Doré’s Demise?

What do the Supreme Court’s latest decisions mean for judicial review of administrative decisions that implicate the Charter?

In my last post, I wrote about the religious freedom issues addressed in the Supreme Court’s recent decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which concerned the constitutionality of a ministerial decision to allow development on land considered sacred by an Aboriginal nation. I want to return to Ktunaxa, this time to address a different issue that has, so far as I know, attracted relatively little attention: that of the standard of review of the Minister’s decision. On this point, the majority opinion (by the Chief Justice and Justice Rowe) and the concurrence (by Justice Moldaver) illustrate the ongoing failure of the Rule of Law in the Supreme Court’s jurisprudence.

Let’s start with a bit of history. In Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, Justice Abella, for writing for the unanimous Supreme Court, articulated a framework “for reviewing discretionary administrative decisions that implicate Charter values”. [34] Such review would be deferential, conducted on a reasonableness standard, much like judicial review of most other legal issues, in recognition of administrative decision-makers’ expertise. This approach has been heavily criticized, not least by Paul Daly and Maxime St-Hilaire, but the Court has never overtly resiled from it. However, the application of Doré has been uneven, to say the least.

In Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613, the majority opinion, written by Justice Abella, applied the Doré framework. However, as both Paul Daly and yours truly have suggested, there is little to choose between the way it does so and a more traditional proportionality analysis. Meanwhile, a partial concurrence by the Chief Justice and Justice Moldaver eschewed the Doré approach altogether. Just days later, in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3, a majority of the Supreme Court took yet another approach, holding that the relationship between the freedom of religion, religious neutrality, and prayer by government officials was a question of central importance to the legal system and therefore reviewable on a correctness standard. Justice Gascon, writing for the majority, did offer an explanation for why this case was different, though one that Paul Daly criticized as confused and confusing. Justice Abella was also unimpressed; she concurred, but would have reviewed the decision of Québec’s Human Rights Tribunal on a reasonableness standard. Neither she nor Justice Gascon even mentioned Doré.

Back, now, to Ktunaxa. Again, the majority opinion does not so much as mention Doré. What is more, it does not even raise, never mind address, the issue of the standard of review. After describing the background and the history of the case, and outlining the Ktunaxa’s religious freedom claim, it proceeds to discuss the Charter right to freedom of religion and to address and reject the claim, without referring, much less deferring, to the Minister’s decision at all. It is worth noting that the Supreme Court’s next decision, Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55, is the same in this regard. One of the issues raised there was whether a policy requiring government lawyers to be available, several weeks a year, to handle urgent matters outside of regular working hours was an infringement of their right to liberty under section 7 of the Charter. A labour arbitrator said that it was, but the Court (unanimous on this point) easily rejected that view, again without addressing either the question of the standard of review or the administrative decision-maker’s reasoning (though the majority did discuss it at length on the other issue in the case, which concerned the interpretation of a collective agreement).

Justice Moldaver’s concurrence in Ktunaxa is also worth mentioning here. He too starts out with his own discussion of the scope of religious freedom under the Charter, criticizes the majority’s view on it, and insists that the Minister’s decision was a prima facie infringement of that right. And then, Justice Moldaver turns to… the Doré framework (citing the majority opinion in Loyola for the proposition that it is “the applicable framework for assessing whether the Minister reasonably exercised his statutory discretion in accordance with the … Charter“. [136] Justice Moldaver explains why he thinks the Minister considered the Ktunaxa’s religious rights, and why his decision proportionately balanced these rights with the applicable statutory objective, paying fairly close attention to the minister’s reasoning.

So what is going on? Prof. Daly seems to think that not much is, but I’m not so sure. Without telling anyone, the Supreme Court might have killed off, or at least curtailed, Doré. Ktunaxa and Justice Counsel seem to suggest that, at least at the stage of defining the scope of a Charter right, Doré is not the applicable framework, and indeed no deference, or even attention, is due to an administrative decision-maker’s reasoning. Now, I’m no fan of Doré, and would be glad to know it’s dead and buried ― but if the Supreme Court has decided to get rid of it, that seems like a pretty big deal, and it should have told us. As things stand, for all we know, the Court might re-embrace Doré in the next case and pretend that Ktunaxa and Justice Counsel never happened, just as in those cases it seems to pretend that Doré, or at least Saguenay, never happened.

Moreover, there is an intermediate possibility, suggested by Justice Moldaver’s concurrence in Ktunaxa ― though of course we have no idea what the majority of the Court thinks about it, since it does not comment on this, or indeed any other, aspect of Justice Moldaver’s reasons. Perhaps, while the definition of Charter rights, as opposed to the justifiability of infringements under section 1, is a matter for the courts, while the justifiability of infringements is still to be reviewed by applying the Doré framework, perhaps as modified, if modified it was, in Loyola. This is not a crazy approach (which isn’t to say that I like even this diluted version of Doré). One could argue that the scope of Charter rights is necessarily a question of central importance to the legal system on which administrative decision-makers, even otherwise expert ones like labour arbitrators, are not in a privileged position vis-à-vis the courts, while whether a particular restriction to a right is permissible is an issue that is both less important and more bound up with a particular decision-maker’s expertise.

Crazy or not, I don’t think this approach is what Doré stands for. As I read it, Doré meant to move away from the two-stage Charter review with prima facie infringement and justification, in favour of a less structured, more global assessment. This is presumably why Justice Abella persistently spoke of Charter “values” instead of rights. Besides, at least one of the cases that Justice Abella invoked as supporting the proposition that discretionary administrative decisions engaging these “values” had to be reviewed on a reasonableness standard was a section 7 case, and in such cases the important questions typically (although, as we now know, not quite always) have to do with the definition of the right, not with its limitation under section 1. There just isn’t any indication in Doré that Justice Abella or her colleagues meant to confine it to the more limited role that it plays in Justice Moldaver’s Ktunaxa concurrence.

At the very least, then, the Supreme Court may have substantially modified Doré. Perhaps it has decided not to follow it anymore. But, to repeat, the Court has not told us so. This is problematic. Indeed, I think the Court is guilty of a serious Rule of Law failure. The Rule of Law requires law to be stable ― though not unchanging, to be sure ― yet the law on the standard of review of administrative decisions involving the Charter has now changed at least three, maybe four (depending on how to count Loyola) times in less than six years. The Rule of Law also requires, I think, that the fact of legal change be transparent (this is a function of the generally recognized requirement that law must be public). This is not always easy to ensure in the case of law being articulated and re-articulated by courts in the process of adjudication, but at least when a court knows that it is disregarding a relevant precedent or changing its approach to a type of case, it ought to be able to say so. The Supreme Court did so in Saguenay ― but not in Ktunaxa and Justice Counsel.

Or, look at this another way. In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the Supreme Court famously spoke of the importance of “the existence of justification, transparency and intelligibility within the decision-making process”. [47] That was by way of defining the notion of reasonableness in administrative law (itself a requirement of the Rule of Law), but you’d think that the courts should at least be held to as high a standard as administrative tribunals. Well, I’d say that it’s not easy to see much by way of justification, transparency, or intelligibility within the process by which the Supreme Court determines the standard of review of administrative decisions involving the Charter these days.

One last point. Justice Stratas links the doctrinal uncertainty that bedevils Canadian administrative law with turnover on the Supreme Court. I’m sure that this is a part of the story ― but Ktunaxa suggests that it is only a part. It’s not just that judges retire and are replaced by others who don’t agree with them. They don’t even stick to one approach while they are on the Court. Justice Abella wrote Doré and defended deferential review in Saguenay, but she signed on to the majority opinion arguably ignoring it in Ktunaxa. Justice Moldaver co-wrote the partial concurrence in Loyola that effectively rejected Doré, but in Ktunaxa he enthusiastically applied it, albeit not in full. (To be sure, there is something to be said for a judge who accepts having been outvoted on a particular issue and falls in line with the majority. But given the overall uncertainty of the law in this area, it might not be the best place to demonstrate one’s team spirit.) Given this individual inconstancy, it is no surprise that the Supreme Court as a whole is lurching from one approach to another without anything to stop it.

Given the lack of clarity from the Supreme Court about what exactly it was doing to standard of review analysis in Ktunaxa and Justice Counsel, we will have to wait to find out whether these case are just aberrations or the start of a new trend. It is at least possible, however, that they mean that Doré is, in whole or in part, no longer good law. I’d offer three cheers for that result, but must instead lament the lack of clarity and transparency with which it has ― unless it has not ― been reached.

A Hard Case

Thoughts on the Supreme Court’s dismissal of a religious freedom claim based on Aboriginal beliefs

Last week, the Supreme Court issued its decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which held among other things that the guarantee of religious freedom under the Canadian Charter of Rights and Freedoms does not prevent the state from interfering with the object of one’s worship. Beliefs, says the majority in an opinion by Chief Justice McLachlin and Justice Rowe, are protected ― but not the things that these beliefs attach to. Justice Moldaver, while concurring  in the result, vigorously disagrees with this approach. So does much enlightened opinion. And the critics have a point. But so does the majority. This is a much harder case than some of those who have criticized the decision have allowed.

For my purposes here, the facts are simple. The people of the Ktunaxa Nation have come to believe that allowing the building of any permanent constructions on a large tract of public land “would drive Grizzly Bear Spirit from [that land] and irrevocably impair their religious beliefs and practices” [6] to which the Spirit is central. Meanwhile, a developer wants to build a resort on that land and, after a protracted consultation process, has been granted permission to do so by the provincial government. The question is whether this decision infringes the Ktunaxa’s religious freedom and, if so, whether the infringement is justified under section 1 of the Charter. (There are other important issues in Ktunaxa too, but this post only deals with the religious freedom one.)

The majority concludes that there is no infringement of the freedom of religion. The constitution protects “the freedom to hold religious beliefs and the freedom to manifest those beliefs”. [63] An interference with a person’s or community’s beliefs and manifestation of these beliefs is a prima facie infringement of this guarantee. But there is no such interference here. The Ktunaxa can still believe in the Grizzly Bear Spirit, undertake rituals that manifest this belief, and transmit it to others. However, crucially, “[t]he state’s duty … is not to protect the object of beliefs, such as Grizzly Bear Spirit”. [71] Were it otherwise, “[a]djudicating how exactly a spirit is to be protected would require the state and its courts to assess the content and merits of religious beliefs”. [72]

Justice Moldaver argues that this is too narrow a view of religious practice and, therefore, religious freedom. Religious practice must be, well, religious ― otherwise there is no point to engaging in it. The state must take away its essential character: “where the spiritual significance of beliefs or practices has been taken away by state action, this interferes with an individual’s ability to act in accordance with his or her religious beliefs or practices”. [126] When religious belief involves a “connection to the physical world”, [127] as is the case for many aboriginal religions, a severing of this connection will infringe religious liberty. This, according to Justice Moldaver, is what happened in this case.

That said, Justice Moldaver ultimately upholds the government’s decision, because in his view it represents a proportionate balancing between the statutory objectives of administering and, when expedient, disposing of public lands, and the Ktunaxa’s religious freedom. Since the Ktunaxa themselves insisted that their claim could not be accommodated ― it had to be accepted or rejected ― to give effect to it would have meant giving them a veto over development on, and thus effectively a form of property rights in, a large parcel of public land. The government was “in a difficult, if not impossible, position”, [154] and its decision to allow development notwithstanding the Ktunaxa’s claim was reasonable.

Critics of the majority opinion agree with Justice Moldaver that the majority does not understand religious experience or the variety of religious practice. Avnish Nanda, in a thoughtful Twitter thread, blamed this failure on the lack of diversity on the Supreme Court. He pointed out that “[t]wo of the five pillars of Islam are intrinsically tied to” the Kaaba, and that, therefore, “[i]f the Kaaba were deprived of its spiritual significance, these religious practices core to Islam would be deprived of value”. But I’m not sure that diversity is the key issue here. After all, some forms Christian theology also accords great significance to sacred places and objects ― and one need not even be particularly familiar with this theology to be aware of its traces in the English (or French) language ― in words like “crusade” or “iconoclast”.

Whatever the reason for the majority’s narrow approach to religion, as I said at the outset, I think that its critics raise an important concern. Courts are prone to taking what is arguably too narrow a view of religious concerns, whether with respect to common or more exotic forms of faith. In a somewhat different but related context, Douglas Laycock once cautioned against “assum[ing] that religions lay down certain binding rules, and that the exercise of religion consists only of obeying the rules … as though all of religious experience were reduced to the Book of Leviticus”. (“The Remnants of Free Exercise”, 1990 Sup Ct Rev 1 at 24) Beliefs, obligations, and rituals are not all there is to freedom of religion. Community (the specific focus of Prof. Laycock’s concern) is important too, and so is attachment ― properly religious attachment ― to some aspects of the physical world.

However, as I also said in the beginning, we should not be too quick to condemn the majority opinion. To begin with, its concern about entangling the courts, and thus the ― secular and religiously neutral ― state in determinations of just what the protection of “objects of beliefs” requires is justified. David Laidlaw’s post over at ABlawg underscores this point, albeit unintentionally. Mr. Laidlaw insists that “the result in this case was a failure of imagination to consider the interests of the … Grizzly Bear Spirit”, which should have been recognized through the expedient of the courts granting the Spirit a legal personality and appointing counsel to represent it. For my part, I really don’t think that the Charter allows a court to embrace the interests of a spiritual entity ― thereby recognizing its reality. It is one thing for courts to acknowledge the interests and concerns of believers; in doing so, they do not validate the beliefs themselves ― only the rights of those who hold them. It is quite another to endorse the view that the belief itself is justified. And then, of course, the court would still need to determine whether any submissions made on behalf of the Spirit were well-founded. But even without going to such lengths, it is true that to give effect to the Ktunaxa’s claim, the Supreme Court would have had to hold not only that the Ktunaxa sincerely believed in the existence of and their connection to the Grizzly Bear Spirit, but also that this connection would in fact be ruptured by development on the land at issue. To do so would have meant validating the asserted belief.

There is a related point to make here, which, though it is unstated in the majority opinion, just might have weighed on its authors’ minds. Insisting that the connection between a person’s religious belief and the object of this belief deserves constitutional protection might have far-reaching and troubling consequences. The movement to insist that “defamation of religion” must be forbidden and punished is based on the same idea: things people hold sacred deserve protection, and so the state ought to step in to prevent their being desecrated ― say, by banning cartoons of a Prophet or jailing people for “insulting religious feelings”. Now, perhaps this does not matter. To the extent that the protection of the objects of beliefs is purely “negative”, in the sense that the state itself must not engage in desecration but not need not take action to prevent desecration by others, it need not translate into oppressive restrictions on the freedom of expression (and perhaps of religion) of those whose behaviour some believers would deem to compromise their own faith. But I am not sure that this distinction will always be tenable. If, for instance, a regulatory authority subject to the Charter grants a permit for an activity that a religious group believes to trample on the object of its faith ― say, a demonstration in support of people’s rights to draw cartoons, where such cartoons are going to be displayed ― does it thereby become complicit in the purported blasphemy, and so infringe the Charter? (This argument is not frivolous: it parallels one of those made by those who think that law societies should be free to deny accreditation to Trinity Western’s proposed law school lest they become complicity in its homophobia.)

There is an additional reason why Ktunaxa strikes me as a difficult case ― though perhaps also a less important one than it might seem. Suppose Justice Moldaver’s view of the scope of religious freedom under the Charter is correct, and the state has a prima facie duty not to take away the sacred character of (at least) physical spaces and objects involved in religious belief. But as Justice Moldaver himself says, this seems to be tantamount to giving religious believers a form of property interest in the spaces or objects at issue. That might not be a problem if the believers already own these things in a more conventional sense ― though even in such cases a constitutional quasi-proprietary right would be unusual given the Charter’s lack of protection for ordinary property rights. But, as Ktunaxa shows, in the absence of more conventional interests (whether fee simple ownership or aboriginal title or right), the recognition of such interests can get very problematic, because they amount to giving religious believers control over things that are not actually theirs. And what if the sacred place or object is owned not by the state but by another person? What if more than one religious group lays claim to it? In short, I’m not sure that there will be many, if any, cases where competing considerations would not prevail in a section 1 analysis (whether under the Oakes or, especially, the Doré framework), just as they did in Ktunaxa.

These thoughts, in case that wasn’t clear, are all quite tentative. I’m certainly open to the possibility of being proven wrong. If I am right, however, Ktunaxa really was a very difficult case, and it is not obvious that the majority got it wrong ― though nor is it clear that it got it right. Hard cases, it is often said, make bad law. I’m not sure that this is what happened here ― or that it even matters if it did.

The Rule against Violence

A timely opinion on freedom of expression by Justice Miller for the Ontario Court of Appeal

Last week, the Court of Appeal for Ontario delivered a noteworthy decision regarding the scope and limits of the constitutional protection for freedom of expression, Bracken v Town of Fort Erie, 2017 ONCA 668. The decision, written by Justice Miller for a unanimous court, breaks no new ground, but contains clear and cogent reminders of two elementary principles that, sadly, may not be self-evident in 2017: violence is not a constitutionally protected form of expression; but words, even spoken in anger, and even if those who hear them are, subjectively, feeling unsafe as a result, are not violence.

The case arose out of Mr Bracken’s solitary, but perhaps somewhat agitated, protest in the parking lot in front of the Town Hall against a decision the municipal council was about to make. Employees of the Town, one of whom had had a rather unpleasant interaction with Mr Bracken in the past, felt worried enough by what they perceived as erratic and threatening behaviour on his part that they called the police, who arrested Mr Bracken and served him with a Trespass Notice banning him from the Town Hall and two other municipal properties. The question for the courts was whether this contravened Mr Bracken’s freedom of expression. The Superior Court said “no”, on the basis that the expression in question was violent. The Court of Appeal disagreed.

* * *

After noting that the protection for freedom of expression, which Canadian courts recognized even before the entrenchment of the Canadian Charter of Rights and Freedoms is broad, Justice Miller explains why violence nevertheless falls outside the scope of this protection, although “some might find it difficult to understand the rationale for excluding violence categorically”. [30] “Violence and force”, he points out, “are predicated on the denial that persons are equal in dignity, negating the reciprocity necessary for communication and genuine dialogue”. [28] To treat prohibitions on violence as in need of justification

would be tantamount to declaring that Canadian constitutional morality is open to the proposition that an individual’s self-expression through acts of violence could, in some conceivable circumstances, take priority over the public good of protecting persons by restraining acts of violence. [30]

But how far does the exclusion of violence from the scope of the constitutional protection of freedom of expression extend? Justice Miller notes that it has been held to apply to actual physical violence and to threats of such violence, “on the basis that a person who threatens violence takes away free choice and undermines freedom of action” just as surely as one who commits violence. [31] But there was no evidence that Mr Bracken had engaged in any such behaviour. The Town employees who felt threatened by him had “observed him ‘from a safe distance'”. [37] One of them testified that she had “never had a conversation with” Mr Bracken prior to the court proceedings. [43] In short, Justice Miller concludes, “[t]he employees were indeed frightened, but the evidence does not disclose any reasonable basis for their fear.” [46]

Since Mr Bracken was not violent, his protest was protected by the Charter‘s guarantee of freedom of expression. The trespass notice banning him from the Town’s property was an infringement of his freedom, and one that cannot be justified under section 1 of the Charter. This is primarily because the Town’s action in banning Mr Bracken did not pursue a valid objective:

the factual basis on which [the Town] issued the trespass notice was largely erroneous. Mr. Bracken was not engaged in any violent activity. He was not blocking anyone. He was not preventing anyone from accessing the building. His behaviour was neither intimidating, in any relevant sense of the word, nor erratic. The Town employees, both junior and senior, were alarmed, but they were alarmed too easily. … If anyone felt intimidated by him, other than Town employees who had never before witnessed a protest and doubted that protests in front of Town Hall were lawful, it was not because he was threatening anyone. [76]

Besides, the trespass notice was much too broad; a disruptive or threatening protester might be asked to leave or, if need be, expelled, but that does not justifying banning him from public property for a whole year.

* * *

 

I’ll make a couple of observations about Justice Miller’s reasons. One is that they are at once unique, in the sense that a different judge would probably have written noticeably differently, and perfectly orthodox. I doubt many judges would have cited Joseph Raz (as Justice Miller does in describing “[t]he rule against violence [as] an exclusionary rule: it excludes by kind and not by weight”), or perhaps even Grégoire Webber’s The Negotiable Constitution: On the Limitation of Rights. Nor would many have spoken of “a set of human goods thought to be advanced by a constitutional protection of freedom of expression” [26; emphasis mine], using a phrase drawn from natural law theory. (The Supreme Court usually speaks of values or purposes instead.) But Justice Miller’s conclusions are those that the vast majority of Canadian judges would, I would like to hope, reach when presented with a similar case. (Of course, the trial judge reached the opposite conclusion, which is not altogether reassuring.) And as for the natural law allusion, though it might upset Sean Fine (who was much exercised by Justice Miller’s interest in natural law at the time of Justice Miller’s promotion to the Court of Appeal), Justice Miller shows that it too is more orthodox than Mr. Fine might realize, by referring to Justice Rand’s remark in Saumur v. City of Quebec, [1953] 2 SCR 299 that

freedom of speech, religion and the inviolability of the person are original freedoms which are at once the necessary attributes and modes of self-expression of human beings and the primary conditions of their community life within a legal order. (329)

(While I’m at it, can I gratuitously put in a plug for a post I wrote a earlier this year about a Québec Court of Appeal decision from the ’50s where natural law played an even more important role?)

The second observation I wanted to make here is that, although he decides the case under the Charter, the way it was argued by Mr. Bracken (who was representing himself), Justice Miller points out that administrative law reasons may well have supported an identical outcome. He notes that

a preliminary question … was never addressed: whether the Town’s expulsion of Mr. Bracken from the premises and the issuance of the trespass notice was lawful in the circumstances. … [Addressing it] may have obviated the need for a Charter analysis, and would have brought to the fore the issue of the implied limits on the common law authority of government actors to exclude persons from public property. [24]

Justice Miller adds

that where a government issues a trespass notice relying on the common law power to expel persons from property, it is exercising a power that is subject to implied limits. It cannot be issued capriciously; that is, it cannot be issued, in the circumstances of a public protest in the town square, without a valid public purpose. [75]

This matters, not just out of legal pedantry, but because one important actor that may well find itself involved in controversies about freedom of expression, protests, and violence real or imaginary might not be subject to the Charter: universities. Yet while the applicability of the Charter to them remains a murky question, it is clear that their decisions can in appropriate circumstances be subject to judicial review. Justice Miller’s reasons reinforce the point, already made by a majority of the Alberta Court of Appeal in Pridgen v University of Calgary, 2012 ABCA 139, that freedom of expression is an important consideration for such proceedings.

 * * *

This brings me to the last issue I want to address: how Justice Miller’s opinion fits into not just the legal, but the broader social context of 2017. This context is marked by the presence of two most unfortunate, and seemingly contradictory, beliefs: on the one hand, that “punching nazis”—and, inevitably, any number of other people—is permissible, and perhaps commendable; on the other, that some words—perhaps “hate speech” more or less narrowly defined, and perhaps some broader category of politically incorrect expression—are tantamount to violence and should be excluded from the scope of protection normally granted freedom of expression. (Richard Epstein provides a cogent rebuttal of that view in this Wall Street Journal article.)

Although they seem incoherent if not mutually exclusive, these twin beliefs work together to blur, indeed to erase, the line between the concepts of expression and violence. What one says, or does, is expression; what one’s opponents say, or do, is violence. And, as Lewis Carroll knew, the ability to make words mean whatever different things one chooses them to mean, neither more nor less, is a matter of “who is to be master”.

Justice Miller’s opinion resolutely pushes back against both of these pernicious ways of thinking. It explains why “punching Nazis” is never permissible—doing it means refusing to treat them as human beings (which, of course, is what Nazis themselves were notorious for). But it also insists that hurt feelings, or purely subjective claims of intimidation cannot be re-labelled as allegations of violence to shut down speech or protest, even when it takes on an unpleasant form:

Violence is not the mere absence of civility. The application judge extended the concept of violence to include actions and words associated with a traditional form of political protest, on the basis that some Town employees claimed they felt “unsafe”. This goes much too far. A person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b) [of the Charter].

The consequences of characterizing an act as violence or a threat of violence are extreme: it conclusively defeats the Charter claim without consideration of any other factor. Accordingly, courts must be vigilant in determining whether the evidence supports the characterization, and in not inadvertently expanding the category of what constitutes violence or threats of violence.

… A protest does not cease to be peaceful simply because protestors are loud and angry. Political protesters can be subject to restrictions to prevent them from disrupting others, but they are not required to limit their upset in order to engage their constitutional right to engage in protest. [49-51]

Justice Miller thus provides a very timely statement of the orthodox principles of freedom of expression in the public square. It would be nice if not only his fellow judges, but also others in positions of authority—in governments at every level, in universities, and elsewhere—as well as those tempted to take authority in their own hands, or fists, read his opinion and took it to heart. We would be a freer and more respectful society if they did.

H/t: Geoff Sigalet

Stupid but Constitutional

More on why I think legislation forcing floor-crossing legislators to run in by-elections is not unconstitutional

In my last post, I asked whether there is a right to rat—whether member of Canadian legislatures have a right under the Canadian Charter of Rights and Freedoms to cross the floor and join the caucus of a party different from the one for which they were elected, without going through a by-election first. I argued that there is no such right, although the bans on floor-crossing, such as the one that exists, and is now being challenged before the courts, in Manitoba are a bad idea. Somewhat to my surprise, that post provoked a good deal of discussion on Twitter (relative to my other posts, anyway, which to be fair is a pretty low standard). Because of the time difference, the fun mostly happened while I was asleep, and I missed out, so I want to follow up here.

One question that was raised, by Emmett Macfarlane, is whether I sufficiently addressed the floor-crossers’ “freedom”, under section 2(d) of the Charter, to associate with the caucus of their choice (and indeed a party caucus a right to associate with them)”. I’m not sure how much more I can say on this point; there seems to be a fundamental disagreement between prof. Macfarlane and me here. As I see it, no one is prevented from associating with a caucus, nor is a caucus prevented from associating with anyone. Only a preliminary condition is imposed: that before undertaking a (formal) association, the floor-crosser be elected under that caucus’s party label. The floor-crosser is put in the same position as any other citizen—one cannot become a member of a caucus, even if both sides are agreed, unless one first gets elected. (Consider the case of an unsuccessful candidate: he or she would very much like to be part of the caucus, and the caucus would love to have him or her, but those dastardly voters get in the way. ) Similarly, even if  engaging in collective bargaining is a constitutional right, as the Supreme Court now claims it is, I don’t think that even the Supreme Court would say that the requirement that the union have the support of a majority of workers before it is able to impose itself on their employer is a violation of the freedom of association, although it is doubtless a pre-condition that gets int the way of people engaging in associational activities.

Second, prof. Macfarlane remains of the view that the floor-crossers’ constituents rights to effective representation under that courts have read into section 3 of the Charter are infringed when their representatives are “restricted from representing [them] by responding to political circumstances that leads them to believe joining another caucus is the best way to do that”. I do not think that the right to effective representation has ever been taken to go nearly as far as prof. Macfarlane wants to take it here. In a passage from Haig v. Canada, [1993] 2 SCR 995 later endorsed by the majority in Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912, Justice L’Heureux-Dubé spoke of a

right to play a meaningful role in the selection of elected representatives who, in turn, will be responsible for making decisions embodied in legislation for which they will be accountable to their electorate. (1031; underlining in Figueroa at [25])

In other words, the right protected by section 3, both as a matter of constitutional text and even in the Supreme Court’s cases that have arguably expanded it to some extent, concerns the process of elections. As the majority put in Figueroa, it is “the right of each citizen to a certain level of participation in the electoral process”. [26] Section 3 does not deal with what happens within the legislature once the elections have taken place.

If the courts were to expand the scope of section 3 in this way, they would become entangled in all manner of questions that have always been thought of as a matter of politics—for example, whether the whip or a party line gets in the way of “effective representation”. (And I don’t think that parliamentary privilege, of which more shortly, will save them. Privilege attaches to the functioning of legislative bodies, not political parties or even caucuses.) Jan Jakob Bornheim pointed out to me that that’s precisely what happens in Germany, where the Basic Law‘s provision making members of the Bundestag “responsible only to their conscience” (article 38) has been interpreted to prohibit the imposition of party lines. For my part, I don’t think it’s a good idea to involve the courts in these issues, and I doubt that Canadian courts are all that keen to take on this responsibility, in the absence of a reasonably clear textual requirement that they do so.

In addition to all of that, I think that we should take seriously the role that party affiliation plays in people’s voting behaviour, and acknowledge that many, and probably most, voters will feel that their representation is undermined, not enhanced, by the ability of a representative whom they chose (in large party, if not exclusively) he or she was the candidate of one party to switch, mid-term, to a different party. Prof. Macfarlane suggests that this amounts to “using a reality of voting behaviour to transform the core purpose and function of” a legislator “which isn’t to represent a particularly party to but to represent a constituency”. For my part, I wouldn’t want a constitutional doctrine that is oblivious to “realities of voting behaviour” in the name of some high-minded pursuit of politics as it ought to be rather than as it is. In any case, I don’t think the distinction between the roles of representative of a party and representative of a constituency are as sharply distinct as prof. Macfarlane suggests. A legislator elected under a partisan banner can, and indeed is expected to, represent a constituency as a partisan (not in every way, of course, but in much of what he or she does),  and really don’t see how the Charter gets in the way of that, or why it should.

The final question I will address here is whether any of this matters, or whether the whole thing is a matter Parliamentary privilege anyway,  and the courts will not interfere with the way in which privilege is exercised. On this point, I think there is some confusion going on. The internal functioning of legislative bodies is a matter of privilege, as are the rules they make, internally and for themselves, such as their standing orders. That, as Benjamin Oliphant noted, the standing orders of Canadian legislatures deny independent members some important rights that they grant to those belonging to political parties (and thus arguably undermine their constituents’ right to effective representation) is a matter of privilege and not subject to Charter review. But the issue we are concerned with does not arise out of standing orders or an exercise by the Speaker of the Legislative Assembly of that body’s self-governing powers. It concerns the constitutionality of a statute enacted pursuant to one of the province’s legislative powers (namely that in section 45 of the Constitution Act, 1982, to legislate in relation to the constitution of the province), to be part of the law of the land, and not merely the law and custom of Parliament. The exercise of this legislative power is obviously subject to the Charter; as section 52(1) of the  Constitution Act, 1982 provides, “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”.

Now, as the Court of Appeal for Ontario explained in Ontario (Speaker of the Legislative Assembly) v Ontario (Human Rights Commission), (2001) 54 OR (3d) 595 at [35], although the constitutionality of legislation in relation to the functioning of a legislature or one of its components is subject to the Charter, to the extent that this legislation calls for self-application by the legislature or its Speaker, the courts will not interfere with decisions made pursuant to that legislation. (This principle, known as the right of “exclusive cognizance”, is an aspect of privilege.) So, for instance, in the case of Manitoba’s ban on floor-crossing, it will be for the Speaker (I assume) to enforce the rule that “a member who … [has] cease[d] to belong to the caucus of that party during the term for which he or she was elected … must sit … as an independent and is to be treated as such”, and the courts will not call into question the Speaker’s decisions about what that entails. But the question of the constitutionality of that provision is a prior and separate one, and the right of exclusive cognizance does not apply to that question.

In short, although they are not immune from constitutional scrutiny because of Parliamentary privilege, bans on floor-crossing are not unconstitutional. They infringe neither the freedom of association nor the right to vote (or to effective representation) protected by the Charter. Once more, to say that such bans are constitutional is not to say that these bans are a good policy. I think they are ineffective (because they cannot prevent a would-be floor-crosser from voting with his new friends), and useless, because voters can always get rid of a representative they don’t like at the next election. One might even say that these bans are stupid—stupid but constitutional, as the late Justice Scalia used to say.

A Right to Rat?

A Manitoba MLA claims there is a Charter right to cross the floor. He is wrong.

John Markusoff writes in Maclean’s about a Charter challenge launched by Steven Fletcher, now an independent member of Manitoba’s Legislative Assembly, against section 52.3.1 of the province’s Legislative Assembly Act, which prevents members “elected with the endorsement of a political party” from joining the caucus of a different party during  their term. They must, rather, sit as independents—or resign and get themselves re-elected under their new partisan colours. Mr Fletcher will be “arguing that the ban infringes on his freedoms of expression and association, and … on the voting rights of his constituents”, the latter argument being based on an independent member’s lesser privileges (in relation to things like the ability to ask questions) compared to those of the members of a caucus. Mr. Fletcher has been expelled from the Conservative caucus, and Mr. Markusoff describes him as “an MLA marooned, and much disempowered politically for it”—although Mr. Fletcher apparently insists he has no plans to join another party.

Mr. Markusoff is supportive of Mr. Fletcher’s plight, pointing to the fact that Sir “Winston Churchill … cross[ed] the floor twice during his storied career”. (Churchill’s own take on this was that “anyone can rat, but it takes a certain amount of ingenuity to re-rat”.) Mr. Markusoff also quotes two political scientists who think Mr. Fletcher has a pretty good argument. Emmett Macfarlane is one of them, agreeing that Mr. Fletcher’s “constituents are poorly served”. Meanwhile Mr. Fletcher’s lawyer argues that the ban on floor-crossing—or ratting, or, as it’s called in New Zealand, waka-jumping (a waka is a Māori canoe)—serves to give party leaders more power at the expense of ordinary members. With that, I agree, and I too think that the ban on floor-crossing is a bad idea, as I explained here when commenting on a (never-enacted) proposal to impose a similar ban in Québec. Yet as I also noted in that post, in my view, a ban is not unconstitutional.

Indeed, it seems to me that the ban is not a meaningful restriction on anyone’s rights. For one thing, no one has a right to seat in the Legislative Assembly, or to be part of a caucus, without a mandate from the voters. And for another, the ban on floor-crossing does not prevent members from joining a party other than that for which they were elected, still less from voting as they please or voicing whatever opinions the Legislative Assembly’s standing orders allow them to voice. What it does is require them to do is stand for election to have voters confirm their party switch. If the voters still want to have the member as their representative under his or her new colours, then he or she will go on free as a bird, or at any rate as free as his or her new caucus permits. Otherwise, it’s the voters, not the ban on floor-crossing, that will have silenced the now-former member. And if the point is that the voters will likely value being represented by someone of the same party they previously voted for—well, I don’t think the Charter denies them that preference, least of all in the name of “effective representation”.

A couple of other points are worth considering here. First, if the argument is that it is somehow contrary to the Charter for party leaders to be able to exert pressure, even considerable pressure, on the members of their caucuses, this goes very far indeed. Does the leader’s ability to distribute, and to withdraw front-bench (and, in government, cabinet) roles raise constitutional questions? Or his or her ability to boot a member from caucus quite apart from any ban on floor-crossing, on the premise that there is no guarantee that the expelled member will in fact find a new political home, and may remain “marooned” instead? I doubt that a court would want to go that way, and this is as it should be. Voters are quite capable of delivering their verdict on any such shenanigans—if they care which, for better or for worse, they probably mostly do not.

Second, while floor-crossing might be described as a feature, or even “a time-honoured, Churchillian convention”, as Mr. Markusoff does in fact describe it, in a first-past-the-post universe, where members of legislatures are in principle elected in their personal capacity, it is very much a bug in a system of proportional representation. Because the legitimacy of the distribution of seats in an assembly elected using such a system rests on its relationship to the party vote (whether or not some of assembly’s members are in fact elected to represented particular constituencies), changes in the partisan affiliation of individual MPs undermine it to a greater extent than they do a system that rests on the personal relationships between MPs and their constituents. Of course, Manitoba does not have a proportional electoral system, and it should be possible for a court intent on striking down the ban on floor-crossing to do so in a manner that at least leaves the question open should it (or another Canadian jurisdiction) undertake electoral reform, but one should at least be wary of invoking over-broad principles in this matter.

To repeat, I do not think that rules, such as Manitoba’s, that put a break on the ability of members of legislatures to cross the floor are good idea. Whether the practice is Churchillian or Emersonian in any given case, the voters will be able to pass their judgment at the next election; I do not think that there is a pressing need to rush them to it. And to the extent that it can reduce the power of party leaders, there might be something to be said for floor-crossing—though there is also something to be said against a means for individual legislators of acquiring disproportionate power in a finely balanced assembly. Be that as it may, these are matters of political morality and institutional design. There is no right to rat, and the courts should not create one.

Still Not a Conservative

A couple of comments on Chief Justice Joyal’s Runnymede Radio podcast

Back in January, Chief Justice Glenn Joyal of the Court of Queen’s Bench of Manitoba gave a very interesting keynote address at the Canadian Constitution Foundation’s Law and Freedom conference. (A transcript is available at the website of Advocates for the Rule of Law.) Subsequently, I critiqued Chief Justice  Joyal’s argument to the effect that, in the wake of the enactment of the Canadian Charter of Rights and Freedoms, the Canadian constitutional culture changed, for the worse, because the judiciary acquired a disproportionate influence on the nation’s public life, at the expense of democratically elected institutions. I argued that although there is cause for concern about judicial self-aggrandizement, this concern should not be overstated, and need not translate into a celebration of the democratic process. In my view, Chief Justice Joyal articulated “a powerful and eloquent statement of what might be described as the foundation for a (small-c) conservative constitutional vision for Canada”, with the subscribers to which I might make common cause from time to time, but which I do not share.

Chief Justice Joyal elaborated on his address and very generously responded to my critique in a podcast interview with Joanna Baron, the director of the Runnymede Society (and my friend). It was an illuminating conversation, and is well worth listening to, as I have finally had a chance to do. Without re-arguing all of my differences with Chief Justice Joyal, I would like to make just a couple of points ― one about something in his position that I do not understand, and the other about what might be at the heart of much of our disagreement.

In both his Law and Freedom address and the podcast, Chief Justice Joyal repeatedly lamented the decline of “bold”, “purposive” government in Canada in the wake of the Charter’s coming into force. He is careful to note that “bold” government need not be big government. It is government acting for the community, implementing a certain political vision. But I’m afraid I have a hard time seeing what exactly this means, and in particular seeing what sorts of bold government initiatives the Charter, or even its attendant political culture in which the judiciary is both more powerful and treated with more deference than it used to be, might have thwarted. I understand that Chief Justice Joyal might be reluctant to be specific, because he might be called upon to adjudicate the constitutionality of government initiatives, bold or otherwise. But perhaps someone who agrees with him could help me out?

The one specific point that Chief Justice Joyal  does mention in the podcast is the inculcation of certain values, especially I take it in the education system. Now, the idea of inculcation of values by the government makes me quite uneasy, and it would make me uneasy even if I trusted the government to inculcate the right values and not collectivism and deference to authority. Blame it on my having been born in what was then still a totalitarian dictatorship ― or on my excessively American values, if you prefer. Whatever the cause, Chief Justice Joyal’s support for this sort of policy is one reason why, although he disclaims the “conservative” label, I do not resile from applying it to him. But regardless of whether his position on this is better than mine, I’m not sure how the Charter stands in the way of what Chief Justice Joyal has in mind. The closest encounter between it and what was arguably a governmental effort to inculcate values happened in the litigation that arose out of Québec’s “ethics and religious culture” curriculum. The Supreme Court upheld most of that curriculum, first in SL v Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 SCR 235, and then in Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613, only invalidating the requirement that a Catholic school teach Catholicism from a neutral (instead of a Catholic) standpoint. Surely, that particular requirement was not the sort of bold policy the decline of which Chief Justice Joyal laments.

As for the crux of my disagreement with Chief Justice Joyal, I think it concerns our different takes on the incentives that apply to political actors on the one hand, and the courts on the other. Chief Justice Joyal charges me with inconsistency, because, while I distrust elected officials and the political process, I have more confidence in the courts. Incentives, I think, are the reason why there is, in fact, no inconsistency. Political actors have an incentive to exploit the ignorance of the voters, and their irrationality (including the voters’ fear of the unknown and distaste for non-conformity). All too often, that is how they come to and remain in power. If there are political points to be scored by attacking an unpopular minority, politicians will want to score these points ― even the comparatively decent ones. Judges are not entirely immune to the incentive towards self-aggrandizement, of course, and I have often noted as much. But they have less to gain from exploiting others’ ignorance and irrationality, and are embedded in an institutional structure that at least tries to steer their own decision-making towards rationality and, in particular, towards an equal consideration of the claims of the unpopular. As a result, I think it is possible to distrust courts less than legislatures without being inconsistent about first principles.

In any case, I am grateful to Chief Justice Joyal for his contribution to the discussion about the role of the Charter and the courts in Canada’s constitutional order ― and of course for the kindness with which he treats my own position. He has not persuaded me to adopt his position, or indeed to stop describing it as conservative (without, in case that needs to be clarified, meaning to disparage it by this description!). But I think it is entirely a good thing that this approach is being articulated in such a thoughtful, and thought-provoking, way. Whatever our individual views, we are all enriched when the discussion includes voices such as Chief Justice Joyal’s.

The Good, the Bad, and the Ugly

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

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

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

* * *

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

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

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

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

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

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

* * *

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

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

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

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

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

* * *

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

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

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

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

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

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

(3) The statement shall be tabled

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

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

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

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