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 Act2010 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 Ltd2005 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 117Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] AC 437, to some extent the Labour Conventions Reference, [1937] AC 326, [1937] 1 DLR 673, and more recently cases concerning constitutional amendment, including the Reference re Secession of Quebec, [1998] 2 SCR 217. In various ways, these cases hold that provinces are autonomous political communities and not mere components of the Canadian whole. This conclusion is an inference from the history and text of the Constitution Act, 1867. Perhaps the inference is wrong. All I can say here in its defence is that it is not enough to point to John A. Macdonald’s hope that provinces would in due course become no more than glorified municipal governments, if not wither away. Macdonald had initially hoped for a legislative union instead of a federal one. He lost that all-important fight, and the federation created by the Constitution Act, 1867 did not reflected the vision of Macdonald alone. To be sure, a federation without economic union may have been of little use; but a federation without meaningfully autonomous provinces would have been impossible.

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

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

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

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

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

Unmaking History

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

When it accepted to pronounce on the constitutionality of non-tariff barriers to inter-provincial trade, the Supreme Court had a chance to make history. In R v Comeau, 2018 SCC 15, the Court chose to unmake it instead. Far from “freeing the beer” and invalidating legislation that prevents bringing booze from one province to another and other regulatory schemes built on provincial protectionism, Comeau countenances even 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.

(Un)conventional

No, constitutional conventions cannot stop free trade within Canada

I didn’t write about the “Free the Beer” decision, R. v. Comeau, 2016 NBPC 3, when it came out this spring. It took me a very long time to read, and others beat me to it ― notably Benjamin Oliphant, to whose excellent analysis over at Policy Options Perspectives there is not much to add. There is one specific point, however, which concerns a pet peeve of mine, and which I do not think others have addressed, which in my mind justifies my doing so here, however belatedly. The point in question is the government’s argument that a constitutional convention meant that section 121 of the Constitution Act, 1867 ought not to be invoked to strike down legislation erecting barriers to inter-provincial trade.

Justice LeBlanc rejected this argument, just as he rejected the rest of the Crown’s submissions on his way to concluding that New Brunswick’s rules prohibiting the importation of alcohol from other provinces are unconstitutional because contrary to section 121. But although there is much to like about his decision overall, I think there is a bit more to say about this particular point than he did.

The Crown claimed, on the basis of an expert report by a political scientist, that the ever-evolving Canadian federalism had developed in such a way that

governments, rather than the courts, have taken on the lion’s share of responsibility for the management of the federation. This is accomplished in part by the courts’ recognition of constitutional conventions and by a judicious deferral to governments to maintain the balance of powers. [153]

One of the conventions in question is, according to the Crown’s expert, the “disuse” [169] of section 121:

governments do not use section 121 to challenge the protectionist policies of other governments. As such perhaps a convention has formed whereby section 121 is effectively rendered inoperative. [171]

The expert, moreover, saw section 121 as a sort of spent transitional provision, arguing that it is rather a convention that prevents the imposition of customs duties at provincial borders.

Justice LeBlanc responded by pointing out, quite rightly, that

[o]nce the Supreme Court of Canada strictly interpreted section 121 [in Gold Seal Ltd. v. Alberta (Attorney-General), (1921), 62 S.C.R. 424, as applying only] to custom duties, there was in reality nowhere else for the section to go. It strictly prohibited custom duties and nothing else. Its disuse became merely a matter of practice or custom. It was not possible for the section to be interpreted in any way to come to the aid of any other governmental policy or strategy.

In other words, Supreme Court precedent limited the scope of section 121 ― though it certainly did not abolish it, so that it is fanciful to claim that a constitutional convention has been doing the work that this provision has always done ― and it is for that reason that it was no longer invoked. That is true, so far as it goes, and it is understandable that a judge would say no more in the course of an opinion that is already quite long enough. But, as I noted above, there is more to say here.

It is worth pointing out that the Crown’s reliance on constitutional conventions in the course of an argument is a pretty remarkable thing. On an orthodox view, constitutional conventions are not enforceable by courts. The Crown analogized section 121 to the provisions of the Constitution Act, 1867 that enable the Governor General (acting on the advice of the federal government, of course) to disallow provincial legislation, which are rendered inoperative by a constitutional convention. Yet the Supreme Court expressed the view, in Reference re The Power of the Governor General in Council to Disallow Provincial Legislation and the Power of Reservation of a Lieutenant-Governor of a Province, [1938] S.C.R. 71, that these provisions were valid an in force as a matter of law. Similarly, in the Patriation Reference the Supreme Court said that conventions were not legal rules. So any attempt to invoke conventions as a sword rather than a shield (arguing that a claim should not be entertained because it asks the court to enforce conventions) faces an uphill battle, and indeed seems pretty desperate. It is telling, I think, that the Crown chose to make such an argument in Comeau.

Now, my own opinion is that the orthodox view that there is a sharp distinction between conventions and law is unfounded. Fabien Gélinas and I have suggested that, at least, conventions should inform the interpretation of the provisions of the written constitution. In a paper called “Towards a Jurisprudence of Constitutional Conventions”, (2011) 11:1 OUCLJ 29, I went further and argued that courts could actually treat conventions the way they treat common law constitutional rules, subject to justiciability concerns. While it is far from obvious that courts would endorse either of these approaches, and not very clear that the Crown in Comeau made much of an argument to show that they ought to, let’s assume that the court would have been bound to take a relevant convention into account in one way or another. Of course the question is whether there is such a convention here. Justice LeBlanc’s reasons suggest that the answer is “no.” But they ― understandably ― do not go into any detail on this point. A closer look shows that the Crown’s argument is completely off-base.

All constitutional conventions limit or eliminate he discretion that political actors seem to enjoy pursuant to other constitutional rules. For example, the law of the constitution leaves the sovereign with the choice to assent or not to bills that have passed the House of Commons and the Senate, but convention eliminates this discretion. The sovereign must assent. Geography does not figure among the criteria which the Supreme Court Act provides for the appointment of Supreme Court judges, other than those from Québec, but convention reduces the government’s discretion as to the advice it gives the Governor General by supplying additional geographic requirements.

What about the alleged convention here? The Crown’s expert points out that governments have refrained from suing each other on the basis of section 121. But even if that forbearance could be said to have acquired the status of a conventional rule, this convention could apply to governments ― the political actors whose behaviour contributed to the alleged rule’s emergence ― and only to governments. Not to citizens. To repeat, conventions stipulate how political actors exercise discretion. They do not dictate the behaviour of citizens. So while a convention may in effect nullify constitutional provisions that only empowers a political actor, such as those dealing with the disallowance power, they cannot “render[] inoperative” provisions that confer rights on citizens.

The Crown’s argument assumes, without even attempting to demonstrate, that section 121 is a provision that only concerns governments. But the assumption is unwarranted, and indeed galling. Constitutional provisions limiting the power of governments, such as section 121, exist in order to preserve the liberty of the citizens. In Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31, Chief Justice Rinfret wrote that even if Parliament and the legislatures agree to modify the constitutional division of powers by resorting to delegation, they cannot do so, because

[t]he constitution of Canada does not belong either to Parliament, or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. (34)

As the Chief Justice pointed out,

[i]t is part of that protection that Parliament can legislate only on the subject matters referred to it by section 91 and that each Province can legislate exclusively on the subject matters referred to it by section 92. (34)

But another part of that protection, of course, is that when the constitution removes a legislative power from both Parliament and the provinces, neither can arrogate such a power to itself, even with the connivance of the other. This is true of the power of constitutional amendment, for instance, and of the violation of Charter rights. And it is equally true of section 121. Were a court to accept to Crown’s (un)conventional argument to the contrary, it would transform the Canadian constitution from protection of the citizens’ freedom into a plaything for governments intent on limiting that freedom.

 

A Frozen Concept

Here is a stray thought inspired by the discussion of interjurisdictional immunities in the Supreme Court’s decision in Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, about which I wrote yesterday. One way in which the Supreme Court has, or so it is often claimed, dismissed originalist constitutional interpretation is by comparing it to a theory of “frozen concepts” which cannot evolve as the times require. In Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698, the Court proclaimed that

[t]he “frozen concepts” reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life. [22]

Speaking extra-judicially, then-Justice Binnie went one step further and referred to “a theory of frozen rights with no realistic prospect of a thaw.”

However, as Benjamin Oliphant and I explain in a recent paper, equating originalism with a simple belief that the concepts used in a constitutional text are “frozen” reflects a misunderstanding if not a misrepresentation of contemporary originalism, at least, or especially, of contemporary originalism which accepts a distinction between constitutional interpretation and construction. Indeed, as we further argue, the Court itself occasionally resorts to originalist reasoning, some of which could arguably be described as reflecting a “frozen concepts” view of constitutional law.

Be that as it may, the doctrine of interjurisdictional immunities is probably the single best example of a “frozen concept” in Canadian constitutional law. In Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, the majority opinion stated that

interjurisdictional immunity is of limited application and should in general be reserved for situations already covered by precedent. This means, in practice, that it will be largely reserved for those heads of power that deal with federal things, persons or undertakings, or where in the past its application has been considered absolutely indispensable. [77]

The majority in Rogers Communications quoted this passage with approval, and approach the issue of interjurisdictional immunity accordingly, asking whether there was precedent for treating the location of radiocommunications equipment as belonging to the “core” of the federal power over radiocommunications.

This is not, strictly speaking, originalism. Along with the whole machinery of “pith and substance,” “double aspect,”  and “paramountcy,” it is a creature of constitutional construction ― the judicial development of doctrines necessary to give effect to a constitutional text, which is often insufficient to resolve a dispute on its own. (Canadian Western Bank sets out this development in great detail.) Constitutional construction, as Randy Barnett for example has argued, is not itself originalist ― only interpretation can be.

Yet the idea that interjurisdictional immunity is alive and well ― but only in those areas where there is precedent for its application is nothing if not the “freezing” of a constitutional concept ― albeit one developed by judges rather than provided by the constitutional text. For close to a century, the doctrine developed in fits and starts ― and then, in 2007, Justice Lebel and, of all people, Justice Binnie concluded that that was it, and that the time had come to freeze it in its then-current state. This decision is rather puzzling. For one thing, it seems to sit uneasily with the Supreme Court’s oft-repeated commitment to “living-treeism” ― reiterated in Canadian Western Bank, where the majority opinion insists that “the interpretation of [legislative] powers and of how they interrelate must evolve and must be tailored to the changing political and cultural realities of Canadian society.” [23] And for another, it is not clear that the normative arguments for treating a statutory or constitutional text as “frozen” until amended by the body that enacted it apply to a judicially-developed doctrine ― or at least that they can support a “freezing” of such a doctrine deeper than that effect by the usual principles of stare decisis.

Whether or not treating it in this way makes sense, the doctrine of interjurisdictional immunity is a “frozen concept” in Canadian constitutional law. It is one more reason to treat judicial protestations to the effect that such things are unknown this side of the border as too much. Slogans do not help us understand constitutional law, or anything else.