The Court on Conventions

Shameless self-promotion for my latest academic article

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

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

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

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

Chekhov’s Gun

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

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

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

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

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

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

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

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

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

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

A Constitutional Moment

Confederation as a constitutional moment, in George Brown’s words

I take a break from talking about the Saskatchewan Catholic school funding case, and turn from dealing with unanticipated consequences of compromises struck at Confederation to the time when these compromises were being made. It is common enough in Canada to denigrate these compromises, a tendency encapsulated in the former Justice Binnie’s comment, his exit interview with the Globe and Mail, that we couldn’t possibly be originalists because

[w]e don’t have a Jefferson or an Alexander Hamilton or a Benjamin Franklin, for us to read their views on what the Constitution does or doesn’t mean. At the Quebec conference, Sir John A. Macdonald’s most memorable reflection was: “Too much whisky is just enough.” That was the guidance we got as to our Constitution.

The Quebec conference was held behind closed doors, so we don’t actually know what memorable reflections were made there. But we have plenty of other sources to consult, if we take an interest in the thought of the Fathers of Confederation. (Many of these sources are now easily available on the Macdonald Laurier Institute’s Confederation Project’s website, thanks to the hard work of my friend Alastair Gillespie.)

I think it’s fair to say that, on the whole, the Fathers of Confederation did not quite have the philosophical depth or literary talent of Alexander Hamilton and James Madison. But that is a rather absurd standard by which to measure any group of statesmen. Considered in their own right, they were much more serious thinkers, not to mention better expositors of their ideas, than they are usually given credit for. Their constitutional endeavours involved a great deal of compromise and concession, as they openly acknowledged (in contrast, perhaps, to the self-assured Publius). But if did not meditate on the meaning of separation of powers, or advance theories of federalism, or leave cryptic thoughts on judicial review for us to decipher, they carried out a practical demonstration of how to solve constitutional and political problems that was, in its own way, no less impressive ― and has arguably better stood the test of time, for now anyway.

As Mr. Gillespie’s work shows, the accomplishments of Confederation are perhaps best appreciated if presented in the words of those who made them possible. So, to finally get to the point of this post, here is an excerpt from George Brown’s speech during the “Confederation Debates”, during which the legislature of the then-Province of Canada considered whether to support the plan developed at the Quebec Conference. Mr. Gillespie’s paper on Brown does not quote it, but it made an impression on me when I read it recently, and I wanted to share it. Having noted that the candidates supporting the confederation plan have been receiving wide popular support in recent elections, Brown goes on to argue that people outside Canada ― which is to say, mostly, in the United Kigdom and in the United States ― have been noticing too:

And well, Mr. Speaker, might our present attitude in Canada arrest the earnest attention of other countries. Here is a people composed of two distinct races, speaking different languages, with religious and social and municipal and educational institutions totally different; with sectional hostilities of such a character as to render government for many years well-nigh impossible; with a Constitution so unjust in the view of one section as to justify any resort to enforce a remedy. And yet, sir, here we sit, patiently and temperately discussing how these great evils and hostilities may justly and amicably be swept away for ever.

We are endeavouring to adjust harmoniously greater difficulties than have plunged other countries into all the horrors of civil war. We are striving to do peacefully and satisfactorily what Holland and Belgium, after years of strife, were unable to accomplish. We are seeking by calm discussion to settle questions that Austria and Hungary, that Denmark and Germany, that Russia and Poland, could only crush by the iron heel of armed force. We are seeking to do without foreign intervention that which deluged in blood the sunny plains of Italy.

We are striving to settle for ever issues hardly less momentous than those that have rent the neighbouring republic and are now exposing it to all the horrors of civil war. Have we not then, Mr. Speaker, great cause of thankfulness that we have found a better way for the solution of our troubles than that which has entailed on other countries such deplorable results?

Now the last paragraph strikes me as an exaggeration. Were the differences between Upper and Lower Canada, British and French Canadians, Protestants and Catholics, truly comparable the conflict over slavery that caused the American Civil War? Brown might have been afflicted with the same blindness about the nature of that war that made Lord Acton, the great liberal, support the South in the name of preserving federalism. But he was also in a self-congratulatory mood (and readers of Mr. Gillespie’s paper will understand why Brown had cause for self-congratulation just then), and no doubt a boastful one, as any politician trying to sell others on his dearly held idea.

Yet despite his rhetorical excess, Brown was fundamentally right. It is true that the differences of religion, to say nothing of the forces of nationalism, had ― and have since he spoke ― often led to hatred, to open conflict, to outright war. The Fathers of Confederation found a way, not to sweep them away for ever, admittedly, but to create a constitutional framework within which opposing forces could be accommodated, and indeed made to work together, in a way that not only kept them at peace, but created one of the most successful polities of the last century and a half.

Contrary to what the denigrators like to say, the mid-1860s (and perhaps the longer period from the late 1850s to the mid-1870s) were a true “constitutional moment” in Canada. It deserves our respect, and our attention. We need not be uncritical of those who made this moment possible. But we profit, to this day, from their practical wisdom and political talents. We should not forget that.

Not Withstanding Scrutiny

The Saskatchewan government hasn’t justified its resort to the notwithstanding clause in the Catholic school funding case

Yesterday, I summarized and briefly commented on the decision of the Saskatchewan Court of Queen’s Bench in  in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, which held that funding Catholic schools for educating non-Catholic students was an unjustifiable infringement of religious liberty and equality guarantees of the Canadian Charter of Rights and Freedoms. In my view this decision is correct. However, plenty of people disagree. Importantly, so does the government of Saskatchewan, which has announced that it will have the provincial legislation resort to the Charter‘s “notwithstanding clause” to nullify the Court’s decision, ostensibly in the name of school choice. Some thoughtful people, like Emmett Macfarlane and Dennis Baker, are supportive of the idea. In my view, however, it is misguided and hypocritical, not to mention illustrative of why the notwithstanding clause should never be used.

The best justification for occasionally resorting to section 33 of the Charter, which allows a legislature to suspend for a renewable period of up to five years the operation of constitutionally protected right is that the legislature disagrees with the courts’ interpretation of that right. After all, if the truth about rights, to borrow a phrase from Jeremy Waldron, exists at all, it’s not obvious that courts have privileged access to it. Questions about rights, about what counts as justifiable limitations of rights, are difficult, and reasonable people can disagree about them. In the face of such disagreement, isn’t it acceptable for the people’s elected representatives to decide that their views ought to prevail over those of unelected judges?

Trouble is, this solemn scene ― representatives of the people deliberating about rights and coming to conclusions that are reasoned and reasonable, if different from the judges’ ― has not taken place in Saskatchewan. The government doesn’t say that it disagrees with Justice Layh’s views about the scope of religious liberty or equality. It does not argue that the constitutionally protected freedom of religion does not encompass a duty of religious neutrality on the part of the state. It does not say that granting funding for students outside of a school’s denomination to Catholic schools and to no others is consistent with neutrality or not discriminatory. It is content to state the objective of “school choice” ― which, by the way, I think is a laudable objective, but which the government’s lawyers didn’t even dare put to the Court ― as if the end justifies the means, and it is permissible to disregard Charter rights as soon as one has a worthwhile reason for doing so. This is not what the defenders of the notwithstanding clause, or indeed the critics of any judicial enforcement of individual rights, say they have in mind. Why, then, do they defend the Saskatchewan government?

The Charter, or any sort of system that protects individual rights against infringement by the state, is based on the idea that the end does not always justify the means. At most, there is a proportionality test, such as the one embodied in section 1 of the Charter. A pressing social objective can justify some limitations of rights, but no more than is necessary, and in particular, not if less restrictive means are available to the government. Of course, whether the means at issue in a given case are the least restrictive available is a difficult question, and legislatures and courts might disagree about that. But there is no sign that Saskatchewan’s government has given any thought to alternative ways of achieving its professed objective of school choice. Why, then, do those boosters of the “notwithstanding clause” that justify its use by the existence of reasonable disagreement defend this government?

In reality, the government’s position is doubly hypocritical. It is hypocritical, first, because although it is posing as the defender of school choice, it is the government that is ultimately responsible for limiting the choices of the parents at the centre of this litigation. The government funds public schools. Its funding was not sufficient to keep a rural school open. The school board decided to close it, and have students be bussed to a different one. Instead of accepting this, some parents took advantage of constitutional rules allowing them to set up a “separate” Catholic school―in a village where there had never been one―, and non-Catholic parents, who had never had any particular interest in Catholicism, decided to also send their children there. If the choices of these parents mattered as much as the government now says they do, the local public school would have stayed open, and this case would not have arisen.

The government is hypocritical, second, because it has perfectly constitutional options to provide even more school choice than it now does ― in which it appears to take no interest. The government could provide all groups, including all religious groups, with funds to educate students from outside their communities. That would be real, meaningful school choice ― not the rather limited choice of a public or a Catholic school, which is only a choice, as Justice Layh points out, for those who do not mind their children receiving a Catholic education. Sure that might be costly system ― but if school choice is important enough to override constitutional rights, surely it’s worth a little tax raise?

Instead of admitting that its position is driven by fiscal, and presumably ultimately electoral, considerations rather than an authentic concern with school choice, the government compounds its hypocrisy with misleading threats. It claims that “[t]he ruling [in Good Spirit School Division] could also risk provincial funding of 26 other faith-based schools including Luther College, Regina Christian School, Saskatoon Christian School and Huda School.” The press release conveniently doesn’t mention the fact that this funding, which was not actually at issue in the Good Spirit School Division case, is less that the funding Catholic schools receive, and that at least the Huda School was on the side of the plaintiffs in the proceedings. Indeed, I wonder how the people involved the Huda School feel about being used in this way to make the government’s case considering the testimony of the school’s president at trial. Here’s how Justice Layh describes it:

he asked why the Huda School cannot receive funding to educate non-Muslim students, just like Catholic schools receive funding to educate non-Catholic students. The Huda School does not discriminate against hiring non-Muslim teachers (unlike Catholic schools). The majority of its teaching staff is non-Muslim. Dr. Aboguddah testified that the Huda School would welcome non-Muslim students to its growing school of 430 students (in 2016) which would provide an opportunity to build bridges with the broader Canadian community to reduce the stereotyping and negative image affecting the Muslim community in light of recent world events. [397]

A Rabbi similarly testified “that certain advantages would accrue to the small Jewish school in Regina if it received complete government funding for non-Jewish students.” [440] Again, if the government were committed to meaningful, non-discriminatory school choice, it would fund schools equally, regardless of who is behind them. The constitution would not stand in its way. It is its choice not to do so ― and it ought to accept the constitutional consequences of this choice.

Like a court looking to uphold a dubious administrative decision on a reasonableness standard, Profs. Macfarlane and Baker, and those who agree with them, offer their own reasons for why Justice Layh’s decision was wrong. I might return to that in a future post. Here, my point is that the government of Saskatchewan does not give any such reasons. Its justification for overriding this decision cannot withstand scrutiny. And it’s the government, not the thoughtful (if in my view mistaken) scholars, that gets to use the “notwithstanding clause”. If government were run by profs. Macfarlane and Baker, I would have fewer qualms about its ability to override judicial determinations of constitutional rights. But it is not.

As this case demonstrates, real-life governments are largely uninterested in thinking about constitutional rights. If they are allowed to disregard judicial decisions, they will not engage in serious deliberation themselves. They will press ahead with their political objectives, sloganeering and lying along the way. I have said this before ― in the face of judicial decisions with which I virulently disagreed ― and I say so again: if we are serious about constitutionally entrenched rights, we are better off with a categorical presumption against allowing legislatures to resort to the “notwithstanding clause”.

Don’t Fix It

There is no good reason to start using the Charter’s “notwithstanding clause”

In an article in the Walrus on the 35th anniversary of the Canadian Charter of Rights and Freedoms, Lauren Heuser raises the issue of what is probably the least loved provision in our constitution ― the Charter‘s section 33, a.k.a. the “notwithstanding clause”. Section 33 allows Parliament and provincial legislatures to immunize legislation from judicial review and invalidation under sections 2 and 7 to 15 of the Charter ― provisions protecting, among other things, the freedoms of religion and expression, the due process rights of the accused in criminal cases, and most equality rights. Ms. Heuser wants us to reconsider the existing norm, some would even say convention (although I do not think it is one yet) against using section 33. She is wrong.

Ms. Heuser quotes Howard Anglin, who points out (correctly) that section 33 was an essential component of the political compromise that made the enactment of the Charter possible, and Emmett Macfarlane, who insists that this compromise reflects a “recognition that the courts wouldn’t always get it right”, and not only a hidebound commitment to “parliamentary sovereignty with no reason”. Ms. Heuser concludes ― it’s not clear to me whether Mr. Anglin and prof. Macfarlane share the conclusion ― that

[c]ontrary to what much of the public has been led to think, then, it is not necessarily inappropriate for government officials to push back when they believe a court gets a ruling wrong;  this is as legitimate as a citizen asserting her Charter right to justify some action.

Provided that a legislature can justify itself by “explaining how a court’s policy analysis failed to take account of relevant considerations or contravened the will of the democratic majority”, resorting to section 33 should not be regarded as a political impossibility.

Ms. Heuser is not alone in trying to rehabilitate the “notwithstanding clause”. Attempts to do so are made with some regularity in nationalist circles in Québec, where the Charter is still seen as an illegitimate imposition on the province’s legislative competence. The most recent such attempts have been in response to the purported iniquity of courts giving effect to the constitutional right to be tried within a reasonable time. (Over at À qui de droit, Maxime St-Hilaire has argued convincingly that Québec could not validly override the Supreme Court’s decision in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 even if it tried, and Finn Makela has ventured what strikes me as at least a plausible political explanation for why politicians ignore these legal arguments. I would only add that this is not the first time there has been talk of invoking section 33 when it was manifestly impossible to do so.) But whoever is making this argument, and whatever their motivations, they are wrong.

Here’s what I wrote when I considered invoking section 33 in response to what I considered to be some of the worst decisions ever made by the Supreme Court under the Charter, those that elevated to constitutional status the rights to bargain collectively and to strike:

[T]he norm … against using the notwithstanding clause is, on balance[,] a very good thing. Courts sometimes make mistakes, even very bad mistakes, as [the labour rights decisions] demonstrate. But, pace Jeremy Waldron, the Supreme Court of Canada’s record on rights issues is still so much better than that of Parliament and the provincial legislatures that we’re better off with not merely a rebuttable presumption, but a bright-line [rule] against legislative corrections of perceived judicial mistakes. The likelihood of the perception being itself mistaken is simply too high.

This should, I think, take care of prof. Macfarlane’s and Mr. Anglin’s arguments. Sure the courts don’t always get it right, and section 33 was put into the Charter as a remedy against courts systematically getting it wrong (as the Charter’s framers thought ― wrongly ― the American courts had during the so-called “Lochner era”). But in light of our experience with the Charter we know that the courts get it right more often than the legislatures that would be relying on section 33 would.

As for Ms. Heuser’s suggestion that legislatures would be justified in setting aside judicial decisions whenever these “contravene[] the will of the democratic majority”, taking it seriously would make those provisions of the Charter that are subject to section 33 so many dead letters. By hypothesis, all democratically enacted legislation reflects the will of the majority, and any judicial finding that such law is unconstitutional contravenes this will. There are occasions when we may be able to show that what I have previously called a “democratic process failure” has occurred, and the law did not in fact reflect the majority’s will. But demonstrating that this has happened is not straightforward, and for obvious reasons legislators will be the last people in the world to accept such claims. Ms. Heuser would, in effect, give them carte blanche to override any judicial decision they disagreed with. This is not a crazy position, to be sure, but those who support it should recognize that they are advocating for a substantial revision of our whole approach to judicial review ― a clear change to constitutional practice rather than a return to the roots.

For the reasons outlined above, I would not support such a change. Although I disagree with the Supreme Court more than most Canadian constitutional lawyers, I still trust its judges more than I trust legislators. That section 33 was the price to pay to have the Charter at all is not a reason to use it now ― or ever. The status quo ain’t broke, and there is no need to fix it.

Playing Favourites, Anniversary Edition

On the anniversary of the Constitution Act, 1982, a shout out to the provision restricting constitutional amendment

Today (Canadian time) is the anniversary of the signing by Queen Elizabeth II and entry into force of the Constitution Act, 1982. The government is celebrating, as are many constitutional aficionados, but ― with some honourable exceptions ― celebrations are focusing on one or two parts of the Act ― mostly the Canadian Charter of Rights and Freedoms, and to some extent s. 35, which protects aboriginal rights. The official statements of both the Prime Minister and the Minister of Justice only mention these provisions ― and not the other parts of the Constitution Act, 1982.

The tendency to play favourites with the constitution, which I have repeatedly criticized, notably in the context of the Court Challenges Programme (here and here) and with respect to the relative importance given to this year’s constitutional anniversaries, shows no sign of disappearing. Indeed I will contribute to it with this post, focusing on one provision of the Constitution Act, 1982. In my defence, it is a much-neglected one, both today and more generally.

This provision is subsection 52(3), which provides that “[a]mendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.” The authority in question is contained in Part V of the Constitution Act, 1982, which sets out the procedures for effecting various types of amendments.  Now, I have been sharply critical of Part V in the past ― I have argued that it was a “less-than-fully-legal mess” that in some circumstances failed to guide both the political actors to whom it was addressed and the courts to whom the political actors turned to clarify things. While I might have overstated certain points in that critique, I still think that it is fundamentally fair. The Constitution Act, 1982 is not perfect ― no law is, and least of all any law that emerged from a difficult compromise made necessary by the requirement to obtain super-majority consensus. But it is still, on that much we agree, part of “the supreme law of Canada”, as section 52(1) has it.

It is therefore incumbent on all constitutional actors ― Parliament, the executive, and courts alike ― to uphold this law. Even in those cases where the supreme law fails to fully guide their behaviour, they ought to act consistently with whatever guidance it does provide. And of course it does not always so fail. It is sometimes difficult to choose the right amending procedure among the six or more (depending on how you count the number of additional procedures created by section 47) outlined in Part V. But for many cases Part V is tolerably clear, and even when it is not, it does have the virtue of limiting the universe of possibilities from which the choice must be made. To repeat, if they are to comply with the principles of the Rule of Law and constitutionalism, all constitutional actors are bound to stay within these limits.

Unfortunately, Canadian constitutional actors ― and citizens, especially legal scholars ― are often inclined to disregard this obligation. Parliament enacted An Act respecting constitutional amendments ― the so-called regional veto law that in effect seeks to modify Part V of the Constitution Act, 1982 otherwise than with the clear terms of paragraph 41(e). Prior to the 2015 election, the federal executive was committed to a policy of abolishing the Senate by attrition, also in violation of what the Supreme Court had found were the requirements of Part V for abolition. (The then-official opposition was committed to a similar policy.) And of course the Supreme Court itself is fond of adding rights to the Charter by its own “constitutional benediction“, even though judicial invention is clearly not among the amending procedures listed in the Constitution Act, 1982.

Those who defend one or the other form of constitutional amendment in contravention to subsection 52(3) ― usually by the Supreme Court ― argue that the procedures listed in Part V are too difficult to comply with to effect necessary constitutional change. This amounts, of course, to an admission that there is no consensus about the necessity of the constitutional change in question ― and to a claim that a constitutional actor is authorized to change the constitution simply because it thinks the change is a good one, regardless of whether anyone else agrees. Yet this claim is incompatible with the Rule of Law. It allows a constitutional actor to put itself above the “supreme law of Canada”, and to become a law unto itself. Those who support such claims should be clear about their implications. In particular, they have no right to celebrate any part of the supreme law whose authority they ultimately deny.

Living under law is difficult. Constitutional celebrations usually serve as reminders of what constitutions make possible, and the reminder is a useful one. But we should acknowledge that, as all law, a constitution constrains in order to enable. If we seek to free ourselves from the constraints, we risk losing the possibilities. This is no less true of constraints on constitutional amendment as of those on the denial of our rights. Happy birthday, Constitution Act, 1982 ― and that includes you, subsection 52(3).

An Invitation

Can those who endorse “living tree” constitutional interpretation tell us why, and what it entails?

When Benjamin Oliphant and I wrote our twin articles on originalism in Canada, we did our best to avoid normative conclusions other than a call for further reflection on, and greater consistency in, constitutional interpretation. But, for me at least ― I cannot speak for my co-author, of course ―, the normative inquiry seems like a natural step to be taken soon. (We’ll see when and in what form.) And, right now, my preliminary view is that Canadian constitutional jurisprudence ought to be (more) originalist (than it is now), because the alternative, the “living tree” approach to constitutional interpretation, suffers from various problems.

But before really getting into an argument about why this is so, I probably need to understand what it is that I want to argue against better. I have no wish to attack a straw-man. And there is a greater than usual danger of doing so in debates about constitutional interpretation. As Mr. Oliphant and I have shown, originalism is often poorly understood in Canada, and only obsolete or caricatured versions of it are criticized. In part, this is as no doubt due to a lack of a good Canadian review of what originalism is, which is why we devoted a good deal of space and effort to producing one. Unfortunately, I am not sure that there is an equivalent statement of the views of the other side in this debate either.

So, I would like to ask for my readers’ help. Presumably, many of you think that the constitution ought to be understood as a “living tree”. That’s what the Supreme Court often tells us, after all, even as it not infrequently does something else altogether. It would be very helpful, in advancing the debate about constitutional interpretation, if both sides articulated their views clearly. Presumably, the “living tree” camp has had a while to form its beliefs, even if it has not had much need to explain them in recent decades. Can some of those in this camp take a stab at doing so now?

One way of going about it would be to bring into sharper focus the living constitutionalists’ objections to originalism. To do that, they might address some of the issues that Lawrence Solum describes, in a most helpful recent post on his Legal Theory Blog, as being the main ones “that divide originalists and living constitutionalists.” Here they are, reformulated as questions for living constitutionalists and adapted to the Canadian context:

1) Do you think that the linguistic meaning (communicative content) of the constitutional text changes over time after its entrenchment (say in 1867 or 1982)?

2) Do you think that the Supreme Court, Parliament, and the provincial legislatures should have a power to modify or override the communicative content of the constitutional text in response to changing circumstances and values?

3) Do you think that the original meaning of constitutional text is either radically indeterminate or so underdeterminate that originalism would not meaningfully constrain constitutional practice?

4) Do you think that the original meaning of our constitutional texts is epistemically inaccessible (i.e. we cannot know, or at least show that we know, what it is)?

5) Do you think that that judges are incompetent to investigate original meaning or so biased that they will be unable to act in compliance with original meaning (perhaps even if dispassionate scholars could do so)? In other words, do you think that originalist judges would simply be ideologues?

(Professor Solum asks an additional question, whether those who reject originalism want to “simply retire the Constitution as a framework of government”, but I’m pretty confident that few if any Canadian living constitutionalists do. Perhaps they have other objections to originalism though. If so, I would love to hear about those too.)

Beyond clarifying their objections to originalism, it would be great if some proponents of “living tree” constitutional interpretation clearly articulated their positive commitments or beliefs. To this end, I would like to suggest a few more questions, though I do not mean the list to be exhaustive:

6) Is updating constitutional meaning the exclusive prerogative of courts, or can other institutions (Parliament, the legislatures, the Crown) do it too? Why? If political actors can “actualize” constitutional meaning, should the courts defer to their attempts to do so?

7) When courts or other constitutional actors update constitutional meaning, what should they be taking into account? There are several possibilities: judicial precedents; popular opinion; the rules or principles expressed or implicit in non-constitutional law (perhaps especially legislation) as it stands from time to time; the judges’ own philosophical beliefs; perhaps others.

8) Are there any constraints on courts or other constitutional actors updating constitutional meaning? What are they? Are such constraints useful or indeed essential?

I am not being facetious here. When I say that these are questions to which I do not know and would like to learn the answers, I mean it. They are big questions, of course, and you might think that to answer them in an appropriately serious fashion you would need to write an article, or even a book, and have no time for that. Fair enough. Or you might make that your next project, in which case I will be looking forward to reading you whenever you are ready! But if you would like to attempt some short answers, that would be fantastic. I would be delighted to publish them, if you are ok with me doing so, or I will keep them for my own edification. It’s all up to you.