Criticizing the Supreme Court

Why we should vigorously dissent when the occasion presents itself.

What is the generally accepted scope of criticism for the Canadian judiciary?

This question was brought into stark relief last week, with a post from co-blogger Leonid Sirota and a similar post from me criticizing, in no uncertain terms, Justice Abella’s recent comments about the role of the Supreme Court in Canadian society. Leonid received criticism for his post, with others positing that there should be a presumption of good-faith when criticizing the judiciary.

It strikes me that the general reaction, while itself in good faith, ignores the nature of judicial decision-making in modern day Canada. The so-called “countermajoritarian difficulty” is, to some, a non-starter for discussion in Canada, because Parliament and the provinces (read: Canadians) themselves gave the strong-form power of judicial review to the courts in the 1982 constitutional negotiations. Within this argument is an admission that the court’s role—itself a product of democratic consensus—cannot usefully be criticized on democratic grounds. It is reflective, according to Justice Abella, of a broad consensus among Canadians that the court should be advancing values and principles that at one point were the responsibility of the legislature.

So be it. But with great power comes great responsibility. And if we are to accept a role for courts in legislating, then courts should be subject to the very same criticism that is leveled at politicians of all stripes. If courts are ruling on matters central to who we are as Canadians, and if they are doing so because we gave them that power through democratic channels, we should be responsible for monitoring our choice. In that sense, the judiciary’s great power should be checked by watchful criticism just as Parliament’s judgment is criticized.

The response to this is predictable, and it is raised by Justice Abella: the difference between the judiciary and the legislatures in our system is so important that it is given constitutional protection. Judicial independence is a cherished principle because it allows the courts full scope to check majoritarian passions, which is sometimes necessary in a society based on constitutionalism and the Rule of Law. In this sense, we should not undermine judicial independence through robust criticism of the judiciary, lest it invite enterprising Trumpian politicians to rail against the courts and reduce the public’s trust in these hallowed institutions.

The conflation between judicial independence and criticism is quite unfortunate. Judicial independence is indeed an important constitutional requirement, one that should be preserved. But judicial independence should not stop us from criticizing the judiciary when it goes too far, in light of other constitutional principles—including the separation of powers. Parliament is supreme within constitutional boundaries, but this does not stop any one of us from vigorously criticizing parliamentarians, even with invective language. Even lawyers, defenders of the institutional integrity of law, do this on Twitter from time to time when talking about Justin Trudeau, Doug Ford, Jim Watson, etc etc.

If one views the court as carrying immense power, it is natural to err on the side of promoting vigorous, powerful dissent rather than muddy agreement or assumptions of good-faith. We can always assume good-faith, but that gets us nowhere near the substantive justifications for a court decision, nor does it allow us to criticize a particular judge’s thought process and reasoning. Something may be in good-faith but totally and completely contrary to fundamental law; or it may be the result of several logical fallacies, or an oversized view of the judicial role unsupported by our history or traditions. It may be inevitable that we have to mention a judge’s name in criticizing her thought process, and if judges are public figures, they should expect nothing less. In this sense, short of the marginal cases where one lobs horrible insults, the judge and her worldview are inseparable from the things she says and the public pronouncements she makes.

In other words, if a judge of a particular court views her job as deciding value judgments, that same judge cannot then hide behind judicial independence as a protection against vigorous criticism. The Charter did not entrench courts. It entrenched a Constitution, the basis of which derives from popular support represented by legislatures. We, including those in the legal profession, have the right and the responsibility to vigorously criticize judges. If a line is to be drawn, it should be drawn inclusive of this important principle. In the same vein, in a society where judges carry great power, histrionics and celebration of those same judges should be avoided, much in the same way that we view politicians with a hint of distrust. This is not a malevolent consequence of our system, but it should be the natural reaction of human beings who have delegated broad powers to others to govern them.

Reading from a Palimpsest

The Supreme Court of New Zealand holds that declarations of inconsistency are available when Parliament disregards the New Zealand Bill of Rights Act

I have previously written about the litigation concerning the power of New Zealand courts to make formal declarations to the effect that an Act of Parliament is inconsistent with the New Zealand Bill of Rights Act 1990. This litigation has now reached its conclusion with the New Zealand Supreme Court’s decision in Attorney-General v Taylor, [2018] NZSC 104. The Court holds, by a bare 3-2 majority, that this power does indeed exist. The decision is interesting for what the judges say, what they suggest, and what they do not say; at least from a theoretical perspective, it might be of some interest to Canadians, as well as New Zealanders.

The case concerns a 2010 statute that disenfranchised prisoners serving sentences of less than three years. (Longer-term prisoners were already disenfranchised by then, and the consistency of denying them the ability to vote with the Bill of Rights was not in issue.) The Attorney-General, having told Parliament that this statute was inconsistent with the Bill of Rights Act before its enactment, conceded the inconsistency, but denied the ability of the courts to issue a formal declaration to the effect that such an inconsistency existed. He had lost at both the High Court and the Court of Appeal.

There are three sets of reasons: what might be described as a quasi-majority opinion by Justice Ellen France, joined by Justice Glazebrook; a concurring opinion by Chief Justice Elias, who largely shares Justice Ellen France’s approach (hence my labelling the latter a quasi-majority); and a dissent by Justice O’Regan, joined by Justice William Young. (For the purposes of writing about New Zealand, I shall follow the local convention of mentioning the first name of a judge to distinguish her or him from a colleague—not necessarily from the same court—who shares that judge’s surname.)

Justice Ellen France starts from the well-established proposition that, even though the Bill of Rights Act contains no provision authorizing remedies for its breach (equivalent, say, to section 24 of the Canadian Charter of Rights and Freedoms), “in order for the Bill of Rights to be effective, the courts had to provide remedies for breaches”. [29] For Justice Ellen France, declarations of inconsistency are just an additional remedy that can serve this purpose. There would need to be “statutory language” to prevent the courts from granting this particular remedy; [41] in its absence, they can do so. Justice Ellen France points out that, by its own terms, the Bill of Rights Act applies to Parliament, and that while it explicitly prevents the courts from refusing to apply inconsistent legislation, the specificity of the provision doing so suggests that other remedies against inconsistent statutes are not categorically excluded.

Moreover, Justice Ellen France rejects the Crown’s submission that legislation inconsistent with the Bill of Rights Act effectively changes the contents of the rights the latter “affirms”, and thus cannot be regarded as inconsistent with it. Rather, “the Bill of Rights remains as the standard or palimpsest albeit Parliament has exercised its power to legislate inconsistently with that standard”. [46] Justice Ellen France also rejects the argument that a declaration should not be made since it is inconsistent with the judicial function and it will have no further consequences. A declaration “provides formal confirmation” of the “rights and status” of the person to whom it is granted, of his or her legal position, even in the absence of any further relief. (On this point, Justice Ellen France refers to the Supreme Court of Canada’s recent decision in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40.) In any case, a declaration provides vindication for the infringed right, and might be useful should the matter be revisited by an international instance or by Parliament itself.

That said, Justice Ellen France pointedly explains that, while “the Court of Appeal canvassed the relationship between the political and judicial branches of government and the role of the higher courts under the New Zealand constitution”, she does not “undertake a similar exercise”. The purpose of the declaration is to provide such vindication as can be provided consistently with the Bill of Rights Act to the person whose rights have been infringed—not to goad or guide Parliament. While the Court of Appeal had embraced the view that declarations were part of a constitutional dialogue between the legislative and the judicial branches of government, no judge of the Supreme Court so much as mentions the word “dialogue” in his or her reasons.

As noted above, Chief Justice Elias largely agrees with Justice Ellen France. In addition, she emphasises the courts’ inherent jurisdiction (recognized by statute) to “administer the law”, and their statutory power to declare what the law is even if they cannot grant any additional relief. The Chief Justice also stresses “the fundamental nature of the enacted rights (declared as such in the legislation)”, [102] and says that while Parliament is free to legislate in disregard of these rights, their scope can only be modified by an amendment to the Bill of Rights Act, not merely “by inconsistent action”. [103] Indeed, the declaration of inconsistency is address “to those whose rights are affected”, instead of “serving “to assist Parliament in its function, as the Court of Appeal suggested”, [107] a position with which Justice Ellen France expresses her agreement (n87).

The majority judges leave a number of significant issues unresolved—notably that of just when a declaration, which is a discretionary remedy, ought to be granted in response to an infringement of a right protected by the Bill of Rights Act. But they do not endorse the Court of Appeal’s suggestion that formal declarations should be a last resort. While they provide little guidance beyond that, this suggests that declarations may now become a relatively unexotic feature of New Zealand’s constitutional landscape.

Justice O’Regan is none too pleased. He accepts “that effective remedies should be available for breaches of the Bill of Rights Act”. [124] The question, though, is whether a standalone declaration of inconsistency can be such a remedy. It is one thing for a court to point out, in the course of deciding other issues, that a statute is inconsistent with the Bill of Rights Act — this has been done before; it is another to address the question of inconsistency if it is the only issue between the parties, and when nothing else follows an affirmative answer.

In such circumstances, Justice O’Regan says, there simply isn’t anything for the courts to do. Although the Bill of Rights Act provides that it applies to Parliament, it also prevents the courts from refusing to apply inconsistent legislation, and thus is not truly a

limitation on Parliament’s power to legislate. It is at least arguable that to the extent that there is a breach of the Bill of Rights resulting from the passing of inconsistent legislation, it is not of a character for which the courts are required to fashion a civil remedy. After all [the Bill of Rights Act] removes the only truly effective remedy from consideration. [133]

In any case, the bare declaration of inconsistency might not even count as a “remedy” at all, let alone an “effective” one. Justice O’Regan worries that such a declaration “may be simply ignored, with the consequential danger of the erosion of respect for the integrity of the law and the institutional standing of the judiciary”. [134] He is also concerned about “the considerable expenditure in money and resources” [143] that might result from what he sees as pointless litigation about abstract questions of consistency with the Bill of Rights Act. And, after all,

We have had the Bill of Rights Act now for 28 years and a declaration has never been made. … It can hardly be said that this has undermined the objective of the Bill of Rights Act to affirm, protect and promote human rights and fundamental freedoms in New Zealand. [144]

I don’t think that Justice O’Regan is right about this. He sees the matter in absolute terms: in the absence of declarations of inconsistency, the Bill of Rights Act has already provided some level of protection for rights and freedoms; at the same time, even if declarations are available, the level of protection will remain low, since “the only truly effective remedy”, which is to say invalidation of inconsistent legislation, is still off the table. The majority, by contrast, approach the matter in relative terms. For Justice Ellen France and the Chief Justice, what matters is that the availability of declarations will improve the protections provided by the Bill of Rights Act. Considering that essentially symbolic remedies exist elsewhere—for example, very low damages awards that are supposed to “vindicate” rights violated by the executive—the view that another such remedy constitutes a real reinforcement of rights-protection is, I think, more coherent with the big picture of public law.

The majority are also right to reject the Attorney-General’s arguments based on implied repeal of the Bill of Rights Act by inconsistent legislation. Although neither Justice Ellen France nor the Chief Justice raise this point, in my view the interpretive role of the Bill of Rights Act—section 6 of which provides that “[w]herever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”—strongly suggests that it must have a meaning independent both of prior and of subsequent legislation. (Of course, legislation that explicitly amends the Bill of Rights is possible, and only requires a simple majority in the House of Representatives to pass; but the parliamentary majority must, nevertheless, at least be willing to go to the trouble of enacting it).

Justice Ellen France’s palimpsest metaphor is apt. Legislation inconsistent with the Bill of Rights Act adds another layer to the pages of the statute book, but they do not fully erase the rights and freedoms inscribed underneath them. Depending on the purpose for which one reads the statute book, one must sometimes focus on the inconsistent statute (applying it notwithstanding the inconsistency) and sometimes on the Bill of Rights Act (when ascertaining and declaring the inconsistency), but both layers continue to exist.

Speaking of metaphors, I think that the majority do well not to follow the Court of Appeal’s embrace of the “constitutional dialogue” theory. In an article published in the New Zealand Universities Law Review, I argued that, despite its superficial attractiveness as a means to address a “majoritarian malaise”—the worry about a  sovereign Parliament’s ability to define or deny the rights of minorities—, this theory is not well-suited to the constitutional context of New Zealand (or any polity that adheres to Parliamentary sovereignty. It makes little sense to speak of dialogue when one of the supposed interlocutors is free to simply ignore what the other has to say, as a sovereign Parliament is free to ignore the courts’ pronouncements about rights.

I concluded that article by writing that

New Zealand’s constitution is one that makes Parliament supreme, and the courts cannot mitigate this fact. They can only point out the abuses of this supremacy that sometimes occur, and they will do so more clearly and with more force if they do not pretend that what they are faced with is a provisional, revisable opinion stated as part of a conversation among equals rather than an abuse of power.  (917)

This is what the Supreme Court has done. So much the better.

Delusions of Grandeur

Justice Abella sets out a vision of the Supreme Court as arbiter of national values

I didn’t realize that writing op-eds for the media was part of the judicial job description, but apparently it is. There was of course Brett Kavanaugh’s instantly-notorious op-ed in the Wall Street Journal. And, ten days ago, Justice Abella followed in now-Justice Kavanaugh’s footsteps, with an op-ed of her own, in the Globe and Mail. The op-ed is an adaptation from a speech given on the occasion of the 70th anniversary of the Supreme Court of Israel; but Justice Abella, presumably, thinks that it deserves a Canadian audience as well as an Israeli one.

Why that ought to be the case, I am not quite sure. Part of the op-ed is meaningless twaddle: we have, Justice Abella tells us, of instance, a “national justice context” that is “democratically vibrant and principled”. Part is rank hypocrisy: the Supreme Court’s “only mandate is to protect the rule of law”, says the person who has devoted many a talk to criticizing the very idea of the Rule of Law and arguing that it had to be replaced by something called the rule of justice. Part is rotten grammar: “human rights is [sic] essential to the health of the whole political spectrum” (emphasis removed). But all of it is a self-assured presentation of a role for the judiciary that has nothing to do with the Rule of Law, and this bears commenting on.

Justice Abella begins by proclaiming that the Canadian Charter of Rights and Freedoms sets out “a uniquely Canadian justice vision, a vision that took the status quo as the beginning of the conversation, not the answer”. One might be tempted to think that this is a reference to section 33 of the Charter (which, for all its flaws, is indeed “uniquely Canadian”), or at least to some version of the “dialogue theory”, according to which courts and legislatures both participate in the elaboration of constitutional rights. But this would be a mistake. Justice Abella likes her judges “bold”, and her legislatures obedient. The “conversation” to which she refers only involves the members of the Supreme Court.

And while she begins by seemingly conceding that “[t]he Charter both represented and created shared and unifying national values”, Justice Abella then argues that it is the Supreme Court that has developed “a robust new justice consensus for Canada”. It is the Supreme Court that serves as “the final adjudicator of which contested values in a society should triumph”. (Wait… didn’t the Charter already represent and create shared values? How come these values are, after all, contested?) Fortunately, says Justice Abella, the Canadian public and its elected representatives have fallen into line and followed the Supreme Court’s moral leadership: “[c]riticisms and questions were of course raised, but usually with civility.” If Canada is committed to “pluralism and diversity”, rather than “obliteration of the identities that define us”, that’s because “[a]ll this came from the Supreme Court”, and its teachings were accepted by both “the public” and “the legislatures”.

Hence the empowerment of the Supreme Court, coupled with its independence, is all to the good. “[D]emocracy, Justice Abella insists, “is strengthened in direct proportion to the strength of rights protection and an independent judiciary”. Indeed, the very “humanity” of a country would be imperiled by attacks on judicial power. Hence Justice Abella’s plea in defence of the Supreme Court of Israel, delivered, she says, in her capacity not only “as a judge”, but also “as a citizen of the world”. (I assume Justice Abella has not been shy about criticizing the feebleness of the judiciary in countries like Russia and China, too, though I don’t think she has published op-eds about them. Perhaps she has even criticized the backward ways of the United Kingdom, Australia, and New Zealand, which haven’t seen it fit to remit the adjudication of contested values in their societies to the courts, though I can recall no op-eds on that subject either.)

I have no firm views about whether Canadian judges should go around the world lecturing other countries about how to organize their constitutional arrangements, whether in their capacities as citizens of the world or as public officials. (How many ordinary citizens of the world are, after all, invited to give pompous speeches, and allowed 1200 words of op-ed space in a national newspaper to bring them to hoi polloi?) I do, however, have some thoughts on the substance of Justice Abella’s views regarding the role of the Supreme Court in Canada’s constitutional structure. Co-blogger Mark Mancini has already presented his, but my take is somewhat different, so I hope the readers will forgive a measure of repetition.

Mark stresses the fact that, if the Supreme Court is to be the arbiter of national values, it is not at all clear why it should be staffed by judges—that is to say, by former lawyers, who are not trained for or especially good at this task. Why not economists and philosophers instead? Mark writes that

if courts make abstract, political, and resource-intensive value judgments for the society on the whole…—if we have sold the legislature down the river—then they should at least be good at it.

And if the courts are not, after all, to be replaced by philosophical-economic colloquia, that’s probably because what we really want is for judges to stick to law.

I largely agree with this, but there is an additional move in Justice Abella’s argument that Mark does not address: the claim that adjudication by the independent Supreme Court is somehow democratic and that, indeed, democracy is strengthened the more powerful the court is. I think it is a crucial argument. After all, legislatures, which Mark doesn’t want to “sell down the river”, are also staffed by people who tend to have no particular expertise in either economics or philosophy, and who are subject to all manner of perverse incentives to boot. Why should they be making value judgments for society? The generally accepted (which isn’t necessarily to say correct) answer is, because they are democratic institutions. That’s why Justice Abella wants to claim the democratic mantle for the institution that she extols (as do others who make similar arguments).

How successful is the claim? In my view, not very successful at all. It starts from the premise that there is more to democracy than elections. Let us grant that. Still, there are important question that need answering. What is this “more” that a polity ought to have, beyond periodic elections, to be counted as democratic? Jeremy Waldron would mention things like separation of powers, meaningful bicameralism, and “legislative due process”, rather than judicial review of legislation. Justice Abella doesn’t even consider these possibilities, and thus does not explain why they are not sufficient. She thus does little to justify judicial review of legislation at all, let alone the robust, value-defining version that she favours. Others would add federalism and federalism-based judicial review, but not necessarily the rights-enforcing variety.  And even granting the insufficiency of structural devices to foster and protect genuine democracy, one can doubt whether it is this form of judicial review that we should favour. Aren’t more limited versions, along the lines of John Hart Ely’s “representation reinforcement” or the Carolene Products footnote 4‘s special protection for “discrete and insular minorities”) sufficient? Justice Abella has no answer to this objection either.

Instead, Justice Abella is content to assert that more judicial power is better, including for democracy. Surely, this isn’t necessarily so. Justice Abella herself, and most Canadian lawyers, would likely be horrified at the idea of judicial review enforcing property rights and freedom of contract against democratic majorities. They would insist, as Justice Holmes did in his dissent in Lochner v New York, 198 US 45 (1905), that “a constitution is not intended to embody a particular economic theory … It is made for people of fundamentally differing views”. (75-76) (The only exception to this, of course, concerns labour unions; fundamentally different views regarding their role in the economy have been read out of the Canadian constitution by the Supreme Court, led by Justice Abella.) On reflection, everyone—including Justice Abella—would agree that the protection of rights by an independent judiciary is not, in fact, always good. At the very least, it matters which rights are protected—and if it is the judiciary that effectively decides this, then it matters how it uses its power to do so.

This brings me to Justice Abella’s most remarkable claim—that it is indeed the Supreme Court that defines not just our constitutional rights, but Canadian values more generally. Mark characterizes this is “judicial supremacy”, but I prefer using this term to mean unyielding judicial control over constitutional meaning (the way Professor Waldron does here, for example). Justice Abella’s ambition is not so limited; she is not content to decide what our supreme law means; she wants to be the ultimate authority on what Canadians believe in. This is shocking stuff. In a free society, there can be no such authority, whether in the Supreme Court or elsewhere. In a free society, one cannot point to the constitution and say, Thatcher-style, “this is what we believe”. Citizens in a free society disagree, including about fundamental values. A constitution is only a judgment, albeit one reached by a super-majority—not, mind you, an actual consensus—about which of these values will be translated into legal constraints that will be imposed on the government until the constitution is amended. The courts’ job is to interpret these legal constraints, as they interpret other law; it is not to dictate “which contested values in a society should triumph”.

Justice Abella thinks that she is some sort of great and wise philosopher, and as such is qualified to dispense advice, both judicially and extra-judicially, on how people should organize their affairs and even what they should believe in. Her ladyship is labouring under a sad misapprehension in this regard. She is no great thinker. She has no answer to obvious questions that her arguments raise, and no justification for her extravagant assertions of authority. It is unfortunate that a person so utterly misguided holds an office with as much power and prestige as that of a Supreme Court judge. Still, as important as this office is, it is less significant than Justice Abella imagines. We remain free to reject the values the Supreme Court would have us subscribe to. When these values amount to uncritical polite deference to philosopher-kings in ermine-collared robes, we have very good reason to do so.

Judicial Supremacy Defrocked

Justice Abella’s recent speech should remind us that courts are fallible.

In a recent speech reprinted in the Globe and Mail, Justice Abella of the Supreme Court again offered a robust defense of the judicial role and the profoundly benevolent impact of the Supreme Court in Canadian constitutional history:

Integration based on difference, equality based on inclusion despite difference and compassion based on respect and fairness: These are the principles that now form the moral core of Canadian national values…the values that make our national justice context democratically vibrant and principled…[a]ll this came from the Supreme Court.

She goes further:

A Supreme Court must be independent because it is the final adjudicator of which contested values in a society should triumph. In a polarized society, it is especially crucial to have an institution whose only mandate is to protect the rule of law.

On one hand, it is good to see that Justice Abella no longer finds the Rule of Law annoying. But on the other hand, her comments should give us pause. She presents a vision of a Supreme Court that decides what Canadian values are, and then imposes them on the society generally. We should first call this for what it is: judicial supremacy, in which rights are not recognized as much as they are created out of whole cloth at the discretion of the Supreme Court. Abella J seems to accept this in Saskatchewan Federation of Labour, where she “gives benediction” to a right to strike. “Benediction” is defined as “the utterance or bestowing of a blessing, especially at the end of a religious service.” True to form, the Supreme Court is the high priest, bestowing us with rights as only a supreme institution can.

Glibness aside,  I do not mean to use the term “judicial supremacy” in a bombastic way, but rather in a technical legal sense. I mean it in the sense that Justice Abella clearly views the role of the Supreme Court as having the last word on constitutional matters. But her view goes even further: she thinks that the Supreme Court is a freestanding arbiter that is institutionally capable of rending final judgments on contests between values for the society on the whole.

I’m not sure this is normatively justifiable or whether it’s even a structural or textual feature of the Canadian Constitution. The legislature still has an important role to play in vetting laws for their constitutionality and making important value judgments that may impact constitutional rights—in most cases, the legislatures are probably better at this than courts. But this is a bigger fish to fry. Assuming for my purposes that Justice Abella’s description of what courts do and should do is accurate, maybe this state of affairs could be justifiable on the basis that courts are comparatively better at making the sorts of value judgments that arise in constitutional matters. If Justice Abella’s framing is true, so the argument goes, the essence of constitutional adjudication is value judgment; courts adjudicate constitutions, and therefore courts, over time, will be expert in value judgments.

But no one has ever presented evidence that this is empirically true, and I am not sure anyone ever could. Justice Abella herself recognized this in Doré, when she developed a doctrine of deference premised on the concept that courts are worse at constitutional decision-making than administrative decision-makers. In fact, courts are not institutionally suited to balance the sort of polycentric considerations that go into difficult and resource-laden value judgments. And judges are trained in the law, which on many modern accounts, is not even the purpose of law school. There are good reasons to doubt the ability of the courts to even begin to understand the weight of the task at hand.

If we are to have judicial supremacy, and judicial supremacy is fundamentally about final value judgments, I am not sure why we solely appoint legal practitioners to the Supreme Court. I only half-joke when I say that we could populate the court with people trained in the different perspectives through which value judgments could and should be made. Economic reasoning, for example, could be extremely helpful here. As Lon Fuller said, there is a point at which we could trade-off certain values in favour of others. We should attempt to develop theories by which we can anticipate and calculate the costs of adopting one right over another; or the reliance interests associated with this precedent over that one. What’s more, philosophy could be helpful. Moral and normative reasoning about how people should live is clearly within the interest of Justice Abella when she judges cases.

I think that the Justice Abellas of the world who argue that law is simply about “balancing values” are caught between a rock and a hard place. On one hand, if they make that argument, they should accept that law has no claim to empire over adjudication. Adjudication is not what is taught in training for lawyers; and there are people who are better qualified to assess the different tradeoffs of values and the practical impact those changes have. But if they reject this proposition, then they must accept that there is a locus of “law” somewhere to be found in adjudication. It follows that we should train lawyers and judges to first, do no harm; determine the meaning of constitutional terms according to objective standards.  Values may be instantiated in the law, but one must first interpret that law to determine those values. It shouldn’t be the case that judges enter legal inquiries with an idea of the values they seek to advance.

The task of judging was supposed to be defined by “passive virtues,” with courts possessing neither force, nor will—only judgment (The Federalist, No. 81). Justice Abella evidently believes in a vision of courts that are not only supreme but confidently so. Judgment has turned into arrogant finality that decides not only the narrow constitutional issue before the court, but the larger value judgment which is settled for all time.  There is no democratic recourse to the ever-expanding domain of constitutional empire if courts make abstract, political, and resource-intensive value judgments for the society on the whole.  If courts are going to do this—if we have sold the legislature down the river—then they should at least be good at it.

The Supreme Court’s Hubris in Mikisew Cree Nation v Canada

In Mikisew Cree Nation, the Supreme Court dealt with a novel argument: does the duty to consult [DTC] attach to legislative action? The Court, rightly, answered no, holding unanimously that the Federal Court had no jurisdiction under the Federal Courts Act over a judicial review brought against Parliament’s law-making power. But the Court split into four sets of reasons on the substantive matter of whether the DTC applies to legislative action. While rejecting the challenge in this case, Karakatsanis J in the lead opinion left the door open to these sorts of challenges in the future. For the reasons I’ll explain below, I think this is a profoundly unprincipled way of reasoning about the issue—first, because it is an attempt to expand judicial power in violation of the separation of powers, and second, because it undermines the national certainty the Supreme Court is designed to provide.

The facts of the case are simple. In 2012, two omnibus bills affecting environmental protections were introduced and passed in Parliament, receiving Royal Assent. The Mikisew, with proven Aboriginal rights under Treaty 8, alleged that the Crown had the DTC them on these legislative changes to the environmental protection regime—arguing that it affected their constitutionally-protected rights. The Federal Court agreed with the Mikisew, holding that they were entitled to notice of the parts of the bills that would affect their interest, as well as an opportunity to make submissions. The Federal Court of Appeal reversed, concluding that the Federal Court had no jurisdiction over the matter.

The first opinion in the Supreme Court was written by Karakatsanis J. On the issue of jurisdiction, Karakatsanis J held that the Federal Courts Act only contemplates judicial review of Crown actors (defined as Her Majesty in right of Canada in s.2(1) of the Federal Courts Act) or federal boards, commissions, or other tribunals. On the first count, Karakatsanis J concluded that Her Majesty in right of Canada refers only to Crown actors in their executive, rather than legislative, capacity [15-16]. As well, the Crown is not a “board, commission, or other tribunal” as defined in ss. 2(1) and 2(2) of the Federal Courts Act.

This is enough to dispose of the case. But Karakatsanis J went on to address the merits, concluding that the DTC, which applies to “Crown conduct,” can only apply to executive action—not the actions of Ministers introducing legislation (acting in their legislative capacity). While Karakatsanis J acknowledged the “overlap” between executive and legislative functions in Westminster systems, here what was challenged was a direct exercise of legislative power under the Part IV of the Constitution Act, 1867 [33]. This challenge, to her mind, implicated the separation of powers, parliamentary sovereignty, and parliamentary privilege [35-37]. But Karakatsanis J did not close the door to the challengers completely. She first noted that “the Crown’s honour may well require judicial intervention where legislative may adversely affect—but does not necessarily infringe—Aboriginal or treaty rights” [3]. She then concluded her reasons by saying that “other protections may well be recognized in future cases” [52].

Abella J, concurring on the jurisdiction point, nonetheless wrote separately to say that the Court’s aboriginal law jurisprudence, specifically pertaining to the honour of the Crown, compelled a result that the DTC applied to Parliament. To her mind there was no “doctrinal or conceptual justification which would preclude a [DTC] in the legislative context” [81]. The “formal label applied to the type of action that the government takes…”, to Abella J, has no impact on the sanctity of rights protected in s.35 of the Constitution Act, 1982—whether that action is legislative or executive. Abella J would introduce a requirement that legislatures consider whether their chosen legislative process affecting Aboriginal rights “…accords with the special relationship between the Crown and Indigenous peoples of Canada” [93].

Brown J also wrote separately, while concurring on the jurisdictional point, to attack Karakatsanis J’s mixed message on the DTC in a legislative context. To him, Karakatsanis J’s reluctance to close the door completely on the issue would “throw this area of the law into significant uncertainty” [104]. To Brown J, “…the entire law-making process—from initial policy development to and including royal assent—is an exercise of legislative power which is immune from judicial interference” [117]. This is because, while the separation of powers in Canada is not rigid, this does not mean that the roles of the legislative and executive branches are “indistinguishable for the purposes of judicial review” [119]. The history of parliamentary sovereignty—for example, the hard-fought adoption of the Bill of Rights of 1688—compelled the conclusion that “…parliamentary and judicial functions have been clearly separated from Crown control” [128]. And so, Karakatsanis J’s opinion was “searching for a problem to solve (while at the same time declining to solve it)” [135]. This situation would invite courts to, potentially in the future, take a greater supervisory role over the legislative process in a way that is at odds with the separation of powers [135, 142].

Finally, Rowe J also wrote separately, outlining mainly the practical problems with an approach invited by Karakatsanis J. Specifically, what types of legislation would trigger the DTC? Who would need to be consulted? And at what stage in the legislative process would consultation take place? [165].

***

There is much in this decision worth noting, but I want to focus on Karakatsanis J’s problematic reasons and their implications for the separation of powers and the Supreme Court’s general method of deciding cases.

Each of the opinions decided the case on the question of jurisdiction. That is, the Federal Court had no judicial review jurisdiction over the decision of a legislature—not a Crown actor per se nor a federal “board, commission, or other tribunal.” This should have decisive, and Karakatsanis J should have gone only so far as to explain that finding—particularly for the purposes, for example, of preventing forum-shopping whereby a new claimant could bring relief against the Crown in a provincial superior court and make the same arguments (s.17 of the Federal Courts Act contemplates a system of concurrency where claims can be brought against the Crown in provincial or federal court so long as statute does not say otherwise). Obviously, the jurisdictional finding in this case dovetails with a finding that legislation is not “Crown conduct.”

In consideration of this, Karakatsanis J should have ended her comments at the finding that the court had no jurisdiction because the enactment of legislation is not “Crown conduct.” For her to go further and leave the door open to future legislative challenges based on the honour of the Crown–which also undergirds the DTC– is severely flawed for two reasons: (1) it is not prescribed by the structure of the Constitution, nor would it be a good policy idea and (2) it introduces uncertainty.

Brown J is right to point out the contradictory nature of Karakatsanis J’s opinion. On one hand, she writes that parliamentary sovereignty, the separation of powers, and parliamentary privilege preclude the challengers’ preferred outcome. This is all correct for the reasons outlined by Brown J and Rowe J. But then, in service to unknown goals, she decides that these principles can be violated just a bit—that in a future case, they could be compromised to permit the sort of challenges sought by the claimants here where rights are adversely affected by “the Crown” in enacting legislation even when the legislation itself is constitutional (see Karakatsanis J’s reasons at paras 3, 25, 44 and 52). This means, to Karakatsanis J, that the separation of powers/parliamentary sovereignty are negotiable in a manner uncontemplated by the Constitution. Her guiding light seems to be the hobby-horse of changing circumstances; some future time when the separation of powers and parliamentary sovereignty will give way to allow these sorts of challenges.

Query why these principles preclude challenges based on a failure to abide by the DTC now, while in the future, they could allow challenges based on an “adverse effect” on Aboriginal rights. The same principles apply. Under the current doctrine, in order for a DTC violation to occur, asserted Aboriginal rights must be “adversely affected” (Rio Tinto, at para 31).  But Karakatsanis J now purports to say that a DTC violation and adverse effect are two different things–and that the principles of parliamentary sovereignty and the separation of powers could allow an independent claim based on the latter in the future. The honour of the Crown is not a free-standing right to challenge legislation, and most importantly, no matter the legal label, the Crown does not enact legislation. 

Notwithstanding this unprincipled distinction drawn by Karakatsanis J regarding the DTC, it is completely unclear why the constitutional principles relied on by Karakatsanis J would operate to, in the future, allow an “adverse effect” challenge based on the amorphous “honour of the Crown.” While the separation of powers and parliamentary sovereignty are principles that are necessarily variable in our constitutional monarchy, that variation is included in the structure, not as a product of the times. For example, Karakatsanis J herself notes that the Cabinet and the legislature operate in some ways as a piece—this is a basic feature of Westminster government. But as Brown J noted, the separation of powers does not expand and contract to permit something tomorrow that isn’t allowed today; in this case, a constitutional challenge that is fundamentally unknown to the legal system. Karakatsanis J frames the requirements of the separation of powers and legislative sovereignty in language that calls to mind a standard (see Brown J’s reasons at para 103). But these principles are rules that bind the actors in the constitutional system. They are only open to negotiation to the extent the Constitution prescribes that negotiation.

The target for Karakatsanis J—and more honestly, Abella J—seems to be the sphere of authority granted by the Constitution Act, 1867 to the legislature. Karakatsanis J seems to want to, slowly but surely, increase judicial oversight over that sphere and erode what the Constitution expressly contemplates. This is wrong simply because it is not prescribed by any constitutional text or principle. While the honour of the Crown is a constitutional principle, it is unclear why that principle is ill-served as applied to legislation by the existing Sparrow justification framework. In other words, why does the honour of the Crown compel the requirement of some new cause of action in violation of the very same principles relied on by Karakatsanis J?

The beneficiary of such a duty would not be Aboriginal peoples, but the judiciary. Its existence would expand judicial power beyond deciding cases towards ongoing supervision of the legislative process. This seems to be a legal fact wholly lost on the Supreme Court. It seeks to enlarge its power and process beyond its constating statue (the Supreme Court is simply a statutory court, no matter the pains it takes to say otherwise) and beyond the constitutional division and separation of powers. Judicial oversight of legislative acts could create distorted inefficiencies in our system of government that achieve no ends—in this case, I have doubts it would achieve the ends of reconciliation sought by the Court.

For some, this would be enough to counsel against the idea. But Karakatsanis J and Abella J seem to believe that this is required as a matter of policy. It seems, to them, that courts are able to vindicate the rights of Aboriginal peoples by monitoring the legislative process, and in fact, should in order to promote “reconciliation.” Even on this count, they fail. First, reconciliation would be an admirable goal if anyone, especially the Supreme Court, could adequately define what it means. But at any rate, the Supreme Court itself has recognized that its august halls are not suited to the promotion of Aboriginal rights (Clyde River, at para 24—an opinion jointly penned by Karakatsanis J). And this seems just logical. Why are nine patrician judges any better able to define reconciliation? Why should Aboriginal peoples have to spend years and thousands of dollars trying to define to these same nine judges what reconciliation is? This would be enough to question the wisdom of an approach advocated by Karakatsanis J and Abella J, but of course, there are also the practical concerns raised by Rowe J.

A final broader point about the Supreme Court’s method of deciding cases. Part of the reason for the Supreme Court’s existence is its ability to settle law. In fact, the Supreme Court was founded under s.101 of the Constitution Act, 1867 “for the better Administration of the Laws of Canada.” It does nothing of the kind when it leaves open the door just a crack to an argument that it otherwise rebuffed. This seems to be a repeat habit for the Court. In Gosselin, the Court did the same thing regarding positive rights under s.7 of the Charter. In Wilson, Justice Abella wrote separately to argue for a new standard of review framework in absence of arguments on that front, and despite acknowledging that a future case would have to deal with the issue. And for now, the separation of powers and legislative sovereignty preclude DTC-like legislative challenges—but not forever.

This method of deciding cases wholly undermines certainty. As Brown J notes, it invites enterprising litigants and judges to argue that this case—their case—is the one that was contemplated by the Court or a judge of the Court in Gosselin, or Wilson, or Mikisew. Courts should decide cases. If they seek to depart from precedent in the future, they should be able to do, according to generally recognized and principled criteria. But the Court shouldn’t write its own precedents with the express understanding that they will be overturned.

In a way, all of this expresses the Supreme Court’s hubris. It’s hard to believe that the Court would want to download onto the lower courts a general duty to supervise legislative action, especially when it would be structurally incompatible with the Constitution, practically difficult, and likely unsuccessful as a way to vindicate Aboriginal rights. What we should seek to avoid is a jurocracy, as Herbert Weschler once put it. But, with the door open to a some sort of DTC in the legislative context, we are well on our way.

Constitutionalism from the Cave

The constitution is a binding law, not just an incomplete statement of political ideals

The imbroglio with the Ontario legislature’s enactment of Bill 5 to restructure the Toronto City Council a couple of months before an upcoming election, the Superior Court’s declaration of that legislation unconstitutional, the threatened invocation of the “notwithstanding clause” to override that declaration, and the Court of Appeal’s restoration of what little sanity could still be restored by reversing the Superior Court’s decision has generated a great deal of commentary. Some of this commentary has been very imaginative indeed in coming up with constitutional arguments that would have advanced the commentators’ preferred policy agendas and forestalled the seemingly obvious legal conclusions.

Of course, such a creative argument had prevailed at the Superior Court, which (as for example co-blogger Mark Mancini, as well as yours truly, explained) ignored clear constitutional language on its way to finding that Bill 5 violated the guarantee of freedom of expression in the Canadian Charter of Right and Freedoms. Even more unorthodox reasoning was unleashed in attempts to argue that the Ontario legislature couldn’t actually invoke the “notwithstanding clause”, the constitutional text once again be damned. Mark has written about open letter in which professors who wouldn’t dream of treating originalism as a serious interpretive methodology suddenly turned original-intentist ― but that, at least, was an explicitly political text. Other arguments along similar, or even more outlandish, lines purported to be legal ones.

This outburst of creativity is, of course directly related to a certain way of seeing the constitution that is prevalent in the Canadian legal community (including, but not only, in the academy). On this view, the Canadian constitution ― especially, though not only, the Charter ― is not so much a law that courts must apply as a sort of shadow in Plato’s cave, a vague reflection of true constitutional ideals that the judges must discover and explain to us cavemen. The constitution’s text is not in any meaningful way binding on the courts;  it is only an inadequate approximation, one whose imperfections judges can and ought to circumvent in an unceasing quest to get a clearer view of the ideal constitution. And, of course, this ideal constitution, just so happens to enact the political preferences of the persons urging this view, and presumed (often not incorrectly) to be shared by the judiciary.

Perhaps the latest contribution to the post-Bill 5 constitutional free-for-all is illustrative. It is a post by Colin Feasby, over at ABlawg, arguing that section 3 of the Charter, though it ostensibly only guarantees the right of Canadian citizens “to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein”, really also applies to municipal and other elections, and to referenda. Now, I have learned a lot from Dr. Feasby’s law of democracy scholarship (which has also been cited and relied on by the Supreme Court!). But this post is nothing more than a call for the judiciary to wilfully re-write the constitution we have so as to bring it closer to an idealized view of what a good constitution ought to be according to Dr. Feasby (and many others).

Dr. Feasby argues that “the lack of constitutional protection for important democratic processes” ― such as municipal elections ― “is an unnecessary defect in our constitutional arrangement”. “Unnecessary” a word that I wouldn’t use, and as will presently be apparent, Dr. Feasby uses it advisedly. However, I agree with him to this extent ― the lack of constitutional protections for municipal institutions is indeed a shortcoming of our constitution, as I have suggested here.

Dr. Feasby, though, is not suggesting a constitutional amendment to remedy the defect he identifies. Rather, he “proposes a way that the Supreme Court of Canada can remedy this defect”. He argues that “courts have a role in ensuring that the democratic process functions so that the sovereign will of the electorate may be expressed without distortion”, which is true, if somewhat beside the point in matters where the will of the electorate is not, legally speaking, sovereign, including in municipal elections. The question, though, is how far the courts’ role extends. Dr. Feasby thinks it allows the courts to embrace what he describes as a “purposive and … generous approach to interpreting Charter rights”, and “impose a rule” according to which

Where a government, Federal or Provincial, delegates a legislative role to a democratically chosen body or where a government, Federal or Provincial, effectively delegates a decision to the electorate in a referendum, section 3 of the Charter applies.

In other words, “a body elected in processes governed by section 3 cannot delegate its power to an elected body chosen by electors with lesser constitutional protections”.

Dr. Feasby anticipates two objections to his proposal. First, he expects people to argue that it would get in the way of worthy reforms of municipal and other institutions. His response is that “so long as those changes are consistent with the principles that animate section 3 of the Charter“, nothing would get in their way. Fair enough, I suppose. The other objection Dr. Feasby foresees is based on the concern about section 3 claims being brought by people who are not in the intended electorate for a given election (say, the residents of a municipality). Such claims should simply be rejected ― as would that of “Canadian citizens resident in Alberta” demanding “the right to vote in Provincial elections in Quebec”. That too seems fair enough.

There are other, more serious, problems with Dr. Feasby’s argument, however. A practical one is that, even in the form given to it by Dr. Feasby, it reaches very far indeed. Municipalities, band councils, and school boards are not the only entities that might be described as “democratically chosen” entities to which governments delegate legislative powers. Various professional bodies (such as law societies) and agricultural marketing boards come to mind; so do, perhaps, universities, whose powers ― which include the ability to regulate large swathes of student and staff conduct ― are ultimately exercised by (partly) elected boards and senates. (Whether the universities are subject to the Charter in at least some areas is an open question, but there are good arguments for that view.) It’s not at all obvious to me that, “the principles that animate section 3 of the Charter” can be usefully applied to such bodies, even assuming that they can be to municipalities and school boards. And it’s not at all obvious that the argument for rejecting the claims of persons excluded from the relevant electorate ― say, the consumers of professional services or of agricultural products ― can be dismissed as easily as  those of Albertans looking to vote in the Belle Province.

This problem becomes even more pressing if we take up Bruce Ryder’s suggestion “that a province that is bound by s.3 democratic norms shouldn’t be able to do an end run around them after creating subordinate governments” ― seemingly regardless of whether these “subordinate governments” are themselves meant to be democratically elected. If this principle were taken seriously, it would amount to a non-delegation doctrine on steroids, preventing the exercise of legislative power by undemocratic bodies ― which means pretty much all of the administrative state. Anti-administrativist though I am, even I don’t actually favour this approach. In truth, I don’t suppose that Professor Ryder favours it either. He simply makes an argument that furthers his preferences in a particular controversy, and doesn’t worry about its implications in future cases. I’m afraid this is symptomatic of the treatment of the constitution not as a law, but as a series of results-oriented propositions subject to permanent revision from one case to the next.

Equally symptomatic of this way of thinking is the fact that Dr. Feasby apparently does not see coming another objection, a principled rather than a practical one. This objection is, quite simply, that his proposal is a perversion of the constitutional text, a blatant attempt to expand it beyond what it was quite clearly designed to do, and what it not only originally meant but still means. Even if one believes that the constitutional text should be read according to the meaning of its terms today, “an election of members of the House of Commons or of a legislative assembly” does not mean “an election of members of a municipal council”, or “an election of the benchers of a law society”. Dr. Feasby invokes the “living tree” view of the constitution, but he advocates something different than just reading the text in light of evolving social mores or trying to use “progressive interpretation” to “accommodate[] and address[] the realities of modern life”, as the Supreme Court put it in Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698, at [22]. It’s not as if municipal election were a new phenomenon unknown to the framers of the Charter. It’s just that Dr. Feasby thinks that the Charter is only an imperfect statement of an “aspiration … to be a truly free and democratic society”, which can be given whatever contents a court, under the guidance of progressive advocates, can come up with in a given case.

Needless to say, I do not share this view. It is contrary to the terms of the constitution itself (specifically, section 52 of the Constitution Act, 1982, which provides both that “[t]he Constitution of Canada is the supreme law of Canada” (emphasis mine) and that “[a]mendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada” ― which says nothing about the Supreme Court amending the constitution in the absence of the political consensus required to do so. It is destructive of the Rule of Law. And it is especially galling because many of the same people who advocate this view of the constitution not as binding law but as merely suggestive of (their) political ideals demand that political actors ― such as the present Ontario legislature ― that do not fully share these ideals comply with judicial decisions based on them. I think it’s right to demand that political actors comply with the law, including the law of the constitution. But why on earth should elected officials comply, not with the law, but with the philosophical preferences people who are not elected to anything? There can be no real constitutionalism in Plato’s cave. It’s time to climb out.

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.