Can We Be Friends?: A Conservative Reply to Leonid Sirota’s “Refusionism”

This post is written by Thomas Falcone

I was surprised, if a little taken aback, by Leonid Sirota’s recent declaration on Double Aspect that he is opposed to co-operation with conservatives whom he deems insufficiently committed to a rigid Hayekian philosophy. The reason for my surprise lay not in Sirota’s ideology laid bare – he is commendably transparent about his public philosophy – but more to the creeping suspicion I had that I may have played a small part in inspiring his writing.

Sirota mentions “conversations” he engaged in at the recent Runnymede Society Law and Freedom Conference in Toronto as prompting his exposition of the reason why collaboration with conservatives is indefensible. Now, Sirota is a bit of a rock star at any Runnymede Society event – and rightfully so. His contributions to Canadian jurisprudential thought surely vault him into that vogue category of “thought leader.” I myself have plastered Double Aspect articles penned by him onto slides I’ve used in graduate seminars. Sirota’s leading ideas on originalism in a Canada are extremely impressive, and (as I have told him myself!) I am mostly in firm agreement with his opinions on the administrative state.

But I am compelled to respond to his call for libertarians to reject “refusionism”, which is to say his belief that we cannot be friends, let alone political allies. Perhaps he is right.


It is unfortunate that in Sirota’s attempt to describe what he calls “right-wing collectivism” he doesn’t bother to engage with any of the thinkers he finds so frightening. To be fair, however, the very nature of conservatism makes it difficult to attribute unifying policies or ideas that form a singular coherence. Oakeshott’s old adage that conservatism “is to prefer the familiar to the unknown, to prefer the tried to the untried” is helpful only insofar as it helps to explain that what a conservatism will stand for, or against, or agree to over time and after collective consideration, will vary in different places and amongst different peoples. Roger Scuton’s refrain that the task of a conservative is to assure people that their prejudices (properly understood as a person’s gut feeling) are justified is thus perhaps more helpful than Oakeshott’s old formulation.

In a Canadian context, Ben Woodfinden’s recent long essay in C2C Journal on Red Toryism is surely the closest thing we have to a contemporary “manifesto” of the sort of reform conservatism loosely associated with the broader movement Sirota wants to pre-emptively divorce himself from. But Sirota is right that conservatives ought properly to understand the goal of politics as being attached to the promotion of the highest good. This isn’t nearly as scary as he makes it out to be.

Take the institution of private property, for instance. Conservatives rightly commit themselves to the steadfast protection of this institution. But why is private property so important? Surely it cannot be a sacrosanct institution in-and-of-itself, despite idolatrous libertarian suggestions that the primacy of private property will result in an almost supernatural “spontaneous” right ordering of society. We can find a hint of why conservatism is associated with this institution in Scruton’s invaluable The Meaning of Conservatism:

“Home is the place where private property accumulates, and so overreaches itself, becoming transformed into something shared. There is no contract of distribution: sharing is simply the essence of family life. Here everything important is ‘ours’. Private property is added to, and reinforces, the primary social relation. It is for some such reason that conservatives have seen the family and private property as institutions which stand or fall together.”

Sirota’s biblical pronouncements of Hayekian “warnings” to the contrary, I would submit rather confidently that the vast majority of Canadians – and surely universally conservatives! – would agree on a general scale that the family is an immutable social good, and ought to be defended as the primary organizing unit of our society. The rather modest suggestion that I would posit to conservatives is that when we evaluate public policy proposals we adjudicate their desirability against whether or not they help or harm our shared social goods, like the family. Devin Drover has proposed publicly-funded therapy for families to combat the mental health crisis plaguing our society. US Senator Josh Hawley has proposed cash subsidies to families as emergency relief in response to the Chinese coronavirus pandemic.

Surely another commonly held value amongst Canadians is that it is better to work than to be idle. Having a job ties us to our community, provides us with income, and fills us with a sense of purpose. The notion that the state ought to be “neutral” as to whether people choose have jobs or sit around smoking cannabis would be nonsensical to the average person on the street. But that is precisely the Hayekian proposition Sirota suggests is “the philosophically and morally right position”, whereby individuals are the sole arbiters of their own ends. It is also a position completely alien to a conservative to whom work is fundamental good.

Recognition of the importance of work – and, indeed, the primacy of production over consumption (another value Sirota rallies against in his piece) – is central to Oren Cass’ The Once and Future Worker. And yet Cass’ proposed policy response to our society’s moral devaluation of work is, characteristic for a conservative, quite modest. He proposes a direct wage subsidy to not only make work more monetarily valuable but also signal the state’s – and thus our society’s – value of work. From an excerpt of Cass’ book in The American Interest:

“The subsidy would be calculated relative to a target wage of, say, $15 per hour and make up half the difference—so someone earning a market wage of $9 per hour would receive an additional $3 per hour. Such a subsidy would have two major effects: first, a substantial raise for low-wage workers, making each hour worked more valuable and yielding more take-home pay; second, encouragement for less-skilled workers to take that initial step into the workforce and for employers to offer such jobs.”

My point here is not to provide a laundry list of bold policy ideas that combat the scourges of family decline, widespread opioid misuse, loneliness and social isolation, and widespread disengagement of young men from the workforce. My point, rather, is to suggest that these are good and fundamentally conservative ideas. They are also not the stuff of totalitarian nightmares as Sirota will have us believe.


Finally, I feel compelled to address Sirota’s concluding appeal to the Book of Hayek. Here he suggests that power itself is an evil and thus there should be no power. This is untenable and flies in the face of our contemporary political reality. Harvard law professor Adrian Vermuele has best expounded on the internal contradictions at the core of Sirota’s philosophy by coining the phrase “the liturgy of liberalism.” How is it that liberalism, supposedly so profoundly committed to principles of freedom and liberty, can so quickly turn to repress any intellectual heterodoxy? Vermuele’s work is profound and complex, but the basic problem is that a political philosophy underpinned by nothing more than the idea of “freedom” will forever look for new oppressions to dismantle.

And herein lies the crux of my departure with Sirota: while he suggests conservatism is the flip-side to the woke-ism phenomenon, it is in fact libertarianism that is a not-so-distant cousin of SJWism. Both are committed to a religious devotion of individual preference maximization and will ruthlessly supress any suggestion that time, tradition, community, or common sense may occasionally contain more wisdom than the proclivities of any one person. Power is real and always will be – and as US Attorney General Bill Barr has noted, it is currently being deployed by left-leaning liberals against conservatives. I doubt libertarians will be spared.

This all bodes poorly, perhaps, for the future of a long-term political partnership with Sirota. But it need not foreshadow the demise of any would-be friendship. To the contrary, I am confident that right-leaning politics would benefit mightily from a continued dialogue around these difficult issues – especially in these difficult times. He is also, as I mentioned, a brilliant legal thinker. The reality is also that I know libertarians in 2020 are unlikely to try to “cancel” or “deplatform” me and I would never utilize such tactics against a libertarian. The same cannot be said for progressives. This may be a thin basis for continued political co-operation but the stakes are too high to let our disagreements overwhelm us.

 

Thomas Falcone is an LLM candidate at the University of British Columbia Peter A. Allard School of Law. He holds a BA in philosophy and political science, an MA in political science, and an LLB from the University of London. He is co-president of the UBC Runnymede Society chapter. You can follow him on Twitter @thomas_falcone.

The Limits of Self-Government

Indigenous self-government cannot dispense with the Rule of Law and with democracy

In his post “On the Rule of Law, Blockades, and Indigenous Self-Government“, co-blogger Mark Mancini pondered the relationship between Indigenous legal orders and self-government on the one hand, and the Canadian constitution, including the Rule of Law principle that (along with certain others) underpins it, on the other. Mark wrote that

it may be the case that the Rule of Law as currently understood in Canada is not applicable to Indigenous peoples and their systems of government. In other words, we may require an approach which recognizes distinctive Indigenous self-government, as a constitutional matter. 

These comments are, as always, thought-provoking but, in my view, one should be wary of claiming that the Rule of Law is not relevant to Indigenous peoples. One should also be realistic about the difficulties involved in translating the ideal of Indigenous self-government into law, and about the limits of this enterprise.

I hasten to make clear that, as Asher Honickman and I have said in a National Post op-ed also dealing with the Rule of Law and its relationship to the ongoing protests, I regard the aspiration to Indigenous self-government as fully justified. It is, we wrote, “possible and highly desirable … for the perfectly legitimate aspirations of Indigenous Canadians to self-government to be recognized and given effect within the Canadian legal system”. On this, I agree with Mark. Indeed, our disagreement may be more a matter of emphasis and wording than of substance, but I thought it important to make it clear where I stand.


I am, of course, not Indigenous myself, and claim no expertise at all in any particular Indigenous legal system. However, I do endeavour to engage with Indigenous legal systems when I teach legal philosophy. More specifically, my legal philosophy course is entirely devoted to idea of the Rule of Law (sorry, Hart and Dworkin aficionados!), and one of the classes deals with indigenous customary systems ― notably tikanga Māori, but also the legal systems of Indigenous peoples in Canada, as presented in Jeremy Webber’s very interesting article on “The Grammar of Customary Law“. To repeat, this doesn’t make me an expert ― sadly, one cannot be an expert on everything one teaches ― but I do have some thoughts on the relevance of the Rule of Law to indigenous legal systems.

In a nutshell, it seems to me that, for all the very important differences between these systems and those based on the common law or the civil law, many concerns with which we engage under the heading of the Rule of Law are relevant to indigenous legal orders. Notably, through public re-enactment and stroy-telling at meetings involving entire communities, Indigenous legal systems ensured that their laws would be publicly known and understood, and that they would be relatively certain and predictable, to guide community members. Moreover, these laws, no less than those enacted in Western legal systems, tend to be more or less coherent, and to impose obligations that are possible to perform; if anything, one suspects that customary law refined over the generations does better at meetings these Rule of Law requirements than deliberately, and often stupidly, enacted law. And, in their own ways, Indigenous legal systems provided opportunities for those subject to them to be heard and to make their views on the law known to the rest of the community. (Indeed, Professor Webber writes that “[a]mong many North American indigenous peoples … [t]here is great reluctance to impose a particular interpretation of the law either on any member … or on someone of high rank”. (607))

I do not mean to take this too far. Of course, the way the Rule of Law ideals are implemented in communities that number a few hundred people engaged in hunting, gathering, and perhaps subsistence agriculture cannot be the same as in larger populations made wealthier by division of labour. Writing and the existence of people who specialize in knowing and applying laws make a huge difference ― not least by requiring a more explicit articulation and conscious implementation of Rule of Law requirements that can remain implicit in Indigenous societies. Some standard Rule of Law concerns, such as the one with retroactivity, crucial in a system where law is believed to be deliberately made, is meaningless in one where law is transmitted ― not unchanging to be sure, but endlessly adapted ― from time immemorial.) On the procedural side, they methods Indigenous legal orders employ for the resolution of disputes and the determination of individual or group rights and obligations do not necessarily look like the formalized proceedings of common law or civilian courts (any more than substantive rights and obligations they concern offer exact parallels with those recognized by the common or civil law).

But the points of commonality are real too. Needless to say, that’s not because Indigenous Canadians or Māori read Lon Fuller’s The Morality of Law or Jeremy Waldron’s “The Rule of Law and the Importance of Procedure”. The people who, over the centuries, developed European legal systems hadn’t read them either. But the human values that have long helped shape legal systems and partly mold them in accordance with what, in 19th century Britain, came to be called the Rule of Law, are relevant on Turtle Island and in Aotearoa as much as at Westminster and in Paris. When Albert Camus wrote, in The Fall, that “there is no worse torment for a human being than to be judged without law”, he was speaking a universal truth, or something close to it ― not just stating a culturally contingent fact about mid-20th-century Parisians hanging out in Amsterdam bars.

All that to say, so far as I can tell, the Rule of Law is not at all a principle alien to Indigenous legal traditions. While they probably did not reflect on it as explicitly as the Western legal tradition eventually did, they implemented it ― in ways that were appropriate to their own circumstances. But the circumstances in which Indigenous law would operate in the 21st century, even under self-government, would not be the same as they were before contact with Europeans; in some ways, things have changed irrevocably. More deliberate attention to the requirements of the Rule of Law will probably be in order ― not only, or perhaps even primarily, in order to satisfy some externally imposed requirement, but to give effect to the values implicit in the Indigenous legal traditions themselves.


This brings me, however, to another point that is missing from too many discussions of Indigenous self-government at the moment, including Mark’s. Indigenous self-government (which, to repeat, I would support) ought to respect some fundamental constitutional principles, whether they can be traced to Indigenous legal traditions ― as the Rule of Law can, I think, at least to some extent ― or not. I am thinking, in particular, of the principle of democracy, but also of the protection of minority rights.

In the conflict that arose out of the court injunctions in favour of the Coastal GasLink pipeline, some hereditary Chiefs of the Wet’suwet’en have claimed special authority. To my mind, for any such authority to be enshrined in or authorized by the arrangements of Indigenous self-government, whatever their exact legal status, would be simply inconsistent with the Canadian constitutional order. Of course, Canada is a monarchy. But it is a constitutional monarchy in which, as the old catchphrase has it, the Queen reigns but does not rule. Almost all of the Crown’s powers are effectively held by the Houses of Parliament (primarily the elected House of Commons) or provincial legislative assemblies, or by ministers responsible to the House of Commons or legislative assemblies. The exercise of the Crown’s remaining “reserve” powers is constrained by constitutional conventions.

Any other arrangement would be intolerable. As the Supreme Court observed in Reference re Secession of Quebec, [1998] 2 SCR 217, “the democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated”, [62] and “a sovereign people exercises its right to self-government through the democratic process”. [64] The Court further explained that it “interpreted democracy to mean the process of representative and responsible government and the right of citizens to participate in the political process as voters”. [65]  This is, of course, consistent with Canada’s commitments under international law, for example under Article 21(3) of the Universal Declaration of Human Rights, which provides that

The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

I fail to see how Indigenous self-government can be constituted on any other basis. Perhaps this conception of democracy is not part of the tradition of all, or indeed of any, Indigenous nations. After all, its history in anywhere in the world is very short indeed. This simply does not matter ― for any polity in the 21st century. One could call the application of this principle to Indigenous peoples colonialism if one liked, but one ought to acknowledge that, in doing so, one would be defending values that are contrary both to Canada’s constitution and to its international obligations.

It is worth noting that the provisions of the Charlottetown Accord on self-government made at least some oblique reference to the structure and limits of the governments they would have put in place. What would have become section 35.1(3) of the Constitution Act, 1982 would have provided

The exercise of the right [of self-government] includes the authority of duly constituted legislative bodies of the Aboriginal peoples, each within its own jurisdiction,

(a) to safeguard and develop their languages, cultures,
economies, identities, institutions and traditions, and

(b) to develop, maintain and strenghten their relationship
with their lands, waters and environment,

so as to determine and control their development as peoples
according to their own values and priorities and to ensure the
integrity of their societies. (Emphasis mine)

This is, perhaps, not as clear as one might wish, but the reference to “the authority of duly constituted legislative bodies” in section 35.1(3) suggests that Indigenous self-government was to be democratic self-government. Giving effect to indigenous “values” and “ensur[ing] the integrity of their societies” must be done within that institutional framework.


To repeat once more, I hope that Indigenous self-government in Canada becomes a reality. But it would be naïve and dangerous to assume that it can do so on the basis of Indigenous legal traditions alone, without the infusion of principles modified or even imposed by the non-Indigenous world. Indigenous communities are part of a wider world ― not only of the Canadian legal system, but of the world beyond its borders too ― which means that both the form and the substance of their law will have to adjust to the way this world operates and to its requirements.

The good news in this regard is that, in some ways, the adjustment should be less difficult that is sometimes supposed. When it comes to the requirements of the Rule of Law, Indigenous legal traditions may recognize many of them implicitly, and adapting to other such requirements may be a relatively seamless development for traditions that never were static or fixed. Other changes, however, in particular the recognition of democracy as the fundamental mode of governance, may be less straightforward. But such changes are no less imperative. The label of self-government should not be allowed, let alone used, to obscure this reality.

On the Rule of Law, Blockades, and Indigenous Self-Government

Recently, Canadians have been captivated by a set of protests occurring both in British Columbia and Ontario in relation to the Coastal GasLink pipeline. The pipeline is a $6B dollar, 670 km project which runs across Northern British Columbia. In British Columbia, the hereditary chiefs of the Wet’suwet’en lead blockades across the pipeline path, even in the face of injunctions issued against the blockades. On the other side of the country, in Ontario, a blockade led by members of the Mohawk First Nation has brought trains and other travel to a standstill, causing supply shortages in some areas. New protests and blockades pop up almost daily across the country. An injunction was also issued in respect of a blockade in the Toronto/Vaughn area, which was immediately burned by protestors in the area.

In all of this, many have called on police to enforce the various injunctions, because of the principle of the Rule of Law. The Rule of Law, so goes this argument, requires an injunction duly issued to be enforced. Still others rebuke the reliance on the Rule of Law, positing that (1) the Canadian Rule of Law, as presently understood, encompasses claims of Indigenous rights and title and (2) the Canadian Rule of Law does not speak to Indigenous systems of law, separate and apart from colonial law. As a result, in the debates, it is sometimes unclear whose Rule of Law we are talking about, and whether one particular application of a particular rule of law would lead to different results.

While it does matter in what sense we are using the term “the Rule of Law,” I write today to draw attention to two aspects of this dispute that I believe can exist in a complementary way. First, it is clear that on any understanding of the Rule of Law, a system of laws requires courts whose orders are respected. This is true even if one does not view the Rule of Law as the rule of courts. But additionally, what is required, as Dicey said, is a “spirit of legality” which should characterize the relationship between individuals and courts. On this account, the blockades in both Ontario and BC should be shut down, because they fail to respect valid court orders that are contributing to a public order. Canada’s Rule of Law as it is can support no other result.

But second, that cannot, and should not, be the end of the matter. Indeed, the blockades are showing why the current framework of Aboriginal rights vis-à-vis the Canadian state is so lacking. The Rule of Law is not only a fundamental postulate of our law, but it is also an aspirational ideal. There may be ways in which our constitutional order can move towards the ideal of the Rule of Law. On this front, it may be the case that the Rule of Law as currently understood in Canada is not applicable to Indigenous peoples and their systems of government. In other words, we may require an approach which recognizes distinctive Indigenous self-government, as a constitutional matter.  I have made this argument before, but wish to renew it here: Canada’s Constitution can and should recognize distinctive Indigenous self-government.

I write this with the full knowledge that I am not an Indigenous person. And also, I know nothing of the particular Indigenous law that applies in this situation. I am merely intervening in the debate to provide some clarity around what the “rule of law” might mean in this context.

***

There are different ways we can understand the Rule of Law. Each of these three understandings set out above are being used interchangeably in the debate over whether the blockades are proper, on one hand, or legal on another hand.

The first understanding of the Rule of Law, the “thin” understanding, largely associates the Rule of Law with the rule of courts. That is, on this account, a court injunction duly issued should be respected. And in this case, there have been injunctions. The British Columbia Supreme Court issued an injunction in late 2018, which was later expanded in 2019 to include emerging blockades.  Further, under this heading of the Rule of Law, a court in Ontario issued a valid injunction against blockades in Ontario on Saturday, February 15.

It goes without saying that the Rule of Law might not exhaustively mean the rule of courts, but that courts are still required in a system of the Rule of Law. This is because there must be some tribunal that can handle competing claims, especially in the context of property. Even if one accepts that Indigenous peoples have their own system of law operating within Canada, courts will be required to handle conflict of laws or jurisdictional contests. The ordinary courts, as Dicey called them, are central to an ordered society in which people can plan their affairs. If that is the case, the law should be respected, as interpreted by courts.

The Supreme Court of Canada has largely accepted this notion of order as central to a society governed by law. In the Quebec Secession Reference, the Supreme Court noted that the “rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs” (Quebec Secession Reference, at para 70). What is required is an “actual order of positive laws which preserves and embodies the more general principle of normative order” (Manitoba Language Reference, at 749). As an analogue to this general principle of normative order, there needs to be arbiters of the law in order to ensure that state action is not arbitrary in nature, itself an aspect of the Rule of Law (see Quebec Secession Reference, at para 70). Courts are the typical arbiters—the regulators, so to speak—of the relationship between individual and state. In order for the normative order to be upheld, then, a respect for courts are required.

This is true even if one takes a more substantive or “thick” conception of the Rule of Law. If one accepts, as some do, that the Rule of Law can encompass substantive policy aims like the promotion of human rights, one still requires the ordinary courts to recognize these rights as a matter of judicial interpretation.  As such, the thick conception of the Rule of Law is parasitic on the thin conception. And all require that the judiciary be respected, and that court orders be followed. This does not bode well for the propriety of the blockades.

But one might take the argument based on the Rule of Law further, by arguing that the Canadian Rule of Law includes Indigenous rights recognized under law. One might make the argument that the Wet’suwet’en have existing Indigenous title to the land on which the Coastal GasLink pipeline will be built. Indeed, in Delgamuukw, the Wet’suwet’en were at the centre of the controversy. There, the Supreme Court outlined its approach to handling claims based on Indigenous title. What it made clear was that Indigenous title was a sui generis sort of right, arising before the assertion of British sovereignty (Delgamuukw, at para 114). However, because of a technicality in the pleadings, the Wet’suwet’en were unable to receive a declaration that they held Indigenous title in the land (Delgamuukw, at para 76) . As such, while the Wet’suwet’en may have a valid claim, it has yet to be proven, and can only be accommodated within the context of the duty to consult, a sort of antecedent framework that preserves Indigenous claims that have yet to be proven (see Tsilqho’tin, at para 2).

While there are some questions in this case about who the proper “consultees” were, the bottom line is that Wet’suewet’en title has never been proven over the lands in question. And in the context of a Canadian Rule of Law argument based on Aboriginal title, proof is the centrepiece (see the test for demonstrating Indigenous title, in Delgamuukw at para 143). A blockade relying on these rights must respect their fundamentally judicial nature, in terms of Canadian law: they are recognized by courts, even if they predate the assertion of British sovereignty. One using an argument based on Aboriginal rights recognized under Canadian law, then, cannot justify the blockades on this ground.

***

Thus far, I have reviewed the Canadian-centric way of understanding the Rule of Law. Under these two conceptions, the blockades should come down. But to my mind, this point is insufficient and incomplete.  That is because the Canadian version of the Rule of Law may not be cognizable to Indigenous peoples. Indeed, the blockades reveal that there is a problem of much bigger proportions: the true compatibility of Indigenous systems of law in relation to Canadian constitutional law.  That is the real issue on which the blockades shed light.

I am not an expert on the Wet’suwet’en system of law, but Indigenous peoples may make the claim that Canadian court orders do not apply to them, because they are a sovereign nation. It is true that the Supreme Court of Canada has recognized, in the context of Canadian-Aboriginal law, that Indigenous peoples have pre-existing systems of law and governance that predated conquest. And it has been widely recognized, as Chief Justice McLachlin once said, that settlers committed “cultural genocide” against Indigenous peoples. All of this provides necessary context to the acts of the blockaders.

But, because of the failure of the Charlottetown Accord, Indigenous peoples do not have inherent jurisdiction recognized in the Canadian Constitution. That Accord would have recognized the inherent nature of Indigenous self-government, and made it so that the right to self-government is not contingent on negotiations. Indeed, the right to self-government would have included the right to “develop and maintain and strengthen their relationship with their lands, waters and environment.” This is a fundamental difference from the status quo. Currently, Indigenous rights  must be proven in court to be recognized. The judicial system is thus the locus of Indigenous rights, under s.35 of the Constitution Act, 1982. But inherent jurisdiction, recognized as a constitutional matter, would mean that Indigenous peoples have always had a constitutional basis or jurisdiction to act over matters within their remit. This turns the matter into one of jurisdiction. Inherent jurisdiction may mean that Canadian courts have jurisdiction to issue court orders, but the analysis would be different; instead of proving a “right”, Indigenous peoples would have a recognition of their jurisdiction, and the analysis would be akin to a federalism analysis. As a matter of constitutional amendment, this would put Indigenous systems of law on the same playing field as Canadian law, turning disputes over rights into disputes over jurisdiction. We should encourage our political actors to solve the disputes between the Canadian government and Indigenous groups through constitutional and political means, not only to provide clarity to these sorts of disputes, but to recognize the legal fact of existing Indigenous systems of government.

Questions regarding proof of Indigenous rights and title are currently difficult to resolve under the status quo of s.35 litigation. This is because courts are ill-suited to deal with the essentially political and jurisdictional task of recognizing distincitve orders of government and the lands on which they sit. Questions of proof are subject to years of litigation in court, putting dire pressures on Indigenous groups and government resources. One only need look at the Tsil’qhotin litigation for proof-positive of this point.

Additionally, this solution is not anathema to the Rule of Law. As the Court noted in the Quebec Secession Reference, constitutionalism and the Rule of Law are closely related principles. Once the Constitution recognizes distinctive Indigenous self-government, it becomes a matter of constitutional law, similar to the jurisdiction of the provinces represented in s.92 of the Constitution Act, 1867.

Some people may view this solution as a pipe dream. It is only so because our politicians lack moral courage. But in terms of the legal analysis, Canadian courts have the tools to manage conflicts of law and jurisdictional wrangling. Our federalism has been built on such wrangling for over 150 years, with provinces and federal government vying for power based on their constitutionally-delegated powers. Courts have developed the tools to manage jurisdictional disputes. Those same tools could be applied in this context as well. And of course, there are nuances to be worked out with this solution, as well. While Constitutions can set frameworks for government and provide rules for interjurisdictional disputes, land and resources will continue to be hot button issues subject to negotiations againt the backdrop of constitutional guarantees.

But, for the present moment, courts will need to exist and be respected. An existing system of Indigenous law, without more, cannot justify the disobeying of a court order simply by virtue of its existence. For now, so long as Indigenous peoples fall under the jurisdiction of Canadian courts, the blockades cannot stand as a matter of the Rule of Law. But this does not mean that Canadians, and Canadian leaders, should not bear the onus to complicate our idea of the Rule of Law. We should be looking to recognize inherent Indigenous jurisdiction over matters as an analogue of our own Rule of Law, just as we do in the context of federalism.

The bottom line: the blockades, under any conception of the Rule of Law, cannot stand in the face of a court order. But the blockades do illustrate a larger issue. As I have written before, Canadian understandings of the Rule of Law have to evolve to take account of Indigenous law. Surely, given our federal structure, this is a possibility.

Bill 21 and the Search for True Religious Neutrality

The saga of Quebec’s Bill 21, An Act respecting the laicity of the State, trudges on. In December, the Quebec Court of Appeal upheld a Superior Court decision declining to suspend certain parts of the law – which prohibits front-line public employees from displaying overt religious symbols while on duty – until a full application for judicial review pursuant to the Charter of Rights and Freedoms could be heard. The applicants who sought the suspension claim that Bill 21 violates (among other things) the guarantees of freedom of religion and the right to equality respectively protected by sections 2(a) and 15 of the Charter. An appeal to the Supreme Court of Canada is expected to be heard on the suspension issue. Meanwhile, the Superior Court has ordered that three other Charter challenges which have been launched in the interim be heard at the same time as the original application for judicial review.

The Quebec government insists that Bill 21 is grounded in the constitutional principle of the religious neutrality of the state. Such descriptions, however, fundamentally misstate what religious neutrality ought to require of state actors. At its core, Bill 21 is inconsistent with the trajectory of religious neutrality in Canadian public law. Granted, this principle has been subject to conflicting scholarly and judicial visions of what the state’s constitutional obligations are vis-à-vis religion. Yet as I argue in this post, religious neutrality, holistically and purposively understood, ensures that the state treats religious adherents fairly by preserving equal space for their participation in public life.

Canadian conceptions of religious neutrality tend to fall along a spectrum. At one end we have those who see religious neutrality as essentially privatizing all aspects of religious belief. We might describe this as closed religious neutrality, to borrow language used by Janet Epp Buckingham. In its most extreme form, this type of neutrality seeks to purge any and all expressions of religious conviction from the public square. Only secular or irreligious worldviews can inform public discourse, and the state is prevented from even indirectly facilitating religious expression. Richard Moon describes this approach to religious neutrality as essentially relegating matters of religious faith to the private sphere, subject to a view that “[s]tate neutrality is possible only if religion can be treated as simply a private matter — separable from the civic concerns addressed by the state” (para 4).

On the other end of the spectrum we have what I call inclusive religious neutrality. Unlike closed approaches to religious neutrality, inclusive religious neutrality recognizes that the state is only one of numerous actors in the public square and has no jurisdiction to exclude religious perspectives from public life. Under this conception of religious neutrality, the state is permitted and even encouraged to preserve and create positive public space for religious adherents (such as, for example, by subsidizing charitable religious activities which pursue a common or public good) so long as it does so in an even-handed manner and does not privilege one religious group to the exclusion of others.

Inclusive religious neutrality affirms that the state is not competent to arbitrate religious debates, even where these disputes have public implications. This is subject to the obvious caveat that the state will always have a vested interested in curbing or discouraging objectively harmful religious practices. But beyond this otherwise narrow exception, it is rarely appropriate for the state to act in a way that has the effect of promoting or stigmatizing certain religious beliefs or practices. Inclusive religious neutrality is thus reinforced by equality-enhancing values which recognize that the state’s uneven support for certain beliefs suggests that those who do not adhere to these beliefs are less deserving of public citizenship.

Although not necessarily identified as such, the constitutional commitment to equality was one of the driving forces behind Chief Justice Brian Dickson’s oft-quoted decision in R v Big M Drug Ltd Mart, [1985] 1 SCR 295 [“Big M”], the first Charter-era ruling from the Supreme Court on freedom of religion. While the Chief Justice recognized that the guarantee of freedom of religion is grounded in principles of individual liberty, his reasons also highlighted why explicitly religious laws (in that case legislation requiring businesses to observe the Christian Sabbath) will run afoul of the Charter, noting that the “theological content of … legislation remains as a subtle and constant reminder to religious minorities within the country of their differences with, and alienation from, the dominant religious culture” (para 97).

On this point, Bruce Ryder has written at length about how the Canadian constitutional commitment to substantive equality intersects with the right of religious adherents to participate in public life as equal citizens. As Ryder explains:

[T]he Canadian conception of equal religious citizenship is not confined to a private or religious sphere of belief, worship and practice. Instead, a religious person’s faith is understood as a fundamental aspect of his or her identity that pervades all aspects of life. … They have a right to participate equally in the various dimensions of public life without abandoning the beliefs and practices their faith requires them to observe. In contrast, some other liberal democracies are more likely to insist that citizens participate in public institutions on terms that conform to the state promotion of secularism. On this view, equal religious citizenship is confined to the private sphere, and must give way to the secular requirements of public citizenship. (2)

Inclusive religious neutrality, as I have described it here, is inextricably tied to Ryder’s articulation of the concept of equal religious citizenship. Religious neutrality presumes that religion is no more or less immutable than the other grounds of discrimination enumerated in section 15 of the Charter. This is to say that religion is “constructively immutable”, which means that it is just as impermissible for the state to discriminate against someone because of their religious beliefs or identity as it is to discriminate on the basis of immutable grounds such as race or gender. While this point may seem trite, laws and policies like Bill 21 are a sobering reminder of the tendency of many state actors to treat religious belief as something which can be readily detached from a person’s core identity.

It should be clear by now that religious neutrality is more than a derivative duty imposed on the state by some combination of sections 2(a) and 15 of the Charter. Indeed, it would be a critical mistake to conclude that religious neutrality begins and ends with the text of the Constitution. The dyadic guarantees of religious freedom and religious equality, as the Supreme Court affirmed in Saumur v Quebec (City), [1953] 2 SCR 299 [“Saumur”], are “a fundamental principle of our civil polity” (342). Religious neutrality is thus a pre-existing, foundational and enforceable legal principle which explains why the Charter protects religious adherents. Without a proper understanding of what religious neutrality demands, there is no principled reason why the state should be prevented from pursing an ecclesiastical agenda or discriminating against religious adherents.

Granted, the very idea of religious neutrality, whether closed or inclusive, is ultimately a conceit. From a philosophical perspective, policy-making is a fundamentally normative undertaking. Whenever the state implements or pursues a given policy – no matter how benign – it is making a statement about what society ought to look like. Such declarations are informed by assumptions about what morality and justice demand. In this way, Benjamin Berger explains, “religion will have much to say about matters of broad public policy import”, in that the state’s adoption “of positions on such matters will … involve position-taking on matters of deep religious interest” (772).

When viewed from an inclusive perspective, however, the state’s duty of religious neutrality does not bestow the state with a “secularizing mission” – quite the opposite. Secularism, like all worldviews, is built on assumptions about divinity, society and what it means to be human. In other words, secularism is itself a religion. Although this may seem counterintuitive, religion, functionally defined, does not require faith in a higher deity or even the supernatural. As American political theologian Jonathan Leeman writes, “any and every position that a person might adopt in the political sphere relies upon a certain conception of human beings, their rights and their obligations toward one another, creation and God” (81). In this sense, Leeman explains, religion “determines … the worldview lens through which we come to hold our political commitments.” (Id) Thus, everyone is, to some degree, religious. This is why an inclusive approach to religious neutrality seeks to ensure that the state does not directly or indirectly support irreligious worldviews over religious ones. If irreligiosity is just another form of religion, then official state support for irreligion will favour some religious adherents (namely secularists, atheists and agonistics) over others.

Since the advent of the Charter, the Supreme Court has trended toward the inclusive conception of religious neutrality which I have outlined above. As noted, Dickson CJC’s reasons in Big M prevent majoritarian religions from excluding minority religious groups from public life. In the decades since this landmark ruling, the Supreme Court has articulated with increasing precision what the state’s duty of religious neutrality entails. The Court’s majority ruling in S.L. v Commission scolaire des Chênes, 2012 SCC 7 [“S.L.”] is particularly instructive, in which Deschamps J found that neutrality is realized when “the state neither favours nor disfavours any particular religious belief, that is, when it shows respect for all postures toward religion, including that of having no religious beliefs whatsoever” (para 32).

Justice Gascon’s majority reasons in the Supreme Court’s subsequent ruling in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 take Deschamps J’s observations from S.L. even further. A truly neutral public space, Gascon J noted, “does not mean the homogenization of private players in that space” since “[n]eutrality is required of institutions and the state, not individuals” (para 74). Religious neutrality thus protects the “freedom and dignity” of believers and non-believers alike, and in doing so promotes and enhances Canadian diversity (Id).

Bill 21 is a quintessential example of how a closed approach to religious neutrality excludes religious minorities from the full benefits of public citizenship, contrary to Gascon J’s vision of “a neutral public space that is free of discrimination and in which true freedom to believe or not believe is enjoyed by everyone equally” (Id). Despite what its proponents may argue, Bill 21 does not preserve a religiously neutral public space, but instead forces front-line public employees to give the appearance of irreligiosity to the extent that they want to keep their jobs. The Quebec government’s decree that these employees hide their faith-based identities while undertaking their public duties is actually an insistence that they adopt completely alien religious identities if they are to participate fully in public life. Such a policy is anathema to an inclusive conception of religious neutrality.

None of this is to say that the Charter challenges which have been launched against Bill 21 are certain or even likely to succeed. The Quebec government’s invocation of the section 33 override – allowing Bill 21 to operate notwithstanding violations of sections 2(a) and 15 of the Charter – makes the outcome of any application for judicial review uncertain. Yet as others (including on this blog) have observed, there are a number of compelling arguments to be made that section 33 does not insulate Bill 21 against infringements of section 28 (i.e. the equal application of the Charter to men and women) or violations of the federal division of legislative powers.

In a similar vein, a strong argument can be made that section 33 cannot be invoked to insulate Bill 21 against violations of religious neutrality, since this constitutional duty pre-dates and exists independent of the Charter. This is not to say that religious neutrality is an unwritten constitutional principle, per se, since unwritten principles cannot be used to fill in perceived gaps in the rights and freedoms guaranteed by the Charter. The unwritten constitutional principles which have been recognized by the Supreme Court (namely federalism, democracy, constitutionalism and the rule of law, and the protection of minorities) differ from religious neutrality in that the latter is grounded in specific pre-Charter constitutional protections which directly inform enforceable Charter guarantees. To use section 33 to override the state’s duty of religious neutrality would be, in the language of Saumur, to circumvent “an admitted principle” of Canadian public law (342). Advocates for the rights of religious minorities can only hope the courts will agree.

For a more thorough examination of the development of the principle of religious neutrality in Canadian law, see my paper “Inclusive Religious Neutrality: Rearticulating the Relationship Between Sections 2(a) and 15 of the Charter”, (2019) 91 SCLR (2d) 219.

Constructive Shooting

How to evaluate New Brunswick’s use of the Charter’s “notwithstanding clause.”

Mark Mancini and Geoff Sigalet

Yesterday our colleague Leonid Sirota wrote a somewhat scathing review of the New Brunswick government’s recent intention to invoke the notwithstanding clause. The legislation at issue requires students to provide proof of vaccination, with a sole exemption on medical grounds. Leonid ably describes the legislation’s context more in his post, so we need not repeat it here.

The purpose of our post today is to try to clarify the lines of debate raised by New Brunswick’s potential invocation of the notwithstanding clause. The notwithstanding clause can be used pre-emptively, in absence of a court decision, or as a response to a court decision. Our first legal point is that there is nothing objectionable whatsoever about New Brunswick using the notwithstanding clause in the absence of a court decision—so long as the use is prospective, as noted in the seminal Ford case. Our second normative point is that the case against pre-emptive uses of the clause is grounded in a deeper concern about using the clause to override Charter rights, rather than to disagree with courts about how such rights relate to matters of public policy. But pre-emptive uses of the clause could anticipate disagreements with courts about how rights relate to public policy, and critics of the notwithstanding clause are too quick to denigrate the role legislatures have to play in constructing and protecting Charter rights.

Start with the legal point. The Ford decision set out the bases on which the notwithstanding clause could be used, but all of the requirements for its use were based on form only. For example, the use of the clause could be prospective only; retroactive applications are not permitted. There were limitations in the text of s.33 that also bore on the problem; for example, the legal force of the clause would expire after 5 years; and the force of the notwithstanding clause would only apply to Charter rights contained in section 2 or sections 7 to 15 of the Charter. These are the only formal requirements for the use of the notwithstanding clause.

Nowhere in the text or the history, that we can see, is there a legal distinction between uses of the clause that should solely apply to responses to court decisions as opposed to ab initio uses of the clause in absence of a court decision. In fact, the text of the notwithstanding clause could sanctify the use of the notwithstanding clause in both circumstances. Recall that the text says the following:

Section 33.

(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 (our emphasis).

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

This text could mean that laws with notwithstanding provisions override Charter rights themselves, while on the other hand the text could indicate that such laws operate notwithstanding the duties and obligations that courts have attached to particular rights. In either case, a legislature would need no court response to invoke the notwithstanding clause. On either view, laws operate notwithstanding anything courts have said about the obligations and duties related to rights in the past, or anything they might say in the future within the renewable 5 year expirations of section 33 invocations. The identical legal effect of these interpretations suggests that the text of section 33 was designed to maximize legislatures’ ability to anticipate disagreements with courts about how Charter rights relate to public policy matters, and to actively disagree with judicial decisions about Charter rights.

Consider the counterfactual: if the clause was tied to uses responding to particular judicial decisions, then courts could have used this mechanism to restrict the legislature’s ability to anticipate disagreements with courts. Courts could deem uses of the clause insufficiently connected to prior judicial decisions to be invalid, and legislatures’ “dialogue” with courts about rights would likely be even more flat footed and defensive than is currently the case.

In our view, the text is capacious enough to cover both uses of the clause to disagree with courts about the relevance of Charter rights to particular policy matters and about the nature of their relevance. What that means is that there is no principled legal distinction to draw between pre-emptive or reactive uses of the notwithstanding clause. The text simply indicates that a particular law will operate notwithstanding certain provisions of the Charter—the text could accompany a “court-first” understanding of those provisions, or a pre-emptive legislative one.

Whether one such use is better than the other, though, is a matter for political or normative debate. We think that the real debate is not about pre-emptive or reactive uses of the clause, but rather about whether the clause is being used to override or express disagreements about Charter rights. There are normative reasons to be worried about pre-emptive and reactive uses of the notwithstanding clause that simply ride roughshod over the core meaning of Charter rights. Section 33 gives legislatures the broad power over the constitutionality of a particular legislative provision, and it shuts out the judicial resolution of those claims. This is compatible with uses of the clause meant to exclude any reasoned consideration of Charter rights tout court, as was the case with Quebec’s initial use of the section 33 to immunize all of its legislation from judicial review for compliance with the Charter rights to which notwithstanding provisions apply. Such uses do not facilitate the “dialogue” that, some would say, is at the core of Canada’s constitutional arrangements. Also, the pre-emptive use of the notwithstanding clause in this fashion could end up creating a culture of rights degradation, where courts rarely if ever have the final say on rights adjudication. This worry is attenuated to some extent by the expiration of notwithstanding provisions after 5 years, and if one accepts Prof. Webber et al’s argument that the notwithstanding clause does not shut out the possibility of judicial declarations.

These concerns are serious over the long haul, but we see no particular reason to be worried about a single pre-emptive use of the notwithstanding clause. This is because New Brunswick may not invoke the notwithstanding clause to simply run roughshod over rights. Leonid’s case against the clause purports to show that New Brunswick’s use of the clause joins Saskatchewan’s 2018 Bill 89, Quebec’s 2019 Bill 21, and Ontario’s 2018 threatened use of the clause in Bill 31. But it is a mistake to lump these uses of the notwithstanding clause together. Leonid cites his earlier argument that Saskatchewan’s use of section 33 to protect legislation allowing non-Catholics to attend constitutionally protected Catholic schools would inspire governments to use the clause “whenever they think their policy ends justify the means, without paying attention to the rights the constitution is supposed to protect.” But the preamble of Saskatchewan’s Bill 89 itself laid out reasons for protecting public funding for non-Catholic students at Catholic schools that were sensitive to the Charter right to religious freedom. The preamble claims that:

Whereas it is desirable and in the public interest that education funding should not be based on any religious affiliation of parents, guardians or pupils;

Whereas it is desirable and in the public interest that boards of education may, subject to this Act and The Education Act, 1995, determine their own policies respecting admitting pupils, and that education funding to boards of education not be limited due to religious affiliation of parents, guardians or pupils;

The first of these clauses of the preamble demonstrates a concern with the need for religious neutrality in the extension of historically privileged denominational right on equal terms to denominational and non-denominational students alike. This is akin to the reasoning of the U.S. Supreme Court in Zelman v. Simmons-Harris allowing Ohio parents to use state subsidized vouchers to send their children to religious schools, and unlike Canada, the U.S. Constitution features an explicit prohibition on the establishment of religion. The second clause shows a concern with the autonomy of religious institutions that has been echoed by the Canadian Supreme Court’s jurisprudence on religious freedom. Perhaps Leonid disagrees with this assessment of how religious freedom relates to extending denominational school funding neutrally: but Canada is a democracy where elected legislatures ensure that ordinary citizens have some say about these matters. Saskatchewan’s use of the clause provides an exemplar against which to assess New Brunswick’s Bill 11.

But we shouldn’t be too hasty in drawing comparisons and conclusions. The New Brunswick bill has only just been introduced, and as such it remains to be seen whether the government will offer rights-sensitive reasons for using section 33 in the spirit of Saskatchewan’s Bill 89, or else simply emphasize how the majority’s policy goals override Charter rights, as in the case of Quebec’s Bill 21. Clearly, the former case is normatively more desirable than the latter; but it is important to remember that, on either case, the New Brunswick legislature is accountable for its appraisal of the law and its relationship to the Charter rights at play. The expiration of notwithstanding provisions ensures that courts must eventually have a co-ordinate say to ensure the legal longevity of the legislature’s rights construction. Far from creating a one-way “shooting gallery”, the notwithstanding clause is subject to plenty of democratic channels of opposition. A government that treats section 33 like a weapon could find itself in a gunfight with its own constituents. The expiration of the clause subjects its use and renewal to elections, such that the best control on the use of the notwithstanding clause does not lay in a courtroom, but in the minds and hearts of the citizens of Canada. That seems quite justifiable in a free and democratic society.

Heresy!

The UK Supreme Court’s decision in “the Case of Prorogations” and the political constitution

I wrote last week about the UK Supreme Court’s decision in R (Miller) v Prime Minister, [2019] UKSC 41 (Miller (No 2)), which unanimously held that the Prime Minister’s advice that the Queen prorogue Parliament for five weeks was unlawful, and the prorogation itself, therefore invalid. There was, however, one aspect of Miller (No 2) that I did not discuss in any detail: that of the Court’s treatment of the “political constitution”, and the distinction between those constitutional rules that are part of constitutional law and those that are not. In this post, I want to come back to this issue.

It is useful to begin with the orthodox view of the political constitution, articulated by scholars such as A.V. Dicey and courts in cases like Re: Resolution to amend the Constitution, [1981] 1 SCR 753 (Patriation Reference) and R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5 (Miller (No. 1)). On the orthodox view, only some constitutional rules ― statutes and common law rules, such as those circumscribing the scope of the royal prerogative and, in part, of Parliamentary privilege ― are part of constitutional law. Other rules, known as constitutional conventions, are not constitutional law and the courts will not enforce them, although they can sometimes take note of them in resolving properly legal issues.

In the Patriation Reference, the Supreme Court of Canada suggests a number of reasons for distinguishing convention and law. First, the majority opinion on the conventional question insists that “unlike common law rules, conventions are not judge-made rules. They are not based on judicial precedents but on precedents established by the institutions of government themselves.” (880) The majority opinion on the legal question makes the same point, and adds that “[t]he very nature of a convention, as political in inception and as depending on a consistent course of political recognition … is inconsistent with its legal enforcement”. (774-75) In Miller (No 1) the majority of the UK Supreme Court put it more pithily: “[j]udges”, it said, “are neither the parents nor the guardians of political conventions”. [146]

Second, and relatedly, the Patriation Reference suggests that it would be inappropriate to enforce conventions, given their questionable pedigree. “What is desirable as a political limitation ”, it says, “does not translate into a legal limitation, without expression in imperative constitutional text or statute”. (784) Third, the majority opinion on the conventional question argues that the courts lack remedies to compel compliance with conventions. Fourth and last, the same opinion notes that conventions conflict with legal rules, and courts are bound to apply the latter. Others have also argued that conventions are too shrouded in uncertainty―that both their very existence and their implications for specific situations are too doubtful―for them to function as meaningful legal rules.

Miller (No 2)  doesn’t explicitly engage with any of this. But by the time the UK Lady Hale and Lord Reed are done with the case, not much of the old orthodoxy is left standing. They not only regularly advert to conventions (which courts can do on the orthodox view), but seem to assimilate the exercise of conventional and legal powers, and arguably provide a way for judicial enforcement of conventions, in disregard of the traditional distinction between conventions and law. This might be a good thing, but I am uneasy at the way it is accomplished.


The tone is set early on. At the beginning of the judgment, Lady Hale and Lord Reed explain what a prorogation is, and contrast it with a dissolution of Parliament. Following the latter, they note, “[t]he Government remains in office but there are conventional constraints on what it can do during that period”. [4] There is no particular need to mention these “conventional restraints”, even for the sake of the descriptive point the Court is making (which is itself unnecessary, although perhaps helpful, to explaining the decision in the case at bar). A more orthodox court would probably have avoided mentioning conventions here. Not this one.

More relevantly to the case, Lady Hale and Lord Reed say that they “know that in approving the prorogation, Her Majesty was acting on the advice of the Prime Minister”. [15] They go on to further explain that

the power to order the prorogation of Parliament is … exercised by the Crown, in this instance by the sovereign in person, acting on advice, in accordance with modern constitutional practice. It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. [30]

The double negative allows the judgment to ostensibly “express no view on” [30] whether Her Majesty was indeed “obliged by constitutional convention” to accept the Prime Minister’s advice, but the fig leaf is quickly blown away. The Court proceeds to assess the lawfulness of the Prime Minister’s advice, which makes little sense unless one assumes that Her Majesty had to follow it. If the advice was in reality what it is in name, why would the Court be looking into it? This is further confirmed by the Court’s approach to the remedy. The applicants’ lawyers, implicitly adopting a more orthodox position, only sought “a declaration that the advice given to Her Majesty was unlawful”. [62] But the Court goes further, and says that this advice “led to the Order in Council [pursuant to which the prorogation was carried out] which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed.” [69] Led to? Founded on? This, I am tempted to say, is an imitation fig leaf, not even the real thing. What Lady Hale and Lord Reed mean ― the only way they reasoning makes sense ― is that the advice required the order in council to be made; that it was legally determinative, not just factually causative.

Consider: If I write a letter to Boris Johnson with a devious master plan for executing no-deal Brexit, and he follows it to the letter, my letter, which will actually be advice, in the sense of a suggestion, will not be the subject of court proceedings. The relevant choices will still be the Prime Minister’s, and, should their legality be called into question, my intervention will be no more than a part of the factual background, if that, even though it would be fair to describe it as “leading to” the Prime Minister’s actions, which would be “founded on” it. Of course, my position vis-à-vis the Prime Minister is different, in a constitutionally significant way, from the Prime Minister’s vis-à-vis the Queen. But, on the orthodox view, this would significant as a matter only of political, not legal, constitutionalism. The Supreme Court sees things differently. To repeat, Lady Hale and Lord Reed’s approach only makes sense if the Prime Minister’s advice is binding on Her Majesty, so that there is no daylight between his ostensibly conventional role and the exercise of the Crown’s legal powers.

Perhaps one might argue that the UK Supreme Court’s treatment of conventions is orthodox because it is only a necessary step towards resolving a properly legal question as to the scope of the prerogative power of prorogation. The Court, on this view, does not do what the Diceyan dogma tells us is impossible: enforce a convention. But is that so? And if it is so in this case, what about others in which the Court’s reasoning might be applied? (As discussed last week, the Court claims that Miller (No 2) is a “one off”. That remains to be seen.)

It is crucial, I think, to Lady Hale and Lord Reed’s reasoning that they are able to confidently assert that, while “Parliament does not remain permanently in session … [i]n modern practice, Parliament is normally prorogued for only a short time”. [45] They rely, moreover, on a statement by a former Prime Minister to the effect that nothing more is necessary. And they conclude that constitutional principles (specifically, Parliamentary sovereignty and executive accountability) mean departures from modern practice would require justification. Without explicitly undertaking an analysis in terms of the Jennings test adopted by the Supreme Court of Canada in the Patriation Reference, Lady Hale and Lord Reed come close to showing that the relevant constitutional actors seem to be following a rule, that they feel bound by the rule (or at least that they have no reason not to follow it), and that there are reasons, in the shape of important constitutional principles, for this rule ― in other words, that, according to the Jennings test, there exists a convention. Only, in effect, Miller (No. 2) very nearly transmutes this “modern practice” into law. (Very nearly, because in principle it is still open to a Prime Minister to justify departure from the practice.)

And beyond what has or has not happened in this particular case, I think the reasoning deployed by Lady Hale and Lord Reed can serve as a blueprint for judicial enforcement of conventions in the future. In a nutshell, what Miller (No 2) says is that the exercise of the royal prerogative is subject to implicit limits imposed by constitutional principles, and that the location of these limits ― which can be inferred, in part at least, from “modern practice” ― is a justiciable question. So consider, for example, the convention requiring the sovereign to assent to legislation passed by the House of Commons and the House of Lords (or only the House of Commons legislating pursuant to the Parliament Act 1949). Courts couldn’t enforce that convention and either require the sovereign to assent or treat a bill passed by the Commons and the Lords as law without her assent, right? Well, they could say that the power to withhold assent is subject to implicit limits imposed by the democratic principle, such that any departures from the modern ― or, this case, centuries-old practice of not withholding assent ― must be justified, and… voilà!


As readers may know, I am a longtime skeptic of the Diceyan orthodoxy on the separation between conventions and law. I think that the courts should have regarded conventions as common law rules en devenir and enforced them if and when necessary, subject however to justiciability concerns ― for example when the conventional rule is vague and/or its application in a given case involves political judgment. So the outcome of Miller (No 2) is not all bad, from that perspective.

And its reasoning makes the arguments invoked in support of the orthodoxy that much more difficult to sustain. The emphasis that Lady Hale and Lord Reed put on the development of the common law constitutional rules in cases such as the Case of Proclamations shows that the disclaimers of the creative role of the judiciary and protestations about its inability to translate “what is desirable as a political limitation” into legal rule always proved too much. Similarly, their confident treatment of the question of the remedy and of the evidentiary issues shows that concerns about the courts’ ability to engage with conventional issues have been greatly exaggerated.

That said, I have my reservations about the approach the Miller (No 2) court takes. For one thing, I wish Lady Hale and Lord Reed had been more transparent about what they were doing. Miller (No 1), where the UK Supreme Court reiterated the orthodox view that a convention could not be judicially enforced ― even a convention enshrined in statute! ― was only decided a couple of years ago. Miller (No 2) is almost a complete U-turn from its namesake, yet we have little explanation about why the ladies and lords were for turning. Here as on other issues, the suspicion of results-oriented reasoning must weigh heavily on the Court. More substantively, Lady Hale and Lord Reed may be overconfident in the courts’ ability to dispose of the factual questions that may arise when the courts enter the realm of politics. As noted above, I think that these questions will sometimes ― though by no means always ― be difficult enough that non-justiciability is a real concern. The reasoning in Miller (No 2) does not acknowledge this, and in my view this is a mistake.


Miller (No 2) thus seems to be a very significant, albeit unacknowledged, development in the UK Supreme Court’s understanding of the nature of the constitution, and specifically of what used to be thought of as its political, non-legal component. Without saying so, the Court is, perhaps, in the process of correcting the mistake made by scholars and judges who saw a sharp separation between law and politics when, at the heart of the UK’s constitution, none existed. Views on the nature and status of conventions that were just recently said to be quite heretical now appear to have prevailed.

If anything, the pendulum may have swung too far in the other direction. The Court hasn’t thought through the implications of its reasoning. Perhaps this is just how the common law develops: case by case, without the courts fully understanding the consequences of one decision for those that will follow. In that sense, Miller (No. 2) might not be an innovation at all. The system works, perhaps, but it is not always a pretty sight.

The Rule of Law All the Way Up

Introducing my recently-published chapter on the Rule of Law and Canadian constitutional law

LexisNexis Canada recently published (if I understand correctly, as a standalone book as well as a dedicated issue of the Supreme Court Law Review (2d)) Attacks on the Rule of Law from Within, a collection of essays co-edited by my friends Joanna Baron and Maxime St-Hilaire. The publisher’s blurb gives a concise summary of the project’s background and contents:

This volume is a collection of six papers developed from the Runnymede Society’s 2018 national conference by a community of legal experts in response to Supreme Court of Canada Justice Rosalie Abella’s comment that “the phrase ‘rule of law’ annoys her”. 

Grounded on the intuition that the legal profession supports the rule of law, the papers examine the historical perspective on threats to the rule of law, the sufficiency of the current Canadian legal framework to support this ideal and how the principle of stare decisis as observed by the Supreme Court of Canada undermines the spirit of the rule of law. The volume also discusses how the law relating to Aboriginal title and the duty to consult fails to adhere to the Rule of Law standards … to the detriment of indigenous and non-indigenous Canadians alike.

I am honoured to have contributed to this volume, with an essay called “The Rule of Law All the Way Up”, which focuses on what I see as the lack of commitment to the Rule of constitutional Law in by scholars, judges, and politicians. Here is the abstract:

Canadian constitutional law is seldom criticised for its failure to live up to the ideal of the Rule of Law. This article argues that it should be so criticised. A number of widely accepted or uncontroversial Rule of Law requirements―the need for general, stable, and prospective rules, the congruence between the “in the books” and the law “in action, and the availability of impartial, independent courts to adjudicate legal disputes―are compromised by a number of ideas already accepted or increasingly advocated by Canadian lawyers, judges, and officials.

This article describes four of these ideas, to which it refers as “politicization techniques”, because they transform what purports to be “the supreme law of Canada” into a set of malleable political commitments. These are, first, deference to legislatures or the application of a “margin of appreciation” and the “presumption of constitutionality” in constitutional adjudication; second, constitutional “dialogue” in which courts not merely defer, but actively give way to legislative decisions; the substitution of political for legal judgment through the application of the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms; and the rewriting of constitutional law by the courts under the banner of “living tree” constitutional interpretation.

The article concludes with an appeal to those who profess commitment to the Rule of Law in relation to the Constitution not to embrace or endorse the means by which it is subverted.

The entire chapter is available to download on SSRN. It builds on many of the themes developed on my posts here ― the rejection of judicial deference on constitutional issues, whether to legislatures or to the administrative state; the imperative to renounce the use of the Charter‘s “notwithstanding clause”; and the perils of “living constitutionalism”. Some of these, notably the issue of deference to administrative interpretations of constitutional law and constitutional interpretation, I will also be pursuing in future work. (Indeed, the first of these is the subject of the paper I will be presenting at the Journal of Commonwealth Law symposium next month.)

I am very grateful to Ms. Baron and Professor St-Hilaire for having given me the opportunity to present these thoughts, and write them up for publication. I am also grateful to Justice Bradley Miller, of the Court of Appeal for Ontario, who gave me thoughtful comments when I presented my chapter (then still very much in draft form) at the 2018 Runnymede Society conference, as well as to Kerry Sun, who was a very helpful editor. And I am looking forward to reading the other contributions in the volume, once I am done preparing the talks I am about to give in the coming weeks.