The Dead Intent of the Framers

The tragedy of Doug Ford looks less like a tragedy after all, with the Court of Appeal for Ontario staying the decision of Justice Belobaba that ruled Ford’s planned council cut unconstitutional. The use of the notwithstanding clause is off the table, for now. But it would be hasty to move on too quickly. How academics and lawyers spoke about the planned use of the notwithstanding clause provides a window into how we justify and critique the use of state power.

For example, some 80 law school faculty across Canada came out against the Ford government’s planned invocation  of s.33 of the Charter of Rights and Freedoms in an open letter. The faculty, relying on a strong-form version of originalism (original intent, long outdated as a form of originalist reasoning), argue that Premier Ford transgressed the intention of the Charter’s framers:

The framers of the Constitution included the notwithstanding clause as a compromise to achieve consensus. But, they firmly believed that the notwithstanding clause would only be used in exceptional circumstances. This has indeed been the case since the Charter’s enactment in 1982.

If the excerpt above seems an insignificant part of the letter, the faculty use the original intent of the (yet undefined framers) to define a political norm that governs the frequency of use of the notwithstanding clause.

In 36 years, the notwithstanding clause has rarely been used. Liberal governments, NDP governments and Conservative governments at the federal and provincial levels have all been extremely reluctant to use the notwithstanding clause. Faced with judicial decisions declaring legislation unconstitutional, governments in Canada have sought alternative ways of bringing their laws into compliance with the Charter. This is precisely what the framers of the Constitution had hoped and predicted. The notwithstanding clause was only to be used in the most exceptional circumstances.

The faculty, to their credit, do not attack the legality of Ford’s planned use of the notwithstanding clause. So long as the form requirements are met, the notwithstanding clause can be invoked. Rather, they seek to define, using framers’ intent, the political boundaries that should govern this extraordinary power.

At first blush, I agree that the invocation of the notwithstanding clause should be subject to political norms and should be critically examined by citizens. There should be a justification of the use of the notwithstanding clause. This is different from the sort of legal restriction on statutory decision-making explained in Roncarelli v Duplessis. In an administrative law sense, state power is subject to the law, and the exercise of powers contemplated by statute are controlled by that statute.  That analogy is ill-fitting for a power unrooted to statute that exists in the text of Constitution itself. Nonetheless, one can meaningfully argue that a political norm of justification should accompany the use of the override. As I’ve said in this space before, Premier Ford has failed on this score.

The interesting part of the faculty letter, though, is not the substantive argument. Rather, it is the analytical footpath. The faculty seek to call up the live hands of Jean Chretien et al who “framed” the Charter to support their point of view. In fact, Chretien, former Ontario Attorney General  Roy McMurtry, and former Saskatchewan Premier Roy Romanow (the individuals who bartered the notwithstanding clause into the Charter through the famous Kitchen Accord) have come out to say that  the notwithstanding clause should only be used “in exceptional situations, and only as a last resort.”

It is surprising that a fairly large contingent of the Canada law professoriate endorse the proposition that the intent of the framers should mean anything in this case. Others have written about the problems with original intent originalism—determining the class of relevant “framers,” determining how to mediate between different intents among these “framers,” determining the level of generality at which intent is expressed, and the list goes on. These practical problems underline a broader theoretical problem–why, in a normative sense, should the views of Jean Chretien et al bind us today? How can we be assured that these “framers” are speaking on behalf of the meaning adopted by Parliament and the legislatures?

Even if we should accept that this intent leads to the acceptance of the relevant political norms, there is no evidence offered in the letter that other potential “framers” of the Charter shared the view of Chretien, Romanow, and McMurtry as to the use of the notwithstanding clause. For example, Brian Peckford (former Premier of Newfoundland who apparently presented the proposal of the provinces to Prime Minister Trudeau), wrote a piece arguing that Premier Ford’s use of the notwithstanding clause was perfectly appropriate. He made no mention of any understanding or political commitment on the part of any other Premiers or parties as to the expected use of the notwithstanding clause. In this sense, the framers’ intent means nothing; it is dead in terms of helping to interpret even the political norms surrounding the use of the notwithstanding clause.

This is a dangerous form of originalist reasoning adopted by the faculty, and should be used sparingly with appropriate caution. It is open to abuse. Lawrence Solum argues that theories of originalism have two features (1) fixation and (2) constraint. That is, the meaning of a constitutional provision is fixed at the time of framing; and in terms of original meaning originalism, the original public meaning of the constitutional text constrains the constitutional practice of courts. To my mind, the sort of originalism relied on by the faculty fails to both fixate and constrain constitutional meaning, precisely because there is at least an open question as to the expected legal and political practice of the notwithstanding clause. There is even a question as to who should fit into the relevant class of framers, and who should not. In this sense, the form of originalist reasoning invited by the faculty is not, in substance, different from living tree constitutionalism—unfixed and unconstrained. It is an invitation to dress up the desired political outcomes of its proponents with the imprimatur of a legal doctrine.

Putting aside the faculty focus on political norms, if framers’ intent is accepted as an appropriate doctrinal model, the debate in courts will focus on which particular framers support one side of a case or another. Will some lawyers introduce affidavit evidence from Jean Chretien? Another side, Brian Peckford? Rather than focusing on the meaning of words in their context—their original meaning—framers’ intent will incentivize lawyers to spin historical tales, told through the intent of those whose view may not actually represent the state of the law.

That said, we shouldn’t bristle at the opening provided by the faculty. There is, perhaps for the first time, a willingness to accept forms of originalism. If the faculty intended to fix the constitutional political practice of the notwithstanding clause at the time of framing, that intent is better vindicated by original meaning (to the extent it can be discerned) precisely because it fixes and constrains. Of course, a rational person would rather bet on a system of rules that prevents political hijacking of legal interpretation, because political power can be wielded in any direction. A safer gamble—a better methodology—is a form of doctrine less amenable to political reasoning. Given the faculty acceptance of some model along these lines, I look forward to seeing how a focus on fixation and constraint can influence other areas of the Charter.

Toronto v Ontario: A Remedy Seeking a Right

Constitutional politics and the notwithstanding clause

Yesterday, Justice Belobaba of the Ontario Superior Court released his decision on the Ford government’s plan (“Bill 5”) to cut Toronto City Council in half, deciding that it infringed the s.2(b) Charter right to freedom of expression. In response, Ford announced his government would reconvene the legislature and pass a bill to invoke the so-called “notwithstanding” clause of the Charter, under which Charter rights can be “overridden” (though this word isn’t used in the text) for a period of five years.

It was an eventful day all around, and there were many comments from people more qualified than I to speak on freedom of expression, the notwithstanding clause, and the interaction between the two. I will, however, comment on two points in this sordid saga: (1) the conflation of s.2(b) and s.3 of the Charter in Justice Belobaba’s decision; (2) the notwithstanding clause

Freedom of Expression in the Electoral Context

First, to the decision. Justice Belobaba began the analysis by properly noting that the question was “not whether Bill 5 is unfair. The question is whether the enactment is unconstitutional” [7]. But just as quickly, Justice Belobaba ultimately concluded that the province had “clearly crossed the line” [9] because (1) Bill 5 was enacted in the middle of an election campaign and (2) it doubled the population size of wards in the city, breaching a voter’s right to “effective representation” [20]. On the timing issue, Justice Belobaba concluded that the freedom of expression right was impacted because of “confusion” and “uncertainty” owing to Bill 5 [30]. The ultimate conclusion was that “…the candidate’s ability to effectively communicate his or her political message to the relevant voters” was impacted by Bill 5.

While I won’t dwell on the point, this seems a stretch. Section 2(b) is broad and the Supreme Court has rightly affirms the particular importance of political speech (see Libman, at para 31). But it doesn’t guarantee a right to expression in perfect circumstances—nor does it proscribe government conduct that could make political speech “ineffective.” The fundamental question under s.2 is whether a government law “limits” speech. There is a distinction between effectiveness of speech and freedom of speech; the latter is a necessary condition, the former is not. If courts begin to delve into the messy business of striking down government laws that merely affect the effectiveness of speech, the Charter could end up restricting the marketplace of ideas in ways that are typically repugnant to a liberal order. Practically, it also means that in some cases the court will need to determine whether a law renders speech “ineffective,” which would require some fairly metaphysical evidentiary standards, not to mention a voyage into the content of the speech. It is even more difficult to prove an infringement in cases where, as here, the purported restriction speaks only to the environment (confusion and uncertainty) in which candidates campaign, not to legal restrictions on the political campaigns and voters themselves, such as in the typical s.2(b) electoral cases: BC FIPA, Thomson Newspapers, Libman.

I’m more concerned with the second finding in the decision—the essential application of s.3 of the Charter concerning voting rights in a case where it does not apply. Section 3 textually reads that it applies to voting for federal and provincial representatives. Under the purposive approach to constitutional interpretation, the purpose of s.3 is to guarantee “effective representation” (Reference Re Prov Electoral Boundaries) in these fora. Mathematical parity is not the test, but what constitutes effective representation appears to be a fraught question. But in this case, against the backdrop of one affidavit, Justice Belobaba concluded that the expressive right to vote for effective representation had been breached because the ward population size had been doubled [51, 60]. This is fundamentally the language of s.3, not s.2(b). Justice Belobaba, to his credit, is alive to this concern. He ultimately concludes that voting is a form of expression rendered ineffective by Bill 5, and whether or not it is rooted in s.3, it can be transposed to the s.2(b) context [43 et seq]. But here again we get into the business of effectiveness—especially what constitutes an effective vote. The language is striking, calling to mind a category mistake; should we be in the business of assigning value to votes based on resulting effectiveness?

Regardless, s.2(b) and s.3 are distinct Charter guarantees. They have distinct purposes, with “effective representation” being the purpose of s.3. While these purposes may sometimes overlap, it seems to me that the purposive approach to Charter interpretation has to insist on some analytical distinction between the rights to be of any use. If rights are to be interpreted in their “historic, political, and philosophic” context, surely that purposive context changes with the right in question. This has particular implications for the relationship between Charter rights and s.1 of the Charter. As Peter Hogg notes in his important article, how we construe Charter rights at the infringement stage has implications for the s.1 stage. If a right is construed broadly at the first stage (the purpose is construed broadly), then we leave s.1 for more work to do. Similarly, a right that is characterized with a narrow purpose may leave less work for s.1. This is a rough-and-ready purposive analysis, but it means that regularly mixing and matching Charter rights can have consequences for the evidence required to prove a Charter breach, the evidence required to sustain one, and the intensity of review that courts apply to particular infringements.

There is also the obvious problem here of essentially applying a Charter guarantee where it doesn’t apply to municipalities (despite Justice Belobaba’s comments regarding Haig, I think he fundamentally imported s.3). I call this “constitutional substitution.” It means that a court, seeking to vindicate a result that seems unfair or unjust in the abstract, massages a chosen constitutional right that will best achieve that result. It is perhaps an uncommon phenomenon, but it is present in this decision—s.3 does not apply, s.2(b) does. While I’m alive to the idea that the s.2(b) electoral cases could implicate s.3, those cases dealt with different legislative schemes that, again, directly impacted/limited the ability of participants in the political system to participate (ie) through financial restrictions.

I don’t mean to advocate for a “watertight compartments” approach to Charter rights, in part because I think the reality of constitutional facts make this difficult. That said, as Mike Pal very aptly noted, we have no real doctrinal means to deal with overlap of constitutional rights as opposed to the reconciliation of rights. We should start from the premise that the Charter lists distinct guarantees that the Supreme Court has insisted should be interpreted with distinct purposes. From there, we deal with the hard cases that arise where rights overlap, such as in the case of s.2(b) and s.3. And this isn’t the only area of the Constitution where rights can overlap—the recent Ktunaxa ruling demonstrates a contested area between the freedom of religion guarantee and Aboriginal rights under s.35. While each overlap may have to be resolved differently, some unified principles would be helpful.

Brief Comments on the Notwithstanding Clause

I can’t do much to add to the already booming discussion on the notwithstanding clause. I for one accept its legitimacy as part of the constitutional order, in part because of the evidence that it formed a part of the pact leading to the Charter, adopted itself by our elected representatives and because one part of the Constitution cannot be breached by another. The notwithstanding clause is a power that can be used by elected officials assuming they follow the form requirements set out in the Ford case (no relation).

I will venture two points. First, simply because the notwithstanding clause is legitimate itself doesn’t mean that it can’t be misused illegitimately. The exercise of state power—even a constitutionally entrenched power—does not operate in a vacuum. We should expect a duty of good-faith in a constitutional democracy to attach to the use of such powers; put differently, and without entering the foray into constitutional conventions, we should expect elected officials to abide by constitutional norms as they are defined.

Part of this norm, given the atrophied s.33, should be a public justification for the use of the extraordinary override. The populist justification put forward by Premier Ford is lacking for this reason. No one says that the seminal Ford case compels Premier Ford to do anything but pass a properly formed bill. But in a deliberative, representative democracy, we should expect leaders to justify their use of extraordinary state power, especially as it applies to the override of constitutional rights, themselves adopted by legislative actors. As James Madison wrote in the Federalist No. 10, we expect in a representative democracy that our leaders will not appeal to factions (as in a direct democracy) but to the highest ideals of the legal order.

A second point about the notwithstanding clause, especially on constitutional substitution. The effect of Justice Belobaba’s ruling is to open the door to the use of the notwithstanding clause on s.3 of the Charter, the essence of his legal findings. Yet this is doubly prohibited by the Constitution. As I say above, s.3 only applies to Parliament and the legislatures and at any rate cannot be overridden by the notwithstanding clause. Though Justice Belobaba framed his findings under s.2(b), his ultimate conclusion was framed in the right to effective representation that would be infringed by having councilors who cannot respond to voter complaints [57]. He was most concerned with being able “to case a vote that can result in meaningful and effective representation” [59]. This is in substance a finding under s.3. Yet by framing the finding under s.2(b), Justice Belobaba opens the door both to the application of s.3 to municipalities and to the use of the notwithstanding clause against, in essence, a s.3 finding. If we accept that the right to effective representation is infringed, we should worry about the notwithstanding clause’s use here.

Vote ‘em out

I offer these comments tentatively, largely because we are in unchartered waters. At the same time, two final points. First, I disagree with those who say this is a constitutional crisis. Constitutions are meant to be durable, to withstand pressure by those seeking to break constitutional norms, or even the inadvertent pressure of complacence. In some ways (putting aside the constitutional substitution concern) this is a textbook case of the court issuing a ruling and the government responding.

Second, I think the best way to understand Justice Belobaba’s ruling is to conclude that he saw a wrong, fashioned a remedy, and hooked it to a right. On most accounts, though the duty of procedural fairness does not attach to acts of the legislature, there was something unfair about the way in which Bill 5 was introduced and the context of the Premier’s contentious relationship with Toronto Council. Most likely this was an arbitrary decision by the Premier. In the face of this unfairness, Justice Belobaba found a way to get around the problem of s.3 by applying s.2(b) and by stretching the meaning of s.2(b) itself. I do not see this as a proper response to legislative unfairness. The best responses are for PC MPPs to oust Ford, or for the voters to do so.

Rendering Unto the Judiciary

Justice Martineau’s recent article on judicial courage

In a recent piece published in the Western Journal of Legal Studies, Justice Martineau of the Federal Court puts forward a concept of “judicial courage” as a descriptive and normative claim about what judges do in a democracy. Judicial courage, to Justice Martineau, is an ideal that stands in contrast to judicial “conservatism” under which law is the complete answer to most or all cases [2]. To Justice Martineau, law is a necessary but insufficient condition for the flourishing of justice and democratic institutions. Instead, we also need a shared ethic or commitment towards a culture of constitutionalism, which judges help along by displaying “courage” in particular cases. Justice Martineau is drawn by a “liberal” version of the judiciary, imbued with moral authority rather than simple legal authority.

While Justice Martineau’s piece demonstrates a clear reflection of the issues at stake and his status as an eminent legal thinker, allow me to be skeptical of his core claim, as I read it: that courage can be a helpful descriptive and normative organizing principle. To me, judicial “courage” is far too subjective, and could ultimately give rise to unconstrained faith and power in a judiciary unbound by doctrine. There would need to be some limiting principle and definition to the ideal of “courage” to ensure that judges exercise it in proper cases.

This is not to say that the problem Justice Martineau addresses in his piece is unimportant. The piece uses the concept of judicial courage as an answer to a perennial problem: how do we deal with internal threats to the legal system from those sworn to uphold it? To Justice Martineau, courts are central in preventing the rise of these sorts of actors

I have no difficulty in endorsing his point of view. Judges have a duty to act responsibly. Detractors of “judicial activism” dismiss elitist thinking—particularly as it is opined by unelected members of the judiciary. People should put their faith in Congress or Parliament, who know better. But their optimistic reliance on the positive side of political virtue and wisdom ignores the transformative action of fortuna when power has become corrupted or concentrated in the hands of a sociopath. This can happen in any democracy [31].

My concern is the faith this puts in courts to almost always do the right thing. Just because the legislative branch can be manipulated does not mean that the judiciary cannot be, or that strong-form judicial review is necessarily the best remedy. As Vermeule argues, much of constitutional law can be construed as a form of risk management. Part of the risk of constitutional design is the risk posed by imperfect humans. For example, in designing the American constitution, some of the Federalist framers began from the presupposition that “enlightened statesmen will not always be at the helm” of the system (The Federalist Papers, No. 10). To Hamilton, in fact, “No popular Government was ever without its Catalines & its Caesars. These are its true enemies.” Constitutionalism must start from the premise that there will be bad actors in the system, like a Caesar or Hitler, who might seek to use internal democratic channels to subvert the rights of others. This observation extends equally to the judiciary.

The Americans responded to this problem by adopting a strict separation of powers, in which no one branch could accumulate all power. The judiciary is obviously included in that system of limited government, restrained just as much as the legislature and executive. Why should we bank on such a system? Ex ante, the separation of powers is the best organizing principle on which to base a Constitution. A bill of rights will only be a “parchment guarantee” if any actor in the system can accumulate all the power. Before doing anything in a constitutional democracy, we’d want to insure against this risk.

We should be careful about tinkering with this machinery. For that reason, in a system of separation of powers, there should be good reasons for one branch to step into the territory of the others. Hamilton alluded to this possibility when he said that in cases of a weak government, it may need to “overstep the bounds” (on this point, see Vermeule’s recent paper) in cases of emergency. But the same goes for the judiciary. Extraordinary constitutional circumstances should exist before an unelected judicial branch interferes with the elected process if the separation of powers is a main organizing principle–and if we care about guarding against the risk of overreach.

And this is the rub of the matter. If it is “courageous” for courts to interfere with democratically-elected mandates that may be unfair, it is perhaps even more courageous for courts to stay their hand and let the democratic process unfold in service to the separation of powers. Which is true in a given situation should be subject to clear rules that guard against judicial overreach and limit the role of the judiciary to real instances of constitutional concern. But we are so far from this reality in Canada. I need not go over the Supreme Court’s sins in this regard, but the Court has failed to apply a consistent set of rules governing its judicial review function; sometimes tacitly accepting originalism, sometimes trotting out the living tree, all the while relaxing its approach to precedent.

To this comes Justice Martineau’s objection. A wholly rules-bound judiciary is likely to allow grave democratic injustices to stand. Hitler, after all, was a product of a democracy. Justice Abella has gone as far as to eschew the rule of law, instead proposing a “rule of justice.” To Justice Abella, the rule of law is “annoying” because it sanctioned the Holocaust, segregation, and other democratic evils. On her account (and Justice Martineau’s) courts always pursue justice, whereas the legislature will only do so if “justice” coincides with its own political interest

Direct democracy alone is an insufficient condition for a good society, if only for practical reasons. In fact, courts play an integral role in a properly separated system. This system, to Justice Martineau, must be vindicated by a culture of constitutionalism, in which the people agree to be bound by law [13]. The American framers agreed. But the real question is who should foster this belief. Justice Abella and Justice Martineau seem to think it is the role of courts to encourage this culture of constitutionalism; and even more, they seem to think that courts are uniquely suited to do so.

At risk of sacrilege, I think this puts too much faith in humans–the very risk the separation of powers guards against. To trust that the judiciary will always display “courage,” properly calibrated to the legal rule under consideration, is unrealistic. Judges will make mistakes, sometimes grievously so. This is a clear risk that is managed by the separation of powers. To be sure, the risks posed by legislative or executive abuse are different than those posed by courts, but they are no less concerning. Executive or legislative recalcitrance will be obvious, but judicial overreach is less so.

Instead, putting too much faith in the judiciary and expanding judicial power is much like eating chocolate cake. The cake is good at the moment, but later on it takes its toll. A court making up its own law will vindicate particular groups in the moment. But over the long term, a court unmoored by clear rules, directed only by “courage” or “justice,” could slowly eat away at the separation of powers and the role of elected legislatures until the culture of constitutionalism sought by Justice Martineau is really just a culture of court worship. Under this culture, courts take an expanded role, and citizens look to the courts to vindicate their particular versions of the good.

I fear we have come to this point in Canada. One need only look at the recent retirement of Chief Justice McLachlin as an example. Veneration of the Court is a veritable academic pastime, and too many view the judges as celebrities rather than fallible humans with a restricted role in the separation of powers. This is an implication of Justice Martineau’s invocation of “courage.” Without guiding rules, courage could mean many things to many different people. It could end up being a dangerous theory of judicial review that further politicizes and expands the role of courts.

In our system, there is no doubt that we need courageous judges, but what courage means in a system of separated powers is a complicated question. Without accounting for institutional realities, courage lacks definition as a descriptive and normative idea. Rather than putting our faith in judges, all should insist that actors within the political system stay true to their defined roles. Accordingly, for courage to be a helpful concept rather than a vessel for judges to fill with their own worldview, we’d need to develop clear doctrinal parameters on the concept.

SCC Skepticism

In a recent piece in Maclean’s, Adam Goldenberg explains why the Supreme Court of Canada (SCC) does not suffer from the same partisan interest the Supreme Court of the United States (SCOTUS) does. He lists three main reasons: (1) the nature of partisanship in the US; (2) the American conservative movement’s incubator for legal talent; and (3) American political parties galvanizing support on the strength of controversial court rulings. I accept all of these reasons and invite those interested to read Goldenberg’s piece.

But one more should be added, without which the story is incomplete: American citizens know where law is made.  They realize (even without knowing the legalities) that winning a constitutional debate in court wins the democratic debate for all time.  The matter is put beyond the reach of the regular democratic process. Canadians should be more critical of this reality in our own country.

Two forces have led us to this point. The first is both Canada and the US courts do not shy away from deciding controversial issues. In Canada, Bedford and Carter dealt with prostitution and assisted dying, respectively. In the United States, Obergefell dealt with same sex marriage. The fact that courts often delve into these issues (or, as defenders of the courts would say, are forced into these issues by the nature of an entrenched bill of rights) makes them a lightning rod for political attention.

At the same time, opinion polls in the United States show that Americans have record low confidence in their political institutions, and Canadians are no different. Confidence in government is at all-time lows. We see this in the context of Aboriginal law, where Aboriginal groups have moved to the courts as the primary vehicle by which they can vindicate their rights. One can surmise that they have done so because of the historical ineptitude of the Government of Canada.

These forces together understandably cause citizens to make a choice. Recalcitrant politicians and a lack of confidence in institutions? The slog of convincing one’s fellow citizens? Or, a sweeping court declaration which forces legislatures to respond?

In the US, citizens largely made the latter choice to resolve their plights. Justice Antonin Scalia remarked in Planned Parenthood v Casey that the SCOTUS, rather than legislatures, were increasingly subject to intense political pressure by both sides of hot-button issues—in that case, abortion. The letters, comments, and protestors directed to the SCOTUS, not the legislatures, was an odd sight to Justice Scalia, who viewed the development skeptically. To Justice Scalia’s mind, because the American people “are not fools,” they recognized that the SCOTUS had become the leading institution where these value-laden issues were decided.

While Goldenberg notes that much of this political attention focuses on what the original meaning of the US Bill of Rights means in modern America, I think this overstates the case. The political attention is just that, naked politics, not shrouded in any legality. Many people want the court to achieve their explicitly political ends.  As for originalism, originalists have not held a majority of the US Supreme Court, at least in the last twenty years. Justice Scalia himself was known as a fiery dissenter. For example, under the 8th amendment (cruel and unusual punishment), the SCOTUS developed a profoundly non-originalist test—the so-called “evolving standards of decency” approach. While Justice Kagan’s point that we are all originalists now may be true, it is not true that originalism has been a wholly successful legal project in the United States.

No matter what one thinks of originalism, it provides a limiting principle on otherwise free doctrinal reign. But because it has not been embraced consistently in the US, and no other real principle has come forward, the political parties have latched on to the SCOTUS nomination process as a means to vindicate their particular versions of the good. Since the Bork confirmation hearings, both parties in the US have used the process because they know its consequences. They know that getting the “right” people on the Court will do far more to change laws than simply electing people to the legislature. We see this sort of discussion now with the retirement of Justice Anthony Kennedy, and the ludicrous proposal of “court-packing” to block a Republican nomination.

The Americans have gone too far, and Goldenberg rightly decries this development. But one has to ask whether it is all that bad given the stakes. People understandably want a say in the laws that govern them. If the SCOTUS takes a bigger piece of the pie of the law-making process, then citizens should have the right and the responsibility to campaign on “the court” as an issue.

In reality, Canada’s SCC is just as central in the Canadian polity as the SCOTUS is in the American. Despite the Court’s recent ruling in Comeau, the test to revisit previous precedents is fairly relaxed, and so litigants understandably invite the SCC to do so. This approach invites members of the Court to decide when, according to them, a particular precedent no longer jibes with modern times.  Whatever the strength of the Court’s stated commitment to living constitutionalism, it generally supports its “ideological sex appeal,”   viewing its role as deciding what is best for Canadian society. As Leonid pointed out in a previous post, the SCC has an ideology, but it is probably not evident to most.

A good example is the SCC’s opinion in Saskatchewan Federation of Labour. There, the SCC majority spoke of giving “benediction” to the right to strike. The full quote by the SCC majority is instructive: “[T]he right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction” [3]. In this example, it was the SCC that decided that now, rather than some past time, was the right time to expand a constitutional right, forever removing it from the realm of democratic debate. This is a political conclusion at heart, more an assessment of what modern times demand rather than what the law does.

And so, it is understandable that political groups should want to have a role in moving the Dworkinian Hercules. But as Goldenberg points out, Canadians have not latched on to these developments as a political matter. In fact, many of the criticisms I’ve advanced to the Saskatchewan Federation of Labour case are common in the US, but less common in Canada. Canadians seem to be  sluggish in response to these tendencies in our own SCC. I can’t speak to why this is; but perhaps it is true to say, as the National Post did, that Canadians are simply “different” than Americans—more trusting of government institutions.

In light of the stakes, Canadians could learn from Americans in taking an active, critical interest in what the SCC does. While I do not advocate a full-blown American approach to judicial nominations, there are various ways Canadians should respond to this phenomenon. Justice Scalia’s prescription was a rigorous application of original meaning originalism, which he thought was the antidote to the excesses of living constitutionalism. I am partial to this approach, but I need not argue this point to make the following assertion: Canadians should first fully reckon with what the SCC is actually doing, whether one thinks its good or bad. If the SCC makes law, as so many legal realists believe, we should hold them to the same standards we hold legislatures. We should, in short,  become Supreme Court skeptics, rather than fawning admirers of our nation’s highest jurists.

This is a distinctly second-order response to the issue, but the most realistic one in the intellectual and legal climate in which we find ourselves.  Canadian academics certainly engage vigorously with SCC decisions, but the extent to which this filters into the larger society (or the extent to which it is representative of all potential critiques) is an open question. We should be concerned with fostering a healthy skepticism of the SCC, similar to the skepticism we hold for legislatures.

This means fostering an open climate of academic, cultural, and political discussion about the SCC, and viewing judges as humans, rather than celebrities—no more capable of coming to conclusions about the nature of human rights than any Joe or Jane Six-Pack. This is a more radical proposition than one might think; consider Leonid’s comments in his recent post about New Zealand’s anti-court criticism bill.

This could also involve a more open nomination process. I saw nothing particularly wrong with the selection process of Justice Marshall Rothstein. His “confirmation” hearings, while in reality non-binding, at least gave those interested a look into the mind of a man who would serve on the SCC. We can have these hearings without devolving into an American three-act-play, or a challenge to the independence of the institution. The fact that Justice Rothstein’s hearing was a model of decorum is an example of this working well.

Goldenberg’s piece underlines the problems with the American approach, but I think it paints far too rosy a picture of our courts.  The Americans understand the consequences of their system and are taking part in it. Canadians, as Goldenberg seems to admit, do not. This is not a fact of which we should be proud.

 

 

Repurposing Constitutional Construction

Is Randy Barnett and Evan Bernick’s theory of originalist constitutional construction relevant to Canadians?

Randy Barnett and Evan Bernick’s important essay “The Letter and the Spirit: A Unified Theory of Originalism” has been available for some time already, but it is still worth a comment here. Professors Barnett and Bernick have great ambitions for their project, hoping that it will serve to rally and reconcile the adherents of most if not all of the various forms of originalism ― which Benjamin Oliphant and I once described as “a large and ever-growing family of theories of constitutional interpretation” ― and rather fractious one, too. Indeed, although Professors Barnett and Bernick also think that their approach can serve to shore up the distinction, sometimes said to be evanescent, between originalism and living constitutionalism, a version of their theory, albeit justified on grounds different from those that they put forward, might serve to reconcile originalism with much of what the Supreme Court of Canada says and does about constitutional interpretation.

The “unified theory of originalism” seeks to achieve what others, it is often said (including by at least some originalists), failed to do: constrain originalist judges, in particular in those cases where the original meaning of the constitutional text is not enough to do dispose of the dispute. “New originalist” theories, such as those previously put forward by Professor Barnett, sharply distinguished constitutional interpretation ― “the activity of ascertaining the communicative content of the text” (3) ― and constitutional construction ― “the activity of giving that content legal effect” (3). The text, as originally understood, might not tell us how a given dispute ought to be settled, and so a court would need to develop further rules, consistent with but not dictated by the text, to resolve the controversy. But originalist theories that accepted the interpretation-construction distinction tended to have little to say about how courts should go about articulating these rules. Indeed, Professor Barnett previously argued that constitutional construction is not an originalist activity at all, since it is, by definition, not a function of the original meaning of the constitutional text.

Not so, Professors Barnett and Bernick now argue: construction not only can but must be originalist. When “the letter” of the constitution, the original public meaning of its text, understood in its context, is not enough to dispose of case, the court’s construction of the constitution must be guided by its original “spirit” ― that is, the purposes animating the text being applied, or indeed the constitutional text as a whole. These purposes are not the intentions of the constitution’s framer’s as to the effects it would produce in addressing the specific dispute at hand ― which will often be non-existent, and might be inconsistent with the text even when they exist. Rather, they are “the functions” that the constitutional provisions being applied were meant to serve “at the time each constitutional provision was enacted”. (15) Although this approach to constitutional construction is thus a form of purposivism, the purposes to which it gives effect are not those of the court or of society at the time of adjudication, but those of the constitution’s designers. The focus is on “the design principles that explain the specific provisions and general structure of the Constitution”, (41) understood at the appropriate level of abstraction.

The reason why this approach to construction is justified, indeed required, has to do with the nature of the relationships between the judges, the constitution, and the citizens subject to it. According to Professors Barnett and Bernick, judges (as well as all other government officials) are fiduciaries; they exercise discretionary powers and their “decisions … bring the government’s coercive power to bear upon us to our detriment, or that prevent the government’s power from being used to our benefit”. (19) Judges enter into their fiduciary relationship with the people by swearing an oath “to support this Constitution” and, like parties to a contract, they must perform their undertaking in good faith. Specifically, when the letter of the constitution leaves them with discretionary decisions to make, judges must not seek to exercise their discretion so as “to recapture foregone opportunities” (24) to implement their own constitutional preferences instead of “supporting” the constitution that was ratified (and amended) by the people, and so “to change the Constitution through adjudication” (31).

This justification might be of limited interest outside the American context. While thinking of government officials as fiduciaries might be helpful, Canadian judges do not swear “to support” the Canadian constitution. In fact, their oaths do not refer to the constitution at all, but rather to their “duties” or “powers and trusts”. As for the notion of good faith, it is a latecomer to Canadian contract law, or perhaps a foundling, and was no part of it in either 1867 or even 1982 ― though arguably that’s beside the point, because the Canadian judicial oaths do require judges to act “faithfully”. So I’m not sure if thinking of judges as having explicitly foregone opportunities for constitutional rectification in the course of adjudication is especially helpful in Canada. Certainly many Canadian judges do not think of themselves as having made any such undertaking. Having repeatedly argued that the state cannot dictate the contents of people’s conscientious obligations ― whether in the case of the citizenship oath or in that of the Law Society of Ontario’s “statement of principles” ― I will not insist on telling judges how to think of theirs.

But that doesn’t mean that Professors Barnett and Bernick’s ideas about how judges ought to engage in constitutional construction are irrelevant to Canada. The case for requiring fidelity to what they call the spirit of the constitution ― to the purposes for which the constitution’s provisions were designed and to what Lord Atkin, in the Labour Conventions Reference, described as “its original structure” ― does not, I think, depend on the wording and import of Canadian judicial oaths, or on the applicability of contractual principles of good faith. It rests, rather, on the nature of activity of judging and of interpretation. The idea that interpreters are to identify the purposes of legislation, the reasons for which it was enacted, and apply legislation in a manner that furthers these purposes is a longstanding one. As Lon Fuller pointed out in a passage from The Morality of Law that I have discussed here, it was captured in Haydon’s Case, (1584) 3 Co Rep 7a:

for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:

1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.
And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

To apply this to constitutional rather than statutory texts, some minor adjustments are in order, notably to account for the fact that constitutions are not (primarily) enacted against a common law background, but the substance of this principle is still relevant in the constitutional context ― all the more so since Canadian constitutional texts are, for the most part, statutes in form.

And indeed the Supreme Court has often endorsed a purposivism that appeals to the sort of originalist considerations on which Professors Barnett and Bernick would have the courts focus. For example, in R v Big M Drug Mart [1985] 1 SCR 295, Justice Dickson (as he then was) held that that

[t]he meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. … [T]he purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. (344; underlining in the original, paragraph break removed.)

To say that courts are to look for the functions constitutional provisions were intended to have at the time of their framing is simply a different way of putting the same thing. And this passage from Big M is not unique, as Mr. Oliphant and I show in the article referred to above, and also in the follow-up piece looking at “Originalist Reasoning in Canadian Constitutional Jurisprudence“.

Of course, notwithstanding Justice Dickson’s admonitions in Big M, the Supreme Court of Canada has not been consistently originalist ― far from it, though as Mr. Oliphant and I demonstrate, it has been more originalist than living constitutionalists in Canada and elsewhere care to admit. The warning, arguably implicit in Justice Dickson’s comments, and explicit in at least Supreme Court cases warning against judicial re-writing of the constitution in the name of purposivism, which Professors Barnett and Bernick reiterate, has gone unheeded in some noteworthy Canadian cases, such as those that gave “constitutional benediction” to the alleged rights of organized labour. Precedents, such as Big M, articulating what might well be the right constitutional theory are no guarantee that this theory will be applied in a principled or consistent fashion. As William Baude suggests in a recent essay exploring originalism’s ability to constrain judges, “originalism can still have constraining power, but mostly for those who seek to be bound”. (2215) But those members of the Canadian judiciary who do indeed seek to be bound by the constitution could, I think, usefully consider the argument advanced by Professors Barnett and Bernick as a guide in their endeavours.

Charter Rights and Charter-Lite

How not to resolve the tension between the principles of constitutional and administrative law, and how to actually do it

Audrey Macklin, University of Toronto

The Supreme Court’s 2012 decision in Doré signaled the apparent victory of Team Administrative Law over Team Charter: discretionary decisions engaging Charter rights — dubbed ‘Charter values’ for this purpose — would henceforth be decided according to principles of administrative law applicable to discretion rather than constitutional principles applicable to rights infringement. This meant that judges called upon to review exercises of discretion that impaired Charter rights/values would defer to the administrative decision maker’s determination, and only set it aside if it was ‘unreasonable’.  Although Dunsmuir indicated that constitutional issues would attract a stricter standard of review (correctness), Doré subordinated the constitutional dimension of a decision to its discretionary form in order to winnow down one of the few remaining bases for non-deferential review. The reassurance offered by Team Administrative Law was that judicial deference in administrative law is not so different from elements of judicial deference built into the Oakes test. According to the Court,

while a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence works the same justificatory muscles: balance and proportionality.

Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a ‘margin of appreciation’, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.[1]

I dispute the Court’s attempt to plot administrative and constitutional review on the same axis. First, the replacement of Charter ‘right’ or ‘freedom’ with Charter ‘value’ obscures the recognition of rights and freedoms in play.  Secondly, the methodology proposed in Doré purports to marry a simplified proportionality analysis with Dunsmuir’s deferential reasonableness review. In my view, this jurisprudential mash-up respects neither the primacy nor priority of Charter rights and produces instead a Charter-lite approach to review of discretion. Curial deference toward the outcomes it produces exacerbates the dilution of rights protection. It also creates negative incentives for governance and the rule of law by making the executive less accountable for Charter breaches committed via discretion than by operation of a legal norm.

For present purposes, I will highlight the second and third defect of Doré, the proportionality analysis. The normative primacy of Charter rights means that a proportionality analysis in the context of rights adjudication is not neutral as between rights and freedoms protected by the Charter and other interests, entitlements or ‘values’.  To denominate an interest as a right is to recognize its distinctive importance. A Charter right intrinsically ‘weighs’ more (by virtue of being a right) than something called an interest, value or entitlement[2].   Doré’s re-labelling of Charter right as Charter ‘value’ obscures this implication of rights recognition.  More significantly,  the simplified proportionality analysis commended by the Court simply requires decision makers to identify the Charter ‘value’ in play and then ‘balance’ it against competing objectives. In effect, it suppresses the normative primacy of a Charter right. This demotion is not rescued by remedial italics. Exhorting decision makers to engage in what Abella J. called  ‘a robust proportionality analysis consistent with administrative law principles’ does not assist, precisely because it does not reckon with the relevant administrative law principles.

The standard of review in Doré is reasonableness.  A failure to accord sufficient importance to a Charter right (or value) is a question of weight, and the Court’s statement of administrative law principles for over fifteen years have emphatically insisted that deferential review of discretion precludes reweighing the factors relevant to the exercise of discretion. Doré does not depart from this admonition against re-weighing. So if an administrative decision maker undervalues the importance of protecting Charter values/rights against fulfillment of the statutory objectives that are the daily preoccupation of that decision maker, deferential review will have nothing to say. (That is, if the court actually defers; claiming to apply a standard of reasonableness while actually reviewing on a standard of correctness can avoid unpalatable outcomes but only at the cost of introducing other pathologies.)

A Charter right, once established, also asserts normative priority. A rights bearing individual need not justify the exercise of a Charter right; rather, the state must justify infringing it, and the state’s burden is a heavy one.  These requirements flow from the intrinsic weightiness of rights. The stages of the test are designed to ensure that limiting a right serves important objectives, actually advances those objectives, and limits the right no more than required to achieve the objective. Only after clearing each of those hurdles does one arrive at the ultimate balancing of the last step, in which the failure to accord sufficient weight to the Charter right may yet yield the conclusion that the government has not discharged its burden.

The confounding feature of discretion, of course, is that it presupposes that the person has no right to a particular outcome (indeed, the outcome may, in this technical sense, be a ‘privilege’), but insofar as the Charter is implicated in the decision, the individual should be regarded as a rights bearer.

While Doré does instruct decision makers to assess the necessity of limiting the Charter protection in order to achieve statutory objectives, the Court provides no practical advice about how to do that. On its face, it encourages a mere balancing of the Charter as one factor among others. Perhaps the Court in Doré intends to convey the normative primacy and priority of the Charter and all that is entailed when it enjoins decision-makers to ‘remain conscious of the fundamental importance of Charter values in the analysis’[3].   If so, it should say so more explicitly, because it would be subverting its own problematic jurisprudence on re-weighing.

Another entry point into the disjuncture between administrative and constitutional review is the judicial posture toward ministerial decisions. It exposes a fundamental tension between the democratic impulse that underwrites deference and the counter-majoritarian dimension of constitutional rights adjudication. Judges are entrusted with adjudicating the Charter not only because of their legal expertise, but also because of their independence from government. Some Charter cases engage questions of redistribution that resist straightforward classification as state infringement of individual right, but many Charter challenges do conform to type. The judiciary’s real and perceived detachment from the legislature and the executive matters to the legitimacy of rights adjudication when government actors are alleged to have breached the constitutional rights of individuals subject to their authority. Yet, standard of review jurisprudence currently justifies deference by reference to democratic delegation.  Quasi-judicial tribunals who enjoy a measure of relative independence enjoy no more or less deference than front line bureaucrats and possibly less than ministers of the crown. The independence of the administrative decision maker from government does not matter to deference.

But in Charter litigation, proximity to the political branch of government pulls in the opposite direction – decisions by elected officials (legislators) are distrusted precisely because they might be inclined to trade off individual rights for political gain through appealing to majoritarian interests. In other words, democratic legitimacy, political acumen and access to expert staff may incline courts to display particular deference to Ministers in judicial review of discretion, but this translates awkwardly into a rationale for deference where the Charter is at issue. The fact that an administrative decision maker is also high-ranking elected official is not a reason to defer to the balance he or she strikes between protection of individual rights and advancement of other public objectives (statutory or otherwise). It may even be a reason not to defer.

The foregoing does not suggest that decision makers with authority to interpret law should not consider the Charter when exercising discretion.  Their valuable ‘field expertise’ may enhance the fact finding process, the elaboration of the statutory scheme  and the richness of the evidentiary foundation. Some individual decision makers may also produce legally sophisticated and cogent Charter analyses. Many will not, either for lack of ability, time, resources or independence, or some combination thereof. There is simply no basis for a presumption that a decision maker’s ‘field expertise’, which may contribute constructively to some aspects of a Charter analysis, equips the decision maker to manage all aspects of a Charter analysis. On judicial review, judges should certainly pay respectful attention to the reasons given by decision makers exercising Charter-impacting discretion. Sometimes the reasons may be persuasive, and a judge should be as open to benefiting from a rigorous and compelling set of reasons in the same way he or she is open to persuasion from high quality submissions by counsel, analyses by law clerks, or opinions of fellow judges.

In other words, the arguments in favour of Charter jurisdiction do not explain why deference is owed to their Charter outcomes. Nor do arguments about why courts should defer to the exercise of discretion on non-Charter matters automatically extend to those aspects of discretion that implicate the Charter. Yet Doré commits both of these errors.  The slippage is exacerbated by the fact that Court in Doré equips administrative decision makers with a Charter-lite methodology that is approximate, vague and incomplete, starting with its problematic invocation of Charter values, to its account of proportionality.

Lower courts and various Supreme Court judges have already revealed diffidence toward Doré, either by subjecting it to critique or effectively ignoring it. Going forward, I propose that a constructive approach to review of discretion engaging Charter rights should contain the following elements: First, a Charter right is a Charter right, regardless of whether it is infringed by operation of law or discretion; conclusory labelling it a ‘value’ obscures rather than clarifies.

Secondly, a Charter right weighs more than other interests, and the graver the impact of the violation, the more it weighs. Thirdly, the independence of the decision maker from political influence matters. Proximity between the decision-maker and the legislator provides no reason to defer to a balancing of individual Charter rights against majoritarian interests.

Fourthly, where no or inadequate reasons are provided for the exercise of discretion that infringes a Charter right, curial deference neither requires nor authorizes retrofitting reasons to support the result reached by the administrative decision-maker.

Finally, the extent to which the discretion in structured and guided through constitutionally valid legislation, regulation or ‘soft law’ matters. Where the exercise of discretion will routinely and predictably limit Charter rights (e.g. in civil or criminal commitment, parole, immigration detention, child apprehension, extradition, etc.), legislators can and should stipulate the purposes for which the discretion is granted, and identify the factors relevant to the exercise of discretion.  If these provisions withstand an ordinary Charter challenge (including the Oakes test), then the individual exercise of discretion within those demarcated constitutional boundaries should benefit from greater deference than exercises of broad, general and unstructured discretion.  Legislators and administrative agencies should be encouraged to structure discretion.  It advances the rule of law goal of publicity. But if the legislator declines to structure the discretion, courts should not reward opacity by undertaking to generate the best optimal justification for the outcome, just as they should not reward the absence of [adequate] reasons by generating better ones.[4]

Whether these considerations travel under the rubric of reasonableness, correctness, proportionality or Oakes, or some other label matters less than that they receive proper and explicit attention. After Multani, David Mullan correctly (and reasonably) concluded that there is ‘room for deference to the discretionary judgments of statutory authorities exercising powers that have the potential to affect Charter  rights and  freedoms’, but in order to prevent devaluation of those rights and freedoms ‘there should be recognition  that the framework within which deference operates will often, perhaps invariably need  to be different than in the case of judicial  review of administrative action that does not affect Charter rights and  freedoms’.[5] Justice McLachlin (as she then was) correctly observed that many more people have their rights determined by administrative decision makers than by courts. The quality of Charter protection they receive should not depend on who makes the determination.



[1]
Doré, at paras. 56, 57.

[2] Lord Bingham recognized this in the UK context: R (Daly) v. Secretary of State for the Home Department, [2001] UKHL 26.

[3] Doré, at para 54.

[4] Ideally, this should incentivize legislators to be more transparent in structuring and defining the scope of discretion in legislation.  For a thoughtful elaboration of this idea, see Paul Daly, “Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms” (2014) 65 Supreme Court Law Review (2d) 247.

[5] “Administrative Tribunals and.Judicial Review of Charter Issues After Multani” (2006–07) 21 N.J.C.L. 127 at 149.

The Charter Conscription

The trouble with governments forcing citizens to advance their constitutional agendas

In his Policy Options post on the federal government’s denial of funding under the Canada Summer Jobs Programme to those who do not share its views on reproductive and equality rights, Brian Bird wrote that the government “has weaponized the Charter, using it as a sword against nonconforming citizens”. As I have already noted here, I think this observation is fundamentally correct. But Mr. Bird’s metaphor doesn’t quite capture what is going on.

It is not just, or perhaps even so much, that the Canadian Charter of Rights and Freedoms is being used as a weapon against citizens. After all it is true that, as Jennifer Taylor pointed out in her defence of the government’s policy in the CBA National Magazine, anti-abortionists “are free to promote their views on social media, fundraise from private donors, and advocate against abortion in certain spaces to those willing to listen”, though the space for advocacy is being narrowed ― a point to which I will return. But if the Charter is not yet being used to take away people’s rights (except when it really is, as in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038), it is already being help up as a banner under which increasing numbers of citizens must be conscripted to advance the government’s agenda of protecting some real or purported constitutional rights.

The federal government’s endeavour to enlist the recipients of Canada Summer Jobs funding in the service of productive Charter and “other” rights, and Charter values too, in the bargain, is not an isolated one. In Nova Scotia, Ontario, and British Columbia, law societies ― which are, though people apparently forget this, not private clubs but regulatory instrumentalities of the state ― have sought to ensure that law schools respect the equality rights of gays and lesbians by denying accreditation to one that conspicuously fails to do so. In Ontario, the law society is also demanding that all lawyers acknowledge an (inexistent) obligation to “promote equality, diversity and inclusion”.

In this context, the insistence of Ms. Taylor and what few other defenders the federal government has that “[t]he government shouldn’t be funding activism against constitutional rights when the Constitution is the supreme law of Canada” is rather selective. While the issue in the case of the Summer Jobs Programme is public funding, in other cases it is accreditation or licensing that cost the government nothing (or, in the case of lawyer licensing, is highly lucrative). Yet the government’s reasoning in these different cases is essentially the same. It seeks to ensure that individuals or groups subject to its control act consistently with its agenda, defined ― hypocritically, as I will presently argue ― as a constitution-protecting one. Whether the instrument, in each case, is a subsidy, a license, or some other regulatory tool, is beside the point ― certainly as a matter of political morality but also, I would suggest, as a matter of constitutional law.

Now, the professed adherence of those who would force others to advance their “constitutional” agenda to the Charter is, in my view, selective to the point of hypocrisy. I have already argued, here and elsewhere, that the federal government in particular is guilty of “playing favourites” with the constitution, as indeed are large parts of Canada’s legal community. Something similar is happening here too. For instance, the self-anointed defenders of the Charter ignore its section 32(1), which provides that the “Charter applies … to the Parliament and government of Canada … and … to the legislature and government of each province”. The Charter, by its own terms, does not apply to or bind private parties, and it is wrong to invoke it to justify the imposition of rights-protecting obligations on those on whom it was not intended to impose any.

And then, there is the fact while governments seem increasingly happy to impose their duty to uphold some Charter rights on others, they would do no such thing with other rights, which they deem less pressing or less in need of widespread compliance. For example, while Law Societies are much alarmed by the fact that a law school might discriminate on the basis of sexual orientation, nobody seems especially concerned by the fact that a different law school in the same province apparently conditions its hiring decisions on the prospective candidates’ commitment to social justice or “equity in scholarship” ― freedom of opinion, academic freedom, and the right not to be discriminated against on the basis of political belief be damned. The federal government doesn’t want to fund anti-abortionists, but would it object to funding, say, a women’s group working to dilute the presumption of innocence or other protections available to men accused of sexual assault? Or would deny benefits to a crime-victims’ group campaigning against the Supreme Court’s understanding of the right to be tried within a reasonable time?

These last two examples show, by the way, that, as much as we may love the Charter, the precise contours of its protections can and ought to be debated ― and that it’s not a given that the scope of what are currently recognized as Charter rights should never be restricted. Now, I hasten to add that I personally think that undermining the presumption of innocence would be disastrously wrong, and I’ve argued here that the Supreme Court’s decision in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631, which imposed strict time limits on criminal trials, is more defensible than its numerous critics allowed. But these are my opinions, and I really don’t think that the government should seek to impose them on those who happen not to share them. Similarly, I do not think that the government should seek to impose the Supreme Court’s misguided opinions about the purported “rights” of trade unions on people like me. One can support the constitution while seeking to have it amended; one can certainly support the Charter while seeking to have some interpretations of it by the Supreme Court overturned; and, in any case, in a free society, no citizen ― as opposed to an office-holder ― is under no a duty to support the constitution at all.

But governments and their acolytes have no time for such complexity. They are convinced that anything less than enthusiastic universal support for whatever definition they happen to espouse of whatever rights they happen to prioritize is a threat to these rights and to the constitution as a whole. This is simply not so. To Ms. Taylor “[i]t seems self-evident in 2018 that an anti-abortion organization should not receive federal government funds to hire summer students”, since funding anti-abortionists would threaten “the Charter rights of women, like the right to autonomy over their own bodies”. What should, instead be self-evident, though it manifestly isn’t, is that anti-abortion advocacy, whether federally funded or not, does not by itself impede anyone’s access to abortions. Unless governments themselves decide restrict access, this advocacy is so much hot air. Similarly, the creation of a homophobic law school out in British Columbia doesn’t reduce gays’ and lesbians’ access to any of the other law schools in Canada. And, needless to say, my or anyone else’s failure to “acknowledge” a purported obligation to “promote equality, diversity and inclusion” doesn’t take anything away from the rights that various persons or groups have under the equality-protecting provisions of the Charter or human rights legislation.

Yet in all these situations the existence of expression that contradicts rights claims (such as anti-abortionist propaganda) or indeed silence that is often unfairly interpreted to do so (such as failure to “acknowledge” whatever “obligations” the Law Society of Ontario invents) is deemed harmful. There is, in reality, no harm other than the hurt feelings of vocal factions ― whose membership is in no way coterminous with the groups on whose behalf they purport to speak. But if someone’s hurt feelings give the government the right to impose that person’s views on everyone else, there is nothing the government cannot do. Under the guise of an impassioned defence of the Charter, those who adhere to this logic of empowering government are actually working ― wittingly or not ― to remove constitutional barriers on its powers, so that the full weight of these powers can be brought to bear on ideological minorities.

Already, the room for dissent is shrinking. To repeat, Ms. Taylor points out that anti-abortionists remain “free to promote their views on social media, fundraise from private donors, and advocate against abortion in certain spaces to those willing to listen” (emphasis mine). But, as the emphasized part of that sentence suggests, some spaces for public advocacy have already been closed off to them. In Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2016 ABQB 734, the Alberta Court of Queen’s Bench upheld a city’s decision to ban anti-abortionist advertising, which was neither especially strongly worded nor particularly visually upsetting (though the website of the organization promoting was both), from its public buses. It was, I have argued here, a “disturbing if not perverse” decision, inconsistent with Supreme Court precedent; I further explained that its reliance on a specious argument to the effect that the people who might see the ads at issue were a “captive audience” was specious and unsupported by authority. But there it is ― and if the decision stands (there is, I take it, an ongoing appeal), governments will be allowed to ban the communication of anti-abortionist ― and otherwise obnoxious ― messages except perhaps to those who already agree with them. And of course, they will not need to stop at censorship. On the same logic that allows government to deny subsidies to organizations based on their views or agendas, it should be possible to deny them or their donors tax credits, which after all are just another form of subsidy, putting them at a distinct disadvantage when it comes to fundraising too. Nor need the government stop at interfering with the freedoms of ideologically-driven organizations. How about requiring anyone who wants to receive money from Employment Insurance or Old Age Security to submit an “attestation” similar to the one required of applicants to the Summer Jobs Programme? They too might use their money to advocate against abortion rights! There is nothing in Ms. Taylor’s ― or the federal government’s ― position that would prevent such an imposition.

The constitution binds the government. It limit its freedom of action. It does not, however, bind, constrain, or even command the unconditional support of citizens or the organizations that citizens form. The government cannot conscript citizens into a pro-constitutional task force; it cannot bind them to constitutional obligations in a way the constitution itself conspicuously does not. Citizens remain free peacefully to challenge the constitution in whole or in part, and to contest the way in which it has been interpreted by the courts. The government may not demand that citizens refrain from doing so, or induce them to refrain. The government, to be sure, need not encourage or subsidize contestation ― but only so long as it does not encourage or subsidize support either. If money is offered, it must be offered on equal terms to the holders of all views. And if this means that less money will be offered in various programmes, subsidies, and tax credits ― so much the better.