“Clear Enough”

Some thoughts on statutory interpretation.

As I finish my graduate studies at  Chicago, it struck me that a major theme of legal design is the degree of perfection (if any) we should expect from legal rules. Drafted legal rules—whether by the legislature or judiciary—will always be over and underbroad, because rules of general application cannot foresee every idiosyncratic individual application. In such a case, the extent to which a perfect rule can be created is dependent on the extent to which we balance the error rate of application with the ease of administrability of a straightforward rule. Here, we will never come to a perfect balance, but we can try to come to something that is defensible and workable.

The same sort of consideration applies in the field of statutory interpretation. The most important issue in statutory interpretation is the clarity exercise—how clear is clear enough? Finding that a statutory text is clear on its face leads to a number of important consequences. For one, the Supreme Court has said that where text is “precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process” as opposed to purpose (Canada Trustco, at para 10). Additionally, the use of Charter values in statutory interpretation to gap-fill only arises where there is ambiguity in the ordinary textual meaning (BellExpressVu, at para 28). And, as Gib Van Ert points out, the Federal Court of Appeal seems to be adopting a similar rule in the context of international law.

Some may object at the outset to a consideration of “clarity” as a means of discerning legislative intent on a particular subject. This line of opposition is deeply rooted in the idea of legal realism, with its skepticism of judicial modes of reasoning and the rejection of abstract legal thought as a means to come to clear answers on the law. Representative works in this regard include John Willis’ “Statutory Interpretation in a Nutshell,” where he argues that, in modern legislation which uses wide language (often to delegate authority to others), literal interpretation does no good, essentially because the language is broad and unclear. And he notes that even if interpretation could be  clear or plain on its face, there are differences between judges as to what “plain” constitutes (see 10 and 11). Additionally, Karl Llewellyn’s classic article on the “dueling canons of interpretation” sheds doubt on the use of the canons of statutory interpretation to come to any clear meaning that is not inspired by motivated reasoning. Underlying each of these important critiques is a belief in the relativism and contingency of language. Clarity, on this account, is probably a fool’s errand, in part because ascribing an intent to the legislature is difficult with open-textured language, and in part because language itself is inherently unclear. If this is true, it will be the rare case indeed where a court should be convinced that a text is clear.

While this might sound good to a lawyer’s ear—especially a lawyer that is paid money to exploit ambiguities—it does not comport with the way we use language in the majority of cases. And this is where the example of crafting legal rules comes into handy. One might wish to craft a legal rule to cover all of the interstitial, idiosyncratic applications—ones that are weird or abnormal. But then we create a rule that might work well in the individual case, and not in the general run of cases. Instead, we should craft legal rules based on the 98% of cases, not the 2%: see Richard Epstein’s Simple Rules for a Complex World on this score. In the realm of statutory interpretation, this means that we should start with the going-in, commonsense presumption that language is generally clear in the majority of circumstances, after a bit of listening and synthesis. People transact in the English language everyday with no major kerfluffles, and even conduct complex business and legal dealings without requiring a court to opine on the language they are using. This underlying mass of cases never makes it to court precisely because English works. The problem with statutory interpretation cases, then, is the major selection effect they present. The cases that make it to court, where the rules are developed, are the cases that are most bizarre or that raise the most technical questions. Those are not the cases on which we should base rules of general application. Instead, the rule should simply be that English works in most circumstances, as evidenced by the fact that each of us can generally communicate—with only small hiccups—in the day-to-day world.

If that is the rule adopted, and if legal language is really no different in kind (only in degree of specificity and technicality), then a court should not be exacting in its determination of the clarity of a statutory provision. That is, if language generally works on first impression, then there is no need for a court to adopt a presumption that it doesn’t work, and hence that something greater than “clear enough” is required to definitively elucidate the meaning of a text. We should merely assume that language probably works, that legislatures know language, and that courts have the tools to discern that language. While we should not assume that language is perfect, we should at least assume that it is workable in an ordinary meaning sense.

This approach also has the benefit of commonsense. Perfection is not of this world.  The legal realists put way too high a standard on the clarity of language, to something approaching perfect linguistic clarity rather than semantic workability. We should not craft legal rules around the fact that, in some far-off circumstances, we can imagine language not working.

What does this mean in operation? The American debate over Chevron deference supplies a good example. Chevron holds that where Congress has spoken to the precise question at issue, courts should not afford deference to an agency’s interpretation of law. This is Chevron Step One. If Congress has not spoken clearly, the court moves to Chevron Step Two, where it will defer to the interpretation and uphold it if it constitutes a reasonable interpretation of law. In a recent case, Justice Gorsuch concliuded at Chevron Step One that the text was “clear enough,” so that deference should not be afforded. The clear enough formulation is reminiscent of Justice Kavanaugh’s article, where he explains the various divisions among judges about clarity:

I tend to be a judge who finds clarity more readily than some of my colleagues but perhaps a little less readily than others. In practice, I probably apply something approaching a 65-35 rule. In other words, if the interpretation is at least 65-35 clear, then I will call it clear and reject reliance on ambiguity-dependent canons. I think a few of my colleagues apply more of a 90-10 rule, at least in certain cases. Only if the proffered interpretation is at least 90-10 clear will they call it clear. By contrast, I have other colleagues who appear to apply a 55-45 rule. If the statute is at least 55-45 clear, that’s good enough to call it clear.

Kavanaugh’s approach is probably closer to the right one, if we accept the general proposition that language will be workable in the majority of cases. If there is no reason to doubt language, then clarity will be easier to come by. It is only if we go in assuming the case of unworkability that clarity becomes a fool’s errand. But from a perspective of legal design, this is not desirable.

Law has a reputation for being a highly technical field, with a laser focus on commas, semicolons, and correcting the passive voice. But at the level of designing legal rules, including rules governing language, the best we can hope for is workability, not technical precision. This is because designing rules involves tradeoffs between incentives, administrability, and fit. And because humans are not perfect, we cannot design rules at this level of abstraction that are perfect. As a result, in the language context, the best we can and should do is workability in the general run of cases.

Concurring Opinion

Does the Charter’s “notwithstanding clause” exclude judicial review of legislation? Not quite!

Earlier this month, Grégoire Webber, Eric Mendelsohn, and Robert Leckey published an interesting challenge to what they termed “[t]he faulty received wisdom around the notwithstanding clause” over at Policy Options. Professor Webber, Mr. Mendelsohn, and Dean Leckey argue that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause”, by a legislature that enacts a statute does not fully insulate that statute against judicial review. Only the consequences of such review, not its availability, are affected. A court can still declare a statute protected by the “notwithstanding clause” to be contrary to the Charter ― albeit that the statute will continue to apply. This is an intriguing argument, and I think that it is correct.

Section 33(2) of the Charter provides that “[a]n Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.” Professor Webber, Mr. Mendelsohn, and Dean Leckey point out that “The word ‘override'”, often used to describe section 33, “appears nowhere and there is no mention of ‘judicial review’. Rather, the text of section 33 focuses on shielding a law’s ‘operation’.” It excludes the application section 52(1) of the Constitution Act, 1982, which would normally render a provision or statute inconsistent with the Charter “of not force or effect to the extent of the inconsistency”. But this does not prevent a court from declaring that an inconsistency exists in the first place.

I agree, and would add a further textual point. Section 33(1) authorizes the enactment of legislation that will “operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter”. One provision that is not subject to section 33 is section 24, the Charter‘s internal remedial provision. Pursuant to section 24(1),

[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Normally, if one’s rights are infringed by legislation, the “remedy that is appropriate and just in the circumstances” is a declaration of invalidity pursuant to section 52(1). The invocation of section 33 of the Charter changes “the circumstances”, however, so that ― for as long as it applies ― it is no longer constitutionally “appropriate” for a court to issue a remedy that affects the “operation” of the statute protected by the “notwithstanding clause”. But it would be wrong to make the leap from that incontrovertible truth to the much broader ― and textually unsupported ― proposition that no judicial remedy is “appropriate … in the circumstances” that include an operating “notwithstanding clause”. Rather, a court faced with a challenge to a statute protected by the “notwithstanding clause” must still strive to issue a “just” remedy within the constraints of section 33; that is to say, a remedy that addresses the violation of claimant’s rights (if any) without purporting to affect the operation of the statute.

As Professor Webber, Mr. Mendelsohn, and Dean Leckey suggest, a bare declaration of inconsistency, which does not purport to render the inconsistent statute “of no force or effect”, would seem to be a remedy that is (however minimally) just, and constitutionally appropriate in circumstances that include an operating “notwithstanding clause”. As they note, the New Zealand Supreme Court recently came to a similar conclusion in Attorney-General v Taylor, [2018] NZSC 104. In Taylor (about which I wrote here), the majority held that a declaration of inconsistency was an appropriate remedy that can serve to vindicate the rights affirmed by the New Zealand Bill of Rights Act 1990 within the constraints imposed by section 4 of that Act, which prevents the courts from invalidating or refusing to apply inconsistent legislation. Even when no particular consequence flows from the declaration, it is still of value to the claimant, and granting it is in keeping with the courts’ role of saying what the law is.

This point is particularly apposite in the Canadian context, since the Charter ― even when section 33 is invoked ― is part of what section 52 of the Constitution Act, 1982 describes as “the supreme law of Canada”. As Professor Webber, Mr. Mendelsohn, and Dean Leckey point out, the courts have always stressed their responsibility for setting out the meaning of this law (well, always except when they follow Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395). This is so even in cases where, for one reason or another, the courts consider that their remedial powers do not reach as far as their power to articulate the law. Professor Webber, Mr. Mendelsohn, and Dean Leckey mention Canada (Prime Minister) v Khadr, 2010 SCC 3, [2010] 1 SCR 44, which is one such case; Reference re Secession of Quebec, [1998] 2 SCR 217 is another well-known example. The Canadian constitutional framework, even more than the New Zealand’s, is different from the Australian one, where the High Court held, in Momcilovic v The Queen, [2011] HCA 34, that the making of bare declarations of inconsistency was not a judicial function or even incidental to a judicial function, and so not something that the courts could constitutionally be asked to do.

Another point worth taking away from Taylor is that declarations of inconsistency should not be regarded as addressed to the legislature. Rather, they are vehicles by which the courts point out that the legislature has abused its powers, and the courts are prevented to do more about that fact than simply acknowledge it. The courts should not be thinking in terms of a dialogue with the legislature; it doesn’t matter whether the legislature is of a mind to take the courts’ judgment seriously. Professor Webber, Mr. Mendelsohn, and Dean Leckey suggest that ,”[i]nformed by the reasoned, evidence-based judgment of an impartial, independent court, the government might amend its policy or decide to allow section 33’s protection to lapse”. I suspect that this is a too optimistic ― certainly the New Zealand Parliament appears to be in no mind to remedy the inconsistency with the Bill of Rights Act identified in Taylor (which concerned the disenfranchisement of prisoners serving short sentences). But this doesn’t matter. It is the courts’ duty to say what the law ― and a fortiori the supreme law ― is, Parliamentary indifference be damned.

Professor Webber, Mr. Mendelsohn, and Dean Leckey’s argument that the invocation of section 33 of the Charter does not exclude judicial review, but only limits the consequences that can result from such review is novel, but I think that it is correct. They are right that, by its terms and within its constitutional context, “[s]ection 33 secures a law’s operation; it does not open a Charter black hole”. Given the Canadian provinces’ newfound penchant for relying on section 33, which I fear is only the start of a sinister trend, we may well soon find out what the courts will make of their idea.

I Said Don’t Do It

The federal government is wrong to involve Québec in the process of appointing the next Supreme Court judge

In 2014, after the Supreme Court invalidated the appointment of Justice Nadon to one of its seats reserved for Québec judges or lawyers, the federal government got the Québec government to propose a shortlist of candidates for the vacant-again position. This process resulted in the appointment of Justice Gascon to the Supreme Court. The federal government meant the outsourcing of the shortlist to be a one-off; the Québec government was hoping that it would create a precedent. Québec’s wishes were ignored when the next appointment to one its seats (that of Justice Côté) was made.

But now Justice Gascon is now retiring ― sadly, much before his time ― and a version of the process that produced his appointment is being brought back. As the Canadian Press reports,

[t]he federal and Quebec governments have reached what the province is calling a historic deal that ensures it will play an active role in the process of selecting the next Supreme Court of Canada justice from Quebec.

An advisory committee similar to those used for previous appointments made by the current federal government submit will then

submit a shortlist of candidates to the federal and provincial justice ministers. … [T]he premier of Quebec will also provide an opinion and forward a recommendation to the prime minister, who will make the final decision weighing the recommendation of the federal justice minister and Quebec’s input.

The provincial government’s role is, if I understand correctly, not as important as in the 2014 process, since it doesn’t extend to unilaterally determining the Prime Minister’s range of choices. But it is still significant. The province seems delighted. The Canadian Press writes that the provincial justice minister “called the deal precedent-setting” ― yes, again ― “saying it would allow the province to take a ‘direct and significant part’ in the judicial appointment”.

The rest of us should not be happy. In fact, we should be rather angry. I criticized the 2014 process at some length here, and I believe that that criticism is still applicable, albeit in a slightly watered-down form, to the new process. It is common enough for members of the Canadian chattering classes to claim that the federal government’s power of appointing Supreme Court judges without taking provincial preferences into account is a defect in our federal system. But this view is mistaken. Here’s part what I said in 2014 (with references updates):

[H]ow 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, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433 and that in the Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704 ―, 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? 

The latest developments sure give us some food for thought on this last question. The Parti Québécois, it is true, not only remains out of government, but is currently the fourth-largest party in Québec’s legislature. Yet its idea of purging the province’s public service of overtly religious persons ― especially if they are overtly religious in a non-Catholic way ― is alive, kicking, and in the process of being enacted into law, as Bill 21, by the Coalition Avenir Québec’s government. This is the same government, of course, that its federal counterpart wants to involve in the appointment of the judges who may yet be called upon to pronounce on Bill 21’s consistency with the constitution.

Back in the sunny days of 2015, when illusions about the current federal government being formed by the “Charter party” were still possible, the Prime Minister wrote the following to his Attorney-General:

[Y]our overarching goal will be to ensure our legislation meets the highest standards of equity, fairness and respect for the rule of law. I expect you to ensure that our initiatives respect the Constitution of Canada, court decisions, and are in keeping with our proudest legal traditions. You are expected to ensure that the rights of Canadians are protected, that our work demonstrates the greatest possible commitment to respecting the Charter of Rights and Freedoms, and that our government seeks to fulfill our policy goals with the least interference with the rights and privacy of Canadians as possible.

The “Mandate Letter” in which these wonderful commitments are set out is still on the Prime Minister’s website, although its original addressee was eventualy fired for acting like an actual Law Officer of the Crown and not a political weather-wane. But the same Prime Minister’s government is now going out of its way to hand over part of its constitutional responsibility for appointing the judges of Canada’s highest court to a provincial government bent not only on trampling on fundamental freedoms, but also on insulating its actions from review for compliance with the Charter. I should have thought that this is an odd way of respecting the Constitution of Canada, of ensuring that the rights of Canadians are protected, and of demonstrating the greatest possible commitment to respecting the Charter of Rights and Freedoms. But what do I know?

Well, I know this. Five years ago wrote that

[t]he power to appoint Supreme Court judges belongs to the federal government, and it alone, for good reason. … [T]he 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.

Don’t do it. Just don’t.

Judicial Supremacy, Again

Another attack on judicial supremacy misses the mark

Last week, the Québec government put forward a bill that will, under cover of the Canadian Charter’s “notwithstanding clause” and its provincial analogue, declare irreligion the province’s official creed and bar a multitude of office-holders and public employees from wearing religious symbols. Just a couple of days before, over at Policy Options, Brian Bird published the latest contribution to the judicial-supremacy-bad-legislatures-good genre that has been undergoing something of a revival in Canada of late. It is, alas, no more compelling than all the others.

Mr Bird beings by asking two questions: “Is leaving this responsibility [for upholding the constitution] solely in judicial hands the best way of upholding the supreme law of a liberal democracy such as Canada? Does our Constitution even call for judicial supremacy in constitutional matters?” The first question is misdirection. No one, to my knowledge, has suggested that, since the courts are able to enforce the constitution, the other branches of government should ignore it. The answer to the second question, as I have argued here, is a resounding “yes”.


Let me start with that second question. (A fuller statement of my views on it is in the post linked to in the previous paragraph.) Mr. Bird claims that section 52(1) of the Constitution Act, 1982, which provides that “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”, “does not identify courts as the sole or final arbiters of constitutionality. It identifies no particular branch of the state as uniquely responsible for these tasks.” That much is true: section 52(1) does not explicitly mention the courts. But that’s because it doesn’t have to.

As Mr. Bird himself helpfully explained elsewhere, section 52(1) was not an innovation in the Canadian constitutional system, but rather a replacement for the Colonial Laws Validity Act 1865, which required the courts to uphold the supremacy of imperial statutes, including what we now call the various Constitution Acts. If the framers of the Constitution Act, 1982 had wanted to deny the judiciary this authority, they would have given us some indication of the fact, instead of remaining cryptically silent. Far from doing so, the framers also sought to entrench the Supreme Court in the constitution ― or so the Supreme Court itself has told us. Why in the world would they have done that if they didn’t think that the court had a special responsibility for enforcing the constitution itself?

And there is more, as I pointed out in the post linked to above:

[T]he phrase “supreme law” (emphasis added) [in section 52(1) also suggests that, like any law, the Constitution of Canada is subject to interpretation and enforcement by the courts―not by legislatures. Granted, by 1982, the Supreme Court had conceded deference on the interpretation of some legal provisions to administrative adjudicators. But that concession was premised―wisely or not is beside the point here―on these adjudicators’ expertise, including legal expertise in their particular area of jurisdiction. I do not think that Parliament would have been understood to have such expertise.

Mr. Bird, for his part, suggests that “the Constitution’s status as the ‘supreme law’ … demands compliance with the Constitution, not a particular mechanism for enforcing compliance.” Yet the normal mechanism for enforcing compliance with law is adjudication, and even to the extent that enforcement can be delegated to non-judicial institutions (and, to repeat, these are supposedly expert institutions specialized in administering specific areas of the law) the courts retain a power of review over their work. If the 1982 framers contemplated some other mechanism for ensuring compliance with the law they were enacting, they would undoubtedly have said so. In short, in my view the original public meaning of section 52(1) ― in the context of its predecessor provision’s text and history ― clearly requires “judicial supremacy in constitutional matters”.


Coming back, then, to Mr. Bird’s first question, whether we would not be better off if all branches of government, and not just the courts, were engaged in upholding the constitution, one can only say, “of course we would”. Mr. Bird does not identify anyone who might disagree but, for the record, I support his view that “[l]egislatures should repeal unconstitutional laws”. I have misgivings about Mr. Bird’s suggestion that “the executive should not enforce” laws it deems unconstitutional, partly for positive law reasons co-blogger Mark Mancini raises in his latest post, and partly for philosophical reasons I refer to here. But the point is a difficult one, and Mr. Bird may well be right. And of course both legislatures and the executives, so far as the law allows, are free to, and should, do more to uphold the constitution than the courts will let them get away with.

The real question, however, is not whether it would be desirable for Canadian legislatures and executives to endeavour to enforce the constitution, but whether they are at all likely to do so. The answer, sadly, is that they are not. While it is true, Mr. Bird notes, that “[g]overnment lawyers frequently give opinions on the constitutionality of proposed legislation [and] [i]n some cases … have a statutory duty to do so”, the standard they apply for concluding that proposed legislation is constitutional is ridiculously low. (It is close, in effect, to a puke test, or to asking whether a colleague defending the statute would be laughed out of court.) And, as I have noted here, when politicians are required to make their own constitutional judgments (in areas that are not justiciable), they “take the constitution no more seriously than when they act under adult judicial supervision. Actually, they do not care about it at all.”

This is not a uniquely Canadian affliction, of course. In New Zealand, successive Attorneys-General have applied a higher standard than their Canadian colleagues to concluding that a proposed enactment would infringe the Bill of Rights Act 1990, but their not infrequent reports to this effect have largely been ignored by Parliament. And even when the courts have pointed out inconsistencies between ordinary legislation and the Bill of Rights Act, contrary to Mr. Bird optimistic prediction, these indications have not “influence[d] the deliberations of governments and … foster[ed] dialogue between branches of the state on constitutional issues”. Legislation flatly contrary to the Bill of Rights Act remains on the books unaltered.


The attack on judicial supremacy and attempts to discredit the judiciary as constitutional enforcer tend, ultimately, to be based on unwarranted optimism about the interest of the “political branches” for the constitution. In my view, there is little cause for such hopefulness. It is true that jurisdictions with judicially enforceable constitutions, such as New Zealand, may remain fairly free ― though it is also true that New Zealand is vulnerable to illiberal policy shifts against some of which a supreme constitution might offer a modicum of protection. But there is nothing to be gained, and likely something to be lost, by giving up on judicial enforcement of supreme constitutional law.

The revival of arguments in favour of this option, coinciding as it does with a shameless political trampling on constitutional constraints and rights illustrated by Québec’s anti-religious legislation, is puzzling and counter-productive. The courts, of course, are very far from perfect in their capacity as constitutional enforcers. But we should be insisting that they become better at this job, not suggesting that they might as give it up.

Textual Judicial Supremacy

The Canadian constitution’s text makes it clear that judges must have the last word on its interpretation

In my comment on the Supreme Court’s recent decision in Frank v Canada (Attorney General), 2019 SCC 1, I criticized the dissenting judges’ demand that courts defer to Parliament’s choice to limit rights protected by the Canadian Charter of Rights and Freedoms. Section 1 of the Charter provides that it “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. This wording, I wrote, “requires a demonstration” that a given limitation of a protected right is justified, “not judicial acquiescence on the basis that Parliament knows best”.

My friend and sometime debating partner Geoff Sigalet put it to me in conversation that my interpretation is incorrect, and indeed pernicious. I am wrong, he believes, to think that judges must have the last word on what is and what is not “demonstrably justified”. Section 1, after all, doesn’t say “demonstrably justified to the satisfaction of a court”. Couldn’t a legislature pass its own judgment on these matters, a judgment that would be entitled to the respect of courts and of malcontents such as I? I am not persuaded. In my view, the constitutional text―not specifically section 1, but rather section 52 of the Constitution Act, 1982―does require that judges, not the legislature or the executive, have the last word on whether the Charter has been infringed, including the question of whether a limitation on a right is demonstrably justified.

Section 52(1) provides that “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”. Pursuant to section 52(2), the supreme constitution, inconsistency with which invalidates any other law, includes the Charter, the other parts of the Constitution Act, 1982―notably the amending formulae in Part V of that Act―and the Constitution Act 1867, which provides, among other things, for a distribution of legislative powers between the Dominion and the Provinces, as well as protections for judicial independence, free trade (nullified by the Supreme Court), etc. Note that section 52 makes no distinction between the Charter and other components of the Constitution of Canada. All are equally the supreme law of Canada. There is thus no textual warrant for treating the Charter differently from the rest of the constitution; if the courts have the last word on the meaning and application of the rest, they do so when it comes to the Charter too.

Now section 52(1) of the Constitution Act, 1982 is not, substantively, an innovation. As Brian Bird helpfully details, it is a replacement for section 2 of the imperial Colonial Laws Validity Act 1865, which provided for the supremacy of imperial legislation applicable to the colonies over that of the colonies to which such legislation applied. In particular, section 2 ensured the supremacy of what was originally an imperial statute, the British North America Act 1867, which we now call the Constitution Act, 1867, over any legislation enacted in Canada (except, of course, to the extent that the BNA Act itself authorized the Parliament of Canada or provincial legislatures to modify or depart from some of its provisions). Section 52(1) takes up the baton of constitutional supremacy, and ensures that it is now provided for by a Canadian law, subject to modification through the Canadian constitutional amendment process, rather than by an imperial statute whose very title is unsuitable to Canada’s circumstances as an independent nation.

As Mr. Bird further points out, the Supreme Court has recognized that section 52(1) preserved continuity in Canada’s constitutional arrangements. In the Reference re Manitoba Language Rights, [1985] 1 SCR 721, the Court emphasized that “[s]ection 52 of the Constitution Act, 1982 does not alter the principles which have provided the foundation for judicial review over the years”, (746) under the Colonial Laws Validity Act regime. Meanwhile, in R v Big M Drug Mart, [1985] 1 SCR 295, the Court held, again with reference to both the Colonial Laws Validity Act and to section 52, that accused persons could always demand that a court rule on the constitutionality of the statutes they are said to be infringing, “whether that challenge is with respect to ss. 91 and 92 of the Constitution Act, 1867 or with respect to the limits imposed on the legislatures by the Constitution Act, 1982“. (313) In short, the regime of constitutional supremacy that existed with respect to the then-British North America Acts prior to 1982 remains in force, following the patriation of the constitution and the enactment of section 52(1), for these texts and, on the same terms, for the Constitution Act, 1982.

I think these decisions are quite clearly correct. Textually, section 52(1) is an updated, but substantially identical, reincarnation of section 2 of the Colonial Laws Validity Act. It uses the words “inconsistent with” in place of “repugnant to”, and “of no force and effect” in the place of “absolutely void and inoperative”, but the underlying principle is the same: one set of laws (formerly, all imperial legislation “extending to” Canada; now, more narrowly, “the Constitution of Canada”) has a higher status than ordinary laws enacted in Canada, whether by Parliament or by the provincial legislatures. As a result, such ordinary laws are invalid insofar, although only insofar, as they contradict the higher law. If anything was to change on April 17, 1982, when section 52(1) succeeded the Colonial Laws Validity Act, such a momentous would surely have been flagged by clear language, something very different from what we find in section 52(1).

The only innovation in section 52(1) is the use of the phrase “supreme law” to characterize the Constitution of Canada. The supremacy of Westminster legislation is a given in the post-Glorious Revolution and pre-Statute of Westminster, 1931 system, so it is implicit in section 2 of the Colonial Laws Validity Act. Section 52(1) makes the supremacy of what is left of imperial legislation explicit. But the phrase “supreme law” (emphasis added) also suggests that, like any law, the Constitution of Canada is subject to interpretation and enforcement by the courts―not by legislatures. Granted, by 1982, the Supreme Court had conceded deference on the interpretation of some legal provisions to administrative adjudicators. But that concession was premised―wisely or not is beside the point here―on these adjudicators’ expertise, including legal expertise in their particular area of jurisdiction. I do not think that Parliament would have been understood to have such expertise.

In any case, whether or not the original public meaning of the phrase “supreme law” without further context requires judicial supremacy, the context removes whatever ambiguity the words alone might carry. There was no doubt that, under the Colonial Laws Validity Act regime, it was the courts’ power and duty to determine whether an enactment was “repugnant to” an imperial statute, and therefore “absolutely void and inoperative”. Even the “presumption of constitutionality” to which the courts occasionally referred was is, in principle, nothing more than the idea that legislatures would not intend to exceed their constitutional powers, and their enactments would therefore not lightly be read as doing so―provided that they admitted of a different reading. It was always the courts’ responsibility to verify that this was indeed the case. And, to repeat, there is no reason at all to suppose that this approach was intended or understood to change in 1982, and the courts have never said that it did change. Indeed, I do not think that those who argue for judicial deference in Charter cases seriously contend that section 52 calls for a deferential approach to federalism, or to the independence of the judiciary protected by Part VII of the Constitution Act, 1867, or to the amending formulae of Part V of the Constitution Act, 1982.

But, as I have argued above, there is no textual basis for treating treating the Charter differently from the other parts of the Constitution of Canada when it comes to deciding which institution is given the last word on its interpretation and on whether it has been complied with. The constitutional text, read in its historical and legal context, tells us that judicial supremacy is sauce for federalism’s, judicial independence’s, and constitutional amendment’s geese; it is also sauce for the Charter‘s gander. Needless to say, the text cannot tell us whether this is a good thing. I am inclined to think so; others disagree. It’s certainly possible that our constitution is flawed in this, as it is flawed in many other ways. But the constitution is what it is, good or bad. Those who wish that it were different ought to persuade enough of us to amend it to have it changed.

Look, Look, over There!

What role should comparative law play in constitutional adjudication in Canada?

This is, I think, the last post I write on Frank v Canada (Attorney-General), 2019 SCC 1, where the Supreme Court held that denying the franchise to Canadians who have been resident abroad for more than five years is unconstitutional. I summarized the decision here, commented on it here, and added further comments on the issue of expatriates’ supposed lack of connections to individual ridings here. In this post, I address a further issue that I left out so far, because it is only tangentially related to the question of the constitutionality of disenfranchising expatriates: that of the significance of foreign jurisdictions’ approaches to this issue.

In their dissenting opinion, Justices Côté and Brown invoke the “limits adopted by other Westminster democracies in which election regimes are, as here, structured around geographically defined electoral districts” [164] as support for the proposition that disenfranchising Canadians after five years abroad is reasonable. They mention, specifically, three other “Westminster democracies” ― the United Kingdom itself, as well as Australia and New Zealand. They note, by way of a rejoinder to the majority’s dismissal of this argument (on which more presently), that “[a]t different times in its history, Canada would well have taken some lessons from other countries” ― or at least from New Zealand, which enfranchised its aboriginal citizens (albeit in a way that radically under-represented them) and women well before Canada did. For Justices Côté and Brown, the fact that peer democracies “have adopted comparable time limits on voting for long-term non-residents … provide[s] compelling evidence” [167] for the proposition that the Canadian law they are examining is rational, and therefore constitutional.

Chief Justice Wagner, for the majority, is not impressed with this. For one thing, he insists that that the dissent’s comparisons do not really work in its favour. The United Kingdom only disenfranchises its expatriates after fifteen years, not five; meanwhile, “in Australia, the voter’s right can be extended indefinitely upon application, while New Zealand’s three-year limit is reset each time the non-resident returns to the country”. [74; hyperlinks added ― oddly, I think, the Chief Justice provides no citations.] Thus, disenfranchising expatriates after five years of non-residence (even if they visit Canada during this period) is a harsher approach than that taken by the countries on which the dissenters want to rely. (The dissenters, for their part, dismiss this as “minutiae of policy preferences of Canadian legislators (and, for that matter, legislators in Australia and New Zealand) on matters about which this Court as an institution has little comparative expertise”. [166])

More fundamentally though, the Chief Justice is skeptical about whether there is anything at all to be learned from the experience and choices of other jurisdictions: “I place little stock”, he writes, “in comparisons with other countries for the purpose of determining whether this legislation is constitutional.” [74] Whatever may be done elsewhere, it need not be a rational response to the particular problems that Parliament purports to be solving by limiting the right of Canadians abroad to vote, or that it is the least restrictive option available. Besides, “Canada is an international leader” [62] when it comes to enfranchising citizens to whom other countries deny the vote (such as prisoners), and part decisions of the Supreme Court paid little heed to what other countries do. For the dissent, these are “highly political, rhetorical arguments … that … stand in tension with the majority’s own invocation of internationalism and of a ‘globalized’ world of connectivity and communication”, [167] and which smack of “exceptionalism”. [166]

There are some important questions here. Should we, contrary to the Chief Justice, “place stock in comparisons with other countries” when assessing the constitutionality of legislation? Are there particular areas where we might want to make exceptions to whatever general principle we adopt ― for example, on account of Canada’s being “an international leader”? And if we ought to be looking at comparative materials, how should we go about it?

On the general issue of the relevance of comparative law, my answer is “it’s complicated”. Where the interpretation of constitutional text is concerned, being a public meaning originalist, I think that foreign or international materials can assist a Canadian only insofar as there is evidence that they would have been understood to bear on text’s meaning at the time of its enactment. That might sometimes be the case, especially with the Charter, but the evidence has to be provided whenever an argument about the relevance of such materials to the question at hand is made. Moreover, the simple existence, somewhere in the world, of a particular view about the meaning of a right that might have been “within the contemplation of the framers of the Charter“, as the Supreme Court put it in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27, [2007] 2 SCR 391, is not enough. What needs to be shown is that this particular interpretation was actually understood as the one the Charter itself would bear.

When it comes to the application of section 1 of the Charter, which allows legislatures to limit rights, provided that the limitation is a “reasonable” one and “demonstrably justified in a free and democratic society”, the issue is no longer one of interpretation (except insofar as the terms of section 1 itself have to interpreted). Here, I think that international and comparative materials may cast some light on what may be acceptable “in a free and democratic society”. However, the views of other free and democratic societies are not dispositive on the question of what is actually reasonable and demonstrably justified in the specific context in which rights are being limited in Canada. The Chief Justice is quite right to insist that the analysis has to proceed with reference to the Canadian circumstances, including (but not limited to) the objective for the sake of which a Canadian legislature is seeking to limit rights. Sometimes, the circumstances of other jurisdictions will be similar enough to make their experiences and choices interesting; sometimes they will not be.

Smug dismissals on the basis that Canada is a “world leader” are unwise, if for no other reason that one can only be such a leader if the direction in which the world is supposed to move is clear, and this will rarely be obvious in rights cases. But, at the same time, claims the effect that, since some respectable jurisdictions restrict rights in a particular way, it is rational and therefore permissible, for Canada to do likewise are similarly unhelpful. Such claims ignore local circumstances and, crucially, the textual requirement of section 1 that limitations on rights be demonstrably justified. “Other people do it” is not a demonstration; it is, at most, a relevant consideration for such a demonstration. To insist that, ultimately, a Canadian government defending a Canadian statute limiting the rights protected by the Canadian constitution demonstrably justify this limitation is not a rhetorical, let alone a political move. It is nothing less than what the constitution itself, in no uncertain terms, requires.

Still, foreign laws might be of some, albeit limited, interest to Canadian courts in Charter cases. This brings me to the question of how Canadian judges should consider them. Here, I’m afraid the Frank dissent offers a good lesson in how not to do it. First, one should not cherry-pick a few examples that seem to support one’s preferred position. Why focus on the UK, Australia, and New Zealand? They are, we are told, “Westminster democracies in which election regimes are, as here, structured around geographically defined electoral districts”, but why are “Westminster democracies” the only relevant ones here? The electoral systems of the United States and France, for example, are also “structured around geographically defined districts. Why should we ignore them?

Second, one should not cherry-pick aspects of those foreign laws to which one refers either. If one wants to invoke a foreign law as a model, one doesn’t get to dismiss aspects of that law that don’t support one’s conclusions as “minutiae of policy preferences”. The fact that Australian citizens can actually vote from abroad, so long as they keep making the relevant annual applications, and that New Zealand citizens and permanent residents can reset their respective disenfranchisement clocks by simply visiting the country considerably undermines the point that the Frank dissent attempts to make by appealing to them.

Third, one really shouldn’t misunderstand the foreign law on which one relies, or present it in a way that is misleading. I’m not sure which of these to things Justices Côté and Brown do in Frank, but in any case, New Zealand, unlike the UK and Australia (and the US and France) uses a proportional electoral system. It does have “geographically defined electoral districts” that ensure local representation, but it’s the party vote that determines the composition of the House of Representatives, so I think that it’s just wrong to equate this system to Australia’s or the United Kingdom’s ― or Canada’s. (Conversely, if New Zealand is an apt comparison, why not Germany, on whose system New Zealand’s is closely modelled?)

In short, when judges choose to embark on a consideration of comparative law, they must do their best to ensure that this endeavour is not be partial ― either in the sense of having a pre-determined result in mind, or in the sense of being incomplete. Of course, there are limits to what judges can do in looking at other jurisdictions. Some help is sometimes available to them ― for example, in the shape of reports of the Council of Europe’s Venice Commission ― but this will not always be enough. I think it is also fair to ask whether some countries’ experiences ought to carry more weight than those of others in the minds of Canadian judges. I’m not sure how to answer that question though, other than to point out the obvious fact that similarities, or lack thereof, between Canada’s constitutional texts and those of another jurisdiction’s constitution ought to matter in assessing the interest that jurisdiction’s law can have for Canadian judges. But choosing, or appearing to choose, only a few jurisdictions favourable to one’s inclinations, or giving a partial picutre of their law so as to bolster one’s conclusions, or both, is not good enough.

Comparative law has a place in constitutional adjudication in Canada. However, this place should be limited, and carefully circumscribed. The fact that some other countries limit the rights of their citizens in a particular way does not, by itself, mean that it is appropriate for a Canadian government to limit the rights of Canadians likewise. Moreover, we must be sure of understanding foreign law before invoking it in support of the limitation of our constitutional rights. The Frank dissent, ought to serve as a warning in this regard.

One last point. The strong disagreement about the role of comparative law between the majority and the dissent in Frank helps us think through important questions that are relevant in a variety of constitutional cases. It is a reminder, in the face of some recent grumblings, that allowing debates among judges to be publicly aired enriches our law and improves it.

Civics, Feelings, and Politics

Expatriates’ alleged lack of connection to particular ridings is not a good reason to disenfranchise them

When it held, in Frank v Canada (Attorney-General), 2019 SCC 1 (summarized here), that denying the franchise to Canadians who have been resident abroad for more than five years is unconstitutional, did the Supreme Court go with “feelings over civics”? Did it decide the case in a way that ignores the fact that Canadians vote not for national parties but for candidates in local constituencies, to which expatriates are not meaningfully connected, even if they maintain, as the Court’s majority said, a “profound attachment” to Canada? Over at Routine Proceedings, Dale Smith argues that that’s precisely what the Court did. I disagree.

As Mr. Smith sees it, “five of seven justices of the Supreme Court failed to properly understand the importance of constituency-based democracy”. He also faults the government’s lawyers “for not making the case adequately either”, “and virtually all of the commentary” on Frank, including presumably my comment, for ignoring the issue. Yet in his view, it ought to have been a decisive consideration:

[W]e vote for local representatives. We don’t vote for parties, or party leaders, no matter what we may have in mind when we go into the ballot box – we mark the X for the local candidate, end of story. For an expat, it’s not the connection to Canada that should be at issue – it’s the connection to the riding, because that’s how we allocate our votes.

One might, of course, reproach the government lawyers for failing to emphasize this particular rationale for disenfranchising Canadians abroad. The Frank majority, even on this view, is blameless, because it wasn’t at liberty to sustain the disenfranchisement on the basis of a justification that the government did not even put forward. Section 1 of the Canadian Charter of Rights and Freedoms provides that limits on Charter rights, including the right to vote, must be “demonstrably justified” ― and as the Supreme Court has long held, it is the government that must carry out the demonstration. But there are other reasons, based in both what we might (loosely) call civics and feelings, as well as some realism about politics, that mean that, had the government chosen to make connection to the riding as the hill its case would die on, this case would be every bit as dead as it now is.


Start with the civics. Mr. Smith is quite right that, in point of law, we vote for local representatives, not for national parties or their leaders. Whether this ought to matter as much as he suggests, I will discuss below, when I turn to politics. But it’s important to consider a couple of other legal issues.

First, though there seems to be a good deal of confusion or even obfuscation on this point, the Canada Elections Act already takes care of the need for a connection between a Canadian voting from abroad (who may be a short-term expatriate, a long-term one previously allowed to vote, such as a diplomat’s family member, or a newly-enfranchised long-term expatriate). Paragraph 223(1)(e) provides that, when applying to be registered as an elector resident outside Canada and requesting to vote by special ballot, a would-be voter must provide the Canadian address to which his or her vote will be tied. Once the choice has been made, section 224 prevents the voter from changing it. This prevents forum shopping, as it were, and seems a sensible regulation.

Now, there is a range of options for the prospective voter from abroad to choose from:

the address of the elector’s last place of ordinary residence in Canada before he or she left Canada or the address of the place of ordinary residence in Canada of the spouse, the common-law partner or a relative of the elector, a relative of the elector’s spouse or common-law partner, a person in relation to whom the elector is a dependant or a person with whom the elector would live but for his or her residing temporarily outside Canada.

It has been put to me that the breadth of this range is excessive and gives the elector too much choice. If Parliament agrees, it can eliminate some superfluous options by legislation; this should not be constitutionally problematic. But I don’t think that Parliament should do this. On the contrary, giving the voter the ability to tie his or her vote to a former residence or a family member’s one makes it more likely that the elector will choose to vote at the particular place in Canada to which he or she is feels the strongest connection, which will not be the same for all expatriates, and which each voter is much better positioned to figure out when registering than Parliament when legislating.

Second, one must keep in mind that when it comes to voters in Canada, the law does not require any sort of evidence of a connection between the voter and his or her riding other than the fact that the voter resides there. Perhaps that’s because residence is simply deemed to be determinative of the community to which the voter belongs. But this seems a very rough assumption, especially in today’s urbanized world, in which many ridings are quite compact and the boundaries between them, fluid. A voter might be live in a bedroom community or a residential neighbourhood, but work in a downtown in a different riding, and perhaps have other attachments in yet a third one. It is, to say the least, not obvious which of these the voter is genuinely connected to. Residence, arguably, is only the most easily administrable way of sorting voters into ridings (both at the point of counting them through the census and at the point of registering them), simply because it tends to be more stable than other connections. As Chief Justice Wagner, writing for the Frank majority, put it, “residence can best be understood as an organizing mechanism for purposes of the right to vote”. [28] It is nothing more than that.


This brings me to what Mr. Smith might calls “feelings”. He and others who defend the disenfranchisement of Canadians abroad are very quick to demand that expatriates meet conditions that are not imposed on other Canadians to qualify for the franchise. Whether it be some subjective connection to a riding or to Canada as a whole, or knowledge about the local state of affairs, or tax liability, or subjection some undefined but substantial number laws, not all residents will meet these conditions that are said to justify denying the franchise to expatriates. But no one thinks to inquire into whether they really do, and no one, I’m pretty sure, would accept (re-)introducing tests of this nature into our election laws. Expatriates are the only people whom people judge on such criteria.

Indeed, it is not so much a judgment as prejudice. Expatriates are simply assumed to fail such tests ― and arguments to the contrary are dismissed as “feelings”. Mr. Smith guesses that Canadians who live abroad cut themselves off from communities where they used to live, or have family, or intend to return (or all of these things). Why? My personal experience, for what that’s worth, is that I keep up with the news from Québec and Montreal (and occasionally write on Québec-specific issues), more than from other provinces. Do I specifically track the news for Notre-Dame-de-Grâce-Westmount, where my parents live and I will vote in October, if I can be bothered? Not particularly, but then again, I wouldn’t even if I actually lived there. To say that I’m not a suitable voter for this reason would be applying a groundless double standard.

And speaking of double standards (and, I suppose, of civics), it’s worth noting that pursuant to section 222 of the Canada Elections Act some long-term expatriates are already allowed to vote: namely, members and employees of the Canadian forces, federal provincial public servants, employees of “international organization[s] of which Canada is a member and to which Canada contributes, as well as anyone who “lives with” such voters. The rationale for this is, presumably, that all such persons ― not just public servants, mind you, but their family members too ― are deemed to maintain a connection with Canada that other expatriates lack. Yet even assuming that this is so, is it remotely plausible that such persons (who, if anything, probably tend to be more mobile than the average voter even when they live in Canada) maintain their special connections to their home ridings? I really don’t think this is plausible, and so, the invocation of the riding connection as a justification for disenfranchising some, but not all, expatriates is another sort of unwarranted double standard.


Let me finally turn to politics ― and, specifically, to the need to be realistic about it. If we want to understand the rules of elections and government formation in Canada, we must keep in mind that each voter only casts a ballot for a local representative, not (directly) for a party or Prime Minister. But if we want to figure out whether Parliament is justified in preventing a person or a class of persons from voting, I don’t think it makes sense to pretend, as Mr. Smith asks us to, that this is all that matters. The reality, as he more or less acknowledges, is that what we “have in mind when we go into the ballot box” ― or at least the voting booth, for the less acrobatic among us ― very much has to do with parties and, especially, their leaders, for most voters.

Political parties themselves know this. The big ones tried to prevent to keep the small ones from getting their names on ballot papers, until the Supreme Court wisely put an end to that in Figueroa v Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912, because candidates not identified with parties get fewer votes. They give pride of place to party names, logos, slogans, and leaders in their advertisements. They make sure their MPs have lookalike websites in party colours. Local candidates are often little more than props for a leader’s tour. I’m too lazy to look for the relevant research (if it exists) right now, but as a not-so-wild guess, I’m inclined to think that many voters don’t even remember the name of their local candidate when they go vote. This may be regrettable, but the parties themselves have ensured that it doesn’t matter; what does matter is the party identification on the ballot paper.

One key reason for this is that election campaigns are largely national events, not local ones. (By way of thought experiment, imagine we didn’t hold simultaneous general elections, but renewed the House of Commons with staggered elections, one riding at a time. Our politics may well be quite different ― and more local. But of course we don’t do that.) The centrality of leaders’ personalities to election campaigns makes this unavoidable, and an even starker phenomenon than in the past. But even to the (limited) extent that voters are preoccupied with actual issues rather than personalities, the issues are largely national in scope. This is perhaps especially the case in federal elections, since Parliament’s powers are, by design, largely those that concern the country as a whole. Admittedly Parliament doesn’t always keep to its jurisdiction. Even when it does, Justice Rowe points out in his concurring reasons that “federal policy can impact different geographically defined communities in different ways”. [89] Still, federal elections aren’t about the quality of your local school or the regularity of garbage removal from your street. Most voters, especially in federal elections, just aren’t especially concerned with riding-level matters. To say that expatriates, and only expatriates, ought to be disenfranchised because they aren’t is, once again, to apply an unwarranted double standard.


The existing law already ensures that Canadians voting from abroad cast their ballots in the ridings to which they have the strongest connections. At the same time, it does not require the existence of a very meaningful connection between any voters, including those resident in Canada, and their ridings. The idea that expatriates should be prevented from voting because they lack such a connection is thus a double standard. Moreover, Canadian elections, especially federal ones, aren’t local affairs anyway. For all these reasons, had the government argued that Parliament was entitled to deny expatriates the franchise because of their supposed detachment from the ridings in which their votes would be counted, it would have fared no better than it actually did in Frank.