Federalism – Double Aspect

Just Asking

Should the power over criminal law be transferred to the provinces?

Let me ask you what might be a provocative question: is there a good reason why criminal law and criminal procedure should be a matter of federal jurisdiction in Canada? The initial choice of the Fathers of Confederation to make them matters for Parliament under section 91(27) of the Constitution Act, 1867 was justified and turned out well, I think. But the reasons that were relevant at Confederation, and for a century thereafter, no longer hold true. Should we amend the constitution to make criminal law a provincial power ― and, if so, on what conditions?

I should note that this post is just me thinking on the screen. I do not mean it as a definitive word on anything. I am not an expert on criminal law, and might be missing something important. By all means, tell me if, and why, you think I’m wrong (or more wrong than usual). Still, I thought these questions are worth thinking about.

So far as I can tell ― and I haven’t done any actual research on this, so I may just be spewing out preconceptions and received wisdom here ― criminal law and procedure being a federal power continues the basic divide established as early as the Quebec Act 1774. Private disputes would be “determined agreeably to the said Laws and Customs of Canada“. To preserve the ability of the French Canadian majority in Québec to control (most of) its private law, “property and civil rights” became subject to provincial jurisdiction at Confederation. By contrast, the Quebec Act maintained English criminal law in force:

whereas the Certainty and Lenity of the Criminal Law of England, and the Benefits and Advantages resulting from the Use of it, have been sensibly felt by the Inhabitants, from an Experience of more than nine Years, during which it has been uniformly administered; be it therefore further enacted by the Authority aforesaid, That the same shall continue to be administered, and shall be observed as Law in the Province of Quebec, as well in the Description and Quality of the Offence as in the Method of Prosecution and Trial.

The lenity of the Criminal Law of England was such that dozens if not hundreds of offences could lead to hanging, but that was still better than judicial torture, which had existed under ancien régime French law. Here again, Confederation ensured that the status quo would continue, by putting criminal law within Parliament’s jurisdiction ― in contrast to the situation that prevailed in the United States and that would prevail in Australia.

This was as well. I doubt there was any chance of French criminal law being brought back to Canada in the 19th century ― even maintaining the old civil law proved a frightful challenge, which was one of the reasons for the introduction of the Civil code of Lower Canada (as I explained here). But given the relative moderation of federal politics in comparison with what went on in some of the provinces, notably with the authoritarian regimes of the Social Credit in Alberta and the Union Nationale in Québec, federal control over criminal law has been a blessing. It was the reason, notably, for the invalidation of Québec’s ban on “communistic propaganda” in the notorious “Padlock Act” in Switzman v Elbling, [1957] SCR 285.

But something very important happened since then: the enactment of the Canadian Charter of Rights and Freedoms. Section 2 of the Charter protects Canadians across the country from dictatorial legislation such as the Padlock Act. Sections 7 to 14 of the Charter entrench substantive, formal, and procedural provisions historically associated with the “certainty and lenity of the criminal law of England”. Section 24 of the Charter and section 52(1) of the Constitution Act, 1982 provide remedies against governments and legislatures that disregard these rights. These judicial protections (subject to an obvious caveat, to which I will get shortly) are likely to be more effective than the structural devices employed at Confederation. After all, we know that Parliament keeps enacting, and the courts ― to the chagrin of “tough-on-crime” politicians and even some misguided judges ― keep invalidating absuvie criminal laws. As a result, it’s not obvious to me that the centuries-old reasons for making criminal law a federal matter are still valid.

Meanwhile, there are other considerations, some also longstanding but others less so, that support transferring this power to the provinces. The former category includes the principle of subsidiarity: the idea that power should be decentralized and exercised as closely to the citizen as it can be effectively exercised. It’s not clear to me why the provinces couldn’t competently and effectively legislate over criminal law and criminal procedure. As it is, they already legislate over provincial offences under section 92(15) of the Constitution Act, 1867. Since criminal law reflects moral considerations, it would make sense for Canadian provinces, with differing moral outlooks of their electorates, to be in charge of defining this law for themselves. Other usual benefits of decentralization, such as the possibility of provinces experimenting with different policies, within constitutional constraints, would also apply.

The more novel benefit of transferring the power over criminal law to the provinces would be to nip in the bud the tendency for Parliament to rely on the criminal law power to enact regulatory schemes that invade areas of provincial jurisdiction ― or, rather, since this tendency is already well-developed, to pluck off its increasingly putrid flower. Examples of this tendency, all upheld at least in part, include laws dealing with tobacco advertising, the registration of firearms, assisted human reproduction, and most recently genetic non-discrimination. (Shannon Hale blogged here on her and Dwight Newman’s critique of the Supreme Court’s lax approach to Parliament’s criminal law power in Reference re Genetic Non‑Discrimination Act, 2020 SCC 17.) Denying Parliament the power to make criminal law would not only allow us to reap the benefits of federalism in this area, but also to preserve them in others.

Now, I do think that some safeguards must be in place for this change to the distribution of powers to work well. One is already part of the Canadian constitution’s design. Others will need to be implemented as part of a package of amendments together with the transfer of jurisdiction over criminal law to the provinces.

The (mostly) existing safeguard the appointment of the judges of the superior courts, who preside at the most significant criminal trials, by the federal rather than the provincial governments. This has been an important barrier against the power of populist provincial governments. It will become an even better one if the federal government exercises its appointment power without being distracted by populist tough-on-crime considerations that caused it, for example, to introduce police officers into the selection committees that vet prospective judges. However, for this system to continue to work well, it will need to be coupled with an assurance that at least the more serious criminal cases will continue to come to the superior courts, either for trial or, at least, on appeal. Section 96 of the Constitution Act, 1867 may do this already, but I would prefer an explicit addition to section 11 of the Charter.

The other additional safeguards I would want to see include, first and foremost, the repeal of the Charter‘s “notwithstanding clause“, which allows Parliament and, more to the point, provincial legislatures, to suspend the effective protection of the rights entrenched in sections 2 and 7-15 of the Charter. At a minimum, the protections of the rights of the accused in sections 7-14 should be free from the threat of override; but it is highly desirable that the substantive protections of fundamental freedoms in section 2 should be so too. Section 15 is perhaps less relevant here, but there is no reason to maintain the “notwithstanding clause” for its sake. The reason for contemplating transferring the criminal law power to the provinces, despite the greater risk of populist takeovers, is that the Charter protects against its being abused. This protection must be effective at all times, and not at the provincial legislatures’ sufferance.

Lastly, some additional adjustments to the division of powers scheme will be necessary. For one thing, a federal equivalent of the current section 92(15) will be necessary to replace Parliament’s plenary criminal law power. Just like the provinces now, Parliament should be able to provide for penal enforcement of its legislation. Moreover, some measure of extra-territorial criminal power will need to remain with Parliament as well. There is of course some danger that even this limit grant of power will be abused. This is what has happened in the United States, despite Congress not having any explicit criminal law powers. The crimes created under the power to enacted laws “necessary and proper for carrying into execution” Congress’s other powers have become literally innumerable: when the American government tried to count all of the offences on its books, it failed. (Some are documented by a darkly humorous Twitter account.) However, the Canadian jurisprudence on the division of powers generally, and on ancillary powers in particular, is much more robust than its American counterparts, so one can reasonably hope that this American disaster can be avoided in Canada. For another, while the federal power over penitentiaries in section 91(28) will no longer make much sense, a more limited power to maintain a carceral system for those convicted of the remaining federal offences will be necessary.

Needless to say, there is very little chance of my proposals ― even assuming that they make sense which, to repeat, they may well not ― ever being taken up. Even apart from Canada’s general, and I’m inclined to think generally sound, aversion to constitutional tinkering, I just don’t see Parliament giving up such a high-profile legislative power that has, for politicians, the virtue that its exercise allows for relatively low-cost grandstanding and virtue-signalling. But who knows. And, if nothing else, I think we should from time to time ask ourselves whether the existing division of powers makes sense, if only to remind ourselves of the reasons why we have it and why, on the whole, it is a good and useful thing.

When the Surgeons Miss

Federalism and the Genetic Non-Discrimination Act Reference

Guest Post by Shannon Hale*

It is ironic that sometimes health-related cases pose the greatest risks to the health of the constitution when federalism goes under the knife.

Just over two months ago, the Supreme Court of Canada released its decision in Reference re Genetic Non-Discrimination Act (GNDA Reference). At issue was whether the federal government validly enacted parts of the Genetic Non-Discrimination Act (GNDA) that prohibit the forced testing and disclosure or unauthorized use of health-related genetic tests as a condition of providing goods and services or contracting (ss. 1 to 7).

The Court split three ways on this issue, with the majority, led by Karakatsanis J., ultimately deciding that the federal government had the legal authority to pass the law. The GNDA Reference provides much food for thought on division of powers analysis and federalism, especially since some of the conclusions drawn in that decision may undermine the ability of legislators and policymakers to make various policy choices with legal certainty.

Dwight Newman and I discuss the implications of the GNDA Reference in a forthcoming paper in Constitutional Forum. Our paper focuses on how the majority outcome achieves an arguably pragmatic and desirable policy result at the expense of established federalism jurisprudence, legal predictability, and effective intergovernmental cooperation.

I wanted to write about the GNDA Reference because of its far-reaching effects on federalism, in particular its impact on provincial autonomy to make policy choices that are responsive to regional diversity. As a former policy wonk, I admit that there are several situations in which it could be easier and more efficient for the federal government to legislate. Yet, the Canadian constitutional structure emerged from a political compromise and it is intentionally designed to mitigate against such centralization of power (Reference re Secession of Quebec at paras 55-60). An important policy goal or concerns about efficiency should not factor, or appear to factor, into the Court’s reasoning on whether the government in question validly passed a law. As we point out in our paper, the Court must be—and appear to be—above policy debates to maintain its institutional legitimacy.

The GNDA Reference also interests me because of the GNDA’s surprising origins and the even more surprising three-way split on the Court over the law’s characterization.

The GNDA was introduced as a private member’s bill in the Senate and it was voted into law despite opposition from Cabinet, including from the then federal Justice Minister who had thought the law was unconstitutional. Although the Court was aware of the GNDA’s unusual legislative history, that did not factor heavily into its analysis (see, for example, GNDA Reference at paras 18, 161). Nor should it. As Karakatsanis J. clarifies, the “sole issue before [the Court] is whether [the federal government] had the power to [enact the GNDA]” (at para 18).

Unfortunately, what seems to end up happening is that the merits of a particular policy—preventing genetic discrimination—distract Karakatsanis J. from the demands of the established legal tests in division of powers cases. As we explain in greater detail, Karakatsanis J. adopts a purpose-driven approach that more closely resembles the “pressing and substantial objective” step of the Oakes analysis in Charter jurisprudence than the focus on the law’s “true subject matter” in pith and substance analysis (see, for example, Reference re Firearms Act (Canada) at para 18).

Of equal concern is the three-way split on pith and substance. It is not uncommon for the Court to disagree on the law’s pith and substance. But if these disagreements become the norm rather than the exception there is a danger that the Court could create the perception that judicial preferences, not established legal principles, dictate the outcome in division of powers cases.

This perception grows when the Court strays from established legal tests to shoehorn the analysis to reach a result that also favours a particular policy outcome. The task before the Court is not to weigh the merits of particular policies; it is to determine whether the government in question has the legal authority to make laws about those policies.

Despite its good intentions, the majority outcome may actually make the situation on the ground worse for Canadians. Our paper examines how the majority outcome will create considerable confusion for provincial insurance schemes and could result in higher insurance premiums across the board. It is also interesting how the majority outcome prevents genetic discrimination in some insurance contexts but not in others, which seems to be at odds with Karakatsanis J.’s view that the pith and substance of the GNDA is to prevent genetic discrimination “in the areas of contracting and the provision of goods and services” (GNDA Reference at paras 63-65).

Another problem with the majority outcome is that it fails to rein in the federal criminal law power. That power can swallow up a lot of provincial jurisdiction, leaving provincial governments with little room to make policy choices about issues that matter most to its people.

Karakatsanis J.’s approach to “gaps” in the law is also troubling. There are many reasons why provincial governments may or may not legislate an issue. Sometimes the lack of a provincial law is the product of an intentional choice. If the federal government can pass a law because the provinces haven’t, in the future, provincial governments may rush to pass a law to secure its control over an issue.

While some may say a bad law is better than no law, a “use it or lose it” approach to lawmaking may not necessarily reflect good policy. Provincial governments should be free to pass laws on issues within their jurisdiction without fearing that the federal government will pass a law if they fail to act. As the saying goes, “hard cases make bad law”. And in this case the main casualty is federalism.

*Shannon Hale is a Research Associate at the University of Saskatchewan College of Law for the September-December 2020 term

La Constitutionnalité de l’application de la Loi 101 aux entreprises fédérales

Le 18 août dernier, le ministre responsable de la Langue française, M. Simon Jolin-Barette, a annoncé qu’il souhaitait voir la Charte de la langue française appliquée aux entreprises sous juridiction fédérale. Une telle mesure forcerait notamment les entreprises fédérales à obtenir un certificat de francisation et à se soumettre à une série d’obligations destinées, comme l’indique le préambule de la Charte, à faire du français « la langue normale et habituelle du travail, […] des communications, du commerce et des affaires ». On estime qu’au Québec, 135 000 travailleurs du secteur privé ne sont ainsi couverts ni par la Charte de la langue française, ni par la Loi sur les langues officielles. Or, cette proposition soulève de sérieux doutes quant à sa constitutionalité, notamment quant à savoir si l’Assemblée nationale a le pouvoir législatif nécessaire pour procéder seule à cet amendement.

L’Assemblée nationale peut-elle procéder seule?

Tout d’abord, il ne fait aucun doute que les « institutions fédérales » comme les départements gouvernementaux ou les sociétés d’état fédérales qui, elles, sont déjà encadrées par la Loi sur les langues officielles, ne sauraient en aucun cas être visées par la législation provinciale. Le chapitre V de la Loi sur les langues officielles établit un régime juridique qui garantit le droit de travailler dans l’une ou l’autre des deux langues officielles. Il s’agit là d’un cas clair de prépondérance fédérale, en vertu de laquelle une loi fédérale valide rend inopérante une loi provinciale autrement valide avec laquelle elle est en conflit.

En ce qui a trait aux entreprises sous juridiction fédérale comme les banques, les entreprises ferroviaires, maritimes, de transport interprovincial et de télécommunications, il est fort probable que les tribunaux jugent que leur assujettissement à des mesures réglementaires linguistiques excède la juridiction de la province. Tel qu’indiqué dans Devine c Québec (procureur général), [1988] 2 RCS 790, la juridiction sur la langue, qui n’est pas explicitement prévue au partage des compétences de 1867, doit être rattachée à un champ de compétence. La langue de travail est considérée par la jurisprudence comme relevant des relations de travail. Ainsi, dans les dernières décennies, plusieurs décisions ont confirmé la compétence fédérale en matière linguistique au sein des entreprises fédérales ainsi que l’inapplicabilité de la Charte de la langue française aux entreprises fédérales situées au Québec, dont Joyal c Air Canada, 1976 QCCS 1211 à la p 1230 et Association des Gens de l’Air du Québec Inc. c Lang, [1977] 2 CF 22 au para 39, ainsi que plus récemment Girard c Telus Québec inc., 2006 QCCRT 236 et Léveillé c Conseil canadien des Teamsters, 2011 CCRI 616.

Or, des auteurs ont récemment affirmé que des revirements jurisprudentiels en matière d’exclusivité des compétences justifiaient un changement de paradigme sur cette question. Se basant sur l’arrêt Banque canadienne de l’Ouest c. Alberta, 2007 CSC 22, ils affirment que, du fait que la doctrine d’exclusivité des compétences ne s’applique que lorsqu’une mesure législative entrave le contenu « essentiel » de la compétence de l’autre ordre de gouvernement, la Charte de la langue française peut être appliquée aux entreprises fédérales. Pourtant, ce raisonnement ne tient pas la route et ce, pour deux raisons. D’abord, il fait abstraction de la jurisprudence pertinente en la matière. Ensuite, il sous-estime l’impact qu’a la Charte de la langue française sur les activités habituelles d’une entreprise.

Premièrement, pour conclure que la Charte de la langue française peut s’appliquer à des entreprises fédérales, ces auteurs écartent une importante décision, NIL/TU,O Child and Family Services Society c B.C. Government and Service Employees’ Union, 2010 CSC 45. Dans cette affaire, la Cour suprême tranche que le test de l’exclusivité des compétences n’est pas approprié pour examiner les questions de compétences en matière de relations de travail, lui préférant un test en deux étapes. La première étape est le test du « critère fonctionnel ». Il faut alors examiner la nature de l’entité, son exploitation et ses activités habituelles pour voir s’il s’agit d’une entreprise fédérale. Dans un tel cas de figure, les relations de travail seront assujetties à la réglementation fédérale plutôt qu’à la réglementation provinciale. Si – et seulement si – la première étape du test n’est pas concluante, il faut alors se tourner vers la seconde et se demander si la mesure proposée entrave le cœur de la compétence fédérale.

En l’espèce, il ne fait aucun doute que l’application du test du « critère fonctionnel » mine toutes les chances de Québec de voir la Charte de la langue française être appliquée aux entreprises fédérales. Pas question ici de se demander si la Charte de la langue française entrave le contenu « essentiel » du chef de compétence fédéral. Le simple fait que les activités habituelles des entreprises fédérales soient justement de nature fédérale suffit à les soustraire à l’application de la Charte de la langue française.

Deuxièmement, même si c’était le test de la doctrine de l’exclusivité des compétences qui devait être retenu, il est clair que la Charte de la langue française entrave le « contenu essentiel » des champs de compétence fédéraux correspondants, comme la poste, les banques, le transport interprovincial, la navigation, etc. Le critère de l’entrave n’équivaut pas à une paralysie ou une stérilisation selon Rogers Communications Inc. c Châteauguay (Ville), 2016 CSC 23au para 70. Ainsi, dans Banque de Montréal c Marcotte, 2014 CSC 55 au para 66, la Cour suprême du Canada laisse entendre qu’une loi provinciale sera déclarée invalide si elle «restreint» les activités d’une entreprise fédérale. Or, la Charte de la langue française est on ne peut plus intrusive. Elle exige des entreprises qu’elles se soumettent à une analyse étendue de leurs activités (art 141). Elle régit notamment la langue de communication d’un employeur avec ses employés (art 41), des offres d’embauche et de promotion (art 41), des conventions collectives (art 43), interdit de congédier, de mettre à pied, de rétrograder ou de déplacer un employé qui ne parle pas assez bien une langue autre que le français (art 45), interdit d’exiger à l’emploi une langue autre que le français si ce n’est pas nécessaire (art 46), etc. De plus, le fait pour une entreprise de ne pas se plier aux exigences de la Charte de la langue française peut être lourd de conséquences. La politique gouvernementale en matière linguistique prévoit que les entreprises de 50 employés et plus qui ne possèdent pas de certificats de francisation ne se verront accorder ni contrat, ni subvention, ni avantage par l’administration publique. De plus, les amendes prévues à la Charte de la langue française pour une première infraction peuvent aller jusqu’à 6 000$ pour un particulier et jusqu’à 20 000$ pour une entreprise (art 205).

Existe-t-il des alternatives?

Ainsi donc, si la réglementation linguistique des entreprises fédérales relève du Parlement, comment le gouvernement québécois pourrait-il s’y prendre pour faire appliquer la Charte de la langue française aux entreprises fédérales?

Premièrement, certains auteurs ont suggéré que le Parlement pourrait déléguer aux provinces son pouvoir législatif en matière linguistique. Toujours selon ce courant de pensée, le gouvernement du Québec pourrait demander au Parlement de lui déléguer son pouvoir de réglementer l’utilisation de la langue française au sein des entreprises fédérales. Or, il semble que ce raisonnement soit erroné. En effet, s’il est vrai, comme le font remarquer ces auteurs, que le Parlement peut légitimement déléguer ses pouvoirs réglementaires linguistiques à un territoire comme il l’a fait pour le Nunavut, la délégation aux provinces de pouvoirs législatifs est proscrite par les tribunaux depuis Nova Scotia Inter-delegation, [1951] SCR 31.

Deuxièmement, Québec pourrait demander au Parlement qu’il incorpore à sa propre législation un renvoi à la Charte de la langue française. Cette façon de procéder a été reconnue comme étant valide par les tribunaux canadiens depuis Coughlin v Ont. Highway Transport Bd., [1968] SCR 569. En vertu de cette méthode de référencement, toute modification ultérieure de la Charte de la langue française par l’Assemblée nationale s’appliquerait immédiatement et automatiquement aux entreprises fédérales en vertu de A.G. for Ontario v Scott, [1956] SCR 137. Il s’agit là d’une façon de procéder plus respectueuse des principes de droit constitutionnel canadien, mais aussi de celle qui requiert le plus de volonté politique. La Charte de la langue française a toujours fait l’objet d’un feu nourri de critiques au Canada anglais et il serait plutôt surprenant de voir le gouvernement fédéral l’adopter implicitement en y faisant référence dans sa propre législation. D’ailleurs, si le Parti Conservateur, le NPD, le Bloc Québécois et le Parti Vert s’étaient engagés aux dernières élections à faire appliquer la Charte de la langue française aux entreprises fédérales conformément à la demande du premier ministre du Québec, le Parti Libéral, lui, n’avait pas fait de même. Justin Trudeau s’était d’ailleurs opposé par le passé à un renforcement de la Charte. Parions que des discussions musclées sont à venir dans les prochains mois entre Ottawa et Québec.

Day 11: Asher Honickman

Standing on basic principles

Partner, Matthews Abogado LLP

As with many of the other contributors to this excellent symposium, the three dissenting judgments I have chosen share a common theme. Each articulates a basic principle of Canada’s constitutional order ― one which was true before the decision was handed down and continues to be true today, but which was ignored or marginalized in the majority decision.

These are not necessarily my “favourite” dissents. I have had the benefit of reading most of the other contributions and have consciously avoided dissents that have already been discussed. I have also cast the net wide and selected one dissent from each of the 19th, 20th and 21st centuries, with (coincidentally) 68 years between each one. Without further ado, here they are.

Justice Strong in Severn v The Queen (1878) 2 SCR 70: Judicial Restraint

As with many division of powers cases of the era, Severn was about alcohol. John Severn was charged with manufacturing and selling large quantities of beer without a license in what was then the Town of Yorkville, contrary to Ontario law. Severn argued that the law was unconstitutional as it came within Parliament’s exclusive authority to regulate trade and commerce under s.91(2) of the then BNA Act. A majority of the Supreme Court agreed.

The various majority judgments (Supreme Court decisions were written seriatim until the second half of the 20^th century) adopted a decontextualized plain reading of the Act. Despite the fact that the impugned law concerned manufacture and sale wholly within the province, the majorities held that it nevertheless came within “trade and commerce”. The judges drew comparisons between the United States Constitution and the more centralized BNA Act. But there was very little discussion of the text and architecture of sections 91 & 92 and particularly the interplay between the provincial power to regulate “property and civil rights” on the one hand and the federal trade and commerce power on the other (the Privy Council would take up this task several years later in Citizens Insurance v Parsons, (1881) 7 App Cas 96, significantly narrowing the scope of the trade and commerce power in the process).

Justice Strong began his dissent by stating that the Court should afford the legislature the presumption that it was acting constitutionally and should seek to discover a constitutional construction of the statute. This “presumption of constitutionality”, first articulated by Strong J., would become a defining feature of constitutional interpretation by the end of the century (A.H.F. Lefroy would cite it as one of the 68 leading propositions of constitutional law) and continues to be applied to this day. Strong J. continued with a second even more central principle: “that it does not belong to Courts of Justice to interpolate constitutional restrictions; their duty being to apply the law, not to make it”.

Justice Strong agreed with the majority’s flawed interpretation of the trade and commerce power. However, he correctly noted that the language of the BNA Act limited this power to what had not been exclusively granted to the provinces – in this case, the power over licensing. The term “other licenses” in s.92(9) had to be read broadly – if it was confined to those types of licenses that had been in existence prior to Confederation as the majority preferred, then the power to impose licenses would be disparate across the provinces, which is not what the BNA Act envisages.

Severn was the first decision of the Supreme Court of Canada to interpret the division of powers, predating all of the doctrinally significant decisions of the Privy Council. And it shows. The majority judgments appear adrift in a sea of doctrinal uncertainty. Strong J.’s dissent is far from perfect, but it provided an early and important articulation of the judicial function in the realm of constitutional interpretation – apply the law and approach the task with a degree of humility and restraint.

Justice Rand in Reference to the Validity of Orders in Council in relation to Persons of Japanese Race, [1946] SCR 248: Executive Power is Constrained by Law

The Japanese Persons Reference was a low point in Canadian history. In December of 1945, the Governor in Council ordered all individuals of the “Japanese race” who had previously expressed a desire in writing to be “repatriated” to Japan to be sent there. The Order applied to Japanese nationals, naturalized Canadian citizens and natural born British subjects. A second related Order revoked the British status and Canadian citizenship of naturalized Canadians of Japanese background. These Orders were made pursuant to the War Measures Act, which remained in place notwithstanding the war had ended several months earlier. The majority held that the Orders were intra vires, a finding that was affirmed by the Privy Council. Nearly 4,000 individuals of Japanese ethnicity were sent to Japan. It is not clear how many went involuntarily, but presumably at least some (and perhaps most or all) wished to continue living in Canada once hostilities ceased and Japan came under military occupation.

Justice Rand agreed that the Governor in Council could deport Japanese nationals and naturalized Canadians of Japanese background, but he disagreed that the Order could be applied to natural born British subjects who wished to remain in Canada. The reason was twofold. Firstly, in the case of Japanese nationals and naturalized Canadians, Supreme Allied Commander General MacArthur had made a corresponding order for their “repatriation”. However, no such order existed in relation to natural born British subjects. The effect of the Order would be to banish a British subject to a country without that country’s invitation or consent in circumstances where that person would remain a British subject. This was surely beyond the scope of the War Measures Act. Secondly, since natural born British subjects remained Canadian citizens and thus had the right to return to Canada at any time after being deported, it seemed improbable that the Governor in Council had deemed the one-time removal of such a to be necessary or advisable for the peace, order and welfare of Canada, a precondition for deportation under the War Measures Act.

Rand J. also took issue with the revocation of British subject status of naturalized citizens of Japanese origin. Any revocation had to be made in accordance with the Naturalization Act, which stated that citizenship could only be revoked where the person demonstrated “disaffection or disloyalty” to the King. The Governor in Council had made no such finding regarding these individuals, but the justices in the majority argued it was implicit as each person had made a request in writing for repatriation. It is far from clear the circumstances that prevailed when these requests were made; in any event, they came on heels of the internment of Japanese people during the war. Justice Rand noted that the Order was, in effect, a “penal provision of a drastic nature” and that he was not prepared to simply conclude by implication that the Governor in Council was satisfied in each case that the naturalized subject was disaffected or disloyal.

The Japanese Persons Reference is seldom thought of as an administrative law decision. But at its core, it is about how judges ought to review executive action. The case is a sobering reminder that if administrators are not constrained by law and are left alone to exercise their discretion, then they will invariably trample upon individual freedom.

Justice Rand could not turn to the Charter of Rights and Freedoms to invalidate the Orders; but he appealed to the foundational rule of law principle that any exercise of state power must find its source in a legal rule. His dissent illustrates that liberty does not begin or end with enumerated rights, and that a government constrained by law is a necessary condition for any free society.

Justice Rothstein in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31: The Primacy of Constitutional Text

As I argued in my post for last year’s symposium, B.C. Trial Lawyers Association is one of the worst Supreme Court decisions in modern history. In grounding a novel constitutional right of access to justice in section 96 of the Constitution Act, 1867, the Court ignored the text, context, and purpose of the provision, along with settled doctrine.

Justice Rothstein’s lone dissent is powerful throughout, but particularly in its criticism of the majority’s reliance upon the rule of law as a basis to invalidate legislation. There is no doubt that the rule of law is a foundational principle of the Canadian state. But it means particular things in particular contexts (for example, as noted above, that state action must be grounded in a legal rule). The majority employed the term in a far more nebulous manner, and relied upon it to elevate another amorphous concept – access to justice – to constitutional status. By contrast, Justice Rothstein emphasized the “primacy of the written constitutional text”, and that the rule of law requires courts to give effect to legislation that conforms to that text. As such, “the rule of law does not demand that this Court invalidate the [law] — if anything, it demands that we uphold it”.

This is the salient point of the dissent. Judges exercise public power that is both granted and limited by the text of the Constitution. Justice Rothstein acknowledged that the courts may, on occasion, turn to unwritten principles to fill in “gaps” in the constitutional text; but he cautioned that “gaps do not exist simply because the courts believe that the text should say something that it does not”. Where a court changes the meaning of a constitutional provision, it has, in effect, amended the Constitution by judicial fiat and, in doing so, has endangered the rule of law and the very basis upon which the judiciary is empowered to review legislation.

Note: Mr. Honickman stepped in, almost without notice, to replace one of the contributors, who had to withdraw for reasons beyond her (let alone our) control. Co-blogger Mark Mancini and I are most grateful to him for helping us out! – LS

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

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

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

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

***

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

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

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

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

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

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

***

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

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

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

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

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

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

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

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

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

I Said Don’t Do It

The federal government is wrong to involve Québec in the process of appointing the next Supreme Court judge

In 2014, after the Supreme Court invalidated the appointment of Justice Nadon to one of its seats reserved for Québec judges or lawyers, the federal government got the Québec government to propose a shortlist of candidates for the vacant-again position. This process resulted in the appointment of Justice Gascon to the Supreme Court. The federal government meant the outsourcing of the shortlist to be a one-off; the Québec government was hoping that it would create a precedent. Québec’s wishes were ignored when the next appointment to one its seats (that of Justice Côté) was made.

But now Justice Gascon is now retiring ― sadly, much before his time ― and a version of the process that produced his appointment is being brought back. As the Canadian Press reports,

[t]he federal and Quebec governments have reached what the province is calling a historic deal that ensures it will play an active role in the process of selecting the next Supreme Court of Canada justice from Quebec.

An advisory committee similar to those used for previous appointments made by the current federal government submit will then

submit a shortlist of candidates to the federal and provincial justice ministers. … [T]he premier of Quebec will also provide an opinion and forward a recommendation to the prime minister, who will make the final decision weighing the recommendation of the federal justice minister and Quebec’s input.

The provincial government’s role is, if I understand correctly, not as important as in the 2014 process, since it doesn’t extend to unilaterally determining the Prime Minister’s range of choices. But it is still significant. The province seems delighted. The Canadian Press writes that the provincial justice minister “called the deal precedent-setting” ― yes, again ― “saying it would allow the province to take a ‘direct and significant part’ in the judicial appointment”.

The rest of us should not be happy. In fact, we should be rather angry. I criticized the 2014 process at some length here, and I believe that that criticism is still applicable, albeit in a slightly watered-down form, to the new process. It is common enough for members of the Canadian chattering classes to claim that the federal government’s power of appointing Supreme Court judges without taking provincial preferences into account is a defect in our federal system. But this view is mistaken. Here’s part what I said in 2014 (with references updates):

[H]ow much of a flaw is it really that the federal government appoints judges unilaterally? In practice, the Supreme Court’s recent blockbuster decisions ― the one concerning the eligibility of Justice Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433 and that in the Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704 ―, as well as Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837, which declared a proposed federal securities regulator unconstitutional belie any claim that the Supreme Court is biased in favour of the federal government.

And even at the level of theory, there is a good argument to be made for unilateral federal appointments. Canadian history has borne out James Madison’s famous argument in Federalist No. 10 that small polities are more vulnerable to “faction” and the tyranny of the majority than larger ones. Our federal governments have tended to be more moderate than provincial ones, and less susceptible to takeovers by ideological entrepreneurs from outside the Canadian mainstream, whether the Social Credit of Alberta or the separatists of Québec. Foreseeing this, the framers of the Constitution Act, 1867 gave the power of appointing judges of provincial superior courts to the federal rather than the provincial governments. It stands to reason that the judges of the Supreme Court, whose decisions have effect not only in one province, but throughout Canada, should a fortiori be appointed by the government more likely to be moderate and representative of the diversity of the views of the country ― that is to say, by the federal government.

Québec’s case is illustrative. The federal government presumably is comfortable with, or at least not very worried about, outsourcing the selection of potential Supreme Court judges to a relatively friendly, federalist government. Would it have felt the same way if the Parti Québécois ― not only separatist, but also committed to the infamous “Charter of Québec Values” (which the federal government had vowed to fight in court!) had won the recent provincial election?

The latest developments sure give us some food for thought on this last question. The Parti Québécois, it is true, not only remains out of government, but is currently the fourth-largest party in Québec’s legislature. Yet its idea of purging the province’s public service of overtly religious persons ― especially if they are overtly religious in a non-Catholic way ― is alive, kicking, and in the process of being enacted into law, as Bill 21, by the Coalition Avenir Québec’s government. This is the same government, of course, that its federal counterpart wants to involve in the appointment of the judges who may yet be called upon to pronounce on Bill 21’s consistency with the constitution.

Back in the sunny days of 2015, when illusions about the current federal government being formed by the “Charter party” were still possible, the Prime Minister wrote the following to his Attorney-General:

[Y]our overarching goal will be to ensure our legislation meets the highest standards of equity, fairness and respect for the rule of law. I expect you to ensure that our initiatives respect the Constitution of Canada, court decisions, and are in keeping with our proudest legal traditions. You are expected to ensure that the rights of Canadians are protected, that our work demonstrates the greatest possible commitment to respecting the Charter of Rights and Freedoms, and that our government seeks to fulfill our policy goals with the least interference with the rights and privacy of Canadians as possible.

The “Mandate Letter” in which these wonderful commitments are set out is still on the Prime Minister’s website, although its original addressee was eventualy fired for acting like an actual Law Officer of the Crown and not a political weather-wane. But the same Prime Minister’s government is now going out of its way to hand over part of its constitutional responsibility for appointing the judges of Canada’s highest court to a provincial government bent not only on trampling on fundamental freedoms, but also on insulating its actions from review for compliance with the Charter. I should have thought that this is an odd way of respecting the Constitution of Canada, of ensuring that the rights of Canadians are protected, and of demonstrating the greatest possible commitment to respecting the Charter of Rights and Freedoms. But what do I know?

Well, I know this. Five years ago wrote that

[t]he power to appoint Supreme Court judges belongs to the federal government, and it alone, for good reason. … [T]he constitutional edifice built in 1867 (and 1875, when the Court was created, and then 1982 when it was, so it says, constitutionally entrenched) has weathered some great storms, and given us all shelter and comfort. It is in no danger of crumbling. Do not try to rebuild it.

Don’t do it. Just don’t.

Is Québec’s Dress Code Unconstitutional?

There is a serious argument to be made that Québec’s ban on religious symbols infringes the federal division of powers

Back when a previous Québec government sought to impose a dress-code on the province’s employees, I suggested here and here that, should the province seek to insulate its legislation from review based on its manifest violation of the Canadian Charter of Rights and Freedoms and Québec’s own Charter of Human Rights and Freedoms by invoking these Charters’ respective “notwithstanding clauses”, the question of constitutionality could still be raised. That is because such legislation may well infringe not only the constitutional guarantees of religious liberty, but also the federal division of powers, to which the “notwithstanding clauses” do not apply.

The idea of a dress code for (some) public employees is back, in the shape of a bizarrely named Bill 21, An Act respecting the laicity of the State. (Pro tip for the legislative draughtsman: “laicity” is not a synonym of “secularism”.) And as Bill 21 invokes the “notwithstanding clauses”, the issue of its consistency with the federal division of powers must be addressed.

Fortunately, Maxime St-Hilaire has posted a thorough review (en français) of the relevant case law over at À qui de droit. With his kind permission, a (very slightly shortened and re-formatted) translation follows:

Section 33 of the Canadian Charter of Rights and Freedoms in no way allows Parliament or a legislature to suspend the federal division of legislative powers. Only the federal emergency power makes it possible to do this, temporarily.

Recall that, in 1852, before Confederation, the legislature of the United Province of Canada enacted a Freedom of Worship Act. In 1867, the protection of religious freedom was not, as such, assigned to either Parliament or the legislatures. The Freedom of Worship Act remains purportedly valid as a law of Québec.

However, in Saumur v City of Quebec, [1953] 2 SCR 299, which involved a by-law subjecting the distribution of any literature in the city’s streets to the approval of the chief of police, four of the nine judges took the position that religious freedom was outside the scope of provincial jurisdiction, and within that of Parliament. In somewhat different ways, the four took the position that, being a restriction on freedom of religion, the by-law could not be justified as an exercise of the provincial power over “Property and Civil Rights in the Province” provided by section 92(13) of the Constitution Act, 1867, or that over “Municipal Institutions in the Province”, or any other provincial power, including that over “Matters of a merely local or private Nature in the Province”, provided by section 92(16). Rather, religious freedom was a matter within the scope either of the federal criminal law power (section 91(27)), or of the section 91 residual federal power over “Peace, Order, and Good Government of Canada”. Two other judges were content to raise this argument without either endorsing or rejecting it: “It may well be that Parliament alone has power to make laws in relation to the subject of religion as such”. (387; per Cartwright J). Only three of the nine judges took the position that freedom of religion fell within the scope of the provincial power over “Property and Civil Rights” or, perhaps, “Matters of a merely local or private Nature”.

Saumur was ultimately decided on the basis of the by-law’s interpretation, rather than its validity. Two years later, in Henry Birks & Sons (Montreal) Ltd v City of Montreal, [1955] SCR 799, the Supreme Court unanimously held that a Québec statute specifically allowing municipalities to prohibit the opening of shops on designated Catholic holidays was ultra vires the province, because in pith and substance it was colourable criminal law. Justice Kellock (with the agreement of Justice Locke), went so far as to suggest that

[e]ven if it could be said that legislation of the character here in question is not properly “criminal law” within the meaning of s. 91(27), it would, in my opinion, still be beyond the jurisdiction of a provincial legislature as being legislation with respect to freedom of religion dealt with by the [Freedom of Worship Act]. (823)

This was also the view of Justice Rand, for whom “legislation in relation to religion the provision is beyond provincial authority to enact”. (814)

In Dupond v City of Montreal, [1978] 2 SCR 770, Justice Beetz, for the majority, argues that the freedom of religion belongs partly to the federal criminal law power, so far as the imposition of religious observance is concerned, and partly a matter of provincial competence over purely local matters (similarly to the “freedoms of speech [and] of the press”). (796-97)

This was confirmed in R v Big M Drug Mart, [1985] 1 SCR 295, where Justice Dickson, for the majority, held that

Parliament’s legislative competence to enact the Lord’s Day Act depends on the identification of the purpose of the Act as compelling observance of Sunday by virtue of its religious significance. Were its purpose not religious but rather the secular goal of enforcing a uniform day of rest from labour, the Act would come under s. 92(13), property and civil rights in the province and, hence, fall under provincial rather than federal competence. (354)

Since the freedom of religion includes the freedom of conscience, and thus the freedom not to believe, it is tempting to argue that any law that imposes either a form of religious belief or non-belief falls under Parliament’s exclusive power over criminal law. However, as explained in Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 SCR 457, to belong to the realm of criminal law, a law must “suppress an evil, … establish a prohibition, and … accompany that prohibition with a penalty”. [233]

However, it seems settled that both Parliament and the legislatures are able to protect or to justifiably limit, within the meaning of section 1 of the Charter, the freedom of conscience and religion, through the use of their ancillary powers. The power over religion is thus a shared one within the federal division of powers. The Supreme Court has confirmed this, for example in R v Edwards Books and Art Ltd, [1986] 2 SCR 713. Justice Dickson, uncontradicted on this point, expressed the following view:

[T]here exist religious matters which must similarly fall within provincial competence. … It would seem, therefore, that the Constitution does not contemplate religion as a discrete constitutional “matter” falling exclusively within either a federal or provincial class of subjects. Legislation concerning religion or religious freedom ought to be characterized, I believe, in light of its context, according to the particular religious matter upon which the legislation is focussed. …

Applying the above principles to the appeals at bar, it is, in my opinion, open to a provincial legislature to attempt to neutralize or minimize the adverse effects of otherwise valid provincial legislation on human rights such as freedom of religion. (750-51)

There is nothing impossible about a Québec statute on secularism enacted notwithstanding the Charter being held invalid as a violation of the federal division of powers. The outcome will depend largely on the evidence and arguments related to the (real) purpose of the law. If those challenging the law were able to persuade the court that the purpose of (and not only the means taken by) the statute is religious in the legal, that is to say broad, sense of the term, and restrictive, the court could strike it down in whole or in part, notwithstanding its use of the notwithstanding clause.

I would only add a few comments. To begin with, following up on Professor St-Hilaire’s conclusion, it is important to note (as I already did in my original posts) that what might, to some, feel like a runaround to avoid the effects of the invocation of section 33 of the Canadian Charter is nothing of the sort. Some runarounds have been proposed in the last couple of days, for example by Louis-Philippe Lampron and Pierre Bosset, who suggest that unwritten constitutional principles can be invoked to impose limits on the legislature’s ability to invoke section 33. This is just not plausible. In British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473, the Supreme Court made it clear unwritten principles cannot be used to make up perceived shortcomings in the scope of the Charter’s protections. This logic must apply to the “notwithstanding clause” as much as to the gaps in the Charter‘s substantive rights. By contrast, however, the limits on a provincial legislature’s legislative power that pre-existed the Charter remain intact and enforceable. Section 31 of the Charter itself tells us as much. It provides that “[n]othing in this Charter extends the legislative powers of any body or authority.”

Next, I would argue that the purpose of Bill 21 is quite clearly religious, or rather anti-religious. These two things, as Professor St-Hilaire points out, are equivalent for constitutional purposes. The bill’s preamble proclaims that “it is incumbent on the Parliament of Québec to determine the principles according to which and manner in which relations between the State and religions are to be governed in Québec” and that “it is important that the paramountcy of State laicity be enshrined in Québec’s legal order”. Clause 1 provides that “The State of Québec is a lay State”. (Pro tip for the legislative draughtsman: “lay” is not a synonym of “secular”; this is another calque, just like “laicity”.) Clause 2 sets out “principles” on which “[t]he laicity [sic] of the State is based”, including “the separation of State and religions” and, supposedly, “the religious neutrality of the State”. (This is a rather transparent lie, since the bill would exclude religious individuals from a variety of functions within the purportedly neutral state.) And Bill 21’s centrepiece is, of course, Clause 6, which provides that various public employees and some contractors “are prohibited from wearing religious symbols in the exercise of their functions”. Only “religious symbols” ― not political ones, or those that have to do with any other aspect of people’s identities ― are targeted. This is a regulation of religion, and nothing else.

Consider, then, the arguments that the Québec government might make in defence of its legislation. The authority for it, if it exists at all, presumably comes from section 45 of the Constitution Act, 1982, or section 92(4) of the Constitution Act, 1867. The former provides that, subject to limitations that are not relevant here, “the legislature of each province may exclusively make laws amending the constitution of the province”. The latter grants the provinces power over “The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers”. The scope of section 45’s predecessor provision, section 92(1) of the Constitution Act, 1867, was explained by Justice Beetz in his majority reasons in Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2. To determine whether an enactment qualifies as an amendment to the constitution of the province, one must first ask:

is the enactment in question, by its object, relative to a branch of the government of Ontario … ? Does it for instance determine the composition, powers, authority, privileges and duties of the legislative or of the executive branches or their members? Does it regulate the interrelationship between two or more branches? Or does it set out some principle of government? (39)

However, even if the answer to this first question (or set of questions) is in the affirmative, one must keep in mind the restrictions on the provinces’ legislative authority imposed by the federal division of powers, and other limits imposed by the constitution of Canada as a whole. One can certainly argue that Bill 21 imposes duties on members of the three branches of Québec’s government, and sets out a “principle of government”. But if its true purpose is not so much to regulate the functioning of the provincial government as to compel religious non-observance, then it is still not valid legislation amending the provincial constitution. And I would add that, although the government might claim that it is not trying to prevent anyone from being religious outside of their working hours, religiosity is not something that can be switched off from 9AM to 5PM and then back on again.

Indeed, Justice Beetz’s comments in OPSEU on section 92(4) are suggestive here. Justice Beetz wrote that limitations on civil servants’ political activity at both the federal and the provincial level “constitute a term or condition of tenure of provincial office, enforced by compulsory resignation or dismissal. Their object is to ensure in this respect, not partial virtue, but global political independence for provincial officers.” (48) One can certainly say that Bill 21’s limitations on religious expression are a term or condition of tenure of provincial office. But if the government argues that their object is to ensure not partial, but global irreligion on the part of its employees, then the proposition that Bill 21 is not aimed at banning religious observance should be a tough sell.

Quite apart from constitutional issues, Bill 21 is a disaster from the standpoint of political morality. It is a massive violation of religious liberty of those who already are, or might in the future like to become, employed by the Québec government or hold provincial office. While less discriminatory on its face than Québec’s previous attempts at a dress code, in that it purports to ban all religious symbols and not just “ostentatious” ones (i.e. the hijab, the kippah, and the turban, but not the cross worn by Catholics, lapsed or otherwise, who constitute the majority of Québec’s population), it still transparently invites discrimination. It seems unlikely, to say the least, that anyone will be looking for crosses under civil servants’ shirts. Hijabs, kippahs, and turbans, on the other hand… But the constitution, despite the Québec government’s attempt to shove it aside, might yet stand in the way of this iniquity.

La Cour, c’est qui?

Peter McCormick identifies the likely author of the “by the Court” opinion in Comeau

Peter McCormick, University of Lethbridge

The Supreme Court’s recent decision in Comeau has definitely put the judicial cat among the federalist pigeons. At first glance – we have all seen the headlines – the case is about bringing cases of cheap beer into New Brunswick (“Free the Beer!”). On a closer look, the already enfeebled Section 121 of the Constitution Act 1867 has been effectively gutted, taking with it any realistic prospect of a major shift toward greater intra-Canadian free trade. Along the way, the sort of trial judge’s revisiting of precedent that was so highly lauded in Bedford has been severely chastised. An interesting case, therefore, on several levels.

The decision took the somewhat infrequent form of a “By the Court” judgment – one that is both unanimous and anonymous – which arguably makes it more emphatic while coyly veiling the identity of the judge who did the drafting. But the curtain of anonymity can be brushed aside to identify the lead author, or at least to establish solid relative probabilities. That identity will come as no surprise, but the methodology I will describe takes it some distance beyond simple conjecture.

That methodology is function word analysis. Function words are the words that express grammatical or structural relationships between other words (prepositions, pronouns, determiners, conjunctions, auxiliary verbs and particles), as distinct from the content words (nouns, adjectives, verbs and adverbs) that convey more concrete meaning. Function words are the words that everybody uses, but different people use with different frequencies and proportions, so much so that these frequencies and proportions provide a literary fingerprint. There are about 300 function words in the English language; my more focused function word list is drawn from the literature, and modified to reflect the actual usages of the Supreme Court over the last twenty years. It involves the 44 most frequently used function words, some of which are totals for related words such as “a” and “an”, or the different tenses of common auxiliary verbs like “to be” or “to have” or “to do”; together, these words accounted for a rather remarkable 40% of the total word count – overall and for every one of the judges. This was used to generate a word-usage profile from the written reasons attributed to each judge, and these in turn can be compared with the parallel profile of any specific anonymous decision. (The logic and procedures of the methodology are described at length in my article in the Dalhousie Law Journal.[1]) The point is to calculate a “Similarity Index”, summing for the 44 words the absolute value of the differences between that judge’s word-use frequencies and those that appeared in Comeau. The lower the score, the more likely it is that the particular judge was the lead writer.

Language is a possible problem – because counting words within even a superbly translated version will tell us as much or more about the translator than about the original writer – but the Supreme Court Reports assures us (by describing the English reasons as “the judgment” and the French reasons as the “version francaise”) that the original language of the Comeau decision was English. This also limits the number of “suspects” for the lead writer; I am assuming that Gascon and Cote would have written in French, such that the French language text would have been “le jugement,” and the English language text the “English version”.

Quotations are also a problem – extensive direct quotations distort the word counts by reflecting the usage patterns of the quoted writer, rather than those of the immediate writer. My solution is to delete all direct quotations from the examined text. Some Supreme Court justices quote very extensively, to such an extent that quotations can make up a quarter or more of the total word count. For the Comeau decision this proved to be a negligible factor, reducing the word count by less than 4%. As I will indicate below, this unusually low quotation count is itself a pointer to the identity of the lead writer.

Law clerks can be a problem, because they may have contributed early drafts for at least the more routine parts of the judgment. My solution was to eliminate these more routine parts (the introduction, the background, the decisions of the lower courts) and focus only on the much longer analysis section. This further reduced the word-count by about 20%, but it left 11,000 words and this is easily enough for the function word analysis to operate with credibility.

An adequate comparison basis is a problem; both Brown and Rowe have been appointed recently enough, and have had such a limited opportunity to write judgments or minority reasons, that there is not a large enough body of words to provide a reliable basis for comparison. Seniority is a large enough factor in decision assignment generally, especially for major cases and especially for constitutional cases, that it would in any event have been unlikely that either of these more junior members of the Court would have been doing the lead writing.

Finally, the “circulate and revise” process pursued by the Supreme Court can be a problem. All indications are that the other members of the panel take this very seriously, such that the lead writer’s initial draft can undergo significant revision as a result. My “fingerprint” metaphor above should be qualified to recognize that what is available for analysis may be a smudged rather than a perfect fingerprint. However, checking results back against the handful of By the Court decisions whose authors have actually been identified in judicial biographies has validated the methodology even for reasons that are described as having undergone major revisions. (Most dramatically, it revealed the “did not participate” Le Dain as having been the initial lead author of Ford and Devine, a finding that has been confirmed by both the Dickson biography and a recent CBC radio documentary).

Running this process for the Comeau decision, restricting the enquiry to the five senior judges who normally write in English, yields the following results:

Judge	Similarity Score
McLachlin CJ	8.03
Abella	8.94
ALL JUDGES	8.95
Karakatsanis	9.64
Moldaver	10.17
Wagner	11.76

Lower scores pointing to a more likely author, function word analysis points to McLachlin. Readers may initially be disappointed because the spread between individual judge’s scores are modest, but the tug of ingrained writing habits makes this meaningful. A smoking gun this may not be, it provides a rank ordering for the likelihood of lead authorship, and McLachlin is clearly indicated.

Moreover: the middle row in the table is significant in way that allows us to ratchet up the language with which to describe the findings. This provides the similarity score the word by comparison with an all-judge figure based on a combined total of four million words over a twenty-year period. Karakatsanis, Moldaver and Wagner are less like Comeau than is that all-judge figure; McLachlin – and only McLachlin – is significantly closer to Comeau than is the all judge figure. This makes the findings more decisisve than might have appeared at first glance.

Further: I mentioned earlier that eliminating direct quotations from Comeau reduced the total word count by only about 4%. For the McLachlin Court’s constitutional cases more generally, the average figure for such quotations was 13.5%. But this, too, is a distinctive and persisting characteristic of individual judges: some quote extensively and some do not. Abella, for example, frequently uses direct quotations, accounting for fully one-quarter of the words in her constitutional decisions, almost double the average. McLachlin, however, does not; direct quotations account for only 6.5% of the total words in her numerous constitutional decisions, less than half the all-Court average. This reinforces the suggestion of the similarity scores that McLachlin is the most likely lead writer of the Comeau judgment.

It is somewhat frustrating that one can create a large data-base, run detailed calculations, generate complex indices – and then wind up with a conclusion that simply confirms what was the most obvious guess from the beginning. (Who needs science when hunches work so well?) Beverley McLachlin has led the Court for almost 20 years, longer than any other Chief Justice in the Court’s history. During that time, she has delivered a disproportionate share of the Court’s constitutional decisions, and this statement remains true even if one pro-rates the counts to accommodate the fact that no other member of her Court has served the full eighteen years. Comeau is one of the last major constitutional decisions with which she will have been involved, and arguably the most significant federalism case of her Chief Justiceship; if there is any surprise, it is that she chose to write behind the veil of “By the Court” rather than over her own name.

[1] Peter McCormick, “Nom de Plume: Who Writes the Supreme Court’s ‘By the Court’ Judgments?” Dalhousie Law Journal, Vol. 39 (2016) 77

Comeau’s Lesson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unmaking History

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

s. 121 … is best conceived as preventing provinces from passing laws aimed at impeding trade by setting up barriers at boundaries, while allowing them to legislate to achieve goals within their jurisdiction even where such laws may incidentally limit the passage of goods over provincial borders. [91]

The notion of impediment to trade is seemingly a broad one, extending to any provincial law that “imposes an additional cost on goods by virtue of them coming in from outside the province”, [108] or indeed bans inter-provincial importation outright. But, crucially, only laws “aimed at” creating such impediments are prohibited by s. 121, and this will be an extremely narrow category. In effect, it seems that only laws serving primarily “purposes traditionally served by tariffs, such as exploiting the passage of goods across a border solely as a way to collect funds, protecting local industry or punishing another province” will count ― and even that “depending on other factors”. [111] A law having a “rational connection” [113] to some other regulatory purpose, such as “protecting the health and welfare of the people in the province”, [112] or most any other conceivable regulatory objective, will survive. The law at issue survives because it is part of a regulatory scheme intended “to enable public supervision of the production, movement, sale, and use of alcohol within New Brunswick”. [124] Its effects on inter-provincial trade in liquor coming to New Brunswick are merely “incidental”, and constitutionally permissible.

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

[t]o formulate a rule with reference to the function that the relevant provision is designed to perform is not a matter of making the law “the best it can be” but giving effect to the law as best one can. A judge who decided a case on the basis of some other reason—however normatively appealing that might seem—would be departing from the law entirely. (27)

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

* * *

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

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

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

* * *

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

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