The Sex Appeal of Power

I’ve noticed a disturbing trend recently, in both politics and law. The idea is what I call the “one-way ratchet fallacy” of power. It goes like this: when an institution or entity obtains power of some kind, that power will only ever be used to fulfill certain goals rather than others. That is, people might assume that power will always run in favour of the policy outcomes they like. This is, in a word, naïve—but at worst, it is a gross misunderstanding of the problems with power. The increasing tendency to think this way only reinforces the need for law and custom to limit, rather than unleash, power.

Two examples come to mind that illustrate this phenomenon. The first is an issue near and dear to my heart, and that issue is constitutional interpretation. In Canada, a major misunderstanding of the Persons Case holds that Canada’s Constitution is a “living tree”—in other words, the Constitution must “grow” to fit the emerging realities of today’s society. Under this theory, judges in a system of strong judicial review decide when and in what direction the Constitution should evolve.

Putting aside the fact that only some work has been done to actually provide rules to govern the “living tree” theory, and also putting aside the fact that the Supreme Court has never provided such guidance (and in fact does not consistently endorse this theory), there is a certain “ideological sex appeal” to living constitutionalism, as Chief Justice Rehnquist once said. That appeal is that the law and the Constitution can be used to achieve policy outcomes that one likes, ensuring that the Constitution protects certain outcomes that are consistent with “evolving standards of decency” (to borrow an American phrase). Unsurprisingly, progressives see the potential in living constitutionalism. It is a good way to ensure the Constitution keeps up with modern times and, potentially, modern progressive causes.

But, there is a major risk that should cause those who endorse living constitutionalism to pause. Living constitutionalism contains within it a dangerous assumption: that judges will always be on the side of angels. The risk was put eloquently by Justice David Stratas of the Federal Court of Appeal in a talk a few years ago. The general gist of it is this: imagine, some years from now (or maybe we do not even need to imagine) that there is some existential crisis affecting our society. Courts are asked to deal with a legal issue arising out of that crisis. Would we rather the court decide the matter according to settled doctrine, painstakingly developed over generations? Or on the personal say-so of judges? There is a risk that the personal say-so of a judge might run in a direction that progressives would not like. Basically, without rules governing the exercise of legal power by judges, it’s a coin flip in terms of result.

Lest anyone think that this is an inherent flaw of progressives, those on the right can also fall victim to the alluring sex appeal of power. A good example is the recent Trump administration move to “ban” government contracting and other relations with businesses and others that offer some critical race theory training. Now, it is more than fair to say there are major debates raging right now about critical race theory. That’s a somewhat separate issue. What is important here is that the power of the government is being used to root out certain ideas rather than others.

This is a different issue from living constitutionalism, since here it could be argued that governments have the power to implement their view of the “public good;” law, by its nature, is supposed to be governed by rules that are as close to “neutral” as possible. So those on the right might feel emboldened by Trump’s move because it implements their view of the good. But once the precedent is set that governments can police ideology by picking winners and losers in business, and ferret out views it doesn’t like from the inside, it is just as possible that a future administration could fall victim to the sex appeal of power in the opposite direction. Power can be used, in the future, to limit the spread of ideas that those on the right might find appealing: free market economics, personal liberty, whatever it is.

While the situation is admittedly slightly different than the living constitutionalism example, this situation calls for a political custom surrounding the exercise of power. As Dicey said, laws are not enough; there must be a “spirit of legality” that governs the exercise of power. This is understood as a reference to customary norms governing the exercise of power. Surely, one custom might be that governments shouldn’t pick winners and losers based on ideology (within reason).

The living constitution example and the critical race theory example illustrate the sex appeal of power. It can be exercised in a certain political direction, to be sure. And it might feel good for power to be exercised to the benefit of certain political factions. But the more power is granted to certain actors, and the more that laws and customs liberate that power, the more we might expect the one-way ratchet to keep ratcheting up. In politics, this might be one thing. But in law—especially when it comes to constitutional interpretation—the sex appeal of power is positively dangerous.

When the Surgeons Miss

Federalism and the Genetic Non-Discrimination Act Reference

Guest Post by Shannon Hale*

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

The Self-Own of Court-Packing

2020 dealt us another major blow last week, when Justice Ruth Bader Ginsburg passed away at the age of 87. Justice Ginsburg, agree or disagree with her jurisprudentially, was an inspiration to many. Rightly so. She was a trailblazer. Incidentally, for anyone interested, there is a great movie about her life in the law: “On the Basis of Sex.” Available on Crave, I think.

Predictably, though, the good feelings towards Justice Ginsburg have quickly morphed into a sickening volcano of politics. The story starts back in 2016, when then-President Barack Obama nominated Merrick Garland to fill a Supreme Court seat left open by Justice Antonin Scalia upon his death. The Senate, which has the advice and consent function on new judges under the US Constitution, and led by Republican Mitch McConnell, refused to even hold a vote on Garland. The rationale at the time was that, with a Democratic President and a Republican-controlled Senate, “[t]he American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” The gamble worked out for the Republicans, who won the Presidency in 2016 and were able to nominate Justice Neil Gorsuch to fill Justice Scalia’s old seat.

The Republicans put a mark in the sand in 2016, and if we lived in a world of consistency and honour, the Republicans would forestall their choice for the Supreme Court until after the 2020 election. But unfortunately, the Republicans see an opportunity. Mitch McConnell has announced that the Senate will consider the President’s nominee before the election. His justification for doing so, compared to 2016, is that now the same party holds the White House and the Senate. This is, to put it in a word, ridiculous. But in this imperfect world, I do not see any way for the Democrats themselves to stop the nomination from moving forward–save for some courageous Republicans.

The Democrats, angry by this, have lost their patience. Prominent Democrats have opened the door to court-packing, a play that would expand the court and allow Democrats (should they win the presidency) to “pack” the court with sympathetic judges. The underlying theory behind this move is simple: the Republicans have gamed the Supreme Court for too long, and the system itself is illegitimate. The Democrats have to react accordingly by bringing a gun to a gun fight. Or, perhaps more generously, the Democrats need to “expand democracy” (loads of problems with this that I cannot deal with here).

I think this is a flawed way of thinking that will simply lead to a race to the bottom. More promising are calls for a comprehensive deal between the parties. But if the choice is to pack the court or retain the status quo, I say retain the status quo, much as it pains me to say it. Life—and law—is not about utopia, but about choosing the least of bad options. And this is one of those situations.

There are reasons of principle and pragmatism for my conclusion. The entire point of the Supreme Court—in both Canada and the United States—is to act as an apex court in a system of judicial review. Despite the fashionable trend towards eroding the distinction between law and politics, judicial review is a quintessentially legal task, asking whether government laws or action remain consistent with some external norm, such as the Constitution. To do so, over time, courts (in theory) develop settled doctrine and precedent to govern the application of the law. To be fair, we have never reached this Nirvana in law. But in the application of law, we do our best to depoliticize the process as much as we can, so that the work judges do has some legitimacy attached to it.

Whether one accepts this or not, as time has gone on, especially in the United States, the Supreme Court appointment process itself has become politicized, undermining the perception of the review role of the court. Ideological litmus tests abound, and as noted above, at least in recent memory, the Republicans have played games with the nomination process. This raises a question. Even if the application of law is, ideally, removed from the spectre of “politics” (a vexing terminological question I am conveniently sidestepping here), there is still a question of perception. In other words, the system must also be supported by a “spirit of legality,” as Dicey put it. In service of that spirit, it is my view that political actors sometimes need decline to exercise power they strictly have in legal form in order to create an institutional culture of respect for the law. This goes both ways.  While it is true that the Republicans have the “raw power” to move a nomination through the Senate, they may want to keep their powder dry in the name of the rule they created in 2016, and as a means to protect the legitimacy of the Court in the public eye. And the Democrats will want to abstain from moving on court-packing, because it too transforms the trappings of the court into an ideological fever-pitch. Even if one believes the system is illegitimate, making it more illegitimate is a self-own.

I am alive to the criticism that I live in a world that either never existed or is long gone. That is, at least since Bork (and likely before), the Supreme Court selection process has been a breeding ground for partisan considerations. This is true. But that is not a reason to go further down the rabbit hole. If anything, it is a moment to reflect how far we have come, and what we need to do to ensure our institutions retain legitimacy. As Aziz Huq and Tom Ginsburg note, court-packing is anathema to the Rule of Law.

Arguments from principle nowadays are not very convincing to many, left and right, who view themselves as engaged in a culture war where institutions are just organs of power, rather than bodies with designed and limited powers. So let me speak their language on my second point. Court-packing will be like a drug for the Democrats. It will feel really good to dunk on the Republicans for a few years. But as Joe Biden aptly noted in 2019:

In other words, on and on the merry-go-round goes. And it will never end. The Democrats have to ask themselves an important question if they go down the road of court-packing: are you so sure that you will end up on the winning end of the deal, over the years? How much would you be willing to bet? The Republicans have gamed the Court far more effectively than the Democrats over the years. There is no reason to believe that would stop in a post-court-packing world. In other words, as a matter of strategy, unless the Democrats are sure they would end up winning, the smart play is to simply hold fire.

Holding fire is not desirable for many in today’s world, as I alluded to above. Today, the name of the game is power. Those who consider themselves engaged in a culture war view the matter as a tactical one, in which power that is held must be used to extinguish the other side. But there are more important things than winning a political battle. Institutions that are designed to apply law, for all of us, is one of those important things.

On the other hand, holding fire is not the ideal solution here, by far.  While there are many permutations on offer, I am quite convinced that Ilya Somin’s suggested solution is one worth exploring. Here it is:

  1. The Republicans promise not to confirm any Supreme Court nominee until after January 20 of next year, at which time whoever wins the election will get to name Justice Ginsburg’s replacement.

2. In exchange, the Democrats promise not to support any expansion of the size of the   Supreme Court for at least the next ten years.

This solution puts protecting the institution at the forefront before political victories. And it buys time for the sides to cool down the temperature and do the right thing. There are  other options on the table: term limits, mandatory retirement, the list goes on. In a healthy constitutional democracy, all of these things should be on the table. Of course, I have no hope that this these solutions will come to pass. That in itself is an indictment of the American constitutional democracy as it stands.

All in all, court-packing poses the question to the Democrats: are you confident in your side winning the war over the long term? If you aren’t, court-packing is a gamble that could hurt the Democrats over the long haul. And nowadays, maybe that is the most important consideration for culture warriors to keep in mind. Self-owning is never fun.

Unstuck

Ontario’s Superior Court strikes down the anti-carbon tax-sticker law, but still doesn’t get freedom of expression

Last year, I wrote about Ontario’s Federal Carbon Tax Transparency Act, 2019 (the “Act”) ― both about the disgraceful way in which it became law and about its unconstitutional speech compulsion, which I argued should not even be considered as a potentially justified limitation of the freedom of expression under section 1 of the Canadian Charter of Rights and Freedoms, because it was tantamount to the imposition of an official ideology. The constitutionality of the Act was in fact challenged by the Canadian Civil Liberties Association and, last week, in CCLA v Ontario (Attorney General), 2020 ONSC 4838, the Superior Court of Ontario struck it down.

At first glance, this is a welcome development for the freedom from compelled speech. Not only is the compulsion invalidated, but Justice Morgan’s approach might seem to bear some resemblance to the one I had proposed: in effect, he denies the government the chance to justify the Act under section 1. But look at Justice Morgan’s reasons more closely, and they turn out to be very narrow. Indeed, they could be used to support significant speech compulsions in the future.

This is not altogether surprising. Justice Morgan was constrained by the Court of Appeal’s reasoning in McAteer v. Canada (Attorney General), 2014 ONCA 578, 121 OR (3d) 1, upholding the constitutionality of the requirement that applicants for the Canadian citizenship swear an oath to bear “true allegiance” to the “Queen of Canada”, which I have described as a “parade of horribles“. And indeed it was none other than Justice Morgan who had written the first instance decision in that case. While it wasn’t quite as bad as that of the Court of Appeal, it did not evince much understanding of the harms of compelled speech either.


The Act required all gas stations to display a prescribed sticker alerting customers to the amount of the “federal carbon tax” levied on the gas they were purchasing. The evidence adduced by the CCLA showed that it was meant as a not-so-subtle intervention in the 2019 federal election campaign, in which the Ontario government supported the anti-carbon-tax position of the federal Conservatives and opposed the pro-carbon-tax Liberals. This partisan dynamic is a key factor in Justice Morgan’s reasoning.

Before getting to the substantive issues, Justice Morgan must address the Attorney General’s objection to the CCLA’s standing to challenge the Act. As it turns out, the CCLA has tried to enlist actual gas stations as plaintiffs or co-plaintiffs, but none would come forward. Justice Morgan explains that “retailers, with a view to market forces rather than to politics and constitutional law, have been loath to participate in this case” due to its political valence. [40] But the record to which Justice Morgan alludes suggests that this is not quite accurate: politics, in the shape of a fear of regulatory retaliation, seems to have been a motivating factor too. Be that as it may, Justice Morgan grants the CCLA public interest standing to pursue the case.

He must next decide whether the sticker requirement limits the freedom of expression protected by section 2(b) of the Charter. To this end, he applies the test set out in the Court of Appeal’s McAteer decision:

The first question is whether the activity in which the plaintiff is being forced to engage is expression. The second question is whether the purpose of the law is aimed at controlling expression. If it is, a finding of a violation of s. 2(b) is automatic. If the purpose of the law is not to control expression, then in order to establish an infringement of a person’s Charter right, the claimant must show that the law has an adverse effect on expression. In addition, the claimant must demonstrate that the meaning he or she wishes to convey relates to the purposes underlying the guarantee of free expression, such that the law warrants constitutional disapprobation. (McAteer, [69])

Justice Morgan finds that the sticker is indeed a form of expression. Yet in his view its purpose is not to control expression. In particular, he takes the view that “it would be difficult for the government to control expression by compelling certain messages … but not restricting others”. [50] Objectors remain free “to disavow” [52] the message they are compelled to voice, for example by posting disclaimers; hence their expression is not “controlled”. However, it is adversely impacted by the Act.

The key point for Justice Morgan is that, unlike the citizenship oath in McAteer, the sticker does not promote democracy and the Rule of Law. Indeed, it does not even serve to truthfully inform. Justice Morgan attaches some importance to the sticker’s use of the “carbon tax” nomenclature, which in his view is at odds with the Court of Appeal for Ontario’s opinion, in Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 544, 146 OR (3d) 65, that the policy at issue is not a “tax” within the meaning of the Constitution Act, 1867. Moreover, the sticker says nothing of the ways the money levied as carbon tax is distributed, in part to taxpayers, in part to provinces. As a result, it is a form of “spin”. [60] By requiring it, “the government is not so much explaining a policy [as] making a partisan argument”. [63] And “[b]y using law for partisan ends, the Ontario legislature has enacted a measure that runs counter to, rather in furtherance of, the purposes underlying freedom of expression”. [65]

This limitation of the freedom of expression is not justified under section 1 of the Charter. Indeed, unusually, Justice Morgan finds that the Act lacks a pressing and substantial purpose ― the first, and normally very low, hurdle a statute must meet to be upheld under section 1: “While truly informing the public about the components that make up the cost of gasoline would be a pressing and substantial purpose, promoting the Ontario governing party over the federal governing party is not.” [69] The Act is purely partisan rather than a real “policy choice”. [69] Justice Morgan goes through the other steps of the justified limitation analysis by way of an obiter, but it all comes down to his concern with partisanship. The Act is invalid.


Right outcome, but the reasoning is another matter entirely. Justice Morgan’s approach is illogical and conflicts with the Supreme Court’s precedents, notably inthat it collapses the two stages of the Charter analysis that the Supreme Court has always sought to keep distinct: first, the question of whether a right is being limited; second, that of whether the limitation is justified.

First, to say, as Justice Morgan does, that one’s expression is not controlled because one can disavow something one has been coerced to say is perverse. The fact that one is forced into disavowals shows sufficiently that what one is saying is not what one chooses to say.

The political context that Justice Morgan’s reasons depict highlights this problem. As he explains, it appears that gas station owners would rather keep quiet and sit out the political conflict about the carbon tax. This is their right ― the obverse of the freedom of speech is the freedom to stay silent. If they are forced into disavowals and denials, the gas stations will inevitably be taking sides in the political conflict they are trying to avoid ― if anything, this will be much more obvious than if they merely comply with the Act and display the required stickers. Of course, such a response is not what the Ontario legislature envisioned, but it would be caused entirely by the Act, and so it is absurd to deny that the Act amounts to a form of control of the gas stations’ expression.

Fortunately, the Supreme Court’s precedents mandate no such twisted inquiry. Ostensibly the most important freedom of expression case (I have argued here that it is only “leading from behind”), and the source of the “control” language used in McAteer and by Justice Morgan is Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927. The distinction between legislation that has control of expression as purpose and that which doesn’t is described as follows in the joint opinion of Chief Justice Dickson and Justices Lamer and Wilson:

If the government’s purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of free expression. If the government’s purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits the guarantee. On the other hand, where the government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression. (974)

Applied to speech compulsions rather than censorship, this means that any legislation that “singles out particular meanings” that must be communicated, or forces an audience to listen to a communication, necessarily has control of expression as its purpose. Such legislation limits (or, as the Supreme Court often says, prima facie infringes) the freedom of expression. There is no need to consider effects, let alone to ask the purely subjective question of whether they are worthy of “constitutional disapprobation”.

This inquiry into effects and “disapprobation” in effect forces claimants to show that the law which compels their speech is not justified, and more specifically that it pursues an end worthy of judicial condemnation. The success of such an argument in this case should not blind us to the fact that this is a high hurdle. As noted above, this approach collapses the usual section 1 test of whether a limitation on a right is justified into the threshold inquiry of whether a right is limited in the first place, and it means that the claimant rather than the government bears the burden of proof. It follows that Justice Morgan’s streamlined approach to the section 1 analysis is rather less supportive of freedom of expression than one might think. The important work is already done by the time he gets there, as he has, in effect, found that the Act is unjustifiable. Had he not so found, he would have upheld it without ever getting to section 1, just as the Court of Appeal upheld the citizenship oath in McAteer.

Last but not least, Justice Morgan’s emphasis on partisanship as the fundamental problem with the Act is also misguided. For one thing, as tempting as it might be to say that partisanship can never be a sufficient justification for restricting Charter rights, the Supreme Court has in the past upheld laws that protect political incumbents from criticism, notably in Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827. I think the Supreme Court was wrong to disregard the partisan valence of that legislation, but this shows that it will often be difficult to disentangle partisanship from other, specious considerations. Indeed, Justice Morgan himself suggests that a statute that is “a hybrid of policy and partisanship” would deserve to be treated as fully legitimate.

More importantly, Justice Morgan’s understanding of partisanship is very narrow. It does not encompass the promotion of a state ideology that rises, if perhaps only slightly, above the “horse race” version of partisan politics. He has nothing but sympathy for governmental “protection and promotion of Canada’s national and legal culture” [58] by means of forcing those who did not agree with this culture to voice loyalty to it. Needless to say, there is a political dimension to a “national and legal culture”, especially when this culture is coercively imposed by the state, even though Justice Morgan is oblivious to this. To him the distinctions between partisanship and high principle appear obvious. To the rest of us living in 2020, they are anything but.

Consider an obvious example: the late and unlamented “statement of principles” requirement that the Law Society of Ontario tried to impose on its members. Certainly its supporters argued in terms promoting a certain high-minded vision of social and legal culture (indeed they spoke of a “culture shift”). But then again, as we now know, there is a bitter partisan division over the issue within the ranks of the Law Society’s membership. So how would Justice Morgan approach the question of the constitutionality of the requirement? And would his approach be different now than it would have been before the partisan cleavage was revealed by the success of the StopSOP campaign in the 2019 Bencher election? Whatever we might think of the “statement of principles” or its opponents (of whom I was one), or of compelled speech more broadly, I hope we can agree that this is not a reasonable way of addressing such an important issue.


Of course it is a good thing that the Act is no more, and that the Ontario government, if it wants to continue its anti-carbon-tax propaganda campaign, will have to do it by itself, rather than by means of conscripting third parties. I have argued here that such ideological conscription is wrong when it serves to supposedly advance some rights-protecting agenda. It is no less wrong, obviously, when its aim has to do with fiscal and environmental policy. Governments have plenty of resources at their command. If they want to propagandize, they have no need to get unwilling individuals to do it for them.

Yet, the state of the law on compelled speech, and indeed on freedom of expression more generally, in Ontario at least, is cause for concern. It’s not just that few restrictions on freedom of expression are ever struck down. More importantly, the courts fail to understand what free speech means, and why it matters. Justice Morgan’s reasons for striking down the Act illustrate these failures just as much as his and the Court of Appeal’s earlier reasons for upholding the citizenship oath did.

Throwing Away the Key

Thoughts on life imprisonment without parole, in New Zealand and in Canada

Last week, Justice Mander of New Zealand’s High Court sentenced the Christchurch mosque shooter to life imprisonment without the possibility of parole for the murder of 51 people, attempted murder of 40 others, and terrorism. This punishment is provided for by section 103(2A) of New Zealand’s Sentencing Act 2002.

Justice Mander’s sentencing remarks in R v Tarrant, [2020] NZHC 2192 hold some lessons for Canadians, as the Québec Court of Appeal is considering the appeals of both the Crown and the accused from the sentence the Superior Court imposed on the Québec mosque shooter in R v Bissonnette, 2019 QCCS 354. In that decision, about which Maxime St-Hilaire and I wrote here, Justice Huot found the possibility of stacking parole ineligibility periods for multiple murders in a way that amounted to sentencing those who commit them to life imprisonment without parole to a cruel and unusual punishment and a deprivation of liberty contrary to principles of fundamental justice, contrary to sections 7 and 12 of the Canadian Charter of Rights and Freedoms.

Although stating that “the needs of denunciation, of setting an example, and of incapacitation” are especially “pressing” [766; translation mine], Justice Huot went on to find that life imprisonment without a realistic prospect of parole was contrary to Canadian values. Canada, he wrote, “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; tanslation Professor St-Hilaire’s and mine] For him, the possibility of rehabilitation, even for the worst offenders, means that it is “sophistry to assert that [multiple murderers] should reasonably expect, in a free, civilized, and democratic society, to spend the rest of their days behind bars”. [975] Justice Mander’s cogent remarks help show that this was wrong.


Justice Mander, it worth noting, is by no means insensitive to considerations of humanity and anti-populism that apparently influenced Justice Huot so much. He considers the prospects of rehabilitation, and notes that “[t]he sentence [he] impose[s] must represent a civilised reaction based not on emotion but justice and deliberation”. [177] But these concerns are not dispositive in a case such as this.

Addressing Mr. Tarrant, Justice Mander explains that his

prime objectives are threefold. First and foremost, to condemn your crimes and to denounce your actions. Second, to hold you accountable for the terrible harm you have caused — in plain terms, to attempt to impose some commensurate punishment … on behalf of the whole community, which in particular includes the victims of your crimes and their families, all of whom are a part of New Zealand’s multicultural society. Third … to protect the community from a person capable of committing cold-blooded murder on such a scale and who presents such a grave risk to public safety. [124]

Justice Mander notes that section 9 of New Zealand bill of Rights Act 1990 prohibits the imposition of “disproportionately severe … punishment” (judicially interpreted as calling for a test of gross disproportionality ― similar to the one applied to test the constitutionality of legislation under section 12 of the Canadian Charter of Rights and Freedoms). He notes, also, that “[t]here is European jurisprudence that indicates the imposition of a whole-of-life sentence in the absence of any effective review mechanism is incompatible with
international human rights instruments”. [139] Nevertheless, he finds that nothing short of a life sentence without parole would be proportionate to the crimes here.

Let me quote just one paragraph about the facts (this one drawn from Justice Mander’s discussion of the aggravating circumstances). It is horrible, and there is, alas, so much more horror in this case ― as there was in the Bissonnette one:

It is self-evident that your offending constituted extreme violence. It was brutal and beyond callous — your actions were inhuman. You deliberately killed a thre-eyear-old infant by shooting him in the head as he clung to the leg of his father. The terror you inflicted in the last few minutes of that small child’s life is but one instance of the pitiless cruelty that you exhibited throughout. There are countless more examples. You showed no mercy. [151]

In Justice Mander’s view,

no minimum period of imprisonment would be sufficient to satisfy the legitimate need to hold you to account for the harm you have done to the community. Nor [would] minimum term of imprisonment would be sufficient to denounce your crimes. [179]

Indeed, in a comment particularly relevant to the comparison the sentence he imposes with Justice Huot’s preoccupation with not letting people spend their lives behind bars, Justice Mander observes that, were he “to impose a minimum period of imprisonment in an endeavour to meet the purposes that I am required to achieve in sentencing you for murdering 51 people, it could not be less than [Mr. Tarrant’s] natural life”. [180] Ultimately, he does

not consider, however long the length of your incarceration during your lifetime, that it could, even in a modest way, atone for what you have done. Ordinarily such an approach would be a poor guarantee of just and proportionate punishment, but I consider yours is one of those exceedingly rare cases which is different. [184]

I think that Justice Mander is right about all of this. Justice Huot, who would no doubt hurl accusations of “sophistry”, populism, and other assorted sins, would not only be wrong but, at the risk of sounding pompous, morally obtuse. Collective indifference and forgetfulness are not just, or even primarily, concerns in relation to those who commit terrible crimes. It would be no less ― and indeed much more ― wrong to be indifferent to the crimes themselves. And it will still be wrong decades from now.

As I recently wrote in discussing an Alberta judgment on the application of section 12 of the Charter, I think that the gross disproportionality test is a sensible construction of its “cruel and unusual punishment” prong, so far as individuals (rather than legal persons) are concerned. Well, I don’t think there is anything grossly disproportional, or indeed disproportional in any way, in denying the possibility of parole to a man who presents himself to a place of worship with the sole purpose of killing as many people as possible, and proceeds to do just that. On the contrary, I think justice may well demand no less. Perhaps there are policy considerations that would explain why a legislature might not put that option on the table. But at the level of principle, I think the New Zealand approach of making the life without parole sentence available in cases where the objectives of punishment cannot be met by a lesser one is right. The Canadian approach of making the parole non-eligibility terms of multiple murderers run consecutively amounts to the same thing, but less transparently, so I think the New Zealand one is preferable.

Granted, the sentencing court should consider repentance and the prospect, even if unlikely on balance, of rehabilitation. There seems to be a difference on this point between the Québec and Christchurch cases, and if this were the reason for Justice Huot’s decision not to impose, in effect, a life sentence without parole, it might have been defensible. (I’m not sure it would have been. Luckily I’m not a judge in charge of sentencing mass murderers, so I get to punt on this question.) But that’s not the main consideration that motivated Justice Huot. On the contrary, he felt strongly enough the need to denounce and punish Mr. Bissonnette that he rewrote (which is a nice way of saying “broke”) the law to impose a 40-year parole ineligibility period, instead of a 25-year one. That suggests that, ultimately, he thought that, as in the Christchurch case, punishment and denunciation dominate. And, if so, a sentence without parole is warranted.


I fully agree with Justices Huot and Mander that the measure of just punishment is not its ability to grab the headlines, and that a civilized justice system must move away from the “an-eye-for-an-eye” instinct. Cases such as these remind us, in any event, the futility of such fantasies. Even if we were in the business of killing murders, we couldn’t kill them six, or fifty-one, times over.

But Justice Mander’s sentencing remarks are a reminder that one need not be vengeful, or to simple-mindedly parrot the tough-on-crime line, to find, in truly shocking and exceptional cases, that the most severe punishment is warranted. Protecting the lives of the citizens is the state’s first responsibility on any plausible view of its role. Providing justice, in the form punishment, in response to those who take their fellow human beings’ lives is the second. In the face of contempt for human life and indifference to, if not actual pleasure in, human suffering, retribution is called for. In extreme cases, locking such people up and throwing away the key is only fair. I do hope that the Québec Court of Appeal, and the Supreme Court if comes to that, take note.

Unusual Indeed

The trouble with a caustic, pseudo-originalist opinion of Wakeling JA

In my last post, I described the decision of the Alberta Court of Appeal in R v Hills, 2020 ABCA 263, which upheld a mandatory minimum sentence for the offence of firing a gun into a place “knowing that or being reckless as to whether another person” is there. Two of the judges, Justices O’Ferrall and Wakeling delivered concurring opinions in which they called on the Supreme Court to reconsider its jurisprudence on mandatory minimum sentences and indeed on the interpretation of section 12 of the Canadian Charter of Rights and Freedoms, which protects against “any cruel and unusual treatment or punishment”, more broadly, notably R v Smith, [1987] 1 SCR 1045 and R v Nur, 2015 SCC 15, [2015] 1 SCR 773. I summarized the arguments made by both of the concurring judges in the last post.

Here, I consider specifically Justice Wakeling’s opinion. It is very unusual indeed, in both substance and form. It deploys unorthodox and, in my view, untenable, interpretive techniques, and arrives at startling conclusions. It is long, seemingly scholarly (though there is less real scholarship to it than meets the eye), and caustic. I don’t recall reading anything quite like it in Canada, though admittedly I do not read as many judgments as I would like, especially below the Supreme Court level.


Let me begin with Justice Wakeling’s approach to constitutional interpretation. Justice Wakeling does not explain what he is doing, which is unfortunate, because an explanation might have clarified matters ― not least to Justice Wakeling himself. Be that as it may, what Justice Wakeling seemingly does is resort to a sort of expected applications originalism. This is a way of describing attempts to interpret constitutional provisions by asking how their framers would have expected a question about their application to be resolved. This is a fool’s errand. Serious originalists have long given up on what Benjamin Oliphant and I have described as “speculative transgenerational mind reading”. (126) As Randy Barnett has written, “ascertaining ‘what the framers would have done’ is a counterfactual, not a factual or historical inquiry”. (71)

But Justice Wakeling’s version of expected applications originalism is particularly bad, because he refers to a great extent to events and real or purported beliefs that long predate the enactment of the Charter. Indeed his discussion of the Charter and the views, if any, of its framers is remarkably brief. Justice Wakeling points out that the late

Professor Hogg predicted in 1982 that Canadian courts would give section 12 of the Charter “the same interpretation” courts gave section 2(b) of the Canadian Bill of Rights. In other words, section 12 was of minimal value. Modern political realities made a constitutional death-penalty watch dog unnecessary. And that was the only role section 12 was intended to serve. [217; references omitted]

Most of what Justice Wakeling has to say about the meaning of section 12 goes back much further. The Bill of Rights 1688 is of special significance to him, as he argues that its

prohibition of cruel and unusual punishment was undoubtedly a response, either entirely or, at least partially, to the blood-thirsty sanctions Chief Justice Jeffrey and the other judges imposed on supporters of the 1685 Monmouth Rebellion that challenged the rule of the Catholic King James II during the Bloody Assizes of 1685 and the brutal flogging imposed on Titus Oates for his perjured testimony that cost a large number of Catholics their lives. [148]

From this, Justice Wakeling draws a straight line to the Eighth Amendment to the US Constitution, the Canadian Bill of Rights, and the section 12. He describes the US Supreme Court’s departure from the focus on “horrific penalties” akin to torture and its embrace of disproportionality as a touchstone for assessing violations of the Eighth Amendment in Weems v United States, 217 U.S. 349 (1910) as “judicial heresy”, and writes of the author of the majority opinion in that case that “Justice McKenna’s fingerprints are all over” Smith, [187] and thus subsequent section 12 jurisprudence.

This approach to the interpretation of section 12 makes no sense. Even on an originalist view, why should the meaning of the Charter be determined by what might have been the intentions or expectations not of its framers, but of those of the Bill of Rights 1688, the Eighth Amendment, or even the Canadian Bill of Rights? This isn’t expected applications originalism but expected applications pre-originalism. I know of no precedent or justification for it.

The better originalist approach is that which focuses on the public meaning of constitutional provisions. Historical antecedents are not irrelevant to establishing public meaning (and I have referred to the Magna Carta and the Bill of Rights 1688 myself in writing about section 12 here). However, they are useful in that they ― and their interpretation ― helps us ascertain how a contemporaneous reader would have understood the provision when it was enacted. That being so, the signicance of Weems and subsequent American jurisprudence is very different from that which Justice Wakeling attributes to them. Whether or not they were accurate interpretations of the Eighth Amendment’s original meaning is beside the point. What is noteworthy is that these interpretations would have been part of the context in which section 12 was enacted, and so colour the public meaning the phrase “cruel and unusual punishment” had by the time the Charter was adopted.

A related problem with Justice Wakeling’s approach to interpretation is his use of texts that use wording different from that of section 12 to suggest that the meaning of section must be different. This can be a very useful interpretive tool, but it has to be wielded carefully and honestly. Justice Wakeling relies on three comparisons: with early the constitutions of some American States; with a rejected draft of the Canadian Bill of Rights; and with section 9 of the New Zealand Bill of Rights Act 1990. All of these texts explicitly refer to proportionality, whereas section 12 does not.

Of these, the American texts are somewhat expansive policy statements, of a kind that was mostly ― except, notoriously, in the case of the Second Amendment ― rejected in (what became known as) the US Bill of Rights. The absence of such a statement from the Eighth Amendment doesn’t prove that it disproportionality is not part of its permissible construction. (Somewhat similarly, the absence of an explicit reference to separation of powers, analogous to that found in some State constitutions, in the US Constitution doesn’t mean it does not in fact provide for separate powers.)

With respect to the proposed wording of the Canadian Bill of Rights, Justice Wakeling says that “[a] number of commentators criticized its vagueness”. [201; reference omitted] The concerns of the only such commentator whom Justice Wakeling actually quotes are telling, for he worried, in part about whether a reference to “inhuman or degrading” punishment might be taken to outlaw flogging. Yet Justice Wakeling himself notes that the British “Parliament has repealed the brutal punishments that prompted the 1689 Parliamentary prohibition of cruel and unusual punishments” [153] ― including “flogging”! [154] That commentator’s concerns, in other words, do not deserve to be taken seriously, on Justice Wakeling’s own account. (The reference to flogging is interesting in another way, to which I will shorty turn.) And anyway the exclusion of words like “inhuman” because of their vagueness does not prove that the words retained did not have an element of vagueness calling for construction.

Lastly, the reference to the New Zealand Bill of Rights Act strikes me as quite inappropriate, since that statute was enacted eight years after the Charter. Some of its provisions sought to remedy avoid the Charter‘s real or perceived ambiguities; they tend to be more specific than the Charter‘s. (Compare, for example, New Zealand’s distinct provisions on “freedom of thought, conscience, and religion” and the “manifestation of religion and belief” with section 2(a) of the Charter.) In the case of section 9, one might suppose ― I have not looked into this ― that they New Zealand drafters thought that the outcome of Smith was justified and wrote it into the statute in so many words for the avoidance of doubt. But their choice to do so does not mean tell us anything about the meaning of the Charter, whose drafters were obviously not aware of the subsequent work of their Kiwi counterparts.

The last interpretive issue I will address here is Justice Wakeling’s reading of section 12 as a mere enumeration, and a remarkably brief one at that, of prohibited punishments. One striking consequence of this reading is that Justice Wakeling thinks that, because imprisonment was a commonly used punishment when the Charter was enacted and thus not unusual,

section 12 … does not allow a court to declare jail sentences cruel or unusual punishments. … [O]ffenders may not invoke section 12 to challenge either mandatory-minimum or mandatory-maximum jail sentences or any other jail sentence. [244]

(It is worth noting that Justice O’Ferrall “question[s]” [115] and indeed seems to reject this view.)

Justice Wakeling repeats a mistake committed by Justice Scalia, including in his comments on the Eighth Amendment in the famous lecture “Originalism: The Lesser Evil”. Justice Wakeling refers to some of Justice Scalia’s decisions seeking to limit the import of the Eighth Amendment to the 1791 catalogue of barbarity ― but not to that lecture where, tellingly, Justice Scalia professed being a “faint-hearted” originalist, because he wouldn’t bring himself to countenance the punishment of flogging even if was practised in 1791. The catalogue approach, it seems, doesn’t really work.

In a lecture of his own, “Scalia’s Infidelity: A Critique of Faint-Hearted Originalism“, Randy Barnett explains why. He points out that

original public meaning originalism attempts to identify the level of generality in which the Constitution is objectively expressed. Does the text ban particular punishments of which they were aware, or does it ban all cruel and unusual punishments? (23)

As Professor Barnett notes, “[t]his is not to say … the broader provisions of the text lack all historical meaning and are open to anything we may wish them to mean”. (23) But that meaning, if there is one, must be established with reference to the time of those provisions’ enactment ― not to a period that preceded it by two or three centuries. Justice Wakeling’s own reasons suggest that, whatever may have been the case in 1689 or even 1791, the phrase “cruel and unusual” may well have acquired a broad and morally loaded meaning by 1982. He does not even contemplate this possibility.


This leads me to concerns about the form and tone of Justice Wakeling’s opinion. It has an air of scholarliness: at over 12,000 words and 200 footnotes, it has the heft of an academic article. And yet this is only an appearance. It is inimical to good scholarship ― even, I would argue, in a judicial opinion, and not only in an academic setting ― to ignore counter-arguments and relevant sources that do not support one’s claims. Meanwhile, a great many of those footnotes turns out to cite to Justice Wakeling’s own opinions; a flaw of much academic writing, my own not excepted, but manifested here to an inordinate degree.

And then there is the bitter vehemence of Justice Wakeling’s writing. From the outset, he heaps scorn on the Supreme Court’s precedents, calling the “reasonable hypothetical” approach to section 12 they command “remarkable, to say the least”, [124] and claim that “[t]here is no constitutional doctrine that justifies this unusual method”. The decision in Smith is “surprising[]” [219] and “unexpected”. [220] “The contribution” that an argument made by Justice Lamer ― to whom Justice Wakeling denies the courtesy of a “as he then was” ― “makes to the debate is difficult to comprehend”. [226]

But Canadian courts and judges are not the only targets of Justice Wakeling’s contempt. I have already referred to his desription of Weems as “heresy”. If this were said about a fellow judge on Justice Wakeling’s court, this would be as mean as any of Justice Scalia’s cantankerous dissents. Still, such disagreements can appropriately be aired. But judges do not normally take it upon themselves to critique their colleagues in other jurisdictions. Not only is Justice Wakeling not qualified to pronounce on what it orthodox and what is heretical under American law ― it’s just not his job. Not content with commentary on the past, however, Justice Wakeling dabbles in political prognostication too, declaring that he

suspect[s] that the likelihood that additional states will abolish the death penalty is probably about the same as the likelihood that the Supreme Court – with a majority of conservative-minded justices – will sanction additional limits on the availability of the death penalty. [181; reference omitted]

To be clear, I have no objection to a judge expressing disagreement with the jurisprudence of a higher court. On the contrary, judicial criticism of binding authority ― so long as that authority is followed ― can be valuable; no less, and arguably more, than that of scholars and other commentators. If the lower courts are saying that a legal doctrine is not working well, the higher courts would do well to listen ― though they need not agree, and they should not agree in this case, as I argued in my last post. Justice O’Ferrall’s opinion strikes me as perfectly fine. But not so Justice Wakeling’s.

I have been tone-policed enough to be wary of engaging in such critiques myself. But Justice Wakeling is, after all, a judge ― and I think that judges can rightly be held to a standard of equanimity that should not be applied to academics, whose role it is to critique, and sometimes criticize, the exercise of the judicial power. I have also defended the use of strong language in judicial opinions. Still, there are lines not to be crossed. A judge ought not to be dismissive or petulant; nor should he engage in political commentary or, I think, make any sort of pronouncement on the merits of the laws (enacted or judicially articulated) of other countries. Justice Wakeling is and does all of these things. If he wants to act like a politically preoccupied professor, he should resign his judicial office.


I do not know how widespread the views expressed by Justices O’Ferrall and Wakeling are. Perhaps the Supreme Court will take heed and reconsider its jurisprudence in relation to section 12. In any case it will face other difficult questions about the interpretation of the Charter. Justice Wakeling’s opinion illustrates a number of things not to do in such cases. Courts should not look to the ways the authors of constitutional provisions, let alone the authors of their predecessors, expected these provisions to be applied. They should not be careless, let alone deliberately unfair, when they compare different texts. They should not convert moral language into laundry lists. And, of course, they should not be mean-spirited. Justice Wakeling’s opinion is unusual indeed, and I hope it stays that way.

Counter-Rebellion

Judges of the Alberta Court of Appeal question the Supreme Court’s jurisprudence on mandatory minimum sentences

Last month the Alberta Court of Appeal issued an interesting decision that concerned the constitutionality of yet another mandatory minimum sentence, this one in section 244.2 of the Criminal Code, for “intentionally discharg[ing] a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place”. The mandatory minimum is four years’ imprisonment (or more if organized crime is involved). For fairly straightforward rasons given by Justice Antonio, R v Hills, 2020 ABCA 263, upholds the four-year mandatory minimum, rejecting the claim that it is “cruel and unusual” within the meaning of section 12 of the Canadian Charter of Rights and Freedoms.

But in separate concurring reasons Justices O’Ferrall and Wakeling go on to criticize the Supreme Court’s approach for dealing with such cases. Both concurring opinions raise important questions, not only about the correct approach to mandatory minimum sentences under section 12 of the Charter, but also about constitutional interpretation and construction more broadly.

In this post, I summarize Justice Antonio’s lead opinion, as well as the common aspects of the two concurring ones, and explain why I think the Supreme Court is right and Justices O’Ferrall and Wakeling are wrong about section 12. In a follow up post, I shall write in some detail about Justice Wakeling’s opinion, which is startling, and startlingly wrong, in its method and tone, and deserves special attention and criticism.


In R v Smith, [1987] 1 SCR 1045 and, more recently, R v Nur, 2015 SCC 15, [2015] 1 SCR 773, the Supreme Court held that a mandatory minimum sentence that is “grossly disproportionate” to the gravity and blameworthiness of an offence is “cruel and unusual” within the meaning of section 12. Gross disproportionality can be shown either in the particular case or, alternatively ― and controversially ―, in a reasonable hypothetical, a set of circumstances that can be expected to occur and that would be captured by the impugned provision. This is the approach that the accused in Hills took.

Mr. Hills pleaded guilty to having repeatedly fired a rifle “suitable for big game hunting” [4] into the walls and windows of a family residence ― among with less frightening misdeeds, all part of a rampage undertaken in a state that a former Toronto mayor would have described as drunken stupor. The sentencing judge considered that the mandatory minimum would not be grossly disproportionate to his offence, but it could be in a reasonable hypothetical, mainly because the applicable definition of “firearm” captures weapons shown by an expert to be incapable of penetrating a typical building wall. One could therefore reasonably imagine the four-year sentence being imposed on a person who fired a weapon “at a place” whose occupants were not thereby endangered. The judge sentenced Mr. Hills to three and a half years’ imprisonment.

Justice Antonio (with whose reasons Justice O’Ferrall agrees, so far as they go) considers this to be an error. This is because the shots fired even from low-power weapons might “penetrate a door or window”. [80] Moreover, the weapons or the shots might alarm bystanders or the people inside the place at which they are fired, and generally undermine “the feeling the safety in communities”. [82] Justice Antonio also refers to Nur, where

 a 40-month sentence was imposed on a 19-year-old first offender who merely possessed a loaded firearm in a public place for a short period of time and did not discharge it or use it in a threatening manner. If 40 months was an appropriate sentence in the Nur case, then an additional eight months as a mandatory minimum penalty where a firearm was actually used does not amount to a grossly disproportionate sentence.

Justice Antonio concludes that a fit sentence for Mr. Hills would be four and a half years’ imprisonment.


As mentioned above, Justices O’Ferrall and Wakeling both call for the Supreme Court’s decisions in Smith and Nur to be revisited insofar as they require the courts to undertake gross disproportionality analysis based on reasonable hypotheticals, and not only the facts before the sentencing court. Some of the arguments they make are similar. I address them here. Justice Wakeling’s opinion also makes additional points not raised by Justice O’Ferrall. I turn to them below.

The main argument on which Justices O’Ferrall and Wakeling rely is that the use of reasonable hypotheticals to test the constitutionality of mandatory minimum sentences is inconsistent with the import of section 12. Justice O’Ferrall argues that

[a]n interpretation [of the Charter] which relies on the presumed detriment to a non-existent offender if a certain term of imprisonment is imposed is not an interpretation which a citizen would contemplate. It is an interpretation which might legitimately surprise the citizen. It does not flow logically from the text of s.12 of the Charter. [108; see aslo Justice Wakeling’s comment at [126]]

For Justices O’Ferrall and Wakeling, since section 12 protects an individual “right not to be subjected to any cruel and unusual treatment or punishment”, only the situation of the offender before the court can be taken into consideration, and the courts should avoid invalidating provisions that might only hypothetically result in unconstitutional applications. Just as laws are not invalidated because they might be invoked to effect unconstitutional arrests, they should not be disturbed because they might, in some cases, lead to unconstitutional sentences. As Justice O’Ferrall puts it, “[b]ut for the approved reasonable hypothetical analysis, the accused could [sic] care less about the constitutionality of the law. His complaint is with respect to his treatment or punishment”. [109]

Indeed, Justices O’Ferrall and Wakeling reject the test of “gross disproportionality” itself, which the Supreme Court has long used as a proxy for deciding whether a punishment is cruel and unusual. Justice O’Ferrall argues that

A sentence may be disproportionate from the perspective of both the offender and the offence and yet … prescribed to achieve the fundamental purpose of sentencing, namely protecting society. Even a grossly disproportionate sentence may not be found to constitute cruel and unusual punishment if, for example, in order to stem the tide of a deadly pandemic, Parliament found it necessary to prescribe extremely harsh punishments for what otherwise might be regarded as minor misdemeanors. [117; see also Justice Wakeling’s comment at [132]]

I do not think that any of this is right.

Start with the meaning of section 12. The concurring opinions go wrong because they fail to distinguish between the interpretation and the construction of constitutional provisions. Interpretation is the activity of ascertaining the communicative content of the text. Construction is the elaboration of doctrines that allow the text to be given legal effect. Some cases can be resolved at the interpretation stage. As I have argued here, the interpretation of section 12, and specifically of the word “cruel”, can tell us that this provision does not protect corporations. But in other cases courts need to engage in (good faith) construction to apply vague language ― and that of section 12 is vague, if not quite as vague as some commentators would have believe.

The word “cruel” is not infinitely malleable, but it is not self-explanatory either. Unless they are going to rely on seat-of-the-pants impressionistic decision-making in every case, courts need to work out a consistent way to determine whether a given sentence is cruel and unusual. This is an exercise in construction, which is a form of legal reasoning. Unlike in the realm of interpretation, the presumed (actually, purely conjectured) reactions of reactions of citizens are not a useful guide to what the courts should do here. The courts’ task is not to avoid surprises ― the framers of the constitution make a certain degree of judicial creativity unavoidable when they use vague language ― but rather, as Randy Barnett and Evan Bernick have argued, to give effect to the purpose of the provision.

Is the test of gross disproportionality a misguided construction of section 12? In my previous post on that provision’s meaning (linked to above) I have suggested that it is not, so far as the punishment of natural persons is concerned. I wrote that “disproportionality can be a useful indication of cruelty”, provided that “also causes or reflects indifference to suffering”, which may “always be the case with grossly disproportional punishment is inflicted on human beings”. Justice O’Ferrall’s example is ambiguous and does not persuade me. It may be taken to suggest that in the circumstances of “a deadly pandemic” “what otherwise might be regarded as minor misdemeanors” become extremely blameworthy crimes. If so, there is no gross disproportionality in punishing them harshly, so long as the relevant circumstances exist. But if Justice O’Ferrall suggests that a public emergency justifies harsh punishment of unrelated offences, I don’t see how that follows.

If not the gross disproportionality test, is the reasonable hypothetical approach an impermissible construction of section 12? Actually, I think there are very good reasons for the courts to adopt it. Contrary to what Justices O’Ferrall and Wakeling say, a mandatory minimum sentence impacts an offender as to whom it would not be cruel and unusual, albeit indirectly. As Justice Arbour explained in her concurrence in R v Morrisey, [2000] 2 SCR 90,

mandatory minimum sentences … must act as an inflationary floor, setting a new minimum punishment applicable to the so-called ‘best’ offender whose conduct is caught by these provisions.  The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has  committed the offence in the very worst circumstances.  The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [75] 

Justice Wakeling’s own reasons illustrate this dynamic. He breaks down the range of sentences permitted by Parliament into bands for the least and most serious cases, and those in the middle. On this approach, if Parliament enacts or raises the mandatory minimum, the sentences of most offenders, except perhaps the very worst ones, go up. Of course, Parliament is entitled to intervene in sentencing. But the fact that its intervention impacts all offenders means that it is appropriate to consider its constitutionality even in cases where the minimum sentence would not have been cruel and unusual. At the risk of mixing metaphors, I think it’s not an implausible construction of section 12 to say that it does not permit the inflationary floor to be sullied by the cruelty of sentences required to be imposed even on some, albeit not all, offenders.

The other reason for the courts to continue to police reasonable hypotheticals might sound more in policy, but it too is relevant to section 12. It is plea bargaining. A prosecutor can threaten an accused person with a high mandatory minimum sentence so as to secure a guilty plea to some other, less serious offence. By the very nature of such situations, there is no scope for the mandatory minimum to be challenged; indeed the offence to which it is attached never even features before a court. But to the extent that the mandatory minimum has served to secure a guilty plea from a person who might be innocent (or at least might be able to raise a reasonable doubt about his or her guilt), its deployment by the prosecutor is, arguably, a form of cruel and unusual treatment that offends the Charter.


It has been set that the judicial response to the last Conservative government’s “tough on crime” agenda has been nothing less than a rebellion. Justice Wakeling professes himself “extremely troubled by the fact that Canadian courts have been busy striking down Criminal Code provisions that impose mandatory-minimum sentences”. [123] The concurring opinions in Hills are a counter-rebellion of sorts, directed not against Parliament but against the Supreme Court.

But the rebels are wrong. Their approach to constitutional text, which collapses interpretation and construction and oversimplifies constitutional meaning is not compelling. They fail to see the repercussions of mandatory minimum laws that deserve the suspicion with which the courts have treated them. The Supreme Court has often read constitutional provisions ― both power-conferring and rights-protecting ones ― more expansively than it should have. But I am not convinced that this is the case with section 12 of the Charter.


PS: I have neglected blogging on judicial decisions in the last couple of months, and will try to make up at least some of this backlog. If you have a case I should get onto in mind, please do get in touch.

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

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

L’Assemblée nationale peut-elle procéder seule?

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

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

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

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

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

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

Existe-t-il des alternatives?

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

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

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

Telling People Whom to Vote for

An illiberal community seeks to dictate its members’ votes. How can, and should, the law respond ― and quite how different are liberal democracies anyway?

When it comes to election campaigns, where does permissible ― and perhaps even laudable ― persuasion end, and deplorable ― perhaps even illegal ― manipulation or indeed coercion begin? This is a fraught question, as a recent story by Sally Murphy for Radio New Zealand illustrates.

The story concerns what seems to be an totalitarian and abusive fundamentalist religious community, whose leaders seek to dictate not only how members will live, but also how they will vote:

Former members of Gloriavale Christian Community say people still there do not have the freedom to vote for who they want in the general election. … [T]hose inside don’t have free access to the internet or news sources and are told as a collective who to vote for. … One former member … told RNZ Gloriavale leaders would choose which politicians would come and talk to the community before an election. 

“They would talk about their policies and what they would do for us then when they left there would be a discussion, but it was usually only a couple of the leaders who would talk,” she said. “They would say we like this party because of this policy and that we should all vote for them because it’s best if we vote as a collective.” 

It seems fair to infer that current members are likely not to feel free to cast a vote at odds with the preferences of their leaders. But does that mean that something untoward or illegal is going on, and further, that something can, or should, be done?


Consider, first, existing election law. (I am leaving out the charities law aspect of this issue, mostly because it’s not my area of expertise. For a discussion of the restrictions on charties’ ability to engage in politics in the Canadian context, see this guest post by Benjamin Oliphant; and for a broader discussion of the tensions at work in the regulation of charities, this guest post by Kathryn Chan.) Section 218 of the Electoral Act 1993 makes it an offence and a “corrupt practice” to

make[] use of or threaten[] to make use of any force, violence, or restraint, or inflict[] or threaten[] to inflict … any temporal or spiritual injury, damage, harm, or loss upon or against any person, in order to induce or compel that person to vote for or against a particular candidate or party … or on account of that person having voted for or against a particular candidate

But ― going by the statements quoted in Ms. Murphy’s story ― no threats are being made in relation to voting specifically. Gloriavale members are told to vote a certain way, but not actually threatened with reprisals if they do not. Besides, as the Electoral Commission points out, the secrecy of the ballot ought to mean that all voters, including Gloriavale members, can “express their preferences free of outside influence or coercion”.

Beyond threats, the regulation of the persuasion of voters focuses (in various ways) mainly on spending and to some extent on the use of mass media, especially broadcast media. Private, face-to-face exhortation is not targeted, and it would be absurd if it were. Would we want political conversations within families or among friends and co-workers to be subject to regulation? I should think not, even though some of these conversations may be emotionally charged, and people may be uncomfortable, or even distressed, at the idea of going against the wishes or preferences of those close to them. Again, the primary remedy for such situations is ballot secrecy, with section 218 outlawing outright threats.

If the Gloriavale leadership is not breaking election law, is it nevertheless acting immorally in seeking to influencing the members’ votes, and should the law be changed? Again, in relation to voting specifically, it’s not obvious to me that a wrong is being done. All sorts of people and entities tell us to vote one way or another. I don’t think that they necessarily wrong us just by doing so ― even if these people are close to us and may be reluctant to offend or contradict them. Just as it would be absurd to have legal rules regulating political discussions among friends, family members, or other close associates, I think a moral rule to this effect would be contrary to widely held views of both of a good life and of good democratic citizenship. The latter, in particular, surely permits people to urge others to vote in ways they consider to be better for the community.

What makes the Gloriavale situation disturbing is the broader atmosphere ― the habit of obedience and the limitation of alternative sources of information and opinion imposed on its members. People who tell us, even quite forcefully, that we should vote one way or another do not wrong us if the choice is ultimately ours. People who keep us from making an informed choice wrong us even if they do not impose their own preferences. Imagine, hypothetically, that the Gloriavale leadership did not tell the members how to vote. To the extent that they are simply denied information from the outside world, the members would have no idea, and would not be in a position to make a more meaningful choice than they are now, and those responsible for putting them in this position are to blame.

However, election law is not the remedy for such cases. The challenge of illiberal and authoritarian communities within their midst is not an easy one for liberal societies, but to the extent it can be solved at all, the solution has to be at a rather more fundamental level. Perhaps ironically, though, extreme examples like Gloriavale can help us reflect on the fact that liberal societies themselves are not entirely innocent of trying to restrict the information and choices available to their members.

Hard restrictions are, admittedly, rare. Yet not non-existent. In New Zealand, the Classification Office, headed by a Chief Censor, is empowered to ban publications in various media. While that outfit’s website’s proclaims that its enabling legislation “does not regulate political speech, the expression of opinions, or ‘hate speech'”, it has notoriously banned the Christchurch shooter’s “manifesto”, which is obviously an example of ― horrible ― political speech. As Ilya Somin has shown, reading it, in all its gruesomeness, is actually instructive. But New Zealanders are not permitted to do it, because the Chief Censor, on his own motion, decided that he knew better. In some other democratic countries, especially in Europe, political choices can be restricted by the authorities banning political parties deemed opposed to democracy or the existing constitutional order.

Of course, these are extreme examples. There is no equivalence between excluding some outlier political options while preserving a wide range of choice and excluding all options but one. Arguably that the most important thing about democracy is not the ability to vote for one’s preferred agenda ― which constitutional constraints or the vagaries of the electoral system, not to mention a shortage of people who agree with it and are willing to run for office ― might make impossible, but simply the ability to make some kind of choice, and so to throw the bums out from time to time. Still, the censorship impulse has a common foundation in both cases ― the distrust of people’s ability to make acceptable choices, and a confidence in one’s ability to choose on others’ behalf.

And softer, more insidious ways of shaping the range of choices available to voters are common. How do teachers are university professors speak about political views outside the mainstream ― or outside what they perceive as the mainstream? How, if at all, do the media cover unorthodox politicians, at least those who do not also happen to be celebrities? Are the above-mentioned regulations of spending on election campaigns structured so as to favour established parties ― as they are in New Zealand, for example, with the allowed spending on broadcast advertising dependent, in part, on a party’s share of the vote in the previous election? To ask these questions is not, by itself, to advocate for root-and-branch reform of the education system, the demise of the legacy media, and complete deregulation of electoral campaigns. But here again the effects of seemingly disparate and often well-intentioned policies and practices commonly followed in liberal democracies are a little less different from those of the practices of demonstrably illiberal communities than we might be quite comfortable with.


The difficulty of ensuring that all voters, including those who happen to belong to heterodox and illiberal communities, are able to take a meaningful part in an election if they wish to should not stop us from trying. Features of the electoral process that help facilitate meaningful participation and might strike us as obvious today, such as the secret ballot, did not always exist: they had to be invented, and the law had to be changed to implement them. One should of course be wary of unintended consequences, including those of well-meaning but excessive regulation. But perhaps there are ways to make things easier for members of Gloriavale and others caught in similar situations, without introducing unnecessarily intrusive laws. But as we look for such solutions, we should remember that existing laws and practices constrain the range of political choices available to all citizens, and that some of them have effects that differ in degree, but perhaps not in kind, from those of the impositions at Gloriavale and elsewhere. Not all authoritarians in our midst are content to run cults.

Unholy Trinity

Introducing a new article that makes the case against judicial deference to administrative applications of constitutional law

Readers may recall my unhappiness when the Supreme Court decided the companion cases in which the Trinity Western University challenged the denials of accreditation to its proposed law school by the law societies in British Columbia and Ontario, Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 SCR 453. I argued that “[t]he Supreme Court’s decision and reasoning subvert the Rule of Law and nullify the constitutional protection for religious freedom“.

One salient feature of these cases was the Supreme Court’s (re-)embrace of its earlier decisions in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613, which urged judicial deference to administrative decision-makers who applied (or indeed simply ought to have borne in mind) the Canadian Charter of Rights and Freedoms. The Trinity Western cases emphasize this deference, as well as various other aspects of the Canadian judiciary’s surrender of its interpretive authority over the law, which has now been partially walked back in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

At the kind invitation of Matthew Harrington in his capacity as editor of the Journal of Commonwealth Law, I have put my thoughts on this aspect of the Trinity Western cases and generally on the misbegotten idea of judicial deference to administrative applications of constitutional law into article form. The piece, “Unholy Trinity: The Failure of Administrative Constitutionalism in Canada”, is now available from the Journal’s website and my SSRN. Here is the abstract:

The jurisprudence of the Supreme Court of Canada that follows Doré v Barreau du Québec involves administrative decision-makers as key actors in the implementation of the Canadian Charter of Rights and Freedoms. The Supreme Court emphasizes their expertise in implementing constitutional rights and “Charter values” in the context of the regulatory regimes they are charged with enforcing, and holds that this expertise entitles administrative tribunals to deference when they make decisions that affect the rights the Charter protects or the values that underpin these rights. This article argues that the Supreme Court is wrong to endorse this deferential approach, sometimes described as “administrative constitutionalism”.

It does so by examining the Supreme Court’s decisions in the companion cases that upheld the denial of accreditation by the law societies of British Columbia and Ontario to a proposed fundamentalist Christian law school (the Trinity Western Cases). After reviewing both academic defences of “administrative constitutionalism” and Supreme Court’s previous engagement with it, the article shows that the Trinity Western Cases illustrate the failure of “administrative constitutionalism” to live up to the main arguments made by its supporters. This failure is not accidental, but consistent with significant trends in Canadian administrative law. The article then goes on to consider the implications of the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov for the future of “administrative constitutionalism” in Canada, arguing that Vavilov undermines the theoretical foundations of “administrative constitutionalism” or, at a minimum, will change the way it is implemented. The article concludes with an argument that, in addition to not delivering on the promises made on its behalf, “administrative constitutionalism” is also contrary to the Rule of Law. “Administrative constitutionalism” is second-rate constitutionalism in practice, and wrong in principle. The sooner it is recognized for the misguided idea that it is and abandoned, the stronger our actual constitution and the rights it protects will be.

The issue of whether, or at least to what extent and on what conditions, courts should continue to defer to administrative applications of the Charter is very much a live one in the aftermath of Vavilov. Lower courts have ask themselves how to apply Doré in light of Vavilov’s guidance on reasonableness review, and my article makes some suggestions which might be useful in this regard. And the Supreme Court itself, having punted on deference in Charter cases for now, will have to revisit the issue, presumably once Doré‘s author and staunch defender, Justice Abella, retires next year. I would like to think that my paper ― and the somewhat less uncompromising one by co-blogger Mark Mancini, which is set to appear in the Dalhousie Law Journal ― can contribute to the arguments that those challenging Doré will make on that occasion. I’ll be happy to speak to anyone making such arguments. Doré must go, and the delusion of “administrative constitutionalism” and the injustice of the Trinity Western cases must go with it.