for a solitary, non-violent protest in the town square, and about the author and publisher of a novel prosecuted for a brief and not remotely titillating description of the rape of a child. And the provisions invoked in these cases are all well-known, and not directed at dealing with a crisis. There is every chance that an emergency anti-disinformation law will result in harsh and arbitrary prosecutions. Even if the accused are ultimately acquitted, they will have undergone considerable stress and expense in the meantime. And, again ― for what?

Even in the short term, the harm of a law against plague-related “disinformation” is likely to outweigh what little good it might do. But the real damage it will do will occur in the medium and long term, as it becomes a template for widespread criminalization of statements deemed to be contrary to this or that state policy. The British MP whose ideas are inspiring the Canadian proposals is apparently drawing his own inspiration from “Germany’s laws governing online hate speech or France’s legislation countering disinformation during election campaigns”. And the report itself notes that the federal

government set up an elaborate system to watch out for attempts to disrupt last year’s federal election through disinformation, including a committee that brought together several departments and a special group chaired by the clerk of the Privy Council to sound the alarm.

Once the plague is over, it will be all too tempting to declare something else the next great public emergency, and to repurpose, instead of abolishing, the censorship mechanisms that allow government to silence those who question or undermine its response ― even if stupidly.

If there is there one thing we’ve learned from events of barely a year ago, it’s that clerks of the Privy Council are not always imbued with a great respect for constitutional propriety, or immune to the temptation to shill for their political masters. I would not trust one of them with the job of a Minister of Truth. Nor would I trust the public health authorities, which themselves at times seem quite confused about what the truth is. Indeed, this confusion only serves to underlie the fact that a government that is entitled to impose the truth on its subjects ― who can no longer be counted as citizens ― is also a government that is empowered to lie to them. No one, after, is allowed, and at length able, to tell the difference. The Canadian government needs to reverse course before it becomes a government of this sort.

The Common Good Administrative State

The Internet has been captivated by Professor Adrian Vermeule’s provocative essay in The Atlantic on so-called “common good constitutionalism” (CGC). CGC could be describes as part of a larger theory that co-blogger Leonid Sirota calls “right-wing collectivism,” which “blends support for using the power of the state to advance traditional moral values, a hostility to free markets, and nationalism.” CGC picks up the mantle in the legal realm, with Vermeule suggesting that “substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read in the majestic generalities and ambiguities of the written Constitution” should be the starting point for interpretation. These substantive principles include

…respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority.

CGC is clearly distinguishable from other political and legal theories of interpretation. It does not ally itself with originalism, in that originalism is not expressly designed to promote certain substantive political aims. On the other hand, CGC does not take freedom of the individual as the dominant good in a polity, as libertarians might. Instead, CGC intends to promote substantive conservative ideals in constitutional law.

This is a rough-and-ready description of CGC, and for those who want a more in-depth description of the theory’s substantive ends, Leonid Sirota has written a post on CGC here, and others have written well-justified critiques of Vermeule’s position. My goal in writing today is to suggest some implications of CGC for administrative law and the delegation of power to administrative agencies. I do not think that a state or court that sets out to accomplish what Vermeule suggests would be able to avoid delegating power to agencies—this Vermeule seems to acknowledge. The question is whether such delegation is desirable, and whether the conservative adherents of Vermeule’s theory would themselves accept an ever-growing administrative (rather than democratic) behemoth.

I first describe what Vermeule says about the administrative state in his controversial piece and a related piece. Then I address some implications of CGC for administrative law and delegation. My view is that CGC depends–crucially–on the administrative state to effectuate its aims. But there is no guarantee that the administrative state can be wielded to achieve those goals.

**

Vermeule spends the majority of his time talking about the ends associated with his CGC, and rightly so: these are controversial aims that run against orthodox opinion and established authority. However, he does devote some time to discussing how his CGC will affect the “structure and distribution of authority within government.” It is worth quoting the entirety of what Vermeule says about administrative agencies and bureaucracy; clearly, these institutions form the means to Vermeule’s ends:

As for the structure and distribution of authority within government, common-good constitutionalism will favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality with a view to promoting solidarity and subsidiarity. The bureaucracy will be seen not as an enemy, but as the strong hand of legitimate rule.

This is the entirety of what Vermeule says about bureaucracy in his piece, but there is a lot of meaning packed in these words. The last link in Vermeule’s comments links to another piece he wrote in which he discusses the ability of the administrative state to actively promote religion. In this piece, Vermeule suggests that “specialization” in administrative agencies is neither here nor there on religion, because “specialization is an intrinsically neutral institutional technology.” Vermeule says, on this basis:

So the administrative state, in my view, is an institutional technology that can be put to good or bad ends, and is no more intrinsically hostile to religion than is, say, the use of written rather than oral communication.

[…]

Let me distinguish two ways the administrative state could be put to beneficial use to promote religion. One is by clearing away legal and economic obstacles to religious practice, obstacles thrown up by other sorts of institutions; another is by directly and affirmatively promoting religious values.

For Vermeule, then, the picture seems to be of an administrative state actively advancing a certain discretionary agenda, perhaps unconstrained by constitutional or legal arguments that might confine that discretion, with the gargantuan task of promoting “solidarity and subsidiarity.” Unfortunately, no matter whether such a state is desirable, I do not find such a state practical in any sense of the term.

**

Consider, first, the supposition that the bureaucracy would be “strong” in itself, acting under a “strong” Presidency. This comment seems to recall the unitary executive theory, under which “whatever authority the executive has must be controlled by the President.” This includes bureaucratic agencies operating under the President. These sorts of agencies can be contrasted with independent agencies, typically styled as such because their heads are removable by the President only for cause (though see Vermeule’s piece here). On the unitary executive theory, bureaucrats fall under the control of the President, exercising his constitutionally-delegated Article II authority.

At first blush, the unitary executive theory might appear to be a normatively desirable way to control bureaucrats. After all, Article II is clear that it is the President who holds the executive power, and so any exercise of that power must be controlled by the President. This theory has infiltrated the Supreme Court of the United States’ cases, particularly the so-called “Peek-a-boo” case (PCAOB v Free Enterprise Fund).

But practically, I have always been skeptical that the unitary executive theory is any more than a constitutional ideal rather than a practical, empirical fact. That is, it is somewhat of a legal fiction. The President of course cannot control every executive agent. And this is where Vermeule’s use of the administrative state as an instrument of CGC will falter. The political science and public choice literature is rife with theories of bureaucratic “drift,” under which agency members might “drift” from the statutory authorization giving them power. The same type of executive drift is possible from the perspective of the President; where preferences diverge between career staff and bureaucrats may have ideas of their own. After all, “…agencies (often have different goals than politicians or different judgments about how best to achieve those goals.” (see Jacob Gerson’s piece here). In the United States, for example, Jennifer Nou has written about civil servant disobedience, an increasingly prominent phenomenon during the Trump era. What is the Vermeulian plan for a disruptive civil service, with its own preferences, and its own agenda? In other words, do we think a strong bureaucracy will fall in line to CGC?

For example, one form of contestation might arise when a CGC President wants to promote “subsidiarity.” What incentive is there for a national administrative agency to embrace the principle of subsidiarity in the exercise of its legal functions? This seems to be a situation where there could be a classic preference divergence, where in the halls of power there is probably an incentive to arrogate more and more power to federal authorities over local authorities.

The upshot of Vermeulian CGC is that it would, I suspect, necessitate a mass amount of delegation to administrative agencies (though Vermeule does not expressly say this). Keeping in mind that Congress already has a difficult time in deciding how to monitor its delegations of power, and given that the pace and breadth of delegation seems to grow year over year, I have no faith that a CGC-based state would be able to control the mass delegation it plans. And it is worthwhile to question whether more delegation to administrative agencies is at all desirable.

These concepts are not new, and are fairly simple to understand. But they represent general rules about how the bureaucracy operates. There is no guarantee that a strong bureaucracy, as Vermeule wants it to be, will be a faithful agent for the President.

**

But let’s assume that such a unity of identity and purpose is achievable—the administrative state, under this understanding, could become a tool for CGC and its programs. But this illustrates the problem with administrative power, based on it is upon contested notions of expertise and the “science of administration”: these tools can be easily co-opted and turned against CGC. On this account, the administrative state could be a self-defeating enterprise for CGC.

It is interesting, at least to me, that Vermeule calls the administrative state a neutral “institutional technology.” This might be strictly true, but it harkens back to an era when we spoke of ideas of strictly neutral expertise, or of the administrative state’s neutral status as a collection of good-faith individuals working towards the public good. One of the notions inculcated by the administrative law functionalists of a previous generation (like Wilson, Landis, and Goodnow) was the idea that administrative technology should be kept independent from the travails of politics. On this account, the administrative state might be described as a neutral technology.

But as I have written before (and as Vermeule seems to tacitly acknowledge), there is nothing technological or neutral about the administrative state. As mentioned above, agents within the state may have their own goals. But more importantly, if delegation is the so-called “engine” of the administrative state, then the currency we are really speaking about in administrative law is power. Power is what administrative agents act on when they create rules and make decisions. Courts are primarily concerned with whether these rules and decisions fall within the scope of the enabling power, and/or whether the power exercised by delegated officials is justified. Power, then, is given by the legislature to the delegated actor, and it is that power we should be concerned with.

Vermeule accepts that this power can be used to advance religious goals, or perhaps goals centred around the constitutional aims of CGC. But it is just as likely that this power can be co-opted by bureaucrats, courts, or politicians or judges of a different stripe, to advance an exact opposite version of the “common good.” As I wrote before:

Progressives have spent more than a generation asking courts to stay out of the business of administration, especially because of their supposed conservative and market-based political philosophy. This largely worked. The administrative state is now entrenched in many common law countries. But administrative power knows no ideology. Its only ideology is power, in a raw sense. That power—being judicial, legislative, and executive power merged—can be wielded by those with anti-progressive goals, or more dangerously, by those with authoritarian tendencies who seek to “throw things into confusion that he may ride the storm and direct the whirlwind.”

The number of times this has happened in administrative law history are too many to count: but consider the use of administrative agencies by FDR to advance the New Deal, and then the capture of these agencies some 50 years later by President Reagan to advance his deregulatory agenda. Recall that Chevron deference was introduced during the Reagan era, and served to assist the Reagan administration’s environmental agenda. The administrative state’s allyship with power makes it a dangerous tool that can be used for partisan or political ends that CGCers would find abhorrent. 

This is not, in itself, a bad thing. In fact, it subjects the administrative state—to the extent permissible with preference divergence—to the democratic accountability of elected officials. But let’s not pretend that the administrative state can be a neutral technology that always and everywhere can be transformed to CGC ends.

**

If the administrative state is fundamentally about power, then we should be careful about its exercise. This is the traditional way we view power in constitutional law and administrative law. For example, judicial review in Canada is concerned with surveillance of lower decision-makers in order to ensure precise conformity to their enabling statutes (see Wall, at para 13; Vavilov, at paras 108-110). The same is true in the United States. CGC, then, turns the typical discussion of judicial review of administrative action on its head. Instead of discussing how best to control administrative decision-makers through doctrine, CGC seems to harken back to an old era of administrative law theory, where there is an implicit trust in administrative decision-makers to simply do the right thing. For the reasons I’ve noted above, it is unlikely that this will ever be the case. But as co-blogger Leonid Sirota points out, there is a downfall to assuming that power can simply be trusted to a massive administrative state, advancing the “common good” (whatever that turns out to be defined as):

From this recognition there should proceed, as I repeatedly insisted my post on the corrupting effects of power, to a further acknowledgement of the importance not just of moral but also of institutional and legal constraints on power. We must continue to work on what Jeremy Waldron describes as “Enlightenment constitutionalism” ― the project of structuring government so as to separate out and limit the power of those whom Professor Vermeule calls “the rulers” and empower citizens. This project recognizes the need for power but also its temptations and evils, and the fallibility of human beings in the face of these temptations and evils. As James Madison, in particular, reminds us, we should strive to so design our institutions as to make these human weaknesses work for us ― but we can only do so if we are acutely aware of them.

Much administrative law is best conceived in this light. We are talking, after all, about the law which governs administrators—the judicial and legal controls that we apply to ensure the legality of state power. The worry is even greater in administrative law contexts, because Parliament can easily escape the strictures of judicial control by delegating power away. Judicial review, on this front, is concerned with managing the risks associated with delegated power, and the discussion should be the best doctrine to effectuate that concern. But CGC seems to unleash the administrative state, putting trust in the bureaucracy to achieve its aims. This, to my mind, is a classic mistake.

**

Of course, I cannot address all of the implications of CGC in this (relatively) short post. I have tried to focus on a few implications for the world of administrative law. The metes and bounds of CGC will, hopefully, be fleshed out in further academic debate and discussion. For now, though, I am skeptical that the mass delegation of power that CGC will likely entail to the administrative state will be worth the risks associated with that delegation.

 

 

 

Unconstitutional and Unconstitutional

Why delegating plenary taxing powers to the executive is wrong as a matter of constitutional principle and constitutional law

The government’s fortunately short-lived proposal to arrogate to itself the power to make regulations “that have the effect of repealing or imposing a tax, decreasing or increasing a rate or an amount of tax or otherwise changing the incidence of tax” generated a flurry of discussion about aspects of the constitution that are both fundamental and obscure. The most impressive contribution to this conversation is that of co-blogger Mark Mancini. Mark argues that, while a sweeping delegation of the power to tax to the executive is bad policy, it is not unconstitutional. Specifically, he addresses two arguments about it constitutionality: one based on section 53 of the Constitution Act, 1867, and one based on the unwritten principle of democracy.

For my part, I am not convinced by what Mark says about section 53, and I think that the principle of democracy is not the most important one to think about here. In my view, the Supreme Court’s interpretation of section 53 does not support ― and indeed give reason to challenge ― a delegation as sweeping as that which was apparently contemplated. The principle of responsible government ― not just democracy writ large ― also calls it into question. Before getting to these arguments about constitutional law, though, I think it’s important to emphasize that a plenary delegation of taxing powers is unconstitutional in a somewhat different sense.


Government action can be meaningfully said to be unconstitutional even if it contradicts no rule of binding constitutional law that could be enforced by the courts. This is most obviously so in the case of a breach of constitutional convention (assuming, that is, that the orthodox distinction between convention and law still holds), but arguably even in the absence of a violation of a precise rule, if government acts contrary to fundamental principle. It is in this sense that the governments (and Parliaments) of the United Kingdom and of New Zealand can be said to act unconstitutionally. The constitutions of these polities are not entrenched and judicially enforceable, but they are no less real, and susceptible of being contravened in a way that calls for denunciation in constitutional terms.

One of the fundamental principles of the Westminster constitutions since at least 1688 is that of Parliamentary control over taxation. Mark refers to the post-Glorious Revolution constitutional settlement by saying that “if the Bill of Rights of 1688 meant anything, it meant that Parliament came into its own as the controller of the executive; it became a sovereign body” ― but that’s not quite right. The references to Parliamentary control of the executive in the Bill of Rights are more precise than a general assertion of sovereignty. They do not focus on Parliament’s power to make laws ― that was a given, and the Crown’s inability to make new law was recognized in the Case of Proclamations 80 years earlier. Nor do they involve a general control of the executive ― that would only come with responsible government, which developed over a long period of time starting decades after the Glorious Revolution and not taking a final form until the 1830s.

What the Bill of Rights 1688 did do was to impose firm prohibitions on the Crown “suspending laws”, “dispensing with laws”, and “levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted”. Now, “consent of Parliament” overrides these restrictions, as it obviously does that on the Crown’s law-making power. Acting “by and with the advice and consent” of Parliament, the Crown can make and change law, and it can impose and abolish taxes. The question, though, is whether this consent can be given prospectively, in advance, and in the form in effect of a blank cheque. After all, granting the Crown, acting on the advice of its Privy Council (and, in practice, of the cabinet) rather than of Parliament, the power of “repealing or imposing a tax, decreasing or increasing a rate or an amount of tax” amounts to nothing else.

In my view, the principle behind article 4 of the Bill of Rights ― the one dealing with “levying money without grant of Parliament” ― requires specific authorization on an ongoing basis. Parliament sought, and succeeded in gaining the ability, to actually keep tabs on the executive’s finances. It did not do so to simply let the executive run itself as if 1688 hadn’t happened. “The Crown can imposes whatever taxes and imposts it pleaseth, for ever and ever” would not be consistent with the purpose of article 4, and the contrary idea wouldn’t have occurred to anyone until the development of responsible government, and indeed well after. But even now, it is not a sound idea. Parliamentary scrutiny of taxation must be constant to be effective. It cannot just happen once in a blue moon, and the vagaries of question time are not a sufficient substitute for accountability mechanisms focused on taxation and spending.

The proposed delegation of taxing power to the executive was not, of course, for ever and ever. But it would have lasted almost half the duration of a normal Parliament, and longer than hung Parliaments typically survive in Canada. And it was, of course, quite uncabined ― the executive really would have been able to do anything it pleased. In my view, it is absolutely contrary to the principle and spirit of article 4 of the Bill of rights 1688, and so not merely stupid, but actually unconstitutional, at least in the sense of being inconsistent with the constitution’s underlying commitments. Whether the courts would have been able to do anything about this is a separate question, and a moot one at this point.


Despite its mootness, I turn now to the question of the constitutional legality of the government’s proposal. As noted above, the key constitutional provision here is section 53 of the Constitution Act, 1867, which provides that “Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons”. The question is whether taxes imposed pursuant to delegation, and one as broad as the one described above, meet this requirement.

It may be worth pointing out that the exact status of section 53 is somewhat mysterious. The Supreme Court has long held, as Justice Iacobucci put it in Ontario English Catholic Teachers’ Assn v Ontario (Attorney General), 2001 SCC 15, [2001] 1 SCR 470, that “[s]ections 53 and 54″ ― of which more shortly ― can be amended by Parliament”. [68] Yet Justice Iacobucci went on to say that “there is a constitutional guarantee of ‘no taxation without representation'” ― for which section 53 is (rightly) taken to stand ― “in Canada”. [70] I’m not sure how these two statements are to be reconciled. In any event, the position seems to be that, at least so long as section 53 has not in fact been amended, failure to comply with it will result in the invalidity of non-compliant legislation, rather than being taken as (pro tanto) implied repeal. 

So would the proposed delegation comport with section 53? In OECTA, Justice Iacobucci offered the following general principle for assessing delegations of the power to tax:

The delegation of the imposition of a tax is constitutional if express and unambiguous language is used in making the delegation. The animating principle is that only the legislature can impose a new tax ab initio. But if the legislature expressly and clearly authorizes the imposition of a tax by a delegated body or individual, then the requirements of the principle of “no taxation without representation” will be met. In such a situation, the delegated authority is not being used to impose a completely new tax, but only to impose a tax that has been approved by the legislature. [74]

Justice Iacobucci then went on to explain why the delegation at issue ― a grant of power to a Minister to set the rates of a school tax ― was acceptable:

The [impugned statute] … expressly authorizes the Minister of Finance to prescribe the tax rates for school purposes.  When the Minister sets the applicable rates, a tax is not imposed ab initio, but is imposed pursuant to a specific legislative grant of authority.  Furthermore, the delegation of the setting of the rate takes place within a detailed statutory framework, setting out the structure of the tax, the tax base, and the principles for its imposition. [75]

There is, then, a crucial distinction between the imposition of taxes ab initio and the imposition of “a tax that has been approved by the legislature”. Justice Iacobucci’s discussion of the case before him at least strongly suggests that, to count as “approved by the legislature”, the tax ― at least its purpose, but probably also (some of?) its “structure”, “tax base”, and “principles for its imposition” ― has to be described with some specificity.

The proposed delegation of a blanket authority to impose new taxes and to “chang[e] the incidence of tax” is too vague to meet these requirements. It contemplates that taxes might be created, but does not explain to what end they must be levied or on what principles. It amounts to an authorization for the executive to create taxes ab initio ― but OECTA suggests that such an authorization cannot be given, at least, without repealing section 53 of the Constitution Act 1867, and perhaps at all.

Mark writes that, historically, the Supreme Court “has permitted extremely broad delegations of power—especially in crisis situations—so long as the executive remains responsible to Parliament for the exercise of these extraordinary powers”. He recognizes that the leading cases on this, In re Gray, (1918) 57 SCR 150, and Re: Chemicals, [1943] SCR 1 were not decided in the context of taxation, but argues that the principle they stand for, which is that (to quote Mark) “so long as Parliament retains control over the delegated power—so long as it does not ‘abdicate’ its power (Gray, at 157) there is no legal concern”, is applicable.

I’m not so sure. Taxation really is different from other types of legislation. This is where section 54 of the Constitution Act, 1867 comes in. It provides that

It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.

I feel on shaky ground here, and would welcome correction, but I wonder if the consequence of this provision is not that unlike with normal legislation, where ― in theory, since in practice the executive is actually driving the legislative agenda ― Parliament is indeed free to resume control, when it comes to tax matters, delegation to the executive is a one way street. Once the executive gets its hands on a broad delegated authority to tax, it need not to “recommend” any legislation undercutting this authority by levying taxes not created by regulation to the House of Commons, and Parliament is then handcuffed for as long as the delegation runs. (This also makes delegation of taxing authority to the executive very different from delegation to, municipalities ― municipalities aren’t able to control the enactment of new tax laws by provincial legislatures.)

Let me finally address the other point Mark makes, about unwritten constitutional principles. As explained here not long ago, I am much less skeptical about the use of such principles in judicial decisions than many of my fellow scholars, including Mark. That said, I agree that the principle of democracy is vague ― democracy can take any number of different forms, and we must be careful to implement the specific form of democracy provided for by the Canadian constitution, and not some idealized version of what that principle might mean.

Yet here the relevant principle is not democracy generally, but the particular form of democracy that is at the heart of the Canadian constitutional order: responsible government. In turn, money votes, of which votes on tax bills are one (but not the only) sort are at the heart of responsible government. Winning such votes is how a ministry demonstrates the continued confidence of the House of Commons. Delegation of taxation powers to the executive allows it to avoid these votes, and so arguably undermines, although admittedly it does not completely subvert, this fundamental principle.

What, if anything, the courts might do about this is not an easy question. Courts are sometimes ― although not always, as I have argued in the post linked to above ― reluctant to enforce constitutional principles against legislation. But two precedents are worth thinking about. First, there is Justice Beetz’s warning, in Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2, that there may be limits to a provincial legislature’s ― or Parliament’s ― ability to “do anything it pleases with the principle of responsible government itself”. (46) Justice Beetz is evasive as to the extent and source of these limits, but he does suggest that the legislatures (and Parliament) may lack “power to bring about a profound constitutional upheaval by the introduction of political institutions foreign to and incompatible with the Canadian system”. (47) And second, there is the much more recent Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, where the Supreme Court found that an entrenched “constitutional architecture” limited the ability of Parliament to bring about constitutional change by ordinary legislation. If I am right that this architecture consists of constitutional conventions, it may well protect the principle of responsible government against fundamental interference, as Justice Beetz suggested.


In short, the delegation of plenary taxing authority to the executive is doubly unconstitutional. It is unconstitutional, first, in the British sense of the word ― as contrary to the constitution’s logic and fundamental commitments. It is unconstitutional, second, in the Canadian sense of the word, as contrary to an express provision of the constitution, and arguably also to its legal underlying principles.

It was not merely stupid, or a bad policy. It was an attempt at a serious breach of the basic rules of our political order. As Keith Whittington has recently written over at the Volokh conspiracy, “[t]he normal logic of political rent-seeking and incompetence does not magically disappear in a crisis, though we might have to be more tolerant of such political failings in order to deal with a fast-moving situation”. The now-defunct proposal was not merely rent-seeking, but a power-grab, perhaps an unprecedented one. The present moment may mean that punishment for it must be delayed, but it ought to count against its perpetrators.

Stupid. But Constitutional.

The Globe and Mail reports that the government is seeking to introduce wideranging methods to permit the Cabinet to raise revenue. However, this report has now evolved, and the proposed measures have been walked back. But the original Globe article said:

One section of the bill grants cabinet the power to change taxation levels through regulation, rather than through legislation approved by Parliament. It states that cabinet will have this power during the period “before 2022.”

“For greater certainty, a regulation made under this section may contain provisions that have the effect of repealing or imposing a tax, decreasing or increasing a rate or an amount of tax or otherwise changing the incidence of tax,” the bill would have stated.

Let’s assume that this reporting was accurate. Let’s also assume that there are more provisions in the bill that set out some more detail on the tax (based on the words “[f]or greater certainty”). In my view, and despite opposing arguments from unwritten principles, I think this Bill would have likely been constitutional. I first address my argument that s.53 of the Constitution Act, 1867 would likely not have been abridged; and second, that the presence of unwritten principles does not change this conclusion.

***

While this Bill has now been walked back (and probably for very good reason), the old proposal would have been constitutional, because (at least at face value) it clearly delegated taxing power.

Let’s start with the basic point. Section 53, as noted in the seminal Eurig Estate case, encodes the principle of “no taxation without representation, by requiring any bill that imposes a tax to originate with the legislature” (Eurig, at para 30). The restriction here is simple: s.53 prohibits the executive from imposing new taxes ab initio “without the authorization of the legislature” (Eurig, at para 31).

Notably, however, this does not mean that the executive cannot raise taxes. Merely, the executive’s ability to do so is parasitic on clearly-delegated legislative authority. As John Mark Keyes notes in his work Executive Legislation, “[s]ection 53 does not set up an absolute bar to the delegation of taxation powers” (at 122). If it is clear that Parliament has delegated taxing authority to some executive actor, there is no reason to impugn the delegation, constitutionally. This means that executive legislation raising revenue will be constitutionally proper if it does two things: (1) the legislation is enacted pursuant to a delegated power; (2) it is clear that the delegation is a delegation of taxing authority.

Most of the conceptual work is done at the stage of determining whether the delegation is clear. And on that note, the Supreme Court has spoken: consider its opinion in the Ontario English Catholic Teachers Assn case, at para 74:

The delegation of the imposition of a tax is constitutional if express and unambiguous language is used in making the delegation. The animating principle is that only the legislature can impose a new tax ab initio. But if the legislature expressly and clearly authorizes the imposition of a tax by a delegated body or individual, then the requirements of the principle of “no taxation without representation” will be met. In such a situation, the delegated authority is not being used to impose a completely new tax, but only to impose a tax that has been approved by the legislature. The democratic principle is thereby preserved in two ways. First, the legislation expressly delegating the imposition of a tax must be approved by the legislature. Second, the government enacting the delegating legislation remains ultimately accountable to the electorate at the next general election.

The point of the clarity principle, then, is to ensure that the executive is actually acting pursuant to lawfully delegated authority. So long as the delegating provision is clear, there is no constitutional basis to assail it.

Additionally, and as noted above, I am making an assumption that this is not the only operative delegating provision. In other words, it may be a requirement that a bare delegation of taxing authority must be couched in language that sets out the tax’s “structure, base and principles of imposition” (see Keyes, at 124; see also Ontario English Teachers Association, at para 75). I am assuming that this is the case here. But if my assumption is wrong, this becomes a closer case. If the delegation says it is delegating a tax, is that enough on the Supreme Court’s terms? Or is a framework a requirement?

If only the word “tax” is required, or if the taxing power is cabined by other provisions (as it appears to be in this case), then the case for constitutionality is strong. As such, this statute seems to clearly delegate power to the executive to take any number of actions with respect to taxes. Since that authority is lawfully delegated, it likely cannot be impeached in a constitutional sense. And so long as the executive remains responsible for these powers, there is no sense in which it could be said that the executive is evading parliamentary scrutiny.

***

More broadly, the Supreme Court’s comments on delegation also support the constitutionality of this measure. Though these comments do not relate to taxation, they do underscore the broader context of how the Court has historically viewed delegated power. In short, the Court has permitted extremely broad delegations of power—especially in crisis situations—so long as the executive remains responsible to Parliament for the exercise of these extraordinary powers. The same goes in this situation.

I highlight two cases to this end. In Re Gray, the context was WWI. Under the War Measures Act, Parliament granted power to the executive under a so-called Henry VIII clause; the power to amend or repeal laws, delegated to the executive. The Court upheld this delegation. It said, even though the delegation was extensive, Parliament has not abandoned control over the executive carrying out these powers, and the Ministry remained “responsible directly to Parliament and dependent upon the will of Parliament for the continuance of its official existence” (Gray, at 171). Therefore, so long as Parliament retains control over the delegated power—so long as it does not “abdicate” its power (Gray, at 157) there is no legal concern.

Similarly, in the Chemicals Reference, another broad delegation was at issue. The delegated power permitted the Ministry, in service of WWII efforts, to make rules allowing censorship, control of transportation, forfeiture and disposition of property, and arrest and detention. Again, the Court upheld the delegation :

Parliament retains its power intact and can, whenever it pleases, take the matter directly into its own hands. How far it shall seek the aid of subordinate agencies and how long it shall continue them in existence, are matters for. Parliament and not for courts of law to decide. Parliament has not abdicated its general legislative powers. It has not effaced itself, as has been suggested. It has indicated no intention of abandoning control and has made no abandonment of control, in fact. The subordinate instrumentality, which it has created for exercising the powers, remains responsible directly to Parliament and depends upon the will of Parliament for the continuance of its official exist­ence (Chemicals Reference, at 18).

While these cases might not be directly applicable in the taxation context, they do shed light on the underlying theory that was also present in the Ontario English Catholic Assn case. That is, so long as Parliament controls the delegation and the executive is responsible for the exercise of delegated powers, there is no way to impeach the delegation of power.

***

I do want to address one potential argument, that is primarily made by Alyn (James) Johnson, in his delegation piece in the UBC L Rev. That argument is based on unwritten constitutional principles (and perhaps constitutional architecture) set out in cases like the Secession Reference and the Senate Reference. One might make the argument that constitutional architecture—the structure and separation of the legislature and the executive—should serve here to prohibit the legislature from delegating its power away in this fashion to the executive. Additionally, Johnson makes the argument primarily based on the principle of democracy: he contends that a “marginalized legislature delegating un-cabined power to willing executive instrumentalities is incoherent and unprincipled.” (Johnson, at 823). More specifically, legislatures are a place for discussion and deliberation; they are fora for democratic contention; but if delegation is widespread, the political/democratic process is lost, and people lose “authorship” over laws (Johnson, at 879-880). Moreover, one could make an argument from the separation of powers: it fundamentally transforms the functions of each of the branches for widespread delegation of this sort to be permitted.

My initial impetus is to be skeptical of unwritten principles and arguments from constitutional structure. For one, the role of unwritten principles is somewhat limited: they may have “normative force” (Quebec Secession Reference, at para 54) they also cannot be used to attack the content of legislation (or so the Court held with respect to the Rule of Law: see Imperial Tobacco, at para 59). In whole, while it could be true that unwritten principles could strike the content of statutes, their role appears to be limited; they cannot, for example, “dispense with the written text of the Constitution” (see Quebec Secesstion Reference at para 53; see also literature questioning the extent of use of unwritten principles: Jean Leclair, “Canada’s Unfathomable Unwritten Constitutional Principles” 2002 27 Queen’s LJ 389 at 400).

Moreover, unwritten principles arguments lack the coherence and structure of traditional doctrinal arguments, and in my view, can be used to support whatever outcome a person wishes. For example, in my view, the principle of “democracy” for example, endorsed by the Supreme Court, might just as well support a Parliament taking an expansive view of its ability to delegate, and delegating widespread authority to the executive. After all, the Court has said that “regulations are the lifeblood of the administrative state” (see Hutterian Brethren, at para 40), and if the Bill of Rights of 1688 meant anything, it meant that Parliament came into its own as the controller of the executive; it became a sovereign body: “each successive delegation of legislative power has been a fresh recognition of that sovereignty” each delegation “a victory at the expense of the Crown” in which the Crown gives up pretensions to legislate by itself (see C.T. Carr, “Delegated Legislation: Three Lectures” at 48-52; see also A.V. Dicey, at Introduction to the Study of the Law of the Constitution, at 6 ). What we are talking about is a sovereign Parliament, and as the Supreme Court has recognized, “parliamentary sovereignty remains foundational to the structure of the Canadian state: aside from constitutional limits, the legislative branch of government remains supreme over the judiciary and the executive” (Pan-Canadian Securities Reference, at para 49). If that is the case, Parliament can just as well delegate its power away if it is sovereign.

**

In conclusion, I am not trying to say that this law is a good idea. Indeed, there are abstract worries we might think about: what about the separation of powers? What about the institutional functions of each of the branches of government? There are also significant policy reasons to dislike the old proposal. Are these powers proportionate and strictly tailored to their purpose, for example?

Nonetheless, I believe the legal case for a statute of this sort was at least facially strong.

UAlberta Pro-Life: Another Nail in the Doré Coffin?

On the Ontario Bar Association website, Teagan Markin describes and analyzes the recent UAlberta Pro-Life Case, 2020 ABCA 1. I had meant to blog on this decision when it came out, but life intervened, so I thank Markin for reminding me of the case. In the case, Watson JA employs a creative use of the Doré test, similar to how the Ontario Court of Appeal’s approach in Ferrier (which I blogged about here). Both Ferrier and UAlberta Pro-Life “bifurcate” the standard of review, so that the definition or scope of the Charter right at issue is reviewed on a correctness standard, while the right’s application in a proportionality analysis is reviewed on a reasonableness standard.

While I understand the impetus to clarify what the Court calls the “unelaborated language” of Doré (UAlberta Pro-Life, at para 166), I see bifurcation as only a medium-term solution because there are more fundamental issues between Doré and Vavilov. I actually see bifurcation as introducing more problems than it solves. It raises tricky issues about what the scope of a Charter right is versus its application; it is plainly inconsistent with Doré ; and if one takes Vavilov seriously, bifurcation arguably does not go far enough. If constitutional questions are so connected to the Rule of Law that they require consistent answers from the courts, bifurcating the standard of review is at best an intermediate solution to a more serious problem: Doré is simply inconsistent with Vavilov, on its own terms.

In this post, I explore this argument.

***

The UAlberta Pro-Life Case involved two appeals. The first appeal concerned a 2015 demonstration by the UAlberta Pro-Life group. The Pro-Life group complained to the University that counter-protests erected in response to the pro-life protest “breached the University Code of Student Behaviour” [4]. This first issue, while interesting, is not in my cross-hairs for this post.

The second issue relates to a request by the Pro-Life group for permission to hold another demonstration in early 2016. The University determined that the group would be permitted to hold the event, so long as the group agreed to defray the costs associated with security for the event, estimated to be around $17 500. The Pro-Life group “said the cost was prohibitive and amount to denial of their exercise of freedom of expression” [5].

On judicial review, the chambers judge, relying on Doré , concluded that the University decision fell within “the range of possible acceptable outcomes” [156] because even though the costs of security impacted Pro-Life’s freedom of expression, “[t]hat impact had to be balanced against other interests” [156].

For the Court of Appeal, a number of issues presented themselves, including the thorny issue of whether the Charter applies to universities [148-149]. However, for our purposes, the relevant part of the decision dealing with the standard of review and the articulation of the Doré test are most important. The Court, early in the decision, says the following:

The standard of review as to the definitional scope of a Charter right or the definitional scope of s.32 of the Charter must be correctness. These are transcendent questions of law not resting within the enabling legislation of any specific decision-maker…By comparison, for issues of fact or discretion, the reviewing court is to “tread lightly”[30].

The Court, later in the decision, went on to explain that since the chambers judge’s error in applying the Doré test (which I will address below) “was erroneous on a Constitutional legal test, it is reviewed for correctness and it is reviewable as incorrect” [169].

Why is the articulation of a constitutional test a matter for correctness review? The Court couched the answer to this question in Vavilov:

In this respect, the Supreme Court in Vavilov recently referred briefly to Doré and appeared to distinguish review of the “effect” of a judicially reviewable administrative ruling from a specific finding of unconstitutionality of a statute on the basis of Charter inconsistency. The Supreme Court said “correctness” applied to the latter. The Court, however, did not state the standard of review for “effect” cases, and did not erase the above passages from TWU 1 and TWU 2. Significantly, the Court also reinforced at para 53 and elsewhere in their reasons, that correctness review applies to any determination of law linked to respect for the rule of law name ly “questions: constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies.” I read, therefore, Vavilov as being consistent with the approach taken here [170].

With the standard of review set out, the Court also looked at the chambers judge’s application of the Doré test. There were two problems with this test, in the Court’s eyes: first, the chambers judge failed to articulate the proper s.1 limit, and second, she failed to properly allocate the proper burden of proof. On the first issue, the Court concluded that “the limitation must, in my view, be demonstrably justified in a free and democratic society. Although that expression about demonstrable justification does not figure prominently in the cases from Doré onward, it is not erased from the Charter as linguistic frill” [161]. Since the chambers judge failed to ground her analysis in the language of s.1, she “applied a utilitarian approach” that failed to “apply the correct criteria” [159].

On the second issue of onus, the Court concluded that even under the Doré administrative law approach, “the onus on proving the ‘section 1 limit’ on expression freedom…should be on the state agent” [161]. This suggestion is reminiscent of both McLachlin CJC’s and Rowe J’s opinions in Trinity Western, where they suggested friendly amendments to the Doré framework. But Doré was quite unclear on this point, as a matter of first principle.

Overall, the Court chastised the Doré framework, concluding that “[w]ith respect, Doré was expressed in elastic terms after which incorrect readings of Doré exposed Charter rights and freedoms to an inadequate level of protection” [166].

***

Bifurcation is not necessarily a new way to deal with issues of Charter rights. As Professor Daly points out, it is an approach that appears in the Supreme Court’s duty to consult jurisprudence (particularly, look at Rio Tinto and Moldaver J’s opinion in Ktunaxa). Ferrier, as I’ve written about before, is also an example of this approach. One understands the impetus for the Court of Appeal’s reasoning in UAlberta Pro-Life, from both a first-principles perspective and from a Vavilov perspective. From first principles, Doré , to many, has turned out to be a way to disempower Charter rights by reference to untethered “values,” and to let the government off scot-free, escaping the traditional justification it must bear under s.1. Indeed, as noted above, this was the impetus behind McLachlin CJC’s and Rowe J’s opinions in Trinity Western. For the then-Chief Justice, bifurcation seemed on the cards, because “the scope of the guarantee of a Charter right must be given a consistent interpretation regardless of the state actor, and it is the task of courts on judicial review of a decision to ensure this” (Trinity Western, at para 116). For Rowe J, the focus on values could lead to “unpredictable reasoning” (Trinity Western, at para 171) that, one can imagine could lead to under-powered Charter rights.

As the then-Chief Justice seems to understand, reasonableness does not help the situation. It means that the initial scope of a right might be given inconsistent (but reasonable) interpretations by different decision-makers. These inconsistent interpretations could be given even more power by sloppy “values-based” reasoning that divorces Charter analysis from the actual text of Charter rights. Bifurcation solves this problem. It forces courts to give a consistent interpretation, through correctness review, on issues of the scope of Charter rights. Conceivably, such decisions transcend the scope of particular statutory objectives and contexts, and go to the force of Charter rights in the abstract. Correctness review, then, adequately guards the consistent application of the scope of particular Charter rights in different statutory contexts.

But Vavilov, as I have written before, could also support this sort of bifurcation based on the principle of consistency. Recall that while Vavilov did not squarely address the Doré framework (see Vavilov, at para 57), it did expand on what the Rule of Law requires in the context of selecting the relevant standard of review. Sometimes, to the Court, “respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions…” (Vavilov, at para 53). This is particularly so with constitutional questions, where

[t]he application of the correctness standard…respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer is necessary (Vavilov, at para 53).

The scope of Charter rights, as the then-Chief Justice noted in Trinity Western, requires consistency. Correctness review on the scope/definition of Charter rights would accomplish that goal, at least in theory.

But bifurcation presents two problems: both from the Doré perspective and from the perspective of Vavilov. Like it or not (and I don’t) Doré is a binding precedent of the Supreme Court. As Markin argues in her post, Doré —and most recently, Trinity Western—were largely silent on this sort of bifurcation of the standard of review. While it has been recognized that the Doré test requires two distinct steps (1) “whether the administrative decision engages the Charter by limiting Charter protections” and (2) proportionate balancing (see Trinity Western, at para 58), the Court in both Doré and Trinity Western only said that the standard of reasonableness applies to decisions taken by decision-makers that impact Charter rights (see Trinity Western at paras 56-57; Doré , at para 56-57). It did not mention bifurcation as a proper approach. Indeed, Doré was an attempt to comprehensively address this standard of review issue—indeed, it arose, because of the Court’s appraisal of a “completely revised” relationship between the Charter and administrative law (Doré , at para 30). One would have expected such a comprehensive approach to mention bifurcation if it indeed was a doctrinal solution that the Court could endorse.

This, of course, does not mean that Doré is on solid ground. Indeed, much of Vavilov can be read as a way to undermine Doré , as I wrote about here. And on this front, one could make a convincing argument that bifurcation simply does not go far enough in light of Vavilov. Vavilov says that issues involving the Constitution should be reviewed on a correctness standard. Again, it is because these questions require consistency from the courts, as courts are in the unique position of being guardians of the Constitution (see Hunter v Southam, at 155: “ Ell v Alberta, at para 23; United States v ; Kourtessis v MNR, at 90). Based on this idea, one could convincingly argue that the proportionality analysis—not just the issue of the scope of Charter rights—should also be reviewed on a correctness standard.

This is true for a few reasons. First, Doré was premised on a functional idea of expertise as a reason for deference. The idea was that, in the context of statutes under which administrative decision-makers receive power, administrative decision-makers are best suited to be able to balance the Charter values at play in light of the statutory objectives (see Doré , at paras 35, 46). Vavilov resiles from expertise as a reason for applying the reasonableness standard reflexively (Vavilov, at para 31). Now, expertise is a reason for deference, but only after reasonableness has been selected for other reasons going to legislative intent (Vavilov, at para 31). There is no warrant to impose a different standard when it comes to constitutional questions, even those that arise in statutory contexts with which decision-makers may be familiar. That is, if we do not presume expertise on run-of-the-mill, humdrum legal questions, then why should we presume it in the context of constitutional questions? My uneducated guess is that most decision-makers do not have expertise on constitutional matters, even if they arise in the context of familiar statutes. And if expertise is no longer a reason for reflexive deference, then the rug is pulled out from Doré as a matter of first-principles. Now, courts should not lessen the robustness of review based on questions of expertise. Vavilov, then, lowers the importance of functional reasons for deference.

Second, proportionality still counts as a “constitutional question” that should be subject to Vavilov’s comments about the Rule of Law. One might argue that there is a difference in kind between the scope of Charter rights and their application/balancing in the proportionality context. For one, the scope of a Charter right is a pure question of law, and application considerations are probably questions of mixed fact and law, to which we might owe deference. But there is no reason to think this strict division will hold all the time. In the first place, I am skeptical of the ability of courts to reliably decide what is an issue of “scope” and what is an issue of “application.” Indeed, constitutional challenges as against statutes largely depend on their facts—this is borne out if one looks at cases like Bedford and Carter. And yet, in statuory contexts, we apply a correctness standard (see Vavilov, at para 57). We might lessen the force of a correctness standard in respect of particular facts—ie the margin of appreciation—but that margin is not always applicable. Neither it should be in the Doré context.

All of this to say, the UAlberta Pro-Life Case is a good illustration of the ways in which courts are trying to navigate Doré post-Vavilov. As noted above, I understand the impetus behind bifurcation as a medium-term way to bridge the gap between Doré and Vavilov. But I still see fundamental strains between Doré and Vavilov that bifurcation cannot solve.

The Limits of Self-Government

Indigenous self-government cannot dispense with the Rule of Law and with democracy

In his post “On the Rule of Law, Blockades, and Indigenous Self-Government“, co-blogger Mark Mancini pondered the relationship between Indigenous legal orders and self-government on the one hand, and the Canadian constitution, including the Rule of Law principle that (along with certain others) underpins it, on the other. Mark wrote that

it may be the case that the Rule of Law as currently understood in Canada is not applicable to Indigenous peoples and their systems of government. In other words, we may require an approach which recognizes distinctive Indigenous self-government, as a constitutional matter. 

These comments are, as always, thought-provoking but, in my view, one should be wary of claiming that the Rule of Law is not relevant to Indigenous peoples. One should also be realistic about the difficulties involved in translating the ideal of Indigenous self-government into law, and about the limits of this enterprise.

I hasten to make clear that, as Asher Honickman and I have said in a National Post op-ed also dealing with the Rule of Law and its relationship to the ongoing protests, I regard the aspiration to Indigenous self-government as fully justified. It is, we wrote, “possible and highly desirable … for the perfectly legitimate aspirations of Indigenous Canadians to self-government to be recognized and given effect within the Canadian legal system”. On this, I agree with Mark. Indeed, our disagreement may be more a matter of emphasis and wording than of substance, but I thought it important to make it clear where I stand.


I am, of course, not Indigenous myself, and claim no expertise at all in any particular Indigenous legal system. However, I do endeavour to engage with Indigenous legal systems when I teach legal philosophy. More specifically, my legal philosophy course is entirely devoted to idea of the Rule of Law (sorry, Hart and Dworkin aficionados!), and one of the classes deals with indigenous customary systems ― notably tikanga Māori, but also the legal systems of Indigenous peoples in Canada, as presented in Jeremy Webber’s very interesting article on “The Grammar of Customary Law“. To repeat, this doesn’t make me an expert ― sadly, one cannot be an expert on everything one teaches ― but I do have some thoughts on the relevance of the Rule of Law to indigenous legal systems.

In a nutshell, it seems to me that, for all the very important differences between these systems and those based on the common law or the civil law, many concerns with which we engage under the heading of the Rule of Law are relevant to indigenous legal orders. Notably, through public re-enactment and stroy-telling at meetings involving entire communities, Indigenous legal systems ensured that their laws would be publicly known and understood, and that they would be relatively certain and predictable, to guide community members. Moreover, these laws, no less than those enacted in Western legal systems, tend to be more or less coherent, and to impose obligations that are possible to perform; if anything, one suspects that customary law refined over the generations does better at meetings these Rule of Law requirements than deliberately, and often stupidly, enacted law. And, in their own ways, Indigenous legal systems provided opportunities for those subject to them to be heard and to make their views on the law known to the rest of the community. (Indeed, Professor Webber writes that “[a]mong many North American indigenous peoples … [t]here is great reluctance to impose a particular interpretation of the law either on any member … or on someone of high rank”. (607))

I do not mean to take this too far. Of course, the way the Rule of Law ideals are implemented in communities that number a few hundred people engaged in hunting, gathering, and perhaps subsistence agriculture cannot be the same as in larger populations made wealthier by division of labour. Writing and the existence of people who specialize in knowing and applying laws make a huge difference ― not least by requiring a more explicit articulation and conscious implementation of Rule of Law requirements that can remain implicit in Indigenous societies. Some standard Rule of Law concerns, such as the one with retroactivity, crucial in a system where law is believed to be deliberately made, is meaningless in one where law is transmitted ― not unchanging to be sure, but endlessly adapted ― from time immemorial.) On the procedural side, they methods Indigenous legal orders employ for the resolution of disputes and the determination of individual or group rights and obligations do not necessarily look like the formalized proceedings of common law or civilian courts (any more than substantive rights and obligations they concern offer exact parallels with those recognized by the common or civil law).

But the points of commonality are real too. Needless to say, that’s not because Indigenous Canadians or Māori read Lon Fuller’s The Morality of Law or Jeremy Waldron’s “The Rule of Law and the Importance of Procedure”. The people who, over the centuries, developed European legal systems hadn’t read them either. But the human values that have long helped shape legal systems and partly mold them in accordance with what, in 19th century Britain, came to be called the Rule of Law, are relevant on Turtle Island and in Aotearoa as much as at Westminster and in Paris. When Albert Camus wrote, in The Fall, that “there is no worse torment for a human being than to be judged without law”, he was speaking a universal truth, or something close to it ― not just stating a culturally contingent fact about mid-20th-century Parisians hanging out in Amsterdam bars.

All that to say, so far as I can tell, the Rule of Law is not at all a principle alien to Indigenous legal traditions. While they probably did not reflect on it as explicitly as the Western legal tradition eventually did, they implemented it ― in ways that were appropriate to their own circumstances. But the circumstances in which Indigenous law would operate in the 21st century, even under self-government, would not be the same as they were before contact with Europeans; in some ways, things have changed irrevocably. More deliberate attention to the requirements of the Rule of Law will probably be in order ― not only, or perhaps even primarily, in order to satisfy some externally imposed requirement, but to give effect to the values implicit in the Indigenous legal traditions themselves.


This brings me, however, to another point that is missing from too many discussions of Indigenous self-government at the moment, including Mark’s. Indigenous self-government (which, to repeat, I would support) ought to respect some fundamental constitutional principles, whether they can be traced to Indigenous legal traditions ― as the Rule of Law can, I think, at least to some extent ― or not. I am thinking, in particular, of the principle of democracy, but also of the protection of minority rights.

In the conflict that arose out of the court injunctions in favour of the Coastal GasLink pipeline, some hereditary Chiefs of the Wet’suwet’en have claimed special authority. To my mind, for any such authority to be enshrined in or authorized by the arrangements of Indigenous self-government, whatever their exact legal status, would be simply inconsistent with the Canadian constitutional order. Of course, Canada is a monarchy. But it is a constitutional monarchy in which, as the old catchphrase has it, the Queen reigns but does not rule. Almost all of the Crown’s powers are effectively held by the Houses of Parliament (primarily the elected House of Commons) or provincial legislative assemblies, or by ministers responsible to the House of Commons or legislative assemblies. The exercise of the Crown’s remaining “reserve” powers is constrained by constitutional conventions.

Any other arrangement would be intolerable. As the Supreme Court observed in Reference re Secession of Quebec, [1998] 2 SCR 217, “the democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated”, [62] and “a sovereign people exercises its right to self-government through the democratic process”. [64] The Court further explained that it “interpreted democracy to mean the process of representative and responsible government and the right of citizens to participate in the political process as voters”. [65]  This is, of course, consistent with Canada’s commitments under international law, for example under Article 21(3) of the Universal Declaration of Human Rights, which provides that

The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

I fail to see how Indigenous self-government can be constituted on any other basis. Perhaps this conception of democracy is not part of the tradition of all, or indeed of any, Indigenous nations. After all, its history in anywhere in the world is very short indeed. This simply does not matter ― for any polity in the 21st century. One could call the application of this principle to Indigenous peoples colonialism if one liked, but one ought to acknowledge that, in doing so, one would be defending values that are contrary both to Canada’s constitution and to its international obligations.

It is worth noting that the provisions of the Charlottetown Accord on self-government made at least some oblique reference to the structure and limits of the governments they would have put in place. What would have become section 35.1(3) of the Constitution Act, 1982 would have provided

The exercise of the right [of self-government] includes the authority of duly constituted legislative bodies of the Aboriginal peoples, each within its own jurisdiction,

(a) to safeguard and develop their languages, cultures,
economies, identities, institutions and traditions, and

(b) to develop, maintain and strenghten their relationship
with their lands, waters and environment,

so as to determine and control their development as peoples
according to their own values and priorities and to ensure the
integrity of their societies. (Emphasis mine)

This is, perhaps, not as clear as one might wish, but the reference to “the authority of duly constituted legislative bodies” in section 35.1(3) suggests that Indigenous self-government was to be democratic self-government. Giving effect to indigenous “values” and “ensur[ing] the integrity of their societies” must be done within that institutional framework.


To repeat once more, I hope that Indigenous self-government in Canada becomes a reality. But it would be naïve and dangerous to assume that it can do so on the basis of Indigenous legal traditions alone, without the infusion of principles modified or even imposed by the non-Indigenous world. Indigenous communities are part of a wider world ― not only of the Canadian legal system, but of the world beyond its borders too ― which means that both the form and the substance of their law will have to adjust to the way this world operates and to its requirements.

The good news in this regard is that, in some ways, the adjustment should be less difficult that is sometimes supposed. When it comes to the requirements of the Rule of Law, Indigenous legal traditions may recognize many of them implicitly, and adapting to other such requirements may be a relatively seamless development for traditions that never were static or fixed. Other changes, however, in particular the recognition of democracy as the fundamental mode of governance, may be less straightforward. But such changes are no less imperative. The label of self-government should not be allowed, let alone used, to obscure this reality.