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.

Doing Right on Rights

Why the Supreme Court was right to find the disenfranchisement of Canadians abroad unconstitutional

In my last post, I summarized the majority, concurring, and dissenting opinions delivered in Frank v Canada (Attorney General), 2019 SCC 1, which held that the denial of the franchise to Canadians who have resided outside the country for more than five years is unconstitutional. As noted there, I believe that the majority, whose opinion was delivered by Chief Justice Wagner was correct so to hold. In this post, I explain why, and also make some observations about the strongly-worded dissent by Justices Côté and Brown. To make my biases clear once again, I remind readers that I am a Canadian abroad myself, and have been for six of the past eight years. While I vote rarely and reluctantly, I am emotionally invested in the issue of whether my right to do so can be taken away. Feel free to discount the following accordingly.


While I am the subject of emotions, let me say this. Justices Côté and Brown assert that the denial of the right to vote to Canadians abroad “is not a distinction based on moral worth”. [168] By my lights, that’s precisely what it is. On their own view, it is the product of “normative conceptions of what the Canadian political community is, and how it can best be protected and made to flourish”. [139] The conception embraced by Parliament in enacting the provisions invalidated in Frank sees the Canadian political community as excluding Canadians abroad, who are consequently less worthy of the franchise. Indeed, they are, according to the dissent, a threat from which the community must be protected, since it is “unfair to Canadian residents for their lawmakers to be elected by long-term non-residents who have no connection of any currency to their electoral district”. [153]

This is utterly wrong. As the Chief Justice rightly observes, many Canadians who live abroad maintain strong ties with Canada (and, I would add, often with the local community where they used to live and, in many cases, intend to return). As the Chief Justice also says, “[c]onversely, there may be citizens who have never left Canada but whose subjective commitment to the country is much weaker and who are less well versed in local issues”. [68] Indeed, though it would be impolitic for a judge to say so, “may be” in this sentence should read “obviously are”. As, for example, Ilya Somin and Bryan Caplan respectively have shown, voters are both ignorant and irrational ― rationally so, but ignorant and irrational all the same. Yet we would not generally accept disenfranchising voters on that basis; we do not inquire into the degree of connection a voter has with his or her local community, or the country, before issuing him or her a ballot paper. It is only, it seems, in the case of expatriates that these things actually matter. To me, this is strong evidence that what is at work here is not really a concern with the fairness or integrity of Canada’s electoral system, but a judgment, or rather prejudice, about the moral worth of those Canadians who are taken to have left the community, and must “rejoin[]” [153] before being allowed to take part in the community’s affairs.

Now, it is true that most Canadians abroad do not, in fact, go to the hassle and the expense of requesting a special ballot and returning it to Elections Canada. This means, of course, that the idea of non-resident voters swamping elections and deciding them at the expense of residents is far-fetched if not entirely implausible. But more importantly, as the Chief Justice points out, this means that those who do take the trouble value their involvement in Canada’s political life ― probably more so than a great many of their resident fellow-citizens. In the Chief Justice’s words, they “demonstrate[] a profound attachment to Canada”, [75] and it seems absurd to pretend otherwise on the basis of no evidence whatsoever.


This brings me to another issue: that of the correct approach to deciding whether legislation is unconstitutional because it unjustifiably contravenes the Canadian Charter of Rights and Freedoms. Justices Côté and Brown issue what they regard as a profound challenge to the way we not only discuss but also think about the relationship between Charter rights and policies that interfere with them. They note that it is commonplace to speak of such policies as “infringing” or even “violating” rights, only for these “infringements” or “violations” to be upheld, or “saved” by applying section 1 of the Charter. Yet, as they further point out, section 1 provides that the Charter “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” ― limits, not infringements or violations. So we should stop talking about justified infringements, and talk about limits instead. The majority is not interested, observing that the words “limits” and “infringements” have long been used interchangeably. (The Chief Justice is probably too polite to note this, but I am not: Justices Côté and Brown themselves spoke in terms of “infringement” as recently as seven months ago, in their excellent dissent in Law Society of British Columbia v Trinity Western University, 2018 SCC 32.)

I take the dissent’s textual point. The word section 1 uses is “limits”, and it arguably makes more sense to say that the state can justifiably limit rights, not that it can violate them. But I fail to see what great change to the way we actually think about rights and scrutinize the state’s possible interference with them follows from this. Contrary to some, indeed quite a few, of the participants in this blog’s recent 12 Days of Christmas symposium, Justices Côté and Brown show no interest in reconsidering the test for verifying the permissibility of limitations on rights that was first set out in R v Oakes, [1986] 1 SCR 103. They apply the same proportionality analysis, warts, subjectivity, and all, under the label of assessing the “limit” on the right to vote as the majority does when considering “infringement” of this right. They have much to say about the fact that the right to vote is a “positive” one, requiring legislation to “breathe[] life into” it, [142] but that it is true of many of the rights the Charter protects (notably, but by no means only, the various rights of criminal suspects and accused) and, more importantly, it simply does not follow that the legislation that “breathes life into the right” may not fail to do so to a constitutionally required standard. (Similarly, Justices Côté and Brown point out that the legislation imposing a five-year expiry period on expatriates’ franchise replaced that which gave no expatriates the vote. So what? The test of constitutionality is not whether Parliament comes closer to respecting the Charter than it once did, but whether it respects the Charter now.)

The real methodological disagreement between the dissent and the majority (as well as Justice Rowe’s concurrence) has to do with the level of deference each accords Parliament. The majority insists, at the outset, that “[a]ny limit on the right to vote must be carefully scrutinized and cannot be tolerated without a compelling justification”. [1] Although, as noted in yesterday’s post, it later wavers a little on this point, its approach is, indeed, one that refuses to take the government’s claims about the need for or usefulness of the legislation it examines on faith. By contrast, the dissent waxes deferential, “eschews rigid and technical application” [124] ― it’s not quite clear of what, but presumably of the justification requirements ―, and plays up “Parliament’s policy-making expertise”. [126]

Yet here the dissenters’ professed textualism fails them. To repeat, section 1 of the Charter says that “only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (emphasis mine) can be countenanced. The constitutional text, therefore, requires a demonstration ― not judicial acquiescence on the basis that Parliament knows best. And this requirement, in turn, suggests that contrary to what Justices Côté and Brown say Charter rights can only be limited in order to deal with an identifiable problem, to address some specified mischief, and not merely because a legislature thinks that in an ideal political community these rights would be limited in this way. The enactment of the Charter, as a law superior to ordinary legislation, has taken that moral judgment out of the Canadian legislatures’ hands. (To be clear, this is a separate question from that of the permissibility of what used to be called “morals legislation”, which proscribes what the legislature sees as immoral behaviour, such as taking drugs. There is no argument that expatriates act immorally by voting.)

In short, by all means, let’s be careful with our language, and speak of reasonable limits on rights instead justified violations. But let’s also insist that limitations on rights, to qualify as reasonable, must be ones whose justification is capable of being demonstrated, rather than merely asserted, and is in fact demonstrated, rather than taken for granted. Indeed, I think that this substantive concern is rather more important than the semantic one. In Frank, it is the majority, not the dissent, that follows an approach that is closer to that required by the constitution.


In my view, the majority decided Frank more or less as it should have. It correctly insisted that any exclusion from the franchise except the one based on citizenship must be justified. Contrary to the dissent’s strident warnings, it does not follow that no exclusions could ever treated as reasonable limits ― only that the justification process for upholding these limits cannot be elided by saying that some limits on the right to vote must obviously be admissible. This goes even for the denial of the right to vote minors (which, as Ilya Somin, for example, has argued, is not as self-evidently reasonable as the dissenters would like us to think). I think that it would be quite easy to sustain the disenfranchisement of three-year-olds, the dissent’s scaremongering example, should anyone challenge it; but as for the denial of the vote to teenagers, I for one wouldn’t mind seeing the governments put through their justificatory paces.

The majority is also right to be skeptical of the government’s arguments based on an ill-defined “social contract” of which expatriates are allegedly no part. I’m not too impressed with the Chief Justice’s definition of Parliament’s objective in terms of “fairness” ― fairness is too capacious a word for my liking, and the dissent’s suggestion that Parliament was pursuing a currency of relationship between the voter and his or her community seems closer to the mark. But one should also acknowledge that objectives that are largely symbolic (or, as Justices Côté and Brown see it, moral) do not lend themselves to easy definition, and so inevitably compromise the quality of the Charter analysis. The majority’s skepticism about the existence of a rational connection between the objective of fairness and disenfranchisement of Canadians abroad is also warranted. Indeed, I would have liked the Chief Justice to have been bold enough to say that, given both the possibility that expatriates maintain current links with Canada and their Canadian communities, and the lack of any assessment of whether any other voters do so, disenfranchising expatriates alone based on their deemed lack of connection to Canada is actually irrational. But the Chief Justice is not the first judge not to want to go there.

I’ll live with that, because the Chief Justice ends up making the right arguments at the “minimal impairment” stage of the analysis. Like I had in criticizing the decision of the Court of Appeal for Ontario in this case, he points out that Canadians abroad can and do maintain close links with Canada; that they are affected by Canadian laws and government policies; that, moreover, “Parliament can change laws on its own initiative and thus alter the extent to which Canadian legislation applies to non-resident citizens”, [72] so that one cannot invoke the limited scope of current extra-territorial legislation to deny expatriates the vote ― I had called this “let[ting] the statutory tail wag the constitutional dog”; and that in any event “attempting to tailor Charter rights to the extent to which citizens are burdened, or not burdened, by Canadian laws would be an impossible exercise”. [71] If all this is not enough to qualify the disenfranchisement of expatriates as irrational, than it certainly suffices, as the Chief Justice says, to show that it is grossly overbroad, and not “minimally impairing” of the right to vote.

The Chief Justice’s reasons are not perfect. He does, as the dissent points out, get somewhat carried away in patriotic praise for the Canadian democracy, and there are shades of what I’ve been calling “constitutionalism from the cave” in his claim that “a broad interpretation of” the Charter‘s guarantee of the right to vote “enhances the quality of our democracy and strengthens the values on which our free and democratic state is premised”. [27] Constitutional interpretation must aim at ascertaining the text’s meaning, not at strengthening values or anything of the sort. Still, what the Chief Justice’s opinion for the majority does is substantially in line with the constitutional text, despite its rhetorical imperfections. (And still on the subject of rhetoric, or style: can someone please ask the Chief Justice and his colleagues to stop using the initialism “AGC”? It is a recent innovation ― the Court hadn’t done it at all before 2010 ― and not a good one. It is ugly and has a jargon-y feel that is quite at odds with the Chief Justice’s stated desire to make the Court’s work more accessible, including to laypersons.) But as majority opinions of Supreme Court have gone in the last few years, the one in Frank is up there with the best.


The Supreme Court has held that Canadians who live abroad cannot be disenfranchised based on, in effect, stereotypes about their lack of relationship with their home country. This is a relief. In doing so, it has insisted on carefully and critically examining the government’s claimed reasons for limiting Charter rights, and this is a good thing too, one that doesn’t happen often enough. There is something to learn from the dissenting opinion, too, about our constitutional vocabulary, and I hope that this lesson is not lost just because the substance of that opinion is bitterly disappointing. But the constitution was upheld in Frank, and so right was done. May 2019 bring more of that.

“A Profound Attachment”

The Supreme Court holds that disenfranchising Canadians abroad is unconstitutional

Yesterday, the Supreme Court at last delivered its judgment on the constitutionality of disenfranchising Canadians abroad, Frank v Canada (Attorney General), 2019 SCC 1. By five votes to two, the Court holds that disenfranchisement is indeed unconstitutional. This is, as I have long argued (especially in criticizing the decision to the contrary by the Court of Appeal for Ontario), the right result. Full disclosure, in case this is necessary: I am myself a Canadian abroad, and while I would not have been disenfranchised at the coming election under the rules the Supreme Court has found unconstitutional, and am only an occasional and reluctant voter anyway, I am emotionally invested in this issue.

Section 3 of the Canadian Charter of Rights and Freedoms provides that “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” The Canada Elections Act sets out the details of how this right can be exercised ― and denies it to some groups of citizens. One of these disenfranchised groups consists of Canadians who have not resided in Canada for more than five years, although those who are representatives of a Canadian government or members of the Canadian forces, as well as members of such persons’ families, are not subject to disenfranchisement.

The government conceded that denying their right to vote breached section 3 of the Charter, but contended that the breach was justified as a reasonable limit authorized by the Charter‘s section 1. The majority ― Chief Justice Wagner (who wrote the majority opinion) and Justices Moldaver, Karakatsanis, and Gascon ―, as well as Justice Rowe, who concurs, reject this view. In dissent, Justices Côté and Brown say that the denial of the franchise to Canadians abroad is justified.


Relying on the Court’s decision in Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, which invalidated the disenfranchisement of long-term prisoners, the Chief Justice writes that the right to vote must be given a “broad and purposive interpretation”, and “any intrusions on [it] are to be reviewed on the basis of a stringent justification standard”. [25] The Chief Justice rejects deference to Parliament, insisting that “reviewing courts must examine the government’s proffered justification carefully and rigorously”. [43] Unlike in cases that involve “complex” or “nuanced” choices among competing priorities, deference “is not the appropriate posture for a court reviewing an absolute prohibition of a core democratic right”. [44] Later, however, when considering whether the prohibition is “minimally impairing” of the right, the Chief Justice grants that “some deference must be accorded to the legislature by giving it a certain latitude”. [66]

As for residency requirements for voting, they are “an organizing mechanism”, “an important device” [28] that helps structure our electoral system, but have no constitutional value in themselves: “In clear language, the Charter tethers voting rights to citizenship, and citizenship alone.” [29] In any case, there already are Canadian citizens who are allowed to vote from abroad, suggesting that residence within cannot be an implicit pre-condition for having the right to vote.

Applying the test for the justification of Charter infringements set out in R v Oakes, [1986] 1 SCR 103, the Chief Justice begins by rejecting the idea, accepted by the Ontario Court of Appeal, that “preserving the social contract” whereby citizens’ obedience to laws is exchanged for a say in making them as a pressing and substantial objective capable of justifying the infringement of rights. While Sauvé had invoked the language of social contract theory, correctly understood, it stands for the proposition “that deeming that a citizen has ‘withdrawn’ from the social contract is not a legitimate basis for denying him or her the right to vote”. [52] However, the Chief Justice accepts that “maintaining the fairness of the electoral system to resident Canadians”, [55] which he seems to interpret by focusing on the existence of a connection between voters and the Canadian polity, is an important governmental objective.

At the second stage of the Oakes test, Justice Wagner finds that the government “has not definitively shown that a limit of any duration” on the ability of Canadians to vote from abroad “would be rationally connected to the electoral fairness objective advanced in this case”, [60; emphasis in the original] but declines to reach a firm conclusion. He argues, however, that neither the existence of residence requirements for voting in provincial elections nor the prevalence of such requirements abroad make their imposition by Parliament rational, and observers that “there is no evidence of the harm that these voting restrictions are meant to address”, [63] or even any complaints about those non-resident citizens who already are able to vote.

As often, it is the next stage, originally described as that of “minimal impairment” although the word “minimal” has not been taken literally, that is crucial. The Chief Justice finds that disenfranchising Canadians after five years abroad, “[f]ar from being a measure that is carefully tailored so as to impair voting rights no more than is reasonably necessary, … seems to have been simply a ‘middle-of-the-road’ compromise”. [67] There is no “correlation between, on the one hand, how long a Canadian citizen has lived abroad and when he or she intends to return and, on the other hand, the extent of his or her subjective commitment to Canada”. [68] Indeed, whether the issue is knowledge of and commitment to Canada, the impact of Canadian laws on a given voter, many Canadians abroad will be better qualified as voters than those residing in the country. Chief Justice Wagner concludes by noting that “[a] non-resident citizen who takes the trouble to vote by way of special ballot … has demonstrated a profound attachment to Canada. We have nothing to gain from disenfranchising such citizens.” [75] In the same vein, he notes that any positive effects of this disenfranchisement are speculative, while the negative impact on those disenfranchised is real and present.


Justice Rowe agrees that disenfranchising Canadians who live abroad is unjustified, but writes separately to emphasize the “significance and centrality of residence to our system of representative democracy”. [84] He details the history of residency requirements in Canadian election legislation (including the slow expansion of voting rights for Canadians abroad), and pointedly rebukes the majority by claiming that “residence has been historically and remains today more than just an ‘organizing mechanism’. It is foundational to our system”. [90] As a result, Justice Rowe says, while “[s]ection 3 [of the Charter] protects the right to vote … it does not follow as a corollary that there is a right to vote in the constituency or province of one’s choosing”. [91] Provincial and territorial residency requirements, in particular, would be subject to different considerations than federal ones (including because provincial laws are more local in nature and applicability than federal ones).

Whatever might be justifiable in other cases, however, Justice Rowe concludes that the disenfranchisement of long-term expatriates is not. He accepts that it pursues the objective of electoral fairness, although he notes that fairness for resident citizens is being pursued at the expense of non-residents. Justice Rowe also accepts that fairness can reasonably be pursued by preventing “those who are largely unaffected (non-residents) [from] participating in decisions that would affect others (residents)”. [103] Passing over the question of whether the disenfranchisement of Canadians abroad is minimally impairing of their right to vote, he moves on to the balancing of its salutary and deleterious effects. The former, he finds, are “negligible”, [106] since very few expatriates actually vote. The latter are not. Expatriates who are disenfranchised “may not feel the local consequences of particular federal policies in the constituencies in which their votes would be counted, [but] they stand nonetheless to be affected by certain federal laws and policies, perhaps in life altering ways”. [107] As a result, the disenfranchisement of Canadians abroad is not justified.


Justices Côté and Brown dissent. They not only disagree with the outcome reached by the majority and Justice Rowe, but want to approach the issue quite differently. They stress that the right to vote “is a positive right which, unlike most Charter rights, requires legislative specification in order for the right to be operative”, [113; emphasis in the original] so that the denial of the franchise to expatriates is not the product of legislative action, but of a “failure to extend the right to vote” to them. [128] This right is also not absolute: “Nobody suggests that s[ection] 3 entitles three-year-old Canadian citizens to vote.” [114] Indeed, they deny that the legislative provisions at issue “disenfranchise” long-term expatriates, since they had not been allowed prior to these provisions’ enactment, or ever. They also accuse the majority (and, implicitly, any number of past judgments) of “distort[ing] the limitations analysis” [120] by speaking of a “breach” or “infringement” of the right to vote rather than of a “limitation” on this right, as the terms of section 1 of the Charter would suggest. (A breach, they insist, is caused by a limitation that is not justified.)

Thus the real question, Justice Côté and Brown argue, is whether the long-term expatriates’ right to vote has been reasonably limited. The way to answer this question is to apply the Oakes test. However, while they make a point of agreeing with the majority that the burden of justification under this test rests on the government, Justices Côté and Brown insist, citing the dissenting opinion in Sauvé (without acknowledging that they are relying on the dissent) on “a ‘flexible contextual approach’ … one that eschews rigid and technical application”. [124, citing Sauvé at [84]] They also argue that it is wrong to look for “a concrete problem or mischief” that rights-limiting legislation is meant to address, because it is “undeniable … that Parliament can constitutionally legislate in pursuit of, or in response to, considerations of political morality or philosophy”. [126] There is “moral nuance inherent in defining and defending the boundaries of rights — that is, in justifying rights limitations” — and, like “Parliament’s policy-making expertise”, it must be “afford[ed] due respect”. [126]

Justices Côté and Brown define Parliament’s objective as “privileg[ing] a relationship of some currency between electors and the communities in which they are eligible to vote”. [132] (In doing so, they spend four extensive paragraphs cautioning against reliance on statements by individual legislators during the course of parliamentary debate… and conclude by pointing to statements that support their understanding of the objective.) This objective “is clearly inspired by a particular moral philosophical understanding of the relationship between citizen and state in a democracy”. [140] Indeed, electoral “legislation is never designed to solve a problem or address a particular mischief. Rather, it breathes life into the right [to vote] so that it may be recognized and exercised.” [142] While limitations on the right to vote require justification, Justices Côté and Brown attack the majority for considering that, other than citizenship, “all other specifications [of this right] are necessarily unconstitutional”. [142] Justices Côté and Brown note that other groups are excluded from the franchise ― they mention citizens who have never resided in Canada and minors ― and argue that these exclusions too must be regarded as examples of Parliament’s permissible pursuit of philosophical objectives. Indeed, they say, majorities in Sauvé and here have acted in furtherance of philosophical views of their own.

Ultimately, ensuring a current relationship between voters and their communities is a pressing and substantial objective because it “ensures reciprocity between exercising the right to vote and bearing the burden of Canadian laws” [152] and “protects the integrity of the Canadian electoral system, which is founded on geographical representation”. [153] This integrity would be undermined by allowing people to vote in constituencies with which they lack a community of interest.

Justices Côté and Brown also consider that the limitation of the right to vote from abroad to those citizens who have not been outside Canada for more than five years is reasonable and therefore proportionate to Parliament’s objective. They insist that, under the majority’s reasoning, no time limit on voting rights could be upheld, including for provincial elections. They add that the majority is wrong to ignore the treatment of expatriates’ voting rights by New Zealand, Australia, and the United Kingdom: “the majority’s patriotism risks descending into exceptionalism”, and blinding it to “some lessons” that “Canada would well have taken … from other countries” [166] (or at any rate from New Zealand, which enfranchised its aboriginal people and women well before Canada did). Indeed, the majority’s position is “highly political, rhetorical”, and “in tension with the majority’s own invocation of internationalism and of a ‘globalized’ world of connectivity and communication”. [167] As for the effects of the legislation, the deleterious ones are minimized since the denial of expatriates’ voting rights “is not … based on moral worth”, [168] while the salutary ones ― which consist in the attainment of Parliament’s objectives ― are considerable.


As I noted at the outset, I believe that the majority is correct (though Justice Rowe makes some valuable points about provinces and territories). The dissent, I confess, perplexes me. But this post is much too long as it is. I shall publish my comment separately ― and quickly, I hope.

Not This Way

The trouble with a proposal for “a Canadian originalism”

In a recent C2C Journal article, Benjamin L. Woodfinden offers thoughts on “How to Take Back the Charter” ― that is, on how to make its interpretation and application palatable to those who do not share the fashionable view of “the Supreme Court as a guardian council of philosopher-kings (and queens) guiding Canadians toward a more just society”. I am mostly sympathetic to the impulse that animates the argument, but find Mr. Woodfinden’s proposals puzzling, even troubling.

Addressing himself to (presumably small-c) “conservatives”, Mr. Woodfinden suggests that they “need a judicial philosophy, a coherent, organized, alternative vision with the philosophical and jurisprudential rigor [sic] and institutional capacity to challenge the vision” of the Supreme Court as arbiter of Canada’s values. (Mr. Woodfinden singles out Justice Abella for particular criticism in this regard, and I have no quarrel with that.) And, to implement this vision, Mr. Woodfinden says, it is necessary to “nurture some alternative voices and promote their ascent through the legal community and onto our courts”, undertaking in Canada the work that the Federalist Society has been carrying out for decades in the United States.

Substantively, Mr. Woodfinden’s proposed alternative ― which he calls “a Canadian originalism” ― is a blend of nostalgia for the good old pre-Charter days, the “glorious tradition of parliamentary government” on which “[t]he Charter was in some ways an artificial imposition”, and an almost equally antiquated form of “old” originalism. Mr. Woodfinden attaches great weight to the intentions of the framers of the Charter, as well as well as their expectations of what the Charter would, or at least would not, be taken to mean. Even as he ruefully says that preaching judicial restraint is no longer enough, he admonishes us that “the Charter’s framers did not intend to give free rein to activist judges”, and denounces those judges who “read new rights into the Charter”. Judges ought to “understand that when the law is silent, courts should be silent”, and not endeavour to make the world a better place through their decisions.

Again, I have sympathy for some of these claims. I once criticized the late and unlamented Conservative government for failing to articulate a constitutional vision that would have gone beyond rote appeals to judicial deference to legislatures. I share Mr. Woodfinden distaste for the Supreme Court’s ignoring or re-writing the constitution in such cases as R v Comeau, 2018 SCC 15 and Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245. I too think that Canada needs strong voices able to articulate an alternative to the dominant view of the relationship between courts, the other branches of government, and the constitution. Indeed, although Mr. Woodfinden says nary a word of this, I think that organizations such as the Runnymede Society and Advocates for the Rule of Law, to say nothing of this blog, are already hard at work to make this aspiration a reality. If Mr. Woodfinden wants to join our work, I am sure he would be welcome. If he thinks it is somehow deficient, he should let us know.

That said, there is a great deal that I do not agree with in Mr. Woodfinden’s argument. Perhaps that’s just because it’s not really addressed to me. After all, as I have noted here, I am not a conservative. Indeed, I take it that in Mr. Woodfinden’s eyes I am an “ally” of the “Court Party”, at least insofar as I share its refusal to regard the ability of legislatures to sidestep court rulings by relying on the Charter’s “notwithstanding clause” “as the (democratically elected) legislature’s last line of defence against judicial usurpation”, and rather see it as a standing danger to individual rights. But, because I have no less of an interest in advancing the cause of intellectual diversity within the Canadian bar and bench than conservatives do, I will venture a critique of the way in which Mr. Woodfinden tries to go about it.

First, I think it’s worth pointing out that stories of a lost paradise of Canadian parliamentary sovereignty, away from which we were seduced by Pierre Trudeau and his alien ideas about protecting what Mr. Woodfinden calls “abstract rights”, are myths, not histories. A.V. Dicey, for instance, to whom our thinking about Parliamentary sovereignty still owes so much, argued that, whatever its preamble might say, the then-British North America Act, 1867 really created a constitution similar in principle to that of the United States, not the United Kingdom ― one that limited the powers of legislatures, and would “inevitably” fall to be interpreted by the judiciary. The Canadian Bill of Rights, enacted in 1960 thanks to a Conservative civil libertarian, John Diefenbaker, took a further step out of the orthodox world of Parliamentary sovereignty, by allowing courts to declare inoperative federal statutes that trenched on individual rights. The Charter was a further, and very significant, step in the limitation of legislative power, and the expansion of the judicial one. But it was not a wild leap into the dark.

Second, I do not find Mr. Woodfinden’s original intent originalism-as-the-next-best-thing-to-not-having-a-Charter at all attractive. Original intent originalism has been subject to powerful criticism not only from outside but also from within the originalist camp itself. It gives undue weight to unenacted intentions (insofar as a disparate group of people such as “the framers of the Charter” can even have joint intentions) and expectations, and cannot provide a solid justification for judicial review. At the same time, as Mr. Woodfinden himself acknowledges, it is true that the Charter, like other constitutional provisions, comes with its lot of vagueness (though we can question whether it is “amorphous”, as Mr. Woodfinden claims).

“New” originalism, which seeks to implement the original public meaning of constitutional provisions insofar as it can be determined, but also recognizes the necessity of “construction” ― that is, of a reasoned development of legal doctrines for implementing the constitution’s original meaning ― is a much more plausible approach than one that seeks to deny the legitimacy of any creative role for the judiciary. For this reason, I am actually not nearly troubled by some of the decisions that Mr. Woodfinden criticizes as he is ― notably Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331, which invalidated the across-the-board criminalization of assisted suicide (though I have my reservations about it too). I think it is also worth emphasizing that adherence to the original meaning of the Charter may well result in more, not less, robust enforcement of some of its provisions ― notably section 15, which is not limited to being the anti-discrimination provision of the Supreme Court’s imagining.

To be sure, these are matters of debate. Not all originalists have embraced the “new” originalism that personally find most compelling. But this brings me to a third difficulty I have with Mr. Woodfinden’s proposal. He seems to expect that “conservatives” can and ought to settle on one fairly specific constitutional vision, that will do battle against the approach now dominant in the Canadian legal community. Perhaps this is concern-trolling on my part, since, to repeat, I am not a conservative, but I doubt that this is either possible or desirable. It’s worth recalling that the Federalist Society doesn’t actually take positions on legal issues. Its members largely agree about some things, and vigorously disagree about others. If Mr. Woodfinden really wants an intellectually vibrant and rigorous Canadian legal counterpart, he should not be too quick to declare what it ought to believe. The approach taken by the Runnymede Society ― to serve as a platform for a variety of heterodox voices, conservative and otherwise, strikes me as much more promising.

All that to say, Mr. Woodfinden is right that the Canadian legal discourse could do with an alternative voice ― better yet, alternative voices. The Supreme Court and its enablers in academia and elsewhere in the legal profession too often disregard the constitution, seeing as no more than an imperfect realization of their vision of justice. But Mr. Woodfinden’s way of making that argument leaves me cold. The (exaggerated) reverence for Parliamentary supremacy is not a feeling I share; the (obsolete) deference to the intentions of constitutional framers strikes me as indefensible; and I would rather see lively intellectual debate among a spectrum of positions than a clash of two monolithic constitutional visions. Of course, the way in which a better state of the constitutional discourse can be brought about about should itself be the subject of discussion, and Mr. Woodfinden makes a contribution to this necessary conversation. But it is one from which I must, on some key points, dissent.

The Joke’s On Us

Canadians ought to care about who gets on the Supreme Court

Over the Thanksgiving weekend, the Beaverton ― Canada’s version of the Borowitz report ― ran a piece called “Canadians thankful they can’t name single Canadian Supreme Court Justice“. Remarkably enough, a number of lawyers in my social media feeds shared it ― with apparent approval. And of course a more reputable outlet published a rather similar story in all seriousness just a few months ago. I suppose one ought to be grateful that Canada has so far avoided the sordid spectacle of American “confirmation battles” generally, and that over the appointment of Brett Kavanaugh in particular. The ability of the Canadian governments to simply get their preferred candidates on the bench is, on the whole, a good thing. But it doesn’t follow that it is of no consequence who the judges of the Supreme Court are.

The Beaverton, parroting the national myth (aren’t they, like, supposed to make fun of things?), claims that “many Canadians were happy their court was quietly and deliberately applying the constitution”. This is, to use a technical term, bollocks. Just this year, the Supreme Court read the guarantee of free trade out of the constitution in R v Comeau, 2018 SCC 15; proclaimed, in defiance of fundamental principle, that administrative agencies can enjoy “plenary”, “unrestricted powers” in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (at [10] and [11]); and gutted religious freedom in Law Society of British Columbia v Trinity Western University, 2018 SCC 32. This is not a court “quietly applying the constitution”; this is a court re-writing the constitution as its suits its fancy. Nor is this some sort of new development. Back in 2015, Grégoire Webber wrote that

Over the past year, the people of Canada have undertaken an important remaking of our constitution. We have given constitutional status to the Supreme Court, created a constitutional right to strike, and created a constitutional right to assisted death, among other changes. …

How have we done so? … We have … appealed to that straightforward constitutional amendment process called the Supreme Court of Canada.

Now, both in West Fraser and Trinity Western, and in some of the cases to which Professor Webber refers ― notably Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245, which “gave benediction” to the right to strike ― the Supreme Court was not unanimous in its rewriting or shredding of the constitution. There were fierce, and compelling, dissents. While no Supreme Court judge has taken a very consistent position in opposition to the Court’s majority view of its powers of constitutional amendment ― the Court was unanimous in Comeau, for instance ― some have been more forceful than others in resisting the trend. Justice Côté, in particular, has been a strong voice in favour of upholding the Rule of Law by opposing the empowerment of lawless administrative decision-makers.

And so it matters that there is only one Justice Côté on the Supreme Court; and that even with Justices Rowe and, especially, Brown, who sometimes join her in whole or in part, she is far from commanding a majority of the Court. It matters whether or not you agree with me that Justice Côté tends to be right (she isn’t always) and that most of her colleagues tend to be wrong. If you think that the majority of the Court is generally correct, and that Justice Côté and others who resist its assertions of judicial and administrative power are wrong, it also matters that there not be more Justices Côté, or even Justices Brown or Rowe. Indeed, the enthusiasts of judicial power in Canada understand this very well, which is why some were sufficiently upset when Justice Brown was appointed to the Supreme Court to demand that the Court prevent politicians from choosing judges in the future.

Smug self-satisfaction is, of course, Canada’ national disease, and self-congratulation at not being Americans is a widespread complication. Canadian lawyers are as susceptible to these things as their other compatriots. But we should know better. We should realize that Canadian judges are no more oracles than their American colleagues ― indeed, unlike some American judges, they don’t even pretend otherwise: witness Justice Abella’s repeated rejections of the Rule of Law as even an ideal to aspire to. We should understand that the Supreme Court’s relative anonymity, which it is only too happy to foster with “by the court opinions”, is part of what allows it to exercise powers with which, as even the Beaverton inadvertently suggests, many Canadians would not, in fact, be especially comfortable. If we cannot figure this out, the joke really is on us.

Things I Dislike about the Constitution

10 problems with the Canadian constitution (according to its original meaning)

In an interesting Volokh Conspiracy post, Ilya Somin provides a “list of several areas where … the Constitution [of the United States] gets important issues badly wrong”. This is in response to concerns that (American) originalists, most of whom tend to be conservatives or libertarians, come to their position on how to interpret (their) constitution because they think that originalism yields results consonant with their political views. As Professor Somin notes, “[s]imilar charges, of course, are often made against living constitutionalists, who have long been accused of just coming up with ways to constitutionalize their (mostly liberal) political views”. But, even if one’s work is focused on those areas where one’s political and constitutional views are aligned, for any principled person there are likely to be areas where this alignment break down.

Here are some of mine (for the Canadian constitution of course, not the American one). It is a very tentative list. That’s partly due to my ignorance in some areas, especially that of Aboriginal law, and partly because there simply hasn’t been enough work done on the originalist interpretation of the Canadian constitution. There is still less written on the correct originalist approach to non-textual constitutional rules (notably constitutional conventions and principles) and also to provisions that are spent or obsolete and yet have never been excised from the constitutional text (notably sections 55-57 of the Constitution Act, 1867, which provide for the intervention of the UK government in the Canadian legislative process, and which I have simply ignore here).

Anyway, this is a start. The list, after the first two items, is more or less in the order in which things come up if you read the Constitution Acts 1867 and 1982.

* * *

1. What is the constitution of Canada?

Let’s us start with the most conceptually fundamental problem. Section 52(2) of the Constitution Act, 1982 provides that “[t]he Constitution of Canada includes” a number of legislative instruments, notably the Constitution Acts, 18671982. The word “includes”, as the Supreme Court has correctly recognized, means that the list it introduces is not exhaustive. So what else is part of the “Constitution of Canada”? I doubt that the term “constitution” has an unambiguous original public meaning, given its fluidity in the Westminster tradition, which the existence of constitutional texts in Canada only compounds.

This is a big problem, because it is “the Constitution of Canada” that, by virtue of section 52(1) of the Constitution Act, 1982, “is the supreme law of Canada”, invalidating any other inconsistent law, and by the (self-referential) terms of section 52(3) can only be amended “in accordance with the authority contained in the Constitution of Canada”? Section 52(2) fails to provide useful guidance on an issue of fundamental importance in our constitutional law. Ideally, it should be amended to clarify what is, and what is not subject to sections 52(1) and 52(3), in particular among Imperial legislation such as the Bill of Rights 1688, as well as “unwritten” constitutional rules and principles.

2. Parliamentary sovereignty

My biggest philosophical problem with the Canadian constitution is that, subject to the federal division of powers and the specific restrictions on legislative power found mostly in the Canadian Charter of Rights and Freedoms and section 35 of the Constitution Act, 1982, it is underpinned by the traditional view of Parliamentary sovereignty.  As much as I would like the constitution to include something like a Barnettian “presumption of liberty“, and whether or not such a presumption exists under the Constitution of the United States, correctly interpreted, it is a thing alien to the Westminster tradition as it evolved in the 18th and 19th centuries. I don’t think there is or can be any serious dispute about that.

Under the Canadian constitution, subject to the aforementioned limitations, Parliament and the legislatures are free to enact laws that benefit some people at the expense of others or are otherwise  not rational means to advance the public interest. Now, these limitations are not insignificant. They would be more important still if the courts interpreted them correctly, instead of letting their pro-regulatory bias dictate their decisions, as the Supreme Court recently did in R v Comeau, 2018 SCC 15, and if they adhered to the original requirement of exclusivity in the federal division of powers. Nevertheless, the scope of legislative power under the Canadian constitution is much too broad.

Parliamentary sovereignty is also pernicious because it is, paradoxically, the constitutional foundation of the administrative state. While I would not yet concede the constitutionality of judicial deference to administrative decision-makers, Parliamentary sovereignty is the best argument for it. And there is no doubt that Parliamentary sovereignty is the justification for the delegation of considerable legislative and adjudicative powers to administrative decision-makers in the first place. Whatever limits on such delegation might exist as a matter of the constitution’s original public meaning ― a subject that I would love to see explored ― I strongly suspect (based notably on decisions made by the Judicial Committee of the Privy Council, whose outlook was more or less originalist), that any such limits are pretty broad. Thus, even if constitution, properly understood, is more constraining than the courts now recognize, Parliamentary sovereignty means that Canadian legislatures are entitled to create an extensive administrative state ― and that’s bad  for the liberty of the subject, the accountability of government, and the Rule of Law.

3. Lack of proportional representation of the provinces in the House of Commons

Proportional representation of the provinces was one of the key aims of Confederation, and it is seemingly enshrined in sections 52 of the Constitution Act, 1867, and 42(1)(a) of the Constitution Act, 1982. Yet this principle is qualified by sections 51 and 51A of the Constitution Act, 1867 and 41(b) of the Constitution Act, 1982, to ensure that the representation of small provinces is not reduced. The result is that small provinces are over-represented, and also that the size of the House of Commons keeps increasing, and will likely have to keep increasing in perpetuity, since this is the only way to dilute this over-representation. I do not particularly like either of these things, but there they are, doubtless a necessary if unprincipled political compromise.

4. Lack of recognition of municipal institutions

While the Constitution Act, 1867 has served us well ― for the most part, as noted below ― in maintaining a robust division of powers between the Dominion and the provinces, but this is probably not enough. The kerfuffle about the imposition by Ontario of a downsizing on Toronto’s municipal council, which I take it has the support of pretty much nobody in the city, is only the latest evidence for the proposition that municipal self-government ought to enjoy at least some constitutional protection from provincial interference. While I do not know just what this protections should take, and do not argue that municipalities ought to be recognized as a full-blown third order of government, the situation in which they can be interfered with at will, for good reasons, bad reasons, and no reasons, seems undesirable. Yet as things stand, municipalities are subject to the provinces’ plenary power under section 92(8) of the Constitution Act, 1867, and the right to vote in municipal elections is not protected by section 3 of the Charter, which by its clear terms only applies to “election[s] of members of the House of Commons or of a legislative assembly” of a province. The ongoing litigation between Toronto and Ontario may yet see the courts accept some of the city’s strained constitutional arguments, but I do not think that there is any serious claim that the constitution’s original public meaning prevents the province from doing what it did, however unwise its decision was.

5. Taxation provisions

My thoughts here are  tentative, because I am by no means an expert on tax law, or even on just its constitutional aspects. I take it, however, is that the distinction between “direct” and “indirect” taxes that forms the basis of section 92(2) of the Constitution Act, 1867 and is ― as decisions of both the Judicial Committee of the Privy Council and the Supreme Court recognize ― based on economic views prevailing at the time that legislation was enacted, is obsolete. The Supreme Court is right to try to stick with the original meaning of the constitution taxation provisions, but it would probably be a good thing if these provisions were amended to reflect more up-to-date economic concepts ― and, ideally, provide a clearer distinction between the respective sources of income of the federal and provincial governments.

6. Trade and commerce

Here too my thoughts are somewhat tentative, but there are ways in which the federal power over trade and commerce inmight be both too broad and too narrow. For one thing, like Professor Somin, I lament the indubitable constitutionality of tariffs. Professor Somin writes that “[a] well-designed Constitution would at the very least make it far more difficult to enact trade barriers than ours does” ― but the Canadian constitution, by this standard, is no better than the American one. Section 122 of the Constitution Act, 1867 clearly authorizes Parliament to enact “Customs and Excise law”. At the same time,  section 91(2) of the Constitution Act, 1867 is arguably too narrow in that, read together with section 92(13), it leaves securities law, to provincial jurisdiction (as the Supreme Court correctly found in Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837). Again I am no expert, but I take it that federal power in this area is widely regarded as desirable. It is worth noting that on the whole Canada has been well served by the decentralized division of powers embodied in sections 91 and 92 of the Constitution Act, 1867. But, while generally sound, this division is not perfect.

7. Lack of protections for judicial independence

The Canadian constitution has relatively little to say about judicial independence. The Judicature provisions of the Constitution Act, 1867 incorporate the rule of the Act of Settlement 1700 that the judges of the superior courts can only be removed by the Crown on address of the two houses of Parliament, and it is at least arguable that the convention that no such address would be moved except on grounds of misbehaviour or incapacity is part of the context in which this provision must be understood. The Constitution Act, 1867 also provides for the payment of these judges by Parliament, but seems to provide no protection against the reduction of judicial salaries, let alone any requirement for salaries to be set through some non-political process. Of course it does not apply to the judges of federal or provincial courts. Section 11(d) of the Charter provides a right to trial by an “independent and impartial tribunal” to persons “charged with an offence”, but does not specify what this means; nor does it guarantee the independence of judges who do not exercise criminal jurisdiction.

I would like to see more research into the original public meaning of the term “independent tribunal” as it is used by the Charter and into its good faith construction, but I am pretty skeptical that the Charter requires the sort of independent commissions for setting judicial salaries that the Supreme Court’s opinion in the Provincial Judges Reference, [1997] 3 SCR 3, demands. I am still more skeptical of the appropriateness of reading extensive protections for judicial independence, including for courts not covered by the Charter, into the constitution through the unwritten principle of judicial independence. Yet I also think that such protections are highly desirable. If I were re-writing the Canadian constitution, I would provide such protections for all courts ― superior, federal, and provincial alike. The weakness of existing constitutional provisions in this respect is somewhat embarrassing.

8. Lack of protections for economic liberty

The Charter does not protect property rights, freedom of contract, or the right to earn a living by lawful means of one’s choosing ― except the latter against discrimination “among persons primarily on the basis of province of present or previous residence”. As I’ve argued in the past (here and here), this is very unfortunate. As Professor Somin, among others, often points out, the absence or weakness of constitutional protections for property rights or economic freedom often causes the poorest and most politically disfavoured or excluded members of society to be disproportionately targeted by the state or by private interests who are able to use their political connections to put its coercive power at their own service. It is most unfortunate that the framers of the Charter failed to understand this. Indeed, if I had to rank my objections to the constitution in order of their practical signifiance, this one would probably be at the top of the list.

9. Protection for affirmative action

Section 15(2) of the Charter insulates affirmative action or positive discrimination programmes from scrutiny based on the Charter‘s equality guarantee. This is not the place for a full argument, but I don’t like this one bit. Discrimination is still discriminatory even if its present targets belong to groups that historically were perpetrators rather than victims. If exclusion based on innate characteristics is demeaning, then job postings that say that straight white men need not apply are demeaning. The framers of the Charter were wrong to tolerate such practices.

10. The “Notwithstanding Clause”

I’ve written a good deal about this one already: see here, here, here, and here. In a nutshell, I don’t think that allowing politicians to set aside constitutional protections for fundamental rights is a good idea. Of course, courts can err by expanding these protections beyond their original scope, or by failing to recognize the reasonableness of legislative limitations. But in my view the expected costs of legislative error are much higher than those of judicial error. Yet there is no question that section 33 of the Charter, which permits Parliament and legislatures to legislate “notwithstanding” some of the rights the Charter normally protects is part of the law of the constitution, and I don’t think that there is yet a convention against its use, even at the federal level, let alone in some of the provinces.

* * *

This is a fairly lengthy list, and some of the items on it reach deep into the constitutional structure ― rather deeper, I think, than Professor Somin’s objections. Why, then, should I, or anyone, be an originalist, and insist that our flawed constitution is to be applied by the courts in accordance with its original public meaning, instead of urging the courts to make it just? Because, as Jeffrey Pojanowski argues, we should not be too demanding of constitutions. It is unrealistic to expect perfection, even if we believe that such a thing is conceptually possible. We should set our sights lower:

even if one has moral qualms about particular provisions of the constitution, any constitutional regime that passes a threshold of moral respectability has a moral claim to our support and respect. (586)

But for a morally respectable constitutional regime to serve as a law capable of guiding the expectations and conduct of citizen and government alike, its terms

must be known and reasonably durable. Were the constitution’s legal norms treated as merely good advice, a polity would not enjoy the moral benefits that positive law exists to provide in the first place … If one does not seek to identify and treat the original law of the constitution as binding, one imperils the moral benefits constitutionalism exists to offer the polity. We are back to square one, adrift in a sea of competing, unentrenched norms. (586-87)

The Canadian constitution is imperfect but, despite the shortcomings identified in this post, I think it easily passes the moral respectability threshold. So it deserves to be treated as law and not just as advice, good or bad according to the whims of the Supreme Court.

Quis Custodiet?

If judges are the guardians of our constitutional values, they need to be guarded too, as Chief Justice McLachlin’s example shows

There has been no shortage of panegyrics on the occasion of Beverley McLachlin’s retirement. Richard Albert‘s is particularly interesting to me, though, because it is largely based on the former Chief Justice’s extra-judicial output, mostly speeches, and I once toyed with the idea of writing a piece based on such materials myself. (Disclosure: Professor Albert and I are working on an edited collection project together.) Indeed, I have critiqued individual speeches that Chief Justice McLachlin has given on a couple of occasions (here and here).

These explanations of how the former Chief Justice saw her role are significant ― if not always informative, as I will also suggest below ― yet bound to attract less interest, and less critical attention, than her judgments. Professor Albert’s paper is thus a useful contribution to our understanding of the former Chief Justice ― even if we dissent from its tone and disagree with its assessment of its subject, as I do. This is all the more so since the papers on which Professor Albert draws are not as easily accessible as one might wish. The Supreme Court’s website offers only a selection of the former Chief Justice’s speeches (which includes neither of those I have commented on, for instance), and virtually nothing from any for her colleagues, or even her successor.

According to Professor Albert, the former Chief Justice has been a towering figure in early 21st-century Canada. Prime Ministers and Governors General came and went, but the Chief Justice remained, rising almost to the stature “of Conscience-in-Chief
that Americans have sometimes seen fulfilled by their presidents”. (7) You might think it’s a bit too much for a person who writes thrillers, not treatises, in her spare time, but Professor Albert is unrelenting in his praise:

Chief Justice McLachlin … has made Canada a better, fairer and more equal place, and our Constitution the envy of the world. She leaves an equally important legacy as an expositor and guardian of our constitutional values. (1)

As mentioned above, Professor Albert draws on the for Chief Justice’s extra-judicial pronouncements to make his case. In my view, however, the light he shines on her exposes a rather unflattering image.

The earliest speech Professor Albert describes concerned “The Role of Judges in Modern Society“. It is part of that role, the former Chief Justice said, to “be sensitive to a broad range of social concerns” and to “be in touch with the society in which [judges] work, understanding its values and its tensions” ― while at the same time “attain[ing] a level of detachment” from their personal views “which enables [them] to make decisions which are in the broader interests of society”. In another speech discussed by Professor Albert, this one on “Defining Moments: The Canadian Constitution“, Chief Justice McLachlin added that “as a nation’s values and expectations change over time, so its constitution is applied in a way that reflects those changes”.

The idea that judges must maintain a connection of some kind to “their” society is, of course, reminiscent of the discussion of the role of “social values” in l’Affaire Nadon, a.k.a.  Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433 ― delivered just five weeks after the “Defining Moments” speech. In his article “Nom de Plume: Who Writes the Supreme Court’s ‘By the Court’ Judgments?”, Peter McCormick suggested that Chief Justice McLachlin likely wrote the majority opinion in that reference, and thanks to Professor Albert’s investigation of her extra-judicial pronouncements we arguably have additional evidence in support of this suggestion. What we lack, either in l’Affaire Nadon or in the “Defining Moments” speech, is an explanation of the mechanisms by which judges are to maintain sensitivity to social concerns or understand social values, let alone make decisions in the broader interests of society.

This is impotant. Never mind the normative question of whether deciding in the broader interests of society is in fact the judges’ job. (It’s not.) Ought implies can, and the suggestion that the judges can do these things is implausible and betrays an arrogance that is quite incompatible with maintaining “an attitude of ‘active humility'” for which Chief Justice McLachlin also called in the same speech. The matter of the “social values” that Québec judges on the Supreme Court of Canada purportedly channel is illustrative. The joint dissent by Justices Lebel, Wagner, and Gascon in the gun registry litigation, Quebec (Attorney General) v Canada (Attorney General), 2015 SCC 14, [2015] 1 SCR 693, referred to an alleged consensus in Québec in favour of the (now-defunct) long-gun registry ― yet as I noted here, polls showed that this consensus only existed among the media and political elite, but not among the general population.

Judicial inability to channel social values not only calls into question particular opinions, such as the majority in l’Affaire Nadon or the gun registry dissent, but undermines the foundations of the Supreme Court’s professed (though not always followed) approach to interpreting the constitution. Professor Albert, referring to the former Chief Justice’s insistence that the Canadian constitution is “applied in a way that reflects … changes” in social values, writes that

[t]his raises a telling contrast with the United States, whose revolutionary traditions have invited dramatic reorientations in law and society. Our evolutionary model would certainly not embrace Thomas Jefferson’s famous suggestion that each American generation should discard the existing constitution, break legal continuity with the prior regime, and author its own new constitution according to the values of the time. (12)

This may be true at a wholesale level ― though of course the Americans have been no more keen on Jefferson’s suggestion for constitutional replacement than Canadians, which suggests that we are not all that different from one another. But of course the idea that the constitution can be applied ― by judges ― to reflect social change even in the absence of actual amendment amounts to a discarding of constitutional provisions in detail. Legal continuity is not shattered all at once, but weakened hairline fracture by hairline fracture, one constitutional benediction at a time.

Professor Albert asks “by what means are judges to determine how and when the country’s values have changed or are in a period of evolution from old to new?” Yet having dismissed constitutional amendment as a guide due to its difficulty, he simply accepts that “[j]udges … must themselves drive the evolution of the Constitution”. (13) Professor Albert suggests that the former Chief Justice thought so too; for her “judges must be guided by society but not directed by it”. (13) Indeed, it is the judges who must help direct society towards greater justice ― and specifically towards the “just society” promised by Pierre Trudeau. Professor Albert notes that Chief Justice McLachlin referred to this slogan in a speech she gave in 2007. She returned to the subject in 2016 (both speeches, coincidentally or not, were given to the same audience, the Empire Club of Canada; I suppose they are big fans of Pierre Trudeau there). Commenting on the latter speech, I wrote that it is “quite inappropriate for a judge to take up what was, for better or for worse, a partisan slogan and try to make it into a constitutional ideal”. I worried that this gave “grist for the mill of those who already think that the Charter, and the courts that enforce it, are essentially Liberal self-entrenchment devices.” My views on this haven’t changed, and my worries are only strengthened now that I realize that theme was not a one-off.

Another theme that Professor Albert highlights is the former Chief Justice’s professed commitment to “diversity” ” in speech, thought, origin and orientation, to name a few” (18-19). In another speech Professor Albert quotes, Chief Justice McLachlin insisted that her Court “focused not on ‘seek[ing] to erase difference, nor [sought] to impose conformity’ but to make it possible for ‘each group … to maintain its distinctions'”. (21) I’m afraid that Chief Justice McLachlin’s belief in diversity of thought and in allowing groups to maintain their distinctions will be news, and not very credible news at that, to Trinity Western University, whose law school the former Chief Justice voted to allow law societies to can, lest accrediting it be seen as a stamp of approval for Trinity Western’s (discriminatory) beliefs. But then, extra-judicially saying one thing and judicially doing another one was something of a theme for the person who joined an opinion disparaging “the amorphous underlying principles of our Constitution” only months before jetting off to New Zealand to deliver a noted lecture encouraging judges to invalidate legislation for inconsistency with such principles, declared for the occasion to be tantamount to natural law. And in yet another lecture to which Professor Albert refers, Chief Justice McLachlin stressed that “the law … requires lawyers to take unpopular stands, judges to make unpopular decisions”. (20) Yet for all that she was willing to take on the Prime Minister when occasion called for it, how willing was the former Chief Justice to take a stand that would have been truly unpopular among the bien-pensant intelligentsia? Her change of heart on hate speech criminalisation ― which she opposed early in her career, but eventually accepted ―, and of course her opinion in Trinity Western, are not exactly evidence in her favour here.

Professor Albert has, it will be obvious, a very high opinion of Chief Justice McLachlin. He writes that “the key ingredient … to the success of Canada’s modern Constitution—and the reason why it is so admired abroad—has been how the Supreme Court has interpreted, elaborated and defended it”. (23) To my mind, though, his paper illustrates and explains not so much the successes as the failures of the Supreme Court and of its departing Chief: their rashness in choosing to deal in values rather than in law alone; their arrogance in disregarding legal constraints; their lack of principle and courage. If this is what other countries admire, let them. Canada deserves better.

If, like Professor Albert, I believed that judges can serve as the guardians of our constitutional values, I would not hold up Chief Justice McLachlin as the epitome of that role. But, for my part, I think we ought to heed Learned Hand’s famous warning:

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.

The successes, and even the failures, of individual judges in the defence of our constitutional values are, ultimately, less significant than our own. It is our job to uphold these values, including against our public officials ― even the Chief Justice of Canada.

Unmaking History

In the “free the beer” case, the Supreme Court shows ― again ― that it is the spoiled child of the Constitution

When it accepted to pronounce on the constitutionality of non-tariff barriers to inter-provincial trade, the Supreme Court had a chance to make history. In R v Comeau, 2018 SCC 15, the Court chose to unmake it instead. Far from “freeing the beer” and invalidating legislation that prevents bringing booze from one province to another and other regulatory schemes built on provincial protectionism, Comeau countenances even restrictions on inter-provincial trade that would previously have been thought flatly unconstitutional. In the process, it tramples over constitutional text and history, as well as logic.

Section 121 of the Constitution Act, 1867 provides that “[a]ll Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces”. But free of what exactly? Of any and all regulation, or of just some particular kinds? In Gold Seal Ltd v Alberta (Attorney-General),  (1921) 62 SCR 424, the Supreme Court held that “free” meant “free from tariffs”. In Comeau, it was asked to revisit this holding. As the Court ― its members evaded responsibility for their (mis)judgment by attributing it to the institution, though I am looking forward to Peter McCormick or someone else exposing the true author(s) ― notes, this question is of the highest importance:

If to be “admitted free” is understood as a constitutional guarantee of free trade, the potential reach of s. 121 is vast. Agricultural supply management schemes, public health-driven prohibitions, environmental controls, and innumerable comparable regulatory measures that incidentally impede the passage of goods crossing provincial borders may be invalid. [3]

* * *

Before answering the interpretive question, however, the Supreme Court addresses a different one: whether the trial judge was entitled to depart from Gold Seal to hold that s. 121 applied to non-tariff barriers to inter-provincial trade. The judge had taken up the Supreme Court’s invitation, issued in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, to revisit precedent in light of newly available evidence. In Bedford and Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331, which dealt with the constitutionality of the provisions of the Criminal Code relative to prostitution and assisted suicide respectively, the evidence that was held to allow lower courts to revisit Supreme Court precedent came mostly from the social sciences. In Comeau, the trial judge relied on new historical evidence about the context and original meaning of s. 121.

This, the Supreme Court insists, was not something that Bedford authorizes. Bedford “is not a general invitation to reconsider binding authority on the basis of any type of evidence”. [31; emphasis mine] What is required is a showing “the underlying social context that framed the original legal debate is profoundly altered”, [31] triggering the applicability of the Court’s “living tree” approach to the constitution. Historical evidence, which the court derides as “a description of historical information and one expert’s assessment of that information”, does not count: “a re-discovery or re-assessment of historical events is not evidence of social change”. [36]

In conversation with Maclean’s, Carissima Mathen said the Court “essentially chastised the trial judge for going beyond his authority, in terms of feeling free to disregard this older decision”. Were she less polite, prof. Mathen could have described the Supreme Court as delivering a benchslap to the trial judge, at once gratuitous and telling. Gratuitous, because this part of the Court’s reasons is, in my view, obiter dicta ― it is not part of the reasoning that’s necessary to the decision, which is based on the court’s own re-examination of the constitution and relevant precedent (including, as we’ll see, a departure from Gold Seal). Telling, because the disparagement of history is of a piece with the Court’s broader approach to the constitution, on which more below.

Embarking on its own analysis of s. 121, the Court repeats that a robust reading of this provision would call into question much existing regulation. But, it concludes, such a reading is not required. The constitutional text is “ambiguous, and falls to be interpreted on the basis of the historical, legislative and constitutional contexts”, [54] ― though it is mostly the latter that does the work in the Court’s reasons.

Historical context, in the Court’s view, is inconclusive, because different visions of what form of economic union Confederation would implement were presented by the political actors at the time (none of whom the Court actually quotes). Although it duly notes that “in drafting s. 121, [the framers of the constitution] chose the broad phrase ‘admitted free’ rather than a narrower phrase like ‘free from tariffs'”, [64] the Court insists that “[w]e do not know why they chose this broader, and arguably ambiguous, phrase”, [64] and concludes that “the historical evidence, at best, provides only limited support for the view that ‘admitted free’ in s. 121 was meant as an absolute guarantee of trade free of all barriers”. [67; emphasis in the original]

This is bizarre. Surely we can tell that, if the framers were consciously choosing between a narrower and a broader versions of a constitutional ban on barriers to trade, they chose the broader because the narrower did not capture all the barriers they meant to prohibit. As Benjamin Oliphant and I explain in our article on “Originalist Reasoning in Canadian Constitutional Jurisprudence“, the Supreme Court is no stranger to the “originalist inference” ― reasoning from a choice made during the framing of a constitutional text between competing proposed versions of a provision. The inference seems obvious here, but the Court avoids it. Even more remarkably, the Court also ignores the injunction in Bedford that appellate courts are not to re-assess “social and legislative evidence”, [49] including expert evidence, presented at trial. While the wisdom of this injunction is highly questionable, the Court is, admittedly not for the first time, simply ignoring relevant precedent, without bothering to either distinguish or overrule it.

The “legislative context” that the Court refers to is the placement of s. 121 in a Part of the Constitution Act, 1867 that largely deals with financial issues. The Court considers that  its other provisions “attach to commodities and function by increasing the price of goods”, suggestion that s. 121 does not “capture merely incidental impacts on demand for goods from other provinces”, rather that “direct burdens on the price of commodities”. This might be the Court’s best argument, though it may also be that, as the trial judge found, s. 121 was put where it was simply because this was as good a place as any other in the Constitution Act, 1867. Be that as it may, the Court itself does not seem to attach all that much importance to its conclusion on this point.

The heart of the Court’s reasoning is its discussion of the principle of federalism, which it finds to have two implications of particular relevance to the question of the constitutionality of barriers to inter-provincial trade. One is the exhaustiveness of distribution of powers between Parliament and the provinces. The other is the idea of a balance between the powers of the two levels of government ― and the Court’s role in maintaining that balance. As to the former, the Court insists that there must be no “constitutional hiatuses — circumstances in which no legislature could act”. [72] For any given policy ― including the imposition of barriers to inter-provincial trade ― there must be a level of government competent to enact it, alone or at least in “co-operation” with the other. As to the latter, the Court quotes F.R. Scott for the proposition that “[t]he Canadian constitution cannot be understood if it is approached with some preconceived theory of what federalism is or should be”, [82] and insists that, rather than “a particular vision of the economy that courts must apply”, federalism “posits a framework premised on jurisdictional balance that helps courts identify the range of economic mechanisms that are constitutionally acceptable”. [83]

Here, the Court contradicts both the constitution and itself. Constitutional hiatuses are not anathema to federalism. They exist: in section 96 of the Constitution Act, 1867 (which limits the powers of both Parliament and the legislatures to interfere with the independence and jurisdiction of superior courts); in sections 93(1) and (2) (which limit the provinces’ ability to interfere with minority rights in education, without allowing Parliament to do so); and, even on the Court’s restrictive reading, in s. 121 itself. And then, of course, there is the giant constitutional hiatus usually known as the Canadian Charter of Rights and Freedoms, as well as the smaller but still significant one called section 35 of the Constitution Act, 1982. As for the court’s disclaimer of authority and desire to impose a particular vision of federalism or the economy, it is simply laughable. The idea that federalism requires judicially-imposed “balance” rather than the respect of the letter of the constitution, and any conceivable form of economic regulation must be able to be implemented are precisely the sort of preconceptions that the Court pretends to banish from our constitutional law.

Oblivious to its own incoherence, the Court claims that federal balance would be undermined, and a “constitutional hiatus” created, by an overbroad interpretation of s. 121. Instead of “full economic integration” [85] or “absolute free trade”, the Court propounds what it presents as a compromise:

s. 121 … is best conceived as preventing provinces from passing laws aimed at impeding trade by setting up barriers at boundaries, while allowing them to legislate to achieve goals within their jurisdiction even where such laws may incidentally limit the passage of goods over provincial borders. [91]

The notion of impediment to trade is seemingly a broad one, extending to any provincial law that “imposes an additional cost on goods by virtue of them coming in from outside the province”, [108] or indeed bans inter-provincial importation outright. But, crucially, only laws “aimed at” creating such impediments are prohibited by s. 121, and this will be an extremely narrow category. In effect, it seems that only laws serving primarily “purposes traditionally served by tariffs, such as exploiting the passage of goods across a border solely as a way to collect funds, protecting local industry or punishing another province” will count ― and even that “depending on other factors”. [111] A law having a “rational connection” [113] to some other regulatory purpose, such as “protecting the health and welfare of the people in the province”, [112] or most any other conceivable regulatory objective, will survive. The law at issue survives because it is part of a regulatory scheme intended “to enable public supervision of the production, movement, sale, and use of alcohol within New Brunswick”. [124] Its effects on inter-provincial trade in liquor coming to New Brunswick are merely “incidental”, and constitutionally permissible.

This is wrong in many ways. As a starting point, the Court is answering the wrong question. The issue is not how s. 121 is “best conceived”, but what its purpose is, and how that purpose can be given effect. As Randy Barnett and Even Bernick write in a their essay on purposive constitutional construction (which I reviewed here),

[t]o formulate a rule with reference to the function that the relevant provision is designed to perform is not a matter of making the law “the best it can be” but giving effect to the law as best one can. A judge who decided a case on the basis of some other reason—however normatively appealing that might seem—would be departing from the law entirely. (27)

Second, the Court is wrong to claim that its approach to s. 121 is consistent with precedent. However narrowly it construed s. 121, Gold Seal at least maintained an outright prohibition on inter-provincial tariffs. Following Comeau, tariffs are fine ― provided that they are rationally connected to some regulatory scheme that can be spun to appear to be directed a public health and welfare objective. So much for stare decisis. Most importantly though, as Malcolm Lavoie points out in a CBC op-ed, the Court’s “approach practically nullifies Section 121”, because legislation primarily intended to deal or interfere with inter-provincial trade is already something that provinces cannot enact ― if anyone can, it is Parliament, under section 91(2) of the Constitution Act, 1867. (Professor Lavoie, it is worth noting, is the author of the most important article on the Comeau litigation, which the Court ignored, as it ignored all other scholarship touching on the case, as well as recent work on constitutional interpretation more broadly).

* * *

What causes the Court to re-write the Constitution Act, 1867 (while insisting that it is not making a policy decision), ignore precedent (while admonishing the trial judge for doing so), all in the name of a quest for a federal balance that it is quite different from the one the framers of the constitution struck (while denouncing the imposition of pre-conceived notions of federalism)? Emmett Macfarlane, writing for Maclean’s, denounces Comeau as “craven”, the result of “politicized timidity”. He is not wrong about this (though I think he is in his general denunciation of the federalism jurisprudence), but let me be more specific. In my view there are two (loosely related) problems with the way the Court decided Comeau: its pro-regulatory bias, and approach to constitutional interpretation.

The Court’s bias in favour of regulation appears in the introduction of both the decision as a whole (at [3], quoted above) and that of the substantive part (at [51], in similar terms). The Court is preoccupied by the fact that s. 121 might prevent the enactment of some forms of regulation. It is this, rather than the more general notion of “constitutional hiatuses” that leads it to narrow s. 121 into oblivion. As noted above, hiatuses exist, and the Court is actually quite fond of expanding them, s. 96 and the Charter especially. It is the prospect of constitutional limits on economic regulation that makes the Court suddenly desirous to ensure that Canadian legislatures can make or unmake any law whatever.

As for the Court’s interpretive method, it is implicitly, though not explicitly, living constitutionalist. In an appendix to the “Originalist Reasoning” article, Mr. Oliphant and I wrote that in Comeau the Court “be faced with a stark interpretive choice between a very strong originalist case”, which prevailed at trial, “and arguments based (perhaps paradoxically) both on stare decisis and what may be perceived as the needs, or at least the expectations, of current society”. These perceived needs are reflected in the Court’s pro-regulatory bias which causes it to impose its own vision of federalism. And doing so is all the easier if historical evidence can be treated as less significant and worthy of deference than equivalent social scientific evidence, twisted, or even ignored.

* * *

As I wrote in an essay published last year in Diritto Pubblico Comparato ed Europeo, the well-documented hefty costs of the regulatory schemes which the Supreme Court thought it so important to preserve from constitutional challenge, and the fact that this cost is, in many cases, disproportionately borne by the most economically disadvantage members of Canadian society, ought to remind us that “living constitutionalism can come at a price, not only to abstract ideals such as the Rule of Law, but also to individuals and families, including, and even especially, to the most vulnerable”. (644) To be sure, we can in theory demand that our politicians enact inter-provincial free trade even if our judges will not impose it. But this argument could be made in response to literally any constitutional claim. The raison d’être of an entrenched, judicially enforceable constitution is that the political process sometimes fails to translate just demands, and indeed even popular demands, into legislation, due to either the tyranny of self-centred majorities, or the well-organized resistance of self-interested minorities. Section 121 of the Constitution Act, 1867 was enacted in recognition of this reality. The Supreme Court presumes to update our constitution, but it lacks the wisdom of those who wrote it.

It has been said, perhaps unfairly, that Viscount Haldane was “the wicked stepfather of the Canadian Constitution“. The Supreme Court deserves to be called the Constitution’s spoiled child. This child demands that its parent conform to its demands, and throws tantrums whenever it does not. Unfortunately, too many people find this child’s petulance endearing. Perhaps Comeau will convince them that it must, at long last, be made to behave.

Bashing Bill 62

Criticism of Québec’s face-veil ban coming from elsewhere in Canada is neither hypocritical nor disproportionate

In an op-ed in The Globe and Mail that has generated some discussion, at least in Québec, Jean Leclair remonstrates with “English Canadian politicians and journalists” for their criticism of Québec’s recently enacted legislation that could prevent women who wear face veils (and perhaps other people, such as those who wear sunglasses) from taking the bus or accessing any other public services. Prof. Leclair faults the classes that chatter in English for their hypocrisy and for the excesses of their rhetoric. With respect, it is he who is wrong.

Prof. Leclair thinks that English Canadian criticism of the former Bill 62 is hypocritical because the rest of Canada too has its share of racists and of people who support legislation targeting religious minorities. That is no doubt true. But it is no less true that in no province other than Québec has legislation similar to the “Charter of Values” that was proposed by Québec’s previous government, Bill 62, or beefed-up versions of the latter being proposed by both main opposition parties in Québec been enacted. To my knowledge, no provincial political party has made such legislation official policy. More broadly, no provincial political party has attempted to trade on or pander to the racism that undoubtedly exists in Canadian society in the way that all the main parties in Québec have done. The Conservative Party of Canada, in the death throes of the last federal election campaign, tried to do so, and having failed, abandoned the attempt. Prof. Leclair writes as if there is no difference between discriminatory attitudes existing in society and these attitudes being shared, or indulged for partisan purposes, by those in power. This is not so.

Prof. Leclair also thinks that the critics of Bill 62 are hypocrites insofar as they appear to him to celebrate the wearing of niqabs, or at least to be “stigmatizing all people who do not wish to ‘celebrate’ the right of a woman to wear a veil”. “How many” of them, he asks, “would rejoice if their daughter, one day, chose to wear one?” Prof. Leclair does not mention any names, and I am puzzled as to whether anyone actually is celebrating the fact that niqabs are being worn in Canada. What is worthy of celebration is the fact people are free to act in ways of which many, probably a majority, of their fellow citizens disapprove. Prof. Leclair insists that people should be free to criticize the wearing of the face veils without being accused of being racists, and I agree with him so far as this goes. But, once again, there is a difference between insisting that people are free to criticize others’ choices, even religiously-inspired ones, and defending their purported freedom to support or vote for policies that coerce those who make choices they deem wrong. Criticism is a right in a free society; coercion is not.

Prof. Leclair also argues that the criticism of Québec’s anti-veil (and perhaps anti-sunglasses) legislation is overwrought. After all, “Canada’s approach to the regulation of religious symbols and clothing … is not the only legal path followed in the liberal-democratic world”. A number of European countries have banned full-faced veils, and these bans have been upheld by the European Court of Human Rights. This, to prof. Leclair, proves that, though the bans may be wrong ― as he thinks ―, they are not “synonymous with blind racism”. Yet I fail to see how the fact that some countries ― even some democratic countries ― do something should shield that thing from forceful criticism. Admittedly, I do not know whether Prof. Leclair personally has ever criticized, say, the American criminal justice system as barbaric, but plenty of people in Canada and in Europe do not hesitate to do so. Does prof. Leclair think they should all keep mum? For my part, I think that to the extent that human rights involve universal principles, there is nothing inherently untoward in arguing that the interpretation of these principles by another polity, or group of polities, is perverse.

And the European approach to face veils is indeed perverse. Whether or not it proceeds from “blind racism”, as I have argued here, the reasoning of the Strasbourg Court is repressive, and indeed totalitarian. It rests on the premises that the state is entitled to impose conditions on human interaction that the individuals doing the interacting do not wish to be subject to, and that individuals have some kind of obligation to enter into “open interpersonal relations” with others, whether or not they want to do so. This reasoning is incompatible with belief in a free society, where people decide whether they wish to interact with others, and on what terms, so long as they are refraining from using force or fraud and not harming third parties. Prof. Leclair insists that even if the banning face veils is wrong, it is not arbitrarily repressive, as if the state were “regulating such things as baseball caps or miniskirts”. Face veils are associated with oppression against women, and the desire to outlaw them is therefore comprehensible even if misguided. I’m not sure about skirt length requirements, but certainly prohibitions on women joining certain occupations, or working outside the home at all, or voting, were once justified by claims that these activities took away women’s dignity. We have learned not just to politely disagree with such claims, but to reject them out of hand (which, of course, does not mean to shout them down or censor them). I hope that, in due course, we will also learn to reject out of hand claims that the dignity of women requires them to be prevented from dressing in accordance with their religious beliefs.

In my view, then, Prof. Leclair and others who, like him, disagree with Québec’s ban on face veils and proposals to extend this ban are wrong to object to the criticism with which this ban has been received in the rest of the country. This criticism is not made hypocritical by the existence of racist citizens outside Québec, nor is it made disproportionate by the fact that similar bans are regarded as acceptable in Europe. Prof. Leclair and others might view the criticism as an instance of “Québec-bashing”, the application of double standards to their province. Their are mistaken. Not only is there no double standard, as I’ve argued above, but the intensity of the criticism is, at least in part, likely driven by a recognition of the existence of the chauvinist and illiberal tendencies elsewhere in Canada. There might be no need to criticise Québec’s legislation so much if we were certain that it would never be replicated elsewhere. But precisely because there can be no such assurance, it is important that scholars, journalists, and politicians across Canada denounce it for what it is ― a manifestation of bigoted illiberalism.