Comeau’s Lesson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unmaking History

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

* * *

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

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

(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.

If You Build It

A good decision for federalism and for property rights from the Supreme Court

This morning, the Supreme Court has delivered its decision in Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, holding that a municipality cannot prevent a telecommunications company from building an antenna at a site authorized by the federal government, since under the constitution that government has exclusive competence over radiocommunications. I believe this is the right decision from the standpoint of federalism doctrine and policy. It is also, if only coincidentally, a good decision from the standpoint of property rights.

Simplifying somewhat, the case arose out of Rogers’ attempt to build an antenna for its cellular network in Châteauguay, on a site that it had leased from a willing owner. Federal rules required it to obtain permission from the federal government and also to consult the municipality, while allowing the federal government to resolve any conflict with local authorities. Rogers did all this, and initially the municipality gave it the green light. However, after citizens concerned about the supposed effects of radio waves on their health and the environment petitioned the municipal authorities, they changed their mind and tried to get Rogers to agree to build its antenna on a different location. The owner of that site, however, was not willing to lease it out to Rogers, while the municipality tried to expropriate it, Rogers was unwilling to wait until expropriation proceedings would conclude, and decided to go ahead with its original project. The municipality responded by issuing, and subsequently renewing, a “notice of reserve” which signified its intention to expropriate the site, and prevented Rogers from building there.

Rogers argued that this was both unconstitutional and in bad faith and thus invalid under municipal law. In reasons by Justices Wagner and Côté, an eight-judge majority held that the notice was not a valid exercise of a provincial, and therefore a municipal, power. Justice Gascon, who concurred, was of the view that while the notice was a valid exercise of provincial power, it was inapplicable to Rogers by virtue of the doctrine of interjurisdictional immunity.

* * *

The municipality argued that its “ultimate purpose in establishing the reserve was to protect the health and well‑being of its residents living close to” Rogers’ chosen site for its antenna, “and to ensure the development of its territory” ― purposes that fall within the provincial and therefore municipal jurisdiction. The majority of the Supreme Court disagreed, however. The notice of reserve was clearly intended to forestall Rogers’ work on the antenna. It had no other purpose or effect than to interfere with its choice of location, which falls within the federal jurisdiction over radiocommunications. The majority added that

[e]ven if the adoption of a measure such as this addressed health concerns raised by certain residents, it would clearly constitute a usurpation of the federal power over radiocommunication. [46]

Thus, in “pith and substance,” the “matter” with which the notice of reserve dealt was radiocommunications, and the notice was ultra vires ― beyond the competence of the body that enacted it.

The majority acknowledged that the Supreme Court’s division of powers jurisprudence favoured flexibility and “co-operative federalism.” This principle, however,

can neither override nor modify the division of powers itself. It cannot be seen as imposing limits on the valid exercise of legislative authority … Nor can it support a finding that an otherwise unconstitutional law is valid. … [F]lexibility has its limits, and this approach cannot be used to distort a measure’s pith and substance at the risk of restricting significantly an exclusive power granted to Parliament. [39, 47]

The majority added that holding otherwise, or finding that the notice of reserve had a “double aspect” ― i.e. that it dealt with a provincial “matter” at the same time as a federal one ―

could encourage municipalities to systematically exercise the federal power to choose where to locate radiocommunication infrastructure while alleging local interests in support of their doing so. [47]

In his concurrence, a rather exasperated-sounding Justice Gascon disagrees, saying that he

find[s] it a bit much to suggest that a flexible approach to the pith and substance doctrine could encourage municipalities to hide behind local interests in order to exercise a federal power. [95]

He concludes that Châteauguay acted “not simply to control the siting of a radiocommunication system, but rather to respond to its residents’ concerns” [100] regarding health and the development of the municipality’s territory. In Justice Gascon’s view, the majority goes astray in not adopting a sufficiently flexible approach to the “pith and substance” analysis, and also in overemphasizing the practical effects of the notice of reserve at the expense of its purposes.

However, Justice Gascon agrees with the majority that even if the municipality had the constitutional authority to issue the notice of reserve, the notice would be inapplicable to Rogers by virtue of interjurisdictional immunity. The choice of locations for communications equipment has already been determined to fall within the “core” of the federal power, and the municipality’s attempt to prevent Rogers from building its equipment at a site approved by the federal government in the exercise of that power rose to the level “impairment” sufficient to trigger the application of the immunity doctrine.

* * *

As I mentioned at the outset, I believe the Court ― and specifically, the majority ― has it right. At the level of doctrine, I think that the majority is right to conclude that the reserve notice was ultra vires the municipality. As it noted, all the notice did was interfere with the choice of location of Rogers’ equipment. The fact that the motivation for this interference had to do with health and development concerns does not change the fact that the notice itself only had to do with radiocommunications.

Indeed, Justice Gascon’s approach ― finding that the notice of reserve was, in pith and substance, related to health and local development but could not apply to the only party to whom it was ever intended to apply strikes me as rather artificial. As the majority notes, the case is different from one in which, as in Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536, the law at issue is one “of general application that has numerous legal and practical effects,” [48] only a small subset of which are constitutionally suspect. It makes sense to resolve such a case by applying the doctrine of interjurisdictional immunity to prevent this small subset of effects from occurring while allowing the law as a whole to stand undisturbed. Justice Gascon invokes interjurisdictional immunity to deprive the notice of reserve of its effect and raison d’être. It seems more logical to say that the notice is simply void, because it is entirely about a federal, not a provincial, “matter.”

From the policy perspective, these details matter little. What is important is that the Supreme Court’s decision allows the federal government to exercise its constitutional powers without being impeded by nimbyists all over the country who would raise this or that local concern ― if not some scientifically discredited theory, as seems to have been the case here ― to prevent any national infrastructure being built. The constitution makes federal government responsible for telecommunications ― as well as for physical inter-provincial links, such as railways and, perhaps most importantly in the current political context, pipelines, for a good reason. These matters have to be treated at a national scale because of the holdout issues and collective action problems that would arise if the provinces ― and, a fortiori, municipalities ― could stand in the way or had to deal with them on their own.

Appeals to co-operative federalism are misguided in this context. After the Supreme Court handed down another decision limiting the power of that principle, the one in the gun-registry litigation, Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693, I tentatively suggested that the principle the Supreme Court applied was that of competitive rather than co-operative federalism. Competitive federalism is usually understood as involving competition between members of the federation (i.e. provinces in Canada) to get individuals and businesses to move from to another. But the Court’s federalism jurisprudence fosters “vertical” competition between the federal government and the provinces, I wrote, “for the political benefits that result from enacting policies that citizens want to see enacted.” Such competition is fine so long as its costs can be internalized by the voters for whose benefit it exists. For instance, when Québec sets up its own gun registry to replace the one scrapped by the federal government, Québec taxpayers will pay for it. But when the preferences of one set of voters are satisfied at the expense of others, what takes place is not competition, but rent-seeking. Allowing municipalities to interfere with the development of infrastructure that benefits people well beyond their borders in order to allay the local voters’ concerns would encourage just that sort of behaviour. The Supreme Court was right to step in to prevent it.

* * *

I briefly turn now to the property rights perspective on this case. The Supreme Court has seldom been solicitous of property or economic rights (except, that is, the economic rights of unionized labour), and there is no reason to think that property rights concerned it here. However, it is worth pointing out that, even if unintentionally, the Court’s decision is a clear win for property rights and freedom of contract. Consider that Rogers had found a willing lessor for the land it needed to build its antenna. The owner of the alternative site proposed by the municipality, by contrast, did not want to do business with Rogers. So the municipality wanted to expropriate her, and deprive the owner of Rogers’ preferred site of a business opportunity. And when that plan failed, it decided to expropriate the owner of that site as well. This casual indifference to property rights and economic liberty of the municipality’s own citizens is disheartening, and even if the Supreme Court preserves these rights by a happy accident, its decision is worth celebrating for that reason.

Conflict and Frustration

Last Friday, the Supreme Court issued decisions in three cases dealing with the federal paramountcy doctrine, which holds that when both a federal and a provincial statutes are applicable to a situation, the federal one prevails, and the provincial one is rendered inoperative, to the extent ― if any ― of the conflict between them. In this post, I will comment on two of these decisions, Alberta (Attorney General) v. Moloney, 2015 SCC 51, and 407 ETR Concession Co. v. Canada (Superintendent of Bankruptcy), 2015 SCC 52, which deal largely with the specific issue of the kinds of conflict that can arise between a federal and a provincial statute, and how to distinguish between them.

The Court is split, with Justice Gascon writing for a seven-judge majority in both cases, and Justice Côté (with the agreement of the Chief Justice) concurring in judgment but disagreeing about the reasoning. Yet it seems to me that this conflict within the court is quite unnecessary, and only serves to illustrate the unsatisfactory character of the Supreme Court’s jurisprudence on the issue of paramountcy (as well as some other federalism issues not in play in these cases), about which I complained after its previous engagements with this topic in Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, [2013] 3 S.C.R. 53 and in Bank of Montreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725.

* * *

The issue in both Moloney and 407 Concession was whether provincial laws which prevented a person from renewing a driver’s license or registering an automobile unless he or she paid back certain debts ― one related to a traffic accident caused while driving uninsured in Moloney and one resulting from an accumulation of unpaid road tolls in 407 Concession ― could be applied to persons whose debts had been released through a bankruptcy. Bankruptcy law is a federal competence, and the federal Bankruptcy and Insolvency Act provides rules governing a bankrupt’s release from all “claims provable in bankruptcy,” which the debts in question were conceded to be. Provincial law, meanwhile, doesn’t force the bankrupt to satisfy these claims but, by making it impossible for him or her to keep driving on the province’s roads, creates a very strong incentive to do so.

All the judges agreed that this amounted to a conflict between federal and provincial law, which triggered the application of the doctrine of federal paramountcy, so that provincial law became inoperative. The provinces cannot refuse to register the vehicles of persons discharged from bankruptcy in order to induce them to pay the debts from which the bankruptcy was supposed to have released them. But, as I mention above, the judges did not agree about the reasons for this conclusion.

For the majority, there existed an “operational conflict” between the federal and the provincial laws at issue, meaning that “it is impossible to comply with both.” [Moloney, 18] The conflict must be “clear, direct or definite,” [22] but in asking whether a conflict exists the court need not limit itself “to the actual words or to the literal meaning of the words of the provisions at issue.” [23] The ordinary methods of statutory interpretation are to be used. In Moloney,

the test for operational conflict cannot be limited to asking whether the respondent can comply with both laws by renouncing the protection afforded to him or her under the federal law or the privilege he or she is otherwise entitled to under the provincial law. … [T]he laws at issue give inconsistent answers to the question whether there is an enforceable obligation: one law says yes and the other says no. [60]

For the majority, this is sufficient for a finding of conflict. Similarly, in 407 Concession, “[u]nder the federal law, the debt is not enforceable; under the provincial law, it is. The inconsistency is clear and definite. One law allows what the other precisely prohibits.” [25]

The concurrence disagreed. In its view, the majority’s

analysis contrasts with the clear standard that has been adopted for the purpose of determining whether an operational conflict exists in the context of the federal paramountcy test: impossibility of dual compliance as a result of an express conflict [and] conflates the two branches of the federal paramountcy test, or at a minimum blurs the difference between them and returns the jurisprudence to the state it was at before the second branch was recognized as a separate branch. [Moloney, 93]

So long as the discharged bankrupt does not drive, the province has no “leverage to compel payment of the debt” and “the literal requirement of the federal statute is, strictly speaking, met. It therefore follows that the two acts can operate side by side without conflict.” [97] The same was true in 407 Concession. Indeed, courts should favour findings of no operational conflict, including by interpreting ambiguous federal legislation narrowly so as to make room for provincial laws to operate alongside it.

In the concurrence’s view, these cases, and perhaps most others where the doctrine of paramountcy is invoked, ought to be analyzed under the heading of the frustration of the purpose of the federal statute. This makes it possible to carefully analyze the purpose of the federal law and to take into account the federal government’s view of whether this purpose is being frustrated by the operation of the provincial legislation, and generally to foster a co-operative approach to federalism that embraces the concurrent operation of federal and provincial laws in the same area.

Ultimately, the concurrence endorses the majority’s view that the frustration-of-federal-purpose test is met in these cases. Bankruptcy law aims at the “financial rehabilitation” of the bankrupt, allowing (and/or providing the incentive for) him or her to re-integrate economic life free from the burden of past debts. Giving the province the ability to demand payment of some debts goes against this purpose. If the bankrupt wants to drive, he or she must pay out; it is as though the debts at issue were not a thing of the past. And while a creditor might be able to “revive” a debt in exchange for fresh consideration, letting a bankrupt drive is not good consideration because the province has no authority to prevent a person from driving on account of his or her failure “to satisfy a … debt that was released in bankruptcy” [81] to begin with.

* * *

Given this ultimate agreement, the apparent conflict between the majority and the concurrence is a bit surprising. Justices Gascon and Côté trade mutual accusations of making one or the other “branch” of the paramountcy test “meaningless” [69; 128], but never actually explain why these accusations are serious ones. What would be lost if the two branches of the test were fused?

Like the doctrine of federal paramountcy itself, the two-branch test used to apply it was created by the Supreme Court itself. Unlike the doctrine, however, it is both a relatively recent creation, and one that can be dispensed with. It seems to me that the “operational conflict” branch of the test can easily be, not just “rendered meaningless,” but abandoned altogether.

To be sure, Justice Côté quotes the majority reasons in Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536, at par. 64, for the proposition that “[c]laims in paramountcy may arise from two different forms of conflict.” But that statement is itself only asserted, not explained. Justice Côté claims that

[w]hile it is true that [these two branches of the paramountcy test] overlap, it is not true that a finding of an operational conflict in the first branch will necessarily entail a finding of frustration of a federal purpose in the second branch. An overlap between the two forms of conflict does not mean the branches are necessarily redundant. [107]

Unfortunately, Justice Côté does not give any examples of situations where an operational conflict would not coincide with a frustration of the purpose of the federal law. She only states that “[t]he federal scheme may be drafted in a manner that does not match the record of Parliament’s intent, but that results in an express conflict with a provincial law,” [107] but the ― purely hypothetical ― possibility of such poor legislative drafting seems like a very weak reason for preserving a legal distinction that will, in practice, (almost?) never make any difference, and yet will generate disagreement and confusion.

It seems to me that the “operational conflict” branch of the paramountcy test should simply be discarded. Impossibility of dual compliance should be regarded as an instance ― perhaps the clearest, but not the only possible instance ― of a frustration of the federal purpose.  What Justice Côté says about the way to analyze frustration of purpose makes sense, at least so long as one accepts the general thrust of the Supreme Court’s federalism jurisprudence which favours what it terms co-operation (but which I believe is actually competition) resulting from the concurrent operation of federal and provincial legislation. But it’s not clear to me that one cannot approach frustration of purpose in the way described by Justice Côté unless one insists on a rigid separation and a narrow definition of the “operational conflict” branch of the paramountcy test.

* * *

In the meantime, the situation is a bit like the one that prevailed in administrative law before Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. The Supreme Court had first created a “patent unreasonableness” standard of review, and then, considering that it was too narrow, added an additional one, called “reasonableness simpliciter” ― without discarding “patent unreasonableness.” As a result, courts wasted a great deal of time deciding which of the two applied. Similarly after articulating the “operational conflict” test for the application of the paramountcy doctrine, the Supreme Court concluded that it did not capture all the situations where the doctrine should apply and, instead of simply broadening the test, added another one on top of it. As a result, courts will waste time in inconsequential efforts to figure out which of the two should be applied, before arriving to the same result.

The unsatisfying dispute between the majority and the concurrence in Moloney and in 407 Concession is a reminder, if one was needed, that conflict and frustration tend to go together. The Supreme Court’s attempts to disentangle them serve no useful purpose.

Cooperative, or competitive?

The critics of the Supreme Court’s decision in the long-gun registry case, Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14,  have lamented the majority’s failure to make good on what seemed like the promise of cooperative federalism in the Court’s recent jurisprudence. In La Presse + today, Jean Leclair argues that the judges in the majority “most certainly weaken the principle of cooperative federalism, which they had so extolled” (translation mine). Striking a more optimistic note over at I-CONnect, Paul Day hopes the dissent will “become the point of departure for Canadian courts and commentators interested in exploring ‘cooperative federalism’.” There certainly has been much talk about cooperative federalism in connection with this case, and more broadly in recent years. But what if the phrase were not an apt description for the Supreme Court’s actual concerns? I am, very tentatively, inclining to the idea that it would have been more accurate to speak not of cooperative, but of competitive federalism.

Now, the “competitive” part of competitive federalism usually refers to “horizontal” competition between the components in a federation (e.g. the States in the United States or the provinces in Canada). The idea is that these components will compete with each other by enacting different policies on the same subject. Individuals and businesses will “purchase” these different policies by moving from one jurisdiction to another one, whose policies they prefer and, similarly to what happens in the marketplace, this competition will show whose policy is the most attractive one, or allow a differentiation between the regulators allowing the preferences of persons with different tastes to be satisfied.

Applying this idea to the “vertical” context of competition between the federation and the components is not straightforward, because in the vertical context, the central legislature will normally hold a trumping power (e.g. through the Supremacy Clause under the U.S. Constitution or the paramountcy doctrine in Canadian constitutional law). The competition is not entirely fair, since one of the competitors can pretty much declare himself the winner. And that’s when the competition can take place at all. Because the two levels of legislatures have different legislative powers, there are many areas over which they cannot compete.

But, in the Canadian context at least, vertical competitive federalism is not impossible. Indeed, under the guise of encouraging “cooperative federalism,” the Supreme Court has actively promoted it. As prof. Daly notes, the Court

has employed cooperative federalism as an interpretive principle to reshape constitutional law: most notably, the doctrine of interjurisdictional immunity–premised on the existence of exclusive zones of federal and provincial authority in the areas of competence set out in the Constitution Act, 1867–has been reduced to virtually nothing.

While I do not think that “virtually nothing” is quite correct, because interjurisdictional immunity still applies, at least, in “situations already covered by precedent” (Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, 2007 SCC 22, at par. 77), the Court’s unwillingness to expand its application is indeed the most significant consequence of what it describes as its embrace of the cooperative federalism principle. But it seems to me that the limitation of interjurisdictional immunity is conducive to competition rather than cooperation. So, too, are the Court’s insistence on interpreting the notion of conflict between federal and provincial law narrowly, so as to limit the scope of potential application of the paramountcy doctrine, and the application of the “double aspect” doctrine, which allows concurrent jurisdiction over “matters” deemed to be at once federal in one “aspect” and provincial in another. Together, these principles in the Supreme Court’s federalism jurisprudence counteract, in part, the two factors that make vertical competition in a federation difficult. Limiting the scope of interjurisdictional immunity expands the areas over which Parliament and the provincial legislatures have concurrent jurisdiction and which both can regulate, while limiting the application of the paramountcy doctrine results in fewer occasions on which Parliament’s regulation prevails simply by virtue of being Parliament’s.

Of course, the vertical competition for which the Court thus makes room isn’t quite the same as horizontal federal competition. The option of moving away from a set of policies one doesn’t like is off the table, because Parliament’s policies are applicable throughout the country. But voters still have the option of rewarding the government that enacts the policies they support, and punishing the one that doesn’t. The competition between the two levels of government is thus not for citizens and businesses who can move from one jurisdiction to the next, but for the political benefits that result from enacting policies that citizens want to see enacted.

This brings me back to the gun registry issue. Québec presented the registry as the product of federal-provincial cooperation; the dissenting judges at the Supreme Court, as well as their academic supporters such as profs. Leclair and Daly accepted that characterization. But isn’t it at least as plausible to regard the federal registry as the product of competition between Parliament and the legislatures for the political benefits of satisfying the citizenry’s preferences in the area of gun control? Parliament created the registry because it, or its masters in the executive, thought that this would have political benefits for them. Now, however, a differently constituted Parliament, catering to a different electoral coalition, thinks that it will benefit from enacting a different policy.

Seen from this perspective, the issue for the Supreme Court was not whether a partner in a cooperative venture had acted disloyally, but whether one competitor had to assist the other in implementing a policy it chose to discard. Imposing a requirement to do so would have restricted the freedom of the market for policies and might conceivably have deterred entrants, contrary to the Court’s apparent policy of encouraging vertical regulatory competition within the Canadian federation.

Now it is still arguable that competition in a federal context must be loyal, and that Parliament had failed to respect that requirement, or indeed that competition has no place in this context. Either way, you can endorse my re-interpretation of the case, as an analytical matter, and still believe that its outcome was a mistake. But I would suggest that the majority’s decision is at least more consistent with the Court’s previous cooperative competitive federalism jurisprudence than its critics allow, and that, conversely, the dissent’s position involves a greater departure from the previously accepted principles than defenders claim.