The Originalist Papers

Benjamin Oliphant’s and my articles on originalism in Canada are officially out

Last year, I posted here the abstracts of two draft papers that Benjamin Oliphant and I had just finished writing. I am happy to report that both have now been published. The first one, “Has the Supreme Court of Canada Rejected ‘Originalism’?“, (2016) 42:1 Queen’s LJ 107, appeared back in January (despite what the journal says about the date!). The second, “Originalist Reasoning in Canadian Constitutional Jurisprudence“, (2017) 50:2 UBC L Rev 505, has only just come out.

In a nutshell, the first paper argues that, once we take stock of the developments in originalist thought (especially in the United States) over the last 30 years ― which too many Canadians who reject originalism out of hand have not done ― we realize that the answer to its title question is “no”. The precedents that are usually said to represent rejections of originalism do not support this conclusion. At most, they reject a type of originalism that no serious contemporary originalist endorses; they leave open the question of whether other originalist approaches might be used by Canadian courts.

The second paper answers this last question, from a descriptive perspective. It shows, with a variety of example drawn from the decisions both of the Judicial Committee of the Privy Council and the Supreme Court Canada, spanning most of our constitutional history since Confederation, that our jurisprudence is replete with examples of originalist reasoning of various sorts. In some cases, courts look to the meaning of constitutional provisions at the time of their enactment; in others to the intentions of their framers; and in a few, perhaps even to the exact way in which the framers would have expected these provisions to operate. We do not claim that our constitutional law is systematically originalist; nor do we claim, in this paper anyway, that it ought to be. But we do argue that originalism has a significant, if underestimated, presence in Canada, and deserves careful study and serious consideration by Canadian lawyers, whether they be in practice, in academia, or on the bench.

Working on these papers has been a whirlwind. We’ve gone from discussions about putting together the couple of blog posts we’d written on originalism (which, we thought, would be enough to make up 3/4 of the single paper we were intending to write) to two published papers totalling 130 pages in just over 18 months. The papers took up a big part of my life (during an otherwise busy period involving the little matter of moving to New Zealand) ― and I’m pretty sure that it was the same for my co-author. I am very glad that these papers are now out of our hands, and beyond the reach of last-minute edits ― though you will see that we did our best on that front, even adding a post-script to the second paper after the Supreme Court granted leave to appeal in R v Comeau, the “free the beer” case, just a few weeks ago. (Thanks to the UBC Law Review editors for accommodating us!)

I do hope that we will return to this topic eventually, though. Working with Mr. Oliphant has been a real pleasure, and I am very grateful to him for having taken time out of his busy life as an actual lawyer to go on this crazy adventure. If all goes well, you will hear from us (jointly or severally, and perhaps both) again. But for now, I at least will celebrate a bit. (No, not really. I have other papers to write.) And you, well, you should read our papers, if you haven’t yet!

The Good, the Bad, and the Ugly

A bill to improve Parliament’s constitutional scrutiny of legislation is a step forward ― but not good enough

Earlier this week, the federal government introduced Bill C-51, which will make some noteworthy changes to the Criminal Code ― mostly cleaning up offenses now deemed obsolete, but also codifying some principles relative to sexual that have been developed by the courts, and some other changes too. There has been quite a bit of discussion about these changes (see, for instance, this tweetstorm by Peter Sankoff), and I am not really qualified to speak to their substance, beyond saying that, all other things being equal, cleaning up the statute and making sure it reflects the law as applied by the courts are pretty clearly good things form a Rule of Law standpoint.

I do, however, want to say something about another, less commented, innovation in the bill: its clause 73, which would oblige the Minister of Justice to provide, alongside to any government bill introduced in Parliament, “a statement that sets out potential effects of the Bill on the rights and freedoms that are guaranteed by the Canadian Charter of Rights and Freedoms. This is a step forward, although not a sufficiently bold one, but also a troubling symptom of the constitutional favouritism that afflicts the government and seems to show no signs of letting up.

* * *

The idea that the Minister of Justice ought to provide advice to Parliament about the compliance of bills with rights protections actually pre-dates the Charter. It was first introduced in subs 3(1) of the Canadian Bill of Rights, which required the Minister to

examine … every Bill introduced in or presented to the House of Commons by a Minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons at the first convenient opportunity.

Identical language, but referring to the Charter, now appears in subs 4.1(1) of the Department of Justice Act. Yet these provisions, which might have involved Parliament, or at least the House of Commons, in constitutional discussions, have largely proven ineffective. There was, as we can tell from judicial decisions declaring federal legislation  invalid because contrary to the Charter (or, admittedly rarely, inoperative because contrary to the Bill of Rights), no lack of opportunities for inconsistency reports. Yet in well over half a century, only one such report has ever been made.

The reason for this is that, as the Federal Court explained in Schmidt v. Canada (Attorney General), 2016 FC 269 successive Ministers of Justice interpreted the reporting requirements as only obliging them to notify the House of Commons if they, or rather the Department of Justice (DOJ) lawyers, couldn’t come up with “[a]n argument” that the bill is constitutional “that is credible, bona fide, and capable of being successfully argued before the courts”. [5] Because DOJ lawyers are clever and creative, and perhaps also a little optimistic about their ability to mount successful arguments, this interpretation allows the Minister to avoid making a report to the House of Commons even if the constitutionality of a bill is very much in doubt.

Contrast this situation with New Zealand. Section 7 of the New Zealand Bill of Rights Act 1990 is a direct descendant of the Canadian inconsistency reporting requirements. It provides that the Attorney-General must “bring to the attention of the House of Representatives any provision in [a] Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights”. Attorneys-General have interpreted this as a duty to form their own opinion about whether proposed legislation is consistent with the Bill of Rights Act, and not merely about whether they might make credible arguments for the proposition that it is. As a result they have made almost 40 “section 7 reports” on government bills, and over 70 in total, including on non-government bills, which are not covered under current Canadian legislation and still would not be under C-51, in just 25 years. (One reason why similarly worded provisions have been interpreted so differently in Canada and in New Zealand is that New Zealand, like the United Kingdom, separates the roles of Minister of Justice and Attorney-General, and the latter, although elected as an MP and a member of the Cabinet, by convention acts in a relatively non-partisan fashion. I would love to see Canada adopt this practice, but won’t hold my breath.) And New Zealand’s Attorneys-General have gone further than the Bill of Rights Act required them to. The have also made public the advice regarding the consistency with the Act of all bills since 2003 ― not only those that they found to be inconsistent.

If enacted, Bill C-51 wuld take Canada close to New Zealand in this regard ― and, to some extent, even further. It will go further both in that it will create a statutory requirement, as opposed to a mere policy (albeit on that has been consistently followed by governments of various partisan persuasions), and in that it will formally inform not only the public but Parliament itself. On the other hand, the requirement will not go as far as the New Zealand policy, because it will only apply to legislation proposed by the government ― and not by individual MPs or Senators.

* * *

Despite its limitations, of which more very shortly, this is a good change. Getting Parliament to engage more with constitutional issues that arise when it legislates would be a wonderful thing. To be sur, we should not be too optimistic about what ministerial explanations of Charter concerns will accomplish. In New Zealand, Parliament routinely ignores the Attorney-General’s warnings about the inconsistency of bills with the Bill of Rights Act. It may well be that if such warnings, or a fortiori statements to the effect that a bill gives rise to constitutional concerns but the government believes that it is nevertheless consistent with the Charter become more common in Canada, legislators will similarly ignore them. But even occasional engagement with such concerns is likely to be an improvement on the current situation, in which they are systematically ignored whether or not Parliament is the only place where they could be addressed.

One particular issue to think about here is the role of the Senate. It is at least arguable that it would be more justified in opposing the House of Commons (at least by insisting on amendments, but perhaps even by outright defeating legislation) because of constitutional concerns than for any other reason. Having such concerns outlined by the Justice Minister would make it easier for the Senate to do this, and might thus contribute to make it a more significant legislative actor. That said, the Senate did give way to the House of Commons on the assisted suicide legislation, despite constitutional concerns, so any such changes are, for now, a matter of speculation.

As the above comparison between Canada and New Zealand shows, a lot will depend on just how the Justice Ministers approach their new statutory duties. This is where we come to the less attractive features of clause 73. Its wording is very open-ended ― to repeat, it requires reports bills’ “potential effects … on [Charter] rights and freedoms” (emphasis mine). In a way, this is useful, in that it allows the Minister to offer a nuanced assessment, and perhaps candidly say that there is no clear relevant guidance from the courts. But if a Minister wants to fudge, or simply to say, consistently with currently practice, that plausible ― but not necessarily compelling ― arguments can be made that a bill’s effects can be justified under section 1 of the Charter, clause 73 would allow that too. As Lisa Silver has noted, ministerial “statements may be self[-]serving”. On the whole, then, I would count the clause’s vagueness as a bad thing.

The other bad thing about it is that, as I noted earlier, it only applies to legislation introduced by the government. Now, it is true that most significant legislation is, in Canada anyway. But there have apparently been concerns that the last Conservative government used private members’ bills to advance policies that had its private support but with which it was unwilling to be too publicly associated. Whether or not that was true, something like that might happen in the future. And of course any bills introduced in the Senate would be exempt from scrutiny, at least until the rather hypothetical for now day when there are cabinet ministers from the Senate. In short, the exclusion of legislation not introduced by the government from the current scope of clause 73 is potentially dangerous ― and I have a hard time seeing why it should be there.

It gets worse ― indeed, in my view, it gets outright ugly. Clause 73 confirms what I have denounced the government’s tendency to treat the Charter as a favoured part of the constitution, and ignore the others, notably the Constitution Act, 1867. The clause will, if enacted and approached in good faith by the Justice Ministers (the latter a big if, as I noted above), force the government to alert Parliament to the repercussions of proposed legislation on a part of the Constitution. But why only part? Why that part? Why shouldn’t Parliament be alerted to issues surrounding the division of powers, not to mention aboriginal rights and, arguably above all, the constitution’s amending procedures? And what about the (quasi-constitutional) Bill of Rights, while we’re at it? (Though it is often forgotten, the Bill of Rights does protect some rights that have been left out of the Charter, perhaps most significantly the right to a fair trial in civil cases, and so remains relevant despite the Charter’s enactment.) Of course, the current provisions requiring inconsistency reports only concern the Charter and the Bill of Rights, but since the point of Clause 73 is to expand them, why is this expansion so selective? As I have previously explained, the vision of the Constitution that it reflects is a defective and a pernicious one. To that extent, Clause 73 deserves condemnation ― and cries out for amendment.

* * *

Let me conclude, then, with a quick sketch of what an amended version of Clause 73 that addresses the criticisms outlined above might look like:

(1) The Minister shall, for every Bill introduced in or presented to either House of Parliament cause to be tabled, in the House in which the Bill originates, a statement that sets out potential effects of the Bill on

(a) the rights and freedoms that are guaranteed by the Canadian Charter of Rights and Freedoms or recognized, declared or otherwise protected by the Canadian Bill of Rights;

(b) the aboriginal and treaty rights of the aboriginal peoples of Canada recognized and affirmed by the Constitution Act, 1982; and

(c) the scope of and limitations on Parliament’s legislative powers under the Constitution of Canada.

(2) The statement shall, in addition to any other matter, note whether, in the Minister’s opinion, it is more likely than not that the Bill is inconsistent with the Constitution of Canada.

(3) The statement shall be tabled

(a) in the case of a bill introduced in or presented by a minister or other representative of the Crown, on the introduction of that Bill; or

(b) in any other case, as soon as practicable after the introduction of the Bill.

(4) The purpose of the statement is to inform members of the Senate and the House of Commons as well as the public of those potential effects and the constitutionality of proposed legislation.

This is, in all likelihood, an imperfect effort. In particular, it might be unnecessary to require Ministerial statements on private members’ bills that never make it past first reading. I’d be grateful for any input on this, and on the corrections that might be necessary to my proposal, from those more knowledgeable than I about Parliamentary procedure and legislative drafting. But I do think that my substantive concerns are serious. I would be very nice indeed if Parliament were made to address at least some of them.

An Easy Case

Why funding Catholic schools on terms not available to others is an obvious infringement of religious freedom

In Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, the Saskatchewan Court of Queen’s Bench held that funding Catholic schools, and no others, for educating students who do not belong to their religion is contrary to the guarantee of the freedom of religion in paragraph 2(a) of the Canadian Charter of Rights and Freedoms, and not justified under the Charter‘s section 1. In commenting on that decision, I wrote that this “is correct, and quite obviously so. There is no meaningful account of religious neutrality on which singling out one group for a favourable treatment denied others is permissible.” To my enduring surprise, some of my friends disagree with this, so I will try to explain my views further.

Writing for Policy Options, Joanna Baron and Geoff Sigalet argue that in Saskatchewan the province’s duty of religious neutrality has to be understood in the context of “Saskatchewan’s Confederation compromise [which] entailed a built-in elevation of the status of Catholics” and required provincial funding of Catholic schools. In that context, allowing non-Catholic students to access these schools “does not violate a principle of religious neutrality — it is the definition of neutrality.” They add that “the Charter itself does not explicitly require state neutrality vis-à-vis religion” ― in contrast to the First Amendment to the U.S. Constitution, under which the funding of vouchers allowing students to attend religious schools has nevertheless been permitted. They claim, finally, that it is ironic that the Charter, which is supposed “to give individuals rights vis-à-vis the state”, ends up foreclosing the educational choices of non-Catholic students. Finally, they worry about the way in which students would be classified as Catholic or not to determine who is, and who is not, entitled to access Catholic schools.

In an Advocates for the Rule of Law post, Asher Honickman makes some similar points. Religious neutrality is only a judicial construction, and in any event not absolute. Determining who is Catholic enough to attend a Catholic school is problematic. Mr. Honickman adds that it would be discrimination to require “non-Catholics … to attend secular schools, while Catholics would have a taxpayer funded choice to attend either Catholic or secular schools.” While

the government could provide equal funding to all religious schools, but this would prove far too costly. The Charter is by and large a ‘negative rights’ document and the government should not have to break the bank to comply with its provisions.

In any event, since they receive public funding to cover their capital expenses, Catholic schools could charge non-Catholics cheaper tuition to any non-Catholic students who wished to attend, and the additional benefit of receiving funding to cover their individual education is too trivial to count as an infringement of neutrality.

I do not find any of this at all persuasive. Begin with the suggestion, admittedly never fully articulated, that we should not make too much of religious neutrality because it is not expressly referred to in the Charter. Justice Dickson, as he then was, rejected it in the very first religious liberty case R v Big M Drug Mart Ltd, [1985] 1 SCR 295. Dismissing an argument that the Lord’s Day Act was not contrary to the Charter‘s guarantee of freedom of religion because it did not include a proscription of religious establishment, he noted that “recourse to categories from the American jurisprudence” ― free exercise of religion and non-establishment ― “is not particulary helpful in defining the meaning of freedom of conscience and religion under the Charter” because these categories flow from “the wording of the First Amendment”. (339) They do indeed, and the wording is not accidental, as Michael McConnell explained in this excellent lecture.

The Charter only contains a single guarantee of religious liberty, and the question is whether its meaning in 1982 (on an originalist approach) or now ( on a living constitution one) includes state neutrality. The answer to this question is an emphatic yes, whatever one’s reference point. As Justice Taschereau wrote in Chaput v Romain, [1955] SCR 834, “[i]n our country, there is no state religion. … All religious creeds are set on an equal footing.” (840; translation mine.) As a statement of positive law, this was perhaps a tad optimistic while the Lord’s Day Act was still in force; but as a statement of what religious liberty, properly understood, meant by the 1950s (and indeed earlier) and still means, this passage remains unsurpassed in its forceful simplicity.

State neutrality is then, along with a rejection of religious coercion, one of the fundamental principles of paragraph 2(a) of the Charter. The Charter itself contains one  exception to this principle: section 29, which protects “rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.” (The fact that the Charter’s framers thought it necessary to make this exception explicit suggests that they too understood neutrality to be the general principle.) Except insofar as they are “guaranteed by or under the Constitution of Canada”, the privileges of “separate” schools are subject to the general principle.

The constitution’s “built-in elevation of the status of Catholics”, in other words, is set at a precisely calibrated level. It permits the “discrimination” involved in allowing Catholics ― or, more precisely Catholics or Protestants, depending on who happens to be the minority ― a choice between public and “separate” schools, and immunizes it from Charter scrutiny. By necessary implication, it permits and even requires the state to distinguish between Catholics and others, however distasteful we might find the drawing of such distinctions. (That said, as Justice Layh found in Good Spirit, “proof of one’s Catholic identity is baptism in the Catholic tradition, commonly evidenced by a baptismal certificate” [17] ― not an especially intrusive inquiry, all things considered.) The constitution does not, however, permit conferring on Catholics them the further advantage ― whether it is a great or a small one ― of admitting and proselytizing to non-Catholic students at the public expense. It is not for the courts to upset this calibration that is quite clearly set by the constitution itself, whether or not doing so would be convenient or save money. Having found that the admission of non-Catholic students was not “guaranteed by or under the Constitution of Canada”, the Good Spirit court was quite correct to apply the principle of neutrality to it.

As I have been saying from the beginning, if the province of Saskatchewan does not like the outcome that non-Catholic students and their parents lose the (limited) measure of school choice that was available to them, the obvious solution is to provide more school choice on a non-discriminatory basis. This, in fact, is what the State of Ohio did in Zelman v Simmons-Harris, 536 U.S. 639 (2002), the First Amendment case on which Ms. Baron and Mr. Sigalet rely. As Chief Justice Rehnquist described the scheme at issue in his majority opinion, “[a]ny private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school” meets certain administrative requirements, educational standards, and does not discriminate. (645) The issue was whether the eligibility of religious schools for participation violated the First Amendment. The U.S. Supreme Court held that it did not, and the result would be the same under the neutrality principle of the Charter. But the Zelman-Harris court did not uphold, and would not have upheld, a similar scheme the participation in which was restricted to religious schools only, still to Catholic schools alone. If Saskatchewan want to include Catholic schools in a broader school choice programme, that would have been constitutionally permissible. It is not permissible to limit school choice to such schools alone.

It is not the Charter, then, that limits school choice in Saskatchewan in the wake of the Good Spirit decision, but the political choices made by the province’s legislature. Will it be too expensive to offer meaningful, non-discriminatory choice to students? We don’t know; the province has not, so far as I can tell, even considered the possibility, rushing to override the decision by invoking the Charter‘s “notwithstanding clause”. But whatever the amounts at issue, it will not do to say that it is better to offer a discriminatory benefit to some if we cannot offer the same benefit to all. The Supreme Court rejected this proposition in Schachter v Canada, [1992] 2 SCR 679, and rightly so. No one would accept that a province offer a tax cut to Catholics alone on the basis that it’s better to give one to some people than to none. The same reasons that would make that utterly unacceptable condemn the policy of subsidizing Catholic schools (beyond what is constitutionally required) and no others.

While some aspects of the Good Spirit case were difficult, the Charter issue that it presented was not. Once it is established that the education of non-Catholic students is not a constitutionally entrenched aspect of “separate” Catholic schools, it follows straightforwardly that it can only be subsidized on equal terms with those available to other schools, religious or otherwise. To conclude so is not to impose a new interpretation on constitutional text, but to apply principles that were recognized in Canada well before the Charter‘s entrenchment. Those who would depart from these principles in the name, ultimately, of financial expediency and administrative convenience should re-consider.

Dreaming of Dialogue

Can New Zealand courts declare statutes to be inconsistent with the Bill of Rights Act? Does this matter?

Canadians have long been used to the idea that, as the Supreme Court put it in Re Manitoba Language Rights, [1985] 1 SCR 721, “[t]he judiciary is the institution charged with the duty of ensuring that the government complies with the Constitution.” (745) In New Zealand, things are very different of course, because the constitution is not entrenched. Parliamentary sovereignty prevails, and the courts’ role is limited accordingly. Although there is a statutory bill of rights, the New Zealand Bill of Rights Act 1990, it specifically provides that courts cannot invalidate or otherwise refuse to apply legislation that is inconsistent with it, and contains no remedial provision analogous to section 24 of the Canadian Charter of Rights and Freedoms.

So it is, or at perhaps was, an open question what, if anything, a court might be able to do when it concludes that a statute is inconsistent with the Bill of Rights Act. Might it go so far as to issue a declaration to that effect, or is it limited to only stating this opinion in the course of its reasons? In Attorney-General v Taylor [2017] NZCA 215, the New Zealand Court of Appeal says that, sometimes at least, a formal declaration can be made, and upholds the very first such declaration issued by a New Zealand court, confirming that the disenfranchisement of all convicted prisoners (and not only of those serving sentences longer than the three-year Parliamentary term) is inconsistent with the Bill of Rights Act’s guarantee of the right to vote. (The Attorney-General was not contesting the substantive point, it is worth noting, but only disputing that the declaration could and should have been made.)

* * *

The first question for the Court was whether authority to make a “declaration of inconsistency” existed at all and, if so, what its source was. The answer, the Court holds, is that superior courts have such an authority as part of their jurisdiction to answer questions of law, and that the Bill of Rights Act supported it. The Court rejects the Attorney-General’s submission that express statutory authorization is required to permit the making of declarations of inconsistency. Just as Parliament’s legislative authority does not derive from positive law but from political fact, so does the judicial authority of the courts. Neither branch owes its authority to the other; rather, “a distribution of the state’s sovereign powers among the branches of government emerged from the political settlement concluded in the decades following the Glorious Revolution of 1688”. [50] Ultimately, “[i]nconsistency between statutes is a question of interpretation, and hence of law, and it lies within the province of the courts.” [62]

The Court notes that the Bill of Rights Act itself contemplates the possibility of a judicial assessment of the consistency of other legislation with its provisions, whether its results are stated in the court’s reasons (which the Attorney-General accepted was permissible) or in a formal declaration. Moreover, New Zealand has undertaken to provide domestic remedies for breaches of its obligations under the International Covenant on Civil and Political Rights, the implementation of which is one of the Bill of Rights Act’s stated purposes, so that it should be interpreted in accordance with this undertaking. Besides, in the Human Rights Act 1993, Parliament has already authorized the making of declarations of inconsistency when legislation breaches equality rights. Although the Bill of Rights Act contains no equivalent provision, this “evidences parliamentary acceptance that a court may make declarations about the inconsistency of legislation with rights protected by the Bill of Rights”. [107]

Second, the Court had to address an intervention by the Speaker of the House of Representatives, who argued that the whole case, or at least the way in which it had proceeded, was an infringement of Parliamentary privilege. In particular, the Speaker was concerned by the reliance, at first instance, on a report prepared by the Attorney-General to alert the House of Representatives of the incompatibility (in the Attorney-General’s opinion) between the blanket disenfranchisement of prisoners and the protection of the right to vote in the Bill of Rights Act. Indeed he sought sought to prevent the use of any “speeches in the House, select committee reports or submissions made to select committees” [122] to ascertain the consistency of legislation with the Bill of Rights Act, arguing that this would be tantamount to calling Parliamentary proceedings into question contrary to article 9 of the Bill of Rights 1688 and the Parliamentary Privilege Act 2014. The Court rejected these arguments, holding that “a court does not impeach parliamentary proceedings merely by describing parliamentary processes or making a finding about the same subject matter,” [129] so long as it does “not endorse or criticise Parliament’s treatment of the issues”. [130] It is permissible, too, to refer to the Attorney-General’s report, although it is important for the courts to come to their own, independent conclusions.

Third, the Court considered the conditions in which declarations of inconsistency should or should not be granted. Such declarations, thought they do not affect anyone’s rights, are part of a “dialogue” (it might have been more accurate to say “conversation”) involving the the different branches of government, which

is not unique to constitutional disputes. It describes the routine work of government, in which Parliament legislates and the executive administers and courts interpret, leading in due course to legislative reform to better meet the community’s evolving needs. [150]

The only difference is that a declaration of inconsistency is a “more pointed” [150] than usual expression of a court’s opinion, which carries with it

the reasonable expectation that other branches of government, respecting the judicial function, will respond by reappraising the legislation and making any changes that are thought appropriate. [151]

Such “pointed” expressions of judicial opinion should not be lightly; a statement in the court’s reasons for judgment is sometimes, and even “ordinarily” [162] preferable. But it is sometimes necessary to go further. However, the courts are to apply fairly strict criteria for standing (at least when compared with the Canadian “open bar” approach), and to ensure that there exists a real adversarial dispute and that they have the relevant evidence available to them before pronouncing on the rights-consistency of legislation.

Fourth and last, the Court asks itself whether a declaration should have been granted in this case. It concludes that because “[t]he undiscriminating limitation … on so central a right demanded justification [and] [n]one was forthcoming” a declaration of inconsistency “was the appropriate way both to convey the Court’s firm opinion that the legislation needs reconsidering and to vindicate the right”. [185]

* * *

To Canadian readers this all might seem like pretty tame stuff. And indeed there is no mistaking the notes of caution in the Court’s discussion, above all in its statement that “indications” rather than formal declarations of inconsistency should “ordinarily” suffice. What “ordinarily” will mean in practice remains, of course, to be seen, but at least for now the Court seems to think the step of granting a formal remedy ― even one that could produce no more than a purely symbolic effect ― is a serious, even an exceptional one.

Yet I think it would be a mistake to make light of the Court’s decision and, perhaps more importantly, of its reasoning. Although its conclusions are cautious, it still reflects a confident view of the judiciary’s constitutional position as a branch of government that is, in its own sphere, not Parliament’s subordinate, but its equal. It is worth noting that the primary ground on which the Court rests the authority to make declarations of inconsistency is not an implication from the text or nature of the Bill of Rights Act (as it had done in Simpson v Attorney-General [1994] 3 NZLR 667 (CA), a.k.a. Baigent’s Case, where it held that damages were available for breaches of the Act by the executive). Rather, the authority to make declarations of inconsistency is said to come from the judiciary’s own inherent powers, which the Court goes out of its way to say are not the product of any legislation but of the constitutional order of things (my phrase, not the Court’s). Similarly, the Court resists the Speaker’s attempt to restrict judicial deliberations about Bill of Rights Act issues, even as it cautions that judges must be seen to interfere with the deliberations of Parliament.

Indeed, this case can be seen as a clash between two competing constitutional visions. One, advanced both by the Attorney-General and the Speaker, sets Parliament, protected by its sovereignty and privilege, above the other branches of government, whose first concern must be to avoid disrespecting or challenging it. The other, which the Court adopts, treats the branches as (almost) co-equal: “each is sovereign within its sphere of authority in the sense that it may act without the permission or authority of the others”.[51] To be sure, Parliament is first among equals because it can make law, and thereby oust judicial power (though New Zealand judges, as their British counterparts, have on occasion mused about the limits of that authority) or, in other cases, royal prerogative. But at least until it does so equality, not subordination, is the rule. It is a respectful equality, but respect goes both ways: not only must the courts exercise restraint and show comity on appropriate occasions, but Parliament too ought to engage in constitutional dialogue, and go so far as to reconsider its enactments, when called upon to do so by the courts.

Yet I am quite skeptical about the potential for constitutional dialogue between the judiciary and Parliament, on which the Taylor Court rests such hopes. We know that in Canada the “dialogue” has turned out to be quite one-sided, with the Supreme Court telling Parliament what it had, and what it could not, do. As the majority put in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, another prisoner disenfranchisement case,

the fact that the challenged denial of the right to vote followed judicial rejection of an even more comprehensive denial, does not mean that the Court should defer to Parliament as part of a “dialogue”. Parliament must ensure that whatever law it passes, at whatever stage of the process, conforms to the Constitution. The healthy and important promotion of a dialogue between the legislature and the courts should not be debased to a rule of “if at first you don’t succeed, try, try again.” [17]

The power dynamics in New Zealand are, of course, the opposite of those in Canada. It is Parliament, not the judiciary, that gets to have the last word in a constitutional conversation. But I do not expect it to be any more open to persuasion than the Supreme Court of Canada. I would love to be proven wrong on this, but I’d be quite surprised if ― assuming there is no change of government at the forthcoming election ― New Zealand’s Parliament chose to “reconsider and vindicate the right” to vote as the Bill of Rights Act, which it was happy to ignore on this issue, requires it to do.

* * *

Subject to an intervention by the Supreme Court, the courts of New Zealand do, then, have the ability to formally declare legislation to be inconsistent with the New Zealand Bill of Rights Act, despite the Act not authorizing them to do so. This authority rests on a conception of the constitution in which the branches of government are almost, if not quite, equal, rather than Parliament lording it over the courts (and the executive). Yet there is reason for skepticism about the vision of respectful dialogue between Parliament and the courts that this relative equality is supposed to foster. Someone gets to have the last word, and it seems likely enough that, in New Zealand as in Canada, it will be the only that will count.

NOTE: See also the comments by Andrew Geddis, on Pundit, and Edward Willis, on his Great Government blog.

The Court on Conventions

Shameless self-promotion for my latest academic article

In academia if not so much elsewhere, the sesquicentennial of Confederation is being used an occasion for some retrospectives on Canada’s constitutional development that go back further than what Ian Holloway ironically calls the “year zero” of 1982. One such retrospective was a very successful conference organized by Matthew Harrington that was held at the Université de Montréal a couple of weeks ago; another, not coincidentally, is a book/special issue of the Supreme Court Law Review edited by prof. Harrington. The book consists of chapters by various Canadian academics examining specific areas of the Supreme Court’s jurisprudence in the realms of constitutional structure, individual rights, and private law.

My own contribution deals with constitutional conventions. In a nutshell, it is a review of the Court’s engagement with constitutional conventions, from the 1930s and into the early 21st century ― I don’t discuss the Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, because that discussion would have required a separate, and longer, paper. (That paper is what I presented at the UdeM conference; I hope to have it ready for submission soon enough.) I do review some of the scholarly responses to that jurisprudence, and reiterate my own view that the Court’s take on conventions is misguided and should be revisited. Here is the abstract:

Conventions are among the most important rules of the Canadian constitution. Yet orthodox legal theory does not recognize them as being rules of law, a view which the Supreme Court of Canada endorsed in the Patriation Reference. Nevertheless, both before and after the Patriation Reference, the Court’s jurisprudence engaged with existing or alleged constitutional conventions. This article reviews this jurisprudence, and the scholarly commentary that responded to it. It concludes that the Court’s endorsement of the orthodox view that there exists a rigid separation between conventions and law was poorly justified, and ought to be abandoned.

The paper is available on SSRN. As Lawrence Solum says, download it while it’s hot!

Inappropriate Remarks

Justice Abella should be criticized, not praised, for her comments on Donald Trump

In a widely noted (for example in this report by Colin Freeze for the Globe and Mail) commencement address given in the United States, Justice Abella has castigated “narcissistic populism” and, more broadly, what she perceives as the abandonment of a global commitment to human rights, independent institutions, and the Rule of Law. While the academics quoted by Mr. Freeze, and others, are either cheering Justice Abella on or at least think that these comments were acceptable, I disagree. Mrs. Abella would be perfectly free to engage in political commentary, but Justice Abella is not. That she did not recognize this calls her judgment into serious question.

It is quite obvious to anyone who has had the misfortune of following the news in the last year that the “narcissistic populism” quip refers to Donald Trump. Sure, Justice Abella did not utter his name. She did not need to. Populism in general is a broad (and worrying) phenomenon. But the reference to narcissism is a pointed one. Justice Abella was not speaking about Bernie Sanders, or even Marine Le Pen. (Her other remarks presumably did not only concern Mr. Trump ―  though I doubt she was thinking about Mr. Sanders.)

Unlike Justice Ginsburg of the US Supreme Court, who criticized Mr. Trump (by name) last year (at a time when his election to the presidency seemed impossible), Justice Abella wasn’t commenting on the potential head of a branch of government co-ordinate with that of which she is part. To that extent, she wasn’t compromising the separation of powers. Yet that doesn’t mean that her remarks were compatible with her judicial role. The United States are a relatively frequent litigant before the Supreme Court of Canada. Since Justice Abella’s appointment, they have been a party to seven cases decided on the merits, and to almost 20 additional leave applications in which she was involved. (These are mostly, though not quite exclusively, extradition matters.) There is no particular reason to think that there will no more such cases while Justice Abella remains on the Court. And so long as she does, and Mr. Trump remains president of the United States, it seems to me that questions about Justice Abella’s impartiality could be raised.

When I criticized Justice Ginsburg in a blog post for the CBA National Magazine last year, I noted that those whose unbridled admiration for her encouraged her injudicious behaviour had to take some of the blame:

As [Josh] Blackman has pointed out, “[o]ver the past few years, [Justice] Ginsburg has been showered in … sycophantic adoration” by those on the political left who see her as the pre-eminent judicial champion of their values. Prof. Blackman hypothesizes ― correctly, I suspect ― that the adulation got to Justice Ginsburg, to the point that she came to think that “she could do no wrong.” She may also have come to think that the public stood in dire need of her warnings about Mr. Trump, even though, as Paul Horwitz has observed, “her remarks [were] essentially conventional, unexceptional, and banal.” While I do not wish to absolve Justice Ginsburg, I think it is important to also blame those whose flattery has at least contributed to her developing such a high opinion of herself. Four centuries ago, Francis Bacon wrote that “those, that engage courts in quarrels of jurisdiction … are not truly amici curiae, but parasiti curiae, in puffing a court up beyond her bounds, for their own scraps and advantage.” The same goes, I think, for those who encourage judges to overstep their proper role in extrajudicial contexts. It is perhaps unfair to call parasiti people among whom sincere admirers no doubt outnumber self-interested sycophants, but the sincere contribute no less than the two-faced to corrupting the very person they love so much. There is nothing wrong with admiring a judge, or for that matter a politician. But if you well and truly wish him or her well, never tell yourself, and by all that you hold dear, never tell him or her, that the person you admire can do no wrong. Coming to believe that one can do no wrong ensures that one will.

The same lesson applies, I suspect, in the case of Justice Abella. As Mr. Freeze notes, she has become something of a judicial celebrity, and indeed “[e]arlier this year, Justice Abella received a ‘global jurist of the year’ prize.” I am afraid such things are not very good for sitting judges. Justice Abella’s injudicious remarks not only deserve criticism, but also show that she needs it.

Chekhov’s Gun

Why Dwight Newman’s defence of the Charter’s notwithstanding clause is unpersuasive

Anton Chekhov liked to say that “one must never place a loaded rifle on the stage if it isn’t going to go off”. And conversely, once the rifle is part of the set, then go off it must. But must this theatrical directive apply to constitutional law? Some evidently think so―at least when it comes to the “notwithstanding clause” of the Canadian  Charter of Rights and Freedoms. Dwight Newman in a National Post op-ed, and Gerard Kennedy in a post for Advocates for the Rule of Law, are the latest of those who have ventured this opinion in the wake of Saskatchewan’s decision to invoke the “notwithstanding clause” to continue funding the education of non-Catholics at Catholic “separate” schools, despite a court finding that this is unconstitutional. Their arguments are no more persuasive than those I considered in my previous post on this topic.

Professor Newman notes that “[t]he notwithstanding clause was a vital part of the constitutional negotiations that led to the Charter being adopted in 1982. Without it, some provinces were unwilling to come on board.” In his view, “[t]hose who argue that the notwithstanding clause is somehow illegitimate actually bear the onus of explaining how the rest of the Charter would be legitimate without it”. But the fact that the existence of a legal power was a necessary part of a constitutional compromise does not justify the use of such a power. The federal power of disallowance over provincial legislation was a necessary part of the compromise that made Confederation possible, yet using it now would violate a firm constitutional convention. Does Professor Newman think that opposing the use of this power involves thinking that sections 91 and 92 of the Constitution Act, 1867 are illegitimate too?

Professor Newman adds wants to bolster the propriety of using the “notwithstanding clause” by pointing out that “[i]t tracked a similar clause in the 1960 Canadian Bill of Rights … and was an important clause in bringing together different constitutional traditions”. Yet although they are worded similarly, section 33 of the Charter and section 2 of the Canadian Bill of Rights have very different functions. The Charter‘s notwithstanding clause makes it possible to deny some of its provisions the status of Supreme Law that they would otherwise have by virtue of subsection 52(1) of the Constitution Act, 1982. By contrast, the notwithstanding clause of the Canadian Bill of Rights serves to protect it against implied repeal by subsequent legislation, and thus to elevate what would otherwise be an ordinary statute to what has been described as “quasi-constitutional” status. Though they can both be described as reconciling the protection of individual rights with Parliamentary sovereignty, the two notwithstanding clauses are thus motivated by opposite concerns. That of the Canadian Bill of Rights is rights-protecting; the Charter‘s is legislation-protecting.

Professor Newman makes some substantive criticisms of the court decision Saskatchewan wishes to override. I hope that I will be able to return to them later on. Suffice it to say that I am still of the view, expressed here, that the decision on the issue of religious freedom was quite obviously correct. Professor Newman also claims that those who criticize Saskatchewan’s use of the notwithstanding clause “miss the realities of governing”―notably the need to prevent the uncertainty about the eventual application of the court decision, indeed the “chaos” that would result from its application. Of course, uncertainty is not eliminated, but merely postponed by invoking the notwithstanding clause, which has to be renewed every five years. More importantly though, as I have already explained, the government has a way to avoid creating “chaos” while complying with the constitution. It only needs to fund all non-public schools equally, without discrimination in favour of Catholic ones.

More importantly still, the “realities of governing” objection, and the concern about uncertainty, could be applied to any number of Charter decisions. Uncertainty has followed the Supreme Court’s decisions declaring unconstitutional the blanket ban on assisted suicide and extreme trial delays, for instance, to name only two. If uncertainty, or public concern, is enough to set aside a judicial decision about rights, then we should drop the pretense of having a judicially enforced Charter of Rights, and go back to the good pre-1982 days of Parliamentary sovereignty. Mr. Kennedy is perhaps more forthright about this, arguing that anyone “who seeks to have a court expand”―or simply declare―”the meaning of Charter rights must be prepared to have the scope of those rights subsequently narrowed by the legislature”.

This is really the heart of the debate. Do we want a judicially enforced constitution, or should we go back to Parliamentary sovereignty? I’m not saying, by the way, that turning the clock back to 1982 would be some sort of catastrophe. Canada was a free country in 1982―albeit a free country where the Lord’s Day Act was good, unassailable law. New Zealand, which does not have rights protections enforceable against Parliament, is a free country, freer than Canada in some ways, though not in others. I think that abandoning judicially enforced rights would be a step backwards, which is why I am so critical of those who want to do it, but it would not be a step into the abyss.

But even though it would not be a crazy thing to do, giving up on judicial enforcement of constitutionally guaranteed rights would involve a substantial change to our constitutional arrangements. Professor Newman claims that those opposed to the use of the “notwithstanding clause” “may be wedded to a different vision of Canada—one oriented only to individualistic rights”. But in truth, however exactly we count them, uses of the “notwithstanding clause” have been a marginal phenomenon for 29 years, ever since Québec gave in to nationalist protests to prevent the use of English in advertising. Professor Newman’s individualistic dystopia is actually our reality. It is he and his fellows, not Andrew Coyne or I, who are “wedded to a different vision of Canada” from that in which we live.

Ostensibly, Professor Newman and Mr. Kennedy might not see themselves as advocating a complete de facto reversal of the 1982 constitutional settlement as it has been implemented by political actors as well as courts over 35 years. They might think that they are only defending occasional uses of the notwithstanding clause in response to particularly problematic judicial decisions. But as I’ve explained before, I do not think there is a tertium quid, some sort of happy Canadian middle ground between Parliamentary sovereignty and judicial enforcement of constitutional rights. If the norm against using the notwithstanding clause disappears, then it will be used proactively, profusely, and promiscuously. Like the Saskatchewan government now, others will use it whenever they think their policy ends justify the means, without paying attention to the rights the constitution is supposed to protect.

As Chekhov knew, placing a loaded rifle on the stage creates an unstable situation. A good dramatist will resolve the instability with a bang―and probably some casualties. But constitutional actors are not comedians. Even if they are put in a position where a loaded gun is within their reach, their responsibility is not to fire it, but to keep it safe if they cannot unload it, and to instruct those who follow them to do likewise. As for constitutional critics, they should not be cheering for the most theatrical resolution. They might enjoy a drama, but when the shots are fired, they are likely to be aimed at the audience.