Chekhov’s Gun

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

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

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

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

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

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

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

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

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

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

Not Withstanding Scrutiny

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

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

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

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

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

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

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

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

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

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

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

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

No Money for You

Can Saskatchewan fund non-Catholic students in Catholic schools? Raising government ire, a court says no.

A couple of weeks ago, in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, Saskatchewan’s Court of Queen’s Bench held that provincial funding for non-Catholic students of Catholic “separate” schools in the  province was unconstitutional. Saskatchewan’s government is upset, and has proclaimed its intention to invoke the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms to nullify the effects of this decision. In this post, I will summarize the decision and briefly explain why I think it is correct. I will comment on the use of the Charter‘s override provision separately.

The constitution requires Saskatchewan to allow the formation of, and to provide equal funding for “separate” schools for Catholics and Protestants, whenever one of these two groups happens to be a minority in a given school district and if parents belonging to the minority group request it. The mechanics of this requirement are somewhat complex: section 17 of the Saskatchewan Act, 1905, which created the province from the North-West Territories, makes applicable to it a somewhat modified version of section 93 of the Constitution Act, 1867, which guarantee “right[s] or privilege[s] with respect to separate schools which any class of persons ha[d in 1905]” under the then-existing territorial law. Laws enacted in furtherance of this guarantee are constitutional and not subject to scrutiny under the Charter, because its enactment did not abrogate the guarantee. Any other provincial laws relative to education, including the “separate” schools, are subject to Charter scrutiny like all other legislation in Canada.

The case was a challenge by a public school board to the funding received by a Catholic one for non-Catholic students attending one of its schools. If this funding were not available, the students would have attended a school operated by the plaintiff, and the funding would have followed them there. The case raised two main questions. Is the funding of non-Catholic students attending Catholic “separate” schools part of the guaranteed rights or privileges? If not, is it contrary to the Charter? There were a couple of preliminary issues too: whether the plaintiffs had standing to sue, and whether the school at the centre of the proceedings, St Theodore, was a legitimate “separate” school despite the fact that most of its students were not Catholic. Justice Layh answered both of these questions in the affirmative, and I will say no more of them. The decision is 230 pages long, not too much of it superfluous. I will only focus on the key points here.

 

Justice Layh found that there was no constitutionally guaranteed right for a “separate” Catholic school board to receive public funding for educating non-Catholic students. Only “denominational aspects” of the “separate” schools were constitutionally protected from legislative interference. The aim of the guarantee was to preserve minority religious communities by allowing them to withdraw their children from the majority’s schools and so to avoid assimilation. Moreover, at the time of the guarantee’s entrenchment, Catholics viewed education jointly with non-Catholics with great suspicions, and while constitutional interpretation had to account for new social realities ― notably the fact that Catholics and protestants were no longer the only religious groups of any significance in Canada, making special protections for them anomalies ― it could not import theological developments, such as Catholicism’s greater openness to other religions ― that occurred since the Saskatchewan Act came into force.

As a result, the ability to educate non-Catholics could not be viewed as a “denominational aspect” of the functioning of Catholic schools; it was not essential to their functioning as Catholic institutions. Therefore it was not constitutionally protected. Nor did the requirement of non-discriminatory funding for “separate” schools extend to funding students from outside the religious community for which they were set up. The funding requirement served to protect the distinctive religious character of the schools, not the ability of outsiders to attend them. In short, the provision of funding of which the plaintiffs complained was not a constitutional requirement, but a legislative choice of the province.

This area of the law is quite complicated, and I cannot claim particular expertise on it. To me, however, Justice Layh’s reasons are largely persuasive. It will not come as a surprise to regular readers that I am very skeptical about his take on the role of social change in constitutional interpretation, as I might further explain in a future post, if time permits. But I do not think that this is material here. Justice Layh makes a compelling case about the originalist raison d’être of the constitutional protections for “separate” schools being to allow minority communities to stand on their own, and about there being no legal right to funding for non-Catholic students in 1905. A purely originalist analysis would not, I think, yield conclusions different from his.

Having concluded that the funding of non-Catholic students was not exempt from Charter scrutiny, Justice Layh turned to the plaintiff’s claims that it infringed the constitutional guarantees of freedom of religion and equality. Part of the respondents’ case on this point was that the plaintiff, not being a natural person, was not entitled to make such claims, since only individuals could hold religious beliefs or claim equality rights under section 15 of the Charter. Justice Layh dismissed this argument. In his view, although only an individual could claim that a generally neutral law had a disproportionate or discriminatory effect on him or her, anyone could argue that a legislative measure was unconstitutional on its face, as the plaintiff here was doing. I find this distinction dubious; once the plaintiff is granted standing to sue in the public interest, shouldn’t it be able to advance constitutional claims on behalf of others? Isn’t that the point of public interest standing? But nothing turns on this here.

Justice Layh found that funding non-Catholic students in Catholic schools ― and, importantly, not funding, say, non-Muslim students in Muslim schools or non-Jewish students in Jewish schools ― amounted a breach of the state’s duty of religious neutrality and to discrimination on the basis of religion. Neutrality means treating all religious groups equally, as well as not favouring religion over non-religion or vice versa. Providing money to Catholic schools so that they can educate non-Catholics, instructing them in Catholicism and thus “evangelizing” them, as well as creating goodwill in the community, without providing equivalent opportunities to other religious groups is not acting impartially, and is thus a breach of the Charter‘s religious freedom guarantee as explained, notably in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3 (which I explained and discussed here). It is also, ipso facto, discriminatory. I think this is correct, and quite obviously so. There is no meaningful account of religious neutrality on which singling out one group for a favourable treatment denied others is permissible.

There remained the question of a possible justification of these infringements of Charter rights under section 1, as limitations “demonstrably justified in a free and democratic society”. Justice Layh found that no such demonstration had been carried out. Indeed, the provincial government had not even really attempted one. The defendant school division, for its part, argued that funding Catholic schools for students outside of their faith served to provide educational opportunities to all students, and choice to the parents. Justice Layh rejected these objectives, on the basis that they had nothing to do with the limitation of funding of non-denominational students (if I can be forgive this use of the term) to Catholic schools. Public schools could provide educational opportunities, while the objective of enhancing choice could not be advanced by an inherently discriminatory policy. While these objections seem to me to go to the “rational connection” stage of the section 1 test rather than to invalidate the objectives themselves, nothing turns on this. The objections themselves are well taken, and Justice Layh’s conclusion, correct.

In the result, Justice Layh declares that Saskatchewan’s legislative and regulatory provisions allowing funding of non-Catholic students in Catholic “separate” schools is unconstitutional. He adds that “[a]ppreciating that the implementation of this declaration will cause significant repercussions in the province, this declaration is stayed until June 30, 2018.” [476] The stay, I think, is self-evidently appropriate here, and this case should be kept in mind in any future discussions of suspended declarations of unconstitutionality.

As it works its way up the judicial hierarchy, Good Spirit School Division could also produce important rulings on the constitutional issues it addresses ― and I hope that appellate courts will pay attention to Justice Layh’s reasons, which strike me ― despite some reservations ― as generally very careful, well-argued, and perhaps above all lucid. But all of that is likely to be overshadowed by debates about the Saskatchewan government’s invocation of the “notwithstanding clause” to annul Justice Layh’s decision. I hope to say more on that in short order.

Don’t Fix It

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

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

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

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

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

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

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

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

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

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

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

Why I am Not a Conservative Either

Thoughts on Chief Justice Joyal’s very interesting speech on the Charter and Canada’s political culture

Glenn D. Joyal, Chief Justice of the Court of Queen’s Bench of Manitoba, gave the keynote address at last January Canadian Constitution Foundation’s recent Law and Freedom Conference. His talk, “The Charter and Canada’s New Political Culture: Are We All Ambassadors Now?”, was interesting and thought-provoking. Although the prepared text has been available on the website of Advocates for the Rule of Law for some time, the CCF only posted the recording of his remarks yesterday, so now is the time for me to comment. Chief Justice Joyal sought to attract his audience’s attention to fact that Canadians have come to believe that courts, rather than legislators, are the forum in which important social issues must be settled. This is both a consequence of our lack of respect for legislatures, and a reason for why elected institutions find themselves in a weak position vis-à-vis the courts. Chief Justice Joyal would like to change our political culture. I am not persuaded that change in the direction he envisions would be for the better.

Before I go any further, however, I would like to thank Chief Justice Joyal for referring to my exchange with my friend Asher Honickman on the scope and judicial approach to section 7 of the Charter in the Q&A. (My posts are here, here, and here.) After Justice Stratas on the same occasion last year, Chief Justice Joyal is the second sitting judge to mention my blogging, and this is, needless to say, most gratifying for me personally, but also as a believer in the value of this still-underappreciated medium.

* * *

Political culture, according to Chief Justice Joyal’s definition is the set of

attitudes and beliefs that citizens and its specific institutional actors hold about the political system. Political culture can also be seen as the conglomeration of ideas and attitudes which set the parameters in which debate over policy justifications take place.

(The quotes, here and below, are from the text published by ARL)

Historically, Canada’s political culture was a mix of “liberal” and “non-liberal” (partly “Tory” and partly “social-demoratic”) ideas, which were bound together by a belief in Parliament and the legislatures as the arbiters of social conflict and makers of common rules for the common weal. Since the Canadian Charter of Rights and Freedoms came into force, however, the belief in legislative authority has been eroded. Instead, “a broad cross-section of the Canadian citizenry and its institutional actors” have developed

an almost unconditional willingness to accept or endorse the idea of judicial adjudications in respect of what are often complex and even insoluble social and political problems. What were once political issues are now frequently transformed into legal issues.

This, in turn, has created a “new and imbalanced relationship between the judiciary and the legislative branch”.

According to Chief Justice Joyal, these developments were not contemplated by those who made the Charter. It was, after all, a compromise between Pierre Trudeau’s federal government, which insisted on an entrenched set of protected rights, and provinces that were wary of restrictions on Parliamentary sovereignty and the “innovations” introduced by an “extremely potent judiciary” in the United States. Measures were taken to prevent a repetition of the American experience in Canada. The Charter contains section 1, which allows rights to be limited, and section 33, which

was meant to signal to the courts, a caution, a caution in respect of any misconception that the judiciary might have were they, the judiciary, inclined to give the absolutely most expansive scope to the enumerated Charter rights.

For its part, section 7 was drafted

to avoid any language that would mandate substantive review and that would have the effect of permitting s. 7 to be interpreted to mean just about anything that could attract five votes on the Supreme Court of Canada.

Yet these “common expectations” about how the Charter would be applied and what role it would play have not been fulfilled. The Supreme Court read section 7 to require substantive review of legislative choices. It engaged in interpretation and re-interpretation of the Charter that expanded the set of rights that its framers had chosen to protect. It loosened the rules of standing and justiciability, causing more claims to be brought. It weakened precedent, allowing issues to be re-litigated just a decade or two after they were (we thought) settled. It applied section 1  by engaging in the “traditionally legislative function” of “ad hoc interest balancing and cost benefit analysis”. The notwithstanding clause, meanwhile, turned into a “nuclear option” ― and a dead letter.

Chief Justice Joyal worries that this all has caused legislatures to be marginalized. Indeed, there has been a “flight from politics toward the zero-sum game of Charter litigation”, which

often leaves the broader citizenry on the sidelines in a potentially disempowered state[,] not always able to understand, discuss or debate, the highly technical and legalistic formulations and tests which now often form the basis of a final determination concerning a significant societal issue.

This trend ought to be reversed, in part through “continuing efforts at renewal of parliamentary and political institutions”, so as to “restor[e] a peculiarly Canadian institutional balance in the judicial/legislative relationship”, featuring “a resuscitated and bold legislative branch [able] to once again assertively shape attitudes and policies”, and even to “articulat[e] and promot[e] its own interpretation” of the Charter. The traditional Canadian political culture, with its mix of liberal and non-liberal sensitivities and belief in the public good as expressed in legislation ought to prevail over the

more American liberal / rationalist approach to rights protection, [which] gives expression to what used to be a very un-Canadian distrust of government [and] arguably removes more and more areas from legitimate spheres of government action and influence.

* * *

I am, I’m afraid, part the problem that Chief Justice Joyal identifies. I distrust government ― partly because I believe that power corrupts, partly because I democratic government is subject to ineradicable problems of political ignorance (and courts might not be much of a solution), partly because of what public choice theory has taught us. I am a (classical) liberal, an unapologetic one. Whether this is un-Canadian, or indeed peculiarly American, I hesitate to say. I do, however, reiterate my belief that one should not fall for the old trope of reading differences of national psyche into the alleged contrast between “life, liberty, and pursuit of happiness” and “peace, order, and good government”. My friend Alastair C.F. Gillespie and Brian Lee Crowley pointed out, in introducing what is looking to be a fascinating series of papers on Confederation by Mr. Gillespie, that “[c]omparisons of American revolutionary ideals and Canada’s supposedly ‘Tory’ Constitution have sometimes been too crudely made” and argue that “Canadians should … take pride that our founders’ speeches breathe an atmosphere of liberty, even if that liberty was not yet wholly realized.” (4-5) But be that as it may, I am rather skeptical that a return to politics would do us much good.

Now, unlike the dominant tide in Canadian political culture against which Chief Justice Joyal wants to push back, I am not uncritical of the courts ― of their power and of the manner in which they exercise it. But when I argue that courts overstep the bounds of their constitutional role, it is not out of any special solicitude for legislatures. It is because I believe that all power must be limited, and that those who wield it must not fancy themselves the saviours of society, when they are only its servants. This applies to the judicial power ― and also to the legislative and the executive. So I share Chief Justice Joyal’s discomfort at some of the post-Charter jurisprudential developments ― at the excessive ease with which courts have sometimes granted public interest standing, the creation of constitutional “rights” out of whole cloth, the often unprincipled application of section 1 balancing.

But, to repeat, these matters worry me because they, and other things, like extra-judicial statements that call into question judges’ commitment to the Rule of Law, raise the spectre of a judiciary that denies any constraint on its power ― and not because they portend an erosion of legislative power or mark a departure from the “common understandings” of 1982. Constitutional texts have a way of not working out the way their framers expect them to (my go-to example on this is the upending of the mechanism for electing the president set up by the Constitution of the United States), especially of course when the framers rely on “understandings” instead of actually writing down what they mean. So I am not bothered by the development of the norm, perhaps even the convention, against the use of section 33 of the Charter (which, as I have argued even in the face of some decisions that I would desperately like to see undone, has served us well ). Nor am I bothered by the Supreme Court’s reading of section 7 as encompassing substantive as well as procedural principles of justice, which ― as Benjamin Oliphant and I show in our recent Queen’s Law Journal article ― was at least a defensible interpretation of that provision’s original public meaning, even though it clearly contradicted its framers’ intent. It is only the meaning, in my view, that is binds the courts. (Chief Justice Joyal suggested, in the Q&A, that we might distinguish between “garden-variety” cases in which meaning might be controlling, and other, especially important ones, in which we must refer to intent. I do not see how such a distinction could operate.)

Ultimately, I do not share Chief Justice Joyal’s concern that

judicial incursion into subject areas and issues of profound political, moral and social complexity[] has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.

A very similar concern motivates Jeremy Waldron’s critique of (strong-form) judicial review of legislation. The critique is a powerful one, but here is, I think, the “principled” objection to it. (Ilya Somin’s objection based on political ignorance is also an important one, but it is more contingent, in theory anyway.) The concern with what Chief Justice Joyal describes as the “de facto constitutionalization of political and social issues” assumes that some issues are inherently “political” and/or “social”, and must therefore be resolved through society’s political institutions. Prof. Waldron’s position is, in effect, that every conceivable issue is of this sort, though Chief Justice Joyal’s views do not extend so far. (Chief Justice Joyal said, in his talk, that we must “respect” the Charter.) But I am not persuaded by the claim, whether in its more radical Waldronian form, or in Chief Justice Joyal’s more moderate one.

The frontiers between law’s empire and that of politics are not immutable. There is no reason to believe that the position that every social issue is by default subject to politics is entitled to be treated as a baseline against which a polity’s constitutional arrangements ought to be measured, and any departure from it justified and limited. It is the position of some political cultures ― say that of post-New Deal political culture in the United States, which reached its peak in the 1940s before declining in the subsequent decades, as the U.S. Supreme Court started vigorously enforcing guarantees of (non-economic) individual rights, or of New Zealand even to this day. But these political cultures have no automatic claim to superiority or to permanence. They are liable to be supplanted, just as they supplanted their predecessors.

The defenders of these political cultures,think that pervasive economic regulation is the legislatures’ prerogative, should they choose to exercise it. (Prof. Waldron is explicit about this, in some of his work on the Rule of Law.) To be clear, I am not suggesting that they would support any given form of regulation as a matter of policy ― only that they think that legislatures are entitled to regulate, wisely or not. But previously, many economic issues would not have been considered to belong to the domain of politics at all; the framers of the Constitution Act, 1867 would likely have been shocked to learn about the extent of the economic regulation in which the institutions they created now engage. They would have thought an employee’s wages a matter to be settled between him and his employer, not a concern for society at large and thus not a fit subject for legislation. Of course, they did not provide mechanisms for courts to enforce these limits on legislative power, in part, one may suspect, because they did not expect them to be necessary. But that does not mean that they thought the legislatures were entitled to interfere in people’s lives in the ways that came to be increasingly accepted half a century later. The political culture changed ― not for the better in this instance, in my opinion. But why should we accept this change, and foreclose or resist subsequent change that reduces instead of expanding the domain of the political?

* * *

Chief Justice Joyal’s address is a powerful and eloquent statement of what might be described as the foundation for a (small-c) conservative constitutional vision for Canada. (This is not to say that he would accept this label, or perhaps even that it is an especially accurate one. But insofar as any label can be useful, this one is as good as any I can think of.) Having, along with Andrew Coyne and Bob Tarantino, complained about the (big-c) Conservative government’s failure to articulate such a vision in its near-decade in power, I welcome this statement. Moreover, I happen to share some of Chief Justice Joyal’s concerns about the acquiescence of the mainstream Canadian legal and political culture in the increasingly unbridled exercise of the judicial power by the Supreme Court.

However, although I may learn from conservatives, and sometimes make common cause with them, ― and am particularly happy to do so when they are as intelligent and articulate as Chief Justice Joyal ― I am not a conservative myself. I do not share the conservative vision of the constitution. Like Hayek, “I am not I personally cannot be content with simply helping to apply the brake” (2) on whatever (constitutional) innovation might be put forward in the name of “progress”. As a liberal, I want “to go elsewhere” (2) ― not back to the 1970s, or indeed even to the 1870s ― but to a never-yet seen political culture in which, in Lord Acton’s words, “[l]iberty is not a means to a higher political end. It is itself the highest political end.” If, as Chief Justice Joyal suggested in the conclusion of his speech, this ideal is at odds with the Canadian identity, so much the worse, I say, for that identity.

Still Playing Favourites

Despite its broader focus, the Court Challenges Program remains objectionable

The federal government has officially announced that it is bringing back the Court Challenges  Program, which provides money to individuals or groups who pursue litigation in which they assert certain constitutional or quasi-constitutional rights. In comparison with past iterations, the program will subsidize claims based on a broader range of rights ― not only equality and language rights under the Canadian Charter of Rights and Freedoms and the Official Languages Act, but also those based on sections 2, 3, and 7 of the Charter (protecting, respectively, “fundamental freedoms” of religion, expression, and association; the right to vote; and the rights to life, liberty, and security of the person). Yet even with this broader focus, the program reflects a flawed and indeed disturbing approach to the constitution by the government.

As I wrote in a post for the CBA National Magazine’s blog last year, we should question the government’s decision to prioritize the enforcement of some parts of the constitution over others. I noted that the government does have a special statutory mandate, under the Official Languages Act, to promote the recognition of both official languages and, especially, the vitality of minority linguistic communities throughout the country ― but of course a court challenges programme is only one of a myriad ways in which this might be done. And there is certainly no mandate to promote some Charter rights in particular. Why are, for instance, the due process rights protected by sections 8-14 of the Charter left out? Nor is there any reason, to promote the respect of Charter rights but not that of other constitutional provisions, such as those pertaining to the division of powers.

The choice of priorities for the Court Challenges Program is symbolic, and as I wrote last year

the symbolism is wrong. In choosing to fund court litigation based on language and equality rights, Parliament isn’t just sending the message it values these rights. It also says that it values these rights more than others. In other words, Parliament is playing favourites with the different provisions or components of the constitution. Yet they are all, equally, “the supreme law of Canada,” which Parliament is bound to respect in its entirety. Thus, in my view, signalling that it regards respecting parts of the Constitution more than the rest, in itself contradicts the principle of constitutionalism.

The government’s public statements today only confirm my impression. The Prime Minister has tweeted that the Court Challenges Program “will help protect the language & equality rights of all Canadians” ― singling out the rights targeted by the old versions of the programme, and omitting even those added by the one announced today. Meanwhile, the Justice Minister brags about “reinstating the Court Challenges Program as we celebrate #Charter35 to show our commitment to human rights and the rule of law” ― without any mention of, you know, that other anniversary we are also celebrating this year, which someone committed to the Rule of Law might also want to notice.

I have other objections to the Court Challenges Program too ― notably, to the fact that it funds challenges not only against federal laws, but also provincial ones, which strikes me as disloyal behaviour for a partner in the federation. If provinces want to pay people to challenge their own laws, they do can do it on their own ― but they should have the choice. And of course, it is doubtful that such a program is really the most effective way for the federal government to uphold the Rule of Law. Giving teeth to its internal reviews of proposed legislation for Charter and Canadian Bill of Rights compliance might be one good place to start instead; there are others as well.

But as the program is first and foremost symbolic, and in light of the Prime Minister’s and the Justice Minister’s statements, my objection to the program’s symbolism, to its playing favourites with the constitution which the government ought to respect in its entirety, is perhaps the most important one. Although plenty of people in legal academia (including Grégoire Weber, who is currently an adviser to the Justice Minister) and the bar have praised the return of the Court Challenges Program, I have not seen a response to my objections. It’s not that I am entitled to have my objections responded to, of course ― but I would be very happy to publish a guest-post if anyone cares to do it. Any takers?

A Pile of Problems

A critique of Steven Penney’s take on the Supreme Court’s distinction between criminal and administrative penalties

Steven Penney has recently posted to SSRN an interesting article, published last year in the Supreme Court Law Review, criticizing the Supreme Court of Canada’s jurisprudence distinguishing the imposition of “administrative” and “criminal” penalties. People (and corporations) who risk the latter kind of penalties ― “true penal consequences” as the Court calls them ― benefit from a variety of procedural protections which section 11 of the Canadian Charter of Rights and Freedoms grants to “[a]ny person charged with an offence”. Those facing only “administrative” penalties ― which can include suspensions of licenses (to drive or to practice a profession) and fines, even fines ranging in the hundreds of thousands if not millions of dollars ― are not protected by the Charter.

Prof. Penney traces the intellectual roots of this distinction to the Canadian rejection of the “Lochner era” in American constitutional jurisprudence, which is generally thought to have involved judicial subversion of valuable economic regulation intended to protect society’s less powerful members.  Prof. Penney shares the concern that motivated this rejection, but argues that it has been taken too far. The “shadow of Lochner“, as his article’s title has it, has dimmed the guiding lights of the Charter, even as

[l]egislatures have increasingly relied on administrative and civil enforcement regimes to address forms of wrongdoing previously left to the criminal law. In many instances, the sanctions accompanying these regimes are harsh, the targets are ordinary people, and the rules protecting adjudicative fairness are weak. (309)

Prof. Penney argues that section 11 of the Charter should be interpreted more broadly, to provide procedural protections to persons involved in administrative as well as criminal proceedings. The government’s ability to justify restrictions to or departures from these protections under section 1 should be enough to prevent them from standing in the way of truly important economic regulation ― but the necessity of these restrictions or departures would have to be justified.

This is an intriguing argument. I have written here about Thibault c. Da Costa, 2014 QCCA 2347, a case in which the distinction between administrative and criminal penalties was used to uphold the imposition, on a financial advisor who had swindled some of his clients, of fines that were higher than those authorized by the applicable legislation as it stood at the time of the acts. In the criminal context, paragraph 11(i) of the Charter, which entitles persons charged with an offence “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment”, prohibits this. But the Québec Court of Appeal took the view that the proceedings here were not really criminal, because the fines imposed were not “true penal consequences”, and so their retrospective increase was upheld. I wrote that the decision, although legally correct, was disturbing. Prof. Penney discusses two decisions of the Supreme Court that also apply this distinction to disturbing effect (as he, persuasively in my view, argues):  Guindon v Canada, 2015 SCC 41, [2015] 3 SCR 3 and Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250.

At the same time, however, Prof. Penney’s article suffers from a some flaws that are, sadly, characteristic of Canadian constitutional thought. One issue I have with Prof. Penney’s argument is that it mostly does not question the conventional wisdom on the “Lochner era” in which it finds the roots of the problem it tries to push back against. According to this conventional wisdom, the U.S. Supreme Court’s decision in Lochner v New York, 198 US 45 (1905), held up, in prof. Penney’s words, “a rigid and formalist interpretation of the Bill of Rights to limit state efforts to enact and enforce progressive economic legislation”. (308) This is questionable; indeed, recent scholarship argues that it is simply wrong. David Bernstein, whose book prof. Penney cites but does not engage with, has shown that, far from being intended to protect the vulnerable and the disadvantaged, the legislation invalidated in Lochner served to protect (relatively) big ― and unionized ― established businesses against smaller, family-owned competitors. Many other laws invalidated in the “Lochner era” ― which were never as numerous as subsequent criticism made them out to be ― were similarly objectionable. Meanwhile, this reviled jurisprudential era has served as the foundation for the subsequent expansion in the enforcement of constitutional rights in the non-economic realm.

This history matters. Rectifying the record is useful for its own sake of course. Prof. Penney says that “[t]he story of Lochner is well known” (310) ― and, in the next sentence, misstates the year in which it was decided; an accident, no doubt, but an ironic one. Prof. Penney quotes a passage from Justice Cory’s reasons in R v Wholesale Travel Group Inc, [1991] 3 SCR 154 describing the “so-called ‘Lochner era'” as the period of time when “courts struck down important components of the program of regulatory legislation known as ‘the New Deal'”. But of course the “Lochner era” began well before Franklin D Roosevelt’s New Deal, and most of the laws struck down during this period had nothing to do with it. In short, “the story of Lochner” is rather less well known than one might be tempted to suppose; what people think they know about it may be ideological myth more than reality. More importantly, however, recovering Lochner‘s philosophy ― an opposition not to any and all economic regulation, but to the sort of regulation that privileges some groups in society above others ― might also make us rightly more suspicious than we tend to be of the  regulatory schemes that the courts end up protecting by invoking the administrative-criminal distinction. In my post on Thibault I suggested that courts should be wary of “the specious claims professional organizations, and governments which choose to delegate their regulatory powers to them, make about their role” when they ask themselves whether the penalties at issue are administrative or penal in nature. Remembering Lochner‘s lesson ― that economic regulation is not always as benign and protective as it seems ― might help here.

My other, and more important, objection to prof. Penney’s argument concerns his approach to constitutional interpretation. He “claim[s] … that the Supreme Court’s construal of ‘charged with an offence'” in section 11 of the Charter as excluding administrative proceedings  “is too restrictive”. (323) It is too restrictive, prof. Penney argues, because of the bad consequences it produces ― in the sense that individual rights to “adjudicative fairness in contesting substantial state-imposed penalties” (324) are under-protected. As I suggest above, I think that prof. Penney is right to decry the under-protection of these rights. But it is not enough to say that, because interpreting a constitutional provision in a certain way produces unpleasant consequences, a different interpretation can and ought to be adopted.

The jurisprudence that prof. Penney criticizes arguably illustrates the perils of this approach. In prof. Penney’s telling, the Supreme Court is concerned about the costs of enforcing the Charter‘s procedural protections for the state’s ability to impose economic regulations, more than it is about the consequences of not enforcing these protections when “true penal consequences” such as imprisonment are not at stake. A consequentialist approach to constitutional interpretation can go either way; there is no guarantee that it will always be right-protecting. Consequentialism, in turn, is one possible way of implementing the “living tree” interpretive methodology that the Supreme Court and Canadian academia loudly insist is the only appropriate one. It’s not the only way ― one might be a living-treeist without being a consequentialist. But saying “living tree” is not enough to decide cases. Once one accepts that constitutional meaning can change, one has to figure out what it should change to, and this is where consequentialism comes in. If one wants to foreclose, or at least to limit, its influence in constitutional interpretation, one should, I suspect, abandon living-treeism, at least in the radically unspecified form in which it is practised in Canada.

Now, it is not clear that doing so will lead to results that prof. Penney or I would find pleasant in this particular case. The main alternatives to living-tree constitutional interpretation are the different versions of originalism. (For a primer, see Benjamin Oliphant’s and my paper recently published in the Queen’s Law Journal.) An originalist approach to section 11 of the Charter would consist in asking whether (depending on the version of originalism one subscribes to)  “charged with an offence” would have been understood in 1982 as applying to administrative proceedings or was intended to apply to them by the Charter‘s authors. And I don’t know the answer to these questions. What I do know is that, insofar as these questions do have an ascertainable answer (they might not; perhaps the phrase “charged with an offence” is irreducibly vague, forcing an originalist interpreter into the “construction zone” that is, on some views, not very different from living tree interpretation), this answer does not turn on competing, and potentially variable, cost-benefit analyses, which will inevitably be influenced by personal preferences, of judges or scholars. Originalism is not necessarily more rights-protective than living-treeism ― though as prof. Penney shows, living-treeism isn’t always very rights-protective either. But originalism does hold out a promise of a constitutional law that is actually law-like, in that it is independent of the individuals who apply it. In the long run, this is not only valuable in itself, but arguably also more likely to protect individual rights in situations where doing so is likely to be seen as undermining important social objectives ― which after all is the whole point of constitutional rights protection.

Prof. Penney’s article is valuable because it attracts our attention to a number of serious problems affecting our constitutional law. On the one hand, there is problem of insufficient constraints on the imposition of “administrative” penalties, which the article decries. On the other, there are the twin problems of reliance on a blinkered version of history and on open-ended “living tree” constitutional interpretation that opens the door to consequentialist reasoning unconstrained by anything other than personal preferences, which the article exemplifies. Proponents of prof. Penney’s interpretive approach might say that my argument is contradictory, since it suggests that the constitution might not give us the resources to address the problem prof. Penney identifies. But if that is so, the solution is not to surreptitiously re-write the constitution under the guise of an interpretation that will only be adhered to by those who share the interpreter’s beliefs, but to amend it in a way that will be binding on all future interpreters, whatever their personal views.