Does the Constitution Mean Anything?

In defence of textualism in constitutional interpretation

The Stereo Decisis podcast recently devoted an episode to a discussion of a case that I have covered here, 9147-0732 Québec inc v Directeur des poursuites criminelles et pénales, 2019 QCCA 373, in which the Québec Court of Appeal held that corporations could avail themselves of the protection of section 12 of the Canadian Charter of Rights and Freedoms against “cruel and unusual treatment and punishment”. While the hosts Robert Danay, Oliver Pulleyblank, and Hillary Young disagreed on the merits of the issue before the court, they were, I take it, agreed on one thing: the approach to interpreting section 12 on which my post relied is not compelling. And indeed my post was pointedly textualist, and intended as a bit of a provocation to the adherents to Canadian consensus approach to the constitution, which is anything but. I am glad that it worked, and that we are, as a result, having a bit of a debate on constitutional interpretation; and all the more so since, in the course of this discussion, my critics nicely expose the weakness of their position.

Briefly, I had argued that section 12 does not apply to corporations because the word “cruel” refers to the wilful infliction of or indifference to pain or suffering, and pain or suffering is something that corporations are not capable of. I added a discussion of the evolution of the provisions intended to limit punishments from the Magna Carta, to the Bill of Rights, 1688 and the Eighth Amendment to the US Constitution, to section 12, during the course of which the prohibition on “excessive fines” (to use the language of the Bill of Rights) fell by the wayside and was left out of the Charter. Considerations about whether it would have been a good idea for the Charter’s framers to have made a different choice and included a protection against excessive fines, which in effect is what the Québec Court of Appeal decided, are in my opinion irrelevant.

The hosts of Stereo Decisis took issue with that. We just can’t interpret the Charter simply by looking at what it says. Mr. Pulleyblank insisted that “‘[c]ruel and unusual’ is a bad phrase. It doesn’t really mean cruel and it doesn’t really mean unusual.” And beyond this particular provision, Professor Young said that the Charter is written in “rather loose language”, so that answers to questions about its meaning “can’t be found in the words”. Rather, they can only be obtained by asking what the Charter ought to mean. “You have to look beyond the words”, to “normative” considerations, such “how you feel about the Charter versus legislative authority”. The Québec Court of Appeal, for instance, had to decide whether “this particular right should apply to corporations”. (Emphasis mine) And that decision can yield, as Mr. Pulleyblank put it, “a norm that is different than either of those words [cruel and unusual] or both of those words together”.

Normative considerations are what caused the hosts to disagree about the outcome of the case. Mr. Danay said that “[w]e ought not to try to limit Charter rights. … If the Charter seems like it could protect something, probably a better reading … would be to protect that thing.” Professor Young, by contrast, saw a greater role for deference “to legislation enacted by elected legislatures”, and added that “[i]f we were talking about human beings’ rights, I would be less inclined to interpret so narrowly but I’m not super sympathetic about arguments for corporations’ rights against cruel and unusual treatment”. It was, as Mr. Pulleyblank summed it up, “just a disagreement” about “the impact on the democratic process”.

In my view, the hosts’ criticism of my textualist interpretation are weak, and their own approach grounded in vague normative considerations, unattractive. Now, it’s important to understand what textualism is not, and what it is. No textualist, for example, would say that answers to all constitutional questions can be found in the words alone. Sometimes, it is indeed necessary to go beyond the words of a provision. Some words that the Charter‘s framers used are vague. Context can clarify what at first glance appears to vagueness; in other cases, it might tells us that the most straightforward reading of a word whose import at first seems clear is not the most accurate one. Thus, contrary to what Mr. Pulleyblank rather derisively implied, my “going beyond the text” to look at section 12’s historical antecedents does not make me a bad textualist. Textualism is, in short, the idea that constitutional text, read in its proper context, binds ― insofar as it has an ascertainable meaning; it is not the view that text alone will always answer all constitutional questions. (In any case though, my ultimate commitment is to public meaning originalism, which starts, but does not always end, with textualism.)

So textualism can acknowledge the vagueness of a constitutional provision, but it will insist on not merely stipulating that its language is “bad” or “loose”, or that, if it is somewhat vague, it is incapable of providing any real guidance to the interpreter. The word “cruel”, in section 12, is a nice illustration. Of course, it is vague to a considerable extent. No amount of looking at dictionaries will tell us whether, say, a parole ineligibility period longer than an offender’s life expectancy is cruel (the main question in R c Bissonnette, 2019 QCCS 354) and, as a public meaning originalist, I do not think that knowing how the Charter‘s framers would have answered that particular question tells us much about the meaning of section 12 either. But it doesn’t follow that the word cruel is poorly chosen or that it has no real import at all. In the case before the Québec Court of Appeal, looking at the word’s ordinary meaning was helpful, indeed sufficient to dispose of the dispute (which an examination of the context confirmed).

The Stereo Decisis hosts never actually disputed this ― they did not refer to definitions of the word “cruel” that contradicted the claims that Justice Chamberland (who dissented at the Court of Appeal) and I made about it. (At least that’s how I understood them; as I was writing this post, Benjamin Oliphant suggested that “the hosts raise a worthwhile challenge to [my] interpretation of section 12. What if the words ‘cruel and unusual’ are properly understood to mean “grossly disproportionate’ … ?” I don’t think the hosts said that section 12 actually means this ― only that it has been read in this way by the Supreme Court. And I don’t think that “cruel” actually means “grossly disproportionate”. Again, dictionary definitions tend to emphasize wilful infliction of pain. Moreover, section 12 applies not only to “punishment” but to other “treatment” of the individual by the state. While it makes sense to speak of cruel treatment, I don’t think that “grossly disproportional” works here; disproportional to what?)

As I understood the Stereo Decisis hosts, they took what I can only describe as a dogmatic position that a word like “cruel” must be so vague as to provide no guidance. I don’t think that going into an interpretive exercise with a pre-determined view of this sort is right. Vagueness is not an all-or-nothing thing; a word, or a provision, can be vague as to some questions but not others. The interpreter needs to make a reasonable effort to glean what guidance can be had from the text and context before concluding that they “run out” and that the question facing him or her must be answered by looking at other considerations.

And then, the interpreter needs to face the question of what considerations should be looked at when, and to the extent that, a constitutional provision does run out. (In originalist terms, this is the question of what theory of construction one must adopt for those cases that interpretation does not settle.) The Stereo Decisis hosts suggest that we must go straight to very general normative views about the Charter and legislative power. As their discussion shows, however, this approach is not especially fruitful, in that it promptly leads to stark normative disagreement between those who would maximize the scope of the Charter‘s limits on government power and those who would reduce it in the name of preserving legislative authority. The two sides of this dispute have little to say to one another; both argue that the case should simply be decided by following their normative priors; they can only count heads to see who wins on any particular panel. Adjudication along these lines is not readily distinguishable from a legislative power struggle.

I do not mean to deny that cases where a court can do no better may arise from time to time. Still, I think that we should be uneasy about this prospect. Telling judges that it’s normal, rather than exceptional and worrying, for them to decide constitutional cases by reference to their own normative commitments produces nefarious consequences, as judges come to think that their personal understanding of right and wrong is more important than the law. From constitutional cases, this belief bleeds into other areas of the law ― into cases of ordinary statutory interpretation and even common law ones. This destroys the Rule of Law and removes the most important constraint on judicial power, which is the requirement to (normally) follow the law, be it constitution, statute, and precedent, that someone else has first set out.

Moreover, if constitutional disputes can only be decided by reference to what are political rather than legal considerations, then it is not obvious, as a normative matter, why they should be decided by the courts rather than by political institutions. (This is, of course, especially true of cases that involve individual rights; federalism disputes arguably require a neutral arbiter, but even there, it is not quite clear why the arbiter should be judicial in character.) And, as a descriptive matter, those who hold to the view that constitutional texts are more or less meaningless don’t even have access to the positive law argument I have made here that, as a textual matter, our constitution actually requires judicial supremacy. They must attempt to answer the question of whether it does so with normative arguments alone, and are unlikely to convince anyone not predisposed to agree with them.

It is much better, as well as more consistent with our Rule of Law tradition and with the positive law of our constitution, to insist that judges ascertain the meaning of the law given them, and if the meaning does not resolve the dispute they have to settle, that they endeavour to implement this law, not on the basis of their predilections, but of the law’s purposes. A judge who happens to share my distaste for most economic regulation can and should nevertheless conclude that, while an additional obstacle to such regulation’s excesses in the shape of an extension of the scope of section 12 to corporations would be normatively desirable, the constitution that we actually have does not raise this obstacle in the grasping legislatures’ way. But for him or her to be able so to conclude, that judge must be committed to elucidating and applying the law, instead of believing that judicial office gives one carte blanche to implement one’s own preferences.

Constitutional interpretation isn’t discussed enough in Canada. A general lack of interest, caused by overconfidence in a living constitutionalist orthodoxy, has meant that when Canadian lawyers confront questions of constitutional interpretation they are liable to reason in ways that are not compelling. Sadly, the Stereo Decisis discussion of the question whether section 12 of the Charter extends to corporation was illustrative. It relied on a mistaken assumption that constitutional language is infinitely malleable, with the result that, as Mr. Pulleyblank put it, “[i]f you want to go one way you can probably get there. If you want to go the other way you can probably get there.” Descriptively, this mischaracterizes our constitutional documents, which are rather less vague than is sometimes said. Normatively, a state of affairs in which constitutional law dissolves in competing assertions about the appropriate relationship between courts and legislatures, has little to recommend itself.

These two defects feed into each other. The less faith one has in the capacity of constitutional texts to guide their interpreters, the more power one is inclined to grant judges (even if only to seek to claw it back through free-floating doctrines of deference). The less one accepts limits on judicial power, the more one is tempted to see vagueness in every text, without seriously examining it. Still, I hope that, by discussing constitutional interpretation and calling into question beliefs about it whose truth has too long simply been assumed we will make much needed progress.

Climb Out!

The Québec Court of Appeal errs in holding that corporations are protected against cruel and unusual punishment

In a case that has attracted some media attention, 9147-0732 Québec inc v Directeur des poursuites criminelles et pénales, 2019 QCCA 373 the Québec Court of Appeal recently ruled that a corporation is entitled to the protection of section 12 of the Canadian Charter of Rights and Freedoms, which provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”. In my view, however, the majority is mistaken. Its analysis illustrates the perils of what I have been referring to as “constitutionalism from the cave” ― the belief that our constitution is only an imperfect reflection of the true constitutional justice to which the courts ought to give effect.


Justice Bélanger’s opinion for the majority (herself and Justice Rancourt) starts with a discussion of the place of organizations, a term that includes but is not limited to corporations, in contemporary criminal law. In Justice Bélanger’s view, since the constitution is an evolving “living tree”, its interpretation ought to be fitted to the context of a criminal law that imposes liability similar to that of corporations on unincorporated associations of individuals. In this context, seeking to maintain a sharp distinction between the rules applicable to individuals and corporations “would create more problems than it would solve”. [102; translation mine, here and throughout]

Justice Bélanger then rejects the argument that corporations cannot avail themselves of the protection of section 12 because this provision aims at upholding human dignity. She points out that other Charter guarantees ― the presumption of innocence and the right to be secure against unreasonable search and seizure ― have also been linked to human dignity, yet they apply to legal persons. Moreover, deprivations of economic resources can affect people, and while corporations have distinct legal personalities, not all organisations, as the criminal law uses the term, do. In any case, “a legal person can suffer from a cruel fine that is evidenced by its rigour, harshness, and a kind of hostility”. [122]

Turning to constitutional text, Justice Bélanger notes that the section 12 rights are guaranteed to “everyone”. In the context of various other rights (for example, the protection against unreasonable searches and seizures), “everyone” has been read as encompassing legal persons.

Justice Bélanger also argues that allowing the imposition of disproportionate fines on corporations is against the public interest, as well the normal purposes of criminal punishment. Indeed, she

do[es] not believe that Canadian society would find acceptable or in the natural order of things, in whatever circumstances, that a grossly disproportionate fine cause the bankruptcy of a legal person or organization, thus imperilling the rights of its creditors or requiring layoffs. [130; footnote omitted]


Justice Chamberland dissents, making two main arguments. Perhaps the more important one is based on the purpose of section 12 of the Charter, notably as defined by the Supreme Court. This purpose is to preserve human dignity. The Supreme Court says so in multiple decisions. The Canadian Bill of Rights and the International Covenant on Civil and Political Rights, to which Charter‘s legal rights, including those protected by section 12, can be traced, are “instruments that provide for protection of rights in connection with human dignity”. [57] Indeed, “[t]he assertion that no one is to be subject to cruel treatment or punishment cannot be dissociated from human dignity”. [58] While the scope of “treatments or punishments” that may potentially be regarded as cruel can evolve so as to extend to fines, the requirement that the dignity of an individual, not a legal person, be affected is fixed.

Justice Chamberland’s other argument is textual. He considers that, as a matter of plain meaning, the word “cruel” refers to the infliction of “suffering, torture, inhumanity, and barbarity, all words that are tied to living beings and cannot be related to a legal person”. [51] He adds that “[o]ne can be cruel to living beings, of flesh and blood, whether humans or animals. And not to corporations with share capital.” [54-55; paragraph break removed] Justice Chamberland adds that “[t]he English Bill of Rights 1688 and the Eighth Amendment to the United States Constitution specifically provide protection against excessive fines, which the Canadian Charter and the Canadian Bill of Rights do not incorporate”. [66]


In my view, Justice Chamberland comes to the right conclusion, essentially for the textual reasons that he gives, though they are worth elaborating on a bit. Take the historical or comparative context first. It is useful to start with the Magna Carta (to which Justice Bélanger, but not Justice Chamberland, alludes). The original, 1215, version of the Magna Carta (in English translation) stipulated that

For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.

The Bill of Rights 1688 picks up on this idea of proportionality between offence and fine, but it joins it with two other guarantees: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. The Eighth Amendment repeats these exact words, only replacing “ought not to be” with “shall not be”. The Charter does things somewhat differently from its forbears. The right “not to be denied reasonable bail without just cause” is placed in a separate provision (section 11(e)) from the protection against cruel and unusual punishment (section 12). The proscription of “excessive fines”, meanwhile, has not been retained.

These drafting choices ought to matter. In particular, the Charter‘s text means that excessive fines are not, without more, unconstitutional. Now, in R v Boudreault, 2018 SCC 58, the Supreme Court held that a fine could be punishment for the purposes of section 12, which is fair enough. But of course that doesn’t remove the requirement that the fine, like any other punishment, must be “cruel and unusual” for it to be unconstitutional.

This brings me to the other part of Justice Chamberland’s textual argument: the meaning of the word “cruel”. It is remarkable, and telling, that Justice Bélanger does not directly engage with this question. Yet it is a crucial one. Both the French dictionaries to which Justice Chamberland refers and the OED define “cruel” in terms of the wilful infliction of pain and suffering or indifference to suffering. “Cruel” is not just a synonym for “excessive” or “grossly disproportionate”. Though disproportionality can be a useful indication of cruelty, it does not become cruelty unless it also causes or reflects indifference to suffering.

Now, perhaps this will always be the case with grossly disproportional punishment is inflicted on human beings. But in the case of personae fictae, the shortcut from disproportionality to cruelty is barred. As Justice Chamberland observes, legal persons cannot suffer or be pained. Justice Bélanger’s suggestion to the contrary, quoted above, strikes me as feeble. A corporation may certainly, in an objective sense, be the victim of harsh punishment and hostility. But it cannot subjectively suffer from these things.

Justice Bélanger’s main textual argument ― that section 12 protects “everyone”, and other provisions that do so apply to legal persons ― is also unpersuasive. Justice Bélanger is right that section 8 does apply to legal persons; she could also have pointed to section 2, at least some of whose guarantees (especially freedom of expression) clearly apply to corporations. But “everyone” also introduces section 7 of the Charter, whose protections, especially the right to life, can only apply to natural persons. The word “everyone”, it seems, is used ambiguously in the Charter, and we cannot rest very much on it.

Justice Bélanger’s point about human dignity being associated with rights that have been held to extend to corporations is better taken. But, by itself, it cannot clinch the argument for her position. Indeed, neither she nor Justice Chamberland should have gotten into a discussion of human dignity at all. The issue in this case can be resolved at the stage of interpretation ― of discerning the meaning the constitutional text ― without the need for construction in light of the purpose of the provision at issue. In some cases, construction is necessary to arrive at a workable way of applying a vague constitutional text. Here, by contrast, it only serves to muddy the waters.

Ultimately, Justice Bélanger decides the case the way she does because she thinks that it would be better if our constitution prevented Parliament and legislatures from imposing disproportionate fines that would cripple, and perhaps bankrupt, businesses. There is surely something to be said for this view as a normative matter. But what is “in the public interest” is not for the courts to decide. It is the politicians’ prerogative to, first, choose which limitations will be imposed on them and their successors, by framing constitutional provisions; and then by legislating within the boundaries of these provisions. It is arguable that the framers of the Charter made a mistake in failing to incorporate a protection against excessive ― and not only cruel ― fines. It is arguable that Québec’s legislature erred in imposing the minimum fine at issue in this case on a corporation guilty of a purely regulatory victimless offence (operating a construction business without a license). But it is not the Court of Appeal’s job to correct these errors.


As I have said before, it is a serious if all too common mistake to believe that the Charter’s text “is not so much a law that courts must apply as a sort of shadow in Plato’s cave, a vague reflection of true constitutional ideals that the judges must discover and explain to us cavemen”. The Charter, and the rest of the constitution, is binding law ― binding on the courts as well as on legislatures. “There can be”, I said, “no real constitutionalism in Plato’s cave. It’s time to climb out.” That includes the Québec Court of Appeal.

Textual Judicial Supremacy

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

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

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

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

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

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

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

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

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

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

Look, Look, over There!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Doré Adrift

Why the Supreme Court’s approach to the Charter in the context of administrative law fails to live up to its promises

When Dunsmuir came out, I was in the middle of taking administrative law in law school.  Our class had spent hours learning about “patent unreasonableness”.  But when Dunsmuir abolished it, the professor was faced with a dilemma for the exam: forget patent unreasonableness or pretend that Dunsmuir never happened?

While our professor chose the latter, I imagine admin law professors hope the recent reconsideration of Dunsmuir cases in Bell/Vavilov/NFL (the “trilogy”) will be not be decided during the semester.  While Dunsmuir itself appears to have had a shelf life of about a decade, Doré v Barreau du Quebec, 2012 SCC 12 is approaching the seven year itch. Doré, of course, changed how Courts decide whether government actors violate the Charter. Doré seems safe for now, even as the amici curiae in the trilogy wish to rework it.  But given the lack of longevity to administrative law decisions and its many critics, there is an increasing sense that Doré could (or should) soon belong to the growing graveyard of administrative law jurisprudence.

But offering a eulogy would be premature.  Instead, enough time has passed to conclude that, thus far, Doré and its progeny have disappointed based on the very implicit promises and rationale contained in Doré itself.

Doré’s Path

As many readers are aware, the 2012 decision in Doré abandoned Oakes formal multi-stage proportionality test for assessing whether government action and actors (i.e., tribunals and other government delegates) comply with the Charter.  The Oakes test was the test used by the Supreme Court between the 1989 decision in Slaight and Multani in 2006.  Doré has since been followed by the Court in Loyola (2015) and the twin TWU decisions (2018). Oakes still applies to reviewing the constitutionality of legislation.

Under an Oakes review, a Court first assesses whether a government decision limited the Charter in the first place.  If so, it moves to the second step where the state has the onus to prove:

  • the government’s objective is pressing and substantial;
  • the decision is rationally connected to the objective(s);
  • the decision minimally impairs the affected rights; and
  • there is proportionality between the decision’s benefits and harmful effects. 

For all of Oakesshortcomings, it was applied rather rigorously in the recent Canadian citizenship case and has been hailed by the UK Supreme Court as the “clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning”.

Doré explicitly abandoned Oakes’ formal two-step approach in favour of a global assessment of whether:

“given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (para. 57).   

This loosely structured test is Doré’s “administrative law” approach to judicially reviewing government action.  Whereas the state has the onus to justify itself at each stage of Oakes, everything is “put on the scales” at once under Doré’s “more flexible” approach (paras. 36-37). 

Doré brought “Dunsmuir deference” to decision-makers’ decisions on Charter issues (paras. 36, 54-56; TWU, para. 79).  According to Dunsmuir, deference in judicially reviewing government action means that “courts will give due consideration to the determinations of decision makers” (para. 49) in deciding whether a decision “falls within a range of possible, acceptable outcomes” on a standard of reasonableness (para. 47).  In other words, a court will defer to a decision maker unless their decision is shown to be unreasonable and outside this acceptable range.  The alternative standard, correctness, means a court will take its own independent analysis of a decision, as it does with an Oakes review, and substitute its own view.

Doré’s Promises

Doré offered rationale and a number of promises to justify the break from Oakes.  This is a scorecard of how they have subsequently turned out:

1.The Expertise of Decision-makers.  The rationale in Doré for deferring to decision-makers on Charter issues is that, by virtue of their “expertise and specialization”, they will “generally” be in the best position to consider the Charteron the specific facts of the case” (paras. 47, 54; TWU, para. 79 (“typically”).  This suggests that some decisions don’t deserve deference. But this doesn’t appear to have held true.

One may have thought that the facts in TWU would challenge the supposed “distinct advantage that administrative bodies have in applying the Charter” (Doré, para. 48).  That is because in TWU, the administrative body applying the Charter, the Law Society of BC (“LSBC”), made its decision to bar TWU graduates from practicing law solely because of a popular vote of its membership.  This membership is what Chief Justice Bauman of the BC Court of Appeal facetiously referred to in oral argument as “the largest tribunal in British Columbia”.  While this decision was under judicial review, the LSBC itself conceded in its written submissions and in oral argument before the BCCA that the membership effectively made the decision.  Indeed, the referendum itself said the membership’s decision “will be binding and will be implemented by the Benchers”.  The lower courts unsurprisingly found this to be fettering by the LSBC “abdicating” its statutory duties. 

On this factual background, the dissenters in TWU, Justices Brown and Côté, sensibly stated that the “LSBC membership could never, through means of a referendum, engage in the balancing process required by Doré” (para. 298). However, the majority of the Supreme Court were forced to downplay the membership vote as being mere “guidance or support” (para. 50) in order to defer to LSBC’s “institutional expertise” (para. 50) and by extension the rationale for deference in Doré

But what kind of expertise did the majority require of the LSBC to justify any deference to it?  Surprisingly, the majority said the LSBC only had to be “alive to the [Charter] issues” (paras. 51-56).  Being “alive” suggests, perhaps, that deference is deserved for decision-makers who don’t drop dead before rendering a decision.

In assessing the rationale for deference in Doré, one must critically consider: what “expertise” and “specialization” did the membership of the LSBC bring?  Or the Benchers, who merely adopted the membership’s will?  Remarkably, the majority in TWU still deferred to the LSBC in spite of the LSBC urging the Supreme Court of Canada not to defer to them and apply a correctness standard instead.

In sum, when the rationale for deference is absent – expertise, specialization, and proximity of the facts to the Charter – deference still apparently applies in a Doré review.  It may be time to reconsider this.

2.Doctrinal Coherence.  One justification for discarding the Oakes framework established in Slaight was that Doré would lay down a new, solid legal foundation on which to construct coherent doctrine (paras. 35-39).  Doré itself said its administrative law approach was employed in cases such as Baker and TWU (2001).

If Doré’s goal was “to start from ground zero in building coherence in public law”, as the decision itself suggested (para. 34), the commentary on Doré cast significant doubt on its methodology and doctrine (calling E.T. v. Hamilton-Wentworth District School Board and Justice Stratas).  Almost seven years later, we still don’t know the basics about applying Doré in practice.  The majority of the Court has remained silent on a litany of criticisms of Doré (see point #4 below) – including ones made by members of the Court itself – having to do with the distinction between Charter values and Charter rights, the absence of the “prescribed by law” requirement in s. 1 of the Charter, and the identification of who bears the onus to prove proportionality under Doré.  (an interesting fact is that the Attorney General of Canada argued in the lower level courts in BC that the LSBC decision could not pass the “prescribed by law” requirement).

And while Doré suggests a court defer to a decision-maker’s own identification of the relevant statutory objective against the Charter (paras. 55-57), that approach was not followed in Loyola and TWU.  This departure has never been explained. The lack of clarity and consistency that Doré was supposed to remedy have caused new frustrations for lawyers and judges alike (again, see #4 below). 

I will add two thoughts.  First, a Doré review seems doctrinally flawed that a Court would defer to the state on whether the state has properly balanced the relevant Charter protections.  Why should the state get the first crack in deciding whether its own actions violate the Charter?  This deference gives the state a distinct advantage over Canadians whose rights are limited by effectively putting the onus on applicants to prove why the state is not owed deference (i.e., why it did not balance the Charter properly). This effectively reverses the onus in Oakes and deprives the Charter of its overarching purpose as a shield against the state. 

One wonders whether there is a principled limit to this reasoning.  If a government delegate is accorded deference to their decision, because of their “expertise and specialization” and familiarity with the Charter (Doré, para. 47), why should this not, in principle, extend to discretionary decisions of other government actors with expertise and specialization such as police officers or border agents whose actions are currently reviewed according to objective tests?  What is the principled reason that they are not afforded deference when the Court decides whether a detention violates s. 9 of the Charter, or their search engages s. 8 of the Charter, which protects against “unreasonable” searches? 

If the scenario seems absurd, consider that courts in BC have directly reviewed police decisions in issuing roadside prohibitions under Dunsmuir deference (!!).  If a Charter issue arose in such a case, “Doré deference” to the police officer’s decision would presumably apply.  In this way, Doré review could potentially erode Charter protections in contexts likely not anticipated by Doré.

Second, taking that dichotomy further, if legislative decisions by decision-makers are reviewed for Charter compliance under the test in Doré, as suggested by the majority in TWU (i.e., the LSBC benchers) (para. 54), what is the principled reason for utilizing Oakes, and not Doré, to review the constitutionality of legislation? 

If the answer is that rules of general application like legislation and regulations should be assessed under the more stringent Oakes standard, this has problematic consequences for the way government operates. The existence of Doré review for government actions means the government has an incentive to structure their power to confer broad discretion to govern opaquely by action, not regulations, so that those actions are reviewed under the deferential Doré review, rather than with the more stringent justification demanded by Oakes.  In other words, the mere existence of a Doré review provides an incentive for the state to provide its actors with Doré deference rather than an Oakes review (e.g., direct judicial review of the police issuing roadside prohibitions).

The different levels of Charter protection Canadians have against government actors means there is a hierarchy of rights protection depending on the identity of the state actor.  It also means there are increasing ways for the state to exploit that hierarchy as there is little incentive for the state to govern transparently or decision-makers to provide reasons when it can deferentially operate under an administrative apparatus free from an Oakes review.

3.An administrative law approach to the Charter should prevail.  This was the main promise of Doré: that Courts “embrace a richer conception of administrative law” by allowing a flexible approach that would be “nurtured” by the Charter (paras. 27-29, 37, 47).

Doré itself was criticised for failing to apply administrative law to critically engage in the reasons of the decision-maker. In Loyola, the Court moved back towards Oakes. It clarified that the Doré test incorporated the minimal impairment test (paras. 4, 41).  In practice, however, the government in Loyola failed the pressing and substantial/rational connection stages in Oakes (without referring to Oakes) in concluding that the decision failed to advance the ERC Program’s objectives in any significant way (paras. 6, 68, 148, 159).   The majority of the Court mystifyingly ignored applying Doré altogether in Saguenay, Justice Counsel, and Ktunaxa.

In TWU, and without citing a single case on the concept, the majority appeared to undermine the well-settled administrative law prohibition of fettering to achieve its result.  The administrative law professor must wonder: what does fettering mean anymore in light of TWU? (If you are one such professor, I would be keen to hear your thoughts). On the other hand, the majority in TWU borrowed from some of its recent administrative law decisions, while ignoring others, to justify the LSBC’s failure to provide reasons and provide post-facto justifications for its decision. 

And as noted by Mark Mancini, the simplicity of Doré was complicated by the subsequent decisions in Loyola, Ktunaxa,and TWU by introducing the threshold question of Oakes as to whether the Charter is limited in the first place. While this is a welcome development, the return of the two stage limitation/justification assessment is another shift toward Oakes (Doré, para. 29).

If practice makes perfect, the applications (or lack thereof) of Doré in Loyola, Saguenay, and TWU are underwhelming in terms of modelling an approach to judges and lawyers that infuses administrative law principles into its decisions.  The more Doré is applied, the more it is applied in a complicated manner.  The touted “flexibility” of Doré can be used to incorporate administrative law in theory, but it can also legitimize judicial preferences in practice.

4.Using Oakes for Administrative Law was Consistently CriticizedDoré justified abandoning Oakes because a few academics were “concerned” by Slaight, and academics were allegedly “consistently critical” of Multani, the last SCC decision that applied Oakes (paras. 27, 33-34). 

By comparison to Multani, Doré’s critics are legion.  In a similar six year time period, Doré has sustained an avalanche of academic criticism easily eclipsing Multani’s use of Oakes. Doré was mentioned unfavourably more than any other Supreme Court of Canada decision in Double Aspect’s “Twelve Days of Christmas” symposium (here, here, here, and here).  Doré been the subject of surprisingly candid criticism from appellate court judges.  In the twin TWU cases, four justices expressed concerns with Doré in response to TWU’s calls to fix Doré.  Justices Brown and Côté offered the stinging criticism that Doré “betrays the promise of our Constitution” (para. 266). 

To use a football analogy, will the Court continue to call seemingly ineffective passing plays when the crowd is screaming for them to run the ball?  Perhaps not, but with each passing decision of the Court, Doré’s critics are growing louder.

Conclusion

Judged on its own terms, Doré is struggling to achieve its vision.  This vision, however, comes at a cost to ordinary Canadians whose rights may be limited.  Given the never-ending construction project that is administrative law in Canada, practitioners “are placed in an impossible situation”.  The lack of clarity, varying simplicity, and unpredictability in a Doré review means lawyers are unable to effectively advise clients because they must speculate as to the possible outcome. Clients are left with uncertainty. If Doré stays on life-support, one wonders: who is being served by keeping Doré alive?

Doing Right on Rights

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

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


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

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

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


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

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

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

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

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


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

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

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

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


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

“A Profound Attachment”

The Supreme Court holds that disenfranchising Canadians abroad is unconstitutional

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

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

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


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

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

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

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

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


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

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


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

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

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

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

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


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