Dunsmuir and the Constitutional Status of the Administrative State

Have the courts built the administrative state into the constitution’s architecture?

Kate Glover, Western University

I presented some of the ideas summarized here at the ‘Re-writing the Canadian Constitution’ Conference at Boston College Law School, Boston, MA, 19-20 October 2017. This piece is part of a larger project that explores the constitutional character of the administrative state, as well as the implications of that character

The contemporary administrative state in the United States is, Gillian E Metzger writes, under siege on political and judicial fronts.[i] The attack is waged in the President’s tweets, in the administration’s policies, in budget cuts, in failures to fill administrative roles, and in Supreme Court decisions. While Metzger’s descriptive account of the state of administrative justice in America does not reflect the current Canadian experience, it still raises a question worth asking in the Canadian context, namely, would there be any legal recourse in the event of a similar “siege” north of the border?

Part of the answer to this question lies in the constitutional status of the administrative state. Does the network of public actors and institutions that make up the administrative state fall within the protective scope of the constitution? Or, more specifically, does this collection of actors and institutions fall under the protective arm of the constitutional amending formula?[ii] If the administrative state is entrenched within the architecture of the constitution, then the answer is yes. And if the answer is yes, action taken to dismantle or undermine the administrative state could be deemed unconstitutional, thwarted by an absence of the multilateral consensus required under the amending formula.

What, then, is the constitutional status of the administrative state?

The law has traditionally told a story about governance in Canada that imagines the administrative state not as constitutionally necessary, but as constitutionally permissible and, ultimately, constitutionally welcome. Administrative decision-makers are, as Justice Abella explains in Rasanen v Rosemount Instruments (1994) 17 OR (3d) 267 (CA), “designed to be less cumbersome, less expensive, less formal and less delayed”. These actors are, she reasoned, “to resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly”. They are, in other words, established and operate in service of access to justice and the rule of law, but can be created – and reformed and dismantled – at the free hand of the legislature, with few constitutional constraints.

But a study of modern public law jurisprudence in Canada reveals an alternative story of governance and public justice that leads to a different conclusion about the constitutional status of the administrative state. In this alternative account, the administrative state – not in all its particulars, but in its essence and function – is a necessary or essential feature of Canada’s constitutional architecture. It follows, as noted above, that the administrative state is entrenched within the constitution and therefore tucked under the protective arm of the amending formula.

* * *

So what is this alternative account and what does Dunsmuir have to do with it?

In short, the alternative story is told by simply noticing three turns in the public law jurisprudence. Each of these turns reflects an expanded appreciation of administrative decision-makers as part of a common justice project, and together, they support the conclusion that the administrative state is now, as a doctrinal matter, constitutionally necessary. Dunsmuir and its progeny, as it turns out, are an important part of the story. They represent the first turn in the jurisprudence that is important for the story. It is in this turn that we see the emergence of the courts’ commitment to a deferential posture when engaged in review of administrative action. Relatively speaking, this posture is new. The early eras of the administrative state witnessed the courts’ active intervention in administrative decision-making. The courts relied on an expansive category of ‘questions of jurisdiction’ to justify intrusions into administrative decision-making.[iii] The message was that administrative actors were inferior decision-makers requiring strict supervision by the judiciary in the service of the rule of law.

Today, judicial resistance to administrative power has been replaced by an attitude of deference to administrative decisions, including deference on questions of law and statutory interpretation. This deferential approach emerged incrementally as the courts grappled with the challenges of relying on reasonableness as a meaningful standard of review.[iv] The commitment to deference was rooted in respect for, in the words of Professor Mullan and invoked by Justices Bastarache and LeBel in Dunsmuir, “the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”.[v] Ultimately, in the post-Dunsmuir world, defence is the norm. While correctness review remains available on some matters, reasonableness is the default standard whenever an administrative decision-maker is interpreting its home statute or statutes that are close to home,[vi] as well as the de facto default standard in a vast number of other contexts.

The second jurisprudential turn of note is witnessed in the expansion of administrative decision-makers’ jurisdiction over constitutional matters. The law has not always granted these actors direct access to, or responsibilities under, the constitution. However, since the later decades of the twentieth century, public law jurisprudence has been loosening the judicial grip on constitutional interpretation. Where do we see this loosening? Martin and Conway are two examples.[vii] Here, we see the Court invoking access to justice, administrative expertise, and constitutional logic to conclude that public officials who are empowered to decide questions of law are also necessarily empowered to answer related constitutional questions and to grant Charter remedies, unless such authority has been clearly revoked. Doré is another example.[viii] There, the Court counselled deference when reviewing decisions of administrative decision-makers that engage Charter values. Again, tracing the increasingly broad and central role of administrative decision-makers in carrying out constitutional analysis and duties seen in Baker, Conway, and Dunsmuir, the Court in Doré held that a deferential approach reflects the “distinct advantage that administrative bodies have in applying the Charter to a specific set of facts and in the context of their enabling legislature”. Clyde River and Chippewas of the Thames First Nation are two final examples.[ix] These cases confirm that the actions of administrative decision-makers can both trigger and fulfill the Crown’s duty to consult Indigenous peoples whose rights and interests are affected by public decisions. In effect, these cases confirm that administrative actors are drawn into treaty relationships, bear the weight of upholding the duties of the honour of the Crown, and share responsibility for pursuing the goal of reconciliation of Indigenous peoples and the Crown. Ultimately, this set of cases suggests that public decision-makers have a direct and close relationship to the constitution, bearing meaningful responsibility in upholding, fulfilling, and applying constitutional obligations and remedies. It is a relationship that would be difficult to reconcile with the notion that the administrative state is not itself central to the architecture of the constitution.

The third and final turn in the jurisprudence is seen in the shrinking limits on administrative powers and jurisdiction under section 96 of the Constitution Act, 1867. Section 96 protects the special status and core jurisdiction of the superior courts. In the early decades of the twentieth century, section 96 was interpreted broadly and strictly, precluding the transfer of any judicial power to administrative decision-makers or statutory courts.[x] This protectionist stance was hostile to the creation and expansion of the administrative state, severely limiting the dispute resolution and adjudicative powers that could be delegated to administrative decision-makers and the sectors in which they could be involved. On this model, the courts, and more specifically the superior courts, were at the centre of the legal system and were to be protected against the intrusion or usurping of power by the burgeoning administrative state.

In fairly short order, the interpretation and application of section 96 – and the limits it created for the creation of the administrative state – loosened.[xi] In the latter half of the twentieth century, the courts pivoted to a liberal and generous approach to section 96.[xii] This flexible approach authorized the administrative state to take up novel jurisdictions, with novelty measured against the conceptual categories of the nineteenth century, and to perform adjudicative roles that are either important to policy goals or integrated into a broader institutional setting.[xiii] With this shift, the courts have contributed to the conditions in which the administrative state can be nimble, sprawling, and directly responsive to the diverse social problems it is intended to address. Together with the other two jurisprudential turns chronicled here, this shift contributes to the conclusion that the administrative state can no longer fairly be conceived of as merely permitted. It is, rather, difficult to conceive of Canada’s constitutional architecture without it.

* * * * *

Dunsmuir is a case about the structural dimensions of the constitutional order; questions of standard of review always are.  And so its tenth anniversary is an opportunity to reflect not only on the particulars, but also on where Dunsmuir might fit within the grander constitutional vision. As I’ve argued here, Dunsmuir is part of a vision that sees the administrative state as a central part of the expansive set of institutions on which the country relies in the pursuit of a flourishing public life. Perhaps this shields us somewhat from a siege on the administrative state and perhaps by Dunsmuir’s next anniversary, we’ll know.

[i] Gillian E Metzger, “Foreword: 1930s Redux: The Administrative State Under Siege” (2017) 131:1 Harv L Rev 1.

[ii] On the protective function of the amending formula, see Sébastien Grammond, “The Protective Function of the Constitutional Amending Formula” (2017) 22:2 Rev Con Stud 171.

[iii] See e.g. Port Arthur Shipbuilding Co. v. Arthurs, [1969] SCR 85; Metropolitan Life Insurance Co v International Union of Operating Engineers, Local 796, [1970] SCR 425.

[iv] CUPE v New Brunswick Liquor Corporation, [1979] 2 SCR 227. See e.g. UES, Local 298 v Bibeault, [1988] 2 SCR 1048; Pezim v British Columbia (Superintendent of Brokers), [1994] 2 SCR 557; Canada (Director of Investigation and Research) v Southam Inc, [1997] 1 SCR 748; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982; Dr. Q, supra; Dunsmuir v New Brunswick, 2008 SCC 9.  

 [v] DJ Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 CHALP 59 at 93, cited in Dunsmuir, ibid at para. 49.

[vi] Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61.

[vii] Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, [2003] 2 SCR 504; Nova Scotia (Workers’ Compensation Board) v Laseur, 2003 SCC 54, [2003] 2 SCR 504; R v Conway, 2010 SCC 22, 1 SCR 765 [Conway].

 [viii] Doré v Barreau du Quebec, 2012 SCC 12.

[ix] Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40; Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41.

[x] See e.g. Toronto Corporation v York Corporation, [1938] AC 415.

[xi] See e.g. Labour Relations Board of Saskatchewan v John East Iron Works Limited, [1949] AC 134.

[xii] Procureur Général de Québec v Barreau de la Province de Québec, [1965] SCR 772; Tomko v Labour Relations Board (Nova Scotia), [1977] SCR 112; The Corporation of the City of Mississauga v The Regional Municipality of Peel et al, [1979] 2 SCR 244; Reference re Residential Tenancies Act 1979 (Ontario), [1981] 1 SCR 714.  Indeed, the case law shows that over the past several decades, on the occasions when administrative decision-makers are challenged on section 96 grounds, the vast majority are unsuccessful. See e.g. R v Morrow, 1999 ABCA 182; Campisi v Ontario, 2017 ONSC 2884; Northstar Lumber v USWA Local 1-424, BCCA; Council of Canadians v Canada (AG), [2006] OJ No 4751 (CA); Air Canada v Canada (Commissaire de la concurrence, [2003] 18 Admin LR (4th) 14 (QCCA); Spellman v Essex (Town), [2002] OMBD No 784; Cameron v Sparks; Teal Cedar Products Ltd v British Columbia (Minister of Forests), 2008 BCSC 239; Pye v Pye, 2006 BCSC 505; Saskatchewan (Workers’ Compensation Board) v Saskatchewan (Board of Inuqiry), [1998] SJ No 503 (Sask Ct QB). Contra: Halme’s Auto Service Ltd v British Columbia (Regional Waste Manager), Decision Nos. 1998-WAS-018(c) & 1998-WAS-031(a) (Environmental Appeal Board).

[xiii] Reference re Residential Tenancies Act 1979 (Ontario), [1981] 1 SCR 714; Reference re Amendments to the Residential Tenancies Act (NS), [1996] 1 SCR 186.

 

Yes, They Can

Constitutional amendment with provincial consent is not required for electoral reform.

The federal government’s pursuit of electoral reform has raised a number of questions: is reform necessary or desirable at all? If so, what new electoral system to adopt? Should the people be consulted before reform is implemented? And now, thanks to op-eds published by Michael Pal in The Globe and Mail, and Yaakov and Jonathan Roth in The Toronto Star, we also have to ask ourselves whether it would be constitutional. In my view, however, the answer to the latter question is much clearer than to the others. The constitution is no obstacle to Parliament acting alone to implement (most forms of) electoral reform. (By the way, in case you think that my opinion on this is relevant to assessing the argument that follows: I think that electoral reform is a bad idea, and I think that if the government insists on endorsing it, there should be a referendum before reform is implemented.)

Section 44 of the Constitution Act, 1982 ― which prof. Pal describes as an “obscure provision,” and Messrs. Roth do not mention at all ― provides that “exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons, subject to sections 41 and 42. As a starting point, it would seem logical to consider electoral reform an amendment to “the Constitution of Canada in relation to … the House of Commons,” and thus within the purview of Parliament, except insofar as sections 41 and 42, to which I will return, provide otherwise.

Those who think unilateral electoral reform would be unconstitutional point to the Supreme Court’s opinion in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, which introduced the notion of “constitutional architecture” that limits Parliament’s amending power under section 44. The “architecture,” which seems to consist of “assumptions that underlie the text [of the constitution] and the manner in which the constitutional provisions are intended to interact with one another,” is an entrenched part of the constitution, and cannot be amended by Parliament acting alone.

Prof. Pal suggests that the first-past-the-post electoral system is part of that architecture since, although it “is not mentioned directly in the Constitution, … [n]umerous parts of the Constitution presume that [it] is in place.” Moreover, in his view, electoral reform “would affect provincial interests,” although “[l]esser changes than a move to proportional representation could be interpreted as” doing so “only trivially … and not really changing the constitutional architecture.” For their part, Messrs. Roth insist that the Constitution Act, 1867 “expressly assigned to each province a fixed number of ‘electoral districts,’ each entitled to return ‘one member’ to the House. This ‘constitutional architecture’ plainly presupposes district-based elections.” They also point to the use of first-past-the-post in the United Kingdom, to whose constitution ours was intended, according to its preamble, to be “similar in principle.”

But it is not enough, it seems to me, to say that first-past-the-post is how we always elected representatives to show that it is a part of the “constitutional architecture” as the Supreme Court understood that notion in the Senate Reform Reference. In that opinion, the Court said that “the institutions provided for in the Constitution” ― such as the House of Commons ― “can be … changed to some extent under ss. 44 and 45, provided that their fundamental nature and role remain intact.” [48] That, in my view, is what electoral reform would do. It might change the House of Commons to some extent (though to what extent would depend on the shape the reform takes), but would not affect its “nature” as the representative part of our national legislature or its role of serving as the electoral college for the choice of a Prime Minister, making laws,  and pretending to hold government to account.

Prof. Pal never says, unfortunately, what parts of the constitution rely on first-past-the-post, and for my part, I am unable to figure out what they are. It is noteworthy, for instance, that section 3 of the Canadian Charter of Rights and Freedoms provides that “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons” (emphasis mine), as opposed to, say, “the election of a member.” The latter formulation would presuppose election in single-member districts. The former does not, since an election under a system of proportional representation is still “an elections of members of the House of Commons.” As for the provisions assigning a specified number of districts to each province, which Messrs. Roth invoke, these were obviously intended to be, and have been, amended by Parliament acting alone since 1867, as the number of districts and members of Parliament was increased.

Note, by the way, that contrary to what Messrs. Roth say, one or two of the districts created by section 40 of the Constitution Act, 1867 were actually entitled to two representatives in the House of Commons. Indeed, multi-member districts were common in the United Kingdom in 1867 ― most English Members of Parliament represented counties or boroughs that returned two members each, and some counties had three representatives. There were even exceptions to the principle of geographical representation (as well as the one man, one vote principle), in the shape of university constituencies that allowed the holders of some degrees from some universities to elect additional representatives for their almae matres. Quite apart from the fact that the legal effect of the preamble to the Constitution Act, 1867 is matter of doubt on which the Supreme Court has wavered over the years, the claim that geographical constituencies electing single members of Parliament using a first-past-the-post system was a matter of long-standing fundamental constitutional principle in the United Kingdom in 1867 is historically inaccurate.

Thus I am not at all persuaded that the constitution’s entrenched text in any way depends on or implies the first-past-the-post voting system. If anything, I suspect ― though I have not done the historical research to prove it ― that section 3 of the Charter might have been written specifically to avoid entrenching this arrangement. Nor do I think that electoral reform would impermissibly affect the constitution’s architecture. While changes in the relationship between Parliament and the executive are conceivable in the wake of a move to some form of proportional representation, they are unlikely to be fundamental in nature. As for changes to the relationship between Parliament and the provinces, I do not understand how any could result ― except in the one case which is also ruled out by the constitutional text.

The exception to Parliament’s general ability to enact electoral reform under section 44 of the Constitution Act, 1982 concerns reform plans that would sever the relationship between members of Parliament and provinces from which they are elected ― in other words, those versions of proportional representation that would distribute seats on the basis of national, rather than provincial vote totals. The trouble for such systems lies in the entrenchment, in section 41(e) of the Constitution Act, 1982 of “the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province [was] entitled to be represented” in 1982, and in section 42(a), of “the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada” (emphasis mine in both cases). It is thus the provinces ― though not any territorial subdivisions within the provinces ― that form the basis of representation in the House of Commons, and that principle is indeed part not only of the constitution’s architecture, but of its very text.

Provided that it respects this principle, however, Parliament is constitutionally free to change voting arrangements by ordinary law enacted under section 44. Such changes would, no doubt, be of great political significance. But while that may be (I think it is) an important argument in favour of giving the people a say over electoral reform, it is not, in itself, a reason to consider that constitutional amendment with provincial consent is necessary to effect such changes. The Senate Reform Reference does not hold the contrary. The question of electoral reform’s constitutionality is, I believe, a distraction from those about its desirability and the process by which its desirability ought to be determined.

Don’t Rebuild It

I wrote yesterday about the uncertain constitutionality of the federal government’s outsourcing of the choice of potential nominees for the Supreme Court to the government of Québec (or any other province). The government’s reliance on such a process is, according to the Globe’s Sean Fine, who broke the story yesterday, not intended to create a precedent. But of course the provincial government would like it to become one. And today, André Pratte has an op-ed in the Globe arguing to that it should. Remarkably enough, Mr. Pratte seems to have no qualms about the extra-constitutional introduction of a fundamental change to the process of Supreme Court appointments. He writes that

[c]onstitutional deals reached in Victoria (1971), Meech Lake (1987) and Charlottetown (1992) all contained provisions to give the provinces a substantial role in the selection of Supreme Court justices. That part of those federal-provincial agreements was not controversial; it just made sense. A constitutional agreement is not needed to achieve better balance. All that’s required is that the federal government decide that the process currently being followed in the aftermath of the Nadon imbroglio will be the rule from now on. (Paragraph break removed)

As I explained in my last post, this may or may not be so. But even if Mr. Pratte is right that a constitutional amendment is not necessary to make the new appointments process permanent, I believe that he is wrong to advocate for it. In his view,

Ottawa’s absolute discretion in choosing members of the Supreme Court has long been considered a flaw in Canada’s federal system. Peter Hogg, the country’s foremost expert on constitutional law, summarizes the argument in this way:

The court serves as the ‘umpire of federalism’ and it is inappropriate that the judges should be selected by only one of the contending levels of government.

Mr. Pratte adds that if the new process becomes permanent,

the damage done to the Supreme Court by [the Prime Minister’s] recent words and deeds will be repaired. Better still, the legitimacy and credibility of the court will be heightened, especially in Quebec.

This argument does not follow. To the extent that the Prime Minister has succeeded at damaging the Supreme Court (and it is not at all clear to me that he has), the words and deeds by which he did so ― the failed nomination of Justice Nadon and the government’s subsequent criticism of Chief Justice McLachlin ― had nothing at all to do with the “flaw in Canada’s federal system” which the new appointments process will supposedly rectify. Had the government appointed a judge of the Québec Court of Appeal instead of Justice Nadon, the alleged damage would not have happened, despite the appointment being “flawed,” in Mr. Pratte’s sense.

Yet how much of a flaw is it really that the federal government appoints judges unilaterally? In practice, the Supreme Court’s recent blockbuster decisions ― the one concerning the eligibility of Justice Nadon and that in the Senate Reform Reference ―, as well as Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837, which declared a proposed federal securities regulator unconstitutional belie any claim that the Supreme Court is biased in favour of the federal government.

And even at the level of theory, there is a good argument to be made for unilateral federal appointments. Canadian history has borne out James Madison’s famous argument in Federalist No. 10 that small polities are more vulnerable to “faction” and the tyranny of the majority than larger ones. Our federal governments have tended to be more moderate than provincial ones, and less susceptible to takeovers by ideological entrepreneurs from outside the Canadian mainstream, whether the Social Credit of Alberta or the separatists of Québec. Foreseeing this, the framers of the Constitution Act, 1867 gave the power of appointing judges of provincial superior courts to the federal rather than the provincial governments. It stands to reason that the judges of the Supreme Court, whose decisions have effect not only in one province, but throughout Canada, should a fortiori be appointed by the government more likely to be moderate and representative of the diversity of the views of the country ― that is to say, by the federal government.

Québec’s case is illustrative. The federal government presumably is comfortable with, or at least not very worried about, outsourcing the selection of potential Supreme Court judges to a relatively friendly, federalist government. Would it have felt the same way if the Parti Québécois ― not only separatist, but also committed to the infamous “Charter of Québec Values” (which the federal government had vowed to fight in court!) had won the recent provincial election? And how would Mr. Pratte ― who, to his great credit, was among the leaders of the fight against that shameful “Charter” ― have felt about its proponents picking the names of the judges who would have had the last word on its constitutionality?

The power to appoint Supreme Court judges belongs to the federal government, and it alone, for good reason. Taking up the Court’s architectural metaphor, the constitutional edifice built in 1867 (and 1875, when the Court was created, and then 1982 when it was, so it says, constitutionally entrenched) has weathered some great storms, and given us all shelter and comfort. It is in no danger of crumbling. Do not try to rebuild it.

Conventional Thinking

There is big news on the Supreme Court appointment front today, which is arguably not getting enough attention. According to the Globe’s Sean Fine, “[t]he Conservative government has turned to Quebec to create a candidate list for the Supreme Court of Canada” ― asking the provincial government to submit names of potential replacements for Justice Fish (who retired last fall) and Justice Nadon (whose appointment the Supreme Court invalidated in March). The federal government is promising to choose the new judge from the provincial list. Relying on a federal government “source”, Mr. Fine writes that

the new process is not meant to be a precedent … It applies to the current vacancy, but will probably not be used to select a replacement for Justice Louis LeBel of Quebec when his retirement takes effect at the end of November. It would be wrong to see the same process being used for the two judges, the federal source said.

Except that Québec’s Justice Minister does not see it that way. In her view, “the collaboration undertaken with [her] federal counterpart will allow us to chart the course for things to come.”

What we are witnessing, at least for this appointment, but perhaps for the future too, if the Québec government has its way (and perhaps those of other provinces, which would not want to miss out on such an expansion of their powers), is nothing less than the implementation of the appointment process that would have been constitutionalized (in a proposed section 101C of the Constitution Act, 1867) by the (failed!) Meech Lake Accord. In the mid-1980s it was thought that this sort of change required a constitutional amendment, debated over years of public agony; in the mid-2010s, it can apparently be done by some phone calls, about which we learn weeks after the fact and might not care. But what about those big huge Supreme Court decisions this spring, in the Nadon case and in Reference re Senate Reform, 2014 SCC 32? didn’t those have something to say about changing the constitution, in particular as it concerns the Supreme Court? Well, they did. But the events might be exposing the limits of the Court’s pronouncements, and indeed of its power, faster than anyone probably expected.

In the the Nadon decision, the Supreme Court’s majority was of the opinion that

[u]nder s. 41(d) [of the Constitution Act, 1982], the unanimous consent of Parliament and all provincial legislatures is required for amendments to the Constitution relating to the “composition of the Supreme Court”. The notion of “composition” refers to ss. 4(1), 5 and 6 of the Supreme Court Act, which codify the composition of and eligibility requirements for appointment to the Supreme Court of Canada as they existed in 1982 (par. 91).

It further found that all other “essential features of the Court” (par. 94) were entrenched under par. 42(1)(d) of the Constitution Act, 1982, thus being subject to amendment under the “7/50” formula. Interestingly, the majority’s opinion omits the Supreme Court Act‘s reference to the appointment process ― subs. 4(2), which provides that “[t]e judges shall be appointed by the Governor in Council by letters patent under the Great Seal” from the list of provisions entrenched by s. 41. Nor is it entirely clear whether it is entrenched by par. 42(1)(d). The majority’s opinion states that “the essential features of the Court” which are so entrenched are to be

understood in light of the role that it had come to play in the Canadian constitutional structure by the time of patriation. These essential features include, at the very least, the Court’s jurisdiction as the final general court of appeal for Canada, including in matters of constitutional interpretation, and its independence.

The appointment mechanism is conspicuously absent from this meagre list, but then the list is not exhaustive. It seems at least logical to suppose that it is, in fact, an “essential feature” of the Court. And, to reiterate, in the years following patriation, the political actors presumably thought that it was entrenched and required constitutional amendment to be changed.

Now, subs. 4(2) of the Supreme Court Act only mentions appointment by the Governor in Council. It doesn’t say anything about any procedure that must, may, or may not be followed prior to that appointment. Sounds familiar? It should. That’s also the situation with respect to appointments to the Senate under s. 24 of the Constitution Act, 1867, which provides that “The Governor General shall from Time to Time … summon qualified Persons to the Senate.” In the Senate Reform Reference, the government argued that this silence about what preceded appointments allowed it to organize “consultative” elections the winners of which the government would have to “consider” recommending to the Governor General for appointment. The Supreme Court rejected this claim, first and foremost on the basis that “consultative” elections “would fundamentally alter the architecture of the constitution” (par. 53).

Unfortunately, the Court does not define this notion of constitutional “architecture” well at all, beyond saying that it has something to do with “[t]he assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another” (par. 26). The Senate’s place in the constitutional “architecture” is that of a chamber of “sober second thought,” devoid of democratic legitimacy and the ability to challenge the House of Commons that elections would confer on it. But what about the Supreme Court?

In my view, there is a strong argument to be made that it was always an “assumption[] underlying the text” both of s. 101 of the Constitution Act, 1867, which authorized Parliament to create the Supreme Court in the first place, and then of the amending formula of the Constitution Act, 1982, that the federal government would be in control of the appointments to the Supreme Court, and that provincial governments would not be part of it. Again, it is based on this assumption that the inclusion of the provinces in the process was stipulated in the Meech Lake Accord for constitutional amendment and not just implemented on an informal basis.

So is the involvement of a provincial government in the appointment of a Supreme Court judge unconstitutional in the same way as “consultative elections” to the Senate? Perhaps not. In a paper dealing with the federal government’s Senate reform plans (published before the Supreme Court heard, much less decided the Senate Reform Reference), Fabien Gélinas and I have argued that there is a distinction to be made between a law setting up “consultative elections” and an informal process of genuine consultation prior to the appointment of a Senator:

the Prime Minister is free to consult before advising the Governor General to summon a person to the Senate. However …  when that consultative process is made the subject of legislation, that legislation—unlike a mere practice—must pass constitutional muster. The distinction between practice and legislation is … what allows constitutional conventions to grow even when the conventional rule is at odds with a clear rule of constitutional law. The legal limits on the constitutional changes that Parliament can achieve by legislating are more stringent than the political limits that constrain the actual action of the Prime Minister. This is only logical, because a law, once enacted by the Parliament of today, needs no further confirmation by those of the future to remain in force, whereas the practice of a single Prime Minister will not acquire the binding character of a convention unless his or her successors come to view it as “the constitutional position” and feel bound by it themselves (p. 122; reference omitted).

The involvement of the Québec government in the forthcoming Supreme Court appointment is informal; even if the process is repeated when Justice Lebel is replaced, it will still be a mere practice, not the subject of legislation. The Québec government will have to hope that the current Prime Minister’s successors will feel bound to replicate the practice for it to crystallize into a firm constitutional convention.

Yet the notion of a “constitutional architecture” challenges the orthodox distinction between law and convention on which we relied (without quite believing ― certainly on my part ― in the distinction’s validity). It may be that some of the current constitutional conventions are part of the entrenched “architecture.” It may also be that the “architecture” prevents the development of new conventions that would undermine it. I don’t think that anyone ― including the members, current or future, of the Supreme Court ― know whether it does. And it is doubtful whether we will find out. If both the federal and the provincial government are on board, no one will begin a reference that would force the Supreme Court to clarify its position. Could another Rocco Galati challenge the appointment that will come out of the current process? Perhaps, but I wouldn’t count on it happening. One thing that seems reasonably certain, however, is that although conventional thinking may no longer hold as a result of this spring’s decisions by the Supreme Court, thinking about constitutional conventions, which the Court avoided, will still be necessary.

UPDATE: I explain why, regardless of its constitutionality, making permanent this change in the appointments process is a bad idea in this post.

The Façade and the Edifice

This is my much-delayed post on the Supreme Court’s opinion, issued last Friday, in Reference re Senate Reform2014 SCC 32. Although the Court’s conclusions, all of which I had correctly predicted the day before, were not really a surprise, its reasoning was somewhat unexpected. It is also rather vague and difficult to understand. This may have been the price to pay for a unanimous decision, an attempt to paper over some underlying disagreements between the judges about the best approach to take. But the Court’s reasoning might also signal a new departure, a shift in Canadian constitutional law and theory. 

As everybody knows by now, the Supreme Court held that the introduction of term limits for Senators and of “consultative” elections to the Senate require the consent of seven provinces with more than half of Canada’s population, while the abolition of the Senate requires the unanimous consent of all the provinces. The requirement that Senators own a property worth at least 4000$ can be abolished by Parliament acting alone, except with respect to Québec, which has to consent to the modification of the special rule pursuant to which its Senators must own property within specific districts in the province.

After throat-clearing describing the Senate’s roles as a legislative chamber of “sober second thought,” and one in which both the regions of Canada and minorities, not well represented in the House of Commons, could have a voice, the substantive part of the Court’s opinion begins with a discussion of the nature of the Canadian constitution and constitutional amendment. And this is where it gets interesting.

The constitution, says the Supreme Court, includes not only texts (both those referred to in subs. 52(2) of the Constitution Act, 1982 and others), but also an “architecture,” which has to do with the way in which its components interact and complement each other. This architecture might be similar or related to the underlying constitutional principles which the Court identified in Reference re Secession of Québec, [1998] 2 SCR 217, in that like the principles, it informs constitutional interpretation. But it is a more multi-faceted concept than that of underlying principles. The “architecture” consists of “the assumptions that underlie the text and the manner in which the constitutional provisions are inteded to interact with one another” (par. 26). And, crucially, since the constitution does not only consist of text but also of its “architecture,” “amendments to the Constitution are not confined to textual changes. They include changes to the Constitution’s architecture” (par. 27).

Another, seemingly separate, consideration in understanding and applying the rules regarding constitutional amendment codified in the Constitution Act, 1982, is “the principle that constitutional change that engages provincial interests requires both the consent of Parliament and a significant degree of provincial consent” (par. 29). The

amending formula [is] designed to foster dialogue between the federal government and the provinces on matters of constitutional change, and to protect Canada’s constitutional status quo until such time as reforms are agreed upon (par. 31).

Therefore, the “7/50” amending formula (requiring the consent of two thirds of the provinces with at least half of Canada’s population), which balances flexibility and the need for consensus, is the default option. Other amending formulae are exceptions. The Court provides a few remarks on those. It observes that s. 43 of the Constitution Act, 1982, requiring federal and provincial consent, is applicable to “special arrangements” for one or several provinces, which must assent to any change to such arrangements (par. 44). The Court also notes that the unilateral amendment procedures in ss. 44 and 45 are applicable only to those changes to, respectively, the federal and the provincial constitutions which “do not engage the interests of the other level of government” (par. 48). The Court adds that

[n]either level of government acting alone can alter the fundamental nature and role of the institutions provided for in the Constitution. This said, those institutions can be maintained and even changed to some extent under ss. 44 and 45, provided that their fundamental nature and role remain intact (par. 48).

The opinion then moves on to the specific questions asked in the reference. The first set of questions concerned “consultative” elections to the Senate, the results of which the Prime Minister would be obliged to “consider”, while theoretically retaining the discretion not to recommend their winners for appointment to the Senate. The federal government argued that such elections were permissible, since their introduction did not alter the constitutional text. But that argument, says the Court, “privileges form over substance” (par. 52):

 While the provisions regarding the appointment of Senators would remain textually untouched, the Senate’s fundamental nature and role as a complementary legislative body of sober second thought would be significantly altered.

This would “amend the constitution … by fundamentally altering its architecture” (par. 54). That architecture includes the Senate’s relative independence from partisan politics, and also its role as “complementary” rather than a competitor to the elected House of Commons. Elections “would give it the democratic legitimacy to systematically block the House of Commons, contrary to its constitutional design” (par. 60). Although the Court does not explicitly mention the constitutional convention which obliges the Senate to yield to the Commons’ will, the reference is unmistakable.

Remarkably, it is only after this discussion of “architecture” that the Court turns to the constitutional text, which it says “support[s]” its conclusions, and whose “words … are guides to identifying the aspects of our system of government that form part of the protected content of the Constitution” (par. 64). The “plain meaning” (par. 67) of these words ― specifically, the term “method of selecting Senators” in par. 42(1)(b) of the Constitution Act, 1982 ― covers “consultative” elections, because they describe not only the formal mechanism whereby Senators are appointed by the Governor General, but also the “selection” of the persons thus appointed.

The second question the Court had to consider envisioned the introduction of term limits of varying length for Senators. Here, it begins with text, observing that s. 42 does not refer to term limits, but also asserting that “7/50”, not unilateral amendment, is the default procedure even for changes to the Senate not mentioned in s. 42:

Changes that engage the interests of the provinces in the Senate as an institution forming an integral part of the federal system can only be achieved under the general amending procedure (par. 75).

The Court takes the view that the imposition of term limits would fundamentally change the Senate, by limiting the Senators’ independence and thus undermining their capacity for “sober second thought.” Although a very long fixed term would conceivably be equivalent to the current system of appointment until the age of 75 in this respect, it is impossible for a court to decide what length would be sufficient; “this is at heart a matter of policy.” And thus

[t]he very process of subjectively identifying a term long enough to leave intact the Senate’s independence engages the interests of the provinces and requires their input” (par. 82).

Property qualifications, by contrast, do not engage provincial interests. Their removal would not interfere with the Senate’s role or the Senators’ independence, and can (except with respect to Québec, as explained above), be achieved unilaterally.

The final question of the reference concerned the outright abolition of the Senate. Here again, “architecture” becomes arguably the dominant factor in the analysis. Although the Court also finds that the abolition of the Senate would amend the amending formula itself, requiring unanimous provincial consent, this is not the first consideration it mentions. What comes first is the assertion that

abolition of the Senate would fundamentally alter our constitutional architecture — by removing the bicameral form of government that gives shape to the Constitution Act, 1867 (par. 97).

The Court also observes that the abolition of the Senate was not contemplated in 1982, so that it cannot be construed as a mere reduction ― to nothing ― of its “powers” and membership, as the federal government argued.

I will try to have some more specific comments on the Court’s opinion, but here are three quick ones. First, as I noted in earlier posts on this case, the Supreme Court has consistently resisted attempts at unilateral constitutional reform, whether by the federal government (starting 35 years ago in Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54, then in the Patriation Reference, and now again), or by a province (in the Secession Reference). Whatever else it thinks of the constitution, the Court clearly believes it is one that requires consensus. Second, beyond that, it is still not really clear what the constitution is. In particular, it is not clear just what the “constitutional architecture” the Court relies on is. However, as I suggest above, it seems to include (at least some) constitutional conventions. Yet the Court simply did not address the serious (although in my view not insuperable) theoretical and practical difficulties with incorporating conventions into constitutional law. Third, and most broadly, the court seems to have given a remarkably bold answer to the question I asked in my analysis of the oral argument ― what to make of the constitution? ― or, more precisely, of the constitutional text. The text, its opinion suggests, is no more than a façade. We can look at it, of course, and it can give us useful hints of what lies behind it. But the real architecture of the constitutional edifice is hidden from our view. And if there is a door through which one can pass to observe it, it is only the Supreme Court that has the key.