Sentencing Judgment Found Inside a Chinese Fortune Cookie

The sentencing judgment in the Québec City mosque shooter’s case is badly flawed

This post is co-written with Maxime St-Hilaire

The sentence imposed on the accused in R v Bissonnette, 2019 QCCS 354 for murdering six worshippers at a Quebec City mosque, and injuring, in many cases grievously, multiple others is striking: life imprisonment, as for all murderers, and no possibility of parole for 40 years. This is one of the longest periods of parole ineligibility in Canadian history, and thus one of the heaviest sentences imposed since the abolition of the death penalty. Yet equally striking, and in our view insufficiently discussed (in English anyway), is the reasoning of the Québec Superior Court judge who imposed this sentence―and re-wrote the Criminal Code in order to do so.

At the heart of the decision is section 745.51 of the Criminal Code, which since 2011 has authorized―but not required―judges to stack parole ineligibility periods for persons convicted of multiple murders. The Crown invoked it and asked for Mr. Bissonnette to be subject to six consecutive 25-year periods, thus theoretically making him eligible for parole after 150 years. The defence argued that such stacking would be unconstitutional, and that Mr. Bissonnette’s periods parole ineligibility should run concurrently, as they would have before 2011, potentially making him eligible for release in 25 years.

Having reviewed the harrowing facts, Justice Huot takes the view that neither of these positions is just. On the one hand, courts ought not to “sink into excess by imposing punishment that impresses the media but is, all told, of little real significance”. [758; translation ours here and throughout] On the other, “the needs for denunciation, deterrence, and incapacitation are so pressing in this case that the imposition of six concurrent ineligibility periods would bring the administration of justice into disrepute”. [766] According to Justice Huot, justice requires that Mr. Bissonnette be ineligible for parole for more than 25 years―but less than 50. Yet section 745.51 dictates that if ineligibility periods for those guilty of multiple first-degree murders are going to be stacked, they must be stacked in full; that is to say, by increments of 25 years (the mandatory period for one such murder), on the premise that the lives of all victims are of equal value.

However, Justice Huot finds that section 745.51 is unconstitutional. In his view, it is a violation of the constitutional protections against cruel and unusual punishment (section 12 of the Canadian Charter of Rights and Freedoms) and against deprivations of liberty and security of the person not in accordance with principles of fundamental justice (section 7 of the Charter). And having so found, Justice Huot takes it upon himself “to modify … existing law” [1173] to grant himself the power to sentence Mr. Bissonnette in the exact way he thinks just.

We think that Justice Huot’s conclusions on section 12, section 7, and the remedy are all fatally flawed. His opinion is, moreover, petty (to the point, as we suggest below, of possible illegality), and lacking in rigour (even misspelling Chief Justice McLachlin’s name on a couple of a occasions). For all its prodigious length and academic, even literary, pretension, the judgment is a failure of scholarship as well as of judicial craft. We cannot comprehensively summarize Justice Huot’s reasons here, but will try to highlight their most significant defects.


Section 12 of the Charter provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”. Justice Huot argues that

it would be disproportionate, cruel, and contrary to Canadian society’s values of justice and compassion to deny an individual who has, since his teenage years, suffered from mental health problems all hope of gaining his freedom back, if only for a few years, regardless of how abominable his crimes were. Canada is not a land where the most undesirable elements of the community are shut in a gaol and their very existence forgotten, the key of their liberty having been thrown into the river of a vast collective indifference. [845]

Of course, section 745.51 didn’t require Justice Huot to impose what he regards as a cruel sentence. It says that parole ineligibility periods can be stacked―not that they must be. Like many if not most provisions of the Criminal Code, it made possible the imposition of a maximum sentence that the judge considers excessive in the circumstances of a particular case. That, by itself, should be no reason to hold it to be contrary to the Charter.

The idea that it is cruel to, in effect, sentence a person to die in prison is also perplexing. For Justice Huot, it is nothing short of “sophistry to assert that [multiple murders] should reasonably expect, in a free, civilized, and democratic society, to spend the rest of their days behind bars, any endeavours at rehabilitation notwithstanding”. [975] Indeed, he asserts that “Canadians would consider as ‘odious and intolerable’ any sentence denying the accused a reasonable chance at conditional release in the last years of his life”. [982] Yet depending on the offender’s age, a fit and just sentence, even for a lesser crime than a hate-driven massacre, may have such a consequence. Does it, for that reason, become unconstitutionally cruel? As for Canadians, a clear majority of them apparently thought the actual death penalty “morally right” just a few years ago. To be clear, this isn’t to say that this majority is itself right. But Justice Huot has no way of knowing that popular opinion has changed. He is, we are afraid, simply making things up.

Indeed, it is difficult to avoid the impression that Justice Huot’s reason for invalidating section 745.51 have to do not so much with the risk of cruelty to the man before him, but with what he regards as “the credibility of the justice system”. [846] Justice Huot is adamant that “a simple period of 25 years of parole ineligibility of 25 years would be utterly unreasonable and disproportionate in the circumstances”. [880] That may be the case (though Parliaments from the 1970s to 2011 had not thought so), but a disproportionately lenient sentence, unlike an excessively harsh one, is not a constitutional violation. The constitution protects individuals from excessive punishment by the state, not society against insufficiently punished offenders. Justice Huot argues that it is imperative “that Parliament leave sufficient discretionary powers to the courts for them to impose on offenders sentences that” [846] will be just in all the circumstances. But, while this this argument may be sound policy, it has nothing to do with preventing cruel and unusual punishments.


Things do not get better as Justice Huot moves on to discussing section 7 of the Charter, which provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. There is little question that, by allowing the imposition of addition parole ineligibility, section 745.51 implicates the right to liberty. But is it also not in accordance with the principles of fundamental justice?

Justice Huot thinks so. Indeed, he identifies three such principles that he thinks are being infringed. The first one is the prohibition on overbreadth. Section 745.51 is overbroad, says Justice Huot, because it makes it possible for a judge to impose a 50- or 75-year parole ineligibility period on a multiple murderer who would, all things considered, only deserve 30 or 40. Again, Justice Huot insists that not imposing an excessive ineligibility period in such cases is no solution, because “it is simply unrealistic to believe that sentences of 25, 50, or 75 years of ineligibility will always be proportional”. [1051]

Second, Justice Huot says that section 745.51 infringes the prohibition on gross disproportionality, as do all punishments found to be cruel and unusual.

And, not content with these findings, Justice Huot goes on to hold that section 745.51 infringes a third principle of fundamental justice: human dignity. Now human dignity has never been recognized (or, to be fair, rejected) as a principle of fundamental justice for the purposes of section 7 of the Charter. This is no problem for Justice Huot, who breezes through the test for recognizing a new such principle. Dignity, he says, is a legal principle, because it has been recognized as a value underlying the Charter and received “express mentions in the Canadian Bill of Rights and in international agreements”. [1098] Similarly, it is the subject of a broad consensus. And as for whether respect for human dignity is a sufficiently specific criterion to assess infringements of the rights protected by section 7, Justice Huot dismisses the question in a couple of sentences: “Human dignity is a well-known legal principle. It characterizes human beings ‘in their universality’. This concept is sufficiently precise to be considered a ‘manageable standard’.” [721; references omitted].

Justice Huot’s reasoning on overbreadth is dubious, to say the least. Overbreadth more naturally describes the prohibition of conduct that should not be prohibited (because it is unrelated to the prohibition’s purpose) than to excessive punishment, which should be treated under the rubric of gross disproportionality. Moreover, his findings on both of these principles disregard the fact that the issue, under section 7 of the Charter, is whether section 745.51 may force a sentencing judge to deprive an offender of liberty contrary to fundamental justice―not whether it may prevent the judge from imposing a sentence that is exactly proportional to the crime.

But it is the casual recognition of human dignity as a principle of fundamental justice that’s most astonishing. Put to one side the question of whether an underlying or preambular value is properly characterized as a legal principle. Recall, simply, that the Supreme Court struggled for the better part of a decade to integrate human dignity into its equality jurisprudence, and gave up―recognizing in R v Kapp, 2008 SCC 41 [2008] 2 SCR 483 that “human dignity is an abstract and subjective notion”, “confusing and difficult to apply”. [22] Justice Huot, of course, ignores this. To him, the cryptic reference to human universality is guidance enough.    

Needless to say, Justice Huot’s entire section 7 discussion is an obiter, since he has already found section 745.51 a violation of section 12 of the Charter; the discussion of human dignity, doubly so, since he already finds a section 7 infringement on account of overbreadth. A prudent judge would not venture into uncharted and choppy jurisprudential waters without the need to do so. Justice Huot, however, is not such a judge.


Having (unsurprisingly) found that there is no justification under section 1 of the Charter for what he considers cruel and unusual punishment and a violation of principles of fundamental justice (and made along the way some remarkable comments, to which we shall return), Justice Huot turns to the question of the remedy. This is probably the most astonishing part of his judgment. Without having been asked to do so by either party, and without having given them the opportunity to at least make submissions on the matter, Justice Huot decides not to just invalidate section 745.51 but to re-write it so as to grant judges―starting, of course, with himself―the discretionary power to craft what they see as appropriate sentences with parole ineligibility periods of more than 25 but less than 50 years.

In the section 1 part of his reasons, Justice Huot notes that this very possibility was debated and rejected by Parliament. But he does not think that there is anything wrong with him writing a law that Parliament did not want. Democracy, he says, is not just majority rule: “It implies a legal framework that, like the Charter, protects the rights and liberties of citizens. Hence judicial review must be seen as democracy’s faithful ally. … When they intervene in the name of the Charter, judges do not act against democracy, but in conformity with it.” [1169] Moreover, having rejected Blackstone’s declaratory theory, “our common law tradition favours progressive amendment that support the adaptation of existing legal rules to new views and practices”. [1176] The re-writing of section 745.51 is, all in all, an obvious thing to do, and there is no need to go back to Parliament for its views on the matter.

This is a power grab. Justice Huot claims, in effect, that democracy and a “modern” conception of the common law allow judges to re-write statutes, so long as they do so “in the name of the Charter”. But while judicial review may be consistent with democracy (though certainly not “implied” by it―unless Justice Huot thinks that, for example, Australia and New Zealand, both of which lack strong-form rights-based judicial review, are not democratic countries, and that Canada was not one until 1982), it simply does not follow that democracy justifies whatever a court engaged in judicial review might do. As for the common law, whatever its exact nature (and there is much more to be said for the declaratory theory than Justice Huot is aware of), it provides no authority for judges to re-write legislation, as opposed to developing judicially-articulated legal rules. Besides, Justice Huot’s re-writing of section 745.51 has nothing to do with accommodating “new views and practices”; it simply imposes a view that Parliament considered and rejected.

Now, there is a debate to be had about the appropriate judicial role in the face of unconstitutionally underinclusive legislation. It is at least arguable that courts can (sometimes) remedy underinclusion by making an obvious addition to the statute. But, to repeat, Justice Huot is not here dealing with an underinclusive provision. There is nothing unconstitutional, though there is arguably something unjust, about not imposing longer parole ineligibility terms on those guilty of multiple murders than single ones. Justice Huot’s job was to remedy what he, rightly or wrongly, saw as unconstitutionality―not to rectify injustice. He did what he wanted to do, not what he was appointed to do.


Beyond these specific mistakes, the overall tone of Justice Huot’s reasons deserves some comment. Justice Huot starts off with a reverse bench-slap directed at the Supreme Court and its decision in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 (is that a reverse bench-slap per saltum?), snidely commenting that “in these times when the abrogation of judicial delays seems to have been exalted to the rank of a cardinal virtue, it is not superfluous to recall that the very idea of ‘justice’ fits poorly with the clamour and the zeitgeist”. [7] He dishes it out to the American legal system for its reliance on life imprisonment without parole and insists that “Canada remains a country proud of its origins and attached to the preservation of its moral, social, and legal values, which differ in many ways from those of other jurisdictions”. [978] But whatever his pride in the Canadian legal system, Justice Huot doesn’t seem to think very highly of his colleagues who, unlike him, have seen it fit to impose consecutive parole ineligibility on multiple first-degree murderers. The accusation of sophistry, referred to above, is levelled at one of them. More generally, Justice Huot’s insistence that the discretionary power not to stack ineligibility periods, which section 745.51 maintains, is not enough to make it constitutional seems to result from his desire to prevent other judges from imposing sentences that he considers unjust, even though they do not.

Most remarkable, however, is Justice Huot’s attitude towards Parliament. It is not just that, as explained above, he deliberately re-writes the law he has found unconstitutional in a manner that was specifically put before, and rejected by, the legislature. More than that, he comments on what various members of Parliament said in the course of this debate, in a manner that sits uneasily, to put it mildly, with article 9 of the Bill of Rights, 1688, which provides “[t]hat the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. This is usually known as the foundation of the rule that what is said in Parliament cannot be made subject to criminal or civil liability, but Article 9 has broader separation of powers implications too. As the New Zealand court of Appeal put it in Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24, “courts scrupulously avoid” “consider[ing] questions of adequacy, accuracy or propriety in the proceedings of Parliament”. [124] Canadian courts, it is fair to say, have long been less scrupulous than they might be about this. Still, Justice Huot’s play-by-play commentary on Parliamentary debate, praise for “[o]pposition members [who] did their job”, [1146] denigration of a government member’s answer as being of “dubious intelligibility” [1137] and of the Parliamentary majority as a whole for its “wilful blindness” [1146] in the face of opposition warnings are quite beyond the pale.

And in addition to denigrating others, Justice Huot devotes a rather unseemly amount of energy to puffing himself up. He discusses and critiques Kant and Bentham, Beccaria and Blackstone―the latter based entirely on secondary sources―and misses no opportunity to wax eloquent. When the Crown points him to cases where his colleagues imposed consecutive ineligibility periods, he retorts that “such a mathematical reasoning can only lead us to the bounds of immoderation, or even a litany of jurisprudential precedents each as aberrant as the next in their repudiation of the most elementary rules of logic”. [640] The prospect of an offender never being able to seek parole is tantamount to “exile … in a prison environment, outside any civilized society”. [1073] But perhaps the best (if that’s the word) such passage comes, predictably, when Justice Huot discusses human dignity, and informs us that

In a foreseeable future, courts will have to confront especially sensitive questions, such as euthanasia, medical assistance in dying, genetic manipulations, and other bioethical questions. Science progresses at meteoric speed and ceaselessly presents new challenges to philosophers, legislators, and lawyers. Any analysis requiring reflection on the essence of human beings and their rights to life, liberty and security inevitably requires taking into account their dignity, lest it dehumanize them. [1100]

This is reminiscent of the notorious musings of Justice Kennedy, another human dignity devotee, on “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”. But Justice Huot’s reasons, which begin with a supposed Confucius quotation as an epigraph, bring to mind notorious line from a US Supreme Court’s decision―Justice Scalia’s quip about “the mystical aphorisms of the fortune cookie”.

The Statement of Principles

Thus far, I have stayed out of the controversy surrounding the Statement of Principles [SOP] because I have nothing new to add. Leonid has, in a series of posts, outlined the in-principle objections to the SOP, while others have suggested that the SOP is a modest, necessary remedy for a difficult problem.

But as the debate has evolved, I think something has been lost in the shuffle. Let’s assume that the SOP is constitutional. There are still a number of unanswered questions about the efficacy of the SOP, the way it was adopted, and the strength of the evidence underlying it. Related questions: does the SOP do anything to actually rectify the problem it identifies? And if not, if we believe that the objectors to the SOP are acting in good-faith, shouldn’t we expect better from the LSO given its status as a regulator in the public interest? I think so. That the SOP is toothless is a sign of regulatory excess and pointless, costly regulation that won’t even accomplish the goal it sets out to solve.

I do not purport to say anywhere here that discrimination is not a problem. The experience of racialized licensees should be prioritized, and the LSO should be applauded for turning its mind to this issue at all. At the same time, I think it is important that we do not denigrate the sincerity of the “conscientious objectors” to the SOP. I need not link to the various hues-and-cries on Twitter, assaulting people like Leonid and Murray Klippenstein for being racist, privileged, etc etc. I think we should take as a given that the conscientious objections are rooted in deeply-held philosophical commitments. For that reason we should respect them. Leonid’s objection, for example, is exhaustively set out in his post here, where he outlines the genesis of his general philosophical orientation and how it applies to the SOP. We should assume that if the SOP is enacted, it will exact a constitutional cost—one that may or may not rise to a constitutional violation, but a cost nonetheless.

The SOP was adopted as part of a suite of initiatives designed to address the problem of systemic racism.  The SOP is one requirement that exists in this suite of initiatives. The collection of initiatives was occasioned by a long consultation period, along with a study designed by the LSO and a communications firm “to encourage law firms to enhance diversity within firms, based on identified needs, and create reporting mechanisms.” The study consisted of:

  • Interviewing key informants
  • Organizing, managing, and recording the discussions in 14 focus groups with racialized lawyers and paralegals
  • Organizing, managing, and recording the discussions in two focus groups with non-racialized lawyers and paralegals; and
  • Designing a 35-question survey and collecting data from a large group of lawyers

Somehow, from this process, the SOP was born.  None of the evidence gathered in the study pointed to the SOP as a necessary—or even desired—policy mechanism to accomplish the goals of the overall LSO Equity, Diversity, and Inclusion [EDI] Initiative. The causal link between the SOP and “accelerating culture shift” was never explored by any data in the study. All that was established by the study was that there was, indeed, discrimination in the profession.

But even on that score, there is no clarity on the breadth of the problem, and for that reason, no clarity on the mechanisms required to solve it. In this case, the challengers to the SOP have outlined some compelling reasons in an expert report why we might doubt that the SOP is a tailored, evidence-based policy—assuming, again, that the criticisms of the SOP levelled by a number of quarters is in good-faith. For one, there is a major confirmation bias issue in the study commissioned by the LSO. Survey respondents were already aware about the goals of the study. Participants in the focus groups were separated based on whether they were racialized or not, which does not lend itself to a random discussion of the issues. Perhaps most prominently, there was a sampling bias problem that led to the data underpinning the recommendations presented to Convocation—only a small portion of the over 40 000 licencees responded to the survey data, and according to the expert report, “it is possible that some licensees completed the survey multiple times…”

None of this should be taken as a given simply because an expert says so. This is an expert report filed by a party in the litigation. But it at least raises legitimate questions about the methodology underpinning the solution adopted by the LSO. Clearly, discrimination might be a problem in the profession, but we have no idea how much of a problem it is.

Even if we had some scope of the problem, the SOP is not necessarily linked to solving it. If we assume that objectors to the SOP are acting in good-faith, and therefore we believe that there will be some cost to them associated with abiding by the LSO’s edict, then we should be doubly sure the SOP will actually do something to solve the problem it purports to solve. But the LSO has offered no evidence that this particular policy mechanism is required, cost-efficient, or is even relatively better than other options. Nor has it explained why this policy mechanism is necessary for the soundness of the rest of its EDI policies.

Why should anyone care about this? Shouldn’t the LSO simply just be able to act in the face of a problem?

We know that inclusion in the legal profession is a problem, but as a regulator with delegated legislative authority under the Law Society Act, the legislature implicitly subjected the LSO to democratic norms. It established a system of elections in the enabling legislation itself, which can be interpreted to express a legislative desire to ensure that there is some accountability mechanism within the LSO for the exercise of its powers that are legislative in character. The LSO has the power to compel licensees through rules and bylaws, none of which need to be subject to any approval by the Cabinet (unlike the exercise of delegated legislative power to make regulations—see 63(1) of the Law Society Act). While there is an obvious mechanism to hold benchers and the administration of the LSO accountable through elections, the power of compulsion that the LSO exercises—and the broad powers it has been conferred by legislatures and the courts—counsel in favour of holding the LSO to robust standards of evidence-based policy-making. In other words, not only do we need to know that discrimination is a problem, we need to know whether it is truly “systemic” in order to craft appropriate solutions.

There is no evidence, even on a common-sense basis, that the SOP will do anything to solve the problem it identifies, assuming the problem is framed as the LSO says it is. One might say that the SOP will force licensees to reflect on the things they must do to ensure a more inclusive profession. I think this is Pollyannaish. More likely, people will file rote statements without reflecting on them, as Atrisha Lewis points out. Or they will simply write something that fits with what the licensee perceives the LSO to want. Unless the LSO is going to police the substantive content of each filing, there will be no way to know who is genuinely reflecting on the issue. Given the vagueness of what constitutes a “violation” of the requirement, we can expect  discretion of prosecutions under the Law Society Act against those who do not adopt a “proper” SOP. The costs continue piling up when one thinks of defending the SOP in court, and the cost of enforcement.

Someone has to ask if the EDI initiative requires this SOP given the costs it exacts against principles of good government and against the good-faith constitutional objectors. The SOP seems to be questionable response to a problem of unknown proportions that raises significant constitutional concerns, even if those concerns do not constitute an in-law constitutional violation. I gather that the LSO perhaps did not expect this to be an issue, and are now painted into a corner. Like most administrators, they do not want to cede any regulatory power. So they must defend the SOP in court. But I think even they must recognize that the SOP is probably a bad policy mechanism for the problem of discrimination, no matter its scope.

The LSO should be held to a higher standard than this. We should expect evidence-based policy-making in the administrative state, especially where the LSO has the means (through the exorbitant fees it charges) to conduct properly designed research studies and to lessen the informational uncertainty designed to solve the problem. Some literature in administrative governance focuses on the cost of acquiring information within public institutions. Here, the costs for the LSO on this particular problem are not particularly high. And yet, we are left with a dog of a policy mechanism, one that is unlikely (even on a common sense basis) to solve the problem it purports to solve. At the same time, the costs of implementing it and enforcing it—both monetary and constitutional—are high.

All of this puts the SOP on the horns of the dilemma. Either it does something to accomplish the goal it sets out—it compels people to concern themselves with EDI as the LSO understands it—or it does nothing to accomplish anything, in which case its costly. Surely our public regulator, that we ensconce in yearly fees, can do better.

This is fundamentally different than the claim that the SOP doesn’t go far enough. The problem is that it doesn’t go anywhere at all. I doubt it will solve any problem whatsoever.

Textual Judicial Supremacy

The Canadian constitution’s text makes it clear that judges must have the last word on its interpretation

In my comment on the Supreme Court’s recent decision in Frank v Canada (Attorney General), 2019 SCC 1, I criticized the dissenting judges’ demand that courts defer to Parliament’s choice to limit rights protected by the Canadian Charter of Rights and Freedoms. Section 1 of the Charter provides that it “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. This wording, I wrote, “requires a demonstration” that a given limitation of a protected right is justified, “not judicial acquiescence on the basis that Parliament knows best”.

My friend and sometime debating partner Geoff Sigalet put it to me in conversation that my interpretation is incorrect, and indeed pernicious. I am wrong, he believes, to think that judges must have the last word on what is and what is not “demonstrably justified”. Section 1, after all, doesn’t say “demonstrably justified to the satisfaction of a court”. Couldn’t a legislature pass its own judgment on these matters, a judgment that would be entitled to the respect of courts and of malcontents such as I? I am not persuaded. In my view, the constitutional text―not specifically section 1, but rather section 52 of the Constitution Act, 1982―does require that judges, not the legislature or the executive, have the last word on whether the Charter has been infringed, including the question of whether a limitation on a right is demonstrably justified.

Section 52(1) provides that “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”. Pursuant to section 52(2), the supreme constitution, inconsistency with which invalidates any other law, includes the Charter, the other parts of the Constitution Act, 1982―notably the amending formulae in Part V of that Act―and the Constitution Act 1867, which provides, among other things, for a distribution of legislative powers between the Dominion and the Provinces, as well as protections for judicial independence, free trade (nullified by the Supreme Court), etc. Note that section 52 makes no distinction between the Charter and other components of the Constitution of Canada. All are equally the supreme law of Canada. There is thus no textual warrant for treating the Charter differently from the rest of the constitution; if the courts have the last word on the meaning and application of the rest, they do so when it comes to the Charter too.

Now section 52(1) of the Constitution Act, 1982 is not, substantively, an innovation. As Brian Bird helpfully details, it is a replacement for section 2 of the imperial Colonial Laws Validity Act 1865, which provided for the supremacy of imperial legislation applicable to the colonies over that of the colonies to which such legislation applied. In particular, section 2 ensured the supremacy of what was originally an imperial statute, the British North America Act 1867, which we now call the Constitution Act, 1867, over any legislation enacted in Canada (except, of course, to the extent that the BNA Act itself authorized the Parliament of Canada or provincial legislatures to modify or depart from some of its provisions). Section 52(1) takes up the baton of constitutional supremacy, and ensures that it is now provided for by a Canadian law, subject to modification through the Canadian constitutional amendment process, rather than by an imperial statute whose very title is unsuitable to Canada’s circumstances as an independent nation.

As Mr. Bird further points out, the Supreme Court has recognized that section 52(1) preserved continuity in Canada’s constitutional arrangements. In the Reference re Manitoba Language Rights, [1985] 1 SCR 721, the Court emphasized that “[s]ection 52 of the Constitution Act, 1982 does not alter the principles which have provided the foundation for judicial review over the years”, (746) under the Colonial Laws Validity Act regime. Meanwhile, in R v Big M Drug Mart, [1985] 1 SCR 295, the Court held, again with reference to both the Colonial Laws Validity Act and to section 52, that accused persons could always demand that a court rule on the constitutionality of the statutes they are said to be infringing, “whether that challenge is with respect to ss. 91 and 92 of the Constitution Act, 1867 or with respect to the limits imposed on the legislatures by the Constitution Act, 1982“. (313) In short, the regime of constitutional supremacy that existed with respect to the then-British North America Acts prior to 1982 remains in force, following the patriation of the constitution and the enactment of section 52(1), for these texts and, on the same terms, for the Constitution Act, 1982.

I think these decisions are quite clearly correct. Textually, section 52(1) is an updated, but substantially identical, reincarnation of section 2 of the Colonial Laws Validity Act. It uses the words “inconsistent with” in place of “repugnant to”, and “of no force and effect” in the place of “absolutely void and inoperative”, but the underlying principle is the same: one set of laws (formerly, all imperial legislation “extending to” Canada; now, more narrowly, “the Constitution of Canada”) has a higher status than ordinary laws enacted in Canada, whether by Parliament or by the provincial legislatures. As a result, such ordinary laws are invalid insofar, although only insofar, as they contradict the higher law. If anything was to change on April 17, 1982, when section 52(1) succeeded the Colonial Laws Validity Act, such a momentous would surely have been flagged by clear language, something very different from what we find in section 52(1).

The only innovation in section 52(1) is the use of the phrase “supreme law” to characterize the Constitution of Canada. The supremacy of Westminster legislation is a given in the post-Glorious Revolution and pre-Statute of Westminster, 1931 system, so it is implicit in section 2 of the Colonial Laws Validity Act. Section 52(1) makes the supremacy of what is left of imperial legislation explicit. But the phrase “supreme law” (emphasis added) also suggests that, like any law, the Constitution of Canada is subject to interpretation and enforcement by the courts―not by legislatures. Granted, by 1982, the Supreme Court had conceded deference on the interpretation of some legal provisions to administrative adjudicators. But that concession was premised―wisely or not is beside the point here―on these adjudicators’ expertise, including legal expertise in their particular area of jurisdiction. I do not think that Parliament would have been understood to have such expertise.

In any case, whether or not the original public meaning of the phrase “supreme law” without further context requires judicial supremacy, the context removes whatever ambiguity the words alone might carry. There was no doubt that, under the Colonial Laws Validity Act regime, it was the courts’ power and duty to determine whether an enactment was “repugnant to” an imperial statute, and therefore “absolutely void and inoperative”. Even the “presumption of constitutionality” to which the courts occasionally referred was is, in principle, nothing more than the idea that legislatures would not intend to exceed their constitutional powers, and their enactments would therefore not lightly be read as doing so―provided that they admitted of a different reading. It was always the courts’ responsibility to verify that this was indeed the case. And, to repeat, there is no reason at all to suppose that this approach was intended or understood to change in 1982, and the courts have never said that it did change. Indeed, I do not think that those who argue for judicial deference in Charter cases seriously contend that section 52 calls for a deferential approach to federalism, or to the independence of the judiciary protected by Part VII of the Constitution Act, 1867, or to the amending formulae of Part V of the Constitution Act, 1982.

But, as I have argued above, there is no textual basis for treating treating the Charter differently from the other parts of the Constitution of Canada when it comes to deciding which institution is given the last word on its interpretation and on whether it has been complied with. The constitutional text, read in its historical and legal context, tells us that judicial supremacy is sauce for federalism’s, judicial independence’s, and constitutional amendment’s geese; it is also sauce for the Charter‘s gander. Needless to say, the text cannot tell us whether this is a good thing. I am inclined to think so; others disagree. It’s certainly possible that our constitution is flawed in this, as it is flawed in many other ways. But the constitution is what it is, good or bad. Those who wish that it were different ought to persuade enough of us to amend it to have it changed.

Australia 1:0 Canada

Canadians have much to learn from the Australian High Court’s take on election spending limits for “third parties”

The High Court of Australia has just delivered Unions NSW v New South Wales [2019] HCA 1, a decision that should be of interest to readers who are concerned with freedom of expression in the electoral context ― a topical issue in Canada, given the recent imposition of further restrictions in this area by the recently enacted Bill C-76. The decision resulted from a challenge by a number of labour unions to New South Wales legislation that reduced the maximum amount a “third party” ― that is anyone not a candidate at an election or a political party ― is allowed to spend on campaigning in a nearly-six-month period preceding an election, from 1,050,000AUD (jut under a million Canadian) to 500,000AUD. The High Court unanimously held that the legislation was contrary to the implied freedom of political communication, which it had previously read into the Australian constitution‘s provisions requiring “representative” government.

The plurality judgment, by Chief Justice Kiefel and Justices Bell and Keane, finds that the third party spending limits are unconstitutional. That they restrict the ability to communicate is not in dispute. And while the plurality is prepared to assume that these limits are imposed for the legitimate purposes of levelling the campaigning playing field and preventing the wealthy from “drowning out” the voices of the less fortunate, they are not justified. Experts consulted prior to the enactment of the legislation provided no particular justification for recommending that the then-existing spending limits be reduced. A Parliamentary committee, however, recommend that the legislature look into the actual spending needs of third parties, and this was not done either. As a result, there is no reason for saying that the reduced limits are “reasonably necessary”.

Justice Gageler agrees with the plurality’s disposition of the case. He is persuaded of the legitimacy of the state’s pursuit “of substantive fairness in a manner compatible with maintenance of the constitutionally prescribed system of representative and responsible government”. [91] This might, in principle, justify much lower spending limits for third parties, which campaign on single issues, than for parties that must address a broad range of issues in their quest to form a government. However, “[i]t is not self-evident, and it has not been shown, that the cap set in the amount of $500,000 leaves a third-party campaigner with a reasonable opportunity to present its case”. [101] Absent such a showing, the restriction on the freedom of communication is not justified.

Justice Nettle’s conclusion is similar. He accepts the legitimacy of the objective of creating a level electoral playing field ― one on which political parties will be primary players ― and agrees that a legislatures may from time to time review the measures it takes to ensure fairness, including by lowering spending caps previously enacted. However, there must be a justification for whatever measures it takes from time to time. Such a justification is missing in this case. Although it was recommended that more evidence on the needs of third parties be collected, “for reasons which do not appear, that recommendation went unheeded. It is as if Parliament simply went ahead … without pausing to consider whether a cut of as much as 50 per cent was required”. [117]

Justice Gordon, like the plurality, assumes that restrictions on third party spending pursue a legitimate purpose, which she characterizes as the privileging of political parties and candidates. However, in the absence of evidence about the actual need for restrictions set at their current level, “the Court … cannot be satisfied that the level of the expenditure cap is reasonably appropriate and adapted to achieve the asserted constitutionally permissible end”. [150] It was for the State to show that the restriction it seeks to impose was justified, and it has not done so.

For his part, Justice Edelman considers that the reduction in the spending limits imposed on third parties, even as the limits imposed on political parties rose, cannot be explained by the purposes of maintaining a fair and corruption-free electoral system. Rather, it must have had an “additional purpose”, which “was to ensure that the voice of third-party campaigners was quieter than that of political parties and candidates”. [159] In other words, the reduction’s aim was “to burden the freedom of political communication of third-party campaigners”. [160] Justice Edelman considers that, although laws that rely on the relative silencing of some views in order to ensure that all can be heard are legitimate, to aim only at silencing some voices “is incompatible with the maintenance of the constitutionally prescribed system of representative and responsible government”, and legislation so motivated is “invalid”. [160]


Needless to say, I am not qualified to comment on whether the High Court is correct as a matter of Australian law. What I can do is compare its decision with that of the Supreme Court of Canada in Harper v Canada (Attorney-General), 2004 SCC 33, [2004] 1 SCR 827, which addressed much the same issues. (Readers will recall that I am not a fan of Harper, to put it mildly, and included it in my list of the Supreme Court’s five worst decisions of the last half-century in this blog’s recent Twelve Days of Christmas symposium.)

This is most obviously so on the issue of deference to the legislature on the issue of the appropriateness of a limitation of the freedom of (political) expression, and the evidence required for the government to make this case. The Harper majority insisted that courts should approach legislative choices with deference. In its view, “[t]he legislature is not required to provide scientific proof based on concrete evidence of the problem it seeks to address in every case”, and that “a reasoned apprehension of … harm” [Harper, 77] is sufficient to restrict fundamental freedoms protected by the Canadian constitution.

This approach is explicitly rejected in Unions NSW. While the Australian judges avoid directly criticizing the Harper majority, both the plurality opinion and Justice Nettle explicitly side with the “strong dissent” of Chief Justice McLachlin and Justice Major (joined by Justice Binnie). The plurality takes a dim view of the submission “that Parliament does not need to provide evidence for the legislation it enacts [and] is entitled to make the choice as to what level of restriction is necessary to meet future problems”. [44] When legislative choice are made in a way that burden the freedom of political communication, they must be justified. Similarly, Justice Gageler speaks of the need for a “compelling justification”, and insists that “[i]f a court cannot be satisfied of a fact the existence of which is necessary in law to provide a constitutional basis for impugned legislation, … the court has no option but to pronounce the legislation invalid.” [95] Justice Gordon insists that “the Court must … be astute not to accept at face value the assertion that freedom of communication will, unless curtailed by a reduction in the cap to $500,000, bring about corruption and distortion of the political process”. [148]

Another point of contrast between Harper and Unions NSW is the treatment of the so-called “egalitarian model of elections” designed in part to favour the interests of political parties and candidates over those of the civil society groups, disparagingly consigned to the status of “third parties”. According to Harper, election campaigns must focus attention on parties and candidates, including by ensuring that any other participants in the public debate, except the media, will behave unobtrusively. By contrast, the plurality opinion in Unions NSW explicitly rejects the submission that candidates and parties deserve preferential treatment, advanced in part on the basis that elections are “not a choice between ideas, policies, views or beliefs except insofar as such choice may be reflected in the electoral choice between candidates”. [39] Rather, the plurality says, “ss 7 and 24 of the Constitution guarantee the political sovereignty of the people of the Commonwealth by ensuring that their choice of elected representatives is a real choice, that is, a choice that is free and well-informed” [40] ― including by third parties. Justice Gageler, of course, takes the contrary view on this point. Justice Edelman’s position is more complex. He explicitly endorses “a Rawlsian, egalitarian model” [178] in which spending limits prevent some speakers from “drowning out” others. However, he also considers that it is not legitimate to target particular speakers for silencing apart from such an anti-drowning out purpose.

A last difference between Harper and Unions NSW worth highlighting is recognition by Justice Gageler of “the propensity of an elected majority to undervalue, and, at worst, to seek to protect itself against adverse electoral consequences resulting from, political communication by a dissenting minority”. [66] Justice Gageler refers to prior cases where the risk of a government legislating to limit political competition the better to maintain itself in office was explicitly adverted to. Such legislation, he notes, is incompatible with presuppositions of the Australian constitutional order. Although he finds that, in this case, “[t]here is no suggestion of abuse of incumbency” [85] by one party against others, this clear-eyed position is in contrast to that of the Harper majorityr, which ignored the possibility that incumbent governments favour legislation that excludes “third parties” from electoral campaigns in order to avoid unpleasant criticism and so reduce the odds of losing power.


There are more interesting things in the Unions NSW decision than I have room to discuss in this post. For example, Justice Gageler’s comments about the role courts in finding facts that are relevant to deciding whether a statute is constitutional are in contrast to the position of the Supreme Court of Canada in cases such as Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, and should be very nutritious food for thought for those who are skeptical of the Bedford requirement of deference to trial judges. Justice Eledman’s comments on identifying statutory purpose (and in particular the role of general statements of purpose in the legislation) are also very interesting.

Overall, based on this one decision, I think that Canadians have a great deal to learn from Australians. Admittedly, the length of the High Court’s decisions is a deterrent ― Unions NSW is about 85 pages long, and I take it that it’s pretty short by Australian standards. That’s the cost of so many judges delivering full individual reasons. But the upside is that interesting ideas don’t get swept under the carpet in the process of getting to a set of reasons many judges can sign onto. I’m not saying the Supreme Court of Canada should go back to having each judge deliver his or her own reasons (though I wonder sometimes) but, at any rate, reading the Australian decisions may well be worth our while. In particular, the willingness of the Australian judges to keep a legislature accountable for imposing limits on the freedom of political expression without justification is a welcome reminder that their Canadian counterparts can do much more to protect individual rights in the electoral realm, and elsewhere.

Affidavi

Why I oppose the Law Society of Ontario’s “statement of principles”

I have repeatedly argued, here and elsewhere, that the Law Society of Ontario’s requirement that its members “acknowledge[] [an] obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public” by means of a “statement of principles” is wrong in principle, illegal, and unconstitutional. Fortunately, Ryan Alford and Murray Klippenstein are challenging the validity of the Law Society’s demands, backed by the Canadian Constitution Foundation. For my part, I have provided an affidavit for their application (which has been served on the Law Society, but not filed with the court just yet), primarily to illustrate that the “statement of principles” policy applies far more widely than do non-discrimination obligations under the Ontario or federal human rights legislation, to which the Law Society has been endeavouring to misleadingly equate it.

But of course the affidavit is also an opportunity to explain why I oppose the Law Society’s demands, and will not comply with them, so I thought it worthwhile to reproduce an adapted version of it here. (I have removed some of the affidavit-y bells and whistles, so that it reads more like a normal post, and have added some links.) Of course, since an affidavit is meant to be a personal statement, not legal argument, it is a more personal and less argumentative text than my normal posts. Here goes.


I am a Senior Lecturer (a position equivalent to that of an Assistant or Associate Professor) at the Auckland University of Technology Law School. I hold degrees in civil law and common law (BCL/LLB (Hons)) from the McGill University Faculty of Law, as well as a Master’s degree (LLM (Legal Theory) and a doctorate (JSD) from the New York University School of Law.

I was called to the Bar in June 2010 and have been a member of the Law Society of Upper Canada, now the Law Society of Ontario, (the “Law Society”) in good standing ever since. However, I am not and have never been a practicing lawyer. From September 2010 to August 2016, I was a full-time student; since August 2016, I have been a full-time academic. I have no clients and no employees. To my knowledge, no one among my co-workers is a fellow licensee of the Law Society. I have resided in New Zealand since August 2016, and have not resided in Ontario since August 2010.

My Interest in Freedom of Conscience and the Rights of Others

My research interests range broadly across constitutional and administrative law, with a focus on Canada. Among the areas on which I have published is the freedom of conscience and religion. My LLM thesis, subsequently published as a peer-reviewed article, was concerned with religious exemptions and the Rule of Law, exploring the importance of individual conscience in reconciling the claims of religious believers and the demands of legal conformity. Another of my peer-reviewed articles argued that the reference to the Queen in the Canadian citizenship oath infringes the freedom of conscience of those republicans who are required to take it.

In addition to scholarship, I have written about freedom of conscience and religion in multiple posts on the award-winning blog Double Aspect, which I created in 2012, of which I first was the sole author (until July 2018) and now am a co-author. In particular, I have been critical of various attempts in Québec to deprive state employees of their right to wear so-called “ostentatious religious symbols”. I have also published an op-ed on this issue. I also published multiple posts on freedom of conscience of republicans objecting to the citizenship oath.

In this work, as well as in writing on a number of other issues (notably relating to freedom of expression in the electoral context), I have consistently championed the rights of individuals and groups with whom I profoundly disagree, including many whose views I reject. I have defended religious exemptions and other forms of accommodation for religious believers, but I am agnostic. I have defended the freedom of conscience of republicans, but I am a monarchist. I have defended the freedom of expression of student movements and trade unions, but I strongly disagree with the aims of both.

The Statement of Principles Requirement

At the December 2, 2016 meeting of Convocation, the Law Society adopted the requirement that each licensee “create and abide by an individual Statement of Principles that acknowledges [his or her] obligation to promote equality, diversity and inclusion generally, and in [his or her] behaviour towards colleagues, employees, clients and the public”.

I learned of the adoption of the Statement of Principles requirement after the fact, via an e-mail sent by the Law Society on September 13, 2017, entitled “New Obligations for 2017 — Actions you need to take”. That e-mail said that: “You will need to create an abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity generally, and in your behaviour towards colleagues, employees, clients, and the public.” Until then, I had not received any correspondence from the Law Society on that topic or which alluded to it, and was not aware that Convocation had adopted the Statement of Principles requirement.

This requirement is applicable to me as a licensee of the Law Society, even though I am not, and never have been, practicing law in Ontario, and, to my knowledge, have no colleagues, students or subordinates who, are licensed to practice law in Ontario. As the Law Society explains on a “Frequently Asked Questions” page on its website, “[i]f you are licensed by the Law Society, you must meet this requirement regardless of whether you are currently practising law or providing legal services”.

I have not complied with the Statement of Principles requirement. I have provided the following explanation for my refusal to do so in my 2017 Lawyer Annual Report:

No existing legislation, primary or delegated, imposes on me or on any lawyer in Ontario an obligation to promote equality, diversity and inclusion. In particular, human rights legislation and the Rules of Professional Conduct prohibit engaging in discrimination, but say nothing of promoting any particular values or ideals. The Law Society has no right to be demanding that its members acknowledge an obligation that does not exist, and one that could not be constitutionally imposed, since in a free society, the state or its instrumentalities, such as the Law Society, have no business imposing values on individuals, much less demanding that individuals promote values. The Law Society’s policy in this matter is no less totalitarian than the arbitrator’s letter denounced by a majority of the Supreme Court in National Bank of Canada v Retail Clerks Int’l Union, [1984] 1 SCR 269.

I have elaborated these views in a series of blog posts, listed below, which I invite the Law Society to read:

https://doubleaspect.blog/2017/10/12/lawless-society-of-upper-canada/
https://doubleaspect.blog/2017/10/19/ones-own-self-like-water/
https://doubleaspect.blog/2017/10/29/profession-of-power/
http://nationalmagazine.ca/Articles/November-2017/The-Law-Society-of-Upper-Canada-should-stick-to-it.aspx
https://doubleaspect.blog/2018/01/21/the-detestable-attestation/

Reasons for My Objection to the Statement of Principles Requirement

I consider myself a conscientious objector to the Statement of Principles requirement, and will not comply with it in the future. As noted above, I have a longstanding interest in freedom of conscience, and have displayed a consistent and public commitment to the rights and freedoms, especially those having to do with belief and expression of belief, of individuals and groups whose religious, moral, or political opinions I do not share. I claim the same freedom for myself.

I regard the Statement of Principles requirement as a violation of my freedom of conscience, freedom of opinion, and freedom of expression. The requirement states that I must promote specific values: equality, diversity, and inclusion. I believe that promoting values requires me to hold them. Otherwise, this promotion would be insincere; indeed, it would be a lie. And it is my sincerely held belief that, as a free individual, I must only hold those values that I freely choose for myself, and must not embrace those values imposed by an authority exercising coercive powers conferred by the state — i.e. the Law Society.

My fundamental belief that a free individual must choose his or her own values, think for him- or herself, and reject the authorities’ views of what he or she must believe in, which animates my scholarship and blogging on freedom of conscience and compels my refusal to comply with the Statement of Principles requirement is a product, in part, of family upbringing, and in part of my broader philosophical views.

As to the former, I was born in what was still the Union of Soviet Socialist Republics, and my parents took pride in ensuring that my brother and I grew up speaking Russian at home and aware of Russian history after our move to Canada. Part of my parents’ endeavours — indeed a very substantial part — involved exposing us to the stories of Soviet dissidents, people who, in various ways, stood up to a brutally repressive regime for their right to believe and to say their own, rather than the regime’s truth. The circumstances of a free and democratic society such as Canada are hardly comparable to those of the Soviet Union, but the moral imperative to live the truth as one sees it is no less pressing in this more benign setting.

As to the latter, I have been heavily influenced by Lord Acton’s liberalism, and, in particular, his admiration for “[t]he true apostles of toleration” — “not those who sought protection for their own beliefs, or who had none to protect; but men to whom, irrespective of their cause, it was a political, a moral, and a theological dogma, a question of conscience involving both religion and policy”. Hence my advocacy for the freedom of conscience and expression of those with whom I disagree; but one can still, I trust, be a defender of toleration while claiming its benefits for oneself. Lord Acton summarized the role of freedom of conscience in modern history thus:

With the decline of coercion the claim of Conscience rose, and the ground abandoned by the inquisitor was gained by the individual. There was less reason then for men to be cast of the same type; there was a more vigorous growth of independent character, and a conscious control over its formation. The knowledge of good and evil was not an exclusive and sublime prerogative assigned to states, or nations, or majorities.

It is my most deeply and conscientiously held belief that I must defend “the ground gained by the individual”, and the individual’s prerogative to maintain his or her independent character. I must resist if I can, and certainly lend no support to the attempts of “states, or nations, or majorities” — including a majority of the Benchers of the Law Society — to claim for themselves the “sublime prerogative” of knowing good and evil, and cast those subject to their jurisdiction all of the same type.

In addition to this overall outlook, I believe that my professional position as a scholar means that I must resist any attempt to make me adhere to or promote specific values chosen by an external authority. Academic freedom — which I regard not only as an entitlement but also as a responsibility — is a right, and arguably a duty, to pursue truth, however uncomfortable or unpleasant it might be to authorities and others. This pursuit, in my opinion, is incompatible with an undertaking to promote specific values. If my research leads me to conclusions that I or others regard as incompatible with or even opposed to a given value, so much the worse for the value in question.

I would add that, at a high level of generality, I find the values to which the Statement of Principles requirement refers attractive. However, my understanding of these general values is quite different from that which animates the Statement of Principles requirement. I believe in equality before the law, and reject the value of an equality of outcomes. I believe that diversity is primarily desirable if it embraces a plurality of views and perspectives on human flourishing, and not only of demographic backgrounds. Similarly, I believe that inclusion must extend to those who think, and not only those who look, unlike the majority. As a result, expressing support for these values, at the command of the Law Society, would risk communicating adherence to beliefs that I do not hold, and would thus force me to express statements I would not otherwise express.

Concluding observations

As explained above, I refuse to comply with the Statement of Principles requirement. I regard it as incompatible with my rights and duties as a free person, my professional responsibilities as a scholar, and, above all, my conscience.

If the requirement that I hold and promote values chosen by the Law Society is not repealed or invalidated, I will cease being a member of the legal profession in Ontario. This is not an outcome I desire — I would not have paid substantial fees for years for the privilege of this membership which is not necessary for my academic position and from which I derive no financial gain if I did not value the connection with the profession. However, I simply cannot remain a member of the legal profession in Ontario if to do so would violate some of my most deeply held conscientious beliefs.


We’ll see what happens with this. In any case, I am very grateful to Professor Alford and Mr. Klippenstein, as well as Asher Honickman who is litigating the case, and the CCF for fighting the good fight. And don’t forget that, in parallel, there is another front on which this fight can be fought ― the upcoming election for benchers of the Law Society. Vote, and throw the bums who imposed the “statement of principles” requirement out!

Look, Look, over There!

What role should comparative law play in constitutional adjudication in Canada?

This is, I think, the last post I write on Frank v Canada (Attorney-General), 2019 SCC 1, where the Supreme Court held that denying the franchise to Canadians who have been resident abroad for more than five years is unconstitutional. I summarized the decision here, commented on it here, and added further comments on the issue of expatriates’ supposed lack of connections to individual ridings here. In this post, I address a further issue that I left out so far, because it is only tangentially related to the question of the constitutionality of disenfranchising expatriates: that of the significance of foreign jurisdictions’ approaches to this issue.

In their dissenting opinion, Justices Côté and Brown invoke the “limits adopted by other Westminster democracies in which election regimes are, as here, structured around geographically defined electoral districts” [164] as support for the proposition that disenfranchising Canadians after five years abroad is reasonable. They mention, specifically, three other “Westminster democracies” ― the United Kingdom itself, as well as Australia and New Zealand. They note, by way of a rejoinder to the majority’s dismissal of this argument (on which more presently), that “[a]t different times in its history, Canada would well have taken some lessons from other countries” ― or at least from New Zealand, which enfranchised its aboriginal citizens (albeit in a way that radically under-represented them) and women well before Canada did. For Justices Côté and Brown, the fact that peer democracies “have adopted comparable time limits on voting for long-term non-residents … provide[s] compelling evidence” [167] for the proposition that the Canadian law they are examining is rational, and therefore constitutional.

Chief Justice Wagner, for the majority, is not impressed with this. For one thing, he insists that that the dissent’s comparisons do not really work in its favour. The United Kingdom only disenfranchises its expatriates after fifteen years, not five; meanwhile, “in Australia, the voter’s right can be extended indefinitely upon application, while New Zealand’s three-year limit is reset each time the non-resident returns to the country”. [74; hyperlinks added ― oddly, I think, the Chief Justice provides no citations.] Thus, disenfranchising expatriates after five years of non-residence (even if they visit Canada during this period) is a harsher approach than that taken by the countries on which the dissenters want to rely. (The dissenters, for their part, dismiss this as “minutiae of policy preferences of Canadian legislators (and, for that matter, legislators in Australia and New Zealand) on matters about which this Court as an institution has little comparative expertise”. [166])

More fundamentally though, the Chief Justice is skeptical about whether there is anything at all to be learned from the experience and choices of other jurisdictions: “I place little stock”, he writes, “in comparisons with other countries for the purpose of determining whether this legislation is constitutional.” [74] Whatever may be done elsewhere, it need not be a rational response to the particular problems that Parliament purports to be solving by limiting the right of Canadians abroad to vote, or that it is the least restrictive option available. Besides, “Canada is an international leader” [62] when it comes to enfranchising citizens to whom other countries deny the vote (such as prisoners), and part decisions of the Supreme Court paid little heed to what other countries do. For the dissent, these are “highly political, rhetorical arguments … that … stand in tension with the majority’s own invocation of internationalism and of a ‘globalized’ world of connectivity and communication”, [167] and which smack of “exceptionalism”. [166]

There are some important questions here. Should we, contrary to the Chief Justice, “place stock in comparisons with other countries” when assessing the constitutionality of legislation? Are there particular areas where we might want to make exceptions to whatever general principle we adopt ― for example, on account of Canada’s being “an international leader”? And if we ought to be looking at comparative materials, how should we go about it?

On the general issue of the relevance of comparative law, my answer is “it’s complicated”. Where the interpretation of constitutional text is concerned, being a public meaning originalist, I think that foreign or international materials can assist a Canadian only insofar as there is evidence that they would have been understood to bear on text’s meaning at the time of its enactment. That might sometimes be the case, especially with the Charter, but the evidence has to be provided whenever an argument about the relevance of such materials to the question at hand is made. Moreover, the simple existence, somewhere in the world, of a particular view about the meaning of a right that might have been “within the contemplation of the framers of the Charter“, as the Supreme Court put it in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27, [2007] 2 SCR 391, is not enough. What needs to be shown is that this particular interpretation was actually understood as the one the Charter itself would bear.

When it comes to the application of section 1 of the Charter, which allows legislatures to limit rights, provided that the limitation is a “reasonable” one and “demonstrably justified in a free and democratic society”, the issue is no longer one of interpretation (except insofar as the terms of section 1 itself have to interpreted). Here, I think that international and comparative materials may cast some light on what may be acceptable “in a free and democratic society”. However, the views of other free and democratic societies are not dispositive on the question of what is actually reasonable and demonstrably justified in the specific context in which rights are being limited in Canada. The Chief Justice is quite right to insist that the analysis has to proceed with reference to the Canadian circumstances, including (but not limited to) the objective for the sake of which a Canadian legislature is seeking to limit rights. Sometimes, the circumstances of other jurisdictions will be similar enough to make their experiences and choices interesting; sometimes they will not be.

Smug dismissals on the basis that Canada is a “world leader” are unwise, if for no other reason that one can only be such a leader if the direction in which the world is supposed to move is clear, and this will rarely be obvious in rights cases. But, at the same time, claims the effect that, since some respectable jurisdictions restrict rights in a particular way, it is rational and therefore permissible, for Canada to do likewise are similarly unhelpful. Such claims ignore local circumstances and, crucially, the textual requirement of section 1 that limitations on rights be demonstrably justified. “Other people do it” is not a demonstration; it is, at most, a relevant consideration for such a demonstration. To insist that, ultimately, a Canadian government defending a Canadian statute limiting the rights protected by the Canadian constitution demonstrably justify this limitation is not a rhetorical, let alone a political move. It is nothing less than what the constitution itself, in no uncertain terms, requires.

Still, foreign laws might be of some, albeit limited, interest to Canadian courts in Charter cases. This brings me to the question of how Canadian judges should consider them. Here, I’m afraid the Frank dissent offers a good lesson in how not to do it. First, one should not cherry-pick a few examples that seem to support one’s preferred position. Why focus on the UK, Australia, and New Zealand? They are, we are told, “Westminster democracies in which election regimes are, as here, structured around geographically defined electoral districts”, but why are “Westminster democracies” the only relevant ones here? The electoral systems of the United States and France, for example, are also “structured around geographically defined districts. Why should we ignore them?

Second, one should not cherry-pick aspects of those foreign laws to which one refers either. If one wants to invoke a foreign law as a model, one doesn’t get to dismiss aspects of that law that don’t support one’s conclusions as “minutiae of policy preferences”. The fact that Australian citizens can actually vote from abroad, so long as they keep making the relevant annual applications, and that New Zealand citizens and permanent residents can reset their respective disenfranchisement clocks by simply visiting the country considerably undermines the point that the Frank dissent attempts to make by appealing to them.

Third, one really shouldn’t misunderstand the foreign law on which one relies, or present it in a way that is misleading. I’m not sure which of these to things Justices Côté and Brown do in Frank, but in any case, New Zealand, unlike the UK and Australia (and the US and France) uses a proportional electoral system. It does have “geographically defined electoral districts” that ensure local representation, but it’s the party vote that determines the composition of the House of Representatives, so I think that it’s just wrong to equate this system to Australia’s or the United Kingdom’s ― or Canada’s. (Conversely, if New Zealand is an apt comparison, why not Germany, on whose system New Zealand’s is closely modelled?)

In short, when judges choose to embark on a consideration of comparative law, they must do their best to ensure that this endeavour is not be partial ― either in the sense of having a pre-determined result in mind, or in the sense of being incomplete. Of course, there are limits to what judges can do in looking at other jurisdictions. Some help is sometimes available to them ― for example, in the shape of reports of the Council of Europe’s Venice Commission ― but this will not always be enough. I think it is also fair to ask whether some countries’ experiences ought to carry more weight than those of others in the minds of Canadian judges. I’m not sure how to answer that question though, other than to point out the obvious fact that similarities, or lack thereof, between Canada’s constitutional texts and those of another jurisdiction’s constitution ought to matter in assessing the interest that jurisdiction’s law can have for Canadian judges. But choosing, or appearing to choose, only a few jurisdictions favourable to one’s inclinations, or giving a partial picutre of their law so as to bolster one’s conclusions, or both, is not good enough.

Comparative law has a place in constitutional adjudication in Canada. However, this place should be limited, and carefully circumscribed. The fact that some other countries limit the rights of their citizens in a particular way does not, by itself, mean that it is appropriate for a Canadian government to limit the rights of Canadians likewise. Moreover, we must be sure of understanding foreign law before invoking it in support of the limitation of our constitutional rights. The Frank dissent, ought to serve as a warning in this regard.

One last point. The strong disagreement about the role of comparative law between the majority and the dissent in Frank helps us think through important questions that are relevant in a variety of constitutional cases. It is a reminder, in the face of some recent grumblings, that allowing debates among judges to be publicly aired enriches our law and improves it.

Civics, Feelings, and Politics

Expatriates’ alleged lack of connection to particular ridings is not a good reason to disenfranchise them

When it held, in Frank v Canada (Attorney-General), 2019 SCC 1 (summarized here), that denying the franchise to Canadians who have been resident abroad for more than five years is unconstitutional, did the Supreme Court go with “feelings over civics”? Did it decide the case in a way that ignores the fact that Canadians vote not for national parties but for candidates in local constituencies, to which expatriates are not meaningfully connected, even if they maintain, as the Court’s majority said, a “profound attachment” to Canada? Over at Routine Proceedings, Dale Smith argues that that’s precisely what the Court did. I disagree.

As Mr. Smith sees it, “five of seven justices of the Supreme Court failed to properly understand the importance of constituency-based democracy”. He also faults the government’s lawyers “for not making the case adequately either”, “and virtually all of the commentary” on Frank, including presumably my comment, for ignoring the issue. Yet in his view, it ought to have been a decisive consideration:

[W]e vote for local representatives. We don’t vote for parties, or party leaders, no matter what we may have in mind when we go into the ballot box – we mark the X for the local candidate, end of story. For an expat, it’s not the connection to Canada that should be at issue – it’s the connection to the riding, because that’s how we allocate our votes.

One might, of course, reproach the government lawyers for failing to emphasize this particular rationale for disenfranchising Canadians abroad. The Frank majority, even on this view, is blameless, because it wasn’t at liberty to sustain the disenfranchisement on the basis of a justification that the government did not even put forward. Section 1 of the Canadian Charter of Rights and Freedoms provides that limits on Charter rights, including the right to vote, must be “demonstrably justified” ― and as the Supreme Court has long held, it is the government that must carry out the demonstration. But there are other reasons, based in both what we might (loosely) call civics and feelings, as well as some realism about politics, that mean that, had the government chosen to make connection to the riding as the hill its case would die on, this case would be every bit as dead as it now is.


Start with the civics. Mr. Smith is quite right that, in point of law, we vote for local representatives, not for national parties or their leaders. Whether this ought to matter as much as he suggests, I will discuss below, when I turn to politics. But it’s important to consider a couple of other legal issues.

First, though there seems to be a good deal of confusion or even obfuscation on this point, the Canada Elections Act already takes care of the need for a connection between a Canadian voting from abroad (who may be a short-term expatriate, a long-term one previously allowed to vote, such as a diplomat’s family member, or a newly-enfranchised long-term expatriate). Paragraph 223(1)(e) provides that, when applying to be registered as an elector resident outside Canada and requesting to vote by special ballot, a would-be voter must provide the Canadian address to which his or her vote will be tied. Once the choice has been made, section 224 prevents the voter from changing it. This prevents forum shopping, as it were, and seems a sensible regulation.

Now, there is a range of options for the prospective voter from abroad to choose from:

the address of the elector’s last place of ordinary residence in Canada before he or she left Canada or the address of the place of ordinary residence in Canada of the spouse, the common-law partner or a relative of the elector, a relative of the elector’s spouse or common-law partner, a person in relation to whom the elector is a dependant or a person with whom the elector would live but for his or her residing temporarily outside Canada.

It has been put to me that the breadth of this range is excessive and gives the elector too much choice. If Parliament agrees, it can eliminate some superfluous options by legislation; this should not be constitutionally problematic. But I don’t think that Parliament should do this. On the contrary, giving the voter the ability to tie his or her vote to a former residence or a family member’s one makes it more likely that the elector will choose to vote at the particular place in Canada to which he or she is feels the strongest connection, which will not be the same for all expatriates, and which each voter is much better positioned to figure out when registering than Parliament when legislating.

Second, one must keep in mind that when it comes to voters in Canada, the law does not require any sort of evidence of a connection between the voter and his or her riding other than the fact that the voter resides there. Perhaps that’s because residence is simply deemed to be determinative of the community to which the voter belongs. But this seems a very rough assumption, especially in today’s urbanized world, in which many ridings are quite compact and the boundaries between them, fluid. A voter might be live in a bedroom community or a residential neighbourhood, but work in a downtown in a different riding, and perhaps have other attachments in yet a third one. It is, to say the least, not obvious which of these the voter is genuinely connected to. Residence, arguably, is only the most easily administrable way of sorting voters into ridings (both at the point of counting them through the census and at the point of registering them), simply because it tends to be more stable than other connections. As Chief Justice Wagner, writing for the Frank majority, put it, “residence can best be understood as an organizing mechanism for purposes of the right to vote”. [28] It is nothing more than that.


This brings me to what Mr. Smith might calls “feelings”. He and others who defend the disenfranchisement of Canadians abroad are very quick to demand that expatriates meet conditions that are not imposed on other Canadians to qualify for the franchise. Whether it be some subjective connection to a riding or to Canada as a whole, or knowledge about the local state of affairs, or tax liability, or subjection some undefined but substantial number laws, not all residents will meet these conditions that are said to justify denying the franchise to expatriates. But no one thinks to inquire into whether they really do, and no one, I’m pretty sure, would accept (re-)introducing tests of this nature into our election laws. Expatriates are the only people whom people judge on such criteria.

Indeed, it is not so much a judgment as prejudice. Expatriates are simply assumed to fail such tests ― and arguments to the contrary are dismissed as “feelings”. Mr. Smith guesses that Canadians who live abroad cut themselves off from communities where they used to live, or have family, or intend to return (or all of these things). Why? My personal experience, for what that’s worth, is that I keep up with the news from Québec and Montreal (and occasionally write on Québec-specific issues), more than from other provinces. Do I specifically track the news for Notre-Dame-de-Grâce-Westmount, where my parents live and I will vote in October, if I can be bothered? Not particularly, but then again, I wouldn’t even if I actually lived there. To say that I’m not a suitable voter for this reason would be applying a groundless double standard.

And speaking of double standards (and, I suppose, of civics), it’s worth noting that pursuant to section 222 of the Canada Elections Act some long-term expatriates are already allowed to vote: namely, members and employees of the Canadian forces, federal provincial public servants, employees of “international organization[s] of which Canada is a member and to which Canada contributes, as well as anyone who “lives with” such voters. The rationale for this is, presumably, that all such persons ― not just public servants, mind you, but their family members too ― are deemed to maintain a connection with Canada that other expatriates lack. Yet even assuming that this is so, is it remotely plausible that such persons (who, if anything, probably tend to be more mobile than the average voter even when they live in Canada) maintain their special connections to their home ridings? I really don’t think this is plausible, and so, the invocation of the riding connection as a justification for disenfranchising some, but not all, expatriates is another sort of unwarranted double standard.


Let me finally turn to politics ― and, specifically, to the need to be realistic about it. If we want to understand the rules of elections and government formation in Canada, we must keep in mind that each voter only casts a ballot for a local representative, not (directly) for a party or Prime Minister. But if we want to figure out whether Parliament is justified in preventing a person or a class of persons from voting, I don’t think it makes sense to pretend, as Mr. Smith asks us to, that this is all that matters. The reality, as he more or less acknowledges, is that what we “have in mind when we go into the ballot box” ― or at least the voting booth, for the less acrobatic among us ― very much has to do with parties and, especially, their leaders, for most voters.

Political parties themselves know this. The big ones tried to prevent to keep the small ones from getting their names on ballot papers, until the Supreme Court wisely put an end to that in Figueroa v Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912, because candidates not identified with parties get fewer votes. They give pride of place to party names, logos, slogans, and leaders in their advertisements. They make sure their MPs have lookalike websites in party colours. Local candidates are often little more than props for a leader’s tour. I’m too lazy to look for the relevant research (if it exists) right now, but as a not-so-wild guess, I’m inclined to think that many voters don’t even remember the name of their local candidate when they go vote. This may be regrettable, but the parties themselves have ensured that it doesn’t matter; what does matter is the party identification on the ballot paper.

One key reason for this is that election campaigns are largely national events, not local ones. (By way of thought experiment, imagine we didn’t hold simultaneous general elections, but renewed the House of Commons with staggered elections, one riding at a time. Our politics may well be quite different ― and more local. But of course we don’t do that.) The centrality of leaders’ personalities to election campaigns makes this unavoidable, and an even starker phenomenon than in the past. But even to the (limited) extent that voters are preoccupied with actual issues rather than personalities, the issues are largely national in scope. This is perhaps especially the case in federal elections, since Parliament’s powers are, by design, largely those that concern the country as a whole. Admittedly Parliament doesn’t always keep to its jurisdiction. Even when it does, Justice Rowe points out in his concurring reasons that “federal policy can impact different geographically defined communities in different ways”. [89] Still, federal elections aren’t about the quality of your local school or the regularity of garbage removal from your street. Most voters, especially in federal elections, just aren’t especially concerned with riding-level matters. To say that expatriates, and only expatriates, ought to be disenfranchised because they aren’t is, once again, to apply an unwarranted double standard.


The existing law already ensures that Canadians voting from abroad cast their ballots in the ridings to which they have the strongest connections. At the same time, it does not require the existence of a very meaningful connection between any voters, including those resident in Canada, and their ridings. The idea that expatriates should be prevented from voting because they lack such a connection is thus a double standard. Moreover, Canadian elections, especially federal ones, aren’t local affairs anyway. For all these reasons, had the government argued that Parliament was entitled to deny expatriates the franchise because of their supposed detachment from the ridings in which their votes would be counted, it would have fared no better than it actually did in Frank.