Category: Guest Posts

Montreal and Aboriginal Law

Is Montreal built on unceded Indigenous land? No, actually

Guest post by Maxime St-Hilaire

This post is translated and adapted (by L.S.) from the original version published at À qui de droit

I have recently had an email exchange with a colleague from McGill, and noticed that their signature included the following statement: “McGill University is located on unceded Indigenous land Tiohtià:ke – Montreal”. Tiohtià:ke is the Mohawk name of the Monreal area. As the colleague in question is not an expert in this area, I surmise that this assertion is in more or less common use at McGill. 

And not only there. For instance, on October 26, 2021, Radio-Canada’s “Indigenous Spaces” page published an op-ed by a “lawyer specializing in aboriginal law for about 10 years” under the heading “Montreal, unceded territory: what does the law say”? Here is an excerpt:

Montreal is an unceded Indigenous territory. This is an unchallengeable fact. You can search the archives night and day, you will find no evidence to the contrary. Never did an Indigenous nation give these lands to the ancestors of the non-Indigenous Canadians.

Indeed, what really happened was quite different. When Jacques Cartier made his first visit, having erected his cross at Gaspé, and when de Maisonneuve et Jeanne Mance first began settling the island, they didn’t ask for anyone’s permission. They unilaterally decided to take possession of these lands as if they had been unoccupied.

Already the following year [i.e. after the foundation of Montreal], the Guardians of the Eastern Gate of the Haudenosaunee Confederation (i.e. the Mohawk) set out on a reconnaissance mission to meet the new French settlers. A series of Iroquois raids on Ville-Marie [as Montreal was then known] follows, in an attempt to dislodge the invaders. Thus, by then, the Mohawks already occupied the Upper-Saint-Lawrence region.

Claims to the effect that these lands were unoccupied are rooted in the discovery myth, also known as the terra nullius doctrine.

Of course, there is a debate as to which Indigenous people occupied the territory of the island of Montreal. Anichinabé, Mohawk, Abénaki and other Indigenous nations may have done so at one point or another in their history. The island may have served as a gateway or a shared space. But this debate (which the nations concerned should settle themselves) takes nothing away from the fact that Indigenous peoples were present on the island before any of those whose ancestors got off a boat.

This gets any number of things wrong. The op-ed purports to answer the question “what does the law say?”. But as a matter of positive Canadian state law, the 2005 companion cases of Marshall and Bernard suggest that, in order to claim Aboriginal title to a territory, an Indigenous group must have occupied it exclusively (and “sufficiently”) at the moment of the British assertion of sovereignty. So far as Montreal is concerned, the relevant time is that of the Treaty of Paris and the Royal Proclamation: 1763. Yet at that point, the island of Montreal was not occupied by any Indigenous people in the necessary way.

Moreover, it is pointless to look for a cession in an area where, as a matter of fact, European settlement only occurred outside the territories occupied by Indigenous peoples ― as seems to have generally been the case in New France (see Michel Morin and also Sylvio Normand’s writings). Thus, even if we were to ignore the importance of the British assertion of sovereignty in Canadian law, and set the relevant time earlier, back to French settlement of Montreal, still it would be fruitless to look for cession or to describe this territory as “unceded”.

And furthermore, while French public law and treaties were not given effect by British and then Canadian law following the conquest of New France (see the 1996 Côté case), it is important to understand that France never applied to the terra nullius doctrine to the Indigenous peoples. Rather, alliance treaties were concluded with them. And, so far as international law was concerned, this doctrine was rejected by the Pope as early as 1537. The weight of the scholarly opinion was also against it.

Lastly, we must come back to two key historical facts. First, it is far from a given that the present-day Mohawk are the descendants of the Saint-Lawrence Iroquois, who had dispersed by 1580 (John P. Hart, Jennifer Birch and Christian Gates St-Pierre). And second, however that may be, and whatever the history of the Iroquois and Mohawk presence in the “Upper-Saint-Lawrence region” ― a region vastly larger than the island of Montreal alone ― the island itself was seemingly not occupied by the time of French settlement in 1642, let alone British conquest.

One final thing: let me point the reader to a series of posts (here, here, here, here and  here) over at À qui de droit on the myth of the “discovery doctrine”.

Rethinking Peace, Order, and Good Government in the Canadian Constitution

This post is written by Brian Bird.

The United States has life, liberty and the pursuit of happiness. France has liberté, égalité, fraternité. What is the calling card of the Canadian Constitution? It is peace, order and good government.

Apart from being a concise expression of the political philosophy that animates Canadian society, or at least the philosophy that is supposed to animate it, conventional – and I would say faulty – wisdom has developed around the quintessentially Canadian brand of constitutionalism. The prevailing understanding and analytic approach to peace, order and good government (POGG) has led us to astray with respect to this key element of our constitutional architecture.

Before identifying that prevailing (mis)understanding, let us take a look at the constitutional text. Section 91 of the Constitution Act, 1867 delineates matters over which Parliament has exclusive legislative jurisdiction – matters which, by virtue of that delineation, are off limits for the provinces.

Section 91 begins with the following words:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say …

What follows this paragraph is the enumerated list of classes of subjects over which the federal government has exclusive legislative jurisdiction: criminal law, national defence, banking and so forth.

The opening words of section 91 are revealing in at least three ways.

First, the concept of POGG precedes the list of subjects that fall exclusively within federal legislative jurisdiction. I suspect many if not most jurists in Canada envision POGG as residing at the end of the list, as a residual catch-all category. On the contrary, section 91 arguably contemplates legislation for the purposes of POGG as the first and foremost responsibility of Parliament.

Second, the list of subjects that follow the opening paragraph of section 91 are expressly said to be included for “greater Certainty, but not so as to restrict the Generality of the foregoing Terms”. In other words, the enumerated list of subjects under exclusive federal jurisdiction do not diminish the ability of Parliament enact laws for POGG. The conventional wisdom among most Canadian jurists is the opposite, that the list in section 91 curtails Parliament’s power to legislate for POGG.

Third, the power of the federal government to enact laws for POGG is only available where the topic of the law does not come within the areas of exclusive provincial jurisdiction. On a strictly textual basis, then, federal laws that are enacted in the name of POGG are invalid if the substance of the legislation reflects a head of provincial power as found in section 92.

This third consideration provides additional texture to the doctrine of paramountcy, which holds that a valid federal law will prevail over a valid provincial law to the extent the two laws clash. It would seem, based on the opening words of section 91, that there is no scenario in which there will be a division of power issue raised by the coexistence of a federal law enacted for POGG and a provincial law enacted for a matter listed in section 92. Parliament cannot enact legislation for peace, order and good government if the substance of that legislation falls within exclusive provincial jurisdiction.

Having taken a closer look at the wording and structure of sections 91 and 92, it seems inescapable that the proper starting point for determining whether Parliament can legislate for POGG is whether the legislation at issue falls exclusively within provincial jurisdiction pursuant to section 92. If the legislation can only be enacted by the province, it is constitutionally impossible for the same legislation to be enacted by Parliament for the purposes of POGG. This result, however, does not exclude the possibility of the legislation being valid under a specified subject of federal jurisdiction in section 91 and that, pursuant to paramountcy, such federal legislation would prevail over conflicting provincial legislation.

To a certain extent, then, the legal principles developed by courts that govern the ability of Parliament to legislate for POGG get off on the wrong foot. As these legal principles currently stand, Parliament can enact laws for the purposes of POGG in three scenarios: to address matters of national concern, respond to emergencies, and fill gaps in the division of legislative powers.

Given the text and logic of sections 91 and 92, the analysis of the validity of a federal law purportedly enacted to promote peace, order and good government should be reworked to feature two steps. The first step is to determine whether the federal legislation engages a matter coming within the classes of subjects assigned exclusively to the provinces. If the federal legislation encroaches on provincial jurisdiction, the federal legislation is invalid unless it can otherwise be saved – for example, by recourse to the enumerated list of federal subjects in section 91.

If the legislation survives the first step, the second step – tracking the opening words of section 91 – is to determine whether Parliament has made the law “for the Peace, Order, and good Government of Canada”. This language suggests a significant amount of latitude, so long as the legislation bears some rational basis to the three concepts. If that basis exists, the law is valid federal legislation.

If the federal law does not bear a rational basis to the promotion of POGG, Parliament might still be able to validate the legislation at this step by establishing that it falls within one of the classes of subjects listed in section 91. Assuming the federal legislation somehow satisfies section 91, it should be upheld by a court unless other constitutional constraints, such as the guarantees of the Canadian Charter of Rights and Freedoms, are at issue.

It is worth noting an important and, as far as I can tell, often overlooked aspect of the relationship between the list of federal classes of subjects in section 91 and the corresponding provincial list in section 92. The drafters of the Constitution Act, 1867 give us a hint of the rationale for even including a list in section 91 at all. Indeed, the collective structure of sections 91 and 92 lends itself to section 91 featuring nothing more than the general terms of the opening paragraph cited at the beginning of this post. Why did the drafters opt to go further and include specificity in the form of a federal list?

Besides a likely desire to give Parliament and the provinces a flavour of which matters fall within federal jurisdiction, the words that follow the federal list are revealing. Section 91 concludes by saying that “any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.”

In other words, the list of federal subjects in section 91 fall outside of the subject that appears at the end of the provincial list. Section 92(16) affords the provinces exclusive jurisdiction to legislate “Generally all Matters of a merely local or private Nature in the Province”. The closing words of section 91 preclude the possibility of a province enacting a law that pertains to a federal class of subject on the basis that the substance of the provincial law happens to concern a matter of a “merely local or private Nature in the Province”. Owing to the constitutional text, the provinces cannot attempt to legislate on a factually provincial matter that concerns interest, copyrights, the postal service or any other federal subject unless the provincial law can be sustained through recourse to another subject specified in section 92.

The novel two-step analysis for POGG described above challenges the current approach to this constitutional grant of legislative jurisdiction to Parliament. Perhaps the most problematic aspect of the current approach is the absence of a robust inquiry into whether the federal law under scrutiny promotes the three ends of peace, order and good government. The current approach focuses on three other concepts: national concern, emergencies, and gaps. In my view, this approach must be refined to ensure fidelity to the constitutional text and to the brand of federalism it enshrines.

Admittedly, this revamp of the POGG analysis may not yield different results in certain cases that have already ruled on legislation through the lens of this this constitutional provision. In the most recent Supreme Court ruling where POGG took centre stage, the majority’s opinion in References re Greenhouse Gas Pollution Pricing Act – an opinion that affirmed the federally enacted price on greenhouse gas pollution via the national concern branch – may also hold water under the novel approach. There are good reasons to say that the power to enact this law does not belong exclusively to the provinces (step one). And laws that seek to protect the environment – and by extension basic human welfare – serve the peace, order and good government of Canada (step two).

That said, there is also good reason to believe that recalibrating the POGG analysis may lead to different results in future cases. The concepts of peace, order and good government qualitatively differ from the concepts of national concern, emergencies and gaps. It seems intuitive to say that the former concepts are, in a variety of ways, broader than the latter. In short, it may be that the current approach to POGG shortchanges this grant of federal legislative jurisdiction.

Indeed, several existing federal statutes are arguably POGG laws. For example, the Firearms Act, Food and Drugs Act, Privacy Act and Canadian Human Rights Act do not fit neatly within the federal list in section 91. On the current test for POGG, these statutes would not satisfy the emergency branch. They may not satisfy the national concern branch, which remains a difficult needle to thread.

While these statutes likely satisfy the “gap” branch, this outcome also reveals a problem. Saying that POGG can fill gaps in the division of powers, without more, neglects to ask if the gap being filled is a law made for the peace, order and good government of Canada. The gap branch, as it now stands, does not ask whether the federal law is concerned with peace, order and good government.

This flaw in the current POGG test seems to echo the conventional wisdom that the division of powers in Canada is “exhaustive”. Yet, based on the text of sections 91 and 92, the division of powers is not exhaustive in the way that is often thought. If the subject of a law cannot be hung on a hook within the provincial or federal lists and cannot be said to further peace, order and good government, this is a law that no legislature in Canada can enact. The division of powers presents the field of subjects that can be treated by legislation in Canada, but it is not exhaustive in the sense that legislatures can enact laws about anything and everything. The field of legislative jurisdiction in Canada has boundaries. Parliament cannot enact a statute that defines water as H3O instead of H2O. While there is no provincial head of power that impedes this law, there is also no federal head of power or POGG basis that permits such a statute. This law is, subject-wise, out of bounds.

If the current branch-based approach to POGG shortchanges this head of federal power, does Parliament in fact enjoy far more legislative latitude? The answer is likely something less than “far more latitude”. In addition to the field and boundaries just described, the provinces enjoy exclusive jurisdiction to legislate generally on all matters “of a local or private Nature”. In other words, only the provinces can enact laws for local POGG. Besides this check on federal legislative power, there is also – as noted above – constraints imposed by other constitutional instruments such as the Charter.

I finish by noting an interesting interpretive question: must federal legislation for POGG serve all three concepts contained in this clause (peace, order and good government)? Or, alternatively, does the federal legislation only need to serve at least one of these concepts? I leave this intriguing issue, and others that inevitably spring from a consideration of the POGG clause, for another day.

Peace, order and good government may be the most famous phrase in the Canadian Constitution. Many people say the phrase encapsulates Canada’s political culture. It is therefore surprising to discover that, in terms of how this concept lives and breathes within our constitutional atmosphere, we have fallen far short of understanding it.

Constitutional Law Ruins Everything. A (sort of) response to Mancini’s “Neutrality in Legal Interpretation.”

This post is by Andrew Bernstein.

No! I am not an academic nor was meant to be.
Am a mere practitioner, one that will do
To settle a dispute, argue an appeal or two
When advising clients, the law’s my tool.
Deferential, if it helps me sway the court
Argumentative, and (aspirationally) meticulous.
Case-building is my professional sport
Trying my hand at theory’s ridiculous!
But I’ll dip a toe into this pool.

(With apologies to T.S. Eliot and anyone who appreciates poetry)

Also, this is a blog post, so no footnotes or citations. Sorry!

As a lawyer whose most enduring interest for the last 30 years has been Canada’s constitutional arrangements, it gives me great pains to confess to you that I have concluded that constitutional law ruins everything. Or, perhaps put more judiciously, the kinds of debates that we have about constitutional interpretation are not especially instructive in dealing with other types of legal questions, such as statutory or common-law interpretation. There are many reasons for this, but the central one, in my view, has to do with the fact that while reasonable people may disagree on the outcome of a statutory interpretation, or a question of common law, those people will largely agree on the method of conducting those analyses. In constitutional interpretation, we don’t have consensus on “how” so it’s no wonder that the outcomes can be so radically different.

What are we really asking courts to do when we ask them to resolve a dispute? There are no doubt some high-minded theoretical answers to this (“do justice between the parties,” “ensure that capitalism is never threatened,” “enforce institutional sexism, racism, ageism, ableism and homophobia”) but from a practitioner’s perspective, the answer is actually straightforward: sort out the facts and apply a set of legal rules to those facts. Overwhelmingly those rules come from a variety of legal instruments, such as statutes, regulations, by-laws, and other “outputs” of political institutions such as Parliament, legislatures or municipal councils. If these institutions they don’t like the judicial interpretation of what they have passed, they can change the instrument accordingly. Moreover, these institutions are democratically elected, so if citizens do not agree with the laws that get made, they can replace them at the next election. Although this “feedback loop” suffers from many inefficiencies and obstacles in practice, it is essential to maintaining the concept of self-government by majority rule. What this means is that courts know what they are supposed to be doing when they interpret statutes: they look for legislative intention, as expressed by the words of the document. While courts are entitled to employ whatever clues they might be able to find in things like the legislative history, they appreciate that those clues must be used judiciously, as one speech by one MP does not a legislative intention make. And courts appreciate that the words of the document ultimately govern – although compliance is less than perfect, courts generally understand that they are not to circumvent the meaning of legislation with some kind of analysis based on the instrument’s supposed “purpose.”

While it is frequently accepted that the objective of statutory interpretation is to discern legislative intent, the question of why we would want to do so is not frequently interrogated. After all, while it may make eminent sense to give effect to a law that was passed a week ago, why would a self-governing people want to be governed by legislation that was passed by a legislature that is no longer in session? Perhaps by a different political party? The answer is partially pragmatic (it would be awfully cumbersome to have to re-enact every law each time a legislature was dissolved) but the real reason is the existence of the democratic feedback loop. Statutory interpretation operates on the presumption that, if no legislature has repealed or amended the statute, the people (as represented by the legislature) are content with it as it stands. In fact, this is the reason why no legislature can bind a future one to things like supermajority requirements. Because it is the people’s current intention – and not their past intention – that governs.

Constitutional law is designed to be immune to the democratic feedback loop. At least some aspects of the constitution are specifically intended to limit democratic institutions. The essence of that aspect of constitutionalism is the protection of vulnerable and/or minority groups from the potential for ill-treatment by the majority. Sometimes these protections take the role of institutional structures (such as federalism, regional representation in central institutions, and, according to some, a separation of powers) and other times they are specific guarantees of rights that specifically limit government action: freedom of expression, equality, or even “life, liberty and security of the person.” Cumulatively, this constitutional architecture is supposed to create a balance between self-government and limited government, ensuring that Canadians can govern ourselves, while not permitting the majority to oppress minorities.

This sounds great in theory, but immediately creates a dilemma: who gets to decide on the limits of “limited government?” Someone has to, and (if the constitution is going to be effective at curbing democratic excess) it has to be a different “someone” than the majoritarian institutions that actually do the governing. And although there are different models around the world, in Canada (like our American neighbours), we entrust that job to the Courts. This is not an uncontroversial decision, for a number of reasons. First, it is not clear that courts are institutionally well-suited to the job, with their adversarial model of fact-finding and decision-making. Second, courts are presided over by judges, who are just (as Justice Stratas recently said) lawyers who have received a judicial commission. There is no reason to think they are especially well suited to weighing the interests that a complex society needs to achieve an ideal balance between, for example, liberty and security, or equality and religious freedom. Third, judges are famously unrepresentative: they are whiter, richer, more male, more Christian, older and more conservative than the population. Nowhere is this more apparent than the apex of judicial decision-making, the Supreme Court of Canada, which got its first female judge in the 1980s and has never had an indigenous or any type of non-white judge or a judge from the LGBTQ community. Eighty five of Canada’s ninety Supreme Court judges have been Christian, the other 5 have been Jewish. No Muslims, Hindus, Sikhs, or even (admitted) atheists . Nevertheless, these 9 judges get to make significant decisions that have a major impact on social policy. Since the Charter was enacted, the Supreme Court has had a major role in liberalizing access to abortion, permitting medical assistance in dying, liberalizing prostitution laws, freeing access to cannabis, prohibiting the death penalty, enhancing public employees’ right to strike, and many other social policy decisions that were different from the democratic choices made by legislatures. In Canada, most decisions to strike down legislation have tilted towards the liberal side of the political spectrum, but there have also been decisions (most infamously, relating to private health care in Quebec) that tilt more towards the conservative side. This is not inherent to the process of adjudicating rights: the United States Supreme Court has grown increasingly conservative in the last 20 years, striking down liberal legislation relating to campaign finance, voting rights, and only yesterday striking down pandemic limitations on gatherings in houses of worship.

The combination of anti-democratic process and anti-democratic outcomes that constitutional adjudication creates has been subject of concern and criticism since judicial review was created in Marbury v. Madison. This, in turn, has led to the development of theories that are designed to constrain judicial decision-making. While some of this may be results-oriented, at its core, the goal of all “court-constraining theories” of constitutional interpretation is to give constitutional decision-making a touchstone by which decisions can be evaluated. Readers of this blog will no doubt be familiar with these theories, such as textualism, or public-meaning originalism, which stand in contrast to what is sometimes referred to as “living tree constitutionalism” or (in Leonid’s catchy turn of phrase “constitutionalism from the cave”). While I will undoubtedly not do them justice, the “touchstone theories” posit that the meaning of constitutional rights are more-or-less fixed (although may need to be applied in novel situations) and it’s the job of the courts to find and apply those fixed meanings, while “living tree constitutionalism” allows the meaning of these rights to evolve over time, and it’s the job of the courts to decide when and how to permit that evolution to take place.

To use an over-simplified example, imagine a constitutional guarantee of “equality,” which (it is agreed) was understood to mean “equality of opportunity” at the time it was enacted. And imagine that 40 years later, it is established that the historical and systemic disadvantages suffered by certain groups means that merely providing equal opportunity proves insufficient to providing those groups with a fair outcome. Touchstone constitutionalists could suggest that although what constitutes “equality of opportunity” may have to change to meet changing social circumstances, but does not permit courts to go further and use the constitutional guarantee of “equality” to impose equality of outcomes. Living tree constitutionalists could posit that the guarantee of equality was intended to ensure that people do not suffer disadvantage because of their immutable characteristics, and if we now recognize that this can only be done by providing equality of outcome, then this is what courts should do.

What’s important to appreciate is that our protagonists on both sides are not disagreeing just on the outcome. They are disagreeing on the fundamental nature of the exercise. Touchstone constitutionalists believes that the courts’ job is essentially to be the “seeker” in a game of hide and seek, while the living tree constitutionalists believe that the courts are playing Jenga, carefully removing blocks from the bottom and building the tower ever higher, with its ultimate height limited only by how far they can reach.

Who is right and who is wrong in this debate? No one and everyone. In fact, as I read Mark’s post to which I am (ostensibly) responding, I understand his plea to be not that touchstones – regardless of how old they may be – are normatively a fantastic way to adjudicate modern problems but rather that the alternative to touchstones is anarchy (or Kritarchy), and that has to be worse. Similarly, critics of touchstone constitutionalism are concerned about being forever bound by the past, without providing a particularly good explanation of what could or should reasonably replace it without ultimately resorting to the idea that we have to trust our judges to make good decision. This of course, begs the question “if we are relying on someone’s judgment, why is it the judges and not the people’s through their democratically elected representatives?”

What am I saying? I’m saying that the “touchstone vs. tree” debate is actually a normative question, that people like to dress up as one that has an objectively ascertainable answer. But in truth, where you stand on this will really depend on your own personal value system, as informed by your own experiences. If you value predictability and stability, and/or the idea of judges making decisions about what is right, fair or socially appropriate is offensive to you, you may be inclined towards touchstone constitutionalism. If you value substantive outcomes, and see the judicial role as guaranteeing and enforcing rights as they evolve, you will be inclined towards the living tree. Of course, this is to some degree all a false dichotomy. There are many places available between either end of this spectrum and everyone ultimately ends up tends towards one of the more central positions. For example, it is difficult to find anyone who seriously doubts the correctness of Brown v. Board of Education, even though there’s at least an argument that certain touchstones informing the meaning of equal protection in the United States’ 14th amendment contemplated segregation. On the other hand, no matter how alive one’s tree might be, respect for a system of precedent is necessary if you are going to continue to call what you are doing “law” as opposed to policymaking by an unaccountable institution that has only faint markings of democratic accountability.

So why does constitutional law ruin everything? As I see it, is that this unresolvable dilemma in constitutional law has a tendency to bring its enormous baggage to other areas, and leave it there. But it’s not clear that these oversized duffles filled with decades of counter-majoritarian sentiment are really going to assist what I would consider to be the very different exercise of statutory interpretation (I’m well aware of the argument that the constitution is just an uber-statute and should be interpreted accordingly, but that’s really just an argument for touchstone constitutionalism so I will conveniently ignore it). Why? Because unlike in constitutional interpretation, we have broad consensus on how to go about the exercise of statutory interpretation entails: it entails trying to determine what the legislature intended by the text that it enacted. And although this exercise can be difficult at times, and reasonable (and unreasonable) people can often disagree, they are disagreeing on the outcome and not the process. No one truly suggests that the courts should play Jenga when interpreting statutes; they are always the seeker in a game of hide-and-seek, using well-understood tools and rules. Of late, we have been describing those as “text, context and purpose” but long before that catch phrase existed, we had the lawyer’s toolbox of logic, common sense, experience, and approximately 400 years of common-law jurisprudence on canons of statutory construction (well-defended by Leonid in his recent post). It’s true that these rules are convoluted and it’s not always straightforward to apply them. Some judges and courts give more weight to (for example) the purpose of statute and the presumption against absurdity, while others might be more interested in the intricacies of grammatical structure. But these are matters of emphasis, and the degree of variation relatively modest. In fact, there is a pretty strong consensus, at least among Canadian courts, about how the exercise of statutory interpretation ought to be conducted, and, in the main, it is done with amazing regularity.

OK so we have covered the constitution (where there is no agreement on the game, much less the rules) and statutes (where everyone is singing from the same hymnbook). What remains is common law, and it is probably the strangest of all these creatures because it is, by necessity, hide-and-seek but what you are looking for is Jenga blocks. There is, of course, an important touchstone courts and judges look to: precedent. But if you stretch far back enough, the touchstone itself has no touchstone other than “what judges think is best.” In many ways, it’s “law from the cave” but the cave is extremely old, dark, and you probably can’t see the exit, so you are stuck inside unless or until the legislature “rescues” you and replaces the common law rules. This leads to a fascinating problem: because it’s based on precedent, common law derives its authority from consistency. But because it’s judge-made, judges feel relatively free to remake it in appropriate circumstances. In many ways, it’s the worst of both theoretical worlds: it is bound by (some may say stuck in) the past and also readily changeable by judges. But somehow it works anyway, and with much fewer lamentations from the theorists who worry about either of these things (excluding, of course, administrative law, which by unwritten constitutional principle must be comprehensively re-written every ten years to keep a group of frustrated practitioners on their toes).

So in short, I endorse Mark’s sentiment that we need neutral principles in adjudication. But I disagree that they are in short supply. We have neutral principles in statutory interpretation, and they work as well as any system that is administered by a few hundred people across the country possibly could. We have essentially one neutral governing principle in common law analysis, which is “mostly follow precedent.” So what we are really talking about is constitutional law, where the debate between the touchstone cops and the living tree arborists is essentially unresolvable because when you scrape to the bottom it asks “what do you value in a legal system” and it’s no surprise that there isn’t universal agreement on this. But there is a strong consensus on how to engage in interpretation outside the constitutional context, and we should not let the constitutional disagreements obscure that.

In other words, constitutional law ruins everything. But I told you that at the beginning.

Guest Post: Marc-Antoine Gervais

It is my pleasure to announce a guest post today by Marc-Antoine Gervais, on the subject of declarations of invalidity as in rem judgments. The post is a response to Paul Daly’s recent post on declarations of invalidity in the aftermath of the Sullivan decision.

Marc-Antoine has a larger paper coming out in the McGill Law Journal on this subject (vol 66).

On Responsible Scholarship

A Reply to Stepan Wood, Meinhard Doelle, and Dayna Scott

Dwight Newman, QC, BA, JD, BCL, MPhil, DPhil, Professor of Law & Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan

Accusations of irresponsible scholarship are a serious matter, and they have an even graver dimension when they give the appearance of being framed and timed so as to attempt to interfere with academic contributions to a major public debate.  In this post, I address a recent paper by Stepan Wood, Meinhard Doelle, and Dayna Scott attempting to challenge my well-known carbon tax article.  I must express serious concerns with their characterization of my article.  I must also express that the publication of their paper threatens academic discourse through the intimidating effects it could have on scholars.

I explain these points here and am grateful for the opportunity to be able to publish a response promptly.  The Dalhousie Law Journal declined to grant me the opportunity to publish a reply alongside the paper in their forthcoming issue. 

In 2019, I participated in what was pitched to me as a “duelling-articles debate” in the Saskatchewan Law Review after the Saskatchewan Court of Appeal’s decision in the carbon tax case.  For my contribution, I published a 6000-word article arguing that the carbon tax faced more constitutional obstacles than many had initially expected.  This was an argument about constitutional law—I am on record elsewhere as regretting that the federal government undertook a constitutionally problematic design for its carbon tax, as I am supportive of environmental policies that could include properly designed carbon taxes.  Constitutions are not mere debris to be run over on the road of public policy but must be respected as the rules of the road.

Last week, Professor Stepan Wood of the UBC Faculty of Law tweeted out his co-authored August 2020 Centre for Law & The Environment working paper (released in a paper series edited by Professor Wood) that is now also a forthcoming article in the Dalhousie Law Journal.  While aspects of that article frame it as an intellectual discussion on standards of responsible scholarship, (and it is somewhat longer than my own article), it is nonetheless focused almost entirely on my article. 

Both the conclusion of the paper and Professor Wood’s subsequent tweets confirm that he aimed to publish it before the Supreme Court of Canada hearing in which my article might be discussed, seemingly to try to discourage the Court from drawing upon my work by arguing that it was “irresponsible” research.  I do believe that the paper Wood tweeted out fulfilled what it set out to do and unfortunately does not contribute in any positive way to legal academic discourse.  The Wood, Doelle, and Scott (Wood/Doelle/Scott) paper paints what are reasonable scholarly points as irresponsible research, but it does so by pulling much of what I said out of context and inaccurately.  I will mention just some examples here:

  1. On p 6, Wood/Doelle/Scott suggest that I must not have read beyond the title of an article in interpreting the author as having hoped for changes in the constitution to accommodate climate change policy.  As it turns out, I had read not only the title but the article itself, as would be apparent in the fact that I engage with legal arguments contained in that article.  On the point at issue, that other scholar’s article has multiple passages referring to the need to adapt the interpretation of the constitution in light of new realities, which I am free to refer to as arguments for constitutional change.
  2. On pp 6-7, Wood/Doelle/Scott inaccurately say that I “complain” of “incoherence” in a scholar’s work where I made no such claim. 
  3. On p 7, Wood/Doelle/Scott suggest I should have read a particular article.  I actually discussed that very article and showed how it had problems in its understanding of the relationship between the legal doctrines of POGG and interjurisdictional immunity.
  4. On pp 7-9, Wood/Doelle/Scott object to my characterization of an elitist strand in some environmental law scholarship.  I cited  an article on regulatory capture (and actually did not challenge the part of the article on regulatory capture, as Wood/Doelle/Scott imply I did), and that article concludes with a three-page discussion of how academics can take a larger role in guiding the democratic process on environmental issues.  Some may think that a good idea or even a conventional one.  I simply identify its elitist dimension in a footnote that bears on the context for argument about the carbon tax.  I use accessible terms, but my footnotes make very clear that there are scholarly works that readers can consult further.
  5. On p 9, when I discussed a number of popular media pieces asserting Saskatchewan’s carbon tax litigation had no chance, Wood/Doelle/Scott say that I incorrectly interpreted the reference of the pronoun “we” in one of these pieces.  Wood/Doelle/Scott say that “we” referred to all Canadians.  I had followed the apparent reference of the pronoun “we” in the immediately prior sentence as those litigating on climate change.  Wood/Doelle/Scott could be right, but the op ed was ambiguous and was just as consistent with my reading.  To use this singular example of a different reading of “we” to claim that I made “distort[ing] statements” about media pieces is absurd.
  6. The Wood/Doelle/Scott paper also suggests that I am “unfair” to the courts because I provide a “blinkered” account of the case law (p 10).  A short article in a duelling-articles debate cannot discuss every authority at length, nor is it meant to do so.  Although Wood/Doelle/Scott criticize me for not engaging extensively with the case law in a footnote where I raise the possibility that the national concern branch of POGG is not well grounded in legal precedent, my footnote ends by saying “a full examination of those arguments would exceed the permitted limits for this article”, thus acknowledging that I was simply raising a possible argument that could be considered elsewhere.  I do not think any courts are troubled by this.

There are other examples.  Given that the Wood/Doelle/Scott paper sought to contribute to discussing the topic of responsible scholarship, it is difficult to see its contribution to that topic when it contains a significant number of errors about my article and what I say. 

A good article on responsible scholarship in a legal context could be quite interesting.  In their paper, at pp 4-5, Wood/Doelle/Scott link several quotes about norms of responsible scholarship, which might be the start of a discussion.  However, they take most of these quotes out of context, without explanation of the fact that they have done so.  In their proper contexts, these statements refer to approaches to data in scientific contexts or to internal operations of research teams.  Wood/Doelle/Scott apply them without discussion or explanation to treatment of scholarly sources and external scholars.  It would be interesting to analyze to what extent the pertinent norms for these contexts do or do not track precisely those other norms.  Discussing that would require an intellectual work going beyond what Wood/Doelle/Scott did.  In addition to considering the differences in the context of legal research, it would be important to consider the ways in which legal scholars write in a variety of different genres, ranging from more specialized academic contexts to more accessible practitioner-friendly pieces to public-facing pieces.  A strong contribution on responsible scholarship would also discuss and compare several different examples rather than focusing solely on one article combined with a few lines about another.  The Wood/Doelle/Scott paper falls short on these measures in a number of ways, leading one to ask what the goal really was.

It is one thing to make unconvincing arguments, as happens in both peer-reviewed and non-peer-reviewed work.  But it is a serious threat to responsible academic discourse to make mistake-riddled arguments in ways that paint academic interlocutors as personally irresponsible and lacking integrity.  Obviously, I agree entirely that responsible research practices facilitate good research and the contribution that academia can make to society.  However, purporting to adjudicate responsible academic discourse in the way that Wood/Doelle/Scott did sets a horrible precedent.  A scholar who makes an argument, popular or unpopular, should be able to do so without lightly being called irresponsible.  Other scholars who have seen events unfolding even in this one instance might well feel intimidated from participating in academic discourse by the prospect that they will face attacks not just on their ideas but on their integrity.

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

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

L’Assemblée nationale peut-elle procéder seule?

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

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

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

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

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

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

Existe-t-il des alternatives?

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

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

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

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

This post is written by Thomas Falcone

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Bill 21 and the Search for True Religious Neutrality

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Day Six: Carissima Mathen

It was a formidable challenge to select only three Supreme Court dissents.  To make the choice more manageable, I decided to stick to Charter case law, and to focus on opinions that I personally found persuasive.  That left out a number of notable opinions, such as William McIntyre’s uncompromising yet necessary challenges to his colleagues during the 1980s.  That sort of divergence adds to the jurisprudential project, which regrettably is not always in evidence in many dissents produced today.

In selecting my three opinions, I also thought about the purpose and value of the dissenting voice.  I prioritized the willingness to challenge orthodoxy, to articulate hard truths or to recognize doctrinal deficiencies.  I looked, too, for powerful writing.

A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30

 In this 2009 case, a 6-1 majority upheld a provincial law that permits judges to order medical treatment for non-consenting minors under the age of 16.  Justice Ian Binnie wrote a dissent.

A.C., a 14-year-old Jehovah’s Witness, refused a life-saving blood transfusion.  Medical experts concluded that she had the requisite capacity to make that decision.  Nonetheless, because the legislation set out more stringent criteria for persons under age of 16, A.C. was administered the transfusion.  She argued that the law violated her Charter rights.

The majority judges determined that it was possible to interpret and apply the legislation in a constitutional manner.  However, on the basis that A.C.’s own situation was moot (since she was no longer in care), none of them pronounced on whether she had been deprived of her Charter rights, or indeed whether someone under the age of 16 could ever refuse life-saving treatment.

Justice Binnie recognized that A.C. sought the freedom to make what most people would view as a terrible mistake. But, if an otherwise capable person has the right to make that choice, on what basis might A.C. be denied?  In Binnie J’s view, the state had not offered any justification for that denial.

In preferring the safer terrain of statutory interpretation, Justice Binnie said, the majority had not actually responded to A.C.’s claim.  The issue was not whether something like a “best interests” test (the focus of much of the majority decision) could be rendered more consistent with the Charter.  The question was whether the state could substitute that test for the wholly different one: whether a person has the capacity to make a particular decision.  If a “mature minor” has that capacity, Binnie J. argued, the basis for applying a best interests test disappears. Consequently, his colleagues had not lived up to the Charter’s promise.  Binnie J. strongly implied that the majority’s reluctance to fully enter into the debate was grounded in both disbelief that anyone would refuse medical care, and suspicion of the faith-based context of A.C.’s choice.  While it is valid to seek to protect children who lack capacity, there is no relationship between that goal and removing the choice from children with capacity.  Thus, the deprivation of A.C.’s section 7 right to direct her own medical treatment was arbitrary.

If the autonomy rights the Charter guarantees are to be meaningful, they cannot be limited to choices that a majority of persons understand and respect.  Justice Binnie’s unstinting embrace of principle makes this one of my favourite dissents.  His approach holds valuable lessons today, as our society confronts difficult questions surrounding medical aid in dying

R v. Hall, 2002 SCC 64

A 2002 case about bail, Hall features a powerful dissent authored by Justice Frank Iacobucci (joined by Major, Arbour and Lebel JJ.)

Section 11(e) of the Charter states inter alia that no person may be denied bail without just cause.  In the 1992 case of R v. Morales, the Supreme Court assessed criminal provisions permitting bail to be denied if “necessary in the public interest”.  A majority found those words vague and, thus, unconstitutional.

Some years later, Parliament amended the law so that even where a flight or public risk is not established, detention is permissible “where [it] is necessary in order to maintain confidence in the administration of justice” considering the strength of the case, gravity and circumstances of the offence, and the potential for a lengthy sentence. The Hall trial judge found that the highly charged aftermath of a murder and the strong evidence underlying the Crown’s case made it necessary to detain the defendant. The Supreme Court upheld that ruling, and the law permitting it, as a rare case in which pre-trial detention on a “tertiary ground” was justified.

Justice Iacobucci’s dissent was excoriating.  He accused the majority of abandoning the presumption of innocence and its concomitant right to liberty.  He took exception to the suggestion that “a well-functioning bail system” requires the occasional power to deny bail for a purpose unrelated to trial attendance or public safety.  He pointed out the pernicious systemic effects of pre-trial detention, such as inducing guilty pleas and inhibiting defendants’ ability to participate in their own defence.

Iacobucci J. was especially disturbed by the idea that confidence in the administration of justice may require detaining someone on the basis of nothing more than (often flawed, even irrational) public sentiment.  In his view, the justice system should educate and protect against such attitudes, not coddle them.  Given the specific context and the values engaged in pre-trial detention, the amended ground for denying bail was equally as deficient as its predecessor.

Hall was issued during the heyday of the idea that Charter rulings are part of a “dialogue” between courts and legislatures (a concept of which I have long been skeptical).  Justice Iacobucci was one of the strongest proponents of dialogue (see, most notably, his decision in Vriend v Alberta).  Yet, giving the dissent special force and resonance, he specifically critiqued the idea that “dialogue” could justify the majority’s approach.  He called Hall an example of “how dialogue can break down”.  Although Parliament purported to respond to Morales, it had not demonstrated due regard for the constitutional standards set out in that case.  It had simply re-issued the “public interest” ground by another name.  By failing in turn to uphold fundamental freedoms and liberty, the Court majority had “transformed dialogue into abdication” and misconceived its role under the Constitution.

Little Sisters Book and Art Emporium v Canada (Little Sisters 2), 2007 SCC 2

My final entry deals with process and litigation.  As I have written elsewhere, the mechanisms by which people ensure the constitutionality of legislation is vital to the rule of law.  Little Sisters 2 powerfully illustrates the troubling thinness of constitutional process.  In addition, its dissent includes a rare and striking mea culpa.

In 2007, the Supreme Court refused to uphold an interim costs award to the Little Sisters Bookstore.   In earlier litigation the bookstore had established long-standing discrimination against it by Canada Customs especially in relation to the LGBT materials it imported.   In a majority opinion written by Ian Binnie, the Court decided against any section 52 remedies.  Relying on government assurances that the regime had been fixed, Justice Binnie issued only declaratory relief under section 24(1) of the Charter.

Believing that it continued to be the subject of discriminatory seizures, Little Sisters launched a new action.  Having already spent hundreds of thousands of dollars, it sought advance costs.  The B.C. Supreme Court awarded them, but on appeal the order was set aside. A majority of the Supreme Court affirmed the latter decision on the basis that the new claim was a fact-based dispute with no broader public interest.

While advance costs do not enjoy unqualified support in the legal community, it is difficult to think of a Charter case in which they would be more justified.  In Little Sisters 2, the strongest advocate for the bookstore turned out to be Justice Binnie.  In his dissent, he implicitly recognized the paucity of his original remedy:

I differ from my colleagues about what is truly at stake in this appeal…  In my view, Little Sisters No. 1 provides more than “important context” [as my colleagues describe it].  The ramifications of that decision go to the heart and soul of the appellant’s present application.  …  This case is not the beginning of a litigation journey.  It is 12 years into it. […]

The present application…comes before us precisely because the appellant says that the Minister’s assurances proved empty in practice, that the systemic abuses established in the earlier litigation have continued, and that (in its view) Canada Customs has shown itself to be unwilling to administer the Customs legislation fairly and without discrimination…  [W]as the Minister as good as his word when his counsel assured the Court that the appropriate reforms had been implemented?

For Justice Binnie, failing to grant Little Sisters advance costs risked putting the state beyond the reach of judicial review.  The public interest lay in having the claim ensue – even if paid for by the State.  It was a refreshing, if belated, acknowledgement of the systemic barriers faced by many constitutional litigants.